2 A more complete history of the respondent's offending behaviour may be obtained by reading my reasons in the judgment The State of Western Australia v AA

Supreme Court of WA|2007-06-20|Before: Murray J

1 The respondent is a dangerous sexual offender ie he has been so declared following completion of service of his latest sentence for what are defined as serious sexual offences within the meaning of the Dangerous Sexual Offenders Act 2006 (WA). They were offences of indecently dealing with and sexually penetrating a child between the ages of 13 and 16 years (the victim was a 14‑year‑old boy).

2 A more complete history of the respondent's offending behaviour may be obtained by reading my reasons in the judgment The State of Western Australia v AA [2006] WASC 279 which was delivered on 12 December 2006, but for present purposes it is pertinent to note that the offences for which the respondent was last sentenced were committed about five and a half years after a rather meaningless parole period in respect of earlier offences expired on 29 January 1998. The date of the last mentioned group of offences was 25 June 2003 about 9 and 1/2 years after his previous offending and, as I say, about 5 and 1/2 years after the respondent ceased to be subject to any supervision in the community.

3 Sentences aggregating 3 years and 4 months imprisonment, backdated to the respondent's arrest on 26 June 2003, were imposed by Heenan J in this Court on 26 November 2003. Eligibility for parole was ordered but, as I said in my previously published reasons, the evidence before me showed that parole was denied, clearly on the basis that the respondent was assessed as presenting a high risk of re‑offending. He therefore served the entirety of the sentence imposed upon him which expired on 26 October 2006.

4 The original application by the State Director of Public Prosecutions ("DPP") was made on 23 August 2006 during the latter stages of the service of the sentences previously imposed. I need not discuss the process involving the preliminary hearing of the application except to note that the application could not be finally dealt with before the sentences expired on 26 October 2006 after which date the respondent was ordered to be detained in custody under s 14(2) of the Act.

5 The final hearing of such an application is conducted under s 17 of the Act. In this case I found that the respondent is a serious danger to the community within the meaning of s 7 of the Act. I mention that specifically because it is important to note that under s 7(1) that is a finding that if he were not subject to a continuing detention order or a supervision order there is an unacceptable risk that the respondent would commit a serious sexual offence. The proceedings are adversarial. It is not an enquiry by the court. The court conducts itself in the ordinary way, making its judgment upon the basis of evidence adduced by the applicant and the respondent. Section 42 provides for such a hearing and the evidence which the parties may adduce. Under s 40 the proceedings, "are to be taken to be criminal proceedings for all purposes".

6 It would ordinarily follow from such a provision that if an order was to be made adverse to the respondent to the application the DPP would be required to attain the standard of proof beyond reasonable doubt, the criminal standard, in satisfying the court that the grounds for an order had been made out: Langridge v The Queen (1996) 17 WAR 346. However, that burden of proof is relaxed under s 7(2) which provides that to discharge the onus to satisfy the court that the respondent is a serious danger to the community the DPP has to do so by acceptable and cogent evidence and to a high degree of probability.

7 I mention s 7 also because s 7(3) mentions various matters to which the court must have regard in deciding whether to find that a person is a serious danger to the community. I have always found that counsel for the DPP has a clear understanding of the importance of these matters but some of the reports made in this case by Community Corrections officers and others, admitted into evidence under s 42(4)(b), reveal that some officers of the relevant government agencies may hold the more limited view that they may confine their reporting to matters in respect of which they are specifically asked for a view, rather than providing a comprehensive report dealing with the various matters, not only those in s 7 in relation to the question whether the respondent is to be found to be a serious danger to the community, but generally in relation to the matters to which the court must have regard in determining how it is to dispose of an application before it.

