State of Western Australia v S
[2020] WASC 148
•7 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: STATE OF WESTERN AUSTRALIA -v- S [2020] WASC 148
CORAM: SMITH J
HEARD: 20 APRIL 2020
DELIVERED : 7 MAY 2020
FILE NO/S: DSO 1 of 2019
BETWEEN: STATE OF WESTERN AUSTRALIA
Applicant
AND
S
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for div 2 orders - Whether a serious danger to the community - Whether a continuing detention or supervision order should be made - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 7(1), s 7(3), s 7(3)(a), s 7(3)(b), s 7(3)(c), s 7(3)(d), s 7(3)(e), s 7(3)(f), s 7(3)(g), s 7(3)(h), s 7(3)(i), s 7(3)(j), s 14, s 14(2)(b)(i), s 17, s 17(1), s 17(1)(a), s 17(1)(b), s 17(2), s 17(3), s 18, s 23(1B), s 37
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | David McKenzie Legal Pty Ltd |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Dal [No 2] [2016] WASC 212
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Rao [2019] WASC 93
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v West [No 6] [2019] WASC 427
SMITH J:
The application and the result
This is an application for a div 2 order under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). Mr S is the respondent to the application. He is aged 44, and was until 21 May 2019 serving a sentence of imprisonment for serious sexual offences.[1]
[1] The name of the respondent has been anonymized in these reasons because by order made by the State Administrative Tribunal on 22 January 2020 Mr S became the subject of an administration and guardianship order. Pursuant to s 113 of the Guardianship and Administration Act 1990 (WA), the court is prohibited from identifying an individual who is the subject of a guardianship order.
On 29 March 2019, the Director of Public Prosecutions (Director) on behalf of the State of Western Australia (State) applied under s 8 of the Act, for preliminary orders under s 14, and for a continuing detention order or a supervision order under s 17 of the Act.
On 11 April 2019, Hall J conducted a preliminary hearing pursuant to s 14 of the Act. His Honour was satisfied that there were reasonable grounds for believing that a court might find that Mr S is a serious danger to the community, and fixed a date for the hearing of the application. His Honour also ordered, pursuant to s 14(2)(b)(i), that Mr S be detained in custody until the conclusion of the application.
The issues that I must decide are:
(a)whether Mr S is a serious danger to the community, within the meaning of the Act; and
(b)if so, whether he should be detained in custody for an indefinite term for control, care, or treatment by a detention order, or, alternatively, be released into the community subject to conditions that the court considers appropriate by a supervision order.
At the hearing of this application, it was conceded that on the evidence before the court, without a detention order or a supervision order, Mr S is a serious danger to the community. For reasons that follow, I am of the opinion that this concession is properly made and should be accepted by the court.
In these reasons, I set out my findings for concluding that Mr S is a serious danger to the community within the meaning of the Act. I also set out my findings why I have reached the view that an order should be made that Mr S be detained in custody for an indefinite term for control, care, or treatment.
The evidence
The evidence in this case comprised one volume of documents related to Mr S' past offending and antecedents, copies of historical pre‑sentence, psychological and psychiatric reports, offender incidents and occurrences reports and medical notes. The volume of documents also comprises the documents prepared for this div 2 hearing which are psychiatric reports and a psychological report, together with a neuropsychological assessment report, and a proposed DSO management plan and community supervision assessment report.
I also heard oral evidence from two psychiatrists, Dr Wynn Owen and Dr Hall, and a forensic psychologist, Dr Poli, who each examined Mr S for the purposes of this hearing. A senor community corrections officer, Mr Jarvie, also gave oral evidence about the community supervision assessment report that he had prepared.
No evidence was adduced or called on behalf of Mr S.
Legal principles - div 2 orders
Pursuant to s 17(1) of the Act, the court must make a div 2 order if the court finds that the offender is a serious danger to the community. In making such a finding, the court is to be satisfied of the criteria specified in s 7(1) of the Act, and must have regard to the matters set out in s 7(3) of the Act. Section 7 of the Act provides:
7.Serious danger to community
(1)Before the court dealing with an application under this Act may find 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.
(2)The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied -
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
(3)In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record; and
(h)the 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; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
(4)In considering whether it is satisfied as required in subsection (1), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.
The principles that are to be applied when determining whether a person is a serious danger to the community, and the matters prescribed in s 7 of the Act are well-established, and were summarised by Corboy J in The State of Western Australia v West:[2]
[2] The State of Western Australia v West [2013] WASC 14 [52].
In summary:
(a)Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).
(b)The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).
(c)In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d)It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].
(e)The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).
(f)In a passage that expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63] ‑ [64]:
'In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.'
(g)The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h)The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].
(i)The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].
(j)The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Decke.
If the court is satisfied that the person is a serious danger to the community, the court is then required to determine whether it should make a detention order under s 17(1)(a) or a supervision order under s 17(1)(b) of the Act.
In deciding whether to make a detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community (s 17(2)). In assessing whether the conditions of a supervision order would adequately protect the community, Beech J pointed out:[3]
In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. The Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the Act applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
[3] Director of Public Prosecutions (WA) v Dal [No 2] [2016] WASC 212 [33]. (footnotes omitted)
Section 17(3) of the Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. Pursuant to s 17(4) of the Act, the onus of proof as to whether the offender will substantially comply with the standard conditions of the order, is on the offender.
Section 18(1) of the Act prescribes the standard conditions that the court must impose as part of a supervision order. These conditions require that the person subject to a supervision order:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the person's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order; and
(g)be subject to electronic monitoring under section 19A.
In Director of Public Prosecutions for Western Australia v Hart, Fiannaca J considered what should be the appropriate approach to the construction of the phrase 'will substantially comply with' in s 23(1B) of the Act and what is required of the court.[4] The words 'will substantially comply with' in s 17(3) are identical to those in s 23(1B) of the Act. It is a requirement that the court be satisfied, on the balance of probabilities, that the offender will comply in a manner and to an extent required by those words, before the court can make a supervision order. In Hart, his Honour relevantly observed:[5]
The court and the community expect that a person released on a supervision order will comply with the conditions of the order strictly. However, it is realistic to recognise, as s 23(1B) does in effect, that there may be missteps from time to time, particularly given the very onerous nature of the conditions required to adequately manage the person's risk. The question is whether, notwithstanding such missteps, I can be satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order.
[4] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
[5] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [51].
His Honour then went on to set out the appropriate approach when determining whether a person will substantially comply with conditions in the future:[6]
(1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.
(2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.
(3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.
(4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.
(5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.
(6)The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
(7)Factors that are relevant to that assessment would include the respondent's history of compliance and non-compliance and the factors set out at [50] above (being an assessment of past compliance or non-compliance with the conditions of a past supervision order, in particular whether the person is likely to deliberately flout the conditions, his or her capacity to comply with the conditions, what measures there are in place to ensure he or she would substantially comply, and the relative importance of any breach that might occur. In particular, where engagement in counselling is to be a condition of the supervision order, the person's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk).
