The Attorney-General of the Northern Territory v JD (No 4)
[2019] NTSC 82
•1 November 2019
CITATION:The Attorney-General of the Northern Territory v JD (No 4) [2019] NTSC 82
PARTIES:THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
v
JD
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:36 of 2015 (21518615)
DELIVERED: 1 November 2019
HEARING DATES: 19 June, 9 August, 5, 6 September, 23 November 2018; 30 January, 1 February 2019
JUDGMENT OF: BARR J
CATCHWORDS:
SERIOUS SEX OFFENDERS – CONTINUING DETENTION ORDERS –Review – Assessment as to whether respondent is still a ‘serious danger to the community’– current best practice for risk assessment – ‘structured professional judgment’ – unacceptable risk of the respondent committing a serious sex offence unless he is in custody – Court satisfied – continuing detention order confirmed
Serious Sex Offenders Act 2013 s 6, s 7, s 9, s 14, s 31, s 63, s 65, s69, s 70, s 71, s 79, s 88
The Attorney-General of the Northern Territory v JD (No 2) [2016] NTSC 12;
The Attorney-General of the Northern Territory v JD (No 3) [2017] NTSC 48, referred toREPRESENTATION:
Counsel:
Plaintiff:T Anderson
Defendant:M Thomas
Solicitors:
Plaintiff:Solicitor for the Northern Territory
Defendant:Not applicable
Judgment category classification: B
Judgment ID Number: Bar1913
Number of pages: 27
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Attorney-General of the Northern Territory v JD (No 4)
[2019] NTSC 82
No. 36 of 2015 (21518615)
BETWEEN:
THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
Applicant
AND:
JD
Respondent
CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 1 November 2019)
Introduction
On 3 December 2015, I made a final continuing detention order in relation to the respondent, pursuant to s 31 Serious Sex Offenders Act 2013 (“the Act”). I was satisfied that the respondent was a “serious danger to the community”, within the meaning of that term in s 6(1) of the Act, in that there was an unacceptable risk that he would commit a serious sex offence unless he were in custody. In accordance with s 7(1) of the Act, I was satisfied, to a high degree of probability, that there was acceptable and cogent evidence of sufficient weight to justify my decision. After considering the matters specified in s 6(2) and s 9(2) of the Act, I was satisfied that it was very likely that the respondent would commit another serious sex offence if he were at large in the community, and that adequate protection of the community could not reasonably be provided by making a supervision order pursuant to s 14 of the Act.[1]
I specified the review period for the final continuing detention order as twelve months, from 3 December 2015.
I subsequently reviewed the continuing detention order, and on 19 June 2017, I confirmed the order pursuant to s 71 of the Act. I made a consequential order to specify a review period of 12 months from 19 June 2017 in lieu of the review period previously stated.[2]
Further application for review
On 6 June 2018, within the amended review period, the applicant applied for a review of the final continuing detention order, pursuant to s 65(1)(b) of the Act. After court mentions on 19 June and 9 August, the application was listed for hearing on 5 September 2018. The review hearing was not completed until 1 February 2019.
At the completion of the review, I was satisfied that the respondent was still a serious danger to the community. I considered that there remained an unacceptable risk that he would commit a serious sex offence unless he were in custody. In my opinion, the respondent’s effective and appropriate management and supervision in the community was not reasonably practicable. Accordingly, on 1 February 2019, I confirmed the continuing detention order and amended the order so as to specify a review period of 12 months from that date, in lieu of the review period previously determined.
I now provide my reasons.
For the purposes of the review, the Court made a medical assessment order pursuant to s 70(2) (read with s 79) of the Act, nominating Dr Danny Sullivan, Consultant Forensic Psychiatrist. Dr Sullivan was familiar with the respondent, having met with him in person in February 2017, for the purposes of an earlier court-ordered assessment.[3]
For the purpose of the most recent review, Dr Sullivan interviewed the respondent by audio-visual link to the Darwin Correctional Centre on 20 July 2018 and provided a report dated 1 August 2018.[4] I discuss that report in [9] – [14] below.
Dr Sullivan expressed the opinion that the respondent continued to meet a diagnosis of ‘mixed personality disorder with antisocial and paranoid elements’. He stated that there had been some attenuation of the more externalising features of his condition as the respondent aged, evidenced by a reduction in the number of incidents per year.[5] I say more about that in [25] – [27] below. Consistent with Dr Sullivan’s previous assessment, he found no evidence of any psychotic illness, and no indication of an anxiety disorder or mood disorder. Further, there was no indication of paraphilia. The records provided to Dr Sullivan led him to conclude that the respondent had not been sexually active or sexually coercive, and that he had not exhibited “deviant arousal” in prison. There had been no indication of substance use in prison but, as Dr Sullivan observed, the respondent’s risk of alcohol use or other substance use in the community remained untested.[6] Dr Sullivan felt that the respondent made less overt effort at impression management in July 2018 than at the previous assessment in February 2017, although he continued to be repetitive in relation to his perception of imminent release into the community.