8 As to the declaration that a person is a serious danger to the community because there is an unacceptable risk that unless a continuing detention order or supervision order is made the person would commit a serious sexual offence, in State of Western Australia v Latimer [2006] WASC 235 I applied the decision of the High Court in Fardon v Attorney‑General (Qld) [2004] HCA 46; (2004) 210 ALR 50, 57 - 58 [22] and 111 [225] before, at [16] holding that:

"In my view, in the context of this legislation, where the question is the degree of risk of the commission of a serious sexual offence if the offender is not subject to a continuing detention order or supervision order, the risk would be found to be unacceptable if it was a real risk of substance, not merely a remote possibility."

9 Following the final hearing of the application by the DPP I made a supervision order under s 17(1)(b). In doing so, rather than making an indefinite continuing detention order, I had regard to the fact that s 17(2) provides that in making the choice, "the paramount consideration is to be the need to ensure adequate protection of the community". I see no reason to resile from the approach which I then took, which was, as I expressed it in Latimer at [22]:

"In my opinion, the Court would not make a continuing detention order if an adequate degree of protection of the community might be obtained by making a supervision order, having regard to the terms of such an order as described by s 18 of the Act. A supervision order is for a defined period."

10 The legislation provides extraordinary powers. A continuing detention order applies to keep an offender in custody after he has served the sentence imposed by the court by way of punishment for the offence committed, to deter the offender (and others) from further offending, but not to be so long or in a form which positively impedes attempts to achieve the rehabilitation of the offender. That is because a properly balanced sentence which provides an incentive for the rehabilitation of the offender and assists the authorities to achieve that, in the end provides the community's best guarantee against further offending.

11 I know of course that there are some who say that sexual offenders generally cannot be rehabilitated and will always and inevitably, upon their release from imprisonment, further offend. But the courts act upon evidence and I know of no evidence to the above effect, although of course in a particular case it may be proved that an offender, whether a sexual offender or not, is beyond redemption, in which case the court is empowered to respond accordingly.

12 This legislation however, is not predicated upon the view that despite the service of a sentence serious sexual offenders may never be rehabilitated. The legislation applies to offenders who at the time of the hearing of the application for a continuing detention order or supervision order are judged to be a serious danger to the community within the meaning of the Act despite their service of a properly imposed sentence of imprisonment. Section 4 sets out the objects of the Act. They are to provide for the continuing detention of such persons or their supervision in the community, "to ensure adequate protection of the community" and there is the further object, "to provide for continuing control, care, or treatment" of such persons. In other words the Act seeks an order which both protects the community and seeks to provide for continuing efforts to rehabilitate the offender, giving paramountcy however to the protection of the community, where one object must in a particular case give way to the other.

13 The supervision order I made on 12 December 2006 was carefully devised not only to provide for the elements of such an order set out in s 18(1), but also to serve the general aim provided by s 18(2), the terms of which precisely reflect the expression of the objects of the legislation set out in s 4. In other words the terms of the order were designed to deal with the case of this respondent, having regard to the evidence as to what was required and the views expressed, not only by expert witnesses, but by counsel for the applicant and the respondent. The period of 7 years fixed was again done on advice. The order was to take effect on 14 December on advice that at that time suitable accommodation for the respondent would be ready to receive him. The form of the order, reflecting s 18, provided for the co‑ordination of the contributions of various agencies by a community corrections officer assigned to the case. I shall return to its terms shortly.

14 The respondent seems to have complied with the order, but two months after he was released from prison, on 16 February 2007 at just after 7 pm, he made a 000 call and was put on to the police. He told the operator that he was a sex offender and wanted help because he felt as if he wanted to offend again. He said that he had not done anything yet but he felt as if he wanted sex again. At one point he said that he "might want to do it again". He also told the operator that he was a psychiatric patient and of course in my judgment given on 12 December 2006 I discussed his psychiatric history at some length. The respondent told the operator, upon enquiry, that he was ringing from the Bentley shopping centre just outside the Coles store. He was asked to wait there because, he was told, arrangements would be made for police to attend and speak with him.

