The State of Western Australia v AA
[2019] WASC 78
•13 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- AA [2019] WASC 78
CORAM: MITCHELL JA
HEARD: 7 MARCH 2019
DELIVERED : 7 MARCH 2019
PUBLISHED : 13 MARCH 2019
FILE NO/S: SO 33 of 2006
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
AA
Respondent
Catchwords:
Criminal law - Sexual offender - Preventative detention - Periodic review of continuing detention order - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Continuing detention order rescinded
Supervision order made subject to conditions
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr M R Gunning |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Gunning Barristers & Solicitors |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v [AA] (No 5) [2012] WASC 136
Director of Public Prosecutions (WA) v [AA] (No 6) [2013] WASC 154
Director of Public Prosecutions (WA) v [AA] (No 7) [2014] WASC 227
Director of Public Prosecutions (WA) v [AA] (No 8) [2015] WASC 273
Director of Public Prosecutions (WA) v [AA] [2009] WASC 59
Director of Public Prosecutions (WA) v AA (No 10) [2018] WASC 3
Director of Public Prosecutions (WA) v AA (No 9) [2016] WASC 46
GBT v The State of Western Australia [2019] WASCA 40
The State of Western Australia v [AA] (No 3) [2009] WASC 74
The State of Western Australia v [AA] (No 4) [2011] WASC 85
The State of Western Australia v [AA] [2006] WASC 279
The State of Western Australia v [AA] [2007] WASC 129
The State of Western Australia v [AA] [2007] WASC 129(S)
MITCHELL JA:
Summary
The respondent is currently detained in custody pursuant to a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (Act). I am required to conduct a periodic review of the respondent's detention under that order, which Corboy J made on 11 January 2018. These are my reasons for rescinding the continuing detention order and making a supervision order at the conclusion of the periodic review on 7 March 2019.
Since 2006, the respondent, who suffers from psychotic symptoms, paedophilia and cognitive impairment, has been subject to orders made under the Act. The views expressed by various judges of this court when considering the respondent's case have been consistent. The court has consistently found that there is an unacceptable risk that, if the respondent is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. The court has also consistently taken the view that a supervision order can reduce this risk to acceptable levels, so long (but only so long) as the respondent can be accommodated in a facility which provides a high level of support and supervision.
The availability of such accommodation, in a psychiatric hostel or similar facility, has in the past proved to be the stumbling block for the making of a supervision order. Eventually, suitable accommodation at a private institution (the Hostel) became available. On 15 February 2016, Jenkins J released the respondent on a supervision order, subject to conditions which included a requirement that he reside at the Hostel and not leave the Hostel without the permission of a Community Corrections Officer (CCO).
The respondent left the Hostel on a number of occasions without permission. He was arrested on 3 August 2017, the last of those occasions. The Director of Public Prosecutions (DPP) sought orders under s 23 of the Act, and an interim detention order was made pending determination of the DPP's application.
On 11 January 2018, Corboy J found that the respondent had contravened the supervision order by leaving the Hostel without permission due to frustration with the restrictions he faced at the Hostel. At this time, the Hostel was prepared to have the respondent resume his residence but a bed was not available for him. Corboy J found that there was an unacceptable risk that the respondent would commit a serious sexual offence if a continuing detention order was not made. The determinative factor in making that finding was the absence of any suitable available accommodation for the respondent.
A place for the respondent has now become available at the Hostel. In these circumstances, it is appropriate to rescind the continuing detention order and make a supervision order in relation to the respondent. Like the judges who have previously considered this case, I am satisfied that there is an unacceptable risk that, if the respondent is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. However, I am satisfied that a supervision order which includes a condition that the respondent reside at the Hostel can reduce this risk to an acceptable level. The State does not object to the discharge of the continuing detention order and the release of the respondent on a supervision order.
My more detailed reasons for reaching these conclusions follow.
History of sexual offending[1]
[1] The following summary is taken from Murray J's decision in The State of Western Australia v [AA] [2006] WASC 279 [2] - [3], [10] - [17].
The first sexual offence of which the respondent was convicted was of indecently dealing with a child under the age of 14. The respondent was sentenced in the Perth Children's Court on 2 October 1979, and was given a fine and a good behaviour bond. The respondent was 19 years old at the time of sentence.