Dr Sullivan carried out a risk assessment of future sexual offending by the respondent using the Static-99 actuarial instrument, the Risk for Sexual Violence Protocol (RSVP), the latter a structured professional judgment instrument which incorporates both static and dynamic risk variables associated with sexual re-offending, and the HCR-20 V3, a violence risk assessment tool which also incorporates both static and dynamic risk variables and which is used to assess risk of violence in adults.
Current best practice in the assessment of risk future sexual offending is structured professional judgment, which involves formal and structured assessment of both static and dynamic predictor variables by means of validated risk assessment instruments. The risk categorisation is modified by clinical judgment, which includes individual or subjective elements. The method of assessment recognises the relevance of historical factors (an offender’s criminal acts or past conduct) but incorporates structured clinical judgment based on such dynamic factors as (1) the lapse of time since the offending took place, (2) the offender’s participation in relevant treatment/rehabilitation programs, and (3) the age and state of health of the offender at the projected time of release from the controlled environment of prison into the community.[7]
An important qualification, acknowledged by Dr Sullivan in his report, is that prediction of re-offending risk is imprecise, with a significant rate of false positive and false negative results.[8]
Based on the Static-99 and RSVP results, Dr Sullivan considered that the respondent’s “overall sexual offending risk” remained in the high range.[9] However, Dr Sullivan acknowledged that he had not had any opportunity to demonstrate marked change in the dynamic variables because of the artificiality of the prison environment. I set out below the significant findings of Dr Sullivan:
[49] The risk profile is essentially unchanged. This reflects the lack of discriminant capacity when static factors place Mr D into the high risk category but there is limited opportunity to demonstrate lowered dynamic risk in a correctional setting. Mr D is very institutionalised.
[50] Mr D continues to demonstrate a significantly reduced level of prison incidents and, apart from one episode in which he was verbally aggressive and exhibited threatening demeanour to staff, his behaviour has been quite settled. In contradistinction to his earlier progress, this is a marked reduction in overall irritability. Despite categorisation in the high risk category based on static and dynamic variables, Mr D’s overall physical health increasingly suggests a degree of frailty which may act as a protective factor were he to return to the community.
[51] My recommendations remain essentially unchanged. I consider that if he remains on a continuing detention order, Mr D should be encouraged to engage in relapse prevention interventions. However given his concrete thinking and cognitive limitations there is concern that he would perceive such interventions as obstacles to returning to the community, rather than enabling this goal. I would be cautious about mandating particular interventions lest this set up unattainable goals for a man of limited cognitive capacity.
In the final part of his report, Dr Sullivan concluded that the respondent would be “at high risk of committing another serious sex offence if not detained in custody or subject to a supervision order”. That conclusion was based on historical risk factors, notwithstanding that Dr Sullivan had inferred (albeit with insufficient justification, in my opinion) that there had been a marked improvement in JD’s conduct in the year prior to the review compared with earlier years of his incarceration.
In cross-examination by the respondent’s counsel, Dr Sullivan agreed that one of the limitations of Static-99 is that it does not enable identification of a particular person within a risk group of sex offenders who may be likely to offend within a nominated period; that it simply places a person within the category of risk. Dr Sullivan specifically agreed with the proposition put to him by counsel for the respondent that “the tool does not enable you to say which one will, or which one is likely to, and which one is not”.[10] Dr Sullivan also acknowledged the shortcomings of the RSVP instrument, specifically that it had not been validated in its application to indigenous offenders in the Northern Territory or in other parts of Australia.[11] Nonetheless, Dr Sullivan described the RSVP as “one of the most robust predictors of sexual re-offending risk”.[12] When Dr Sullivan was cross-examined as to the fact that HCR-20 had not been proven to apply to Aboriginal offenders, or persons living in Aboriginal communities, he gave the following evidence:[13]
… but it has been broadly used in a wide range of people. It has been used in males, females; it has been used in many countries around the world; it has been used in young offenders and old offenders. It has been used in people with intellectual disability. So, most people regard it as having a reasonably broad application to a range of identified variables which appear to be correlated [to] a range of different populations.