[6] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
Relevant facts
Mr S' family and his background
The relevant facts about Mr S and his family are not entirely clear. This is because Mr S' ability to self-report about his family and his employment history cannot be relied upon as it appears that he suffers from a delusional disorder which has resulted in him providing inconsistent, unreliable accounts of his past relationships, his employment and his family structure. Mr S claims to have been married twice and to have numerous children, and at times has claimed to currently be married to a woman who is in fact his niece.
However, what is known about Mr S is that he was born on 14 September 1975 in Broome and is the youngest of nine siblings. His parents died about a year apart when he was aged 6 to 7. He subsequently went to live with one of his sisters and her husband in Broome. According to information obtained by a senior community corrections officer, Mr Jarvie, from one of his sisters, Ms G, Mr S now has only four siblings still alive. Ms G informed Mr Jarvie that to her knowledge he has never had a significant relationship nor any children. Ms G also stated that he is not, and has not been in a relationship with his niece.
Prison records record that he has had little contact with his family and has received no social visits from any of his family since the commencement of his last sentence of imprisonment in 2011.
Mr S was exposed to alcohol abuse at an early age but it does not appear that he was physically or sexually abused as a young person. He attended school in Broome and moved around the country. As a teenager, he started to drink and smoke cannabis and has seriously abused alcohol during his life. Before his index offending, he was consuming very large quantities of beer. He has spent most of his adult life in prison which has been punctuated by relatively short periods in the community.
Mr S was recently assessed by a consultant clinical neuropsychologist, Dr Elizabeth Vuletich, who found that Mr S' overall intellect was estimated to fall within the extremely low range and that he had deficiencies in his visual scanning and attention, as well as his verbal attentional capacity and auditory working memory. However, she found that his visual working memory was unlikely to be significantly impaired. Yet, he has multiple areas of deficits being, long‑standing verbal and language difficulties, compromised attention, limited verbal working memory, pervasive encoding deficits and pockets of executive dysfunction. He also shows a tendency towards rigid thinking and mental inflexibility, mild impulsivity, and limitations in his planning.[7]
[7] Exhibit A, pages 593 ‑ 594.
The first question ‑ is Mr S a serious danger to the community?
Factors under s 7(3)
Mr S' antecedents and criminal record - s 7(3)(g)
Mr S has a history of sexual offending since 1998 and generalist offending since 1987. He has been convicted of at least 16 assault‑related offences, not including sexual offences. He believes that police have targeted him but his record shows that he has a habit of attacking other people, particularly young women.
The facts of the most relevant convictions are as follows.
On 11 August 1998, Mr S was sentenced to 5 months' imprisonment for an offence of indecent assault. At that time he was 22 years old. The circumstances of this offence were that between 1.00 am and 4.00 am on 20 March 1998, he gained entry to a house in a community on the Dampier Peninsula, north of Broome, and went to a rear bedroom where an 18‑year‑old victim and her boyfriend were asleep. He sat on the bed and rubbed the victim's vagina on the outside of her clothing. When the victim woke up and tried to wake her boyfriend, Mr S left.
On 12 October 1999, Mr S was convicted of an offence of assault occasioning bodily harm which occurred on 6 May 1999 (two months after he was released from custody for the offence of indecent assault). The circumstances of this offence were that he asked the victim for sexual favours and punched her causing bruising and swelling to her face and threatened to harm her. Mr S denied the sexual element, claimed he had not committed the assault and said 'somebody paid her to make a false allegation'. For this offence he was sentenced to 18 months' imprisonment, suspended for 24 months.
On 17 December 2001, Mr S was convicted of an assault for which he received a sentence of 6 months' imprisonment, concurrent with a 24 month sentence for assaulting a public officer. The circumstances of this assault were that in the early evening, whilst intoxicated, he followed a 15‑year‑old girl and her two female friends as they were walking home. The victim told him not to accompany them but he followed them home. The victim's friends entered the house, but he blocked the victim's entry. He punched the victim in the face, causing her to fall. He then punched her to the chest and grabbed her in a headlock. She was struggling to breathe and he told her he was going to hang her. He continued to hold her in a choking headlock until the police arrived. The victim suffered minor bruising.
On 11 May 2004, Mr S was released from prison. On the following day he committed six offences, being two counts of aggravated burglary, two counts of indecent assault, one count of attempted aggravated sexual penetration without consent and one count of assault occasioning bodily harm. For these offences he received a total term of imprisonment for 3 years. The circumstances of these offences were that he walked through an unlocked front door of a house. He did not know the occupants. Two women aged 52 and aged 22 were sitting in the dining room. One repeatedly told him to leave but he refused. The younger woman sought assistance from a male in the house who was in a bedroom. The male entered the dining room when Mr S started walking towards the older woman. The male occupant of the house grabbed Mr S, walked him out of the house and locked the door. Mr S threw items at the house and the police were called. Immediately before he entered the first house, a 16‑year‑old girl in a nearby street was followed by a man who matched Mr S' description. The man continued to follow the young girl until the girl found her brother who punched Mr S twice. A few minutes after being ejected from the first house by the male occupant, Mr S knocked on the door of another house. A male occupant opened the door and Mr S pushed inside the house without consent. The female victim in the second house, aged 28, was watching television. She recognised Mr S but did not know him well. Mr S repeatedly demanded sex from her and she refused. He roughly rubbed her breasts and vagina over her clothing hurting her. He then dragged her to a bedroom and shut the door. The victim struggled violently, and a male occupant of the house tried to assist her. Mr S followed her to the lounge and pinned her down on a mattress. The victim was screaming and Mr S repeatedly punched her to the face. The male occupant of the house fled so he could call the police. Mr S shut the front door, took off his shirt, lay back on top of the victim and wrapped his shirt tightly around her neck, choking her and causing her pain. When the police arrived, they heard the victim screaming and entered the house to find Mr S lying on top of the victim with his jeans undone and open at the front. The police had to physically remove Mr S from on top of the victim. The victim suffered facial swelling, scratches on her neck and a painful wrist.
On 14 May 2009, Mr S was convicted of one count of threat to kill and one count of going armed in public so as to cause fear, for which he received a total term of 16 months' imprisonment. The offences occurred on 22 November 2008. The circumstances were that he was living with the victim who is his sister in the community on the Dampier Peninsula north of Broome. At 8.30 am in the morning he was drunk and argued with his sister. He threatened to kill her with a curved boning knife with a 15 cm blade and lunged at her in a stabbing motion several times, telling her he was going to kill her. His sister feared for her life. Mr S then left the house with a knife and yelled at and threatened several people. He later returned to his sister's house and threw a milk crate at her.
