The State of Western Australia v Pindan

[2019] WASC 492

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PINDAN [2019] WASC 492

CORAM:   FIANNACA J

HEARD:   20 JUNE 2019

DELIVERED          :   20 JUNE 2019

PUBLISHED           :   9 FEBRUARY 2021

FILE NO/S:   SO 55 of 2010

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

ADRIAN PINDAN

Accused

Catchwords:

Dangerous sexual offender - Fifth review of continuing detention order - Whether respondent a serious danger to the community - Whether continuing detention order should be affirmed 

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Continuing detention order affirmed

Category:    B

Representation:

Counsel:

Applicant	:	Mr B Meertens
Accused	:	Ms M R Barone SC

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Accused	:	Barone Criminal Lawyers Pty Ltd

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

Director of Public Prosecutions (WA) v Hart [2019] WASC 4

Director of Public Prosecutions (WA) v Pindan [2012] WASC 13

Director of Public Prosecutions (WA) v Pindan [No 2] [2012] WASC 234

Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95

Director of Public Prosecutions (WA) v Pindan [No 4] [2015] WASC 124

Director of Public Prosecutions (WA) v Pindan [No 5] [2016] WASC 144

Director of Public Prosecutions (WA) v Pindan [No 6] [2018] WASC 20

FIANNACA J:

Summary

1. The respondent has a history of sexual offending. In June 2012 he was found by Jenkins J to be a serious danger to the community pursuant to s 7 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). Her Honour made a continuing detention order under s 17(1) (the CDO).[1]

   [1] Director of Public Prosecutions (WA) v Pindan [No 2] [2012] WASC 234 (Pindan [No 2]).

2. In four subsequent reviews of the respondent's continuing detention, pursuant to s 33 of the DSO Act, the court continued to find that the respondent is a serious danger to the community and declined to rescind the CDO (which was the previous formulation of the order required under s 33 if the CDO was to continue).

3. On 20 June 2019 I conducted the fifth periodic review of the respondent's continuing detention.  At the conclusion of the hearing (and in accordance with the amended formulation of the order under s 33 at that time) I affirmed the CDO and set 21 June 2021 for the next review.  I gave brief oral reasons and said I would publish written reasons in due course.  At the time of giving the brief reasons, I also stipulated a number of recommendations that needed to be implemented by the Department of Justice and other government agencies 'in order to continue to facilitate the course of enabling Mr Pindan to progress to a position where he may, ultimately, be released on a supervision order'.[2]  Those recommendations are set out at the conclusion of these reasons.

   [2] ts 130.

4. These are my reasons for affirming the CDO.  They should be read in conjunction with the previous decisions concerning the respondent,[3] in particular Pindan [No 5] and Pindan [No 6].

   [3] Director of Public Prosecutions (WA) v Pindan [2012] WASC 13 (Jenkins J) (Pindan [No 1]); Pindan [No 2]; Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 (Corboy J) (Pindan [No 3]); Director of Public Prosecutions (WA) v Pindan [No 4] [2015] WASC 124 (McKechnie J); Director of Public Prosecutions (WA) v Pindan [No 5] [2016] WASC 144 (Fiannaca J) (Pindan [No 5]); and Director of Public Prosecutions (WA) v Pindan [No 6][2018] WASC 20 (Corboy J) (Pindan [No 6]).

The respondent's cognitive impairment

1. The respondent suffers from a significant cognitive impairment, which prevents him from being able to understand the nature of the proceedings, or to provide instructions to his counsel.  His counsel, Ms Barone SC, appeared on behalf of the respondent [redacted].  Ms Barone was obliged to conduct the respondent's case in the respondent's best interests, by arguing for the least restrictive outcome.

2. The respondent's cognitive impairment continues to be a relevant consideration in the assessment of the respondent's risk of committing a serious sexual offence if he is not detained.  As I noted in Pindan [No 5]:[4]

   Because of his cognitive deficits, there has been no progress in the respondent's rehabilitation that would mitigate his risk of reoffending without external constraints.  The respondent does not have the capacity to address his offending behaviour or the factors that have led to it.  It has been determined that the most effective form of intervention, to facilitate his eventual release on a supervision order, is to improve the respondent's skills in day-to-day functioning.

   [4] Pindan [No 5] [3].

The respondent's background

1. The respondent's history of sexual offending was outlined by Jenkins J in a decision (on an application for a permanent stay) given before Pindan [No 2], namely Pindan [No 1] at [29] ‑ [49]. Her Honour adopted that outline in Pindan [No 2].  The factual history has not been challenged in subsequent reviews, including the present review.  I summarised the facts in Pindan[No 5] at [14] ‑ [16].

2. I adopt that factual history and my summary of the facts in Pindan[No 5] for the purposes of this review.

Previous annual reviews

1. In Pindan[No 5], at [17] to [26], I summarised the findings on which the court had decided, in the first two annual reviews, that the respondent was a serious danger to the community and that a CDO was the appropriate order. Those findings informed the recommendations made by the court in each instance as to the further management of the respondent's circumstances.

2. In 2016, I conducted the third annual review of the respondent's CDO.  At that time, I concluded that the fact that the respondent is a dangerous sexual offender is unlikely to change.[5]  As such, I found that the respondent remained a serious risk to the community.  I stated that the paramount consideration remained the adequate protection of the community, so, at that stage, it was necessary to continue to detain the respondent for control, care and treatment.[6]  I noted that the court continued to expect that efforts would be made to assist the respondent to be returned to the community.[7]  I also noted that, on the basis of the evidence in that review, it would be expected that between that review and the subsequent review, steps would be taken, relevantly, to explore options for accommodation that would be suitable for the respondent, should he be released on a supervision order.[8]

   [5] Pindan [No 5] [74].

   [6] Pindan [No 5] [85].

   [7] Pindan [No 5] [84].

   [8] Pindan [No 5] [84].

3. Subsequently, in 2017 Corboy J conducted the fourth annual review.[9]  The findings made by Corboy J in respect of the respondent's risk of serious sexual offending are set out in Pindan [No 6] at [35] ‑ [38]. On the basis of the opinions of Dr Wynn Owen, the consultant forensic psychiatrist who had assessed the respondent for the review, together with the other evidence presented in the review, his Honour found that the respondent remained a serious danger to the community and that it was necessary to affirm the CDO to ensure the adequate protection of the community. Corboy J accepted that the respondent's prospects of being released into the community on a supervision order are substantially, if not entirely, dependent on suitable accommodation being provided for him.[10]  His Honour was of the opinion that, in order for the community to be adequately protected from the risk of the respondent committing a serious sexual offence, it would be necessary for the respondent to be accommodated in a structured environment, which provided full time care and supervision.  Accommodation of that kind remained unavailable for the respondent at that time.

   [9] I note that his Honour mistakenly referred to it as the fifth review.

   [10] Pindan [No 6] [38].

Legal principles

1. This review of the respondent's detention was conducted and determined pursuant to s 33 of the DSO Act.  The relevant statutory provisions and legal principles have been discussed in the previous reviews.  It is sufficient for present purposes to note that, under s 33, I was required to rescind the CDO if I did not find that the respondent remained a serious danger to the community.  If I found that he remained a serious danger to the community, I was required to affirm the CDO or rescind the CDO and make a supervision order.  The paramount consideration in determining whether to affirm the CDO or make a supervision order was the need to ensure adequate protection of the community.  Further, I could not make a supervision order unless I was satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order.[11]  In that regard, I have applied the principles and approach I considered to be appropriate in Director of Public Prosecutions (WA) v Hart.[12]  In essence, I must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.

   [11] DSO Act s 33(4).

   [12] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart) [50], [52].

2. Pursuant to s 7 of the DSO Act, I could not find that the respondent is a serious danger to the community, unless I was satisfied to a high degree of probability on cogent and acceptable evidence that there is an unacceptable risk that the respondent would commit a serious sexual offence if he were not subject to a CDO or a supervision order.

Current review

(i) The evidence

1. At the hearing, on 20 June 2019, I received into evidence a book of materials compiled for this review (BOM),[13] which included: 

   [13] Exhibit 1.

