Director of Public Prosecutions (WA) v Unwin [No 7] - [2018] WASC 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- UNWIN [No 7] [2018] WASC 65

CORAM: JENKINS J

HEARD: 4 & 29 SEPTEMBER & 2 OCTOBER 2017

DELIVERED : 2 OCTOBER 2017

PUBLISHED : 2 MARCH 2018

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 - Respondent remains a serious danger to the community - Community would not be adequately protected if the respondent was released under a supervision order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Continuing detention order affirmed

Category: B

Representation:

Counsel:

Applicant: Mr B Meertens
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 Pindan [No 6] [2018] WASC 20
Director of Public Prosecutions (WA) v Unwin [2011] WASC 11
Director of Public Prosecutions (WA) v Unwin [No 6] [2016] WASC 296

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) (DSO Act) s 17.[1]
[1] Director of Public Prosecutions (WA) v Unwin [2011] WASC 11.
Annual reviews have been conducted since Blaxell J made the CDO. On 2 September 2016 I heard the fifth annual review of the CDO (the 2016 review). At the conclusion of the hearing, I ordered that I expressly declined to revoke the CDO.[2]
[2] Director of Public Prosecutions (WA) v Unwin [No 6] [2016] WASC 296.
In September and October 2017 I heard the sixth annual review of the CDO (the 2017 review). On 2 October 2017 I expressly declined to revoke the CDO and said I would publish my reasons later. These are my reasons for making that order. These reasons should be read together with all earlier reasons for the decisions which have been made under the Act and which relate to Mr Unwin.
Since Mr Unwin completed his sentence of 28 months' imprisonment, Mr Unwin has spent over seven years in prisons under the CDO. The order which I made at the end of 2017 review was very distressing for Mr Unwin. He feels he has served his sentence and does not deserve to be detained under the CDO. His borderline intellectual functioning means he does not understand why he must be detained.
In order to ensure the safety of the public, Mr Unwin can only be released if it is on condition that he reside at a place which provides him with a high level of supervision and support.[3] However, there is no such place available. My duty, consistent with the provisions of the Act, was to decline to rescind the CDO. That order is likely to result in Mr Unwin spending at least 9 years in prison after the completion of his last sentence being treated much like any other prisoner, despite the absence of any further serious sexual offending and consequent sentence. I remind those who are responsible for his day‑to‑day detention that Mr Unwin is being detained in prison for control, care and treatment,[4] and not for punishment.
[3] See Corboy J's apposite remarks in Director of Public Prosecutions (WA) v Pindan [No 6] [2018] WASC 20 [38].
[4] DSO Act 2006 s 17(1)(a).

Conclusions at the 2016 review

At the conclusion of the 2016 review I found that Mr Unwin remained a serious danger to the community. Consistent with my conclusion at the end of the 2015 review I said that 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 would require him to be placed in private accommodation with daily mentoring services for a period of time, as well as other support. I noted that such accommodation and related support and mentoring was not available at the time of either the 2015 or 2016 review. Therefore, it was not appropriate for me to rescind Mr Unwin's CDO and to make a supervision order.
I also took into account events over the previous 12 months which included Mr Unwin's inappropriate and sexualised behaviour at various times within that period. I noted that it remained the case that Mr Unwin's behaviour became unpredictable and inappropriate when he was under stress. Until he became more resilient to stressors, the community would not be able to be protected by a supervision order.
In order to assist Mr Unwin to cope with stressors I said that the following matters ought to be pursued over the following twelve months:
(1)consideration of a trial of anti‑libidinal medication or an SSRI;[5]
(2)continuation of counselling, preferably with Ms Williams;
(3)a record of Mr Unwin's daily behaviour over a block of time ought to be investigated and its usefulness assessed;
(4)pursuit of supported accommodation of Mr Unwin in the community;
(5)completion of an independent living assessment;
(6)continuity in Mr Unwin's psychiatric care;
(7)assessment as to whether Mr Unwin was ready for transfer to a medium security prison to test his capacity to live in a environment where he had more freedom.
[5] Selective serotonin reuptake inhibitor.

The 2017 review

At the 2017 review, the Director of Public Prosecutions (the DPP) submitted that I ought to find that Mr Unwin remains a serious danger to the community and affirm the CDO.
On behalf of Mr Unwin, it was conceded that he remains a serious danger to the community.[6] It was submitted that I ought to rescind the CDO and make a supervision order or rescind the CDO and make no further order.
[6] ts 591.
First I will provide a chronology of events since the 2017 review concluded. Next, I will address each of the 2016 review recommendations in turn and in that way consider Mr Unwin's control, care, treatment and progress over the last 12 months. I will then draw my conclusions and make further recommendations.