Dr Sullivan was also cross-examined about statistical study or research demonstrating the ability of HCR-20 to predict the risk of “serious sexual misconduct”. He was able to refer to studies carried out by researchers at Oxford University to validate HCR-20 as a risk assessment tool for the prediction of sexual re-offending, and which demonstrated that HCR 20 was better than other tools at predicting sexual offending generally.[14]
Counsel for the respondent submitted that the instruments utilised by Dr Sullivan as part of his risk assessment of the respondent suffered from “absence of proved application to indigenous populations” and were not “directed to the assessment of risk of serious sexual offending”.[15] Counsel relied on the following observations made by Hasluck J in Director of Public Prosecutions (WA) v Mangalomara: [16]
… Having regard to the admissions made under cross-examination that the tools were not devised for and do not necessarily take account of the social circumstances of indigenous Australians in remote communities, I have grave reservations as to whether a person of the respondent’s background can be easily fitted within the categories of appraisal presently allowed for by the assessment tools.
However, Hasluck J went on to observe that the finding extracted in [17] did not dispose of the matter because the expert witnesses in the case had characterised the assessment tools as screening aids which were used essentially to check the validity of their clinical assessments. Consequently, his Honour considered that it was open to him take into account and give weight to expert opinions formed on the basis of clinical assessments.[17] In the case of one expert, the judge noted that her opinion was based “essentially upon her clinical assessment”, although adding that the weight of her opinion was “diminished to some extent” by the views he had expressed earlier (his “grave reservations”) concerning the assessment tools.
In the present case, I had to bear in mind that structured professional judgment enables static and dynamic predictor variables to be assessed in a formal and structured way. I refer to my summary in [11] above. In my view, it was significant that, although one of the instruments (Static-99) is purely actuarial, the other two instruments incorporate both static and dynamic risk variables, one specifically associated with sexual re-offending. Moreover, whatever risk categorisation is arrived at by use of the instruments may then be modified by clinical judgment.
Given the cross-examination of Dr Sullivan in relation to his use of HCR-20, I examined the categories within HCR-20 in which scores are recorded: the Historical Scale, which seeks information as to any history of problems with violence in the person’s lifetime; the Clinical Management Scale, which seeks information as to the person’s clinical management over the previous six months; and the Risk Management section, which elicits information in relation to the person’s risk management over the previous six months.[18] Notwithstanding Dr Sullivan’s acknowledgement that the HCR-20 had not been validated or proven to relate to Aboriginal offenders, I failed to see why it would not be relevant to Aboriginal populations.[19]
In my opinion, counsel for the respondent did not ultimately establish much relevance in the fact that HCR-20 had not been specifically validated for Aboriginal people, nor did he satisfy me that it was inappropriate for experts such as Dr Sullivan to utilize the RSVP or HCR-20 structured professional judgment instruments in their assessment of an individual’s risk of future sexual offending. The authors of a learned article tendered in evidence discussed the use by practitioners (psychiatrists and psychologists) of non-validated instruments to assess risks of sexual re-offending by indigenous Australians in the context of court hearings to decide whether or not to make preventative detention orders,[20] and concluded that “for the foreseeable future practitioners will have to continue using non-validated instruments”. However, they stated an important caveat: the need for practitioners to disclose the limitations of their assessments, to enable courts to determine whether or not to admit and/or give weight to their evidence and opinions.
Dr Sullivan was also cross-examined about the limited number of serious sexual crimes committed by the respondent, and as to what conclusions as to future risk could properly be drawn. He explained that the Static-99 predicts not only sexual re-offending but also violent re-offending, in respect of which the respondent was said to have a “dense offending history”. When challenged as to the utility or validity of using HCR-20 in predicting the risk of commission of a serious sexual offence, Dr Sullivan explained that he used the instrument for what I would describe as a ‘control’ for the RSVP instrument, in his words “to ensure that the RSVP did not simply capture a constellation of behaviours which disadvantaged JD”. Dr Sullivan also made use of HCR-20 to identify unmet needs and appropriate interventions for medical management in the community.[21]
The respondent led evidence from Professor Douglas Boer, Professor of Clinical Psychology, University of Canberra, a registered clinical psychologist who holds a PhD in psychology. Professor Boer had interviewed the respondent without an interpreter (which was not by choice) and, although he felt that an interpreter would have been useful from time to time, Professor Boer stated that the respondent “strove to make himself understood and responded well to requests for clarification”.[22]
Professor Boer expressed the opinion that using a structured professional judgment (SPJ) tool that has not been cross-validated with a member of a unique cultural group means that decision errors may be made,[23] although he acknowledged that SPJs are constructed of items that may have better cross-cultural applicability (that is, better than unstructured professional judgments) because of “widespread literature support”.[24] Professor Boer referred to “an increasing acknowledgement of the problem of unvalidated instruments being used with Australian indigenous sexually violent and non-sexually violent offenders”. There are no “well-validated” tools for either group. Nonetheless, in re-examination, Professor Boer referred to the fact that the structured clinical judgment tools are “driven by the international empirical literature”, and that “it is much more likely that the RSVP is going to be valid with indigenous offenders then say, Static-99”.[25] Moreover, if judgments have to be made, non-validated structured professional judgment instruments should be used in preference to unstructured clinical judgments.
