Narkle v Director of Public Prosecutions (WA) [No 2]
[2011] WASC 324
•29 NOVEMBER 2011
NARKLE -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [No 2] [2011] WASC 324
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 324 | |
| Case No: | MCS:86/2009 | 11 NOVEMBER 2011 | |
| Coram: | McKECHNIE J | 29/11/11 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SHANE NARKLE DIRECTOR OF PUBLIC PROSECUTIONS (WA) |
Catchwords: | Dangerous sexual offender Whether supervision order should be made No new principles |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 30 |
Case References: | Director for Public Prosecutions for Western Australia v Narkle [2010] WASC 7 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent
Catchwords:
Dangerous sexual offender - Whether supervision order should be made - No new principles
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 30
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Ms M R Barone
Respondent : Mr D Dempster
Solicitors:
Applicant : Barone Criminal Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Director of Public Prosecutions for Western Australia v Narkle [2010] WASC 7
(Page 3)
- McKECHNIE J:
How this matter comes to court
1 On 18 January 2010 Mr Narkle was declared to be a dangerous sexual offender and was ordered to be detained in custody: Director of Public Prosecutions for Western Australia v Narkle [2010] WASC 7.
2 Subsequently, having expressed a willingness to engage in treatment programmes, he was assessed as being unsuitable for inclusion in the Intensive Sex Offender Treatment Program (ISOTP) but suitable for inclusion in the Violent Offending Intensive Treatment Program (VOTP). He commenced the six month VOTP on 20 December 2010. By that stage he had been in detention for nearly 12 months.
3 Because he was still completing the programme and had only completed three sessions of treatment, at the first annual review on 25 January 2011, Hall J expressly declined to rescind the detention order. The DPP accepted that it would be open for Mr Narkle to make application under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) s 30. If made, an application would not be opposed.
4 Following the completion of the VOTP, this is what has occurred. Hall J gave leave to bring the application. At the hearing on 11 November 2011, while Mr Narkle was technically the applicant, for practical purposes and in fairness, the DPP assumed the burden of preparing reports and calling witnesses. So at the hearing Mr Narkle was effectively the respondent.
Issues
1. Does Mr Narkle need to show exceptional reasons?
The DSO Act s 30(2) provides that before granting leave the court must be satisfied that there are exceptional circumstances that relate to the person.
Mr Narkle satisfied Hall J that there were exceptional reasons because Hall J granted leave for review.
The applicant does not carry a second burden to establish that there are exceptional reasons why he should be released on supervision. The application falls to be determined on ordinary principles as outlined in the DSO Act.
(Page 4)
- 2. Is Mr Narkle still a serious danger to the community?
This was not in contention. It was conceded that he is. The concession is appropriate. There has been no marked change since Hall J's findings in that regard.
3. Should a supervision order now be made?
No.
5 Mr Dempster tendered a book of material for the review and it was received into evidence by consent:
Exhibit C Violent Offending Intensive Program Treatment Completion Report by H Cheetham and others.
Exhibit D Department of Corrective Services Individual Management Plan.
6 In addition, I took oral evidence from Dr Mark Hall, a psychiatrist. His report was tendered as exhibit A; Ms S H Ballantyne, a counselling psychologist, whose report was tendered as exhibit B; and Ms P Annese, a Senior Community Corrections Office, who prepared a Community Supervision Assessment which was tendered as exhibit E.
Mr Narkle's background
7 Mr Narkle was born on 1 November 1964 and so is now 47 years of age. In Dr Hall's formulation:
Mr Narkle presents with profound deficits in empathy and remorse in association with callousness, a marked propensity for violence, minimization and denial of sexual offending, abrogation of personal responsibility for his behaviour, and denial in relation to entrenched alcoholism. The latter is currently in remission, albeit in the custodial setting. He also possesses a strongly negative attitude to authority figures, and has a dense history of generalist offending. Notwithstanding the above, there has been a degree of mellowing with advancing age, particularly over the last 4 years. His presentation is consistent with antisocial personality disorder. Mr Narkle was a highly inconsistent and unreliable historian and as such psychodynamic formulation is necessarily deferred until such time as a more reliable account of developmental experiences becomes available.
(Page 5)
8 Dr Hall set out a series of management strategies, stressing individual counselling and random visits, amongst others. With regard to accommodation he noted:
Ideally Mr Narkle's accommodation should be in a setting removed from the psychosocial chaos that has characterised his social contacts previously.
9 Should the court make a supervision order Dr Hall makes the following points:
• Individual counselling is recommended so as to support the content covered in the recently completed VOTP. It may also provide an opportunity to glean a sense of Mr Narkle's mental state and social circumstances at any given time. Accordingly, missed appointments may be potentially indicative of escalating risk. Reassessment of his risk should occur in the event of suspicion of relapse to alcohol abuse, or any change or instability in his social environment.
• Mr Narkle requires further and ongoing counselling in relation to his potential for substance abuse.
• Mr Narkle requires sex offender treatment, which has to date not been undertaken.
• Random home visits by supervisory staff to assess his lifestyle, welfare and sobriety may be a useful form of surveillance and supervision.