   (1)Department of Corrective Services (DCS) 'Incidents and Occurrences' records for the respondent for the period 18 April 2017 to 6 June 2019;

   (2)the DCS charge history for the respondent for the period 18 April 2017 to 11 April 2019;

   (3)the DCS incident description reports and minutes with respect to the respondent for the date range 22 April 2017 to 7 February 2018 and 21 March 2019 to 5 June 2019;

   (4)DCS substance use test results for the respondent for the period 18 April 2017 to 11 April 2019;

   (5)a DCS 'Individual Management Plan' for the respondent;

   (6)West Kimberley Regional Prison (WKRP) 'Medical Progress Notes' for the respondent for the period 20 April 2017 to 1 April 2019;

   (7)Pathwest 'Medical Results' for the respondent for the period 20 June 2017 to 29 January 2019;

   (8)Department of Justice (the Department)  'Offender Notes' for the respondent, for the period 18 April 2017 to 4 June 2019;

   (9)a psychiatric report dated 6 June 2019, prepared by Dr Peter Wynn Owen, who again was appointed to assess the respondent for this review;

   (10)a Dangerous Sex Offender Treatment Progress Report prepared by Ms Rachael Williams, a senior clinical psychologist with the Department, dated 7 June 2019; and

   (11)a Community Supervision Assessment prepared by Ms Tanya Wotherspoon, a Senior Community Corrections Officer (SCCO), dated 8 June 2019.

2. I also received into evidence: a (redacted) email from Ms Kara Cassam, Team Leader in the Community Offender Management Unit (COMU),[14] to Ms Wotherspoon dated 18 June 2019 regarding an update of the respondent's behaviour in prison and his level of supervision (exhibit 2); minutes of various interagency meetings of stakeholders from March 2017 to June 2019 (exhibits 3A ‑ 3F); a Behaviour Modification Plan in respect of the respondent (exhibit 4); the WKRP Present Management Plan in respect of the respondent (exhibit 5); and a Delivery and Assessment Plan in respect of the respondent (exhibit 6).

   [14] COMU is the unit within the Corrective Services division of the Department which is responsible for the management of persons subject to the DSO Act.

3. Dr Wynn Owen, Ms Williams, and Ms Wotherspoon also gave oral evidence at the hearing on 20 June 2019.

(ii) The respondent's position

1. Although counsel for the respondent was not in a position to make any concession, for reasons I identified earlier, she properly acknowledged that the weight of evidence supported a finding that the respondent remains a serious danger to the community.[15]  She further acknowledged that there was an 'inevitability' about the outcome, being the affirmation of the CDO at that stage, given the respondent's circumstances.[16]  Consequently, in practical terms, those matters were not in issue at the hearing, although I am still required to make a determination about them.

(iii) The issues relevant to determining the respondent's risk

[15] ts 105.

[16] ts 11.

1. In Pindan [No 5] I identified the issues relevant to determining the respondent's risk of serious sexual offending as including:  his understanding of his previous offending and risk factors; his capacity to plan and take measures to avoid risk scenarios; the presence of libido and a sexual interest in women; and his attitude to alcohol.[17]  In Pindan [No 6] Corboy J identified the following issues by reference to the basis of Dr Wynn Owen's opinion that the respondent continued to present a high risk of serious sexual offending:[18]

   The risk related to the presence of gross cognitive deficits and a lack of self-awareness with associated impulsivity, minimal planning skills, poor learning capacity and limited understanding of the effect of his actions on others. Alcohol use remained a significant risk factor.

   [17] Pindan [No 5] [27].

   [18] Pindan [No 6] [16].

2. The issues identified in both of those previous reviews remain relevant.

(iv) The respondent's custodial circumstances since the fourth review

1. During the period between the previous review and the present review (the review period), the respondent's general circumstances in custody had not changed from those described by Corboy J in Pindan [No 6].[19]  He continued to be housed in a single cell at WKRP as he did not meet the criteria for a self‑care custodial environment.  He continued to be subject to a management plan (referred to by Ms Wotherspoon as a Daily Management Plan) due to his cognitive impairment and lack of daily functioning skills.[20]  As Corboy J explained in Pindan [No 6], the purpose of the plan is to establish a structured and consistent daily routine for the respondent with a view to forming part of any future reintegration plan.[21]  As Corboy J also noted, it is apparent from the available information that the plan covers all aspects of the respondent's custody at WKRP.[22]

   [19] Pindan [No 6] [25].

   [20] BOM 252 (Community Supervision Assessment, 7.6.2019, p 2).  The management plan is referred to elsewhere in the materials as a 'behavioural management plan'.

   [21] Pindan [No 6] [25]. See, in the context of these proceedings, BOM 252 (Community Supervision Assessment, 7.6.2019, p 2).

   [22] Pindan [No 6] [25].

2. During the review period, the control, care and treatment of the respondent, including the implementation of measures to give effect to the recommendations made, and expectations expressed, in previous reviews, was reviewed at meetings described as 'Interagency Meetings of Stakeholders' which were held every three or four months and could have as many as 17 representatives from various agencies invited.  Although not all invitees were able to attend all meetings, it seems written information was provided by those who could not attend.  The minutes from the meetings indicate that the agencies represented (in some cases by a number of representatives) were COMU, Adult Community Corrections, the Custodial Operations division of the Department, WKRP, Forensic Psychological Services, [redacted] (representing the respondent's interests), Disability Services and the Health Services (Offender Management) division of the Department.  There was also a Case Management Coordinator.  Dr Wynn Owen was invited, but was required only if there was a need for a psychiatric opinion.  He explained at the hearing that he ceased to work for the Department during the review period, and there was a period when he was not aware that invitations were still being sent to him.  The representatives from COMU would ordinarily include the SCCO who was managing the respondent's case.  The significance of the interagency meetings and some of the matters raised will be discussed below.

3. During the review period, prison staff continued to record daily notes (referred to as a daily log) 'with respect to Mr Pindan's compliance with the management plan, [his] interaction with staff and other prisoners' and his behaviour generally.[23]  Ms Wotherspoon reported that the synopsis provided by custodial staff indicated that, since the previous review, there had not been any significant change in the respondent's behaviour or level of functioning.[24]  He required ongoing prompting, guidance and supervision to complete assigned tasks and to comply with his daily routine.[25]  He continued to work delivering meals on a trolley, although at the time of the hearing Ms Wotherspoon understood that he was employed as a laundry cleaner.[26]  Ms Wotherspoon confirmed that the respondent's level of gratuities was linked to his work and was calculated no differently to the gratuities given to sentenced prisoners.[27]  Ms Wotherspoon said that the issue of enabling the respondent to receive gratuities not tied to his work had been raised and had been 'escalated', in that the issue of whether additional privileges should be available to persons detained pursuant to the DSO Act had been referred to the Assistant Commissioner of Adult Community Corrections and Custodial Operations for consideration.[28]

   [23] BOM 252 (Community Supervision Assessment, 7.6.2019, p 2).

   [24] BOM 252 (Community Supervision Assessment, 7.6.2019, p 2).

   [25] BOM 252 (Community Supervision Assessment, 7.6.2019, p 2).

   [26] ts 90.

   [27] ts 90.

   [28] ts 90.

4. Poor hygiene, both personal and within his cell, continued to be an issue for the respondent during the review period, to the point that his cell had to be repainted and fumigated when he was moved to another facility, because of its poor condition and infestation.[29]  The respondent also continued to hide items that he was not authorised to have in his cell.[30] 

   [29] BOM 252 (Community Supervision Assessment, 7.6.2019, p 2).

   [30] BOM 252 (Community Supervision Assessment, 7.6.2019, p 2).

5. Ms Wotherspoon reported:[31]

   The Superintendent at WKRP has noted that Mr Pindan does not do well in a small, highly populated and heavily regimented prison environment as he does not receive individually tailored treatment from staff and an increase in adverse behaviours has been observed when he returns to WKRP from other prisons (for example, when returning from Casuarina prison after medical treatment).

   [31] BOM 252 (Community Supervision Assessment, 7.6.2019, p 2).

6. There were a number of incident reports during the relevant period, which I will refer to below in the context of Dr Wynn Owen's evidence.

7. The overall picture, as in previous reviews, is of someone who does not have the capacity for independent living in the community and who could not be expected to comply, without intensive support, supervision and monitoring, with the conditions of a supervision order.  At the same time, the Superintendent's candid assessment highlights the unsatisfactory nature of the respondent's situation in detention, at least some of the time.  It also begs the question why the respondent is not receiving 'individually tailored treatment', at least in some aspects of his management, as that was the purpose in broad terms of the management plan and the training of staff by the Disability Services Commission (Disability Services),[32] which had been implemented as a result of recommendations in previous reviews.  Ms Wotherspoon reported that, over the last 12 months (i.e. before the preparation of the report, which is dated 7 June 2019) Disability Justice Services[33] staff had travelled to WKRP on three occasions to 'deliver training to prison staff and support them to gain better insight into the support requirements for Mr Pindan while he is in prison'.[34]  

   [32] From 1 July 2017, the Disability Services Commission (the Western Australian government agency providing services to people with disabilities) became part of the Department of Communities, and is referred to as Disability Services.  As will appear below, it seems that training has been delivered by staff from Disability Justice Services, which is also part of the Department of Communities.

