State Director of Public Prosecutions v White [No 5]
[2019] WASC 237
•4 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: STATE DIRECTOR OF PUBLIC PROSECUTIONS -v- WHITE [No 5] [2019] WASC 237
CORAM: JENKINS J
HEARD: 14 MAY 2019
DELIVERED : 4 JULY 2019
FILE NO/S: DSO 4 of 2013
BETWEEN: STATE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND
STEPHEN NEIL WHITE
Respondent
Catchwords:
Dangerous sexual offender - Review of continuing detention order - 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)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | David McKenzie Legal |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v White [2013] WASC 417
Director of Public Prosecutions (WA) v White [No 4] [2016] WASC 414
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
JENKINS J:
The respondent, Stephen Neil White, is the subject of a continuing detention order (CDO). I made the CDO on 20 November 2013 pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act) s 17(1)(a).[1]
[1] Director of Public Prosecutions (WA) v White [2013] WASC 417.
As required by the Act up until its most recent amendment, annual reviews were conducted since the CDO was made.
On 6 December 2016, I conducted the third annual review of the CDO. I affirmed the CDO and concluded that the respondent remained a serious danger to the community. In my reasons for decision, I set out steps which should have been taken during the two‑year period before the next review.[2]
[2] Director of Public Prosecutions (WA) v White [No 4] [2016] WASC 414.
The fourth annual review of the CDO was listed before Hall J on 12 December 2018. The hearing was adjourned due to Dr Wojnarowska being unable to attend court, and to await information concerning the National Disability Insurance Scheme (NDIS) funding.
On 14 May 2019, I presided over the fourth annual review of the CDO (the 2019 review). At the conclusion of the hearing, I affirmed the CDO and said that I would later publish my reasons. These reasons should be read together with all earlier reasons for decisions made under the Act which relate to the respondent.
Evidence at the 2019 review
Report of Dr Gosia Wojnarowska
General behavioural characteristics
Dr Wojnarowska, consultant psychiatrist, provided a psychiatric report[3] for the purpose of the 2019 review. Dr Wojnarowska also gave evidence at the hearing on 14 May 2019.
[3] Exhibit 1 dated 6 December 2018.
In relation to the respondent's accommodation, Dr Wojnarowska took into account that attempts had been made to manage the respondent in Foxtrot[4] but due to 'a couple of incidents' the respondent had to be removed. Other information revealed that one of these incidents occurred on 10 September 2018 when the respondent assaulted another prisoner. The respondent maintained that the other prisoner assaulted him first but according to custodial staff, there was no evidence of that. The respondent was also reported to have displayed predatory behaviour towards one of the female staff members who was engaged in anger management work with him.
[4] The assisted care section of the prison.
Attempts to manage the respondent in Juliet[5] were also unsuccessful due to the respondent's inability to manage his relationships with other prisoners.
[5] A self‑care unit in the prison.
Dr Wojnarowska also took into account that in February 2018, the respondent commenced monthly therapy sessions with Dr Galloghly. The monthly sessions focussed on rapport building. Dr Wojnarowska reported that there has been minimal progress so far, due to the difficulties with the respondent maintaining focus and displaying avoidance behaviour. The respondent was reported to present in a similar manner with his Community Corrections Officer (CCO), Mr Farrall. The respondent has completed an anger management and life skills counselling course.[6]
[6] Named 'Strive for Pride'.
Dr Wojnarowska was told that the respondent has current employment in prison as a yard and barbecue cleaner. Staff reports indicate that the respondent is polite, respectful and completes his duties. Dr Wojnarowska reported that the respondent's recent occupational therapy assessment reveals that he is capable of attending to daily living skills independently.
When assessing the respondent's attitude towards his offending, Dr Wojnarowska reported that the respondent did not engage well with the topic.[7] The respondent denied planning the offences and claimed that the reasons for his offending were alcohol/drug intoxication, feeling bored and angry and being preoccupied with sex. The respondent however accepted that his past traumatic experiences contributed to him feeling angry and resentful.
[7] The respondent rushed through the 1985 attempted rape offence and denied raping the 10‑year‑old victim. The respondent claimed that he was under the influence of unknown pills and alcohol when he committed the offence and therefore could not remember the details of the incident.
The respondent stated that his worst offence was 'the last one' due to the victim being a child. He acknowledged that the victim would struggle in many areas of her life because of his offence. The respondent stated that he did not know why he committed the offence and that he had never thought of children in that way.
When assessing the respondent's view on his progress, Dr Wojnarowska reported that the respondent stated that he could control his temper and had learned to 'walk away' when confronted.
The respondent reported that he has been abstinent from alcohol since his incarceration in 2001, that he was not interested in women or sex anymore and that he preferred to 'hang around Christian people'. The respondent stated that he had learned about consent, victims' rights and diversion activities.
In Dr Wojnarowska's view, the respondent appeared confident that he would not reoffend. He reiterated that he was a 'changed person' who did not have an intention of hurting others.
In terms of the respondent's current psychiatric symptoms, the respondent reported to Dr Wojnarowska that he had been compliant with his fortnightly depot injections.[8] The respondent denied hearing voices or experiencing any other psychotic symptoms for the last 12 years. The respondent accepted that others viewed him as being frequently irritable and short tempered, but asserted that he had improved since receiving antipsychotic treatment.
[8] This is consistent with his medical file progress notes.
In assessing the respondent's current sexual functioning, Dr Wojnarowska reported that the respondent denied having any sexual interests[9] or behaviours[10] The respondent further reported that he was not interested in having an intimate relationship if released into the community.
[9] Including toward adult females and any deviant interests.
[10] The respondent reported that he did not masturbate or have morning erections.
Dr Wojnarowska did not have any information to indicate the respondent's behaviour towards the female custodial staff member (one of the two incidents previously outlined).
Mental state examination
Dr Wojnarowska stated that the respondent presented as mildly anxious but was able to manage well throughout the long interview hours. The respondent was cooperative, but distractible and at times, irritable when directed to stay on certain topics.
Despite the respondent's speech being brief and not well‑thought out, there was no evidence of a formal thought disorder. The respondent appeared to have some understanding of the expectations on him in relation to a future supervision order.
Dr Wojnarowska reported that there was no evidence of depressive cognitions, suicidal thoughts and any other psychiatric symptoms. There was also no evidence of perceptual disturbance, such as auditory or other hallucinations. The respondent's insight into his psychological functioning and behaviour was limited.
Psychiatric diagnosis
Dr Wojnarowska utilised the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM‑V) to assess the respondent. The primary diagnosis indicated that the respondent was in remission for 'psychotic disorder not otherwise specified'. The additional diagnosis was 'cognitive impairment, mild; antisocial personality disorder; drug and alcohol use disorder', in remission in custody.
Risk assessment
Dr Wojnarowska utilised the Psychopathy‑Checklist‑Revised (PCL‑R) and Risk for Sexual Violence Protocol ‑ 20 (RSVP) to assess the respondent's risk of committing sexual violence in the future.
The respondent scored 20 under the PCL‑R, which is is five points below the threshold of a psychopathy diagnosis. However, the respondent's overall score still suggests that his personality characteristics conform to the clinical construct of psychopathy.
According to the PCL‑R, the respondent's areas of concern include his:
(1)need for stimulation;
(2)cunning and manipulative behaviour;
(3)lack of remorse and shallow affect;
(4)callous/lack of empathy;
(5)poor behavioural controls;
(6)early behavioural problems;
(7)juvenile delinquency; and
(8)revocation of conditional relate and criminal versatility.
