The State of Western Australia v Narkle [No 6] - [2018] WASC 51

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- NARKLE [No 6] [2018] WASC 51

CORAM: JENKINS J

HEARD: 24 JANUARY 2018

DELIVERED : 24 JANUARY 2018

PUBLISHED : 15 FEBRUARY 2018

FILE NO/S: MCS 86 of 2009

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SHANE NARKLE
Respondent

Catchwords:

Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Contravention proceedings - Respondent developed dementia after being placed on supervision order - Effect of dementia on risk of committing a serious sexual offence - Community protection

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 8(4A), s 17(1)(b), s 19A, s 19B, s 23

Result:

Supervision order amended

Category: B

Representation:

Counsel:

Applicant: Mr B D Meertens
Respondent: Ms W C Hughes

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers

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

Director of Public Prosecutions (WA) v Narkle [2010] WASC 7
Director of Public Prosecutions (WA) v Narkle [No 3] [2013] WASC 1
Narkle v Director of Public Prosecutions (WA) [No 2] [2011] WASC 324
The State of Western Australia v Narkle [No 5] [2017] WASC 46
JENKINS J:

(This judgment was delivered extemporaneously on 24 January 2018 and has been edited from the transcript. The publicly available version of the judgment omits material which is subject to statutory provisions restricting publication).

Introduction

This is an application by the State of Western Australia pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act) s 23. The application dated 9 October 2017 states that upon the court being satisfied that Mr Narkle has contravened and/or is likely to contravene conditions of the supervision order made on 27 February 2017, the State applies for an order to be made that the respondent be detained in custody for an indefinite term for control, care or treatment. Alternatively, the applicant seeks that an order be made that the supervision order be amended in such terms as the court thinks fit and if the court considers it appropriate in order to achieve compliance with the supervision order or necessary in order to ensure adequate protection of the community, make any other order that the court thinks fit.
Written submissions have been filed by the State which have been elaborated on orally today. These make it clear that the State seeks a continuing detention order (CDO) rather than a continuation of the supervision order or any amendment of it.
Mr Narkle's position is that some of his contraventions do not meet the definition of a contravention because he lacked the intention to contravene the conditions of the supervision order. He submits that to the extent that I may determine that he has contravened or is likely to contravene the supervision order, that the protection of the community can be adequately protected by the continuation of the supervision order.

Background

Mr Narkle was declared to be a dangerous sex offender on 18 January 2010. Hall J ordered that he be detained indefinitely for control, care or treatment.[1]
[1] Director of Public Prosecutions (WA) v Narkle [2010] WASC 7.
On 29 November 2011 after Mr Narkle's first statutory review McKechnie J expressly declined to rescind the detention order.[2] After the second statutory review on 7 January 2013 McKechnie J released Mr Narkle on a supervision order for four years.[3]
[2] Narkle v Director of Public Prosecutions (WA) [No 2] [2011] WASC 324.
[3] Director of Public Prosecutions (WA) v Narkle [No 3] [2013] WASC 1.
Before the expiry of that order on 6 January 2017 the DPP applied for a further supervision order pursuant to the Act s 8(4A) and s 17(1)(b). On 27 February 2017 I made a further supervision order for 22 months. My reasons for decision outlined Mr Narkle's background, the evidence which I had heard in respect of that application and the reasons why I determined that it was necessary to make a further supervision order for a period of 22 months.[4] These reasons should be read in conjunction with the reasons that have been delivered by all judges in relation to Mr Narkle.
[4] The State of Western Australia v Narkle [No 5] [2017] WASC 46.
The supervision order which I ordered Mr Narkle to comply with contained 25 conditions. The State alleges that Mr Narkle has breached the following conditions of the supervision order:
1.condition 4, that he be under the supervision of a community corrections officer (CCO) and comply with any reasonable direction of the CCO including a direction for the purpose of s 19A or s 19B;
2.condition 17, that he not possess, consume or use any prohibited drugs or substances including but not limited to cannabis; and
3.condition 7, that he be subject to electronic monitoring under the Act s 19A.
Pursuant to condition 4, on 20 March 2017 Mr Narkle was issued with a written lawful direction (WLD) which in part stated 'keep with you your personal carry unit whenever you are not at home' and 'immediately respond to any phone call from the central monitoring station'.
It is not in dispute that a couple of months later after I placed Mr Narkle on the supervision order his cognitive functioning declined and because of this decline he became less able to comply with the conditions of the supervision order, without assistance. He has since been diagnosed with dementia.
I have been told today that Mr Narkle's dementia is still in its moderate phase, but his functioning is likely to continue to decline. As a consequence of his illness he has a reduced life expectancy.
It is in the context of the dementing process that the State alleges that Mr Narkle contravened his supervision order on 13 occasions. It is because of the dementing process and the past contraventions that the State says that Mr Narkle is likely to contravene his supervision order in the future.

