Director of Public Prosecutions (WA) v White [No 4]
[2016] WASC 414
•21 DECEMBER 2016
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- WHITE [No 4] [2016] WASC 414
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 414 | |
| Case No: | DSO:4/2013 | 6 DECEMBER 2016 | |
| Coram: | JENKINS J | 21/12/16 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Continuing detention order affirmed | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) STEPHEN NEIL WHITE |
Catchwords: | Dangerous sexual offender Annual review Respondent remains a serious danger to the community Community would not be adequately protected if the respondent was released under a supervision order Continuing detention order affirmed |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 17, s 33 Mental Health Act 2014 (WA) |
Case References: | Director of Public Prosecutions (WA) v White [2013] WASC 417 Director of Public Prosecutions (WA) v White [No 3] [2015] WASC 472 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
STEPHEN NEIL WHITE
Respondent
Catchwords:
Dangerous sexual offender - Annual review - Respondent remains a serious danger to the community - Community would not be adequately protected if the respondent was released under a supervision order - Continuing detention order affirmed
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 17, s 33
Mental Health Act 2014 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
Applicant : Ms S Markham
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 (WA) v White [2013] WASC 417
Director of Public Prosecutions (WA) v White [No 3] [2015] WASC 472
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
1 JENKINS J: The respondent, Stephen Neil White, is the subject of a continuing detention order (CDO) made by me on 20 November 2013 pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act) s 17: Director of Public Prosecutions (WA) v White [2013] WASC 417.
2 As required by the Act until its recent amendment, annual reviews have been conducted since the CDO was made. On 7 December 2015, at the second annual review, Hall J declined to rescind the CDO: Director of Public Prosecutions (WA) v White [No 3] [2015] WASC 472.
3 On 8 December 2016, I held the third annual review of the CDO (the 2016 review). At the conclusion of the hearing, I affirmed the CDO. These are my reasons for making that order. These reasons should be read together with all earlier reasons for decisions made under the Act which relate to Mr White.
Evidence at the 2016 review
4 The evidence at the 2016 review included Mr White's Department of Corrective Services (DCS) records created in the last 12 months.
5 Mr White is a medium security prisoner at Acacia Prison Foxtrot Block (Assisted Care) on a standard level of supervision. He is generally polite and respectful towards staff and is not considered to be a management problem. He interacts well with others within the block. However, he often needs to be reminded to maintain his cell and personal hygiene.
6 Due to Mr White's ongoing health issues, he is unable to work. Nevertheless, Mr White helps with general tasks such as gardening and cleaning floors. He is proud of the contribution he makes by completing these tasks and they promote his self-esteem.
7 Mr White does not receive regular social visits and he only occasionally uses the telephone and mail.
8 Mr White has regular doctor and nursing consultations. The prison medical records show that his physical and mental health is being well-managed at the prison.
9 Dr Bryan Tanney, consultant forensic psychiatrist, was appointed by the court to prepare a psychiatric report about Mr White for the 2016 review. Dr Tanney also gave evidence at the hearing. Dr Tanney had prepared reports about Mr White for the division 2 hearing and for the first two annual reviews. Thus, he is very familiar with Mr White's circumstances.
10 Dr Tanney noted that the dose of Mr White's anti-psychotic medication had been decreased over the last year. The medical notes record that this was at the request of Mr White because of the side-effects of the medication. Despite the decrease, Mr White's psychosis has not re-emerged.
11 Dr Tanney also noted that Mr White has been diagnosed with hyperthyroidism and has been placed on medication, accordingly.
12 In addition to Mr White's employment, Dr Tanney noted that Mr White has participated in educational courses over the last 12 months. He has received several programme completion certificates and is currently upgrading his literacy skills.
13 Mr White denies any sexual activity in custody.
14 Mr White has started a strenuous, exercise and dietary programme aimed at weight loss. It is notable that Mr White initiated this programme. Dr Tanney says that his dedication to his exercise and dietary programme is credible and it indicates perseverance and initiative.
