The State of Western Australia v Unwin [No 9]

[2022] WASC 479

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- UNWIN [No 9] [2022] WASC 479

CORAM:   FIANNACA J

HEARD:   2 MAY 2022

DELIVERED          :   2 MAY 2022

PUBLISHED           :   24 JULY 2024

FILE NO/S:   SO 48 of 2010

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

MARK ROBERT UNWIN

Respondent

Catchwords:

High risk serious offender - Periodic review of continuing detention - Previously found to be a dangerous sexual offender under the Dangerous Sexual Offenders Act 2006 (WA) (repealed) - Respondent remains a high risk serious offender - Community would not be adequately protected if the respondent was released under a supervision order - Continuing detention order affirmed

Legislation:

Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)

Result:

Continuing detention order affirmed

Category:    B

Representation:

Counsel:

Applicant	:	Mr D S McDonnell
Respondent	:	Mr D J McKenzie

Solicitors:

Applicant	:	State Solicitor's Office of WA
Respondent	:	David McKenzie Legal

Cases referred to in decision:

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

Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107

Director of Public Prosecutions (WA) v Unwin [2011] WASC 11

Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178

Director of Public Prosecutions (WA) v Unwin [No 4] [2014] WASC 241

Director of Public Prosecutions (WA) v Unwin [No 8] [2019] WASC 495

Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; (2007) 35 WAR 297

Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888

The State of Western Australia v Garlett [2021] WASC 387

The State of Western Australia v Latimer [2006] WASC 235

The State of Western Australia v Narrier [No 6] [2020] WASC 349

The State of Western Australia v West [No 6] [2019] WASC 427

The State of Western Australia v ZSJ [2020] WASC 330

Table of Contents

The application and its history

The respondent's background

Previous annual reviews

Statutory framework and legal principles

Evidence at the hearing

The issues to be determined

The offence committed on 24 August 2020

Other developments since the 2019 review

Change in case manager

Behaviour while in prison

Consistency of psychiatric and medical management

Stability and self-care

Logs

Written goals

Mentor

Dr Wynn Owen

The respondent's behaviour while in prison

Cognitive impairment and obstacles to therapy

Consistency in psychiatric care

Medication

Supported accommodation

Logs

Risk assessment

Recommendations

Dr Bannister

Respondent's behaviour while in prison

Counselling

Ms Cashmore

NDIS

Supported accommodation

Supported Accommodation Services

Residential Rehabilitation Services

National Rental Affordability Scheme

Crisis Accommodation Service Providers

Lodging-Style Residences

Private Rental

Public Trustee and Administration

The parties' submissions

Findings

Findings in respect of developments in the respondent's circumstances

The respondent's risk of sexual re-offending

Conclusion - the respondent remains a high risk serious offender

Findings relevant to the appropriateness of supervision in the community

Conclusion - supervision order not appropriate

Conclusion - the CDO must be affirmed

Recommendations for further management and treatment

Orders

FIANNACA J:

The application and its history

1. This is the eighth review of a continuing detention order (CDO) made in respect of the respondent on 13 January 2011 under the Dangerous Sexual Offenders Act 2006 (WA) (repealed) (DSO Act): see Director of Public Prosecutions (WA) v Unwin [2011] WASC 11 (Unwin [No 1]).  The effect of the order continues by virtue of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), which replaced the DSO Act upon its commencement on 26 August 2020.[1] Pursuant to s 125 of the HRSO Act, the CDO is taken to have been made under the HRSO Act. At the time the CDO was made in 2011, the applicant was found to be a serious danger to the community under the DSO Act, meaning that there was an unacceptable risk that he would commit a serious sexual offence as defined in the DSO Act if he was not subject to a CDO or a supervision order under that Act. Since the enactment of the HRSO Act, he is taken to be a high risk serious offender, which means that there is an unacceptable risk that he will commit a serious offence as defined in the HRSO Act (which includes offences that were previously serious sexual offences under the DSO Act), and that it is necessary for him to be subject to a restriction order (that is, a CDO or a supervision order) under the HRSO Act to ensure adequate protection of the community against that risk.[2]

   [1] Western Australia Parliamentary Debates, Legislative Assembly, 26 June 2019, p 4675 (Hon John Quigley).

   [2] HRSO Act s 7.

2. Section 64 of the HRSO Act requires that a person's detention under a CDO is to be reviewed periodically. The purpose of a review is to determine first whether the person continues to be a high risk serious offender. If the court finds that the person continues to be a high risk serious offender, then it must determine whether the person's circumstances have changed, so that the protection of the community can be adequately achieved by a supervision order, instead of a CDO.

3. The seventh review proceeded before me on 2, 3 and 30 October 2019 (2019 review). At the end of the hearing, I gave my decision affirming the CDO and set the next review date for 1 November 2021, in accordance with the requirement under s 64(2)(b) of the HRSO Act that a review subsequent to the first review is to be carried out as soon as practicable after the end of the period of two years commencing when the detention was most recently reviewed. At the time of giving my decision, I gave brief oral reasons, and stated that detailed reasons would be published in due course: see Director of Public Prosecutions (WA) v Unwin [No 8] [2019] WASC 495 (Unwin [No 8]).

4. Section 64(3) of the HRSO Act provides that the period mentioned in subsection (2)(b) is extended by any period during which the offender (that is, the respondent) is in custody serving a sentence of imprisonment.

5. On 16 October 2020, the respondent was convicted in the Magistrates Court of an offence of aggravated indecent assault and an offence of assaulting a public officer, which were committed by him against his treating psychologist in Acacia Prison on 24 August 2020.  He was sentenced on 16 October 2020 to imprisonment for 6 months' and one day for the aggravated indecent assault and a concurrent term of 3 months' imprisonment for the offence of assaulting a public officer, both sentences to commence on the day they were imposed.  Therefore, the period before the next review of the respondent's continuing detention was extended by 6 months and 1 day beyond 1 November 2021.

6. Accordingly, by an application dated 13 October 2021, the State applied for the respondent's detention under the CDO to be reviewed as soon as practicable after 1 May 2022. 

7. The eighth review proceeded before me on 2 May 2022.  At the conclusion of the hearing, I determined that the respondent continued to be a high risk serious offender and that a supervision order would not adequately protect the community.  Consequently, I affirmed the CDO.  I gave brief oral reasons and said I would publish detailed reasons in due course.

8. These are my reasons.  They should be read in conjunction with the earlier decisions in respect of the respondent under the DSO Act, in particular Unwin [No 8].

The respondent's background

1. The respondent's history of sexual offending was outlined by Blaxell J in Unwin [No 1] [5] to [36] and was summarised by Commissioner Sleight in his Honour's decision on the third annual review, namely Unwin [No 4],[3] at [5] to [10]. I adopted that outline in Unwin [No 8] at [9] to [12].

   [3] Director of Public Prosecutions (WA) v Unwin [No 4] [2014] WASC 241 (Unwin [No 4]) [5] ‑ [10].

2. It is not necessary for me to repeat those facts.  It is sufficient to note that, at the time of the hearing, the respondent was a 42‑year‑old man with significant cognitive deficits who had a neglected and unhappy childhood, which included sexual and other physical abuse.  He was made a ward of the State from the age of 12 years.  His background led to behavioural problems, substance abuse and criminal offending.  In particular, the respondent has a long history of sexual offending both as a juvenile and as an adult.

3. The respondent's juvenile offending includes two offences of indecent dealing with a male child, six offences of indecent assault and one offence of deprivation of liberty.  The indecent assaults were against women and girls aged 13 and 16 years, and the deprivation of liberty was associated with one of the offences of indecent assault.  The offences committed by the respondent as an adult included further offences of indecent assault, aggravated indecent assault and aggravated sexual penetration without consent, all of which were accompanied by acts of violence and, on one occasion, a threat to injure.  He also committed an offence of assault occasioning bodily harm, associated with one of the incidents of sexual offending.  The offences were committed against women.  Some of the sexual offences were committed after the respondent was released from prison, having served sentences for previous sexual offending.

4. Prior to the recent offending in Acacia Prison, the applicant's last sexual offence was committed in June 2008.  He was sentenced for that offence of aggravated indecent assault on 3 November 2008 in the District Court, having been convicted on 31 October 2008.  He was sentenced to 2 years and 4 months' imprisonment.  Since completing that sentence on 30 September 2010, the respondent has been detained in custody, initially pursuant to an interim detention order made under the DSO Act, and then pursuant to the CDO, apart from the period of imprisonment for his most recent offending. 

5. As I have already stated, the applicant has now been convicted and sentenced of a sexual offence committed in custody.

Previous annual reviews

1. In Unwin [No 8] at [13] to [48], I summarised the findings of the previous reviews, focusing primarily on the sixth annual review of the CDO before Jenkins J. I adopt those summaries.

2. A significant aspect of the respondent's circumstances relevant to his risk of sexual offending is that he has cognitive deficits.  As I stated in Unwin [No 8]:[4]

   The respondent's cognitive deficits affect his risk of serious sexual re-offending.  They have been significant in the assessments that have been made previously that he is a serious danger to the community and that a CDO is necessary to ensure adequate protection of the community.  Because of his cognitive deficits, and having regard to his history, he is likely to remain a serious danger to the community.  The focus has been on whether the community can be adequately protected if he were to be released on a supervision order.  His prospects of becoming suitable for such release depend to a large extent on external support and psychological treatment, particularly directed at enhancing his ability to live independently.

   [4] Unwin [No 8] [14].

3. At the conclusion of the 2019 review, on 30 October 2019, I affirmed the CDO, in accordance with the amended formulation of the order under s 33 of the DSO Act at that time. I set the next review date for 1 November 2021.  I indicated that I would be making a number of recommendations of steps that needed to be taken to facilitate the course of enabling the respondent to progress to a position where he may be released on a supervision order.  This was in recognition of the fact that it was likely the respondent would continue to present an unacceptable risk of committing a serious offence in the future and that a restriction order would be necessary to adequately protect the community against that risk, the issue being whether that could be achieved on the occasion of the next review by the making of a supervision order.  I said I would provide the recommendations to the parties in a document prior to the publication of my judgment, so they could be taken into account in the continuing control, care and treatment of the respondent, notwithstanding any delay in the publication of my judgment.[5]  The detailed recommendations were provided to the parties on 30 December 2019.  They were subsequently set out at [280] - [302] of Unwin [No 8].