• Ideally Mr Narkle's accommodation should be in a setting removed from the psychosocial chaos that has characterised his social contacts previously. Education of his personal supports or those people nominated as personal supports about the importance of psychosocial stability and abstinence from alcohol may be helpful.
• The specific protection of potential future victims is difficult given that Mr Narkle offends opportunistically against victims who are known to him and it is unfeasible to take steps to protect all adult females. He should however be prohibited from contact with his previous victims.
10 He amplified these matters in his testimony. In particular (ts 206), Dr Hall testified as to a plan:
[H]is ability to see through his plans in relation to support from family, maintaining abstinence from alcohol and so forth, his ability to see through those I think is underestimated - is overestimated, I should say, by Mr Narkle. So his faulty insight, for want of a better term, into his
(Page 6)
- particular vulnerabilities and the challenges ahead I think render his plans quite vulnerable and at risk of failing, particularly with respect to maintaining abstinence from alcohol (ts 206).
11 There are problems with treatment and Dr Hall noted:
[H]e has poor insight into his treatment needs. He doesn't believe that he is a sex offender or has offended sexually and therefore doesn't believe that he has treatment needs in that regard whereas clearly he does, so that is a problem (ts 207).
12 As to monitoring, he said:
Unfortunately, with Mr Narkle there was not a lot of information that could lead you to identify what those warning signs might be and if Mr Narkle himself felt that he might be at risk of reoffending the likelihood that he would tell someone that he was having supervision with seemed to me to be fairly minimal given what I found to be his attitude to authority figures (ts 208).
13 Mr Narkle is a sex offender denier and therefore has not undertaken a sex offender treatment programme. In Dr Hall's opinion:
[W]ithout some kind of intervention or some kind of work around understanding - it's a question of acknowledging and understanding the sexual element of the offending - I don't see how Mr Narkle can make progress in that regard (ts 209).
14 In cross-examination Dr Hall agreed with Ms Barone that Mr Narkle's core issue is one of violent offending and that is far more chronic and pervasive throughout his life whereas the two violent sexual offences are some 17 years apart. Dr Hall would not be prepared to limit the possible offending to family members describing the offending as 'opportunistic'. However, he noted being a denier, this is not necessarily strongly co-related to the risk of re-offending. It is relevant to treatment and management.
15 Dr Hall agreed that Mr Narkle's personality disorder is not treated and is unlikely to change although elements of his behaviour may change. The fact that his institutional charges have diminished, so that in the past four years he has had none, bodes well for his impulsivity. Dr Hall thought there were positives both in treatment within an institutional setting and in treatment within the community. Dr Hall accepted Mr Narkle is strongly motivated not to go back to prison, although Dr Hall expressed the view that his clinical experience suggests this does not weigh heavily at all.
(Page 7)
16 Dr Hall explained in more detail why he thought that individual counselling was the way forward rather than group programmes for Mr Narkle. As to the possibility of risk mitigation:
I got a sense from Mr Narkle that he feels that there is nobody that he won't be able to manage. There's no relationship out there that he won't be able to manage. Whilst there is possibly a modicum of truth in that, to declare that in my experience as a psychiatrist generally reflects a lack of thought and therefore a lack, an under appreciation as to what those challenges actually are going to be (ts 232).
The Violent Offending Intensive Program Treatment Completion Report
17 This was tendered as exhibit C. The report noted that Mr Narkle's attitude towards his programme completion was varied. It appeared that his inconsistent participation throughout the programme could be attributed to a number of factors, including neurological functioning, resistance to programme participation, disinterest in programme topic, health issues, external stressors. It was difficult for facilitators to ascertain the treatment gains made and the level of internalisation of the gains. Overall, Mr Narkle still has outstanding treatment needs in each of the areas identified as criminogenic needs, interpersonal and decision-making skills, emotional control and anger management, perspective taking, socialisation and relapse prevention.
Summary of treatment intervention
18 Ms Ballantyne's opinion about supervision in the community:
• Multi-Agency Community Risk Management
Current best practice models for the management of high-risk offenders in the community involve strong collaborative multi-agency partnerships to enhance the effectiveness of interventions and ongoing risk assessment. This approach involves regular information sharing and consultation/liaison between various agencies and other treatment providers (medical and/or psychological) involved with the support and management of individuals in the community.
Rigorous community supervision and sex offender-specific treatment are universally accepted as prerequisites for responsible management of high-risk sex offenders. Should Mr Narkle be made subject to a Supervision Order pursuant to the Dangerous Sexual Offenders Act, 2006, his ongoing monitoring and management would be of paramount importance in attempts to ensure the adequate management of his risk and to minimise the possibility of future offending.
(Page 8)
- • Initial Adjustment Counselling
If Mr Narkle is released to community supervision it is anticipated that he may benefit from supportive individual intervention regarding his adjustment during the initial few months. Assessment regarding specific adjustment difficulties and requiring additional support will be undertaken by a member of the DSO Psychology Team and a temporary treatment plan generated for an initial period of up to three months. Intervention is likely to target some or all of the four areas of outstanding need identified above in response to the acute needs and adjustment progress presented by Mr Narkle as required.
