Director of Public Prosecutions (WA) v White
[2013] WASC 417
•20 NOVEMBER 2013
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- WHITE [2013] WASC 417
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 417 | |
| Case No: | DSO:4/2013 | 21 OCTOBER 2013 | |
| Coram: | JENKINS J | 20/11/13 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | The respondent is a serious danger to the community Continuing detention order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) STEPHEN NEIL WHITE |
Catchwords: | Criminal law and procedure Dangerous Sexual Offenders Act 2006 (WA) Application for continuing detention order Whether the respondent is a serious danger to the community Continuing detention order |
Legislation: | Criminal Code (WA) Dangerous Sexual Offenders Act 2006 (WA) s 7, s 8, s 17, s 18, s 37 Evidence Act 1906 (WA) sch 7 pt B |
Case References: | Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226 Italiano v The State of Western Australia [2009] WASCA 116 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
STEPHEN NEIL WHITE
Respondent
Catchwords:
Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention order - Whether the respondent is a serious danger to the community - Continuing detention order
Legislation:
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)s 7, s 8, s 17, s 18, s 37
Evidence Act 1906 (WA)sch 7 pt B
Result:
The respondent is a serious danger to the community
Continuing detention order made
Category: B
Representation:
Counsel:
Applicant : Mr T B L Scutt
Respondent : Mr D J McKenzie
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226
Italiano v The State of Western Australia [2009] WASCA 116
1 JENKINS J: The Director of Public Prosecutions for Western Australia (DPP) applies for orders that Steven Neil White be declared a serious danger to the community and be subject to a continuing detention order pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act) s 8(1).
2 These are my reasons for finding that Mr White is a serious danger to the community and for making a continuing detention order in respect of him.
The law
3 The relevant legal principles which I apply in this case are summarised in Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226. In McGarry I did not refer to Italiano v The State of Western Australia [2009] WASCA 116. Italiano provides further guidance to judges at first instance but it did not alter the principles I expressed in McGarry.
4 Before I can make an order under the Act for Mr White's continuing detention or supervision, I must be satisfied that he is a serious danger to the community. Before I can make a finding that he is a serious danger to the community, I must be satisfied that there is an unacceptable risk that, if he is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. 'A serious sexual offence' is an offence contrary to a provision of the Criminal Code (WA) which is specified in the Evidence Act 1906 (WA) sch 7 pt B.
5 I can only make findings against Mr White on the basis of acceptable and cogent evidence which satisfies me of the relevant matter to a high degree of probability.
6 In Italiano, Buss JA said that the assessment as to whether a respondent poses an unacceptable risk that, if he is not subject to a continuing detention order or a supervision order, he will commit a serious sexual offence:
... necessarily connotes a balancing exercise, requiring the court to have regard to, amongst other things, the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order), on the other, if an order is made [46].
7 If I find that Mr White is a serious danger to the community, I must either order that he be detained in custody for an indefinite term for control, care or treatment (a continuing detention order) or order that at all times during the period stated in the order when Mr White is not in custody he be subject to conditions that I consider appropriate and state in the order (a supervision order). In deciding whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure adequate protection of the community: the Act s 17(1) and s 17(2).
8 The Act does not give further guidance as to when it is appropriate to make a supervision order instead of a continuing detention order. As I have expressed in previous cases, I am of the opinion that a continuing detention order ought to be made unless I am satisfied that a supervision order would adequately protect the community. When considering whether a supervision order would adequately protect the community, I must take into account any conditions which can be placed on a supervision order so as to ensure the adequate protection of the community and promote the rehabilitation, care and treatment of Mr White: the Act s 18(2).
The parties' submissions
9 The DPP submits that Mr White is a serious danger to the community and a continuing detention order ought to be made in respect of him. Mr White concedes that he is a serious danger to the community if he is not subject to a continuing detention order or a supervision order. He does not concede that a continuing detention order is necessary in order to protect the community. His counsel asked me, if I am of the contrary view, to address the issue of what should happen to Mr White over the next year so as to maximise his chances of release at the next annual review.
The Act s 7(3)
10 The Act s 7(3) sets out 10 matters which I must have regard to when determining whether Mr White is a serious danger to the community. I will now consider each of these matters in turn.
Psychiatric reports prepared under the Act s 37
11 The court ordered Mr White to undergo examination by two psychiatrists, Dr Febbo and Dr Tanney, for the purpose of the Act s 37.
12 Dr Febbo prepared a report dated 5 October 2013.
13 Dr Febbo reviewed a great deal of written material relating to Mr White and he also interviewed Mr White on two occasions. The first interview was on 22 September 2013 for three hours and the second interview was on 3 October 2013 for 50 minutes. Dr Febbo also conducted a risk assessment relating to Mr White's risk of reoffending.
14 After summarising the written material and other information obtained from Mr White, Dr Febbo diagnosed Mr White with a psychotic disorder not otherwise specified, with a differential diagnosis of schizophrenia. He also diagnosed him with a history of alcohol and substance abuse/dependence and the likely presence of personality change relating to head injury (frontal lobe syndrome). In respect of personality disorders and mental retardation, Dr Febbo diagnosed Mr White with mild mental retardation and antisocial personality disorder and border(line) personality traits. In respect of psycho-social and environmental problems, Dr Febbo recorded a history of severe abuse in childhood, the lack of social support, accommodation issues and the likelihood of significant stress related to release and relocation into a community setting.
