The State of Western Australia v White [No 6]
[2021] WASC 226
•9 JULY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WHITE [No 6] [2021] WASC 226
CORAM: HALL J
HEARD: 6 JULY 2021
DELIVERED : 6 JULY 2021
PUBLISHED : 9 JULY 2021
FILE NO/S: SO 4 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
STEPHEN NEIL WHITE
Respondent
Catchwords:
Criminal law - High risk serious offender - High Risk Serious Offenders Act 2020 (WA) - Review of continuing detention order - Whether respondent remains a high risk serious offender - Whether continuing detention order or supervision order appropriate - Lack of funding for adequate support in the community
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | B D Meertens |
| Respondent | : | D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | David McKenzie Legal |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v White [2013] WASC 417
The State of Western Australia v Carter [No 4] [2021] WASC 186
HALL J:
This is the fifth review of a continuing detention order made in 2013. The effect of the order is preserved by the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) which came into force on 26 August 2020 and replaced the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).
By an application dated 9 December 2020, the State applied for a review of the continuing detention order. The review was set down for hearing on 25 May 2021. That hearing was adjourned in order to obtain further information regarding accommodation options and possible funding of support services for the respondent if he were to be released into the community.
The hearing resumed on 6 July 2021. At the conclusion of that hearing I determined that the respondent continued to be a high risk serious offender and that a supervision order was not appropriate. This was because the risk of reoffending could only be adequately managed with a level of support which, due to a lack of confirmed funding, is not presently available. There was also no suitable accommodation available to the respondent. In those circumstances, I affirmed the continuing detention order. I gave brief oral reasons and said that more detailed reasons would be published in due course.
Background
The respondent's personal history and his history of offending was set out in the initial decision of Justice Jenkins when the detention order was made.[1] A brief summary of the offending is as follows.
[1] Director of Public Prosecutions (WA) v White [2013] WASC 417.
As a teenager the respondent committed a number of offences in South Australia and New South Wales involving violence or dishonesty. He was convicted of his first sexual offence on 19 May 1983 in New South Wales when he was aged 17. The offence was one of indecent assault on a female under the age of 16 years. He was committed to an institution for 12 months.
On 17 July 1984, the respondent raped a 73-year-old woman in her home in South Australia. The woman was a stranger to him. He was briefly remanded in custody and then released on bail. He was later convicted after trial of this offence and sentenced to 8 years' imprisonment with a non‑parole period of 5 years.
On 11 November 1984 (whilst on bail for the offence committed earlier that year), the respondent attempted to rape a 30-year-old woman in her home in South Australia. Again the victim was a stranger to him. He used a knife to subdue her, assaulted her, and caught her when she attempted to escape. He later pleaded guilty to this offence and was sentenced to 4 years' imprisonment with a non-parole period of 3 years.
On 30 January 1991, the respondent was released from prison on parole. He breached his parole by committing dishonesty offences in Victoria for which he was sentenced to 8 months' imprisonment and his parole was cancelled. After serving the prison sentence imposed in Victoria he was extradited to South Australia where he was returned to custody to complete the earlier sentences. On 15 May 1995, he was again released on parole in South Australia.
There is no record of offending between the end of 1995 and July 1999. At some time in that period the respondent travelled to Kununurra. On 22 July 1999 he was refused entry to a hotel in Kununurra because of his state of intoxication. He became aggressive towards staff and produced a folding pocketknife. He was arrested and charged with threatening words or behaviour. On 30 July 1999 he pleaded guilty to that offence and was fined.
In November 2000, the respondent committed an offence of unlawfully damaging property in Katherine, Northern Territory. He was later dealt with for that offence in Darwin, where he had also committed an offence of being disorderly. He was sentenced to 1 month's imprisonment backdated to the date of his arrest on 20 November 2000. That sentence was suspended for a period of 12 months.
On 31 March 2001, the respondent allegedly committed another offence of damaging property. He was bailed but failed to appear in the Katherine court of summary jurisdiction on 19 April 2001 and a bench warrant issued. Sometime after being bailed he travelled back to Western Australia.