On 10 September 2010, Mr S commenced serving a 12 months' suspended term of imprisonment for common assault. Whilst serving this suspended term of imprisonment he committed the index offences. The index offences comprised one count of assault occasioning bodily harm, one count of attempted aggravated sexual penetration without consent, and one count of sexual penetration without consent. The victim was 27 years old and did not know Mr S. She was walking home when he began to follow her. After initially telling him not to walk with her, she reluctantly agreed that he could walk with her. When they were walking behind a government building in the centre of Broome, he pushed the victim into a bush and punched her twice in the face, causing swelling and bruising to her chin. As she stood up, Mr S grabbed her by the hair and dragged her to a fence where he forcibly removed her shirt and pulled her shorts and underpants down. He pulled his pants down and attempted to insert his penis into her vagina. However, he was unable to obtain an erection. Mr S then pushed the victim to her knees, threatened her, and told her to suck his penis. She refused but he moved her head towards his penis, put his penis in her mouth, and continued to force her head towards his penis. He said to her 'I am a devil, you have to listen to me and do what I have to say … If you don't listen to me you won't survive'. The victim, in fear, performed fellatio on him. After they got up and moved, the victim tricked Mr S into going back to get her shirt. Whilst he was distracted, she escaped partially clothed to a nearby 24-hour service station and called 000 from a telephone box. When interviewed by police he denied the offences.
Mr S has been released on parole on two occasions, the first of which was 13 June 2000 to undertake a 12 week residential alcohol treatment program in Broome. He discharged himself after five weeks, subsequently resulting in his parole order being suspended on 18 July 2000. His parole was cancelled as a result of his failure to comply. He was released on parole again on 20 August 2002. He completed the second parole period during which he lived at a community away from Broome. He reoffended during the term of the order. However, he was not returned to prison but was sentenced to financial penalties after the expiry of the parole order on 16 April 2003.[8] He reoffended within a short period after completing the second parole period.
Other relevant matters - s 7(3)(j) - Mr S' behaviour in prison
[8] Exhibit A ‑ adult community corrections parole assessment report, page 536.
Mr S has a history of prison offences involving physical violence.[9] On 7 February 2005, he 'chested' a prison officer to avoid being placed in restraints.
[9] Exhibit A ‑ Mr S' history of prison offences is summarised in the report of Mr Jarvie, pages 625 - 626; see also Dr Poli's report [35] ‑ [36], pages 547 ‑ 548.
On 11 January 2006, he was found to have been fighting with another prisoner.
On 7 March 2007, he was abusive towards prison officers.
On 22 March 2007, he refused to provide a urine sample. However, he was released from custody prior to the charge being heard and therefore the charge was withdrawn.
On 9 August 2011, (after he returned to custody to serve the sentence for the index offences) he again assaulted a prison officer by 'chesting' an officer.
On 27 November 2011, he assaulted a prison officer in an unprovoked attack which resulted in the officer requiring medical attention. For this offence he was formally charged and received 9 months' imprisonment cumulative on the sentence for the index offences.
On 6 May 2014, he had a disagreement over a television aerial with his cellmate and he assaulted his cellmate.
Until recently, Mr S had not engaged in any violent behaviour whilst in custody. However, a week before the hearing of this application, he was observed by prison officers to be fighting with his cellmate. His cellmate was seen to be lying on his back on the floor with his knees and feet up in the air and his arms in a protective position whilst Mr S was standing over him in a fighting stance, reigning blows on his cellmate.[10] His cellmate sustained cuts to his right cheek and other cuts to his face, appeared dazed and confused, and required medical attention. When spoken to by prison officers, Mr S said that his cellmate initiated the fight by throwing the first few punches and he retaliated. At the hearing of this application, the court was informed that both Mr S and his cellmate had been charged with fighting.
[10] Exhibit C.
Unfortunately, this recent behaviour by Mr S adds to the evidence before this court that he has poor impulse control and has little ability to self-manage his responses to provocation. It also reflects his inability to comprehend the import of these proceedings on his liberty.
Section 7(3)(a) ‑ the extent to which Mr S cooperated with psychiatric examinations
Psychiatric reports were prepared for this application pursuant to s 37 of the Act by Dr Wynn Owen and Dr Hall.
Both psychiatrists gave oral evidence before me. It is evident from their reports and their oral evidence that Mr S, in part, cooperated with each of them when he was examined. I use the term, 'in part', first because when Mr S was interviewed by each of them he categorically denied that he had engaged in any sexual offences and attributed blame for his convictions to several unnamed individuals in the Broome area who he stated had conspired to have him imprisoned. Consequently, he did not provide sufficient information to explore his subjective sexual behaviours and interests so that these could be assessed. Secondly, both psychiatrists interviewed Mr S for shorter periods of time than they would usually interview a person for the purposes of a div 2 report, because it was clear to each of them that Mr S suffers from a cognitive impairment and Mr S found it difficult to sustain concentration on the various subject matters of the examination.
The evidence of both psychiatrists was not challenged in these proceedings.
Section 7(3)(a) and s 7(3)(b) - psychiatric and psychological reports
Report and oral evidence of Dr Wynn Owen
Dr Wynn Owen is a consultant forensic psychiatrist. He conducted two interviews with Mr S for the purpose of providing a report for this application.
Dr Wynn Owen diagnosed Mr S as having delusional disorder (mixed type with grandiose and persecutory/paranoid themes), substance use disorder (alcohol, cannabis in remission through Mr S' incarceration), antisocial personality disorder and intellectual development disorder (cognitive impairment related to a neurodevelopmental deficit), mild to moderate severity.[11]
[11] ts page 35.
Dr Wynn Owen found that the assessment of Mr S was complicated by a number of related issues which were as follows:
(a)Mr S has extremely varied self-reporting of his personal and offending history over time and (as a result) there is a lack of consistent and accurate sources of information in the materials;
(b)Mr S has bizarre and grandiose delusional beliefs about his personal family history, abilities, possessions and wealth. Mr S also expressed some paranoid, persecutory beliefs about the motivations of others. Mr S claimed a number of things that were highly improbable (such as he is a master builder by trade and that he has significant wealth which enabled him to accumulate three pearling boats). Dr Wynn Owen noted that these beliefs had become prominent after 2004 indicating that information gathered (and recorded in the prison records) from Mr S prior to this time is likely to be more accurate;
(c)Mr S has been identified as having a major mental illness (psychosis) and requiring treatment by psychiatrist, Dr Sam Febbo, in 2009 and 2012. Dr Febbo recommended treatment with antipsychotic medication. However, there is no indication in the prison progress notes that this has ever been followed up or communicated to prison health staff; and
(d)Mr S has previously been found to have borderline intellectual functioning on psychological testing. Brief cognitive assessment at the interviews indicated that Mr S was orientated to place but not to time, he often could not remember the questions he had been asked and he demonstrated no knowledge of significant current events (sporting and/or geopolitical), suggesting the potential presence of specific and/or global cognitive deficits.
Dr Wynn Owen formed the opinion that Mr S' plans for release were unrealistic, impractical and demonstrated a lack of planning. When Dr Wynn Owen asked Mr S what his plans were for the future, he stated he will 'go back to the bush, at the family block … no womans around me, telling me what to do' and that he was not going to drink but that he will smoke cannabis as 'it makes me relax, I think straight'. Of the type of work he would do on release, Mr S did not believe he would have any difficulty finding employment on release and explained that 'I'm a builder by trade, I got my family up and running, we've got cattles and horse running and horticulture, breeding barramundi, and we have a shop for tourists'.
