The State of Western Australia v AA [No 4] - [2011] WASC 85

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- AA [No 4] [2011] WASC 85

CORAM: MURRAY J

HEARD: 18 MARCH 2011

DELIVERED : 31 MARCH 2011

FILE NO/S: MCS 33 of 2006

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
AA
Respondent

Catchwords:

Criminal law and procedure - Dangerous sexual offender - Application for review of continuing detention order - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 29, s 33

Result:

Application allowed
Court declines to rescind continuing detention order

Category: B

Representation:

Counsel:

Applicant: Mr J A Scholz
Respondent: Mr M R Gunning

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Gunning Young

Case(s) referred to in judgment(s):

Director of Public Prosecutions (WA) v AA [2010] WASC 59
The State of Western Australia v AA [No 1] [2006] WASC 279
The State of Western Australia v AA [No 2] [2007] WASC 129 (S)
The State of Western Australia v AA [No 3] [2009] WASC 74

MURRAY J: This matter has a history with which, over the years, I have had a substantial involvement. The respondent completed the service of a term of imprisonment for serious sexual offences, within the meaning of the Dangerous Sexual Offenders Act 2006 (WA), on 26 October 2006. By then an application had been made by the DPP for orders under s 17 of the Act, either for the indefinite detention of the respondent or that he be subjected to a supervision order in the community. I found the respondent to be a serious danger to the community and, on the evidence before me, chose to make a supervision order for a period of 7 years: The State of Western Australia v AA [No 1] [2006] WASC 279. That order was made with effect from 12 December 2006.
This remedy was unsuccessful. On 22 February 2007, the respondent was returned to custody pursuant to an arrest warrant issued under s 21 of the Act, on the ground of a reasonable suspicion that the respondent was likely to contravene the order by committing an imprisonable sexual offence. He had telephoned the police and said as much.
While I did not let the supervision order go lightly, I did hold, after careful consideration, that the supervision order should be discharged and a continuing detention order made: The State of Western Australia v AA [No 2] [2007] WASC 129 (S). The continuing detention order took effect on 28 November 2007.
Pursuant to s 29 of the Act, the DPP was obliged to apply to have that order reviewed as soon as practicable after a period of a year from the date upon which the order was made and took effect. That application was made and I heard it on 27 February 2009. For reasons which were delivered on 26 March 2009, I declined to rescind the continuing detention order, pursuant to s 33(2)(a) of the Act.
I held that the respondent remained a serious danger to the community and that, although progress had been made in his care and treatment, directed to making him fit to be released into the community, for reasons which I need not canvas here I recognised that the progress was slow and a supervision order could not be made: The State of Western Australia v AA [No 3] [2009] WASC 74.
The second annual review of the continuing detention order was made on 12 March 2010 by McKechnie J. Although his Honour accepted that ultimately a supervision order would be the most appropriate order, his Honour concluded that the only order open at that time was the continuing detention order which his Honour declined to rescind: Director of Public Prosecutions (WA) v AA [2010] WASC 59.
Because of its relevance to what has occurred since then, I cite [9] of his Honour's reasons in which he refers to recommendations made by the psychologist, Dr Caple, in the following terms:
I accept Dr Caple's recommendations as to a staged process progressing towards release and that [AA] should be prepared for release over a period of time involving a gradual reduction in security and exposure to less secure settings, particularly perhaps a transfer to Bunbury Prison and the need to acquire important life skills such as meal preparation and cooking, money management and leisure time management, the latter being an issue which tended to derail recent counselling sessions with Dr Caple when she raised what the respondent might do on a weekend for leisure. Clearly there is work to be done there.
At that stage, the respondent was an inmate of Casuarina Prison, where he had been for some time. On the hearing of this review I received in evidence an incident report. The incident described by the prison officer concerned (whose name has been masked in the copy of the document placed before me) was that on 3 October 2010, during the afternoon, he was approached AA, who said that he was going to kill himself. He was taken to a safe cell, where he could be kept under constant observation. Nothing further then occurred.
As will appear, it seems to me that this incident reflects a response by AA to the proposal that he should be moved to the Bunbury Regional Prison, where he could be exposed to more intensive treatment programs and to the relaxation of his security rating. I shall return to this aspect of the matter shortly.
In making the review, on the application of the DPP, I was required to have regard to the terms of s 33 of the Act, as follows:
33. The review
(1)When the court, on an application made under section 29 or 30, reviews a person’s detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2)The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a)expressly decline to rescind the order; or
