BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Community Protection (Offender Reporting) Act 2004 (WA), s 17

Dangerous Sexual Offenders Act 2006 (WA)

1 McKECHNIE J: On 26 April 2007 I handed down reasons in this matter, reported at Director of Public Prosecutions (WA) v Williams [2007] WASC 95, whereby I dismissed the application by the applicant for a detention order or a supervision order on the basis that neither had been proved beyond reasonable doubt. On 22 August 2007, the Court of Appeal in CACR 58/07 allowed an appeal by the director against that decision and remitted the case back to me for further determination and for further evidence to be adduced. Following a directions hearing, today was set for that hearing and the Court of Appeal has since published their reasons for reaching the conclusion that they did: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206.

2 Those reasons would indicate, certainly by the majority, that there is no discretion in a judge, and a judge, on a finding that a person is a serious danger to the community, must make an order under s 17. There is a third alternative and that is that if, in the event that the judge is not satisfied with the state of the evidence, the matter can be further adjourned and further evidence adduced. The respondent submitted that the result of this was a rehearing, based in part on a paragraph of the majority judgment; and alternatively that, now the respondent is subject to the Community Protection (Offender Reporting) Act 2004 (WA), he no longer poses an unacceptable risk and should not be found to be a serious danger.

3 There are two answers to that. The first is that my finding that the respondent is in fact a serious danger, whose release would pose an unacceptable risk, was not the subject of appeal or cross-appeal and was, in fact, expressly upheld by the Court of Appeal. The second is that I do not see the Community Protection (Offender Reporting) Act as doing other than adding another factor to the mix of factors to be taken into consideration in determining what order should be made under s 17. It does not preclude a finding of serious danger or unacceptable risk.

4 I turn then to the evidence in the application. By consent, but subject to certain objections which were taken during the course of evidence, a number of documents were submitted on behalf of the applicant and a further report by Dr Dear was submitted on behalf of the respondent. There are certain findings which I have made already in relation the respondent's conduct, which I will not now repeat. It is true, I think, as Ms Veltman submits, that the respondent was released with no plan which made things more difficult. She would submit that with a plan he may do substantially better.

5 As I have outlined, the issues seem to me to be three in number. I am required to consider, as a paramount consideration, the need to ensure the adequate protection of the community. Sometimes that may be made by an order for detention; sometimes that may be clear. Sometimes it may be made by an order for supervision; sometimes that may be clear. Sometimes the evidence may be insufficient to make either order in which case I should adjourn and seek further evidence. The advantage of a detention order is that it follows that the person in detention will not be a risk to the community and the community will always be adequately protected.

6 However, that cannot be the sole purpose of the legislation, otherwise the judge would have no discretion. The fact is that unless a person is to be detained forever then they must, at some stage, be prepared for release back into the community, under supervision, and that whenever they are released there will always be a risk of further offending; however that risk may be calculated. The question is not whether supervised release would pose risk, it would always be a risk; but whether, in the circumstances, it would be an unacceptable risk having regard to the adequate protection of the community.

7 In general terms, I incline towards a supervision order, where possible, simply because I do not believe that Australia stands for locking people up forever on preventative detention. I say that simply as a guide to the exercise of the power as to the appropriate order and, more particularly, the need to ensure the adequate protection of the community. The community is best protected when the respondent is ready to be released, and that he also has appropriate supervision.

8 There was, with great respect, quite inadequate information put before me in April; a fact, I think, acknowledged by the Court of Appeal in their decision to remit the matter to me and seek further evidence. However, since then much work has been done by the Department of Corrective Services who have prepared reports detailing realistic plans. I have also heard, in detail, from two ANCOR officers about the respondent's behaviour when released, noting as I do that when he was released without a plan and in circumstances that probably set him up in some ways to fail.

9 Whether he was set up to fail or not, fail he did. In relation to the consumption of alcohol, which earlier evidence has indicated was a precursor to offending, the respondent has been observed heavily intoxicated on several occasions. Of particular concern, in relation to the community, is the event described by Sergeant Gwilliam, which it was not for Sergeant Gwilliam to assign a sexual connotation to, but as a matter of inference I take to be a precursor to some sexual behaviour.

10 At all events, it seemed to be sexually arousing to the respondent, even if it was not itself an offence; it occurred when he was so heavily intoxicated that interviewing him had to be postponed for several hours. His accommodation is, in many ways, the key but there seems to be very little on the horizon. The accommodation at Beatty Street is unsuitable, despite his auntie wishing, I think out of family loyalty and concern, which is to be applauded, to care for him, and despite the obvious cooperation of Ms Dempster in that aspect of the matter.

11 Whether Ms Dempster would be assessed as suitable for a support person is not for me to say, but clearly she is prepared to take on the responsibility. However, the location of Beatty Street rules it out. In my view it is just too close to a school. Campbell Street likewise. There is no reason to do other than accept Ms Dempster's evidence that Errol is gravely ill and there is nothing further that is proposed. Jerramungup was proposed previously but was rejected.

12 There is no accommodation. There is no guarantee that even if the referral was made that Outreach would accept the respondent. In dealing with these applications I have had some knowledge of Outreach. I am inclined to agree with Sergeant Gwilliam that it is most unlikely that they would accept someone who has not, as it were, fully confronted his offending behaviour. It is only in the last year or two that the respondent has started to take steps towards gaining insight into his offending behaviour; something he had denied for many years.

13 The choice seems to me to be whether to detain him in custody now or order a further adjournment because I am certainly not satisfied that the community would be properly protected if I made a supervision order now, even one as restrictive as that proposed by Dr Dear. In the end, and this is a matter of judgment and impression on all of the material, I do not consider that the respondent is yet ready to fully engage and participate in the sort of intensive programs that will be required of him for eventual release into the community.

14 I do not feel that he would be able to participate in programs were he released into the community under supervision. It may be that he his able to participate in programs if he is in a custodial situation. I note what the acting principal clinical consultant has said to the court:

If Mr Williams is placed under a detention order, the Clinical/Counselling/Forensic Psychologist - (Dangerous Sexual Offenders) will more fully assess his needs at that time and develop an intervention plan for Mr Williams to prepare him for release. It is likely that a minimum of twelve months would be required for this work to be completed, keeping in mind that any group programmatic needs would be dependent on availability and most likely would not be available within a twelve month timeframe.

15 I accept that and expect that when I do order that the respondent be detained, the department will honour that commitment and work intensively with him to develop a plan for his eventual release into the community. I am of the view, taking into account the paramount consideration as to the adequate protection of the community, that the community is best protected in this case by a continuing detention order with the expectation that there will be considerable intervention to give the respondent the opportunity to be released in due course in a supervised way.

16 Having said all that, I do not overlook the fact that in order for the respondent to be released, Mr Williams has to make considerable changes, mentally and physically, in order to cooperate in a real and meaningful way with any plan that might be developed. No plan that is developed solely by the Department of Corrective Services will work without his active co-operation and willingness to address both his sexual deviance and his alcohol problem.