Dr Wynn Owen undertook an assessment of Mr S' risk of sexual reoffending utilising the STATIC-99R and the Risk for Sexual Violence Protocol (RSVP) structured clinical judgement framework.
Mr S' STATIC-99R score was in the Level IVb or 'Well Above Average Risk' range. In routine samples with the same score as Mr S the 5-year risk sexual recidivism rate is 35% (range between 30.5% and 40%).
However, Mr S' longitudinal history of sexual offending and ongoing outstanding treatment needs place him in the 'High Risk High Needs' cohort of offenders. This indicates that of 100 sexual offenders with the same score as Mr S, 36 would be charged or convicted of a new sexual offence within five years of release.
Overall, the RSVP identifies in Mr S a number of historical and dynamic risk factors known to increase the likelihood of future sexual offending. These are:
(a)he has a history of chronicity of sexual violence;
(b)his pattern of sexual violence from 2004 to the index offences committed in 2011 has escalated;
(c)he has engaged in physical coercion in sexual violence, extreme minimisation and denial of sexual violence (making interventionist treatment more difficult);
(d)he has problems with self-awareness (he justifies his past violent behaviours and fails to recognise any future risk of sexual offending or to returning to substance abuse);
(e)he has problems with stress or coping (he does not acknowledge any stressors, however, frequently refers to being angry with family members and with people who have set him up);
(f) he has a major mental illness;
(g)he has problems with substance abuse, in particular, alcohol and cannabis;
(h)he displays violent ideation and has an antisocial personality. He discussed violent outcomes for those who had 'set him up' stating that 'some people going to get hurt … they might die' and 'we need to bring a tribal law, your law is too soft'. He had previously stated that violence towards women is appropriate in some circumstances;
(i)it is doubtful whether he has had any intimate relationships and has problems with non-intimate relationships (he has little contact with his family) known to lead to loneliness and social isolation;
(j)he has a history of non-sexual generalist offending;
(k)he has not worked for many years;
(l)he has problems with planning, poor self-management, inadequate problem-solving and an inability to delay gratification;
(m)he has not participated in any treatment to address sexual offending and has demonstrated limited or no gains in other criminogenic programs; and
(n)he has problems with supervision (by community corrections officers), in particular, he has an anti-authoritarian attitude.
Dr Wynn Owen assessed the nature of the most likely type of offence to be committed by Mr S if he was released from custody to be a serious sexual offence with a violent assault following return to alcohol use, as Mr S would be unable to control his sexual impulses after requesting sexual contact with a woman he sees which could result in serious injury to the victim or potentially result in her fatality. Dr Wynn Owen said when giving oral evidence that this pattern of escalation is likely to continue until Mr S is 60. Further, that the historical view of Mr S' criminal history suggests a potential imminence of reoffending within days to months if alcohol use is reinstated.
Dr Wynn Owen also identified that the RSVP indicates the potential areas for psychiatric and psychological intervention are Mr S' mental illness, his problems with self-awareness, his problems with stress and coping, his problems with substance use and problems with intimate relationships and non-intimate relationships. Dr Wynn Owen, however, noted that Mr S' cognitive and intellectual problems coupled with his personality style present significant barriers to change through psychological intervention.
In management planning for Mr S, Dr Wynn Owen identified through application of the RSVP that Mr S' problems with planning, supervision and treatment need to be taken into account.
In his written report, Dr Wynn Owen recommended that:
(a)Mr S undergo psychiatric assessment, or consideration of treatment with antipsychotic medications, and if he refuses treatment, consideration of treatment under the Mental Health Act 2014 (WA);
(b)that an application should be made to appoint an administrator and guardian for Mr S as he does not have the capacity to make decisions about his health, finances or future placement;[12]
(c)if Mr S is released on a supervision order, it be for 10 years with containment (ie supervision and monitoring) to be the mainstay of risk management; and
(d)psychological intervention of Mr S be guided by the appraisal in the neuropsychological assessment report and the psychiatric reports prepared for this application in combination with assessment by the Department of Justice Forensic Psychology Service. Psychological intervention is likely to be based around practical day-to-day support and monitoring of mood/emotional state in relation to its bearing on risk and imminence.
[12] When giving oral evidence, Dr Wynn Owen noted that guardianship and administration orders had been made by the Tribunal subsequent to the writing of his report.
Dr Wynn Owen expressed the opinion when giving oral evidence that Mr S' executive function problems (impulsivity, poor problem‑solving and lack of consequential thinking) are fixed deficits and not related to mental illness (presence or absence of delusions) and cannot be treated by counselling. Further, that his problems with recall and understanding are also fixed and not related to his delusions but that he may benefit from counselling in respect of recent problems or issues that arise in day-to-day living, but he doubts that counselling could address Mr S' past offending as Mr S does not have the capacity to recall information from one day to the next. Dr Wynn Owen is also of the opinion that Mr S would not benefit from undertaking the (sexual offenders) Deniers program (which is focussed on how do I avoid being accused of a sexual offence again, rather than committing one) but some of the elements of that course may be able to be delivered to him by one‑on‑one counselling by a clinical psychologist.
When Dr Wynn Owen gave oral evidence he also said that he was aware that Mr S had been assessed by a prison forensic psychiatrist, Dr Bilyk, who had formed the opinion that Mr S did not require psychiatric engagement as Mr S' presentation was more consistent with pathological lying and his personality structure. Dr Wynn Owen also said that following a more recent discussion with Dr Bilyk she had reconsidered her opinion in light of becoming aware of the longitude, history and degree of consistency of the delusional material and was now of the opinion that Mr S should be referred to the Frankland Centre for psychiatric assessment and consideration of treatment.
Dr Wynn Owen stated in his oral evidence that:
(a)if on assessment by forensic psychiatrists at the Frankland Centre, Mr S should be treated with a combination of antipsychotic medications, non‑medication and non‑pharmaceutical inputs for his delusions, this treatment may make Mr S more amenable to psychological counselling, assist Mr S in the ability to 'reality test' and may (despite the fact that he is a denier) assist him to gain insight and acknowledge that there were sexual offences committed. However, it is clear to him (Dr Wynn Owen) that, having seen Dr Vuletich's neuropsychological assessment report, Mr S has significant problems with learning, as Mr S has one of the lowest IQ's Dr Wynn Owen has seen among offenders (56 to 64, which is an intellectually impaired IQ);
(b)he (Dr Wynn Owen) is of the opinion that Mr S is not ready to be released on a supervision order at this point in time, and that if and when he is released, his management should be based upon a risk mitigation strategy of containment and supervision with no expectation that Mr S will manage his own risk. Dr Wynn Owen is aware that an application has been made on behalf of Mr S for funding for support through the National Disability Insurance Scheme (NDIS); and
(c)in the interim after Mr S is assessed by the Frankland Centre he should be placed in a self‑care environment and provided with support to prepare him for release (under supervision and with support).
Dr Wynn Owen is of the opinion that Mr S' sexual offending does not appear to be related to mental illness. Dr Wynn Owen firmly expressed the view that there is no causal relationship between Mr S' delusions and sexual offending, but that Mr S has antisocial attitudes towards women, and when intoxicated he feels sexually entitled.
