The State of Western Australia v Corbett [No 5] - [2017] WASC 115

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- CORBETT [No 5] [2017] WASC 115

CORAM: HALL J

HEARD: 19 DECEMBER 2016, 9 JANUARY, 27 FEBRUARY, 13 MARCH & 10 APRIL 2017

DELIVERED : 24 APRIL 2017

FILE NO/S: DSO 3 of 2012

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
TYRONE KINGSLEY CORBETT
Respondent

Catchwords:

Dangerous sexual offenders - Annual review - Whether supervision order would provide adequate protection to the community - Whether risk of reoffending can be adequately managed by a supervision order - Unavailability of suitable accommodation

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7A, s 17, s 23, s 33, s 40A

Result:

Continuing detention order affirmed

Category: B

Representation:

Counsel:

Applicant: Ms S Markham
Respondent: Ms M R Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers

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

Director of Public Prosecutions (WA) v Corbett [2012] WASC 438
Director of Public Prosecutions (WA) v Corbett [No 2] [2013] WASC 474
Director of Public Prosecutions (WA) v Corbett [No 3] [2014] WASC 442
Director of Public Prosecutions (WA) v Corbett [No 4] [2015] WASC 485
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
The State of Western Australia v Latimer [2006] WASC 235

HALL J: This is the second annual review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) on 25 November 2014: Director of Public Prosecutions (WA) v Corbett [No 3] [2014] WASC 442. The first annual review resulted in a finding that the continuing detention order could not be rescinded at that time: Director of Public Prosecutions (WA) v Corbett [No 4] [2015] WASC 485. The present application is in the name of the State as the DSO Act has now been amended to allow for applications to be made by the Director of Public Prosecutions (DPP) in the name of the State: s 7A DSO Act.
On the hearing of this review the issue was whether Mr Corbett could be released on a supervision order with conditions that would adequately protect the community from the risk that he would commit further serious sexual offences. At the first annual review the need for the development of an individual treatment plan was identified. There was also a lack of suitable accommodation at that time. In the last 12 months an individual treatment plan has been developed and implemented. Mr Corbett has made significant progress and the evidence established that management in the community is now a viable option. In these circumstances it was accepted by the State that release of Mr Corbett on a supervision order was appropriate, subject to suitable accommodation being available.
The hearing of this review commenced on 19 December 2016. It was necessary to adjourn the hearing to 9 January 2017 because inquiries in respect of leased accommodation were continuing. Over the following months there were two further adjournments. These adjournments were sought by Mr Corbett and not opposed by the State. They were sought because efforts by an officer of the Department of Corrective Services (DCS) to find accommodation were continuing. Mr Corbett's counsel said that any prejudice in delay was outweighed by the possibility that accommodation would be found. The alternative was that the continuing detention order would be likely to be affirmed.
Ultimately, and despite exhaustive efforts, suitable accommodation could not be found. Numerous applications for private rental tenancies were rejected, despite Mr Corbett's ability to pay above the advertised rent. Furthermore, whilst Mr Corbett has applied for public housing, there are no current vacancies and the waiting list is long. A program to provide accommodation to people in Mr Corbett's position is still being developed and is unlikely to produce accommodation in the area in which it is suitable for him to be released.
The end result is that a man who should be able to be released into the community under supervision cannot be. He will continue to be deprived of his liberty because no suitable accommodation can be found. As I have noted in other cases, accommodation is not merely a place to live, it is also an integral component in assessing whether the risk of re‑offending can be properly managed. The lack of accommodation in this case makes release on a supervision order impossible. However, this really begs the question of why accommodation is not available. Has enough been done by the executive to make provision for people like Mr Corbett? That is a question for others to answer, though some of the evidence at this hearing suggests that the answer is 'no'.

Object of this review

A person who has been detained in custody under the DSO Act must be the subject of a review. At the time this review commenced a review was required to be conducted annually. The DSO Act has now been amended in this regard, but that did not affect the present review.
The purpose of a review is to determine whether the person continues to be a serious danger to the community and, if so, whether the appropriate order is continued detention or release on supervision: s 33 DSO Act. If the person is no longer a serious danger to the community the detention order must be rescinded. If the person continues to be a danger consideration must be given to whether detention or release on supervision is appropriate. In respect of this latter decision, the paramount consideration is the need to ensure adequate protection of the community: s 33(3) DSO Act.
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for a past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community, then the continuing need for detention must be considered: Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357. It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community: Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 (Fiannaca J) [51].
It is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
The risk of reoffending may change over time. It may be affected by age, health, or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed by a supervision order. There is also the possibility that the risk may increase because of a failure of treatment or a relapse into deviant thinking.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, a mere welfare check: they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Decke [2009] WASC 312.