15 Dr Febbo conducted a risk assessment using three tools, the Static 99, the PCL-R and the RSVP.
16 Dr Febbo concluded that Mr White would be at high risk of a further sexual offence if he is not subject to a continuing detention order or a supervision order. In addition, he said that he was 'far from convinced' that Mr White's level of risk is such that he could be managed by a supervision order unless it was one where Mr White had continuous monitoring by carers on a daily basis, was subject to a nightly curfew and continuous monitoring using GPS monitoring facilities.
17 In evidence, Dr Febbo said that unless Mr White could have 24 hours supervision in the community, he did not believe that his risk could adequately be managed. In respect of the proposal that Mr White be gradually released into the community through a programme managed by the Department of Health and Graylands Psychiatric Hospital, Dr Febbo said that he did not think Mr White could participate in such a programme at the moment because his risk of reoffending is too high.
18 Dr Febbo gave evidence that Mr White's risk of reoffending will not be resolved simply by successful management of his schizophrenia or psychosis. The reason for that is that Mr White's psychosis first presented after he had committed three sexual offences and since his last sentence was imposed. There were psychiatric assessments during the period he committed those offences which did not suggest that Mr White had had a psychosis when he committed them. He said that if anything, the development of the psychotic disorder elevated Mr White's risk of sexual reoffending. He said that elevated risk had to be balanced against the fact that Mr White was taking antipsychotic medication, Risperidone, to alleviate the symptoms of the psychosis. He said that the Risperidone also had a positive impact on Mr White's tendency to impulsivity.
19 In respect of Mr White's current mental health status, Dr Febbo's report noted that Mr White engaged in the interviews but only to a limited extent. He said that on occasions during the interview there was evidence to suggest the presence of formal thought disorder. In particular, he noted the presence of tangentially and derailment. Dr Febbo performed a mini mental state examination and Mr White's score was below that which is considered normal.
20 Dr Tanney interviewed Mr White on 24 September 2013 for 1.5 hours. He also reviewed an extensive amount of written material about Mr White. His report dated 7 October 2013 noted particular parts of that written material and provided a risk assessment of Mr White committing a serious sexual offence. Dr Tanney noted that there was a limited contribution of data from his interview with Mr White because Mr White is not a reliable historian. His intellectual disability also made it difficult to obtain reliable information from him.
21 Dr Tanney concluded that without effective, ongoing management (including monitoring and specific treatment) and the implementation of specific risk diminishing measures, Mr White is at a very high or 'greater than 4/5' risk of further serious sexual offending. Dr Tanney said that this was not equivalent to saying that Mr White had an 80% chance of reoffending.
22 This assessment was based on Mr White's score on the Static 99R, his RSVP results and an assessment using general behavioural principles respecting occurrence of any behaviour. Dr Tanney noted that Mr White's prior offending had been influenced by general criminality and by substance abuse. Mr White's acquired brain injury contributed to a failure to inhibit sexual and violent impulses/desires. The very limited treatment Mr White had received had resulted in a minimal reduction in his risk of reoffending.
23 In his evidence, Dr Tanney said that Mr White's IQ indicated that he was significantly intellectually disabled. He said that his poor intellectual functioning was not just the result of lack of education. Added to his intellectual impairment was the diagnosis of psychosis. Since 2005 this had been managed with Risperidone, which also had the effect of reducing management issues related to Mr White's intellectual disability. Mr White also has a substance use disorder which is in remission because he is in custody. Dr Tanney does not regard Mr White as having schizophrenia.
24 Dr Tanney expressed the view that Mr White's psychosis was linked to his brain damage and that was why it had come on later in his life. He noted that as late as 2001, psychiatrists at the Frankland Centre had not seen any signs of psychosis and yet by 2003 it was evident. In Dr Tanney's view, if Mr White is psychotic, it would make his ability to think clearly and function socially more impaired. Thus, it would put him more at risk of reoffending in a sexual manner. Dr Tanney acknowledged that treatment with an antipsychotic medication like Risperidone might dampen down Mr White's impulsivity and reduce his risk of reoffending in a sexual manner.
25 Mr White told Dr Tanney on a number of occasions that he (Mr White) needed to spend more time in custody. Dr Tanney believes that he holds this view because he has become institutionalised. Mr White is aware that he would have great difficulty functioning in the community. Dr Tanney says that the social breakdown in Mr White's life was evident between 1990 and 2000. During this period Mr White was not regularly employed, he was itinerant, using drugs and functioning in the margins of society. Since 2000 he has been in custody and so it would be even harder now for him to function normally in the community.
26 Mr White told Dr Tanney that he had no sexual interest or desire and that it had not been present for many years. After hearing that Mr White had made some comments to Ms Hutchings, a community corrections officer within the Department of Corrective Services, which indicated an interest in sexual matters, Dr Tanney concluded that Mr White's comments to him were equivalent to him saying to Dr Tanney that he did not want to talk about sexuality with him. However, he concluded after hearing Ms Hutchings' report that Mr White did still maintain some sexual interest. This increases his risk of committing a serious sexual offence.
