Director of Public Prosecutions (WA) v Unwin [No 4]
[2014] WASC 241
•4 JULY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- UNWIN [No 4] [2014] WASC 241
CORAM: COMMISSIONER SLEIGHT
HEARD: 9 MAY & 25 JUNE 2014
DELIVERED : 4 JULY 2014
FILE NO/S: MCS 48 of 2010
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
MARK ROBERT UNWIN
Respondent
Catchwords:
Dangerous sexual offender - Annual review - Whether continuing serious danger to the community - Whether detention or supervision order appropriate - Whether offender requires supported and supervised accommodation
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 33
Result:
Expressly decline to rescind continuing detention order
Category: B
Representation:
Counsel:
Applicant: Ms A Forrester & Ms K Robinson
Respondent: Mr M R Hall
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Hall & Hall Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Alvisse [No 7] [2014] WASC 227
Director of Public Prosecutions (WA) v Unwin [2011] WASC 11
Director of Public Prosecutions (WA) v Unwin [No 2] [2012] WASC 73
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Williams (2007) 35 WAR 297
COMMISSIONER SLEIGHT: This is an application for an annual review of a continuing detention order against Mr Unwin made by Blaxell J on 13 January 2011 under the Dangerous Sexual Offenders Act 2006 (WA) (the Act): Director of Public Prosecutions (WA) v Unwin [2011] WASC 11.
Since the order of Blaxell J, there have been two annual reviews prior to the current review. The first review was conducted by McKechnie J (Director of Public Prosecutions (WA) v Unwin [No 2] [2012] WASC 73); and the second review was conducted by Hall J (Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178).
On the first annual review, McKechnie J declined to rescind the continuing detention order, primarily on the basis that before a decision was made as to whether it was suitable to release Mr Unwin under a community supervision order, Mr Unwin should complete an Intensive Sex Offender's Treatment Programme which had been commenced by Mr Unwin but had not been completed at that point in time: Director of Public Prosecutions (WA) v Unwin [No 2] [6] ‑ [7].
On the second annual review, Hall J again declined to rescind the continuing detention order. However, Hall J concluded the reason for this was that there was not available appropriate supported and supervised accommodation. Except for this accommodation issue, Hall J concluded that a supervision order could be formulated that would provide adequate protection to the community: Director of Public Prosecutions (WA) v Unwin [No 3] [54].
Background
The starting point is to consider Mr Unwin's background (including his offending history) as this gives context to his current risk factors. Mr Unwin's background is very tragic. When he was about 3 years of age he was considered a borderline level of intellect. At the age of three he became a ward of the State. He had a neglected and unhappy childhood. By the age of 8 Mr Unwin was spending increasingly more hours away from home and increasingly lived on the streets. By the age of 12 he was sniffing glue and other substances and prostituting himself for money. When Mr Unwin was 14 years of age he was taken in by a 23‑year‑old male who engaged in an abusive sexual relationship with Mr Unwin over a period of two years. At times the nature of the sexual abuse was extreme. The older male was subsequently charged and imprisoned for a lengthy period. At the age of 17 Mr Unwin was admitted to Heathcote Hospital after an attempted suicide. As a result of his past, Mr Unwin has not received a proper education and has limited social skills. Other than in prison, he has not had any employment experience other than for a short period selling The Big Issue magazines.
Prior to serving his most recent term of imprisonment, which expired on 28 October 2010, Mr Unwin had a long history of sexual offending. The details of this offending are adequately set out in the decision of Blaxell J in Director of Public Prosecutions (WA) v Unwin [15] ‑ [35]. In summary, whilst a juvenile, Mr Unwin was convicted of two offences of indecent dealing, six offences of indecent assault and one offence of deprivation of liberty. As an adult Mr Unwin was convicted of the following:
•one offence of indecent assault (1997);
•offences of aggravated indecent assault, aggravated sexual penetration without consent (fellatio) and threatening to injure (1999);
•indecent assault, aggravated indecent assault, and assault occasioning bodily harm (2000); and
•one offence of indecent assault (2008).
All of the offences committed by Mr Unwin as an adult involve acts of violence. From an early age much of the offending involved grabbing, and later, biting female breasts.
The surrounding circumstances of the last offending in 2008 are worth noting. The offence took place on the 15 June 2008. Mr Unwin had recently been released from prison, having served the full term of a sentence for armed robbery. After being released from prison he was living on the streets. On 14 June 2008 Mr Unwin threw a bottle at an unattended vehicle causing damage to the vehicle. His explanation for committing this damage offence was to ensure that he was sent back to prison as he had nowhere to live and it was winter. However he was released on bail early next day from the Perth lock up. He was angry that he was released on bail and was walking down Adelaide Terrace in the early hours of the morning when he came upon his victim who he indecently assaulted. When he came before the District Court for sentencing he instructed his counsel to request the court that no eligibility for parole be granted. At this stage it appears that Mr Unwin was quite content to remain in prison. Mr Unwin eventually served the full term of the term of imprisonment imposed by the District Court albeit that an order was made for eligibility for parole. It was when he was due for release that the initial application was made for him to be detained indefinitely under the Act as a dangerous sexual offender.
