The State of Western Australia v Hart [No 2]
[2009] WASC 121
•29 APRIL 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HART [No 2] [2009] WASC 121
CORAM: HASLUCK J
HEARD: 29 APRIL 2009
DELIVERED : 29 APRIL 2009
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) - Custodial sentence completed - Review of continuing detention order - Application for adjournment refused - Assessment of risk as to whether person remains a serious danger to the community - Community supervision order inappropriate at current level of risk - Paramount consideration is the need to ensure adequate protection of the community - Finding that continuing detention order should not be rescinded
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 29, s 31, s 33(2)(a)
Result:
Continuing detention order not rescinded
Category: B
Representation:
Counsel:
Applicant: Mr D Dempster
Respondent: Mr D J McKenzie
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: David John McKenzie
Case(s) referred to in judgment(s):
State of Western Australia v Hart [2008] WASC 43
HASLUCK J:
The application
The Director of Public Prosecutions has applied for a review pursuant to certain provisions of the Dangerous Sexual Offenders Act 2006 (WA) in respect of the respondent, Darren Morton Hart.
The application is dated 14 January 2009 and is to this effect: the applicant applies for an order that the respondent's detention under the continuing detention order made by Murray J on 20 March 2008 be reviewed as soon as practicable after 20 March 2009 pursuant to s 29 and s 31 of the Act.
Background
The background to the matter is reflected in the judgment of Murray J dated 20 March 2008, being State of Western Australia v Hart [2008] WASC 43. His Honour noted that the respondent at that time was a young man of 37 years of age with a long criminal history involving not only offences of dishonesty but also violent offences, including particularly violent sexual offences.
More particularly, on 26 November 1997, the respondent was sentenced to an aggregate term of 16 years' imprisonment with eligibility for parole. This sentence was made up of 4 years' imprisonment for 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. A threat to kill offence resulted in a term of 4 years' imprisonment concurrent.
The respondent's term of imprisonment was due to expire on 14 September 2007. Prior to expiry of that term, an application was made for a detention order pursuant to provisions of the Act. It was pursuant to that application and the judgment I just mentioned that on 20 March 2008, Murray J made a detention order. In the course of doing so he noted that a review of the detention order would take place in due course pursuant to provisions of the Act.
Statutory provisions
Section 28 of the Dangerous Sexual Offenders Act provides that the purpose of pt 3 of the Act is to ensure that a person's detention under a continuing detention order is regularly reviewed. By s 29, while a person is subject to a continuing detention order the DPP must apply to the Supreme Court for the person's detention under the order to be reviewed as soon as practicable after the end of a period of one year, commencing when the person is first in custody on a day in which the person would not have been in custody had the order not been made.
By s 31, after an application is made the Court has to give directions for the hearing of the application. By s 32, the Chief Executive Officer must arrange for a person to be examined by two psychiatrists for the purpose of preparing reports to be used on a review.
By s 33(1), when the court reviews a person's detention 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.
However, by s 33(2), the court may, if it finds that the person subject to the order remains a serious danger to the community, either expressly decline to rescind the order or rescind the order and make an order subject to conditions that the court considers appropriate. The paramount consideration is the need to ensure adequate protection of the community.
It is pursuant to these provisions that the matter has come before the court at this hearing.
Procedural steps
On 29 January 2009, Blaxell J made orders for the annual review to occur on 29 April 2009 subject to the respondent being assessed by Dr Bryan Tanney and for the latter and the Department of Corrective Services to liaise regarding a management plan.
The evidentiary materials now before me include a book of evidentiary materials dated 17 April 2009, being described as 'book of material for the purpose of the first annual review of detention'. The book was marked as exhibit 1.
I have before me also marked as exhibit 2 an email communication of 23 April 2009 from Mary‑Anne Martin, Acting Principal Psychologist, Clinical Governance Unit, Department of Corrective Services WA.
The book of evidentiary materials includes various documents bearing upon the present situation of the respondent. I have before me a report from Dr Bryan Tanney dated 2 April 2009 which contains a full review of the respondent's present circumstances, having regard to the court history mentioned earlier, and events since the detention order was made by Murray J on 20 March 2008.
Dr Tanney notes that he reviewed the respondent personally at Hakea Prison on 23 March 2009 for two and a half hours. He describes the various reports and documents available to him, including the previous psychiatric reports of Dr Peter Wynn‑Owen and Dr Gosia Wojnarowska, being the reports principally relied on by Murray J when the original detention order was made.