Other medical, psychiatric, psychological, or other assessments relating to Mr White
27 A considerable number of assessments and reports have been completed in respect of Mr White over a long period. It would be unprofitable for me to review all of them as there is little dispute about Mr White's medical, psychiatric and psychological background. I will summarise the most recent reports.
28 In 2005, Mr White commenced a Sex Offender Treatment Programme for the Intellectually Disabled (SOIDP). The SOIDP is a 192 hour programme. However, the psychologist and senior programme officer who were coordinators of the programme reported that from the beginning of the SOIDP it was evident that Mr White was ambivalent about his attendance on the programme. He appeared anxious on arrival to the group and, despite wavering at various times during the first day, on the same afternoon he stated that he was not ready to talk about his offences and that he wanted to withdraw from the programme. He was permitted to do so. It was noted that he became visibly agitated when the subject of sexual offending was raised.
29 In November 2010, Mr White commenced another SOIDP. On this occasion it was noted that Mr White was a punctual and polite group member who made a noteworthy effort to engage in the group work and to contribute to discussions. Mr White completed the SOIDP. It was reported that he made progress towards meeting the programme's objectives. A significant gain for Mr White was his willingness to engage in group work given his past history of refusing treatment whilst incarcerated. He disclosed parts of his offending within a treatment group setting. He developed a greater insight in understanding how the consumption of alcohol and illicit drugs put him at risk of offending. He acknowledged at the time of his most recent offence he felt 'angry' and that he took this anger out on his partner and her niece. He described 'losing his cool' and being 'out of it' at the time of the offending. He was able to develop alternative skills and strategies to deal with difficult emotions such as anger and frustration.
30 Whilst in the programme, Mr White was able to identify some of the possible impact of his offending on his victims. He was observed to develop a greater level of understanding about avoiding high risk activities and of factors underlying his offending, such as alcohol and illicit drug use. He also demonstrated a greater acceptance of responsibility for his offending behaviour. He expressed his willingness to continue his psychiatric treatment to manage his mental health issues.
31 The programme's coordinators noted that Mr White's Static 99 score placed him in the high risk category.
32 A parole assessment was completed on 10 August 2011 by an acting senior community corrections officer. The assessment reviewed Mr White's history including the presence of a head injury from when Mr White was a victim of a hit and run accident at the age of 4 years. It was noted that during his then current sentence Mr White had been subject of two disciplinary convictions involving assaulting a prison officer in 2002 and behaving in a threatening manner towards officers in 2001. He also had incurred more than 18 adverse incident reports, eight of which involved threats and/or verbal and physical abuse.
33 The assessment noted that prior to Mr White completing the SOIDP in March 2011, he had a history of refusing treatment when in prison. The SOIDP was the only programme Mr White had completed despite being assessed as suitable for other programmes. He had declined to participate in other programmes.
34 The author noted that although Mr White had a limited court history in Western Australia, he had a pattern of prior serious, sexual and violent offences committed in South Australia. When taking into consideration periods spent in custody, there are limited gaps in his offending behaviour when in the community.
35 The author noted that given Mr White's impaired intellectual functioning and mental health issues, any reintegration back into the community will be difficult and success will almost certainly depend on the engagement of support from a community mental health service. The author also recommended psychological counselling to explore emotional regulation and reintegration issues. Mr White told the author that he was prepared to continue with his psychiatric treatment once released. Consistent with his low level of intellectual functioning, Mr White told the author of the assessment that 'the needles will stop me offending'. The 'needles' which Mr White was referring to are the method by which he receives his Risperidone.
36 The assessment stated that Mr White had not provided a release address. During his interview with the author he said that he had no family in Western Australia and he had had no contact with any members of his family during his current sentence. He said that he came to Western Australia by himself after he had caught the bus from Adelaide with the intention of working on a farm back in the late 1990s. Mr White spoke about his wish to return to South Australia and to visit his grandparents' grave. Mr White told the author that his mother and step-father lived in Melbourne, as do his four sisters.
37 The author assessed Mr White as having a high risk of reoffending. The author said that Mr White's triggers to offending had been identified as his ongoing mental health issues, consumption of alcohol and illicit drugs and feelings of anger and being out of control. In order to manage the risk Mr White poses he would need to continue with his psychiatric treatment and avoid high risk activities such as using alcohol and illicit drugs. His impaired intellectual functioning will require intensive community support to assist him to develop alternative skills and strategies to deal with feelings of anger and frustration, other than violent offending.
38 Due to the serious nature of Mr White's prior offending, specifically the level of violence perpetrated against his victims, his lack of community support and his extremely limited parole plan, the level of risk Mr White posed to the community was considered to be unmanageable at that time. His release to parole was not supported.
39 An individual management plan created for Mr White in April 2012 stated that he was residing in unit 6, a unit for prisoners requiring protection, at Casuarina Prison under a standard privilege regime. The staff reported that he was a quiet individual who interacted well with other prisoners and staff. He complied with the unit's routine, with a bit of prompting, and was not considered to be a management problem. He was employed as a unit worker, and was considered to be an average worker. He completed allocated tasks to the best of his ability with some supervision and prompting. His last disciplinary conviction was in 2002. His last social visit occurred in December 2004. Mr White did not utilise the prison telephone system to contact family members and did not send mail.