In interpreting the respondent's RSVP, Dr Wojnarowska reported that the respondent had maintained the gains noted in previous reports. However, the respondent now acknowledges his sexual offending (with the exception of one offence) and there is no evidence of extreme minimisation of sexual violence. Dr Wojnarowska reported some improvement in self‑awareness however noted that the respondent still has limited insight into the factors and processes that have placed him at risk of sexual violence.
Of concern to Dr Wojnarowska was the respondent's recent assault on another prisoner and predatory behaviour exhibited towards a female staff member.[11] It suggests continuous problems in the area of impulse control and judgement. Therefore, the previously assessed progress in the respondent's coping and problem solving skills has not been maintained.
[11] These incidents are described at [46] and [74].
The results further indicate that the respondent's mental illness is in remission. The respondent appreciates the causal relationship between his alcohol/drug use and offending, and is able to describe prevention and risk management strategies.
Dr Wojnarowska identified problems with the respondent's treatment. While the respondent has consistently engaged with psychological counselling and is willing to continue this in the community, the respondent's self‑awareness and insight into his offending have only marginally improved. In relation to the respondent's manageability, the respondent's behaviour and compliance have significantly improved and there have been no incidences to suggest hostile attitudes towards authority.
Risk scenario
From the results, Dr Wojnarowska identified that the respondent's likely risk scenario would be offending both against familiar and unfamiliar females irrespective of their age. The respondent is likely to be intoxicated and angry following an argument with someone (not necessarily the victim) rather than there being factors of pre‑planning or grooming.
Dr Wojnarowska identified the risk of reoffending being against a vulnerable female victim in the context of alcohol intoxication. Further, the respondent may also feel bored or frustrated, not being able to work, and having limited social outlets. Warning signs of re‑offending would include a relapse into alcohol and cannabis use, and disengagement from his therapists and supervising agencies.
Opinion and recommendations
In Dr Wojnarowska's opinion, the respondent's risk of sexual re‑offending remains high and has not ameliorated since his last review in 2016. As a result, the respondent could not be currently managed in the community.
Risk factors include the respondent's:
(1)executive dysfunction (frontal lobe impairment) associated with his impulsivity and propensity for violence;
(2)antisocial attitudes;
(3)history of alcohol and drug use; and
(4)limited social supports.
Dr Wojnarowska made recommendations in the following categories:
(1)Treatment - the respondent should continue with psychological counselling.
(2)Medication - the respondent would benefit from augmentation of his treatment with a mood stabiliser (such as sodium valproate) to assist with his irritability, lack of control over his anger and improve his ability to sustain focus and process information.
(3)Supervision - the respondent requires 12 hour supervision and a 12 hour curfew should he be released into the community. Strict supervision in relation to alcohol and drug use, random breath testing and urinalysis are also required.
(4)Type of employment - the respondent requires a highly structured and supervised type of employment.
(5)Accommodation - the allocated funding for the respondent may be sufficient to provide him with the appropriate accommodation and supervision.
Report of Ms Julie Hasson
Ms Hasson, consultant forensic psychologist, provided a treatment progress report[12] for the purpose of the 2019 review.
[12] Exhibit 1 dated 16 November 2018. The report is based on two interviews with the respondent (dated 7 November 2018 and 14 November 2018) and consultations with Dr Dylan Galloghly, clinical forensic psychologist and Mr Ian Farrall, Senior CCO.
Ms Hasson reported that the respondent engaged in monthly individual counselling with Ms Place, forensic psychologist, from 13 January 2014 until 6 December 2017.
Ms Hasson reported that the respondent demonstrated some understanding of the link between his substance abuse and his violent and sexual offending, specifically that it increased his libido and aggression and decreased his self‑control. The respondent tended to externalise the blame for his sexual offending on his substance abuse, despite demonstrating an acceptance that people can still make choices when under the influence of alcohol and illicit substances.
Ms Hasson reported that Ms Place noted that the respondent was able to identify his triggers for anger, relate the link between his anger to his offending and further, identify strategies to manage his anger. The respondent was further able to identify some of the factors that led up to his sexual offending behaviour. The respondent however continued to blame his sexual offending on substance abuse and was unable to identify any future risk factors aside from substance use.
The respondent's expressions of remorse appeared to be superficial and inconsistent with him taking responsibility for his sexual offending. The respondent revealed to Ms Place that he believed he was at no risk of sexual offending provided he did not engage in substance abuse.
The respondent's understanding of healthy sexuality had improved, however his ongoing denial of any sexual interest and arousal, coupled with his inability to identify how he would meet his sexual needs upon release, concerned Ms Place.
Ms Hasson reported that Ms Place had noted that the respondent had been inconsistent in complying with psychiatric medication, although towards the later stages of treatment, he had become more compliant. The respondent demonstrated some understanding of the need for compliance with medication upon release.
Ms Place reported that the respondent has a history of adopting primarily avoidant coping strategies. For example, in 2017 a close friend of the respondent passed away in prison which resulted in the respondent demonstrating some acting out behaviours. During counselling the respondent denied being upset or that his behaviour had deteriorated.
The respondent was accepted by the NDIS and referred to Neami National (Neami) for planning and coordination. To support the respondent's development of life skills, coping and problem‑solving abilities, a goal of transfer to a minimum security prison such as Karnet or Bunbury prisons was suggested. It was further suggested that the respondent needed to demonstrate an ability to cope in a less restrictive environment than Foxtrot.[13] The respondent was transferred to self‑care in Juliet but was returned to Foxtrot after a couple of weeks due to behavioural issues.[14] When reviewing this placement, the respondent was unable to reflect on his behaviour, denied responsibility for it and externalised blame to others.
[13] The respondent has been residing here since being placed at Acacia Prison.
[14] Whilst in Juliet, despite initially appearing to cope well, the respondent started to display problematic behaviour such as asking other prisoner's for cigarettes, speaking about his offending, stealing food and attempting to sell clothes for cigarettes. The respondent was not responsive to warnings about his behaviour by unit staff or Ms Place.
Ms Hasson reported that the respondent's behaviour upon his return to Foxtrot[15] was described to her as 'belligerent'. The respondent refused to engage in counselling for several weeks but eventually sent a letter of apology to Ms Place for his rude behaviour.
[15] The respondent returned on 4 August 2017.
Ms Hasson reported that Dr Galloghly has seen the respondent on a monthly basis since February 2017. However, the respondent's behaviours such as inattention, avoidance and loss of focus have compromised the sessions. After focussing on building rapport with the respondent, Dr Galloghly reported that the respondent has demonstrated minimal progress in relation to the treatment needs, as identified by Ms Place, and that treatment targets remain unaddressed and areas of future focus.
Respondent's prison behaviour
Ms Hasson reviewed the respondent's prison behaviour.[16] Several non‑critical incident reports were documented as having occurred in 2017 - 2018, summarised as:
(1)12 April 2017 - the respondent was considered to be acting strangely. He had pierced his ear and required medical attention. Nursing notes indicate that the respondent blamed different medications for his issues. Ms Hasson commented that the respondent does not understand the presence or recurrence of psychiatric symptoms, suggestive of relapse.
(2)28 May 2017 - the respondent refused several directions by a prison officer to get his identification and return to the medical centre. The respondent was given a loss of privileges for three days, instead of a charge.
