The State of Western Australia v Hart - [2008] WASC 43

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- HART [2008] WASC 43

CORAM: MURRAY J

HEARD: 5 NOVEMBER, 20 DECEMBER 2007, 20 MARCH 2008

DELIVERED : 20 MARCH 2008

PUBLISHED : 26 MARCH 2008

FILE NO/S: MCS 21 of 2007

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DARREN MORTON HART
Respondent

Catchwords:

Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention order - Sentence of imprisonment served - Prisoner a serious danger to the community - Supervision order would provide inadequate protection of the community - Continuing detention order made

Legislation:

Nil

Result:

Continuing detention order

Category: B

Representation:

Counsel:

Applicant: Mr P D Yovich & Mr M Mischin
Respondent: Mr D J McKenzie

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)

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

WA v Alvisse [2007] WASC 129
WA v Latimer [2006] WASC 235

MURRAY J: This application for orders under the Dangerous Sexual Offenders Act 2006 (WA), s 14 and s 17, was made on 8 June 2007.
It came on before Blaxell J for the preliminary hearing, under s 14 of the Act, on 26 June 2007. If the Court then, on the evidence before it, is satisfied that there are reasonable grounds for believing that the Court might, under s 7(1) of the Act, find that the offender is a serious danger to the community, then the Court makes that declaration and the procedures under the Act to program the matter to a full hearing are put in place. Blaxell J found that the Court might ultimately conclude that Mr Hart was a serious danger to the community under the meaning of the Act, and he therefore made the orders required. Those orders were for the respondent to be examined by two psychiatrists for the purpose of the preparation of reports which might be received in evidence at the final hearing, and his Honour ordered that the psychiatrists should liaise with the Department of Corrective Services to devise a management plan, if that was deemed appropriate, for Hart to be supervised in the community.
Although at that time Hart was still in the final stages of service of a number of sentences, it was known that they would expire on 14 September 2007. As it was inevitable that the evidence would not be finally prepared to inform a judge on the hearing of the application, Blaxell J ordered that Hart should be detained in custody until the application was finally heard and determined. He has remained in custody since then, effectively for a period of 6 months, until final orders were made.
I mention that matter for two reasons. In the first place, it seems to me to be highly undesirable that the respondent to such an application as this, brought on behalf of the State by the Director of Public Prosecutions, should be left in custody, in limbo so to speak, while the application is heard and pending its final determination. The respondent has served his sentence in full. Were it not for the remand order, he would be entitled to be at liberty in the community without fetter. The statutory scheme, however, under by s 14(2)(b)(i), is that the respondent may be detained in custody pending the final examination of the application, presumably upon the basis that he may ultimately be subjected to a continuing detention order.
In the meantime, there is no capacity, as I read the Act, to admit him to bail or otherwise to impose an enforceable requirement, if the respondent is allowed to be at liberty in the community, that he must not reoffend and must attend before the Court when the application is heard and when the Court proposes to make final orders. The Bail Act 1982 (WA) does not apply to a person detained under the Dangerous Sexual Offenders Act: s 5. The Act itself provides no other means by which an offender whose sentence has expired may be allowed to remain in the community and may be required to again surrender himself to custody upon the making of a continuing detention order. That seems to me to be an hiatus in the statutory scheme upon which I have previously commented: WA v Latimer [2006] WASC 235 [7]. I added to those observations and discussed a similar hiatus in the statutory scheme in relation to applications under s 22 of the Act in WA v Alvisse [2007] WASC 129 [20] ‑ [24]. Despite the suggestion there made that amendments were required to the statute, nothing appears to have been done.
I also mention the remand in custody for another reason. If, at the end of the substantive proceedings, the Court is obliged to make a continuing detention order, it has effect, under s 25, in accordance with its terms, 'from the time the order is made until rescinded by a further order of the Supreme Court'. There is no provision for such an order to be backdated to the time when the respondent commenced to be in custody solely by reason of the application under the Act after service of the sentence was concluded.
