Director of Public Prosecutions (WA) v West [No 5]

[2018] WASC 33

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- WEST [No 5] [2018] WASC 33

CORAM:   CORBOY J

HEARD:   30 JUNE 2017

DELIVERED          :   30 JUNE 2017

PUBLISHED           :  2 FEBRUARY 2018

FILE NO/S:   DSO 4 of 2012

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

DARREN HARLEY WEST
Respondent

Catchwords:

Dangerous sexual offender - Fourth review of continuing detention order - Whether respondent a serious danger to the community - Whether continuing detention order should be affirmed

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 33

Result:

Continuing detention order affirmed

Category:    B

Representation:

Counsel:

Applicant:     Ms S Markham

Respondent:     Mr S F Rafferty

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Barone Criminal Lawyers

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

Director of Public Prosecutions (WA) v West [No 3] [2015] WASC 188

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

The State of Western Australia v West [2013] WASC 14

1. CORBOY J: In 2013, the respondent was found to be a serious danger to the community within the meaning of s 7(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). A continuing detention order was made under s 17(1) (CDO).

2. I conducted the fourth review of the CDO and held that the order should be affirmed.  These are my reasons for affirming the order at the review hearing.

Background

1. The respondent's personal circumstances and his history of offending were set out in my reasons for making the CDO:  The State of Western Australia v West [2013] WASC 14 [4] ‑ [17]. The respondent was sentenced to a further term of imprisonment after the CDO was made - in May 2014, he was sentenced to 2 years' imprisonment for an offence involving the sexual penetration of a child. That offence occurred in 2001.

2. Hall J conducted the second review of the CDO.  His Honour noted that the respondent's ability to self‑manage was limited and the factors contributing to the risk of him reoffending, including psychopathic traits, were unlikely to improve over time:  Director of Public Prosecutions (WA) v West [No 3] [2015] WASC 188 [33].

3. Hall J also conducted the third review of the CDO.  The respondent completed an Intensive Sexual Offender Treatment Programme (ISOTP) in the period between the second and third reviews and it appeared that he had gained some insight into his offending and its seriousness as a consequence of participating in the programme.  However, Hall J again observed that the factors contributing to the risk of the respondent reoffending were not particularly amenable to improvement with psychological counselling, and any plan to release him to the community would necessarily involve a high level of external control.  In practice, that would mean regular and constant monitoring, both by personal contact and GPS, and the monitoring would need to be effective in preventing any relapse into alcohol use:  Director of Public Prosecutions (WA) v West [No 4] [2016] WASC 205 [41].

4. His Honour noted that a number of options for facilitating the respondent's possible release to the community were canvassed in the review:

   (a)moving him to Eastern Goldfields Regional Prison (EGRP);

   (b)placing him on 'wait lists' for public housing;

   (c)attempting to identify a male Indigenous mentor;

   (d)providing education and skills training to improve his prospects for employment;

   (e)allowing day release or participation in work parties.

Psychiatric evidence

1. Dr Wojnarowska provided a psychiatric report for the fourth review.  She has previously assessed the respondent.  Her psychiatric diagnosis has not changed over time - there was evidence of anti‑social personality disorder, alcohol use disorder and sexual deviance but the full diagnostic criteria for paedophilia were not met. 

2. Dr Wojnarowska considered that the respondent's offences against young girls were opportunistic.  His victims were vulnerable because of their age and their cultural relationship to him.  They were affected by alcohol or drugs when the offences were committed. 

3. Dr Wojnarowska's formulation of the respondent's risk of reoffending has also not changed.  In her opinion, the respondent continued to be at a high risk of sexual reoffending.  The risk was associated with the presence of anti‑social personality and psychopathic traits, sexual deviance and alcohol use.  The respondent was resistant to therapeutic interventions due to his deeply entrenched beliefs about women, sense of entitlement and, possibly shame.  His psychopathy was unlikely to change over time. 

4. Dr Wojnarowska noted that the psychologist who had conducted counselling sessions with the respondent after the third review reported some change in the respondent's attitude in one session when he talked openly about, and accepted responsibility for, his offending for his offending for the first time.  However, the psychologist also reported that the respondent considered he did not require further counselling now that he had spoken about the offences. 