The next series of sex offences were committed between June 1986 and January 1988, against the respondent's nephews who were respectively aged about 6 and 9 years when the offending commenced. The respondent was aged between 26 and 27 years at the time of this offending. The respondent was convicted on one count of aggravated indecent assault and five counts of aggravated sexual assault. On 17 August 1988, he was sentenced to a total effective sentence of 5 years 7 months' imprisonment (subsequently increased to 6 years 7 months following an additional sentence for a receiving offence) with eligibility for parole.
The respondent was released on parole on 4 December 1990. He did not commit any offences during his 2 year parole period.
Between November 1993 and January 1994, the respondent committed further sexual offences against an 8 year old nephew and a 6 year old niece. The respondent was 33 years old at the time of this offending. He was convicted of four counts of indecently dealing with a child under 13 years of age and three counts of sexually penetrating a child under 13 years of age. On 26 August 1994, the respondent was sentenced to a total effective term of 5 years 5 months' imprisonment, with eligibility for parole.
The respondent was released on parole on 15 September 1997.
The respondent's next offences were committed on 25 June 2003, against a 14 year old boy who was residing in a hostel where the respondent was also living, and who the respondent had befriended. The respondent was convicted of one count of indecently dealing with a child between the ages of 13 and 16 years and one count of sexual penetration of a child between the ages of 13 and 16 years. The respondent was 43 years old at the date of these offences. The respondent was sentenced to a total effective sentence of 3 years 4 months' imprisonment, backdated to 26 June 2003. While the respondent was eligible for parole, he was not released on parole. That sentence expired on 26 October 2006.
Applications under the Act
Supervision order in December 2006
Following the expiry of his sentence on 26 October 2006, the respondent was detained on an interim detention order under the Act. On 12 December 2006, Murray J made a supervision order for a period of 7 years. Murray J summarised the views of a psychiatrist, Dr Hall, whose views his Honour accepted, in the following terms:[2]
All of that was summarised by Dr Hall in his report … by confirming that the respondent was considered to be at high risk of committing a serious sexual offence if not subject to either a continuing detention or a supervision order. Dr Hall said:
The essence of [the respondent's] risk lies in his prior history of offending, his sexual deviation, his lack of personal support, his lack of feasible plans for the future, his negative attitude to intervention and therefore the risk of non-compliance with remediation attempts, his lack of insight, his emotional immaturity and his major mental illness [schizophrenia].
But Dr Hall did say that these were matters which, with skill, could be managed, and he expressed the opinion that, as I think the respondent's history demonstrates, his risk of reoffending is in fact not immediate. Dr Hall said he was 'highly unlikely to offend in the short term'.
In the meantime, effective control and supervision in a compulsory regime by both community corrections officers and community based mental health agencies would be essential.
Apprehended breach of supervision order in February 2007
[2] The State of Western Australia v [AA] [2006] WASC 279 [29] - [31].
On 16 February 2007, the respondent telephoned police from a suburban shopping centre and indicated that he felt as if he might offend again. The respondent subsequently indicated that he could not cope with society and he may re-offend to enable him to go back to prison or hospital. The respondent was admitted to Graylands Hospital and, on 22 February 2007, an arrest warrant was issued under the Act on the ground of a reasonable suspicion that he was likely to contravene the supervision order by committing a sexual offence.[3]
[3] See The State of Western Australia v [AA] [2007] WASC 129 [14] - [18].
On 20 June 2007, Murray J delivered reasons in which his Honour indicated he was not satisfied that the respondent was likely to contravene a supervision order by committing a sexual offence. His Honour concluded that the respondent's conduct in telephoning police on 16 February 2007 supported the view that the respondent wanted to put himself in a position that he would not offend. Murray J expressed the view that an adequate degree of protection of the community may be obtained by the implementation of the supervision order in the terms originally made. Those reasons anticipated dismissing the DPP's application subject to being advised that suitable accommodation was available, and appropriate arrangements being made for the respondent's orderly release from custody.[4]
Continuing detention order in November 2007
[4] The State of Western Australia v [AA] [2007] WASC 129 [58] - [60].
However, at that time suitable accommodation was not able to be found.[5] On 28 November 2007, Murray J discharged the supervision order and made a continuing detention order. In doing so, his Honour observed:[6]
[5] See The State of Western Australia v [AA] [2007] WASC 129(S) [4] - [11].