Under s 29, the Director of Public Prosecutions must apply to the Supreme Court for the detention under a continuing detention order to be reviewed. They are annual reviews. Section 29(2)(a) says the first of them is to be carried out:
as soon as practicable after the end of a period of 1 year commencing 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 effect of that, therefore, is that although the DPP's application may be made earlier, the review cannot be carried out until the continuing detention order has been in operation for a year. Again, there is no capacity to have the review earlier.
Under s 30, the offender may seek the leave of the Court to apply for that person's detention under the continuing detention order to be reviewed. Leave may only be granted if there are 'exceptional circumstances': s 30(2), but no doubt effective progress with treatment which may make available a good argument that the adequate protection of the community against the risk of reoffending no longer requires the person's continuing detention, might be regarded as an exceptional circumstance. However, the detained offender cannot apply for a review under any circumstances until after the detention has been first reviewed on the application of the DPP under s 29(2)(a) and therefore the offender can, under no circumstance, bring an application during the first year, to be heard upon the expiry of that period: s 30(3).
That was a material consideration, I thought, in this case when I refused an application by the respondent for a further adjournment of the application so that the capacity to provide suitable accommodation in the community could be further investigated. If at the end of the period of any such adjournment, it was the case that I finally concluded that a continuing detention order should be made, the successful application for an adjournment would merely have had the effect of further postponing the commencement of the period of detention and would therefore have further postponed the capacity to review that detention.
I turn to the substantive application, which first came before me for hearing on 5 November 2007. I received a book of evidence which I admitted under s 42(4) of the Act. It included the psychiatric reports and other expert reports, and I heard viva voce evidence. That process could not be completed on 5 November and the matter was adjourned to 20 December 2007 when further evidence was provided, including material which I had earlier intimated I would wish to see adduced to deal with material questions which, in my view, were not covered with sufficient clarity. Ultimately, the matter could not be concluded on that day because it remained necessary to further investigate the possibility of suitable residential accommodation being provided to the respondent so that he might be in a properly supervised residential environment if released into the community. A further adjournment was required, and the matter was finalised on 20 March 2008.
I have mentioned that the sentences being served by the respondent expired on 14 September 2007. Although the respondent is a young man of 37 years of age, he has a long criminal history involving not only offences of dishonesty, particularly breaking and entering offences, but also violent offences, particularly violent sexual offences. The degree of violence in the offending has steadily increased.
He was first before the Children's Court in Collie at the age of 15 when he was placed on probation for what was clearly a sexual assault committed upon a young female student in the bedroom of a house in Collie.
He was before the court again for an offence which would have constituted a breach of the probation, on 2 July 1986. On that occasion he broke and entered a house, sexually assaulted a female occupant, and when she screamed for help from other occupants, he repeatedly struck her about the head and body before running away. He was placed in State care.
He next appeared for serious sexual offences before the Supreme Court on 10 December 1986. He pleaded guilty to an offence of aggravated burglary, ie, breaking and entering a dwelling in the night time, and two offences of aggravated sexual assault committed upon a female occupant. He had been at the house earlier during the evening with others. When they left, he took the back door key, intending to return later to have sex with the woman. He did return and either threatened her with a knife or pretended to do so. He struck her in the mouth to stop her screaming and to cause her to submit. He committed further assaults upon her before penetrating her vaginally on two occasions.
Smith J sentenced the respondent, who was still a child, to indeterminate detention under a provision in the Criminal Code which was designed, not to lead to an extensive period of incarceration necessarily, but to enable a serious child offender to be kept separate from adult offenders while receiving training and remedial attention directed to securing the child's rehabilitation. When the authorities deemed the time to be right, that period of detention could be ended by successfully completing a period on parole. The respondent was released on parole, but the order was breached when various offences of dishonesty were committed and he was returned to custody in late 1988.
