The State of Western Australia v S [No 2]
[2021] WASC 204
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- S [No 2] [2021] WASC 204
CORAM: SMITH J
HEARD: 14 JUNE 2021
DELIVERED : 14 JUNE 2021
PUBLISHED : 24 JUNE 2021
FILE NO/S: SO 1 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
S
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 - High risk serious offender - First review of continuing detention order - Whether respondent remains a high risk serious offender - Whether continuing detention order or supervision order appropriate - Continuing detention order affirmed
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Ms F M Allen |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor for Western Australia |
| Respondent | : | David McKenzie Legal Pty Ltd |
Case(s) referred to in decision(s):
State of Western Australia v S [2020] WASC 148
The State of Western Australia v Carter [2021] WASC 186
The State of Western Australia v ZSJ [2020] WASC 330
SMITH J:
The history of prior orders and the result of the first review
Mr S has a history of sexual offending. He was until 21 May 2019 serving a sentence of imprisonment for serious sexual offences. On 7 May 2020, I determined he was a serious danger to the community and made an order, under s 17(1)(a) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), that he be detained in custody for an indefinite term for control, care or treatment.[1]
[1] State of Western Australia v S [2020] WASC 148.
On 9 July 2020, the High Risk Serious Offenders Act 2020 (WA) (the Act) received Royal Assent, and, as a result, pt 1 of the Act came into effect. Section 91 came into operation on 10 July 2021.[2] On 26 August 2020, with the exception of sch 1 div 2 subdiv 1 item 1 the remaining provisions of the Act came into force by proclamation, pursuant to s 2(1)(c) and s 122 of the Act. On the same day the Act commenced, the DSO Act was repealed by s 123 of the Act.
[2] High Risk Serious Offenders Act 2020 (WA) s 52(1)(b).
This is the first review of Mr S' continuing detention order, which must be determined pursuant to s 68 of the Act.
The name of Mr S has been anonymized in these reasons because, by order made by the State Administrative Tribunal on 22 January 2020, Mr S became the subject of an administration and guardianship order. Pursuant to s 113 of the Guardianship and Administration Act 1990 (WA), the court is prohibited from identifying an individual who is the subject of a guardianship order.
The issues that I must decide are:
(a)whether Mr S remains a high risk serious offender within the meaning of the Act; and
(b)if so, whether the continuing detention order should be affirmed or whether the continuing detention order should be rescinded and Mr S released into the community subject to conditions that the court considers appropriate by a supervision order.
At the hearing of the review on 14 June 2021, it was conceded on behalf of Mr S that, on the evidence before the court, without a detention order or a supervision order, Mr S remains a high risk serious offender. For reasons that follow, I am of the opinion that this concession is properly made and should be accepted by the court.
At the completion of the hearing of the review, I found that Mr S remains a high risk serious offender, I affirmed the continuing detention order and set 14 June 2023 for the next review under the Act.
In these reasons, I set out my findings for concluding that Mr S remains a high risk serious offender within the meaning of s 7(1) of the Act, and why I affirmed the continuing detention order.
The respondent's personal history and his history of offending
Mr S' personal history and his history of offending are set out in my initial decision published on 7 May 2020.[3] A brief summary of his intellectual and cognitive impairments and his history of offending is as follows.
[3] State of Western Australia v S [2020] WASC 148.
Mr S was examined by Dr Elizabeth Vuletich in July 2019 and was found to be intellectually impaired. She assessed his overall intellect to be estimated to fall within the extremely low range and he has deficiencies in his visual scanning and attention, as well as his verbal attentional capacity and auditory working memory. She also found that:
(a)his visual working memory is unlikely to be significantly impaired;
(b)he has multiple areas of deficits, being long‑standing verbal and language difficulties, compromised attention, limited verbal working memory, pervasive encoding deficits and pockets of executive dysfunction; and
(c)he also shows a tendency towards rigid thinking and mental inflexibility, mild impulsivity and limitations in his planning.[4]
[4] State of Western Australia v S [2020] WASC 148 [22].
