The State of Western Australia v Latimer [No 10]
[2017] WASC 118
•21 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- LATIMER [No 10] [2017] WASC 118
CORAM: MARTINO J
HEARD: 20 APRIL 2017
DELIVERED : 20 APRIL 2017
PUBLISHED : 21 APRIL 2017
FILE NO/S: MCS 26 of 2006
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
EDWARD WILLIAM LATIMER
Respondent
Catchwords:
Dangerous sexual offenders review - Whether respondent is a serious danger to the community - Whether continuing detention order should be affirmed or rescinded.
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
Applicant: Mr M Ritter SC
Respondent: Mr D J McKenzie
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Latimer [No 3] [2010] WASC 109
Director of Public Prosecutions (WA) v Latimer [No 4] [2011] WASC 125
Director of Public Prosecutions (WA) v Latimer [No 5] [2012] WASC 188
Director of Public Prosecutions (WA) v Latimer [No 6] [2013] WASC 231
Director of Public Prosecutions (WA) v Latimer [No 7] [2014] WASC 229
Director of Public Prosecutions (WA) v Latimer [No 8] [2015] WASC 154
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Latimer [2007] WASC 272
The State of Western Australia v Latimer [No 2] [2009] WASC 132
MARTINO J: This is the hearing of an application pursuant to s 29 of the Dangerous Sexual Offenders Act 2006 (WA), the DSO Act, for review of the detention of the respondent, Mr Latimer, under the DSO Act. The application is brought by the Director of Public Prosecutions, the DPP, in the name of the State of Western Australia. The bringing of the application in that way is provided for by s 7A of the DSO Act.
An order for the continuing detention of Mr Latimer was first made on 30 October 2006: The State of Western Australia v Latimer [2006] WASC 235. There were seven annual reviews of Mr Latimer's detention: The State of Western Australia v Latimer [2007] WASC 272, The State of Western Australia v Latimer [No 2] [2009] WASC 132, Director of Public Prosecutions (WA) v Latimer [No 3] [2010] WASC 109, Director of Public Prosecutions (WA) v Latimer [No 4] [2011] WASC 125, Director of Public Prosecutions (WA) v Latimer [No 5] [2012] WASC 188, Director of Public Prosecutions (WA) v Latimer [No 6] [2013] WASC 231 and Director of Public Prosecutions (WA) v Latimer [No 7] [2014] WASC 229.
At the review in 2014 Mr Latimer was placed on a supervision order.
On 20 April 2015 Hall J found that Mr Latimer had contravened a condition of the supervision order and ordered pursuant to s 23(1)(b) of the DSO Act that Mr Latimer be detained in custody for an indefinite term for control, care or treatment: Director of Public Prosecutions (WA) v Latimer [No 8] [2015] WASC 154. The contravention of the order consisted of approaching two women he did not know, trying to engage them in conversation and propositioning them for sex. On 20 April 2016 Fiannaca J reviewed the continuing detention of Mr Latimer and declined to rescind the continuing detention order made by Hall J: Director of Public Prosecutions (WA) v Latimer [No 9] [2016] WASC 429.
On a review of a continuing detention order the court must rescind the order if it does not find the person subject to the order remains a serious danger to the community: s 33(1)(a). If the court finds that the person remains a serious danger to the community the court must either affirm the continuing detention order or, with effect from a date not earlier than 21 days after the day on which the review is concluded, rescind the continuing detention order and make a supervision order in relation to the person: s 33(1)(b). In making a decision under s 33(1)(b), the paramount consideration is the need to ensure adequate protection of the community: s 33(3).
Section 7(1) provides that before making a finding that a person is a serious danger to the community the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. Serious sexual offence is defined in s 3 as meaning a serious sexual offence as defined in s 106A of the Evidence Act 1906 (WA), an offence of conspiracy or incitement to commit such an offence or an offence of the law of the Commonwealth or another State or Territory that is prescribed to correspond to an offence as defined in s 106A of the Evidence Act or conspiracy or incitement to commit such an offence. Section 7(2) provides that the DPP has the onus of satisfying the court that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence and the court must be satisfied to a high degree of probability by acceptable and cogent evidence. The word 'unacceptable' connotes a balancing exercise, requiring the court to have regard to, amongst other things, the nature of the risk of a serious sexual offence with serious consequences and the likelihood of that risk coming to fruition, on the one hand, and the serious consequences for the offender on the other hand if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 at [46].
In deciding whether to find that a person is a serious danger to the community the court must have regard to the matters set out in s 7(3).
Mr Latimer's history of sexual offending
Mr Latimer's history of sexual offending was set out in detail in Fiannaca J's reasons in Director of Public Prosecutions (WA) v Latimer [No 9] at [27] ‑ [34].