On 18 June 2001, the respondent befriended a woman in Kununurra who was looking after seven children, including a young girl who was then 5 years of age. One night, whilst in a tent where the family was sleeping, the respondent grabbed the 5‑year‑old girl and tried to pull her away from the woman. He then hit the woman to the back of the head and arm. He was able to escape with the child who he took approximately 1 km away. When the child screamed or cried he hit the back of her skull with a rock. The blow caused a life‑threatening injury. He also took a length of rope from his bag, wrapped it around the child's neck and tightened it intending to strangle her. She lost consciousness. He then raped the child vaginally and anally. Sometime later he carried her into the local hospital. He lied about how her injuries had been incurred. Whilst she was being treated he left the hospital. A short time later he was arrested and remanded in custody.
On 2 October 2001 the respondent pleaded guilty to unlawful wounding, attempted murder and two counts of sexual penetration of a child under the age of 13 years. On 31 October 2001 he was sentenced to a total sentence of 13 years' imprisonment with eligibility for parole. The State appealed the sentence and on 9 May 2001 it was increased from 13 to 17 years' imprisonment.
On 6 June 2002, the respondent pleaded guilty to the assault occasioning bodily harm on the woman who had care of the 5‑year‑old child. He was sentenced to 16 months' imprisonment to be served cumulatively on the 17 years that had already been imposed.
The respondent has been in custody since his arrest in 2001, initially as a serving prisoner and, since 2013, on the continuing detention order. During that period of nearly 20 years he has undertaken some programs and counselling. The effectiveness of these has been limited due to cognitive impairments and mental health issues. Previous reviews of the detention order have resulted in it being affirmed.
Relevant legal principles
On a review of the HRSO Act the court has to consider: first, whether the person remains a high risk serious offender; and, second, if so, whether the appropriate order is to continue the detention order or make a supervision order.
An offender is a high risk serious offender if the court 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.[2]
[2] HRSO Act, s 7.
The State bears the onus of satisfying the court that an offender is a high risk offender. In considering that issue the court must take into account the matters listed in s 7(3) of the HRSO Act.
If the court is satisfied that the offender is a high risk serious offender the remaining issue is whether a continuing detention order or a supervision order is the appropriate outcome. A court cannot make 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 such an order. The standard conditions are those contained in s 30(2) of the HRSO Act and include reporting, supervision and electronic monitoring. The onus is on the offender to satisfy the court that he will substantially comply. In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[3]
[3] HRSO Act, s 68(2).
The HRSO Act allows for periodic reviews of a continuing detention order. Such reviews allow for the possibility of change. If the offender is found to no longer be a high risk serious offender the continuing detention order must be rescinded. If the offender remains a high risk serious offender, behavioural changes or improvements in management options may make a supervision order a viable possibility.
Evidence
At the hearing of this review application I received in evidence:
1.a Book of Materials comprising two volumes dated 9 March 2021 and 13 May 2021;[4]
2.two occupational therapy reports;[5]
3.correspondence between officers of the Department of Justice Community Offender Monitoring Unit relating to possible funding of support services for the respondent from the National Disability Insurance Scheme (NDIS);[6] and
4.an updated Community Supervision Report dated 1 July 2021.[7]
[4] Exhibits 1 and 2.
[5] Exhibits 3 and 10.
[6] Exhibits 4 - 9 and 12.
[7] Exhibit 11.
The Books of Materials contain reports prepared for this review, including a psychiatric report by Dr Gosia Wojnarowska, a treatment progress report by Dr Sarah Barbas and a Community Supervision Assessment Report by Ms Emma Cashmore. The Books of Materials also include prison records, medical records, previous judgments and previous treatment reports.
At the hearing, oral evidence was received from Dr Wojnarowska, Dr Barbas, Ms Cashmore and Ms Aimee Goode. Ms Goode is a team leader with the Community Offender Monitor Unit of the Department of Justice and gave evidence regarding attempts to obtain funding from the NDIS for support services for the respondent.
The respondent elected not to give or adduce any evidence.
Evidence of Dr Gosia Wojnarowska
In her report, Dr Wojnarowska confirmed an earlier diagnosis that the respondent has a psychotic disorder (in full remission), an antisocial personality disorder and drug and alcohol use disorder (in remission in custody). He also has a mild cognitive impairment, with executive dysfunction (frontal lobe impairment).[8]
[8] Book of Materials, 227 – 244.
