Director of Public Prosecutions (WA) v West [No 4] - [2016] WASC 205

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- WEST [No 4] [2016] WASC 205

CORAM: HALL J

HEARD: 30 MAY 2015

DELIVERED : 30 MAY 2016

PUBLISHED : 5 JULY 2016

FILE NO/S: DSO 4 of 2012

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
DARREN HARLEY WEST
Respondent

Catchwords:

Dangerous sexual offenders - Annual review - Whether serious danger to the community - Whether supervision order or continuation of detention order appropriate - Need for a detailed treatment/pre-release plan

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 33

Result:

Expressly decline to rescind continuing detention order

Category: B

Representation:

Counsel:

Applicant: Ms K Robinson
Respondent: Ms M R Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Mara Barone Lawyers

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

Director of Public Prosecutions (WA) v West [2013] WASC 14
Director of Public Prosecutions (WA) v West [No 2] [2014] WASC 83
Director of Public Prosecutions (WA) v West [No 3] [2015] WASC 188

HALL J: This is the third annual review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) by Corboy J on 23 January 2013: Director of Public Prosecutions (WA) v West [2013] WASC 14. Previous annual reviews determined that Mr West remained a serious danger to the community and the continuing detention order was not rescinded: Director of Public Prosecutions (WA) v West [No 2] [2014] WASC 83 and Director of Public Prosecutions (WA) v West [No 3] [2015] WASC 188.
On an annual review the court must determine whether a person who is subject to a continuing detention order remains a serious danger to the community: s 33(1) DSO Act. If the person is no longer a serious danger to the community the court must rescind the continuing detention order. However, if the court finds that the person remains a serious danger to the community it must either expressly decline to rescind the detention order, or rescind the order and make an order that the person be released into the community on conditions that the court consider appropriate: s 33(2) DSO Act. In making a decision as to whether a person who is a serious danger to the community should continue to be detained or be released on a supervision order the paramount consideration is the need to ensure adequate protection of the community: s 33(3) DSO Act.
On the hearing of this review there was no dispute that Mr West remained a serious danger to the community. All of the expert evidence supported that conclusion. The issue was whether Mr West could be released into the community on a supervision order with conditions that would adequately protect the community from the risk that he would commit further serious sexual offences. In this regard, counsel for Mr West accepted that the options were limited and that the focus of the hearing should be on developing a plan for the next 12 months that would maximise Mr West's chances of being released at the next annual review. It was implicit in this concession that release into the community at this point in time was not a viable option.
At the conclusion of the hearing I was satisfied on the available evidence that adequate protection of the community could not be ensured by releasing Mr West on a supervision order. Accordingly, I expressly declined to rescind the continuing detention order. These are my reasons for coming to that conclusion.

Background

Mr West's personal history and his history of offending were detailed by Corboy J in Director of Public Prosecutions (WA) v West [2013] WASC 14 [4] ‑ [17].
While subject to the detention order Mr West was sentenced to a further term of imprisonment. On 30 May 2014 he was sentenced in the District Court to 2 years' imprisonment, with parole eligibility, in respect of sexual penetration of a child. That offence occurred on 5 April 2001. He was serving that sentence at the time of his last annual review. However, an annual review was still required pursuant to s 29(2) of the DSO Act. As I noted at the time of that review, it was not academic because in the event Mr West was found suitable for parole he could not be released unless the continuing detention order under the DSO Act had been rescinded. Furthermore, it was important to assess the progress of treatment and what options should be pursued to maximise the possibility of release on a supervision order in the future.
At the time of the last annual review, Mr West was assessed by a psychiatrist - Dr Wojnarowska. She considered that, given Mr West's modest cognitive abilities and demonstrated lack of insight, he was not likely to benefit from further treatment in custody. Indeed, she said that the gains he had achieved may be lost and that he could become institutionalised with further incarceration. She was of the view that close supervision would be the most important aspect of Mr West's community management if subject to a supervision order. Such supervision should include strict curfew conditions, monitoring with a GPS tracking device, restricting on attending places that sell alcohol and frequent random urinalysis tests.
At the last annual review the accommodation proposal under consideration was that Mr West would return to his home community of Warburton to reside with his immediate family. Dr Wojnarowska expressed a number of concerns with that proposal. These included that Warburton's small size would restrict Mr West's movement, that many young people reside in the community which would mean that he could not attend many areas beyond his house, that one of his victims currently resided in Warburton and that he would become bored given the scarcity of employment opportunities in that community. There was also a concern that local police were 'on call' outside of normal hours rather than being on shift. That effectively meant that any curfew or GPS breaches could not be responded to quickly. Dr Wojnarowska believed that Mr West could be managed on a supervision order but that Warburton was not the right environment. She suggested that an environment which offered employment opportunities and a high degree of supervision and structure would be appropriate.
I concluded at the last annual review that whilst it was understandable that Mr West wished to return to his home country and that there were advantages in him doing so in terms of having family support, in very many other respects Warburton was unsuitable. The proposed residence was in close proximity to places where children resided and congregated. GPS monitoring was not possible at Warburton and thus there was no practical way of monitoring Mr West's movements in the community. Limited police resources would make it practically impossible to control his movements, use of alcohol and interaction with children. Accommodation in other locations, for example Kalgoorlie, was not available at the time of that review.

