Director of Public Prosecutions (WA) v Yates [No 2]
[2015] WASC 201
•5 JUNE 2015
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- YATES [No 2] [2015] WASC 201
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 201 | |
| Case No: | DSO:3/2013 | 29 APRIL 2015 | |
| Coram: | MARTIN CJ | 5/06/15 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Continuing detention order not rescinded | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) NIGEL YATES |
Catchwords: | Criminal law and procedure Dangerous sexual offender First annual review Whether community would be adequately protected if continuing detention order rescinded |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 17, s 33 |
Case References: | Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 Director of Public Prosecutions (WA) v Yates [2014] WASC 136 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
NIGEL YATES
Respondent
Catchwords:
Criminal law and procedure - Dangerous sexual offender - First annual review - Whether community would be adequately protected if continuing detention order rescinded
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 17, s 33
Result:
Continuing detention order not rescinded
Category: B
Representation:
Counsel:
Applicant : Ms K Robinson
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
- MARTIN CJ:
Summary
1 This is the first annual review of an order which I made last year under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) directing that Mr Nigel Yates be detained in custody for an indefinite term for control, care and treatment.1 Counsel appearing on behalf of Mr Yates did not contend that the order should be rescinded because Mr Yates no longer remained a serious danger to the community.2 However, she did contend that there had been a change in Mr Yates' circumstances since the detention order was made such that the community would be adequately protected if the detention order was rescinded and Mr Yates was released into the community subject to his continuing compliance with various conditions.
2 For the reasons which follow, I accept that Mr Yates has made progress towards the point at which it might be concluded that the community is adequately protected from the risk which he poses if the continuing detention order is rescinded and he is released into the community subject to his continuing compliance with various conditions. However, that point has not yet been reached, and the detention order will continue.
Legal principles
3 Section 33 of the Act provides:
33. Review of detention under continuing detention order
(1) When the court, on an application made under section 29 or 30, reviews a person’s detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a) expressly decline to rescind the order; or
(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
4 In Director of Public Prosecutions (WA) v Pindan [No 3],3 Corboy J raised an issue with respect to the proper construction of this section of the Act which he did not consider it necessary to resolve in that case.4 The issue concerns the extent to which the court conducting the review is bound by factual findings made by the court which made the continuing detention order with respect to such matters as the risk of reoffending, the unacceptability of that risk or the protection likely to be afforded to the community by a supervision order. If the court conducting the review is not so bound, is it obliged to make its own independent and fresh assessment of those factual issues? Or is the task of the court conducting a review limited merely to ascertaining whether there has been a change in the offender's circumstances since the order was made and if so, assessing the effect which the change or changes in circumstances have had upon the question of whether the offender remains a serious danger to the community or, if the offender does remain a serious danger to the community, upon the character of the order which must be made to provide adequate protection to the community?
5 As in Pindan [No 3], the parties to this review did not address these questions of construction in their submissions. Rather, they were content to proceed on the implicit assumption that the function of the court conducting a review was of the more confined character to which I have just referred. That may well be because, in this case, there may be little practical difference between the different approaches identified by Corboy J in Pindan [No 3], given that the review is to be conducted by the same judge who made the continuing detention order. In the circumstances of this case, I do not consider it necessary to resolve the issue of construction identified by Corboy J in Pindan [No 3], and will proceed upon the basis implicit in the approach taken by the parties, which is to the effect that the focus of the court's attention is upon the identification of any changes in circumstances since the continuing detention order was made, and if so, the consequences of those changes in terms of risk to the community. It follows that the findings of fact which I made at the time I made the continuing detention order5 provide the factual threshold for the conduct of this review, and should be taken to be incorporated by reference into these reasons. However, as will be seen, evidence adduced in the course of the review casts doubt upon some of the conclusions I reached at the time of making the order, most particularly on the topic of whether Mr Yates required neuropsychological assessment to ascertain whether he suffers from cognitive disability to an extent which would preclude his effective participation in programmes aimed at reducing the risk of his offending behaviour.
The evidence
6 All the evidence adduced on the review was presented by the DPP (WA). Three witnesses were called - Dr Ben Bannister, a forensic psychologist, Dr Peter Wynn Owen, a forensic psychiatrist, and Ms Jane Henshall, a senior community corrections officer.
Dr Ben Bannister
7 Dr Bannister is a forensic psychologist employed by the Department of Corrective Services. His responsibilities include the management of the forensic psychological service provided by that department. His evidence took the form of a written report augmented by oral testimony. The written report was based upon an interview with Mr Yates of one hour's duration, perusal of file information and counselling notes held by the department, and ongoing consultation with Mr David Summerton, a clinical psychologist who gave evidence at the hearing which preceded the making of the continuing detention order (the division 2 hearing), and who has provided 20 one-hour psychological intervention sessions to Mr Yates over the last 12 months. As will be seen, much of Dr Bannister's evidence relies upon information provided to him by Mr Summerton. Mr Summerton was not called to give evidence because of the very real risk that giving evidence to the court might interfere with or destroy his ongoing therapeutic relationship with Mr Yates, or place Mr Summerton in a position in which his professional obligations to Mr Yates conflict with his duty to the court.