Chronology

2016
2 September	Completion of the 2016 review.
8 September	Western Australian National Disability Insurance Scheme (NDIS) advised that Mr Unwin does not meet the disability requirements for funding through the NDIS.
15 September	A daily record of Mr Unwin's behaviour commenced under the prisons' support and monitoring system (SAMS).
5 October	Reasons for decision in relation to the 2016 review published.
14 October	Note in SAMS record that Mr Unwin is disappointed and angry over what he has read in the 'court transcripts'.[7]
31 October	Mr Unwin was seen masturbating by a female prison officer. This behaviour was repeated on a number of evenings.
2 November	Mr Unwin was reportedly frustrated at delay in his transfer from Casuarina Prison to Bunbury Regional Prison (BRP).
4 November	Mr Unwin reported as 'constantly officer shopping' to cajole them into contacting mental health staff. Mr Unwin admitted that this was to influence his drugs and treatment, to enhance his chance of early release.[8]
9 November	Mr Unwin's urine tested positive for methadone.
23 November	At a SAMS review, Mr Unwin presented as 'disgruntled and frustrated' at delay in transfer to BRP. He had engaged in some inappropriate behaviour.[9]
24 November	Mr Unwin was referred to prison medical services to assess him for hormonal anti‑libidinal medication.
1 December	Mr Unwin's urine tested positive for methadone.
2 December	Note in SAMS records that Mr Unwin spoke constantly about his transfer to BRP.
5 December	SAMS notes record Mr Unwin 'very needy'. He did his job but 'has things going on in his imagination one minute and messing about laughing in another'.[10]
7 December	Mr Unwin reported that he was under threat from other prisoners, who he refused to identify, regarding the on selling of prescribed medication within his unit. Mr Unwin transferred to protection unit.
13 December	Mr Unwin transferred to BRP as medium security prisoner, with an intention to transfer him to the pre‑release unit (PRU).[11]
15 December	Note in SAMS record that Mr Unwin is 'stressed' at BRP. Mr Unwin felt at risk from other prisoners due to his identification as a dangerous sex offender (DSO). He was too nervous to attend the dining room and feared he would have a panic attack if he did so. Mr Unwin displayed squinting and blinking of his eyes, which is typical when he is nervous and anxious.[12]
19 December	Note in SAMS record that Mr Unwin had not attended the shower block for a shower or the dining room due to being too nervous and anxious since his transfer to BRP. Transferred to self‑care unit. An officer queried whether Mr Unwin's behaviour was deliberate in order to obtain desired transfer to self‑care unit.
20 December	Reviewed by mental health nurse. Mr Unwin said that he thought about hurting people if they annoyed him. He expressed concerns that he is institutionalised and that he will return to glue sniffing when released. The nurse assessed that Mr Unwin was thought disordered with morbid obsessions.[13]
2017
5 January	During consultation mental health nurse Mr Unwin stated that when he is under stress he talks to himself and someone else answers him, like it is his brain talking to him. Worried he will return to glue sniffing if released.[14]
15 January	Dr Vuletich's neuropsychological assessment report received. Dr Vuletich indicated that Mr Unwin does not meet the Disability Services Commission's (DSC) threshold for support. This was confirmed by DSC.
19 January	Decision made to charge Mr Unwin for prison offences committed on and around 31 October 2016.
23 January	Consultation with Dr De Klerk, psychiatrist. Dr De Klerk noted that he was familiar Mr Unwin from when he was at Karnet Prison some 2 ‑ 3 years previously. Dr De Klerk did not believe that Mr Unwin was thought disordered. He was ruminating on violent fantasies related to his mood but no delusions were identified. He had no auditory hallucinations but spoke about talking to himself. Dr De Klerk assessed that Mr Unwin has an intellectual disability with some adaptive functioning relating to having his needs met. Compared with 2 ‑ 3 years ago, Mr Unwin was 'much more responsive and spontaneous, but remained impulsive'. The improvement was due to him no longer being on anti‑psychotic medication, which Dr De Klerk noted had sedated Mr Unwin. Dr De Klerk recorded that Mr Unwin had said that if released he would go back to sniffing glue and 'kill Asians'. Dr De Klerk stated that Mr Unwin did not have a primary serious mental illness and advised that he should be psychiatrically reviewed as needed.
7 February	Consultation with mental health nurse. The nurse noted that Mr Unwin was 'anxious and worried' about moving into the self‑care unit, where he did not know anyone. He was concerned that other inmates knew him as a DSO and that they may give him 'a hard time'. He thought he may need protection. The nurse attempted to reassure Mr Unwin that he had been doing as well as possible at BRP. Mr Unwin said that if other prisoners gave him a hard time he would ask for protection but he was aware that he would lose his X‑box if he was moved to the protection unit. He left the medical centre more relaxed and happy to see how things went.[15]
13 February	Note in SAMS records that Mr Unwin wanted to transfer from BRP to Acacia or Casuarina Prisons. Mr Unwin indicated that he would seek protection which would expedite his transfer. The writer concluded that Mr Unwin had not settled at BRP and that recent unit change had resulted in further destabilisation.[16]
14 February	Mr Unwin reported to prison staff that he was in fear of other prisoners at BRP. He was moved to the protection unit.
15 February	Mr Unwin requested to be moved from the protection unit. Mr Unwin reported that 'he just skitzed out' and was not really at risk from others. He said he was expecting a different outcome from his placement into protection. The protection alert was removed.[17]
16 February	Consultation with mental health nurse. Mr Unwin was upset that he had not been transferred to the PRU as he expected. Mr Unwin was reassured that after a DSO case conference scheduled for 21 February 2017, a decision would be made about whether he would be placed into the re‑socialisation programme. Until then he was to remain in the protection unit, although not requiring protection. He was to have his drawings and coloured pencils to keep him busy. Officers were to try and obtain some work for him. Mr Unwin responded in a calm manner and was happy with the outcome.
21 February	Mr Unwin was sentenced by a visiting justice to 17 days punishment for returning positive urinalysis tests (9 November and 1 December 2016) and for misconduct by masturbating in front of female prison staff (31 October 2016).[18]
23 February	Consultation with clinical nurse. Mr Unwin was upset that he could not have cigarettes. He told the nurse that he was hallucinating and hearing voices telling him to cut himself. Mr Unwin was transferred to an observation cell and placed on one hourly observations.[19]
24 February	Mr Unwin told Ms Williams that he intended to request a transfer back to Casuarina Prison and that if this did not occur he would self‑harm by banging his head.[20]
1 March	Note in SAMS records that Mr Unwin was concerned about his placement when his punishment ends. He was concerned about other prisoners excluding him because of his status as a DSO or ridiculing other prisoners if they spoke to him. Confirmed intent to seek a prison transfer.[21]
2 March	Mr Unwin told Ms Williams that he would seek protection as he believed it would assist him to obtain a transfer back to Casuarina Prison.[22]
3 March	Consultation with mental health nurse. Mr Unwin was not happy about the decision of the meeting the previous week about his entry into the re‑socialisation programme.[23] Mr Unwin told the nurse that he was required to spend three months in self‑care before moving to the PRU. He told the nurse that he could not sleep and needed medication. The nurse's opinion was that Mr Unwin was having adjustment issues. No new medication was prescribed.[24]
15 March	Mr Unwin returned to BRP self‑care unit.[25]
27 March	Mr Unwin approached a member of the prison counselling service (PCS) and said that he had requested a transfer to Acacia Prison because of a 'row' with his psychologist, a desire to be closer to support services and due to receiving information that a service had declined to accept a referral to complete an independent living assessment. Due to the declined referral, Mr Unwin believed that there was limited merit in remaining at BRP. Mr Unwin commented that he was not coping and that he was not ready for release to the community. He regarded himself at 'breaking point'.
28 March	Superintendent of BRP confirmed that Mr Unwin had requested a transfer due to having no friends at BRP.[26]
31 March	Consultation with mental health nurse. Mr Unwin said that the independent living skills assessment had been refused. He wanted a transfer to Acacia Prison to get medication or other drugs. He felt a need for medications to help him 'mellow out' as he was thinking of doing stupid things such as swallowing batteries. Mr Unwin presented as animated and intense. His speech was rapid and he was difficult to interrupt. His mood was irate. He stated that he heard voices in his head. If he was not able to be medicated he was urged (presumably, by these voices) to use other drugs to calm himself down. He claimed to have used Suboxone and Quetiapine a week ago. The nurse assessed him to have a schizoid typal disorder although there was no overt psychosis evident. She noted that he had an anxious personality and was using illicit drugs as a coping strategy. The mental health nurse planned for him to have a psychiatric review.
3 April	Case conference was held between Dr De Klerk and the mental health nurse. It was noted that Mr Unwin's request for more medication was 'politely denied'. It is not clear whether Mr Unwin was present for this case conference.[27]