Background

On 16 November 2012, McKechnie J determined that Mr Corbett was a serious danger to the community and that he should be released on a supervision order with strict conditions: Director of Public Prosecutions (WA) v Corbett [2012] WASC 438. The facts of the offending were summarised in that decision. He was not immediately released as suitable accommodation only became available on 18 February 2013.
Mr Corbett was subsequently charged with 11 offences of contravening the conditions of the supervision order contrary to s 40A(1) of the DSO Act. He pleaded guilty to seven of the charges and was found guilty of a further two: Director of Public Prosecutions (WA) v Corbett [No 2] [2013] WASC 474. The offences including breaching a curfew condition, permitting other people to remain at his residence contrary to the directions of a community corrections officer, failing to attend a scheduled psychologist's counselling session and failing to attend a scheduled meeting with a community corrections officer. He was sentenced to a total effective sentence of 7 months' imprisonment for those offences.
The DPP did not seek revocation of the supervision order at that time. There was evidence that Mr Corbett had reflected on the need to comply with the conditions, had engaged well with his treating psychologist and was motivated to comply with the supervision order if released. In these circumstances, Corboy J amended the original supervision order pursuant to s 23 DSO Act.
Mr Corbett was released on the amended order on 24 March 2014. One of the amendments was to a condition requiring him not to be in the presence of females who are consuming alcohol. Corboy J amended this condition in order to make it more readily understandable by Mr Corbett.
On 16 April 2014, Mr Corbett again breached the conditions of the amended supervision order. He was charged with three offences contrary to s 40A(1) of the DSO Act. In addition, an application was made by the DPP for an order under s 23 that he be indefinitely detained. On 15 May 2014, he pleaded guilty to the three charges. The offences involved breach of a curfew condition, being in the presence of a female who he knew to be intoxicated and possessing and using alcohol. On 27 June 2014, he was sentenced to a total effective sentence of 8 months' imprisonment backdated to commence on 17 April 2014 when he first went into custody. The application under s 23 was not dealt with at that time as he sought that it be adjourned to a later date to allow him to engage with a psychologist whilst serving his sentence.
On 25 May 2014, I heard the s 23 application. I concluded that if Mr Corbett was again released on a supervision order there was a significant possibility at that time that he would not comply with the conditions of the order and that a breach could involve behaviour that increased the risk of further serious sexual offending. I was not satisfied that the community would be adequately protected if he were released on a supervision order at that time. Accordingly, I ordered that he be indefinitely detained in custody for control, care and treatment pursuant to s 23(1)(b) of the DSO Act: Director of Public Prosecutions (WA) v Corbett [No 3].
On 16 December 2015, I conducted the first annual review of the detention order. At that time there had been some counselling, though it had been interrupted by prison transfers. There was evidence that Mr Corbett had made some progress in regard to insight and motivation and that there was a developing and constructive relationship with a psychologist. However, he had significant unmet treatment needs and the counselling was at a relatively early stage. Furthermore, there was no suitable accommodation available at that time. I expressed the view that a more detailed and properly resourced individual treatment plan was necessary.

Evidence at this annual review

At the hearing of this review, the State tendered a book of materials. There was no objection to the tender. In addition to historic materials, the book included the following:
(1)prison records;
(2)DCS individual management plan dated 8 November 2016;
(3)medical records;
(4)a letter from Mission Australia regarding Mr Corbett's participation in alcohol and drug counselling;
(5)a psychiatric report by Dr Adam Brett dated 29 November 2016;
(6)a treatment progress report from Dr Dylan Galloghly, a clinical psychologist, dated 19 October 2016; and
(7)a community supervision assessment by Ms Lorraine Beadle, a senior community corrections officer with DCS, dated 6 December 2016.
The applicant called Dr Brett, Dr Galloghly and Ms Beadle to give oral evidence on 19 December 2016. At later adjourned hearings Ms Beadle provide updated reports and additional oral evidence regarding her continuing efforts to source accommodation.
Mr Corbett elected not to give any evidence on the application. However, on 10 April 2017, having issued witness summonses, his counsel called two witnesses on the accommodation issue. Those witnesses were Ms Astrid Calders, the Assistant Commissioner of Adult Community Corrections, DCS, and Mr Gregory Cash, the General Manager, service delivery, with the Housing Authority.

