Director of Public Prosecutions (WA) v Unwin [No 5]
[2015] WASC 385
•15 OCTOBER 2015
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- UNWIN [No 5] [2015] WASC 385
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 385 | |
| 15/10/2015 | |||
| Case No: | MCS:48/2010 | 5 AUGUST 2015 | |
| Coram: | JENKINS J | 5/08/15 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Expressly decline to rescind continuing detention order | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) MARK ROBERT UNWIN |
Catchwords: | Dangerous sexual offender Annual review Respondent remains a serious danger to the community The community would not be adequately protected if the respondent was released under a supervision order |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 17, s 33, s 30 |
Case References: | Director of Public Prosecutions (WA) v Unwin [2011] WASC 11 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
MARK ROBERT UNWIN
Respondent
Catchwords:
Dangerous sexual offender - Annual review - Respondent remains a serious danger to the community - The community would not be adequately protected if the respondent was released under a supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 17, s 33, s 30
Result:
Expressly decline to rescind continuing detention order
Category: B
Representation:
Counsel:
Applicant : Mr S W O'Sullivan
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Unwin [2011] WASC 11
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
1 JENKINS J: The respondent, Mark Robert Unwin, is the subject of a continuing detention order (CDO) made by Blaxell J on 13 January 2011 pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act) s 17: Director of Public Prosecutions (WA) v Unwin [2011] WASC 11.
2 As required by the Act, annual reviews have been conducted since Blaxell J made the CDO. On 5 August 2015, I heard the fourth annual review of the CDO (the 2015 review). I ordered that I expressly declined to revoke Mr Unwin's CDO. These are my reasons for making that order. These reasons should be read together with all earlier reasons for the decisions made under the Act which relate to Mr Unwin.
Evidence at the 2015 review
3 Dr Adam Brett, consultant psychiatrist, was appointed by the court to prepare a psychiatric report about Mr Unwin for the 2015 review. On 3 and 29 June 2015 Dr Brett conducted clinical interviews with Mr Unwin at Casuarina Prison. Dr Brett also reviewed the relevant written material about Mr Unwin. Dr Brett had not previously assessed Mr Unwin for the purposes of the Act.
4 Dr Brett noted that Mr Unwin was cooperative and appropriate throughout the interview. His speech was of normal rate and flow. Mr Unwin described his mood as good. Mr Unwin was a poor historian, which appeared to be consistent with his documented cognitive problems.
5 Dr Brett assessed that Mr Unwin's cognition was grossly intact, although clinically he appeared to be below average IQ. He had limited insight into his mental health, his offending or his treatment needs.
6 Mr Unwin described to Dr Brett some perceptual disturbances, which to Dr Brett did not appear to be delusional or to have a psychotic quality. Dr Brett said that they appeared to be his inner thoughts.
7 At the second interview, Dr Brett confronted Mr Unwin with some of the inconsistencies between what he had said during the first interview and Mr Unwin's documented history. Mr Unwin was able to confirm some of the collateral information but gave a different history to that which he had given to Dr Brett previously. Overall, Mr Unwin's presentation had not changed significantly from the first interview.
8 Dr Brett conducted a risk assessment which involved a review of all of the relevant written material, and the use of risk assessment tools such as HCR-20, the STATIC-99-R and the Risk for Sexual Violence Protocol.
9 Dr Brett concluded that Mr Unwin remains at a high risk of sexual reoffending. Dr Brett observed that Mr Unwin's risk is unlikely to reduce significantly from his current level. He does not believe that any psychological or medical interventions will significantly reduce Mr Unwin's risk of sexual reoffending.
10 Dr Brett reported that Mr Unwin has significant mental health issues that have proven elusive to diagnose. He said that Mr Unwin undoubtedly has an impaired personality and impaired cognition. Although the evidence for cognitive impairment commences from a young age, Dr Brett is of the view that Mr Unwin's cognition has deteriorated as he has aged due to his solvent abuse. Dr Brett is of the view that this abuse has impaired his frontal lobe and that it has impacted on his executive functioning. Dr Brett said that he believed that Mr Unwin's impaired frontal lobe prevented him from controlling his impulses. Dr Brett does not believe that Mr Unwin has an underlying psychotic disorder or other major mental illness.
11 Dr Brett observed that Mr Unwin has spent the majority of his adult life in prison. He has never before had a comprehensive management package in the community. Mr Unwin's ability to transition safely into the community, even with increased support, remains to be tested.
12 Dr Brett's opinion is that in order for Mr Unwin to have the best chance of living in the community, offence free, he needs significant support, including supported accommodation, a structured day, meaningful activities (to him), ongoing psychological treatment, monitoring and basic support. Dr Brett said that Mr Unwin would benefit from a mentor who would provide social skills training, monitoring and modelling. Mr Unwin's medication could be provided through mental health services or a local general practitioner. He should not be allowed to doctor shop. Dr Brett is of the opinion that Mr Unwin should have access to the People with Exceptionally Complex Needs (PECN) programme. Dr Brett recommended that another referral be made to that programme.
13 Dr Brett noted that Mr Unwin has a significant history of substance abuse with solvents which is associated with his sexual offending. Consequently, Mr Unwin needs to be abstinent from illicit drugs and alcohol, including solvents and synthetic drugs. He said that if Mr Unwin used solvents in the community, his risk of sexual reoffending would increase significantly. Dr Brett acknowledged that the risk was difficult to manage. This is because solvents are easy to access but they cannot be detected by drug urinalysis.
14 Although Dr Brett does not believe that Mr Unwin has a major mental illness, he is of the opinion that anti-psychotic medication may play a part in reducing Mr Unwin's stress and impulsivity. This should be monitored by a psychiatrist with expertise in the relevant area.