Mr S has been diagnosed by consultant forensic psychiatrist, Dr Peter Wynn Owen, as having a delusional disorder (mixed type with grandiose and persecutory/paranoid themes), substance use disorder (alcohol, cannabis in remission through Mr S' incarceration), antisocial personality disorder and intellectual development disorder (cognitive impairment related to a neurodevelopmental deficit).[5]
[5] State of Western Australia v S [2020] WASC 148 [45].
Another consultant forensic psychiatrist, Dr Mark Hall, also diagnosed Mr S as having delusional disorder (mixed grandiose, persecutory and erotomatic (the latter being a delusion in which a person believes that another person is in love or infatuated with them) themes). Dr Hall made secondary diagnoses of antisocial personality disorder, alcohol dependence (in remission) and borderline intellectual functioning.[6]
[6] State of Western Australia v S [2020] WASC 148 [61].
At the time of the initial hearing for a restriction order on 20 April 2020 the relevant facts about Mr S and his family were not entirely clear. This was because his ability to self-report about his family and his employment history cannot be relied upon because his delusional disorder has resulted in him providing inconsistent, unreliable accounts of his past relationships, his employment and his family structure.[7] At that time, prison records recorded that Mr S had little contact with his family whilst he was a sentence prisoner and had received no social visits from any of his family since the commencement of his last sentence of imprisonment in 2011.[8]
[7] State of Western Australia v S [2020] WASC 148 [18].
[8] State of Western Australia v S [2020] WASC 148 [20].
Mr S has a history of sexual offending since 1998, and generalist offending since 1987. He has been convicted of at least 16 assault‑related offences, not including sexual offences. He believes that police have targeted him but his record shows that he has a habit of attacking other people, particularly young women.[9] His history of serious offences and offences involving violence is as follows.
[9] State of Western Australia v S [2020] WASC 148 [23]; the facts of the most relevant convictions are set out in [24] ‑ [31].
On 11 August 1998, Mr S was sentenced to 5 months' imprisonment for an offence of indecent assault. At that time he was 22 years old.
On 12 October 1999, Mr S was convicted of an offence of assault occasioning bodily harm which occurred on 6 May 1999 (two months after he was released from custody for the offence of indecent assault). He was sentenced to 18 months' imprisonment, suspended for 24 months.
On 17 December 2001, Mr S was convicted of an assault for which he received a sentence of 6 months' imprisonment, concurrent with a 24 month sentence for assaulting a public officer.
On 11 May 2004, Mr S was released from prison. On the following day he committed six offences, being two counts of aggravated burglary, two counts of indecent assault, one count of attempted aggravated sexual penetration without consent and one count of assault occasioning bodily harm. For these offences he received a total term of imprisonment of 3 years.
On 14 May 2009, Mr S was convicted of one count of threat to kill and one count of going armed in public so as to cause fear, for which he received a total term of 16 months' imprisonment. The offences occurred on 22 November 2008.
On 10 September 2010, Mr S commenced serving a 12 months' suspended term of imprisonment for common assault. Whilst serving this suspended term of imprisonment on 15 January 2011, he committed one count of assault occasioning bodily harm, one count of attempted aggravated sexual penetration without consent, and one count of sexual penetration without consent. For these offences he received a total term of 6 years and 8 months' imprisonment.
Mr S has been released on parole on two occasions, the first of which was 13 June 2000 to undertake a 12 week residential alcohol treatment program in Broome. He discharged himself after five weeks, subsequently resulting in his parole order being suspended on 18 July 2000. His parole was cancelled as a result of his failure to comply. He was released on parole again on 20 August 2002. He completed the second parole period during which he lived at a community away from Broome. He reoffended during the term of the order. However, he was not returned to prison but was sentenced to financial penalties after the expiry of the parole order on 16 April 2003. He reoffended within a short period after completing the second parole period.
From time to time, whilst a sentence prisoner, Mr S had engaged in violent behaviour towards prison officers and other prisoners, and had shown that he has poor impulse control and has little ability to self‑manage his responses to provocation.[10]
[10] State of Western Australia v S [2020] WASC 148 [32] - [40].
