Dangerous sexual offenders - Annual review - Whether continuing serious danger to community - Whether continuing detention or supervision order appropriate - Lack of suitable accommodation

Dangerous Sexual Offenders Act 2006 (WA), s 33

Expressly decline to rescind continuing detention order

1 Mark Robert Unwin was declared to be a dangerous sexual offender and an order made for his continuing detention on 13 January 2011: DPP v Unwin [2011] WASC 11.

2 The first annual review of the detention order occurred on 8 February 2012. At that time Mr Unwin was yet to complete an Intensive Sexual Offender Treatment Programme (ISOTP). Satisfactory completion of that programme was considered necessary in order to determine whether release on supervision was a viable option. Accordingly, the continuing detention order was not rescinded: DPP v Unwin [No 2] [2012] WASC 73.

3 This is the second annual review. The hearing of the review commenced on 22 February 2013. At that time I received reports and heard evidence from, amongst others, Dr Bryan Tanney. I will refer to that evidence in more detail later in these reasons.

4 It became apparent at the hearing that whilst there were indications that release on supervision was a possibility it depended upon the availability of suitable accommodation. The necessary accommodation needed to incorporate a high degree of support and supervision. Such accommodation was not available at that time, however Mr Unwin was due to be assessed for suitability for a place in a community mental health hostel in March 2013.

5 In these circumstances, Mr Unwin's counsel sought that the review be adjourned. I pointed out that an adjournment would set back future annual reviews in the event that I decided not to rescind the detention order: s 29(2) Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). Mr Unwin wished to adjourn notwithstanding that risk and the matter was adjourned by consent to 15 April 2013.

6 On 15 April 2013 the hearing was resumed. Evidence was received that Mr Unwin had been found unsuitable for the hostel previously referred to as it had female residents. The operators of the hostel were not prepared to take any risks in regard to their female residents.

7 Efforts to find other suitable accommodation had continued. In particular, Mr Unwin had been nominated for supported accommodation provided by a project called People with Exceptionally Complex Needs (PECN). Mr Unwin was one of seven persons nominated for two available positions. There was also the possibility of accommodation at a village for homeless persons. A further adjournment was sought to explore these options.

8 The hearing was reconvened on 7 May 2013. At this time information was provided that neither of the options referred to on 15 April 2013 had been successful. Mr Unwin's application to the PECN project had not prevailed over other competing applications and the homeless persons village would not accept him as an undertaking had been given by it to the local community that it would not accommodate sexual offenders.

9 Despite exhaustive attempts to locate suitable accommodation for Mr Unwin, no such accommodation has been found. The fact is that there are extremely limited accommodation options for a man with Mr Unwin's background and needs. Places are in high demand and the resources available are very limited.

10 The end result is that whilst it is possible to envisage conditions that would sufficiently minimise the risk to the community and make release of Mr Unwin on a supervision order possible, those conditions would have to include accommodation of a suitable type. In the absence of such accommodation I am unable to be satisfied that the risk to the community of future offending can be sufficiently reduced. For these reasons on 7 May 2013 I expressly declined to rescind the detention order.

11 This is a case that further illustrates a problem referred to by McKechnie J in DPP v Alvisse [No 6] [2013] WASC 154 The problem is that there are limited accommodation options available for people released from prison on a supervision order imposed under the DSO Act. Such accommodation as is available is often catering for others in need, such as people who are homeless or suffering mental illness. The facilities and organisations that provide suitable accommodation are often, understandably, unwilling to displace other needy people to accommodate a sexual offender. The unfortunate outcome is that people like Mr Unwin who may otherwise be suitable for release into the community under strict conditions cannot be released because the resources available to meet those conditions are unavailable.

12 A person who has been detained in custody under the DSO Act must be the subject of an annual review. The purpose of the review is to determine whether the person continues to be a serious danger to the community and, if so, whether the appropriate order is continued detention or release on supervision: s 33 DSO Act.