   [33] Disability Justice Services is an agency within the Department of Communities that provides services for eligible people with (inter alia) cognitive impairment who are involved with the criminal justice system.

   [34] BOM 259 (Community Supervision Assessment, 7.6.2019, p 9).

1. I have indicated that the Superintendent's assessment may not reflect the respondent's situation for the whole of the review period, because there is an indication in the minutes of the interagency meeting of 7 August 2018 that, for a period of time, prison staff were dealing with the respondent in a manner that was sensitive to his circumstances and led to positive behaviour from the respondent.  The representative from Disability Services informed the meeting that he had attended WKRP the previous week when the disability awareness training was conducted.  The representative:[35]

   … informed he observed Mr Pindan at the prison and praised the work of prison staff in regards to their work with Mr Pindan.  He stated that it is evident WKRP is the appropriate place for Mr Pindan if he is in custody.  He informed he observed Mr Pindan to interact with staff and indicated Mr Pindan was far more engaged that (sic) he anticipated.  He stated he observed him clean his cell and it appeared Mr Pindan was capable for this when motivated to do so.  He informed that all interaction he observed with and by Mr Pindan was positive.  He informed Mr Pindan appears to thrive on consistency and structure, which was supported by psychologist Tara Yewers.  He stated Disability Services can provide further support to staff to assist with this, develop further expertise and skill development.

   [35] Exhibit 3C.

2. As will appear below, the need for consistency and structure is a theme also emphasised by Dr Wynn Owen.

3. Notwithstanding the comment from the Superintendent of WKRP, it seems to me, upon assessing all of the evidence, including the daily log and the minutes of interagency meetings, that efforts have been made, both at a management level and by prison staff, to deal with the respondent in a manner that takes into account his cognitive deficits, even if those efforts have not always been consistent.  The reasons for the inconsistencies were addressed by Dr Wynn Owen and will be referred to below.   

4. There had been a change to the respondent's supervision scheme a short time before the hearing, which I will discuss below.[36]

(iv) Dr Wynn Owen's assessment

Background to assessment

[36] See [56] below.

1. Dr Wynn Owen has assessed the respondent for each review of the CDO since 2012.  In his report for the present review, he adopted the observations and opinions he had expressed in his earlier reports and conducted his assessment against that background.

Sources of information

1. Dr Wynn Owen interviewed the respondent at WKRP on 14 May 2019.  He also had discussions with WKRP custodial and health staff, a telephone discussion with Ms Wotherspoon, the respondent's SCCO, and access to the materials in the BOM.

Overall assessment

1. In summary, Dr Wynn Owen is of the opinion that the respondent continues to present a high risk of future serious sexual offending, if he is not subject to a CDO or a supervision order.[37]  This is based, primarily, on factors related to the respondent's intellectual deficits, in particular in respect of his frontal lobe function, considered in the light of his previous sexual offending.  Those factors consist of his inability to plan, his 'inability to make a judgment about an impulsive decision in terms of the possible consequences', and his inability to safely manage primal drives, such as his sexual drive.[38]  These problems in his functioning are exacerbated by intoxication.[39]  The respondent is highly likely to return to alcohol use if released in circumstances in which he has access to alcohol,[40] and, in Dr Wynn Owen's opinion, if intoxicated, the respondent will present a very high risk of committing a new serious sexual offence.[41]

The respondent's presentation

[37] BOM 247 (Dr Peter Wynn Owen's report, 6.6.2019, p 18).

[38] ts 22.

[39] BOM 244 (Dr Peter Wynn Owen's report, 6.6.2019, p 15).

[40] ts 23.

[41] BOM 245 (Dr Wynn Owen's report, 6.6.2019, p 16).

1. The respondent was 51 years of age at the time of the review.

2. Dr Wynn Owen reported that, overall, the respondent appeared to be more attentive than when previously assessed by Dr Wynn Owen, and he spoke more spontaneously and with longer sentences.[42]  He was able to remain engaged in the interview without asking to leave.[43] I note that the respondent has become restless at times during hearings under the DSO Act and has asked to leave. He did so towards the end of the hearing in the present matter. It has to be acknowledged that the duration of the hearing was longer than Dr Wynn Owen's interview and that the respondent was not directly engaged during the hearing, whereas he was during Dr Wynn Owen's interview. Overall, Dr Wynn Owen's evidence suggests that there has been improvement in the respondent's communication and engagement, which provides some cause for optimism in respect of potential targeted training to assist the respondent to improve his functional skills. I note, however, that Dr Wynn Owen had reported an improvement in the respondent's communication and his mood and affect at the time of the previous review,[44] and it was not clear from Dr Wynn Owen's evidence in these proceedings whether he was describing further improvement or a continuation of the previously observed improvements. It does appear from the tenor of Dr Wynn Owen's evidence, however, that he considered the respondent may be better placed on this occasion to benefit, even if only to a small extent, from some form of intervention.[45]

   [42] BOM 239 (Dr Wynn Owen's report, 6.6.2019, p 10).

   [43] BOM 239 (Dr Wynn Owen's report, 6.6.2019, p 10).

   [44] Pindan [No 6] [17].

   [45] See [73] below.

3. Apart from the improvement in the respondent's ability to communicate, Dr Wynn Owen also noted that the respondent's mood, gait and mobility had improved.[46]  A significant development since the last review was that the use of antipsychotic medication had been discontinued in the treatment of the respondent's psychotic symptoms that had been identified previously.  During his interview with Dr Wynn Owen, the respondent exhibited 'no evidence of previously observed antipsychotic side effects in the form of masked face, stiff movements with reduced mobility, facial movements and tics or drooling'.[47]  Dr Wynn Owen considered those improvements to be a direct result of the cessation of the antipsychotic medication.[48]  Again, I note that Dr Wynn Owen had reported similar improvements at the time of the last review, which he thought might be explained at that time by the change that had been made in the respondent's anti-psychotic medication.[49]  However, on the previous occasion the improvement was manifested by fewer of the side effects,[50] whereas on this occasion Dr Wynn Owen said there was no evidence of the side effects.

Approach to risk assessment

[46] BOM 246 (Dr Wynn Owen's report, 6.6.2019, p 17).

[47] BOM 246 (Dr Wynn Owen's report, 6.6.2019, p 17).

[48] BOM 246 (Dr Wynn Owen's report, 6.6.2019, p 17).

[49] Pindan [No 6] [17].

[50] Pindan [No 6] [17].

1. As on previous reviews, Dr Wynn Owen's assessment of the respondent's risk of future sexual offending relied on the STATIC‑99R actuarial risk assessment instrument, the Risk for Sexual Violence Protocol (RSVP), which is a structured guide that takes into account both historical and dynamic factors, and clinical judgment based on his assessment of the materials and his interview with the respondent.  Dr Wynn Owen noted that the respondent's 'cognitive impairment and (probably associated) lack of self‑awareness have resulted in no change in [his dynamic] factors'.[51] 

STATIC-99R and RSVP

[51] BOM 245 (Dr Wynn Owen's report, 6.6.2019, p 16).

1. Dr Wynn Owen reported that the respondent's score on the STATIC‑99R places him in the 'well above average' risk category.[52]  Offenders in this category have a 27.2% likelihood of committing another sexual offence within 5 years of release.[53]  Additionally, the respondent's cognitive deficits, and failure or inability to respond to treatment interventions, place the respondent in the 'High Risk/High Needs' subcategory.[54]  Offenders in this category have a 30.7% likelihood of committing another sexual offence within 5 years of release.[55]

   [52] BOM 242 (Dr Wynn Owen's report, 6.6.2019, p 13).

   [53] BOM 243 (Dr Wynn Owen's report, 6.6.2019, p 14).

   [54] BOM 243 (Dr Wynn Owen's report, 6.6.2019, p 14).

   [55] BOM 243 (Dr Wynn Owen's report, 6.6.2019, p 14).

2. Apart from the respondent's cognitive deficits, factors that contribute to his risk of future offending and continue to be relevant include:  his social isolation (which preceded his sexual offending, but has been exacerbated by his alienation from much of his community and his extended family as a result of his sexual offending); his lifelong problems with both intimate and non‑intimate interpersonal relationships more generally; and the fact he is unlikely to secure employment if released.[56]  Further factors that are relevant in the RSVP assessment are the respondent's denial of his offending, his lack of self‑awareness and inability to understand his risk factors, and his problems with manageability, all of which are discussed below.

Understanding of previous offending and risk factors

[56] BOM 244 (Dr Wynn Owen's report, 6.6.2019, p 15).