[6] The State of Western Australia v [AA] [2007] WASC 129(S) [16] - [17], [21].
In the final analysis, Ms Caple [a forensic psychologist] reports that for the respondent in the community:
… supported accommodation and a structured daily routine remains a high priority. [The respondent] is extremely fearful of living in the community without support and it is highly likely that he will engage in inappropriate or illegal behaviour in an attempt to secure a return to prison.
I have no alternative, I think, but to accept that advice and opinion about the respondent's present situation.
Finally, therefore, I am satisfied that it is probably the case that the respondent in the community, without the appropriately structured and supervised accommodation he requires, is likely to contravene the supervision order by committing an imprisonable sexual offence for the purpose of securing his return to prison where he is comfortable. Although I think it was not demonstrated to be the case as a result of the incident in February, I think there is now established to be a real, substantial risk of contravention of the order.
…
The respondent is made the subject of a continuing detention order upon the proper application of the Act, but essentially because there is an incapacity to accommodate him in the community in structured, supervised accommodation of a kind appropriate to his needs, if he is to be enabled to function in the community in circumstances where he will not present a danger of the commission of serious sexual offences.
Periodic reviews 2009 - 2015
There were a series of periodic reviews of the continuing detention order between 2009 and 2015.[7] The common theme of the judges' reasons is that the risk of the respondent committing a serious sexual offence could be reduced to acceptable levels if, but only if, suitable supported accommodation could be found for him. As no suitable accommodation was available at those times, the court had no option but to decline to rescind the continuing detention order. Judges of the court were often critical of the executive government for failing to provide suitable accommodation. In the 2014 review, McKechnie J in effect noted that there was an unacceptable risk that, if the respondent is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. His Honour then summarised the position in the following terms:[8]
[7] The State of Western Australia v [AA] (No 3) [2009] WASC 74; Director of Public Prosecutions (WA) v [AA] [2009] WASC 59; The State of Western Australia v [AA] (No 4) [2011] WASC 85; Director of Public Prosecutions (WA) v [AA] (No 5) [2012] WASC 136; Director of Public Prosecutions (WA) v [AA] (No 6) [2013] WASC 154; Director of Public Prosecutions (WA) v [AA] (No 7) [2014] WASC 227; Director of Public Prosecutions (WA) v [AA] (No 8) [2015] WASC 273.
[8] Director of Public Prosecutions (WA) v [AA] (No 7) [2014] WASC 227 [20].
That being the case, the court must either order that he be detained in custody for control, care or treatment or be released under supervision.
The paramount consideration is the need to ensure adequate protection of the community.
A relevant consideration ranking after the paramount consideration is the length of time the respondent has been in custody. The respondent has been detained for more than 7 years, a period greater than twice the length of his original sentence.
If the respondent was not a dangerous sexual offender but an ordinary member of the community, he would be appropriately residing in a psychiatric facility and being treated for his significant mental health issues.
There has been a deterioration in the respondent's mental health.
A longer period in custody will increase the risk of general regression.
If the respondent was released under a supervision order to a psychiatric facility, having regard to the paramount consideration and the other considerations, the community will be adequately protected.
Supervision order in February 2016
By February 2016, accommodation at the Hostel had become available for the respondent. On 15 February 2016, Jenkins J made a supervision order, which included a condition requiring the respondent not to leave the Hostel without the prior approval of a CCO.[9]
Breaches of supervision order 2016 - 2017
[9] Director of Public Prosecutions (WA) v AA (No 9) [2016] WASC 46 [88].
On 23 May 2016, 14 July 2016, 26 October 2016, 26 January 2017, 6 July 2017 and 7 July 2017, the respondent left the Hostel without approval. On each occasion, he contacted authorities shortly thereafter and was returned to the Hostel.
The last occasion on which the respondent left the Hostel was on 3 August 2017, when he left at about 6.00 pm after a staff member of the Hostel was chased out of a room by the respondent who tried to hit her. The respondent contacted authorities informing them of his whereabouts and plan to find somewhere else to live. He was arrested at Fremantle Train Station at 7.30 pm.
The respondent was subsequently charged and convicted of 5 offences against s 40A(1) of the Act. On 24 August 2017, Archer J made an interim detention order under s 24A of the Act.
