The State of Western Australia v AA
[2006] WASC 279
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- AA [2006] WASC 279
CORAM: MURRAY J
HEARD: 5 SEPTEMBER, 12 OCTOBER, 10 NOVEMBER, 1 DECEMBER 2006
DELIVERED : 12 DECEMBER 2006
FILE NO/S: MCS 33 of 2006
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
AA
Respondent
Catchwords:
Criminal law and procedure - Dangerous Sexual Offenders Act 2006(WA) - Application for continuing detention order - Sentence of imprisonment already served - Prisoner a serious danger to the community - Supervision order made
Legislation:
Nil
Result:
Supervision order made for period of 7 years
Category: B
Representation:
Counsel:
Applicant: Mr K P Bates
Respondent: Mr M R Gunning
Solicitors:
Applicant: State Director of Public Prosecutions
Respondent: Gunning Young
Case(s) referred to in judgment(s):
The State of Western Australia v Latimer [2006] WASC 235
Case(s) also cited:
Nil
MURRAY J: This is an application for a continuing detention order under the Dangerous Sexual Offenders Act 2006 (WA). The application was made on 23 August.
The respondent was then serving an aggregate term of 3 years and 4 months imprisonment for an offence of indecent dealing with, and an offence of the sexual penetration of, a child between the age of 13 and 16 years. The sexual penetration of such a child is a crime: Criminal Code, s 321(2). In the circumstances of this case it was an offence punishable under s 321(7)(a) by imprisonment for 14 years. To indecently deal with such a child is a crime: Criminal Code, s 321(4). That offence is punishable, in the circumstances which applied in this case, under s 321(8)(a) by imprisonment for 7 years. Both offences were therefore serious sexual offences within the meaning of the Dangerous Sexual Offenders Act.
The term of imprisonment imposed was backdated to 26 June 2003, the day when the respondent was taken into custody. The sentences therefore expired on 26 October 2006. The preliminary hearing required by the Act was completed on 17 September 2006, upon which date, under s 14(1), I was satisfied that there were reasonable grounds for believing that I might find that the respondent is a serious danger to the community. Then and subsequently, I therefore ordered that two psychiatric reports, from Dr Hall and Dr Wynn Owen, should be obtained for use on the substantive hearing of the application as required by s 14(2). During that process, because the reports could not be provided and the hearing could not be completed before the expiration of the term of imprisonment, I made an order under s 14(2)(b), that the offender be detained in custody following the expiration of the term of imprisonment on 26 October.
The substantive hearing of the application was effectively concluded on 1 December 2006. At the conclusion of that hearing, I found that the respondent is a serious danger to the community within the meaning of s 7 of the Act. Because s 27 of the Act requires the Court to give detailed reasons for making a continuing detention order or a supervision order under the Act, and requires those reasons to be given at the time the order is made, I did not go on to make either form of order. I announced that I would make a supervision order on 12 December. The order was to contain conditions which, at the hearing of the application, I discussed with counsel. I sought from them a settled minute of orders in the terms discussed.
These then are my reasons for the order I now make.
Section 17 of the Act involves a two‑stage process in the determination of the application. The first is for the Court to find that an offender is a serious danger to the community within the meaning of s 7 of the Act. As to that, in The State of Western Australia v Latimer [2006] WASC 235, at [16], I said:
"In my view, in the context of this legislation where the question is the degree of risk of the commission of a serious sexual offence if the offender is not subject to a continuing detention order or supervision order, the risk would be found to be unacceptable if it was a real risk of substance, not merely a remote possibility."
The second stage of the process is for the Court to choose whether it must make an indefinite detention order under the Act, or whether it should make a supervision order for a defined period, containing the conditions enumerated in s 18. As to that part of the process, in Latimer at [21] ‑ [22], I said:
"In my opinion, the use of the word 'may' in this context does not import the exercise of a discretion to make such an order in either form or to make no order at all in respect of a person found to be a serious danger to the community. The word 'may' confers the power on the Court to make one or other order described by the section. By s 17(2), in deciding between the two, 'the paramount consideration is to be the need to ensure adequate protection of the community'. The same notion is therefore carried into the second phase of the exercise if the Court reaches the appropriate degree of satisfaction about the threshold question.
In my opinion, the Court would not make a continuing detention order if an adequate degree of protection of the community might be obtained by making a supervision order, having regard to the terms of such an order as described by s 18 of the Act. A supervision order is for a defined period."