8 In his written report Dr Bannister notes that Mr Yates was initially uncomfortable with the therapeutic process initiated by Mr Summerton and expressed uncertainty regarding the purpose of counselling during initial sessions. However, Mr Yates became more at ease in the later sessions. Mr Summerton observed that Mr Yates often demonstrated a tendency to become withdrawn or defensive in the process of addressing his offending behaviour, although this characteristic diminished to some extent over the course of the therapy provided.
9 Mr Summerton reported a 'small incremental shift' in Mr Yates' acceptance of responsibility for his offending behaviour over the course of their sessions. As will be seen from my reasons at the time of making the continuing detention order, Mr Yates' denial of responsibility for his offending behaviour had been a continuing characteristic over most of his criminal trajectory. Although Mr Summerton reported some progress in relation to Mr Yates' acceptance of responsibility, he described that progress as 'insubstantial'.
10 Mr Summerton has addressed issues relating to consent for sexual behaviour in his sessions with Mr Yates. Although Mr Yates maintained some enduring attitudes supportive of sexual offending, such as his view that women were prone to making false allegations of sexual misconduct, Mr Yates nevertheless acknowledged that his own behaviour was wrong, and that his victims had resisted his advances in some way.
11 Mr Summerton has also addressed Mr Yates' attitude towards sexual behaviour in their therapeutic sessions. He described that work as preliminary.
12 Mr Summerton endeavoured to introduce empathy into the therapeutic sessions. Although Mr Summerton reported that Mr Yates maintained a position of disdain towards his victims, in more recent sessions he had been able to identify the likelihood that his victims would have been frightened of him and could offer observations regarding the effects of sexual offending on women known to him.
13 Substance use has been a central focus of Mr Summerton's therapeutic programme, because of its significance in Mr Yates' past offending behaviour. Mr Yates has advised Mr Summerton that he intends to abstain from all forms of substance use, although he remained somewhat ambivalent about his future use of cannabis. Mr Yates has, however, acknowledged that he would be unable to use the drug while under a supervision order and did not consider that such a restriction would be problematic for him. Mr Yates recognised that the risks of substance abuse would be increased if he returned to some Aboriginal communities and had suggested viable alternatives for reconnecting with family while he remained in Perth. Mr Summerton reported some success in developing Mr Yates' skills at refusing substances offered to him.
14 Other aspects of Mr Summerton's therapy addressed general coping skills, focusing primarily on Mr Yates' lifestyle. It was noted that Mr Yates had never experienced a continuing intimate relationship in an urban setting, nor had he been subject to the level of supervision which a supervision order under the Act would entail. Accordingly, if Mr Yates was to be released on a supervision order to live with his girlfriend in the metropolitan area, significant adaptations to his lifestyle would be required. Mr Summerton reported that Mr Yates' responses to the challenges involved appeared basic, but feasible.
15 On the whole Mr Summerton reported that Mr Yates has made gradual progress within the counselling programme, including the development of a reasonable understanding of the factors that put him at risk of offending. However, there are aspects of Mr Yates' functioning that are less amenable to change, including his attitude. Nevertheless, Mr Summerton considered that Mr Yates has generally responded well to the counselling process and considered that the relationship he had developed with Mr Yates was sufficient to allow further progress and future gains. It is proposed that the focus of future therapy will be upon the development and strengthening of his capacity for self-management and his plans for the future, including the development of a more comprehensive approach to life after release from detention.
16 Contrary to views which were expressed in evidence during the division 2 hearing, Mr Summerton did not consider that it was necessary to undertake a neuropsychological assessment of Mr Yates. In his view, the perception that such an assessment might be necessary is more likely to be due to language and cultural barriers than cognitive disability. He noted that Mr Yates reads the newspaper on a daily basis and serves as an intermediary in communications between prison officers and his countrymen. During one session with Mr Summerton, Mr Yates used a map to explain his history and his associations with his people. Mr Summerton reported that Mr Yates was easily able to negotiate his way around the map and to read quite complex names.
17 Mr Yates reported to Dr Bannister that he considered that Mr Summerton's assistance had been helpful. He acknowledged to Dr Bannister that substance abuse was linked strongly to his offending behaviour and reiterated that he intended to be abstinent upon release.
18 Dr Bannister formed the view that Mr Yates was to some extent able to identify situations in which he was at high risk of reoffending, and in that context it would be necessary for him avoid certain remote communities or locations in Perth known for public alcohol consumption. Mr Yates also expressed to Dr Bannister his appreciation of the importance of engaging in meaningful activity as a way of managing future risk. In that context he discussed long-term plans to work as a cleaner either on a fly-in fly-out basis on a mine site, or with the local shire. He spoke positively to Dr Bannister about his relationship with his girlfriend, and emphasised that she did not allow people who consume alcohol at her residence.
19 Dr Bannister formed that view that Mr Yates had an appropriate understanding of the need for consent to sexual activity.
20 Dr Bannister concluded that despite the doubts that had been expressed during the division 2 hearing, Mr Yates' capacity to engage effectively with Mr Summerton suggests that he does not possess cognitive deficits to the extent that he is unable to benefit from behavioural change programmes.