The State then applied for a continuing detention order to be made as a consequence of the contraventions of the supervision order. On 11 January 2018, Corboy J made a continuing detention order.[10]
[10] Director of Public Prosecutions (WA) v AA (No 10) [2018] WASC 3.
After finding contraventions of the supervision order to be established, Corboy J observed:[11]
The respondent's contraventions of the Supervision Order consisted of leaving the Approved Hostel without permission. The contraventions were committed when the respondent became frustrated by rules relating to smoking in the Approved Hostel (which the respondent claimed were unfairly enforced against him) or limitations on his freedom to leave the hostel (limitations that did not apply to other residents). He left the Approved Hostel for only a short duration and he either contacted his CCO or a monitoring officer to advise of his location or he truthfully answered enquiries as to his whereabouts. There was no evidence that he had engaged in any sexually risky behaviour while he was away from the Approved Hostel or that his departures were motivated by a desire to engage in such behaviour. Accordingly, I accept the assessment of Dr Hall that the respondent's risk of committing a serious sexual offence if released to the community remained the same as when the Supervision Order was made (and when the annual reviews for 2013 and following were conducted). The contraventions of the Supervision Order were not a manifestation of an escalation in the risk of the respondent committing a serious sexual offence.
However, the evidence of Dr Hall and Dr Yewers established that the risk of the respondent sexually offending could only be adequately managed in a highly structured and supervised environment such as a psychiatric hostel; indeed, it was apparent that the respondent lacked the skills necessary to adequately manage daily living in a less regulated setting.
[11] Director of Public Prosecutions (WA) v AA (No 10) [2018] WASC 3 [39] - [40].
Corboy J concluded that there was an unacceptable risk that the respondent would commit a serious sexual offence if a continuing detention order was not made. His Honour said:[12]
The determinative factor in making that finding is the absence of any suitable accommodation for the respondent. I would have been prepared to release the respondent on the Supervision Order or on a modified supervision order had accommodation been available for him in a psychiatric hostel or some other highly structured and supervised residence. As I have indicated, the evidence disclosed that the risk of the respondent committing a serious sexual offence had not changed since 2013 and in particular, the contraventions of the Supervision Order did not suggest an increase in that risk.
[12] Director of Public Prosecutions (WA) v AA (No 10) [2018] WASC 3 [41].
Evidence on the current periodic review
Dr Wojnarowska (forensic consultant psychiatrist)
Dr Gosia Wojnarowska is a forensic consultant psychiatrist, who is currently Head of Clinical Services, State Forensic Mental Health Services WA. She is experienced in the assessment of psychopathy, violence risk and the risk of sexual violence. Dr Wojnarowska had not previously reviewed the respondent, and based her opinions on reports from previous proceedings and an interview of the respondent. Dr Wojnarowska prepared a report in relation to the respondent dated 28 February 2019. She also gave oral evidence at the periodic review, in which she adopted the contents of her report.
Dr Wojnarowska reports that there is no doubt that the respondent fulfils the criteria for 'paedophilia, exclusive type, attracted to male children'. By this Dr Wojnarowska meant that the respondent was only sexually attracted to children, with a preference for males. Having noted some disagreement between other psychiatrists as to whether the respondent suffers from a major mental illness such as schizophrenia, Dr Wojnarowska observed:
In relation to the presence of a psychotic disorder, in my opinion it is irrelevant what formal name is attached to his condition: there is no doubt that he presents at times with psychotic symptoms such as hallucinations, delusions and thought disorder. He requires indefinite treatment with antipsychotic medications and a follow up by a specialized mental health service …
Dr Wojnarowska is of the opinion that the respondent suffers from Autism-Spectrum Disorder (ASD), but observes that at this stage in the respondent's life it would be very difficult to confirm such a diagnosis with certainty.
Dr Wojnarowska concurred with previous the psychiatric assessments that the most relevant risk factors were:
the presence of sexual deviance and his psychological vulnerabilities including high levels of anxiety, difficulty relating to others and loneliness. Psychotic symptoms, when present reflect his decompensation but are not causal to his offending.
Dr Wojnarowska noted that the respondent functioned relatively well in the community for 18 months following his 2016 release, and his return to custody related to breaches of the supervision order other than by reoffending. Dr Wojnarowska noted:
His difficulty with adjusting to the certain aspects of life at the [Hostel] reflects his very rigid personality style, possibly of ASD nature. However, the contraventions did not place him at the immediate risk of reoffending: he notified the appropriate authorities about his distress and his whereabouts when he left the [Hostel]. There was no evidence of him seeking contact with children.
