State of Western Australia v Coffin [No 4]
[2019] WASC 342
•20 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: STATE OF WESTERN AUSTRALIA -v- COFFIN [No 4] [2019] WASC 342
CORAM: VAUGHAN J
HEARD: 6 SEPTEMBER 2019
DELIVERED : 6 SEPTEMBER 2019
PUBLISHED : 20 SEPTEMBER 2019
FILE NO/S: DSO 1 of 2014
BETWEEN: STATE OF WESTERN AUSTRALIA
Applicant
AND
FABIAN ALEC COFFIN
Respondent
Catchwords:
Dangerous sexual offenders - Third review - Respondent remains a serious danger to the community - Community would not be adequately protected if the respondent was released under a supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 17, s 33
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | F Clare |
| Respondent | : | M R Barone SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Barone Criminal Lawyers |
Case(s) referred to in decision(s):
Corbett v State of Western Australia [No 6] [2019] WASC 37
Director of Public Prosecutions (WA) v Coffin [2014] WASC 305
Director of Public Prosecutions (WA) v Coffin [No 2] [2015] WASC 436
Director of Public Prosecutions (WA) v Coffin [No 3] [2017] WASC 233
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Unwin [No 7] [2018] WASC 65
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
State of Western Australia v Corbett [No 5] [2017] WASC 115
State of Western Australia v Latimer [2006] WASC 235
State of Western Australia v Latimer [No 11] [2019] WASC 241
VAUGHAN J:
Summary
The State applied pursuant to s 29(2)(b) of the Dangerous Sexual Offenders Act2006 (WA) (Act) for a third review of a continuing detention order (CDO) made in relation to the respondent, Fabian Coffin.
The relevant history is that:
•On 5 September 2014 Hall J found that Mr Coffin was a serious danger to the community and made a CDO in relation to him under s 17 of the Act.[1]
•On 16 November 2015, having conducted a first review, Jenkins J found that Mr Coffin remained a serious danger to the community and declined to rescind the CDO.[2]
•Fiannaca J conducted a second review over four days between November 2016 and March 2017. On 15 August 2017 Fiannaca J concluded that Mr Coffin remained a serious danger to the community, was not satisfied that the community would be adequately protected if Mr Coffin was released on a supervision order, and affirmed the CDO.[3]
[1] Director of Public Prosecutions (WA) v Coffin [2014] WASC 305 (Coffin No 1).
[2] Director of Public Prosecutions (WA) v Coffin [No 2] [2015] WASC 436 (Coffin No 2).
[3] Director of Public Prosecutions (WA) v Coffin [No 3] [2017] WASC 233 (Coffin No 3).
The application before me was dated 5 June 2019. The State applied for an order that Mr Coffin's detention be reviewed as soon as practicable after 15 August 2019. The review sought was the two year periodic review as mandated under s 29(2)(b) of the Act. The application was heard, and the review carried out, as soon as it was practicable to do so.
The State contended that the court should affirm the CDO. Mr Coffin, by senior counsel, did not put in issue whether he remained a serious danger to the community for the purpose of s 33. Nor was there any contest as to whether a supervision order should be made as opposed to continued detention. Indeed, there was no proposal for accommodation. In those circumstances, as senior counsel for Mr Coffin candidly informed the court, there was no proposal that Mr Coffin could make in respect of a supervision order that would adequately protect the community. The focus of senior counsel for Mr Coffin's questioning of witnesses and submissions before the court was instead directed to an appropriate 'road map' for Mr Coffin's control, care and treatment in anticipation of his next periodic review under s 33 of the Act.
Mr Coffin's last sentence of imprisonment expired on 15 February 2015 - over four and a half years ago. I was mindful that Mr Coffin continued to be detained without having committed any unpunished offence.[4] In that respect Mr Coffin is a 'DSO detainee' rather than a sentenced prisoner. I was, however, required to conduct a balancing exercise in determining whether Mr Coffin remains a serious danger to the community. Moreover, if I found that Mr Coffin remained a serious danger to the community, the paramount consideration was the need to ensure adequate protection of the community.
[4] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [27] (GTR).
For the reasons developed below, after hearing the evidence and following oral closing submissions, I was satisfied - and found - that Mr Coffin remained a serious danger to the community. I was also satisfied that a supervision order would not provide adequate protection of the community against the unacceptable risk that Mr Coffin would commit a serious sexual offence if he were released into the community. Accordingly, I affirmed the continuing detention order. I made a formal order to that effect on the day of the review hearing so that time would immediately commence to run for the purpose of the next periodic review under s 29(2)(b) of the Act.
It was necessary that I provide detailed written reasons for affirming the CDO. In affirming the CDO on the review date I stated that I would do so as soon as practicable. These are those reasons.
In light of the measured and insightful submissions of senior counsel for Mr Coffin, as were largely echoed by the helpful submissions of counsel for the State, is also appropriate that I make observations as to what Mr Coffin needs to do in anticipation of his next periodic review. I will also set out some relevant considerations for the rehabilitation, care and treatment of Mr Coffin while he continues to be detained in custody.
General background
Mr Coffin is a 46 year old male. He was born in Paraburdoo, Western Australia. Mr Coffin is currently located at Casuarina Prison. He has apparently been in custody since 20 August 2002.[5]
[5] Coffin No 1 [2].
This is the third review of the CDO in relation to Mr Coffin. The previous two review orders, and the CDO itself, resulted in comprehensive reasons as detailed at par 2 above. Mr Coffin's background, the evidence before the court, and the findings made by the court on the earlier occasions are set out in Coffin No 1, Coffin No 2 and Coffin No 3. Little is gained by repeating what is detailed in those earlier reasons of the court. These reasons for decision should be read together with, and in light of, the previous decisions made in relation to the respondent under the Act.
I note, in particular, that in Coffin No 3 Fiannaca J provides a comprehensive account of:
(1)Mr Coffin's history of sexual offending (some of which I will repeat below) (at [20] ‑ [23]), Mr Coffin's treatment prior to 2014 and the results of participation in such treatment programs (at [24] ‑ [26]), Mr Coffin's pre-2014 prison offences including possession of pornographic materials and drugs (at [27]) and the findings made in Coffin No 1 (at [28] - [31]); and
(2)the first review in 2015 before Jenkins J (at [32] ‑ [50]).
In Coffin No 1 Hall J sets out Mr Coffin's antecedents and the relevant history of his offending (at [30] ‑ [44]). These are relevant factors under s 7(3)(c), s 7(3)(d) and s 7(3)(g) of the Act.
The sexual offences committed by Mr Coffin are not all 'serious sexual offences' for the purpose of the Act but are all relevant in assessing whether there is an unacceptable risk that Mr Coffin would commit a serious sexual offence in the future.[6] They comprise:
(1)An assault on 21 November 1990 of a 16 year old female that resulted in seven charges of aggravated sexual penetration, two charges of aggravated indecent assault, one charge of indecent assault and one charge of unlawful detention to which Mr Coffin pleaded guilty. Mr Coffin was 17 at the time. The victim was unknown to Mr Coffin.
(2)Offences between December 1995 and March 1996. The victim was a girl who was aged 11 to 12 who babysat Mr Coffin's children. Mr Coffin pleaded guilty to one charge of indecent dealing with a child and six charges of sexually penetrating a child. There was no allegation of force or coercion. Mr Coffin was between 22 and 23 at the time.
(3)An indecent assault involving an 18 year old female in October 2000. The victim was the sister of Mr Coffin's partner. Mr Coffin and the victim were staying in the same house.
(4)An offence of indecent dealing with a child, aged 13, who was asleep. Mr Coffin was staying at the same house as the child. The offence occurred on 6 January 2001.
(5)A series of offences in July 2002 (at a time when Mr Coffin was on bail for the 2000 and 2001 offences). There were six separate victims being children aged between 10 and 13. One was male; the others female. On 19 July 2002 Mr Coffin indecently dealt with a child who was staying in the same house as him. On 31 July 2002 Mr Coffin gained entry to a house. He performed sexual offences against a boy and two girls who had been sleeping. Afterwards Mr Coffin went to another house (next door to the housing where he was living). There Mr Coffin indecently dealt with two girls, both aged 13, who had been sleeping. Arising out of these events Mr Coffin was charged with six counts of indecently dealing with a child and one count of attempting to sexually penetrate a child.
[6] Coffin No 1 [17], [28]; Coffin No 3 [20].
All of the offending occurred in towns in the Pilbara region of Western Australia where Mr Coffin was living. A number of the offences occurred at a time when Mr Coffin was affected by alcohol.
Hall J concluded, and I agree, that it is difficult to draw a pattern of behaviour from the offending conduct. What it does show is that Mr Coffin has displayed a sexual attraction to older children and has been prepared to take significant risks to gratify that attraction. In particular, during 2001 to 2002 Mr Coffin engaged in a series of serious sexual offences against children seeking to obtain sexual gratification by indecently dealing with children who had been sleeping. The 1995/1996 offences involved a child of a similar age but were different in that they involved a sexual relationship rather than opportunistic acts.[7]
[7] Coffin No 1 [44].
Another relevant matter is whether the DSO detainee has undertaken any treatment programs and, if so, whether they have had a positive effect (s 7(3)(e) and s 7(3)(f) of the Act). In Coffin No 2 Jenkins J summarised the treatment programs undertaken by Mr Coffin up to November 2015.[8] Since that time, until recently, Mr Coffin has continued to undertake psychological counselling.
[8] Coffin No 2 [116].
The past decisions of the court have highlighted the following matters of concern in relation to whether there is an unacceptable risk that Mr Coffin would commit a serious sexual offence if not subject to a continuing detention order or a supervision order:
•A sexually deviant interest in female children (ie paedophilia - said to be of a 'non-exclusive type').[9] There were also diagnoses of paraphilia not otherwise specified.[10]
[9] Coffin No 1 [63]; Coffin No 3 [29].
[10] Coffin No 1 [33], [44], [46], [47], [57], [61], [63], [69], [72], [74], [75], [79], [84], [87], [90], [91], [100], [101]; Coffin No 2 [21], [36], [49, [55], [68], [109], [116], [117], [129]; Coffin No 3 [8] [24] [29] - [30] [33] [41] [55] [70] [71], [213], [234].