(3)24 April 2018 - other prisoners drew a penis, scrotum and a Nazi swastika on the respondent's head in exchange for tobacco. No charges were laid as the respondent had reportedly agreed to this. Nursing staff expressed concern about the respondent's vulnerability, cognitive impairment and ability to give consent.
(4)8 May 2018 - medical progress notes reveal that the respondent attended the medical centre with a nose bleed alleging that he had been assaulted by another prisoner. No description of the incident was available on record.
(5)27 June 2018 - the respondent demonstrated disgruntled behaviour after not receiving a special drink to alleviate cold symptoms.
(6)10 September 2018 - the respondent physically assaulted another prisoner with a chair. At interview, the respondent informed the interviewer that he was sick and tired of being teased. He accepted that this was not a valid excuse, and apologised to the other prisoner. The respondent pleaded guilty to a related charge and he was confined to his cell for four days.
(7)22 September 2018 - during an unlock, the respondent could be heard yelling that he wanted to be unlocked. Due to his current CDO this was not possible and the respondent was informed. The respondent used the intercom to yell 'I want rec, fucking let me out!' and continued to scream, swear and was heard to be banging. This behaviour ceased when the respondent was warned that he would not be let out if he maintained his aggressive behaviour.
(8)29 October 2018 - the respondent was out of bounds when he was observed to enter another prisoner's cell in another unit. The respondent could not provide a satisfactory reason for being in this area. The respondent was previously given a verbal warning for being out of bounds in the same area on 13 October 2018. Consequently, the respondent was given a recreational loss of privilege for three days.
[16] According to the Department of Justice 'Incidents and Occurrences, Charge History and Substance Use Test Results' for the respondent.
Ms Hasson reported that the respondent has not recorded any positive results for drugs or alcohol. The respondent has generally been compliant with all treatment.
The respondent's Individual Management Plan Report, dated 23 May 2018, describes him as being polite and respectful to staff. The respondent is not considered a management concern and is observed to interact well with other prisoners, to maintain his personal hygiene, and fulfil his employment duties to the best of his ability.
The respondent's presentation during assessment with Ms Hasson
Ms Hasson observed the respondent during the two interviews to be polite and responsive. At the first interview, the respondent maintained focus and concentration for 40 minutes and was able to continue for an additional 40 minutes with positive reinforcement.
At the second interview, the respondent was more difficult to engage. The respondent remained polite but was easily distracted. The respondent demonstrated behaviour, previously identified as an avoidance mechanism, by requesting to leave within minutes of sitting, and then asking to use to the toilet. The respondent exhibited poor eye contact and spent a majority of the time slumped with his head bowed. After 40 minutes, the respondent asked to be excused.
Across both interviews, Ms Hasson reported that there was no evidence to indicate delusional thinking, paranoia or persecutory beliefs. The respondent also denied the presence of psychotic symptoms. The respondent's behaviour appeared to be at the low end of the normal range.
The respondent's account of treatment progress
Ms Hasson reported that the respondent expressed positive views regarding his participation in counselling. Following Ms Place's departure after December 2017, the respondent did not express any concerns about having to commence treatment with Dr Galloghly, as his new psychologist. The respondent believed that he was building a good rapport with Dr Galloghly and wanted to continue the work he and Ms Place achieved.
The respondent generally spoke positively of the treatment he had participated in. The respondent participated in two programs under the Sex Offender Program for the Intellectually Disabled (SOID) and stated that he had benefitted from this experience. More recently, the respondent participated in Strive for Pride which helped him set and achieve small goals and monitor his emotions, particularly anger. The respondent believed that he had made significant gains and expressed disappointment in himself for assaulting another prisoner in September 2018. With the benefit of hindsight, the respondent was able to identify what he could have done differently, rather than retaliating.
The respondent identified his coping mechanisms for managing anger, stress or frustration[17] and attributed his previous use of alcohol and drugs to escape his problems. The respondent informed Ms Hasson that he no longer has an interest in doing this and emphasised his sobriety and abstinence over the past 17 years. However the respondent was unable or unwilling to discuss any possible scenarios conducive to a relapse. The respondent remained nonetheless adamant that he would avoid 'bad places such as Northbridge' and stay away from people who drink or use drugs.
[17] Such as going to his room, showering, sleeping, exercising and talking to others.
Ms Hasson reported that the respondent demonstrated no insight into internal risk factors such as emotional feeling states[18] that may place him at risk of relapse. The respondent simply commented that he would never get bored or stressed in the community because he would always find something to do. The respondent appeared to understand the need to lead a positive and prosocial life.
[18] Such as boredom, loneliness or other dysphoric emotions.
The respondent spoke positively and with pride about his progression in improving his communication and conversation skills. He stated that he practiced these skills daily. Ms Hasson reported that these skills had improved and the respondent had good knowledge of the rules of communication. However the flow of conversation was difficult to maintain due to the respondent's short attention span and tangential thinking.
Ms Hasson reported the difficulty in encouraging the respondent to provide detail about his previous substance abuse and sexual and violent offending. The respondent considered his substance use to be a historical event and could not identify any possible situations in the future where relapse may occur. Some understanding of the factors associated with alcohol and drug use in the past such as boredom, associating with negative peers and using drugs and alcohol were identified, but the respondent could not elaborate on this.
The respondent did not want to discuss his history of sexual offending in any detail and maintained that his offending was due to substance abuse. The respondent could not identify any other risk factors and reiterated that he was not a risk due to his commitment to abstinence.
The respondent denied having any sexual thoughts, behaviours or sexual interests for many years. The respondent considers himself too old for a relationship and believes that his medication may have reduced his libido. The respondent demonstrated no obvious connection or expression of empathy, regret or remorse towards the victims of his sexual offences.
The respondent reported that he had been diagnosed with a 'touch' of schizophrenia and was accepting of the need for medication. The respondent refused to acknowledge any psychotic symptoms, past or present, such as auditory hallucinations reported whilst in custody. The respondent considered drug use to be a risk factor for mental health deterioration but could not identify any signs or symptoms that might indicate a relapse, or poor management of his mental health.
The respondent told Ms Hasson that he is committed to a healthy, offence‑free life. The respondent believes that if released, he may have some difficulties in budgeting and cooking but told Ms Hasson that he is happy to report as required, obey all directions, submit to urinalysis, continue to engage with a psychologist and to take medication as prescribed.
Opinion of Ms Hasson
Analysis of treatment progress
Ms Hasson opined that since the respondent's engagement in individual counselling over the past five years, he has made many treatment gains commensurate with his level of functioning. He has also tried to make changes to help him lead a happier, more stable and hopefully offence‑free life. Whilst the respondent has a way to go in terms of sustaining conversation and communicating his thoughts and feelings in greater depth and detail, the most obvious improvement for the respondent includes social skills regarding communication and conversation. The respondent however continues to display avoidant behaviours.
Of concern to Ms Hasson is the respondent's claim that alcohol and illicit substances were the cause of his sexual and violent offending, and for his mental health issues. As a consequence, the respondent views abstinence from alcohol and illicit substances as his single largest risk factor. The respondent also views compliance with medication to regulate his mood to be a part of his relapse prevention strategy. Whilst Ms Hasson acknowledges that both are important, they are both external agents of control and the respondent lacks insight into his mental health issues.