1. The respondent could not explain to Dr Wynn Owen why he was currently detained.  The respondent said, 'I don't know ... I'm getting out soon, you help me get out?'[57]  When asked specifically if his incarceration was related to his sexual assaults, he said, 'No, just drinking, just drinking.'[58]

   [57] BOM 240 (Dr Wynn Owen's report, 6.6.2019, p 11).

   [58] BOM 240 (Dr Wynn Owen's report, 6.6.2019, p 11); ts 18.

2. When Dr Wynn Owen gave the respondent a brief overview of the respondent's sexual offending, the respondent looked away, smiled, laughed and shook his head.[59]  He would not discuss the offending further, which is consistent with his conduct in past interviews with Dr Wynn Owen.[60]  While the respondent did not engage in discussion about his past offending, Dr Wynn Owen regarded the respondent's reaction as demonstrating continuing denial in relation to his past offending.[61]

   [59] BOM 240 (Dr Wynn Owen's report, 6.6.2019, p 11).

   [60] BOM 240 (Dr Wynn Owen's report, 6.6.2019, p 11).

   [61] BOM 243 (Dr Wynn Owen's report, 6.6.2019, p 14).

3. Dr Wynn Owen noted that the respondent did not demonstrate any self‑awareness in relation to the antecedents to his past offending or 'the immediate context of or precipitants to offending, including the role of alcohol'.[62]  Dr Wynn Owen considers the respondent's use of alcohol as his most significant dynamic risk factor, but the respondent does not have an appreciation of the relationship between his drinking and his future risk of offending or a return to incarceration.[63]  Dr Wynn Owen described the exchange during the interview as follows:[64]

   Asked about alcohol Mr Pindan immediately smiled. He reported that he would drink when released because he enjoyed it. He stated that he did not think drinking would present a risk to himself or others and, as previously, did not demonstrate any understanding of a connection between his past alcohol use and past sexual offending.

   [62] BOM 243 (Dr Wynn Owen's report, 6.6.2019, p 14).

   [63] ts 19.

   [64] BOM 240 (Dr Wynn Owen's report, 6.6.2019, p 11).  The respondent's indication that he would drink when released mirrors a statement reportedly made by him to his Prison Support Officer on 16 November 2019 that, when released, he would 'smoke gunga (i.e. cannabis) and drink alcohol': BOM 252 (Community Supervision Assessment, 7.6.2019, p 2).

4. Consequently, in Dr Wynn Owen's opinion, there is a high likelihood that the respondent would return to drinking, given the opportunity.[65]

Capacity to plan and take measures to avoid risk scenarios

[65] ts 19.

1. The respondent's intellectual impairments contribute to his poor planning, poor decision making, and impulsivity.[66]  Further, the respondent has problems with attention, concentration and memory, which affect his ability to learn.[67]  Dr Wynn Owen is of the view that these deficits, which he notes are exacerbated by alcohol intoxication in the context of the respondent's Substance Abuse Disorder, are 'central' to the respondent's risk of reoffending.[68]

   [66] BOM 244 (Dr Wynn Owen's report, 6.6.2019, p 15).

   [67] BOM 244 (Dr Wynn Owen's report, 6.6.2019, p 15).

   [68] BOM 244 (Dr Wynn Owen's report, 6.6.2019, p 15).

2. Dr Wynn Owen noted that the respondent has difficulty managing simple day to day tasks such as cleanliness and personal hygiene, even within the structured environment of prison.[69]  Consequently, he remains in a maximum security area of the prison, having been deemed unsuitable for transition to a self‑care unit.[70]  Dr Wynn Owen noted that the daily reports and incident reports indicated that the respondent had 'not necessarily [been] compliant on a regular basis with instructions from prison officers', and there was 'no evidence that behaviour and those fluctuations of behaviour have changed significantly over the last two years, or even probably over the last five'.[71]

   [69] BOM 244 (Dr Wynn Owen's report, 6.6.2019, p 15).

   [70] ts 20.

   [71] ts 22.

3. Dr Wynn Owen concluded that the respondent's lack of self‑awareness and poor planning will make it 'difficult for him to plan to avoid reoffending or be organised enough to meet reporting requirements without significant support'.[72] 

Presence of libido and a sexual interest in women

[72] BOM 244 (Dr Wynn Owen's report, 6.6.2019, p 15).

1. The respondent acknowledged that he was attracted to and interested in some women he saw in the prison.[73]  He also acknowledged that he had enjoyed looking at pictures of women in lingerie when he had them in his possession and that he often found women he saw on TV attractive.[74]  However, he said he did not masturbate.  His denial needs to be considered in the context of his reaction to specific questioning about the topic by Dr Wynn Owen, which suggests he may find the issue embarrassing and/or uncomfortable to talk about.  Dr Wynn Owen said that, when he questioned the respondent about his sexual functioning (including masturbation), the respondent laughed 'in a somewhat abashed way' and often looked away.[75]  Dr Wynn Owen said that, in assessing the respondent's reticence, it is necessary to take into account the respondent's cognitive level and his attitudes towards people who only very occasionally see him and are in positions of authority.[76]  However, it means we do not have a 'window … into [Mr Pindan's] sexual function or fantasy'.[77]

   [73] BOM 239 - 240 (Dr Wynn Owen's report, 6.6.2019, pp 10 - 11).

   [74] BOM 240 (Dr Wynn Owen's report, 6.6.2019, p 11).

   [75] BOM 240 (Dr Wynn Owen's report, 6.6.2019, p 11); ts 22.

   [76] ts 22.

   [77] ts 22.

2. Dr Wynn Owen was of the view that the respondent does have a libido, evidenced in part by his collection of photographs of women.  He said that, in a man of the respondent's age, one would expect such a libido, and it is not indicative of hypersexuality or deviance.[78]

Management

Management in prison

[78] ts 22.

1. Dr Wynn Owen noted from the materials in the BOM and discussions with prison staff at WKRP that the respondent's work routine in prison had not changed since the previous review.[79]  The respondent continued to collect and return the meal trolley for his unit, accompanied by a prison officer.  Prison officers had noted (and it was also recorded in the daily log) that, at times, when carrying out his job, the respondent would 'linger where he [could] see female prisoners through the fence, where female visitors are present and in sight of female staff'.[80]  Dr Wynn Owen observed that similar behaviour had been noted in pervious reviews.

   [79] BOM 237 (Dr Wynn Owen's report, 6.6.2019, p 8). However, as noted at [22] above, it appears the respondent was working as a laundry cleaner at the time of the hearing.

   [80] BOM 237 - 238 (Dr Wynn Owen's report, 6.6.2019, pp 8 - 9).

2. There were a number of specific incidents concerning the respondent's conduct that had been reported since the last review.  It is apparent from reading the materials in the BOM and the minutes of interagency meetings concerning the respondent's management, that the incidents were not the only occasions on which the respondent's conduct was considered to be problematic.  Nevertheless, as they were matters raised by Dr Wynn Owen with the respondent during the interview, it is appropriate to identify them.  The incidents were as follows:[81]

   (1)In April 2017, the respondent was observed to be focusing intently on the visits area.  When asked what he was doing, the respondent told the prison officer that he was looking at 'girls'.  The officer noted that the only female present was a two and a half‑year‑old girl.  Later, the respondent was again observed to be focussed on the same female child.

   (2)Also in April 2017, the respondent appeared to stroke the hand of a female officer in a manner she regarded as inappropriate.

   (3)In September 2017, during a cell search, the respondent was found to be in possession of pictures of adult women in lingerie and one picture of a topless woman.

   (4)In October 2017, the respondent was accused by another prisoner of grabbing him from behind, and touching his buttocks, anus and testicles through his clothing while in a lunch queue.  The respondent denied the accusation.

   (5)In February 2018, the respondent called out 'sweetheart' on four occasions to a female officer driving past in a prison vehicle.

   [81] BOM 237 (Dr Wynn Owen's report, 6.6.2019, p 8).  See also BOM 253 - 254 (Community Supervision Assessment, 7.6.2019, pp 3 - 4).  The latter refers to another reported incident based on hearsay, which I have ignored because it was not confirmed upon investigation.

3. When asked about these incidents by Dr Wynn Owen, the respondent said that he had no recollection of the incident involving the female child, the stroking of the female officer's hand, or calling out 'sweetheart' to a female prison officer.  He recalled the accusation made by the male prisoner, but adamantly denied that it had occurred.[82]

   [82] BOM 239 (Dr Wynn Owen's report, 6.6.2019, p 10).