13 If the person is no longer a serious danger to the community the detention order must be rescinded. If the person continues to be a danger consideration must be given to whether detention or release on supervision is appropriate. In respect of this latter decision the paramount consideration is the need to ensure adequate protection of the community.

14 The clear intention of the annual review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community then the continuing need for detention must be considered.

15 It is a significant thing to deprive a person of their liberty, not for something they have done but for something they might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.

16 The risk of reoffending may change over time. It may be affected by age, health and the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.

17 The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.

18 If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.

19 The annual review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Annual reviews are not, therefore, merely a welfare check; they are an exercise of judicial power to confirm, vary or rescind a detention order. Continuing detention should not be ordered unless that is justified by the circumstances existing at the time of the review.

20 The facts of Mr Unwin's offending do not need to be repeated. They are detailed in DPP v Unwin [2011] WASC 11. It suffices to say that there were numerous offences involving violent sexual attacks upon women.

21 On this hearing the primary focus was on whether there had been treatment gains and any consequent changes in the risk of reoffending. There was also a focus on whether Mr Unwin's particular needs and difficulties could be met in the community in a way that would contain that risk.

22 A report was received from Dr Bryan Tanney dated 10 January 2013. Dr Tanney noted that previous assessments of Mr Unwin had been that he was at a high risk of further serious sexual offending and that it was highly unlikely that the risk of such further offending could be adequately managed in the community at that time. In preparing his most recent report, Dr Tanney considered what things had occurred in the last 12 months to change the risk management profile. Three matters were referred to. First, Mr Unwin had participated in the ISOTP during the first part of 2012. Secondly, he had received eight or nine individual counselling sessions to prepare him for the ISOTP and had continued to receive individual supportive counselling on a fortnightly to monthly basis over the following year. Thirdly, Mr Unwin had accepted an injectable long acting antipsychotic medication as recommended by another psychiatrist.

23 As regards the ISOTP, comments had been made in the completion report about Mr Unwin's lack of comprehension. When interviewed by Dr Tanney, Mr Unwin acknowledged that he had received help doing the homework assignments and agreed that he had not understood most of the content material presented in the programme. He was able to identify that solvent abuse was a significant factor in his offending and that it was important for him to think of the consequences of his behaviour.

24 As regards individual counselling, Dr Tanney said that these sessions reinforced the small but important gains from the ISOTP. Whilst Mr Unwin did not obtain any deep insight he did recognise that his childhood experiences may have led to feelings of anger and loneliness and that his own experiences with sexual abuse did provide him with some basis for understanding what his victims may have felt.

25 As regards antipsychotic medication, Dr Tanney said that this had been prescribed in November 2010. Mr Unwin's understanding is that this medication is intended to aid in suppressing auditory hallucinations. However, he also reported that he had 'no voices at all' with the alternative medication, valium. The medication had a significant sedating effect and accordingly the dose rate was reduced in early 2012 to enable Mr Unwin to participate in the ISOTP.

26 Dr Tanney's opinion was that Mr Unwin continued to represent a high to very highly likelihood of serious sexual offending. However, he said that a rehabilitation and recovery programme could be created. The necessary elements had been repeatedly mentioned in assessments over many years. He said that basic issues of stable accommodation and management of finances were minimal requirements. He referred to the type of accommodation in the following terms:

Stable accommodation needs to be supported by the availability of organised activities during regular hours. The need for an individual mentor to further his interpersonal skills coping is essential. The DCS DSO Offender Management team has monitored and coordinated the delivery of such inter agency support services in the past for other clients. Their team psychologist could also be mandated to provide monitoring, coordination, advocacy, and an independent counselling opportunity for support and ventilation around difficulties of community living (Book of Materials page 31).

27 Dr Tanney gave oral evidence on 22 February 2013. He questioned whether the antipsychotic medication was appropriate. He noted that this medication had been prescribed based upon possibly unreliable reports by Mr Unwin. Dr Tanney said in this regard:

So what I'm left with is a man who has been put on anti psychotic medication, for reasons that are unclear in the beginning because there was no history of psychosis before that, and doesn't appear to have had a major impact from it, by his own report, and that there still remains significant controversy about whether he should be on it and that he has side effects from it and yet someone's thinking about putting him into the most significant forensic centre we have and putting him on the strongest anti psychotic medication we have. Perhaps my conclusion is that there's more work to be done unearthing what the real role of us as helpers is for this man.