Dr Wojnarowska interviewed the respondent on 24 April 2021 for the purposes of preparing her most recent report. She noted that the respondent's attitude towards his offending had not changed since her last interview. He denied any recollection of the sexual offences he had committed. He was of the opinion that alcohol was the only causative factor in his risk of reoffending and was confident that he would not relapse as he was capable of 'saying no'. He denied having any sexual interest since he was put in prison. He claimed to have no sex drive and no sexual fantasies. He said there was no need to manage his sex drive when released from prison because he did not think he would ever require such management. Despite these claims, Dr Wojnarowska's view is that the respondent still has a sex drive.
Dr Wojnarowska undertook as assessment of the respondent's risk of serious reoffending using the Static-99R, PCL-R and ARMIDILO‑S assessment tools. The respondent's score on the Static‑99R was eight, which places him in Level IVb, or the well above average risk range. In routine samples, offenders having the same score, have a five‑year recidivism rate of between 36% to 45%. The respondent's PCL-R score was 18, which is below the threshold for a diagnosis of psychopathy. However, the elevations on Factor 1 of the PCL‑R test are consistent with the diagnosis of antisocial personality disorder. Using the ARMIDILO‑S tool Dr Wojnarowska noted a number of stable risk factors, including a history of non-compliance, a need for community management for at least 12 hours per day, a lack of emotional coping ability, a lack of ability to engage in meaningful relationships, a high level of impulsivity due to frontal lobe dysfunction, a history of substance abuse and a lack of social supports in the community. There were also a number of acute factors (that is, factors that have changed significantly over the preceding two to three months). These factors were improvement in the ability to self-regulate and improvements in anger management. In Dr Wojnarowska's opinion, taking into account her clinical assessment and the results referred to, the respondent is at a high risk of sexual reoffending if he is not subject to an order under the HRSO Act.[9]
[9] Book of Materials, 243.
The primary risk scenario for sexual offending would be both predatory and opportunistic conduct predominantly on vulnerable females of various ages. It is unlikely that much planning or grooming would be involved. The respondent is likely to be intoxicated and angry following an argument with someone, not necessarily a potential victim. The risk scenario would include harm to a victim that may potentially be life‑threatening or have long‑term effects.[10]
[10] ts 292.
Dr Wojnarowska made a number of recommendations in regard to the respondent's future treatment, supervision, employment and accommodation. These included continuing with psychological counselling with a focus on areas identified by his psychologist, indefinite treatment with antipsychotic medications, a referral to the State Forensic Community Mental Health Service for active management, continuation with antidepressant medication to assist with irritability, anger control, supervision, highly structured employment and supported accommodation. In regard to antidepressant medication, she recommended an increase in the dose rate in order to reduce sexual drive and preoccupation which, in her opinion, is still present despite the respondent's denials.[11]
[11] Book of Materials, 243.
For the purposes of this review, Dr Wojnarowska's recommendations in regards to supervision and support in the community were of critical importance. She said that the respondent ideally requires 12 hours supervision each day and a 12‑hour curfew for the rest of each day, should he be released into the community. However, taking into account funding limitations, the minimum that would be sufficient in order to adequately manage risk is 4 to 4.5 hours' supervision a day. The respondent would also require strict supervision in relation to his alcohol and drug use, including random breath testing and urinalysis. He would require a highly structured and supervised type of employment and supportive accommodation with support staff who have adequate training and knowledge about his offending and the risk he continues to pose.
Dr Sarah Barbas
Dr Barbas is a clinical and forensic psychologist with the Specialist Forensic Psychological Service of the Department of Justice. She prepared a treatment progress report dated 10 May 2021 in which she reviewed the respondent's progress since the last review.[12]
[12] Book of Materials, 213 – 226.
After the continuing detention order was made in 2013, the respondent engaged in individual psychological counselling with Ms Chantelle Place. The sessions addressed substance abuse, violent offending, sexual offending, mental health issues and, to a lesser extent, social skills. The respondent continued counselling with Ms Place until early 2018 when he was transferred to another psychologist, Dr Dylan Galloghly. He has continued to engage in monthly individual psychological sessions since then.
Since the last review in 2019, the respondent has attended 11 counselling sessions with Dr Galloghly. Barriers to treatment have included the respondent's impulsivity, inattention, restlessness and avoidance. This has meant sessions have typically lasted no longer than 30 minutes. The focus of treatment has been on managing impulsivity, developing pro-social attitudes, anger management, goal development, maintaining motivation for positive behaviour controls, proactive management of the prison environment and issues relating to risk associated with any future release into the community.[13]
[13] Book of Materials, 216 ‑ 217.