The report of Dr Tanney is full and speaks for itself. There is no need for me to refer to that report in its entirety. However, importantly, the report contains a summary to this effect:
(1)Mr Hart remains a serious danger to the community for there is an unacceptable risk of further sexual reoffending.
(2)There has been a minimal deterioration in his risk management over the past year. Recommendations for his risk management in custody have not been implemented but Mr Hart's attitude and behaviour have also contributed to this disappointing outcome.
(3)Of potential dispositions afforded under the legislation, I am of the opinion that a further period of detention is required. This will afford suitable protection for the community from his ongoing unacceptable risk of sexual reoffending and deliver a program leading to the possibility of eventual community supervision.
(4)Recommendations for a highly structured and monitored treatment program that fulfils the expectations of the initial detention order of March 2008 are set forward.
(5)DSC and DSO support resources should be expected to prioritise the access of Mr Hart to these limited program needs, including the facilitation of inter‑institutional transfers as needed.
(6)Mr Hart should be made formally aware of the need for him to meaningfully and actively cooperate with a defined and limited number of program activities during the period before the next annual review under the legislation. This reiterates the advice of Murray J in transcript of initial proceedings.
The court has received, in addition to these evidentiary materials, a letter dated 24 April 2009 from the DPP to the effect that all documents in the book of evidentiary materials, together with the email I mentioned a moment ago dated 23 April 2009, can be tendered by consent. That was confirmed to me by both counsel at the hearing today.
It was agreed also in advance of the hearing and confirmed at the hearing that the DPP would call only one witness, being Dr Tarmala Caple, with the evidence being restricted to issues surrounding the availability and timing of treatment options and programmes for the respondent in the months ahead.
In that regard I note that the book of evidentiary materials includes a report dated 14 April 2009 in which Dr Caple provides an overview of Mr Hart's treatment since the initial detention order was made on 20 March 2008.
Dr Caple's report
Dr Caple's report is lengthy and I will therefore not traverse that report in its entirety. However, importantly, Dr Caple observes that the respondent has not participated in any intervention programmes. It was said in the report also that the respondent requires a group‑based, high intensity sex offender programme that can only be provided to him at Casuarina Prison. It was said in the report that he has reluctantly agreed to participate in the programme which is likely to commence mid year. I will say more about that in a moment.
Before leaving Dr Caple's report, it will be useful to touch on two passages which serve to cast further light upon the issues before me.
Dr Caple noted at page 4 of her report that there was a background to this matter which must be considered and she makes these observations:
Although Dr Tanney identified individual counselling for childhood sexual abuse and PTSD as pre-group therapy recommendations by the court and psychiatrists, the documentation provided to the dangerous sex offender psychology team did not reference this. Dr Wynn Owen and Dr Wojnarowska both made mention of Mr Hart's history of childhood sexual abuse, however they did not make explicit recommendations regarding treatment of it, nor did they diagnose post traumatic stress disorder.
The report goes on to note, as I indicated earlier in summary form, that during the past 12 months since Mr Hart was placed on a continuing detention order he has not participated in any intervention programmes because he was not sufficiently motivated in that regard.
At a later stage in the report, Dr Caple goes on to say this:
If Mr Hart remains on a continuing detention order, his intervention needs will continue to be case managed by the dangerous sex offender psychology team. As long as Mr Hart maintains his willingness to attend the program, he will maintain his booking on the 2009 intensive sex offender treatment program. As Mr Hart has recently moved to Casuarina Prison and he has agreed to participate in a program, a number of preparatory sessions can be held with Mr Hart to prepare him to enter the program. Despite Mr Hart's reluctance to enter a group-based program, individual counselling is not considered a substitute for a high intensity group. With regards to individual treatment, there is very limited research available to suggest that this format of treatment for sexual offenders assessed to be a high risk of re‑offending is effective.
Further evidence from Dr Caple
In the course of the hearing before me, Dr Caple provided further evidence with respect to some of the matters mentioned in her report. It will be useful to summarise some of the points that were brought out in the course of her evidence.
Dr Caple confirmed that she was familiar with the situation and circumstances of Mr Hart, as indicated by her written report. Importantly for present purposes, she had conferred with him in October of 2008.
At that time the respondent indicated that he was not minded to participate in a treatment programme in a group setting having regard to circumstances in his own background. Hence, he was not willing at that stage, as expressed to Dr Caple, to undertake the sex offenders treatment programme.
Dr Caple went on to say that she last interviewed Mr Hart on 19 February 2009 and discussed his willingness to undertake the sex offenders treatment programme. This gave rise to various exchanges between them in which he continued to display a degree of reluctance to be involved in such a programme. However, eventually he said that he was agreeable to proceeding with the proposed course of action. This marked a change from the position he had adopted in October, and could be regarded as an advance.