HALL J: So, whatever benefits the anti-psychotics are having they seem to be side effects, not dealing with a diagnosed psychosis as such?---Thank you.

- - - But just because now he has been on it he recognises that there are some benefits but they are really just side effects of the - - -?---They are side effects I believe.

But there are other ways of dealing - other ways to achieve those side effects other than by anti psychotic drugs, are there not?---Yes.

Better ways?---I would think so. I think that there are other ways to address this and other medications to address it with (ts 22.02.13, page 49).

28 Whilst Mr Unwin appeared to have significant cognitive impairments, Dr Tanney was of the view that there was benefit in Mr Unwin exploring with a psychologist the impact of his past victimisation and family issues on his offending behaviour. Some of that was being addressed in the individual counselling and Dr Tanney considered that there was a potential for this to be beneficial if continued.

29 Dr Tanney considered that whilst there was a significant risk of reoffending it was not an unpredictable risk and that there were a number of things that could be put in place to manage that risk. He said:

There's a list of things that he needs that the correctional system cannot provide, that might be provided by other agencies that provide support in the community, and it's the negotiation of these that will be the critical issue.

Your honour, I wouldn't have usually done this but after I spoke to the psychologist and to Mr Hayden I did a bit of my own exploring to see if Mr Unwin would qualify for the most - the group of people who - persons with exceptional and complex needs. It's a committee, that's an interagency government committee that only takes on a very small number of persons, and for just that reason, that they have many, many needs. Disability Services are involved, Substance Abuse is involved, Mental Health is involved, Corrections is involved, Housing is involved; it's a multiagency approach, but they have few resources and many people who need them. I ran by them whether Mr Unwin would qualify, and what I got was a general agreement that he would qualify for that, but their list of people wanting their services is exceptionally long (ts 22.02.13, page 57).

30 Dr Tanney referred to the need for a five year plan and intensive community support. He referred to the practical content of this in the following terms:

HALL J: Presumably the first thing would be stable, permanent accommodation?---Yes, and financial support. Ordinarily, your Honour, this would be a circumstance in which a number of people who have some responsibility for him would meet around a big table and look at the list of needs and brainstorm how they were going to provide that level of support. I'm only giving one opinion. I have to simply share that I think a number of people could provide you a better answer than I can provide simply myself.

Yes, and I appreciate your difficulty because you're more concerned about the environment and the effect that it would have upon him rather than being prescriptive about the accommodation - but nonetheless it would be helpful to me to have some idea of what sort of things you think might provide this appropriate level of support?---Stable accommodation, what we would call supported accommodation in the sense that he would not live independently but he would live where either people were available - we could call it supervision, but they would be available as supports to him on a 24-hour basis; financial support - - -

O'SULLIVAN, MR: Just stopping you there for a moment, I understand that he has something over $100,000 in trust somewhere. It's a redress payment or something like that at some point?---I asked him if he would be willing to use some of that trust fund to do that and he indicated that, yes, he would.

Yes?---I had indicated in 2010 that I thought it was more appropriate that an application be made for criminal compensation in that regard to support this because these would be dealing with the consequences of the abuse that he experienced and that's what the criminal compensation fund is for.

It may in fact be that. It may in fact be criminal injuries compensation. In any event, he apparently has some money of that order in trust somewhere?---He has some money and he has indicated that he has some willingness to use some of it.

Yes?---He also certainly qualifies for a disability support pension and one of course would be - there's a lot of discussion here, your Honour, about what would happen then if he has this money in trust and used it, that they might say he didn't qualify for the disability support pension, so it's another area in which we have to involve another group of agencies to work our way through what seems a simple matter about how to provide him with support.