Dr Tanney in his evidence before Hall J on the second annual review, stated that, in his opinion, Mr Unwin does not impulsively sexually offend, but there is a clear scenario leading up to the offending. It is related to Mr Unwin's limited capacity to cope with stresses. In the past, this has been associated with stresses concerning nowhere to live and having insufficient food. Because of his limited capacity to cope with such issues, Dr Tanney believes that Mr Unwin becomes frustrated and to solve such stresses, reverts to the use of solvents to get intoxicated. It is when he is intoxicated that he then commits offences (ts 59 of hearing 22 February 2013).
Dr Febbo, in a report dated 14 November 2010, reached similar conclusions. Dr Febbo expressed the opinion that if Mr Unwin were to further offend, the offending scenario would be similar to his previous offences and would be associated with being homeless, feeling dejected and hopeless, and as a result of his state of mind, returning to significant solvent abuse (page 51 of Dr Febbo's report dated 14 November 2010).
Legal framework
An annual review of a continuing detention order under the Act requires the court to consider a threshold issue. This threshold issue is whether the person the subject of the continuing detention order remains a serious danger to the community (that is, that the court is satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence). If the person is no longer found to be a serious danger to the community, then the person is released unconditionally (s 33(1)).
If a person is found to be a serious danger to the community, this does not automatically mean he or she is to be placed on a continuing detention order. There seems to be a misconception in some sections of the community and the media that just because a person is found by the court to be a serious danger to the community, the person should be indefinitely detained. That is not what the legislation provides. For the court to find that an offender is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that if the person was not subject to a continuing detention order, OR a supervision order, the person would commit a serious sexual offence. In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community (s 33(3)). What is adequate is a matter for judgment in each case. Although protection of the community is to be given paramount consideration, it is not the only consideration and other issues require consideration as well: Director of Public Prosecutions (WA) v Williams (2007) 35 WAR 297 [311] (Wheeler JA).
The legislation, by providing that the community might be adequately protected by a supervision order, recognises that it is a significant thing to deprive a person of their liberty, not for something they have done but for something they might do in the future. The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by a supervision order. If an offender is placed on a continuing detention order, then considerable resources are allocated to provide psychotherapy and counselling whilst the person is held in detention to address the risk factors which lead to offending. It is normally expected that over each 12 month period the risk factors will be addressed so as to improve the chance of a supervision order being made at the next annual review. The annual review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not yet committed: Director of Public Prosecutions (WA) v Unwin [No 3] [19].
Material
The third annual review first came before me on 9 May 2014. The material before the court on that occasion consisted of the following:
1.A book of materials for the purpose of the third annual review of detention. This book consists of the following:
•records of the Department of Corrective Services;
•a report of Dr B Tanney, Consultant Forensic Psychiatrist, dated 23 April 2014;
•a treatment progress report by Dr D Summerton, Dangerous Sex Offender Psychology Team, dated 28 April 2014; and
•a Community Supervision Assessment Report of Ms J Dabala and others of the Department of Corrective Services, dated 30 April 2014.
2.Five books of material tendered on the previous hearings referred to earlier in this decision.
3.Copies of the decisions of Blaxell J, McKechnie J and Hall J previously referred to.
The annual review was adjourned on 9 May 2014 to 25 June 2014 for the purpose of obtaining a report from a second psychiatrists, which is required under the Act unless the court otherwise orders (s 32).
On the reconvening of the annual review on 25 June 2014 a Supplementary Book of Material dated 18 June 2014 was tendered. The material contained in this book consists of the following:
•a report of Ms S Ludwig from Partners In Recovery (PIR) undated;
•a Supplementary Psychiatric Report of Dr B Tanney dated 3 June 2014; and
•a report of Dr S Febbo, a Consultant Psychiatrist dated 18 June 2014.
I also heard oral evidence on the 25 June 2014 from Dr Tanney, Dr Febbo, Mr Summerton, Ms Ludwig and Ms Dabala.
Threshold issue
As identified above, the threshold issue is whether Mr Unwin remains a 'serious danger to the community', that is, that the court is satisfied that there is an unacceptable risk that if he is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.
Counsel for Mr Unwin rightly concedes such a finding should be made, but I am still required to examine the material before the court and reach this conclusion.
All of the psychiatric reports provided for hearings under the Act concerning Mr Unwin (including the reports prepared for this third annual review) indicate that without a detention order or a supervision order being in place, Mr Unwin is a high risk of sexual reoffending. On the basis of this material, I conclude that the State has proved to the required standard that Mr Unwin remains a serious danger to the community (that is, that there is an unacceptable risk that if he is not subject to a continuing detention order or supervision order, that he would commit a serious sexual offence).
Should Mr Unwin remain subject to an indefinite detention order?