Prison and medical records

Over the last 12 months Mr Corbett has been detained at Roebourne Regional Prison. This was desirable as it enabled him to be closer to his family and country of origin.
There have been some reported prison incidents in the last 12 months, but none of a serious nature. He was the subject of a prison charge for using cannabis on 17 November 2015. He pleaded guilty to that charge and was sentenced to confinement in a punishment cell for five days. On another occasion he was rude to a prison officer after being refused equipment to complete a painting job. This incident resulted in the loss of single cell privilege and suspension from a peer support group for 30 days.
Mr Corbett is classified as a medium security prisoner and the individual management plan states that he is well adjusted and usually polite and respectful towards staff and other offenders. The incident of abusive behaviour towards a prison officer was an isolated occurrence and the management plan states that this behaviour was out of character for Mr Corbett. He is described in the plan as a quiet man who takes pride in assisting other indigenous prisoners with spiritual and cultural issues. He was appointed to a peer support team in recognition of his ability to assist other prisoners. As noted earlier, he was suspended from that role for a period, but was reinstated on 9 August 2016. The management plan states that Mr Corbett is proactive in assisting younger prisoners with prison routine and also provides assistance with writing letters and general support.
Since being in Roebourne Regional Prison, Mr Corbett has received visits from a friend and from his mother. He maintains regular telephone contact with his mother, an uncle and his sisters.

Psychiatric evidence - Dr Adam Brett

Dr Brett interviewed Mr Corbett at Roebourne Regional Prison on 25 November 2016. He reported that Mr Corbett was able to give an account of his sexual offending behaviour, though each offence was not gone through in minute detail. The focus was on Mr Corbett's understanding of his offending behaviour, risk factors associated with increased risk of offending and general discussion about the offences.
Dr Brett noted that Mr Corbett does not have a history of major mental illness and has never been managed by a public mental health service. There is no evidence that he has an enduring mental illness. Mr Corbett did report some general health issues, including anaemia and high blood pressure. The medical notes confirm that the anaemia was being investigated and that Mr Corbett is taking medication for high blood pressure.
Dr Brett noted that Mr Corbett has an extensive, significant and well documented history of substance abuse. Mr Corbett stated that he started using alcohol and cannabis at the age of 13. He described a pattern of alcohol abuse and dependence and appeared to have a good understanding of the deleterious effects of alcohol and its involvement in his offending history. He agreed that he had used cannabis in prison about a year ago. He said that this had occurred following the death of a nephew. He reported undertaking alcohol and drug counselling in prison. Dr Brett said that Mr Corbett appeared to have a positive relationship with his counsellor, appeared to be making good progress and could continue with the same counsellor if he was released into the community.
Mr Corbett provided Dr Brett with a personal history. He was born in Port Hedland and brought up in the Yandeyarra community. He was made a ward of the State at the age of 2 and had a 'pretty good' early childhood. However, he was sexually abused by men in the community between the ages of 11 and 13. He was threatened with physical violence if he told anyone. He eventually told his grandmother and the perpetrators were punished and removed from the community. His first language is Njamal and he can also speak other native languages. He enjoyed school and can read and write. He continued to year 10 but did not complete it. He does not have any vocational qualifications and has done intermittent work, mainly labouring. He has had significant contact with the criminal justice system from a young age.
Dr Brett applied actuarial tools as well as guided clinical judgment instruments to make an assessment of Mr Corbett's risk of reoffending. One of the tools is the predictor model, which was developed by West Australian researchers and measured on indigenous sexual offenders. This model focuses on three dynamic factors that have been linked to violent and sexual offending. The three factors are unrealistic long term goals, unfeasible release plans and poor coping skills prior to release.
Dr Brett reported that Mr Corbett appears to have reasonably realistic long term goals. He wants to stay out of prison and live in the community. He does not have any concrete plans as he stated that this was out of his control. He is aware of the possibility of accommodation in the community. He has had poor coping mechanisms in the past but these appear to be improving with treatment.
Dr Brett noted that Mr Corbett had a reasonable release plan. He was reserved about his plans as he did not want to get his hopes up. However, Dr Brett said that his plans appeared to be realistic.
Dr Brett noted that Mr Corbett has a poor history of supervision and had failed community placement previously. Mr Corbett stated that this was because he was out of country, away from his supports, was restricted in his movement and felt that he was harassed by the police sexual offender management squad. During his present detention he has formed a constructive relationship with his community corrections officer, his psychologist and a substance abuse counsellor. These same people will manage him if he is supervised in the community. Dr Brett is of the opinion that this continuity will help monitor and manage the risk of reoffending. Dr Brett said that the proposed supervision management plan is vastly different to previous plans and that it is to be hoped that with improved engagement and monitoring Mr Corbett would comply with an order. It is desirable that Mr Corbett have ongoing psychological treatment and substance abuse counselling. He should also be monitored by his community corrections officer on a continuing basis.