Evidence on this annual review

At the hearing of this review the DPP tendered a book of materials. There was no objection to the tender. In addition to the historic materials the book included the following:
(1)Prison records.
(2)A Department of Corrective Services Individual Management Plan dated 21 April 2016.
(3)A letter from the Prisoners Review Board dated 21 May 2015.
(4)A psychiatric report by Dr Gosia Wojnarowska dated 17 May 2016.
(4)A Treatment Progress Report by Ms Vanessa Rankin, Senior Clinical Psychologist dated 29 April 2016.
(5)A Community Supervision Assessment by Ms Jane Henshall, a Senior Community Corrections Officer with the Department of Corrective Services dated 20 May 2016.
The applicant called Dr Wojnarowska, Ms Rankin and Ms Henshall to give oral evidence.
Mr West elected not to give or adduce any evidence on the application.

Psychiatric evidence - Dr Wojnarowska

Dr Wojnarowska interviewed Mr West at Acacia Prison on 7 May 2016. She reported that it was difficult to obtain information in relation to the specifics of treatment gains. It was her impression that Mr West had difficulty in answering these questions as he did not know the answer to them. Alternatively it was possible that he did not understand the questions even when they were presented in short and simple versions. He agreed that he had an alcohol problem and that it contributed to his past offending. However, he told Dr Wojnarowska that he had learnt his lesson and in future would stay away from young girls, not drink and stay at home.
When Dr Wojnarowska asked Mr West how he would be able to avoid alcohol in the community he said that he planned to live in a dry community where there were not many young people. He then suggested that his past offending had occurred because the victims had come to steal petrol from him and that it was their fault. He said that he did not plan to return to Warburton until his 'parole' was finished.
When asked what he had learned about relationships with women he said that it was important to have a 'good woman' and that he would be advised on this matter by elders in his community. He then contradicted himself by saying that he already had 'a woman' who he could live with in Kalgoorlie.
In her report, Dr Wojnarowska said that Mr West struggled to accept that what he had done in the past was wrong. He said that he had learnt during programmes that he should 'walk away' from the places where young females congregate. However, there was no acknowledgement that his past offending was psychologically and physically harmful to his victims.
Mr West's position was that he had made progress and did not pose any risk to the community. However, he was unable to provide Dr Wojnarowska with any details about his progress apart from repeating what he had already stated during past assessments. He could not provide a specific management plan once released apart from 'staying away from young women and alcohol'. He had limited understanding of a supervision order and thought that he would be 'on parole' because he was drinking.
Dr Wojnarowska's impression was that at times Mr West provided random answers to her questions and that he wanted to terminate the interview as soon as possible because he felt uncomfortable with its content. It was possible that he had some insight that his poorly formulated management plan would not be sufficient to convince Dr Wojnarowska that he posed no risk to the community.
Dr Wojnarowska was of the view that Mr West engaged with the interview on a superficial level only. His answers were brief and when specific questions about his treatment were asked he was avoidant of answering by changing the subject. When open‑ended questions were asked his speech was rambling, containing irrelevant details and not conveying information. He was an unreliable historian with cognitive distortions in relation to his sexual offending.
Dr Wojnarowska has assessed Mr West in the past. Her psychiatric diagnosis has not changed since assessments made in 2013 and 2015. She continues to be of the view that there is evidence of anti‑social personality disorder, alcohol use disorder and sexual deviance. However, the full diagnostic criteria for paedophilia are not met.