•A high sex drive (although, as at the second review, Mr Coffin had commenced anti-libidinal treatment by way of a selective serotonin reuptake inhibitor (SSRI) known as Sertraline).[11]
[11] Coffin No 1[69], [101]; Coffin No 2 [109], [120], [130]; Coffin No 3 [29], [75], [94], [96].
•Cognitive distortions on the part of Mr Coffin. This has manifested itself in at least four ways: (1) a belief that children were capable of an adult understanding of sex and were sexual beings from about the age of 13; (2) a distortion of the circumstances in which he had offended - including that some of the children had been sexually attracted to him; (3) sexual objectification of women in general and adolescent girls in particular; and (4) a belief that female prison staff flirted with him, were promiscuous and intentionally sought to attract sexual attention from prisoners - referred to as being a misinterpretation of cues.[12]
[12] Coffin No 1[62], [84]; Coffin No 2[45], [48]; Coffin No 3[8], [39], [82], [84], [86] - [88], [89] - [92], [213], [227], [233], [234], [256], [260].
•Inappropriate beliefs as to consent. For example, the age of consent (associated with the cognitive distortion as to the sexual maturity of adolescent girls) and the ability of an intoxicated woman to provide consent.[13] (However, by the time of his second review Mr Coffin was able to give adequate explanations of what is informed consent and why children do not have the capacity to consent to sexual activity.)[14]
•Impulsivity (especially where manifesting despite an awareness of the steps Mr Coffin ought to take to press his case for release - this demonstrating that the potential adverse consequences of Mr Coffin's actions provide insufficient personal deterrence).[15]
•An anti-social personality disorder which, among other things, manifested in aggressive and dismissive behaviour including violent behaviour. Mr Coffin's dealings with female prison staff, including officers and nurses, had also been considered problematic. Some of it had been characterised as predatory.[16]
•An entrenched pattern of alcohol use which appears to have been disinhibiting in terms of decisions to engage in sexual behaviour.[17]
•A tendency to respond aggressively when intoxicated.[18]
•Other substance abuse (also identified as a factor that puts Mr Coffin at risk of future sexual offending).[19]
•A need to address Mr Coffin's own experience of sexual abuse.[20]
•Commitment of prison offences - in particular possession of pornographic material and possession of drugs.[21]
•Problems with supervision and a disdain for the constraints imposed on him while in custody.[22]
•A preparedness to be dishonest to avoid potential adverse consequences (a regressive step which manifested itself in the second review before Fiannaca J).[23]
[13] Coffin No 2[21], [48], [109]; Coffin No 3 [33], [84] - [85].
[14] Coffin No 3 [93].
[15] Coffin No 1[49], [66], [76], [93], [102]; Coffin No 2[30], [34], [36], [61], [109], [117], [119], [127] - [129]; Coffin No 3[8], [24], [31], [33], [42], [44] - [46], [49], [55], [75], [102], [106], [178], [188], [192], 232], [233], [257], [262].
[16] Coffin No 1[63], [79]; Coffin No 2 [30]; Coffin No 3[29], [82], [100], [102], [183], [213], [230].
[17] Coffin No 1[31], [32], [34], [51], [52], [53], [57], [64], [69], [70], [72], [78], [79], [82], [84, [91], [100]; Coffin No 2[29], [34], [117], [121], [131]; Coffin No 3[24], [29], [33], [77], [103] - [104], [213], [217].
[18] Coffin No 1[32], [34], [51]; Coffin No 2[55], [118]; Coffin No 3[24], [33], [40], [68], [106], [196], [234].
[19] Coffin No 1[32], [52], [53], [70], [72], [77], [78], [79], [82], [84], [91], [100]; Coffin No 2[55], [117], [129]; Coffin No 3[27], [29], [41], [55], [56] - [57], [61], [70,] [97] - [98], [103] - [104], [220], [248], [251].
[20] Coffin No 1[52], [69]; Coffin No 3[24], [29].
[21] Coffin No 1[54]; Coffin No 2[6] - [7], [30], [47], [109], [117], [119], [127]; Coffin No 3[27], [37], [44] - [46], [55], [105], [188], [192], [233], [234], [262].
[22] Coffin No 1[77]; Coffin No 2[50]; Coffin No 3 [40], [42], [64], [68], [100], [182].
[23] Coffin No 3 [182], [220], [253].
There is, I acknowledge, a danger in focussing selectively on the matters of concern identified in the preceding list. First, the list is no more than a summary. Proper understanding of the matters requires consideration of the primary materials in which there has been a much fuller exposition of the matters of concern. Second, the list fails to refer to the positive steps that Mr Coffin has taken at various times in relation to the matters of concern. (Although, regrettably, in recent times Mr Coffin's efforts have lapsed.) Third, there is significant overlap between many of the matters of concern. For example, the impulsivity issue permeates and informs other matters such as substance abuse, aggressive behaviour, prison offending and problems with supervision.
Accordingly, the identified matters of concern as listed in par 17 above should be understood as doing no more than serving a single function: they identify and collate the matters mentioned in previous decisions of the court.
There has been acceptance that Mr Coffin has insight into the broad factors that led to his sexual offending. The concern has been expressed, however, that there was awareness as early as 1998 (Mr Coffin first obtaining treatment through having participated in a pre-release sex offender program while imprisoned between 15 February 1997 and 27 November 1999)[24] and it did not translate into behavioural change as Mr Coffin reoffended. It is said that insight alone has relatively limited value if other factors such as substance abuse and high levels of deviant sexual arousal remain unchecked.[25] Fiannaca J, in particular, considered that the effectiveness of a supervision order would depend significantly on Mr Coffin's capacity for self-regulation.[26]
[24] Coffin No 3 [24].
[25] Coffin No 3 [76].
[26] Coffin No 3 [8].
It is fair to say that Mr Coffin made substantial progress between the CDO on 5 September 2014 and the first review as completed on 16 November 2015 by Jenkins J. Mr Coffin had been having counselling with a clinical psychologist, Ms P,[27] and had completed a Pathways Programme to address alcohol and substance abuse. A consultant psychiatrist, Dr Febbo, believed that Mr Coffin's risk of committing a serious sexual offence had decreased. That said, Dr Febbo was still of the opinion that Mr Coffin remained at a high risk of sexual reoffending if he was not subject to a continuing CDO or a supervision order. But Dr Febbo considered that a supervision order could be crafted that would further decrease Mr Coffin's level of risk and would potentially work in the community.
[27] For reasons that will become apparent it is not appropriate - and presently unnecessary - to identify Ms P by her full name.
Jenkins J concluded that there were reasons to feel optimistic about Mr Coffin's ability to live offence-free in the community. Her Honour was, however, concerned about Mr Coffin's continuing sexual interest in children. Jenkins J held that there were reasons to doubt that Mr Coffin was able, under stress, to implement the strategies he had learned to avoid offending.[28] Her Honour concluded:
Despite the gains which have been made over the past 12 months, I am of the opinion that if the respondent was living in the community there would be a significant risk that he would commit serious sexual offences against an older child or children. Any such offence would likely be committed when the respondent was under stress and had been consuming alcohol or other substances.[29]
[28] Coffin No 2 [117].
[29] Coffin No 2 [117].
Jenkins J observed that in order for Mr Coffin to be released from prison he needed to show that he could manage his impulsivity and remain offence-free in the prison environment.[30] Her Honour also identified things that needed to be done by those who had responsibility for managing Mr Coffin in detention. These included:[31]
•ascertaining whether there was a programme to address Mr Coffin's impulsivity;
•continued psychological intervention;
•assessment for SSRI and Antabuse treatment;
•continued assistance to Mr Coffin to help him lose weight and to exercise; and
•a temporary transfer to another prison to enable Mr Coffin to have more contact with his family.
[30] Coffin No 2 [119], [127].
[31] Coffin No 2 [128] - [133].
After the first review Mr Coffin continued to engage in individual psychological counselling with Ms P on a fortnightly basis until he transferred to Roebourne Regional Prison on 12 May 2016. Counselling was resumed when Mr Coffin returned to Casuarina Prison on 2 September 2016. While at Roebourne Regional Prison Mr Coffin engaged in drug use: a urinalysis sample tested positive for cannabis metabolites on 24 August 2016. Mr Coffin also refused to provide a sample for urinalysis testing on 13 October 2016. Mr Coffin admitted to having used cannabis on more than one occasion while in Roebourne. Mr Coffin commenced SSRI treatment from 19 April 2016 but Antabuse treatment was determined to be unsuitable.
Fiannaca J observed that Mr Coffin's cannabis use meant that he (Mr Coffin) had not achieved the goal of not committing a prison offence - something Jenkins J had considered to be an important step to demonstrate a capacity to control his impulsivity and implement strategies to prevent offending.[32]
[32] Coffin No 3 [55].
The second review before Fiannaca J also involved a 'trial within a trial' as to whether, on 14 January 2017 (four days before the adjourned hearing date for the reivew), Mr Coffin had committed an aggravated prison offence. That charge was that, contrary to s 70(d) of the Prisons Act 1981 (WA), Mr Coffin was in possession of drugs not lawfully issued to him. It was alleged that Mr Coffin had passed a small paper package containing six capsules and two tablets to another prisoner. The capsules and tablets were medication (Gabapentin and Seroquel) that Mr Coffin was not authorised to possess.
Fiannaca J heard evidence from those who witnessed and were involved in the incident - including Mr Coffin. Ultimately his Honour was satisfied that the charge was proved on the balance of probabilities.[33] In so doing Fiannaca J did not accept Mr Coffin's evidence; finding that it lacked credibility and reliability in important respects.[34] Fiannaca J found that Mr Coffin's conduct in respect of the illicit supply of drugs was significant to the review in three ways. First, in showing a disdain for the restraints imposed on him while in custody. Second, that the potential adverse consequences of the act on his prospects of release were not sufficient deterrence. Third, that the denial of the conduct showed a preparedness to be dishonest to avoid such potential adverse consequences.[35]
[33] Coffin No 3 [180].
[34] Coffin No 3 [169].
[35] Coffin No 3 [182].
Later his Honour characterised the conduct as a significant failing in internal regulation of behaviour which tended to undermine the confidence that could be placed in the progress Mr Coffin had made in terms of self-awareness and his ability to comply with conditions and prohibitions imposed by a supervision order.[36]
[36] Coffin No 3 [229].