   [5] ts 30/10/19, 194.

4. In summary, after indicating that the recommendations outlined by Jenkins J in Unwin [No 7] continued to be relevant to the control, care and treatment of the respondent, the recommendations I set out related to the following matters:

   (1)The need for those responsible for the management of the respondent in custody to be guided by the principle that his detention is for the control, care and treatment of the respondent, and not by way of punishment.

   (2)The need to provide the respondent with opportunities to progress to stability and self-care in his living arrangements in a minimum security prison, and to encourage him to develop skills, with a reciprocal responsibility on the respondent to demonstrate that he has made such progress and developed skills.  This was to be facilitated in part by providing the respondent with written goals in simple terms, to be formulated in consultation between the respondent's supervising Community Corrections Officer (CCO), his psychologist, the consultant psychiatrist and prison staff, which would identify practical behaviours that would demonstrate progress.

   (3)The need to reinforce with the respondent the importance of keeping to a schedule.

   (4)The need to ensure that the respondent is engaged in work and craft, and is provided with appropriate and reasonably priced craft resources.

   (5)The need for prison staff to maintain records of the respondent's behaviour and daily activities, which were to contain appropriate information (discussed in the recommendations) to enable assessments to be made of the causes and surrounding circumstances of both positive and negative behaviour, with a view to addressing those matters.

   (6)The need for the respondent to continue to receive counselling, preferably from the counsellor who had been providing counselling sessions, Ms X.[i]

   (7)The need for the Department of Justice (Department) to endeavour to ensure there is consistency in the psychiatric care, treatment and advice provided to the respondent.

   (8)The need for those providing psychiatric care to the respondent to consider what medication he should be given, and to ensure that he is given advice and encouragement in relation to medication by a psychiatrist he knows.

   (9)The need to further encourage the respondent to have a mentor and, if he was amenable, to provide him with a culturally appropriate mentor who could assist him with daily living in a way that would minimise stress.

   (10)The need for the Department to make concerted efforts to find suitable accommodation and a suitable service provider who can provide disability support to the respondent in the community 24 hours each day, seven days per week, for a period of at least six months, as had been recommended in the expert evidence as a necessary condition if the respondent were to be released in the future on a supervision order.  This was linked to a further need to make a referral for National Disability Insurance Scheme (NDIS) funding, on the basis of the opinion that had been expressed by Dr Wynn Owen.

   (11)The need to address issues concerning guardianship and administration.

5. These reasons should be read in the context that the recommendations provided markers by which to measure the respondent's progress towards a situation in which his risk could be managed in the community pursuant to a supervision order, and by which the Department's performance of its obligations could also be assessed.  The parties adopted the helpful approach of addressing questions and submissions to the issues raised by the recommendations.

Statutory framework and legal principles

1. Before turning to the evidence in these proceedings, it is convenient to outline the statutory framework and the relevant legal principles in more detail.  In Unwin [No 8] I referred to the principles in a shorthand way, relying on the fact that the principles had been discussed in previous reviews. As the present review was the first in respect of the respondent conducted under the HRSO Act, it is appropriate that I discuss the principles, as I consider them to apply, having regard to the new statutory framework.

2. At [2] above, I summarised the effect of pt 5 of the HRSO Act, under which the review is to be conducted. It is sufficient to add that, under s 66, as soon as practicable after an application is made under s 64, a court is required to give directions for the hearing of the application (which occurred in this case), and the application must be heard, and the review must be carried out, as soon as it is practicable to do so in accordance with any directions given by the court.[6]   As I noted earlier, the application for this review was brought at a time that reflected the extension of the review period because the respondent was required to serve a sentence of imprisonment for the sexual offence committed in Acacia Prison.

   [6] HRSO Act s 66(1) and (2).

3. Section 67 of the HRSO Act provides that, unless the court otherwise orders, the chief executive officer (CEO) of the Department must engage one or more qualified experts to prepare reports in accordance with s 74 to be used on the review.

4. Section 74 of the HRSO Act provides that a qualified expert who has been engaged to provide a report must examine the subject and prepare an independent report, which must indicate:

   (a) the reporter's assessment of the level of the risk that, without a restriction order, the subject will commit a serious offence; and

   (b)the reasons for the reporter's assessment. 

5. Section 68 of the HRSO Act provides:

   Review of detention under continuing detention order

   (1)On a review under section 66 of an offender's detention –

   (a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or

   (b)if the court finds that the offender remains a high risk serious offender it must –

   (i)affirm the continuing detention order; or

   (ii)subject to section 29, rescind the continuing detention order and make a supervision order.

   (2)In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure the adequate protection of the community.

6. The structure of the provision requires the court to determine first whether the respondent remains a high risk serious offender.

7. The definition of the term 'high risk serious offender' is contained in s 7(1) of the HRSO Act, which provides:

   An offender is a high risk serious offender if the court dealing with an application under this Act finds 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.

8. Section 7(2) provides that the State has the onus of satisfying the court as required by subsection (1).

9. Section 7(3) sets out a number of matters that the court must have regard to in determining whether a person is a high risk serious offender. They include any report prepared under s 74 of the HRSO Act.

10. 'Serious offence' is defined in s 5 of the HRSO Act. It is sufficient to note that a number of the offences committed by the respondent in the past (including most recently) and those he may commit in the future, with which the proceedings under the HRSO Act have been concerned, are serious offences for the purposes of the HRSO Act.

1. It is apt to note that the provisions of s 68 are identical to the provisions of s 33 of the repealed DSO Act, save that it refers to 'high risk serious offender' rather than 'serious danger to the community'.

2. In The State of Western Australia v ZSJ,[7] I concluded, having regard to the relationship of the provisions of the HRSO Act bear to the provisions of the DSO Act, that the concepts and criteria with which the court is concerned in determining an application under the HRSO Act are substantially the same under both statutes. Therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non-sexual offences.[8] Although that case was concerned with a restriction order hearing under s 48 of the HRSO Act, the reasoning applies equally to a review under s 68 of that Act.

   [7] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ).

   [8] ZSJ [30] - [63].

3. That general approach has been adopted by other judges in subsequent cases, although, as Corboy J identified in The State of Western Australia v Garlett,[9] there is arguably a difference in the way the criteria in s 7(1) of the HRSO Act are to be applied, when compared with the criteria for finding a person to be a serious danger to the community under s 7 of the DSO Act, in that the HRSO Act appears to stipulate a two-step process in the definition of 'high risk serious offender', requiring first a determination of whether there is an unacceptable risk, and secondly a determination of whether it is necessary to make a restriction order to ensure adequate protection of the community against that risk.[10]  As I will explain in due course, I am satisfied that both requirements are met in this case. 

   [9] The State of Western Australia v Garlett [2021] WASC 387 (The State of Western Australia v Garlett).

   [10] I note that the definitional issue identified by Corboy J in The State of Western Australia v Garlett was not considered by the High Court in Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888.

4. I note that nothing in the High Court's decision in Garlett v The State of Western Australia, which considered the constitutional validity of aspects of the HRSO Act, is inconsistent with adopting the jurisprudence established in respect of the DSO Act when construing and applying the HRSO Act. In fact, it is implicit from the majority judgments that such jurisprudence remains relevant.[11]

   [11] See for instance Garlett v The State of Western Australia [55], [103] - [104], [106].

5. In Director of Public Prosecutions (WA) v Pindan [No 3],[12] I considered the issue of whether, on a review of a CDO under the DSO Act, the court was bound by findings in previous proceedings that had resulted in the CDO or the affirmation of the CDO, and the general approach to be taken on a review.[13] In my opinion, the conclusions I reached in that case are relevant to review proceedings under the HRSO Act. Adapting those conclusions to the context of the HRSO Act, they may be summarised as follows:

   (1)On a review under s 68 of the HRSO Act, the court is required to decide, in accordance with s 7 of that Act, whether it is satisfied to a high degree of probability that the respondent remains a high risk serious offender. This requires a consideration of all the matters in s 7(3) on the evidence available at the time of the review.

   (2)If the court is not satisfied that the respondent remains a high risk serious offender, it must rescind the CDO.

   (3)If the court is satisfied that the respondent remains a high risk serious offender, it must determine whether the community could be adequately protected by the release of the respondent on a supervision order, being an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30 of the HRSO Act.[14]  If the court is left in doubt that the community could be adequately protected in that way, it must affirm the CDO.[15]

   (4)While the previous decision that the respondent was a high risk serious offender must be assumed to be correct, and provides a point of departure for consideration of the first issue, it does not follow that the court at the next review must find that the respondent is a high risk serious offender if it finds there has been no change in his circumstances. The court is still required to be satisfied in accordance with s 7(1) of the HRSO Act that the respondent is a high risk serious offender at the time of the review. The onus remains on the State under s 7(2) to satisfy the court accordingly.

   (5)The task of determining the appropriate order for the adequate protection of the community is not constrained by the findings made in previous proceedings in respect of that issue, but those findings will be relevant as part of the background against which the current assessment is to be made. 

   (6)The materials to which the court will have regard, and the previous findings on which it will rely, will depend on the manner in which the proceedings are conducted by the parties.  Previous findings will usually provide the context for consideration of more recent developments in the respondent's circumstances.  To use the terminology adopted in previous cases, they will provide the point of departure or baseline for the assessment of such developments. 

   (7)The doctrine of issue estoppel may apply to some findings of fact made in previous proceedings, so that the parties will be bound by those findings. 

   (8)If there is no challenge to a previous finding that is relevant to the determination of the issues on the annual review, the court should proceed on the basis that the finding was correct and give it weight in the current proceedings accordingly, unless there is evidence, that in the court's assessment, requires reconsideration of the finding.  Such evidence may be in respect of facts that existed at the time of a previous decision, but which were not part of the evidence available at that time and have become known since then.

   [12] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 (Pindan [No 3]).

   [13] Pindan [No 3] [33] - [57].

   [14] HRSO Act s 27(1).