It seems that the sex offenders treatment programme is one that fills up promptly. This gave rise to a difficulty, but Dr Caple took it upon herself to find a place for Mr Hart in the 2009 list. She managed to do so, although that involved another prisoner having to be removed from the list. This outcome was achieved because, as noted earlier, he was now located at Casuarina.
It was therefore confirmed on 5 March 2009, as a consequence of Dr Caple emphasising the high priority of this case, that the respondent was able to undertake the proposed programme.
It was explained to me that the programme runs for about six months. The likelihood is that it will commence towards the end of June or possibly in early July of this year. Importantly, the programme is preceded by a preparatory assessment period to ascertain that those undertaking the programme are ready for it and that there are no security reasons why a person cannot be placed on a programme.
There is one matter that adds a degree of complexity to the proposed course of action. Dr Caple has become aware from what was said in Dr Tanney's report that there was possibly an issue of post traumatic stress disorder to be considered. As appears from Dr Caple's written report, this was not a matter to which attention was directed previously by the sex offender psychology team. It seems that this is a matter which will have to be addressed during the preparatory period of assessment. The likelihood is that a specialist in that field will be brought in to make the appropriate assessment.
This complicating factor means that although a position on the 2009 programme has been secured, there is a possibility, having regard to the issue just mentioned, that the respondent's participation in the programme might have to be postponed. This bears upon the application for an adjournment made by counsel for Mr Hart that I will come to shortly.
Under cross‑examination, Dr Caple drew attention to certain other matters. She emphasised that in her experience, which is considerable, there is merit in such a group‑based programme over and above that which can be found in individual counselling. This is because there is often support from those within the group. It is part of the aim of the preparatory assessment period, as I understand it, that some of these matters can be made clear to those proposing to undertake the programme.
In other words, as Dr Caple explained in the course of her evidence, there is a need for those undertaking the programme to define their goals and to be satisfied in their own minds that what is being done will enhance the prospect of eventual release on a supervision order or otherwise. The programme should not be regarded as something undertaken simply to comply with court orders or directions.
All of these matters will be addressed during the period of preparatory assessment.
I pause here to say that I am persuaded by what Dr Caple has said, having regard to her professional qualifications and experience, that there is indeed merit in the course of action proposed for Mr Hart. It is significant that he is now willing to undertake the proposed programme.
Further materials
In order to complete my review of the materials before me I must mention also that the book of evidentiary materials includes a CJS assessment report dated 7 April 2009. This report supports Dr Tanney's view that the respondent requires a stable environment to enable his re‑integration to society and to assist in managing his risk.
The report in question doubts the suitability of the accommodation suggested by the respondent if the detention order were rescinded or if a supervision order were made; that is to say, accommodation with the respondent's sister at an address in Collie.
The subject report canvasses various standard or guiding conditions concerning a supervision order but in the end clearly doubts that such an order is appropriate in the present case. Doubts are expressed about the suggested premises, with reference being made to the evidence of Sergeant Dent who describes a substantial history of antisocial behaviour at the premises in question.
As matters developed at the hearing, counsel for the respondent did not press for the making of a supervision order. Counsel rested his position essentially upon the application for an adjournment which I will come to in a moment.
Moreover, in the course of exchanges with me in the course of the hearing, counsel acknowledged that there are no persuasive evidentiary materials before me which would permit a finding to be made that the respondent, Mr Hart, is at a stage in which a supervision order of the kind contemplated by the legislation could be made. For this reason, and having regard to what is said below, that matter must be put to one side. The circumstances simply do not allow for the making of a supervision order at this stage.
The DPP's position
The position of the DPP, as foreshadowed by its letter to the court dated 17 April 2009 was that on this annual review the court should expressly decline to rescind the continuing detention order pursuant to s 33(2)(a) of the Act, having regard to matters of the kind that I have just referred to.
I note in passing, as mentioned earlier, that the effect of the provision in question is that when the court reviews a person's detention order, it must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
However, by s 33(2)(a), the court may, if it finds that the person subject to the order remains a serious danger to the community, expressly decline to rescind the order. In making a decision, the paramount consideration is the need to ensure adequate protection of the community.
It was said further on behalf of the DPP as applicant in the letter dated 17 April 2009, and by extension at the hearing, that if in fact the court was minded to release to supervision, the DPP as applicant would oppose release to the two addresses discussed in the CJS report as it was submitted that neither of the two addresses was suitable.
