McGarry v Director of Public Prosecutions (WA) [No 5]
[2013] WASC 41
McGARRY -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [No 5] [2013] WASC 41
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 41 | |
| Case No: | MCS:35/2008 | 7 FEBRUARY 2013 | |
| Coram: | HALL J | 7/02/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to make application refused Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL ALEXANDER McGARRY DIRECTOR OF PUBLIC PROSECUTIONS (WA) |
Catchwords: | Dangerous Sexual Offenders Act 2006 (WA) Review of detention order Section 30 review Whether exceptional circumstances established Meaning of exceptional circumstances in the context of the Act |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 30 |
Case References: | Attorney General for the State of Queensland v Friend [2009] QSC 135 Dick v Director of Public Prosecutions (WA) [No 4] [2012] WASC 333 Director of Public Prosecutions (WA) v McGarry [No 2] [2009] WASC 287 Director of Public Prosecutions (WA) v McGarry [No 4] [2012] WASC 349 Narkle v Director of Public Prosecutions (WA) [2011] WASC 324 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent
Catchwords:
Dangerous Sexual Offenders Act 2006 (WA) - Review of detention order - Section 30 review - Whether exceptional circumstances established - Meaning of exceptional circumstances in the context of the Act
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 30
Result:
Leave to make application refused
(Page 2)
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr D J McKenzie
Respondent : Mr T B L Scutt
Solicitors:
Applicant : David McKenzie
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Attorney General for the State of Queensland v Friend [2009] QSC 135
Dick v Director of Public Prosecutions (WA) [No 4] [2012] WASC 333
Director of Public Prosecutions (WA) v McGarry [No 2] [2009] WASC 287
Director of Public Prosecutions (WA) v McGarry [No 4] [2012] WASC 349
Narkle v Director of Public Prosecutions (WA) [2011] WASC 324
(Page 3)
- HALL J:
(These reasons were delivered orally and have been edited from the transcript)
Introduction
1 The applicant, Michael McGarry, is presently subject to a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). That order was made on 24 September 2009: Director of Public Prosecutions (WA) v McGarry [No 2] [2009] WASC 287.
2 After that order was made Mr McGarry was sentenced for further sexual offences to 18 months' imprisonment. As a consequence he did not commence being detained on the DSO order until 5 August 2011.
3 The DSO Act provides for an annual review of a person detained under that act. Section 29 requires that the DPP apply to this court for a review and such reviews must be held as soon as practical after the end of each year in custody. On each annual review reports from two psychiatrists are obtained unless the court orders otherwise: s 32.
4 An application for a review of detention may also be made by the person who is the subject of the detention order. Such an application requires the leave of the court: s 30. Before granting leave the court must be satisfied that there are exceptional circumstances that relate to the person. An application of this type cannot be made until after the first annual review has occurred.
5 By an application dated 1 February this year Mr McGarry has sought a review under s 30. His first annual review was determined on 20 September 2012: Director of Public Prosecutions (WA) v McGarry [No 4] [2012] WASC 349.
Evidence on the application
6 The application is supported by an affidavit of Mr David McKenzie, Mr McGarry's solicitor, and by a memorandum of 6 February 2013 from Mr Ben Bannister, who is the Manager of the Forensic Psychological Services Section of the Department of Corrective Services. That memorandum was tendered by consent on the hearing of the application for leave.
7 The basis of the application is as follows. On a hearing of the annual review a deficit was found to exist in Mr McGarry's release planning.
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- This related to training and acquiring skills to deal with risks in the community. This deficit was identified by a psychologist, Mr Nigel Cameron, who was called as a witness at the last review. There has also been reference to Mr McGarry increasing his dose rate of Androcur, an anti-libidinal drug, from 25 milligrams to 50 milligrams a day since the last annual review was held.
8 The memorandum of Mr Bannister states that two questions were directed to Mr Ryan Bell who is a psychologist who has been counselling Mr McGarry. The first of those questions was, 'Can you please advise whether it is correct to say that Mr McGarry has now completed the risk scenario counselling with a member of the DSO counselling team?' The memorandum states:
Ryan notes that it is inaccurate to say that he has completed risk scenario counselling as there is no defined end point. Risk scenario counselling has comprised the principal focus of therapy and this goal will be advanced between now and when he is released (whenever that may be).
Ryan also points out that risk scenario counselling is very limited in scope; there are a finite number of risk scenarios that a client and a therapist can be expected to generate in order to problem solve and develop strategies to manage these scenarios. The longer this therapy is expected to persist, the less benefit that will be derived from each subsequent session. Ryan is satisfied, at this point, that Mr McGarry has met the goals identified by Mr Nigel Cameron in his report.