Ms Hasson stated that there is no evidence indicating that the respondent is able to identify or articulate any internal risk factors (such as thoughts, feelings and cognitions) beyond superficial feelings and emotions (such as boredom, stress, anger and loneliness), the use of pornography, and the absence of a sexual partner to explain his offending. The respondent is unaware of, or unable to discuss his thoughts about, forcing unwanted sexual contact onto women of any age. Further discussion regarding potential sexual fantasies including rape or the use of violence was not able to occur. Ms Hasson has limited confidence that given the respondent's cognitive, psychological and psychiatric issues that any further depth or insight will be achieved.
In Ms Hasson's opinion, the respondent's recent assault on another prisoner reflects a lapse in the respondent's ability to control his feelings of anger and frustration, and his capacity to prevent an aggressive response. This further undermines the respondent's assertions that alcohol, substance abuse and lack of medication are 'responsible' for his past violent offending. The respondent's acceptance of responsibility is marginal, however he does display an ability to reflect on his behaviour and identify ways of handling the situation differently. Ms Hasson opined that the respondent needs to continue to work on impulse control, tolerating provocative situations and increase his ability to manage anger, frustration and irritation.
The respondent's impulsivity, distractibility, lack of focus, inattention, poor concentration and difficulty grasping, recalling and processing complex ideas are all issues that would continue to impact the respondent's engagement in treatment, his ability to identify a deeper understanding of risk factors, and relevant risk management strategies.
Future intervention issues and plan
Ms Hasson identified that the respondent has ongoing treatment needs relating to substance abuse, sexual and violent offending, social and communication skills, coping and stress management, emotional regulation and problem solving. In relation to these treatment needs, a potential issue is that the respondent may have already achieved as much as he can in view of his limitations. If that were the case, Ms Hasson recommended a focus on encouraging the respondent to extrapolate his understanding of his offending behaviours toward future risk scenarios. Some behavioural strategies, such as rewards and positive reinforcement, may benefit the effectiveness of counselling. Ms Hasson stated that there is the need for an ongoing focus on the respondent's coping skills in relation to different levels of stress and anxiety.
The respondent expressed concern about his ability to manage in the community with aspects of self‑care and daily living, such as affording the costs of living, managing finances, preparing meals and using public transport to go to appointments. Ms Hasson stated that the respondent would need considerable support through the NDIS.
If the respondent were to remain on a CDO, treatment by the Forensic Psychological Service (FPS) psychologist would need to be maintained on a regular basis. If placed on a community supervision order (CSO), treatment with the psychologist should continue in addition to the need for counselling to consider how the respondent would manage in the community. In either situation, Ms Hasson recommended the stabilisation of the respondent's mental health, compliance with medication and ongoing efforts to assist him to develop insight and acceptance of his illness is required.
Community supervision assessment
A Community Supervision Assessment Report (CSAR) dated 29 November 2018 was provided[19] for the purpose of the review before Hall J. Some of the information in it has been superseded by subsequent events so the following summary of its contents should be read in light of the material contained in subsequent reports.
Prison
[19] Endorsed by Ian Farrall (Senior CCO - Community Offender Monitoring Unit (COMU)), Kara Cassam (Team Leader - COMU) and James Hosie (Assistant Director - COMU).
Between 6 December 2016 and the completion of the CSAR the respondent remained at Acacia Prison, with the majority of his placement being in the assisted care unit. The respondent has been subject to Supervision and Monitoring System (SAMS) since 26 April 2016 to monitor his transition into self‑care at J block where he was at the time the CSAR was completed. The respondent was placed in Juliet from 29 June 2017 to 4 August 2017, however he was unable to maintain this placement and his position in self‑care was withdrawn due to concerns arising from the respondent's disclosure of his offending behaviour to other prisoners, attempting to gain friendship by selling his property and selling and stealing property from other prisoners to purchase cigarettes. The respondent returned to assisted care due to inability to cope.
The respondent was given the opportunity to return to Juliet for day visits on a regular basis in efforts to slowly reintroducing him to the setting to ascertain whether he would be able to trial self‑care again. The respondent had not attended Juliet on a regular basis and his last attendance prior to the completion of the CSAR was on 30 May 2018. Despite staff inviting the respondent to attend, the respondent was considered to lack motivation to spend time there.
The respondent was transferred from the assisted care unit to India block on 27 September 2018, due to an assault on another prisoner and concerns regarding his behaviour towards a female staff member.
According to the Total Offender Management System (TOMS), four incident reports were recorded against the respondent. I have outlined the incidents which occurred on 28 May 2017, 10 September 2018 and 29 October 2018 at [46]. The CSAR contains details of an additional incident that occurred between 18 ‑ 19 September 2018, where the respondent was observed to continually stare at, and attempt to engage with, a female prison officer and made comments in regards to her personal vehicle. Due to this behaviour and the fact that the unit overlooks the staff park, the respondent was transferred to an alternative unit.
Proposed community supervision plan
Accommodation and community supports
NDIS
As of 27 November 2015, the respondent has been eligible to receive funding and support from the NDIS. The NDIS appointed Neami to provide specialist support coordinator service. An interagency meeting occurred on 12 November 2018, however, by the time the CSAR was produced, information regarding the supports and quotes required for the respondent on behalf of the NDIS was not available.
It was advised on behalf of Neami that contact had been made with a number of accommodation services, however no confirmed accommodation was identified. During an interagency meeting, the psychiatrist at Acacia indicated that psychiatric hostels in the community may struggle to manage the respondent's behaviours associated with his acquired brain injury (as such hostels are generally not trained in this area). It was considered that the NDIS supports may be able to assist in this area and provide staff training where required. The respondent has not proposed other accommodation and had not had family contact for over 12 months.
Uniting Care West
On 8 August 2018, Uniting Care West (UCW) conducted an initial intake interview with the respondent. The respondent was assessed as unsuitable to engage in the UCW Dangerous Sexual Offender (DSO) Supported Accommodation Program due to his level of complex needs, including his mental health and inability to live independently. A second assessment interview was conducted on 3 October 2018, reporting that his level of complexity was outside the scope of the program. During that interview, the respondent withdrew his consent to engage in the program, as he considered the transitional accommodation time frame (six months) too short and that it would cause him to re‑offend.
UCW advised that they may give consideration to provide support with independent accommodation if the NDIS funding and supports were sufficient.
Victims
Contact with the Victim‑Offender Mediation Unit (VMU) indicated that on 19 November 2018, no contact had been made with the victim. VMU are of the belief that the victim is located in the East Kimberley region and would have concern if the respondent was proposing to be released into that region.
First updated Community Supervision Assessment Report
Following from the CSAR, an updated CSAR (the first updated CSAR)[20] dated 12 March 2019 was provided.
[20] Exhibit 2. Endorsed by Kyle Jarvie (Senior CCO - COMU), Kara Cassam (Team Leader - COMU) and Tatjana Gvozdenovic (Assistant Director - COMU).
The information contained in the first updated CSAR provided information to ascertain whether a service provider would be in a position to provide accommodation to support the respondent in the community. This was following a NDIS plan received by COMU indicating that Neami would need to liaise with potential service providers and obtain quotes (if they were willing to work with the respondent).[21]
Proposed community supervision plan
Accommodation and community supports
[21] This information was provided to the court the day before the hearing listed for 12 December 2018. It was advised that the SSC required three months to facilitate the quotes.
As identified at the hearing on 12 December 2018, the respondent had been approved for Supported Independent Living (SIL) within his NDIS plan. The necessary next step was for Neami to identify support providers who would be willing to provide a quote to offer accommodation and disability support for the respondent.