20 As to a treatment plan:
I think that would need to be assessed and monitored and flexible as dependent upon Mr Narkle's function and the difficulties he is encountering ...
I think Mr Narkle will need quite a lot of support (ts 244 - 245).
Community Supervision Assessment
21 This assessment was undertaken by Ms Annese whose report was tendered as exhibit E. Mr Narkle has difficulty in finding accommodation. The only person willing to take him was his 38-year-old nephew who lives at an address in Maylands, a one bedroom unit in a block of flats. There is a real issue as to whether taking in Mr Narkle would breach the lease. Because the nephew would spend extended periods of time with his partner at her home in another suburb, Mr Narkle would be left for those periods unsupervised in the premises. In addition, the units are mainly occupied by single men and another resident is known to be a problematic drinker of alcohol.
22 The nephew's record indicates a criminal history characterised by violence and substance abuse.
(Page 9)
23 There is limited community support even with the sponsorship of his nephew.
24 I formed a tentative view, which I expressed to counsel, that the proposed accommodation was quite unsuitable. Accommodation was explored in oral evidence. However, Ms Barone in her submissions agreed that the accommodation with the nephew was unsuitable.
25 It was partly for this reason that I indicated I would reserve my decision for a time to enable further enquires to be made.
Findings and conclusion
26 The DPP's submissions through Mr Dempster are that:
[O]n all the available evidence [I] could not have confidence that whatever conditions might be in the supervision order would be sufficient to protect the community against the background (ts 268).
27 The submissions on behalf of Mr Narkle, in summary, are that with conditions the risk could be ameliorated to an acceptable level.
28 The treatment needs are no different whether provided in the community or in custody, especially as one-on-one counselling is likely to be much more beneficial than group work. The primary risk is of Mr Narkle offending violently.
29 These submissions have weight.
30 Ms Barone also submitted that the second limb of assessment must incorporate that there will come a time where that detention is at too high a price and if the community does not, or chooses not to, provide accommodation on their head be it, because if it were not acceptable then the community would do something about it.
31 This submission cannot be accepted. The DSO Act provides for only two forms of orders if a person is a dangerous sexual offender: detention or supervision.
32 In deciding which order, the paramount consideration is the need to ensure the adequate protection of the community: s 17(2). Clearly, the adequate protection of the community may at times be achieved by means of a supervision order. The question however is not whether the risk is acceptable. That question is resolved by a finding whether a person is a serious danger to the community: s 7(1). The question is whether the
(Page 10)
- community is adequately protected from a dangerous sexual offender by the order selected by a judge.
33 In one sense, Mr Narkle raises acutely the issue what to do with a dangerous sex offender who has limited intellectual functioning and whose behaviours are now well-entrenched. I am conscious that he is not to be detained further just because he is a violent offender. He has been declared a dangerous sexual offender however.
34 A therapeutic response for Mr Narkle would be to release him under conditions of strict supervision and provide very significant resources, including intensive one-on-one counselling, in an effort to see whether his behaviour has been modified as a result of being in custody and participation in the VOTP. This is especially so because the evidence suggests that he has just about reached the limits of treatment gain within a custodial setting and some things, such as his ability to resist alcohol, will be untested while he remains in prison.
35 The paramount consideration, however, is the need to ensure adequate protection of the community (DSO Act s 17(2)). In determining that, I leave out of account the proposed accommodation. It is plainly unsuitable.
36 Suitable accommodation for Mr Narkle is likely to be a relatively secure environment with constant monitoring, no access to alcohol and an intensive programme of treatment, counselling and re-socialisation.
37 Even accommodation such as this would have its risks. Mr Narkle has previously offended sexually against persons close to him, although Dr Hall points out that there would be a degree of opportunistic risk even towards strangers.
38 I am not satisfied that even such accommodation would mitigate the risk to an acceptable level. Mr Narkle has mellowed somewhat with advancing age. He has been denied alcohol by reason of his present circumstances. But based in part and on his personality, the likelihood is high that he will soon succumb to alcohol upon release under supervision, notwithstanding a condition against consumption and regular monitoring and checks. If he consumes alcohol to excess and loses his inhibitions, the chances of a sexual offence being committed rise dramatically.
39 It is not necessary for an offender to admit their offending. However, in the absence of an admission and successful completion of a sexual offenders treatment course, there must be other strong grounds for
(Page 11)
- concluding that the risk to the community could be adequately managed by a supervision order. In this case there is no such confidence. While Mr Narkle probably participated to the best of his ability in the VOTP, the evidence does not suggest that he gained much from it that would act as a barrier to further violent offending. Coupled with this lack of a barrier and the effect of alcohol, there is a high likelihood that within the period of any supervision order he will commit a sexual offence. The possibility of an offence being committed opportunistically against a stranger is real.
40 On review, I decline to rescind the order made by Hall J for Mr Narkle's detention in custody as a dangerous sexual offender for continuing control, care or treatment supervision.
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