15 Dr Tanney noted Mr White's limited intellectual capacity and attention span. However, unlike at earlier interviews, Mr White made an effort at engaging with Dr Tanney and he introduced numerous relevant topics. He also provided short, albeit concrete, replies to direct questions and his answers were reliable. There was no evidence of a psychosis or a thought disorder.
16 Dr Tanney concluded that Mr White's general communication skills had increased over the last 12 months although he still lacked insight and the ability to self-reflect. Dr Tanney said that Mr White remains positive about the gains he had made whilst participating in the sex-offender treatment programme for intellectually disabled persons (SOID). Dr Tanney thought that the examples that Mr White gave of what he had learnt during the SOID, unlike last year, did not appear to be simple rote learning. Mr White appeared to have embraced and personalised the principles he learned during the programme.
17 Mr White told Dr Tanney that he was more assertive and Dr Tanney noted that his self-esteem appeared to have risen. He greeted his counsellor and several peers with energy and confidence. He was positive about his decision to stop using substances and to stop offending.
18 Mr White told Dr Tanney that he wanted to live in the community. He understood that his prospects of being released would be enhanced by him doing rehabilitation courses, accepting support and following a routine. He was aware of the difficulties in finding accommodation in the community for him and he appeared involved in the planning process for his release. He understood that a minimum security custodial placement may assist him to transition towards release under a supervision order.
19 Mr White expressed negative aspects towards women as he regarded them as 'unclean' and as 'setting you up'. He expressed that he was too old for any relationships although he accepted that a female friend may be 'okay'.
20 Dr Tanney is of the opinion that without effective, ongoing management and the implementation of specific risk diminishing measures, Mr White remains at a very high risk of further serious sexual offending, as estimated by available procedures and measures.
21 In determining Mr White's risk, Dr Tanney has taken into account the progress made by Mr White as a consequence of his ongoing, individual counselling, the SOID, the remission of his psychosis and his emerging capacities to manage his impulsivity and to adopt a more pro-social attitude. Dr Tanney concluded that there has been a minor amelioration in Mr White's risk of serious sexual offending but that this was largely related to managing particular elements of the risk. Despite that amelioration, his risk of serious sexual offending remained high.
22 Dr Tanney is of the opinion that a risk management programme can be developed that would address the risks of Mr White committing a serious sexual offence so as to enable successful management of his risk in the general community. In addition to the usual management tools such as electronic monitoring and a residential condition, the management tools required on a community supervision order would include:
(1) Mr White's participation in a community-based sex offender programme, both group and individual-based;
(2) adherence/compliance to follow up by community mental health services, perhaps requiring application of the Mental Health Act 2014 (WA) provisions; and
(3) Mr White's involvement with Disability Services Commission support programmes.
23 Dr Tanney concluded that at the present time a CDO is not needed to manage Mr White's risk of sexual reoffending. However, Dr Tanney acknowledged that suitable accommodation and the resources needed to support Mr White's community re-entry and functioning do not yet appear to be fully in place. Dr Tanney is of the opinion that they could be available but may require several more months to be fully confirmed. He said that an interim placement in a minimal security setting would advance Mr White's social and independent living skills, challenge his capabilities to manage with less structured support and test his emerging self-care competency.
24 Dr Tanney recommended that Mr White be released on a community supervision order made under the Act.
25 In his evidence, Dr Tanney observed that Mr White has initiative which he did not have previously. Dr Tanney said that this change is an important step towards Mr White avoiding entrenched institutionalisation.
26 Dr Tanney said that it was not possible to test Mr White's capacity to remain substance free in the community unless he was released in the community on a community supervision order.
27 Dr Tanney is of the opinion that Mr White is ready to move on from Acacia Prison and he, Dr Tanney, is disappointed that a move has not occurred to date.