Relevant principles to be applied in a review of a continuing detention order
On a review under the Act, the court has to consider, first, whether the person remains a high risk serious offender. The meaning of the words 'high risk serious offender' in the Act are defined in s 7(1) of the Act, as a finding by the court that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
Pursuant to s 125 of the Act, at the time of the first review the continuing detention order made under the DSO Act continues in effect; and is taken to have been made, given or issued under the corresponding provision of the Act. Consequently, the effect of the detention order made on 7 May 2020 that Mr S is a serious danger to the community and that he be detained in custody for an indefinite term for control, care or treatment, is taken to be a continuing detention order made pursuant to s 48(1)(a) of the Act, and a finding that he was, as at 7 May 2020, a high risk serious offender.
The State bears the onus of satisfying the court that an offender is a high risk serious offender.[11] The court, in considering whether it is satisfied of the matters in s 7(1), must have regard to the following matters listed in s 7(3) of the Act:
[11] High Risk Serious Offenders Act 2020 (WA), s 7(2).
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
Further, the court must disregard the possibility that the person might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[12]
[12] High Risk Serious Offenders Act 2020 (WA) s 7(4).
In The State of Western Australia v ZSJ, Justice Fiannaca remarked shortly after the Act came into operation that:[13]
[T]he HRSO Act operates largely as the DSO Act did in respect of serious sexual offences. Whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether he is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.
[13] The State of Western Australia v ZSJ [2020] WASC 330 [5].
The evidence at the hearing of the first review
At the hearing of this review application I received in evidence Volume 1 of a book of materials, dated 23 March 2021,[14] and Volume 2 of a book of materials, dated 8 June 2021.[15]
[14] Exhibit 1.
[15] Exhibit 2.
Volume 1 of the book of materials contains a copy of the application to review the continuing detention order, a chronology of offending prepared by the Office of the Director of Public Prosecutions for Western Australia, and Department of Justice prison records and medical records created since Mr S was made the subject of the continuing detention order in 2020. Volume 1 also contains reports prepared for previous DSO Act hearings.
Volume 2 contains a copy of Mr S' criminal history and reports prepared for the purpose of the review hearing by:
(a)senior clinical psychologist, Dr Ben Bannister, dated 23 November 2020;
(b)Dr Peter Wynn Owen, dated 7 June 2021; and
(c)senior community corrections officer, Ms Emma Cashmore, dated 28 May 2021.
At the review hearing, the report of Dr Bannister was received into evidence by consent. Both Dr Wynn Owen and Ms Cashmore gave oral evidence and their reports were received into evidence. On behalf of Mr S, counsel elected not to give or produce any evidence.
Evidence of Dr Bannister
In his report dated 23 November 2020, Dr Bannister summarised Mr S' treatment history, and the DSO Act Div 2 2019 expert report treatment opinions of Dr Wynn Owen (not Dr Wynn Owen's current report), Dr Poli and Dr Hall.
It is clear from the date of Dr Bannister's report that the opinions expressed by him in his report were formed by him approximately six months after Mr S was made the subject of a restriction order.
At the time Dr Bannister interviewed Mr S for 45 minutes on 12 November 2020, Dr Bannister observed that Mr S' reported delusions appeared unchanged from previous assessments.
It is also evident from Dr Bannister's report that other than the administration of antipsychotic medication for his delusional disorder, Mr S had not by 23 November 2020 received any other form of treatment since the order was made.
In his report, Dr Bannister recited a conversation that he had with Mr S in the interview during which Mr S:
(a)said that he did not know what medication he was taking, nor why he had been prescribed it;
(b)said that the staff at the Frankland Centre at Graylands Hospital had not explained anything to him and that he knew only that the court wanted him to take medication, and he was not happy with it. He also said that the medication made him 'more angry', and he was upset because 'he was normal when he was not taking the medication';
(c)admitted that he had 'went off at' a prison nurse while in the process of being injected with his medication, and said he wanted to attend his next medical appointment with a cousin brother, in order for that person to intercede on his behalf and have his medication ceased; and
(d)acknowledged, when assessing his suitability for individual treatment relating to his substance abuse, that substance abuse had been a problem for him, and explained that it was hard to get off drugs once you have been on them for a while. When he was repeatedly encouraged to consider assistance he said, 'No, I don't think that would be helpful, I have to deal with my demons myself. I prefer to do it on my own'.
Dr Bannister recorded in his report that Mr S could not identify any general or specific treatment goals, did not understand why he would have been recommended treatment (for his delusional disorder), and reported that he could see no relevance of it to him.
