Director of Public Prosecutions (WA) v White [No 3]
[2015] WASC 472
•7 DECEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- WHITE [No 3] [2015] WASC 472
CORAM: HALL J
HEARD: 7 DECEMBER 2015
DELIVERED : 7 DECEMBER 2015
FILE NO/S: DSO 4 of 2013
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
STEPHEN NEIL WHITE
Respondent
Catchwords:
Dangerous sexual offender - Second annual review - Whether offender remains a serious danger - Whether the risk of offending could be adequately managed on a supervision order - Protection of community paramount consideration
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 29, s 33
Result:
Continuing detention order not rescinded
Category: B
Representation:
Counsel:
Applicant: Ms K Robinson
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 v White [2013] WASC 417
Director of Public Prosecutions v White [No 2] [2015] WASC 2
HALL J:
Introduction
This is the second annual review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) by Jenkins J on 20 November 2013: Director of Public Prosecutions v White [2013] WASC 417. The first annual review was conducted on 4 December 2014 by Corboy J who determined that Mr White remained a serious danger to the community and declined to rescind the continuing detention order: Director of Public Prosecutions v White [No 2] [2015] WASC 2.
On an annual review the court must determine whether a person who is the subject of 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 to the community on conditions that the court considers 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 this review, Mr White does not dispute that he remains a serious danger to the community. All of the expert evidence supports that conclusion. The issue is whether Mr White can be released in 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.
Whilst Mr White has made some progress since his last annual review, I am not satisfied on the available evidence that adequate protection of the community could be ensured by releasing him on a supervision order at this time. Accordingly, I expressly decline to rescind the continuing detention order. These are my reasons for coming to that conclusion.
Background
Mr White's personal history and his history of offending were detailed by Jenkins J in Director of Public Prosecutions v White [2013] WASC 417 [45] ‑ [73]. He has been convicted of a number of sexual offences relating to four criminal episodes over a period of 18 years. The most recent serious sexual offending occurred in October 2001 and involved the unlawful wounding, attempted murder and sexual penetration of a child under the age of 13 years. The total effective sentence imposed following appeal was 17 years' imprisonment.
In 2001 Mr White was first admitted to the Frankland Centre at Graylands Psychiatric Hospital. A cognitive assessment was performed which showed that he has an IQ in the subnormal range of intellectual functioning. No organic brain disease was identified. His abusive and unstimulating early childhood, compounded by substance abuse, was thought to be the most likely cause for his behaviour. That behaviour included irritability and intermittent aggressive outbursts. Subsequently he also reported hearing voices and in 2003 was transferred to the Frankland Centre again. There were indications that he was developing a psychotic disorder. His symptoms settled after being given medication. He was returned to prison but was ambivalent about taking his medication. After a period of not receiving his anti‑psychotic medication in 2005, he was again admitted to the Frankland Centre. Thereafter his medication was increased and given by depot injections.
Over the following years Mr White was noted as having poor personal hygiene, being dishevelled, having restricted conversation and difficulty sleeping. There were suspicions that he was responding to unseen stimuli. However, concerns regarding his mental health gradually decreased and by 2012 he was considered to be mentally stable.
Jenkins J noted at [73] that Mr White had not been able to confront his offending, the causes for it or to address what he needed to do to prevent it occurring again. She considered that his intellectual disability and mental health issues may have been a factor in this regard.
At the time of the last annual review, a report by a psychiatrist concluded that Mr White remained at a very high risk of serious sexual offending, however there had been a change in his attitude towards involvement in treatment programmes and in his desire for eventual release to the community. He had commenced regular counselling and his mental illness was considered to be satisfactorily under control by medication. He was enrolled to participate in the sexual offender treatment programme for intellectually disabled persons (SOID) in 2015. He had previously participated in that programme in 2010 but with only limited gains. At the time of the last review he was considered to be working well with his treating psychologist but treatment gains were difficult to ascertain. Corboy J concluded that on the material available at that time, the community would not be adequately protected if Mr White was released on a supervision order.