5. Dr Wojnarowska advised that during her assessment the respondent continued to blame the victims and alcohol for his offending.  Further, he demonstrated misogynistic attitudes, had no sound plan to prevent offending and did not accept that he posed a risk to the community.  As Dr Wojnarowska observed, the respondent's apparent recent willingness to discuss his offending provided a basis for further progress in his treatment.  However, his management in the community would depend, along with other factors, on his preparedness to engage openly in counselling and develop appropriate strategies to reduce the risk of reoffending.  For example, the respondent's plan for preventing alcohol abuse was rudimentary.  In Dr Wojnarowska's opinion, the consumption of alcohol was a 'huge' risk factor that would require external control (ts 467 and ts 470).

6. According to Dr Wojnarowska, the respondent recognised that he was more likely to reoffend if he returned to the Warburton Aboriginal Community where he had committed his offences.  Dr Wojnarowska agreed, stating that she would have 'major concerns' if the respondent returned to Warburton or was released to another remote community (ts 457).  The respondent's previous lifestyle at Warburton provided the environment in which his offending occurred. 

7. Dr Wojnarowska considered that the respondent required further counselling and treatment to build on the apparent change in attitude to his offending.  In her opinion, he could not adequately self‑manage the risk of re‑offending but there were some internal protective factors.  He had apparently gained some insight into risk scenarios, the wrongful and serious nature of his offending and his responsibility for the offences.  He had also expressed a strong desire not to return to prison.  However, Dr Wojnarowska considered that those factors required reinforcement with external controls and anti‑libidinal medication. 

8. Dr Wojnarowska considered that whether the respondent's risk of sexual reoffending could be managed in the community under a supervision order depended 'greatly' on the type of accommodation provided.  In her opinion, supported accommodation in the Perth metropolitan area would be sufficient to manage the risk if other external controls were imposed.   

Psychological report

1. A psychological report was provided by Mr Summerton, a counselling psychologist with the Forensic Psychological Service, Department of Corrective Services. 

2. He considered that the respondent had gained little benefit from his participation in ISOTP in 2014 and continued to have only limited insight into his offending.  The respondent had commenced individual counselling following the third review of the CDO.  The counselling focus was on developing a viable plan for the respondent's release to the community and management of the risk of reoffending.

3. The respondent had identified alcohol use as a major precursor to offending in material reviewed by Mr Summerton for the purpose of his report.  However, during his assessment the respondent denied that he had been affected by alcohol when he committed the offences (ts 475).  Mr Summerton was uncertain as to the respondent's responses about the link, if any, between his risk of offending and alcohol use in light of that denial.  He also considered that the respondent's denial, if accepted, would raise other issues concerning the causes of his offending (ts 481). 

4. Mr Summerton considered that the respondent's plans for dealing with alcohol use were under‑developed and inconsistent.  Similarly, the respondent did not have a viable strategy for dealing with his sexual attraction to teenage girls. 

5. Mr Summerton identified a number of features of the respondent's attitude towards his offending.  In summary, the respondent consistently externalised his responsibility for the offences and minimised their seriousness; there had been little change in his limited insight into his offending; and his plans to address risk factors was rudimentary.  Mr Summerton also considered that his response to counselling was conditioned, in part, by a perception of what was expected of him.  For example, he thought the respondent's change in attitude to his offending at one of his counselling sessions might be explained by a desire to be moved to the EGRP (ts 474).

6. Mr Summerton concluded that:

   Since his 2016 Annual Review, [the respondent] has engaged in a number of counselling sessions with the primary aim of reinforcing risk management strategies and assisting him to develop viable release plans.  He has demonstrated relatively limited motivation for counselling and his release plans remain quite basic.  Various identified treatment targets have consistently proved to be resistant to therapeutic input and this is unlikely to change.  [The respondent] is an individual who is likely to require consistent external monitoring in relation to key risk areas pertaining to alcohol consumption and contact with children in the age range of his victims.