28 Dr Tanney suggested that new residential placements, presumably, provided by the Department of Health's mental health services would be a suitable placement in the community for Mr White. Dr Tanney prefers such placements to a psychiatric hostel as each placement has a small number of residents. Dr Tanney is of the view that a psychiatric hostel may have too many anti-social respondents who could standover and/or influence Mr White.
29 Dr Tanney is of the opinion that a gradual release programme for Mr White could include a release to the Murchison Ward at Graylands Hospital.
30 Dr Tanney agreed that Mr White could also be transferred to the pre-release unit at Bunbury Prison as an alternative to the Murchison Ward. He agreed that before Mr White could be placed in the Murchison Ward an application would have to be made to Graylands Hospital and it is likely that there would be at least a six month waitlist for a position.
31 Ms Rachael Williams, senior clinical psychologist, completed a Forensic Psychology Services Dangerous Sex Offender Treatment Progress Report dated 21 November 2016. Ms Williams saw Mr White five times prior to the preparation of her report because she was unfamiliar with him and because he was only able to concentrate for limited periods of time during their interviews.
32 Since the 2015 annual review, Mr White has engaged in approximately monthly sessions of psychological intervention with Ms Charmaine Place, his assigned forensic psychologist. Ms Williams consulted with Ms Place for the preparation of her report.
33 Ms Place reported to Ms Williams that Mr White's comprehension of material is variable, but he occasionally demonstrates insight and is able to apply new skills. Ms Place identified a number of barriers to treatment including Mr White's observable limited ability to sustain attention, his use of avoidance behaviour to end sessions prematurely, his general restlessness and his impulsivity.
34 Ms Place has continued to revise Mr White's previous learning about sexuality and consent. She reported that Mr White has demonstrated a good understanding of consent, contraception, the importance of hygiene and an awareness of sexually transmitted diseases. However, he still maintains some incorrect beliefs regarding some aspects of sexuality. In her evidence, Ms Williams said that these misunderstandings were in relation to when sexual intercourse should occur between consenting adults and how a woman becomes pregnant.
35 Ms Place reported that Mr White continues to deny any current interest in sexual activity. It is clear that the experts doubt the truth of Mr White's claims that he has no interest in sex and does not engage in sexual activity in prison.
36 Ms Place noted that Mr White would benefit from developing a broader understanding of his risk factors for sexual offending as well as additional risk management strategies.
37 Ms Place has revised Mr White's understanding of substance abuse and the part it plays in increasing his libido and aggression and decreasing his self-control. Although Mr White was able to identify various risk management strategies to avoid relapse into substance misuse, he was not able to identify high risk scenarios for potential relapse. It is Ms Place's opinion that he has made no further gains in this area.
38 Violent offending and anger management strategies have not been specifically addressed in individual counselling sessions since the 2015 review. Ms Place understands that Mr White had been involved in one incident in the prison in 2016 where he had become aggressive. Ms Place told Ms Williams that, although Mr White minimised his aggressive behaviour on that occasion, he was able to take responsibility for it and he was also able to walk away from the incident. Afterwards he apologised to the relevant staff member. This area will be an ongoing focus of treatment.
39 At the 2015 review the court was told that it was planned that Mr White would be transferred to a lower security prison in preparation for his ultimate release and/or to ascertain whether he could manage in an environment where he had to take more responsibility for his care. This did not occur for two reasons. One reason was that custodial staff were concerned about Mr White speaking to other prisoners about his offending behaviour. It was thought that as a result Mr White may be victimised or stood over. Ms Place has been working on this issue. She told Ms Williams that Mr White is developing awareness about the inappropriateness of talking about certain topics indiscriminately with other people. He has also improved his understanding of some basic communication skills, although he occasionally demonstrates inappropriate social behaviour such as interrupting others and using unsuitable language.