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 historic materials, the book including the following:
(1)a programme completion report for the SOID programme dated 18 November 2015;
(2)a treatment progress report by Ms Sarah Ballantyne, a senior counselling psychologist with the forensic psychological service of the Department of Corrective Services dated 20 November 2015;
(3)a community supervision assessment by Ms Julie Dabala, a senior community correction officer with the Department of Corrective Services dated 23 November 2015; and
(4)a psychiatric report by Dr Brian Tanney dated 24 November 2015.
With the exception of Ms Dabala and the SOID programme facilitators, the applicant called the witnesses who produced these reports to give oral evidence. Ms Dabala was unable to attend to give oral evidence as she was unwell.
The applicant also called Ms Jane Henshall, a senior community corrections officer, who gave evidence regarding a meeting held at Acacia Prison on Tuesday 1 December 2015 between officers of government bodies responsible for providing disability services and Mr White. I will refer further to that evidence later in these reasons.
Mr White elected not to give or adduce any evidence on the application.
SOID programme
The SOID programme is designed for individuals with low cognitive functioning. The main focus of the programme is to increase individuals' insight into their offending behaviour, self‑monitoring and behavioural controls. The programme is of four months duration and involves two sessions per day, one day per week with each session of two hours duration. Mr White undertook an SOID programme between 22 May 2015 and 25 September 2015.
The treatment report states that Mr White was a polite and engaged group member who was a positive example to the other participants. He reported strong motivation to complete the programme and was an active participant in all group activities and discussions. At the beginning of sessions he would frequently express concerns about his ability to participate, referring to the effects of his anti‑psychotic mediation and the difficulty he had in recalling information or thinking clearly. However with reassurance from the facilitators he was able to contribute to group discussions and recall work from previous sessions. He was able to demonstrate skills including, assertive communication, starting conversations, building self‑esteem, using positive self‑talk, effective problem solving, identifying emotions, using coping strategies to manage difficult emotions such as anger and frustration, and giving and receiving feedback.
Whilst Mr White generally maintained a positive attitude to the programme, on one occasion he became unhappy and said 'someone told me I wasn't getting out even if I do this course'. His demeanour abruptly changed and he expressed veiled threats to harm unspecified individuals. However, later that day he returned to his usual demeanour, stating that he was 'feeling better' and engaged appropriately in group discussions. He later apologised for his behaviour and expressed the belief that it was due to eating some food that had disagreed with him. Subsequently he spoke much more calmly when acknowledging that he may not be released if suitable accommodation could not be found, but he maintained a positive outlook that he may be eligible for release the following year.
Mr White was encouraged to develop a risk management plan. He was highly motivated to spend time talking about the causes of his offences and what he could do to manage his risk in the future. In exploring scenarios he was able to identify risk factors and what could be done by him to minimise or avoid them. His hope on release was for simple life that he described as 'taking my time, cleaning my house, report to the parole officer, go out to the shops once a week but otherwise stay home, have a good dinner and a can of coke, and read'. He believed that he would not need assistance to live in the community. He referred to a goal of visiting a woman who he described as his girlfriend who resides in Adelaide, though he has had no contact with this person for several years. The facilitators of the programme concluded that whilst he had put some thought in to his plans for release, he would require a higher level of assistance than he anticipates in order to deal with the challenges that may arise and to develop appropriate personal and professional support networks.
The facilitators concluded that Mr White had engaged in the programme enthusiastically and to the best of his ability. He had demonstrated gains in his consequential thinking, communication and social skills, and self‑management skills, including his ability to effectively manage anger and respond to conflict. He had also developed an understanding of his offending and the need for risk management strategies for the future. However, his offending history, psychiatric diagnosis, cognitive impairment and extensive period of incarceration mean that he has complex needs and would require close supervision and support to assist him to maintain the gains that he has made and to apply these effectively in the community.
The facilitators considered that it was important that Mr White continue to adhere to his medication regime, refrain from any alcohol or substance abuse and continue to engage in individual counselling with his psychologist. He had presented as being amenable to continuing to work with his psychologist to maintain the gains that he had made and to continue to address issues relevant to managing his risk of reoffending.
Psychological counselling
Since the last annual review Mr White has been receiving individual counselling with an assigned psychologist. This has fluctuated between weekly and fortnightly sessions. Weekly appointments occurred during the period that he was the participant in the SOID to assist him in dealing with issues raised in that programme.