The respondent has made minimal progress on treatment recommendations since his last review. Significantly, he continues to demonstrate disinhibition during treatment despite attempts to implement positive behaviour controls and to address responsivity factors. He has also demonstrated limited progress with regard to further development of insight into his mental health. However, there has been a shift in his willingness to discuss his diagnosis and associated symptoms.
The respondent has continued to demonstrate limited insight into the social skills required to develop healthy social relationships. He continues to externalise blame for his prior sexual and violent offending and asserts that he has no memory of the events. Dr Galloghly has reported that he is of the opinion that it is unlikely that the respondent has the capacity to further address treatment needs directed to a broader awareness of risk issues. The respondent holds a concrete view that he will not engage in further sexual and violent offending so long as he continues to abstain from substance use.[14]
[14] Book of Materials, 217.
Dr Barbas observed that the respondent's treatment needs remained unchanged since his last review. These related to substance use, social and violent offending, social skills, mental health, emotional regulation, impulsivity, problem solving and relapse prevention. These needs have been the focus of ongoing and individual and programmatic intervention since 2001. In Dr Barbas' opinion further gains in these areas remain unlikely as the respondent appears to have reached saturation point within the custodial environment. However, he has maintained treatment gains identified in the past. These include being more assertive in communication, problem solving, gaining an understanding of consent, the impact of substance use and offending behaviour and understanding and managing anger. Nonetheless, there are ongoing concerns about his ability to successfully implement these skills in the event of high risk situations.[15]
[15] Book of Materials, 223 - 224.
The respondent has made improvements in his compliance with medication and appears to accept the benefits of ongoing treatment during any transition to a less restrictive environment. His mental health appears to be stable and he regularly presents for scheduled reviews with medical staff. There are reports from prison staff that indicate that the respondent can be difficult to manage within a self‑care environment, though some of these problems have been alleviated by educating staff as to the respondent's intellectual disability, mental health diagnosis and other deficits. The respondent demonstrated positive adjustment to the less restrictive environment of self‑care at Bunbury Regional Prison.
Dr Barbas noted that the respondent has only a rudimentary understanding of the requirements of a supervision order.[16] This finding is consistent with his intellectual disability and associated difficulties with abstract reasoning. He tends to demonstrate overconfidence in his abilities to comply with the conditions of such an order. Given his complex support needs, the respondent is likely to require consistency and familiarity with respect to supervision and support staff engaged for his care. Ideally he would have an opportunity to develop relationships with service providers prior to any progression into the community.
[16] ts 312.
In conclusion, Dr Barbas stated that the respondent has complex needs due to his cognitive impairment, psychiatric condition and psychological difficulties. He requires a holistic multidisciplinary approach to treatment and risk management, irrespective of whether he is placed on a supervision order or remains under detention. If he remains on a detention order, it is anticipated that counselling would continue on a monthly basis as part of a wider multidisciplinary treatment and case management approach. If the respondent was to be released on a supervision order his complex care and treatment needs would require a multidisciplinary care team. A key component to support him towards reintegration would be the development of a plan that advocates for involvement of all external agencies engaged in his care.[17]
[17] Book of Materials, 225.
Ms Emma Cashmore
Ms Cashmore is the respondent's Community Corrections Officer. In her report she summarised the respondent's background, progress since the previous hearing, prison behaviour, proposed community supervision plan, including accommodation and community supports, his NDIS plan, investigation into other accommodation options, including the National Rental Affordability Scheme, crisis accommodation service providers, reporting obligations to the Sex Offender Management Squad, victim issues, behaviours to be managed and strategies to manage offending behaviour.[18]
[18] Book of Materials, 245 – 261.
The respondent has incurred three prison charges since the last review. These involved fighting with another prisoner, wilfully damaging a television and being in possession of alcohol. Various penalties were imposed. Notwithstanding these charges, the respondent is described by prison staff as polite and taking pride in the cleanliness of his cell. He has maintained a stable employment history within the prison and is currently employed as a unit worker in the self‑care unit at Bunbury Regional Prison. He has continued to attend supervision appointments with his Community Corrections Officer, albeit they are often of short duration (10 - 15 minutes) because he struggles to maintain concentration and interest.[19]
[19] Book of Materials, 246 - 247.