Dr Brett concluded his report by saying that Mr Corbett remains a significant risk of serious sexual offending if not subject to a continuing detention order or a supervision order. However, Dr Brett believes that a good management plan has been proposed as part of a supervision order and that this plan is more robust than previous plans. Dr Brett stated that the majority of issues raised at the last annual review had been addressed. In particular, Mr Corbett has had ongoing psychological counselling and has participated in substance abuse counselling and received a positive report. Dr Brett states that he believes the key to Mr Corbett remaining safe will be stable accommodation, abstinence from substances, ongoing therapy, close monitoring and a meaningful structured day. He believes that the current plan addresses these issues and that if Mr Corbett can comply with the plan his risk of serious sexual offending will be significantly reduced.

Treatment progress report - Dr Dylan Galloghly

Dr Galloghly is a clinical and forensic psychologist employed with the forensic psychological service of DCS. For the purposes of preparing the report for this review he interviewed Mr Corbett on 5 October 2016, and also consulted with Mr Corbett's treating psychologist, Ms Catherine Matringe.
I will only refer to treatment progress in the last 12 months. Mr Corbett's prior history of treatment was referred to in my judgment on the first annual review.
Individual counselling with Ms Matringe has continued since the 2015 annual review. Mr Corbett has now had a total of 18 sessions since the latter part of 2015. These sessions have generally occurred on a fortnightly basis. Counselling has focused on the following issues: abstinence from substance abuse, the causes of past breaches, stress management and problem solving. Strategies to manage himself in the community were frequently addressed. These included having better boundaries around female friends, arranging to meet family members in places where alcohol is not consumed and keeping himself occupied, including becoming more involved with his culture. Ms Matringe had reported that Mr Corbett had engaged well in counselling and that he was open in his disclosures. She said that he now appears more aware of the issues that led to him breaching his previous supervision order and what he needs to do differently in the future. She confirmed that she will continue to work with Mr Corbett if he is released into the community.
Dr Galloghly also reported that Mr Corbett has engaged in substance abuse counselling with a counsellor from Mission Australia since mid‑2016. The counsellor had reported that Mr Corbett had attended between six to eight sessions and had engaged well. This counselling had mainly focused on the challenges that Mr Corbett would face in the community and what supports he could access. The counselling also dealt with the situations that had led to previous breaches. The counsellor reported that Mr Corbett appeared to have a good understanding of the consequences of returning to substance abuse and that his primary motivation for remaining abstinent was not returning to prison.
Dr Galloghly concluded that Mr Corbett had made progress since he was last reviewed. His engagement with both Ms Matringe and the drug and alcohol counsellor has been positive and his prison behaviour indicates that he has learned to manage in a more pro‑social manner. He was able to articulate appropriate methods to deal with conflict and avoid antisocial influences. Dr Galloghly said that progress in this regard was evidenced by Mr Corbett's positive prison behaviour. Mr Corbett has developed insight into the factors that had led to previous breaches and understands the negative effects of alcohol and substance abuse. Mr Corbett currently has good professional support structures in place that can be transitioned into the community. Dr Galloghly notes that the presence of alcohol and substance abuse in Mr Corbett's peer group would always be an ongoing challenge for him and he will, therefore, benefit from continued professional support and by developing support networks through vocational and culturally appropriate pursuits.