9 There is then a reference to Mr Cameron's report, and the memorandum goes on to say:
Mr McGarry has developed further skills in this area and Ryan is not certain that he will show any additional treatment gains with further therapy. Without some sort of behavioural practice or testing, Ryan is forced to rely on Mr McGarry's self-report of his management strategies and he has adequately participated in therapy and provided thoughtful and introspective responses when coached and directed to develop self management strategies. Without some environment to behaviourally test these strategies and refine as needed, the therapy remains speculative but Ryan is satisfied that Mr McGarry has contributed positively and meaningfully to this process.
Contentions
10 The submission on behalf Mr McGarry is that he has now completed the work that can be done in a prison setting. It is said that there is nothing further he could be expected to achieve, and to require him to wait a further seven months until the next annual review would be unfair.
(Page 5)
- It is submitted that this is analogous to the situation of delay which may justify an accused person being released on bail.
11 The DPP opposes a grant of leave on the grounds that exceptional circumstances have not been shown to exist. The DPP submits that a voluntary and comparatively minor variation of medication dosage could not constitute exceptional circumstances. It is also submitted that whilst the deficit identified by Mr Cameron was a sufficient basis to conclude that Mr McGarry's risk of non-compliance with a supervision order was significant on the annual review, it does not follow from that that he would otherwise have been released. The DPP notes that there were other areas of concern referred to in the judgment on the annual review. These included a failure to accept responsibility for breaching conditions when last released, and the unreliability of self-reports regarding sexual desire and functioning.
The requirement of leave
12 The requirement to obtain leave of the court to make an application of this type reflects the fact that it is a departure from the ordinary course provided for in the Act. The requirement for leave prevents the making of repeated applications by a person detained under the act, each of which would otherwise have to be dealt with by obtaining reports and conducting a hearing.
13 Leave is normally used as a filtering mechanism and applied by the courts to ensure that only cases with an arguable basis proceed. In this case leave ensures that applications for review made outside the annual review process cannot occur as of right but only where exceptional circumstances that relate to the person are shown.
14 It is important to acknowledge that at issue is the liberty of the person detained. That is always a matter of importance to the person concerned and to the wider community, but that does not mean that leave should be granted whenever it is applied for. The question of leave is not a mere formality. It is a matter of substance to be determined having to regard to the terms of the DSO Act.
15 Section 30(2) provides that before granting leave the court must be satisfied that there are exceptional circumstances that relate to the person. It does not say that it is the only relevant criterion. It is a necessary requirement but it may not be sufficient. Having said that, there may be few cases where exceptional circumstances are established that do not justify a grant of leave.
(Page 6)
16 In this case the real issue is whether exceptional circumstances have been shown to exist. It is not suggested by the DPP that if the circumstances were exceptional leave should still be refused. Rather the DPP contest that the circumstances here are not exceptional in nature.
17 It is important to note that the information available is relatively sparse. That is not surprising as this is not a review on which detailed reports and evidence are provided. Rather it is the leave stage, which is preliminary in nature. It may only be possible to provide limited evidence of a material issue or change of circumstances at this stage. That is something I take into account. I will determine this application on the basis that the information provided is accepted at face value. That does not preclude the possibility that it may later be contested.
The meaning of 'exceptional circumstances'
18 The meaning of the phrase 'exceptional circumstances' has to be understood in the statutory context in which it appears. In particular the DSO Act provides for mandatory annual reviews for detained persons and those reviews involve examinations and reports by two psychiatrists unless the court orders otherwise. The legislature clearly considered that annual reviews were necessary but also that such reviews would ordinarily be sufficient; that is to say, the balance between the interests of the person not to be deprived of their liberty and the interests of the community to be protected from a sexual offender who has completed his term but is considered to pose a serious danger to the community would be met by ensuring that those who are detained would have their detention reviewed by the court each year.
19 The word 'exceptional' means of the nature or forming an exception, unusual or out of the ordinary; Shorter Oxford English Dictionary. Thus in order to understand what is exceptional it is necessary to understand what is ordinary or usual in the context of the DSO Act.
20 In the case of any person detained under the DSO Act it is reasonably possible, if not likely, that in the course of a year there will be changes in that person's circumstances. They will age, their health may deteriorate or improve, they may undertake or complete treatment or programs in the prison. The fact of change, even change that may reduce the risk of reoffending, could not itself provide an exceptional circumstance. If it did reviews of this nature would be commonplace and the concept of exceptional circumstances would be deprived of any real meaning. The ordinary regime of annual reviews would thereby be subverted. The scheme of the Act is that after an annual review, a person
(Page 7)
- detained will in the ordinary course have to wait for a year before their detention will be reviewed again.