21 Dr Bannister expressed the view that it was unlikely that further treatment while Mr Yates was in prison would yield significant gains for two main reasons. First, Mr Yates will not have the opportunity to practically apply his learned skills in a less restrictive setting, thereby missing any opportunity for direct reinforcement. Second, Mr Yates' current level of engagement with Mr Summerton is likely to be motivated, at least in part, by his desire for release. There is a risk that if Mr Yates is not released, he may lose the motivation to continue his counselling sessions with Mr Summerton.
22 In his oral evidence, Dr Bannister reiterated that he would describe the progress achieved by Mr Yates as incremental - it would not be described as massive, although within the constraints of his capabilities there has been some change and in some important areas.6 The areas of change which Dr Bannister considered to be important were Mr Yates' better understanding of the situations in which he would be at high risk of reoffending and his better understanding of the role of substance abuse in his offending behaviour. Dr Bannister also drew encouragement from Mr Yates' openness to the therapeutic process.7
23 Dr Bannister was of the view that Mr Yates was unlikely to benefit from participation in an Intensive Sex Offender Treatment programme, or a substance abuse programme because those issues had been addressed by Mr Summerton in the course of his therapeutic counselling. While Dr Bannister acknowledged that a group-based programme was 'the gold standard', in the case of a person like Mr Yates, one on one counselling of the kind provided by Mr Summerton could be effective. In Dr Bannister's view, although there were benefits to be derived from the dynamic interaction amongst participants in a group counselling session, one on one counselling programmes had the benefit of increasing the accountability of the participant. Dr Bannister expressed the view that if Mr Yates was to participate in a group sex offender treatment programme, a programme specifically designed for Aboriginal men would be more suitable.
24 In Dr Bannister's view, to the extent that Mr Yates continues to deny responsibility for his offending behaviour, that is an issue which goes more to his management rather than to his risk of reoffending. To the extent that there had been an improvement in Mr Yates' acceptance of responsibility, it suggested an improvement in the capacity to adequately manage Mr Yates.
25 Dr Bannister expressed the view that Mr Yates was 'potentially manageable in the community'.8 If he were to be released in the community, Dr Bannister would expect his counselling sessions with Mr Summerton to occur weekly and that strict behavioural conditions would be imposed under the supervision order.
26 Dr Bannister considered that Mr Yates' employment plans were realistic. The prospect of employment is a factor relevant to the risk of reoffending.
27 Dr Bannister also considered that if Mr Yates was in a domestic relationship with a partner who supported his abstinence from substance use, his risk of reoffending would be reduced. In Dr Bannister's view, engagement in a stable relationship of itself would reduce the risk of reoffending.9 However, Dr Bannister did express concerns that Mr Yates' prospective relationship with his girlfriend was untested.10
28 In answer to questions which I posed, Dr Bannister confirmed that his view with respect to Mr Yates' manageability in the community was premised on the assumption that he would be living in the metropolitan area with his girlfriend. Dr Bannister expressed the view that the fact that Mr Yates had never before lived in Perth (except while in prison), and had never before lived in a domestic relationship would 'certainly be very challenging for him', and that his capacity to manage each of those things was to some extent unknown.11
Evidence of Dr Peter Wynn Owen
29 Dr Wynn Owen is one of the psychiatrists who gave evidence at the division 2 hearing. Dr Wynn Owen provided a written report following an interview with Mr Yates of one and a half hours duration, a discussion with Senior Community Corrections Officer Jane Henshall, a discussion with Mr Summerton, a review of Dr Bannister's report and various other documentary materials provided to him.
30 In his report, Dr Wynn Owen reiterated a number of the views he had expressed in the course of the division 2 hearing. In addition, he noted that a prison officer had reported Mr Yates to be polite and respectful, and that he had assisted prison staff in tempering aggressive situations between prisoners and between prisoners and staff.
31 Dr Wynn Owen noted that Mr Summerton had reported that Mr Yates had shown some inclination to address issues related to his offending behaviour during the counselling sessions that Mr Summerton had provided, but that they were mainly peripheral issues and that it was Mr Summerton, not Mr Yates, who had initiated these discussions. Mr Summerton reported to Dr Wynn Owen that he had a sense that Mr Yates had made a shift in relation to taking responsibility for his actions and had acknowledged that his offending behaviour was wrong. Mr Summerton had also reported that Mr Yates had recognised factors which would increase his risk of reoffending, including substance use, public drinking and the identification of sexual partners who were also intoxicated. Mr Summerton had also reported that Mr Yates appeared to understand the concept of consent. Mr Summerton also reported that Mr Yates had identified strategies to manage the risk of returning to substance abuse, general coping skills, and the capacity to manage some problems which might arise in an ongoing intimate relationship.
32 Dr Wynn Owen noted that during his interview with Mr Yates, Mr Yates did not describe any strategies that he would use to avoid risk of substance use, nor did he appear to make any connection between the stress and anxiety that may be associated with his return to the community and the risk of managing that stress through substance abuse. Mr Yates stated that if he had any problems he would talk to Mr Summerton, or ring up someone and talk. When asked, Mr Yates did not identify any risks or challenges associated with living in Perth for the first time, or which might arise from living in a domestic relationship for the first time.