The community supervision assessment report - Ms Lorraine Beadle

Ms Beadle is a senior community corrections officer with DCS. She prepared a community supervision assessment report for Mr Corbett dated 6 December 2016.
Mr Corbett has developed a positive and constructive relationship with Ms Beadle, who will continue to be his supervising community corrections officer if he is released into the community. She has been working with him since February 2015. This has involved meeting with him every two to four weeks.
Ms Beadle reported that Mr Corbett has generally received favourable reports both from his unit officers and employers at Roebourne Regional Prison and that he is viewed as a quiet, polite and respectful prisoner. He has been subject to both targeted and random urinalysis and breath testing for all illicit substances and alcohol over the past 12 months. The only positive tests for cannabis were referred to earlier. Mr Corbett has reported that over the past 12 months he has taken steps to remove himself from the company of prisoners who he suspects may be using illicit substances. His more recent engagement with Mission Australia on a fortnightly basis has consolidated his commitment to abstinence.
Ms Beadle reported that Mr Corbett has maintained regular telephone contact with immediate family members over the last 12 months. His mother has confirmed that she is willing to support him if he is released into the community and has identified other family supports. Ms Beadle met with the members of Mr Corbett's family on 27 September 2016 and confirmed their willingness to assist and support him upon his release. It was also confirmed that Mr Corbett would be eligible to apply to the Njamal Peoples Trust for assistance with securing finance for a rental bond and possible employment and training opportunities. An application was subsequently made to the trust and on 28 October 2016 advice was received that the trust was able to offer both financial assistance and practical support to access training and employment opportunities in the community if Mr Corbett is released.
Accommodation options have been limited in the past. However, with the availability of financial assistance, Ms Beadle was able to identify a number of suitable private rental properties. The properties in question were single occupancy and would be affordable on Mr Corbett's likely income. Several properties were available in the same area. As at the date of the initial hearing on 19 December 2016 tenancy applications could not be advanced because of the lack of necessary identification records for Mr Corbett. GPS tracking devices had been tested at the proposed properties and there is a very good signal there and in the surrounding areas.
When Mr Corbett was last released on a supervision order it was to accommodation in the Perth metropolitan area. One of the reasons he failed on this order was that he was isolated from family, friends and his country of origin. His progress since moving to Roebourne Regional Prison strongly indicated that release into a regional area closer to his country and support networks would afford him the best chance of success. This also reflected Mr Corbett's own preference.
Between 19 December 2016 and 10 April 2017, Ms Beadle made a very large number of applications for private rental accommodation for Mr Corbett. These applications were made at, or in some cases above, the advertised rental. As at 21 February 2017, a total of 15 applications had been made, of which eight were declined, four were leased to other tenants and three were still pending. No reasons were given by the relevant real estate agents for declining applications. By 24 February 2017, the three remaining applications had also been declined. Ms Beadle looked at other options, including caravan parks and Mr Corbett's family, but they were not viable. Due to a small rise in income, Mr Corbett was able to afford a higher rental, so Ms Beadle then proceeded to make new applications and to resubmit applications with a higher rental payment offer. Between 27 February 2017 and 9 March 2017, Ms Beadle made a further 21 applications, of which 12 were declined and 9 were still pending. By 30 March, the remaining applications had also been declined (as was an additional application).
It can be seen from this that, despite there being a significant number of private rental premises in the relevant regional area, extensive efforts to lease any of the accommodation has proved to be unsuccessful. The reasons for this are unknown. Mr Corbett had sufficient means to pay a bond and make rental payments. He would also have received support from counsellors and a community corrections officer. It would not be unreasonable to expect that his applications would have had a good chance of success. However, the fact is that the applications were all declined (or refused because the premises had been leased to another person) and no reasons for this were given.
Ms Beadle then looked at other possible options again. Accommodation with family members was unsuitable due to overcrowding and the deteriorating health of those family members or their unwillingness. Public housing was unavailable, both in Perth and the regional area. Mr Corbett is on the waiting list for public housing in the regional area concerned, but the present waiting period is two years. The designated service provider for Mr Corbett, Outcare, has some accommodation in Perth which is reserved for offenders on supervision orders, but it is limited in numbers and no premises are presently available.
Ms Beadle's efforts cannot be faulted. She has exhausted every presently available option for accommodation. The time, diligence and care she has taken in this regard is commendable.