Dr Bannister concluded that Mr S was not suitable for the counselling currently available to him through the Corrective Services of the Department of Justice.[16]
[16] When Dr Wynn Owen gave oral evidence he explained why currently available criminogenic counselling treatment would not assist Mr S to address his unmet treatment needs.
Dr Bannister recommended as a minimum requirement that Mr S (if released on a supervision order) will require a tailored approach delivered by a specialised service such as the Sexuality Education Counselling and Consultancy Agency, and it may be that he becomes able to access such supports once his National Disability Insurance Scheme (NDIS) application is approved. Further that, in any event, this approval will be a necessary first step in order to provide him with the substantial wraparound services that he appears likely to need.
Dr Bannister also recommended in November 2020 that Mr S may benefit from having a review by a treating psychiatrist; his NDIS application should continue to be progressed, and specialised support and treatment services be accessed for him if and when they become available; his guardian should be appraised of the current issues pertaining to his treatment; and the Forensic Psychological Service involvement in Mr S' case should be most appropriately restricted to a consultative role, with active re‑engagement only when indicated.
Evidence of Dr Wynn Owen
Dr Wynn Owen assessed Mr S on 17 and 21 May 2021, using the same tools used when he had previously assessed Mr S in late 2019.
In his current assessment, Dr Wynn Owen found the degree of risk of Mr S committing a future serious sexual offence was high, and remained unchanged from his assessment in November 2019.
In his June 2021 report, Dr Wynn Owen recorded the results of his assessment as follows:
(a)using the Static-99R risk assessment tool Mr S' score placed him in the Risk Level IVb or 'Well Above Average Risk' category for likelihood of committing a future sexual offence;
(b)using the Risk for Sexual Violence Protocol (RSVP) risk assessment tool he found the following risk factors still present:
(i)chronicity of sexual violence;
(ii)escalation of sexual violence;
(iii)physical coercion in sexual violence;
(iv)extreme minimisation and denial of sexual violence;
(v)problems with self-awareness;
(vi)problems with stress or coping;
(vii)major mental illness;
(viii)mild to moderate intellectual disability;
(ix)problems with substance use;
(x)possible problems with intimate and non-intimate relationships;
(xi)non-sexual criminality;
(xii)problems with employment and planning;
(xiii)problems with (sex offender) treatment (denial of past serious offences); and
(xiv)problems with supervision.
Dr Wynn Owen concluded that Mr S continues to present a high risk of serious sexual offending if not subject to an order under the Act. Dr Wynn Owen's current risk assessment is based on: the diagnosis of delusional disorder; a criminal history that includes serious sexual offending that has been opportunistic and has occurred whilst intoxicated; categorical denial of sexual offending; limited treatment gains and denial of any ongoing treatment needs; and limited awareness of emotional state.
Dr Wynn Owen noted in his report that since the last review Mr S has been treated with an antipsychotic medication (having had for at least 15 years prior to that an untreated mental illness). Following the making of the continuing detention order, Mr S was admitted to the Frankland Centre for a week for treatment of his delusional disorder and assessment.
In his report Dr Wynn Owen records that:
(a)Mr S receives an intramuscular depot form of the antipsychotic medication, paliperidone, on a three monthly basis;
(b)Mr S has been resistant to taking antipsychotic medication. He does not believe there is anything wrong with him and he wants to cease taking it; and
(c)in June 2020, Mr S refused an antipsychotic injection in prison, was conveyed to the Frankland Centre where he received the medication involuntarily but since that time has continued to reluctantly accept the intramuscular medication and has regularly challenged the need for the medication or expressed withdrawal of consent to treatment.
Dr Wynn Owen concluded in his report that these factors, together with his categorical denial of sexual offending, and long-term cognitive impairments, are factors in his treatment refusal and his very limited response to criminogenic interventions in which he has participated in the past.
Dr Wynn Owen observed in his report that the diagnosis of delusional disorder is often a treatment resistant condition and the best achievable outcome may be encapsulation of delusional beliefs such that they have no influence on day-to-day decision-making unless specifically prompted.