The counselling sessions had been constrained in their individual duration because Mr White is impulsive and has difficulty sustaining attention. Most sessions were concluded after 15 to 30 minutes. Notwithstanding this, he has shown some improvements in his ability to identify and describe factors that contributed to his past sexual offences. However his stance and explanations for those offences were inconsistent and at times he portrayed himself as the victim. On other occasions he maintained that his problematic behaviours were specific to his use of illicit substances.
The psychologist considers that Mr White has very limited insight and understanding regarding his substance use problems, mental health and social skills deficits. Attempts to address his substance use history have been met by avoidance and resistance. He has unrealistic views regarding the potential for relapse into substance abuse if returned to the community and was unable to identify appropriate management strategies for addressing that risk.
In the treatment progress report Ms Ballantyne states that the utility and efficacy of psychological interventions is limited given Mr White's psychological, psychiatric and cognitive impairments. He has made some gains in understanding concepts and social skills from his participation in the SOID and individual counselling sessions, but he is unlikely to benefit significantly from any further group oriented treatment programmes.
Ms Ballantyne states that a significant level and intensity of support would be required for Mr White to be able to live independently in the community. She expresses concerns regarding institutionalisation and suggests that he may benefit from being moved to a lower security prison in which his skills and abilities in daily living could be assessed and tested in preparation for possible future release.
Community supervision assessment
In Ms Dabala's report she states that Mr White needs supported, secure and single living accommodation, such as a psychiatric hostel. He has been assessed as needing ongoing support in the community and this is made more difficult as he has no family or friends in the community in Western Australia. He would need assistance in obtaining employment and developing basic life skills.
At the last annual review, reference was made to an application to the State Administrative Tribunal for Mr White to be the subject of a guardianship and administration order. The office of the Public Advocate did not support such an order. According to Ms Dabala's report, that was because the office of the Public Advocate was of the opinion that as Mr White was still in custody there were no financial issues at this time that required an administrator. The application was subsequently dismissed.
As has been noted, it is considered that Mr White would require supported and secure accommodation. Ms Dabala states that he may also require single living arrangements due to his history of poor hygiene, mental health issues and impulsive behaviour. He has been assessed as requiring support in completing daily living tasks such as cooking, cleaning and maintaining his personal hygiene. At this time no suitable accommodation which meets these requirements has been identified.
Psychiatric evidence - Dr Brian Tanney
Dr Tanney has assessed Mr White in the past. He prepared reports for both the initial division 2 hearing and the first annual review. He interviewed Mr White again on 17 November 2015.
Mr White was cooperative with Dr Tanney, but he provided short concrete replies and had a limited attention span. His mood was slightly flat and restrained in intensity and range. However Dr Tanney considered that his general communication skills were notably improved.
Mr White was positive about the SOID programme and referred to changes in his thinking. He gave examples of things that he had learned. Dr Tanney considered some of this to be rote learning but he was impressed by Mr White's understanding of the concepts and his ability to apply them to different situations. However, Mr White avoided issues around sexual behaviour and interests in custody and had only general comments about the need to address substance abuse. He expressed a desire for re‑entry into the community but was aware of the need for support and of accommodation difficulties. He understood that a minimal security custodial setting might represent a transition towards re‑entry to the community under a supervision order.
Dr Tanney said that Mr White's willingness to move from Casuarina to Acacia was a positive sign. Mr White had also shown signs of better social engagement at Acacia and a willingness to develop new skills. His institutionalised behaviour at Casuarina had become entrenched and his improvements at Acacia indicated a potential for further gains.
Dr Tanney considered the risk of re‑offending in the context of the Risk for Sexual Violence Protocol (2003) (RSVP). He also considered the Static 99R test, an actuarial tool for assessing the risk of sexual offending recidivism. The re‑offending risk on the Static 99R test was unchanged, that being a test based almost entirely on fixed historical factors. Mr White remains at very high risk of further sexual offending on that test. However, that risk and the management of it needs to take into account treatment and other management activities that could impact on or alter the assessment. These other activities include the positive impact of the SOID programme and improved emotional self‑management. The psychotic mental disorder does not appear to be a direct contributor to his sexual offending and is adequately managed by medication. However Mr White's limited understanding of the value of his medication is likely to impair his voluntary long term adherence in the community. His intellectual disability remains a permanent factor limiting his capacity to benefit from treatment or support. Substance abuse is a major influence on the likelihood of reoffending and this has not been addressed by Mr White, nor has he made a commitment to change or recognise this issue as being a strong risk factor. Taking all of these factors into account, Dr Tanney is of the view that there has been a minor amelioration in Mr White's risk of reoffending, but it remains in the high risk category.