At the second review there was general agreement on the part of the treating psychologist and reviewing psychiatrist and psychologist that Mr Coffin had maintained previously identified treatment gains.[37] Fiannaca J found that Mr Coffin had demonstrated improvements in self-awareness in respect of his sexual deviance and risk factors for sexual reoffending. His Honour also found that Mr Coffin's sexual urges had reduced as a result of the SSRI treatment.[38] However, Fiannaca J held that Mr Coffin continued to have cognitive distortions and sexually deviant urges[39] and remained a serious danger to the community.[40]
[37] Coffin No 3 [70], [72], [75] - [76], [209], [231].
[38] Coffin No 3 [8]. See also [234], [256].
[39] Coffin No 3 [8].
[40] Coffin No 3 [221]. See generally [206] - [221].
Before Fiannaca J Mr Coffin contended that his risk of serious sexual offending could be managed within the community on a supervision order.
A consultant psychiatrist, Dr Wojnarowska, considered that the risk of Mr Coffin committing a serious sexual offence could be managed in the community under a supervision order. However, that would be subject to strict supervision and monitoring. The conditions would include regular urinalysis testing and ongoing counselling to reinforce treatment gains.[41]
[41] Coffin No 3 [73].
In Fiannaca J's view, however, the key issue was Mr Coffin's capacity for self-regulation and his preparedness to act without consideration of - or irrespective of - the consequences of his actions.[42] His Honour considered that the effectiveness of any supervision order would depend significantly on Mr Coffin's capacity for self-regulation. Fiannaca J did not have confidence that Mr Coffin would be able to regulate his own behaviour and control his impulsivity. His Honour therefore did not have confidence as to Mr Coffin's capacity to be compliant with the conditions of a supervision order, resist engagement in anti-social behaviour and avoid circumstances that would put him at risk of committing a serious sexual offence.[43] Fiannaca J was therefore not satisfied that the adequate protection of the community would be ensured if Mr Coffin was released on a supervision order.[44]
[42] Coffin No 3 [256].
[43] Coffin No 3 [8], [257].
[44] Coffin No 3 [258].
Fiannaca J, like Jenkins J, thought it appropriate to identify what Mr Coffin needed to do in anticipation of his next periodic review. Essentially five things were identified. It was suggested that Mr Coffin should:
(1)Demonstrate, by his behaviour in custody, an adequate capacity for self-regulation and a willingness to implement appropriate coping strategies.[45]
(2)Continue to engage in psychological treatment to consolidate the gains made and to improve on three further things: (a) coping strategies; (b) substance misuse; and (c) cognitive distortions - especially those concerning the circumstances of his offending and misinterpretation of cues from female prison staff.[46]
(3)Continue with the SSRI treatment as long as it does not cause medical problems for him.[47]
(4)Not commit a prison offence.[48]
(5)Abstain from using any illicit substance.[49]
[45] Coffin No 3 [259].
[46] Coffin No 3 [260].
[47] Coffin No 3 [261].
[48] Coffin No 3 [262].
[49] Coffin No 3 [262].
Materials on the review
The State tendered the following at the review hearing (in the form of a book of materials):
(1)A psychiatric report dated 30 August 2019 prepared by Dr Peter Wynn Owen (consultant forensic psychiatrist).
(2)A DSO treatment progress report dated 20 August 2019 prepared by Dr Kathyrn Riordan (senior forensic and clinical psychologist).
(3)A community supervision assessment report dated 29 August 2019 prepared by Kyle Jarvie (senior community corrections officer within the Department of Justice - Corrective Services).
(4)A report headed 'Incidents and Occurrences' in relation to Mr Coffin for the period 15 August 2017 to 6 August 2019 (as compiled from a database maintained by the Department of Justice - Corrective Services). This detailed aspects of Mr Coffin's conduct in custody.
(5)A report headed 'Charge History - Prisoner' in relation to Mr Coffin for the period 15 August 2017 to 6 August 2019 (as compiled from a database maintained by the Department of Justice - Corrective Services). This detailed charges and findings against Mr Coffin while in custody.
(6)Various 'Incident Description Reports' as to Mr Coffin over the period 6 December 2017 to 5 June 2019 (as compiled from a database maintained by the Department of Justice - Corrective Services).
(7)A report headed 'Substance Use Test Results - Prisoner' in relation to Mr Coffin for the period 15 August 2017 to 6 August 2019 (as compiled from a database maintained by the Department of Justice - Corrective Services). This detailed the results of various targeted and random drug tests administered to Mr Coffin while in custody.
(8)A document headed 'Individual Management Plan' dated 21 March 2019 in relation to Mr Coffin.
(9)A series of medical 'Progress Notes' in relation to Mr Coffin with a date range of 15 August 2017 to 1 June 2019.
(10)A series of blood test results in relation to Mr Coffin with a date range of 5 November 2017 to 4 May 2019.
As part of the book of materials the State also tendered a hospital discharge summary dated 2 May 2019 from Fiona Stanley Hospital in relation to Mr Coffin. Mr Coffin had presented with cough and fevers. The relevance of this report for the review was unexplained.
In addition to the book of materials the State tendered, as Exhibit 2, an email from Mr Jarvie dated 5 September 2019. The email was by way of an update to Mr Jarvie's report and referred to Mr Jarvie's dealings with a representative of UnitingCare West.
Dr Wynn Owen (the consultant forensic psychiatrist), Dr Riordan (senior forensic clinical psychologist) and Mr Jarvie (senior community corrections officer) were called to give oral evidence and were cross-examined.
Mr Coffin did not adduce any evidence on the review.
Statutory provisions and applicable principles
The nature and object of the review process under pt 3 of the Act has been discussed by Hall J in Director of Public Prosecutions (WA) v Unwin [No 3][50] and State of Western Australia v Corbett [No 5].[51] The review process allows for the possibility of a change in circumstances while a person is subject to a CDO. The risk of a person committing a serious sexual offence may change over time. If circumstances change such that the risk of a person committing a serious sexual offence reduces, or can be adequately managed in the community, then the continuing need for detention must be re‑considered. The review process is intended to ensure that detention only continues where necessary. Continuing detention should not be affirmed unless it is justified by the circumstances existing at the time of the review. Detention under the Act is not a punishment for past offending but is rather to ensure adequate protection of the community and to provide for continuing control, care and treatment.
[50] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [12] - [19] (Unwin No 3).
[51] State of Western Australia v Corbett [No 5] [2017] WASC 115 [6] - [13].
On a review of a DSO detainee's detention in accordance with pt 3 of the Act the initial question is whether he or she 'remains a serious danger to the community'. Depending on the outcome of that assessment there are three potential outcomes:
(1)The court must rescind the CDO if the court does not find that the person remains a serious danger to the community.[52]
(2)If the court finds that the person remains a serious danger to the community the court must either: (a) affirm the CDO; or (b) rescind the CDO and make a supervision order in relation to the person.[53]
[52] Dangerous Sexual Offenders Act2006 (WA), s 33(1)(a).
[53] Dangerous Sexual Offenders Act2006 (WA), s 33(1)(b).
In the latter case - that is in making a decision to affirm the CDO or instead to make a supervision order - the paramount consideration is the need to ensure adequate protection of the community.[54] However, the court cannot rescind the CDO and make a supervision order unless satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions of such an order.[55] The person bears the onus of proof in this regard.[56] The standard conditions include that the person will not commit a sexual offence as defined in s 36A of the Evidence Act 1906 (WA)[57] (which includes lesser offences than a 'serious sexual offence'; for example, an unlawful and indecent assault is a sexual offence but not a serious sexual offence).
[54] Dangerous Sexual Offenders Act2006 (WA), s 33(3).
[55] Dangerous Sexual Offenders Act2006 (WA), s 33(4). The 'standard conditions' are those seven conditions which are required by s 18(1) to be included in a supervision order: s 3(1).
[56] Dangerous Sexual Offenders Act2006 (WA), s 33(5).
[57] Dangerous Sexual Offenders Act2006 (WA), s 18(1)(f).
The term 'serious danger to the community' is given meaning by s 7 of the Act. Before finding that a person is a serious danger to the community:
the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.[58]
[58] Dangerous Sexual Offenders Act2006 (WA), s 7(1).
If the court is satisfied that there is an 'unacceptable risk' of the kind described then the person will necessarily and automatically be a 'serious danger to the community'.[59]
[59] GTR [21].
The term 'serious sexual offence' is defined in s 3 of the Act by reference to, among other things, a serious sexual offence as defined in s 106A of the Evidence Act 1906 (WA). That includes various offences as mentioned in pt B of sch 7 of the Evidence Act 1906 (WA) (such as the sexual offences mentioned in ch XXXI of the Criminal Code) for which the maximum penalty is seven years imprisonment or more. For example, various sexual offences against a child under 13 (s 320), various sexual offences against a child of or over 13 and under 16 (s 321), an aggravated indecent assault (s 324) and sexual penetration without consent (s 325) are all serious sexual offences for the purposes of the Act.
The word 'unacceptable' in the phrase unacceptable risk necessitates a balancing exercise: it requires the court to have regard to, among other things, the nature of the risk (the commission of a serious sexual offence), the likelihood of the risk eventuating, the serious consequences for the victim and the community if the person commits a further serious sexual offence and the serious consequences for the person if a CDO or supervision order is made.[60] It is a significant thing to deprive a person of liberty - or require that he or she comply with onerous supervision conditions - not for something he or she has done but for something that he or she might do in the future.[61]
[60] GTR [27].
[61] Unwin No 3 [15].
In deciding whether a person is a serious danger to the community (and also the issue of 'unacceptable risk')[62] the court must have regard to a multitude of factors specified in s 7(3) of the Act. These include any psychiatrist report prepared for the hearing of the application as required by s 37 of the Act.[63] The court will ordinarily place significant weight on the assessment of a psychiatrist made under s 37(2) of the Act.[64] However, the psychiatrist report is only part of the material to be considered. The weight to be given to a psychiatrist report will depend on its cogency and reliability when considered in the light of the whole of the evidence.[65] The court is free to give little weight to it.[66]
[62] GTR [21].
[63] Dangerous Sexual Offenders Act2006 (WA), s 7(3)(a).
[64] GTR [57].
[65] GTR [62].
[66] GTR [57].