40 In respect of rehabilitation programmes, it is notable that up until approximately 2008, Mr White indicated that he was not prepared to complete any recommended programmes. However, he indicated a preparedness to do a cognitive skills course and was booked to participate in one in 2011. Unfortunately, it was cancelled due to insufficient bookings. At an interview in April 2012, Mr White was told that a cognitive skills programme was available at Bunbury Regional Prison. He stated that he did not want to participate in that programme. That seems to be due to his reluctance to move away from Casuarina Prison. In December 2009, Mr White said that he was willing to participate in all recommended treatments, including the managing anger and substance use programme. However, that programme was no longer being offered and no substitute programme was available in April 2012.
41 For the purpose of this application, Mr Ryan Bell, a clinical psychologist completed a Sex Offender Treatment Options report dated 7 October 2013. Mr Bell confirmed the programme history that I have already noted. He said that if Mr White was subject to a continuing detention order, a specialist psychologist from the Dangerous Sexual Offenders Psychology Team would case manage Mr White's psycho-social intervention needs throughout the period of detention. That process would start with a review of all documents relating to Mr White. Depending upon the outcome of that review a number of group based programmes would be available to Mr White in prison. These include another SOIDP and the Pathways programme. The Pathways programme is a 50 session manual guided treatment programme for adults with a history of criminal conduct and substance use problems. There would also be the possibility of individual psychological counselling. If Mr White was released on a supervision order he may be assessed as suitable for a community-based sexual offender maintenance programme and/or individual psychological counselling.
42 Mr Bell also gave evidence. He said that the Pathways programme assumed a certain level of literacy. Although, someone without literacy skills may be assisted to complete the programme, Mr White's level of literacy may be a problem to him completing the programme. Further, the Pathways programme is conducted within a therapeutic community, meaning that group members were required to challenge and talk about their offences and drug use with other members of the group. Mr Bell said that if a participant did not have the cognitive capacity to participate in that therapeutic community, they would be likely not to derive any benefit from the Pathways programme. It also seems to me that they may disrupt the therapeutic community. If a continuing detention order is made in respect of Mr White, an assessment will need to be conducted to see if he is suitable for the Pathways programme.
43 Mr Bell said that the Department of Corrective Services standard rule was that dangerous sexual offenders were to be detained in a maximum security prison. However, it was sometimes the case that in order to prepare a dangerous sexual offender for release it was in the offender's best interests for them to be transferred to a minimum security prison, such as a prison farm. I understand that this is sometimes because programmes are available in those prisons that are not available in maximum security prisons. Also it is sometimes desirable for dangerous sexual offenders to be in a minimum security prison where they have to take more responsibility for their day-to-day management. Mr Bell said that it would not be possible to move Mr White, if he was declared to be a dangerous sexual offender, to a minimum security prison without a recommendation from me.
44 Mr Bell said that both the SOIDP and the Pathways programme would be available at the Karnet Prison farm. The SOIDP is only available at Bunbury Prison and the Karnet Prison farm. However, he said that Mr White's current status which required him to be placed in a protection unit, either because he is in danger from other prisoners or he is a danger to other prisoners, would be an impediment to his movement to a prison such as Karnet. Mr Bell said that before Mr White was moved, an assessment would have to be completed as to how his level of risk could be managed if he was placed with other mainstream prisoners.
Whether or not Mr White has a propensity to commit serious sexual offences in the future
45 In order to decide whether Mr White has a propensity to commit serious sexual offences in the future it is necessary to look at his past record of offending behaviour.
46 As a teenager Mr White committed a number of violent and antisocial dishonesty offences in South Australia and New South Wales. Mr White was convicted of his first sexual offence on 19 May 1983 in the District Court at Penrith, New South Wales. Then aged 17, he was convicted of indecent assault on a female under the age of 16 years. He was committed to an institution for 12 months. Further details of the offending are not known. However, a psychiatrist who prepared a report for a South Australian court in February 1985 stated that Mr White told him that one of his female relatives had set him up by saying that he had violently raped a 9-year-old girl.
47 On 17 July 1984, Mr White raped a 73-year-old woman in her home in South Australia. The woman was a stranger to him. Mr White was briefly remanded in custody and then released on bail.
48 On 11 November 1984, Mr White, then aged 19, attempted to rape a 30-year-old woman in her home in South Australia. Again, the victim was a stranger to him. In order to subdue the victim, Mr White held a knife close to her face. The victim struggled and Mr White threw her against a wall, kneed her in the face and dragged her towards her bedroom by her hair and arm. Mr White also removed her top and bra. When Mr White went to the front door to shut it, the victim ran out of the back door. Mr White caught her and again assaulted her. When a vehicle drove past Mr White ran off. He was remanded in custody after his arrest.
49 In April 1985, Mr White pleaded not guilty to the offence committed on 17 July 1984 but he was convicted after trial. He was remanded in custody for sentencing at a later date.
50 On 18 July 1985, Mr White pleaded guilty to the attempted rape committed on 11 November 1984. He was sentenced to 4 years' imprisonment with a non-parole period of 3 years.