Dr Wojnarowska observed that, while in prison, the respondent has continued with his counselling. The respondent has been compliant with his medications and his mental state has been stable.
Dr Wojnarowska reported that the respondent experienced distress and increased anxiety when exposed to children or images of children, and took steps to extricate himself from the situation (such as leaving the room when images of children appeared on television). She supported a restriction on the respondent leaving the Hostel during times children are likely to travel to school. This would avoid presenting the respondent with the opportunity to develop a relationship with a child and prevent the elevation of his anxiety levels which occurs when he sees children. She said that some more restrictions may be appropriate during the day in school holidays. Otherwise, she did not believe a long term requirement for the respondent to obtain permission before leaving the Hostel to be necessary. She supported the proposal for the respondent to be required to give notice of leaving the Hostel, indicating where he intended to go and the period for which he anticipated being away.
Dr Wojnarowska noted that the respondent craved human contact which he found difficult to have in the community, and readily reached out to those responsible for his supervision and treatment in times of distress or difficulty. This would make it very easy to detect a significant change in the respondent's mental state which might otherwise elevate his risk of committing a serious sexual offence. She agreed with Dr Hall's earlier observations that the respondent's risk of reoffending was a long term, rather than a short term, risk.
Dr Wojnarowska said that, given the respondent's previous offending was against children with whom he had formed a close relationship, it was very unlikely that he would commit a serious sexual offence against a child who was a stranger to him.
Dr Wojnarowska expressed the opinion that, although the individual risk factors have remained, the supports and the community management plan implemented prior to his return to custody in August 2017 was sufficient to negate the respondent's risk of reoffending. She was of the opinion that the respondent's risk can currently be managed on a supervision order in the community with weekly psychological counselling, follow up by the Community Forensic Mental Health Service, case management by a Community Corrections Officer and communication with Hostel staff.
Dr Wojnarowska recommended that any supervision order operate for a period of 10 years.
Dr Galloghly (clinical and forensic psychologist)
Dr Dylan Galloghly is a senior clinical and forensic psychologist at the Forensic Psychology Service of the Department of Justice. He prepared a report on the respondent dated 6 February 2019, which he adopted and elaborated upon in oral evidence.
Dr Galloghly provides the following summary of the respondent's psychological and psychiatric functioning:
In brief, [the respondent] has long-standing diagnoses of schizophrenia, paedophilia, and intellectual disability that require lifelong treatment and management. He is prone to persistent delusions, anxiety, agitation, mood swings, and overall emotional lability. [The respondent] has an impaired capacity to self-manage and has had a limited response to pharmacological interventions. He has typically been prescribed anti-psychotic medication.
While [the respondent] typically conforms to structure and routine, his behaviour at times can be viewed as immature, reactive, impulsive, and not well planned. For instance, when last in the community he often absconded from the hostel when upset, even though he was seemingly aware that doing so was an order contravention. Additionally, his mental state and delusional symptoms can frequently vacillate prompting erratic behaviour. Overall, the management of [the respondent] normally requires highly structured environments with significant levels of support. Management of his tobacco use has been a long-standing pertinent issue.
Dr Galloghly's report describes the counselling which the respondent has received since his most recent return to custody. He reported that the respondent indicated that he would like to return to the Hostel. He noted:
Counselling however has had, and will likely always have limited impact given [the respondent's] intellectual impairment, personality and chronic psychiatric issues. Paramount management strategies continue to be a combination of psychiatric medication and a structured behavioural management plan consistent with disability rehabilitation principles. It should also be noted that [the respondent] has consistently reported over a number of years that he has a low sexual drive and is hypervigilant regarding sexual behaviour and possible risk scenarios.
[The respondent's] failure to comply with his CSO can be viewed as a consequence of his intermittent inability to cope with the conditions of the order when he was emotionally aroused. His limited problem-solving capacity and proclivity to become emotionally aroused when he encounters problems are long-standing issues that are unlikely to improve. Furthermore, his oversensitivity and associated reactive behaviour does not seem amenable to consequential learning. It should also be noted that [the respondent] was seemingly stable and compliant for large periods of his order. His failure to comply with his order may also be related to inconsistent management by those involved with his care, and the possible application of overly restrictive management strategies that lacked flexibility. In his mind, he was simply walking away from his problems and trying to get help on the occasions he left [the Hostel] without permission.