In my opinion, Dr Sullivan formed an unjustifiably favourable impression of the respondent’s conduct during the period under review. At the hearing, Dr Sullivan was questioned by counsel for the applicant in relation to par 50 of his report, extracted in [13] above, where he had referred to only one episode in which JD had been aggressive and threatening.[26] Dr Sullivan’s report read as follows: “… apart from one episode in which he was verbally aggressive and exhibited a threatening demeanour to staff, his behaviour has been quite settled.” Dr Sullivan had apparently overlooked par 26 of his report, which set out two separate incidents which occurred on 20 June 2017 and 6 July 2017. On 20 June 2017, the respondent became agitated and angry when spoken to by a clinical program facilitator about his withdrawal from the sexual offender treatment program (SOTP) sessions. He expressed frustration and stated several times that he had assaulted female staff members in the past. His statements were understood to constitute an indirect threat. He also made threats to kill the judge or have members of his family kill the judge. It is tolerably clear that the respondent’s angry outbursts on 20 June 2017 were in the context that he had been denied his liberty as a result of the Court’s decision made on 20 June 2017, and his behaviour was the result of frustration and anger in a man of limited psychological resources. Less explicable was the respondent’s conduct on 6 July 2017, when he contacted prison officers via intercom and made threats directed at “them fucking school teachers” and nursing staff, as well as making a specific threat to kill a prison officer on his release. Prison management took no action against JD for his conduct on 6 July because his security classification had already been increased from ‘Low 1’ to ‘High’ and he had been placed on an intensive management regime after the incident of 20 June 2017.
Dr Sullivan was also referred by counsel for the applicant to an incident which occurred on 14 October 2017, referred to in the report of the Acting Commissioner.[27] This was another occasion on which JD made threats of harm towards custodial staff, which led to him being placed in separate confinement. Yet another incident occurred on 4 March 2018 when JD assaulted a fellow prisoner by punching him into the face while holding a pencil, causing a laceration to the victim’s face. It was reported to prison officers that JD and the victim had previously been in a relationship, which had ended, and that the victim kept asking for sex. In any event, because the victim did not want police involvement, the incident was dealt with internally and JD was sentenced to separate confinement for two days for disorderly conduct.
Acting Commissioner Steer expressed the view that the incidents of June July and October 2017 and March 2018 demonstrated “a marked increase in the number and severity of the breaches over this review period as compared to the previous review period.”[28]
Thus, the number of behavioural breaches (including threatening behaviour) well exceeded the “one episode” referred to by Dr Sullivan. When questioned about the additional matters, Dr Sullivan maintained that his conclusions at par 51 of his report did not “substantially alter”.[29] In cross-examination, however, he acknowledged that he would take into account, in risk formulation, the fact that the respondent’s conduct in prison showed “a range of behaviour suggesting a fairly low frustration threshold or difficulty regulating negative emotion in time of stress”.[30]
In the circumstances, and for present purposes disregarding the incident which occurred on 20 June 2017, I considered that the evidence of the other incidents tended to disprove Dr Sullivan’s conclusion that the respondent’s behaviour was “quite settled” during the review period. However, I bear in mind that behaviour within the artificial and sometimes stressful confines of a prison is not necessarily behaviour which one would expect to be replicated in the community.
I referred in [13] above to Dr Sullivan’s opinion that the respondent’s “overall sexual offending risk” remained in the high range. One risk-mitigation factor, referred to by Dr Sullivan, was the respondent’s overall declining physical health, which “increasingly suggests a degree of frailty which may act as a protective factor were he to return to the community”. However, the possible effects of declining physical health on sexual behaviours, about which Dr Sullivan speculated, were unknown.
Release subject to supervision in the community
Dr Sullivan concluded at par 54 of his report that the respondent would be “at high risk of committing another serious sex offence if not detained in custody or subject to a supervision order”, based on historical risk factors. The main risk of further offending would be associated with alcohol use. Nonetheless, Dr Sullivan considered that the risk identified by him “could potentially be managed in the community” if the respondent were to have “stable and supported accommodation and a standard range of monitoring conditions”. The recommended conditions were set out at par 52 of Dr Sullivan’s report, as follows:
· that the respondent be required to wear an alcohol monitoring bracelet.