The alleged contraventions

The conduct alleged to have contravened the supervision order is as follows.

Contravention 1 and 2 - 4 June 2017

On 4 June 2017 at 11.03 am Mr Narkle left his home and was not within range of his personal carried unit (PCU). Numerous calls to his mobile phone were made between 11.04 am and 11.09 am. He failed to answer the calls. At 11.10 am, Mr Narkle returned to be within range of his PCU.
Mr Narkle's conduct in not being within range of his PCU for seven minutes was a breach of conditions 4 and 7 of the supervision order and the WLD.
Mr Narkle's conduct in failing to answer his mobile phone was in breach of the same conditions of the WLD.

Contravention 3 and 4 - 6 June 2017

On 6 June 2017 at 7.58 am Mr Narkle left his home and was not within range of his PCU. Numerous calls to his mobile phone were made between 7.58 am and 9.09 am. He failed to answer the calls. At 9.15 am, workers from Outcare informed officers from the Sex Offender Management Squad (SOMS) that Mr Narkle had attended their office and that he would remain there until police arrived.
Mr Narkle's conduct in not being within range of his PCU for one hour and 17 minutes was in breach of conditions 4 and 7 of the supervision order and the WLD.
Mr Narkle's conduct in failing to answer his mobile phone was in breach of the same conditions and the WLD.

Contravention 5 and 6 - 8 June 2017

On 8 June 2017 at 9.05 am Mr Narkle left his home and was not within range of his PCU. Unsuccessful attempts were made to contact him by telephone at 9.07 am and 9.08 am. An operator succeeded in making contact with Mr Narkle at 9.10 am. He said that he was at a bus stop. When he became aware he did not have his PCU with him he returned home immediately to retrieve his PCU.
Mr Narkle's conduct in not being within range of his PCU was in breach of conditions 4 and 7 of the supervision order and the WLD.
Mr Narkle's conduct in failing to answer his mobile phone was in breach of the same conditions and the WLD.

Contravention 7 - 21 June 2017

On 21 June 2017 at 5.19 pm Mr Narkle left his home and was not within range of his PCU. At 5.20 pm contact was established with him by an electronic monitoring officer (EMO). Mr Narkle told the EMO he had just left his house and would return home to collect the PCU. At 5.33 pm the EMO contacted Mr Narkle who said that he was nearly home. Mr Narkle's sister spoke with an EMO and apologised stating they had to stop for fuel.
Mr Narkle's conduct in not being within range of his PCU was in breach of conditions 4 and 7 of the supervision order, and the WLD.

Contravention 8 and 9 - 13 July 2017

On 13 July 2017 at 1.17 pm Mr Narkle left his home and was not within range of his PCU. Between 1.21 pm and 1.33 pm, an EMO attempted to call him on six occasions and left voice messages. At 2.02 pm, a senior community corrections officer (SCCO) attended Mr Narkle's home and he was not there. A woman who was present at the home advised that Mr Narkle had gone to the shop. The SCCO conducted a search of the local shops and did not locate Mr Narkle. He returned within range at 2.10 pm.
Mr Narkle's conduct in not being within range of his PCU for 53 minutes was in breach of conditions 4 and 7 of the supervision order and the WLD.
Mr Narkle's conduct in failing to answer his mobile phone was in breach of the same conditions and the WLD.