4. Apart from the alleged indecent assault of another inmate, Dr Wynn Owen did not comment on the significance, if any, of the reported incidents to his assessment of the respondent's risk.  In my opinion, the incidents reflect broadly the respondent's impulsivity and lack of self‑awareness and proper social boundaries.  The items found in his cell and his behaviour towards the female prison officers, as well as the observations that, while working, he would linger where he could see female prisoners, visitors and staff, tend to support Dr Wynn Owen's opinion that the respondent continues to have a sexual interest in adult females, but they do not shed light on the level of his risk of sexual reoffending. 

5. The incident in which the respondent appears to have been focused on a two and a half‑year‑old girl is potentially of greater concern, given his offending in 1997, which involved a 5‑year‑old girl.[83]  However, it is difficult to draw any particular inference as to the respondent's mindset at the time of that incident.  There is no indication in the evidence generally that the respondent has demonstrated a deviant sexual interest in children while he has been in prison.  To the extent that he was prepared to talk to Dr Wynn Owen about his sexual interests, it was in respect of adult women.  Nevertheless, given that the respondent's sexual functioning and fantasies remain obscure, the incident concerning the child visitor cannot be dismissed.

   [83] See Pindan [No 1] [38].

6. More generally, in terms of the respondent's manageability in prison, Dr Wynn Owen noted that it appeared the respondent's patterns of behaviour had not changed since the last review.[84]  In that context, Dr Wynn Owen referred to the incident in which the respondent was accused of indecently assaulting the inmate, and noted there had been a previous incident involving similar conduct towards a 'vulnerable' prisoner, which resulted in the other prisoner being transferred to a different prison, and the respondent being regarded as 'sexually predatory' towards vulnerable prisoners within the prison.  Dr Wynn Owen noted that it is not clear whether the incidents were motivated solely by sexual interest, or whether he engaged in the conduct as a form of intimidation to elicit tobacco.[85]

   [84] BOM 246 (Dr Wynn Owen's report, 6.6.2019, p 17).

   [85] BOM 246 (Dr Wynn Owen's report, 6.6.2019, p 17).

1. Dr Wynn Owen noted that, while the respondent had played sport for the whole time he had been at WKRP,[86] he had not been offered any educational opportunities or cultural pastimes in the previous two years,[87] which was contrary to recommendations he had made in previous assessments.  Dr Wynn Owen appears to have drawn that conclusion from the absence of any mention of educational and cultural activities in the logs.[88]  Dr Wynn Owen reported that the respondent had been 'deemed unsuitable' for such activities by prison staff.[89]  In evidence he said that, in his most recent discussions with officers from WKRP, they had said it was to do with the respondent's level of security.[90]

   [86] ts 31.

   [87] BOM 238 (Dr Wynn Owen's report, 6.6.2019, p 9).

   [88] ts 32.

   [89] BOM 238 (Dr Wynn Owen's report, 6.6.2019, p 9).

   [90] ts 32.

2. However, the minutes of the interagency meetings disclosed that efforts had been made to provide the respondent with educational opportunities.  I will say more about that later, in dealing with submissions made on behalf of the respondent.  Of particular significance was the latest information in respect of the respondent's circumstances and his management in prison as at the time of the review, which was contained in an email from Ms Cassam to Ms Wotherspoon on 18 June 2019,[91] which indicated there had been developments in that regard, albeit somewhat belatedly.  Ms Cassam said that prison staff had notified COMU the previous day that they had changed the way they were managing the respondent at that time.  His management plan had been changed approximately three weeks earlier, as a result of which the respondent was no longer required to be under staff supervision at all times.  He was also allowed to attend recreation without supervision and had been engaged in some sport with other prisoners.  Ms Wotherspoon explained in evidence that the respondent's security rating had not changed, but he was no longer escorted by a prison officer at all times.[92]  According to Ms Cassam's email, the feedback from the prison was that, at that stage, those changes appeared to have had a positive impact on the respondent.  The email continued:[93]

   For example, they advised that he appears motivated to attend recreation and he is aware that if he has items on his person at the end of the day that he is not permitted, then he will be excluded from attending recreation the next day.  Initially following these changes, Mr Pindan was searched and items such as lighters were located and he was unable to attend recreation the next day, however officers advised that he has now been coming into the unit and handing over any items in his possession that should not be.  Prison staff also advised that another prisoner has again been allocated to Mr Pindan to engage him in education activities.  They undertook a session recently which [lasted] an hour and a half and there was positive feedback in regards to this.  As a result, the sessions are planned to occur two mornings per week.

   [91] Exhibit 2.

   [92] ts 98.

   [93] Exhibit 2.

3. That information was important in two respects.

4. First, given the time that had elapsed since the last of the incidents that resulted in negative reports about the respondent, I do not consider that they necessarily reflected the respondent's current patterns of behaviour at the time of the hearing.  While Dr Wynn Owen's opinion that the respondent's patterns of behaviour appeared not to have changed since the previous review was undoubtedly correct as a reflection of the overall picture during that period, there were signs of some recent changes.  Those changes included improved motivation to engage in recreational and educational activities, and learned behaviour in relation to handing over items he should not have.  Of course, the fact that he was in possession of items he needed to hand over tends to confirm the persistence of earlier problematic patterns of behaviour in the first place.

5. The second point is that the recommendations previously made by Dr Wynn Owen in respect of educational opportunities and cultural pastimes had been addressed by the Department, even if action was somewhat slow in coming, and there appeared to have been positive developments.  It is apparent from the minutes from the interagency meetings that the efficiency with which Dr Wynn Owen's recommendations in respect of education and recreational activities were implemented was affected to some extent by the respondent's motivation and level of engagement.

Manageability in the community

1. In terms of the respondent's manageability in the community, Dr Wynn Owen was of the opinion that the respondent's inability to manage simple daily tasks means that he presents as a 'significant management challenge'.[94]  He noted that the respondent requires a 'range of support and supervision in relation to accommodation, health, hygiene, daily living skills and needs, compliance with supervision and monitoring if reoffending risk is to be managed in a community setting.'[95]

   [94] BOM 244 (Dr Wynn Owen's report, 6.6.2019, p 15).

   [95] BOM 244 (Dr Wynn Owen's report, 6.6.2019, p 15).

2. Dr Wynn Owen was of the opinion that, if the respondent were to be released on a supervision order, he would require 24‑hour supervision and some form of dedicated accommodation.[96]  Dr Wynn Owen identified that merely having a curfew (unsupervised) at night would be insufficient protection, as the respondent currently cannot control his impulse to leave his cell at night, which suggests to Dr Wynn Owen that the respondent might leave his residence notwithstanding a curfew.[97]  All of this is consistent with views expressed by Dr Wynn Owen after previous assessments.

Recommendations

[96] ts 23.

[97] ts 23.

1. Dr Wynn Owen's recommendations were essentially the same as his previous recommendations,[98] focused on improving the respondent's quality of life and interpersonal interactions while in prison and ensuring consistency of approach in the management of the respondent's behaviour, with a view to giving him greater structure and enhancing the prospects of behavioural change. 

   [98] ts 30.

2. In respect of the first goal, as before, Dr Wynn Owen recommended that consideration be given to enabling the respondent to have access to educational, cultural and musical opportunities, with additional supervision if that is deemed necessary.[99]  Dr Wynn Owen said that the respondent had indicated to him that he has an interest in country and western music and in attending other cultural activities.[100]  He said that the respondent has indicated in the past that he is aware that such activities are available, but that he has not been able to access them, so Dr Wynn Owen has sought to make it clear since about 2014 that consideration be given to providing the respondent with those opportunities.[101]  As I will outline below, when one has regard to the minutes of the interagency meetings, it is apparent that the respondent has been given educational opportunities and at least some access to resources for the purposes of pursing art as a cultural interest.  Apart from the fact that the respondent has not necessarily been accurate in his account to Dr Wynn Owen about what has taken place, what he has said to Dr Wynn Owen in the course of an interview for about an hour about what he would like to do and his motivation does not necessarily reflect what he has said to prison staff about those matters from time to time.  Nevertheless, it is necessary for the Department to continue to pursue efforts to provide opportunities to the respondent to engage in educational, artistic and musical activities. 

   [99] BOM 247 (Dr Wynn Owen's report, 6.6.2019, p 18).

   [100] ts 30.

   [101] ts 30.

3. In respect of the second goal, Dr Wynn Owen emphasised the need for continuing training of prison staff to enable them to supervise and manage the respondent more effectively, having regard to his cognitive deficits.  He said that it was apparent from his discussion with WKRP staff that, while the training provided by Disability Services had given staff who undertook the training an understanding of the behavioural management plan and had assisted them in their dealings with the respondent, a changeover in staff in more recent times had meant that a lot of officers who were directly involved with the respondent since then had not had that training.[102]  It appeared that this had resulted in some officers relating to the respondent as if he has 'normal cognitive function and probably [logical deductive] reasoning rather than just a very concrete way of thinking'.[103]  Further, the lack of training of newer staff appeared to result in a 'very distinct difference in … the quality of the … daily behavioural reporting'[104] (i.e. the entries made in the daily log).  