40 At the hearing I witnessed this. At the commencement of the hearing Mr White stood up and moved around the dock in an impulsive and slightly aggressive manner. He was keen to make his points. When I spoke to him calmly and told him that the proceedings would take some time and he needed to be patient, he quickly quietened down. There were other occasions during the hearing where he interrupted a witness because he had a point he wished to make. These were examples of both his impulsivity and his inappropriate social behaviour, even though his comments were relevant to the topic being discussed by the witness or counsel. This sort of behaviour could well cause trouble for him in the community if people were less understanding of his cognitive difficulties and where there was a greater risk that people would react in a confrontational manner towards Mr White; rather than in a soothing manner.
41 The National Disability Insurance Scheme (NDIS) has accepted Mr White into its scheme and has appointed the North Eastern Alliance for the Mentally Ill (NEAMI) as Mr White's specialist coordinator of services. At the time Ms Williams wrote her report, Mr White had not yet met with NEAMI representatives.
42 Ms Williams received email correspondence from the manager at Acacia Prison responsible for the assisted care unit. The manager advised Ms Williams that Mr White's behaviour is often erratic due to mood swings. However, Mr White is neither volatile, rude or argumentative. The manager described him as an extremely vulnerable prisoner who is easily stood over by others. She also noted that Mr White responds well to praise and actively seeks it out. He appears to want to please others.
43 Ms Williams noted that Mr White was polite and responsive during interviews. However, he tended to be tangential in his speech at times. He nodded his head in an exaggerated manner and hung his head at regular intervals during the course of the assessment. I also noted this during the hearing. Whilst Mr White would initially be overly talkative and intrusive, by the end of his outburst he tended to be quiet and looking down at his lap.
44 At his first interview with Ms Williams, Mr White produced a copy of an education certificate certifying that he had completed 60 hours of general education. He reported that he was now spending time practising his writing. He was trying to find ways to improve himself, predominantly through education and religion.
45 Mr White also informed Ms Williams that he was learning how to be assertive by saying no and walking away. He said that he now had self-control and was well-mannered.
46 Mr White told Ms Williams that he did not anticipate any issues with relapse to alcohol or substance misuse in future given that he had not used those substances for the past 16 years in custody. He denied ever thinking about sex whilst in custody.
47 Mr White described himself as having a 'splash of schizophrenia'. He said that the monthly depot medication calms him down. He said that if he was prescribed the wrong medication he could 'snap and kill someone'. Mr White said that his potential for violence also increased if he consumed alcohol.
48 During the hearing, before me, Mr White asked if he could comment on a potential placement in a psychiatric hostel. When he did so, he expressed the view that a psychiatric hostel which had a large number of residents would not be suitable as if somebody got into his face, he would 'smash' them.
49 Mr White told Ms Williams that his risk factors were alcohol, negative peers, accepting lifts in cars, not complying with the conditions of his order, mixing with dishonest people, not budgeting properly, reading too much pornography and forgetting things. He specified his risk management strategies as education, medication compliance, religious practice, avoidance of trouble areas (such as Northbridge), avoidance of substance using peers, writing notes to remind himself about appointments and learning to budget.
50 Ms Williams expressed the opinion that Mr White has demonstrated initiative by seeking out educational options commensurate with his level of functioning and by requesting changes to his medication to support his ability to engage in such opportunities. Despite this, she said he continues to lack insight into his mental health, including the rationale for ongoing treatment and he has been occasionally non-compliant with oral medication since his last review. His level of engagement with his treating psychologist appears satisfactory although she is concerned that he expressed disbelief when his mistaken ideas about sexual matters were corrected. She said that Mr White has continued to exhibit difficulty with sustained and active engagement in therapy, primarily due to his cognitive limitations and psychiatric and psychological issues.
51 Ms Williams said that if Mr White was released to the community he would require structure and support on an ongoing basis and it would be imperative that he engage with the community forensic mental health team to manage his psychiatric treatment and monitor his mental health.
52 Ms Williams said that Mr White would benefit from a modified re-socialisation programme at a minimum security facility to assess and monitor his ability to perform activities of daily living, in addition to enabling him to practice his social skills with a broader range of individuals and in a more independent manner. During this time, it would also be of benefit to commence engagement with community organisations which are likely to be involved in his care in the community in order to begin the process of building relationships with key personnel.