51 On 27 September 1985, Mr White was sentenced for the rape committed on 17 July 1984. He was sentenced to 8 years' imprisonment with a non-parole period of 5 years cumulative upon the sentence imposed for the attempted rape.
52 On 30 January 1991, Mr White was released from prison to parole. He breached his parole by committing dishonesty offences in Victoria. He was sentenced to 8 months' imprisonment and his parole was cancelled.
53 On 22 October 1991, Mr White was released from prison in Victoria and immediately extradited to South Australia where he returned to custody to complete his sentences.
54 On 15 May 1995, Mr White was again released from prison to parole in South Australia.
55 In October 1995, Mr White allegedly committed a number of dishonesty offences in South Australia. He was bailed and subsequently failed to appear in court. The charges were later withdrawn in 2000.
56 On 6 December 1995, Mr White's parole expired. On 10 January 1996, his bail was revoked in respect of the offences allegedly committed in October 1995.
57 There is no record of offending between the end of 1995 and July 1999. Somewhere in that period of time Mr White travelled to Kununurra, Western Australia. On 22 July 1999, he was refused entry to a hotel in Kununurra because of his state of intoxication. He became aggressive towards staff and produced a folding pocket knife. He shouted abuse and threats at staff and waived the knife in the air before walking from the area. He was arrested and charged with threatening words or behaviour. On 30 July 1999, he pleaded guilty to that offence and was fined $50.
58 There is then another break in his offending until November 2000. On 1 November 2000, he was in Katherine, Northern Territory and was charged with unlawfully damaging property. The details of the offence are not known. He was bailed but on 16 November 2000 he failed to appear in the Katherine court of summary jurisdiction and a bench warrant was issued for his arrest. Later that month he was arrested on the warrant. On 6 December 2000, he appeared in the Darwin court of summary jurisdiction and was convicted and sentenced for the offence of unlawfully damaging property committed on 1 November 2000. He was also convicted of being disorderly on the same date. He was sentenced to 1 month imprisonment backdated to 20 November 2000, the date of his arrest. The sentence was suspended for a period of 12 months.
59 On 31 March 2001, Mr White allegedly committed another offence of damaging property valued at over $500. He was bailed but failed to appear in the Katherine court of summary jurisdiction on 19 April 2001 in accordance with his bail undertaking. A bench warrant was issued.
60 Sometime after being bailed, Mr White travelled back to Western Australia.
61 On 18 June 2001, Mr White had befriended a woman in Kununurra who was looking after seven children, including a young girl who was then 5 years of age. He was in a tent where the family was sleeping. He grabbed the 5-year-old girl and tried to pull her away from the woman. Mr White then hit the woman on the back of the head and arm. Mr White left the tent with the 5-year-old girl. The woman was unable to follow them because she was dizzy and she went back to sleep. Mr White took the child approximately 1 km from the tent. When the child screamed or cried, Mr White smashed a rock against the back of her skull. The rock weighed 2.13 kg. The blow caused a life-threatening injury. He also took a length of rope from his bag and wrapped the rope around the child's neck and tightened it, intending to strangle her. She lost consciousness. After he did that, he raped her vaginally and anally. Sometime later, Mr White carried the child to the local hospital. He lied to them about how she had received her injuries. Whilst the victim was being treated, Mr White left the hospital. A short time later he was arrested and remanded in custody.
62 On 2 October 2001, Mr White pleaded guilty to unlawful wounding, attempted murder and two counts of sexual penetration of a child under the age of 13 years.
63 On 7 October 2001, Mr White committed a prison offence of threatening behaviour towards officers.
64 On 31 October 2001, Mr White was sentenced to a total sentence of 13 years' imprisonment with eligibility for parole. The sentence was backdated to 21 June 2001.
65 The State appealed the sentence and on 9 May 2002 it was increased from 13 to 17 years' imprisonment.
66 On 6 June 2002, Mr White pleaded guilty in the District Court before me to the assault occasioning bodily harm on the woman who had the care of the 5-year-old victim. I sentenced him to 16 months' imprisonment to be served cumulatively upon the 17 years' imprisonment.
67 Between December 2001 and December 2003, Mr White was involved in a number of violent incidents in prison. He also reported hearing voices. On 11 December 2003, he was transferred to the Frankland Centre at Graylands Hospital for assessment. He remained in the Frankland Centre until 5 January 2004. The discharge summary noted that prior to his admission he had been displaying increased irritability and intermittent aggressive outbursts in prison, which had become more prominent sometime after Mr White had refused to take his medications. It was noted that he had no documented past history of psychosis prior to his first admission to the Frankland Centre in July 2001.
68 During the 2001 admission there had been no clear evidence of a major mental illness. A cognitive assessment was performed which showed an IQ in the subnormal range of intellectual functioning. No organic brain disease was identified. It was thought that Mr White's abusive and unstimulating early childhood, compounded by substance abuse, was the most likely cause for his behaviour at that time.
69 The 2004 discharge report noted that in the subsequent two years, Mr White had been seen by a visiting psychiatrist and there was an increasing suspicion of a developing psychotic disorder. He was commenced on treatment with Risperidone in April 2002. On his admission to the Frankland Centre in December 2003, Mr White said he could hear the prison guards and other prisoners talking about chopping up his sisters and nieces. He said that the guards put videos on so he could watch it on TV and he could hear them screaming.