Section 18 provides some standard reporting and supervision conditions and then, by s 18(2), permits the Court to choose other terms of the order which it thinks appropriate to ensure adequate protection of the community or for the rehabilitation, care or treatment of the offender. Those conditions may be amended from time to time on application under Pt 2 Div 3 of the Act. In Div 4 there are quite adequate provisions, if a breach of the order is reasonably anticipated or has occurred, by which the offender may be taken into custody and be brought again before the Court, which may amend the conditions of the supervision order or, if satisfied that there is an unacceptable risk of the commission of a serious sexual offence at that time, the Court may order indefinite continuing detention. Otherwise, the supervision order will have effect according to its terms: s 26, and will therefore expire when the term of the order ends.
The respondent is a man aged 46 years of age. He is a single man who has siblings who are married and have children. He has virtually no contact with them. The only member of his immediate family with whom he has occasional contact is his father. The respondent has little support in the community.
He has a history of sexual offending. His first such offence, an indecent dealing with a child under the age of 14, brought him before the Perth Children's Court on 2 October 1979. The respondent was then aged 19. He was fined $200 and placed on a good behaviour bond for a period of a year. He had apparently no trouble completing the good behaviour bond, but in 1986 he commenced to offend again, although the offences were relatively minor and had no sexual connotations.
On 17 August 1988, however, he was sentenced in the Supreme Court for an offence of aggravated indecent assault and five offences of aggravated sexual assault. The offences had been committed between June 1986 and January 1988. They were aggravated because his victims were two nephews, aged about 6 and 9, respectively, when the offences commenced. The respondent was sentenced to 13 months imprisonment for the indecent assault, and for the sexual assaults he was sentenced to terms of 18 months imprisonment. Three of those terms were ordered to be served cumulatively upon the 13 month sentence. In the aggregate, therefore, the term imposed upon him was 5 years and 7 months imprisonment. Parole eligibility was ordered. Thereupon, under the sentencing regime provided by the Sentencing Act 1995 (WA), as it was at that time, his earliest eligibility date for parole would arrive after approximately 22 months imprisonment had been served.
However, that eligibility date was soon altered because on 26 August 1988 the respondent was dealt with by the District Court for an offence of receiving. He was sentenced to 12 months imprisonment to be served cumulatively on the existing term. The aggregate term therefore was 6 years and 7 months and his non‑parole period was, when calculated under the sentencing regime which then applied, 2 years and 4 months from 17 August 1988. His earliest eligibility date for release on parole, subject only to the capacity to administratively accelerate the date for a short period, was 17 December 1990. The parole period for an aggregate sentence of that length was 2 years. The respondent was released on parole on 4 December 1990, the parole period to expire on 4 December 1992. He served out the parole period and no breach proceedings were taken.
Nor did the respondent commit any further sexual offence during that period, but he did offend again, and on 26 August 1994, he was sentenced in the Supreme Court after pleading guilty to four offences of indecently dealing with a child under the age of 13 and three offences of sexually penetrating such a child. There were, in fact, two victims. They were a nephew and a niece, children aged 8 and 6 when the offences were committed, between November 1993 and January 1994, a year or so after the period of his parole had expired.
When sentencing the respondent on that occasion, Walsh J expressed the view that he posed a continuing risk to young children when free. It was an observation well‑supported by the evidence of his offending to that time. The respondent was sentenced to an aggregate term of 5 years and 5 months imprisonment, and again parole eligibility was ordered. Having regard to the total length of the term and the sentencing regime which then applied, his earliest eligibility date for parole would again arrive after approximately 22 months, and his parole period would be of the same duration. He would therefore become eligible for parole on or about 26 June 1996. The parole period, if granted then, would expire on about 26 April 1998.
In fact, it appears that his release on parole was deferred by the Parole Board and he was not released on parole until 15 September 1997. The parole period was a short one, expiring on 29 January 1998, barely sufficient, I would have thought, to accomplish any process of transition into the community, particularly as, having regard to his mental state at the time, the respondent appears to have spent this time substantially as an inmate of Graylands Hospital. Again, however, it can be seen that the offences for which the respondent was sentenced on 26 August 1994 were committed a little under 6 years after the earlier offending ceased, in similar circumstances of the victims' close exposure to the respondent while he lived in the home of their parents, one of whom was his sister.