15 The respondent waited and about an hour and a half later, at about 8.30 pm, two uniformed constables, McCann and Haslam, arrived in a marked police vehicle. They spoke with the respondent who told them he was a registered sex offender and he was having sexual thoughts, about which he appeared to be distressed. They took him to the Bentley Hospital psychiatric unit where he was seen in the presence of the two constables by a Dr Sharma.

16 The statement of PC McCann, admitted into evidence, gives the gist of the interview with the respondent that then occurred. The respondent said he could not cope with society, he should re‑offend to enable him to go back to prison or to hospital. He said that if that could not be done he was contemplating suicide as he could not handle life anymore. He had not had sex, he said, since 2005. He was afraid he would have to re‑offend to satisfy his growing urge. He spoke of his affection towards children and the "different" feeling he had when he saw them.

17 In the result, the officers took the respondent to a police station where he was brought into contact with officers of the WA Police ANCOR Unit. One of those officers was a Detective Macander. Again his statement was tendered in evidence. He says that the respondent told him that as a result of his sexual thoughts he did not trust himself around children and "possibly adults". The respondent said that he did not consider himself to be a violent person but he thought he might become one. He said that he did not believe he had a place in society and he no longer wished to try to make one. He said he did not speak to anyone during the day and waited for the night when he would go out and walk the streets. The respondent asked the police officers for help. He said that he was not sleeping well and that the television and radio were giving him messages arousing sexual thoughts and he was fearful he would offend against some child and that he would not be able to stop himself from doing so. Eventually the officers had the respondent admitted to Graylands Mental Hospital.

18 On 22 February 2007 a Magistrate issued an arrest warrant under s 21(2)(b) of the Act on the ground of a reasonable suspicion that the respondent was likely to contravene a condition of the order. Clearly the condition in question was par 10 of the order which provides that the respondent is, "not to commit any imprisonable sexual offence as defined in the Evidence Act 1906, s 36A, during the period of the order".

19 The warrant was executed on 27 February upon the respondent's discharge from the Graylands Hospital. He was, as the warrant required, brought before the Supreme Court where he was remanded in custody for a hearing before me on 24 April. When I embarked upon the hearing I ordered further expert reports and adjourned the hearing to 31 May. On that day I received the various written reports tendered and heard the co‑ordinating community corrections officer, Mr Greble, give evidence viva voce. He was cross‑examined by Mr Edwards who was able to convey to me the instructions received from the respondent. I did not require the respondent, who was present by video link, to give sworn evidence of those instructions because I considered it sufficient and proper to rely upon what I was told by counsel in that regard. I reserved my decision and remanded the respondent in custody accordingly.

20 I should say something about the process of remanding the accused in custody. In relation to the substantive hearing process leading originally to the making of a continuing detention order or supervision order the statutory scheme involves a preliminary hearing, the ordering of psychiatric and possibly other reports and then the court being reconvened for a substantive hearing leading to the order to be made, if any. If in custody, as the Act supposes will ordinarily be the case, the respondent to the application is brought before the court either in person or by video link.

21 Section 14(2)(b) provides, imperfectly, for the accused to be further detained in custody, if necessary, following the completion of service of the sentence, or if he is not then in custody under sentence at that time. I say imperfectly because so far as I can see, although under s 8(5) the DPP is to give notice of the application and supporting material to the respondent there appears to be no statutory compulsion for the respondent to attend the preliminary hearing and no mechanism by which he may be specifically required to do so. Section 44 provides an entitlement for the respondent to the application to attend such hearings. Nonetheless there is, as I have said, a specific power in relation to a preliminary hearing to order the respondent's detention in custody and thereupon under s 45 the court's warrant for the respondent's apprehension, if necessary, and detention in a prison may be issued.

22 There appears to be a statutory hiatus in relation to proceedings such as the application now before the court. As has been seen s 21 provides for an arrest warrant pursuant to which the respondent is to be brought before the court, whereupon under s 22 the DPP may apply for an order amending the conditions of the supervision order or, as in this case, for the indefinite detention in custody of the respondent. Clearly, as in this case, it will rarely be open to the court to instantly reach the decision required of it by s 23 as to whether there are grounds for an order to be made under that section. But there is no express power, upon the adjournment of the hearing of the application by the DPP, as in this case was necessary and as I was asked to do by both parties, for the court to order that the respondent be detained in custody in the meantime.