33 Mr Yates told Dr Wynn Owen of his plans if released, including his plan to get a job - perhaps fly-in fly-out work on a mine site, although he was not able to identify what sort of work he might do. Mr Yates was unable to elaborate on how he might go about getting work, or the likelihood of finding work.
34 Dr Wynn Owen reported that when asked again about his earlier offences, Mr Yates minimised his own role and responsibility in those offences, and failed to demonstrate remorse or victim empathy.
35 Dr Wynn Owen reported that Mr Yates' engagement in counselling with Mr Summerton over the last 12 months suggested that although he may suffer some cognitive impairment, it does not prevent meaningful engagement in therapy, or indicate an inability to understand or learn. This in turn suggests that Mr Yates has the ability to address some of the dynamic factors associated with his offending, in particular his substance abuse, and that there may be opportunities for him to better understand his offending and avoid offending in future.
36 Dr Wynn Owen reported that Mr Yates' plans for his release were rudimentary and inadequate in the area of substance abuse.
37 Dr Wynn Owen expressed the opinion that Mr Yates presented a high risk of serious sexual offending if released unsupervised. He recommended that if Mr Yates remained in detention, he should be assessed for participation in an intensive sex offender treatment programme and in a programme or programmes to address alcohol and substance abuse. He also recommended that Mr Yates should be counselled in preparation for release for at least three months prior to his planned release, and prepared for post-release employment. Dr Wynn Owen also made a number of recommendations as to the counselling and programmes that should be provided to Mr Yates if he was released into the community, and as to the conditions upon which Mr Yates should be released into the community.
38 In his oral evidence, Dr Wynn Owen expressed the view that he did not observe any quantifiable change in the risk of Mr Yates' reoffending since he last assessed that risk. In his view, the change that had occurred was in Mr Yates' engagement with Mr Summerton which was a positive development and presented opportunities for the mitigation of risk in the future. Mr Yates' willingness to engage with Mr Summerton could be contrasted with his previous lack of motivation. He also noted that although Mr Yates did not demonstrate significant insight into factors which increased his risk of reoffending and strategies for the management of those factors during his discussions with him, Mr Summerton reported that Mr Yates had developed an appreciation of those matters, and Dr Wynn Owen accepted that it was unlikely that he would have been able to develop the same level of trust with a traditional Aboriginal man in the course of an interview of one and a half hours duration as had been developed by Mr Summerton in the course of his regular therapeutic sessions. While Dr Wynn Owen accepted that allowances should be made for these differing levels of rapport, it remained the fact that Mr Yates' performance during his most recent interview with Dr Wynn Owen was entirely consistent with Dr Wynn Owen's previous interviews with Mr Yates prior to the division 2 hearing.
39 Dr Wynn Owen described Mr Yates' insight into the factors which contributed to his offending as partial and incomplete.12 So, while Mr Yates acknowledged the need to avoid alcohol and substance use, he would blame his offending behaviour on his intoxication and did not demonstrate an understanding of the steps that he needed to take to abate the risk of intoxication. When asked how he would deal with the risk of alcohol use, Mr Yates responded merely that his partner would not allow alcohol in the house, and was unable to identify any other risk-avoiding strategies - which was consistent with Mr Yates' position in previous interviews with Dr Wynn Owen.
40 Dr Wynn Owen considered that Mr Yates' demonstration of motivation and a capacity to learn through his engagement with Mr Summerton were both positive developments.
41 In relation to the question of a neuropsychological assessment, Dr Wynn Owen expressed the view that such an assessment would not do any harm and would always provide valuable information. However, he did not consider it essential as Mr Yates had demonstrated that there was no cognitive barrier to engagement and learning.
42 Dr Wynn Owen expressed the view that group intensive sex offender treatment did have advantages over one on one counselling, and that Mr Yates would benefit from moving to that stage of treatment. In his view, if Mr Yates were able to successfully complete a group intensive programme, it would be more significant in the evaluation of future risk than continuing one on one counselling. He agreed with Dr Bannister that ideally such a programme should be specifically designed to be culturally appropriate to Aboriginal men.
43 Dr Wynn Owen also considered that Mr Yates was likely to benefit from participation in a group substance abuse programme.13
44 When asked if Mr Yates could be adequately managed in the community, Dr Wynn Owen observed that anybody could be managed in the community if sufficient external constraints were placed upon them, such as diminishing that person's opportunity for contact with the majority of the community.14 In the case of Mr Yates, Dr Wynn Owen drew attention to the impulsivity and opportunistic nature of his prior offending, and observed that they are very, very difficult risks to manage. He also noted that on previous occasions Mr Yates had reoffended within days of release from prison and while intoxicated.
45 In Dr Wynn Owen's view, residence in the metropolitan area and participation in an intimate relationship would each impose stresses upon Mr Yates with the potential to increase the dynamic risk of his reoffending. He also considered that it would be impossible to provide adequate supervision if Mr Yates did not live in the metropolitan area.