   [15] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [86].

6. I note in respect of the first point that a finding under s 68(1)(b) that an offender 'remains a high risk serious offender' necessarily entails a finding that, if the offender is not subject to a restriction order, the community will not be adequately protected against an unacceptable risk that he will commit a serious offence.[16]  

   [16] The State of Western Australia v West [No 6] [2019] WASC 427 (West) [21]; ZSJ [44].

7. If the court finds the respondent remains a high risk serious offender, then, in deciding whether to affirm the CDO or release the respondent on a supervision order, the court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community, which is the paramount consideration under s 68(2) of the HRSO Act.[17]

   [17] The State of Western Australia v Latimer [2006] WASC 235 [49]; Williams [79].

8. However, the discretion under s 68(1)(b)(ii) to make a supervision order is subject to s 29 of the HRSO Act, which provides:

   Limitation on power to make or amend supervision order

   (1) A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.

   (2) The onus of proof as to the matter described in subsection (1) is on the offender.

   (3)This section does not apply to the making of an interim supervision order.

9. The term 'standard conditions' in relation to a supervision order is defined in s 3 of the HRSO Act to mean a condition that, under s 30(2) of the HRSO Act, must be included in the order. Section 30(2) of the HRSO Act specifies seven conditions that must be included in any supervision order. They include a condition that the respondent is to be under the supervision of a CCO and comply with any reasonable direction of that officer, and a condition that the respondent will not commit a serious offence during the period of the supervision order.

10. The effect of s 29(1) and s 29(2) of the HRSO Act is that, before the court can make a supervision order in relation to the respondent, he must satisfy the court, on the balance of probabilities, that he will substantially comply with the standard conditions set out in s 30(2) of that Act.

11. In respect of the equivalent provisions of the repealed DSO Act,[18] I expressed views in Director of Public Prosecutions (WA) v Hart[19] as to what is meant by 'substantially comply with'. Those views apply to s 29(1) of the HRSO Act. Accordingly, the words of that provision should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order.[20]  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 offence.[21] 

    [18] DSO Act s 33(4) and s 33(5).

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

    [20] Hart [52].

    [21] Hart [52]; The State of Western Australia vNarrier [No 6] [2020] WASC 349 (Narrier) [51].

12. As I identified in Hart, some matters that will be of relevance are (a) the respondent's attitude to the conditions of the supervision order; (b) his capacity to comply with the conditions; and (c) what measures there are in place to ensure he would substantially comply.[22]

    [22] Hart [50].

13. In determining whether to affirm the CDO or make a supervision order, the following principles established by authorities under both the repealed DSO Act and the HRSO Act are relevant.

14. Detention under the HRSO Act is not punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual and violent offending from being realised. As Hall J noted in Unwin [No 3],[23] it is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future.  Further, the purposes of continuing detention include treatment and care of the offender in a secure environment.  The objective of treatment is to reduce risk.  If the offender's circumstances change, or if there is a change in external circumstances, such that the offender's risk of reoffending reduces, it may be that the adequate protection of the community against the risk, although it is still unacceptable in the absence of any restrictive measures, can be achieved by the making of a supervision order. 

    [23] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [15].

15. The level of risk posed by the respondent, and whether the community can be protected adequately against the risk under a supervision order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external measures and obligations that can be put in place under a supervision order to mitigate the risk.  The external measures include the available means to monitor, supervise and treat the respondent. 

16. All of the factors to which I have referred affect both the question of whether the respondent will substantially comply with the standard conditions of a supervision order[24] and the overall efficacy of the supervision order in ensuring adequate protection of the community.  Progress made by the respondent in treatment and his behaviour while in custody will inform the assessment of the personal factors.  The availability of new technology or resources in the community will be relevant to the assessment of external factors. 

    [24] Garlett v The State of Western Australia [103].

17. The review process is intended to ensure that detention only continues where necessary.

Evidence at the hearing

1. At the hearing, on 2 May 2022, I received into evidence a Book of Materials (BOM) in three volumes, prepared for the eighth review,[25] which included:

   [25] Exhibit 1.  As the BOM is paginated continuously, references to this exhibit henceforth will be to 'BOM' followed by the page number.

   (1)a copy of the respondent's criminal record;

   (2)an updated chronology of the respondent's offending prepared by the State Solicitor's Office;

   (3)copies of the decisions in the previous DSO Act proceedings in respect of the respondent;

   (4)Department incident reports and a charge history in respect of the respondent while he has been subject to the CDO;

   (5)Department individual management plans for the respondent from 2020 and 2022;

   (6)a summary of medical records and substance use test results for the respondent from 2019 to 2022;

   (7)the Statement of Material Facts in respect of the offences committed by the respondent on 24 August 2020, and transcript of the sentencing on 16 October 2020;

   (8)various reports tendered in the previous DSO Act proceedings, including psychiatric and psychological reports;

   (9)my recommendations from the 2019 review;

   (10)an approved NDIS plan;

   (11)a Treatment Progress Report of Dr Ben Bannister, Senior Forensic Psychologist with the Department, dated 28 March 2022;

   (12)a Community Supervision Assessment report of Ms Emma Cashmore, Senior Community Corrections Officer with the Community Offender Monitoring Unit (COMU) within the Corrective Services Section of the Department, dated 30 March 2022; and

   (13)a psychiatric report from Dr Peter Wynn Owen, Consultant Forensic Psychiatrist, dated 3 April 2022, being a report prepared under s 74 of the HRSO Act.

2. Ms Cashmore's report dealt with the respondent's progress generally since the last hearing, his behaviour in prison, developments in respect of his NDIS plan, and the availability of accommodation and services for the respondent in the community.

3. Dr Wynn Owen, Dr Bannister and Ms Cashmore also gave oral evidence at the hearing on 2 May 2022.

4. At the hearing, I also received into evidence an email from the State Solicitor's Office in relation to an update from Dr Fraser Moss, who had been the respondent's medical practitioner at Casuarina Prison for a period, and daily log entries made by prison officers in relation to the respondent's behaviours and activities.[26]

   [26] Exhibits 2 and 3 respectively.

5. The respondent elected not to give or adduce any evidence at the hearing.

The issues to be determined

1. The first question I must decide is whether the respondent remains a high risk serious offender.  On the evidence presented in the review, that is not in dispute on behalf of the respondent.  For the reasons that follow, I am satisfied to a high degree of probability that the respondent remains a high risk serious offender. 

2. The next question is whether I should affirm the CDO or rescind the order and make a supervision order in relation to the respondent.  As explained above, I cannot make a supervision order unless I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the order.  On the evidence presented in the review, I am not so satisfied.  Further, I am not satisfied that any conditions that could reasonably be imposed as part of a supervision order would provide adequate protection of the community against the risk that the respondent committing a serious sexual offence.

3. The determination of the first issue relied substantially on the risk assessment made by Dr Wynn Owen, having regard to developments in the respondent's circumstances since the last review, including any progress made in counselling.  Dr Bannister's evidence was relevant to the latter issue.

4. The determination of the second issue relied substantially on the developments in the respondent's circumstances, especially in respect of the matters identified in the recommendations I made in the 2019 review concerning, most notably: stability in the respondent's behaviour, demonstrated abilities in self-care and independent living, the capacity to keep to a schedule, engagement in work and craft, engagement in counselling/treatment, the trial of medication, engagement of a mentor and an administrator, and the availability of suitable accommodation and support in the community.  Those matters were also relevant to the first issue. 

The offence committed on 24 August 2020

1. The respondent's offending on 24 August 2020 was a significant development during the review period since the 2019 review.  It was a major setback.

2. The victim of the offending was Ms X, who had been the respondent's psychologist for the previous six years, and whom I had identified in my recommendations as the preferred counsellor to provide ongoing treatment to the respondent.  Ms X worked for the Department and was continuing to provide counselling to the respondent.  On Monday, 24 August 2020, Ms X met with the respondent in accordance with a prearranged appointment in an interview room in one of the blocks at Acacia Prison.  No one else was present in the room.  At the end of the session, after an hour, the respondent stood up and, without warning, assaulted Ms X by grabbing both of her breasts with his hands.  Ms X attempted to stop him, but he forced her to the ground by pushing her with his arms.  He overpowered Ms X and continued to grab her breasts in a violent manner, by 'pinching, punching, and grabbing her breasts' as she lay on the ground.[27]  Ms X struggled to get the respondent off her, but was unable to do so.  However, she was able to activate her duress alarm, which alerted prison guards who came into the room and removed the respondent.  Ms X was attended to by prison staff.  The respondent subsequently took part in an audio-visual record of interview with police detectives.  His explanation was that he had 'blacked out'.[28]  He was charged with aggravated indecent assault and assaulting a public officer as a result of his conduct.

   [27] BOM 134.

   [28] BOM 134.

3. It appears from the learned magistrate's sentencing remarks on 16 October 2020 that the respondent maintained the stance that he had no memory of the incident.[29]

   [29] BOM 137.

Other developments since the 2019 review

1. Other developments in the respondent's circumstances since the 2019 review can be distilled from the reports and oral evidence of Dr Wynn Owen, Dr Bannister and Ms Cashmore, and from the prison logs and medical records.  It is convenient to commence with an outline of the developments in the respondent's behaviour and its management described by Ms Cashmore and evident in the prison logs and medical records, before turning to the assessments provided by Dr Wynn Owen and Dr Bannister of those matters.  I will return later to Ms Cashmore's evidence concerning efforts to find suitable accommodation and obtain NDIS support for the respondent, and the availability of services in the community.

Change in case manager

1. Ms Cashmore was the community corrections officer (CCO) assigned to the respondent as his case manager for most of the review period.  She said she was assigned just before the respondent's sexual offence in Acacia Prison.  It is apt to note that, although an individual CCO from COMU is assigned to manage the case of a high risk serious offender, and to deal with him directly, the management of the person's case is a team enterprise, with input from the team leader, in this case, Ms Aimee Goode.