It was always likely that [the respondent] would breach his order if the expectations and conditions were too onerous for a man of his intellectual functioning. Moreover, [the respondent's] intellectual impairment and comorbid mental health issues will likely always require a highly flexible management regime in order to promote rehabilitation and order compliance.
Dr Galloghly recommends the development of a clear behavioural management plan for those involved in the respondent's care and management should he return to the Hostel.
Mr Jarvie (Community Corrections Officer)
The court also received a report from Mr Jarvie, a Community Corrections Officer. Mr Jarvie gave oral evidence which adopted and explained the views he expressed in that report. Mr Jarvie proposed the following regime if the respondent were released on a supervision order:
It is recommended that [the respondent] be subject to a curfew requirement. This would specifically be important around his immediate release. For this reason, whilst he becomes re-accustomed to his location and routine and for the purpose of structure, it is proposed that [the respondent] initially seeks approval from his SCCO prior to leaving the psychiatric hostel, with the exception of emergencies. Providing that [the respondent] responds positively to his adjustment into the community, [he] may be further directed only to notify his case manager if he intends to leave the psychiatric hostel, rather than seek permission to do so. This could be monitored by way of a GPS inclusion zone. Additionally, given the proximity to local schools and child care centres, [the respondent] would not be permitted to leave the psychiatric hostel from 7:00am to 9:30am and again from 2:00pm to 4:00pm on school days other than if he was on an external activity prior to commencement of these time periods.
Mr Jarvie notes that schools and day care centres in the vicinity of the Hostel would be listed as 24 hour GPS exclusion zones, and that both the respondent and his case management team would be alerted should he enter one of those zones. Mr Jarvie says that, if the respondent were to be released on a supervision order, he would be closely managed and supervised by members of the Risk Management Group.
Mr Jarvie confirms that there is a single room available for the respondent at the Hostel, which is prepared to accept the respondent as a patient.
Ms Casson
Ms Casson is a Community Corrections Officer who gave evidence about the manner in which the Department would administer a curfew requirement. She also explained the Department's desire for flexibility in the terms of conditions imposing restrictions on when the respondent could leave the Hostel.
Legislation
The outcome of this review is governed by s 33 of the Act. I am required to consider whether there is an unacceptable risk that, if the respondent is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.[13] As was recently observed in GBT v The State of Western Australia:[14]
For this purpose, an 'unacceptable risk' is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the respondent offending, the type of sexual offence the offender is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the court is required to consider whether, having regard to the likelihood of the respondent offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that he has already been punished for the offences he has actually committed, it is necessary in the interests of the community to ensure that the respondent is subject to further control or detention. (citations omitted)
[13] Under s 33(1), read with s 7 of the Act.
[14] GBT v The State of Western Australia [2019] WASCA 40 [21].
If I do not find there to be such an unacceptable risk at the date of this review, I must rescind the continuing detention order.[15] If I find there to be such an unacceptable risk, I must either:[16]
(i)affirm the continuing detention order; or
(ii)with effect from a date specified by the court, but not earlier than 21 days after the day on which the review is concluded, rescind the continuing detention order and make a supervision order in relation to the person.
[15] Section 33(1)(a) of the Act.
[16] Section 33(1)(b) of the Act.
In making that decision, the paramount consideration is to be the need to ensure adequate protection of the community.[17] However, I cannot make a supervision order unless the respondent satisfies me, on the balance of probabilities, that he will substantially comply with the standard conditions of the order.[18] The 'standard conditions' are those referred to in s 18(1) of the Act.
[17] Section 33(3) of the Act.
[18] Under s 33(4) and (5) of the Act.
Disposition
I have had regard to the matters referred to in s 7(3) of the Act so far as they are relevant to the respondent. I accept the medical evidence of Dr Wojnarowska, and am satisfied that there is an unacceptable risk that, if the respondent is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. I am also of the view that a supervision order can reduce this risk to acceptable levels, so long (but only so long) as the respondent can be accommodated in a facility, such as the Hostel, which provides a high level of support and supervision.