In regard to the assessment of the risk of reoffending, Dr Wojnarowska noted that alcohol use is a major factor. Although he has accepted this association, at times he has regressed to believing that he was the victim who has been tricked by women who were demanding petrol and alcohol from him. Mr West also has a history of impulsivity and has proved to have a limited ability to adhere to his community or prison's expectations of him. His future plans are not well formulated. Dr Wojnarowska was also concerned that Mr West's engagement with the agencies that are supposed to supervise him is likely to be inconsistent and superficial. His offending history and strong anti‑social traits suggest that he would be reluctant to disclose important information to relevant parties.
Dr Wojnarowska concluded her report by saying that Mr West continues to be at high risk of sexual offending if not subject to a continuing detention order or a supervision order. In the event that the detention order was not rescinded and Mr West continued to be detained in custody, Dr Wojnarowska recommended a transfer to the Eastern Goldfields Prison. She said that this move would assist Mr West in re‑establishing his family connections and would increase his chances of securing suitable accommodation. She said that if Mr West was to be released into the community he would need to be closely supervised with a low tolerance for breaches, especially for those related to alcohol consumption. She noted that such type of supervision, which should include GPS monitoring, was unlikely to be available in a remote community. Whilst Mr West has mostly lived in remote communities and being part of one is a protective factor for him, such communities restrict the ability to adequately supervise him.
In oral evidence Dr Wojnarowska said that release to Kalgoorlie would be the best option because it was much closer to Mr West's traditional lands and that would facilitate contact with his family members, but would also provide him with adequate supervision and management. Whilst Perth was also a possible option, Dr Wojnarowska thought this was less desirable as Mr West had only lived in Perth briefly and was unlikely to be able to cope in such an environment without family support. However, in cross‑examination she accepted that Mr West may be capable of management in Perth and that that was not an option that should be ruled out.
Dr Wojnarowska doubted that psychological counselling in a prison environment would be beneficial. The only form of counselling that may be useful would be in the form of support in the event that Mr West was released into the community. Other community support such as an Aboriginal mentor could also be beneficial. Some of the difficulties that Mr West may have had in talking about appropriate sexual relationships may have been cultural and an indigenous male mentor may be able to assist in this regard.
Dr Wojnarowska also accepted that some of the difficulties that Mr West has had in understanding the possible terms of a supervision order could be overcome by having someone explain it to him in his own language. Time could be spent educating him about the role of the orders and preparing him for release.
In cross‑examination, Dr Wojnarowska accepted that a move to the Eastern Goldfields Prison would not be beneficial unless efforts were made by the Department of Corrective Services to facilitate contact between Mr West and his family. The distance between Warburton and the prison would remain significant and it could not simply be assumed that, without some assistance with travel arrangements or video links, meaningful contact with the family would occur.
Dr Wojnarowska did not support a release to Warburton because she had concerns about the availability of GPS monitoring and the availability of local police to respond to any breaches. She also noted that there are many unsupervised young children on the streets in Warburton and it would be very difficult to monitor a non‑contact condition.