In 1991 he committed indecent assault and wilful exposure offences against three women in public places. He was sentenced to imprisonment in 1993.
In 1995 he committed an offence of aggravated sexual penetration without consent at the Perth Train Station. The victim of that offence was a woman.
After his release from prison for that offence in 1999 he was convicted of wilful exposure.
In 2003 he committed an offence of attempted sexual penetration without consent by attempting to have anal sexual intercourse without consent with a male who was heavily intoxicated and had been asleep in a park in Northbridge. When he was unsuccessful, he walked off and masturbated.
Mr Latimer denies that he has committed the offences.
Mr Latimer's personal background
Mr Latimer is 58 years old. He has spent large periods of his life in institutions. He was placed in a boy's home in his adolescence. He has spent most of his adult life in prison. He is a single man with no children. His parents have died. He has two brothers living in Perth.
Mr Latimer was born prematurely and was hospitalized for a prolonged period after his birth. He suffered a head injury with loss of consciousness when he was 12 years old. In April 2012 Mr Latimer underwent neuropsychological assessment by Ms Mandy Vidovich who provided a report dated 19 April 2012. The results of the assessment revealed a striking profile of deficits with respect to his ability to process, interpret, integrate and manipulate information. There was generalised executive dysfunction. Marked impairment was apparent in his capacity to process faces and emotional expressions. His performances on tests of his expressive language skills and verbal memory were well within expectation and mostly of a low average to average quality. There were clear and consistent indications of non‑dominant hemisphere dysfunction.
In Ms Vidovich's opinion it is highly unlikely that Mr Latimer's profile is related to the head injury he suffered in his teenage years. It is more conceivable that he suffers from a non‑verbal learning disorder ‑ a childhood developmental learning disability which, together with the more generalised executive difficulties, have likely been exacerbated by his drinking behaviours during his adolescence, twenties and early thirties.
In Ms Vidovich's opinion individuals with a non‑verbal learning disorder can experience difficulty in cognitive, social and behavioural functioning. They can have a poor internalization of rules by which to monitor, plan and execute interpersonal interaction. Perspective and empathy can be compromised. Thinking and behaviour can appear to be rigid with a tendency to fall back on established, familiar patterns. Frustration can escalate quickly.
The existence of the non‑verbal learning disorder together with Mr Latimer's personality traits and issues of insight and denial presented challenges with respect to identifying suitably appropriate treatment programmes. While he has the cognitive ability to participate in treatment programmes, his willingness and ability to apply newly learnt information, strategies and behaviours needs to be closely monitored.
Evidence on this review
At the hearing of the application the DPP tendered a book of materials which contained records of the Department of Corrective Services concerning Mr Latimer, a psychiatric report by Dr Gosia Wojnarowska dated 8 April 2017, a treatment progress report by Ms Tania Wilson‑Brown, Senior Counselling Psychologist, dated 24 March 2017 and a Department of Corrective Services Community Supervision Assessment dated 10 April 2017.
The DPP called Dr Wojnarowska, Ms Wilson‑Brown and Ms Jane Henshall who is a Senior Community Corrections Officer with the Department of Corrective Services and was one of the persons who endorsed the Community Supervision Assessment dated 10 April 2017 as witnesses on the hearing of the application. Mr Latimer elected not to give or call evidence.
Mr Latimer's performance in prison
Evidence of Mr Latimer's performance in prison came from the Department of Corrective Services' records, the Department of Corrective Services Community Supervision Assessment and oral evidence from Ms Henshall.
A search of Mr Latimer's cell by prison staff on 9 August 2016 located a smoking implement and a drawing of a sexual nature. Mr Latimer was abusive to the staff during the search. He was charged with a minor prison offence of using insulting or threatening language. He pleaded guilty and received a verbal caution. Apart from that incident Mr Latimer has not come to the attention of prison staff for any adverse behaviour since his last review.
On 18 October 2016 Mr Latimer was transferred to Bunbury Regional Prison. After some hesitation Mr Latimer agreed to transfer to a self‑care unit which took place on 28 March 2017. However, on 6 April 2017 he approached the unit manager to say that he wished to return to the general population. That took place on 8 April 2017. Mr Latimer reported that he was having difficulties in self‑care and was not coping. However, he is open to returning to the self‑care unit when a placement becomes available.
Accommodation in the community
Mr Latimer has engaged with Uniting Care West under the Dangerous Sexual Offenders supported accommodation program and with the Government Housing Authority. The Department of Corrective Services has assisted and is continuing to assist Mr Latimer in his engagement with those bodies and has also made enquiry of other accommodation providers. That support and investigation is continuing. At the time of the hearing there is no suitable accommodation in the community available to Mr Latimer.
Mr Latimer has two brothers in the community. They are supportive of him. However they cannot provide him with accommodation.