15 Dr Brett does not believe that anti-libidinal medication should be dismissed as a treatment option. Dr Brett said that the history he received from Mr Unwin was consistent with him having an elevated sexual drive. He said that, ideally, a psychiatrist with experience in the area would make a decision as to whether anti-libidinal medication was appropriate.
16 Practically, it is very difficult for this to occur in the prison setting. I am aware from other cases that the prison medical service is against the use of anti-libidinal medication in prison and will not facilitate its use in the prison setting, even if a prisoner wishes to commence or trial such treatment.
17 In respect of Mr Unwin's cognitive impairment, Dr Brett believes that formal neuropsychological testing focusing on Mr Unwin's frontal lobe function may help his management. He said that an accurate measurement of his IQ may enable him to fulfil the criteria for access to services through the Disability Services Commission (DSC).
18 In evidence, Dr Brett elaborated on the sort of supported accommodation which Mr Unwin would need in the community. He said that he needed stable, long-term and supported accommodation. The staff at the accommodation would need to be able to monitor Mr Unwin's mental health, mentor him and ensure that he had activities to occupy him during the day. Dr Brett said that accommodation which was staffed 24-hours-a-day would be ideal, but there was alternative accommodation which would be suitable.
19 In Dr Brett's opinion, private accommodation could be suitable if Mr Unwin had appropriate support from mentors who visited him daily and assisted him with day-to-day activities such as taking him to appointments and cooking. Such mentors would also give Mr Unwin support, model appropriate behaviour and provide feedback on his mental health. They would also be able to report if there was any evidence of substance abuse. The mentors would require some training so as to be able to report on Mr Unwin's mental health. In this respect, support from family members would not be sufficient.
20 Dr Brett acknowledged that any placement of Mr Unwin in the community is going to involve significant risk. Any compromise in a management plan would increase that risk. For example, Dr Brett said that if a mentor could spend only an hour a day with Mr Unwin, his risk of reoffending would be greater than if the mentor could spend 10 hours a day with him.
21 In relation to keeping Mr Unwin occupied during the day, Dr Brett said that it would be beneficial if Mr Unwin could be employed in sheltered employment. If that was not possible, his day could be structured around recreational activities, hobbies, exercise and other like activities.
22 Dr Brett is of the opinion that Mr Unwin meets the criteria to access both PECN and DSC programmes. As both those organisations have not currently accepted Mr Unwin into their programmes, Dr Brett is of the opinion that they need to be asked to reassess Mr Unwin.
23 In relation to Mr Unwin's risk of reoffending, Dr Brett agreed that Mr Unwin still appears to have a fixation with women's breasts. Consequently, there is still a concern about him residing with his mother and aunt. His aunt claims to have been a victim of Mr Unwin's offending. There is historical material which reports that he had been abused by his mother as a child. It has been a long time since Mr Unwin lived with his mother and Dr Brett agreed that living with his mother might increase the likelihood of him offending.
24 Dr Brett said that in his view it would be unsuitable for Mr Unwin to live with his mother and his aunt at any point in time regardless of any arrangements that were put in place for mentoring and other support. Further, he had concerns about whether Mr Unwin is capable of living independently. He needs so much support that Dr Brett characterises appropriate accommodation, even if it was in a private home, as supported accommodation.
25 In cross-examination, Dr Brett expressed concern that although Mr Unwin meets the criteria for admission into the PECN programme he has not been accepted into it. Dr Brett said that if Mr Unwin and other dangerous sexual offenders are not being accepted by the PECN committee despite them meeting the relevant criteria, PECN has a role in explaining where such offenders can access the same services.
26 Dr Brett noted that Mr Unwin had been treated by a large number of psychiatrists over many years. He thought that Mr Unwin would benefit from having one treating psychiatrist. It is important for Mr Unwin to trust his doctor and time is required to develop an appropriate professional and trusting relationship with Mr Unwin. Consequently, Dr Brett proposed that the Department of Corrective Services (DCS) fund treatment by a psychiatrist who would have an ongoing relationship with Mr Unwin. This would be of particular assistance if and when Mr Unwin is released into the community as Dr Brett does not believe that Mr Unwin fulfils the criteria for regular follow-up with the Department of Health's Community Mental Health Services because he does not have a major mental illness.
27 Mr Unwin told Dr Brett that there are two issues which are currently causing him distress. The first is his uncertain future under the Act and the second is that he has been prevented from seeing a man with whom he had formed a relationship in prison. That man is also a sex offender. On his partner's release from prison, the Western Australian Police Sex Offender Management Squad (SOMS) prohibited that man from contacting Mr Unwin. Dr Brett acknowledged that a committed relationship, homosexual or not, would decrease Mr Unwin's risk of reoffending because it would provide him with stability.
28 Later, Dr Brett testified that even though the forced breakup of Mr Unwin's relationship with another sex offender might have increased his agitation, from a risk perspective the continuation of such a relationship would have caused Dr Brett concern depending on the nature of the partner's sex offending and the nature of their relationship. Dr Brett said that the information Mr Unwin gave him conflicted with what he had received from Ms Rachael Williams, Mr Unwin's treating psychologist, and so it was difficult for him to have a clear picture of the nature of his relationship with the former prisoner.
29 In prison, Mr Unwin is employed to push the meal trolley. Dr Brett acknowledged that such employment is not of great assistance in preparing him for employment in the community. Mr Unwin has also spoken negatively to Dr Brett about his transfer from Karnet Prison Farm, a low security prison, to Casuarina Prison, a high security prison. Dr Brett also noted that Mr Unwin became distressed at the time of his annual reviews as he built himself up for each hearing. When the decision was made in 2014 not to release him, his mental health declined and his responsiveness to counselling deteriorated. Further, he had become more aroused which resulted in him trying to gain substances and medication to reduce his agitation. Such agitation also increased his risk of self-harm. Dr Brett is of the view that the only positive result of Mr Unwin's continued detention in prison is that he is being contained and prevented from committing offences in the community. Further incarceration is likely to lead to a deterioration in his level of functioning and, in particular, increased agitation.