46 Dr Wynn Owen expressed the opinion that if Mr Yates could successfully complete an intensive sex offender treatment programme, the risk of him reoffending would be reduced, and that with a range of other supervision, including treatment within the community, the risk of Mr Yates reoffending was more likely to be manageable in the future.
47 In relation to Mr Yates' plans for future employment, Dr Wynn Owen expressed the view that he considered those plans to be unrealistic, although he noted that Dr Bannister had assessed the plans as being 'robust'. In Dr Wynn Owen's view, it would be desirable to prepare Mr Yates for release with more realistic plans and strategies for post-release employment.
48 In cross-examination, Dr Wynn Owen reiterated his view that Mr Yates' participation in a culturally appropriate group intensive sex offenders' programme would be more likely to reduce his risk of reoffending than a programme of individual counselling with Mr Summerton.15
The evidence of Jane Henshall
49 Ms Jane Henshall is a senior community corrections officer who was assigned responsibility for Mr Yates' case a few weeks prior to the review hearing. She produced a report relating to the possible supervision of Mr Yates in the community which was received in evidence. She reported that in her engagement with Mr Yates over the preceding 12 months, he initially presented as withdrawn and reluctant but slowly began to engage in a more active and positive manner. She noted that Mr Yates' initial reluctance to engage may well be attributable to his cultural background.
50 In the course of the division 2 hearing, a number of witnesses expressed the view that it would be desirable if Mr Yates could be provided with an Aboriginal mentor. Ms Henshall reports that inquiries were made with a view to identifying such a person, although in the result the view was taken that Mr Yates did not present as an individual requiring such a mentor, when compared to other offenders with known cognitive deficits. There were concerns that Mr Yates may view the provision of a mentor as insulting. Further, the identification of a mentor was complicated by the fact that Mr Yates would require a mentor from his own cultural grouping (Wongai) which would be difficult to arrange.
51 Ms Henshall reported that Mr Yates proposed to live with his girlfriend in a suburb of Perth if released under supervision. Mr Yates' girlfriend lives in a two-bedroom duplex of which she is the sole occupant. She advised that she met Mr Yates through another prisoner with whom she had a relationship at the time. Records reveal that she has regularly visited Mr Yates since February 2011.
52 The officer who interviewed Mr Yates' girlfriend formed the view that she was not fully aware of his offending history, including his use of both sexual and physical violence, and appeared to be of the view that he was innocent of some of the offences of which he had been convicted. She was fully briefed on Mr Yates' previous history and given time to reconsider her offer of support. However, after considering the matter further, she continues to offer to support Mr Yates, and advises that she holds no concern for her safety - an attitude which Ms Henshall considers to be somewhat naïve.
53 During interview, Mr Yates' girlfriend demonstrated an understanding of the conditions to which he would be subject if released on supervision and confirmed that she would do whatever she could to support Mr Yates in complying with those conditions and settling into a metropolitan environment. However, Ms Henshall maintains reservations with respect to the future of the relationship, which to date has existed only through prison visits, although there have been many of them. Further, Ms Henshall noted that when asked to describe his views on the characteristics of a healthy relationship, Mr Yates' comments focused on sexual fulfilment which, viewed in the context of his relationship history, would be considered as reflective of an individual who objectifies females to fulfil his own sexual needs (drawing upon the views expressed in an earlier psychological report upon Mr Yates).
54 Ms Henshall also notes in her report that if Mr Yates is released under supervision and his relationship with his girlfriend breaks down, he would have no alternative accommodation other than emergency accommodation to be provided by the department, which might place him in a situation of high risk and lead to further offending.
55 Ms Henshall notes that Mr Yates' girlfriend has previous convictions for offences associated with the consumption of alcohol, although those offences were committed prior to 2005. She remained free of conviction until 2011 when she was convicted of possession of prohibited drugs with intent to sell or supply. The circumstances of the offence were that she attempted to smuggle a small quantity of cannabis into prison for her previous partner. She asserts that she no longer uses any form of substance, including alcohol, and has remained substance free for 15 years, although as Ms Henshall notes, this does not correlate with her criminal record, which includes an offence relating to liquor consumption in 2004. Having regard to this history, Ms Henshall expressed reservations in her report with respect to the capacity of Mr Yates' girlfriend to refuse suggestions that she might engage in negative behaviour in the future.
56 Ms Henshall notes in her report that a desktop analysis conducted by WA Police of the address at which Mr Yates would propose to reside if released under supervision indicates that illicit drug activity is occurring within the immediate environs of the proposed residence, including in an area surrounding a shopping centre which is located approximately 100 m from the proposed residence. There are numerous bottle shops and licensed venues within walking distanced of the proposed residence. However, Ms Henshall reports that at the time she undertook inquiries, it was not possible to provide Mr Yates with any other supported accommodation, as there were no vacancies in the limited accommodation available. Ms Henshall also reports that Mr Yates advised that apart from his girlfriend he has no other supports within the metropolitan area. Although he has some distant relatives residing in the metropolitan area, he does not have any significant relationship with them.