Dr Wynn Owen opines in his report that Mr S currently has no insight into having a mental illness, is unlikely to adhere to treatment in the community, and, should he cease treatment, the delusions will probably become more overt and once again affect his day-to-day thinking and decision-making.
Dr Wynn Owen also opined in his report that if community supervision is to be successful Mr S will require his serious offending risk to be managed externally, as he does not have the cognitive capacity or self‑awareness to recognise high risk situations. Dr Wynn Owen recommended in his report should Mr S be released:
(a)practical counselling and/or mentoring support should be provided to assist Mr S to transition into the community with a focus on day-to-day problem solving, self‑management/emotional management, recognition of stress, with a counsellor or mentor who starts this counselling and/or mentoring support prior to release;
(b) Mr S should be monitored for a relapse of substance abuse, in particular alcohol use; and
(c)Mr S should receive ongoing psychiatric care.
Dr Wynn Owen noted in his report that:
(a)it is not unusual for a person to respond very slowly to treatment after a long duration of untreated illness and that this is so particularly with delusional disorder which is often medication resistant;
(b)it could be more than three years before the full effectiveness of a medication is realised, and the treatment of Mr S may require a trial of other antipsychotic medications; and
(c)if Mr S continues to be ambivalent or to refuse medications he should be assessed for involuntary treatment under the Mental Health Act 2014 (WA).
Dr Wynn Owen, however, also noted in his report that when he interviewed Mr S that the antipsychotic medications do appear to be having a partial effect. He formed this opinion because when Mr S was questioned directly about his delusional beliefs it appeared that his delusional system had become encapsulated, that is, it is still present but is only expressed by Mr S when he is directly prompted rather than being overtly a part of his day-to-day discourse. Dr Wynn Owen explained when giving oral evidence that because Mr S' delusions have become encapsulated, his delusions are less likely to influence his day‑to‑day decision‑making. Dr Wynn Owen also said that he would expect that if treatment for Mr S' delusional disorder is fully effective when his delusional beliefs are challenged by evidence to the contrary Mr S would find those beliefs to be false.
Dr Wynn Owen made it clear when giving oral evidence that there is no direct link between Mr S' criminogenic behaviour and his delusional disorder. However, Dr Wynn Owen said his delusional disorder is linked to his denial of the serious sexual offences, and his lack of insight into his mental health problems. These factors explain why he has no motivation, and no willingness to engage in any psychological counselling and treatment to address his criminogenic behaviour and the triggers to his criminogenic behaviour. Dr Wynn Owen went on to explain that the delusional content (of Mr S' delusions) is enabling him to completely reject and categorically deny that he has offended at all and causes him to offer an alternative narrative (that he has been set up by others), and this delusional content is preventing him from engaging in any criminogenic intervention. Dr Wynn Owen said that in part some delusions of Mr S have been developed by him as symbolic of a defence against, or protection for him against, the reality of having committed those offences.
Dr Wynn Owen is unable to say whether Mr S will ever be able to recognise that he has committed offences in the past.
It is Dr Wynn Owen's opinion that until Mr S is motivated to engage in treatment of his criminogenic behaviour, his outstanding (criminogenic) treatment needs cannot be addressed, as he is not in a position to benefit from any individual psychological counselling that could be made available to him through the Forensic Psychological Service. It is also Dr Wynn Owen's opinion that if Mr S' delusional beliefs are reduced it is highly likely that his executive function and his decision‑making will improve, but whether that will actually occur is unlikely to be revealed until he has been on antipsychotic medication for two to three years.
Dr Wynn Owen has discussed Mr S' treatment needs with Mr S' treating consultant forensic psychiatrist, Dr Natalia Bilyk, and has read Mr S' prison clinical records and notes. Dr Wynn Owen noted that these records record that Mr S has been relatively compliant with his monthly appointments with Dr Bilyk, and he has agreed to take antipsychotic medication, but she is concerned that because of his ongoing lack of insight into his delusional disorder he might refuse to accept depot injections in the future, which treatment cannot be enforced within the prison.