53 Ms Williams said that although Mr White is not able to sustain a full-time employment position due to ongoing physical and mental health issues, he would benefit from engagement in meaningful vocational and educational activity, commensurate with his ability, in a sheltered or supported environment.
54 In conclusion, Ms Williams said that Mr White had made incremental gains in the areas of emotional management and social and communication skills and that he has maintained gains in his limited understanding of sexuality and consent. If Mr White remains in custody, Ms Williams recommended that he continues counselling with Ms Place to reinforce his learning and to expand his understanding of issues relevant to his risk of sexual and violent reoffending. These issues include the prevention of relapse to alcohol or substance abuse, the recognition of high risk situations, the development of his understanding of his mental health, including the identification of early warning signs of relapse and ongoing emotional management strategies. Mr White's counsellor should use a predominantly behavioural approach. Given the limitations in his ability to recall information, written material which is appropriately targeted to his learning levels as well as visual prompts would be helpful to assist consolidation of his learning.
55 In evidence, Ms Williams said that Mr White's psychological issues are best addressed in individual therapy. Although Mr White was keen to do the Alternatives to Violence Programme, she was not convinced that it was suitable for him.
56 Ms Williams expressed the view that the Bunbury pre-release unit at the Bunbury Prison would be a good placement for Mr White to test the gains that it is hoped that he has made over the past couple of years. Ms Williams said that she would prefer to see Mr White placed at Bunbury Prison rather than Karnet Prison. She said that the staff at Bunbury had more experience with sexual offenders. She also agreed with Dr Tanney that the mental health services units sounded like they would be a better placement option for Mr White than a psychiatric hostel.
57 Ms Jane Henshall, senior community corrections officer, completed an Adult Community Corrections Community Supervision Assessment Report dated 29 November 2016. Ms Henshall also gave evidence at the hearing.
58 Ms Henshall reported that during 2016 custodial staff had advised against a transfer of Mr White to a minimum security prison until he was able to self-manage his disclosure of his sexual offending to other prisoners. More recently, prison staff had noted a considerable reduction in his disclosures to other prisoners.
59 The second reason why Mr White was not transferred to a lower security prison related to his acceptance into the NDIS scheme. The NDIS does not operate in the geographical area in which Bunbury Prison and other lower security prisons are located. If Mr White was transferred to one of these prisons, he would lose his NDIS funding and further arrangements would have to be made in respect to obtaining funding through the Western Australia Disability Services Commission.
60 Notification that Mr White was accepted into the NDIS was received on 27 October 2015. However, a funding plan was not finalised until 24 May 2016. The plan includes funding for a specialist support coordinator which can assist in finding accommodation for Mr White. The plan stipulates that the specialist support coordinator will be funded for up to four hours per week for 12 weeks prior to Mr White's release. On 22 September 2016, it was confirmed that NEAMI had agreed to take on the role of specialist support coordinator for Mr White.
61 An initial meeting with the NEAMI national manager and NDIS support coordinator occurred on 30 September 2016. Upon disclosure of Mr White's current situation and his needs, the NEAMI national manager and NDIS support coordinator advised that the current NDIS funding plan may not be sufficient to provide the support which Mr White requires in the community.
62 A further meeting with NEAMI was held on 4 November 2016. Also in attendance was the Outcare executive manager of community and Aboriginal services and a case manager from the Outcare specialist supported accommodation programme. Outcare advised that due to Mr White's complex needs, it would not assist in providing accommodation to him but it may be able to engage a support worker from its disability programme. A referral was forwarded to Outcare on 17 November 2016.