The respondent was registered with the NDIS prior to his last review. At that review, Justice Jenkins noted that amongst the steps that should be taken in the following two years was that the scope of an NDIS funding plan should be explored and negotiated to ensure that the respondent can access adequate funding for the recommended hours of daily support (no less than, and preferably more than, 4 to 4½ hours).[20]
[20] Director of Public Prosecutions (WA) v White [2013] WASC 417 [163].
The respondent's most recent six-month NDIS plan was approved and commenced on 3 May 2021. The Community Offender Management Unit (COMU) have continued to liaise with the National Disability Insurance Agency (NDIA) and designated service providers. The total budget provided for in the current plan is $24,428.80. This is substantially less than under a previous plan (which provided for a total budget of $121,987.75).[21] The reasons for the fall in funding have not been confirmed. The reason for the change appears to be a policy in the NDIA of not providing predictive funding for a release into the community until a confirmed release date is known. The current level of funding is not sufficient to provide the 4 to 4½ hours' supervision/support that Dr Wojnarowska has identified as being the minimum necessary. More details regarding the efforts to liaise with the NDIA are referred to in the summary of the evidence of Ms Goode.
[21] Book of Materials, 249.
Ms Cashmore also reported that accommodation options are limited. Indeed, there are not presently any suitable places to accommodate the respondent in the community. Uniting WA, which facilitates housing under the supported accommodation program, has indicated that it is not prepared to consider the respondent as a participant in the program until the level of service for his disability needs is confirmed. More recent information suggests that there may be some flexibility in this regard. However, a house under the scheme is not presently available. It would appear that if the respondent was otherwise suitable for release his position on the waitlist for supported accommodation could be advanced. However, as things presently stand, he does not have that priority and there are approximately 12 others who are in line to receive accommodation before him.[22]
[22] ts 381.
Ms Cashmore reported that other possible options for accommodation were not viable. Although the respondent is listed as a Priority 1 application within the Department of Communities and Housing, he will not be offered accommodation whilst he is in custody. He is required to be in the community in order to be eligible to take up any accommodation which becomes available. The possibility of obtaining a private rental under the National Rental Affordability Scheme was also explored. Under this scheme private owners consider applications and make decisions as to who to offer a property to. Currently there are no properties available under this scheme which are suitable. Contact was also made with a number of crisis accommodation service providers. None of these could provide accommodation for the respondent for a variety of reasons, including the need for a face‑to‑face assessment in the community or because the provider also accommodates females. In any event, the maximum length of crisis accommodation would be between three and six months. Thus, it would not afford the long‑term stable accommodation that the respondent requires.[23]
[23] ts 320.
At the resumed hearing, Ms Cashmore provided an updated Community Supervision Assessment Report. In addition to reporting on such progress as there had been with the NDIA and the obtaining of the additional occupational therapy report, Ms Cashmore advised that COMU had submitted an application for guardianship to the State Administrative Tribunal in respect of the respondent. The purpose of this application was to appoint the Public Advocate as the respondent's guardian to better ensure that his interests were protected and that appropriate decisions were made quickly and effectively. Although this guardianship application does not deal with financial management, this is not presently an issue whilst the respondent remains in custody. Ms Cashmore advised that in the event that the respondent was released on a supervision order an additional application in that regard could be made.[24]
[24] Exhibit 11.
Ms Cashmore also provided an update on her liaison with Uniting WA. Uniting WA were prepared to consider the respondent for supported accommodation without the necessity for a six‑month engagement period. This did not necessarily mean that the respondent would be offered supported accommodation, but it did provide the possibility of an expedited pathway in the event that funding for support from NDIA was forthcoming.
Ms Aimee Goode
Ms Goode is a team leader at the Community Offender Management Unit of the Department of Justice. She has been responsible for coordinating efforts to obtain funding for the respondent from the NDIS. Ms Goode gave oral evidence at the hearing and the resumed hearing. She had participated in several meetings with officers from the NDIA and service providers.
Ms Goode confirmed that her understanding was that the NDIA has a policy that they will no longer provide confirmation of future funding until a confirmed release date for an offender is known. She first became aware of that policy in March of 2021 in regards to this matter and several others that were due for review hearings. Efforts have been made to determine whether, if the respondent was to be released on a supervision order, an assessment of his needs and a support plan could be put in place within a short period of time. The response was in general terms and to the effect that the NDIA was willing to work with the justice system to manage this 'as best as possible'.[25]
[25] ts 331.