As I have earlier indicated, Hall J in Director of Public Prosecutions (WA) v Unwin [No 3] concluded that a supervision order could be formulated that could provide adequate protection for the community providing the order was on the basis Mr Unwin resided in identified supported and supervised accommodation. His Honour stated as follows:
In many respects Mr Unwin's case is an unfortunate one. He clearly suffers from significant cognitive deficits. This has been compounded by the sedating effect of anti‑psychotic medication. His intellectual issues and sedation have made effective participation in treatment programmes very difficult. He has a past history of severe solvent abuse and has resorted to solvents in the past to deal with anxiety and stress. Whilst still a relatively young man he has limited prospects for improvement in a prison environment. He could be in prison for many years if appropriate supervised accommodation is not found. He has many and complex needs which will require a significant commitment of time and resources. If that commitment is not made Mr Unwin will be condemned to a bleak future. The value that a civilised society places upon personal liberty requires that something be done to improve and increase the accommodation options for people in Mr Unwin's position.
In this case, I am satisfied that a supervision order could be formulated that would provide adequate protection for the community. However, such an order would necessarily have to include a requirement to live in identified supported and supervised accommodation. Despite exhaustive efforts no such accommodation has been found. In these circumstances, a supervision order is not appropriate. Accordingly, on 7 May 2013 I made an order expressly declining to rescind the continuing detention order [53] ‑ [54].
As detailed in the decision of Hall J, enquiries were made with various agencies, and each of them was unwilling to provide accommodation to Mr Unwin. After a further 12 months of enquiry it is still the case that no such accommodation has been identified. A proposal is now presented that Mr Unwin reside with his brother on a temporary basis until more suitable supported and supervised accommodation can be arranged or alternatively Mr Unwin reaches a point where he can live independently under supervision. Previously the house occupied by Mr Unwin's brother was occupied by Mr Unwin's mother, aunt and brother but the mother and aunt have now voluntarily moved out to a property nearby in case their presence jeopardised Mr Unwin's chances of being released. The DPP submits that this proposal of accommodation is unsuitable as it lacks proper facilities for support and supervision; and I should expressly decline to rescind the continuing detention order. Counsel for Mr Unwin submits that it is appropriate to release Mr Unwin into the community on strict conditions.
Report and evidence of Dr Summerton dated 28 April 2014
(a) Report dated 28 April 2014
Dr Summerton in his report dated 28 April 2014, indicated that at the time of the second annual review before Hall J, he believed that Mr Unwin was ill‑prepared for release. This was despite the fact that Mr Unwin had at that time completed an Intensive Sex Offender Treatment programme in June 2012, and received fortnightly psychological sessions from Dr Galloghly (Mr Unwin's treating Dangerous Sexual Offender Psychologist). However, Dr Summerton now concludes, that since the second annual review, Mr Unwin has made considerable progress. This progress can be summarised as follows:
1.Mr Unwin, under the supervision of Dr Tanney, was taken off his depot antipsychotic medication and placed on a lower oral dose. This reduction in his medication regime produced an improvement in mood and reduced the presence of psychotic symptoms.
2.Mr Unwin was transferred to a minimum security institution at Karnet Prison Farm in November 2013. The purpose of the move was to provide a less structured environment as Mr Unwin transitioned to potential release to the community. As a result of the change in medication and the move to Karnet Prison Farm, there has been a general increase in Mr Unwin's level of animation and motivation over the last year.
3.Because of the above changes, counselling has been able to progress. There has been an improvement in capacity for self‑reflection and in Mr Unwin's ability to coherently address aspects of his offending and current situation. Mr Unwin has evidenced reasonable awareness of factors that are likely to destabilise him and consequently, made it more likely that he will not sexually reoffend. For instance, he reported a preference to avoid antisocial peers that might expose him to drug use. With the change in Mr Unwin's presentation, counselling has been able to make a significant focus on improving Mr Unwin's coping skills, with specific focus on emotional regulation. Other issues addressed in counselling include relationship and intimacy, substance use, planning and goal setting, and general self‑management.
4.Mr Summerton reported that Dr Galloghly was of the opinion that although the sexual deviance component of Mr Unwin's offending, specifically his fixation on female breasts, has not been resolved. Mr Unwin did have a basic insight into his offending behaviour, although there were limitations in the extent of the insight because of Mr Unwin's relatively low level of intellectual sophistication and personality structures. However, Dr Galloghly observed that Mr Unwin was more oriented to appropriately responding to supervision and to request support as needed. Mr Unwin responded well to structure and, by reputation, was a good worker in the prison system.
5.Mr Unwin is particularly motivated to obtain employment and Mr Summerton expressed the view that obtaining employment would be central to Mr Unwin's effective reintegration into the community.
6.It was proposed that if a supervision order was made, Mr Unwin would attend weekly counselling sessions with Dr Galloghly as Mr Unwin adjusted to life in the community. The focus would be on risk management and particular attention would be given to emotional regulation.