On 20 December 2018, Mr Ranjan, the Regional Manager for Neami Western Australia, was contacted to further ascertain information in progressing the respondent's plan. Mr Ranjan advised that potential providers included St Judes, Cam Can, Outcare, UCW, Community Housing Ltd, Rise Network, and Rocky Bay. Mr Ranjan noted that there was difficulty in the past with locating a service who would be willing to work with the respondent, but was hopeful that since SIL was now included in the respondent's plan, this may allow for an organisation to offer support.
Mr Ranjan explained that the delay in organising support may have occurred as a result of the NDIS not considering the respondent to have a release date or transition date. As a result, the NDIS could not arrange a planning meeting until closer to his court date.
On 3 January 2019, Mr Ranjan informed that Ms Padshah was the NDIS planner allocated to the respondent's case and that the transcript from the 12 December 2018 hearing was provided to her. Ms Padshah communicated a view that the NDIS role was misunderstood in relation to the respondent's case, stating that accommodation was not solely the responsibility of the NDIS, and that all available mainstream options should be explored by other stakeholders. The mainstream options that had been explored by COMU were outlined to Ms Padshah. It was also explained that applications for Community Disability Housing Project (CDHP) were resubmitted by COMU, to more adequately reflect the respondent's circumstances. COMU also identified the difficulties that DSOs face in obtaining private rentals as a proposed release address, notwithstanding the respondent's additional complexities.
On 16 January 2019, Ms Padshah advised that from a NDIS perspective, the respondent's plan was approved within the required timeframe. She informed that NDIS had been advised by Neami staff that no release date was determined and that a list of accommodation options had been explored with no success. She informed that further exploration of accommodation options was to occur by Neami and additional funding was granted to allow this. Ms Padshah indicated that further records or reports were required to assess the respondent's needs and progress, and the respondent signed a consent form permitting the release of existing reports to NDIS and Neami.
A meeting occurred between COMU staff and another officer at the NDIS involved in the NDIS Justice Interface to discuss the difficulties between the NDIS processes and persons subject to the Act. The authors of the report advise that communication is ongoing to identify and solve issues in this area.
On 21 January 2019, during an interagency meeting Mr Ranjan advised that Neami had explored 33 different providers for the respondent to receive accommodation and support from. All but two of the service providers were either unwilling or unsuitable to provide support to the respondent. The two service providers who were willing to provide a quote were UCW and Outcare.
Mr Ranjan advised that both providers were asking for a ratio of two support staff to be with the respondent at any one time due to potential risks. COMU staff raised concerns regarding this requirement, based on previous advice from the NDIS that its level of support was based on disability needs rather than risk needs. COMU staff explained that from experience, a two to one ratio may not be approved by NDIS.
The authors advised that on 7 March 2019, further contact was made with Mr Ranjan. The NDIS had provided feedback stating that the quote from UCW had not met the formatting requirements. Mr Ranjan indicated to the authors that he would need to request UCW to re‑submit the quote in the required format. Ms Padshah expressed some concerns regarding the likelihood of the quotes being approved, based on the required amount of funding indicated by the service providers. Mr Ranjan indicated that both quotes provided from the two service providers were of a similar amount.
Prison behaviour
The authors of the report stated that the respondent has had one prison incident and two behavioural notes recorded since the CSAR completed for his appearance on 12 December 2018.
On 6 December 2018, the respondent was recorded as trafficking items (chocolate bars) to another prisoner under a unit boundary fence. No charges were formed but a first and final warning was issued (noting that some similar behaviours had been witnessed in the past with the respondent stealing and gifting items to achieve favour amongst other inmates).
On 14 December 2018, the respondent also incurred a verbal warning for being improperly dressed (wearing a singlet, without a shirt) in the movement control area. Further on 7 March 2019, the respondent was given a verbal warning for smoking in the unit.
The authors reported that all other prison records indicate that the respondent has been respectful towards prison staff and other inmates. In relation to the respondent's previous visits to Juliet, on 24 January 2019 prison staff discussed potential continuation of visits to Juliet to ascertain the respondent's motivation to continue. The authors of the report indicated that the visits were for the purpose of the respondent becoming more familiar with the environment, with a view to permanently move him into Juliet self‑care. The respondent agreed, and indicated that he was keen to recommence day visits.
On 16 February 2019, the respondent attended for two hours and then requested to go back to his block. The authors of the report stated that the respondent is often keen to return to his block after completing the time allocated to the visit. Prison staff also stated that they were unsure as to whether the respondent is motivated to return to Juliet, as he does not display much interest. Nonetheless, the authors of the report stated that the respondent would continue to be offered opportunities to attend Juliet.
The authors reported that when visiting the respondent in person, the respondent presented with a short attention span. The authors reported that the respondent often asks to return to his unit shortly after the interview commences or he asks to leave the interview to return to other tasks. However the authors reported that this is addressed with the respondent at the time, and after explanation of the importance of his meeting with his Senior CCO, he spends some time in discussion. However, the authors reported that the respondent's attendance is not sustained at the next contact, and upon commencement of the visit, he immediately wants to return to the unit.
In relation to Dr Wojnarowska's recommendation in her 2018 report that the respondent commence sodium valproate, discussion has occurred with Acacia mental health staff and they indicated they would review the respondent's medication regime. Prison health staff also advised they would explore other potential physical health issues that may be causing frustration.
Psychological intervention
The authors reported that from contact with Dr Galloghly, there was little to no changes to the respondent's presentation.
The respondent had continued his normal routine in prison, he was content with his employment, and had no other concerns. The respondent noted to Dr Galloghly that he considered his main areas of change were cleanliness, notwithstanding wanting to get out of prison, and respecting others.
Second updated community supervision assessment
Following from the first updated CSAR, another updated CSAR (the second updated CSAR)[22] dated 8 May 2019 was provided[23] to include information outlining available funding from the NDIS.
[22] Exhibit 3.
[23] Endorsed by Kyle Jarvie (Senior CCO - COMU), Kara Cassam (Team Leader - COMU) and Tatjana Gvozdenovic (Assistant Director - COMU).
On 15 April 2019, contact was received from Neami confirming that a draft plan had been received for funding.[24] On 16 April 2019, Mr Ranjan confirmed that the plan equates to approximately four and a half hours per day if a support worker is working one on one with the respondent, or two hours support per day if working on a two to one basis. This is contrary to Dr Wojnarowska's previous indication that 12 hours of support via a NDIS funded support agency, in conjunction with a 12 hour curfew, would be the appropriate level of support within a community environment.[25]
[24] The funding covered the core domains of core support and capacity building supports (including improved relationships, increased social and community participation, and support coordination).
[25] According to the updated CSAR, Dr Wojnarowska was informed of the current level of support offered by the NDIS plan and indicated she would review this information and determine her view.
Mr Ranjan advised UCW and Outcare of the quotations of the NDIS plan. Both organisations indicated that they would work only with the respondent on a two to one support worker basis and stated that they would not be able to offer support to the respondent based on the level of funding in the NDIS plan.
On 3 May 2019, Mr Ranjan informed that he had approached other service providers. Ruah Community Services (Ruah) advised that they would in‑principle agree to work with the respondent on a two to one support staff basis, equalling the two hours per day. However, Ruah would require approval from their executive team to confirm the referral[26] and further, the respondent would need to reside in the Fremantle to Mandurah area. Even if approval had been obtained, Ruah did not have accommodation available.