Treatment Progress Report - Vanessa Rankin

Ms Rankin is a Senior Clinical Psychologist employed with the Forensic Psychological Service of the Department of Corrective Services. For the purposes of preparing the report for this review, she interviewed Mr West on 18 April 2016 and also consulted with Mr West's treating psychologist.
I will only refer to treatment progress in the last 12 months. Mr West's prior history of treatment has been detailed in earlier decisions.
As noted earlier, Mr West received a further sentence of 2 years' imprisonment for sexual offences on 30 May 2014. Prior to that time he had been receiving individual psychological counselling sessions. Those sessions were terminated following the sentencing due a lack of resources. Those sessions included meeting some of the requirements of an Intensive Sexual Offender Treatment Programme. It would seem that because the status of Mr West changed from being detained under the DSO Act to being a sentenced prisoner he was no longer considered eligible to access the limited resources available. This is unfortunate, however the consensus of opinion is that due to Mr West's personality type there is little that can be achieved from counselling that focuses on his past offending. There may be benefit in counselling which is more focused on easing a transition to release in the community.
In her report, Ms Rankin noted that Mr West had not engaged in any treatment since the last annual review and appeared to have retained limited content from the ISOTP. She said that although Mr West recognises the role that alcohol played in his sexual offending he continues to externalise blame to others. He also continues to hold rigid stereotypical views in relation to women tempting him with alcohol and leading him to sexually offend. His concrete thinking style likely has a negative impact upon his ability to generalise concepts he has learnt in treatment to new situations he will face in the community. Ms Rankin said that Mr West does not represent as an individual who would benefit significantly from ongoing intensive intervention. He would likely benefit from contact if placed in the community to monitor his adjustment and discuss risk management issues. This would involve contact in the months leading up to his next annual review to assess and refine his risk management strategies.
Ms Rankin said that Mr West's plans for release are primarily avoidance based and rely heavily on his ability to assert himself to peers in relation to alcohol misuse. His skills in this regard are largely untested, which makes it difficult to determine his ability to abstain from alcohol. Risk management strategies to curb his misuse of alcohol will necessarily depend on external controls, such as regular random breath testing, if he is released to the community.

The Community Supervision Assessment Report - Jane Henshall

Ms Henshall is a Senior Community Corrections Officer with the Public Protection Unit of the Department of Corrective Services. She prepared a Community Supervision Assessment Report for Mr West dated 20 May 2016.
In her report, Ms Henshall considered a number of possible accommodation options, including the Warburton community. At the time of writing her report notification had not been received from Warburton that they would grant permission for Mr West to live there. However, in oral evidence Ms Henshall confirmed that such notification had now been received. The notification was in general terms and did not identify a particular house. Further assessment work would be required once a house had been identified.
The concerns with Warburton that were raised on the previous annual review continued to exist. In particular, although further testing had not been done, there was no reason to think that GPS monitoring would be available at Warburton. Police resources in that community remained limited and accordingly it would be almost impossible to monitor Mr West's movements. The existence of unsupervised children and numerous areas where children reside and congregate would also create difficulties.
Ms Henshall also considered other options, including two smaller more remote communities in the wider area of Warburton. However, the councils of both of those communities had denied Mr West permission to reside in them.
The other options considered by Ms Henshall were Kalgoorlie or Perth metropolitan area. Mr West would have to rely on public housing to live in either of those locations. In oral evidence, Ms Henshall said that the Department of Housing had a policy that precluded persons released on a supervision order under the DSO Act from residing at any departmental property. Whilst this policy had not been confirmed in writing Ms Henshall understood that it remained in operation. Thus, even if Mr West came to the top of the waiting list for public housing, it is unlikely that he would be offered such a placement. A limited number of public houses have separately been made available by the Department of Housing through Uniting Care West under the DSO Supported Accommodation Programme. However, of the six residences that were agreed upon, only four had been provided and those four are already occupied. These residences are in Perth, are in high demand and none were available at the time of the hearing of the review. Nor were any of them likely to become available in the short term. The possibility of other short term accommodation at Aboriginal hostels was also considered, however such hostels were unsuitable due to the number of children who reside at them.

In regard to the availability of an appropriate mentor to assist Mr West in understanding the terms of an order and aiding his transition into the community, Ms Henshall said that resources were not presently available for such an option. She also noted that finding a person who was both willing and capable of performing the role may be difficult. However, she accepted that the benefits of such an option could not be discounted because it had not been tried.
In terms of the limited resources Ms Henshall also confirmed that she was the only Community Corrections Officer allocated to management of offenders detained under the Act in Perth. There are approximately 20 such detainees presently and this meant that her ability to meet with the detainees and prepare them for release was significantly strained. She is the only person available to prepare community assessment reports, including investigation of accommodation options.