Mr Gregory Cash

Mr Cash is the General Manager, service delivery, at the Housing Authority (the Authority). The Authority is the statutory authority responsible for managing public housing in Western Australia. The role of Mr Cash is to manage the delivery network of the Authority, including allocation of public housing to tenants. He has been in the role for 2 1/2 years.
Mr Cash said that he was aware that over several years there had been discussions between the Authority and DCS regarding the allocation of housing for persons released on supervision orders under the DSO Act. No formal arrangement was made, but in 2013 the Authority indicated that it could make up to six properties available, subject to the completion of a memorandum of understanding between the two agencies. No memorandum of understanding was ever finalised, though the reason for that was not clear. However, four houses were allocated in 2013 or 2014. Three of those were provided to UnitingCare West and one to Outcare, both service providers to DCS. Two other properties were 'compromised' when the proposed use became publicly known. No other alternative houses were provided.
Accordingly, since 2013, the public housing allocated for housing those persons on supervision orders has been limited to four. Mr Cash said that this was because of very high demand for public housing in the last five years. The general waiting list had peaked at around 24,000 applicants with around 3,000 listed for urgent priority housing. This had placed great strain on the existing stock of 36,000 dwellings. Any allocation of housing to specific purposes disadvantages those that are on the waiting list. Because of these competing pressures, it was likely that increasing the number of houses allocated to persons on supervision orders had been given a low priority. Mr Cash said that the Authority also had to be satisfied that appropriate supports were in place and needed more details from DCS in that regard. In any event, there was never any formal commitment to six houses.
Mr Cash said he was aware that DCS wanted the Authority to do more. One impediment to this was that there is no specific funding allocated to assist with the provision of housing to DSO offenders. This is unlike some other programs that run cooperatively with other government departments, such as the Disability Services Commission and the Mental Health Commission. For whatever reasons, DCS had not made a funding contribution to the provision of housing. In those circumstances, any decision to divert accommodation from the general pool could adversely affect other disadvantaged or vulnerable people on the waiting list.
The cost of adding a house to those reserved for DSO offenders is $300,000 ‑ $450,000 in capital costs and between $5,000 and $8,000 a year in maintenance. The maintenance costs would be higher in the Pilbara or Kimberley regions, rising to $10,000 ‑ $11,000.
The waiting list for public housing is divided into general and priority lists. To be eligible for the priority list a person must establish that they have an urgent housing need and no other viable options. Mr Corbett is presently on the general list. The waiting time varies depending on the region in which the person is seeking accommodation. For the region relevant to Mr Corbett, the present waiting time is seven years for people seeking single occupancy accommodation.
More recently there has been a renewed commitment to cooperation between the Authority and DCS. This has resulted in a commitment by the Authority to provide houses for parolees and DSO offenders. Tenders have been sought from not‑for‑profit service providers to manage these houses, of which six will be designated for use by DSO offenders. This will include the four already in use, thus increasing the number available by two. However, the tender process is not yet complete and it is not known when the two additional houses will become available, nor where they will be located.
Mr Cash was asked whether there was scope for a joint submission to Cabinet for funding to be allocated to expand the DSO supported accommodation program. He said that this could be done, but had not previously been the subject of any planning or discussion.

