The State of Western Australia v AA [No 2]
[2007] WASC 129 (S)
THE STATE OF WESTERN AUSTRALIA -v- ALVISSE [No 2] [2007] WASC 129 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 129 (S) | |
| Case No: | MCS:33/2006 | 24 APRIL, 31 MAY 2007 & 28 NOVEMBER 2007 | |
| Coram: | MURRAY J | 20/06/07 | |
| 27/11/07 | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Supervision order discharged Continuing detention order made | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA ANTHONY JOHN ALVISSE |
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 |
Case References: | Western Australia v Alvisse [2007] WASC 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
DECISION : 28 NOVEMBER 2007 FILE NO/S : MCS 33 of 2006 BETWEEN : THE STATE OF WESTERN AUSTRALIA
- Applicant
AND
ANTHONY JOHN ALVISSE
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
(Page 2)
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 Alvisse [2007] WASC 129
(Page 3)
1 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 Alvisse, 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 Alvisse was not to commit any imprisonable sexual offence during the period of the order.
2 Initially, the application was heard on 24 April and 31 May 2007, following which I gave reasons: Western Australia v Alvisse [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 Alvisse 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.
3 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
(Page 4)
- 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.
4 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.
5 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 Alvisse, 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 Alvisse 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.
6 I was told that they would take Mr Alvisse, but I was warned that demand for places was high. I asked that an application for
(Page 5)
- accommodation in that institution be made. A fortnight after that was done, the institution advised that it was not willing to accept Mr Alvisse 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.
7 On 20 November 2007, he reported that the investigation was at an end. It was unsuccessful.
8 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 Alvisse 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 Alvisse would fit their criteria for admission, but there would not be a place for him in the program for many months in any case'.
9 Finally, a suitable establishment in Bassendean, the staff of which clearly made a thorough assessment as to whether Mr Alvisse 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.
10 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.
11 In the absence of available private accommodation of this kind, suitable for Alvisse'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
(Page 6)
- the case to offer wide-ranging advice and assistance to enable Alvisse'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.
12 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'.
(Page 7)
13 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.
14 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.
15 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.
16 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 Alvisse 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.
17 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
(Page 8)
- incident in February, I think there is now established to be a real, substantial risk of contravention of the order.
18 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.
19 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.
20 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.
21 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.
22 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
(Page 9)
- readily employ its services for the assistance of others who do not present the management difficulties that the respondent does.
23 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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