57 Ms Henshall also notes that Mr Yates has advised that he would like to travel back to the Goldfields region to visit with family members, especially his mother, who has recently entered an aged care facility. Ms Henshall's report notes with concern the negative influences to which Mr Yates has been subject in that region of Western Australia, and further notes that Mr Yates was advised that his capacity to travel to the Goldfields may well be restricted by conditions imposed under the supervision order at the time of his release.
58 Ms Henshall noted that if Mr Yates was released on a supervision order, Mr Summerton would engage with him on a weekly basis until he had adjusted to community living. A senior community corrections officer would also engage with Mr Yates on a regular basis with a view to assisting in the development of strategies to be used in identifying and reducing high risk behaviour.
59 In her oral evidence, Ms Henshall reported that Mr Yates' girlfriend had told her that although she did not anticipate any problems with Mr Yates' use of alcohol, if, for example, he came to her home under the influence of alcohol, she would ask him to leave and she would make contact with the police.16
60 On the subject of accommodation, Ms Henshall advised that if Mr Yates' relationship with his girlfriend did not work out, with the result that he was unable to live with her, depending on the circumstances, the department would be able to provide emergency accommodation and then assist Mr Yates to seek alternative accommodation elsewhere. Whether he could be placed in the accommodation specifically provided for dangerous sexual offenders would depend upon whether there were any vacancies in that accommodation at the time. If there were no vacancies, the department would look at trying to place him in some other form of community housing.
61 During cross-examination, Ms Henshall advised that the department was looking at starting the pilot phase of a sex offender programme designed specifically for indigenous offenders. The pilot programme would be designed to test the programme before it was rolled out more generally.17 However, no time-frame for the development of either the pilot or the more general programme had yet been established.18
62 Ms Henshall confirmed that Mr Yates had not been assessed for his suitability for inclusion in an intensive sex offender treatment programme.
63 Ms Henshall confirmed that she considered Mr Yates' girlfriend's attitude towards his prior offending to be naïve. Before full information was provided to her, she did not have a full understanding of his prior convictions, or of the level of violence involved in his previous offending.19 However, Mr Yates' girlfriend was able to name a number of agencies to which she could turn for support, as well as friends and family upon whom she believed she could rely for assistance if required.
64 Ms Henshall confirmed that Mr Yates clearly understood that if he was released under supervision, there would be conditions which would preclude his use of alcohol, cannabis or other substances and had indicated that he would be willing to comply with such conditions.
65 Ms Henshall stated that if Mr Yates remained in prison for a further 12 months, he would be allocated to a senior community corrections officer who would engage with him on a monthly basis. That officer would also engage with prison officers in whatever prison he was held with a view to arranging for Mr Yates to participate in programmes that would address his identified needs.20 Mr Yates would also continue to engage with Mr Summerton, although Ms Henshall was unable to say how frequently that would occur.21
Evaluation and analysis
66 As I noted earlier, the parties have approached this review on the basis that the primary focus of the review is upon the identification of any changes in circumstances relevant to the assessment of the risk which Mr Yates poses to the community, and in particular, whether any changes in circumstances established by the evidence justify the rescission of the continuing detention order, and instead permit Mr Yates to be released subject to his compliance with extensive conditions which would be attached to a supervision order.
67 The evidence which I have summarised satisfies me that there have been material changes in Mr Yates' circumstances since I made the continuing detention order. Those changes can be conveniently grouped into two areas - those associated with and arising from Mr Yates' engagement with Mr Summerton, and those associated with the continuation of his relationship with his girlfriend.
Engagement with Mr Summerton
68 The evidence establishes that Mr Yates has engaged with Mr Summerton in the course of the 20 sessions of individual counselling which Mr Summerton has provided since the division 2 hearing. There are a number of conclusions which I would draw from that process of engagement, and which are relevant to the issues which I must address under s 33 of the Act.
69 First, at the division 2 hearing, each of the psychiatrists who gave evidence recommended that Mr Yates undergo neuropsychological assessment in order to ascertain whether he suffered cognitive impairment, particularly frontal lobe damage, of such significance that it would preclude his capacity to learn and engage in programmes aimed at modifying his behaviour and reducing the risk of him reoffending.22 While the evidence suggests that Mr Yates may suffer some form of cognitive impairment, his engagement with Mr Summerton in the lengthy programme of counselling described in the evidence, and the evidence with respect to Mr Yates' positive activities within the custodial environments in which he has been kept satisfy me that Mr Yates does not suffer from intellectual or cognitive disabilities which are so significant as to prevent him from deriving any benefit from behavioural modification programmes.
70 Second, during the division 2 hearing, evidence was adduced which raised a serious doubt as to Mr Yates' motivation to participate in behavioural change programmes.23 Whatever may have been the position in the past, Mr Yates' engagement with Mr Summerton satisfies me that Mr Yates is now motivated to do whatever he can to improve his prospects of being released under a supervision order, including participation in behavioural modification programmes.
