The State of Western Australia v Latimer [No 2]

[2009] WASC 132

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- LATIMER [No 2] [2009] WASC 132

CORAM:   BLAXELL J

HEARD:   1 MAY 2009

DELIVERED          :   1 MAY 2009

FILE NO/S:   MCS 26 of 2006

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

EDWARD WILLIAM LATIMER
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Second annual review of continuing detention order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

The respondent remains a serious danger to the community
Detention order made by Murray J on 30 October 2006 to continue indefinitely

Category:    B

Representation:

Counsel:

Applicant:     Mr A E Eyers

Respondent:     Mr D J McKenzie

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Legal Aid (WA)

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

Nil

1. BLAXELL J:  This is an application for the second annual review of an order for the continuing detention of the respondent made under the Dangerous Sexual Offenders Act2006 (WA). That order was made by Murray J on 30 October 2006, and on 1 November 2007 it was the subject of the first annual review as required by s 33 of the Act. However, on that first review, McKechnie J expressly declined to rescind the order. In coming to that decision his Honour said:

   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.

2. When the present application first came on for hearing, it was conceded on behalf of the respondent by his counsel that he remained a serious danger to the community and that there was no basis at that time for me to rescind the continuing detention order.  However, I was also informed that the respondent had made a good start with psychological counselling and that with continued counselling there was some prospect that the respondent might ultimately become suitable for release into the community under a supervision order.  For that reason, I was asked to adjourn the hearing for six months to see whether after that extended period the respondent had made further progress. 

3. For the purpose of determining that application for an adjournment, I heard evidence from the forensic psychologist Tamarala Caple and a psychiatrist Dr Peter Wynn Owen.  It was clear from their evidence that the prospects of the respondent making further treatment gains would be enhanced by the adjournment being granted.  For that reason I did adjourn the hearing until today.  In granting that adjournment, I directed that at today's hearing there should be a new assessment report providing for two alternative release plans:  one if the court decides to make an order for his immediate release; alternatively a plan for his ultimate release in terms of what would need to happen and what stages Mr Latimer would need to progress through in order to become suitable for release into the community. 

4. Consequently I have before me today firstly an updated sex offender treatment progress report, secondly, a Community Justice Services assessment report and, thirdly, a report on a possible release plan.  In light of the respondent's particular circumstances, it has not been practical to compose a plan which would provide for his immediate release today. 

5. However, what these reports show is that the respondent has continued to make significant treatment gains.  In that regard he has willingly attended weekly individual sessions of psychological counselling which have addressed particular behavioural issues.  He appears to be motivated to change and there has been a marked improvement in his demeanour and attitude.  He is also booked to attend a group-based programme which is specifically designed for individuals with cognitive impairment.  Furthermore, there is now a viable framework in place by which to measure Mr Latimer's future progress and to determine whether and when he will be suitable for supervised release into the community. 

6. In summary, Mr Latimer has made good progress in the last six months and there is reason to hope that with further treatment, he will be suitable for a staged release back into the community. As of today's date, Mr Latimer clearly has not reached the point that he is suitable for release back into the community.  Before that point is reached, he needs to progress through a series of staged reductions in the level of his security as suggested in the proposed release plan.  If he is successful in making this gradual transition, then there is reason to hope that he might become suitable for release back into the community under close supervision, perhaps in one year's time. 

7. In conclusion, the evidence presently before me establishes - and I make the finding - that the respondent remains a serious danger to the community.  The evidence also shows that he has made a good start along a path that could ultimately justify his supervised release back into the community.  However, as of today's date, I expressly decline to rescind the continuing detention order.