Dr Wynn Owen explained that ideally if this occurs Mr S should be formally admitted to a mental hospital under the Mental Health Act for assessment and treatment. He also said that it would have been beneficial to Mr S to have been treated for his delusional disorder in a therapeutic hospital setting for several months so that various antipsychotic medications could be properly trialled, and other appropriate medications could be administered which cannot be administered in a prison. Dr Wynn Owen also said that Mr S would have benefited from admission into a forensic hospital for some months because a hospital environment in itself would have been more helpful to ensure longer term compliance with his treatment and understanding of the treatment he is receiving for his delusional disorder.
However, Dr Wynn Owen also said that because long term forensic psychiatric hospital beds are not available to persons in custody,[17] it is worthwhile to continue to administer to Mr S the current form of antipsychotic depot injections of medication in the prison setting, and for Mr S to be reviewed by his treating psychiatrist monthly with ongoing access to prison mental health nurses.
[17] Dr Wynn Owen stated there is a demand on the acute beds in the Frankland Centre, and there are probably only four or five of the 30 beds in the unit that are currently available to prisoners because of the demands of hospital orders made by courts pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).
It is also Dr Wynn Owen's opinion that Mr S should be assessed at least annually, to ascertain whether there is an indication that he is motivated to address his treatment needs, and his suitability for psychological treatment by the Forensic Psychologist Service. Dr Wynn Owen pointed out that although there are limitations on Mr S' capacity to learn (given his level of intellectual impairment is mild to moderate), which would require psychological treatment to be given on a one-to-one basis, and within an established relationship of trust, that these are factors that could be managed.
It is Dr Wynn Owen's firm opinion that it is critical for Mr S' mental health to be improved before he is released into the community because the less that he is influenced by beliefs that are false in his day‑to-day decision-making, the less likely he is to become stressed. Stress in Mr S' case leads to the use of pathological or poor coping strategies and some of those poor coping strategies are the antecedents to his offending, including substance abuse. Mr S has been intoxicated when committing the majority of the serious sexual offences. Consequently, Dr Wynn Owen is of the opinion the absence of delusions, or at least the minimisation to the greatest extent of Mr S' delusions, would enable him to make better financial decisions, to be more engaged in developing a social network to reinforce real relationships with family rather than creating stories about long-term relationships with family members and multiple children.[18]
[18] One of Mr S' firmly held delusions is that he is in a relationship with one of his nieces, with whom he has had multiple children.
Dr Wynn Owen points out that although Mr S has a guardian, a guardian is unable to enforce or to insist that a person continue their treatment for a mental illness. Dr Wynn Owen is of the opinion that without significant support Mr S would not be able to reintegrate into the community for a number of reasons. First, Mr S has demonstrated cognitive deficits. Second, he has been imprisoned for a long period of time. Third, he has a belief system around his finances,[19] and his social network which is patently incorrect. If released without significant support, all of these factors would result in him being socially isolated, unmotivated to make positive changes and make it extremely difficult and stressful for him to transition into the community.
[19] Some of Mr S' delusions are that he has a town or homestead that he built on land in the north-west for his family and himself, and he has millions of dollars in the bank.
Dr Wynn Owen also stated that Mr S will require significant support in the six month period after his release with a degree of continuing support in the long-term.
Dr Wynn Owen did, however, indicate that Mr S had made a small positive shift in his attitude to substance abuse. When Dr Wynn Owen spoke to Mr S in the course of preparing the latest report, Mr S affirmed an earlier statement when he was previously assessed that when released he planned to continue to be abstinent from alcohol. When interviewed in 2019, Mr S had informed Dr Wynn Owen that he may well return to social marijuana use because he found it pleasant and he could not see at that time a reason to cease using it. When interviewed in May 2021, Mr S said he was now not going to use cannabis because he had been without it for some time and had decided he would not need it in the future.
When Dr Wynn Owen recently discussed with Mr S release planning and the conditions that would apply to a supervision order, Mr S did not appear to be aware of the standard conditions, and when some of those conditions were discussed, including the requirement to have fitted a GPS monitor, Mr S told Dr Wynn Owen that he would not like to have a GPS monitor, and if one was put on him he would take it off.
Evidence of Ms Cashmore
Ms Cashmore has been Mr S' dedicated community corrections officer since 22 July 2020. Since that time, Ms Cashmore has met with Mr S on four or five occasions. One of her duties is to assist Mr S with release planning.