Report and oral evidence of Dr Hall
Dr Mark Hall is a consultant forensic psychiatrist. He conducted two interviews with Mr S for the purpose of providing a report for this application.
Dr Hall also diagnosed Mr S as having delusional disorder (mixed grandiose, persecutory and erotomatic (the latter being a delusion in which a person believes that another person is in love or infatuated with them) themes). Dr Hall also made secondary diagnoses of antisocial personality disorder, alcohol dependence (in remission) and borderline intellectual functioning.
Dr Hall noted in his report that Mr S:
(a)was diagnosed with type 2 diabetes in 2013 and receives treatment resulting in an improvement in his diabetes over time;
(b)was diagnosed with hypothyroidism in June 2016 which is treated with hormone replacement; and
(c)also takes medication for hyperlipidaemia and hypertension.
Importantly, Dr Hall notes that whilst Mr S is compliant with taking medication in prison he has stated he will stop taking all medications upon release as he does not consider them necessary.
The basis for Dr Hall's diagnosis of delusional disorder is that Mr S presented with delusions of a non-bizarre and systematised nature with predominantly grandiose themes, with elements of persecution and erotomania, and over the years he has provided wildly inconsistent accounts of his family structure and background.
Dr Hall undertook an assessment of Mr S' risk of sexual reoffending utilising the STATIC-99R, the Hare Psychopathy Checklist-Revised ('PCL-R') and the RSVP and identified:
(a)Mr S' score on the STATIC-99R is 8 which places him in the 'Well Above Average Risk' category. The recidivism rate of sexual offenders with the same score as Mr S would be expected to be approximately seven times higher than that of a typical sex offender. Using the updated (2016) norms for the pre-selected high risk/need group, those with a score of 8 have been shown as a group to reoffend within five years at a rate of 36%, and within 10 years at a rate of around 48%;
(b)Mr S' score on the PCL-R was in the moderate to high range, thereby indicating that he has many of the features of psychopathy. His actual score should not be considered to mark a clear dividing line that distinguishes psychopaths from non‑psychopaths; and
(c)substantially the same historical and dynamic risk factors on the RSVP (which are associated with an increase in the risk of sexual reoffending) that Dr Wynn Owen had identified.
Based on the risk factors identified under the RSVP, Dr Hall is of the opinion that Mr S is at high risk of committing a further serious sexual offence if not subject to a continuing detention or supervision order.
Like Dr Wynn Owen, Dr Hall described Mr S' sexual offending as impulsive and opportunistic, which usually involves sexual penetration and attempted sexual penetration of adult or adolescent females who are strangers to him or not very well known to him, with a high degree of violence used to facilitate the commission of a sexual offence whilst intoxicated. The likely motivation would be a combination of sexual gratification, with the discharge of a lot of negative tension and energy, and asserting of his masculinity in the context of a fragile ego.
Dr Hall is of the opinion that Mr S' potential victims would likely suffer significant psychological harm in terms of terror and it is likely that there would be enduring consequences, including post-traumatic stress disorder, together with physical injury that at the very least would involve soft tissue injuries. Further, that there is a chance that sexual violence could escalate to serious violence, including fractures or even fatal injury.
Dr Hall is also of the opinion that Mr S would most likely reoffend within a short period of time following release. Further, that there would be limited warning signs that might signal his risk is increasing or imminent but these may include consumption of alcohol, known attempts to engage females even in an appropriate way and the experience of rejection by women. It is also likely that if he were to offend he would do so frequently until apprehended and his risk of sexual offending is long term. Dr Hall also expressed the view that Mr S' drive is so strong to complete a sexual offence, IT results in him resisting persistent attempts of intervention by others.
Dr Hall also pointed out in his report that Mr S has significant treatment and rehabilitation needs. He requires treatment with antipsychotic medication or at least a trial of treatment with such medication.
Dr Hall stated when giving oral evidence that a delusional disorder is notoriously unresponsive to medication although treatment can reduce the extent to which the sufferer can act on their delusional beliefs.
When giving oral evidence Dr Hall agreed that Mr S should be referred to the Frankland Centre for assessment and treatment (having first made the referral of Mr S to Dr Bilyk) and is of the opinion that Mr S should be treated with antipsychotic depot injections (as oral medication is unlikely to be practicable).
Dr Hall agrees with Dr Wynn Owen that treatment of a delusional disorder is unlikely to be effective to the point of removing the delusions but can have an effect so that the person will not act upon their delusions.
Dr Hall also agrees with the opinion of Dr Wynn Owen that Mr S' delusions are not the cause of his offending, but results in a faulty appraisal by him of what his needs are and the social and psycho‑social supports, and the structure that he requires.
Dr Hall is also of the opinion that Mr S' delusions compound the denial of his offending, make intervention difficult and result in him being treatment resistant.
Dr Hall is of the view that Mr S requires substance abuse counselling or rehabilitation. Mr S informed Dr Hall that on release he 'probably won't' consume alcohol. Yet, Dr Hall formed the opinion (like Dr Wynn Owen) that Mr S has no insight into his triggers that result in him engaging in sexual offending or his ability to relapse into the use of alcohol.
Dr Hall recommends that Mr S receive counselling from a consistent individual that Mr S felt comfortable with over time and did not see as an authority figure. Consequently, Dr Hall is of the opinion that for such counselling to be effective the counsellor would first have to develop a good relationship with Mr S.
Dr Hall is also of the view that Mr S' outstanding sex offender treatment needs would have to be dealt with on an individual basis and by an approach that at first aims to support and help Mr S to navigate the process, focusing initially on managing his violent offending and substance use. Thereafter, dependent on adequate rapport, counselling could progress to exploration of the factors underpinning his sexual offending.
Dr Hall is of the opinion that monitoring Mr S would be difficult because he is unlikely to self-report the kind of thinking and behaviour that suggests that his risk is increasing. In the event that he engages with medical treatment and is successfully commenced on long-acting injectable (depot) antipsychotic medication, then there is at least some capacity for the development of a therapeutic relationship with the treating clinician and possibly some access to his ideation or an honest disclosure of his attitudes and behaviours.
As to the benefits of antipsychotic medication, although Dr Hall is of the view that such medication is unlikely to stop Mr S' delusions, Dr Hall expressed the opinion that the medication may diminish his sexual drive and enable him to grasp reality in respect of matters not the subject of his delusions. Dr Hall estimates that if Mr S receives a tolerable and effective dose of antipsychotic medication you would expect to see an improvement (in his grasp of reality) after two to three months.
Dr Hall does not recommend that Mr S be released on a supervision order as he is of the view that at this point in time if he was to live with others, the safety of those persons could be at risk, and Mr S requires treatment for his delusional disorder and counselling to enable him to obtain daily life skills to avoid stress or placing himself in stressful situations before arrangements could be made for him to live with support workers.