The other matters that the court must have regard to under s 7(3) include:[67]
•any other medical, psychiatric, psychological, or other assessment relating to the person;
•information indicating whether the person has a propensity to commit serious sexual offences in the future;
•whether there is any pattern of offending behaviour;
•any efforts by the person to address causes of the offending behaviour;
•whether the person's participation in any rehabilitation program has had a positive effect; and
•the person's antecedents and criminal record.
[67] Dangerous Sexual Offenders Act2006 (WA), s 7(3)(b) - (g).
The court must also consider the risk that, if the person was not subject to a CDO or a supervision order, the person would commit a serious sexual offence[68] and the need to protect members of the community from that risk.[69] The former is implicit, in any event, in s 7(1) which requires consideration of whether such a risk is unacceptable. The latter is consistent with the objects of the Act so far as they are expressly stated to provide for the detention or supervision of a particular class of persons to ensure adequate protection of the community and of victims.[70] However, in considering whether there is an 'unacceptable risk' in terms of s 7(1) of the Act the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by, among other things, imprisonment.[71] The assessment of whether a person is a serious danger to the community is made on the assumption that there is no detention or supervision of the person.
[68] Dangerous Sexual Offenders Act2006 (WA), s 7(3)(h).
[69] Dangerous Sexual Offenders Act2006 (WA), s 7(3)(i).
[70] Dangerous Sexual Offenders Act2006 (WA), s 4(a).
[71] Dangerous Sexual Offenders Act2006 (WA), s 7(4).
The State, through the Director of Public Prosecutions, has the onus of satisfying the court that the person is an unacceptable risk in terms of s 7(1) of the Act. The court must be satisfied by acceptable and cogent evidence and to a 'high degree of probability'.[72] The word 'high degree of probability' imports more than a finding on the balance of probabilities but less than a finding of proof beyond reasonable doubt.[73] There is, however, no requirement that the court must be satisfied that there is more than a 50 per cent prospect that, absent a CDO or a supervision order, the person will commit a serious sexual offence. Rather, the court must be satisfied to a high degree of probability - more than the civil standard but less than the criminal standard - that there is an unacceptable risk that, if the person were not subject to a CDO or a supervision order, the person would commit a serious sexual offence.[74]
[72] Dangerous Sexual Offenders Act2006 (WA), s 7(2).
[73] GTR [28].
[74] GTR [34].
The court must: [75]
•identify what constitutes the risk and makes the risk unacceptable; and
•consider whether that matter or matters have been proved to a high degree of probability by acceptable and cogent evidence.
[75] GTR [34].
If the court finds that the person remains a serious danger to the community the court then decides whether either: (1) to affirm the CDO; or (2) to rescind the CDO and release the person on a supervision order. In doing so the court should choose the order that is the least invasive of the person's right to be at liberty while, at the same time, ensuring an adequate degree of protection for the community.[76] What is 'adequate protection' is a matter for judgment in each case.[77] A qualitative evaluation is required. However, effect must be given to the 'paramount consideration' direction in s 33(3) of the Act. If, having regard to the evidence as to the possible conditions which might be imposed on a supervision order under s 33(1)(b), the court is left in doubt as to whether the proposed supervision order would adequately protect the community, the court must affirm the CDO.[78]
[76] State of Western Australia v Latimer [2006] WASC 235 [49]; Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [79] (Williams).
[77] Williams [57].
[78] Williams [86].
The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.[79]
[79] State of Western Australia v Latimer [No 11] [2019] WASC 241 [29].
Additional observations as to Mr Coffin's history and circumstances
The past decisions of the court in relation to Mr Coffin made little reference to the fact that Mr Coffin is an indigenous man. That fact was not of significance for determination of the issues before Hall J, Jenkins J and Fiannaca J. It was, however, raised before me in the evidence of Dr Wynn Owen and Dr Riordan.
In particular, Dr Riordan referred to Mr Coffin as having spoken in depth about his connection to culture and having undertaken a ritual and developmental rite of passage which he (Mr Coffin) described as the 'top Lore'.
Mr Coffin's indigenous culture and heritage has an overwhelming importance to his sense of self. That is all the more so as an elder and (more recently) a grandfather. Mr Coffin's cultural understandings, and whether he feels equipped to meet the demands of his cultural role, were canvassed extensively in the evidence before me. It is thus necessary that I acknowledge and refer to Mr Coffin's personal history as an Aboriginal man originating in the Paraburdoo area who has undertaken traditional cultural rituals and rites of passage.
Developments since the last review
Regrettably, in two material respects Mr Coffin has regressed since the review before Fiannaca J in terms of presenting a serious danger to the community and suitability for management within the community on a supervision order:
(1)First, Mr Coffin's illicit substance use has diversified and become more frequent: the materials referred to at least 10 occasions[80] on which Mr Coffin tested positive to prohibited substances.
(2)Second, Mr Coffin's ongoing therapy with a psychologist terminated in May 2019 due to Mr Coffin's drug use.
Ongoing and intensified illicit substance use
[80] Dr Riordan referred to Mr Coffin accumulating 11 substance related charges: Ex 1.12 p 236. In this regard the Charge History refers to an additional positive test, namely, for Metformin on 6 December 2017: Ex 1.4 p 81.
Records maintained by the Department of Justice - Corrective Services identified that Mr Coffin had tested positive for illicit substances as follows:[81]
[81] Ex 1.13 pp 245 - 246. See also Ex 1.6 pp 156 - 159.
13 January 2018 Mr Coffin tested positive to the illicit substance Buprenorphine (18 mg/L) and Methadone. 5 February 2018 Mr Coffin tested positive to the illicit substance Buprenorphine (6 mg/L). 17 February 2018 Mr Coffin tested positive the illicit substances Buprenorphine (10 mg/L) and Oxazepam (100 ug/L). 10 July 2018 Mr Coffin tested positive to methyl-amphetamine (231 ug/L). 13 August 2018 Mr Coffin tested positive to methyl-amphetamine (1280 ug/L). 28 January 2019 Mr Coffin tested positive to cannabis (56 ug/L). 19 March 2019 Mr Coffin tested positive to methyl-amphetamine (873 ug/L). 5 June 2019 Mr Coffin tested positive the illicit substance Buprenorphine (12 ug/L). 7 August 2019 Mr Coffin tested positive to Buprenorphine (20 ug/L), cannabis (33 ug/L) and methyl-amphetamine (1047 ug/L). 13 August 2019 Mr Coffin tested positive the illicit substance Buprenorphine (37 ug/L).
Other associated incidents were noted. They included: being in possession of excess medication (6 December 2017); attempting to secret a diabetic needle (30 December 2017); and providing a dilute urine sample (16 January 2018).[82] There is also reason to believe that Mr Coffin's substance use is greater than the 10 occasions that have resulted in positive tests. In interview with Dr Wynn Owen, for the purposes of his report for the review, Mr Coffin is reported to have stated that his (Mr Coffin's) drug use was current and ongoing (at least a few times a week).[83] Based on self-reporting to Dr Wynn Owen it is apparent that Mr Coffin is using illicit substances much more regularly than he is testing positive.[84] Mr Coffin reported that his substance use mainly consisted of intravenous methamphetamine. Moreover, Mr Coffin informed Dr Wynn Owen that he (Mr Coffin) did not intend to stop using at the present time.[85]
[82] Ex 1.13 p 245.
[83] Ex 1.11 p 218.
[84] ts 619.
[85] Ex 1.11 p 216.
The reasons for Mr Coffin's increased substance use were explored with Dr Wynn Owen. Mr Coffin explained that he did not like the effect of the SSRI antidepressant medication (Sertraline) which he is prescribed as an anti-libidinal (that effect being difficulty in maintaining an erection and ejaculating). Mr Coffin explained that the methamphetamine reversed this effect and made him feel more like a 'big man'.[86] Accordingly, methamphetamine is being used by Mr Coffin to counteract the effect of the anti-libidinal medication so that Mr Coffin can become more easily sexually aroused and masturbate.[87]
[86] Ex 1.11 p 216.
[87] Ex 1.11 pp 223 - 224.
The use of methamphetamine to override the physically suppressing effect of the SSRI on Mr Coffin's sexual arousal and sexual function was confirmed in the interview between Dr Riordan and Mr Coffin.[88]
[88] Ex 1.12 [24].
Mr Coffin had insight into the consequences of his behaviour for the present review. Mr Coffin informed Dr Wynn Own that he (Mr Coffin) thought he would not be released because of his drug use.[89] Mr Coffin also admitted to having a habit for cannabis and methamphetamine and said that he 'probably need[ed] rehab'.[90]
Disengagement from ongoing therapy with psychologist
[89] Ex 1.11 p 216.
[90] Ex 1.11 p 217.
Following the second review Mr Coffin continued individual therapy with a psychologist. At the time of the second review Mr Coffin's psychologist was Ms P. Ms P transferred to a new role with the Department of Justice in 2017. As a result Mr Coffin transitioned to a new treating clinician, Rachael Williams, in September 2017. Mr Coffin attended a total of 33 sessions. These were initially weekly (until 16 October 2017) and then fortnightly (until 20 May 2019). The treatment sessions ended in response to Mr Coffin's persistent substance use which he reported to be unmotivated to change.[91]
[91] Ex 1.12 [8], [12].
Ms Williams has maintained periodic contact with Mr Coffin. Nevertheless, the expectation is that ongoing treatment will remain suspended until Mr Coffin becomes motivated to address his current illicit substance use.[92]
[92] Ex 1.12 [36].
I will say a little more about the treatment sessions when I discuss Dr Riordan's evidence. For now, however, the material development is that Mr Coffin's psychological treatment has been discontinued.
Other developments since last review
There are other things that should be noted as having occurred since the last review. None are as material as the two matters already discussed.
First, while Mr Jarvie's report referred to a number of behavioural incidents involving Mr Coffin, these are of less significance being mainly indicative of a degree of anti-social belligerence and more minor rule-breaking (eg breach of smoking rules and being out of bounds). There were two assault allegations. However, charges did not proceed. The alleged assaults were not established before me and ought not to be taken into account. The Charge History report only disclosed one charge other than those for being in possession of illicit drugs, namely, a charge as to the attempt to secret the diabetic needle.[93]
[93] Ex 1.4.
Second, as at March 2019 it was proposed that Mr Coffin be transferred to Roebourne Regional Prison to better facilitate his engagement with family.[94]
[94] Ex 1.7.