Ms Astrid Calders

Ms Calders is the Assistant Commissioner of Adult Community Corrections at the Department of Corrective Services. She is responsible for the management of community‑based offenders and the provision of advice and services to the courts and release authorities in regard to such offenders. This includes persons who are released on supervision orders under the DSO Act, who are managed by the Community Offender Monitoring Unit.
Ms Calders said that in late 2013 she worked with the Authority and the non‑governmental service providers, UnitingCare West and Outcare, to develop a program to provide accommodation for persons released on supervision orders. This was considered necessary because there was a shortage of houses available to such people and demand was increasing. There had also been increasing demand from this court for DCS to provide viable options for release of suitable DSO offenders. Other community housing projects were not suitable and public housing waiting lists were long.
The program developed in 2013 was known as the Dangerous Sexual Offenders Supported Accommodation Program. The object was to provide dedicated accommodation to those released on supervision orders for a 12‑month period, after which the intention was that the person would move on to more permanent accommodation. The Authority was to provide the houses and UnitingCare West and Outcare would manage the house and provide support and referral services. DCS provided funding to UnitingCare West and Outcare, but this did not cover the cost of the houses, which was borne by the Authority.
Ms Calders said that her understanding, and that of others at DCS, was that the Housing Authority had agreed in 2013 to provide six houses. The first four were provided but then the program 'ground to a halt' around mid‑2014. The four houses that were provided were all in the Perth metropolitan area. The Authority advised Ms Calders that no further houses would be provided. She said that the issue was raised many times, but questions were unanswered and no explanation was given by the Authority for the failure to provide the two further houses. She was unaware that two houses had been 'compromised' as suggested by Mr Cash.
Ms Calders said that eventually a meeting between her superior and Mr Cash was arranged. She was unsure of the date of this meeting, though it may have been as late as 2015. The outcome was that the Authority would continue to 'look at the issue' but there was no commitment to provide additional houses. More recently, however, an agreement has been reached to provide a total of six houses as part of the tender process relating to a larger project to provide houses and services to community‑based offenders.
Ms Calders said that, notwithstanding the difficulties in obtaining the necessary number of houses from 2013, there was no investigation of other possible sources of funding. A Cabinet funding submission was not considered because DCS viewed its business as being the management of offenders rather than being an owner or provider of housing.
Ms Calders said it would be an unusual departure from the core business of DCS for it to become the owner or head lessee of accommodation. However, she did accept that this was something that DCS may need to consider. She was aware that this had been done in other jurisdictions. In Victoria, the Corella Place facility in Ararat has been built on prison land and consists of 60 to 65 single‑occupancy apartments. This facility operates as a transition from prison to the community for offenders on supervision orders. Those persons residing at Corella Place are supervised and subject to electronic monitoring at all times. Ms Calders said that this was a very expensive option and far exceeds the cost of keeping a person in a prison.
Ms Calders was asked what plan DCS had for Mr Corbett's accommodation, given the difficulties that have been outlined. She said that the priority remained to find suitable accommodation in the preferred regional town. Efforts would include continuing to seek private rental accommodation and attempting to negotiate a solution with the Housing Authority. The possibility of applying for the priority waiting list would also be investigated.
Ms Calders was asked whether consideration could be given to cooperative arrangements with State and/or Federal bodies who provide services to Aboriginal people. This was raised in the context of indigenous offenders like Mr Corbett whose best option for release is to a regional area but who face the difficulty of limited services and public housing in those areas. Ms Calders said that this was something she would discuss with her superiors, but, again, this would be a departure from the established role of DCS.
Ms Calders did accept that the ideal was that no DSO offender who was otherwise suitable for release on supervision would be detained solely because of a lack of accommodation. However, whether the six houses to be provided under the new scheme will achieve that objective is unknown. Ms Calders said that each DSO offender had different requirements and this made it difficult to predict future accommodation needs.
The cost of keeping Mr Corbett in prison on a detention order was estimated to be $112,000 a year.
Ms Calders was asked about the conditions under which DSO offenders are detained. She confirmed that they are subject to all of the same conditions as serving prisoners. This includes lockdown time, the requirement to pay for telephone calls, the requirement to work for gratuities, security ratings, movement restrictions and limitations on visits. She said that she was not aware that any consideration had been given to reviewing these conditions.