(b)rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3)In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
I received in evidence, with the consent of both parties, the respondent's medical records maintained by the Department of Corrective Services for the period between 29 February 2010 and 9 February 2011. The respondent was taking antipsychotic medication on a regular basis, with occasional lapses. Generally speaking, the respondent was noted to be happy in prison, satisfied with his cleaning job, and comfortable with his existence, until, in September 2010, discussion commenced about his transfer to Bunbury Prison.
By early October, there was the incident the subject of the report of 3 October 2010, which appears to be part of a 'protest' involving refusal of medication and the expression of frustration by the respondent at mixed messages he was receiving as to whether he would go to Bunbury Prison at all and, if so, when.
But my impression is that difficulty of that kind soon settled, and the reports for the period ending with a consultation on 11 January 2011 show no sign of any difficulty. The transfer to Bunbury Regional Prison took place on 15 December 2010.
I was provided with a thorough report by Dr Hall, a consultant psychiatrist. In Dr Hall's opinion, the respondent suffers from schizophrenia and he continues to suffer from paedophilia, in respect of which he has treatment needs which are, as yet, unmet. He continues to manifest deviant sexual arousal, manifested by regular masturbation and mental images of prepubescent males. His intellectual capacity is described as borderline and, of course, he has been in prison for so long that he is now institutionalised.
The capacity to reintegrate him into the community in circumstances where he does not present a significant danger of the commission of sexual offences is challenging. He entirely lacks any social support from family members or otherwise in the community.
I accept Dr Hall's opinion that the respondent remains a serious danger to the community. As Dr Hall puts it, he is currently 'at high risk of reoffending sexually if not subject to a continuing detention or supervision order.'
Nonetheless, it is clear that slow progress is being made with the respondent in the task of not only treating his sexual deviance and his mental illness generally, but also in reducing his dependence upon the highly structured environment of the prison and by reducing his anxiety about living in the open community. It seems that the respondent has successfully managed the transition from high security to medium security upon his transfer to the Bunbury Regional Prison.
If he can successfully manage further relaxation of his security rating, he may be rendered fit to be released to reside in the relatively structured environment of psychiatric hostel accommodation in the community. In case the court should be minded to make a supervision order, Dr Hall provides some sensible observations about the features of such an order which might be suitable to the respondent's case. However, I accept the opinion that consideration of such an order is premature, and I need not discuss that matter further.
An important report, for my purposes, was that of Dr Caple, a forensic psychologist who has had ongoing involvement in the respondent's management and treatment. It is apparent from the report that this process has by no means been free of difficulty. It seems that the respondent only accepted with difficulty a transfer from Casuarina to the Bunbury Regional Prison.
However, with the expert assistance of Dr Caple and her colleagues, it seems that that transition has been successfully made and, apart from treatment of the respondent's mental illness, Dr Caple recommends continuing progression towards the appellant's transition into the community, a process in which it now appears the respondent will cooperate.
The idea is to expose him to gradual change to increase his confidence and ready him for placement in the community in a structured environment with appropriate support and features designed to meet his needs for an ordered and fulfilling lifestyle.
The investigation of how the matter should be progressed and how, when the respondent is ready for release into the community, the placement should be structured, is proceeding. I have read the report by the senior casework supervisor at the Bunbury Community Corrections Centre. He refers to the need to involve the respondent in a life skills program, learning about cooking and nutrition, budgeting and shopping. Such a program is available in the Bunbury Regional Prison to minimum security prisoners within the pre‑release unit.
There needs to be exploration, also, of how the respondent may be occupied and as to the employment which may be obtained. There will need to be many other features to be provided to structure his environment appropriately upon his release into the community. But it is too early, I accept, to be concerned with the concrete features of a program for his management in the community. I am satisfied that it would be appropriate, before that point is reached, to implement the plans for his progression within the prison which are discussed in the reports to which I have referred.
I accept that the respondent's progression towards release in the community would be facilitated, at the appropriate time, by the relaxation of his security rating to minimum security, allowing more freedom in the handling of the respondent.