7.Because of the difficulty with finding supervised accommodation, the services of the Richmond Fellowship Western Australia, who conduct the Partners In Recovery programme (PIR) has been engaged to assist Mr Unwin to adapt to a more independent living arrangement. Dr Galloghly considers the involvement of the PIR programme is a crucial development in Mr Unwin's case. This organisation will coordinate Mr Unwin's case management needs and will link him in with relevant community health services. It is believed it will be instrumental in obtaining work for Mr Unwin and also obtaining for him accommodation. The PIR program personnel will also offer Mr Unwin's mother counselling assistance to facilitate the adjustment necessary for Mr Unwin and his mother to become involved again in each other's lives.
(b) Oral evidence of Mr Summerton
In his oral evidence on 25 June 2014 Mr Summerton stated that there had been no significant progress in terms of Mr Unwin's level of psychological sophistication and his capacity to make sense of the precursors and issues specific to his offending, such as his focus on female breasts when offending. Mr Summerton acknowledged that Mr Unwin's insight into his offending therefore remains limited (ts 189). However, Mr Summerton was of the opinion that Mr Unwin now has a greater appreciation of the precursors to his offending, including substance abuse, and the type of company and situations that might increase the risk of reoffending (such as frequenting with people in public places and homeless people) (ts 190).
Mr Summerton expressed the opinion the main change in the last 12 months has been the level of responsiveness and engagement and Mr Unwin's willingness to respond to intervention. According to Mr Summerton, Mr Unwin's ability to deal with stress has improved to the degree that he is now willing to accept help (ts 188 ‑ 189).
Mr Summerton expressed the opinion that in terms of future plans for Mr Unwin's return into the community, Mr Unwin had a simplistic concept of what was involved. Because he had spent so little time in the community Mr Unwin had little understanding of the sort of issues that might confront him, including challenges that might exist in relation to reuniting with his family (ts 190).
Reports and evidence of Dr Bryan Tanney
(a) Reports of Dr Tanney
Dr Tanney has had a long involvement in assessing Mr Unwin. He provided written reports on each of the previous occasions an application has been made to the court under the Act. In relation to this application, he has provided a report dated 23 April 2014 and a report dated 3 June 2014.
In his report dated 23 April 2014 Dr Tanney reported that:
1.Mr Unwin (unlike in the past where he was content to remain in custody and, in fact, says he deliberately offended in order to be returned to custody) is now keen to be released into the community [24].
2.There are currently no treatment programs available to inmates that are likely to benefit Mr Unwin and afford major advances in decreasing Mr Unwin's likelihood of sexual offending [51].
3.In his opinion a plan for community management can be structured for Mr Unwin to be released into the community [52]. However, he expressed the opinion that the accommodation proposal of Mr Unwin residing at his mother's house would not provide sufficient on‑site support and supervision [43]. Dr Tanney commented that Mr Unwin and his mother had a lifelong relationship of both ambivalence and conflict. This evokes for Mr Unwin the emotional stresses that are the opening act of his risk scenario. Dr Tanney expressed the opinion that it would be an immense task to reunite Mr Unwin and his mother. He strongly recommended that weekly family therapy be included as part of any community treatment activity [42].
4.He expressed the opinion that whatever programme was put in place to supervise Mr Unwin in the community it needed to be highly structured, intensive and involve the co‑ordination of multi‑system resources [52]. Mr Tanney expressed the opinion that Mr Unwin required intense mentoring. This would involve virtually full‑time caring [43].
5.He was not confident that the PIR programme could provide sufficient support, supervision, mentoring and mental health supervision to make up for the deficiency of not having a mentor [53].
6.He believes that Mr Unwin does not at the present time have the skills to manage independent living. These can be learned with intensive support, usually offered as on-site supervision, and with this period of supervised accommodation, Mr Unwin was capable of developing sufficient skills over time [43].
7.He expressed the opinion that under a supervision order, management and treatment activities would be required for at least five years, and continual monitoring of the possibility of sexual offending should be in place for 10 years [54].
In his supplementary report dated 3 June 2014 Dr Tanney reiterated that he did not believe Mr Unwin should be released under community supervision until there were better arrangements in place for his accommodation so that there was a coordinated management of Mr Unwin providing daily support and mentoring.
(b) Oral Evidence of Dr Tanney
In his oral evidence on the 25 June 2014 Dr Tanney emphasised that Mr Unwin had exceptional and complex needs (ts 158, 160).
Dr Tanney stated that since the last review Mr Unwin had progressed in a number of areas but the lessening of his risk of reoffending was not significant (ts 152). However, one of the things that impressed Dr Tanney on interviewing Mr Unwin for the current review was that he felt Mr Unwin was making a significant commitment to fulfilling the requirements of treatment and supervision and this commitment was important in terms of managing his risk (ts 153, 155).
Dr Tanney stated that in his opinion no further benefits could be obtained by Mr Unwin having group therapy. He had recommended at the last review that a trial of individualised therapeutic counselling be undertaken but he believed at the time and still believes that it is unlikely to be successful in terms of addressing Mr Unwin's sexual offending. However, he believed the counselling provided by Dr Galloghly had been of 'exceptional value' as it provided for the first time in Mr Unwin's life a consistency for nearly two years of a relationship with a treating psychologist. Dr Tanney recommended that this arrangement continue (ts 158).