He remained in prison for a period, subject not only to the indeterminate imprisonment sentence, but also to sentences for other offences, including a 2‑year term imposed without parole in the District Court in Bunbury on 21 February 1989 for burglary, as that offence is traditionally described, ie, involving breaking and entering a dwelling house in the night time. He was again released on parole on 19 May 1992 for a period of 2 years, to end the indefinite imprisonment. But he continued to offend and was from time to time returned to prison before being again paroled.
His next serious offending brought him before the District Court in Perth on 26 November 1997. He had been in custody since 10 January 1997 when he was arrested and charged with an offence of deprivation of liberty, an offence of making threats to kill, and nine offences of aggravated sexual assault. The offences involved both vaginal and anal penetration of the victim by the respondent's penis. There were two offences of penile penetration of her mouth.
All the offences were committed against the same complainant, a young woman, in the early hours of the morning. In the vicinity of her home she was accosted by the respondent, taken to a nearby bush area, violently forced to the ground, and suffered threats to kill and the removal of her clothing. The penetrations to both vagina and anus were so savage, they caused injury and bleeding. She was punched and beaten and suffered a number of injuries, not only to the vagina and anus, but also to her heard and body. Apparently the victim was targeted by the respondent, who at that time was living in the next door unit.
It was evident to the sentencing judge that he had engaged in sexual offender treatment which had obviously failed, although it had been thought to have been successful. He clearly still had a tendency to violence of a serious kind and required anger management and sexual offending treatment. Although there was no psychiatric disorder as such, he was said to have presented the diagnostic criteria for what is called sexual sadism.
It was not surprising that on 26 November 1997 the respondent was sentenced by Yeats DCJ to an aggregate term of 16 years imprisonment with eligibility for parole. That sentence was made up of 4 years imprisonment for the deprivation of liberty and 12 years imprisonment, cumulative, for one of the offences of sexual assault. A further six such offences were also punished by 12 year sentences, but they were ordered to be served concurrently. Two rather lesser such offences received sentences of 5 years imprisonment, concurrent. The threats to kill resulted in a term of 4 years imprisonment, concurrent.
According to the sentencing regime which then applied under the Sentencing Act 1995 (WA), the respondent would have become eligible for parole after a period of 8 years and 8 months, that is, given the backdating of the term to 10 January 1997, on about 10 September 2005.
While in prison he commenced an intensive sex offender treatment program in 2004, but he was soon removed from the program because of his poor motivation to participate actively and because of his disruptive behaviour in group sessions. He was reassessed for that program and for an intensive violent offender treatment program in March, July and September 2005. I doubt that he would have been thought to be suitable for either program, given his apparent lack of motivation, but in any event he declined to participate, saying that he preferred not to seek to qualify himself for release on parole but to serve the full term of imprisonment. He did so, and as I have already observed, it expired on 14 September 2007.
There is a report dated 29 May 2007 from a psychologist in the Department of Corrective Services, a Ms Martin. The report is to the effect that, when tested, the respondent was shown to represent a high risk of sexual reoffending. The report concluded:
He has a significant history of similar violent sexual offending and other offences which would appear to have a sexual motivation. Despite previous treatment intervention, Mr Hart appears to have a number of distortions of attitudes which continue to place him at risk of reoffending when in the community. There is nothing to indicate a reduction in his risk level.
As I have mentioned, I received the reports and heard oral evidence of an extensive kind from two psychiatrists. The first was Dr Wynn‑Owen. In his report dated 21 October 2007, he expressed the conclusion that the respondent was at a high risk of reoffending sexually. He said:
Mr Hart's denial, rationalisation and/or minimisation of his offences and his unwillingness to participate in treatment suggest a lack of insight increasing risk, as, without insight he cannot address his offending behaviour. Of note also is the escalation in Mr Hart's violent offending behaviour over time, also the report that he may have diversified to present a risk to males. (a reference to a reported prison incident)