70 On admission, Mr White was agitated, hostile and verbally aggressive. He frequently shouted and verbally abused staff. He was unable to agree to treatment to decrease his level of agitation. He was given drugs which gradually settled his mental state. After a couple of weeks he said that he could no longer hear the prison guards talking to him through the television. However, he revealed that he could hear some female voices but they were not threatening. He was ambivalent about taking medication on return to prison. Unfortunately, Mr White had to be returned to prison due to intense pressure on beds at the Frankland Centre.
71 In 2005, Mr White's mental state deteriorated. This appeared to be connected to a period in which he was not receiving his antipsychotic medication. On 17 June 2005, he was again admitted to the Frankland Centre with possible intention to act on his delusions. At that time he had a delusional belief about having a foreign body stuck in his throat. He had no insight and his judgment was impaired. His medication was increased and given by depot injections. He continued to be observed to be responding to unseen stimuli. However, he did not attempt to act on his delusions and was not a management problem. Again, due to pressure of beds, Mr White was discharged back to Casuarina Prison on 2 July 2005.
72 For a number of years after that the Department of Corrective Services health services progress notes report that Mr White had poor personal hygiene, was dishevelled, had restricted conversation and had difficulty sleeping. It was suspected on a number of occasions that he was responding to unseen stimuli. However, references to those matters gradually decreased in frequency so that by 2012 and 2013 the notes recorded that Mr White was mentally stable, his mood was good and he was not experiencing any auditory hallucinations or experiencing sensory disturbances. He expressed himself as being content to stay in prison and happy with his prison job. He continues to receive Risperidone twice a week by injection.
73 Mr White has been convicted of sexual offences relating to four incidents that occurred within an 18-year period. The last group of offences were the most serious and involved a very vulnerable victim and extreme violence. Mr White has not been able to confront his offending, the causes for it or address what he needs to do to prevent it occurring again. Because of his disability and his mental health issues, I cannot say that he has wilfully refused to rehabilitate himself. However, it is apparent that he is not rehabilitated. Whatever changes have occurred in him since he last offended have primarily occurred through a deterioration in his mental health and the calming effect of the antipsychotic medication he receives. In my opinion, Mr White's history shows that he has a propensity, in the sense of an inclination or tendency, to commit serious sexual offences in the future if he was left un-medicated. The only question is to what extent his medication, if he continues to take it, will prevent that inclination or tendency coming to the fore. The psychiatrists are of the opinion that the medication will probably help in that respect, but they cannot guarantee that it will prevent future offending. Neither did they express the view that it will significantly reduce his risk of reoffending.
Whether or not there is any pattern of offending behaviour on the part of Mr White
74 I accept Dr Febbo's and Dr Tanney's evidence about Mr White's risk scenario. Dr Febbo said that if Mr White was to reoffend, a future offending scenario would be similar to his previous offences. Unpredictability and impulsivity were significant factors in the offending. It is likely that Mr White would experience some destabilisation of his mental state relating to psychotic symptoms, alcohol abuse, substance abuse or difficulties in the context of an intimate or non-intimate relationship. This would elevate Mr White's risk of reoffending and impulsivity. The victim may or may not be known to him, and the age of the victim could vary from a child to an elderly woman. He may get himself in a situation where he is alone with the victim in order to reoffend, and the concern is that he is capable of extreme physical violence in order to sexually offend.
75 Dr Tanney noted that all of Mr White's sexual offending involved disinhibition accompanied by intoxication with alcohol and/or illicit substances. The 1984 attempted rape was planned, but the other two offences of which the details are known appear to have been situation-dependent. There was considerable physical coercion of victims, but no indication that Mr White derived pleasure from that coercion. Rather, it was used in order to subdue his victims.
76 Dr Tanney noted that Mr White's preferred victims are female and of any age. Dr Tanney identified a risk scenario where Mr White was intoxicated by alcohol or drugs. There would be minimal planning or premeditation and no grooming of his victim. He would offend because he was probably sexually frustrated. He would be likely to not consider the risk of being discovered or the consequences at the time of the offending. He would have an inability to inhibit or manage his behaviour. He would be prepared to exert considerable physical coercion to overcome the resistance of any victim. He would evidence little remorse or empathy immediately after the event.
77 Dr Tanney acknowledged that there is some progression towards more severe sexual offending, even though there was no known sexual offending between mid-1995 and mid-2001.
Efforts by Mr White to address the causes of his offending behaviour; including whether Mr White has participated in any rehabilitation programmes
78 As I have detailed, Mr White participated in a SOIDP. Other than that he has not completed any treatment programmes.
79 There is evidence which satisfies me that since Mr White's mental state has improved on a regular dose of Risperidone, he has shown a willingness to participate in programmes. However, he has not been able to do so because of factors both within and beyond his control. There are examples of programmes being cancelled so that he could not participate in them. There are also examples of him declining to participate in programmes because it would require him to move prisons. It is clear to me that, because of Mr White's limited intellectual functioning, his mental illness, his medication regime and his institutionalisation, that he has become quite rigid. He relies significantly on the rituals of his daily life to maintain his stability. Any treatment programme which required him to move prisons or to change his daily routine is a threat to his stability and hence his peace of mind. Because Mr White is not motivated to change his routine or to leave prison, he is not motivated to complete programmes which would increase his chances of being released.