I am satisfied that the Hostel provides an appropriate level of support and supervision. Jenkins J described the regime at the Hostel in 2016.[19] Dr Wojnarowska's evidence was that she regularly sent patients to the Hostel and there had been no significant changes to its management since 2016. Mr Jarvie gave evidence as to the Hostel regime which was consistent with Jenkins J's findings. He confirmed that the Hostel only accepts adult patients.
[19] See Director of Public Prosecutions (WA) v AA [2016] WASCA 46 [35] - [66].
The risk of the respondent committing a serious sexual offence has consistently been described by the psychiatric evidence as a long term, rather than a short term, risk. According to the medical evidence, a significant escalation of that risk would involve a substantial change in the respondent's mental state and the respondent having access to, and an opportunity to form a close relationship with, children.
Conditions imposed will provide for the close monitoring of the respondent by a range of service providers.
Conditions can also be imposed that will prevent the respondent from having access to children or an opportunity to form a close relationship with a child. The respondent's current state of hypervigilance in relation to contact with children, described by the evidence summarised above, suggests that he will comply with those conditions. The monitoring for which the conditions will provide, including GPS monitoring of the respondent's movement, will limit his opportunity to form a relationship with a child without detection by the authorities.
I was initially concerned at the Hostel's proximity to a primary school and a day care centre. However, in the end I am satisfied that this does not give rise to an unacceptable risk that the respondent will commit further serious sexual offences in circumstances where:
(1)The respondent resided at the Hostel between February 2016 and August 2017 without any reported incident that placed any of the children attending those facilities at any risk.
(2)The respondent, whose previous offending has been against children with whom he had a close relationship is, in Dr Wojnarowska's view, which I accept, very unlikely to offend against a child who is a stranger to him.
(3)The conditions which I will impose will be designed to prevent the respondent from attempting to form a close relationship with any child.
(4)The risk which the respondent poses is, on the medical evidence, a long term risk.
(5)Any change in the respondent's mental state which would elevate the risk of him committing a serious sexual offence would, in Dr Wojnarowska's view, which I accept, be very easy to detect.
(6)If released on a supervision order, the respondent would be subject to electronic GPS monitoring which would classify the nearby schools and day care centres as exclusion zones.
(7)The conditions which I will impose will exclude the respondent from leaving the hostel, except in the limited circumstances provided for by s 19B(5) of the Act, during times children are likely to be travelling to and from school.
In these circumstances, I am satisfied that conditions can be imposed which will reduce the risk of the respondent committing further serious sexual offences to an acceptable level, notwithstanding the proximity of the Hostel to a school and day care centre. I am satisfied based on the medical evidence and the respondent's past performance while on supervised release, that the respondent will substantially comply with the standard conditions of the supervision order.
Conditions
In 2016, the respondent was released subject to stringent conditions designed to prevent the respondent committing further serious sexual offences, or from acting in a way which substantially increased the risk of his doing so without detection.
In my view, subject to one significant qualification, the conditions on which the respondent was previously released remain appropriate. That qualification concerns the conditions that, except in case of emergency, the respondent must not leave the Hostel without the prior approval of a CCO. I accept the evidence of Dr Wojnarowska and Dr Galloghly that confining the respondent to the Hostel is not necessary to manage the risk of the respondent reoffending, and that the unduly restrictive regime may have contributed to his previous breaches of conditions.
It therefore seems to me that the conditions previously imposed should be modified to allow the respondent a measure of liberty to leave the Hostel grounds, following a transitional period.
The plan Mr Jarvie described is for the respondent to be initially restricted from leaving the Hostel without permission during a transition period in which he is stabilised in his new accommodation. After that transitional period, the respondent would (like other patients at the Hostel) be able to leave the Hostel, so long as he advised his CCO or a nominated person of his plans. That appears to me to be a sensible general approach.