The respondent has long struggled with mental health issues, which I will discuss in more detail in due course, but having completed this second period of parole, the respondent remained at liberty in the community without committing any offence until the middle of 2003. In the early part of this period he had some mental health treatment, but his last hospitalisation (his hospitalisation was usually of a crisis character) was in January 2000.
5½ years later, on 25 June 2003, and so about 9½ years after his previous offending, the respondent committed two sexual offences against the one victim. One was the offence of indecently dealing with a child between the ages of 13 and 16 years, and the other was the offence of sexual penetration of that child, which offences I mentioned at the commencement of these reasons. At the time of this offending, the respondent was living in a hostel in Kalgoorlie. The victim of his offences was a male child of 14 years of age, who was also a resident in the same hostel. The respondent befriended him and then offended against him. It is not absolutely clear to me whether the respondent made friends with the child for the purpose of grooming him to the point of the commission of the offences, or whether those offences were committed in the context of genuine friendship, but committed they were, and on 26 November 2003, the respondent again found himself before Heenan J in this Court for sentence. In his remarks upon passing sentence, his Honour noted the evidence of the danger that the respondent would sexually offend, in a serious way, if in the community without supervision.
By this time, the Sentencing Act had been amended, with effect from 31 August 2003, to introduce a new sentencing regime, the effect of which was to reduce the terms imposed by a third, from those that would formerly have been considered to have been appropriate for the offences in question. Heenan J passed sentences aggregating 3 years and 4 months imprisonment, backdated to 26 June 2003, and again a parole eligibility order was made. Under this system, the offender becomes eligible for parole after serving half the term, a period 20 months, and the parole period will be of the same length. He might, therefore, have been released on parole on or about 26 February 2005, the parole period to expire on 26 October 2006. As I have already observed, on this occasion parole was denied, and it is clear that that was done because the respondent was assessed to present a high risk of reoffending.
There were two psychiatric reports tendered before me, as exhibits D and E, respectively, which had been tendered in evidence before Heenan J. The first is a report by a consultant psychiatrist, Dr Wu. Dr Wu reported that the respondent suffered from schizophrenia, which would require intensive management in the community. It was thought that the best prospect of preventing reoffending lay in ensuring that he continued with medication for the schizophrenia, and with Androcur, an antilibidinal medication. It would be important, Dr Wu thought, to have mechanisms in place to ensure that that continued after the respondent was released into the community, when he presented a high risk of reoffending. There would need to be referral to the State Community Mental Health Services, in particular the State Forensic Mental Health Services, and there would need to be close supervision by a community corrections officer.
The other report available to Heenan J which was tendered in evidence before me, was a report of a consultant forensic psychiatrist, Dr Pullela. He confirmed the diagnosis of chronic undifferentiated schizophrenia, controlled by antipsychotic and antidepressant medication. Dr Pullela added that the respondent had an additional sexual disorder, paedophilia, which was being dealt with by the medication, Androcur, in an effort to reduce his sex drive. As to his sexual offending, Dr Pullela said that although the respondent expressed a degree of remorse, he lacked victim empathy.
The respondent readily acknowledged that he found it difficult to control his actions. He described himself as being an impulsive sexual offender. He thought he ought to be kept in prison for the rest of his life, as he seemed to be unable to cope with the stress of living in the community, an example, Dr Pullela thought, of his attempts to deny responsibility for and to rationalise his offending behaviour. Dr Pullela noted that at times the respondent had not complied with the requirements to continue with his medication. Dr Pullela thought that the respondent was a danger to the community and he was likely to reoffend in similar fashion in the future.
Of the psychiatrists appointed by the Court to report on the respondent, Dr Hall gave evidence, during which he amplified upon the report he had provided. Dr Wynn Owen was, in the end, not required to give evidence in view of the terms of his report. Dr Wynn Owen had obviously undertaken a full assessment of the respondent. He thoroughly reviewed the respondent's psychiatric history, the various diagnoses which had been made, and the treatment, including hospitalisation, which had been undertaken from time to time. He discussed the respondent's social and family background. So far as his offending was concerned, Dr Wynn Owen considered that the respondent's comments were "marked by an apparent lack of remorse and a tendency to minimise and deflect responsibility".
After thorough examination, Dr Wynn Owen was unable to confirm the diagnosis of schizophrenia, but it matters little because in the doctor's opinion the respondent presented a high likelihood of reoffending within the next five years. He noted that the pattern of offending to date suggested that if he had the opportunity to offend the respondent would do so, a position made worse by the sporadic nature of his acceptance of medication. He said that during a period of 18 months after its prescription the respondent took the Androcur only occasionally, before ceasing it altogether.