30 In cross-examination, Dr Brett said that accommodation in a psychiatric hostel is not the ideal placement for Mr Unwin because of Mr Unwin's unique problems and his lack of a major mental illness. He elaborated on that opinion by saying that he did not think that Mr Unwin would fit in well with the other clients of a psychiatric hostel who have chronic mental illness. Further, the staff would be more attuned to supervising people with chronic mental illness and so he did not know how well they would be able to supervise Mr Unwin. Another problem is that in a psychiatric hostel there is no ability to select the characteristics of other residents or the staff. Consequently, there is a risk that they may have characteristics which increase Mr Unwin's risk of offending against them or others. As a result of all these issues with placement in a psychiatric hostel, Dr Brett considers private accommodation with significant support to be the best option for Mr Unwin if he is released into the community.
31 Dr Brett said that despite Mr Unwin not having a major mental illness, he believed that some psychiatric hostels would still accept him because of his personality structure, his cognitive impairment and his mental health issues. There are no long-term hostels run for people who are cognitively impaired. Dr Brett said that DSC's model was to provide individual homes with support. Dr Brett said that, in any event, his understanding is that most people with cognitive impairments and behavioural problems end up in psychiatric hostels.
32 Dr Brett was asked about particular psychiatric hostels. He said that he was unfamiliar with Honey Brook Lodge, BP Luxury Hostel and the Burswood Hostel. However, he said that Romily House had a track record of managing people with mental health problems and offending histories. He said that he would be more comfortable with Mr Unwin being placed at a hostel with a history of managing such people. Unfortunately, Romily House have rejected Mr Unwin's referral.
33 Dr Brett said that prior to Mr Unwin's release into the community, Mr Unwin should complete neuropsychological testing and establish a relationship with a psychiatrist who could then assist the psychologist and DCS in developing plans for Mr Unwin. Dr Brett is of the view that Mr Unwin would also benefit from an independent living assessment to see to what extent he is able to look after himself in the community and, after that assessment is made, to give him some training in basic living skills. Such an assessment would assist in determining how much day-to-day help he would require to look after himself.
34 There also needs to be training of the organisation or persons who are to support and supervise Mr Unwin in the community. This is because Mr Unwin has very particular problems and needs. Any person who is going to work with Mr Unwin would ideally develop a relationship with him before he is released from prison.
35 Dr Brett said that if appropriate accommodation and support could be obtained for Mr Unwin before the next annual review and there had been no obvious change in his mental health status, there would not be much benefit in obtaining another psychiatric opinion before a determination was made as to whether he is released.
36 Dr Brett said that any supervision order, if one were made, would need to be of at least five years' duration.
37 Dr Brett testified that if Mr Unwin remained in custody for the next 12 months, his psychological counselling should continue. He said that Mr Unwin required ongoing psychological care, particularly if he remained in custody as he is likely to become more distressed. Ongoing contact with a psychologist will help him to manage his distress.
38 Mr David Summerton, psychologist, Dangerous Sex Offender Psychology Team (DSOPT), DCS, prepared a report dated 29 June 2015 for the review. Mr Summerton was not required for cross-examination.
39 Dr Galloghly was Mr Unwin's treating psychologist from early 2012 until August 2014. Mr Summerton had ongoing consultations with Dr Galloghly and Ms Williams for the purpose of preparing his report. He also interviewed Mr Unwin and perused relevant documents which included counselling case notes and DCS records.
40 Dr Galloghly concluded that over the year leading up to the 2014 annual review Mr Unwin had increased energy and motivation. This led to him taking a more active role in counselling and the preparation of plans for his release into the community, compared with his previous lethargic and passive approach. There was a gradual and sustained reduction in psychotic symptoms. Dr Galloghly speculated to Mr Summerton that Mr Unwin is inclined to contrive such symptoms in order to achieve desired outcomes such as movement within or between prisons.
41 Despite his increased responsiveness to counselling, Dr Galloghly reported that Mr Unwin's insight into his offending remained basic and there was no discernible increase of insight into the reasons for his offending.
42 Dr Galloghly reported to Mr Summerton that the latter few months of his therapeutic contact with Mr Unwin were focussed on helping Mr Unwin deal with the uncertainty of whether or not he would be released at the 2014 annual review, while reinforcing coping strategies in anticipation of this possibility. Dr Galloghly noted that Mr Unwin's mood deteriorated to some degree during these months when the review was delayed.
43 After the decision was made in 2014 not to rescind the CDO, Dr Galloghly spent time explaining the decision to Mr Unwin. Mr Unwin had self-reported that he used cannabis on one occasion after he was told that the CDO would not be rescinded. The cannabis was later determined to be synthetic cannabis (Kronic). Dr Galloghly also noted a deterioration in Mr Unwin's presentation at their final session; notably a slurring of speech and lethargy. Mr Unwin nevertheless identified that he was motivated to continue with release planning and goal setting.
44 In a counselling handover summary, Dr Galloghly said that Mr Unwin's new psychologist would need to be cognisant of his tendency to lie to get his needs met and his history of malingering with respect to psychiatric symptoms.
45 Mr Unwin commenced individual counselling with Ms Williams on 22 August 2014. By 29 June 2015, Mr Unwin had attended 32 sessions with Ms Williams, two of which were joint sessions with Dr Galloghly.