I formed the view that conditions framed in the following terms would appropriately address this issue:
YOU, [the respondent], must:
…
31Be subject to a curfew pursuant to s 19B of the [Act], such that you are to remain at and not leave [the Hostel] or your approved address:
(a)between 7am and 9am, and between 2pm and 4pm, on school days; and
(b)during such other periods (not exceeding 12 hours in any one day when aggregated with the periods set out in par (a) of this condition) as specified by a CCO from time to time,
unless you leave [the Hostel] or your approved address during those periods:
(c)to obtain urgent medical or dental treatment for you; or
(d)for the purpose of averting or minimising a serious risk of death or injury to you or to another person; or
(e)to obey an order issued under a written law (such as a summons) requiring your presence elsewhere; or
(f)for a purpose approved of by a CCO; or
(g)at the direction of a CCO;
32Except in circumstances referred to in condition 31(c) - (g), not leave [the Hostel] or your approved address without first informing a CCO, or a person nominated by a CCO, of your intention to leave, the place where you intend to go and the period during which you expect to be away;
Both parties were opposed to condition 31(a), submitting that the matter should be left to the discretion of the CCO. The State expressed a preference to avoid the need to apply to the court to amend the conditions should circumstances change.
However, given the proximity of the Hostel to a school and day care centre, it seemed to me to be imperative that the conditions of a supervised release order prevent the respondent from leaving the Hostel during the hours when children are likely to travel to and from school. Such a condition would prevent the respondent from having the opportunity to form a relationship with children who may travel to school alone in the vicinity of the Hostel. If circumstances change so that this concern ceases to be valid, then it is not unduly onerous for the respondent or Director General of the Department of Justice (acting with the consent of the DPP) to apply to vary the conditions under s 19 of the Act.
Paragraphs (c) - (g) of condition 31 reflect the permitted reasons for leaving a specified place during a curfew period set out in s 19B(5) of the Act. Those exceptions provide flexibility to a CCO, who may approve the respondent leaving the Hostel during the periods set out in condition 31(a) for certain purposes, or direct him to do so, under condition 31(f) and (g).
The requirement in condition 31(c), that the total curfew period not exceed 12 hours in any one day, gives effect to the requirement in s 19B(4) of the Act that:
The person is not to be required by the curfew to remain at a place for periods that amount to less than 2 or more than 12 hours in any one day.
Under s 19B(2) of the Act, a 'curfew' is a requirement that a person must remain at a specified place for specified periods, subject to s 19B(5) 'Specified' for these purposes means specified by a CCO from time to time.[20] Therefore, any requirement that the respondent remain at the Hostel will be a 'curfew' within the meaning of s 19B of the Act. At least in the circumstances of the present case, it seemed to me to be appropriate that the extent of the curfew conform to the requirements of s 19B(4) of the Act.
[20] Section 19B(3) of the Act.
These conditions will enable the plan referred to at [58] above to be implemented. A separate condition will require the respondent to spend each night at the Hostel (subject to being permitted to spend the night at a different address with the prior approval of the CCO). During the transitional period a curfew over a 12 hour period during the day (such as from 7.00 am to 7.00 pm) could be imposed by the CCO under condition 31(b). As the respondent settled, the extent of this curfew could be reduced, so that the respondent could leave the Hostel so long as he gives the notice required by condition 32.
Orders
For the above reasons, I rescinded the respondent's continuing detention order and made a supervision order in relation to him subject to conditions 31 and 32 and other conditions having the same effect as those previously imposed. It was common ground between the parties, and the recommendation of Dr Wojnarowska, that the period of the supervision order should be 10 years. I accepted that recommendation.
Those orders will take effect from 1 April 2019, which is the first Monday more than 21 days after the conclusion of this periodic review. Section 33(1)(b)(ii) requires that the order not take effect earlier than 21 days after the date on which the review is concluded. There were a number of practical reasons, explained in Mr Jarvie's evidence, why a transfer from prison to the Hostel would preferably occur at the beginning of the working week.
I note that, on 15 December 2015, Jenkins J made suppression orders restricting publication of the respondent's identity, or information identifying the location, suburb or identity of the Hostel. I consider it necessary, in the interests of the proper administration of the supervision order, for suppression orders of that kind to remain in place. However, I considered that the orders should be more narrowly expressed than the current suppression orders. When these reasons are published I shall make substituted suppression orders to the following effect:
(1)No person shall name the respondent as the person who is the subject of the supervision order made by the court on 7 March 2019 in any media available to the public.
(2)There shall be no publication outside of the court of any information that may lead to the disclosure in public, or may identify, the location, suburb or identity of the Hostel as the place where the respondent is residing pursuant to a supervision order, other than to the legal representatives of the parties, officers of the Department of Justice, officers of WA Police or other persons involved in the administration of the supervision order made by the court on 7 March 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell
13 MARCH 2019
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