80 Although I understand why he has not participated in programmes, the fact of the lack of participation means that there has also been a lack of rehabilitation.
Whether or not Mr White's participation in any rehabilitation programme has had a positive effect on him
81 There were treatment gains noted after Mr White completed the SOIDP. However, interviews which took place for the purpose of this application indicated that the small signs which existed after the SOIDP that Mr White was prepared to address his offending have diminished. To me, it seems that Mr White is happy in his daily routine at the prison and does not wish to be reminded of, nor confronted with, the details of his offending. Allied with this is Mr White's denial of some of his offending and his claim not to have a memory of other parts of it.
Mr White's antecedents and criminal record
82 I have detailed most of Mr White's criminal record. In addition to those details, I note that he has a history of generalised criminal offending. This offending includes dishonesty and violent offences.
83 Mr White was born on 31 October 1965 in South Australia. When he was approximately 4, he was injured in a motor vehicle accident to the extent that he required a steel plate to be inserted in his head. He also reports having being knocked unconscious at least four times in his life. The experts put Mr White's mental impairment down to this history, as well as to emotional abuse and lack of schooling.
84 It does not seem as if Mr White has ever had contact with his natural father, who is dead. He was raised by his mother and stepfather. His stepfather emotionally and physically abused him, and he blames his mother for not protecting him from the abuse. The psychiatric report which was completed in 1985, noted that there is an extended family history of instability in marriage, social relationships and employment. Mr White's grandparents adopted him when he was 9, and he has positive memories of his time with them.
85 Mr White rarely attended school, even after moving to his grandparents' home. As a result, he was bullied, physically and emotionally, by his peers. Although Mr White enjoyed some of his high school years, his performance deteriorated over time. He has a history of assaulting teachers. He has minimal literacy skills.
86 After school, Mr White gained some employment, but since his first long period of incarceration he has not had employment in the community. As I have noted, he currently enjoys and relies upon his prison employment.
87 Mr White has had some relationships with females, although none have been successful. He believes that he has one child from a relationship early in his life in South Australia. He does not have any contact with the child.
88 Mr White's offending has been associated with alcohol abuse and substance abuse.
89 The Prison Health Services progress notes report that in 2006 Mr White told a nurse that he had received a phone call from a sister in Sydney. Apart from this, there is no record of Mr White currently having any community support or contacts.
The risk that if Mr White were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence
90 There is no reason for me to reject the views of Dr Febbo and Dr Tanney in this regard. Their views are that there is a high risk that Mr White will commit a serious sexual offence if he were not subject to a continuing detention order or supervision order.
91 The only qualification I would add is that their assessment of the risk is slightly clouded due to Mr White having been diagnosed with a psychosis for which he is being treated with Risperidone. If Mr White was not subject to compulsory treatment with an antipsychotic, it seems likely that he would not be fully compliant with his drug treatment. If anything, this would increase his risk of committing a serious sexual offence. However, if he was compliant with his treatment regime, his medication may reduce his risk of committing a serious sexual offence. Neither of the psychiatrists were willing to be categorical about that possibility.
92 There is a clear pattern in the Department of Corrective Services' records which show that Mr White's behaviour has been more stable and he has been a lot easier to manage in the prison system since he was placed on a regular dose of Risperidone. I can only conclude that this stability and cooperation indicates some reduction in his risk of sexual reoffending whilst he is on that drug. The problem is that I do not know and neither do the psychiatrists, whether Mr White would be compliant with his medication and, if he was, whether his stability and cooperativeness would continue once he was in the community and exposed to destabilising factors such as alcohol, drugs and relationship problems.
The need to protect members of the community from the risk that Mr White will commit a serious sexual offence
93 Mr White's previous serious sexual offending has been of a most extreme kind. His victims have ranged from a young girl to an elderly woman. He has taken advantage of situations to commit offences, but he has also been prepared to take significant risks to obtain a victim. He has also been prepared to use extreme violence in order to subdue the victim. His latest victim was very seriously injured and it seems fortunate that she was not killed by Mr White. There is clearly a need to protect members of the community from the risk that he poses.
Conclusion
94 Taking into account all the above matters, I am satisfied that the appropriate order for me to make is that Mr White be declared a serious danger to the community.
Continuing detention order or supervision order?
95 Having found that Mr White is a serious danger to the community, I must make either a continuing detention order or a supervision order.
96 I have already referred to Dr Febbo's view that he is not convinced that Mr White's level of risk could be managed by a supervision order unless there was virtually 24-hour monitoring of Mr White by carers, as well as continuous monitoring using GPS monitoring facilities. He is also of the view that some work needs to be done with Mr White before Mr White could be considered suitable for release. He said that the following management strategies should be considered:
1. Individual counselling in an effort to increase Mr White's understanding as to the impact of alcohol and substance abuse on his level of risk, his level of understanding as to the factors behind his sexual offending and the development of concrete strategies to avoid this maladaptive behaviour.