· that the respondent be provided with stable accommodation, preferably in the Darwin metropolitan area.
· that the respondent be provided with therapeutic support for the activities of daily living and case management initially to maintain oversight of his progress as he re-integrated into the community.
· that the respondent be subject to a curfew.
· that the respondent have ongoing offence specific treatment support, at least initially, to help him integrate relapse prevention strategies into his lifestyle.
· that the respondent be provided with assistance to manage his medication, including pharmacy-developed compliance aids and supervision or simplification of his medication regimens.
· that consideration be given to prescribing naltrexone to reduce the respondent’s risk of relapse into alcohol abuse and SSRI medications to reduce irritability.
In court, Dr Sullivan was questioned about JD’s needs if he were released into the community under supervision. His evidence was as follows:[31]
Obviously, for a person who has been maintained for a long period of time in a structured, regimented environment, in which they don’t have to prepare food and under which they are [prompted] in relation to hygiene, it becomes difficult to determine how much of that activity JD would initiate himself. So, one would normally provide … an occupational therapy assessment using a structured tool which is able to assess what the person’s level of care needs are; [as with aged care] tests which enable a determination of how much assistance and support a person needs in their activities. In the absence of an occupational therapy assessment, one would normally seek to place a person in an environment which offered some degree of [support]. And then, depending upon the progress after the first couple of weeks, assess what level of ongoing care is needed. It may well be that the level of support can be reduced, but in some cases would be increased, depending on what is needed.
Because JD has been maintained in such an environment, it becomes very difficult to determine whether he would be capable of the independent tasks of living which would enable him to live by himself, whether he would require a minimal amount of support or, at the other end – which is where a person requires 24 hours of support to enable them to maintain a safe environment and quality of life. … He is obviously able to keep himself clean and manage his own personal hygiene, but I could not tell you whether he would manage [living independently].
Dr Sullivan made clear that an occupational therapist would need to carry out an assessment and that the appropriate recommendations would then be implemented by a case manager under the supervision and monitoring of Community Corrections officers.
Notwithstanding the reservations expressed by me in [25] – [28] above, I was of the view that Dr Sullivan’s recommendations would be appropriate for management of the respondent in the community.
In [26] and [27], I referred to the report of Acting Commissioner Steer dated 20 August 2018. That report was provided pursuant to s 69 (read with s 88) of the Act. The Act requires that the Commissioner provide an opinion as to whether, if a supervision order in relation to the respondent were made, it would be reasonably practicable for the Commissioner to ensure that the person was appropriately managed and supervised by probation and parole officers as required by s 63 of the Act. The paramount consideration referred to in s 63(2) is the need to protect, inter alia, members of the community. Rehabilitation is expressly described as a secondary consideration.[32]
Acting Commissioner Steer expressed concern in his report that the respondent’s past and more recent aggressive and violent behaviour episodes caused him significant concerns in relation to his ability to appropriately manage the respondent in the community, if he were placed on a supervision order. Community Corrections staff, who would the responsible for supervising the respondent, are not trained in the same physical restraint and self-defence techniques utilised by custodial officers to resolve and de-escalate violent confrontations within the prison.
Acting Commissioner Steer also expressed concern about the respondent’s unwillingness to engage or participate in any group-based Sex Offender Treatment Program. In the absence of such further participation, Acting Commissioner Steer did not consider that the respondent had completed necessary rehabilitation programs required to lessen the risk of his sexual re-offending.
Acting Commissioner Steer also discussed ‘reintegration planning’, and in particular the difficulty in finding accommodation in the case of the respondent, a sex offender with a history of violent offending. Neither the respondent nor Community Corrections had been able to identify appropriate accommodation options. Inquiries and investigations had been carried out in relation to the respondent living at Wadeye (where his family have two homes), and two outstations near Wadeye. Unfortunately, the respondent’s father and members of his family living in Wadeye did not consider that Wadeye would be a good place for the respondent to live, although they had no objection to brief visits by the respondent, to enable him to see family, meet new relatives and visit his mother’s grave. In relation to the two identified outstations, the houses were not habitable; they were “severely damaged” and toilets not functioning. Moreover, the outstations were not funded; there were no permanent residents at either outstation, and there were significant wet season access difficulties, with one of the outstations inaccessible. Moreover, Community Corrections could not provide the requisite level of supervision if the respondent were living at either outstation.