46 Mr Unwin was unsettled and experienced deterioration in his coping following the termination of his well-established therapeutic relationship with Dr Galloghly. Mr Unwin also resumed taking a depot anti-psychotic medication in July 2014. At the time he recommenced counselling with Ms Williams he was experiencing severe side-effects. These side-effects significantly impacted on his capacity to engage in counselling.
47 Mr Unwin, as I will go on to recount, ceased taking the depot medication in January 2015. Ms Williams reported that the cessation of that medication and a return to an oral dose of Seroquel, another anti-psychotic medication, led to more productive counselling.
48 Next, there were problems with Mr Unwin settling in to working with a female psychologist. This issue was cumulative on an issue involving a female prison officer which had occurred at the Karnet Prison Farm where Mr Unwin had been incarcerated in late 2014. I describe the incident later in these reasons.
49 Mr Unwin acknowledged to Ms Williams that he continued to have obsessional thoughts about women's breasts including looking at the breasts of female DCS staff and Ms Williams' breasts. It became such an issue, despite open discussion of it by Ms Williams with Mr Unwin, that Ms Williams invited Dr Galloghly to a number of joint sessions to address the issue and to ascertain whether it was appropriate for Mr Unwin to continue intervention with a female psychologist. Mr Unwin described obsessional thoughts about Ms Williams but insisted that he had the capacity to control his behaviour. It was agreed that Ms Williams would continue as Mr Unwin's treating psychologist.
50 Ms Williams reported to Mr Summerton that she had come to the hypothesis that sexual arousal was not necessarily the central or only driver of Mr Unwin's sexual deviance. She speculated that violence might be a significant factor. She noted that Mr Unwin largely denied being sexually aroused when he offended or thought about women's breasts. She also noted that despite expressing curiosity regarding sexual contact with women, he indicated that the minimal contact he had had with women was unsatisfying and lacking in sexual arousal. Ms Williams contrasted that with his enduring homosexual interest and activity.
51 Ms Williams spent a greater part of 2015 addressing substance abuse as it relates to Mr Unwin's offending with the aim of developing an adequate relapse prevention plan and general coping skills. Ms Williams reiterated that order and lack of structure have been central to Mr Unwin's substance use, particularly solvent use. Mr Unwin is able to identify a range of appropriate activities to overcome the boredom which leads to Mr Unwin's substance use. However, he also identifies the use of synthetic cannabis as a substitute for solvent use which, in his view, will not lead to an increasing obsession with women's breasts. Ms Williams addressed the inappropriateness of synthetic cannabis use as a coping response. She reported that Mr Unwin was largely resistant to her input and adopted a petulant and childlike stance, insisting that it was his sole option as a means to overcoming stress. He said that he would alternatively obtain prescription drugs, such as Valium, or otherwise conceal his synthetic cannabis use from anyone responsible for his supervision in the community. Mr Unwin ultimately relented from his fixed position regarding synthetic cannabis use and Ms Williams is of the view that overall he remains orientated to help-seeking behaviour.
52 Ms Williams also addressed victim issues and empathy with Mr Unwin. She reported that he continues to minimise his offending, although he appears to demonstrate genuine concern about the negative impact his behaviour may have had on Ms Williams.
53 Ms Williams also worked with Mr Unwin on social skills with reference to social cues and personal boundaries. Concentration on the latter issue was prompted by the female prison officer at Karnet Prison Farm complaining about Mr Unwin's demeanour and physical proximity to her. Ms Williams reported that ongoing attention to social skills and presentation will be necessary if Mr Unwin is released into the community.
54 Ms Williams arranged for assessment of Mr Unwin's current intellectual functioning. His overall cognitive functioning was confirmed to be in the borderline range and Ms Williams reported that he was 'most suited to environments and tasks that are routine, structured and highly familiar, and that reduce the impact of emotional stress and time pressures'. He was reported to be in the extremely low range with respect to verbal comprehension while working memory was identified as an area of relative strength.
55 In relation to how he would cope if released into the community, Mr Unwin told Mr Summerton that he knew that boredom and solvent use are the factors he needs to address. He detailed a number of activities that will assist him to manage boredom. He is of the view that a substantial portion of his free time will be taken up by various commitments as a result of the conditions of a supervision order. The types of activities he identifies include seeking employment, shopping, cycling, contact with family and computer gaming. He said that he will manage stress by seeking to occupy himself, 'thinking it through', and by contacting support persons. He said that he will not be inclined to abuse drugs or substances because of the help available to him and he knows that he will be required to undergo urinalysis several times a week. He spoke of global positioning system (GPS) monitoring as a positive factor. He expressed a view that he will easily adhere to a curfew and that GPS equipment will prevent him from being accused of something that he has not done.
56 Mr Summerton reported that Mr Unwin's progress since the 2014 annual review has not followed a smooth trajectory. The drawn out nature of the 2014 annual review had an unsettling effect on him and this was compounded by the termination of his established working relationship with Dr Galloghly. Mr Summerton said that there is a reasonable indication that Mr Unwin had contrived psychotic symptoms and intrusive thoughts about women in order to obtain anti-psychotic medication and to avoid the immediate stress of his situation. The depot medication which he then received negatively affected his ability to participate in counselling and his attitude and motivation. Mr Summerton said that this history illustrated that Mr Unwin has a maladaptive response to a challenging situation and shows his ability to get his needs met in his own idiosyncratic manner, which may involve manipulation of others.
57 Mr Summerton said that whilst there appeared to have been some benefits gained in the last 12 months, overall Mr Unwin had essentially only been brought back to a level of preparedness for release commensurate to his situation prior to the 2014 annual review. The gains that had been achieved prior to that had been substantially set back by the effects of the decision not to release him.