The transfer did not proceed. Mr Jarvie's report records that, following review by management at the Roebourne Regional Prison, it was determined - given Mr Coffin's prison incidents and positive illicit substances tests - that too many behavioural issues remained for placement at a regional prison.[95] In examination-in-chief Mr Jarvie clarified that Roebourne Regional Prison was not willing to accept Mr Coffin.[96]
[95] Ex 1.13 p 248.
[96] ts 638.
At present Mr Coffin is housed in maximum security at Casuarina Prison (within the protection unit) and - although a DSO detainee - is subject to the same conditions and the same routine as if he were a sentenced prisoner.[97]
[97] ts 643 - 648.
Third, were a supervision order to be contemplated, one of the important issues is the availability of suitable accommodation.
Mr Coffin met with UnitingCare West (UCW) staff after the second review before Fiannaca J. UCW provides a dangerous sex offender supported accommodation program and also provides assistance in sourcing private accommodation. Among other things UCW conducts a program to assist in the re-integration of DSO detainees into the community. However, to be considered for the supported accommodation program there is a minimum time requirement: the person must have been engaged with UCW for six months. To engage with UCW, and qualify for the supported accommodation program by meeting the six month requirement, it necessary that the person not be an active drug user.[98]
[98] Ex 1.13 p 248; ts 635 - 637. See also Ex 2.
Mr Coffin disengaged from UCW's service in March 2018. In August 2019 Mr Coffin agreed to recommence discussions with UCW. [99] To date that has not progressed - in part because Mr Coffin apparently refused to see UCW's representative.[100] Relevant to the future is that UCW is unable to deal with DSO detainees that are in a regional prison.[101]
[99] Ex 1.13 p 248.
[100] Ex 2; ts 636, 637.
[101] ts 638.
At present no accommodation is available for Mr Coffin were he to be released on a supervision order.[102]
[102] ts 636.
Evidence on the review
It is convenient to summarise the remaining evidence on the review by reference to the three witnesses who gave oral evidence: Dr Wynn Owen, Dr Riordan and Mr Jarvie.
Dr Wynn Owen's evidence
Dr Wynn Owen conducted a one hour interview of Mr Coffin on 2 August 2019. The interview was cut short because Mr Coffin said he needed to obtain his insulin (Mr Coffin being diabetic). There was no persuasive evidence that this was a pretence. Accordingly, in terms of s 7(3)(a) of the Act, the fact that Mr Coffin terminated the interview does not constitute a proper basis to find that Mr Coffin failed to cooperate when examined by Dr Wynn Owen. In any case Dr Wynn Owen was satisfied that he had sufficient time with Mr Coffin to gather the information required for his report.
Dr Wynn Owen's report detailed his information sources, Mr Coffin's history of sexual offences, the outcome of the last review before Fiannaca J, Mr Coffin's medical history and Mr Coffin's psychological treatment after the last review (including matters covered in Dr Riordan's report). Dr Wynn Owen agreed with the opinion, offered by various psychologists, that Mr Coffin's insight into the factors that underpinned his offending was of limited value if he (Mr Coffin) chose not to enact behavioural change. At interview, as already described, Dr Wynn Owen explored the reasons for Mr Coffin's methamphetamine use (see par 59 above). When Dr Wynn Owen questioned Mr Coffin about his current sexual interest and libido Mr Coffin informed Dr Wynn Owen that he had a 'freeze' button on his television. This allowed Mr Coffin to freeze the screen on an image he found sexually arousing. Mr Coffin said that he waited for older girls - '18 at least' - although he also said that he had been 'watching shows jerking off to young adolescents'. Mr Coffin admitted to having a past sexual interest in prepubescent girls but said he currently had no interest in or arousal to underage girls. Otherwise Mr Coffin reported ongoing sexual thinking and fantasy including an attraction to teenage girls.
In oral evidence Dr Wynn Owen said that Mr Coffin maintained the sexual deviancy and some of the cognitive distortions that have previously been the subject of findings. Mr Coffin acknowledged an interest in young adolescent girls. Mr Coffin also described his offending with the 11 year old baby sitter in terms that suggested there was a degree of consent.[103]
[103] ts 591. See also ts 598, 600.
Dr Wynn Owen concluded that Mr Coffin had an active libido and a significant sexual preoccupation.[104] In oral evidence Dr Wynn Owen opined that it was highly unlikely that Mr Coffin could avoid illicit substance use in the community.[105] That was a concern because the substances being used had disinhibiting effects, increasing sex drive and arousal, and substance use had been relevant in the context of Mr Coffin's past offending.[106] Also, the issue as to the likely use of illicit substances was accentuated by impulsivity.[107]
[104] Ex 1.11 p 218.
[105] ts 587.
[106] ts 585 - 586.
[107] ts 591 - 592.
Mr Coffin was diagnosed as having a non-exclusive type of paedophilia as well as a substance use disorder and an anti-social personality disorder. A risk assessment was undertaken considering static and dynamic risk factors. The Static-99R analysis put Mr Coffin in the 'well above average risk' range and the 'High Risk/High Needs' group of offenders. In short, Mr Coffin presented a high risk of reoffending.[108] This was due to Mr Coffin's ongoing substance use and unwillingness to address his sexual deviancy and libido despite having received therapeutic treatment and having a good intellectual understanding of his reoffending risks. Dr Wynn Owen considered Mr Coffin to exhibit a moderate level of psychopathy due to impulsivity, irresponsibility, anti-social deviance and a chronically unstable lifestyle. Findings were made based on the Risk for Sexual Violence Protocol (RSVP). Relevant static risk factors were chronicity and diversity of sexual violence and the presence of an anti-social personality disorder. Sexual deviance and substance abuse were the most significant dynamic factors. Dr Wynn Owen noted that, while the dynamic factors could potentially be managed with treatment, Mr Coffin's drug use had escalated since his last review as had his sexual interest and preoccupation. This had occurred due to lack of motivation to change rather than a lack of self-awareness. Disengagement from therapy had also occurred due to Mr Coffin's lack of motivation to address his ongoing illicit substance use.
[108] ts 588.
Dr Wynn Owen concluded that Mr Coffin presented a high risk of committing a serious sexual offence if not subject to a CDO or supervision order. It was said that the risk was the same or higher than when last reviewed. Dr Wynn Owen's opinion was based on the static and dynamic factors previously discussed. In oral evidence Dr Wynn Owen clarified that the specific risk was that, while intoxicated, Mr Coffin would make an impulsive decision in a high risk situation.[109] Dr Wynn Owen also expressed the view that a number of factors were indicators of potential future problems with supervision compliance. The most significant of those was Mr Coffin's methamphetamine use so as to counteract the anti-libidinal effect of the SSRI treatment.
[109] ts 592.
In his report Dr Wynn Owen observed that, by his own admission, Mr Coffin had adopted a self-destructive approach to the current review (referred to as 'self-sabotage' in oral evidence).[110] That was manifest in the two material developments I have already highlighted: Mr Coffin's increased substance use and withdrawal from psychological treatment. Dr Wynn Owen further opined that there may be other factors at play which explained - in part - Mr Coffin's actions. Dr Wynn Owen mentioned uncertainty about being able to fulfil cultural expectations and Mr Coffin's current lifestyle and status in prison.
[110] ts 585, 615.
Among other things Dr Wynn Owen stated:
I believe that there is a good sound basis now for cultural education and input, to assist and hopefully help [Mr Coffin] manage with any concerns that he may have about release and his requirement to function as a man of his own community.[111]
I was trying to understand why [Mr Coffin] would do that [ie engage in self-destructive behaviour] and why he would undermine the opportunity for release and it appeared that there may well be this sense that he won't be able to fulfil cultural obligations when he leaves; that will be embarrassing and shaming and he wouldn't be that sort of big man that he wants to be.[112]
[111] ts 594.
[112] ts 608.
Dr Wynn Owen completed his report by measuring Mr Coffin's progress against the matters raised by Fiannaca J at the last review (see par 33 above). As is self-evident, based on what has already been stated as to the material developments since the last review, Mr Coffin has not succeeded in meeting the goals suggested by Fiannaca J. It is true that Mr Coffin has continued with the SSRI treatment. However, as Dr Wynn Owen noted, Mr Coffin has sought to counteract the anti‑libidinal effect of the SSRI treatment by his methamphetamine use. In that regard Mr Coffin has been non-compliant with the treatment intent. The illicit substance use, and disengagement from psychological treatment, speaks for itself. Dr Wynn Owen also concluded that Mr Coffin had not demonstrated a willingness or motivation to adopt coping strategies to manage his sexual deviancy, illicit substance use and other behavioural issues.
Various treatment suggestions were recommended. They are best addressed later in these reasons.
Dr Riordan's evidence
Dr Riordan interviewed Mr Coffin on two occasions for a total of 3 hours and 30 minutes. There is some suggestion that Mr Coffin was impaired at the second session. However, there is no sound basis to determine whether this was due to substance use as opposed to a diabetic hypoglycaemic episode. I draw no adverse conclusion from Mr Coffin's presentation to Dr Riordan at the second session.
In her report Dr Riordan provided a comprehensive account of Mr Coffin's treatment history and gains - particularly the insight Mr Coffin has developed into his offending. That has been documented in previous decisions of the court and need not be repeated. Consideration was then given to treatment following the second review. Mr Coffin's engagement in his psychological therapy sessions with Ms Williams was described as 'generally good' although there was one occasion on which Mr Coffin engaged in inappropriate banter with Ms Williams. Among other things the treatment sought to address Mr Coffin's impulsivity. As more sustained illicit substance use became obvious, that too became a treatment target. Mr Coffin continued to demonstrate insight into his aggressive behaviour towards others (including female prison staff). Ms Williams also reported that Mr Coffin had a sound understanding of the concept of consent. That, however, is contradicted by Dr Wynn Owen's evidence as to what Mr Coffin said to him about the circumstances of the offending with the 11 year old baby sitter. (A similar statement was made to Dr Riordan.) More generally Dr Riordan reported that Ms Williams had concluded that Mr Coffin's sexual functioning was intricately related to his masculine identity.