Dr Wynn Owen thought that if a supervision order was made, close supervision would be required. The antilibidinal therapy should be recommenced. There should be ongoing monitoring of his mental state and a conscious effort to reduce external stressors from his living circumstances. Another attempt should be made to get the respondent to engage properly in a sex offender treatment program of the kind attempted in the past. But Dr Wynn Owen's prognosis was not optimistic. He expressed the opinion that, "even with these risk mitigation strategies in place, there is a high likelihood that [AA] will re‑offend".
So far as Dr Hall was concerned, again his report, which was tendered in evidence, is a comprehensive and useful document which he discussed in giving evidence. The thrust of his evidence was essentially the same as the other reporting psychiatrists. He confirmed the diagnosis of schizophrenia, describing it as a condition of moderate severity. In addition to the kind of matters to which I have briefly referred above, I noted other parts of Dr Hall's evidence which appeared to me to be of some significance. Some success was thought to have been achieved with a sexual offender treatment program undertaken in the prison setting in 2004, although, of course, in the context of a sentence which was served in full because of an unfavourable risk assessment when he became eligible for parole, causing parole to be denied.
Dr Hall also discussed the difficulty of managing the risk presented by the respondent, having regard to his attitude to his offending behaviour, his deflection of responsibility for it and the impulsive nature of his offending. Dr Hall thought the antilibidinal medication might be effective in reducing the respondent's sexual focus. But the respondent considered that he did not require the medication. He was determined to prevent further offending on his own, without professional assistance, and so at about the time when he successfully completed a sex offender treatment program for the intellectually disabled in prison, albeit in circumstances which caused those dealing with him at the time to think that the effort had been only a qualified success, he stopped taking the Androcur. It seemed, however, that after his care and treatment was taken over by the psychiatrist, Dr Schineanu, in 2006, and the treatment by administration of antipsychotic medication was varied, there had been some improvement.
The respondent's schizophrenia is not causally linked to his sexual offending, but in Dr Hall's opinion, if the schizophrenia can be effectively managed, that would improve the respondent's capacity to amend his attitudes and undertake sexual offender treatment programs more effectively. A regime which compels co‑operation with his treatment and requires him to undertake such programs would be highly desirable.
Again, Dr Hall considered that close supervision and monitoring of the respondent in the community would be essential. There would need to be a real effort to help him obtain employment, to fit the respondent into a supportive social network, and with the help of agencies like Outcare, to endeavour to ensure that he had a relatively stress‑free lifestyle. In short, Dr Hall said, he needed expert help to plan and adopt a structured lifestyle which would be calculated to support him in the community in circumstances which would reduce the opportunity for offending behaviour. Not only would the controls need to be within the Community Corrections Agency, but also by referral to the Community Forensic Mental Health Service. The program would need to be one which could be changed as the respondent's needs changed.
All of that was summarised by Dr Hall in his report, at p 20, 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 [AA]'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."
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. A community nurse would be assigned. Access to community groups would be fostered. The community corrections officer could act as, or appoint, a mentor to assist the respondent to establish an appropriate lifestyle. His contact with children could be restricted.
Apart from the community corrections reporting obligations, pursuant to s 18, it is recognised that the respondent is an offender to whom the Community Protection (Offender Reporting) Act 2004 (WA) applies. Part 3 of the Act provides its own reporting obligations which must be complied with. Dr Hall could see no difficulty in relation to the respondent's management, having regard to those additional reporting obligations. In addition, of course, the respondent is listed on the Community Protection Offender Register maintained under that Act, and on the national register known as the Australian National Child Sex Offender Register (ANCOR).
Having regard to those requirements, the community corrections officers who provided to the Court a report assessing the availability of suitable accommodation and making recommendations about the regime to be employed, sensibly involved a detective sergeant of police, described as an ANCOR officer, in the assessment process.
The community corrections officers' report shows that suitable accommodation can be made available with the assistance of Outcare. No commitment can be made in relation to the duration of that accommodation, but it is desirable that relatively permanent living circumstances be provided as soon as possible because it is obviously preferable that the respondent have assured accommodation, preferably, Dr Hall said, shared accommodation to provide company and limit loneliness. A paid mentor, funded by Community Justice Services, is proposed on an indefinite basis. An Outcare case worker has been identified, who would co‑ordinate the respondent's program with the agencies concerned to assist people to re‑enter the community upon their release from prison.