Contravention 10 - 3 August 2017

On 3 August 2017 at 11.00 am Mr Narkle attended Central West Metropolitan Adult Community Corrections and provided a sample for urinalysis. The result of the same was received on 8 August 2017 and was positive for cannabis with a concentration of 30 micrograms per litre.
On 9 August 2017, Mr Narkle was arrested. He declined to participate in an audiovisual record of interview.
Mr Narkle's conduct in consuming cannabis was in breach of condition 17 of his supervision order.

Contravention 11 - 10 August 2017

On 10 August 2017 at 2.15 pm Mr Narkle attended Central West Metropolitan Adult Community Corrections and provided a sample for urinalysis. The result of the sample was received on 14 August 2017 and was positive for cannabis with a concentration of 33 micrograms per litre.
On 15 August 2017, Mr Narkle was arrested. He participated in an audiovisual record of interview where he made full admissions to consuming cannabis.
Mr Narkle's conduct in consuming cannabis was in breach of condition 17 of his supervision order.

Contravention 12 and 13 - 16 August 2017

On 16 August 2017 shortly before 5.15 pm Mr Narkle left his home and was not within range of his PCU. EMOs attempted to call him between 5.15 pm and 5.42 pm. An EMO attended Mr Narkle's home at 6.06 pm and was unable to locate him. EMOs searched the local shopping area and could not find him. EMOs returned to Mr Narkle's unit and he was seen walking into his unit at 6.39 pm carrying a plastic bag, at which time he returned within range of his PCU.
Mr Narkle's conduct in not being within range of his PCU for one hour and 25 minutes was in breach of conditions 4 and 7 of the supervision order and the WLD.
Mr Narkle's conduct in failing to answer his mobile phone was in breach of the same conditions and the WLD.
Mr Narkle was charged under the Act s 40A with multiple breaches of the supervision order. These were dismissed for want of prosecution in Perth Magistrates Court on 31 October 2017.
Mr Narkle does not dispute the acts and omissions said to constitute the contraventions. However, he submits that I should not find that he has contravened his order by failing to take his PCU with him and by failing to answer his phone. He submits that the evidence is to the effect that those contraventions have occurred without intention on his part. That is, it is his lack of cognitive functioning which resulted in those acts and omissions. In essence, he says that he forgot to take his PCU with him and to answer his phone.
On the basis of evidence given by Dr Wojnarowska today to the effect that Mr Narkle admitted to her that he had knowingly consumed cannabis against the conditions of his supervision order, Mr Narkle concedes that those contraventions have been proved.
Mr Narkle submits that I should not be satisfied that he would contravene or is likely to contravene the supervision order in the future because he says that he lacks the mental capacity which is required to contravene the supervision order.
The Act s 23(1) requires the court to determine whether it is satisfied on the balance of probabilities that the person who is subject to the supervision order is likely to contravene, is contravening or has contravened a condition of the supervision order. The court is not required to be satisfied that the person intentionally or deliberately contravened the order unless the condition which is in issue includes a mental element.
In arriving at this conclusion, I rely on the usual meaning of the word 'contravene'. The dictionary definition of 'contravention' is 'to infringe something'. In this case the 'something' is the condition of the supervision order. The dictionary definition of the word 'infringe' is 'to act contrary to something'. I interpret the Act s 23(1) as meaning that the court must be satisfied on the balance of probabilities that the respondent to a supervision order has or is likely to act contrary to a condition of the supervision order. I do not regard it as being necessary to show that he or she has done so with the intention of breaching the condition of the supervised order or to deliberately breach the order.
To hold otherwise would be to import words into the Act s 23(1). There is no justification to do so. The command in s 23(3) that in deciding whether to make an order under ss (1) the 'paramount consideration is to be the need to ensure adequate protection of the community' militates against a construction of subsection which would reduce the protection of society.
I leave for another case whether a person subject to a supervision order whose actions occurred independently of their will or who was compelled to do something which was in breach of their supervision order contravened the order. Those circumstances do not arise for determination in this case.
There being no question that Mr Narkle has so contravened the supervision order in the thirteen instances alleged by the State, I find that I am satisfied that Mr Narkle has contravened a condition of the supervision order. I find the contraventions proven.
The State also says that Mr Narkle is likely to contravene the supervision order in the future because of his declining cognitive ability. In this respect, I find that on the balance of probabilities he is likely to contravene the order in the future. I do not think that it is certain but on the balance of probabilities I am so persuaded.