4 April	Mr Unwin approached his unit manager at BRP stating that he had been giving oral sex to his cell mate. He did not want to be housed with that cell mate due to this situation. When asked whether the incident was consensual or not Mr Unwin said, 'He just asked me, so after a while I gave him a few head jobs, but I don't want to do it any more'. Mr Unwin's cell mate was interviewed and was adamant that no sexual activity had occurred. He stated that Mr Unwin had told him that he wanted a single cell and would get his way by telling officers a lie. The cell mate was moved so Mr Unwin's allegations could be investigated.[28] Mr Unwin's allegations were investigated by the Western Australian Police after which it was determined that there would be no further action.
5 April	Mr Unwin telephoned the Ombudsman's office and claimed to be under threat from an unnamed prisoner within his unit. Mr Unwin was interviewed by a senior prison officer. He stated that he wanted protection but would not name the prisoners by whom he was threatened. Mr Unwin was placed in the protection unit. Mr Unwin also told PCS that he was concerned that other prisoners would harm him because of the complaint he made on 4 April.[29] The BRP does not have a facility for long term protection of prisoners. Consequently, as Mr Unwin sought protection, it was necessary for him to be transferred to another prison.[30]
18 April	Mr Unwin was transferred to Casuarina Prison.
22 April	Mr Unwin had been booked to see a psychiatrist in BRP on 1 May 2017. Because of Dr De Klerk's assessment on 23 January 2017 that Mr Unwin did not have a primary serious mental illness and that his most recent psychiatric consultation had been 'frivolous in nature' it was determined that a review by a mental health nurse should be booked to establish whether Mr Unwin required a psychiatric consultation.
23 and 30 April	Mr Unwin refused to attend the medical centre to see a mental health nurse.
10 May	Consultation with mental health nurse for a mental state assessment. Mr Unwin presented as dismissive about his mental health but talked about his mood swings and how awful prison was. The nurse planned to liaise with a doctor about prescription of a mood stabilizer. On the same date, a doctor prescribed sodium valproate.[31]
13 May	In the morning medication parade, Mr Unwin stated that he was unaware that he had been prescribed sodium valproate. He questioned if he needed to take it and asked to see a doctor before he agreed to do so. Later that day Mr Unwin attended a consultation with a co‑morbidity team nurse. He reported that his mood had been up and down for the last six months. He described being stressed and not knowing how to manage it. His particular stressor was the length of time he had spent in prison and the uncertainty of when he would be released. He was concerned about the lack of an independent skills assessment. The nurse recommended a review by a medical officer.[32]
21 May ‑ 22 May	Mr Unwin told a prison officer that he wanted to go to the crisis care unit (CCU). When he was asked why he needed to go to CCU, Mr Unwin said that he wanted time out. It was explained that an arrangement could be made for him to see a mental health nurse. Mr Unwin said that the officers had to send him to CCU if he asked to go, as he knew the rules. He threatened to 'slash up' if he had to in order to be transferred. An arrangement was made for Mr Unwin to see a mental health nurse.[33] Later that afternoon Mr Unwin saw a co‑morbidity team nurse. Mr Unwin denied suicidal and/or homicidal ideation but stated that he would misbehave if he was made to return to his unit. Mr Unwin then began to cry and volunteered that he had been bashed. He showed the nurse bruises on his left and right shoulders. He refused to identify the perpetrator, and said 'if I tell, I will be shived[34] by the person or their friend or a friend of a friend. You cannot get away from this stuff it will always catch up no matter what'. A decision was made to place Mr Unwin in to CCU overnight. The following day, Mr Unwin saw the same nurse. He said that his mood was better because he was not being 'picked on'.[35]
1 June onwards	Note in SAMS record that Mr Unwin was more settled and co‑operative now that he was housed in unit 12, a wing of the health clinic. He said that there were no 'enemies' there. Mr Unwin remained in unit 12 as his behaviour was significantly better there.[36]
16 June	Consultation with Dr Claassen, psychiatrist. Mr Unwin said he would not take hormonal anti‑libidinal medication but he would take a selective serotonin reuptake inhibitor (SSRI), sertraline.[37] Dr Claassen noted that Mr Unwin had some liver malfunction but the rest of his blood analysis 'was relatively unremarkable'. In Dr Claassen's view Mr Unwin demonstrated a capacity to provide informed consent for the commencement of anti‑libidinal medication. Dr Claassen prescribed the SSRI.[38]
27 June	Consultation with clinical nurse. Mr Unwin refused his medication until after the 2017 review. He stated that he was only on the medications for court. However he had not completed all the courses required for him to be released, so he was not going to take the medications until he had to. He said they made him feel unwell. Mr Unwin also stated that he was going to refuse the consultation with the psychiatrist, because it would not help him.[39]
3 July	DSO case conference. It was agreed to reconsider Mr Unwin for transfer to a self‑care or minimum security placement after he had demonstrated six months stability, good behaviour and improvement in attitude in his current placement. This plan was communicated to Mr Unwin who said he was willing to try to transition to a minimum security placement.[40]
7 July	Consultation with Dr Claassen. The consultation lasted less than five minutes as Mr Unwin was irritable. He stated that he no longer wished to take the SSRI. Dr Claassen described his attempts to clarify why Mr Unwin no longer wanted to take it as 'fruitless'. Mr Unwin said he did not want to take the SSRI and 'that's that - none of these treatments help, so I don't want 'em'. Dr Claassen noted that given his agreement with Mr Unwin had been that he was able to withdraw consent for treatment at any stage, he ceased the prescription. Mr Unwin was advised to speak to a doctor or nurse if he wanted to resume it.[41]
13 July	Decision made by assistant superintendent that Mr Unwin was to remain a medium security prisoner at Casuarina Prison, with protection status.[42]
21 July - 28 September	Independent living skills assessment conducted by occupational therapist, Ms Caitriona Byrne. Ms Byrne concluded: Mr Unwin demonstrates the ability to follow the steps in how to complete tasks and is able to communicate this to another person in great detail. However the query would be whether he can carry this over into daily life outside of prison, initiate tasks and follow the correct sequences. Mr Unwin does have the skills to complete tasks, however the underlying issues with the planning phase of cognition may cause him increased difficulties. Meaning he is not able to put things in to practice in a way that would give one confidence with new strategies and new routines due to Mr Unwin's impulsivity, reduced attention to detail, inability to initiate certain tasks and focus on them for more than a few minutes. As well as Mr Unwin not being able to put into practice any new strategies recommended by his clinical psychologist. The following recommendations are listed below: • re‑socialisation training/programme (available at Karnet prison farm) • task management/focus training - through structured responsibility in a job setting • increase responsibilities to encourage completion of tasks/jobs • monitoring of these tasks - if this is possible to encourage focusing and full completion of tasks, therefore increasing the length of time spent in one area and increasing his attention to detail Ms Byrne said that the opportunities available at Karnet prison farm would best suit Mr Unwin's needs in preparation for successful re‑entry into the community. Mr Unwin would benefit from a repetitive interactive daily routine including preparing his own lunch and working a typical day. Ms Byrne hopes that repetition of tasks will compensate for Mr Unwin's lack of cognitive skills and basic attention to detail. She said that further assessment will be required following this to establish if new routines and strategies have been put into practice.
27 July - 14 August	Casuarina Prison security officers confirmed that Mr Unwin had recommenced making frequent telephone calls to helplines. Mr Unwin acknowledged this behaviour to Ms Williams, his psychologist. He said that these calls were sexually motivated.[43]
27 July	Mr Unwin refused to provide a urine sample and was charged with a prison offence. The charge was still pending at the time of this judgment.[44]
31 July	In a telephone call with his mother, Mr Unwin threatened to kill himself.
18 August	Note in SAMS record that Mr Unwin had a 'dramatic' improvement in his demeanour when he was occupied with work. Also that he was not a management problem when he was occupied with his X box.[45]
30 August	Note in SAMS record that Mr Unwin's anxiety was building as the 2017 review neared.
4 September	At lunchtime on the first day of the hearing of the 2017 review, Mr Unwin was escorted from court to the custody area. He requested a cigarette but was denied it. Mr Unwin became agitated and threatened to 'smash down the cell door' if he did not get what he wanted. Mr Unwin kicked the cell door, splashed water around in the cell and spat and urinated on the cell floor.[46]
12 September	Mr Unwin refused to provide a sample of urine[47] and was charged with a prison offence. The charge was pending at the time of this judgment.[48]
2 October	Conclusion of 2017 review.