As to the recommended psychiatric management and treatment, including the administration of antilibidinal medication, I will require that to be provided and accepted by the respondent as directed. I note that sexual offender treatment on a one to one basis is proposed. I think that to be highly desirable. But I leave to the experts the judgment about the nature of the program which might be employed. In addition, substance abuse counselling is suggested, and I accept the desirability of that intervention. I agree that random testing and urinalysis should be undertaken.
I have settled the terms and conditions of the order in detail, with the assistance of counsel. They are incorporated in the order and will be served on the respondent with a copy of these reasons so that he may understand why I take the course of making a supervision order in his case.
Finally, I make the order for a period of 7 years from today. I do so because that will be a term well beyond the initial period following the respondent's release from prison, during which, as Dr Hall observed, the risk of his reoffending is relatively low. Further, if the regime or a variant of it, both of treatment and supervision, is successful in achieving the rehabilitation of the respondent, it will not only ensure adequate protection for the community during its currency, but indefinitely thereafter. On the other hand, as I have already mentioned, if what is proposed does not succeed in the sense that the time comes when contravention of the order is anticipated, the statutory provisions which enable the matter to be again brought before the Court may be employed, if necessary resulting in the respondent's indefinite detention at that time.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- AA [No 2] [2007] WASC 129 (S)
CORAM: MURRAY J
HEARD: 24 APRIL, 31 MAY 2007 & 28 NOVEMBER 2007
DELIVERED : 20 JUNE 2007
SUPPLEMENTARY
DECISION :28 NOVEMBER 2007
FILE NO/S: MCS 33 of 2006
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
AA
Respondent
Catchwords:
Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application on ground of apprehended contravention of supervision order - Likelihood of contravention - Whether supervision order to be amended or continuing detention order to be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 23
Result:
Supervision order discharged
Continuing detention order made
Category: B
Representation:
Counsel:
Applicant: Mr T B L Scutt
Respondent: Mr M R Gunning
Solicitors:
Applicant: State Director of Public Prosecutions
Respondent: Gunning Young
Case(s) referred to in judgment(s):
Western Australia v AA [2007] WASC 129
MURRAY J: This is an application made by the State Director of Public Prosecutions on behalf of the applicant under s 22 of the Dangerous Sexual Offenders Act 2006 (WA). The application is made following the apprehension and incarceration of the respondent upon a warrant issued under s 21 of the Act on the ground of a reasonable suspicion that Mr AA, who was subject to a supervision order, was likely to contravene a condition of the order. The particular condition relied upon was Condition 10, that Mr AA was not to commit any imprisonable sexual offence during the period of the order.
Initially, the application was heard on 24 April and 31 May 2007, following which I gave reasons: Western Australia v AA [2007] WASC 129, with which these reasons should be read. On 31 May, I adjourned the application, effectively so that the Community Corrections Office of the applicant could further investigate the capacity to create the living environment in the community which I had deemed to be necessary if Mr AA was to be released into the community again, pursuant to the terms of the supervision order which I originally made on 12 December 2006, which merely provided generally, by par 6, that the respondent should reside continuously at an address approved by a community corrections officer.
Having regard to the evidence then before me, in my reasons delivered on 20 June 2007 at [58] ‑ [60] I said:
Having regard to all that evidence and the history of the matter I turn to the questions posed for me by the Act, s 23. I am not persuaded on the balance of probabilities that the respondent is likely in the relevant sense to contravene the supervision order by committing an imprisonable sexual offence. Indeed, it seems to me that the way he telephoned 000 and the way he behaved on 16 February supports the view that he wished then to put himself in the position where he would not offend, putting the most serious construction on those events, ie – accepting that he genuinely did think that he might offend. I am not even persuaded of that because it seems to me that it is equally consistent with his behaviour that his loneliness was such and his dissatisfaction with his life out of prison was such that he used what occurred on 16 February as a mechanism to secure the aid of the authorities to improve his lot. I do not therefore get over the threshold question which would justify the making of an order, either by way of amendment of the supervision order or by way of a continuing detention order.
