The State of Western Australia v West [No 2]

[2014] WASC 83

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WEST [No 2] [2014] WASC 83

CORAM:   COMMISSIONER SLEIGHT

HEARD:   14 MARCH 2014

DELIVERED          :   14 MARCH 2014

FILE NO/S:   DSO 4 of 2012

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

DARREN HARLEY WEST
Respondent

Catchwords:

Criminal law and procedure - Dangerous sexual offender - Annual review - No new principles

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Continuing detention order not rescinded

Category:    B

Representation:

Counsel:

Applicant:     Ms K Robinson

Respondent:     Ms M R Barone

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Barone Criminal Lawyers

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

Director of Public Prosecutions (WA) v TJD [2011] WASC 83

The State of Western Australia v West [2013] WASC 14

1. COMMISSIONER SLEIGHT:  This is an application for the first annual review of a continuing detention order made against the respondent Mr West, under the DangerousSexual Offenders Act2006 (WA) (the Act). Mr West does not oppose a finding that he remains a serious danger to the community and that I should decline to rescind the continuing detention order made by Corboy J on 23 January 2013. I propose to make such a finding and order for the following reasons.

Background

1. On 23 January 2013, Corboy J concluded that Mr West was an unacceptable risk to the community if he was not subject to a continuing detention order or a supervision order.  Further, his Honour concluded that a supervision order would not adequately protect the community and made an order for Mr West to be held in custody for an indefinite term (a continuing detention order):  The State of Western Australia v West [2013] WASC 14.

2. Under pt 3 of the Act the continuing detention order is to be subject to an annual review.

3. On the application for review of a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains 'a serious danger to the community':  s 33(1) of the Act.

4. Whether a person remains a serious danger to the community requires a consideration of the criteria set out in s 7 of the Act.  The relevant provisions and principles were summarised in my decision in Director of Public Prosecutions (WA) v TJD [2011] WASC 83. It is not disputed in this matter that Mr West remains a serious danger to the community. Notwithstanding this concession, it is still necessary for me to examine the evidence and make that finding.

5. Pursuant to s 32(1) of the Act the chief executive officer must arrange for a person to be examined by two psychiatrists for the purposes of preparing reports required on an annual review, unless the court otherwise orders.  On 28 January 2014 McKechnie J made an order that no psychiatric examination report be prepared for the annual review.  This was because Mr West had commenced an Intensive Sex Offender Treatment Programme in February 2014 for a period of approximately eight months and until that programme is completed any psychiatric report would be of little assistance

Decision of Corboy J

1. The decision of Corboy J was founded principally on the evidence of both Dr Wojnarowska and Dr Febbo.  The evidence was to the effect that:

   1.the likelihood of Mr West committing a serious sexual offence in the future is high [77];

   2.that any sex offence that Mr West committed in the future could be a serious sexual offence involving children in early adolescence who would be vulnerable by reason of their age and Mr West's age and position in the Warburton Community (Mr West previously resided in the Warburton community and is likely to reside there if released from custody) [77];

   3.Mr West requires further treatment if the risk of him reoffending is to be moderated [77];

   4.it is necessary for Mr West to participate in an Intensive Sex Offender Treatment Programme and he also requires individual counselling [80]; and

   5.group therapy (in the form of an Intensive Sex Offender Treatment Programme) should be conducted by the Department of Corrective Services in the prison.

Review

1. Since orders were made by Corboy J on 23 January 2013 little progress has been made in terms of Mr West completing any treatment programme recommended by Dr Wojnarowska and Dr Febbo.  A book of material has been tendered by consent at the hearing of the review.  As a part of this book are three reports:

   1.A Dangerous Sex Offender Treatment Needs report of Mr Ryan Bell, Dangerous Sex Offender Clinical Psychologist, dated 21 December 2013;

   2.A Dangerous Sex Offender Treatment Progress Report of Dr Tara Yewers, Dangerous Sexual Offender Psychologist, dated 4 March 2014; and

   3.A report from the Department of Corrective Services dated 4 March 2014.

2. I conclude from these reports that:

   1.On 9 April 2013 Mr West was allocated to Mr Bell for counselling and treatment.

   2.In about March 2013, before Mr Bell had any opportunity to conduct counselling sessions with Mr West, Mr West was accused of sexually assaulting another prisoner.  It was decided to delay providing Mr West with any treatment until an internal investigation was conducted into the incident and the matter resolved.  On 26 June 2013 the matter was resolved with Mr West being found guilty and confined to a punishment cell for five days.

   3.On 26 July 2013 Mr West had his first counselling session with Mr Bell.

   4.Treatment was suspended a second time when Mr West was charged with serious historic sexual offences (unrelated to the prison incident).  Mr West appeared in court on 28 October 2013 and has been committed for trial in Kalgoorlie on 31 March 2014.

   5.The first available Intensive Sex Offender Treatment Programme in prison, after the continuing detention order made by Corboy J, was in 2014.  Mr West commenced such a programme on 11 February 2014.

   6.On 9 January 2014 the psychological treatment and management of Mr West was transferred to Ms Chantelle Place due to Mr Bell's resignation.  Ms Place has seen Mr West on three occasions, 16 January 2014, 30 January 2014 and 13 February 2014.

   7.The programme facilitators of the Intensive Sex Offender Treatment Programme have indicated that Mr West appears to have difficulty comprehending the material presented in the programme, had limited input into the development of group rules and had not submitted a required workbook.

   8.At this point of time, Mr West has had limited intervention and consequently there is no evidence of any significant treatment gains.  Due to the recency of Mr West's involvement in the Intensive Sex Offender Treatment Programme, it is premature to draw conclusions in terms of Mr West engagement or progress.

Conclusions

1. In view of the lack of treatment gains I find that Mr West remains a serious danger to the community and I decline to rescind the continuing detention order made by Corboy J on 23 January 2013.

2. In reaching this decision I have not taken into account the pending charges against Mr West.  They are at this stage simply allegations.