[7] Presumably he was referring to my reasons for decision.

[8] Exhibit 1, page 38.

[9] Exhibit 3, page 14.

[10] Exhibit 3, page 15.

[11] ts 465.

[12] Exhibit 3, page 1.

[13] Exhibit 1, page 69.

[14] Exhibit 1, page 68.

[15] Exhibit 1, pages 58 ‑ 59.

[16] Exhibit 3, page 4.

[17] Exhibit 1, page 23.

[18] Exhibit 4. Mr Unwin received 5 days, 5 days and 7 days cumulative confinement in a punishment cell.

[19] Exhibit 1, page 58.

[20] Exhibit 1, page 91.

[21] Exhibit 3, page 5.

[22] Exhibit 1, page 91.

[23] Surprisingly, there is no mention of this decision in the community supervision assessment prepared for the 2017 review.

[24] Exhibit 1, pages 56 ‑ 57.

[25] Exhibit 1, page 91.

[26] Exhibit 1, page 91. I note that there are no independent records of these conversations. A summary of them is contained in the community supervision assessment completed for the 2017 review.

[27] Exhibit 1, pages 53 ‑ 54.

[28] Exhibit 1, page 26.

[29] Exhibit 3, page 7.

[30] Exhibit 1, page 93.

[31] Exhibit 1, page 51.

[32] Exhibit 1, pages 50 ‑ 51.

[33] Exhibit 1, pages 34 ‑ 35.

[34] Presumably, assaulted with a 'shiv' or a sharp makeshift weapon.

[35] Exhibit 1, page 50.

[36] Exhibit 3, page 5.

[37] The trade name for sertraline is Zoloft.

[38] Exhibit 1, page 47. The trade name of sertraline is Zoloft.

[39] Exhibit 1, pages 45 ‑ 46.

[40] Exhibit 1, page 92; ts 481.

[41] Exhibit 1, page 44.

[42] Exhibit 1, page 43.

[43] Exhibit 1, page 92.

[44] ts 482.

[45] Exhibit 3, page 7.

[46] Exhibit 8.

[47] Exhibit 9.1.

[48] Exhibit 11.

A trial of anti‑libidinal medication or an SSRI

For the purpose of the 2017 review in August 2017 Mr Unwin was assessed by forensic psychiatrist Dr Peter Wynn Owen. Mr Unwin told Dr Wynn Owen that he had decided not to continue with the SSRI because of the possible dangerous side effects. Dr Wynn Owen told Mr Unwin that the dangerous side effects were associated with hormonal anti‑libidinal medication but not with SSRI medication. Mr Unwin told Dr Wynn Owen that he would be willing to recommence the SSRI if he was released from custody. He expressed some frustration that he had been given little information about the medication and that it had not been commenced until shortly before the 2017 review. Mr Unwin confirmed that he was unwilling to take hormonal anti‑libidinal medication.
Mr Unwin gave evidence at this review. In respect of the trial of the SSRI, he testified that in the short period of time that he was on it, he noticed that it had beneficial effects such as making it more difficult for him to get an erection. However, he said that he had spoken to other inmates and they told him of the side effects of the medication. He said that he had also been told by Dr Classen that he would need to have his blood levels checked daily. He said that did not occur and he was concerned about the interaction between the SSRI and his medications for hepatitis C. He said that was why he stopped taking the SSRI.
Mr Unwin said that he had 'nagged' the prison authorities to enable him to see a psychiatrist so that he could resume taking the SSRI. He said that he did that because it would help him get out of prison and hopefully not reoffend when released into the community. He denied that he would stop taking the SSRI after he was released into the community.
Mr Unwin is capable of getting irrational ideas and reacting in an irritable fashion, such as he appears to have done when he was misled into believing that the SSRI could cause dangerous side effects. His behaviour in such situations is often self‑defeating, as it was on this occasion.
When Mr Unwin expressed irritability and a reluctance to take the SSRI, there was no follow‑up consultation scheduled with Mr Unwin when he was in a better state of mind to correct his misunderstanding about the possible side effects of the drug and to counsel him to continue with the medication. I acknowledge that nothing could have been achieved on 7 July 2017 during the consultation with Dr Claassen because of Mr Unwin's irritability but if the system worked as it should, Mr Unwin should have been called back for a consultation with the psychiatrist a short time later.
As I have been told by Dr Wynn Owen that an SSRI can have beneficial effects in reducing Mr Unwin's libido and that it is unlikely to have serious side effects, I am highly likely to consider that Mr Unwin should be encouraged to take the drug and that, if he consents, the prescription of such a drug should be trialled before his release into the community. In the case of Mr Unwin, who has significant cognitive deficits, some perseverance is likely to be required by those treating him to achieve this.
That is a reason why I made recommendations that there be continuity in Mr Unwin's psychiatric care. If the same psychiatrist saw Mr Unwin over a 12 month period and sought and received feedback from Ms Williams, there would be a much greater chance of a successful treatment regime being implemented and maintained.
Since 16 June 2017 Dr Claassen has been designated as the psychiatrist who is to treat DSOs who are prescribed hormonal anti‑libidinal medication or SSRI's.[49] I hope that his appointment will improve Mr Unwin's treatment.
[49] ts 520.
Dr Wynn Owen's opinion is that there should be a plan to reinstate the SSRI. He said that it should be reinstated three months prior to Mr Unwin's potential release, particularly due to Mr Unwin's intellectual limitations. Further, there should be discussions with Mr Unwin to ensure that he has a full understanding of the medication, its potential side effects and the reason why he is being prescribed it. Dr Wynn Owen said that ideally, the information would be given by a psychiatrist whom Mr Unwin knew.
In the period that Mr Unwin is prescribed the SSRI whilst he is in custody, he should receive counselling and the counsellor should try and ascertain whether the medication is effective in reducing Mr Unwin's libido.
Dr Wynn Owen said that in an ideal situation, there would be a highly integrated approach to managing DSO's within the Department of Justice, including the prison health services, but this has not been achieved. I note in this regard that the minutes of the three DSO case conference meetings held between the 2016 review and the 2017 review are in evidence.[50] A representative from prison health services was an apology at each of those meetings.
[50] Exhibit 4.
On 10 May 2017 a prison medical officer prescribed Mr Unwin sodium valproate,[51] a mood stabiliser. There is also evidence that Mr Unwin has refused to take this medication. There is no evidence that anybody explained to Mr Unwin the reasons for prescribing this medication, its benefits or its side effects. Dr Wynn Owen said that although he would not have prescribed the medication, it would not be wrong to do so. He said that it would be appropriate to monitor Mr Unwin's blood levels to ascertain whether he was taking it at a therapeutic dose but Dr Wynn Owen had not seen evidence that this occurred.
[51] The brand name for sodium valproate is Epilim.