Consequences of contravening the supervision order

Having reached the above conclusions, the powers in s 23(1) are enlivened. Those powers are to make an order amending the conditions of the supervision order or extending the period for which Mr Narkle is subject to the conditions of the order or both amending an extending the order. If I am satisfied that there is an unacceptable risk that, if a CDO is not made, Mr Narkle would commit a serious sexual offence, I may make a CDO in relation to him. Alternatively, I may make no order.
It is my determination that it is appropriate that I amend the condition of the supervision order by adding a condition or conditions to ensure that people do not stay overnight at Mr Narkle's home. The State has submitted that I should make a CDO. Consequently, it is necessary for me to give some reasons as to why I do not think that is appropriate.
Before I made a CDO, I would have to be satisfied that there is an unacceptable risk that, if a CDO was not made, Mr Narkle would commit a serious sexual offence. Mr Narkle has been on the supervision order now for about five years. He has not committed any serious sexual offence or any indecent offence during that period of time. He has not consumed alcohol in any recent period. The consumption of alcohol has always been seen as a disinhibiting factor which would significantly increase Mr Narkle's risk of serious sexual offending. There is no evidence before me that Mr Narkle is likely to consume alcohol whilst on the supervision order.
Mr Narkle is currently being well supervised in the community. He has had an ACAT assessment, which has determined that he is eligible for full time residential care. The doctors have suggested that it is in his interests that he live independently in the community for as long as possible. That is what is occurring. He has increased support from Outcare, so that Outcare are now accompanying him more often on outings and taking him to supervision appointments and medical appointments.
Before Mr Narkle started to dement, he used public transport extensively. He is doing that less and less. That is partly because he has poorer access to public transport from his present home. It is also because his mobility is decreasing. He is becoming frail. He is less likely to be out and about in the community by himself. He is receiving appropriate and helpful support, not only from Outcare, but also from his [name omitted] and from his CCO. I commend those who are currently supervising Mr Narkle for the assistance that they are providing to him.
[Omitted].
Since her appointment Mr Narkle's [name omitted] has attended the inter‑agency meetings that the community offender monitoring unit (COMU) convenes to discuss Mr Narkle's management in the community. In addition, Mr Narkle is also supported by the community forensic mental health service. It is fully integrated with his supervision regime in the community.
Despite all of these protective factors, the State says that there is an unacceptable risk that if a CDO is not made, Mr Narkle will commit a serious sexual offence. That position is based principally on Dr Gosia Wojnarowska's evidence of the increased risk of a person who is dementing engaging in inappropriate sexual conduct. It is also based on the breaches that have been proved and the State's submission that Mr Narkle is likely to contravene the supervision order in the future.
Dr Wojnarowska is a highly experienced psychiatrist who provided a report and gave oral evidence. The State submits that Dr Wojnarowska is of the view that Mr Narkle's level of risk of committing a serious sexual offence in the future remains the same as it was assessed in previous hearings. I agree with that submission for the reasons which Dr Wojnarowska gave. I accept that Mr Narkle continues to be at a high risk of serious sexual offending.
The State further submits that Mr Narkle's physical and mental conditions are such that he is mobile and physically capable of committing a serious sexual offence. In this regard, I would simply note what I have already said about his mobility decreasing. Whilst he is currently mobile and physically capable of committing a serious sexual offence, those capacities will decline. His capacities were better in the five years that he has been on the supervision order than they were now, yet he has not committed any serious offence, let alone a serious sexual offence whilst on the supervision order.
The State submits that Dr Wojnarowska's risk scenario for Mr Narkle includes that his sexual disinhibition will result in sexual reoffending. It also includes the possibility of him sexually offending in a manner similar to his past offences against an adult female victim known to him and to whom he will use additional violence. The State submits that it is inevitable that Mr Narkle's moderate stage of dementia will progress to severe dementia. As it does, Mr Narkle can expect to exhibit the cognitive and behavioural changes which are often seen in dementia patients. These include aggression, disinhibition, wandering and an increase in sexual disinhibition. The State submits that these expected characteristics together with the unpredictability of how his behaviour will change means that his risk of serious sexual offending is increasing as the dementing process progresses.