However, even had I been of the view that it was more probable than not that the respondent might contravene the order, I would not in the circumstances of this case have been further satisfied that there was an unacceptable risk that he would commit a serious sexual offence as defined by the Act if not indefinitely detained in custody. On the contrary, it seems to me that the evidence before me shows again that an adequate degree of protection for the community may be obtained by the implementation of the supervision order in the terms originally made. The conditions of the order were carefully devised to cover the areas relevant to his control, treatment and rehabilitation and were expressed in a form designed to enable them to be operated flexibly and to allow the responsible community corrections officer and the other authorities involved in handling the respondent's case to implement measures designed to meet the respondent's particular needs for treatment, counselling, appropriate living circumstances and meaningful occupation and social contact. At the same time I do not suggest that the respondent's case is other than complex and demanding of considerable effort and skill.
In the end therefore, I will dismiss the application presently before me but I will not do so until I am advised by the DPP, as I now require, that the suitable accommodation discussed above is available for the respondent to take up and generally that the arrangements for his treatment and management which I have discussed are this time effectively in place so that he can be seamlessly transferred from a prison environment to the open community.
What I regarded as 'suitable accommodation' on the evidence available to me, particularly that of the reporting community corrections officer as well as the psychiatric and psychological evidence, was structured accommodation which involved a degree of supervision by trained personnel, accommodation from which the respondent could journey to the various appointments which I otherwise required him to keep, in the pursuit of counselling and treatment directed to achieve his rehabilitation and his successful reassimilation into the general community in a state where he would not commit further serious sexual offences.
On 22 June 2007, shortly after my reasons were published, Mr Greble, the community corrections officer who had the conduct of the matter, reported to the court on a range of accommodation which was thought to be suitable. Some establishments had already indicated that they were not prepared to accommodate Mr AA, for a variety of reasons. One such establishment was that originally proposed on the breakdown of the initial accommodation arrangement which was put in place for Mr AA on his release from prison on 14 December 2006 pursuant to the terms of the supervision order. It was suggested to me, and I accepted, that this accommodation was of a suitable type.
I was told that they would take Mr AA, but I was warned that demand for places was high. I asked that an application for accommodation in that institution be made. A fortnight after that was done, the institution advised that it was not willing to accept Mr AA because, in the past when he was a resident there, he had not complied with the requirement that he take particular medication. He had shown a tendency to alcohol and/or drug dependency and he had been hostile and aggressive towards others. Nonetheless, as I say, Mr Greble had other prospects which he proposed to investigate.
On 20 November 2007, he reported that the investigation was at an end. It was unsuccessful.
An establishment in Midland was undergoing a rebuilding program. Accommodation was even more limited than usual, and there was a long waiting list. It was not prepared to consider an application on behalf of Mr AA until the renovations were complete and other prior applicants had been assessed. An establishment in Queens Park, ideal because of their acceptance of residents for long periods of time when that is required, were reported to be 'undecided about whether Mr AA would fit their criteria for admission, but there would not be a place for him in the program for many months in any case'.
Finally, a suitable establishment in Bassendean, the staff of which clearly made a thorough assessment as to whether Mr AA would fit their criteria for admission, reported that because of the debate to which I have previously referred, about whether the respondent has a diagnosable mental illness, he did not fit their criteria for admission and could not be accommodated. Had they been prepared to take him, the waiting period would have been over a year.
Mr Greble reports that in those circumstances he has come to the end of the road and can make no suggestion for the respondent's accommodation in a supported environment of a structured kind, with appropriate supervision, outside the prison setting. Mr Greble reports that there is no such accommodation for people like the respondent, provided by the State.
In the absence of available private accommodation of this kind, suitable for AA's needs, Mr Greble observed that the other necessary and appropriate features of the supervision order could not be put in place. I refer to the requirement for intensive supervision by a community corrections officer and Community Justice Services, the supervised administration of appropriate medication, attendance at appropriate counselling services which are available, the use of a mentor assigned to the case to offer wide‑ranging advice and assistance to enable AA's re‑integration into the community, utilisation of the services of Outcare, and otherwise obtaining a suitable occupation and the necessary human contact of an appropriate kind. All depends upon the respondent being able to be provided with appropriate, supervised and structured accommodation. It is in that regard that the effort has failed.