Dr Tanney expressed concern that the accommodation arrangement of Mr Unwin residing with his brother was a fragile arrangement which was only meant to be temporary and was untried. He believed it was likely to be a month‑to‑month proposition (ts 157). He believed that what Mr Unwin required was consistency in support, stability and supervision (ts 157). If the arrangement with his brother ceased and Mr Unwin was forced to obtain accommodation living independently, Dr Tanney was concerned that there would not be sufficient support and supervision (ts 157).
Dr Tanney believes that although family support was being provided as part of the proposal for Mr Unwin's release into the community, due to the fractured history of the relationship of Mr Unwin with his family, it was unlikely that his family would be able to provide the support needed to address the needs of Mr Unwin (ts 161).
Dr Tanney believes that what Mr Unwin requires is a mentor service providing support and supervision on at least five days a week for five to six hours per day (ts 165). He believed that this sort of intensive support would be needed for at least two years (ts 165). He was concerned that without such a mentor being engaged the multi‑agency proposal that had been put forward would be too 'porous' (ts 166).
In relation to Dr Tanney's evidence on previous occasions as to the precursors of Mr Unwin's offending, being homelessness, stress and solvent abuse, Dr Tanney stated that the stresses which lead to offending could occur rapidly and happen within days. He believed that the critical period would be shortly after Mr Unwin's release into the community. He was concerned that with the situation where multi-agencies were involved in the supervision and support of Mr Unwin (without a full‑time mentor or supported and supervised accommodation) there may be a breakdown in communication when warning signs appear and a lack of responsibility for intervention (ts 172).
In relation to a draft proposal of conditions prepared by the Department of Corrective Services if a supervision is made, Dr Tanney indicated that he believed that a large number of conditions can create a situation where it is not feasible to expect the released dangerous sexual offender to comply. He believed that it may be appropriate to review the standard conditions used.
Report and evidence of Ms Dabala of the Department of Community Corrections
(a) Report dated 30 April 2014
A Department of Community Corrections report dated 30 April 2014 has been tendered, one of the authors of which is Ms Dabala. The report details the progress made by Mr Unwin in similar terms to the report of Mr Summerton, which I have outlined earlier. However, the report of the Department of Corrective Services is slightly more negative in its description of the progress made at Karnet Prison Farm. The report mentions that Mr Unwin withdrew from an Outcare Life Skills program in April 2014, complaining it was repetitive of the Intensive Sex Offender's Treatment Program he had already completed. Further, the report stated that Mr Unwin had changed his work circumstances at Karnet Prison Farm on a number of occasions, which led the authors to the conclusion that Mr Unwin had difficulty focussing and committing to one employment role.
The report states that through the PIR programme a local authority has been approached and is open to taking Mr Unwin to do volunteer work. The local authority is aware of Mr Unwin's offending history. The report suggests that Mr Unwin is under a misunderstanding that the volunteering position will lead to a paid position.
The report details the accommodation arrangements proposed for Mr Unwin, which at that time were on the basis that Mr Unwin would live with his mother, aunt and brother. The house belongs to Mr Unwin's mother and sister who inherited the house. Mr Unwin's mother and aunt have moved out of the house in case their presence created a problem for Mr Unwin being released under supervision. The house consists of three bedrooms. Mr Unwin's brother, who resides in the house, is employed full‑time.
Mr Unwin's mother, aunt and brother have been visited by Dr Galloghly and Ms Dabala. Ms Ludwig has also met with Mr Unwin's mother with a view to providing counselling for the transition.
The proposal is that the accommodation provided by Mr Unwin's mother would be on a short term basis until more suitable independent accommodation can be secured.
The report states that Mr Unwin's mother is intellectually disabled. She receives a Disability Support Pension.
The report states that for Mr Unwin to reside other than in his mother's home in independent accommodation, he will need to first improve his independent living skills in the community, through an occupational therapy programme provided by a local Community Mental Health Services. Following that, his level of independent living skills would have to be assessed by an occupational therapist before he could be considered for accommodation in an independent facility.
The Department of Corrective Services report concludes by stating that the Department holds significant concerns regarding the accommodation option of Mr Unwin residing in his mother's house. The concerns relate to the vulnerability of the three potential co‑residents that were proposed at the time of the report and their ability to recognise Mr Unwin's deterioration in functioning prior to its manifestation in sexual or general violence. Also, the Department is concerned that it cannot be ascertained how long Mr Unwin will require the transitional accommodation, or whether any such arrangement could be sustainable. The report states that the concerns are augmented by the unconfirmed reports that all supported accommodation providers in Perth have adopted a no dangerous sexual offender policy.
If Mr Unwin is released into the community under a supervision order it is proposed that his conditions include random and regular urine analysis to monitor his illicit drug use, he be subject to a Global Positioning System (GPS) tracking, he be referred to a local Community Mental Health Services for ongoing management of his mental health, and through the PIR programme a Mental Health Case Manager be assigned to Mr Unwin so that mental health services will be available to Mr Unwin 24 hours per day, seven days per week. Also if released on a supervision order Mr Unwin will be collaboratively managed and supervised by members of his Risk Management Group, consisting of Dr Galloghly, police officers from the Sexual Offenders Management Squad, Mr Unwin's Community Corrections Officer and members of the Public Protection Unit. Also representatives of the Richmond Fellowship conducting the PIR programme and the local Community Mental Health Service may at times be required to attend risk management meetings.