71 Third, the evidence establishes that Mr Summerton has been able to achieve some gains during the counselling sessions to which I have referred. Those gains include an improved appreciation of the factors which expose Mr Yates to the risk of offending, and some limited appreciation of the perspective of his victims. However, those gains can only be described as incremental and modest, and could not be described as substantial. Mr Yates still displays a marked tendency to blame others, including his victims, for his offending behaviour. While I accept that studies have not yet shown that failure to accept responsibility for past offences elevates the risk of reoffending, and is more relevant to issues relating to the management of offenders, clearly Mr Yates' apparent disinclination to accept responsibility for his past conduct cannot be regarded as a positive factor. So, in short, while Mr Summerton and Mr Yates have been able to make some progress, which is to the credit of both of them, there is still a long way to go before the changes could be described as sufficiently significant to result in a re-evaluation of the risk which Mr Yates poses to the community.
72 In this context I accept the evidence of Dr Wynn Owen to the effect that if Mr Yates were able to successfully complete a group programme specifically designed for sexual offenders, a more positive assessment might be made of the risk of him reoffending in the future. I also accept Dr Wynn Owen's evidence to the effect that such a programme is likely to have a greater effect on Mr Yates if it is specifically designed for traditional Aboriginal men. However, if there is likely to be a long period of delay before Mr Yates has the opportunity to participate in a culturally appropriate programme of this kind, in my view it would be desirable for Mr Yates' suitability for participation in a mainstream sex offenders' programme to be assessed sooner rather than later.
73 Further, because of the clear association between alcohol and substance use and Mr Yates' offending behaviour in the past, I accept Dr Wynn Owen's evidence to the effect that it would be desirable if Mr Yates were to participate in, and hopefully successfully complete, a programme targeted at addressing alcohol and substance misuse.
74 The second area in which Mr Yates' circumstances have changed concerns his relationship with his girlfriend. At the division 2 hearing, there was limited evidence available with respect to that relationship, and in particular, limited evidence as to the extent to which Mr Yates' girlfriend was aware of his past offending and of the extent to which she would be in a position to provide assistance and support to Mr Yates with a view to reducing the likelihood of him reoffending.
75 The evidence establishes that the relationship has continued, and Mr Yates' girlfriend remains supportive notwithstanding the greater information she has been given with respect to his prior offending. Her willingness to provide Mr Yates with accommodation in the event that he is released under a supervision order has the capacity to address one of the practical issues which must be addressed if and when it is concluded that the community is adequately protected by such an order.
76 However, there are a number of aspects of Mr Yates' post-release plans which lead me to conclude that there is significant uncertainty as to whether those plans will prove to be durable in the medium to longer term. Those aspects include the fact that Mr Yates has no experience of an intimate domestic relationship, and may find the obligations which attend participation in such a relationship to be a source of stress. That risk is exacerbated by the fact that Mr Yates and his girlfriend have obviously had very limited capacity to develop and test their relationship because Mr Yates has been in custody throughout its entire duration.
77 The continuation of the relationship subsequent to Mr Yates' release also presumes that he will satisfactorily adjust to life in the Perth metropolitan area, even though he has little or no experience of life in that environment. However, while the evidence given at the division 2 hearing on this topic was somewhat ambivalent, the witnesses giving evidence at the review hearing all accepted that any meaningful form of supervision of Mr Yates could only take place in the metropolitan area of Perth. In other words, notwithstanding that generally speaking and with some minor and isolated exceptions, Mr Yates has only lived in the Western Desert when at liberty, if he is ever to be released from custody, it seems inevitable that he will have to be released on terms which will require him to successfully adjust to life in metropolitan Perth.
78 This reality is something of a double-edged sword. While it seems likely that Mr Yates' lack of experience of life in a major urban setting may be a source of stress when he resides in such a setting, and that he may well be exposed to a wider variety of sources of alcohol and other intoxicating substances in circumstances in which those materials may be more readily available to Mr Yates than they would be if he were living in the Western Desert, it must also be recognised that there are aspects of life in the Western Desert that have predisposed Mr Yates to the risk of reoffending, often within a very short time after his release from prison.
79 The doubts that have been expressed with respect to the capacity of Mr Yates' girlfriend to provide the support which he will need to comply with the many conditions likely to be imposed upon any supervision order must also be accepted. While Mr Yates' girlfriend appears to have been abstinent for a number of years, it is of some significance that she was involved in an attempt to smuggle illegal drugs into the prison system not that long ago, and has a somewhat chequered history of issues involving substance abuse herself. Her apparent naivety in relation to the risks arising from Mr Yates' extensive history of serious offending is also a source of some concern.
80 Despite these reservations, I accept that the support which has been offered by Mr Yates' girlfriend improves his prospects of a successful transition from detention to supervision within the community. I accept that the longer Mr Yates remains in detention, the greater the risk to the endurance of his relationship with his girlfriend and therefore the greater the risk to the capacity to release Mr Yates into a positive environment.
81 It is necessary to now apply these conclusions to the process which the court must follow under s 33 of the Act. As I have already noted, counsel for Mr Yates does not contend that the evidence establishes that Mr Yates no longer remains a serious danger to the community. In fact, she expressly accepted that the risk of Mr Yates reoffending was still high.24 This concession was properly made. The changes in circumstances to which I have referred do not sustain the conclusion that Mr Yates no longer remains a serious danger to the community, having regard to the various reasons why I concluded that there was an unacceptable risk that if Mr Yates was not made subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.