There were four immediate concerns arising out of Mr Coffin's meetings with Dr Riordan. First, as recounted by Dr Riordan, Mr Coffin engaged in some intimidatory conduct towards Dr Riordan. Second, Mr Coffin sought to minimise his offending - again suggesting that the sexual relationship with the 11 year old baby sitter was consensual. Third, Mr Coffin dismissed his current substance abuse as irrelevant to the assessment process on the review. Fourth, so far as treatment gains had arisen from earlier counselling by Ms P, Mr Coffin stated that these were undermined by his sexual attraction to her. Mr Coffin disclosed that he had developed sexual fantasies about Ms P and used these fantasies in maintaining sexual arousal. Mr Coffin also accepted that he had not always been honest with Ms P.
Dr Riordan was able to identify that Mr Coffin has insight into the circumstances in which he might behave in an aggressive or violent manner. Mr Coffin was also able to identify situations which would be high risk for him, in terms of sexual offending, were he to be released in the community: (1) Mr Coffin identified that drugs and alcohol increased his urge to engage in sexual activity and increased his propensity to act on impulse; (2) Mr Coffin also identified that being around young girls in a community setting would be a high risk situation.
While capable of identifying strategies to manage and cope with these situations, Mr Coffin accepted that he had not employed those strategies in relation to his current drug use. Dr Riordan concluded that this was because, at present, Mr Coffin was motivated to continue to engage in illicit substance use on a regular basis. Mr Coffin said, however, that he would be motivated to stop alcohol and substance use if released into the community.
Mr Coffin, in discussion with Dr Riordan, suggested that he had experienced a significant decline in sexual interest. Nevertheless, Mr Coffin confirmed that he still sought out television images of females. Mr Coffin also disclosed that he continues to find the nursing staff in prison sexually attractive.
Dr Riordan details in her report a long discussion with Mr Coffin about his connection with Aboriginal culture. Mr Coffin spoke of having undertaken 'top Lore' - and what that meant in terms of his strength, identity and sexual attractiveness as well as superiority - and concern of a failure on his part to adhere to cultural and family obligations while incarcerated. Dr Riordan referred to Mr Coffin having described a 'complex set of spiritual experiences, understandings and consequences'.[113] It is not appropriate to list those out in these reasons; they are personal to Mr Coffin. Among other things, however, Mr Coffin reported having been visited by a number of malevolent spirits. In order to obtain a better understanding of these issues and beliefs Dr Riordan consulted with an Aboriginal elder from the Roebourne community. Again, it is not appropriate to detail what Dr Riordan was informed by the elder. It suffices to say that Mr Coffin might be under some misapprehensions. Dr Riordan concluded that Mr Coffin appears to be experiencing cultural stress with associated confusion related to his masculine identity, role and place within culture and community.
[113] Ex 1.12 [27].
Dr Riordan concluded her report by stating her opinions at some length.[114] I have read those conclusions. Ultimately, I consider that Dr Riordan's opinion is best understood by her statement that Mr Coffin adopted a self-defeating approach to the current review by, among other things, his use of illicit substances and that:
there is limited evidence to suggest that Mr Coffin has made any significant shifts with respect to challenging his cognitive distortions, offence supportive beliefs and deviant sexual interest with respect to sexual activity with children. Mr Coffin's substance use has remained resistant to intervention. Further, his deliberate use of illicit substances to facilitate sexual arousal and masturbation is cause for concern in the context of the facilitating role that substance use has played in his previous offending behaviour. Ongoing intervention should include cultural consultancy and where possible, direct cultural intervention from appropriate elders from Mr Coffin's community. Future counselling intervention with his [Forensic Psychological Service] psychologist will be contingent on his placement and motivation to desist from regular substance use.[115]
[114] See eg Ex 1.12 [31] - [35].
[115] Ex 1.12 [38].
Importantly, Dr Riordan concluded that Mr Coffin's extended absence from country without contact and guidance from appropriate community elders might have contributed to confusion or distorted beliefs on the part of Mr Coffin. Dr Riordan opined that, within the prison setting, Mr Coffin's culturally related stress is having a destabilising effect on Mr Coffin's understanding of his place in culture, his self-perception, his self-esteem and self-regulatory capacity. Dr Riordan considered that a stronger connection with culture, with guidance from an appropriate elder from Mr Coffin's community, had the potential to be a protective factor should Mr Coffin choose to engage.
Mr Jarvie's evidence
Mr Jarvie has been Mr Coffin's community corrections officer for about nine months.[116] However, Mr Jarvie did not establish contact with Mr Coffin until July 2019.[117] Much of Mr Jarvie's report recounted what he had been told by others or had been identified from business records maintained by the Department of Justice - Corrective Services. Little is gained by repeating those materials. The oral hearsay is untested and often unconfirmed even when the relevant third-party gives evidence.[118] I would not rely on such materials. So far as relevant what can be identified from the business record materials has already been incorporated in these reasons.
[116] ts 642.
[117] ts 637
[118] See eg Ex 1.13 p 248 (referring to a statement attributed to Dr Riordan).
Mr Coffin did, however, inform Mr Jarvie that he (Mr Coffin) was not inclined to re-engage with psychologist treatment until the outcome of the current review.[119]
[119] ts 639.
Otherwise Mr Jarvie provided evidence as to a number of things. These included: the process and possible sources of funding for a cultural mentor for Mr Coffin; a prison officer education program in relation to the differences between sentenced prisoners and DSO detainees and how the latter should be dealt with in terms of rehabilitative actions rather than punitive actions; available drug intervention programs; and the possible transfer of Mr Coffin back to Roebourne Regional Prison. On the latter subject Mr Jarvie confirmed that it had been identified that Mr Coffin might benefit from a transfer back to Roebourne Regional Prison to be on country and closer to his culture.[120]
[120] ts 642.
Mr Jarvie also gave evidence about the accommodation options available to Mr Coffin in the event of a supervision order. The absence of available suitable accommodation has already been referred to.
Disposition
Under s 33 of the Act two main enquiries were required on the periodic review of Mr Coffin's detention as a DSO detainee.
The first was whether Mr Coffin remained a serious danger to the community. If so, consideration had to be provided as to whether Mr Coffin's release on a supervision order would suffice to ensure adequate protection of the community. As part of the second issue it was incumbent for Mr Coffin to prove, on the balance of probabilities, that he would substantially comply with the standard conditions of such an order.
I have already mentioned that, having heard the evidence and the parties' submissions, on the day of the review I determined those two matters adversely to Mr Coffin. I turn now to provide my reasons for so concluding.
Serious danger to the community
Senior counsel for Mr Coffin did not contest that I should find that Mr Coffin remained a serious danger to the community. Senior counsel was, with respect, correct to take that approach to the review. Regrettably, since his last review Mr Coffin has regressed in terms of posing an unacceptable risk of committing a serious sexual offence if not subject to a CDO or supervision order.
In deciding whether to find that a person is a serious danger to the community the court must have regard to the factors set out in s 7(3) of the Act. I have done so. However, I will not now deal individually and expressly with each of the matters specified in s 7(3). I have previously made mention of specific evidence (eg Dr Wynn Owen's report and Dr Riordan's report) and prior findings (eg Mr Coffin's antecedents and criminal record, the pattern of offending behaviour on the part of Mr Coffin and the treatment programs Mr Coffin has undertaken) that is pertinent to one or more of the list of matters to be considered. I see no reason to repeat those matters. My reasons should be considered as a whole as addressing the matters that are specified in s 7(3).
I should, however, record that I accept Dr Wynn Owen's evidence as to Mr Coffin presenting a high risk of committing a serious sexual offence if not subject to a CDO or a supervision order. That evidence was not challenged in cross-examination. In his evidence Dr Wynn Owen clearly and fully explained his reasons for arising at his opinion. I also accept Dr Wynn Owen's clarification, during his oral evidence, that the specific risk is that, while intoxicated, Mr Coffin would make an impulsive decision in a high risk situation. Intoxication will both increase Mr Coffin's sexual arousal and make it more difficult for him to apply coping strategies to control his impulsivity. The risk of intoxication is high because - as Dr Wynn Owen opined and I accept - it is highly unlikely that Mr Coffin could avoid substance use in the community. The prospects of Mr Coffin remaining unimpaired from substance use are remote given Mr Coffin's recent relapse into ongoing and intensified illicit substance use and disengagement from psychological treatment.
Based on Mr Coffin's past offending - and the extent to which there is a discernible pattern (see pars 13 to 15 above) - I find that the risk that Mr Coffin would commit a serious sexual offence while disinhibited through intoxication is one mainly faced by an older female child in Mr Coffin's immediate surrounds. Based on Dr Wynn Owen's evidence, which I accept, Mr Coffin's sexually deviancy continues to be one of paedophilia. And the statements made by Mr Coffin to Dr Wynn Owen and Dr Riordan demonstrate that Mr Coffin continues to suffer cognitive distortions as to the circumstances of his offending and whether young adolescent female children are able to consent to sexual activity.
I was satisfied that the identified risk was unacceptable. The likelihood of the identified risk eventuating was relatively high and the risk would, if it eventuated, have serious consequences for the victim (all the more so given the likely young age of any victim) and the victim's immediate community. Those matters outweighed the serious consequences that will be experienced by Mr Coffin in continuing in detention. In balancing the risk against the consequences likely to be experienced by Mr Coffin I took into account two further matters. First, the fact that Mr Coffin will remain in detention although not a sentenced prisoner (there being no viable proposal for a supervision order). Second, the unfortunate circumstance that, as I develop below, the circumstances of Mr Coffin's ongoing detention as a DSO detainee have contributed to his regression. I was acutely aware that continued detention may further exacerbate the loss of treatment gains that Mr Coffin had made prior to the review before Fiannaca J.
Accordingly, based on the evidence I have referred to - particularly given Mr Coffin's ongoing and intensified illicit substance use together with his disengagement from psychological therapy - I was satisfied to a high degree of probability that there was an unacceptable risk that if Mr Coffin is not subject to a CDO or a supervision order he would commit a serious sexual offence.
In my view it was not to the point that Mr Coffin has demonstrated that he has insight into his offending risks. Nor could store be placed on Mr Coffin's belief that, if released, he would be motivated to stop engaging in substance abuse. Past behaviour is often the best indicator of future conduct. Based on Mr Coffin's recent past behaviour there was a high likelihood that, if simply released into the community, Mr Coffin would continue to use illicit substances. When disinhibited in an intoxicated state Mr Coffin's coping strategies for dealing with his sexual deviancy and impulsivity are unlikely to restrain him from committing a serious sexual offence. That is all the more so when Mr Coffin continues to have an active sex drive and has disengaged from psychological treatment.