23 I took the view, although I was uncomfortable with the proposition, that it was necessarily implicit in the provisions of s 22 and s 23 that the court had a power to adjourn the application so that the parties could be in a position to adduce evidence, as they were entitled to do under s 42, and for the court to hear the application in accordance with any directions that might be necessary under s 43. Taking that view, I considered it to be also necessarily implicit in the statutory provisions that the court would have a power, like that expressly conferred elsewhere in the Act, to order that the respondent be detained in custody and to again be brought before the court and I so ordered, leading to the issue of a warrant of commitment under s 45 of the Act.

24 I note that had I wished to require the respondent to attend a substantive hearing but to allow him to remain in the community under the terms of the present order in the meantime, I could not have compelled that or secured the respondent's good behaviour while at large by utilising the provisions of the Bail Act. Section 5 of the Dangerous Sexual Offenders Act specifically provides that the Bail Act 1982 (WA) does not apply to a person detained under this Act. There is a regulation making power in s 47 of the Act but the power does not appear to have been utilised thus far. Procedural matters of the kind to which I have referred above ought to be clearly and expressly provided for, as a matter of urgency.

25 Turning to the final determination of the application I note that under s 23 the court is empowered to make any necessary amendment to the supervision order or to make any other order if it is satisfied that the offender is likely to contravene a condition of the order. Again, as in relation to s 17, I think the proper approach of the court would be to exercise that power if there is a real or substantial risk of contravention. That must be affirmatively found, although so far as matters of proof are concerned the statute further relaxes the burden by providing that the court may be satisfied "on the balance of probabilities". In other words it must be more probable than not that there is a likelihood, in the sense of a real or substantial risk, of contravention and here the contravention upon which the applicant focuses attention is the commission of a further imprisonable sexual offence.

26 The application is, however, that the supervision order should be discharged and a continuing detention order made. Section 23(b) provides that if that is to be done, in addition to the likelihood of contravention of the supervision order the court must also be satisfied that there is an unacceptable risk that unless the continuing detention order were made the respondent would commit a serious sexual offence. In this case it seems to me that, given the nature of the apprehended contravention, the test is the same as under s 17 and the court would find an unacceptable risk of the commission of a serious sexual offence if, as I said in Latimer, "it was a real risk of substance, not merely a remote possibility". But in this case of course the test is to be applied to resolve the question whether the supervision order provides adequate protection to the community or whether, to secure that, a continuing detention order must be made.

27 Having regard to the way s 23 is constructed I think the court in this connection ought to apply the standard of proof to the higher degree of probability for which s 7(2)(b) provides in the different context of that section. I take that view because the effect of making the order is to remove the respondent from the community and return him indefinitely to prison, although in a case such as this he has done nothing for which punishment is provided, but is being returned to prison for his "control, care, or treatment".

28 In hindsight there were forewarnings that the respondent may behave as he did on 16 February. He had apparently gone to Sir Charles Gairdner and Royal Perth Hospital emergency departments four times during January 2007 protesting that he had suicidal ideas. It would seem that that did not work to secure his return to a form of custody.

29 An important condition of his supervision order was par 14 which required him to engage with a nominated mentor appointed by his community corrections officer. A Mr Treasure was appointed. He is very experienced in this work. He was engaged for the maximum period allowable under the accepted protocol, 20 hours a week. More he could not do if he was to deal with other clients. However, it seems clear that the respondent was not satisfied with the extent of that commitment. He really wanted Mr Treasure's constant companionship, because he lacked any support in the community and he had not been gainfully employed.