1. As a result of the assault against Ms X, the respondent was transferred back to Casuarina Prison where he was managed in maximum security from 28 August 2020 to 20 January 2022.[30]  On 30 October 2020, the Deputy Superintendent at Casuarina Prison determined that it was necessary to prohibit the respondent from having any one-on-one contact with female staff.[31]  As a result, the respondent did not have a CCO dealing with him directly for a period of about six months.  Ms Cashmore noted that this was due to there being 'very few male CCOs'.[32]  Ms Cashmore remained the respondent's case manager for a period of time, despite not being able to have direct contact with him.  However, following receipt of Dr Wynn Owen's report, in which he recommended that the respondent is not to have unsupervised contact with females, including from 'community corrections',[33] she was removed as the case manager and a male case manager, Mr Carmichael, was assigned to the respondent as his case manager.[34]  Nevertheless, Ms Cashmore was tasked with preparing the report for this review, having been the respondent's case manager for most of the review period. 

Behaviour while in prison

[30] BOM 568.

[31] BOM 568.

[32] ts 245.

[33] BOM 597.

[34] ts 254.

1. Ms Cashmore reported that the respondent incurred one formal prison charge on 29 January 2021, for failing to provide a urinalysis sample, and was involved in 11 adverse incidents relating to general misconduct.[35]  Ms Cashmore noted that, generally, the prison records indicate that the respondent had been 'polite and respectful towards staff' and was, as at the time of the hearing, not considered to be a management problem.[36]

   [35] BOM 567.

   [36] BOM 567.

2. However, since the 2019 review, the respondent had regressed and had displayed inappropriate sexual behaviour in prison.  Ms Cashmore noted that on 28 June 2020 there were observations that the respondent became 'fixated' when a female was present in the back office or movement area, and that he had made comments about a female officer speaking over the PA system, saying that 'they should keep doing that'.[37]  The 'Offender Notes' in the prison logs recorded that, on 28 June 2020, the respondent was called to the back office and spoken to about staring at female officers and his comments about the officer speaking over the PA system.[38]  The notes stated that, at first, the respondent listened and appeared to accept what had been said to him, but that he then 'went off a little bit and started to complain that [the officers] were making trouble for him'.[39]  The note in the prison logs went on to say that the respondent threatened to make an allegation that he had seen a female officer kiss a prisoner (which, in context, appears to have been a fabricated claim).  When told that he was not in trouble, but needed to be mindful of what he had been told, the respondent left the office, mumbling under his breath.[40]

   [37] BOM 568.

   [38] Exhibit 3, Offender Notes, p 7 of 11.

   [39] Exhibit 3, Offender Notes, p 7 of 11.

   [40] Exhibit 3, Offender Notes, p 7 of 11.

3. As Ms Cashmore reported the matter, while the respondent initially was receptive to the feedback he was given, he began minimising his behaviour by stating that he was only being quizzed because of his reputation.[41]  That statement was made to an officer during a meeting on 8 July 2020, when the officer raised the issue of the respondent engaging in 'low-level predatory behaviour' towards female staff.[42]  The meeting appears to have been one of regularly scheduled meetings, referred to as 'Wednesday 10 minute meetings'.[43]

   [41] BOM 568.

   [42] Exhibit 3, Offender Notes, p 7 of 11.

   [43] Exhibit 3, Offender Notes, p 7 of 11.

4. Ms Cashmore reported that on 2 August 2021 it was ascertained that prison intelligence had detected that the respondent had been telephoning 1800-prefix numbers and leaving sexually explicit messages.[44]  The prison logs recorded that incident as occurring on or about 23 April 2021.[45]  On that date, the respondent was counselled by a prison officer about the behaviour, which the respondent admitted.  The respondent also admitted having engaged in similar behaviour at other prisons, and told the officer that his psychologist and the courts were aware of the behaviour.[46]

   [44] BOM 568.

   [45] Exhibit 3, Offender Notes, pp 1 - 2 of 11.

   [46] Exhibit 3, Offender Notes, p 2 of 11.

5. It is correct that the court was aware that the respondent had engaged in such behaviour in the past.  In Unwin [No 8], I noted that, at the 2017 review, the respondent's use of telephone calls to helplines to speak in a sexually explicit way to women who answered the calls was an issue of some significance.[47]  However, as I also noted, there was no evidence in the 2019 review that the respondent had engaged in such behaviour during the two-year period since the 2017 review, which I considered to be a significant positive change.[48]  Obviously, the respondent's regression to such behaviour since the 2019 review is a significant negative change in his circumstances.

   [47] Unwin [No 8] [67].

   [48] Unwin [No 8] [67], [257].

6. Of course, that conduct is eclipsed by the respondent's aggravated indecent assault on Ms X on 24 August 2020, but, as it occurred after the applicant was sentenced for that offence, indeed at a time that appears to have been around the time he completed that sentence, the conduct indicates a continuing inability of the respondent to adequately manage his sexual thoughts and urges, or to appreciate proper behavioural boundaries.

Consistency of psychiatric and medical management

1. Ms Cashmore noted the court's recommendation in 2019 of endeavouring to ensure consistency in the provision of psychiatric care, treatment and advice to the respondent.  She said that COMU approached Dr Moss at Casuarina Prison on 16 December 2019 to request oversight of the respondent's medical care.[49]  A summary of the court's recommendations was provided to Dr Moss, and he agreed to provide 'stable and regular medical care' for the respondent.[50]  This was recorded in the medical notes on 3 February 2020, when Dr Moss noted the court's recommendation (referred to as a 'request') that the respondent be seen by the same medical practitioner 'to stabilise management' and indicated that he had accepted the assignment.[51]  The medical records show that the respondent then had regular consultations with Dr Moss while he was at Casuarina Prison.  That ceased when the respondent was transferred to Acacia Prison on 15 June 2020.[52]  He was then mainly cared for by Dr Riaan de Bruin.[53]

   [49] BOM 569.

   [50] BOM 659.

   [51] BOM 129.

   [52] BOM 568.

   [53] BOM 569.

2. The respondent was at Acacia Prison for approximately two months before being returned to Casuarina Prison after the aggravated indecent assault offence.  On 2 October 2020, COMU contacted Dr Moss to request that he resume oversight of the respondent's medical care at Casuarina Prison, but Dr Moss responded that he was no longer assigned on a regular basis to Casuarina Prison, and that Dr Shahriar Alizadeh had agreed to be the 'consistent GP' for the respondent.[54]

   [54] BOM 569; Exhibit 2.

3. Ms Cashmore said that when the respondent returned to Casuarina Prison after the offence in August 2020, his psychiatric care was consistently managed by Dr Daniel De Klerk, and his medical treatment was managed by Dr Alizadeh.[55]  However, it must be noted that the management provided by Dr De Klerk was by way of case conferences with the treating general practitioner on 13 November 2020 and 26 May 2021,[56] not direct consultations with the respondent.  The medical records show that, apart from consultations with general practitioners, the respondent was seen from time to time by a mental health worker, who appears to have been a mental health nurse on each occasion.

   [55] BOM 569.

   [56] BOM 112, 116.

4. On 26 May 2021, Dr De Klerk recorded the following opinion: 'Given the absence of benefit of antipsychotic medication, I advise against the use of antipsychotic medication'.[57]  He explained in the notes that the respondent had been on 'big doses of antipsychotic medication', and that it was shown to be of little effect once it ceased.[58]

   [57] BOM 113.

   [58] BOM 112.

5. The medical records indicate that the respondent on occasions refused to attend for blood tests during the period since the 2019 review.  He also refused to take medication on numerous occasions from November 2019 to November 2020,[59] although at other times he asked to be prescribed medication, for instance 'to assist with his frustration and racing thoughts due to him dealing with prison' (7 June 2021),[60] or said that he wanted his 'medications' back (26 May 2021).[61]  At different times, and sometimes concurrently, he was prescribed Epilim (sodium valproate) and olanzapine, both of which he refused to take at various times, informing the medical staff that he wished to discontinue the medications (13 June 2020).[62]  However, at least on one occasion, the respondent acknowledged that the medication was effective, telling Dr Moss on 18 February 2020 that the olanzapine at night was 'working well for management of anxiety and sleep', and the Epilim was 'helping with reducing arousal'.[63]  However, on that occasion, the respondent also requested that he be prescribed something to stabilise his mood during the day, as an increase in Epilim was not effective for that.[64]  Dr Moss told the respondent that benzodiazepines would not be considered for mood management, given there was '[an] approaching court case'.[65]  It is not clear whether Dr Moss was referring to the next review, which, at that stage, was still some 21 months away.  The point is, however, that it appears some of the respondent's mental health issues were being treated effectively on the medication he was prescribed.

   [59] BOM 116 - 117, 127, 129, 130, 131.

   [60] BOM 111.

   [61] BOM 112.

   [62] BOM 127.

   [63] BOM 128.

   [64] BOM 128.

   [65] BOM 128.

6. The medical records from May and June 2021 indicate that the respondent wished to be considered for methadone treatment, but that he ultimately agreed it was not the way forward for him.[66]  The medical note of 7 June 2021 recorded that the respondent admitted that he struggled with the length of time he had been in prison, and that he said he 'fucks up' when there is a possibility of release.[67]  He said he was unsure why he did that.  In that context, he discussed the aggravated indecent assault offence in Acacia Prison, claiming that it was 'voices' that made him do it.[68]  He was told that was not convincing, as he had not experienced auditory hallucinations previously, and the incident was most likely due to his historical offending behaviour and his inability or unwillingness to control his urges.[69]  The notes record that, while the respondent accepted he is a repeat offender, he was unwilling to accept responsibility.[70]

Stability and self-care

[66] BOM 111 - 112.

[67] BOM 111.

[68] BOM 111.

[69] BOM 111.

[70] BOM 111.

1. Ms Cashmore reported that on 1 December 2019, the respondent was moved to self-care within the protection unit at Casuarina Prison and the respondent reacted positively.[71]  She noted that a custodial note dated 6 December 2019 stated that the respondent had become quite capable in the kitchen since moving to self-care and was 'proud of the pizza he made for lunch'.[72]On 16 January 2020, the respondent was appointed as the self-care kitchen cleaner, which involved daily and weekly duties.[73]

   [71] BOM 568.

   [72] BOM 568.

   [73] BOM 568.