Dr Wynn‑Owen went on to note that the respondent had, since 1997, with some breaks in treatment, in other words effectively for the whole period of his incarceration, taken anti‑androgen or anti‑libidinal medication. At the same time he noted that he had avoided sex offender treatment program participation on the ground that being in a group situation with child sex offenders brought to the fore his own childhood abuse experiences and made his participation impossible. Dr Wynn‑Owen's final conclusion was expressed as follows:
In my opinion and on the basis of a combined clinical and actuarial assessment, Mr Hart presents a high risk of re‑offending. Of particular concern is the escalating violence demonstrated in his sexual offending behaviour, Mr Hart's failure to complete an Intensive Sex Offender Treatment Program, minimal insight into his offending behaviour. His ongoing apparent inability to control his anger and his apparent reliance on anti‑androgen therapy and relatives to avoid re‑offending are factors which reinforce the high risk he currently represents. They are also areas which should already have been addressed if his re‑offending risk were to be reduced.
In evidence, Dr Wynn‑Owen said that he could identify no treatment gain arising from the respondent's participation in counselling programs. He thought he was presently and for the foreseeable future, unlikely to be amenable to treatment. His risk of reoffending remained at a high level, and the anti‑androgen therapy had a limited effect, merely to reduce libido. Dr Wynn‑Owen was not persuaded that the respondent's offending behaviour resulted from unduly high libido, and so he thought there was no evidence to suggest that such medication might itself reduce his risk of reoffending upon release into the community. Essentially, the fact that he was not prepared to participate in treatment showed a lack of insight which made it impossible to reduce his risk of reoffending.
The second psychiatrist to give evidence before me was Dr Wojnarowska. Her report was dated 15 October 2007. It is lengthy and thorough, and she also considered the respondent to be at a high risk of reoffending by committing further serious sexual offences. I need to set out the summary of her conclusion provided in the report:
Several factors constitute the essence of Mr Hart's risk level. Firstly, there is lack of triggers which are specific to the offending situation and therefore his offending is actually unpredictable. His adherence to treatment with medication is yet to be tested in the community setting. He would also be subjected to unmonitored access to destabilising influences such as alcohol, cannabis, lack of employment and the presence of relatives with a history of violent offending. His impulsivity with impaired emotional regulation prevents him developing appropriate strategies. His high level of sexual deviance and personality characteristics which produce a score in the high range of psychopathy and include a lack of genuine remorse and guilt, a shallow effect, lack of empathy, failure to accept personal responsibility in a genuine way, poor behaviour controls, impulsivity and irresponsibility all point towards high risk. Some issues need to be highlighted in relation to the manageability of Mr Hart's risk. Firstly, the risk is high. It is difficult to predict, it is chronic over time and his offending is of a serious nature.
In giving evidence, she was taken to the views expressed by Dr Wynn‑Owen, and she agreed with them. Like Dr Wynn‑Owen she thought that it was correct to say that the respondent needed intensive sex offender treatment and intensive violent offender treatment before he was ready to be released, and that before he could undertaken those programs he needed to be brought to the point where his attitude was such that he might benefit from participation in them. She thought that the programs available in the community 'are not adequate and will not be adequate to Mr Hart's needs' (t 72 ‑ 73).
While in prison, the respondent has undertaken some individual counselling treatment although, as I have noted, he has refused to participate in the Intensive Sex Offender and Violent Offender Treatment Programs, which involve group counselling session. It would seem to me in those circumstances that if he would otherwise qualify for participation in such programs, it may be necessary, if treatment gains are to be made, to engage him individually with a qualified therapist. The psychologist Ms Smith provided a report, dated 15 November 2007, and gave evidence before me. She had undertaken work with the respondent following his non‑completion of the regular programs otherwise offered in the prison. She had been working with him in individual sessions since early 2006. It was a process which caused Dr Wynn‑Owen concern that Ms Smith might be at risk of an attack by the respondent, but nothing seems to have occurred.