For these reasons I found that Mr Coffin remained a serious danger to the community for the purpose of s 33(1)(b) of the Act.
Continuing detention order or a supervision order
The second issue on review of the CDO was whether Mr Coffin should remain in detention - by affirming the CDO - or instead should be released on a supervision order. Again, this was not seriously in issue before me. Senior counsel for Mr Coffin did not contest that there was no proposal before the court for a supervision order that would adequately protect the community.
The lack of available suitable accommodation, as part of a viable proposal for a supervision order, was by itself determinative in coming to a choice between the options under s 33(1)(b) of the Act. The only available option to ensure adequate protection of the community was to affirm the CDO. If, however, there had been available suitable accommodation, I would have still affirmed the CDO. I would have done so even if Mr Coffin had expressed a willingness to comply with the terms of a supervision order that incorporated the 55 stringent conditions that were proposed in Mr Jarvie's report.[121]
[121] Ex 1.13 pp 253 - 258.
I, like Fiannaca J on the second review, was not satisfied that Mr Coffin would be able to control his impulsivity and regulate his behaviour. The effectiveness of a supervision order - even one on the stringent conditions suggested by Mr Jarvie - would in large part depend on Mr Coffin's capacity for self-regulation. For example, conditions designed to prevent high risk situations (such a possessing or consuming alcohol or illicit substances) require Mr Coffin to act with self-control. Mr Coffin has not been able to self-regulate in a prison setting and has not been able to do so knowing that failure will be detrimental to his prospects on this review. It continued to be the case, as it was before Fiannaca J, that Mr Coffin is prepared to act without consideration for, or irrespective of, the consequences of his actions. Indeed, for the reasons already given, Mr Coffin has deteriorated in this respect since the 2017 review. Mr Coffin's obvious insight that his actions are self-destructive is insufficient. Mr Coffin needs to move beyond an understanding of what he should be doing (and appreciation that his actions are to his detriment) and instead put his understanding into effect.
Had there been available suitable accommodation (and there was not) I was not satisfied that the adequate protection of the community would be ensured if Mr Coffin were released on a supervision order. Accordingly, I affirmed the CDO.
What Mr Coffin needs to do and how that may be assisted
Mr Coffin's circumstances are troubling. Mr Coffin was, as at the time of this review, further away from being released from detention on a supervision order than he was at the time of review before Jenkins J (in 2015) and Fiannaca J (in 2017). Yet Mr Coffin has been detained since 2014 for control, care and treatment. How has this come about? There is no suggestion of any cognitive impairment on Mr Coffin's part. To the contrary, as Dr Wynn Owen confirmed in his evidence-in-chief, Mr Coffin has a good understanding of the proximal and distal issues in relation to his sexual offending.[122] Mr Coffin has also demonstrated an ability to engage with therapy and has learned from it.[123] It is simply that, as Dr Wynn Owen neatly summarised the position, Mr Coffin 'just chooses at times not to put [his] understanding into action'.[124]
[122] ts 594, 598 - 599, 612.
[123] ts 594.
[124] ts 594.
Dr Wynn Owen posited that the reasons for Mr Coffin's self‑destructive illicit substance use were multi-factorial.[125] Factors were at play other than just sexual preoccupation. Dr Wynn Owen made reference to a sense of self in terms of manliness and physicality, Mr Coffin's identity within the prison environment and a destructive pattern of behaviour within the prison environment.[126] Dr Wynn Owen also referred to possible cultural issues and concerns that an inability to fulfil his responsibilities might be a contributing factor to Mr Coffin's behaviour.[127]
[125] ts 613. See also Ex 1.11 p 225.
[126] See eg ts 605 - 608, 611, 613.
[127] ts 594, 608.
In this respect, as was explored in the evidence at the review, there are steps that could be taken to assist Mr Coffin. Before turning to those steps it is best to identify the objectives that Mr Coffin ought to be seeking to achieve before the next review.
First and foremost, if Mr Coffin is to lay the groundwork for a more positive review of his continued detention when he is next before the court, Mr Coffin must re-engage with his care and treatment while in detention. Mr Coffin must demonstrate - by actions not mere understanding - that he is motivated and ready to leave detention. One key issue is positive demonstration that Mr Coffin will be able to regulate his own behaviour and control his impulsivity so as to be compliant with the stringent conditions of a supervision order of a kind proposed in Mr Jarvie's report. In that regard Mr Coffin must demonstrate readiness for release into the community based on stable and unimpeachable behaviour while in detention. It continues to be the case that Mr Coffin must show that he can manage his impulsivity and remain offence-free in the prison environment in order to present a compelling case for release into the community.
In more specific terms the matters Mr Coffin should seek to achieve are largely unchanged from the time of his 2015 and 2017 reviews. Mr Coffin should:
(1)Stop using and then abstain from using any illicit substances.
(2)Re-commence and continue with regular psychological treatment. The specific content of those sessions will be a matter for the professional judgment of the treating psychologist. However, the evidence before me suggested that it should include consideration of:
(a)Mr Coffin's sexual deviance and sexual thinking;
(b)Mr Coffin's substance use;
(c)cognitive distortions as to Mr Coffin's offending, the sexual maturity of adolescent female children, consent to sexual activity, the objectification of woman and misinterpretation of cues from females;
(d)aggressive and intimidatory behavioural traits - particularly towards authority figures. (In that regard Dr Wynn Owen made mention that it was important that Mr Coffin continue to focus on understanding his own personality and how to manage his anti-social personality traits);
(e)impulsivity; and
(f)coping strategies in dealing with stressors and high risk situations (including the mindfulness approach that had previously been taken).
(3)Not commit a prison offence.
(4)Attempt, with the assistance of his psychological counselling, to understand and recognise (thereby hopefully eliminating) his cognitive distortions. The same goes for Mr Coffin's impulsivity and anti-social personality related behavioural traits. Here, however, the more significant focus must be on the development and implementation of coping strategies that enable Mr Coffin to defuse high risk situations. Personality, while modifiable over time, is the most difficult thing for humans to change.
(5)Re-engage with UCW. (Mr Coffin must re-engage with UCW well in advance of his next review so as to qualify in terms of UCW's six-month requirement.)
I accept that this will not be easy for Mr Coffin. Nor will it be possible for all these things to be achieved overnight. What should be aimed for is steady improvement leading to a period of sustained stability and compliance with these goals in the lead up to the next review.
There does not appear to be a need for Mr Coffin to repeat any of the programs he has previously undertaken as to substance use. Dr Wynn Owen's evidence did not suggest any such requirement.[128] Dr Riordan's evidence was similar.[129] Mr Coffin has the necessary understanding and tools. The issue is Mr Coffin's motivation to use illicit substances. Here, at least in part, it must be recognised that Mr Coffin's ongoing and intensified illicit substance use - in particular his use of methamphetamine - is a reaction to the effects of the SSRI treatment.
[128] ts 611.
[129] ts 633.
Dr Wynn Owen recommended that there be a review of Mr Coffin's SSRI treatment.[130] I agree. All the indications are that the SSRI treatment has become a counter-productive measure. In Dr Wynn Owen's opinion the SSRI treatment was exacerbating issues for Mr Coffin and making matters worse.[131] There was, however, no suggestion that cessation of the SSRI treatment had been discussed with Mr Coffin. I consider that Mr Coffin should be fully involved in any discussion to stop the SSRI treatment and - as he is the person ultimately affected by a decision to stop the SSRI treatment - Mr Coffin should have the final say in whether or not to stop the SSRI treatment. Obviously, Mr Coffin should receive counselling and advice to assist him in making the decision. It is, however, imperative that Mr Coffin take ownership for the various decisions that will impact on how he will present to the court on the occasion of his next review.
[130] ts 594, 596, 612 - 613.
[131] ts 594.
The necessity for Mr Coffin's involvement in a final decision on his SSRI treatment leads on to a treatment and management program more generally. It is surprising to me that the materials on the review do not include any suggested tailored treatment and management program for Mr Coffin - including stepped goals and key performance indicators - so that Mr Coffin is aware of the steps he should be taking and is able to track his progress against the program. It is all very well for the court to make suggestions on review. Any such suggestions are necessarily broad and sweeping; and often more aspirational than immediately actionable in terms of daily implementation. Those who are (or will be) responsible for Mr Coffin's day-to-day control, care and treatment while detained as a DSO detainee should be preparing and regularly updating a more detailed tailored treatment and management program with a view to readying him, as a detained person, for eventual release into the community. But to have a chance of success it must be a program developed with Mr Coffin and a program which Mr Coffin commits to comply with and fulfil.
Dr Wynn Owen expressed this in terms that it was crucial that Mr Coffin be 'engaged in and understands the road map'.[132] I agree. Mr Coffin ought to be accorded an opportunity to discuss and participate in the development of a tailored treatment and management program. But this necessarily assumes that those responsible for Mr Coffin's day-to-day control, care and treatment while detained as a DSO detainee are fully engaged in preparing such a tailored treatment and management program together with Mr Coffin.
[132] ts 615.
Based on the evidence at the review there are three additional aspects that should be considered in the development of such a tailored treatment and management program for Mr Coffin.
First, there was universal recognition that Mr Coffin might benefit from ongoing cultural mentoring by a suitable indigenous elder. Such a person would need to be drawn from Mr Coffin's community (ie around Paraburdoo) and to have Mr Coffin's trust and respect. The input of such a mentor would not be in substitution of the ongoing psychological counselling that Mr Coffin should undertake. To the contrary, the cultural mentor and the treating psychologist would work together. The primary focus of the cultural mentor would be to assist Mr Coffin in understanding his role as an indigenous male and elder and in relieving some of the culturally related stress that Mr Coffin had been experiencing. The mentor would provide cultural education and clarification. Dr Wynn Owen did suggest, however, that a cultural mentor might also be able to assist Mr Coffin in helping to unravel some misunderstandings and distortions relevant to his past offending.
Mr Jarvie noted that Mr Coffin might be able to access funds to assist in the engagement of a cultural mentor.[133] Mr Jarvie also gave evidence that preliminary steps had been undertaken to determine whether a person who had been identified by Mr Coffin for the role might be willing to undertake the task.[134]
[133] Ex 1.13 p 250.