HALL J: What is the significance of financial support? Why do you think he needs that, other than to provide, you know, food and?---One of the positives for Mr Unwin throughout his time in custody and his own awareness is he is a good worker. He has been a good and solid worker in the prison system throughout the time and he is proud of his ability and willingness to work. He is also very aware how difficult it will be, with the number of activities that he is going to have to do for supervision if he were to be in the community and as a person with the reputation that he has and with a criminal record - that it will be difficult to get employment because he doesn't have many skills, so the financial issue becomes important because he can't just go out and say, "I'll go get a job." He would like to work, he's willing to work and there are supportive issues - there are supportive agencies around that can work with him in that regard as well, so it's another issue that - the financial and what he will do with his time in terms of some self-worth and some self-value and some financial support that he might be able to get for himself.

Do you think that he would need for his finances to be managed by somebody?---Yes.

There was a different, I think, issue that you raised there and that was the advantage of work as a way of filling time, effectively. This is so that he doesn't become bored and?---It fills time. He is not going to have that much time because I think he's going to have a lot of other activities that he's involved in for the first two years, but more than that it's the sense that he wants to work. We look for positives to build on in people and this is a significant positive that I think we have an opportunity to build something on.

It would build his self-worth, self-esteem?---Yes. So supported accommodation - supervised and supported accommodation, excuse me, support for his getting along on a day to day basis financially, organised activities - and again I think that there are a number of programs that he could be involved with that would involve life skills in the community that he could qualify for and be recommended to participate in. Some of these are full time. Some of them are one or two days a week. That would have to be organised and coordinated, however, not by himself but by whoever was taking that responsibility, but that would be in a sense, your Honour, his working week. His working week would be to participate in activities that were designed to build his confidence and to build his ability to function in the community.

O'SULLIVAN, MR: Yes?---He also needs someone to take him through the informal aspects of living in the community, the social skills aspect, the recreation, the meeting people, and that would be a mentor. Now, it's my understanding that some agencies provide both those functions, that in providing the informal mentor they provide it within the structure of this larger life skills program, but that's open for - I think it's open but both need to be there, he needs to have the informal support and he has to have the regularised activities that are going to help him to practise the social skills that he needs in the community.

All right?---He needs a coordinator to do all this. He needs to have someone who is able to be the person he can turn to when he's got trouble with this system that we've created to help him function. It's not a whistle but he has to have someone he can turn to when he needs to blow off steam, and it's my understanding that this is something that the dangerous sexual offender management team has in the past been willing to provide to people. They provide advocacy, they provide monitoring, they may provide coordination, but they as well need to provide the individual level of support that he needs, to have someone he can go and talk to, about just anything, not about all of these organised activities that we're talking about having him involved in (ts 22.02.13, pages 61 - 64).

31 Dr Tanney accepted that Mr Unwin presented an exceptionally complex problem that required an exceptional community to support him. He had doubts about the capacity of the community, or its willingness, to provide what was needed. He did not have doubts about Mr Unwin's interest and willingness to participate. He accepted that the coordinating role was a significant component and would probably require a person working half time for a couple of months, at least in the initial period.

32 Mr Sommerton is a psychologist with the Dangerous Sex Offenders Psychology Team in the Department of Corrective Services. He prepared a report dated 8 February 2013.

33 Mr Sommerton said that there were a number of issues that needed to be dealt with in assessing whether Mr Unwin could be released. One of those was that his offending had incorporated an element of sexual sadism. That heightened the risk of reoffending.

34 It was unclear whether Mr Unwin could respond to treatment. He had responded to some degree but not to a significant extent. He said it was also unclear whether counselling could result in any significant insight on Mr Unwin's part as to the causes of his conduct. For this reason it may be necessary to deal with his conduct in a behavioural way; that is, to identify simple ways of managing his behaviour.

35 Mr Sommerton was not the treating psychologist but had had an opportunity of discussing the matter with that psychologist who had identified that changing Mr Unwin's medication regime may allow for more responsiveness on his part. Whilst Mr Unwin had been in prison as a serving prisoner or detained under the DSO Act for many years he had been required to engage in more sustained intervention only relatively recently. The fact that he was detained was considered to be a possible incentive for him to more actively engage with counselling. On the other hand, Mr Sommerton was not sure if Mr Unwin fully understood the situation that he is in.