2. Ms Cashmore reported that the respondent was removed from self-care on 20 April 2020 due to his deteriorating behaviour in March 2020, which was underlined by the respondent making threats of misbehaving if he did not get what he wanted.[74]  COMU expressed concerns at the time about rescinding the respondent's self-care placement, however, custodial staff confirmed that the respondent's behaviour was not conducive to maintaining a placement in self-care.[75]

   [74] BOM 568.

   [75] BOM 568.

3. The recommendations following the 2019 review outlined the importance of providing the opportunity for the respondent to demonstrate self-care in a minimum-security prison.  Ms Cashmore noted that there were two failed attempts, on 19 March and 4 May 2020, to facilitate the respondent's transfer to Karnet Prison Farm.[76]  As I noted earlier at [67], the respondent was successfully transferred to Acacia Prison, a medium-security prison,[77] remaining there for two months, until the assault against Ms X.

   [76] BOM 568.

   [77] BOM 568.

4. Referring to prison records, in particular the prison logs, Ms Cashmore reported that the respondent had maintained appropriate personal and cell hygiene, and obtained employment on 12 December 2020 when he returned to Casuarina Prison.[78]  She noted that he had maintained his employment since then and had engaged in recycling duties in his unit.[79]

   [78] BOM 569.

   [79] BOM 569.

5. Ms Cashmore said that the respondent continued to occupy himself with craft activities, such as building matchstick models and colouring in.[80]

Logs

[80] BOM 569.

1. Ms Cashmore said that the previous CCO case manager for the respondent, Mr Kyle Jarvie, made an attempt to impress upon custodial staff the importance of completing the daily logs and the reinforcement of positive behaviour.[81]  She said that she also met with custodial staff, albeit after the serious offence against Ms X, and provided them with my recommendations from the 2019 review.[82]

   [81] ts 244.

   [82] ts 244.

2. Ms Cashmore agreed with the opinion of Dr Wynn Owen, which I discuss below, that there had been good documentation of the respondent's behaviour and surrounding circumstances by some of the custodial staff, but that the standard was not consistent for all staff, which in part may have been due to pressures on staff within the prison because of the COVID pandemic, and in part due to rotations in staffing.[83]  She noted that, while COMU was able to impress on staff the expectation from the recommendations, it could not compel staff to complete logs to the expected standard.[84]

   [83] ts 244.

   [84] ts 244.

3. I make the observation that, in my opinion, there were examples in the Offender Notes section of Exhibit 3 of staff engaging in positive reinforcement of commendable behaviour by the respondent, and, from 24 June 2020 to 29 July 2020, there were a number of detailed entries that recorded the respondent's behaviour in good detail and provided context through the identification of surrounding circumstances.  This enabled an understanding of the factors that may have contributed to both the respondent's positive and negative behaviour, and what may need to be done to promote the positive behaviour and minimise the risk of negative behaviour.  However, the level of detail and analysis reduced subsequently, particularly after the offences of 24 August 2020, when the respondent was returned to Casuarina Prison.  It is accurate to say that the expectation of a consistent approach throughout the review period was not met, in order to provide a useful picture of the factors affecting the respondent's functioning and the means by which his functioning could be improved.

Written goals

1. Ms Cashmore was asked whether any steps had been taken to formulate written goals with the respondent, as recommended in the 2019 review.[85]  She said that, following the review, Mr Jarvie and Ms X had made efforts to implement that recommendation, but, following the offences against Ms X, and the recommendation that the respondent not be managed by females, which meant Ms Cashmore was not able to see the respondent, the recommendation concerning setting goals was not 'reinforced'.[86]

Mentor

[85] ts 249.

[86] ts 249.

1. As to the recommendation in respect of making a mentor available to the respondent, Ms Cashmore said that, while the recommendation was not able to be implemented initially, she was hopeful it could be implemented following an increase in funding from the NDIS, being funding for specialist behaviour support that provides the respondent access to a support agency.[87]

   [87] ts 249.

Dr Wynn Owen

1. As I noted above, Dr Wynn Owen prepared a report for these proceedings.[88]  He also gave evidence at the hearing.

   [88] BOM 583.

2. In reporting and expressing views about developments in the respondent's circumstances since the 2019 review, Dr Wynn Owen relied on his review of the materials in the BOM, an interview with the respondent on 15 March 2022, discussions with Ms Cashmore and Dr Bannister, and consideration of their reports prepared for these proceedings.

3. Dr Wynn Owen noted that he has assessed the respondent on three previous occasions for the reviews of the CDO conducted in 2016, 2017 and 2019.

The respondent's behaviour while in prison

1. After the 2019 review, the respondent had been held at Casuarina Prison until 17 June 2020 when he was transferred to Acacia Prison.  He was transferred back to Casuarina Prison on 28 August 2020 after his assault on Ms X, and had remained at that prison.

2. Dr Wynn Owen noted that the respondent's 'overall pattern of function'  in prison had again been 'periods of relative stability with intermittent short [periods of] decompensation' or 'poor coping'.[89]  He noted that during the periods of coping poorly, the respondent would become abusive towards staff, threaten self-harm and report 'psychotic' symptoms such as auditory hallucinations.[90]  According to Dr Wynn Owen, these periods of decompensation are associated with the respondent trying either to manage stress or to achieve a change in circumstances in prison.[91]

   [89] BOM 596 [36], [102].

   [90] BOM 587 [36].

   [91] BOM 587 [36].

3. In relation to the assault on Ms X, Dr Wynn Owen reported that the respondent 'demonstrated a clear recollection of the events',[92] which contrasts with the respondent's earlier claims of blacking out (when interviewed by the police) or lack of memory (at the sentencing hearing).  He said he stood up and grabbed Ms X's breasts after a prison officer had come in and said there were five minutes to go.[93]  He admitted pinching her breasts, but not hitting Ms X, which is contrary to his conviction for assaulting a public officer.  He denied having planned to assault Ms X.  When reminded of past admissions by him that he had thought of Ms X's breasts during their first months of counselling, he dismissed it as being a long time ago.[94]  He gave a range of reasons for the assault, in essence that he was trying to have medications prescribed, but the psychologist had taken him off certain medication, that he was under stress, hearing voices and having a mental breakdown.[95]  He suggested that the assault would not have occurred if the prison had provided him with medication.[96]  Disturbingly, he sought to blame the victim for the assault, suggesting that Ms X should have pressed her duress alarm at an earlier stage.[97]  As Dr Wynn Owen aptly noted, the respondent's account sought to minimise the incident, and he showed no remorse or empathy towards the victim.[98]

   [92] BOM 586 [30].

   [93] BOM 586 [30].

   [94] BOM 587 [30].

   [95] BOM 587 [30].

   [96] BOM 587 [30].

   [97] BOM 587 [31].

   [98] BOM 587 [33].

4. At the hearing, Dr Wynn Owen was asked if the respondent's victim-blaming and lack of remorse had significance for his risk of re-offending.  He said:[99]

   Mr Unwin's blaming and almost justification of the assault, including raising the issue that the victim didn't press their duress alarm soon enough; the response wasn't quick enough; people should have been aware, etcetera - is an issue in relation to his understanding of his own risk of offending, both then and in the future.  Minimisation and denial of offending is not necessarily something that's independently directly linked to a future risk of offending, but it does have implications for a willingness to engage in treatment, treatment adherence and treatment responsivity.

   [99] ts 207.

5. Dr Wynn Owen noted that the respondent's commission of a serious offence in a prison setting, where he was surrounded by prison officers, suggested that the treatment to date had almost no effect on the respondent's risk of re-offending.[100]  In particular, he noted that the offence was 'absolutely consistent with his past offending' and highlighted the respondent's sexual deviant thinking related to women's breasts.[101]

   [100] ts 207.

   [101] ts 207.

1. Having regard to the inconsistencies between what the respondent said to Dr Wynn Owen and what he had said in his interview with the police and to the Magistrates Court, Dr Wynn Owen noted that the respondent initially lied to the police and the court about having no memory of the sexual assault.  When asked if it was possible that, previously, the respondent did not remember, Dr Wynn Owen said:[102]

   There may have been motivations in relation to concern about his term of imprisonment that may result and the implications for him that made him suggest that he didn't know what was happening.  However, he certainly told me how the interview [with Ms X] transpired, recalled that it was at the end of the interview that he chose to do what he did and explained it in the way that I've outlined.  Although we can speculate about the motivation, we can't be clear as to why Mr Unwin said he blacked out at that time. 

   [102] ts 206.

2. Dealing with other aspects of the respondent's conduct in prison, Dr Wynn Owen noted that the respondent had tested negative on all urinalysis tests between 30 October 2019 and 2 February 2022, and he had incurred one formal prison charge for failing to provide a sample on 29 January 2021.[103]  However, the respondent told Dr Wynn Owen that he was using illicit drugs in prison, such as suboxone.[104]  When Dr Wynn Owen mentioned to the respondent that he had not returned a positive urinalysis result, the respondent said that he had refused to provide a urine sample because he knew it would be positive.[105]  Dr Wynn Owen noted that the respondent became angry at the suggestion that he was being dishonest.[106]

   [103] BOM 588 [37].

   [104] BOM 588 [43].

   [105] BOM 588 [43].

   [106] BOM 589 [43].

3. In his report, Dr Wynn Owen said there had been no indication in the materials provided to him that prison officers had attempted to develop a consistent behaviour management approach to the respondent.[107]  At the hearing, he was asked to expand on what he meant by a 'consistent behaviour management approach'.  He responded:[108]

   Well, this is something that I had referred to in previous proceedings as being potentially helpful in the management of Mr Unwin, who goes through cycles of behaviour being out of control and then becoming more compliant and manageable over periods of time that are not obviously necessarily related to external stressors but at times are.  I had suggested that, with the assistance of a psychologist - that prison officers could look at targeting certain negative behaviours and looking at how they respond to those in the most consistent way possible that enables Mr Unwin to benefit from that through consistent positive reinforcements of positive aspects of how he manages those behaviours, not having negative and variable responses to those behaviours. 

   [107] BOM 588 [38].

   [108] ts 207.