Counselling

Since the last review, Mr Unwin has attended regular individual counselling sessions with his psychologist Ms Williams either in person or via phone and video link. In accordance with the usual practice, Ms Williams did not provide direct evidence to the court at this review.
Ms Joanne Collyer, senior counselling psychologist with the Department of Justice forensic psychology service, spoke to Ms Williams and then completed a treatment progress report dated 14 August 2017 (Ms Collyer's report).
Ms Collyer also gave evidence at the 2017 review. My consideration of Ms Collyer's evidence was not helped by her repeatedly prefacing her answers with 'I guess'.[52] She may have used the phrase as a figure of speech but it is an unhelpful one for an expert witness.
[52] Ms Collyer used the phrase approximately 25 times in her evidence.
Mr Unwin refused to speak to Ms Collyer despite two appointments being offered to him. This is another example of self‑defeating behaviour. He later told Ms Williams that following the successful completion of his independent living assessment, he was willing to meet with Ms Collyer. Time constraints precluded a third appointment being arranged.
Ms Collyer's report states that Ms Williams advised her that Mr Unwin continued to present with challenges that impacted on the effectiveness of counselling including a tendency towards reactivity, argumentativeness, manipulation and lying. Ms Williams observed that Mr Unwin tended to vacillate between idealising her and devaluing her. He had a fluctuating engagement style dependent on his perception about whether progress was being made in counselling.
The counselling goals included:
(1)developing an understanding of Mr Unwin's sexual functioning and arousal patterns;
(2)exploring Mr Unwin's deviant sexual interests with a view to management of the same;
(3)identifying the impact of trauma on Mr Unwin's sexual offending;
(4)consolidating an offence cycle and relapse prevention plan for sexual and violent offending and reviewing potential risk scenarios;
(5)focusing on distress tolerance and emotional management skills;
(6)improving social skills, reducing social anxiety and learning appropriate boundaries;
(7)developing a robust relapse prevention plan for substance abuse; and
(8)identifying and practising honesty in self‑reporting across contexts.
Ms Williams noted that when Mr Unwin presented in an engaged manner he showed reasonable capacity to focus on the agreed goals. However, it was difficult to keep a consistent focus across sessions. Mr Unwin became frustrated when topics were revisited. Ms Williams hypothesised that this was a function of his limited distress tolerance skills, lack of understanding about the counselling process and use of defensive mechanisms. Ms Williams challenged Mr Unwin's thought processes, defensiveness and manipulative tactics. This was an important and ongoing element to counselling.
In counselling Mr Unwin's offence cycle, triggers to his offending and his sexual needs were discussed. He and Ms Williams discussed the potential use of hormonal anti‑libidinal or SSRI medication. They explored avenues for sexual outlets to reduce the risk of inappropriate behaviour. Mr Unwin was able to make a tenuous link between the use of masturbation and sex as stress relief. He was able to confirm that the use of illicit substances increased his likelihood of offending. However little progress was made in counselling due to Mr Unwin's unwillingness to repeat discussions about the same topic at consecutive sessions.
Mr Unwin maintained that the violence aspect of his offending was to 'get what he wanted' rather than a means of sexual gratification. Mr Unwin denied his previous claim to a mental health nurse that he engaged prostitutes in order to have violent sex with them. He said that it was something he had made up in order to get prescribed medication.
Ms Williams told Ms Collyer that she thought that Mr Unwin's use of violence appeared instrumental rather than reflective of a deviant sexual interest. Mr Unwin had previously stated that the violent and sexual offending was a means of lifting a curse placed on him from his experiences in a cult. Apparently his opinion has fluctuated regarding whether or not this has been achieved.
The use of telephone helplines and fantasy management also formed part of Mr Unwin's treatment focus. He admitted increased inappropriate use of helplines during times of stress. He reported to Ms Williams that he found listening to a female voice soothing, particularly if he recollected the voice in his imagery when masturbating.
Mr Unwin admitted in his evidence that he used telephone helplines between August and November 2016 and again between 27 July and 14 August 2017 as a means of accessing female voices, which he then used as part of his fantasies when masturbating. He acknowledged that he had masturbated during some of these calls. He said that he had an interest in touching womens' breasts and that was never going to go away. Using the helplines was an attempt by him to manage that desire in what he thinks is an appropriate manner.
Mr Unwin believes that using telephone helplines to manage sexual release and stress is a good idea and a step forward in his rehabilitation. He does not understand that using such services and the workers who answer his calls in this way is inappropriate and constitutes or borders on, indecent behaviour. Mr Unwin's thought processes in this respect illustrates the difficulty in managing his behaviour and getting him to change that behaviour.
Ms Williams also reported to Ms Collyer that various incidents had happened over the past year which highlight Mr Unwin's problems in tolerating stress. For example, in response to triggers of trauma imagery, Mr Unwin named inappropriate coping strategies such as being able to touch another person. This extended to a request that he be able to touch Ms Williams on her hand or look at her breasts when discussing distressing material. He also admitted that the use of synthetic cannabis and methadone had occurred as a means of coping.
Mr Unwin demonstrated some capacity to focus on distress tolerance skills by way of breathing techniques. However his use of this technique was inconsistent. Overall distress tolerance skills were not a significant achievement in counselling in the last review period with Mr Unwin unable to recognise the importance of the work in relation to his risk management.
A positive urinalysis test for methadone at Casuarina prison was explained by Mr Unwin as a function of his frustration at the delay in his transfer to Bunbury Regional prison. He maintained his historical preference for solvent abuse. He acknowledged the role of solvent use in his offending. Mr Unwin has expressed a concern to others that he will relapse into solvent use if released. Ms Williams reported to Ms Collyer that limited progress had been made on the development of a substance use relapse prevention plan and she identified that it would be an ongoing focus for future counselling.
Mr Unwin gave evidence about his positive urinalysis results for methadone. He said that he was under a lot of stress and angry because at the end of the 2016 review I had declined to rescind his detention order. He said that he got sick of how long he had to remain in custody and he gave up. He thought that he was never going to get out of prison and so he did not care to moderate his behaviour. He said that at the time he was in a cell with a person who had been charged with serious child sex offences. The situation brought back memories of what had happened to him when he had been abused as a child. He was upset because people like his cell mate, in his view, 'were getting out all the time', whereas, he was being refused release.
He denied that a more recent charge of refusing to supply urine for a urinalysis was because he had used substances in the recent past. He said that was simply a case of him being unable to urinate at the time.
Mr Unwin testified that he would not use drugs if he was in the community and that he would not sniff glue, which is his preferred substance to abuse. He said that he knew that if he sniffed solvents again he would be back in prison for a long time. He said that he knew in his heart that this was his last chance of getting out.
In relation to Mr Unwin's charge of masturbating in front of a female prison officer, it seems that Mr Unwin was under the impression that because he had been requested by Ms Williams to keep a masturbation diary that he would not be charged with that offence. He is aggrieved that he was charged because he believes that he was carrying out Ms Williams' directions. Even so, he must realise that masturbating in front of a prison officer was not a necessary part of keeping a masturbation diary.
The prison records appear to indicate that there was an initial decision not to proceed with disciplinary charges over the masturbation incidents but that decision was changed once Mr Unwin was transferred to BRP. The prison authorities appear to have taken the view that when he was directed not to masturbate when a female prison officer was on duty and he did so on a subsequent evening, he should be charged with the offence.
The difficulty for Mr Unwin is that his past behaviour has shown that although he might know that he must not deal with stress by using substances or behaving in a sexualised manner, he finds it very difficult when under stress to control his behaviour.
This inability to control his behaviour was again exhibited during the course of the hearing. Mr Unwin said that he had behaved as alleged in the court custody area because the custodial officers were teasing him by denying him a cigarette but smoking themselves and boasting about it.
Mr Unwin also acknowledged that on 3 September 2017 in a telephone call with his mother he got upset and threatened to kill himself. He said that he did not intend to do that but he was stressed about this court hearing and 'it just come (sic) out'.
Ms Williams identified that Mr Unwin tended to fabricate mental health symptoms or threaten self‑harm in order to manipulate situations in his favour. Ms Williams surmised that this behaviour reflected Mr Unwin's ongoing external locus of control and attempts to control situations when he feels powerless.
Mr Unwin acknowledged that he had threatened to 'slash up' if he was not transferred to the CCU. He justified his comments on the basis that it was the only way that he could get to the CCU when he was having 'dramas'. The 'dramas' which he described were being bruised all over his body by others in his unit.
I asked Mr Unwin why he did not tell the prison officers that he had been bullied and injured. Mr Unwin said that he did but that he would not give the officers the name of the inmate who had injured him because he was concerned that he would then be bashed. It made perfect sense to Mr Unwin to falsely claim that he was going to injure himself in order to get himself out of the situation rather than to tell the officers the truth or live with the consequences of not doing so.
These are all examples of how Mr Unwin is not only prepared to lie and commit inappropriate or unlawful acts but how he believes that such behaviour is justified. It also demonstrates how he lacks the inner personal resources to control this negative behaviour.
Mr Unwin is aware of his use of dishonesty and manipulation. He told Ms Williams that he would be reluctant to report intrusive sexual thoughts when he was in the community due to the likelihood that this would get him sent back to prison.
Regrettably Mr Unwin does not believe that his anxiety and stress are relevant to his risk of serious sexual offending. Consequently he tends to resist discussing anxiety and stress management strategies in counselling. This is in spite of Ms Williams' attempts to explain the importance of distress tolerance skills to Mr Unwin, both to reduce his reactivity and to assist with dealing with past trauma. Ms Williams advised Ms Collyer that Mr Unwin is most comfortable and familiar with managing his distress through distraction techniques such as undertaking craft, recreation, X box, work activities or masturbating.
Ms Williams identified that the combination of Mr Unwin's limited social skills, anxiety and reactivity make him a potentially vulnerable person to other prisoners whom he may follow if he believes he can get his needs met from them.
According to Ms Williams, future counselling work will continue to focus on the identified goals to which I have referred. She particularly highlighted the need for Mr Unwin to develop strategies and outlets for stress management, which is pertinent to his risk management in the community. The development of social and interpersonal skills are to be another focus of counselling.

