Director of Public Prosecutions (WA) v Unwin [No 2]

[2012] WASC 73

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- UNWIN [No 2] [2012] WASC 73

CORAM:   McKECHNIE J

HEARD:   8 FEBRUARY 2012

DELIVERED          :   8 FEBRUARY 2012

FILE NO/S:   MCS 48 of 2010

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

MARK ROBERT UNWIN
Respondent

Catchwords:

Dangerous sexual offender - Review - No new principles

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Detention order not rescinded

Category:    B

Representation:

Counsel:

Applicant:     Mr T B L Scutt

Respondent:     Mr M R Hall

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Hall & Hall Lawyers

Case(s) referred to in judgment(s):

DPP v Unwin [2011] WASC 11

1. McKECHNIE J:  On 13 January 2011, Mr Unwin was declared to be a dangerous sexual offender and an order was made for his continuing detention:  DPP v Unwin [2011] WASC 11.

2. On 11 November last year I made the following orders:

   (1)The application for an annual review of detention pursuant to sections 29 and 31 of the Dangerous Sexual Offenders Act 2006 be heard on 8 February 2012;

   (2)Having regard to the fact that the Respondent is enrolled to participate in a sex offender treatment program commencing in December 2011 for a period of approximately seven months, no psychiatric examination and report is to be prepared for the annual review;

   (3)The Applicant is to file and serve a report by an appropriate officer from the Department of Corrective Services detailing any matters of relevance with respect to the Respondent's care, control or treatment that have arisen since 13 January 2011; such report to be filed and served on or before 25 January 2012.

3. Pursuant to Order 3, the DPP filed a report from Ms Wendy Wager, Senior Forensic Consultant, dated 18 January 2012 and today has formally tendered her report, which I have received into evidence as exhibit 1.

4. After Mr Unwin was made subject to the order by Blaxell J, he underwent a total of nine individual counselling sessions to prepare him for group program participation.  Subsequently, he commenced an ISOTP on 12 December 2011.  That programme is scheduled to finish in late September 2012.  Whilst the ISOTP is in its early stages, there were some indications that Mr Unwin was struggling with both the content and the environment or, as Mr Scutt has put it, there were some early wobbles, but it is early days.

5. Having regard to the material before me and to the comprehensive reasons of Blaxell J in DPP v Unwin, I am satisfied:

   (a)that Mr Unwin remains a serious danger to the community, and

   (b)that at present he should be detained in custody for care, control and treatment, and I expressly decline to rescind the order of Blaxell J. 

6. The main reason for the latter finding is that he is yet to complete the ISOTP which has many months to run.  His satisfactory completion, or non‑completion, of the ISOTP is a matter that will affect both the question whether he remains a serious danger to the community and, if he does, whether he should remain in detention or be released on supervision.

7. In the circumstances, and by the consent of the parties, I have concluded that he remain in detention as a dangerous sexual offender pending the next annual review.  However if, following the completion of the ISOTP, Mr Unwin wishes to apply for a review pursuant to the Dangerous Sexual Offenders Act 2006 (WA) s 30, then such an application will not be opposed by the DPP and can be quickly and expeditiously brought on before the next annual review. The result of it of course will depend on many factors, but the applicant can have any application determined quickly.