Director of Public Prosecutions (WA) v White [No 2]
[2015] WASC 2
•5 JANUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- WHITE [No 2] [2015] WASC 2
CORAM: CORBOY J
HEARD: 4 DECEMBER 2014
DELIVERED : 4 DECEMBER 2014
PUBLISHED : 5 JANUARY 2015
FILE NO/S: DSO 4 of 2013
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
STEPHEN NEIL WHITE
Respondent
Catchwords:
Dangerous sexual offender - First annual review - Whether the respondent remains a serious danger to the community - Whether detention order should continue
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 33
Result:
Respondent remains a serious danger to the community
Continuing detention order not rescinded
Category: B
Representation:
Counsel:
Applicant: Mr B Fiannaca
Respondent: Ms S McKenzie
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
The Director of Public Prosecutions (WA) v White [2013] WASC 417
CORBOY J: Jenkins J made an order on 20 November 2013 that the respondent be detained in custody for an indefinite term for control, care or treatment. Her Honour made that order on finding that the respondent was a serious danger to the community and that it was necessary for the respondent to be detained in custody to ensure that the community was adequately protected: s 7 and s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act).
This is the first annual review of the continuing detention order. The respondent conceded at the review hearing that he remained a serious danger to the community and that there were presently no grounds for rescinding the continuing detention order. Nevertheless, the DSO Act imposes an obligation on the court to conduct an annual review and mandates that a continuing detention order must be rescinded if the court does not find that the offender remains a serious danger to the community: s 33(1) DSO Act. The court is then required to exercise the powers conferred by s 33(2) if it does find that the offender remains a serious danger. Accordingly, it was necessary to make findings about the matters raised by s 33 DSO Act notwithstanding the concessions made by the respondent.
I found that the respondent remained a serious danger to the community and that the continuing detention order should not be rescinded. I made orders and declarations to that effect at the review hearing.
These are my reasons for making those orders and declarations.
The continuing detention order
The circumstances in which the continuing detention order was made are set out in reasons published by Jenkins J: The Director of Public Prosecutions (WA) v White [2013] WASC 417. It was not suggested that her Honour's explanation of those circumstances and the findings that she made were in error. Accordingly, what follows is a brief summary of some of the matters that were identified by her Honour. They are matters that I considered to be particularly relevant to the review.
The respondent's criminal history
Her Honour summarised the respondent's criminal history at [45] and following of her reasons. She noted that he had been convicted of sexual offences relating to four criminal episodes. The offences had been committed over a period of 18 years.
The respondent had been convicted in October 2001 of unlawful wounding, attempted murder and two counts of sexual penetration of a child under the age of 13 years. The total effective sentence imposed following an appeal was 17 years' imprisonment.
The respondent was subsequently convicted in June 2002 of assault occasioning bodily harm on a woman who had the care of the victim of the offences for which the respondent had been convicted in October 2001. He was sentenced to a further 16 months' imprisonment cumulative on the sentence imposed by the Court of Appeal.
The respondent's cognitive functioning and mental health
The respondent's cognitive functioning was assessed in 2001. The assessment disclosed that his IQ was in the subnormal range of intellectual functioning.
The respondent was admitted to the Frankland Centre in December 2003. He was experiencing auditory hallucinations and it was suspected that he had developed a psychotic disorder. The respondent was again admitted to the Frankland Centre in June 2005. He had delusional beliefs and there was a concern that he intended to act on those beliefs.
Progress notes maintained by the health services section of the Department of Corrective Services indicated that the respondent had poor personal hygiene, was dishevelled, had restricted conversation and experienced difficulty in sleeping. It was suspected that he had responded to unseen stimuli on a number of occasions.
However, the progress notes recorded that by about 2012/2013 the respondent's mental state appeared to be stable, his mood was good and he was not apparently experiencing any auditory hallucinations or other sensory disturbances. He was content to remain in custody and he was happy in his prison job.
Psychiatric reports
Jenkins J received psychiatric reports from Dr Febbo and Dr Tanney. Dr Febbo diagnosed the respondent as suffering a psychotic disorder not otherwise specified, with a differential diagnosis of schizophrenia. The respondent had a history of alcohol and substance abuse and a personality change relating to head injury was likely to be present. The respondent had mild mental retardation and an antisocial personality disorder and borderline personality traits. He had experienced severe abuse in childhood.
Dr Tanney considered that the respondent suffered from a psychotic disorder and was significantly disabled intellectually.
Dr Febbo assessed the risk of the respondent sexually reoffending using actuarial instruments - STATIC‑99; PCL‑R and the Risk for Sexual Violence Protocol. He concluded that the respondent would be at a high risk of further sexual offending if he was not subject to a continuing detention order or a supervision order. He was 'far from convinced' that the respondent's risk of sexually offending could be adequately managed by a supervision order unless provision was made for his constant supervision and monitoring.
Dr Tanney considered that the respondent was at a very high risk of further serious sexual offending without effective, ongoing management and the implementation of specific measures to ameliorate that risk. He noted that the respondent's prior offending had been influenced by general criminality and substance abuse. The respondent's acquired brain injury contributed to a failure to inhibit sexual and violent impulses and desires. Dr Tanney thought that the respondent's serious sexual offending was the outcome of an 'interactive matrix of damaging life experience, limited or maladaptive internal psychological resources, polysubstance abuse and general dissocial criminality' [97].