   [102] ts 21.

   [103] ts 21.

   [104] ts 21.

4. Dr Wynn Owen emphasised the need for the daily log (which was introduced on his recommendation) to focus on behaviours that would inform what could be done to engage the respondent in activities that would improve his functioning in prison and prepare him for release into the community.[105]  In essence the log was intended to assist in the care and treatment of the respondent.[106]  Dr Wynn Owen was of the opinion that the log could have significant value in the further management of the respondent if it gives rise to interventions to address specific issues and is used to monitor any changes in the respondent's behaviour as a result of such interventions.[107]  That is particularly so if the officers maintaining the log have received training from Disability Services in respect of the behavioural management plan formulated to take into account the respondent's cognitive deficits.[108]

   [105] ts 33.

   [106] ts 33.

   [107] ts 33.

   [108] ts 35.

5. My own assessment of the daily log[109] was that there was variation in the quality of the entries from time to time, in terms of detail and relevance to the issues that inform the respondent's care and treatment, as identified by Dr Wynn Owen.  In my view, a number of entries provided good insight into changes in the respondent's behaviour, including explanations given by him or by officers for certain behaviour, but other entries tended to be a 'cataloguing' of what the respondent had done (as his counsel described it).

   [109] BOM 131 - 229.

6. Dr Wynn Owen highlighted the need for a consistent approach by all staff who work directly with the respondent in maintaining the log and in the approach taken in managing the respondent's negative behaviours, with a preference for positive reinforcement of appropriate behaviour, rather than the imposition of punitive measures for negative behaviour, although Dr Wynn Owen acknowledged that there would be times when punitive measures would be necessary.[110]  If punitive measures are to effect change in a person with cognitive deficits, it is necessary for them to have a temporal nexus to the negative behaviour; in other words, the response needs to be immediate if the respondent is to process it and change his behaviour.[111]

   [110] ts 33, 37.

   [111] ts 37.

7. It is apparent from the most recent information at the time of the hearing that the respondent does have the capacity to learn from punitive measures (such as being denied attendance at recreational activities the following day) and to subsequently act in accordance with relevant rules.[112]  The example referred to by Ms Cassam in her email tends to confirm the effectiveness of an immediate response by prison staff.[113]  Of course, this should not detract from the preference for positive reinforcement of appropriate behaviour as a general first instance approach.

   [112] See [556] above.

   [113] Exhibit 2.

8. Dr Wynn Owen was of the view that the improvement in the quality of the respondent's communication and his affect may enable better participation by him in educational and recreational activities in the future and better understanding of his responses by those working with him.[114]

(v) Treatment

[114] ts 20.

1. The respondent had not received any psychological intervention since his last review.[115]  It has been established in past assessments by Dr Wynn Owen and Dr Yewers, who previously was the Senior Counselling Psychologist with responsibility for the respondent's treatment, that due to the respondent's cognitive deficits, difficulties with communication and inability to comprehend the nature and requirements of his order,[116] psychological intervention would not be productive.  Indeed, the respondent has been 'repeatedly assessed as being unsuitable for psychological intervention' by the Department's Forensic Psychological Services (FPS) division.[117]

   [115] BOM 248 (Dangerous Sex Offender Treatment Progress Report (DSOTP report), 7.6.2019, p 1).

   [116] In context, and having regard to Dr Wynn Owen's report and evidence, I have understood this to be a reference to the CDO.

   [117] BOM 248-249 (DSOTP report, 7.6.2019, pp 1 - 2).

2. As a result, the role of the FPS has continued to be consultative, as required, in relation to the psychological and behavioural aspects of the respondent's management.[118]  Ms Williams was of the view that the most suitable service to engage with the respondent, at this stage, would be an occupational therapist, available through Disability Justice Services, 'to implement positive behavioural support strategies to assist [Mr Pindan] to increase his engagement in activities'.[119]

   [118] BOM 249 (DSOTP report, 7.6.2019, p 2).

   [119] BOM 250 (DSOTP report, 7.6.2019, p 3); ts 57, 58.

3. In evidence, Dr Wynn Owen initially said that he saw no change in terms of the value to be gained from 'professional psychological input' at that stage, but that 'mentoring and support and … positive reinforcement of good behaviours and some consistency in that will be of significant value',[120] and that might be achieved by having 'a dedicated person or persons over time to see whether [there is] an opportunity to create an improvement in day‑to‑day behaviours'.[121]

   [120] ts 24.

   [121] ts 24.

4. In cross-examination, Dr Wynn Owen was referred to his opinion, expressed in his report,[122] that, because of the respondent's cognitive deficits, it seems unlikely that his risk of reoffending will reduce further until the impact of age or specific medical pathology significantly restricts his mobility.  He was asked whether that meant that the respondent's improved quality of communication and demeanour would not affect the prospect of a reduction in his risk of reoffending.  In that context, Dr Wynn Owen appeared to leave open the possibility that the appropriateness of psychological intervention may be reconsidered:[123]

   The opportunity to see whether an intervention can make any difference has not been realised yet.  There may be.  I would imagine any change would be small but it's certainly worth seeking at the time when his communication has improved and he may be more amenable.

(vi)  Accommodation and disability support

[122] BOM 247 (Dr Wynn Owen's report, 6.6.2019, p18).

[123] ts 45.

1. At the last review, Corboy J said:[124]

   [The] respondent is one of a group of persons who are in custody under the DSO Act and whose ... release to the community is substantially, if not entirely, dependent on the provision of appropriate accommodation - generally, accommodation that provides a highly structured environment with full-time care and supervision.  Regrettably, accommodation of that kind remains scarce.

   [124] Pindan [No 6] [38].

2. Suitable accommodation was not available for the respondent at the time of that review.  It was still not available at the time of the present review.  As counsel for the respondent correctly submitted, consistently with the expert evidence, the concept of accommodation in the respondent's case necessarily includes the availability of around‑the‑clock assistance and support in respect of his daily living requirements and the management of his behaviours.  Irrespective of whether suitable premises are found, it will not be suitable accommodation without the support.

3. The respondent has expressed a strong desire to be released into his community in the Kimberley, saying to Ms Wotherspoon that, even if there was suitable accommodation for him in the metropolitan area, he did not want to live there.  He wants to remain in the Kimberley region.[125]

   [125] ts 68 - 69.

4. Ms Wotherspoon reported that 'no services have been identified in the Kimberley or elsewhere that could provide Mr Pindan with 24 hour, seven days per week supported accommodation to manage his behaviour and risks.'[126]  If a suitable service is identified in due course for the respondent to remain in Derby or Broome (his expressed preferences), the accommodation would need to be in privately rented premises or in government housing available through the Department of Housing, as there is no accommodation available from any of the agencies that make accommodation available to persons released on supervision orders.[127]  As for Department of Housing accommodation, there was a lengthy waiting list as at the time of the hearing.[128] 

   [126] BOM 260 (Community Supervision Assessment, 7.6.2019, p 10).

   [127] ts 97 - 99.  Ms Wotherspoon was aware of only one agency in that provides services to offenders or persons subject to the DSO Act who have been released from prison, and she was not sure if they could assist with accommodation for the respondent: ts 99.

   [128] ts 98.

5. In Pindan [No 6], Corboy J noted that Disability Services has a role in planning the respondent's management.  His Honour also noted that the National Disability Insurance Scheme (NDIS) was due to start in the Kimberley region in the latter part of 2017, but it was not known whether the respondent would qualify for funding and support through that scheme at the time of that review hearing.[129]

   [129] Pindan [No 6] [28].

6. Ms Wotherspoon reported in these proceedings that, on 5 October 2017, a request was made to Disability Services to review the respondent's case with respect to the making of a referral to the NDIS to ascertain if the respondent was eligible for funding under that scheme.[130] On 12 July 2018, the Department was informed by Disability Services that, although the respondent had been 'deemed eligible' for support under the NDIS, planning (for the manner in which the funding would be used to support the respondent) would need to occur through the National Disability Insurance Agency (NDIA), which had been established to oversee the delivery of the NDIS,[131] and a new referral was required.[132]  Counsel for the respondent pointed out that, at the interagency meeting of 24 April 2018, the Director of Disability Justice Service, had informed the meeting that the respondent did not have a current NDIS plan and it would be necessary to contact the NDIA to make an 'access request'.[133]

   [130] BOM 259 (Community Supervision Assessment, 7.6.2019, p 9).