21 I have examined the second reading speech and debates in regard to the DSO Act and they do not shed any light on why 12 months was the period chosen for the mandatory reviews. One possibility is that this was the length of time that would usually be needed for any significant change in circumstances to have occurred and be properly assessed. On the other hand, it may simply have been to recognise that continuing detention is a matter of great seriousness, and the need for it should be regularly reviewed. This ensures that detainees are not forgotten and that the independent scrutiny of the court provides an incentive to the authorities to ensure that treatment needs are met. It is also an incentive to the person to pursue their rehabilitation and, in particular, to pursue treatment.
22 For change to be an exceptional circumstance, it would have to be both significant and unusual in nature. It would have to be something that would justify a departure from the ordinary course of annual reviews.
23 One factor that may be relevant is whether denial of a section 30 review would be unjust. I do not suggest that it is only where it would be unjust if refused that leave should be granted but that would be a good indicator that the circumstances were exceptional.
24 In the two cases in this jurisdiction where leave for a s 30 review has been granted the DPP did not oppose leave. In the first case, Narkle v Director of Public Prosecutions (WA) [2011] WASC 324, the applicant had not completed a programme at the time of his annual review and by consent no psychiatric reports were obtained at that time. This was on the basis that a s 30 review would be sought when the programme was finished and psychiatric reports would be obtained then. That is what occurred. That is quite different to the present case as here there was a substantive annual review in September of last year.
25 In the case of Dick v Director of Public Prosecutions (WA) [No 4] [2012] WASC 333 a concession had been made by the DPP at an annual review that if a course of anti-libidinal drugs was undertaken in the next year, that may be an exceptional circumstance. That occurred and it was accepted by the DPP that it could not oppose a s 30 review because Mr Dick had undertaken treatment on the understanding that the concession would be adhered to. No concession has been made here of a similar nature at any time.
(Page 8)
26 I was also referred to a Queensland case, being Attorney General for the State of Queensland v Friend [2009] QSC 135. In that case some comments were made in regard to similar legislation. In that case there was said to have been a serious defalcation by custodial authorities in the provision of treatment and that was something that it was suggested might constitute exceptional circumstances such as to justify an exceptional review. Again that is not the situation here.
27 The circumstances which might amount to exceptional circumstances should not be thought to necessarily be confined to those which have occurred in the cases I have referred to. It is possible to think of other examples; for example where a detainee becomes ill and bedridden and incapable of committing further offences that would obviously be such a significant and material change in circumstances as to be exceptional in nature. There may well be others. I do not suggest that the class is a closed one and each case must be considered on its merits.
28 In this case, accepting that treatment has been undertaken with Mr Bell and that this amounts to a change in Mr McGarry's circumstances, the question is whether it constitutes exceptional circumstances relating to him. The treatment was a deficit that was identified on the last annual review but it was not the only factor militating against release. It would be wrong to characterise the last review as concluding that if the treatment suggested by Mr Cameron was done, Mr McGarry would be released or that the outcome would have been different had that treatment been undertaken before that time.
29 It was to be expected that following the annual review Mr McGarry would undertake some further treatment. It was certainly in his interests to do so. How that impacts upon risk when all other factors are taken into account cannot be known. That is something that would have to be assessed in the context of a full review.
30 The question then is whether the fact that Mr McGarry has undertaken the treatment that Mr Cameron suggested constitutes exceptional circumstances. I would note at this stage that Mr Bell did not give evidence on the last occasion and in fact there was thought to be an impediment to him doing so because it would interfere with the clinical relationship. I do not know whether that position has changed or whether Mr Bell is of a similar view to Mr Cameron as to the nature and importance of the issues that were raised by Mr Cameron. I do note that there was some disagreement between Mr Cameron and the psychiatrists
(Page 9)
- who were called on the review as to the necessity and efficacy of that treatment.
31 Be that as it may, the question is whether the fact that this treatment has now been undertaken and, according to Mr Bell, completed to his satisfaction, amounts to exceptional circumstances. I accept, at least insofar as Mr Bell is concerned, that there is no further advance that can be made in psychological treatment. Mr Bell, it would seem, on the basis of the memorandum of Mr Bannister, is of the view that Mr McGarry has done what can be done at least insofar as release planning is concerned and that further testing of release planning can really only be done as a real world exercise; that is, on release.
32 However, as I have said, the test is whether there are exceptional circumstances. The fact that Mr McGarry would otherwise have to wait for seven months for the annual review does not in itself amount to exceptional circumstances. In my view the completion of further treatment is a change of a nature that would be expected in the course of a normal 12 month period following an annual review. The change is not one that is necessarily significant in nature nor one that involves any element of urgency. It is not exceptional and therefore it is not appropriate to grant leave. Therefore leave is refused and the application is dismissed.
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