In her report, dated 28 May 2021, Ms Cashmore summarised Mr S' prison behaviour since Mr S was made the subject of a continuing detention order, the conditions of a proposed community supervision plan (if he were to be released on a supervision order), relevant accommodation issues, community supports required by Mr S, the behaviours of Mr S that require management and strategies to manage Mr S' offending behaviour.
Ms Cashmore reports that Mr S has attended all of his supervision appointments, and although the appointments are often short in duration (approximately 10 to 15 minutes), he appears to struggle to maintain concentration and interest in the appointments. She also reports that after a brief discussion Mr S attempts to persuade her that he does not require psychiatric medication, politely terminates the appointment and makes a request to return to his unit. He has also informed her that he does not intend to continue with his medication regime upon release and appears to lack understanding as to why he is required to undergo psychiatric treatment.
Regarding his prison behaviour, Ms Cashmore reports that Mr S has not incurred any charges following the imposition of the continuing detention order. However, two adverse incidents have been recorded due to his misconduct and/or abusive behaviour relating to behaviour towards medical staff during the administration of his depot medication.
Ms Cashmore reports that Mr S is employed as a unit worker and is housed in a protection unit. He is noted to be polite, respectful and follows instruction without issue. He has also been observed to interact well with others and is not considered to be a 'management issue'.
Ms Cashmore also reports that three separate applications for access to the NDIS have been made on behalf of Mr S to the National Disability Insurance Agency (NDIA).
It is clear from the contents of her report and her oral evidence that Ms Cashmore has over the past 11 months made considerable efforts to assist with progressing the NDIA applications jointly with Mr S' guardian.
When giving oral evidence, Ms Cashmore said that the first request had been lodged by Mr S' previous community corrections officer, Mr Kyle Jarvie. When Ms Cashmore took over case management of Mr S, she made enquiries of the NDIA and was informed that the first referral had been cancelled, as it had expired. It appears the reason it was cancelled is that until the DSO proceedings had been completed by the court, relevant reports could not be released to the NDIA.
On finding out that the first referral to the NDIA for NDIS funding had been cancelled, Ms Cashmore liaised with Mr S' guardian and submitted a second referral. The second application was declined in December 2020 by the NDIA, on grounds that whilst there was some evidence to suggest Mr S meets a psychosocial disability (a disability that relates to communication skills, social skills, development of relationships created through harmony within a community),[20] they were of the view, at that time, that early intervention had not been offered to Mr S. The NDIA also advised that they were not satisfied that he had an intellectual disability (despite being provided with a copy of a neuropsychological report of Dr Elizabeth Vuletich dated 4 November 2019).[21]
[20] See Dr Wynn Owen's explanation of psychosocial functioning ts 143.
[21] Exhibit 1, 87 ‑ 106.
A third referral request was submitted to the NDIA at the end of December 2020. This referral is still current, but progress in the determination of this referral has been very slow. One of the reasons for the delay is that officers of the NDIA have repeatedly tried to directly engage with Mr S rather than his guardian. Although the NDIA have been provided with copies of the guardianship order on more than one occasion, officers of the NDIA have continued to make repeated unsuccessful attempts to contact Mr S in prison, instead of contacting his guardian.
On 25 May 2021, the NDIS informed Mr S' guardian that more detailed information from a treating health professional about what treatments Mr S had undertaken, what supports he requires, how often he requires them and advised current detailed functional information was required. Following this advice from the NDIA, both Dr Wynn Owen and Dr Bilyk undertook to prepare further information to submit to the NDIA.
When Dr Wynn Owen gave his evidence he explained that in discussions with Dr Bilyk they have both agreed that Mr S fulfils the criteria for NDIS funding on the basis of both psychosocial impairment and mild to moderate intellectual impairment (being a cognitive deficit component and a mental illness component).
In her report, Ms Cashmore notes that because the NDIA assessed Mr S as having met the criteria for psychosocial disability but did not meet the criteria for intellectual disability when rejecting the second referral, Dr Bilyk has recently advised that she is exploring the possibility of an MRI scan for the purpose of evidencing frontal lobe impairment; with a view of bolstering Mr S' application for access to NDIS funding. However, at the time Ms Cashmore wrote her report, an MRI scan had not been undertaken.