Community supervision assessment

1. The community supervision assessment report provided by Adult Community Corrections advised that in June 2016 an interagency case conference had been held to consider the possibility of the respondent being relocated from Acacia Prison to the EGRP.  It was accepted that transferring the respondent to the EGRP would facilitate engagement with his family.  However, Mr Summerton indicated in his evidence that it was unlikely the respondent would continue to receive individual counselling on his relocation to the EGRP. 

2. A further interagency case conference was held in February 2017.  The Assistant Superintendent Operations of the EGRP advised that the respondent was unable to have contact with another prisoner residing at the prison.  Accordingly, it would be necessary for the respondent to be accommodated in a particular unit.  The unit was not available at that time because of construction work at the EGRP.  It was estimated that the respondent's transfer would be completed around early May 2017.

3. Enquiries had been made by Adult Community Corrections about the possibility of the respondent being accommodated in the Perth metropolitan area, Kalgoorlie, Warburton and Laverton.  No suitable accommodation had been identified at any of those locations. 

4. The review hearing was adjourned after the evidence of Dr Wojnarowska and Mr Summerton to enable a further report to be prepared on the availability of suitable accommodation for the respondent in the Perth metropolitan area.  Ms Rathmann, a senior community corrections officer, subsequently provided an updated community supervision report (Exhibit 2).

5. Ms Rathmann reported that the respondent had expressed concern about residing in Perth.  He considered that he would be isolated from family members and preferred to live in Kalgoorlie. 

6. Ms Rathmann advised that no suitable accommodation was available for the respondent in Perth or Kalgoorlie.  He was wait‑listed with the Western Australian Housing Authority for accommodation in Kalgoorlie.  There was also an indication that he might obtain accommodation in Perth in the future as part of the Uniting Care West DSO Supported Accommodation Program.

Conclusion

1. Section 33 of the DSO Act provides for the review of a continuing detention order. The court must rescind the order if it does not find that the person who is subject to the order remains a serious danger to the community. If the court finds that the person remains a serious danger to the community, it must affirm the continuing detention order or rescind the order and make a supervision order. The paramount consideration in determining whether to affirm the continuing detention order or make a supervision order is the need to ensure adequate protection of the community.

2. Section 7 of the DSO Act provides that before a court may find that a person is a serious danger to the community, the court must be satisfied there is an unacceptable risk that the person would commit a serious sexual offence if the person were not subject to a continuing detention order or a supervision order.

3. I accepted the opinions expressed by Dr Wojnarowska and Mr Summerton in concluding that the CDO should be affirmed. In particular, I accepted the opinion of Dr Wojnarowska that the risk of the respondent committing a serious sexual offence was high. I found that the respondent remained a serious danger to the community within the meaning of s 7(1) of the DSO Act on all of the evidence presented in the review. There has been some change in the respondent's attitude to his risk of reoffending since the CDO was made as he now accepted that it would not be appropriate for him to return to Warburton. However, his appreciation of the risk posed by residing in Warburton may still reflect a belief that his victims were to blame for his offending. It is difficult to reach a firm conclusion about the respondent's understanding of the causes and seriousness of his offending in light of the evidence of Dr Wojnarowska and Mr Summerton.

4. I concluded that the community could not be adequately protected if the CDO was rescinded and a supervision order was made.  In my view, the evidence in the review established that the respondent had only a rudimentary understanding of the steps required to manage his risk of offending.  I agreed with the finding made by Hall J in the third review that a high level of external control and supervision would be required if the respondent was to be released from custody.  Plainly, the necessary degree of supervision requires that the respondent be provided with supervised and supported accommodation. 

5. In relation to the plans to assist the respondent's release to the community that were referred to by Hall J in the third review, the evidence disclosed that arrangements had been made for the respondent to be transferred to the EGRP and he was wait‑listed for public housing in Kalgoorlie.  A possibility for future accommodation in Perth had also been identified.  However, there was no evidence that attempts had been made to identify a culturally appropriate mentor for the respondent or that he had been able to participate in skills training or day release or work participation programmes.  Obviously, those are matters that would facilitate his progress towards release.  It was also of concern that the respondent may not be able to access individual counselling while at the EGRP.  It was apparent from Dr Wojnarowska's evidence that the respondent would benefit from ongoing psychological counselling, preferably on an individual rather than a group basis.