4. He went on to say that he would have expected that there would be some information in the materials that suggested a meeting or discussion had occurred, that a set of objectives had been set out between the treating psychologist or one of the specialist psychologists and custodial staff, and that the objectives were then followed through by 'some sort of consistency of reporting or some requirement for reporting into logs'.[109]  He commented that the logs that had been provided were of limited value, because, while they may be of benefit 'custodially', they were not underpinned by any form of behaviour management plan.[110]  Dr Wynn Owen did note, however, that he could not comment on the consistency of particular staff, because the staff names had been redacted.[111]

   [109] ts 207 - 208.

   [110] ts 208.

   [111] ts 208.

5. Dr Wynn Owen reported that, during their interview, the respondent was of the belief that his behaviour in prison was not relevant to his future behaviour in the community.[112]  The respondent refused to answer certain questions about his medical record and became increasingly angry, suggesting that Dr Wynn Owen and others want him to spend the rest of his life in prison, and then threatening Dr Wynn Owen.[113]  Given the escalation in the respondent's hostility, Dr Wynn Owen terminated the interview.[114]  This meant that there was no discussion in the interview about managing risk, future plans, compliance with a supervision order, psychiatric symptomatology or sexual thinking and function.[115]

   [112] BOM 589 [46].

   [113] BOM 589 [48] - [49].

   [114] BOM 589 [50].

   [115] BOM 589 [51].

6. Dr Wynn Owen was of the opinion that the respondent's level of functioning has deteriorated since the 2019 review, and that this is the result of the 'aversive environment' in which he resides and the inconsistency in his management, which could be attributed to changes in personnel and the lack of an agreed and consistent means of communicating both positive and negative behaviours.[116]

   [116] BOM 596 [104].

7. Dr Wynn Owen is of the opinion that prison is the worst place for the respondent to make progress.[117]  In evidence-in-chief he said this was because the respondent's negative behaviours are constantly reinforced, there is significant inconsistency, and the respondent is 'always on a high level of arousal, because [he is] always under some degree of threat or adversity'.[118]  In cross-examination, he further explained that:[119]

   [Prison is] a highly controlled and aversive environment in which there are no friends; there are only people who tell you what to do and people you don't know who have a variety of motives, but you know are criminals … It's a place where it's frustratingly slow to get anything done, where your requests are often dismissed, where the staff, not through anything other than the fact that they're not given the opportunity to be trained in any therapeutic way, respond as best they can to the multiple requests of many hundreds of people, and when they are under stress themselves, that often changes their interactions such that they become highly pejorative and aversive.  It will always lack consistency, in that there are shifts that change constantly.  People are moved without necessarily understanding why they're moved, which means they have to go to a new environment.  All of these things are difficult - any one of them is difficult for somebody like Mr Unwin to manage.  All of them in combination just make for an environment which is likely to be making - continually reducing his chances for successful release.

Cognitive impairment and obstacles to therapy

[117] ts 218, 224 (XXN).

[118] ts 218 - 219.

[119] ts 224.

1. As I indicated earlier in these reasons, the respondent has previously been assessed to have cognitive impairment.  Dr Wynn Owen discussed this in the context of considering the respondent's mental state examination and psychiatric diagnosis.  Dr Wynn Owen diagnosed the respondent as having a Substance Use Disorder (solvents/inhalants), currently in remission, a Sexual Sadism Disorder, an Antisocial Personality Disorder and an Intellectual Development Disorder (mild to moderate severity).[120]  In his report he concluded that the respondent did not present as someone with a major mental illness, but he did meet the criteria for mild intellectual impairment.[121]  In his evidence at the hearing, he explained his opinion as follows:[122]

   I was looking at the level of function, as well as … Mr Unwin's previous assessments of his cognitive and intellectual capacity.  So, if we combine a previous assessment that has found him to have borderline intelligence and more recent neuropsychological assessment, which has had an array of scores from extremely low to … something around average … in some domains, but then look at his functional impairments in terms of his interpersonal skills, his communication, his ability to self-manage and self-care, I believe that he meets criteria for a mild intellectual impairment.  I don't believe that impairment is as a result of an acute or varying condition, such as an axis I mental illness like a schizophrenia, a depression, a bipolar disorder, which is why I say it's not the result of … a major mental illness.  I think this is a longstanding cognitive impairment that may have neurodevelopmental origins.  It's likely to have then subsequently been perpetuated and/or worsened by substance use and possibly by injury.  Just the degree of neglect and abuse suffered by Mr Unwin as a child is also associated often with neurodevelopmental impairment.  So, he probably has a number of causes for his current level of cognitive function, but that's the significant issue for me, and I'm not characterising that as a major mental illness.

   [120] BOM 590.

   [121] BOM 596 [99].

   [122] ts 211.

2. Dr Wynn Owen noted that the respondent's intellectual impairment has had a significant impact on his learning ability and capacity.[123]  He said that the respondent's intellectual impairment, combined with his 'rigidity and fixedness of thinking' (his personality style), creates a significant obstacle and has prevented the respondent from being able to learn from his past behaviours over many years in individual psychotherapy.[124]

   [123] ts 211.

   [124] ts 211.

3. In Dr Wynn Owen's assessment, the respondent had not been an 'active client' of the Mental Health Services within the prison, and he had not engaged in therapy since his assault on Ms X.  Dr Wynn Owen also noted that the respondent had not seen a psychiatrist since the last review.[125]  He noted that, while a psychiatrist had been involved in case discussion, there had been no direct involvement with the respondent and no consistent goals or treatment targets had been set during the recent review period.[126]

   [125] ts 208.

   [126] ts 208, 219.

4. Dr Wynn Owen considered that the respondent's problems with therapy constitute a risk factor for serious sexual offending.[127]  As I have already noted, he was of the view that the assault on Ms X, in a highly structured prison environment, was indicative of a poor response to treatment.[128]

   [127] BOM 594 [85].

   [128] BOM 594 [84] - [85].

5. As at the time of the hearing, the respondent was still not in therapy.  Dr Wynn Owen was of the opinion that the respondent is not suitable for any form of intervention to address his criminogenic needs that is directed at the respondent obtaining insight into his offending.[129]  

Consistency in psychiatric care

[129] BOM 596 [100]; ts 208.

1. However, Dr Wynn Owen again identified a need for the respondent to continue receiving psychiatric care.  He noted that the respondent had not seen a psychiatrist since the last review.  Although there had been a number of occasions when a psychiatrist had been involved in a case discussion, or given input at the request of another clinician, there had been no direct involvement of a psychiatrist with the respondent.[130]  Further, the case discussions appeared to have been ad hoc, responding to particular situations, rather than being a consistent assessment in relation to set goals or treatment targets.[131]  He recommended that the respondent meet consistently with a psychiatrist, stating:[132] 

   I believe that it would be useful for a psychiatrist who knew Mr Unwin to have some form of regular contact, whether that was quarterly, for example, to at least provide some consistency in response and management and some feedback to Mr Unwin around some of the decisions that were being made around the way that his, at times, psychological distress was being handled and how his requests for the methadone, his requests for antipsychotic medications, etcetera, were being managed, because I believe that that consistency of feedback would have been very useful and could have assisted Mr Unwin in understanding why he was in the circumstances he was in.

   [130] ts 208.

   [131] ts 208.

   [132] ts 208.

2. When asked if this consistency in care could be achieved by a general practitioner who was guided by a consulting psychiatrist, Dr Wynn Owen was of the opinion that consistent care from a general practitioner would be 'useful' but that it could not be relied on in this context.[133]  He went on to say:

   I believe that, as there are psychiatrists in … Casuarina on a regular basis - that it would have been ideal for that to be a psychiatrist.  The … knowledge of mental illness, cognitive impairment, the understanding of the medications that were being requested, the implications for their use, would have enhanced the … input and …, I think, the outcomes, potentially, as well as the fact that the psychiatrist probably would be more familiar with behaviour management approaches to care … and cognitive behaviour type approaches to … interactions.

   [133] ts 209.

3. Dr Wynn Owen also acknowledged that, despite the lack of utility of therapy addressing criminogenic needs, there could be a role for a psychologist to develop some form of behaviour management plan and monitor its implementation over the two-year period, with input to prison management, and to provide counselling to the respondent in that context.[134]  As at the time of the hearing, his recommendation was that such counselling be provided by male clinicians.[135]

Medication

[134] ts 231.

[135] ts 231.

1. The 2019 recommendations suggested that the respondent may benefit from medication aimed at stabilising his mood and reducing his libido.  It was suggested that it would be appropriate to continue the trial of sodium valproate.  Dr Wynn Owen noted that the respondent intermittently refused to take his prescribed medication.[136]  He said that, while the respondent had been trialled on sodium valproate, there was not enough data available to provide an opinion about treatment responses or effectiveness.[137]

   [136] BOM 588 [42].

   [137] BOM 588 [42].

2. Dr Wynn Owen noted that, at the start of his interview with the respondent, the respondent requested anti-libidinal medication.[138]  When Dr Wynn Owen explained to him that such medication could be prescribed under certain conditions, including being in therapy to address outstanding criminogenic needs, the respondent became annoyed and insisted that the Supreme Court had recommended such medication.[139]

   [138] BOM 588 [44].

   [139] BOM 588 [44].

3. Dr Wynn Owen's opinion was that the respondent only requested anti-libidinal medication because of the upcoming HRSO Act review.[140] He noted that anti-libidinal medication is used to improve engagement in therapy, and he does not believe the respondent is a candidate for further therapy.[141]At the hearing, Dr Wynn Owen was asked whether an antiandrogen, such as Androcur, could be of benefit to the respondent.[142]  He said that this type of medication has a much more powerful physiological effect, as it reduces testosterone, but it may not be useful for the respondent, as his offending has not necessarily involved satisfying a sexual need or physiological arousal.[143]  However, he acknowledged that an antiandrogen may assist in curbing the respondent's deviant thinking, which 'enables that unusual deviant interest in the female breasts and causing some pain through his approach to the female breast'.[144]

   [140] BOM 596 [100].

   [141] BOM 596 [100], ts 222 (XXN).

   [142] ts 223.

   [143] ts 223.