In other referrals for NDIS funding, the NDIA has indicated to the Community Offender Monitoring Unit that if a referral for funding for a person in custody is accepted it would approve the release of some funds for a functional capacity assessment report to be undertaken by an occupational therapist to assess what level of funding is required by the particular person. However, the NDIA has also advised that if the person seeking an allocation of NDIS funding is at the time of approval in custody, the NDIA will not provide any predictive funding unless a definite release date can be provided.[22]
[22] See for example the recent evidence on this point, and the consequences that now flow from this policy of the NDIA in The State of Western Australia v Carter [2021] WASC 186 [50] ‑ [55] (Hall J).
If Mr S was to be released on a supervision order, it would be necessary for him to be provided with suitable accommodation. However, the effect of Ms Cashmore's evidence is that it appears there is no suitable accommodation available for Mr S at this time, principally because of his unmet treatment needs and his present lack of NDIS funding, and there is no agency (who provides accommodation or assists persons released on supervision orders to obtain suitable accommodation and reintegrate into the community) willing to assist Mr S.
Ms Cashmore has recently spoken to a sister of Mr S but has been unable to ascertain with any certainty whether Mr S would have any family support if Mr S was to be released on a supervision order.
It is clear from the evidence of Mr Cashmore, and the evidence of Dr Wynn Owen, that if Mr S is to be released he would require stable accommodation and intensive daily support in the community (particularly in the first six months of his release), which support could only be support funded by the NDIS. Both Dr Wynn Owen and Ms Cashmore are of the opinion that hostel accommodation would not be suitable accommodation for Mr S. In particular, Dr Wynn Owen is of the opinion that Mr S requires a low stimulus environment and that the unpredictable nature of crisis accommodation renders such accommodation a high risk option, and could lead to further offending by Mr S.
Uniting WA currently hold the contract with the Department of Justice to facilitate the supported accommodation program. However, Uniting WA are unwilling to accept Mr S as a participant in their program without NDIS support because they are concerned about his ability to function safely in the community without intensive daily support.
Conclusion
I am satisfied that Mr S remains a high risk serious offender. The evidence of Dr Wynn Owen provides acceptable and cogent evidence that there is a high degree of probability that without a restriction order there is an unacceptable risk that Mr S will commit a serious sexual offence. Dr Wynn Owen has made it clear that Mr S' level of risk has remained unchanged since the restriction order was made on 7 May 2020.
Having regard to the uncontested evidence of Dr Wynn Owen, Ms Cashmore, and the matters stated in the report of Dr Bannister, it is clear that it is not appropriate at this point in time to release Mr S on a supervision order. Pursuant to s 48(2) of the Act, the paramount consideration in deciding between a continuing detention order and a supervision order is the protection of the community.
On the evidence, I am not satisfied, on the balance of probabilities, that the community would be adequately protected if I were to make a supervision order, or that Mr S would substantially comply with the standard conditions of a supervision order.
Counsel for Mr S conceded in closing submissions, without conceding the ultimate issue, there are three current obstacles to Mr S being released on a supervision order.
The first is that Mr S requires supported accommodation.
The second is that without significant daily support in supported accommodation in the first six months of release, and ongoing support beyond that time, which support could only be funded through the NDIS, there is an unacceptable risk that Mr S would not cope with the pressures of living in the community, would become non-compliant with his medication, may resort to substance abuse, and be at a high risk of committing a serious sexual offence.
The third obstacle is related to the second, and that is he requires ongoing treatment for his delusional disorder, which, if treatment becomes more effective, may have the effect of motivating Mr S to engage in psychological counselling to assist him, to acknowledge his past offences, to make appropriate decisions if released into the community, and to address the triggers of his offending.
There is an additional obstacle to his release and that is it is a standard condition of every supervision order, pursuant to s 30(2)(g) of the Act, that an offender be subject to electronic monitoring. Pursuant to s 29 of the Act, a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. Pursuant to s 29(2) of the Act, the onus of proof as to whether the offender will substantially comply with the standard conditions of an order is on the offender.
In circumstances where Mr S has made it clear to Dr Wynn Owen that he would remove any electronic monitoring device that he was required to wear, if it was installed, I cannot be satisfied that he would substantially comply with the standard conditions of a supervision order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
24 JUNE 2021
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