63 A further discussion regarding accommodation was undertaken and the NDIS support coordinator advised that he had an appointment with the organisation which runs a residential hostel which may be able to provide accommodation for Mr White. The organisation specialises in psychiatric care as well as disability support. There has been conflicting advice as to whether the organisation would accept Mr White as a client. In evidence, Ms Henshall said she expected to be advised very shortly as to whether the organisation would accept Mr White as a potential client. However, even if its initial response was positive, there were still many investigations to be made and approvals to be obtained before it would be prepared to offer Mr White accommodation. For example, it would want to meet with Mr White to ascertain his suitability for its programme. It would then have to consider his needs and whether it could meet them. The current advice is that it would not be prepared to have Mr White live at its hostel but that it may be able to provide supervised private accommodation for him.
64 In evidence Ms Henshall said that if the organisation declined to accept Mr White as a client, other alternative accommodation options would have to be investigated. These may include Murchison Ward at Graylands or the mental health services residential facilities, in conjunction with a transfer to a lower security prison as part of a pre-release programme.
65 The result is that at this time there is no appropriate accommodation which has been identified as being available for Mr White.
The law
66 The Act s 33 provides:
(1) On a review of a person's detention under section 31 -
(a) if the court does not find that the person remains a serious danger to the community it must rescind the continuing detention order; or
(b) if the court finds that the person remains a serious danger to the community it must -
(i) affirm the continuing detention order; or
(ii) with effect from a date specified by the court, but not earlier than 21 days after the day on which the review is concluded, rescind the continuing detention order and make a supervision order in relation to the person.
(3) In making a decision under subsection (1)(b), the paramount consideration is to be the need to ensure adequate protection of the community.
67 In deciding whether to decline to rescind the CDO or make a supervision order, the judge is required to adopt the least restrictive alternative which is compatible with the protection of the community: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297.
Does Mr White remain a serious danger to the community?
68 Mr White's counsel conceded that Mr White remained a serious danger to the community. I am satisfied on the basis of Dr Tanney's expert evidence, which I have considered in conjunction with all the other evidence, that Mr White remains a serious danger to the community. Whilst Mr White has made some incremental positive changes in a number of areas of his life, these are not sufficient to significantly reduce his risk of serious sexual offending. Further, Mr White has made these changes in a highly controlled and managed environment. There is a real question mark as to whether he would be able to maintain these changes in the longer term in the community.
Whether to affirm the CDO or make a supervision order?
69 Dr Tanney recommends that Mr White be released into the community on a community supervision order. However, he recognises that the accommodation and the resources needed to support Mr White's community re-entry are not in place. Despite the elapse of 12 months, little progress has been made to identify an agency which can provide Mr White with supported accommodation. I understand that the process is complicated because of Mr White's needs and history. I also understand that the NDIS is still in its infancy and there are bureaucratic processes which have to be navigated. Nevertheless, it is regrettable that so little has been achieved in the last 12 months.
70 Whatever the reasons for the lack of progress, the result is that the community could not be adequately protected if Mr White was released into the community on a supervision order at this time. It would be setting Mr White up to fail and putting the community at too great a risk to release Mr White other than to a highly supported accommodation facility. There is no such accommodation available to him at this time.
71 Further, unless Mr White's situation changes radically, it appears to me that before Mr White is released on a supervision order he needs to be transferred to a lower security prison so that the extent to which he is able to care for himself can be ascertained.
72 Thus, the only order which is compatible with the protection of the community is an order affirming the CDO.
The next two years
73 In accordance with the amendments recently made to the Act, Mr White's CDO will not be reviewed for a further two years. In that period, the following steps should be taken:
(1) the funding plan under the NDIS should be implemented and, if appropriate, reviewed and extended;
(2) the possibility of accommodation with the organisation which runs the residential hostel should be pursued;
(3) if that is not possible, alternative accommodation should be pursued through Graylands Hospital or the Department of Health mental health services;
(4) in conjunction with the pursuit of suitable accommodation in the community, Mr White should be transferred to a lower security prison where he will be expected to take more responsibility for his own care;
(5) regular counselling with Ms Place;
(6) Mr White should be encouraged to pursue education and rehabilitation programmes appropriate to his ability within the prison system; and
(7) otherwise, the gradual release plan tendered at the 2015 review ought to be implemented.
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