What then is the outcome in respect of the present application? My decision as to the approach generally to be taken to making an order under s 23 of the Act is expressed in my reasons delivered on 20 June 2007 at [25] ‑ [27]:
Turning to the final determination of the application I note that under s 23 the court is empowered to make any necessary amendment to the supervision order or to make any other order if it is satisfied that the offender is likely to contravene a condition of the order. Again, as in relation to s 17, I think the proper approach of the court would be to exercise that power if there is a real or substantial risk of contravention. That must be affirmatively found, although so far as matters of proof are concerned the statute further relaxes the burden by providing that the court may be satisfied 'on the balance of probabilities'. In other words it must be more probable than not that there is a likelihood, in the sense of a real or substantial risk, of contravention and here the contravention upon which the applicant focuses attention is the commission of a further imprisonable sexual offence.
The application is, however, that the supervision order should be discharged and a continuing detention order made. Section 23(b) provides that if that is to be done, in addition to the likelihood of contravention of the supervision order the court must also be satisfied that there is an unacceptable risk that unless the continuing detention order were made the respondent would commit a serious sexual offence. In this case it seems to me that, given the nature of the apprehended contravention, the test is the same as under s 17 and the court would find an unacceptable risk of the commission of a serious sexual offence if, as I said in Latimer, 'it was a real risk of substance, not merely a remote possibility'. But in this case of course the test is to be applied to resolve the question whether the supervision order provides adequate protection to the community or whether, to secure that, a continuing detention order must be made.
Having regard to the way s 23 is constructed I think the court in this connection ought to apply the standard of proof to the higher degree of probability for which s 7(2)(b) provides in the different context of that section. I take that view because the effect of making the order is to remove the respondent from the community and return him indefinitely to prison, although in a case such as this he has done nothing for which punishment is provided, but is being returned to prison for his 'control, care, or treatment'.
The evidence about that is different from that which was before me when I first heard this matter. It will be recalled that the evidence about the likelihood of contravention by the commission of a serious sexual offence was focused particularly on the events described in pars [14] ‑ [17] of my earlier judgment. I do not repeat the findings which I made at that time.
Since then and since his return to custody, first in Graylands Hospital and then in prison on 22 February 2007, a forensic psychologist employed in the Department of Corrective Services, Ms Caple, who knows the respondent, has been working with him in individual counselling sessions, the purpose of which has been to address the respondent's coping skills to support his re‑integration into the community and to assist him to develop realistic processes to prevent relapse and manage the risk of sexual offending which he presents.
I was provided with a report by Ms Caple, dated 12 November. It is clear from that document that the respondent's engagement in the treatment process has been variable. In fact, it seems to me, as Ms Caple reports, that the respondent does better in dealing with his problems if he does not appreciate that success in the treatment process will lead to his discharge into the community. He is anxious about leaving prison and about his future. He is thoroughly institutionalised. If he thinks that he may be released into the community, he tends not to do any effective work in dealing with the problems of perception and behaviour which have led to his serious sexual offending.
In the final analysis, Ms Caple reports that for the respondent in the community:
… supported accommodation and a structured daily routine remains a high priority. Mr [AA] 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.
Further, the supervision order I made in December last remains in appropriate terms. It may not be amended to achieve compliance and to secure the respondent's return to the community in circumstances which provide adequate protection against his further sexual offending. In terms of s 23(b) of the Act, there is therefore, I am satisfied, an unacceptable risk that the respondent would commit a serious sexual offence unless a continuing detention order is made.
In those circumstances, when the matter was before the court I had no alternative but to discharge the supervision order and make a continuing detention order pursuant to s 23(b) of the Act. There will be a review of the detention at the end of the period of a year from the date of my order, on 28 November. I take that to be the effect of s 29(2)(a) of the Act under which the period of a year commences:
… when the person is first in custody on a day on which the person would not have been in custody had the order not been made.
The period of custody must be that provided for by the making of the continuing detention order. The period will expire, in this case, on 28 November 2008. In the meantime, in my opinion, it is imperative that the work presently being undertaken, particularly by Ms Caple, with the respondent should be continued. I cannot accept the proposition that this offender, a man now aged 47, who has served the sentences for the offences which provided the trigger for these proceedings, is condemned to remain in prison for the rest of his life.
Finally, in parting with this case, I wish to say this. 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.
No such accommodation appears to be provided by the State, and that which is provided by private agencies is extremely limited. The demand for that accommodation is very substantial. It is therefore the case that the waiting lists are long, and it is all too easy to reject a difficult case such as that of this respondent when the agency in question can readily employ its services for the assistance of others who do not present the management difficulties that the respondent does.
It is not for the court to make any observation about the solution to this problem, but a solution must be found. Otherwise, this Act will operate to keep sexual offenders in prison indefinitely by default.
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