36 As to whether Mr Unwin was ready to go into the community on the sort of basis referred to by Dr Tanney, Mr Sommerton said that that was hard to say. He said that when Mr Unwin had been in the community previously he had not had a structure around him to assist him. The proposed structure would be more substantial and responsive to his needs and would be monitoring him more closely. He said that an intensive supervision regime whereby Mr Unwin would be speaking to people on a regular basis would mean that it was more likely that issues would be picked up prior to any reoffending. He accepted Dr Tanney's analysis that the path to offending was a build up of stress, recourse to solvent abuse and then commission of offences under the influence of solvents. Some of these factors could be addressed by the conditions of a supervision order. However, he said that there were other possible pathways to offending.

37 Mr Hayden is a Senior Community Corrections Officer with the Department of Corrective Services. He completed a report dated 12 February 2013. He said that it was clear that Mr Unwin had extremely complex needs which crossed a range of different disciplines. This meant that if Mr Unwin was released into the community it would be necessary to make sure that all of those various services are coordinated adequately in order to support him and to appropriately protect the community.

38 Mr Hayden had made enquiries to identify appropriate accommodation. Various problems were encountered. These included one agency whose support staff were all female and were unable to offer support to Mr Unwin for this reason. Another difficulty was providing the high levels of mentoring support that would be required.

39 Another option that was investigated was Ngulla Mia, a community mental health hostel. As at 22 February 2013 Mr Unwin had been referred to Ngulla Mia for assessment. Subsequently, on 15 April 2013 Mr Hayden reported that that assessment had been negative. The reason for that was that Ngulla Mia is a mixed gender facility and there were concerns regarding the safety of female residents who were often quite vulnerable.

40 Mr Hayden had also made enquiries with the PECN project (People with Exceptionally Complex Needs) referred to by Dr Tanney. The PECN project is a whole of government project which commenced in April 2009 with the aim of providing coordinated service delivery to improve the wellbeing and quality of life of people in Western Australia with exceptionally complex needs. The Executive Committee of the project is made up of representatives from agencies which include the Mental Health Commission, Department of Health, Office of the Public Advocate, Department of Corrective Services, Disability Services Commission, Department of Housing and the Drug and Alcohol Office. The project has a small allocation of funding of $70,000 per year. Given this amount of funding the number of places is very limited. Member agencies may make nominations for inclusion in the project.

41 The Department of Corrective Services nominated Mr Unwin to PECN and he was considered at a meeting of the Executive Committee that occurred in April. There were a total of seven nominations for two vacancies. In relation to Mr Unwin, the Committee concluded that he met the criteria for inclusion and that his needs were clearly exceptional and complex. It was noted that the primary issue for Mr Unwin was in relation to housing and that a referral had also been made to Vincentian Village. The implication appears to be that there were other options for Mr Unwin. Regrettably, this has not proven to be the case.

42 Mr Hayden also made enquiries with Vincentian Village but in a report dated 1 May 2013 he stated that a referral had been rejected in light of an agreement that the operators of that village had made with local residents that convicted sex offenders would not be housed there.

43 Mr Hayden also mentioned the possibility of accommodation through Outcare or Outreach, nongovernmental organisations providing services for prisoners released on parole. However, Mr Hayden said that he understood that adverse publicity had led to a house being compromised and this had prevented its use for any paroled prisoners. This had led these organisations to withdraw from the area of providing accommodation for dangerous sexual offenders.

44 As regards the provision of a mentor or coordinator, Mr Hayden was more optimistic. He reported that an inprinciple agreement had been given by the Department of Corrective Services for the provision of a mentor to assist Mr Unwin in the event of his release. A suitable candidate had been identified who had extensive experience in mentoring and other support of intellectually disabled clients. As regards the coordinating aspect referred to by Dr Tanney, Mr Hayden said that this was something that could be accommodated within the existing resources of the Public Protection Unit of the Department of Corrective Services.