In mid‑August 2017 Ms Williams observed that since Mr Unwin had been housed in unit 12 at Casuarina prison and prescribed a mood stabiliser, he had presented as increasingly settled in counselling sessions. It is not clear to me whether Mr Unwin was taking the mood stabiliser at this time. Around the same time the SAMS notes stated that there had been a dramatic improvement in Mr Unwin's demeanour. It was put down to the fact that he was working. This was also the same period in which he was making inappropriate use of the telephone helplines. It is difficult to determine whether Mr Unwin's improved mood was due to one of these factors or to a combination of two or more of them.
In any event, it is very important that when Mr Unwin is detained on the CDO that he has access to pro‑social activities such as meaningful work and recreational activities such as his Xbox and craft which are likely to assist him to manage his stress.
Dr Wynn Owen is of the opinion that the counselling with Ms Williams should continue. He said that he thought it was worthwhile on an annual basis to reassess the therapeutic goals of counselling. He believes that counselling regarding coping mechanisms in order to avoid future decompensation is important. He also believes that there needs to be further work on drug and alcohol counselling and counselling around the ability to disclose sexual thinking in order to assist understanding how that impacts on Mr Unwin's libido.
In cross‑examination it was suggested to Dr Wynn Owen that counselling had failed Mr Unwin because he had been seeing Ms Williams for three years and despite a positive therapeutic relationship between them, he was still considered to be at a high risk of serious sexual offending. Dr Wynn Owen said that sometimes because of the lack of treatability of an individual, there was only a certain amount that could be achieved in counselling and that an expectation of substantial change may be unrealistic. In light of Mr Unwin's cognitive deficits, Dr Wynn Owen described this as 'potentially' being the position for Mr Unwin. In any event Dr Wynn Owen said that any learning from counselling would be relatively slow. That is why it has always been Dr Wynn Owen's opinion that the focus should be on finding an appropriate living situation for Mr Unwin which will enable him to live in the community with a significant amount of control and support. In Dr Wynn Owen's opinion the focus whilst Mr Unwin is in custody should be on assessing his ability to learn and change, rather than on expecting him to make substantial improvements from counselling alone.
Dr Wynn Owen supports Mr Unwin's reengagement in a substance abuse programme. He is of the view that anything which may improve Mr Unwin's understanding of the risks of substance abuse and what he can do to avoid it in future is potentially beneficial.
In evidence Ms Collyer confirmed that although Mr Unwin had been waitlisted for three programmes identified as being potentially beneficial for his general living skills and to prevent alcohol and drug use, he was unable to undertake these programmes due to him being under protection.
Dr Wynn Owen said that Mr Unwin's methadone abuse was not directly related to an increase risk of sexual offending. It was a way in which Mr Unwin decompensated and managed acute distress. Dr Wynn Owen acknowledged that a considerable amount of Mr Unwin's distress came from the fact that he was in prison, when he thought that he should be in the community and from things that happened to him whilst he was in prison.
Some of the issues which stress Mr Unwin in prison would not exist if Mr Unwin was in the community. However given his high risk of serious sexual offending, he will only be released into the community on a very strict supervision order. Such a supervision order is likely to have its own stressors and he is also likely to be stressed by other factors in his daily life. It is essential that I can be confident that he can manage his stress in an appropriate manner before he is released into the community or that his living arrangements will be sufficiently supportive and secure that the community will be protected his stress levels increase.
The conclusion which I drew from Ms Collyer's evidence in chief was that whilst it was a positive factor that Mr Unwin had continued to attend counselling with Ms Williams and it was positive that he was prepared on occasion to discuss very personal matters related to his offending, it was difficult to assess whether counselling had achieved any reduction in Mr Unwin's risk of serious sexual offending.
Ms Collyer said that there had been no internal review of Mr Unwin's counselling programme. She said that the outcome of the counselling relationship depended on Mr Unwin's willingness to participate in counselling in a consistent fashion. She said that this had not been evidenced by Mr Unwin over the preceding 12 months. She said that Mr Unwin's lack of responsivity as well as the change in prison placements which increased Mr Unwin's stress made it difficult to achieve the desired goals from counselling.
Ms Collyer said that she was not the appropriate person to comment on whether Ms Williams was the right person to continue counselling Mr Unwin. She said that would be a 'managerial decision'. Presently the proposal is that Ms Williams will continue to counsel Mr Unwin.
When I pointed out to Ms Collyer that it did not seem that there had been any progress from counselling in the last 12 months and asked her whether there was reason to believe that there was going to be progress in the next 12 months, she said that:
There is reason to believe that it could occur, but it is likely to be very small gains, and - and that is the nature of when you have long‑term, chronic patterns of behaviour, it's going to take a long time to address that (ts 460).
Ms Collyer said that the counselling period with Ms Williams was not a long time in the context of the whole of Mr Unwin's life. She said that it was not a long period of time in which to form a therapeutic relationship in which Mr Unwin was prepared to go beyond taking one step forward and then two steps back. She said that the fact that Mr Unwin had remained engaged in the therapeutic relationship suggested to her that there was something that he was gaining from it, but without being able to speak to him directly, she could not comment on what that was.

A record of Mr Unwin's daily behaviour

The SAMS record of daily activities, behaviour and responses was kept from 15 September 2016 - 12 December 2016, when Mr Unwin was moved to BRP. It was kept on a less regular basis but with greater analysis at BRP until he was moved back to Casuarina prison. From then it continued as a daily record until 31 August 2017.
Dr Wynn Owen said that the SAMS record was not the record which he had recommended during the 2016 review. He said that he was hoping that it would be possible to record Mr Unwin's behaviours, actions and activities in order to gain a clearer view of Mr Unwin's ability to care for himself. Dr Wynn Owen said that the record that he had suggested did not need to be kept for a full year. Dr Wynn Owen said that it could be kept for a period of a month or a couple of months. However to be useful it needed to specifically record Mr Unwin's activities.
Dr Wynn Owen said that the record of Mr Unwin's mood which was part of the SAMS records was useful to the extent that it indicated his reactions to stress. However the record did not assist to demonstrate whether Mr Unwin could care and manage daily activities for himself.
The other problem with the SAMS notes is that there is no evidence that they were provided to anybody, whether that was Ms Williams, medical staff or Dr Wynn Owen, to assist in their assessment and management of Mr Unwin.
The SAMS records have been of assistance to me in determining the 2017 review by giving me a clear picture of how Mr Unwin's mood fascilates and how he behaves in the prison environment when under stress. It is also informative of Mr Unwin's contemporaneous responses to events. However it is unnecessary for the SAMS records to be kept on a daily basis for the purpose of the next review.
If Mr Unwin is transferred to a prison where he is expected to perform daily tasks for himself it would be of assistance to have a record kept of his activities for the reasons and uses suggested by Dr Wynn Owen.