   [131] ts 95 (Ms Wotherspoon).

   [132] BOM 259 (Community Supervision Assessment, 7.6.2019, p 9); ts 66, 67.

   [133] ts 81 - 82; Exhibit 3B.

7. Regrettably, irrespective of whether the Department was first aware of the need to make a referral to NDIA in April or July 2018, there was a delay in making the second referral, for reasons that included the misplacing of the referral and the need to obtain input from medical professionals, but are not otherwise readily apparent.  The documents were emailed to the NDIA on 4 December 2018.[134]  At the time Ms Wotherspoon prepared her report, the respondent's application remained 'waiting for an assessor to make a decision regarding his eligibility'.[135]  In evidence, Ms Wotherspoon said that, on 17 June 2019, emails had been sent by her and the COMU Team Leader to the NDIA, including to the Director of 'service delivery transition WA', requesting that the referral be escalated and seeking an estimated timeframe for a decision, if a decision had not yet been made.[136]  However, although the Director had told the COMU Team Leader that she would look into the respondent's case, Ms Wotherspoon had not received a response before giving evidence. 

   [134] BOM 259 (Community Supervision Assessment, 7.6.2019, p 9).

   [135] BOM 259 (Community Supervision Assessment, 7.6.2019, p 9).

   [136] ts 66.

1. Therefore, the level of support that may be available to the respondent through the NDIA/NDIS scheme, if any, was still unknown at the time of the hearing.  In that respect, the position had not changed since the last review.

2. Ms Wotherspoon said she was on leave for three and a half months, in the period between forwarding the documents to the NDIA and her enquiry with the NDIA on 17 June 2019.[137]  The COMU Team Leader attended to some 'follow up' during that period, and the NDIA had requested additional medical information, which was provided by the Department.[138]

   [137] ts 86. 

   [138] ts 86.

3. Ms Wotherspoon agreed that accommodation planning for the respondent now is reliant upon NDIS funding, and, as at the time of the review, the Department had no alternative plan.[139]

(vii) Submissions in respect of the adequacy of steps taken by the Department

[139] ts 74.

1. The CDO places an obligation on the Department to provide care and treatment to the respondent. 

2. As I have outlined, although it seems Dr Wynn Owen has not closed the door completely on psychological treatment as a future intervention that may yield some small benefit in mitigating the respondent's risk of sexual reoffending, at the time of the hearing the respondent was considered to be unsuitable for psychological treatment because of his cognitive deficits.  However, there are measures that can be taken which may result in some improvement of the respondent's functioning, which in turn may contribute to some mitigation of the respondent's risk of sexual reoffending.  That the respondent has some capacity for improvement is indicated by the fact that his communication skills had improved since Dr Wynn Owen last assessed him.  Some measures have been taken to provide this broader form of 'treatment', but questions were raised on behalf of the respondent as to whether enough had been done since the last review, given the recommendations that had been made by Dr Wynn Owen and endorsed by the court previously. 

3. Similarly, the need for funding to be sought on behalf of the respondent to enable him to receive the intensive care (in the form of live‑in support) he would need in the community has been identified for several years.  Questions were raised on behalf of the respondent as to whether reasonable steps had been taken by the Department in that regard to meet its obligations to provide care to the respondent.

4. It is clear that there has been considerable delay in the process of seeking NDIS funding and an NDIA plan for that purpose.  At least part of that delay has occurred since the second referral was made to the NDIA.  There was no evidence in the hearing concerning the time (or range of times) it would ordinarily take for a decision to be made by the NDIA on a referral and for a plan to be implemented, if funding is granted.  There was no evidence as to the policies or considerations that might affect a decision.  Therefore, it is not appropriate to make any comment about the delay, other than it is regrettable.

5. Counsel for the respondent submitted that it was not reasonable for the Department to allocate an SCCO to deal with the respondent's case who did not have knowledge of the NDIA and NDIS processes, and there was no reasonable explanation for the delays in making the second referral, when it had been known for some time that such a referral would be necessary.  However, the minutes of the interagency meetings show that there was a representative from Disability Services who had knowledge of the processes and was able to inform those who had a role in the management of the respondent's case, including Ms Wotherspoon, who attended some of the meetings, about those processes.  Those minutes reveal that the Department created and pursued action items to pursue NDIS funding for the respondent in light of findings previously made by the court.  It did not ignore its obligations in that regard.  It is also necessary to bear in mind that Ms Wotherspoon had responsibility for persons in custody other than the respondent and was also required to prepare court reports for proceedings other than under the DSO Act.[140] 

   [140] ts 96.

6. Nevertheless, I think it is fair to say that more could have been done to ensure that the SCCO who was responsible for referring the respondent's case to the NDIA was provided with training as part of her professional development to enable her to deal with the referral more efficiently.  There is much to be said for such training to be provided generally to CCOs, given that there a number of cases in the system involving offenders with cognitive disabilities.  I also agree that greater priority should have been given to following up on progress in the NDIA's consideration of the referral, and I agree with the submission made by the respondent's counsel, that there should be 'timely and assertive follow up with NDIS and NDIA.'[141]  However, the shortcomings in those areas do not amount to a failure in the Department's obligation to care for the respondent of a kind that could affect the outcome of these proceedings.  The paramount consideration remains the adequate protection of the community.

   [141] ts 124.

7. The respondent's counsel was also critical of the Department's response to the requirement, identified for some time now, that the respondent be considered for educational and recreational activities.  This was substantially based on the absence of specific mention of such activities in the daily log and the respondent's statements to Dr Wynn Owen that he had not been given such opportunities.  However, the minutes of the interagency meetings indicate that the respondent was given educational opportunities, but he was not always motivated to participate.  He also had a support worker (another prisoner) who assisted him with such activities for a period, but that support worker left. 

8. The minutes of 29 November 2017[142] record that [redacted] raised the issue of whether the respondent had been engaged in any further recreation in the prison, such as art.  The WKRP representative indicated that the respondent 'has a short attention span and the logistics of engaging him in art may be challenging'.[143]  The Assistant Commissioner, Adult Community Corrections, suggested that it could be one day per week for a short period of time, facilitated by education staff.  The minutes record that the Assistant Director of COMU was to speak with 'education' to ascertain if that could occur.

   [142] Exhibit 3A.

   [143] Exhibit 3A.

9. The minutes of 24 April 2018[144] recorded that, at that time, the respondent was 'not engaged in any art or programs'.  The case management coordinator said he would follow up to see if there was anything further the respondent could do with his time.  At that time, the respondent had to be escorted at all times, so the plausibility of the respondent's engagement with other activities appeared to be dependent on whether he could be escorted.  It was an action item from the meeting that WKRP was to ascertain if the respondent could be engaged in any educational activities or art.

   [144] Exhibit 3B.

10. The minutes of 7 August 2018[145] recorded, in relation to this issue:

    In regards to education or art, prison staff informed that Mr Pindan was provided with education supplies, however he does not want to participate in this.  Staff indicated Mr Pindan does not have the attention span to engage in these activities and that he would need a worker to work individually with him, however there are not currently the resources for this.

    [145] Exhibit 3C.

11. However, it appears that the situation subsequently developed favourably, at least in terms of the availability of education to the respondent, in that the minutes of 19 November 2018[146] recorded:

    Mr Pindan is currently in week 6 of his education studies, with a primary focus on literacy. His engagement is mixed, depending on his mood/presentation on the day.  He undertakes these studies four days a week for a couple of hours.

    A support worker (prisoner) has been assigned to Mr Pindan's unit and engages with him for his education and then life skills training following his studies.  The support prisoner communicates well with Mr Pindan and he appears to be engaging, however again this can fluctuate.  Staff have noted that this interaction has been beneficial and a positive activity for him.

    [146] Exhibit 3D.

12. Unfortunately that arrangement did not last.  The minutes of 11 March 2019[147] recorded that the prisoner who had been assisting the respondent was no longer at WKRP.  It continued:

    Education have been providing Mr Pindan with resources but he does not stay focused and will need further assistance with such activities as he is unable to work individually and staff are not able to work with him 1:1.  Prison staff are hoping to nominate another prison (sic prisoner) who may be suitable to engage with Mr Pindan to offer him assistance.

    [147] Exhibit 3E.

13. As Ms Cassam's email indicates, another prisoner was allocated to assist the respondent with educational activities a short time before the hearing, an education session had been conducted, with positive feedback, and further regular sessions had been planned.[148]  The email also indicated that the respondent was attending 'recreation', although no details were provided.

    [148] See [56] above.

14. In my opinion, reasonable steps had been taken by the Department to provide the respondent with educational and recreational activities, within the limitations of available resources and the respondent's fluctuating level of engagement, due at least in part to his cognitive deficits. 