   [144] ts 223 - 224.

4. When asked if the respondent was on a mood stabiliser at the time he offended against Ms X, Dr Wynn Owen said he was not certain from the medical records, although he understood that the respondent's medication had been ceased a relatively short time before the offence.[145]  Dr Wynn Owen said that the respondent was seeking to have his medication reinstated and had attributed the cessation of his medication to Ms X.[146]  Dr Wynn Owen explained that sodium valproate is used as a mood stabiliser because, although it is an antiepileptic medication, it was found to be extremely effective in moderating the changes of bipolar disorder, reducing the instances of depressive episodes and manic episodes.[147]  More recently it has been used to manage 'more rapid fluctuations in mood and emotion in relation to personality … [and] organic personality disorder'.[148]

   [145] ts 217.

   [146] ts 217.

   [147] ts 220.

   [148] ts 220.

5. When asked if he believed a mood stabiliser would prevent, or reduce, the risk of the respondent engaging in spontaneous behaviour, like the behaviour against Ms X, Dr Wynn Owen said:[149]

   I think it has definitely got the capacity to do that.  Mood stabilisers are now used in the context of organic instability of mood and in the context of personality-related emotionally unstable mood, with great effect, and I know that Mr Unwin was trialled on the medication sodium valproate, but there are a number of other medications which are also safe, well understood, and could potentially be trialled in these circumstances.  Again, another reason why I believe that - that psychiatric input, as well as oversight, would - would be useful to assist Mr Unwin, because there is no doubt that some of the - the rapid fluctuations in his mood cause him enormous distress and lead to significant problems for him and are not necessarily within his control.

   [149] ts 217.

6. In cross-examination, Dr Wynn Owen said that a mood stabiliser may improve the respondent's unpredictability, but it is difficult to say, because 'mood or affect change in the moment and unpredictability are not necessarily directly related'.[150]  However, he reiterated that he believed the respondent would benefit from the use of a mood stabiliser, whether it be sodium valproate or a different mood stabiliser.[151]

   [150] ts 221.

   [151] ts 221 (XXN).

7. In cross-examination, Dr Wynn Owen was asked about the cessation of the Risperidone depot injections that the respondent had been receiving.  Dr Wynn Owen explained that Risperidone is an antipsychotic medication used for the treatment of schizophrenia and bipolar disorder when there is the presence of psychosis, and that the respondent had been receiving the injections despite the fact that, in his opinion, the respondent does not suffer from those illnesses.[152]  When asked what the likely effect would be if someone were to be taken off this medication, Dr Wynn Owen said that there are 'relatively few' withdrawal symptoms, as it is a form of medication that slowly deteriorates.[153]  He said that the likely withdrawal symptoms would be some degree of insomnia and increased arousal or irritability.[154]  While Dr Wynn Owen accepted that withdrawal from the Risperidone depot could have a behavioural effect for the respondent, he did not think that contributed to the offence against Ms X, as the respondent had ceased taking the medication some time before the offence occurred.[155]

   [152] ts 219 (XXN).

   [153] ts 219 - 220 (XXN).

   [154] ts 220 (XXN).

   [155] ts 220 (XXN).

8. Generally in relation to the prescription of medication to the respondent, including the use of a mood stabiliser, Dr Wynn Owen emphasised the need for 'hands-on oversight' by a psychiatrist who knows what the respondent has been through, and who is prepared to contemplate trials of medications and follow through the monitoring of how the respondent functions on the medication.[156]  He maintained his recommendation from the 2019 review that the respondent should be trialled on a mood stabiliser, and, if the first one was not effective, it would be appropriate to trial a different mood stabiliser.[157]

Supported accommodation

[156] ts 220 (XXN).

[157] ts 220 (XXN).

1. Dr Wynn Owen formed the view that the respondent was unlikely to make any progress towards his self-management of risk while he is in a traditional prison environment.[158]  He maintained his position from the 2019 review, that if the respondent were released on a supervision order, he would need to be in supported accommodation for 24 hours a day, seven days a week, for at least six months.[159]  He was of the view that the current NDIS funding would not be enough for the level of support that he envisaged the respondent would need upon release.[160]

   [158] BOM 597 [107] (3).

   [159] BOM 597 [107] (2); ts 216, 227 (XXN).

   [160] ts 216, 227 (XXN).

2. He acknowledged that, while the NDIS could provide funding that would assist with providing support to the respondent, the support workers would not be expected to physically restrain the respondent to ensure that he would not breach his supervision order.[161]  Dr Wynn Owen expected that the support workers would interact with the respondent and attempt to reduce the level of arousal or distress that he was experiencing.[162]  As the support workers could not be expected to restrain the respondent, Dr Wynn Owen believed that, in the first instance, it would be preferable for the respondent to be accommodated in a secure facility, such as the Bennett Brook Disability Justice Centre, which he thought would be suitable for the respondent.[163]  However, the respondent is precluded from being accommodated at that facility because of his offences and the fact that he does not come within the operation of the Criminal Law (Mentally Impaired Accused) Act1996 (WA).[164]  Nevertheless, in Dr Wynn Owen's opinion, this is the type of facility that would best assist the respondent's progress, as it is a 'lower-intensity environment with a higher level of care which is therapeutic for an individual to develop the skills to function in day-to-day life, as well as to work on their criminogenic needs in a safe environment'.[165]  There are no facilities of that kind in Western Australia to which the respondent could have access.[166]

1. That risk is imminent while the respondent continues to have a sexual drive, which he clearly does, as was demonstrated by the assault on Ms X, his propensity to fantasise and be fixated on female prison officers, and his engagement again in sexualised behaviour over the telephone.  The sexualised thinking about female officers (which he articulated at times) and his behaviour on the telephone are part of the cyclical behaviour to which I have referred. 

The respondent's risk of sexual re-offending

1. I was satisfied, based on Dr Wynn Owen's assessment, which I considered to be supported by the evidence overall, that the respondent remained a high risk of committing a sexual offence.  Having regard to the offending of which he has been convicted previously, and his re-offending while in custody, that amounts to a high risk that the respondent will commit a serious sexual offence against a female victim in circumstances such as those identified by Dr Wynn Owen as the most likely scenario, which is likely to involve violence and significant psychological harm to any potential victim.

Conclusion - the respondent remains a high risk serious offender

1. Based on those findings, I was satisfied that there continued to be an unacceptable risk that the respondent would commit a serious sexual offence if he were not subject to some form of restriction.  As has been observed in previous decisions concerning the respondent, it is likely he will continue to be a serious danger to the community for the foreseeable future. 

2. Further, I was satisfied that it is necessary for the respondent to be subject to a restriction order to ensure adequate protection of the community against the unacceptable risk.  Anything short of a restriction order would not provide adequate protection of the community.  The evidence satisfied me that the respondent requires a high level of supervision and monitoring and ongoing counselling, at least in relation to behaviour management, if his risk is to be adequately managed.  Within the community he would also require a high level of support because of his cognitive deficits, which put him at risk of decompensating.  That is a significant factor in his risk of committing a serious sexual offence and the imminence of that risk.

3. In short, in the absence of a restriction order, there would be no adequate measure to sufficiently mitigate the unacceptable risk that the respondent would commit a serious offence.

4. Therefore, I was satisfied that the respondent remains a high risk serious offender.  The respondent's concession in that regard was properly made.

Findings relevant to the appropriateness of supervision in the community

1. In terms of matters relevant to whether a supervision order would be appropriate, I note again that it was conceded on the respondent's behalf that such an order would not be appropriate at the time of the present review.  For the following reasons, that concession was properly made.

2. First, I was not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order.  That is, I was not satisfied that he would 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 he will commit a serious offence.

3. In that regard, the respondent would be required, as a standard condition, to be under the supervision of a CCO and to comply with any reasonable direction of the officer.[296]  That would inevitably require the respondent to engage in supervision sessions in which he would be required to disclose any matters that might be relevant to his risk of offending, such as his emotional state and any problematic thinking or conduct. 

   [296] HRSO Act s 30(2)(d).

4. Having regard to the evidence of the respondent's behaviour since the 2019 review, I was not satisfied that the respondent would be open and honest during supervision sessions or therapy in the community about important matters relevant to his risk, for instance if he had engaged in non-compliant or problematic behaviour, or had thoughts that might put him at risk of committing a serious sexual offence.  That would be particularly so if he thought the truth might put him at risk of returning to prison.  I accept the evidence of Dr Wynn Owen that the respondent's lack of candour or awareness of the need to disclose was demonstrated by his failure to disclose his thoughts prior to the offences against Ms X. 

5. As I noted earlier, in the period since the 2019 review, the respondent at times failed to comply with prison rules and directions and refused to engage with arrangements intended to assist him or to monitor his situation, for instance by not attending medical appointments.  That gives rise to concerns about his reliability in complying with supervision.  At the very least, the respondent should work towards consistency in attending and engaging in appointments as required, to demonstrate that he would comply with supervision and with a behaviour management regime if he is released.

6. In addition, I am not satisfied on the balance of probabilities that the respondent would not commit a serious offence, which, of course, is a fundamental standard condition of a supervision order.[297]  That finding follows from the conclusions I have reached in respect of the respondent's high risk of committing a serious sexual offence, and the imminence of that risk being realised.  In making that finding, I have had regard to whether the external constraints that would be imposed by a supervision order of the kind proposed by Ms Cashmore, and the measures available to the authorities to monitor the respondent's whereabouts and activities, would sufficiently mitigate the risk as to make it unlikely that the respondent would commit a serious sexual offence.  I am not satisfied that they would, given the respondent's level of risk.  If he was prepared to commit the offences against Ms X in a prison, with security at hand and the prospect of dire consequences, both in terms of prosecution and more restrictive management of him within the prison, I cannot see how one could be satisfied on the balance of probabilities that he would not commit an offence in the community while subject to a supervision order.

   [297] HRSO Act s 30(2)(f).