Psychiatric evidence
When interviewed by Dr Wojnarowska Mr Latimer maintained his denials of sexual offending. However Dr Wojnarowska considered it important to note that Mr Latimer has made some progress since he was first convicted as he is now prepared to take some responsibility for his life and has expressed a basic plan to avoid getting in trouble with police again.
Since the hearing before Fiannaca J Mr Latimer has participated in individual counselling with his treating psychologist Mr David Summerton. Mr Latimer admitted to Dr Wojnarowska that his attitude at the beginning of that counselling was quite negative. Dr Wojnarowska has spoken to Mr Summerton. According to Mr Summerton Mr Latimer has made some progress in his engagement and his understanding of his weaknesses. The aims of the therapy have been to assist Mr Latimer with developing skills to lead a pro‑social life in the community. Mr Summerton has been optimistic regarding Mr Latimer's ongoing engagement in therapy. Mr Latimer's outstanding treatment needs are related to his emotional regulation, self‑awareness and social communication.
Mr Latimer told Dr Wojnarowska that he began using alcohol at the age of six, however Dr Wojnarowska noted that most reports suggested that his consumption of alcohol commenced at the age of 12. Mr Latimer acknowledged that alcohol was a factor in his general offending. He said that he had been sober for over 20 years following a diagnosis of cirrhosis of the liver.
Dr Wojnarowska concurred with previous psychiatric assessments of Mr Latimer that the primary diagnosis is antisocial personality disorder. There is also a history of alcohol abuse which is in remission while he is in custody and borderline intellectual functioning.
Dr Wojnarowska used Static‑99‑R, PCL‑R and RSVP (Risk Sexual Violence Protocol) as tools in her assessment of the risk of Mr Latimer committing offences of sexual violence, in addition to her clinical assessment.
The Static‑99‑R is designed to assess the long term potential for sexual recidivism among adult male sex offenders. The tool addresses historical risk factors and does not examine dynamic factors.
The PCL‑R assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The score obtained is an important component of other risk assessment tools including structural clinical guides. Structural clinical guides use both static and dynamic risk factors and require clinicians to consider factors which impact upon the assessment of risk.
Mr Latimer achieved a score of 9 using the Static‑99‑R tool. This places him in the high risk category. The recidivism rate of sexual offenders with the same score would be expected to be seven times higher than that of a typical sexual offender.
Mr Latimer achieved a high score on the antisocial behaviour facet of the PCL‑R, due to his history of offending, supervision failure, poor adjustment, lack of remorse, poor behavioural control and criminal versatility. The result is consistent with a diagnosis of antisocial personality disorder. The interpersonal features of psychopathy such as tendency to be manipulative and exploitative were weakly represented. Grandiose sense of self, impulsivity and sensation seeking were present. Dr Wojnarowska hopes that the insight which Mr Latimer is starting to develop in his individual treatment will serve as a buffer in his future interactions.
It is Dr Wojnarowska's opinion that Mr Latimer's denial of his sexual offences is associated with shame that he experiences when labelled as a sexual offender. There does appear to have been some progress in relation to attitudes that reflect supporting or condoning sexual violence, problems with self‑awareness and coping. Whether Mr Latimer is capable of self‑regulation when dealing with everyday stressors, including boredom, can only be tested when he is living in the community.
Mr Latimer has demonstrated some improvement in his therapeutic engagement with Mr Summerton. There has been objective evidence of improvement in this area demonstrated by a significant decrease in prison incidents with only one such incident in the last 12 months.
It is Dr Wojnarowska's opinion that it is demonstrated by Mr Latimer's past that his offending can escalate from a non‑contact sexual offence such as wilful exposure to sexual assault without warning, for example if he comes across a vulnerable person. His offending is opportunistic and frequently occurs in densely populated public areas. His offending behaviour is driven by his sexual need, which due to his interpersonal deficits, he has difficulty channelling into appropriate behaviour. It is Dr Wojnarowska's opinion that Mr Latimer's risk of sexual reoffending remains high and is associated with his high risk of generalist recidivism, the presence of antisocial personality, psychopathic traits and major interpersonal deficits. His management in the community would be challenging due to his propensity not to adhere to orders and his institutionalisation. In the last year some gains have been made and Dr Wojnarowska expects that with the same level of engagement and motivation Mr Latimer will continue to make progress. However it is Dr Wojnarowska's impression that Mr Latimer is ambivalent about the prospects of being released and this may be an impediment to his successful transition to the community at this time.
For these reasons it is Dr Wojnarowska's opinion that Mr Latimer continues to be at high risk of sexual reoffending if not subject to a continuing detention order or a supervision order. His treatment needs continue to be substantial. In Dr Wojnarowska's opinion those treatment needs are to assist him in further developing coping skills and managing stressful situations and his sexuality.