(b) Oral evidence
In her oral evidence on 25 June 2014 Ms Dabala stated that the mother of Mr Unwin had originally made arrangements to rent another property on a monthly basis (and hence Dr Tanney's statement that the arrangement was on a month‑to‑month basis) but Mr Unwin's mother has now obtained a fixed lease which Ms Dabala thought was for six months (ts 193). The family of Mr Unwin had indicated that he could stay at the house occupied by the brother as long as Mr Unwin needed to reside there, although the family understood it was meant to be a temporary measure only and that eventually Mr Unwin would be placed in his own accommodation (ts 193 ‑ 194).
Ms Dabala has spoken to Mr Unwin's brother who was uncertain how the dynamics would work of Mr Unwin residing with him. He was uncertain as to what roles they would perform in domestic tasks such as cooking and he was not sure as to what his input would need to be to care for Mr Unwin. The mother of Mr Unwin indicated that she would go to the house for most of the day if Mr Unwin was not occupied (ts 193).
Ms Dabala stated that the funding available within the Department of Corrective Services for providing a mentor was limited. It was also difficult to find a suitably qualified mentor because of the complex needs of Mr Unwin. The Department did find a suitably qualified person to act as a mentor but the fees that person would have charged were beyond what the Department could service based upon current funding (ts 198).
Report and evidence of Ms S Ludwig of Partners in Recovery
(a) Report (undated)
A report of Ms Ludwig tendered into evidence explains that the PIR programme is a federally funded programme funded through to 2016. The programme aims to work with individuals with severe and persistent mental health issues and complex needs. The programme is conducted by the Richmond Fellowship of Western Australia in the area where Mr Unwin poses to reside.
The report sets out the various needs of Mr Unwin and the proposed care plan. There is no mention in the care plan of obtaining employment for Mr Unwin.
The care plan provides for a weekly meeting with Mr Unwin, which could be varied depending on Mr Unwin's needs. The programme also will coordinate appropriate other support services to assist Mr Unwin.
The report stresses that the PIR programme cannot be made mandatory for an individual and it is not the role of a PIR facilitator to manage any individual's risk in the community. The report acknowledges that Mr Unwin benefits from a routine and structure to his day which could be better provided in supervised support accommodation.
(b) Oral evidence
Ms Ludwig in her evidence stated that if Mr Unwin was released into the community then the PIR programme would provide herself and a male social worker to work with Mr Unwin. They saw their role as providing Mr Unwin with links to appropriate services and to attempt to facilitate the engagement with those services. There was no prescription as to the amount of time they would spend with Mr Unwin but she believed that it would probably be twice a week becoming less frequent as time goes on. She stated that their programme is consumer led so that Mr Unwin would be dictating the amount of time they spent with him. To demonstrate what she meant by this, Ms Ludwig stated they might recommend Mr Unwin attend some appointments but if he did not wish to attend them then the matter would not be pursued (ts 185).
In relation to employment, Ms Ludwig said they would engage in an advocacy role in behalf of Mr Unwin. Initially they would attempt to obtain for Mr Unwin a Disability Support Pension and through Centrelink seek to obtain employment by accessing support facilities provided for persons suffering from disabilities to enter the workforce (ts 186).
Report and evidence of Dr S Febbo
(a) Report dated 18 June 2014
As previously mentioned in this decision, Dr Febbo had previously prepared a report dated 14 November 2010 and after a recent review prepared a report dated 18 June 2014. The most recent report of Dr Febbo was prepared after he had conducted a 2 1/2 hour interview with Mr Unwin on 9 June 2014.
As a part of his briefing material Dr Febbo spoke to Ms Dabala. Dr Febbo was informed that the proposal was for Mr Unwin to live with his brother if released under a supervision order. Mr Unwin's brother is employed and leaves home at 7.00 am and returns at 6.00 pm. He then stays home and appears to be 'obsessed' with computer games. Ms Dabala described Mr Unwin's brother is being a loner. In the past Mr Unwin's relationship with his brother had been tense because his brother made attempts for Mr Unwin to abstain from substance abuse.
In his most recent report Dr Febbo expresses the following opinions:
1.Mr Unwin continues to engage in extreme minimisation or denial of sexual violence. Dr Febbo relied upon responses given by Mr Unwin in his interview with Dr Febbo when Mr Unwin stated he had no memory in relation to the offences he committed.
2.There is little change in the risk factors or attitudes that support or condone sexual violence. Dr Febbo observed that Mr Unwin no longer expressed belief that his childhood was important in his offending behaviour and he had demonstrated very limited self‑awareness or understanding in relation to the factors behind the offending. Dr Febbo stated that other than dismissing the offending as being simply related to sniffing glue and boredom, Mr Unwin did not provide any additional information to suggest that there had been an improvement in his self‑awareness.