The respondent still harboured the idea that he would live at One Mile Dam with (the woman he claimed was) his promised wife, Rosemary Timber. However, Community Corrections officers attended One Mile Dam on several occasions, only to be informed by residents that Rosemary Timber did not live there. The respondent told Dr Sullivan on 20 July 2018 that Rosemary had moved to “rehab” at a women’s centre in Darwin. He told Dr Sullivan that he had last spoken with her, by phone, the previous Monday. However, he did not have any ‘Rosemary Timber’ listed in the permitted contact list for his Prisoner Telephone System. Acting Commissioner Steer stated (as at 20 August 2018) that the respondent had not made a “successful personal phone call” since 24 May 2017.
Acting Commissioner Steer, like his predecessors, had considered the possibility of the respondent living in one of the cottages at the Darwin Correctional Precinct. His concern was that it would not be possible to provide the level of support implicit in Dr Sullivan’s reference to “supported accommodation”. The Cottages (as they are called) are not actively supervised by prison officers. There would be a risk of conflict and social problems between the respondent and other supervisees living there, a significant risk given the respondent’s volatility and history of violent behaviour towards prison staff and other prisoners. Moreover, the respondent himself always rejected the idea of living in the Cottages and would become frustrated and agitated when the possibility of living there was discussed with him. He constantly repeated that he wanted to live at One Mile Dam with his promised wife.
In relation to supervision, Acting Commissioner Steer referred to significant variations in the respondent’s attitude and demeanour during meetings with Community Corrections staff. When those staff members were discussing things which with which the respondent did not agree, he would become very agitated and aggressive. Sometimes it had been necessary for staff to terminate interviews because of the respondent’s elevated emotional state. The Acting Commissioner expressed concern that the respondent’s agitation and aggression would adversely affect his ability to comply with the requirements of a supervision order. He also expressed concern for the safety of supervising Community Corrections staff. There was an additional concern that the respondent’s relatively low level of cognitive functioning would affect his ability to fully understand and comply with the terms of a final supervision order. For example, in relation to electronic monitoring, the respondent was said to have demonstrated a rudimentary understanding only (in relation to the basic concepts of keeping the device charged). A full assessment had not been carried out but, in the opinion of the Acting Commissioner, it would not be possible to provide the respondent with the level of supervision required by s 63 of the Act to protect the community.
When the review hearing resumed in January 2019, the Court was provided with a further report, under the hand of Commissioner McNairn.[33] That report provided a helpful update as to the respondent’s situation and had attached a seven-stage Transition Plan, with a statement of management strategies, support needs and expected outcomes. Subject to appropriate engagement, the respondent’s participation in the Transition Plan would see him transition from medium security accommodation through to living in the community on a supervision order pursuant to the Serious Sex Offenders Act 2013 after a period of 12 to 18 months from the start date (October 2018). Stage Seven was “transition to community on supervised order”. As at 29 January 2019, the respondent had progressed to Stage 2 of the Transition Plan after successfully completing Stage 1.
In his update report, Commissioner McNairn informed the court of the number of significant matters in addition to details of the Transition Plan. The respondent was participating in individual treatment with a senior psychologist and an Aboriginal Program Co-ordinator, with a focus on emotion regulation and with a view to his once more participating in a group-based Sex Offender Treatment Program (SOTP). His treatment commenced in November 2018 and involved a one-hour session each week. He was scheduled to participate in the next available SOTP, which was planned to commence in July 2019, for approximately six months. It was thought that he would by then be in Stage 5 of the Transition Plan, but even if he had not progressed to Stage 5, he would still be offered the opportunity to participate in the July 2019 SOTP.
In November 2018 the respondent was once more offered employment as a general hand, carrying out cleaning, grounds maintenance and waste management. He attended work sporadically, but regularly complained of shoulder and neck pain. He was referred to a doctor and a physiotherapist for his neck pain. Although it was confirmed by his doctor that he would benefit from daily light duties, he decided that he no longer wished to engage in employment.
Stage 1 of the transition plan had enabled the respondent to attend the Complex Behavioural Unit (CBU) two days per week to participate in programs such as art, music and other recreational activities, as well as social interaction with other residents. He had also undergone familiarisation with electronic monitoring equipment. However, in late January 2019, the respondent said that he did not wish to socialise with others in the CBU because it was too noisy. His attendance was reduced to one day per week.
As part of the Transition Plan, Northern Territory Correctional Services engaged an occupational therapist to assess the respondent and prepare a report. The purpose of the assessment was to determine the respondent’s functional capacity to engage in and satisfactorily complete the activities of daily living, and to identify any support which he may require in order to live independently in the community, should he be released from prison. The relevant assessments were carried out in October and November of 2018 and a report provided on 20 December 2018.