The State submits that added to these issues is Mr Narkle's living circumstances whereby he allows other people to live in his unit and, in particular, allows females to live in his unit. The State also relies on evidence that Mr Narkle has given false information to CCOs as to whether he allows other people to live in his unit.
The State says that these factors in combination mean that there is an unacceptable risk that if a CDO is not made, Mr Narkle will commit a serious sexual offence.
Dr Wojnarowska's evidence is to the effect that, as the dementing process continues, the history of the disease is such that behavioural changes characterised by aggression, disinhibition and wandering are very likely to occur. She says that sexual disinhibition and the risk of sexually inappropriate behaviour will therefore increase. It is difficult to predict if this will also lead to sexual offending as there is no available research on sexual offenders who develop dementia after committing their offences.
In respect of the research in respect of inappropriate sexual behaviour arising de novo in people with dementia, Dr Wojnarowska testified it is estimated that the prevalence varies from 2% to 17%, with higher male to female ratios. She made the point in her oral evidence that the figures are not a statistic relating to serious sexual offending or sexual offending at all. It is a statistic relating to inappropriate sexual behaviour such as using obscene language, masturbating in public and propositioning others for sexual favours.
Dr Wojnarowska's evidence is that she could not predict what the progress of Mr Narkle's illness will be. She did not make a prognostication that he was likely to commit a serious sexual offence in the course of his dementing process.
Dr Wojnarowska's view is that the supervision order should continue. She said that Mr Narkle is being well controlled and has been well controlled on the supervision order. Dr Wojnarowska said that incarcerating Mr Narkle would be deleterious to him and his health.
Mr Ian Farrell, Mr Narkle's SCCO, testified that the COMU supported a condition being added to Mr Narkle's supervision order prohibiting Mr Narkle from permitting others to live in his home. Other than that recommendation, the COMU is satisfied that more recently Mr Narkle, with the assistance of others, is complying with his supervision order. The COMU will continue to supervise him if he remains on the supervision order.
I do not understand from Mr Farrell's evidence that Mr Farrell thinks that a CDO should be made or that the COMU believes that a CDO should be made.
The distinct impression I have gained from the evidence is that as Mr Narkle has demented he has become less irritable, more compliant with the restrictions of his supervision order and more grateful for the support he is receiving in the community.
In respect to Mr Narkle's current functioning under the order, since he has been given a single unit GPS system, he has not breached his supervision order by failing to leave the PCU at home. That is because he no longer has to remember to take a PCU with him when he leaves home. Consequently, there have been no further breaches of that condition of his order.
In respect to not answering his mobile phone, Mr Farrell said that since August 2017, Mr Narkle has not lost his mobile phone. This has helped with maintaining contact with the EMOs. There have been some instances where Mr Narkle has muted the phone. I gained the impression that that might have been by Mr Narkle accidentally pressing the wrong button on the phone rather than by a deliberate action. In any event, there have been no continuing failures by Mr Narkle to answer his phone.
In respect to Mr Narkle's use of cannabis, Mr Narkle has returned negative urinalysis results since the instances the subject of the contravention proceedings.
Mr Narkle has in fact been complying with his supervision order without breach for approximately five months.
Taking into account all of these factors, I conclude that there is a risk that as the dementing process continues, Mr Narkle's behaviour will become disinhibited and as a consequence he may engage in sexually inappropriate behaviour. However, the evidence does not support a finding that he is likely to commit a serious sexual offence if he is controlled and supported by the supervision order.
By the time Mr Narkle's behaviour or cognitive ability is so affected by the dementing process that he is starting to engage in inappropriate sexual behaviour, if he does, he will by then be in a nursing home and not in the community. Dr Wojnarowska described how nursing homes have supervision regimes to ensure that inappropriate sexual behaviour by dementia patients is controlled and stopped.