3.There is no evidence that there has been any improvement in Mr Unwin being able to manage stress. Further that Mr Unwin fails to appreciate that the transition from prison into the community and having contact with family members may create stress.
4.There remains uncertainty as to whether Mr Unwin has a significant psychopathy of a sexual deviant nature.
5.There remains concern about whether Mr Unwin has the ability to obtain employment.
Dr Febbo concluded by stating that in his opinion there is no real evidence that Mr Unwin's level of risk has improved significantly. In some ways he believes it may have deteriorated. For example, Mr Unwin now claims to have no memory in relation to various offences, placing responsibility largely on substance abuse and thus distancing himself from the offences. However Dr Febbo does acknowledge that Mr Unwin's level of frustration with the delay in being released may explain to some degree aspects of the histories provided.
Dr Febbo concluded that he was far from convinced that Mr Unwin's level of risk is currently at a point that it can be managed in the context of a supervision order. In relation to management it was Dr Febbo's opinion that Mr Unwin required additional and assertive treatment to address his sexual offending propensities. Dr Febbo expressed negative views about the counselling sessions provided to Mr Unwin by Dr Galloghly. He concluded that Dr Galloghly had spent considerable time in 'case management' or possibly an 'advocacy role', addressing such issues as accommodation, social support and employment. In the opinion of Dr Febbo, Mr Unwin had in the last 12 months been provided with limited individual psychotherapeutic treatment that he required to address his offending propensities and that consideration ought to be given to replacing Dr Galloghly.
(b) Oral evidence
Dr Febbo's evidence was that at the present time, on the basis of his interview with Mr Unwin, he had doubt whether the risk of reoffending could be adequately managed as a part of a supervision order. He accepted that there had been an improvement in the level of risk in that accommodation was available, there was a plan in place for possible employment and there was a plan in place in terms of providing support. However he believed on information provided by Mr Unwin that Mr Unwin's understanding of the risk factors had deteriorated (ts 175).
Dr Febbo expressed the opinion that Mr Unwin did not have a realistic appreciation of the difficulties that he might face in the community in relation to obtaining employment, budgeting, interfamily relationships and personal relationships (ts 177).
Dr Febbo recommended that before release Mr Unwin should undergo further individual psychotherapy or individual counselling revisiting and addressing issues such as the factors behind the offending, issues to do with avoidance, handling stress, and background issues in terms of Mr Unwin's own abuse as a child (ts 178).
Dr Febbo stated that he thought that Mr Unwin may have been ambivalent about being released because he got the impression when interviewing Mr Unwin that he was deliberately providing negative answers. He accepted that there may be an element of frustration, including the frustration by the third annual review being adjourned (ts 182).
Conclusion
I conclude that Mr Unwin has made progress since the last annual review before Hall J, particularly in the area of identifying risk factors, being willing to seek assistance and being willing to comply with conditions. I prefer the evidence of Dr Tanney and Mr Summerton to the evidence of Dr Febbo as to the extent of the progress. In my opinion, the conclusions of Dr Febbo failed to give adequate weight to the circumstances of Mr Unwin at the time of Dr Febbo's interview on 9 June 2014. In my opinion, the responses of Mr Unwin that he could not remember the details of his offending and his description of the factors which led to his offending are substantially coloured by the frustration that I expect he experienced at the time. The original hearing date of the third annual review was 9 May 2014 but the hearing was adjourned as I ordered a further psychiatric report. I believe that in such circumstances it is to be expected that Mr Unwin would have been frustrated by the delay and being further questioned about the details of his offending, which he had already been interviewed about on numerous occasions, both for sentencing purposes and also for assessments and counselling under the Act.
Also I believe Dr Febbo fell into error by placing too much weight upon the responses of Mr Unwin that he linked his offending behaviour to sniffing glue and boredom and failed to provide any additional information as to the cause of the offending. Dr Febbo concluded that this indicated a deterioration in Mr Unwin's awareness of the factors behind his offending compared with when he had completed the last sex offender treatment programme. However, at the very least, Mr Unwin's response recognised the significance of substance abuse and his state of mind as precursors to offending which is broadly consistent with the views expressed by both Dr Tanney and Dr Febbo in earlier reports. I prefer the evidence of the opinion of Dr Galloghly that Mr Unwin did have a basic insight into his offending behaviour, although there were limitations in the extent of the insight because of Mr Unwin's relatively low level of intellectual sophistication and personality structures. Dr Galloghly had the benefit of meeting with Mr Unwin on a regular basis and, in my opinion, his opinions are likely to be better informed as they are likely to be more appreciative of the highs and lows of Mr Unwin's mood whilst held in custody. Also because of Mr Unwin's low level of intellectual functioning, I believe one needs to take into account his likely inability to articulate detailed responses.