[26] The author of the report advised that further clarification has also been sought by Mr Ranjan to confirm that the NDIS would approve for the funding to be used in a two to one support model.
At the time of the hearing UCW had one property within the area identified, however the property was allocated to another person under consideration. Further, UCW have previously indicated that the respondent is not suitable for the DSO Supported Accommodation Program due to his very high level of needs.
The second updated CSAR indicated that enquiries were being made as to whether the respondent could be assisted by UCW to obtain a private rental. Richmond Fellowship and Cam Can indicated an interest in working with the respondent and this was being explored.
Oral evidence of Dr Wojnarowska
Examination‑in‑chief
Dr Wojnarowska confirmed her view that the respondent has a diagnosis of psychotic disorder and that he is currently in remission. The respondent is currently on an antipsychotic depot injection and there is no evidence of any psychotic symptoms. The medication decreases the respondent's sexual function.
In relation to the respondent's PCL‑R score of 20, Dr Wojnarowska stated that the positive score demonstrates the respondent's need for stimulation, tendency to be manipulative, shallow affect, lack of remorse and, importantly, poor behavioural controls that are associated with his cognitive impairment and his history of multiple head injuries that he sustained as a child. Dr Wojnarowska clarified that the respondent's score is below the threshold for psychopathy, however, his personality characteristics conform to the clinical construct of psychopathy. When asked about the significance of psychopathy, Dr Wojnarowska stated that it was one of the two most important factors predictive of risk of reoffending.
In relation to the respondent's RSVP score, Dr Wojnarowska clarified that she found the respondent's recent assault on another prisoner and predatory behaviour towards a female staff member concerning because it demonstrates that even in a controlled environment, the respondent has difficulty in controlling his impulses, including his sexual impulses.
Dr Wojnarowska clarified that the respondent's prior substance use in conjunction with his poor ability to use mature coping mechanisms leads to the likelihood of him resorting to substance use when under stress or in an unstructured environment, such as the community.
Dr Wojnarowska confirmed that the respondent is aware that he is a convicted sexual offender and that he is potentially dangerous to the community. The respondent also understands the link between his potential alcohol use and the risk of sexual reoffending. The respondent's problems with manageability are, in Dr Wojnarowska's opinion, associated with poor frontal lobe functioning, difficulty with suppressing impulses, poor planning and poor organisational skills.
Dr Wojnarowska further elaborated on her finding of a likely risk scenario involving offending against females irrespective of their age. It is likely that the respondent would be intoxicated or angry, and it will be an opportunistic assault or attack (rather than the involvement of pre‑planning) and it is likely to be similar to one of his previous offences. In Dr Wojnarowska's opinion the respondent could only be managed in the community if there was adequate supervision.
In relation to the second updated CSAR containing the NDIS plan, Dr Wojnarowska agreed that if the respondent was allocated between four to four and a half hours supervision each day that this would be sufficient provided the respondent was still subject to a curfew and other conditions. However, two hours per day for the respondent, considering his intellectual impairment, institutionalisation in prison and high risk to the community, would be insufficient. In Dr Wojnarowska's view, the importance of the length of time for supervision outweighs the number of people supervising him.
Concerning the respondent's denial of any sexual interest, Dr Wojnarowska confirmed that denial of a sexual interest is not a factor that affects his risk of sexual reoffending. However Dr Wojnarowska believes that the respondent's self‑report of denying sexual interest is inaccurate, given his age.
Dr Wojnarowska advised that it is not possible for the respondent to obtain accommodation through Graylands Hospital or the Department of Mental Health Services because the respondent does not have any symptoms of an active psychiatric disorder, in addition to the scarce resources available. Dr Wojnarowska further clarified that the respondent would need to spend 100 consecutive days in psychiatric care to become eligible for low stream psychiatric care in Graylands Hospital, which has a current wait list of around three years.
Cross‑examination
Dr Wojnarowska reiterated that two hours of supervision per day is insufficient to manage the respondent and that four to four and a half hours of supervision each day is the minimum requirement. Dr Wojnarowska's concern is that without adequate supervision time, the respondent would not know what to do with his time each day.
Following cross‑examination, I proceeded to ask Dr Wojnarowska a number of questions regarding her recommendations.
Dr Wojnarowska remained of the view that sodium valproate, a mood stabiliser, should be trialled as it does not cause significant side effects and is usually beneficial for people who have impulse control problems or are irritable because of brain injury or cognitive impairment. It has the effect of stabilising mood and decreasing anger and impulsivity.[27]
[27] ts 220.
Dr Wojnarowska strongly agreed that attempts should be made to enable the respondent to exercise more independent living.
Dr Wojnarowska acknowledged that releasing the respondent into the community on the basis that he was alone each night for 12 hours without any supervision, would be a lengthy period. She appeared to be of the opinion that if prior to his release the respondent had perhaps two years of living in a minimum security prison with less structure, where he is taught to organise his time, then the proposed four hours of supervision each day with a 12‑hour curfew at night time would be sufficient.[28]
Oral evidence of Ms Hasson
Examination-in-chief
[28] ts 220 ‑ 221.
Ms Hasson stated that the respondent understood the link between substance abuse, mental health and his risk of sexual reoffending. In her view, the difficulty is that this is the respondent's 'go‑to explanation'. Therefore, he has a lack of awareness of other issues that might underpin his risk of reoffending.[29]
[29] ts 224.
In relation to strategies to avoid alcohol abuse in the community, the respondent did not demonstrate any interest due to him maintaining that he has not consumed alcohol for a very long time. Ms Hasson clarified that the respondent's self‑identification of risk factors namely, feeling angry and bored, not having a partner, and associating with negative peers are not risk factors that always come up for him and the relevance of them to his offending is unclear. Ms Hasson reported that the respondent's denial of current sexual interest to Dr Wojnarowska was consistent with what the respondent had told her.
Ms Hasson reported that the respondent demonstrates a poor ability to reflect on his mental health. The impression gained by Ms Hasson was that the respondent does not understand the seriousness of his mental health or cognitive functioning. Therefore, he has no real insight into what his mental state would be like if it started to deteriorate.[30]
[30] ts 225.
The last rehabilitation program the respondent participated in was the SOID in September 2015. Since then, Ms Hasson confirmed that individual counselling was the respondent's main form of rehabilitation and she was not aware of any other programs the respondent had since participated in. Ms Hasson confirmed that since the SOID program, the respondent appeared to maintain the listening, communication, starting conversations, relationships and boundaries skills - and that she was surprised by the respondent's ability to hold and initiate conversations.[31]
[31] ts 226.
In relation to the respondent's coping and problem‑solving skills, Ms Hasson reiterated that the respondent had made progress. However, the issue is the respondent's ability to translate his knowledge into action, demonstrated by the respondent's assault on another prisoner. This suggests that the respondent still needs to work on these skills and that they are tenuous.[32]
[32] ts 226 ‑ 227.
Turning to the respondent's treatment with Dr Galloghly, Ms Hasson stated that it is difficult to plan a normal session with the respondent and it focusses on issues that arise for the respondent including increasing his ability to tolerate stress, frustration and anger.
Ms Hasson noted that the respondent had continued to see Dr Galloghly up until April 2019, however, there is a hold and the respondent will not see him until August 2019.[33] Ms Hasson stated that it is not appropriate and there is little point in replacing Dr Galloghly in the interim because of the time it takes to establish a good rapport with the respondent. Ms Hasson recommended that the respondent continue with Dr Galloghly upon his return.