Pursuit of supported accommodation

A senior community corrections officer Ms Lisa Rathmann prepared a community supervision assessment dated 23 August 2017. Ms Rathmann also gave evidence at the 2017 review.
In the community supervision assessment Ms Rathmann outlined the steps that had been taken since the conclusion of the 2016 review to locate accommodation and community supports for Mr Unwin.
In August 2017 Ms Rathmann confirmed with Mr Unwin's manager at the Public Trustee that it was still prepared to provide funds from those it held on Mr Unwin's behalf to pay his rent for a period of six months. She was told that the Public Trustee would probably not pay 100% of his rental costs but would be prepared to pay a portion to subsidise his Centrelink benefits or any other income. The Public Trustee would fund a rental bond and start‑up costs as well. The six month limit was negotiable if it affected Mr Unwin's ability to find suitable accommodation.
The manager also confirmed that the Public Trustee would consider funding mentoring services if Mr Unwin did not have access to any other funding for the services.
Ms Rathmann reported that it was difficult to engage Mr Unwin in discussions about future accommodation options. It was not until 2 August 2017, after progress was made with the independent living assessment, that Mr Unwin told Ms Rathmann that he wished to explore accommodation options.
On 11 August 2017 Ms Rathmann spoke to Mr Unwin's mother. She advised that she was still willing to search for private rental accommodation for Mr Unwin and that she intended to do so in the upcoming weeks. She said that a particular real estate agency with whom she had spoken were not willing to provide Mr Unwin with a lease direct from custody. His mother felt that the success of obtaining a lease would be more likely if the Public Trustee would guarantee to pay six months rent. Ms Rathmann suggested to Mr Unwin's mother that she speak directly with Mr Unwin's trust manager if she located a specific rental property.
Ms Rathmann testified that she had not had any further contact with Mr Unwin's mother. There was no evidence before me that Mr Unwin had any potential private accommodation available to him in the community other than his mother's address, which has previously been found to be unsuitable.
Ms Rathmann testified that she is the only community corrections officer who is responsible for assisting and reporting on DSOs who are on CDO's. Consequently she does not have the time to pursue private accommodation options for Mr Unwin. Further, if she approached real estate agents she would have to disclose to them her role and this would prejudice Mr Unwin's ability to obtain a lease.[53]
[53] ts 502.
Ms Rathmann made inquiries with a number of psychiatric hostels to ascertain whether they would be prepared to offer Mr Unwin accommodation. Only one of the hostels was prepared to accept a referral for Mr Unwin. However there was currently a waitlist for accommodation at that hostel.
The only other option for accommodation for Mr Unwin was and is through the DSO supported accommodation programme.
Immediately before the conclusion of the 2017 review a property became available under the DSO supported accommodation programme. The property was a unit in a block of 20 units in suburban Perth. Because the availability of this unit came so late in the review process, it had not been assessed as suitable for Mr Unwin. It would have been necessary to delay the completion of the 2017 review for at least two weeks to ascertain whether the property was suitable.
I determined that as there were insufficient support, mentoring and security arrangements for Mr Unwin in the community and he had not been shown to be able to live independently, the availability of this property was not going to alter my decision on the 2017 review.
The problem with private accommodation or accommodation under the DSO supported accommodation programme is that such accommodation would not be appropriate for Mr Unwin unless it came with a network of support services. Mr Unwin could pay for some of these services himself or obtain some funding for them. However he is unable to obtain ongoing funding for the sort of services that would be required because he is ineligible for assistance through the NDIS.
The other fundamental difficulty is that until Mr Unwin transitions from a medium security prison to a pre‑release unit or equivalent and it is ascertained that he is capable of looking after his basis living needs, it would be contrary to Mr Unwin's interests and inconsistent with the protection of the community for Mr Unwin to be released to independent accommodation. Mr Unwin's history indicates and all the experts agree that Mr Unwin's serious sexual offending occurs in circumstances where he is under stress.
Mr Unwin's pattern of engaging in inappropriate behaviour is clearly seen from his prison record. Whenever he is in a stressful situation, whether of his own making or not, he behaves inappropriately in some way. This may be by lying in order to manipulate a better outcome for himself, engaging in sexualised behaviour, drug use or being demanding and irrational. As I said at the conclusion of the 2016 review, until Mr Unwin can demonstrate an ability to be resilient to stressors the community would not able to be protected by a supervision order. There is only one qualification I would make to that opinion having regard to Dr Wynn Owen's evidence, if highly supported accommodation was available to Mr Unwin it may be possible to protect the community by the support and security which such accommodation would offer rather than by Mr Unwin demonstrating greater resilience to stressors.

Completion of an independent living assessment

During 2017 Ms Rathmann approached a large number of services to find one that would be prepared to go into prison and perform an independent living assessment of Mr Unwin. It was not until July 2017 that she was able to identify an occupational therapist who was prepared to complete such an assessment. That occupational therapist, Ms Byrne, completed the assessment during the 2017 review.
Ms Byrne's conclusions are included in the chronology of events which appears earlier in these reasons. The positive aspect of the assessment is that Mr Unwin has some ability to perform basic living skills. However Ms Byrne has concerns about his ability to plan and to focus on tasks for more than a few minutes. She recommends that Mr Unwin complete a resocialisation programme whilst in custody and that after this he be reassessed to see whether he had learned to complete tasks from repetition of them.
Dr Wynn Owen said that in order for Mr Unwin to be ready for release at the next review, the independent living assessment needed to be analysed and Mr Unwin's strengths and weaknesses assessed. A plan needed to be developed to address the weaknesses. There needed to be regular monitoring of his improvements. For example, if it was considered that he had difficulty planning a meal, there should be an assessment of what he can and cannot do in that regard, a plan to teach him to do what he cannot do and the provision of training. Finally, there should be a method to monitor whether he has learnt the skill and if he has not, to re‑teach it to him, repeatedly if necessary until it is determined that he has learnt the skill or that he cannot learn it. In the latter case it would then be ascertained that he would have to be provided with accommodation that provided him with meals. The aim would be to ensure that his living conditions in the community did not stress him to a state where he decompensated.

Continuity in Mr Unwin's psychiatric care

Earlier in these reasons I commented on the lack of continuity in Mr Unwin's psychiatric care. I acknowledge that this was in part due to his transfer from Casuarina prison to BRP and his return to Casuarina prison. It has also been contributed to by Mr Unwin's attempts to use medical services to his own ends rather than only for medical purposes. Neither has it been helped by the conclusion that Mr Unwin does not have any major psychiatric illness. Finally it has not been helped by the fact that prisons do not have a formal programme of psychiatric care and treatment for Mr Unwin. There has been no attempt by the prison medical services to identify Mr Unwin's psychiatric, medical or nursing needs and to establish a programme to meet those needs. After the 2016 review, prison medical services could have established a schedule to do the best to ensure that by the 2017 review Mr Unwin had been treated with either a hormonal anti‑libidinal medication or a SSRI and that an assessment had been done to ascertain whether it had been effective in reducing his libido and/or managing his sexual interests and mood. This did not occur.