The occupational therapist noted that the respondent had been imprisoned for over 14 years, and so had not been in the community for a significant period of time. In addition, he has intellectual impairments, and was probably disadvantaged culturally and intellectually in a world which had changed considerably in the many years he had been in prison.
I set out below the occupational therapist’s summary of the functional assessment carried out:[34]
Given that [the respondent] has been living in Darwin Correctional Facility for a lengthy period, it is likely he is experiencing some form of institutionalisation. JD’s daily routine is largely dictated by the processes and rules within the correctional facility, resulting in reduced opportunity for decision making and choices.
Within his current environment, a correctional setting, JD appears to be able to function independently in completing basic tasks such as personal care. [Test results] revealed JD’s functioning overall to be low compared to others his same age. Furthermore, results from the Kimberly Indigenous Cognitive Assessment suggest JD presents with a borderline cognitive impairment. Environmental and contextual demands in future will also dictate what level of support JD may require should he be released into the community.
Consideration needs to be made for the community’s societal and environmental demands which may have changed since JD’s time spent in prison. JD may be required to learn new skills or relearn old skills and routines in order to adapt to a new or unfamiliar environment. There may also be an increased level of personal responsibility, choice and decision-making for JD. Should JD be released from the Darwin Correctional Facility, he would likely require assistance securing safe accommodation, arranging finances, familiarising himself to the community and assistance to complete community access. It is unclear how long he would require assistance to complete these activities and JD will need to be assessed in the community and environment where he will reside, as this will provide the most accurate and valid results.
The recommendations made by the occupational therapist as a result of the assessment findings were as follows:-
· Further functional assessment of JD in an environment less restrictive is recommended in order to obtain a truer picture of his skills and functioning, particularly in relation to planning, money management, medication management, managing finances and completing community access. This is to be completed in a community setting.
· Should JD be released from the Darwin Correctional Centre, he would require assistance securing safe supported accommodation, arranging finances, familiarising himself to the community, assistance to complete community access and attend medical appointments. It is unclear how long he would require assistance to complete these activities and JD will need to be assessed in the community and environment where he will reside to determine his level of functioning and support needs.
· Should JD be released from prison, it is recommended he transitions into supported accommodation, so he can be supported to successfully complete activities of daily living. Supports may potentially be reduced upon re-assessment in the community.
· Should JD be released from prison, it is likely he would require assistance to develop new meaningful routines and habits conducive to maintaining his health and wellbeing. He would likely require assistance developing meaningful relationships, connection to culture and engaging in meaningful activities such as obtaining employment.
· It is recommended that transition planning is to be undertaken prior to JD’s release to ensure correct supports are in place in order to facilitate an effective and sustainable transition into the community for JD.
· Whilst he remains an inmate, it may be of benefit if JD could be engaged in activities of daily living or skills development incorporating meal preparation, budgeting, planning, community access etc. should security clearances and processes allow for this. This could be a form of preparation for release into the community.
· It is recommended that goal setting and planning is undertaken with JD to enable him to have some ownership and input into the direction of his life upon release, focussing on making good choices conductive to health and wellbeing, whilst promoting independence.
The Transition Plan referred to in [50] above appears to have adopted all of the recommendations made by the occupational therapist.
Commissioner McNairn also informed the Court that the respondent’s case file had been provided to the National Disability Insurance Agency so that an assessment could be made as to whether the respondent met the criteria for a support package. If he were successful, the support would commence even while he was in custody (as a “pre-release” prisoner) and continue upon his release. Such NDIS support would fund implementation of the recommendations made by the occupational therapist.
Unfortunately, there had been no further progress made in relation to identifying suitable accommodation for the respondent if he were released into the community. Commissioner McNairn agreed with Acting Commissioner Steer that the Cottages were inappropriate, emphasising the significant risk to staff and other prisoners. In relation to the respondent’s residential and relationship aspirations, Community Corrections staff had finally been able to make contact with Rosemary Timber on 3 December 2018. Ms Timber said that she knew the respondent and his family but that she was not, and never had been, promised to the respondent as his wife; moreover, that she had never been in a relationship with the respondent and was not interested in being in a relationship with the respondent. She did not want him to live with her. Thus, the housing/relationship option suggested by the respondent, that he live with Rosemary Timber (whether at One Mile Dam, or elsewhere) probably had no basis in fact. It was unclear whether the respondent understood and accepted that that was the case.
In relation to other matters, Commissioner McNairn agreed with and adopted the opinions expressed by Acting Commissioner Steer, including the opinion referred to in [41] above that it would not be reasonably practicable to provide the level of direct supervision required to meet the paramount consideration set out in s 63(2)(a) of the Act.