Whilst Dr Hall does not recommend release on a supervision order at this point in time, if he is so released on a supervision order, Dr Hall is of the view that:
(a)the order should be for at least 10 years;
(b)Mr S should be required to reside in the Perth metropolitan area and be prohibited from contacting his niece (who he believes he is in a relationship with and has children with);
(c)Mr S be required to participate in substance abuse counselling or rehabilitation and commence sex offender treatment intervention on an individual basis, which treatment would have to be directed to simple principles related to avoiding alcohol abuse and other triggers of his sexual offending as his capacity to benefit from standard interventions is so poor that any interventions must be tailored to his level of cognitive impairment; and
(d)Mr S be subject to a curfew, supported by GPS monitoring, and be required to abstain from alcohol and be subject to random breath testing.
However, Dr Hall expressed the unequivocal opinion that when regard is had to the neuropsychological assessment of Dr Vuletich, it is doubtful that Mr S could abide by the conditions of a supervision order on his own. This is particularly so because Mr S' executive impairment carries with it impulsive behaviour and in light of Dr Vuletich's assessment it is apparent that Mr S cannot be expected to develop self‑management skills.
Report and oral evidence of Dr Poli
Dr Poli is a senior forensic psychologist. She prepared a report to assist with identification of relevant supervision, management and intervention strategies should Mr S be made subject to an order under the Act.
Dr Poli's report summarises Mr S' presentation on interview, his general life history as described by him, his description of his sexual development, interests and relationship history, his prison records of assessments of his mental health, his description of his own (lack of) mental health issues, his description of his abuse of alcohol and use of cannabis, his denial of sexual offending and his admission of offences of violence (albeit he claimed that others either provoked him or targeted him unfairly). Dr Poli also comprehensively summarised in her report the treatment programs that Mr S has participated in whilst incarcerated and his behaviour whilst in prison.
Dr Poli used the STABLE-2007 measurement not to comment on Mr S' potential future risk of sexual reoffending, but to identify outstanding treatment targets that may warrant either further intervention or the development of risk management strategies.
Dr Poli identified the dynamic risk factors present in Mr S which include personal skills deficits, predilections and learned behaviours that correlate with sexual recidivism but are capable of being changed through a process of effortful intervention, being either treatment or supervision. However, due to Mr S' refusal to complete a full psychological assessment, the information used to evaluate these items was restricted to information provided in previous reports, file information and his limited self-report.
The STABLE-2007 items personal skills deficits and predilections relevant to Mr S were identified by Dr Poli as follows:
(a)a strong pro-social support network is regarded as a protective factor against reoffending. Yet, Mr S on his own self‑report has no significant social influences. Mr S described an extremely limited support network that consists of his sister, and his niece, who he claims is his ex-wife. He stated that his sister, Ms S, is his closest support, although he has not had any contact with her since 2008, and is unaware of her whereabouts. Similarly, Mr S is unaware of his niece's whereabouts. His next of kin is listed in the TOMS records as his other sister, Ms G. Prison records reveal that Mr S has not had any social visits since his incarceration in 2011, and that he last contacted Ms G in 2018 to request money, and that she last telephoned him on 19 September 2013 to inform him of the death of his brother;
(b)the presence of a secure adult relationship serves as a protective factor against sexual re‑offence. Yet, Mr S has no capacity for relationship stability. Although Mr S reported that he had been married twice, this is highly questionable. His sister, Ms G, advised that she has not known of him to have any relationships in the past. It is evident to Dr Poli that Mr S presents with a lack of skills regarding relationships, given the strategies he listed to manage conflict were avoidant in nature, eg walking away or remaining single. He reported to Dr Poli that he is not currently in a relationship and said he had no plans for one in the future. Dr Poli is of the view that Mr S would benefit from developing skills in communication, perspective taking and conflict resolution;
(c)rapists and child molesters may hold negative and/or hostile beliefs about women which may impair their ability to form warm, close and egalitarian relationships with them. In a previous report, Mr S was described as having distorted attitudes towards women in relation to his offending behaviour, whereby he justified his violence, denied his sexual offences and demonstrated sexual entitlement and a sexually aggressive attitude towards some types of women;
(d)general social rejection and loneliness are very common among sexual offenders. Mr S appears to have a limited self-esteem and sense of attachment to others. He has not received any social visitors during his current incarceration and does not appear to have any social supports. He stated that this does not concern him as he does not need anyone;
(e)a lack of concern for others is a significant predictor of sexual recidivism. Mr S' extensive history of offending suggests he has a limited capacity for remorse and empathy, and that he has a tendency to externalise blame for his offending to other people or situations;
(f)a lifestyle characterised by impulsive, irresponsible decisions with a lack of realistic long-term goals is a well-established correlate of criminal behaviour and a predictor of sexual recidivism. Mr S has demonstrated impulsive and irresponsible behaviour in a variety of contexts including numerous offences within the community and a number of incidents within prison;
(g)offenders are at an increased risk of recidivism if they have difficulty identifying and solving everyday problems. Mr S lacks skills in problem-solving. When describing a lack of social supports, Mr S stated that he did not need anyone and that he could solve problems on his own, but was unable to elaborate on this when asked;
(h)negative hostility and grievance are common features of offenders and research indicates that there is a significant relationship between these and sexual recidivism. Mr S described feeling a great deal of resentment and anger towards the Department of Justice for several injustices and stated he wanted a retrial regarding his index offences because he is innocent. Mr S also spoke negatively about the police stating that they targeted him regularly and unfairly because he is Indigenous;
(i)sex offenders are typically more interested in sex and more sexually active than non-offending males with the general construct of sexual preoccupation, predicting sexual, violent and general recidivism. Due to Mr S' refusal to engage in a second interview, very limited information was obtained regarding his sexual history, interests and behaviours;
(j)some sexual offenders think about sex or engage in sexual activity to manage emotions. Mr S described engaging in substance use as a form of coping and at times his use was linked to violent and sexual offences. Although engaging in substance use could increase his sexual thoughts and behaviours, it is unclear whether this coping strategy is related to sexualised coping; and
(k)offenders who resist rules, place themselves in risky situations, engage in rule violations and display oppositional behaviours toward those in supervisory roles and are at an increased risk to reoffend. Mr S has a history of non-cooperation with supervision. Mr S has five previous breaches of bail conditions, two parole cancellations due to reoffending or leaving a residential treatment facility, and a breach of a suspended imprisonment order by the commission of the index offences.
In her written report, Dr Poli concluded that Mr S has considerable treatment needs that relate to his mental health, sexual and violent offending and substance use. She also noted that:
(a)he currently demonstrates no insight into his mental health problems and therefore may be unlikely to voluntarily engage in treatment;
(b)he has been non-compliant with medication for general health issues in recent months;
(c)his ability to engage meaningfully in psychological intervention and make any gains from treatment is likely to be limited until his mental health is stable; and
(d)his ability to understand and abide by the strict conditions of a supervision order is questionable.
When Dr Poli gave oral evidence she said that subsequent to writing her report she had reviewed the neuropsychological assessment report by Dr Vuletich and as a result of that report she is now of the opinion that (at this point in time) Mr S cannot abide by a supervision order (on his own).
Dr Poli noted in her report that Mr S has not engaged in any treatment related to sexual offending and on several occasions has stated that he is not willing to engage in intervention of this type given his stance of denial.