In another case there had been greater degree of confidence that the change of circumstances on release into the community could be dealt with expeditiously and a supervision order had been approved by the court and a release date set at 21 days. However, Ms Goode said that the change of circumstance application in that case had not been dealt with in the necessary timeframe and this had resulted in a contingency plan to deal with that offender's release. In that case some limited interim funding had been obtained but there now appeared to be a real risk that an adequate level of funding for continued support may not be forthcoming. In those circumstances, Ms Goode said that she could not express any degree of confidence that, if the court determined that a supervision order in the respondent's case was appropriate and set a future release date, an appropriate level of funding for core support would necessarily be funded by the NDIS. Nor was it even certain that the assessment process would be completed within any set timeframe.
The respondent has an existing NDIS plan which provides for a very modest amount of funding. This funding can be flexibly used, but it is not sufficient to provide for the level of daily care that would be required. One thing that had been identified as appropriate was an occupational therapist report to assist in ascertaining the respondent's level of functioning. This report could than be used in assessing the level of funding needed to address the respondent's disabilities.
A report from an occupational therapist, Mr Daniel Berry, was obtained in March 2021. Mr Berry's report recommended that the respondent needed 24‑hour support in a supported accommodation in the initial period of any release (up to six months), assistance with social, economic and community participation from support workers for up to 18 hours per week and assistance with transport. These needs were described as core supports. There were also a number of capacity building supports, which related to specialist services, therapy and behaviour supports.[26]
[26] Exhibit 3.
Somewhat inexplicably, after receiving the Occupational Therapist's report the NDIA assessed the respondent as high functioning, notwithstanding that the report clearly indicated to the contrary. The only explanation in communications from the NDIA was that the report referred to the respondent being able to undertake his daily tasks with prompting while living in self-care at Bunbury Regional Prison. Efforts were made to explain to the NDIA officers that self-care was in fact a highly regulated environment that was not reflective of life in the community and that it involved constant supervision. Ms Goode said that in discussions there was also an extensive focus by the NDIA officers on the respondent's high risk of reoffending, in contrast to his disability. The NDIA also indicated that there would need to be a further occupational therapy assessment in the community before it would consider any alteration to the current funding plan.[27]
[27] ts 337.
At a meeting on 21 May 2021, NDIA staff clarified that they would accept any additional evidence relevant to a plan review and a change of circumstances. On this basis it was agreed that a further occupational therapy report would be obtained whilst the respondent was still in custody. The intention of COMU was that this would alleviate any misunderstanding as to the respondent's level of functioning.
At the resumed hearing, Ms Goode advised that the NDIA had undertaken an agency‑initiated plan review. This had occurred in conjunction with the respondent's case being referred to a complex needs team within the NDIA. Ms Goode said that other offenders in the same position as the respondent have also been referred to that team. She understood that that team had specialist skills for dealing with people who had multiple co-morbidities and complex needs. The exact effect of an agency‑initiated review was not clear and there appeared to be some risk that it would place the respondent back in the position of having to establish his level of functioning and needs for the purposes of formulating a new plan. Nevertheless, Ms Goode was hopeful that this may provide a pathway forward and may avoid any need to seek a review of the existing inadequate funding plan.[28]
[28] ts 385 – 386.
At the time of the resumed hearing, a meeting with the complex needs team had yet to be held. A meeting that had been arranged was called off at short notice due to illness of one participant. Nonetheless, it was hoped that funding for a positive behaviour support assessment may be forthcoming. This may assist in establishing the respondent's level of functioning and needs whilst still in a prison environment. There was, however, no certainty as to when this process would be complete, whether it would result in an increase in funding or whether that funding would provide for the level of support that the respondent needs.
A further report from the Occupational Therapist, Mr Berry, had been obtained.[29] This report confirmed that the respondent's level of functioning is severely impaired. It notes that the respondent 'requires a highly supportive environment to keep him safe in the community and assist him to achieve reasonable outcomes when attending to self-care and community management tasks'. There is reference in the report to the respondent being at risk of malnutrition if he does not have assistance and that there was a need for intense rehabilitation, focusing on independent living skills and safety. The report states that 'without such support his mental health and functioning abilities are likely to deteriorate as [he] becomes overwhelmed by external pressures and responsibilities that he has reduced capacity to address due to his disabilities'. Ms Goode said that this additional report had been passed on to the NDIA but it was not known at this stage what impact it would have.
[29] Exhibit 10.
