The State of Western Australia v Latimer
[2007] WASC 272
•1 NOVEMBER 2007
THE STATE OF WESTERN AUSTRALIA -v- LATIMER [2007] WASC 272
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 272 | |
| Case No: | MCS:26/2006 | 1 NOVEMBER 2007 | |
| Coram: | McKECHNIE J | 31/10/07 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Detention order continued | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA EDWARD WILLIAM LATIMER |
Catchwords: | Criminal law Dangerous sexual offender Annual review Turns on own facts |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 33 |
Case References: | The State of Western Australia v Latimer [2006] WASC 235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
EDWARD WILLIAM LATIMER
Respondent
Catchwords:
Criminal law - Dangerous sexual offender - Annual review - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 33
Result:
Detention order continued
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr J A Scholz
Respondent : Mr D J McKenzie
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Legal Aid (WA)
Case(s) referred to in judgment(s):
The State of Western Australia v Latimer [2006] WASC 235
(Page 3)
1 McKECHNIE J: This is an application for first review under the Dangerous Sexual Offenders Act 2006 (WA), s 33, the respondent having been made the subject of an order for continuing detention, by Murray J last year, when he was found to be a serious danger to the community: The State of Western Australia v Latimer [2006] WASC 235.
2 One of the major issues in that judgment concerned the respondent's inability to accept his criminal and sexual offending behaviour which of course greatly inhibits any realistic opportunity for change and rehabilitation, and diminution of the risk to the community.
3 By consent, the prosecution has tendered four reports, including two new reports, from psychiatrists who had reported to Murray J last year.
4 All reports make mention of the fact that the respondent continues to fail to take responsibility for his criminal offending and this means that he has significant unaddressed treatment needs. The respondent, through counsel, does not take issue with the fact that he is a serious danger to the community and remains so.
5 I have no doubt that he is, within the meaning of the Act, a serious danger to the community who must be subject to some form of order. The reason I say that is because it seems to me there has been no or, alternatively glacial, progress in the respondent's mental attitude and acceptance since Murray J made the order.
6 It is significant also that in the face of the order, which has the effect of immediate imprisonment, and in the face of Murray J's remarks, the respondent maintains his denial of offending, which gives one little confidence that that will ever change. He is a man of mature years and, unless he changes, it will be very difficult to address his treatment needs. I am satisfied and I declare that the respondent remains a serious danger to the community.
7 The next question is what follows from that? There are effectively three choices: I may decline to rescind the detention order; I may make a supervision order; I may adjourn this matter for a period of months in order to see whether there is any change and, in particular, whether the possibility of accommodation, mainly through Outcare, might harden into something more definite.
8 It is fair to say that Mr McKenzie, who has realistically and ably argued the point, is not contending for a supervision order at this stage and has urged on me the possibility of an adjournment; something which
(Page 4)
- the DPP does not particularly oppose. The issue I am faced with, however, is whether an adjournment for a period of months is likely to have any practical effect.
9 The sex offender treatment report points out that the respondent has not been eligible for inclusion in the programmes because inclusion requires acknowledgment of offending behaviour. As the report writer says:
Engagement in a treatment program requires not only motivation to physically attend a group, but recognition of offending behaviour and a willingness to change this behaviour. That is why he remains ineligible.
10 This is a significant matter because I would not, on the present state of the materials, contemplate a supervision order until, at the very least, the respondent has completed a sex offender treatment programme. Because of his attitude, that is unlikely to happen in the near future even if there are vacancies; a matter about which I have no knowledge.
11 The community supervision assessment, I might say, is a very comprehensive and very useful document. It is clear that the writer of that report has made very significant efforts to try and find ways in which the respondent could be safely supervised in the community. Housing is a major issue, but of course only one, because it is not simply housing or counselling, but tangible progress in addressing the causes of his sexual offending is necessary before the respondent would cease to be such a risk that could justify his living in the community under some form of supervision.
12 It is the unfortunate fact that the respondent has effectively no community support whatever, despite his nomination of a couple of persons whom he thought might offer it.
13 The application for adjournment has been urged upon me, in part, for two reasons. There are more. But one is that, as recommended, there should be an IQ assessment (a general intellectual assessment) which has not occurred. There are suggestions that the accused is below normal IQ, but apparently that has not been tested.
14 Counsel particularly points to, as possibly the beginning of a change, a passage in Dr Hall's report where he said on the respondent's mental state examination in September:
In comparison to the last review, Mr Latimer appeared a little more realistic regarding his plans, which appeared to be influenced by the
(Page 5)
- outcome of the previous hearing. He was able to entertain some discussion around the effect of denying the offences versus admitting them. He otherwise had very poor insight into his psychological function. (8)
15 By itself that gives some indication that there might be some glimmer of a change, but, as Dr Hall concludes:
The essence of Mr Latimer's risk level lies in his denial of offending and therefore unaddressed treatment needs, his psychopathic personality structure, the impulsive and opportunistic nature of his offending, his lack of stable accommodation and the absence of any community ties or support.
16 He then goes on significantly to say:
If Mr Latimer were to admit his offending and thereby be eligible for participation in a sex offender treatment program, it is likely that such an admission would be insincere and it would not guarantee that participation in the treatment program would be of benefit. Furthermore, given his denial of offending, it is extremely unlikely that he would consent to more radical treatment such as hormonal anti-libidinal medication. (12)
17 The passage which I earlier read from page 8 of Dr Hall's report has, I think, to be qualified by that later passage.
18 It is, in the end, a question of judgment as to what best should be done, bearing in mind that the paramount consideration under the Act is the need to ensure adequate protection of the community. Protection of the community does not always inevitably require that a person be detained. If there is a prospect of rehabilitation then the protection of the community may be better assisted by that rehabilitation occurring within the community to which the person will return.
19 It is for that reason that I have seriously entertained the submission that this matter be adjourned for six months but in the end I have decided against it. The material presently before me does not indicate that an adjournment of six months would be likely, in any realistic way, to have any effect at all.
20 The essence of the problem remains that identified by Murray J a year ago and confirmed by the report writers: until there is a change in attitude, then the respondent is likely to remain a serious danger to the community and is likely to be resistant to any form of treatment which might then allow a calculated risk to be made to continue treatment within the community.
(Page 6)
21 That seems to me to override every other issue, and there are many significant ones, including accommodation. Therefore, I expressly decline to rescind the order which means that the detention will continue.
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