45 Mr Hosie is the Manager of the Public Protection Unit of the Department of Corrective Services. He gave evidence that the Public Protection Unit was formed under the InterAgency Public Protection Committee, which is an interagency group that comes together to oversee dangerous offenders within the community and within prisons. It consists of the police, health services, Department of Housing and various other invited people. It mainly concentrates on dangerous sexual offenders.

46 Mr Hosie said that previously dangerous sex offenders were managed at various Community Correction Centres throughout the State. These centres were also responsible for managing mainstream offenders. What the Department has done is to amalgamate all services in relation to dangerous sexual offenders into one unit. This includes case management and electronic monitoring. The case officers in the unit average about seven cases each, though the amount of attention required in each case varies. Mr Hosie considered that the unit would be able to provide the coordinating role referred to by Dr Tanney.

47 Mr Hosie said that at present each dangerous sex offender is reviewed by the team on a weekly basis. This would include input from a psychologist and police. The officer who would be assigned to Mr Unwin would be able to draw upon other resources to best meet his needs. Mr Hosie said that there were four Community Corrections Officers in the unit at the moment and that they were managing 15 dangerous sexual offenders in the community. A number of others were also being managed in prison.

48 As regards electronic monitoring, Mr Hosie said that this was being tested and was expected to go live within weeks. Field testing was occurring using employees. The system was sufficiently precise that it could indicate if a person had left premises and alarms could be triggered if a person entered an exclusion zone. The system would be monitored 24 hours a day and in the event of a breach police would be informed immediately.

49 When the court conducts an annual review of a continuing detention order the first issue to be determined is whether the person remains a serious danger to the community. If the court does not find that the person remains such a danger the court must rescind the detention order: s 33(1) DSO Act.

50 In this case, there was undisputed evidence that Mr Unwin remains a serious danger to the community. That evidence established to a high degree that there is an unacceptable risk that if Mr Unwin is not subject to a continuing detention order or a supervision order he would commit a serious sexual offence: s 7(1) DSO Act. I have had particular regard to the report and evidence of Dr Tanney and Mr Unwin's prior history of offending. Whilst there have been some changes to Mr Unwin's risk profile in the past 12 months they have had no significant impact on his risk of reoffending.

51 The second issue is whether Mr Unwin should remain in custody or be released on a supervision order. Where the court finds that a person who is subject to a continuing detention order remains a serious danger to the community on an annual review it must either expressly decline to rescind the order or rescind the order and make a supervision order: s 33(2). In making such a decision the paramount consideration is the need to ensure adequate protection of the community: s 33(3) DSO Act.

52 Whilst there has been no significant change in Mr Unwin's risk of reoffending, there have been changes in the availability of resources that adequately manage that risk in the community. These include a more detailed assessment of his needs, the availability of a dedicated mentor and electronic monitoring. If suitable accommodation was also available supervision would appear to be a viable option.

53 In many respects Mr Unwin's case is an unfortunate one. He clearly suffers from significant cognitive deficits. This has been compounded by the sedating effect of antipsychotic medication. His intellectual issues and sedation have made effective participation in treatment programmes very difficult. He has a past history of severe solvent abuse and has resorted to solvents in the past to deal with anxiety and stress. Whilst still a relatively young man he has limited prospects for improvement in a prison environment. He could be in prison for many years if appropriate supervised accommodation is not found. He has many and complex needs which will require a significant commitment of time and resources. If that commitment is not made Mr Unwin will be condemned to a bleak future. The value that a civilised society places upon personal liberty requires that something be done to improve and increase the accommodation options for people in Mr Unwin's position.

54 In this case, I am satisfied that a supervision order could be formulated that would provide adequate protection for the community. However, such an order would necessarily have to include a requirement to live in identified supported and supervised accommodation. Despite exhaustive efforts no such accommodation has been found. In these circumstances, a supervision order is not appropriate. Accordingly, on 7 May 2013 I made an order expressly declining to rescind the continuing detention order.