Findings

It is clear on the evidence that Mr West remains a serious danger to the community. This was not disputed on the hearing. The issue was whether the risk of reoffending can be adequately managed in the community on a supervision order.
Mr West remains at high risk of reoffending. The factors that contribute to that risk include psychopathic traits that are not likely to improve over time. These traits are also not particularly amenable to improvement with psychological counselling. Mr West has gained some insight into his offending and to relevant risk factors, however his ability to self‑manage is limited. Any plan to release him into the community needs to involve a high level of external control. As I noted on the last occasion, in practical terms this means regular and constant monitoring, both by personal contact and GPS. This monitoring would need to be effective in preventing any relapse into alcohol use. It is also desirable that there be opportunities for employment to avoid the risk of boredom.
Accommodation is a significant issue for Mr West. He has spent most of his life in remote communities and in many respects there are positive aspects to him being released to such a community, including the ability to re‑engage with cultural practices and be closer to family supports. However, there are also significant negative factors regarding these communities. Two of them have refused applications by Mr West to reside in them. The third, Warburton, is unsuitable for the reasons I have referred to earlier. In these circumstances the only viable option for Mr West is to be released, at least initially, to accommodation in Perth or Kalgoorlie. Release into these urban areas would enable close supervision and the use of GPS monitoring. If this supervision proved to be successful then consideration might be given to Mr West moving to one of the more remote communities that have been referred to. The unavailability of accommodation suitable for Mr West in either Kalgoorlie or Perth is a critical impediment to him being released into the community. It is important that efforts to identify suitable accommodation continue over the next 12 months.
There has been very little change to Mr West's position in the last 12 months. Psychological treatment has effectively ceased and, in the absence of any clear plan for release, there has been no training or education focused on this objective. Furthermore, as Mr West is housed in a metropolitan prison, contact with his extended family has been extremely difficult and, indeed, there has been little if any contact in the last 12 months. There is a real danger in these circumstances that Mr West will become institutionalised and become less suitable for release into the community on any basis.
In the course of evidence, a number of options were canvassed that could increase Mr West's potential for release at the next annual review. The following should be considered for inclusion in any treatment or management plan for Mr West for the next 12 months:
(1)movement to Eastern Goldfields Prison. Whilst Eastern Goldfields is still a considerable distance from Warburton it would afford a much better opportunity for him to receive visits and make contact with his extended family. Any plan should also include efforts to facilitate contact by providing his family with assistance in making travel arrangements, waiving telephone charges and making available video links or internet conferencing. Any move to Eastern Goldfields should not, however, exclude consideration of Perth based accommodation options;
(2)all possible accommodation options, including in Kalgoorlie and Perth, should be reviewed. This may include placing Mr West onto 'wait lists' for public housing either directly or through the DSO Support Accommodation Programme. Some of these inquiries should be pursued early to avoid the almost inevitable failure of enquiries that are only made in the last month or two before an annual review;
(3)efforts should be made to identify a male indigenous mentor. This person might be a corrections officer. Ideally this person could assist Mr West in understanding any conditions that would be imposed on him if he were to be released into the community and the consequences that would follow non‑compliance with these conditions. The mentor could also assist Mr West in identifying and acquiring some of the skills required to negotiate life in the community. Preferably the mentor would be available to continue with the relationship in the event of Mr West's ultimate release;
(4)education and skills training to improve Mr West's options for employment in the event he is released. There should also be training in life skills to ease a transition into the community, particularly if this is likely to be to an urban area;
(5)consideration should be given to increasing visits over time, allowing day release or work party participation. Presently these options are limited because all DSO's are treated as medium security prisoners (regardless of how long they are detained or what progress they make). This is a significant impediment to establishing a meaningful gradual release plan. It is also inconsistent with the fact that detention under the DSO Act is for 'control, care and treatment', (s 17(1)(b)), not for punishment. The rules preventing participation of DSO detainees in such programmes should be reviewed.

Conclusion

I am satisfied that Mr West remains a serious danger to the community. I am also satisfied that his risk of reoffending cannot, at present, be adequately managed if he is released on a supervision order. I am satisfied that there are no conditions that could be imposed at present that would reduce to an acceptable level the risk that Mr West could reoffend.
For those reasons, at the hearing of this review, I expressly declined to rescind the continuing detention order.