7. Further, I was satisfied that Dr Wynn Owen's proposal concerning supported accommodation is appropriate and would be a necessary condition to ensure adequate protection of the community if the respondent were to be released under a supervision order.  That is so, notwithstanding the significant constraints and obligations that would be imposed by such an order as was proposed by Ms Cashmore.  Dr Wynn Owen's proposal would require the respondent to be in supported accommodation for at least six months, with support workers providing him with assistance, but also supervising him and monitoring his behaviour in accordance with a behaviour management plan 24 hours a day, seven days a week.  Further, I was satisfied that, even before release subject to such supervision, the respondent would need to demonstrate within a self-care environment in prison that he had acquired and would be able to implement basic living skills that would reduce the potential for stresses to build in the community.  The adequacy of such skills would need to be assessed having regard to his cognitive difficulties. 

8. There was no supported accommodation available to the respondent at the time of the hearing.

Conclusion - supervision order not appropriate

1. For the reasons I have outlined, I was not satisfied that a supervision order would provide adequate protection of the community against the high risk that the respondent would commit a serious sexual offence in the absence of the constant form of supervision proposed by Dr Wynn Owen, at least in the early stages of release.  Of particular importance was Dr Wynn Owen's opinion, which I accept, as to the imminence of the respondent committing a serious sexual offence.  While that assessment, in the formal context of risk assessment, was made on the basis that the respondent would not be subject to restrictions, it also informs the question of what level of restrictions would be required for adequate protection of the community.  As Dr Wynn Owen indicated, the imminence of offending would be related to how the respondent managed the stress of a transition into the community.  Unless the respondent was closely monitored, one could foresee him re-offending within a matter of weeks.  As I understood Dr Wynn Owen's evidence, the imminence would be high even taking into account the restrictive conditions of the proposed supervision order, unless the respondent was in supported accommodation as Dr Wynn Owen proposed.

2. I was satisfied that the respondent continued to lack a proper understanding of the stresses he is likely to experience in the community, and continued to overestimate his capacity to deal with such stresses.  When those factors are combined with the respondent's deficits in his ability to implement stress management strategies, the prospect of rapid decompensation is a real possibility in the absence of close and constant support, at least in the early stages of the respondent's release into the community. 

3. In my opinion, the risk that the respondent would re-offend in a similar manner to his past offending, with the potential for significant trauma to a victim, is unacceptable without the sorts of protective measures recommended by Dr Wynn Owen to supplement the restrictive conditions of a supervision order.  Those measures were not available at the time of the hearing.  While there had been a change in the respondent's circumstances, in that NDIS funding had been approved for certain supports, there was no suitable accommodation available and the engagement of support services at the level recommended for the respondent to live in the community had yet to occur.

Conclusion - the CDO must be affirmed

1. It followed from the above findings that the CDO had to be affirmed.

Recommendations for further management and treatment

1. In the course of these reasons, I have set out the further recommendations made by Dr Wynn Owen, which I accept, for the further management of the respondent while he continues to be subject to continuing detention.  As I indicated at the conclusion of the hearing on 2 May 2022, the recommendations in these proceedings may be regarded as a refinement of the recommendations set out at [280] ‑ [302] of Unwin [No 8], which I summarised at [17] above. They continue to be relevant and should be taken to be incorporated, in the detail set out in Unwin [No 8], for present purposes. 

2. I preface the further recommendations with the following observations.

3. First, I was satisfied that appropriate efforts had been made, at least by some prison staff, to approach the management of the respondent in a manner that was consistent with the guiding principles I set out at in Unwin [No 8].  However, having regard to the evidence I have outlined, I accept that there continued to be deficiencies in that regard.  This was mainly in relation to the consistency of approach by different officers.  I accept the submissions of both parties that it would be appropriate to reinforce those guidelines. 

4. Secondly, there were good examples in the prison logs of positive reinforcement of behaviour and activities that indicated improvement in the respondent's attitudes and capacities.  It is difficult to determine the extent to which this occurred, or whether the approach was consistent, because one must rely on the prison logs and management plans, which are not consistent in the level of detail.  It is sufficient to note that the examples that clearly indicate the giving of positive feedback should serve as guides for the proper approach.

5. Thirdly, while it was for a limited period, and perhaps confined to the approach taken by some, but not all, prison staff who were required to record observations of the respondent's behaviours, there were some good examples in the prison logs of the approach that should be taken to recording observations and endeavouring to explore the context in which the respondent's behaviours, whether positive or negative, had occurred.  In my view, they were of an adequate standard to enable an assessment to be made of strategies that might be adopted to promote positive behaviours and attitudes and manage circumstances that led to negative behaviours and attitudes, all of which are reflective of the respondent's capacity to cope with his circumstances.  Again, these limited entries should be regarded as guides for the proper approach.

6. However, there was no evidence to indicate that the observations made by prison staff, whether or not they met the standards expected by the 2019 recommendations, were fed back to management or other staff to guide the continuing care, control and treatment of the respondent.  Moreover, there was no evidence of written goals or a behaviour management plan having been formulated, let alone implemented, with reasonable objectives identified, to which feedback from prison staff could be directed. 

7. I accept that it may be difficult to meet the expectations of the 2019 recommendations in this regard, particularly if departmental psychologists do not have an appropriate level of expertise in dealing with persons with cognitive deficits, given Dr Wynn Owen's recommendation that the behaviour management plan be prepared by, or at least in conjunction with, a psychologist.  That difficulty may be compounded by the need to assign a male psychologist to the respondent, when the pool from which that assignment can be made is small.  Further, I acknowledge that the ability to implement the recommendations concerning written goals, a behaviour management plan and the completion of logs to provide feedback for the care, control and treatment of the respondent in accordance with such a plan will be affected by staffing levels, the rotation of staff through the respondent's unit, and the training, skills and experience (or lack thereof) that individual prison officers may have to deal with prisoners with cognitive deficits. 

8. Nevertheless, in the period before the next review, it would be expected that steps would be taken to meet the recommendation concerning written goals and a behaviour management plan, which, in accordance with Dr Wynn Owen's evidence, should not be particularly complex, as there is a need to keep goals understandable and manageable for the respondent.  Further, the use of the prison logs should continue, and the proper approach should be modelled on the good examples to which I have referred.  Prison officers who will be dealing with the respondent and required to make entries should be informed of the relevant recommendations and provided with sufficient information and guidance as to the proper approach to enable them to make meaningful entries, as discussed above. 

9. Having regard to the evidence of Dr Wynn Owen and the parties' submissions, the following recommendations should be implemented in the period before the next review, in addition to or as refinements of the 2019 recommendations.

10. First, it will be necessary for the Department to follow up on progress in respect of the functional capacity and positive behaviour specialist assessments in respect of the respondent, which were identified as necessary to increase the level of NDIS funding available to the respondent.  It is fundamental that the respondent be given every opportunity to access any funding that might be available, having regard to his cognitive deficits, which might properly be regarded as a disability. 

11. Secondly, the Department is to give consideration to having a behaviour management plan developed, implemented and overseen by a psychologist, working with custodial staff.  It would be expected that the plan would identify specific behaviours to be focused on.  In the implementation of the plan, it is desirable that a psychiatrist be involved in addressing issues related to situations of acute stress that may be affecting the respondent.

12. Thirdly, there should be a psychiatric review of the respondent, with a view to ongoing oversight from the same clinician. 

13. Fourthly, if such medication is not already prescribed to the respondent, consideration should be given to prescribing mood-stabilising medication to assist the respondent.  If the prescribed medication appears to be ineffective, consideration should be given to whether a different mood stabiliser may be effective, with a view to changing the medication. 

14. Fifthly, the respondent should continue to engage in leisure activities that assist him to learn strategies to manage when he has less structure.

15. Sixthly, the respondent should continue to engage in activities that relate to daily living, self-care, personal hygiene, his ability to manage and understand his nutrition, and basic financial management.  This would include providing the respondent with employment opportunities that would give him skills, and positively reinforce his view of himself.

16. Seventhly, the 2019 recommendation in respect of counselling (recommendation 6)[298] remains apt to the extent that it indicates that the particular focus should be to provide the respondent with practical assistance to enable him to develop (or maintain current) skills to manage negative emotions and feelings of distress.  Such counselling would be expected to be conducted within the framework of any behaviour management plan developed for the respondent.  Unless otherwise determined, after consultation with Dr Wynn Owen or a psychiatrist providing care to the respondent, only male psychologists should be assigned to the respondent. 

    [298] Unwin [No 8] [295].

17. Finally, I reiterate the following recommendation from Unwin [No 8] at [281] - [283]:

    It is necessary for those responsible for the management of the respondent while he remains in custody to be guided by the principle that his detention is for the control, care and treatment of the respondent, and not by way of punishment.  'Control' in this context means control of the risk that he may commit a serious sexual offence.  That is achieved by his detention in custody, which is necessary for the adequate protection of the community.  The concepts of care and treatment are concerned with the respondent's welfare and rehabilitation.

    It must be accepted that the Department has a responsibility for maintaining the good order of the prison in which the respondent is detained, and the welfare of other prisoners and staff in that prison, and the respondent must comply with such rules and regulations as are in place for those purposes.

    However, in dealing with the respondent through its employees, the Department should bear in mind the guiding principle to which I have referred and, in particular, have regard to the respondent's therapeutic needs and Dr Wynn Owen's recommendation that there be an emphasis on positive reinforcement of good behaviours.

18. It is regrettable that these reasons come to be published at a time after the passage of the next review period.  However, the fact that the 2019 recommendations continued to be relevant, and the content of the additional or refined recommendations above, were made clear in the oral reasons given at the conclusion of the hearing on 2 May 2022 and in the course of the evidence of Dr Wynn Owen and Dr Bannister, and in discussion with counsel during the parties' submissions. 

Orders

1. For the above reasons, on 2 May 2022, I ordered that:

   (1)Pursuant to s 68(1)(b)(i) of the HRSO Act, the Court, having found that the respondent remains a high risk serious offender within the meaning of s 7(1) of the HRSO Act, affirms the continuing detention order made on 13 January 2011 by the Honourable Justice Blaxell.

   (2)The next review is to be held as soon as practicable after 2 May 2024.

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

LD

Associate to the Hon Justice Fiannaca

24 JULY 2024

[i] Ms X's name has been anonymised pursuant to s 36C of the Evidence Act 1906 (WA).