Application for an adjournment
It is against this background that I must now deal with the application for an adjournment made by counsel for the respondent.
Counsel for the respondent recognised, having regard to the evidence of Dr Caple, that steps are being taken which seem likely to lead to the respondent undertaking the sex offenders treatment programme as from late June onwards. There is therefore a prospect that some six months later, towards the end of this year, a position may emerge, if the course be completed successfully, that the respondent may be in a position to satisfy the court that the detention order should be rescinded, or possibly be replaced by a supervision order or some other order for release.
I am conscious that there is a legal issue as to whether the court has power to adjourn the hearing of an application of this kind. The submission made by counsel for the respondent was that s 29(2) enables the annual review to be carried out 'as soon as practicable' after the end of a period of one year commencing when the person is first in custody. If that provision is construed broadly, it is said, the special circumstances of a particular case, even if the delay was lengthy, might permit an adjournment to be made for an extended period; that is, in the circumstances of this case, until a further hearing, perhaps six months hence, after the respondent had completed the proposed programme.
I do not find it necessary in this hearing to determine as a matter of law whether there is a power to adjourn of the kind contended for. In my view, even if there be such a power, the circumstances of this case are not such as to justify an adjournment of the kind sought.
First, it follows from earlier discussion that there is a degree of ambiguity as to whether progress of the kind envisaged would actually have been made by October or November of this year; that is, there is the complicating factor I mentioned a moment ago concerning the assessment of some symptoms of post traumatic stress disorder. The assessment may bear upon the question as to whether the programme is actually undertaken by the respondent.
For this reason, of itself, it seems unsatisfactory to accede to an application for adjournment in circumstances of some uncertainty as to what the future holds.
Second, and of equal importance, is this consideration: the structure of the Act reflects a concern by the legislators that a sentenced prisoner who has served his term should not be held in custody for a period of indefinite duration. The effect of a detention order is to give rise to a degree of uncertainty as to when a person will actually be released. It is for this reason, and in response to the concern just mentioned, that the Act has been structured so as to require that there be an annual review of the circumstances of the offender.
It therefore seems to me that it is important for the review to be undertaken within the prescribed time frame. The grant of a lengthy adjournment would leave the matter in a most unsatisfactory state of limbo.
Moreover, I must take account of a point put to me by counsel for the DPP (and recognised by counsel on both sides apparently): the application for adjournment, if granted, could eventually lead to an undesirable outcome for the respondent. In other words, if, at the end of the adjournment period, the detention order is not rescinded, there will, in effect, be a continuance of the original detention order, but the period for a further annual review will then commence from the adjourned date. The respondent could be worse off than if no adjournment had been allowed.
For all these reasons I am not persuaded that it is appropriate for an adjournment of the kind sought to be granted. The application in that regard will be refused.
Conclusion
I must now move to the central point of today's hearing.
I have reviewed the evidence given by the expert witnesses. They have indicated, as appears in the summary of Dr Tanney's report I provided earlier, and in my description of Dr Caple's evidence, that in the opinion of these witnesses the respondent remains a serious danger to the community, for there is an unacceptable risk of sexual re‑offending.
It emerges from what I have said that, as matters stand, there is not a persuasive or sufficient basis at this stage for the making of a supervision order.
It emerges also from the evidence of Dr Caple that steps are on foot which may lead to a marked improvement in Mr Hart's situation by the undertaking of the sex offenders treatment programme at the end of June or early July 2009. There is a prospect that this will enhance the respondent's chance of some other order being made upon the occasion of a further annual review.
Having regard to these observations, I am of the view that the available evidence establishes that the respondent, Mr Hart, remains a serious danger to the community. There continues to be an unacceptable risk that if he were not subject to a continuing detention order, he might commit a serious sexual offence. The alternative of a supervision order is precluded as there has been very limited or no treatment gains to date. The evidence before me weighs decisively against release to the community under a supervision order at this stage.
Accordingly, I am of the view that the court must decline to rescind the continuing detention order made by Murray J on 20 March 2008. This means that the detention will continue.
However, the process of review required by the statutory provisions will be ongoing. In that regard, having regard to the evidentiary materials before me, it is clear that I am of the view that steps of the kind outlined by Dr Caple should be taken prior to the next review and I trust that the observations I have made in the course of these reasons for decision will be taken into account and acted upon.
Put shortly, the prospects of a favourable review of the detention order in due course will be enhanced by the respondent undertaking the sex offenders treatment programme that has been described in Dr Caple's report and in her evidence. This requires that there be also a positive engagement by the respondent in the preparatory assessment period which precedes the course.
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