Assessment of readiness for transfer to self‑care

Mr Unwin was transferred to BRP with an intention to move him to the PRU once his pending charges had been finalised. This attempt was unsuccessful. Mr Unwin did not settle into BRP and he negotiated his return to Casuarina prison. It is not clear whether the failure was due to Mr Unwin's self‑defeating behaviour or whether there were valid reasons why he did not settle into BRP. This failure follows the failure of a previous attempt to transition him through Karnet prison farm.[54] What these failures show is that it will be difficult to prepare Mr Unwin for release into the community. That does not mean that further attempts should not be made. Dr Wynn Owen sees no benefit in keeping Mr Unwin in maximum security until he can demonstrate good behaviour for an extended period of time. An extended period of time in maximum security is, in Dr Wynn Owen's opinion, likely to increase Mr Unwin's frustration and increase his likelihood of decompensating.
[54] The transfer to Karnet was unsuccessful because Mr Unwin was housed with the perpetrator of abuse on him.
In this respect, I am pleased to note that Ms Rathmann testified that there are currently preliminary discussions with Karnet prison farm about a transfer to that prison.[55]
[55] ts 515.
Mr Unwin has indicated that his preference is be transferred to Karnet prison farm.
In order to be transferred he would have to be reclassified as a minimum security prisoner. Whether that occurs is out of Mr Unwin's control and out of the hands of Ms Rathmann or the COMU.

Mr Unwin's evidence

In addition to the matters to which I have already referred, Mr Unwin gave evidence about his daily living conditions and in particular the resources he has available to him in prison. The following points emerged from Mr Unwin's evidence:
(1)he had a very concrete view about what he had to do to facilitate his release from prison at the end of the 2017 review, being to participate in counselling with Ms Williams and complete an independent living assessment. He does not appear to appreciate, want to appreciate or have the intellectual capacity to appreciate the need for him to demonstrate the ability to control his mood and behaviour;
(2)for long periods he has been in custody he has been unemployed or underemployed. His more recent employment as a painter resulted in an improvement in his self‑esteem, an improvement in his general mood and demeanour and an increase in the money available to him to buy craft material which will further occupy his time. It is clearly in his and the community's interests that he maintain this employment;
(3)Mr Unwin's level of gratuities recently increased from $30 to $53 per week. This additional money will significantly assist Mr Unwin to purchase toiletries, telephone credit, hobby resources and additional food. Given that Mr Unwin is not being detained for punishment, it is only fair that he has access to these items;
(4)hobby materials are extremely important to Mr Unwin's distress management. He uses matches to make craft. It costs him $16.25 for a bag of matches and $8.90 for glue. Mr Unwin also uses colouring in books to occupy himself. It costs $16.25 for coloured pencils. He is required to fund these items from his gratuities or from the allowance he receives from the Public Trustee;
(5)although the Public Trustee is holding close to $100,000 in trust for Mr Unwin, he only receives a small amount of that money in instalments. At one point the Public Trustee advanced him $1,000 for DVDs, Xbox games, CDs, shoes and a stereo. However he was then required to repay the majority of it to the Public Trustee out of the monthly allowance that it pays him. This was because the Public Trustee felt that he was receiving too much of his money to pay for daily living expenses; and
(6)Mr Unwin has a serious nicotine addiction.

Conclusions

On behalf of Mr Unwin it was conceded that he remains a serious danger to the community. This concession is rightly made. Dr Wynn Owen's evidence, which I accept, was that over the past 12 months there had been no significant change in Mr Unwin's presentation. The trial of the SSRI was unsuccessful. His methadone use and perverse use of telephone helplines for sexual gratification was an indication of poor coping mechanisms even in a highly structured prison environment. He still evidenced dishonest and manipulative behaviours to achieve his own outcomes. Although he had adhered to counselling, it was not evident that progress had been made such that his reoffending risk was reduced. It was therefore Dr Wynn Owen's opinion that Mr Unwin's risk of serious sexual offending remained high unless he was subject to detention or community supervision.
Given that Mr Unwin remains a serious danger to the community, the Act s 33(1)(b) required me to affirm the CDO or rescind the CDO and make a supervision order.
On behalf of Mr Unwin it was submitted that the State had failed to provide adequate care and treatment for Mr Unwin and that enlivened a discretion in me to rescind the CDO and make no further order.
Regardless of my view of the standard of care and treatment provided to Mr Unwin, the Act s 33(1)(b) is clear that if, as I have found, Mr Unwin remains a serious danger to the community I must affirm the CDO or rescind the CDO and make a supervision order. I have no power to rescind the CDO and release Mr Unwin.
In relation to whether pursuant to s 33(1)(b) I ought to affirm the CDO or rescind the CDO and make a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[56]
[56] the Act s 33(3).
I concluded that even if I assumed that the accommodation available through the DSO supported accommodation programme was suitable for Mr Unwin, there were still impediments to his release in a manner that would ensure the adequate protection of the community. In particular, the evidence did not satisfy me that:
(1)Mr Unwin is capable of independent living in the community without significant stress being placed on him;
(2)there are sufficient supports and security arrangements available for Mr Unwin in the community; and
(3)Mr Unwin had been established on an SSRI treatment regime by the time of the conclusion of the 2017 review.
Without these matters being addressed prior to his release, it is likely that Mr Unwin would become distressed on his release, with a corresponding increase in the likelihood of him committing a serious sexual offence. For these reasons I affirmed the CDO.
I accept that a number of the outstanding matters are outside of Mr Unwin's control. I accept that even if these matters are resolved by the time the next review occurs, it may well be that other matters are outstanding. For example, there may not be any accommodation for him at the next review. The difficulties for Mr Unwin were summarised by his counsel in the following terms:
So, we're now seven and a half years down the track of the Department having the care, control and treatment of Mr Unwin and we end up in this perpetual cycle of nothing is ever ready because there's always this one little bit that needs to be added onto the next bit which needs to be added onto the next bit which is always contingent upon accommodation.[57]
I acknowledge these difficulties. The control, care and treatment of Mr Unwin is the responsibility of the Department of Justice. I have in the past and will next make recommendations in respect of those matters but I can do no more than make recommendations.
[57] ts 595.

The next two years

All of the matters which I have identified in my reasons for decision at the conclusion of the 2016 review are ongoing matters that should be addressed over the next two years.
Probably the most important matter is for Mr Unwin to be given an opportunity to prove that he is capable of stable living in a minimum security prison and to demonstrate that he is capable of self‑care. If deficits are identified in his ability to care for himself, he should be given the opportunity to learn new skills and to practice them. I do not underestimate the difficulty of doing this. As I have already indicated, two previous attempts to transition Mr Unwin to self‑care have been unsuccessful.
In part, the successful transition of Mr Unwin to a new environment needs to ensure that he is appropriately occupied with work and craft activities. He should be provided with appropriate and reasonably priced craft resources.
Counselling should continue, preferably with Ms Williams. An appropriate review of the effectiveness of the counselling should occur and changes made to the processes if they are warranted.
If possible, Mr Unwin should be given the opportunity to undertake a substance abuse programme.
In Mr Unwin's management over the next two years, it would be beneficial if Dr Wynn Owen was consulted over his care and treatment.
If Mr Unwin is transitioned to a minimum security prison, a daily record of Mr Unwin's behaviour over a period of time may assist to identify the skills which he has, those which he does not have but which he needs and his capacity to learn new skills.
Closer to the next review, Mr Unwin should be encouraged to trial a SSRI. When that occurs he would benefit from having the advice and encouragement of a treating psychiatrist who he knows.
Further concerted attempts should be made to obtain supported accommodation and mentoring services for Mr Unwin closer to the next review.
As I said at the conclusion of the 2016 review, it is important that Mr Unwin's management and preparation for release is progressed over the whole of the period leading up to the next review, rather than in the month or couple of months prior to the next review hearing.