58 Mr Summerton noted that methods Mr Unwin uses to achieve his goals sometimes lead to results which either Mr Unwin does not desire in the longer term or which are not overall conducive to his management. For example, when Mr Unwin made disclosures at Karnet Prison Farm, apparently for the purpose of obtaining medication, the disclosures led to a perception that he could not be managed at that facility and he was transferred to Casuarina Prison. Another example was his disclosure that he would not inform Ms Williams if he used synthetic cannabis so that he could use it without detection. The disclosure that he would withhold information that would be important for those involved in his management to know, was likely to adversely affect his chances of release. Mr Summerton said that Mr Unwin's manipulative behaviour is often clumsy and immediately detectible but Mr Summerton said that professionals working with him need to be aware of his capacity to be manipulative. Mr Summerton said that despite such observations, it is apparent that overall Mr Unwin has maintained his willingness to seek help over the course of separate working relationships with Dr Galloghly and Ms Williams.
59 Mr Summerton said that Mr Unwin's understanding of his offending behaviour remained rudimentary, but consistent with what might be expected given Mr Unwin's intellectual limitations and personality structure.
60 Mr Summerton said that if Mr Unwin remains on a CDO, he will continue to see a psychologist. Whilst he is unlikely to make any further gains of consequence whilst he is in custody, the psychologist will attempt to maintain treatment gains and to keep Mr Unwin focused on release plans. She will also seek to prevent regression, like that which occurred after the 2014 annual review.
61 Mr Summerton said that if Mr Unwin is placed on a community supervision order, he will attend weekly sessions with Ms Williams and he will also be managed collaboratively by the risk management group set up to manage dangerous sexual offenders on supervision orders. This approach involves regular information sharing and liaison between various agencies and treatment providers involved in the support and management of individuals in the community. The initial focus of intervention will be to assist Mr Unwin to adjust to community living, while managing identified risk issues.
62 Ms Jane Henshall, Senior Community Corrections Officer, Public Protection Unit, DCS, prepared a Community Supervision Assessment and gave evidence at the 2015 review.
63 Ms Henshall reported that at the time of the 2014 annual review, Mr Unwin was employed in the kitchen as a cleaner at Karnet Prison Farm. After the annual review, as I have mentioned already, Mr Unwin's behaviour deteriorated and he reported psychiatric symptoms. As a consequence he was placed on depot anti-psychotic medication. On 8 September 2014, Mr Unwin approached a female education officer at Karnet Prison Farm. He asked her for a box of pencils but she was disturbed by the way he tried to get close to her, as she backed off. During this incident, Mr Unwin was described to have food around his face and to seem 'quite strange'. It was noted that this was the third time Mr Unwin had approached the same officer at lunchtime in the same area.
64 On 2 October 2014, due to Mr Unwin's demeanour and his alleged threats to escape, he was transferred to Casuarina Prison. He has remained at Casuarina Prison. Although Mr Unwin was in a self-care unit at Karnet Prison Farm it was the opinion of staff there that he was not coping with the independence. At Casuarina Prison he no longer has to cook for himself. No issues regarding Mr Unwin's behaviour had been identified since November 2014.
65 Since the 2014 annual review, DCS have attempted to secure accommodation at a psychiatric hostel for Mr Unwin. The attempts which Ms Henshall noted in her report were all made in June and July 2015. The hostels which were approached are either not willing, or they are willing but not able, to provide accommodation to Mr Unwin.
66 In February 2014, Mr Unwin was referred to the Dangerous Sexual Offender Supported Accommodation Programme, with his assigned service provider being Outcare Incorporated (Outcare). Housing through the supported accommodation programme was not available at the time of the 2015 review hearing.
67 On 23 June 2015, Ms Henshall contacted the Public Trustee and confirmed that the Public Trustee holds approximately $100,000 in trust for Mr Unwin. However, Ms Henshall was advised that this money could not be used to fund ongoing accommodation costs. The Public Trustee informed Ms Henshall that the trust is able to pay a bond and the first two weeks' rent for a private rental home, however Mr Unwin will have to fund the ongoing rent from his Centrelink payments. This is because the trust covers major expenses such as health or furnishings for accommodation, but not living expenses. When Mr Unwin was advised of this information, he decided not to pursue a private rental home as he does not feel that his Centrelink benefits will cover his rent and living costs.
68 The only other accommodation option which was available at the time Ms Henshall wrote her report was with Mr Unwin's family at a private address in Armadale. Residing at the property were Mr Unwin's mother, his aunt and his younger brother. The information presented by Mr Unwin's family to Ms Henshall corresponded with that provided in the Community Supervision Assessment completed for the 2014 annual review. The only change in circumstances was that Mr Unwin's mother and aunt advised that they were not prepared to leave the property and live elsewhere as they had offered to do in the previous year.
69 Ms Henshall said that significant concerns remain in relation to the personal safety of Mr Unwin's mother and aunt should Mr Unwin reside with them. Ms Henshall said that they continue to appear 'vulnerable' and that they may lack the ability to detect and recognise deterioration in Mr Unwin's functioning prior to its manifestation through sexual or general violence. Ms Henshall also noted that the alleged assault perpetrated by Mr Unwin against his aunt brought into question the appropriateness of this accommodation. Ms Henshall reported that Mr Unwin's brother who also lives at the home will have minimal contact with Mr Unwin and that such contact will be confined to evenings due to his hours of employment.
70 I also asked Ms Henshall to elaborate on what she meant when she reported that Mr Unwin's mother and aunt continued to appear 'vulnerable'. Ms Henshall said that both his mother and aunt had said that when Mr Unwin was using solvents and acting out, they were unable to control his behaviour.