15. However, I accept the submission made on behalf of the respondent, consistent with the opinions expressed by Dr Wynn Owen, that a more targeted approach should be taken, at least in respect of the respondent's cultural and recreational interests, with a focus perhaps on indigenous cultural activities, particularly during NAIDOC (National Aborigines and Islanders Day Observance Committee) week, and his interest in music.  This will require an assessment to be undertaken of those interests and how they might be met.

16. The two other matters in respect of which the respondent's counsel questioned the reasonableness of the Department's response were the provision of disability awareness training to prison staff and the fact that no social trainer or occupational therapist had been engaged to work with the respondent to assist him with his general day to day functioning with a view to preparing for release into the community.

17. In my opinion, reasonable steps were taken by the Department to provide suitable training to prison staff.  The minutes of the interagency meeting on 29 November 2017 record a discussion about this issue.[149]  The Director of Disability Justice Service indicated that, while Disability Services could not commit to 'ongoing Social Trainer supports to work directly with Mr Pindan in prison', as there was no individual funding available for that purpose for a person in prison, she could explore what could be done 'outside of individual funding', for instance to deliver disability awareness training to WKRP staff to assist them in working with the respondent.[150]  She noted that such training had previously been offered to WKRP, but no arrangements had yet been made.  A representative from WKRP informed the meeting that training had been delivered approximately two years earlier, but most of the staff would no longer be working in the prison with the respondent.  He indicated that such training would be very beneficial for the current staff.  It was agreed that further discussions would occur to organise the delivery of such training.

    [149] Exhibit 3A.

    [150] Exhibit 3A.

18. Unfortunately the minutes of 24 April 2018 suggest that the matter had not progressed, as precisely the same point was made by the representative from Disability Services.  As I noted earlier, training was subsequently provided to staff at WKRP on three occasions in the period of approximately 12 months leading up to the review.[151]

    [151] See [26] above.

19. The problem leading to loss of knowledge and inconsistency has been the turnover of staff and the time it has taken previously to deliver the training.  It appears from the evidence in these proceedings that staff who have received the appropriate training have been able to deal with the respondent's circumstances in a manner that is more consistent with what Dr Wynn Owen has identified as appropriate to engender positive development of the respondent's capabilities and responses, particularly since his ability to communicate and his mood have improved.  It is evident from the minutes of interagency meetings that there was discussion about the issue presented by a change of prison officers at WKRP, in terms of the loss of knowledge gained from the disability awareness training.  On 11 March 2019, at the instigation of the representative from Disability Services, there was discussion about the importance of maintaining that knowledge and of staff working with the respondent in a consistent manner.[152]  However, there is no evidence as to what steps were then taken. 

    [152] Exhibit 3E.

20. I agree with the submission made on behalf of the respondent that the appropriate training should be provided to new staff at the earliest opportunity that is practical after they start.  Further, resources permitting, it is also appropriate that there be ongoing training provided to prison staff at reasonable intervals to reinforce the knowledge imparted and to allow for feedback as to the manner in which the training has affected their management of the respondent and his response to such management.  However, what is important is to achieve a consistent approach to the management of the respondent, with due consideration being given to his disability.  If ongoing training from Disability Services is not feasible, the Department must develop a strategy and procedures to ensure that the relevant knowledge in respect of appropriate management is maintained and that the approach taken with the respondent is consistent.  That said, there was no evidence at the hearing to suggest that disability awareness training could not be delivered with the sort of frequency that had occurred in the preceding year.  That should be the preferred strategy.

21. Finally, the minutes of the interagency meetings reveal that, as early as 29 November 2017, Disability Services had indicated it could not commit to providing ongoing social trainers to work directly with the respondent.[153]  Given the benefits that appear to have flowed from the disability awareness training provided to prison staff, and the availability to the respondent of support workers (albeit sporadically so far) from the prison population, it is difficult to assess whether the decision of Disability Services not to commit to providing 'ongoing social trainers' has resulted in any disadvantage to the respondent.  There is no evidence dealing with that point directly.  However, Dr Wynn Owen's evidence supports the conclusion that the respondent may well benefit now from engagement with an occupational therapist.  That will require an assessment to be made of his occupational needs, which in context includes his day to day functional needs.

(viii) [Redacted]

[153] Exhibit 3B.

1. [Redacted][154]

   [154] [Redacted].

2. [Redacted].

3. [Redacted].

Conclusion

1. On the evidence presented at the hearing, I was satisfied that the respondent remained a serious danger to the community, in that there was an unacceptable risk at that time that he would commit a serious sexual offence if he was not subject to a continuing detention order or a supervision order.  I was further satisfied that the community could not be adequately protected at that stage by the making of a supervision order.  In coming to those conclusions, I accepted and relied in particular on the opinions expressed by Dr Wynn Owen in his report and his evidence and, in turn, the opinions he expressed in his earlier reports that were incorporated into the report and his evidence.

2. In particular, I was not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order, although that was not the only consideration in coming to the conclusion that a supervision order would not provide adequate protection of the community at that stage.  The matters that preclude me from being satisfied that the respondent would substantially comply with the standard conditions include:  (i) the respondent's level of risk; (ii) his lack of understanding of his risk factors; (iii) the significant deficits in his self-awareness and capacity to control his behaviours, which are largely due to his cognitive impairment; and (iv) his behaviour in custody for a significant part of the review period, which indicates that he has difficulty in complying with rules and, at times, instructions. 

3. I have taken into account the information in Ms Cassam's email that suggested some positive recent changes in the respondent's capacity to learn and comply with rules and instructions, from which it may be inferred that he has some ability to comply with supervision conditions, or at least will do in due course.  In my view, it would be difficult to be satisfied that the respondent would substantially comply with the conditions of a supervision order without some capacity to comply with rules and instructions.  However, there are likely to continue to be limitations in that regard, and, in my opinion, the only means by which the respondent could substantially comply with the standard conditions of a supervision order would be if he were to have intensive support and supervision in the community. 

4. Accordingly, the only appropriate order I could make, on the evidence at the hearing, was to affirm the CDO.

5. On each occasion on which the respondent's detention under the DSO Act has been reviewed and the order has continued, the court has made it clear that, because of the respondent's cognitive impairment, his prospects of being returned to the community without posing an unacceptable risk of sexual reoffending are entirely dependent on the Department (at one stage, the Department of Corrective Services) and other government agencies formulating and implementing a plan that will facilitate such a return.

6. In that regard, as Corboy J said, in Pindan [No 3] and reiterated in Pindan [No 6]:[155]

   Mr Pindan is peculiarly vulnerable to the actions of the executive Government.

   [155] Pindan [No 3] [202]; Pindan [No 6] [37].

7. It is clear from the expert evidence that, in order for the respondent's risk to be adequately managed in the community, he would require dedicated accommodation and supervision 24 hours each day, every day of the week, to mitigate his risk of reoffending.  Such protective measures were not available to the respondent at the time of the review.

Recommendations for continuing risk management

1. In light of the evidence given in these proceedings and the matters raised in submissions, at the conclusion of the hearing on 20 June 2019 I identified in my oral reasons the following matters as steps which it seemed to me needed to be taken by the Department and other government agencies in order to continue to facilitate the course of enabling the respondent to progress to a position where he may, ultimately, be released on a supervision order.

2. First, an assessment should be made in respect of the respondent's occupational needs with a view, if practical, to engaging an occupational therapist to provide training in respect of his occupational needs.

3. Secondly, the Department should make an assessment in respect of the respondent's wishes to engage in art, cultural activities, education and music, and to make such provision as is reasonably possible to accommodate his wishes in that regard.

4. Thirdly, there should be ongoing training provided to prison staff by the Department (with the involvement of Disability Services) with a view to achieving a consistent approach to the management of the respondent, with due consideration being given to his disability.  In particular, when new staff commence to work at the prison where the respondent is held, that sort of training should be provided at the earliest opportunity that is practical.

1. Fourthly, there is to be timely follow‑up of the respondent's application for funding from the NDIS for a plan to be implemented by the NDIA.

2. [Redacted].

Orders

1. For the reasons I have given, on 20 June 2019, I affirmed the CDO made by Jenkins J on 28 June 2012.

2. I also made an order that the next review is to be held on 21 June 2021 or as soon after that date as possible.[156]

   [156] That review will now be held under s 66 and s 68 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). See The State of Western Australia v Rao [No 2] [2020] WASC 467 [31] - [36]. The CDO continues in effect and is taken to have been made under the HRSO Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KR

Associate to the Honourable Justice Fiannaca

9 FEBRUARY 2021