Dr Poli also noted in her report that Mr S has demonstrated some insight into the reasons for his substance use and an awareness of the association between his substance use and his violent behaviour. He was also able to identify his triggers for using, as well as one high risk situation where he may be tempted to use. It is her view, however, that he presents with a high level of confidence that he will not use substances upon any release to the community, but his abstinence remains to be seen and appears unlikely given his lack of social supports, poor mental health, and stressors relating to the uncertainty of his accommodation and employment.
Dr Poli is of the opinion that although the STABLE-2007 assessment reveal multiple treatment targets, psychological intervention to address these is not recommended at this time. This is because of his mental health, Mr S is currently unwell and has expressed no motivation to engage. As a result, any involvement in treatment to address his sexual offending is unlikely to be meaningful and provide any benefit at present.
When Dr Poli gave oral evidence she expressed the view that Mr S could benefit from psychological treatment if that treatment is pitched first by building a rapport with Mr S and then engaging him in simple strategies of how to prevent substance abuse and how to engage appropriately in social situations.
Dr Poli stated when giving oral evidence that if a detention order is made no steps would be taken to engage Mr S by a forensic psychologist until he had been assessed by the Frankland Centre. She also said that after assessment, he should remain in the Perth metropolitan prison system until a dedicated forensic psychologist is able to build a relationship with him and then once engaged by that psychologist he could be transferred to a regional prison facility in the Kimberley so that he could be closer to his cultural ties and his country. Once transferred to the Kimberley, contact with his dedicated psychologist and mental health team would take place using remote video facilities.
Report and oral evidence of Mr Jarvie
Mr Jarvie is a senior community corrections officer and has been allocated as Mr S' community corrections officer. Mr Jarvie's report summarises Mr S' sexual offending history, prison behaviour, the appointment of a guardian, previous responses to supervision, accommodation and community supports, employment prospects, the role of UnitingCare West, the role of the National Disability Insurance Agency (NDIA) and NDIS, victim issues, mental health, behaviours to be managed and strategies to manage them.
It is clear from Mr Jarvie's written report (and the evidence of the other witnesses in these proceedings) that Mr S has insufficient skills to comprehend what must be done and not done by him to comply with a supervision order. It is also clear from Mr Jarvie's report that Mr S has no real prospect of obtaining suitable accommodation and has insufficient community supports available to him if he were to be released on a supervision order.
When Mr Jarvie met with Mr S and explained to him the div 2 court process and the possible outcomes of a detention order and a supervision order, Mr S indicated that he had been choosing to remain in prison until his maximum sentence date rather than be released on parole, because he preferred being able to 'come out and start fresh'. When Mr Jarvie discussed with Mr S community supervision, Mr S told Mr Jarvie that it was up to him to choose what he does in relation to his own behaviour and that it was not up to others to decide this for him.
As to accommodation, Mr S initially indicated that he would only agree to being released to a community that he named at a remote location south-west of Broome. When discussing GPS monitoring, Mr S advised Mr Jarvie that the community has a diesel generator that would provide 24-hour power without issue. However, Mr S' sister, Ms G, subsequently informed Mr Jarvie that the community has no infrastructure, no power and no other viable amenities. When this was put to Mr S in a subsequent interview, Mr S offered no realistic alternative option for accommodation. When asked whether he would consider living in Perth, Mr S said he would not do so as he has a lot of enemies in Perth. When the possibility of living in Broome was raised with Mr S, he was initially opposed to the idea stating that 'there will be Broome town fights'. Ms G also informed Mr Jarvie that Broome would not be a suitable place for Mr S to reside as his niece (with whom he claims to be in a relationship with) resides in Broome and that she, Ms G, and her family could not accommodate Mr S. Mr S later stated that he owned a block with a two storey home that overlooks the bay in Broome at Four Mile near the residential rehabilitation service, and if released he could return to the block and fix cars. In a subsequent interview in January 2020, the matter of residing in Perth was revisited and Mr S stated that if he had no choice, he would consent to living in the Perth area. The UnitingCare West supported accommodation program was explained to Mr S and Mr S consented to a referral to this service.
Subsequently, a guardian and an administrator was appointed to Mr S and consent was obtained from the guardian for a referral to UnitingCare West.
Mr S' administrator later informed Mr Jarvie that Mr S had no assets.
UnitingCare West undertook an assessment of Mr S' suitability for the supported accommodation program. The UnitingCare West staff member who conducted the assessment informed Mr Jarvie that Mr S did not appear eager to engage and appeared to have difficulty understanding the discussion. Mr S informed the UnitingCare West staff member that he was only engaging in the assessment due to the court requesting him to do so. The UnitingCare West staff member reported to Mr Jarvie that they doubted Mr S' ability to live independently and to function safely in the community without intensive day-to-day support. The staff member also voiced concerns for staff safety and advised that their current view was that they did not think Mr S would be able to function in the community with the support that they are able to offer via the supported accommodation program.
Mr Jarvie drafted conditions for a supervision order if the court were to consider such an order appropriate which seeks to provide for monitoring, control, supervision and treatment of Mr S, (totalling 52 conditions). It is clear from the matters set out in Mr Jarvie's report that without support Mr S would not be able to comply with those conditions on his own.
Mr Jarvie formed the view that on the basis of all of the information available to him, including information provided by UnitingCare West and the psychiatric and neuropsychological assessment reports, that Mr S may be eligible for support via the NDIS. Mr S' guardian gave approval for the referral. NDIS funding is provided to eligible persons who have disabilities for support in various ways under a disability plan. The NDIS does not fund accommodation. However, the NDIS requires updated reports relating to Mr S' presentation, disabilities and mental health. At present, until the div 2 proceedings are completed the up-to-date reports cannot be provided to enable the application for NDIS support to be progressed.
Ascertaining whether Mr S is eligible for the NDIS is the first step. That is likely to depend on the assessment that is made of the level of his cognitive disability and his level of functioning. If he is deemed eligible under the NDIS, then the matter would move to the planning stage. The amount of funding that might be available will vary, depending on his circumstances. Further, the level of funding will determine what support could be provided to Mr S in the community.
When giving oral evidence, Mr Jarvie stated that in his experience an assessment by the NDIA can take between three to 15 months. He also stated that if adequate support through the NDIS could be provided to Mr S to assist him with the supports necessary to live in the community and comply with a supervision order, UnitingCare West's views as to whether they can assist Mr S with supported accommodation may change.
Earlier assessments and assessments relating to Mr S
The relevant earlier assessments of Mr S are summarised in the reports of Dr Wynn Owen, Dr Hall and Dr Poli. All of the earlier assessments from at least 2009 contain information and opinions consistent with the information and opinions expressed in the reports prepared by the expert witnesses for this div 2 proceeding. These assessments reflect that Mr S appears to have a long-standing untreated mental disorder which appears to be a delusional disorder, that he has significant intellectual deficits and has significant unmet treatment needs.