I also rejected Dr Febbo's evidence contained in his report expressing negative views as to the progress and the counselling provided by Dr Galloghly. Both Dr Tanney and Dr Febbo had previously identified that past offending has been linked to the issues of homelessness, coping skills with stress and drug use. Considering that Mr Unwin has already completed the Intensive Sex Offenders Treatment Program, and the conclusion of Hall J that Mr Unwin could be released under a supervision order (subject to supported and supervised accommodation being provided), it was appropriate for Dr Galloghly to address Mr Unwin's coping skills in the community. I accept Dr Tanney evidence that this form of counselling was of 'exceptional value'.
However, I accept that Mr Unwin's low level intellectual functioning and his low‑level coping skills provide the biggest challenge to his release into the community. That is why Hall J in the second annual review considered that Mr Unwin required supported and supervised accommodation. After a period of nearly two years no such facility has been identified, despite considerable efforts by the Department of Corrective Services and the Richmond Fellowship of Western Australia to find such a facility. As I have already stated earlier in this decision, the most recent report of Ms J Dabala indicates that all supported accommodation providers in Perth have adopted a no dangerous sexual offenders policy. The absence of such a facility has been commented upon by a McKechnie J in a number of decisions, the most recent decision being Director of Public Prosecutions (WA) v Alvisse [No 7] [2014] WASC 227 [29] ‑ [32].
With no prospect of Mr Unwin obtaining supported and supervised accommodation, if this remains a prerequisite to his release, then the prospects are that Mr Unwin will never be released. I believe this is an unacceptable outcome. I believe that there is some prospect for Mr Unwin receiving the equivalent of a supported and supervised accommodation facility whilst residing in private accommodation providing adequate resources are directed to providing support and supervision. In my opinion, consistent with Dr Tanney's recommendation, what will be required is a mentor providing daily contact with Mr Unwin for a period of approximately two years. This is currently unavailable. The level of supervision and support will need to be of a very high level according to the evidence of Dr Tanney, including the provision of this mentor service.
Of course, it should not be forgotten that in addition to mentoring services that might be provided, there will be additional support to Mr Unwin by the members of the Risk Management Group described in Ms Dabala's report, the Richmond Fellowship of Western Australia through the PIR programme and the local Mental Health Services.
To a large extent the level of support and supervision that will be required will be dictated by whether Mr Unwin obtains employment. If Mr Unwin is not employed then he is likely to be left alone for long periods of the day when his brother is at work. This is likely to lead to boredom and stress which has been identified, even by Mr Unwin, as a precursor to offending behaviour. I believe this is why Mr Summerton expressed the view that employment would be central to Mr Unwin's effective reintegration into the community. However, the chances of Mr Unwin obtaining employment I believe are likely to be problematic. He has never previously had employment outside of prison and, in light of his low level of intellectual functioning, there are likely to be issues in the workplace. However, in the short term it appears that Mr Unwin can obtain work on a volunteer basis with a local authority that is aware of Mr Unwin's offending history. If this voluntary work materialises then the risk of boredom is substantially reduced at least in the short term. How long this volunteering arrangement will persist is uncertain nor the number of hours per day. Because of the uncertainty, I believe that it is essential that a mentor programme be designed on the basis that Mr Unwin is unlikely to obtain employment or obtain a position of voluntary work. However, if an arrangement for employment or voluntary work could be secured, this may reduce the number of hours and the expense of a mentor.
Given the intellectual disabilities of Mr Unwin's mother and the past nature of her relationship with Mr Unwin, as described by Dr Tanney in his report of 23 April 2014, I am not confident that the offer of Mr Unwin's mother to attend daily to the house where Mr Unwin is to reside will provide any significant assistance. In fact due to past conflict it may create stresses which are counter‑productive.
The submission presented by counsel for Mr Unwin was that Mr Unwin has done everything in his capacity to prepare himself for release. However, that is not the test under the legislation. The paramount consideration is whether a supervision order can adequately protect the community from the risk of Mr Unwin reoffending.
I reach the conclusion that without the funding and provision of a mentor as recommended by Dr Tanney, the proposed accommodation of Mr Unwin residing with his brother will not provide sufficient support and supervision to Mr Unwin to enable his release into the community on terms that adequately protect the community. In any event, the proposal of accommodation with Mr Unwin's brother is only put forward as a temporary arrangement and at this stage there does not appear to be any real prospect of Mr Unwin being able to live in independent accommodation which will provide him with the support and supervision he needs.
For the above reasons I expressly decline to rescind the continuing detention order. Assuming that independent supported and supervised accommodation will not be available, I recommend the Department, before the next annual review, seek to obtain the necessary funding to employ an appropriate person to work as a mentor for Mr Unwin so as to pave the way for his release. I also recommend that consultation be made with Dr Tanney as to the terms of the mentoring that would be required and also what other conditions might reasonably be set. It would also be desirable that the Department maintain a dialogue with Mr Unwin's family to ensure the current offer of accommodation remains available and it be explored as to whether this arrangement could be secured for a set period. Finally, I recommend that the individual counselling provided with Dr Galloghly be maintained. It is hoped that with this counselling Mr Unwin will not despair but will continue to strive to work on his coping skills so as to improve his chances of obtaining release.
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