[134] Ex 1.13 p 250; ts 639 - 640, 641 - 642, 650.
Mr Coffin has regressed in terms of presenting a serious danger to the community. The evidence - particularly that of Dr Riordan - is that cultural related stress has had a destabilising effect on Mr Coffin. Both Dr Wynn Owen and Dr Riordan see potential benefits in the form of cultural intervention through the introduction of a suitable cultural mentor. To my mind the receipt of ongoing mentoring from a suitable indigenous elder could only be beneficial to Mr Coffin. Plainly the approach taken to date has not worked. A circuit breaker is required. The introduction of cultural mentoring, from a suitable elder from Mr Coffin's community who Mr Coffin trusts and respects, has obvious merit. However, this should be done sooner rather than later. It will take time for the effects of cultural mentoring to result in identifiable and lasting change.
Second, consideration should be given to relocating Mr Coffin to Roebourne Regional Prison as soon as practicable. Dr Wynn Owen's evidence was that, in cultural terms, being on country would be positive for Mr Coffin.[135] This was not simply because Mr Coffin would be closer to his family. Dr Wynn Owen also thought it important that most of the prison population would be from the immediate region and be of Mr Coffin's people.[136] Mr Jarvie also confirmed that he had identified that Mr Coffin may benefit from a transfer back to Roebourne Regional Prison to be on country and closer to his culture.[137] A transfer would also be beneficial in terms of ongoing access to a cultural mentor.
[135] ts 606.
[136] ts 607.
[137] ts 642.
There are, however, additional factors that must be considered before any transfer.
The March 2019 proposal for transfer was not adopted due to Mr Coffin's prison incidents and positive testing to illicit substances. There is likely to be a need for Mr Coffin to improve his conduct in these respects before transfer. There are other difficulties with an immediate transfer. Psychological counselling is available in the metropolitan area. At a regional prison, however, counselling sessions would have to take place via Skype or videolink. Dr Riordan's evidence was that, while that could be done, it was more difficult to maintain the necessary rapport and therapeutic alliance that was critical in psychological intervention.[138] So too, as UCW is a metropolitan program, if Mr Coffin is to re-engage with UCW, he must be in the metropolitan area. At the least this dictates that Mr Coffin be located in the metropolitan area for a period immediately preceding his next review.
[138] ts 629. Dr Wynn Owen gave similar evidence: ts 595.
There is a compelling case for Mr Coffin's transfer to Roebourne Regional Prison after he has demonstrated that he is motivated to re‑engage with his care and treatment while in detention. That will allow some time for Mr Coffin to re-build rapport with Ms Williams in face-to-face psychological treatment sessions before commencing such sessions remotely via Skype or videolink. So too it will allow time for preliminary engagement with UCW - providing for a base for ongoing engagement with UCW before Mr Coffin's next review. And, from the point of view of those who manage Roebourne Regional Prison and the inmates of that prison, it will also allow time for Mr Coffin to demonstrate appropriate modification to his behaviour and substance use.
The possibility of a transfer to Roebourne Regional Prison should not, however, be left as a promise dangling in the air. That presents too great a risk that Mr Coffin will see the possibility as so remote that it will not provide a positive motivator. The tailored treatment and management program to be prepared by those responsible for Mr Coffin's day-to-day control, care and treatment while detained as a DSO detainee should identify clear and realistic measures that, if met, will result in transfer.
Third, based on Dr Wynn Owen's evidence, there should be appreciation in devising a tailored treatment and management program that adoption within the prison system of a punitive approach towards Mr Coffin is likely to be counterproductive.[139] Rather, there is a need for empathy towards Mr Coffin's position as a DSO detainee - as opposed to a sentenced prisoner - and development of a consistent response to any anti-social behaviour on the part of Mr Coffin.[140] The focus has to be on establishing a pattern of responses to specific issues that relates to Mr Coffin's treatment and rehabilitative needs.[141] In that regard each of Dr Wynn Owen, Dr Riordan and Mr Jarvie gave evidence of the potential for training to be provided to prison officers about their approach to Mr Coffin as a person with an anti-social personality disorder.[142]
[139] See ts 603 - 606, 615 - 616.
[140] ts 605.
[141] ts 604.
[142] See eg ts 602 - 605, 618 - 619 (Dr Wynn Owen); ts 628 - 629, 632 - 633 (Dr Riordan); ts 640 - 641, 646 - 647, 651 (Mr Jarvie).
Dr Wynn Owen's evidence was that, were training to result in a more supportive and positive reinforcement approach to the supervision of Mr Coffin (presumably as a DSO detainee rather than a sentenced prisoner), that would be a better environment for Mr Coffin and he would be more likely to change.[143]
[143] ts 603.
I was left in some uncertainty as to the precise nature of the training that could be undertaken. However, Dr Wynn Owen said that he was currently undertaking similar training of some prison officers.[144] Dr Wynn Owen also suggested that a more flexible approach by positive reinforcement and monitoring had been achieved with other DSO detainees.[145] Dr Riordan confirmed that this sort of training could be carried out by Ms Williams.[146] So too Mr Jarvie confirmed that it could be facilitated.[147] That being the case it should be considered.
[144] ts 605.
[145] ts 603.
[146] ts 628.
[147] ts 641.
It is one thing to embark on the training of prison officers and to implement a more flexible approach to anti-social behaviour so as to have due regard to Mr Coffin's position as a DSO detainee rather than a sentenced prisoner. It would be quite another to allow or condone any breach of the rules or regulations that apply to inmates within a prison. For example, were Mr Coffin to return a positive test to a prohibited substance he would have to be subject to the same sanction as any other prisoner. It is not just a matter of Mr Coffin having to obey the law. Coherence to prison rules and regulations is required for the good management of the prison and the ongoing safety of all persons detained within the prison.
A further observation
It is unfortunate that Mr Coffin has been detained within Casuarina Prison under the same conditions as if he were a sentenced prisoner.
It is likely that the stress of Mr Coffin's prison environment is one of the factors that has contributed to Mr Coffin's previous treatment gains having been lost. Dr Wynn Owen confirmed that Mr Coffin was subject to significant stressors by reason of being detained in prison.[148] Dr Wynn Owen went as far as to describe the environment being a 'background of chronic stress' for Mr Coffin.[149] The unfortunate circumstance that Mr Coffin's ongoing detention has contributed to his loss of past gains is heightened by the circumstance that the possibility of such regression was recognised, somewhat presciently, by Jenkins J in November 2015 on Mr Coffin's first review.[150]
[148] ts 586, 599, 607.
[149] ts 607.
[150] Coffin No 2 [124]. See also Coffin No 3 [259].
Her Honour said the following on that occasion:
[D]espite not being a sentenced prisoner, whilst on the CDO [Mr Coffin] will be subject essentially to the same punitive regime as a sentenced prisoner. In my opinion, most DSOs on CDOs should be detained separately to sentenced prisoners and be subject to a regime which protects the public and provides them with appropriate treatment.[151]
[151] Coffin No 3 [125].
Similar observations have been made by Hall J on a number of occasions:
I also take this opportunity to note that continuing detention is for the purpose of control, care and treatment: s 17(1)(b) and s 4 DSO Act. A detainee is not a prisoner and is not in custody for the purposes of punishment. Whilst effective management of prisons may mean that detainees will sometimes have to be subject to the same rules and conditions as prisoners, that should not be the default position. Indeed, to treat detainees as being subject to the same restrictions and requirements as apply to prisoners may in some circumstances be contrary to the terms of the order that they be held for care and treatment.[152]
At the conclusion of my reasons on the last review I took the opportunity of noting that continuing detention is for the purpose of control, care and treatment. A detainee is not a prisoner and is not in custody for the purpose of punishment. I said that whilst effective management of prisons may mean that detainees will sometimes have to be the subject of the same rules and conditions as prisoners, that should not be the default position. Indeed, to treat detainees as being subject to the same restrictions and requirements as applied to prisoners may be contrary to the terms of an order that they be held for their care and treatment. During the course of this review there was evidence that there had been no changes to the way in which detainees under the DSO Act are treated since I made those comments. Whilst detainees may receive specialist psychological counselling or medical treatment, they continue to be subject to rules that relate to security classification, the requirement to work and restrictions on visits and telephone calls. I accept that there may be difficulties in making changes that could be seen as giving greater privileges to detainees. However, I am sure that such difficulties can be managed in a way that is consistent with the obligations imposed on the executive by the Act.[153]
[152] State of Western Australia v Corbett [No 5] [2017] WASC 115 [84].
[153] Corbett v State of Western Australia [No 6] [2019] WASC 37 [44]
I wish to associate myself with and echo those observations. While Mr Coffin's regression is regrettable it is also most regrettable that the regression has been contributed to by Mr Coffin being detained as if he was a sentenced prisoner and subject to the same conditions as a sentenced prisoner. That is all the more so given Jenkins J's observations as long ago as 2015. It should not be necessary to remind those who are responsible for Mr Coffin's day-to-day detention that Mr Coffin is being detained in prison for control, care and treatment - not punishment.[154]
[154] Director of Public Prosecutions (WA) v Unwin [No 7] [2018] WASC 65 [5].
To the extent that prison is the only available option for detention of Mr Coffin as a DSO detainee, the matters referred to by Jenkins J and Hall J strongly support that - once the matters I have mentioned have been addressed - Mr Coffin be detained in Roebourne Regional Prison rather than maximum security in Casuarina Prison. That is all the more so when, having regard to Dr Wynn Owen's evidence, Mr Coffin's continued present detention in prison is contributing to the stressors that have resulted in his regression. The likelihood is that Mr Coffin will be equally 'controlled' whether in Roebourne Regional Prison or Casuarina Prison (particularly so given the specifics of the identified risk in relation to Mr Coffin committing a serious sexual offence). In determining where Mr Coffin is to be detained the primary consideration ought to be what will best contribute to his ongoing care and treatment.
Conclusion and orders
It was for these reasons that I affirmed the CDO in relation to Mr Coffin. Mr Coffin's next periodic review is fixed for 7 September 2021. It is to be hoped that, arising out of this review, those responsible for Mr Coffin's day-to-day control, care and treatment while detained as a DSO detainee will move quickly to develop a detailed treatment and management program to prepare Mr Coffin for his next review.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Research Associate to Justice Vaughan20 SEPTEMBER 2019
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