Findings

Mr Corbett remains at a high risk of reoffending. The factors that contribute to that risk include antisocial personality traits and past misuse of drugs and alcohol. He continues to be a serious danger to the community. That conclusion was not contested. The real issue was whether he could be released on a supervision order.
Over the past 12 months, Mr Corbett has addressed a number of the factors that are relevant to the risk of his reoffending. In particular, he has engaged with regular counselling, which has given him insight into his risk factors and strategies for avoiding them. He has also engaged positively in drug and alcohol counselling. Whilst his treatment gains have yet to be tested in the community, his positive prison behaviour is a good indicator that his prospects of complying with a supervision order are good.
Mr Corbett has previously responded poorly to a supervision order. The reasons for that include release into an urban area where he had few supports or opportunities to engage in meaningful employment or cultural activities. However, all the indications are that a supervision order could now be better tailored to Mr Corbett's needs and that he has made significant progress since he was last released. Greatly improved professional and community supports are also available. These factors all contribute to a mitigation of the risk of reoffending.
One of the most significant factors that contributed to Mr Corbett's past sexual offending has been alcohol abuse. He has now been abstinent for many years and has expressed a strong commitment to remain so. He has undertaken counselling and the report from that counsellor has been positive. Importantly, the same counsellor is available to assist him in the community, both to conduct regularly counselling and on an ad hoc basis. Mr Corbett is very much aware that alcohol is an important risk factor and that any failure in regard to relevant conditions would likely lead to his immediate return to custody. This provides a strong incentive for compliance.
It should also be noted that Mr Corbett's 12 months in Roebourne Regional Prison has allowed him to maintain better contact with his family and other people from his country of origin. He has been able to speak his first language to others in the prison and is respected as an elder. The support that he has and will continue to receive from the Njamal Peoples Trust is also an important factor in this regard. There are good prospects for Mr Corbett to reconnect with his broader family and his culture and thereby make a positive contribution to the community.
The availability of suitable accommodation is an important consideration. Accommodation was not available at the 2015 hearing and that was a factor that weighed against release on a supervision order. Suitable accommodation is still unavailable.
Efforts to source private rental accommodation have been extensive but unsuccessful. The waiting time for public housing is long and it is unclear whether Mr Corbett would qualify for priority listing (or what effect that would have on the wait time for suitable accommodation). The program to provide transitional housing to DSO offenders is in a state of flux, but no houses are available presently under that program. Whilst two additional houses are likely to be added to that program, they will both be in Perth and when they will become available is uncertain.
This leads to a conclusion that is highly unsatisfactory. Mr Corbett is, as everyone agrees, suitable for release on a supervision order. The inability to identify suitable available accommodation is through no fault on his part. Suitable accommodation exists; it simply will not be made available to him, either because private owners do not want him as a tenant or because he does not have priority for public housing. This strongly suggests that there is as deficiency in the current administrative arrangements for managing DSO offenders. It is beyond the power of this court to order the executive to acquire accommodation or make public housing available to an individual. Furthermore, there are often competing demands for public resources. However, this case makes it plain that merely relying on existing sources of accommodation is not sufficient. At the very least, consideration needs to be given to other possible options, including purpose‑built accommodation (as in Victoria), DCS acquiring or leasing accommodation, negotiating an increased number of allocated public houses from the Housing Authority (including in regional areas) or entering into cooperative arrangements with other State and Federal authorities to secure accommodation.
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that a supervision order is presently a viable option. It was suggested by counsel for Mr Corbett that I could make a supervision order with a requirement that suitable accommodation be found. However, there are at least three problems with an order in those terms. Firstly, I am not satisfied that I have the power to order the executive to provide accommodation. Secondly, it would not be possible to be satisfied that the safety of the community would be assured unless the accommodation was known and had been assessed. Thirdly, given the efforts already made, it is far from clear that any suitable accommodation could be found.
There is another consequence that operates to Mr Corbett's detriment. Under the law as amended, the detention order will not be reviewed again for two years: s 29(2) DSO Act. That period has also been effectively extended by the delays that have occurred whilst efforts continued to find accommodation. In exceptional circumstances a detained person can seek an early review, but not before until at least one year has elapsed since the last review: s 30(3) DSO Act. There is, thus, little point in continuing to seek accommodation in the next 12 months and thereafter the ability to take advantage of any accommodation that became available would depend on how quickly an exceptional review could be brought and resolved. Mr Corbett may reach the top of the public housing waiting list, but be unable to take advantage of any accommodation offered. In the meantime, there must be a risk that the real progress Mr Corbett has made in the last 12 months will be lost and that he will lose hope and disengage with his counsellors. This cannot be in anyone's interests.
This case illustrates that the existing arrangements for accommodation of DSO offenders suitable for release on supervision orders are inadequate. More needs to be done. Some of the other options referred to in the evidence of Mr Cash and Ms Calders should be explored and, if viable, implemented. No doubt there are financial implications, but these must be weighed against the serious consequence of depriving a man of his liberty. As I have noted in another case, the value that a civilised society places upon personal liberty requires that something be done to improve and increase the accommodation options in cases such as this: Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178.

Conclusion

For the above reasons, I am satisfied that Mr Corbett remains a serious danger to the community and that a supervision order is not presently a viable option. The continuing detention order must be affirmed.
I also take this opportunity to note that continuing detention is for the purpose of control, care and treatment: s 17(1)(b) and s 4 DSO Act. A detainee is not a prisoner and is not in custody for the purposes of punishment. Whilst effective management of prisons may mean that detainees will sometimes have to be subject to the same rules and conditions as prisoners, that should not be the default position. Indeed, to treat detainees as being subject to the same restrictions and requirements as apply to prisoners may in some circumstances be contrary to the terms of the order that they be held for care and treatment.