Psychological evidence
Ms Wilson‑Brown noted that Mr Latimer has participated in 20 counselling sessions with Mr Summerton. Mr Summerton described Mr Latimer as engaging well in counselling. The counselling sessions have focused on high risk situations. Because Mr Latimer continues to deny his offending Mr Summerton formulated scenarios that are likely to result in negative consequences without focusing on the details of Mr Latimer's previous offending. Mr Latimer demonstrates some understanding of the factors that led to his offending.
It is Ms Wilson‑Brown's opinion that Mr Latimer appears to have a constructive therapeutic relationship with Mr Summerton. Mr Latimer is a motivated and active participant in that counselling. He appears to have made improvements in his awareness of high risk situations in the community.
Mr Latimer was able to identify feelings of shame in relation to his offending history. It is Ms Wilson‑Brown's opinion that this continuing experience of shame underpins his denial of his offending. Any shift in his position remains unlikely.
Despite his progress on a number of identified treatment goals he has ongoing treatment needs, particularly in sexual arousal and relationship skills. He continues to have unrealistic views of his relationship skills which has limited the exploration of his needs and inhibited the ability to develop strategies to manage his sexual needs in high risk situations.
Mr Latimer's ability to recognise and label shame associated with his behaviour demonstrates an increased capacity to identify and discuss this emotion without resorting to avoidance strategies. This suggests a significant shift and has resulted in Mr Latimer displaying a more realistic understanding of his needs in the community and an increased willingness to seek assistance from others. However Mr Latimer has not demonstrated this awareness consistently and continues at times to exaggerate his abilities and minimise the difficulties he anticipates in the community. It is Ms Wilson‑Brown's opinion that challenging this behaviour should be an ongoing treatment focus along with developing Mr Latimer's interpersonal communication skills including recognising social cues and considering the experience of others, within his limited capacity in these areas.
Mr Latimer's release planning requires further development, particularly in strengthening his motivation and willingness to initiate and maintain contact with his support network. He presents with a developing pro‑social attitude and has a better understanding of the need to trust authority figures and include them in his support network.
It is Ms Wilson‑Brown's opinion that if Mr Latimer remains subject to a detention order he would be likely to benefit from a transfer to a minimum security prison where he would be able to practice and further develop emotion regulation, self‑management and interpersonal skills. Mr Summerton would continue to provide Mr Latimer with individual counselling. However, it is Ms Wilson‑Brown's opinion that given Mr Latimer's antisocial personality traits, denial of his offending, cognitive limitations and historical difficulties in sustaining motivation to explore treatment needs and to request assistance when needed, further significant behavioural change is not anticipated.
Mr Latimer's ongoing treatment considerations include managing his sexual arousal, improving his relationship and emotional regulation skills, refining his release plans and developing his support network.
A serious danger to the community
I accept the evidence of Dr Wojnarowska and of Ms Wilson‑Brown. Their evidence was clearly the result of careful consideration in their fields of expertise and was soundly based. It is apparent from their evidence that Mr Latimer continues to make progress.
It is also apparent from their evidence, and I find, that there is an unacceptable risk that, if Mr Latimer were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. This risk is a consequence of Mr Latimer's antisocial personality, his psychopathic traits, his limited interpersonal communication skills, his propensity not to adhere to orders and his limited ability to develop strategies to manage his sexual needs in high risk situations.
I conclude from the evidence to which I have referred that Mr Latimer remains a serious danger to the community because of that risk of his committing a serious sexual offence.
Whether to affirm the continuing detention order or to make a supervision order
Having decided that Mr Latimer remains a serious danger to the community it is necessary for me either to affirm the continuing detention order or to rescind the continuing detention order and make a supervision order. In making that decision the paramount consideration is the need to ensure adequate protection of the community.
The DPP accepts that in making that decision the least restrictive alternative compatible with the protection of the public would be the order which it would be appropriate to make, as was the position in Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [79].
At the moment there is no suitable accommodation in the community for Mr Latimer. Even if there were suitable accommodation available I would not rescind the detention order.
I have referred earlier in these reasons to the progress that Mr Latimer has made. However, he continues to have substantial treatment needs in developing skills in self‑regulation of his emotions and his behaviour, self‑awareness and social communication and managing his sexual arousal. I accept the evidence of Dr Wojnarowska that Mr Latimer's past demonstrates that his behaviour can escalate to sexual assault without warning signs.
Mr Latimer's treatment needs, along with Mr Latimer's unwillingness or inability to remain in a self‑care unit at Bunbury Regional Prison, lead me to conclude that there is an unacceptable risk that if Mr Latimer were living in the community he would not be able to regulate his behaviour and his emotions and that he would commit a serious sexual offence.
For these reasons I affirm the continuing detention order.
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