Conclusion
In the circumstances, I considered that it was necessary to confirm the continuing detention order pursuant to s 71(1)(c) of the Act. I was satisfied that the respondent was still a serious danger to the community. There remained an unacceptable risk that he would commit a serious sex offence unless he were in custody. I did not consider that effective and appropriate management and supervision of the respondent in the community would be reasonably practicable.
I made an order to amend the continuing detention order so as to specify a review period as 12 months from 1 February 2019, in lieu of the review period previously specified.
Final observation
Consistent with previous observations made by me, I now indicate that if the respondent fully participates and succeeds in the Transition Plan, but nonetheless remains a serious danger to the community, the need to protect potential victims and the general community (referred to in s 9(1)(a) and s 14(2)(a) of the Act) could well be met by appropriate management and supervision in the community, under a final supervision order, rather than by a continuing detention order. The need to identify and obtain appropriate stable accommodation for the respondent would thus become a priority.
-------------------------
[1] The Attorney-General of the Northern Territory v JD (No 2) [2016] NTSC 12 at [1], [138], [150], [153], [154], [157], [158].
[2]The Attorney-General of the Northern Territory v JD (No 3) [2017] NTSC 48 at [36] – 37].
[3]The previous evidence of Dr Sullivan was referred to in The Attorney-General of the Northern Territory v JD (No 3) [2017] NTSC 48 at [9], [10], [15] – [18], [20], [23] – [25], and [31].
[4]Exhibit ‘A-1’ tendered 5 September 2018.
[5]Report Dr Sullivan, 1 August 2018, par 35.
[6]Report Dr Sullivan, 1 August 2018, pars 36, 37.
[7]See the discussion of structured professional judgment in The Attorney-General of the Northern Territory v JD (No 3) [2017] NTSC 48 at [23] – [25], [33].
[8]Report Dr Sullivan, 1 August 2018, par 43.
[9]Report Dr Sullivan, 1 August 2018, par 47.
[10]Transcript 05/09/2018, p. 14.
[11]Transcript 05/09/2018, p. 15-16.
[12]Report Dr Sullivan, 1 August 2018, par 45.
[13]Transcript 05/09/2018, p. 19.
[14]Transcript 05/09/2018, p. 19/20.
[15]Respondent's submissions, 1 February 2019, par 11.
[16]Director of Public Prosecutions (WA) v Mangalomara [2007] WASC 71; 169 A Crim R 379 at [166]. The “tools” referred to were the Static-99 and the SVR – 20/RSVP.
[17]Ibid, at [167].
[18]Report Dr Sullivan, 1 August 2018, par 48.
[19]Professor Boer answered a number of questions in relation to the desirability of validation and the effect of non-validation of instruments such as Static-99 or structured clinical guidelines such as RSVP and HCR-20: see Transcript 30/01/2019, pp. 39-41, 42.8, 44.8-45.5. I discuss his evidence in [22] – [23] below.
[20]Alfred Allan, Catherine L. Parry, Anna Ferrante, Christine Gillies, Catherine S. Griffiths, Francis Morgan, Caroline Spiranovic, Stephen Smallbone, Hilde Tubex & Stephen C. P. Wong: Assessing the Risk of Australian Indigenous Sexual Offenders Reoffending: A Review of the Research Literature and Court Decisions, Psychiatry, Psychology and Law, 2018, [exhibit ‘A-6’]
[21]Transcript 05/09/2018, p. 18.
[22]Report Professor Douglas Boer, 27 January 2019, exhibit R5, page 1. Prof Boer's interview with the respondent took place on 5 November 2018.
[23]Report Professor Douglas Boer, 27 January 2019, exhibit R5, page 6.9.
[24]Report Professor Douglas Boer, 27 January 2019, exhibit ‘R-5’, page 6/7.
[25]Transcript 30/01/2019, p. 52.8.
[26]Transcript 05/09/2018, p. 10.
[27]Report of Acting Commissioner Steer, dated 20 August 2018, exhibit ‘A-2’, tendered 5 September 2018, par 39.
[28]Report of Acting Commissioner Steer, dated 20 August 2018, par 42.
[29]Transcript 05/09/2018, p. 10.
[30]Transcript 05/09/2018, p. 23.5.
[31]Transcript 05/09/2018, p. 11.
[32]Serious Sex Offenders Act 2013, s 63(2)(b).
[33] Commissioner’s Update Report, 29 January 2019, exhibit ‘A-4’.
[34]Report Erin Coote, occupational therapist, 20 December 2018, page 10.
2
3
0