[33] Due to Dr Galloghly being absent on parental leave.
The counselling sessions were usually quite short due to the respondent's distractibility and impulsivity. He requires encouragement to resettle and refocus. From her recollection, the respondent has sat anywhere from 15 minutes to the longest being two and a half hours.[34]
[34] ts 223.
Ms Hasson found it difficult to gauge the progress of the respondent due to his difficulty in retaining and recalling information, and the inconsistency between his ability demonstrated at sessions.[35] According to Dr Galloghly's report there has not been a lot of progress by the respondent at this stage. Ms Hasson reported that while the respondent had generally made some treatment gains, they are inconsistent and there has not been a shift or change in the respondent's lack of focus.[36]
[35] ts 224.
[36] ts 228.
Ms Hasson reported that the respondent has significant, outstanding treatment needs. It surrounds the respondent's impulsivity, distractibility, and emotional regulation skills.[37]
[37] ts 228.
In Ms Hasson's opinion, the respondent's assault of another prisoner reflects that while the respondent can tolerate certain scenarios for a period, he has a 'tipping point' where he is unable to control his behaviour and emotions.
In relation to Ms Hasson's treatment conclusions, she confirmed that if the respondent remained in prison, focus should be on managing and regulating his emotions. Ms Hasson however added that the ability to help the respondent with these issues in custody is limited because of the contained and controlled prison environment. If the respondent was in the community, he would need to manage his frustration in certain scenarios.[38] Ms Hasson stated that when the respondent was involved in the group program, the respondent had more involvement and he seemed to learn and retain. The respondent requires consistency, repetition, and someone to help him in the moment to manage and maintain those skills.
[38] Ms Hasson gave the examples of possible frustration arising if the respondent had to wait in line, if other people bump into him or if other people annoy him.
In her opinion, Ms Hasson stated that the respondent was unlikely to make any significant gains from individual treatment in the prison setting, due to its limitations. However, the respondent's maintenance of his relationship with Dr Galloghly is the most important thing in order for the respondent to have someone to talk to and with whom he can reflect on his behaviour.[39]
[39] ts 229.
Ms Hasson agreed with Dr Wojnarowska's view that the respondent would require four to four and a half hours of support per day if he was in the community.[40]
Oral evidence of Mr Jarvie
Examination-in-chief
[40] As opposed to two to two and a half hours.
Mr Jarvie, the respondent's current CCO, confirmed he had read the CSAR prepared by Mr Farrall when Mr Farrall was the respondent's CCO and that he had authored the two additional reports (the first and second updated CSARs). Mr Jarvie also confirmed that he was aware of the contents of an email exchange dated 10 May 2019[41] outlining additional material regarding the respondent's accommodation and available funding under the NDIS.
[41] Exhibit 4.
Mr Jarvie confirmed that the NDIS 'draft plan' contained in the second updated CSAR would only become an 'approved plan' if the respondent was confirmed for release. Mr Jarvie confirmed also that a service provider had to be identified before the NDIS would release funds. The amount of funding stipulated was for a 12‑month period, after which there would be a review. Mr Jarvie confirmed that none of the funding allocated by the NDIS was for the provision of accommodation.[42]
[42] ts 234.
Mr Jarvie stated that out of the agencies and service providers that have been approached by himself, Mr Ranjan or Neami, there has been no providers who are willing to provide assistance via a support worker to the respondent on a one‑to‑one basis. Mr Jarvie believed that Outcare has a similar stance to UCW.[43]
[43] ts 236.
Mr Jarvie confirmed that neither UCW nor Outcare are going to offer assistance to the respondent. Further, none of the agencies approached would offer assistance based on the current level of funding for support workers. Mr Jarvie confirmed that there are some agencies who have indicated that they would be willing to work with the respondent on a two‑to‑one basis for the two to two and a half hours per day.[44]
[44] ts 237.
At the hearing on 14 May 2019, a list of licensed supported accommodation places explored was tendered.[45] The list contained a total of 33 explored accommodation facilities. Mr Jarvie confirmed that either they are not prepared to accommodate the respondent, or they do not provide accommodation which would be suitable for the respondent.[46]
[45] Exhibit 5.
[46] ts 238.
At the end of the list, it states that Cam Can could provide individual services but does not provide accommodation and that Outcare and UCW could not provide long‑term accommodation.
Mr Jarvie confirmed that the NDIS would not fund private rental accommodation for the respondent and that it would have to be funded by the respondent. Mr Jarvie is unaware of the respondent's financial position, but in regards to his prison finances, he has insufficient funds. Mr Jarvie believed that the respondent may be eligible for some assistance through Centrelink, but that is yet to be determined. Mr Jarvie anticipated that the respondent may be eligible for the Disability Support Pension.[47]
[47] ts 240.
In relation to the seven recommendations that I proposed in 2016,[48] Mr Jarvie confirmed:
(1)The funding plan under the NDIS has been explored (pursuant to recommendation 1).
(2)The possibility of accommodation with the organisation which runs the residential hostels has been pursued (pursuant to recommendation 2). Mr Jarvie reiterated that none of them were prepared to take on the respondent at this point in time, pursuant to exhibit 5.
(3)The possibility of alternative accommodation through Graylands Hospital or the Department of Health mental health services has been covered by Dr Wojnarowska (pursuant to recommendation 3).
(4)That attempts have been pursued to transfer the respondent to a lower security or a high self‑care area within Acacia Prison (pursuant to recommendation 4). Due to behavioural concerns since 2017, these attempts have been sporadic and have resulted in day visits. Mr Jarvie concluded that there has been a mixed result in relation to this, as the respondent has often requested to return to his main unit (India block) soon after arriving at Juliet.[49]
[48] Director of Public Prosecutions (WA) v White [No 4], 15.
[49] Mr Jarvie stated in oral evidence that currently, the respondent visits Juliet block on roughly a weekly basis to attempt to make him more familiar with the environment. Mr Jarvie added that the prison staff have indicated the respondent has mixed responses to his returning to Juliet block. When I asked Mr Jarvie about the continuation of these visits, he confirmed that if the respondent remains in custody, the visits will continue as long as the respondent wants to. On the days the respondent has visited Juliet block it is for a number of hours, similar to a small day trip.
In relation to recommendation 4, I expressed concerns regarding the structure that can be put in place to ensure that the respondent is aware of the purpose and advantages of him returning to Juliet. In essence, I raised with Mr Jarvie the issue that the respondent may not be adequately encouraged or repeatedly told about this purpose so as to ensure that he was motivated to move to Juliet and to increase the level of his independent living. Mr Jarvie agreed with this concern and stated that the level of encouragement and engagement may differ depending upon the individual unit officer who took the respondent to Juliet.[50] Mr Jarvie stated however that at interagency meetings or case conference meetings, the importance of reintroducing the respondent into a self‑care environment is portrayed. Mr Jarvie confirmed that he himself would also portray this message to the respondent.
[50] ts 244.
When returning to examination‑in‑chief by the applicant's counsel, Mr Jarvie confirmed that the potential for the respondent to remain at Juliet for a longer period, for example, overnight, would be dependent on a bed being available to him. The long‑term plan would be for the respondent to be permanently transferred to Juliet.