Her counselling treatment program was of a general kind. She makes it clear that it was not specifically targeted towards addressing his sexual offending and violent behaviour, nor was it of itself a comprehensive treatment program. She expressed the view that it may be of assistance to him and his engagement in the process was commendable. However, she was aware that the respondent's 'intrinsic ego defence systems remain intact and it appears that he has a number of criminogenic needs that require attention'. In short, the counselling she has been doing has no doubt assisted the respondent to maintain an even keel during the period of his imprisonment, but it is not addressing his specific treatment needs which might reduce the risk of his sexual reoffending.
When I sat in December to deal with this matter, I heard evidence of incomplete investigation of the respondent's accommodation needs by the community justice section of the Department of Corrective Services. I received a report and heard evidence from the responsible community corrections officer, Ms Jelavic. As I have said, the investigation was at that time incomplete and I adjourned to permit further work to be done and a further report to be made.
I have now before me that report dated 11 March 2008. I accept its contents. It is clearly a sensible document and it reveals a proper investigation, although with a limited outcome. The Department concerned itself with the area in which Mr Hart indicated he would wish to live. It falls within the southern district of the Department for Housing and Works. Although a Homeswest application has been lodged, the advice received by the Department of Corrective Services is that there is a 5‑year waiting list for single accommodation in this zone. That is not, in any event, the preferred and necessary accommodation which ought to be provided to Mr Hart on his release from prison. He requires properly structured accommodation which provides a degree of qualified professional supervision.
An attempt was made to find such accommodation in establishments operated by Outcare. They considered him to be unsuitable, referring to his 'history of predatory behaviour and grooming of female prison staff who have worked with him in the past'.
Accommodation maintained by Outreach was investigated. However, their accommodation is in such demand and is so limited that they are not taking any referrals, particularly from persons likely to be released from prison within the next 6 months. They have only five group residences and can only accommodation one sex offender per residence.
It had been thought that the respondent might be accommodated with a sister, a Ms Cross, in Huntingdale, but she has custody of two nieces. They are small children, aged 6 months and 2 years. Although she has said she would hope to support the respondent generally in his endeavours to rehabilitate himself, she cannot provide accommodation. The Department for Child Protection would be concerned. They have indicated that they would probably remove the children from her if the respondent was to take up residence there. It is clear that such accommodation would be entirely unsuitable and there is no reason why the children should be disadvantaged to accommodate the respondent.
There is the possibility of accommodation for the respondent with another sister, Rosalie Hart, and her de facto partner, in Collie, which I think is the town that the respondent originally came from. However, she is caring for two grandchildren aged 7 and 4 years, and one of his victims lives in Collie. If he was there he would have very limited access to community based counselling services and treatment programs. This is clearly unsuitable accommodation.
However, the final point in relation to the respondent living with relatives is that in the view of the community corrections officers, supported by the expert professional opinion of the psychiatrists, the respondent requires suitable accommodation which will provide a proper level of professional supervision, a mentoring process which will enable the respondent to be assisted to check inappropriate thoughts which might increase the risk of further offending. It appears that such accommodation is simply unavailable and so there is a fundamental impediment, in practical terms, to the making of a supervision order.
However, in my view it is clear that there are more serious difficulties. Turning to the requirements of the Act, there is no doubt, having regard to the evidence which I have summarised, of the offending behaviour and the expert opinions provided to the Court, that the respondent is a serious danger to the community within the meaning of s 7 of the Act. The psychiatric reports and evidence, the psychological reports and evidence, the pattern of his offending behaviour, the limited efforts made towards his rehabilitation, the failure to properly participate in treatment programs, his criminal history and past offending all show, as s 7 requires, that I should be satisfied, 'that there is an unacceptable risk that, if [the respondent] were not subject to a continuing detention order or a supervision order, [the respondent] would commit a serious sexual offence', as defined by the Act.
As to the next question, whether the Court should order continuing detention or make a supervision order, again the decision is abundantly clear. By s 17(2), the paramount consideration is the need to ensure adequate protection of the community. I am satisfied that that cannot be achieved, at present, by the making of a supervision order. There was no point in adjourning the matter yet again for further investigation.
In an ideal world, there would be much more accommodation of an appropriate kind available for people such as the respondent to assist him to be returned to the community without presenting an unacceptable risk of further reoffending. But in the case of Mr Hart there are more fundamental problems. He must, in my opinion, if he is to be released, learn a lot more about what causes him to offend in a serious sexual manner and in a violent manner and how he may prevent himself from doing so. The anti‑androgen medication is not the sole answer. The counselling he has been receiving is not the answer. He must bring himself to the point of a wholehearted commitment to the Intensive Violent Offender and Sex Offender Treatment Programs which are only available in prison. He must demonstrate that he is suitable to undertake those programs and, undertaking them, he must wholeheartedly commit himself to successfully completing those treatment programs.
If he can do that, say in the next year before the first review of his indefinite detention, he will, in my opinion, greatly strengthen his claim to be released and this Court would be very willing, in those circumstances, and if it received appropriate advice, to devise an appropriately constructed supervision order to enable that to take place.