71 On 16 June 2015, Ms Henshall made contact with Ruah Community Services (Ruah) regarding the possibility of engaging a mentor for Mr Unwin. Ruah accepted a referral for Mr Unwin. Ruah is able to offer case management for Mr Unwin if he were released into the Ruah Armadale catchment area. Ruah advised that its team is available to engage with Mr Unwin upon release, however there will be a number of weeks in which assessments will be done and plans will be developed, possibly leaving some unstructured time in Mr Unwin's daily activities. Ruah advised that it is preferable for its staff to engage with Mr Unwin in a custodial setting initially to enable the development of rapport, to complete assessments and to develop a plan of activities which will be available immediately upon Mr Unwin's release. Ruah could not be specific in regard to the time they will be available to allocate to working with Mr Unwin as the time is dependent on the needs of all their clients.
72 I note that the mentoring available through Ruah does not appear to meet the intensive nature of the mentoring and support which Dr Brett regards as necessary in order to protect the community if Mr Unwin was released on a community supervision order.
73 On 25 June 2015, Ms Henshall spoke to Ms Jody Waite, the Justice Coordinator with DSC. Ms Waite confirmed that Mr Unwin is ineligible for DSC support because he does not meet the criteria under an intellectual disability. However, the discussion revealed that Mr Unwin has never had a full cognitive assessment. Ms Waite informed Ms Henshall that Mr Unwin may be eligible for future DSC support if a neuropsychological report concluded that he had a cognitive disability as a result of acquired brain injury due to solvent use. It was decided, in conjunction with Dr Brett and Ms Williams, that it would be appropriate to obtain such a neuropsychological report. On 22 July 2015, a referral was made by DCS for a neuropsychological assessment to be conducted. At the time of the 2015 review hearing, the assessment had not been completed.
74 In April 2013 Mr Unwin was referred to the PECN programme. PECN confirmed that Mr Unwin does not meet the requirements to be involved with PECN. However, a new referral can be made depending upon the outcome of the neuropsychological assessment. It seems that even if Mr Unwin meets the criteria for involvement with PECN, the referral will still be assessed by the PECN committee and there is no guarantee that he would be accepted.
75 Ms Henshall noted that on 25 June 2015 Mr Unwin made the decision to cease his oral anti-psychotic medication. He then recommenced the medication on the advice of a psychiatric nurse, however he plans to cease it once again as he does not feel the need for it. Ms Henshall noted that Mr Unwin's attitude towards the use of his medication may impact upon the ability to manage him in the community without putting the community's safety in jeopardy.
76 Ms Henshall reported that monitoring the potential use of solvents by Mr Unwin in the community will rely upon voluntary disclosure by Mr Unwin. Solvents cannot be detected through urinalysis. Urinalysis and breath testing can be implemented if Mr Unwin is released on a community supervision order. Those methods of testing will detect whether he has lapsed into alcohol or drug use.
77 Ms Henshall said that upon release on a community supervision order Mr Unwin will be subject to GPS tracking. He will also be closely managed and supervised by members of the local risk management group whose members include, but are not limited to, police officers from SOMS, Community Corrections Officers from DCS, management staff from the DCS Public Protection Unit and psychologists from the DSOPT.
78 In her evidence, Ms Henshall confirmed that there is no accommodation available for Mr Unwin in any of the psychiatric hostels which are prepared to accept him. Ms Henshall explained that there is no central wait list on which to put Mr Unwin's name and she did not know his position on any of the individual hostel's wait lists.
79 Ms Henshall confirmed the information in her report about Mr Unwin's trust fund with the Public Trustee. At that point, I had an exchange with counsel about the origin of the trust funds and the restrictions placed on their use. Ms Barone advised me that the funds came from a criminal injuries compensation award and had presumably been given to the Public Trustee because of concerns about Mr Unwin's ability to manage such a large amount of money. However, he does not have a guardian or administrator appointed. Neither counsel were able to enlighten me of the basis on which the Public Trustee exercised a discretion to disburse the funds. However, both counsel agreed that further enquiries could be made to ascertain whether the Public Trustee, either voluntarily or mandatorily by order of the State Administrative Tribunal or the court, could release funds to pay some of Mr Unwin's living expenses. At the time of the hearing DCS had not initiated Mr Unwin receiving legal advice about his rights in respect of the trust funds.
80 Mr Unwin's counsel later advised me that a colleague had agreed to assist Mr Unwin to approach the Public Trustee and, if that was unsuccessful, to assist him to make an application to the State Administrative Tribunal for access to the funds.
81 In respect of mentoring from Ruah, Ms Henshall said that if Mr Unwin is to be released to another area of Perth apart from the Armadale area, fresh negotiations will have to occur with the relevant Ruah region to ascertain what support will be available to Mr Unwin. Ms Henshall said that there was no guarantee that the same level of support, as that offered by Ruah Armadale, will be available.
82 Ms Henshall said that on 22 July 2015 a referral for neuropsychological testing was made. Ms Henshall expects that it will take three months for the testing to be completed. After it is completed, DSC will then take an indeterminate period of time to decide whether Mr Unwin will be able to access its services and, if so, the level of services he will be offered. In theory, Mr Unwin may be able to access social trainers, housing and mentoring. Depending on the results of the neuropsychological testing, another approach may have to be made to PECN.
83 In cross-examination, Ms Henshall said that she became Mr Unwin's Community Corrections Officer in mid-May 2015. Ms Henshall said that she has met with Mr Unwin on about four or five occasions as at the date of the hearing of the annual review.
84 Ms Henshall said that when the 2015 review was listed to be heard on 20 July 2015, Outcare had been able to offer a house to Mr Unwin. Unfortunately, the court date was changed and the accommodation was offered to another dangerous sexual offender.