Section 7(3)(c) ‑ information indicating whether or not Mr S has a propensity to commit serious sexual offences in the future
It is clear that Mr S has a high propensity to commit further serious sexual offences with associated violence, if released from custody. Because of his intellectual deficits he has limited insight into the driving force for his sexual offending and has limited, if any, skills to address the triggers of his offending.
Section 7(3)(d) - whether or not there is any pattern of offending behaviour
It is clear from the offences for which Mr S has been convicted that he has a pattern of behaviour in the commission of serious sexual offences against young women who he encounters whilst intoxicated and are usually unknown to him.
Section 7(3)(e) and s 7(3)(f) ‑ any efforts by Mr S to address the cause or causes of the offending behaviour, including participation in any rehabilitation program, and whether participation in any rehabilitation program has had a positive effect
Whilst Mr S has participated in some programs since 2000, he has not engaged in any interventions related to sexual offending. He has refused to participate in sexual offending treatment programs on numerous occasions throughout his period of imprisonment. However, on one occasion in 2012, he did agree to participate but then subsequently did not attend.
However, in light of Dr Vuletich's neuropsychological assessment report, it is agreed by Dr Wynn Owen, Dr Hall and Dr Poli that Mr S is unlikely to benefit from a sexual offenders program as the Deniers program would be 'too fast paced' for him to comprehend. Dr Poli indicated that there is a program for sexual offenders who suffer from an intellectual disability, although that program is not available to persons who are the subject of an order made under the Act.
There is some evidence in Dr Poli's report that Mr S has made some minor gains in the participation of some programs.
In 2009, Mr S completed a building on Aboriginal skills program. The treatment completion report for this program indicated that he participated to the best of his ability and had made noticeable improvement in the social awareness session, acknowledging that he needed to consider the impact of substance use on his offending behaviour.
In 2013, Mr S completed a cognitive brief intervention program. The program report indicated there was evidence of understanding and improvement in the areas of impulsivity, consequences, problem‑solving and relapse prevention, although these areas did not target sexual offending. However, no gains were identified in relation to an understanding or improvement in self-control, critical reasoning or perspective taking.
In 2017, he completed the think first program. The treatment completion report indicated that he demonstrated interest in the session content, occasionally offered input into group discussions and that his motivation and effort were commendable in light of his literacy issues. However, while he showed a good level of comprehension for some of the session content, he demonstrated significant difficulty with written exercises and the more abstract concepts. He reportedly improved his ability to recognise the impact of alcohol on his offending behaviour and his ability to self-manage.
However, Mr S has not participated in any treatment to address his sexual offending and he does not believe he presents a risk of sexual offending because in his opinion, notwithstanding his convictions for such offences, he has never committed a sexual offence.
Further, it is clear that his participation in rehabilitation programs for alcohol abuse in the past have had no proven effect.
In my opinion, the opinions of Dr Wynn Owen, Dr Hall and Dr Poli that Mr S has a high risk of future offending of serious sexual offences, should be accepted. It is also clear to me that the treatment programs he has completed have had little or no lasting effect.
Section 7(3)(h) and s 7(3)(i) ‑ the risk of a further serious sexual offence if Mr S is not subject to a continuing detention order or supervision order, and the need to protect members of the community from that risk
Having regard to the evidence of Dr Wynn Owen, Dr Hall and Dr Poli, I am satisfied that there is a high risk that if Mr S is released into the community without a continuing detention order or supervision order he will commit further serious sexual offences. Further, that such offences are likely to be accompanied by sexual violence occasioning injury to the victim which in turn could result in serious injury or could, if the conduct of Mr S escalates, result in the death of a victim.
Conclusion as to whether Mr S is a serious danger to the community
Having regard to all of the evidence and the factors I am required to consider pursuant to s 7(3) of the Act, I am satisfied to the requisite standard that there is an unacceptable risk that, if Mr S is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence in the future.
I, therefore, find that Mr S is a serious danger to the community for the purposes of s 17 of the Act.
The second question - continuing detention order or supervision order?
Having found that Mr S is a serious danger to the community, I must decide whether he should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order.
The question is should Mr S be kept in detention or can the need to ensure adequate protection be met by an order for release subject to conditional supervision. The paramount consideration in deciding between a continuing detention order and a supervision order, is the protection of the community.
Counsel for the State advances a submission that a continuing detention order should be made, as the community cannot be adequately protected if the court released Mr S on a supervision order.
The supervision conditions sought by the State (if they were to be made) are extensive and onerous. However, in these proceedings there was little discussion of the proposed conditions because it is absolutely clear on the evidence that it is not appropriate at this point in time for Mr S to be released into the community pursuant to the terms of a supervision order. This is because not only is there no adequate accommodation for Mr S to live in the community, I am not satisfied, on the balance of probabilities, that Mr S will substantially comply with the standard conditions of a supervision order.
One of the standard conditions of the supervision order is that the person subject to the order will comply with any reasonable direction of the community corrections officer under whose supervision they are placed under. In light of Mr S' poor response to supervision orders in the past and his current attitude to supervision, I am not satisfied that he would substantially comply with reasonable directions given to him by a community corrections officer. Further, the uncontradicted and unanimous evidence of the experts is that Mr S' intellectual deficits are such that it is unlikely that he would be able substantially comply with the conditions of a supervision order.
Whilst counsel for Mr S does not concede that a detention order should be made by the court, counsel does not submit that the risk that Mr S will commit a serious sexual offence in the future could be managed adequately by the conditions of the supervision order proposed by the State. This is because presently there is no suitable accommodation available for Mr S in the community. It is also conceded that Mr S would require considerable support to successfully live in the community and comply with a supervision order.
Counsel for Mr S points out because Mr S has intellectual deficits and an untreated mental condition it is not his fault that there is no suitable accommodation for him. Nor is it his fault that his long-standing mental condition has been left untreated in the prison system.
In The State of Western Australia v Corbett [No 5], Hall J made the point that accommodation for a person on a supervision order is not simply a place to live, and that the location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending.[13] His Honour also found in that matter that the absence of suitable accommodation made it impossible to be satisfied that a supervision order was a viable option.[14]
[13] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80]; applied in The State of Western Australia v West [No 6] [2019] WASC 427 [241].
[14] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].
Any conditions of release, if they were to be made, must ensure that Mr S lives only in accommodation that has been assessed and approved as suitable, and in circumstances where he is able to be extensively supported in the community. Because of his mental illness and his intellectual deficits, Mr S will require daily living support, skills development, social inclusion and reintegration assistance before he could be released in the community.
At this point in time, although his mental illness remains undiagnosed and untreated, the programs and support that Mr S will require in the community that are necessary to be put in place to enable him to attain and utilise skills to recognise appropriate behaviours to avoid the triggers to offending, cannot presently be arranged.
As Quinlan CJ recently remarked, it is in the interests of the community, and its protection from offending, that an offender with known treatment needs have those treatment needs addressed, before consideration is given to their release under supervision not, as is the case, afterwards.[15]
[15] The State of Western Australia v Rao [2019] WASC 93 [137].
For these reasons, I am of the opinion that I must make an order that Mr S be detained in custody for an indefinite term for control, care or treatment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith7 MAY 2020
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