Mr Smith, the Superintendent of the Bunbury Regional Prison, gave evidence before me, expressing concerns about the restrictions which might necessarily be imposed by the legal framework of prison rules governing the operation of the prison. It would be useful, I think, for me to express the view to which I have come that there is sufficient flexibility to enable appropriate decisions to be taken, according to the best judgment of the professionals involved, to enable the progression of the respondent's treatment and management program and the changes required to achieve his transition into the community.
Before doing so, however, I should record that, upon the conduct of the review of the respondent's detention, as I have indicated, I found that the respondent remains a serious danger to the community within the meaning of the Act, and I expressly declined to rescind the continuing detention order which has been operating now for some years.
There is an automatic review applied to that order on the application of the DPP on an annual basis under s 29 of the Act, but I repeat the interpretation, which I have previously expressed, that that section is concerned to provide the frequency within which a review must take place. There is, in my opinion, no impediment to the DPP applying to the court for the detention to be reviewed earlier than after a year, when it is thought to be appropriate to do so.
Further, I have previously expressed the view, which I now repeat, that the respondent, the person subject to the continuing detention order, may seek the leave of the court to apply for the detention to be reviewed if it is felt that there is evidence to support the conclusion that the continuing detention order should be rescinded and a supervision order made.
In my opinion, s 30 of the Act would allow that to happen at that time on the ground that, although by s 30(2) exceptional circumstances relating to the person the subject of the continuing detention order are required before leave may be granted, it would be a circumstance of that character that the offender has made such progress that his continuing detention is no longer required, but that adequate protection of the community could be provided by an appropriately conditioned supervision order.
As to the power to relax the respondent's security rating, when that is deemed appropriate by those within the prison who have the responsibility of his care and management, it is, of course, the case that the starting point is that the respondent is held in prison as a prisoner in accordance with the continuing detention order. That order must be given effect according to its terms: Prisons Act 1981 (WA), s 19.
However, that requirement committing the respondent to the custody of the Chief Executive Officer of the Department of Corrective Services does not, of itself, condition the security rating to be given to a prisoner such as the respondent and, indeed, the power of the Chief Executive Officer to provide an absence permit to further the rehabilitation of a prisoner and his successful reintegration into the community is expressly recognised by s 83(1) of the Prisons Act.
Such a permit may be appropriately conditioned and, when issued, it has effect, despite the order under which the prisoner was confined in prison: s 83A. Programs for the wellbeing and rehabilitation of prisoners are generally authorised and may be instituted pursuant to the powers contained in s 95 of the Prisons Act.
Within that broad framework there is the power to make rules internally within the Corrective Services Department for the proper governance and management of prisons and prisoners. I was referred to what is described as, 'Adult Custodial Rule 18'. Under that rule, a prisoner who is subject to the Dangerous Sexual Offenders Act is separately identified as a category of prisoner: s 7.5. There are procedures by which security ratings may be determined. A prisoner may be classified as having a minimum, medium or maximum security rating. The Bunbury Regional Prison is, generally, organised to accommodate prisoners who are classified as minimum or medium security, particularly where the offence or offences in question are sexual offences.
Express provision is made for a prisoner such as the respondent in two subrules, as follows:
9.3.7.5When the Supreme Court has issued an order for the prisoner's detention in custody past the expiry date of the prisoner's sentence, or where an offender (DSO) in the community is returned to custody under an order of the Supreme Court, the Superintendent will ensure that the prisoner is held in a closed (maximum or medium) setting.
9.3.7.6Prisoners subject to 9.3.7.5 may only be approved for minimum security rating and placement, where a release preparation plan (including any treatment program) that requires placement at minimum security has been approved by the Supreme Court.
To facilitate the process of approval for minimum security rating and placement, I approve the treatment program and release preparation plan described generally in the reports to which I have referred, made by Dr Hall, Dr Caple and Mr Barker, the senior casework supervisor at the Bunbury Community Corrections Centre. The plan requires minimum security placement at the appropriate time, when and if the respondent's progress towards his rehabilitation reaches the point of achievement which would make that placement appropriate.
I record that conclusion, while at the same time making it clear that I do not consider that r 18 may effectively limit the exercise of the statutory powers under the Prisons Act, to which I have referred.