If Mr Narkle as he dements becomes a person prone to inappropriate sexual behaviour, it is unlikely that it will result in an increased risk of serious sexual offending. This is because by then he will be in the controlled environment of a nursing home. Consequently, I am not satisfied that there is an unacceptable risk that if a CDO is not made, Mr Narkle will commit a serious sexual offence.
That then brings me to the question of Mr Narkle's accommodation difficulties. One of the issues in respect of Mr Narkle's current management is the fact that members of his family have importuned him for accommodation in his home. Mr Narkle's cannabis use seems to be associated with his association with members of his family. Whilst at his home his family members have engaged in antisocial behaviour. As a result of his family members' antisocial behaviour Mr Narkle lost his permanent accommodation at the end of 2017. Since then, Mr Narkle has been residing in temporary accommodation provided by Outcare. There is a change in the contractual arrangements for the provision of accommodation to dangerous sexual offenders which means that at the end of March responsibility for providing that accommodation will shift from Outcare to UnitingCare West. Mr Farrell is uncertain whether UnitingCare West will provide accommodation for Mr Narkle. He is also uncertain as to whether the particular property that Mr Narkle is currently residing in will continue to be available to him.
However, Mr Farrell said that Outcare had taken responsibility for trying to find Mr Narkle alternative, permanent accommodation. Investigations are also being made to obtaining nursing home care for him when the need arises.
Whilst Mr Narkle's future accommodation is not certain, I am satisfied on the basis of the evidence I have heard that it is likely that Mr Narkle will be able to be appropriately housed for the remainder of his supervision order. I am content at this point to leave that issue in the hands of the agencies responsible for supervising him. If he becomes homeless, then he will be bound in some way or another to be in breach of his supervision order and the matter will be brought back to court for the matter to be reassessed.
That then leaves the issue of members of Mr Narkle's family taking advantage of him to stay with him and jeopardising not only his wellbeing but also the provision of housing for him. The evidence persuades me that it is necessary for a condition or conditions to be added to Mr Narkle's supervision order to prevent that occurring. This is not because having people live with Mr Narkle is immediately going to increase his risk of serious sexual offending. The risk is that if he has people living with him who engage in antisocial behaviour, it destabilises his accommodation and destabilises his personal circumstances. It is those factors which are then likely to increase his risk of serious sexual offending.
The question is then how to phrase the amendments to the order. Mr Narkle's counsel submits that if I simply prohibit Mr Narkle from having anyone stay at his residence that it may be difficult for Mr Narkle to comply with that condition because the people might stay at his residence even when he does not want them to do so. The State submits that such a condition is difficult to administer or to supervise because those supervising Mr Narkle may not know that someone has stayed at the residence until the next supervision visit, which might be some days away. Counsel for the State also submit that there is a danger in permitting females to stay with Mr Narkle. There is no evidence that Mr Narkle in his current state and whilst he remains sober is likely to offend against those females. The issue is whether he may do so in the future as his cognitive functions decline.
Taking into account all of those matters, I propose that there be at least two conditions added to the supervision order. I propose that there be a condition that unless Mr Narkle is residing in an approved group accommodation,[5] he not permit any person to stay at his home overnight without the prior written permission of his CCO. The word 'permit' connotes a voluntary action. If somebody stays at his home despite Mr Narkle refusing them permission to do so he will not be in breach of this condition. There will be a second condition that he advise his CCO if any person stays at his home. Such advice to be provided within the time and by the means directed by his CCO. I anticipate that Mr Narkle will receive a WLD that he has to advise his CCO within a particular time if anybody has stayed or is going to stay overnight and that he will be given a phone number, whether that be the number of the electronic monitoring unit or some other number, that he can ring to provide that advice.
[5] For example, a nursing home.
Finally, I recommend that a sign be placed in Mr Narkle's home advising that nobody is allowed to stay in Mr Narkle's home without the prior written permission of his CCO.