2. An assessment of Mr White's suitability to engage in rehabilitative programmes in a custodial setting.
3. Due to Mr White's institutionalisation, the preparation of a release plan which provides for gradual release commencing with a transfer to a minimum security prison and participation in a resocialisation programme of some sort.
4. Placement of Mr White on a community treatment order as Mr White will continue to require psychiatric treatment. It would be appropriate to consider transferring Mr White to Graylands Hospital before he was released into the community.
5. Exploration of accommodation options and possible employment in a sheltered environment.
6. Consideration be given to obtaining a guardianship order and referral to the Disability Services Commission prior to Mr White's release.
7. Ultimately, Mr White may be able to be transferred to the Graylands Hospital Slow Stream Rehabilitation Unit, Murchison Ward. Whilst this could be explored, Dr Febbo has reservations due to vulnerable female patients being in this ward.
97 Dr Tanney sees Mr White's serious sexual offending as the outcome of an interactive matrix of damaging life experience, limited or maladaptive internal psychological resources, polysubstance abuse and general dissocial criminality. He says that several of Mr White's disorders are not amenable to or responsive to available and current treatments. For others, there are treatments that are likely to lessen the risk of reoffending. He identifies Mr White's intellectual disability as being a disorder which is not treatable. He says that it has considerable impact on Mr White's abilities to undertake activities that will lessen the likelihood of reoffending by managing specific risk issues. The disability has the effect of limiting Mr White's understanding of abstract constructs such as moral reasoning and empathy. It is reflected in Mr White's concrete thinking style. There is a considerable impairment in Mr White's ability to problem solve, manage social roles and achieve the activities of daily living. He has no capacity to accurately consider and reflect on his own inner self and motivations. There are limitations on his ability to manage emotional issues that are derived from inner drives and conflicts and from relationships with other people.
98 Dr Tanney indicated that Mr White attributed much of his current settled mental state and behaviour to the antipsychotic drug Risperidone, and indicated that he intends to continue taking it. He also noted that Mr White has some awareness of the need to manage his substance abuse. However, he has not participated in any rehabilitation programmes during his most recent period in custody other than the SOIDP. Dr Tanney said that Mr White may benefit from such programmes, such that this risk factor may be managed effectively.
99 Dr Tanney said that Mr White has an inclination towards general criminality and/or violence. He said that involvement in a cognitive skills programme will give Mr White some basis for him to understand the contribution of general criminality and his dissocial upbringing to his offending. He has not completed such a programme.
100 Dr Tanney noted that the limited treatment gains that Mr White made through participation in the SOIDP programme appear not to have been retained. He is of the view that further reinforcement of these learnings through ongoing counselling or repetition of the SOIDP programme is warranted.
101 Dr Tanney noted that Mr White has never demonstrated adaptive functioning in the community and has difficulty with basic self-care and activities of daily living. The processes of institutional living have further contributed to the breakdown of his social and interpersonal skills. A role for a guardian or the Public Trustee must be part of any community based support. Further, Disability Services Commission support needs to be canvassed for his acquired brain injury.
102 Dr Tanney said that Mr White has no supports in the community and some transitional process to allow graduated community re-entry is essential. Failure of a basic level of support will undermine all treatment efforts that are part of risk management. Dr Tanney said that a graduated process can be undertaken in custody by transfer to a lower security setting in prison. Another possibility is participation in the community rehabilitation services of the mental health system. Dr Tanney said that this programme involves graduated return to the community, beginning with placement at Graylands Hospital, with varying levels of support over a number of years. Dr Tanney thought that Mr White may qualify for this programme stream because of his effectively treated psychotic mental disorder.
103 Dr Tanney said that Mr White's risk can be effectively managed with a continuing detention order, but that if eventual release to the community is envisaged, Mr White needs to participate in a number of appropriate treatment programmes whilst he is in custody. There also needs to be a transition to a less regimented security environment where Mr White would have more responsibility for personal care and there would be a better opportunity to assess Mr White's ability to function in society. Dr Tanney concluded that a risk management programme under a supervision order could not be developed at this time that would sufficiently address Mr White's risk so as to allow his successful management in the general community.
104 It is clear to me that Mr White's risk of sexual reoffending cannot currently be managed by a supervision order, no matter what its conditions.
105 As Dr Tanney noted, it is not at all clear that Mr White will ever be able to be released on a supervision order. However, it is appropriate that the State do what it can to ascertain whether it will ever be possible for Mr White to be released. In order for that to occur, an assessment should be made by the Dangerous Sexual Offenders Psychology Team to determine what treatment programmes are appropriate for Mr White. The psychiatrists have recommended another SOIDP, a substance abuse programme and a cognitive skills programme. If the team deems it desirable that he take part in programmes that are only available in minimum security prisons and if his security can be appropriately managed in such prisons, he should be transferred to them. Further, if it is thought desirable to prepare for his reintegration into the community or assess his capacity for reintegration into the community whilst he is in custody, then he may also need to be transferred to a minimum security prison for this to occur.
106 However, Mr White's release, if it does occur, is unlikely to occur quickly. The first steps involve his assessment and, hopeful participation in rehabilitation programmes and/or individual counselling. Depending on their success, it will be necessary to develop a gradual release plan. Coupled with this will be the need to engage external agencies to assist Mr White to manage his life in the community and also to assist to manage Mr White in the community.
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