Dr Tanney noted that the respondent had only received very limited treatment directed to reducing the risk of reoffending. However, he also considered that several of the respondent's disorders were not amenable or responsive to available and current treatments, and that his ability to successfully participate in programs designed to manage the risk of him offending in the future was compromised by his intellectual functioning. Nevertheless, he suggested that the respondent would need to participate in a number of appropriate treatment programs while in custody if his eventual release to the community was envisaged.
As has been noted, Dr Febbo considered that the respondent could only be released pursuant to a supervision order if provision was made for his continuous supervision. Further, Dr Febbo considered that the respondent required counselling and treatment before he could be released even on an intensively supervised basis.
Jenkins J accepted the views of Dr Febbo and Dr Tanney regarding the risk that the respondent would commit a serious sexual offence if a continuing detention or supervision order was not made. She considered that the respondent's previous sexual offending had been of a most extreme kind.
Material for the first annual review
The book of material tendered by the applicant at the review hearing (exhibit 1) included a further report from Dr Tanney and a report on a neuro‑psychological assessment undertaken by Ms Vidovich.
Dr Tanney concluded that the respondent remained at a very high risk of serious sexual reoffending with accompanying violence against women. However, he noted that there had been a change in the respondent's attitude towards involvement in treatment programs and in his desire for eventual release to the community since the last assessment (but see the community supervision assessment report, exhibit 1, page 86). The respondent had participated in regular counselling in relation to risk factors for his sexual offending. His psychotic mental disorder was satisfactorily controlled by medication and he had been enrolled to participate in the sexual offender treatment program for intellectually disabled persons (SOID) in 2015. He had previously participated in that program in 2010 with only limited treatment gains.
Ms Vidovich advised that only a minimum amount of neuro‑psychological testing had been completed due to the respondent's test‑taking behaviours. He was distractible, demonstrated little persistence with tasks and was impulsive in completing them. However, testing confirmed a diagnosis of a mild intellectual disability with mostly extremely low to borderline performances. There were indications of impaired attentional processes and compromised capacity to process, integrate and manipulate complex visual material. Executive dysfunction was evident. It was possible that he suffered from a non‑verbal learning disorder, and there were concerns about his adaptive functioning given his lengthy history of institutionalisation. However, his adaptive functioning could not be validly tested. However, the respondent demonstrated some isolated strengths across aspects of verbal expressive skills and verbal memory measures.
Ms Vidovich concluded that there was evidence suggestive of compromised adaptive functioning and intellectual impairment.
Exhibit 1 included a report from the Forensic Psychological Service in relation to the treatment provided to the respondent, particularly since the continuing detention order had been made. It was noted that Jenkins J had recommended that the respondent should complete a substance use program, a cognitive skills program and repeat the SOID program if it was found that he was suitable for participating in those programs.
The respondent was initially scheduled to participate in a drug and alcohol program, but it was noted by his psychologist that the program had not been modified for intellectually impaired offenders. Accordingly, it was concluded that he was not suitable for participating in that program. Instead, a program of individual counselling was implemented that was directed to his substance use, violent and sexual offending, mental health issues and, to some extent, his lack of social skills. A cognitive‑behavioural therapy approach was adopted in those counselling sessions. The psychologist responsible for conducting those sessions reported that the respondent's engagement was variable. Occasionally, the respondent had insight into his alcohol and substance abuse problems and the cause of his violent and sexual offending. However, on other occasions he denied the existence of risk factors.
The forensic psychologist responsible for preparing the assessment report, Dr Bannister, considered that the respondent had 'by and large' been working well with his treating psychologist but treatment gains were difficult to ascertain. That reflected his cognitive deficits. The respondent became easily distracted, struggled to maintain focus and appeared to find it difficult to grasp, recall and process complex concepts (and see the community supervision assessment report, exhibit 1, page 84). He had a limited appreciation of the cause of his offending, tending to blame alcohol and drugs and a lack of medication. Nevertheless, he was willing to undertake further individual treatment, and it was proposed that his treating psychologist would continue to work with him through individual counselling sessions. As has been noted, the respondent has also been assessed as suitable to participate in the SOID program and it was proposed to transfer him to Acacia Prison in January 2015 for that purpose (community supervision assessment report, exhibit 1, page 86).
Finally, it was noted that an application had been made to the State Administrative Tribunal for the appointment of a guardian to the respondent. The hearing of that application has been adjourned until February 2015 to enable the Office of the Public Advocate to conduct further investigations into the respondent's ability to make informed decisions regarding his physical and mental health treatment while in custody.
Conclusion
I accept Dr Tanney's opinion that the respondent remains at a high risk of serious sexual offending. That opinion was not contested and is consistent with the views that were expressed by Dr Tanney and Dr Febbo at the time that the continuing detention order was made and with the other reports contained in exhibit 1. I further find on all of the material tendered at the review hearing that the community would not be adequately protected if the respondent was released on a supervision order. It is plain that he has significant on-going treatment, care and management needs that can only be safely met for the present while he remains in custody.
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