Dr Tanney states that there continues to be outstanding treatment needs in the areas of substance abuse and the ongoing development of independent social and living skills. The gradual acquisition of social skills can be accomplished in custody through placement in a less restrictive security setting that allows the development of individual responsibility. Anti‑libidinal medication is a consideration, but not recommended at the present time.
Due to his cognitive psychological and psychiatric impairments Mr White will require very considerable support to enable his functioning in the community. Dr Tanney states that there are supports available and a multi‑agency strategy is recommended. Involvement in such programmes would need to be mandated as part of any supervision order. Dr Tanney concludes that at the present time release to community supervision is not recommended.
Disability services - Ms Jane Henshall
Ms Henshall gave evidence that on 1 December 2015, a meeting was held with Mr White at Acacia Prison. Also in attendance were representatives from the National Disability Insurance Agency, the Disability Services Commission and Mr White's treating psychologist. It would appear from this meeting that Mr White has been assessed as being eligible under the National Disability Insurance Scheme should he remain living in an area in which the NDIS is running. Funding under the scheme will only be made available on release and in respect of an approved plan. Yearly reviews are conducted under the NDIS scheme to take account of any changes in circumstances. Accommodation is not funded under the scheme.
To remain eligible under the NDIS Mr White would need to remain in an area that is presently covered. That currently includes the Perth hills where Acacia Prison is located. Should Mr White be transferred to Karnet Prison Farm he would no longer be eligible under current arrangements. However, it is anticipated that a decision will be made by the Federal government by July 2016 as to whether there would be a full rollout of the scheme. An alternative possibility is Wooroloo Prison as that is within the pilot area.
Subsequent information from the Disability Services Commission is that a further meeting was held between DSC and the NDIA. The advice received was that the NDIA had agreed to work towards developing a basic funded plan to facilitate Mr White's transition from custody. This decision was justified by reference to an operational guideline under the scheme dealing with the interface of disabled people with the justice system. This guideline provides that:
the NDIS is generally more appropriate to fund the following reasonable and necessary supports:
1....
2.for people in custody ...
...
(b)supports to facilitate the participant's transition from custody to the community where these needs are specific to the participant's disability and additional to transition needs of other people living in custody.
The information received is that the basic funded plan may incorporate a certain number of funded hours in a year that can be used nearer to the time of release to help 'build a relationship' with Mr White in custody. Precisely what this means in practical terms is not clear, but it appears that he will be eligible to receive some support to assist with a transition to life in the community, but only if he remains in an NDIS catchment area.
Findings
It is clear on the evidence that Mr White 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.
There has been a minor reduction in the risk of reoffending, but that risk remains high. The factors that contribute to that risk include Mr White's past propensity for serious violent sexual offending and his substance use issues. Efforts to manage and reduce the risk include the SOID programme and psychological counselling. These have resulted in some improvements in insight and self‑management. However, Mr White's cognitive impairment, institutionalisation, psychological and psychiatric health issues mean that he has very limited life skills and would require significant support to live independently. Before release into the community can be a viable option, he needs to address his past substance abuse issues and to learn and practice some basic life skills.
The Department has prepared a gradual release plan in respect of Mr White. That plan identifies specific issues that need to be addressed before he is capable of being released on a supervision order. These include developing basic life skills, continuing psychological counselling, exploring community accommodation options and seeking to develop community supports. They also include pursuing the NDIS referral. This plan seems to be appropriately crafted to address Mr White's individual needs and to identify the practical steps required to be taken to meet them.
Conclusion
I am satisfied that Mr White 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. He has made some progress in the past year but has not yet reached a stage where release is a practical option. 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 White could reoffend.
For those reasons, I expressly decline to rescind the continuing detention order.
2
2
1