The respondent told me that he visited Juliet once a week but that he did not believe that he would be able to be housed there permanently 'for at least two years' because of the length of the terms being served by the residents of that unit.[51]
[51] ts 249.
In relation to the remaining recommendations that I proposed in 2016, Mr Jarvie confirmed:
(5)The respondent engaged with regular counselling with Ms Place, and later, Dr Galloghly (pursuant to recommendation 5).
(6)The respondent is currently engaged in employment. The respondent told me that he had a 'trusted job' of cleaning the officers' offices, wiping tables and emptying bins.[52] He appeared to be rightly proud of this change since the last review. Mr Jarvie stated that he was not aware of any further education programs that the respondent has engaged with (pursuant to recommendation 6).
(7)Mr Jarvie stated that the possibility of engaging in a suitable mainstream program or program for the intellectually disabled would be explored as they become available, however, they generally have long waitlists.
(8)Attempts have been made to implement the gradual release plan (pursuant to recommendation 7).
Cross-examination
[52] ts 249.
In relation to the potential for the NDIS to provide more funding for the respondent, Mr Jarvie stated that this is a matter for negotiation with his current support coordinator. Mr Jarvie stated that it is unclear whether this would be successful because the NDIS funds disability needs, rather than risk needs. The level of funding which the NDIS determines is sufficient to engage the respondent in the community environment to meet his disability can vary significantly from what the court determines is appropriate to address risk needs.[53]
[53] ts 246.
In relation to the delay surrounding the NDIS and its ability to make decisions about support levels and funding prior to annual reviews, Mr Jarvie stated that there is currently high‑level discussions occurring at a directorate level within the NDIS and COMU regarding the timeframes in which the court requires information to be available and the expectations about when the plans can be available. Mr Jarvie stated that the NDIS does not view the review date as a potential release date, which has resulted in delays. Consequently, COMU has been providing information to NDIS and there has been work done to establish a better process to ensure information and plans are more readily available.
Mr Jarvie was unaware of the respondent's recent application to move into self‑care at Acacia Prison. When asked about the timeframe it would take to action that application, Mr Jarvie stated that it is difficult to say because it would depend on the movements within the prison and the availability of a bed.[54]
[54] ts 248.
In relation to the potential benefits for the respondent to visit Juliet on a more regular basis to become more comfortable with that environment, Mr Jarvie stated there was 'potentially' some benefits. He stated it would depend on staffing and whether it could be facilitated. Mr Jarvie confirmed that he would raise it.[55]
[55] ts 248.
The issues
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)Subject to subsection (4), in making a decision under subsection (1)(b), the paramount consideration is to be the need to ensure adequate protection of the community.
In deciding whether to decline to rescind the CDO or make a supervision order, I am required to adopt the least restrictive alternative which is compatible with the protection of the community.[56]
[56] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297.
The Act s 33(3) makes it clear that the paramount consideration for me is to ensure the adequate protection of the community.
Thus in order to determine this review I must decide the following issues:
(1)Does the respondent remain a serious danger to the community?
(2)If so, should I affirm the CDO or make a supervision order?
Does the respondent remain a serious danger to the community?
The respondent's counsel did not dispute that the respondent remains a serious danger to community.
After hearing the evidence, and the views of Dr Wojnarowska and Ms Hasson at the time of the hearing, I was and remain satisfied that the respondent remains a serious danger to the community. Whilst the respondent has made some positive changes to his life, including maintaining some of the gains he has made in the past and engaging in prison employment, they are not enough to significantly reduce his risk of reoffending if he was in the community.
Whether to affirm the CDO or make a supervision order
Similar to the comments I made in the respondent's 2016 review, in order for the respondent to be released on a supervision order which would adequately protect the community, there would have to be in place suitable medium to long‑term accommodation and considerable support services, in particular daily supervision.
Suitable accommodation would ideally be a hostel which caters for people with the respondent's complex needs. No such hostel has been found. Accommodation in the DSO supported accommodation program would be an option but the respondent has been deemed to be unsuitable for this program because of the lack of sufficient support services available for him. The final and least desirable option is private accommodation but if the respondent was to obtain private accommodation his support services would need to be greater. No such private accommodation has been found but in any event the level of support services available to him (as I outline next) is insufficient to ensure the protection of the community.
The NDIS would provide funds to pay for two to two and a half hours of supervision by two workers each day for the first year the respondent was in the community. Funding would be reviewed after a year. The number of hours of funded supervision would be twice that if the respondent was supervised by one, as opposed to two people, at any one time. However no agency is prepared to provide support services on a one to one basis so additional hours cannot be funded.
My assessment based on the evidence of Dr Wojnarowska, Ms Hasson and the CCOs who have provided evidence to the court is that two to two and a half hours of supervision each day is a long way short of what would be required to keep the community safe from the respondent's risk of committing a serious sexual offence. I acknowledge that additional support would be provided by supervision by the CCO, visits to SOMS and counselling. However even with this additional support, it simply is not safe or protective of the community to contemplate the release of the respondent with such limited support.
The proposed level of supervision proposed is insufficient for the respondent to manage in the community, let alone manage his risk of sexual reoffending, as he has limited ability to manage everyday tasks. The development of this ability has been hampered by his slow transition into self‑care (which at this point is only occurring via one weekly visit per week to Juliet) and the uncertainty of the respondent gaining a place in a self-care unit, due to the shortages of bed and waiting list.
The remaining matters of significance are the prison incidents which have occurred over the last 12 months. These incidents confirm the findings I have made about the respondent's continuing risk of committing serious sexual offences. Although they fell well short of amounting to such offences, they indicate the respondent's continuing problems with impulse control and sexualised behaviour. They also confirm the findings that I have made about the level of support he will need in the community.
The only order which is compatible with the protection of the community is to affirm the CDO.
The next two years
In accordance with the Act, the respondent's CDO will not be reviewed for a further two years. In that period, the following steps should be taken:
(1)The respondent continue with regular counselling with Dr Galloghly upon his return.
(2)Consideration be given to trialling the use of sodium valproate. Dr Wojnarowska said that she would speak about this trial and the cause of the respondent's frequent headaches to Dr Bilic at Acacia Prison.[57]
(3)Suitable community accommodation options should continue to be explored.
(4)It is unlikely that the respondent would be released into a private rental property because it would not provide sufficient support for him. Nevertheless enquiries need to be made and support given to the respondent to enable him to make his own enquiries about the government support which may be available to him by way of Centrelink payments and one off grants to pay for a bond, for example.
(5)If the current trial of day visits to Juliet are successful, the availability of a permanent placement in a self‑care unit providing the respondent with the opportunity to learn to live independently should be explored.
(6)The scope of the NDIS funding plan should be explored and negotiated to ensure the respondent can access adequate funding for the recommended hours of daily support (no less than, and preferably more than, four to four and a half hours).
(7)The respondent continue with his current employment at the prison and be encouraged to continue to pursue education and rehabilitation programs appropriate to addressing the management of his feelings and emotions.
(9)The respondent should be encouraged to pursue educational programs that simulate life skills (such as budgeting) in the prison environment.
[57] ts 220 ‑ 221.
All those who are responsible for the control, care, and treatment of the respondent should keep at the forefront of their minds that the CDO has been made for those purposes[58] and not to punish him or as a penalty. It is contrary to law for him to be held under the identical regime to a prisoner under sentence unless a determination has been made that that regime is necessary to ensure his control, care, and treatment.
[58] The Act s 17(1).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Jenkins4 JULY 2019
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