85 Ms Henshall was asked whether she is aware that since Mr Unwin was transferred from Karnet Prison Farm to Casuarina Prison he is not able to access his colouring-in materials. She is not aware of that but said that the Public Protection Unit, DSC, could follow it up.
86 I asked Ms Henshall whether Mr Unwin could request to be transferred back to Karnet Prison Farm, if that is where he would prefer to be. She testified that after the conclusion of the 2015 review, and if the CDO was not rescinded, the case management team would reconsider his placement. If he wishes to be transferred to Karnet, executive level officers within DCS will have to agree to reduce his security rating before the transfer can take place.
87 Mr Unwin did not give or call evidence at the review. However, his counsel tendered a number of historical documents.
88 The first such document is the Community Supervision Report completed by Ms Julie Dabala, Senior Community Corrections Officer, Public Protection Unit, DCS, for the 2014 annual review. The second document is a report from Partners in Recovery (PIR), also prepared for the 2014 annual review. PIR is a federally funded programme that aims to work with individuals with severe and persistent mental health issues. In 2014 PIR was working closely with Mr Unwin and had agreed that if he was released from prison it would assist him to access a broad range of resources including housing. Yet by the time Ms Henshall completed her report for the 2015 review, PIR had ceased its contact with Mr Unwin. In May 2015 Ms Williams contacted PIR and was advised that it did not see room for an ongoing relationship with Mr Unwin because of the services Outcare and community mental health services could provide to Mr Unwin on his release, and because Mr Unwin needed a mentor. I infer that PIR do not provide mentoring services. Ms Henshall is unable to explain why PIR has changed its attitude so completely over the course of one year.
89 Ms Dabala's report also provided further information about Mr Unwin's mother and aunt. Both of them have intellectual disabilities. His aunt disclosed to Ms Dabala that approximately 10 years earlier Mr Unwin had assaulted her in the family home. Mr Unwin had been under the influence of solvents and, allegedly, had pinned his aunt down and groped and kissed her breasts. The assault was not reported to police. In 2014, in order to avoid their presence in the home being an impediment to Mr Unwin being released to live there, his mother and aunt had offered to move out and find other accommodation. They had withdrawn that offer by the time Ms Henshall spoke to them for the purpose of preparing her 2015 report.
90 The third document tendered is a report on the assessment of intellectual disability dated 26 July 2004 and authored by Mr Matt Dunsire. The report is relevant because it casts light on why Mr Unwin has not had access recently to DSC's services.
91 Mr Unwin became eligible for DSC services in 1982 and he remained a client of DSC until he moved to Queensland to live with his father in 1991. In 1994 on his return he was tested and then again in 2004. His 1994 results showed that he was functioning below his age-matched peers but that he did not have an intellectual disability. In 2004 he refused to complete an IQ assessment but told Mr Dunsire that he had faked the 1994 and 2004 assessments. Mr Dunsire's opinion was that the 1994 and 2004 results and Mr Unwin's comments and behaviour during the assessments suggested that he was functioning outside DSC eligibility criteria.
The law
92 The Act s 33 states:
Review of detention under continuing detention order
(1) When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a) expressly decline to rescind the order; or
(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
93 Section 33 requires a judge to rescind the CDO if the judge does not find that the relevant dangerous sexual offender remains a serious danger to the community. If a judge finds that the dangerous sexual offender remains a serious danger to the community, the judge may either expressly decline to rescind the CDO, as I did, or rescind the CDO and make a supervision order.
94 In deciding whether to decline to rescind the CDO or make a supervision order, the judge is required to adopt the least restrictive alternative which is compatible with the protection of the community: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297. The Act s 33(3) makes it clear that the paramount consideration is the need to ensure the adequate protection of the community.
Did Mr Unwin remain a serious danger to the community?
95 Mr Unwin's counsel did not dispute that Mr Unwin remains a serious danger to the community.
96 I was and remain satisfied on the basis of Dr Brett's uncontroverted expert evidence, that Mr Unwin is a serious danger to the community.
Whether to expressly decline to rescind the continuing detention order or to rescind the order and make a supervision order?
97 The Director of Public Prosecutions (DPP) submitted that the CDO should not be rescinded because:
1. there is no suitable accommodation available for Mr Unwin;
2. accommodation with Mr Unwin's family is unsuitable due to his mother's and aunt's histories with Mr Unwin and the concern that if his behaviour deteriorated, they would not report it to the authorities;
3. accommodation with his family is also unsuitable because of its location; and
4. the level of mentoring available currently does not meet the level recommended by Dr Brett.
98 The DPP's counsel submitted that it would not be appropriate to release Mr Unwin into a sub-optimal environment as that would potentially set him up to fail.
99 Mr Unwin's counsel acknowledged rightly that given the reservations expressed by Dr Brett about Mr Unwin living with his family, I was unlikely to find that such accommodation would adequately protect the community. I say rightly because I am not satisfied that it is appropriate for Mr Unwin to live with his mother, who is recorded as having abused Mr Unwin when he was a child, and his aunt, who was allegedly assaulted by Mr Unwin.
100 In respect of his mother, Blaxell J found that the causes of Mr Unwin's serious sexual offending lay in his dysfunctional upbringing and very damaging experiences as a child. These experiences included physical abuse and neglect by his mother and abuse from his then step-father. I am concerned that Mr Unwin's risk of committing serious sexual offences may increase if he is living with a woman who abused him when he was a child and who also permitted or failed to prevent others from assaulting him.
101 In respect of his aunt, I am of the opinion that although the allegation of assault was not reported to the police, it suggests that Mr Unwin could offend against a member of his family, with whom he was residing. Further, even though his aunt did not object to Mr Unwin residing in her place of residence, a court should be very careful to ensure that victims are not re-traumatised as a result of a residential condition in a supervision order.