82 The next question which I must address under s 33 of the Act is whether I should either expressly decline to rescind the continuing detention order or alternatively, rescind the order and make a supervision order subject to the various conditions suggested in the evidence. In deciding that question, 'the paramount consideration is to be the need to ensure adequate protection of the community'.25
83 That paramount consideration is of the utmost significance in my determination of this review. That is because I accept that there are some respects in which there is a risk that the circumstances in which Mr Yates might be returned to the community under supervision might deteriorate the longer he remains in detention. I accept that there is a significant risk that his motivation to participate in behavioural modification programmes may diminish the longer he remains in detention, especially if he considers that he has little chance of release in the immediate future. I also accept that the longer he remains in detention, the greater the risk of deterioration in his relationship with his girlfriend, with the possibility that she may no longer be willing to offer accommodation and support in the event of his release. These considerations would carry greater weight if the question which I was required to address under the Act was the identification of the time at which it would be most propitious to release Mr Yates into the community under supervision. But that is not the question which I am required to address. The question which I must address is whether the release of Mr Yates into the community under supervision is compatible with the need to ensure the adequate protection of the community.
84 In addressing that question I do not diminish the significance of the positive steps which have been taken by Mr Yates with the assistance of Mr Summerton. However, in the context of the findings which I made with respect to the magnitude of the risk posed by Mr Yates following the division 2 hearing, there must be a limit to the impact which 20 sessions of counselling can have in reducing the magnitude of that risk. On that subject, I accept Dr Wynn Owen's evidence that notwithstanding the gains which have been made in the course of those sessions, the risk of Mr Yates reoffending if released remains high. In my view, the magnitude of that risk remains such that the only way in which the community can be adequately protected is by declining to rescind the continuing detention order.
85 However, I also accept Dr Wynn Owen's evidence that a more favourable conclusion with respect to Mr Yates' risk of reoffending might be drawn if he successfully completes an intensive sexual offender's programme through a process of group sessions and counselling. As I have already indicated, it would obviously be most desirable if Mr Yates could participate in a programme specifically designed for those from his cultural background. However, if a culturally appropriate programme is not likely to be available at a time which can be predicted with certainty, in my view it would be desirable for Mr Yates to be assessed for his suitability to participate in a mainstream programme.
86 I also accept Dr Wynn Owen's evidence that Mr Yates would be likely to benefit from participation in a programme aimed at substance use.
87 Of course, I cannot predict the future. However, if Mr Yates is offered positions in the programmes to which I have referred and successfully completes those programmes, the prospects of persuading the court that his risk of reoffending has been reduced to the level at which a supervision order is compatible with the need to ensure the protection of the community are likely to be enhanced. Those prospects are likely to be further enhanced if Mr Yates demonstrates greater empathy for his past victims, and continues to develop an appreciation of the factors which expose him to the risk of reoffending, and most particularly, if he successfully develops strategies to avoid those risks, or to respond effectively to them when they arise.
88 I also accept Dr Wynn Owen's recommendation that Mr Yates would benefit from counselling for release preparation and from efforts made to prepare him for post-release employment. Those matters are relevant to an assessment of the likelihood of Mr Yates reoffending after release. Of course, I accept that there are timing issues involved, because the process of regular review mandated by the Act does not enable the authorities to identify with any certainty the date upon which Mr Yates is likely to be released. However, if Mr Yates successfully completes the programmes to which I have referred, I would think it appropriate to then focus attention and resources upon preparation for Mr Yates' release, without, of course, suggesting in any way what view might be formed by the court conducting any future review of Mr Yates under the Act. In my view, those preparations for release should include, as Dr Wynn Owen suggested, the development of realistic and feasible strategies which might increase the prospects of Mr Yates obtaining employment, and more specific plans to provide support for Mr Yates within the community, including a specific plan for the integration of a service provider like Outcare into Mr Yates' post-release regime, accompanied by plans to provide tangible and specific support to Mr Yates' girlfriend if she remains willing and able to provide support and accommodation.
Conclusion
89 With the assistance of Mr Summerton, Mr Yates has taken some steps down the path towards a situation in which his release into the community under supervision may be compatible with the need to ensure the protection of that community. However, in my view, there are a number of further significant steps which must be taken on that path before that point is reached. I would hope that the authorities responsible for the terms of his continuing detention provide him with the opportunity to take those steps. In the meantime, however, for the reasons I have given, I decline to rescind the continuing detention order made in respect of Mr Yates.
1Director of Public Prosecutions (WA) v Yates [2014] WASC 136.
2 ts 247.
3Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95.
4 [51] - [58].
5 [2014] WASC 136.
6 ts 155.
7 ts 155.
8 ts 172.
9 ts 178.
10 ts 178.
11 ts 183.
12 ts 185.
13 ts 188.
14 ts 189.
15 ts 200.
16 ts 220.
17 ts 226.
18 ts 227.
19 ts 229.
20 ts 238.
21 ts 238.
22 [2014] WASC 136 [149].
23 [2014] WASC 136 [93].
24 ts 252.
25 Section 33(3).
11
2
1