Conclusion
I am satisfied that the respondent remains a high risk serious offender. The level of risk of serious offending has not significantly changed since the last review. The uncontested expert evidence is that a restriction order is necessary in the circumstances of this case.
There have been some changes that are relevant to whether that risk can be managed appropriately in the community. There have been some treatment gains although these have been minimal. The most relevant factor is the ability for the risk to be reduced if the respondent receives a level of support in the community appropriate to his disability. The respondent has significant cognitive impairment and chronic mental health issues. He has no realistic ability to live independently in the community without a minimum level of daily support.
The ideal level of support is 12 hours a day but a minimum level of 4 to 4½ hours of daily support has been assessed as adequate. The expert evidence supports a conclusion that if provided with that level of support, in addition to other needs being met by specialist services, there is some prospect of the respondent being able to live in the community and for his risk of reoffending to be manageable. Conversely, without that minimum level of daily support there is a risk that the respondent would not cope with the pressures of living in the community, become non-compliant with his medication, become ill and seek comfort in alcohol or illicit drugs and, as a result, be at higher risk of reoffending.
Given the nature of the respondent's past offending conduct there must be a strong degree of assurance that the risk of offending is extremely low. That conduct has involved extremely serious sexual offending and violence in respect of a broad range of possible victims. Because his past offending has been opportunistic and unpredictable the risk is more difficult to manage. A high level of supervision and support would offer some prospect of this level of management.
The fact that the respondent long ago completed his sentences of imprisonment and has now been detained for his treatment and control for some eight years is a relevant factor. He should not continue to be detained if release on a supervision order is a viable option. It is only a viable option if the level of supervision and support necessary can be provided. The only possible source for funding this support is the NDIS. That is because, independently of any risk of offending, the respondent has significant disabilities that make him eligible for funding from the NDIS.
The respondent is caught in the limbo of an apparently inflexible policy by the NDIA not to assess a person who is detained in prison for community support funding until a certain release date is set. In the case of prisoners who are serving a finite prison sentence it may be possible to provide a release date. However, this policy creates an impossible barrier in the case of an offender who is the subject of a continuing detention order under the HRSO Act. By definition, such an order is a continuing one that can only be rescinded if certain conditions can be met. Under the HRSO Act the court cannot approve release on a supervision order unless satisfied that the risk of reoffending can be reduced to a level consistent with adequate protection of the community. In a case such as the respondent's that means the court must be assured that the support necessary to reduce that risk would be provided before the supervision order can be made. This impossible situation has affected a number of other people with disabilities who are the subject of continuing detention orders.
As I recently noted in another similar case:
The NDIA is not concerned with the risk of reoffending, its concern is with the provision of disability services. However, the two areas are not mutually exclusive. It is likely that if the respondent's disability needs are met to the recommended level this would also produce, as an incidental benefit, a reduction in the risk of reoffending. There appears to be some concern within the NDIA that the support sought for the respondent is related to the reoffending risk and not disability support. With all due respect, that concern seems to be ill-founded and fails to appreciate that it is the respondent's disability (his mental illness and attendant deficits) that is one of the factors contributing to risk. Other contributors to risk are being addressed by a range of supports from other service providers, such as the Department of Justice, Uniting West and Community Mental Health Services. But the contribution required from the NDIS remains critical.[30]
Those comments apply with equal force to the case of the respondent.
[30] The State of Western Australia v Carter [No 4] [2021] WASC 186 [53].
Unless the policy of the NDIA changes the prospects of the respondent ever being released are low. Despite the fact that he has significant disabilities that should qualify him for funding under the NDIS, there appears to be a bureaucratic impediment to him being assessed or provided with the level of support he needs. If adequate core support was funded and made available, the likelihood is that the respondent could be released on a supervision order. The refusal to assess or approve such support means that he must continue to be detained in a prison.
As things presently stand there is a considerable level of uncertainty as to whether the support needs of the respondent will be met at some point in the future. Pathways continue to be explored in this regard but whether they will prove to have positive results cannot at this stage be known. The additional impediment is the lack of any appropriate accommodation. Accommodation in this respect is not simply a place to live but an integral part of the management of the risk of reoffending. Without stable and suitable accommodation release into the community is not a viable option.
For these reasons a supervision order was not appropriate at this time and at the conclusion of the review hearing I affirmed the continuing detention order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Hall
9 JULY 2021
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