102 If it was my view that it was inappropriate for Mr Unwin to live with his family, Mr Unwin's counsel submitted that there were two options available to me. The first was to adjourn the 2015 review to ascertain whether money could be made available from Mr Unwin's trust fund to fund suitable private accommodation. The second option was for me to not rescind the CDO but for a special circumstances application to be made should appropriate accommodation be found prior to the fifth annual review to be held in 2016.
103 I declined to adjourn the 2015 review because it was not in Mr Unwin's best interests to do so. This, in turn, was because there was no indication that suitable accommodation would become available in the short term. Further, I was of the view that it was desirable that the neuropsychological testing occur, that DSC and/or PECN be approached for access to their services and programmes, and that there be resolution of the issue as to whether funds are available from Mr Unwin's trust fund to fund accommodation, psychiatric treatment and mentoring for Mr Unwin in the community. All these actions will take a considerable period of time.
104 If, despite an adjournment, Mr Unwin's CDO was not rescinded, the fifth annual review would be delayed by the length of any adjournment as, by law, it cannot occur until 12 months has elapsed since a decision has been made on this review.
105 If the 2015 review was not to be adjourned the only decision that I could make in accordance with the facts and the law was to expressly decline to rescind the CDO.
106 In accordance with the evidence, Mr Unwin's risk of committing a serious sexual offence if released into the community can only be managed in a highly supported environment. This requires his placement in private accommodation with daily mentoring services for a period of time, as well as ongoing psychiatric and psychological treatment, in addition to standard conditions of a dangerous sexual offender supervision order. Alternatively, it necessitates Mr Unwin's placement in a psychiatric hostel or other similar facility which includes both day-to-day supervision and some therapeutic support. Such accommodation and related support and mentoring were not available at the time of the 2015 review. Therefore, it was not possible to rescind Mr Unwin's CDO and make a supervision order.
107 In coming to my decision I also took into account the nature of Mr Unwin's risk of reoffending. Other judges have described this previously. It is true that not all of Mr Unwin's offences of indecency fit the definition in the Act of serious sexual offences. Further, his primary obsession has been with women's breasts rather than with committing offences involving penetration. However, as Blaxell J observed, Mr Unwin's offending, prior to his last sentence, was escalating in seriousness. His last offence involved significant violence and was very serious. Despite concerted attempts to rehabilitate him, Mr Unwin remains a serious danger to the community, he has limited insight into the causes of his offending and limited prospects of rehabilitation.
108 I also took into account that the alternative to him being released on a supervision order was for him to remain in custody on a CDO. Despite not being a sentenced prisoner, he will be subject essentially to the same punitive regime as a sentenced prisoner. In an ideal world, dangerous sexual offenders would be detained separately to sentenced prisoners and be subject to a regime which protected the public and provided them with appropriate treatment. Although such a regime is not available, I concluded that the least restrictive alternative which was compatible with the protection of the community required me to expressly decline to rescind the CDO.
The next 12 months
109 In respect of Mr Unwin's future management, it is clear that enquiries to find suitable accommodation and mentoring services should continue. If these become available within the next 12 months, Mr Unwin may make an application under the Act s 30(1) for his CDO to be reviewed. Of course, any decision as to whether he should be released on a supervision order will depend on the view of the presiding judge as to whether the proposal will be adequate to protect the community.
110 There is an issue as to whether accommodation in a private psychiatric hostel will ever be an appropriate placement for Mr Unwin. Although Dr Brett expressed reservations about such a placement, I am of the view that the availability of such a placement should continue to be investigated. Whether it will be appropriate or not will depend on the particular characteristics of the hostel, its staff and its other clients.
111 Several other issues arose during the review. First, there is Mr Unwin's transfer back to Karnet Prison Farm. It is up to DCS to determine Mr Unwin's place of detention, but it is important for Mr Unwin to be given the opportunity to pursue an application for a transfer if he prefers to be detained at Karnet Prison Farm. If he remains at Casuarina, the Public Protection Unit should assist him to access his colouring in materials.
112 Secondly, there is the question of Mr Unwin's access to the trust funds. It is important that the steps outlined by his counsel be taken in the next 12 months.
113 Thirdly, Dr Brett's suggestion that Mr Unwin see a psychiatrist with whom he can have an ongoing relationship, whether he is in custody or in the community, should be pursued. The psychiatrist could also provide advice about Mr Unwin's ongoing use of anti-psychotic drugs to manage his stress and the potential use of anti-libidinal medication and provide advice to Ms Williams. It may be that trust funds can be used to fund a psychiatrist.
114 Fourthly, Dr Brett has recommended that Mr Unwin have an independent living assessment. The possibility of this occurring should be explored.
115 Fifthly, Mr Unwin's counsel submitted that the court could use its criminal case management powers to try and compel DCS to take ongoing steps to investigate community placement options for Mr Unwin throughout the next 12 months. Judges have noted the apparent lack of action by DCS between annual reviews to pursue possible community placement options for dangerous sexual offenders who are subject to CDOs. There tends to be a flurry of activity in the month or so leading up to the hearing of the annual review. The consequent lack of time for options to be explored seems in some cases to result in negative outcomes for the relevant dangerous sexual offenders at the next annual review hearing.
116 I do not think that it is possible for the court to case manage an application for an annual review before the DPP has filed the application. Once an application has been made, depending on the nature of the case and the case management orders which were sought, it may be possible for the court to do so. However, this is not such a case.
117 In this case, it is only appropriate for me to urge DCS to continue its attempts, over the whole of the next 12 months, to obtain suitable accommodation and mentoring services in the community for Mr Unwin.
Conclusion
118 Accordingly, I expressly declined to rescind Mr Unwin's CDO.
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