30 He told Mr Treasure in the week immediately before 16 February that he was lonely. He constantly said that he could not live on his own any longer and regularly suggested that he wanted to go back to prison where he had friends, could have relationships, got three meals a day, was provided with a constant supply of tobacco and did not have to worry about money or the other minutiae of daily living. The respondent told Mr Treasure that he knew exactly what he had to do to get back to prison. He did not speak of re‑offending but suggested he could go to the police and say that he wanted to go back to prison or he would run away.

31 If he wanted to return to the familiar prison environment to relieve his loneliness and resume a comfortable lifestyle, then to behave as he did on 16 February, waiting for a long time for the police to arrive and then speaking to them as he did, was certainly guaranteed to see him return to a custodial situation, perhaps initially to Graylands as occurred, while they ensured that he was not indeed in a psychotic state, and then hopefully to prison, where he has remained ever since.

32 Dr Brett is the Director of the State Forensic Mental Health Service. I value his opinion and there are a number of reports upon the respondent before the court which have been made by him. When I made the supervision order on 12 December 2006 it was my hope and understanding that the responsible agency of the community mental health service would provide, by injection and supervised oral consumption, the anti‑libidinal and other medication designed to stabilise the respondent's mood and suppress any sexual urges. I was advised that this would be an important aspect of the respondent's care and treatment, hence the terms in which I made the condition expressed in par 16 of the order.

33 However, it seems that little was done in this regard, at least initially. I was provided with a letter report dated 31 January 2007 from Dr Brett to Mr Greble expressing concern about the respondent's situation and the risk that he presented unless properly managed. Dr Brett said that the respondent had been attending the Community Forensic Mental Health Service since 21 December 2006, but Dr Brett had only made his "initial assessment" of the respondent on 30 January 2007. Further, although everybody was recommending anti‑libidinal medication it seems that that had not by the end of January 2007 been administered at all. Nor, Dr Brett reported, had the respondent been accepted for yet another attempt at a sex offender program despite the condition expressed in par 11 of the supervision order that he was to attend such programs to address his offending behaviour as were directed by his community corrections officer.

34 Dr Brett wrote again to Mr Greble on 21 February 2007, reporting what was described as the poor implementation of the management plan comprised of the supervision order, which Dr Brett described as "sensible". It seems that there was difficulty in co‑ordinating the effort required of the various agencies concerned.

35 The respondent having been arrested, having been brought before the court and having been remanded in custody to me with an order for reports to be provided, a further report from Dr Brett dated 10 April 2007 was made available to me. Dr Brett commences by pursuing the diagnosis of the condition affecting the respondent. This has been a matter of debate among psychiatrists for some time. The question apparently is whether the respondent actually suffers from schizophrenia, as many have said, or whether, as is the view of other psychiatrists, he has a personality disorder associated with cognitive impairment.

36 I must say that the debate is not one which impresses me. The crucial point is that, whatever be the correct diagnosis, the respondent is a dangerous sexual offender within the meaning of s 7 of the Act who has treatment needs which need to be identified by the responsible agencies under the co‑ordination of the Department of Corrective Services, so that when the experts identify the appropriate treatment it can be delivered. It seems to be clear, still, as it was when the supervision order was originally made, that the appropriate treatment involves the provision of medicine and the counselling and instruction of the respondent in terms that he may understand and cope with, so that he may have a better understanding of the drives that cause his offending and learn the mechanisms which will enable him to prevent that offending.

37 Dr Brett expressed the view that the respondent did not suffer from schizophrenia. He therefore, "does not fulfil the criteria for assertive case management through this service". If so, then so be it, but I have to say that if the appropriate mechanism for service delivery does not exist then it must be provided. The court is bound to make its judgment within the framework of the Act. The court will not readily accept that it is driven to a continuing detention order by the unavailability of services within the community which are suitable to manage an offender who could be managed in the community if the necessary services were provided.

38 In his report of 10 April 2007 Dr Brett expresses the view that the necessary services are lacking in Western Australia to enable the management within the framework of the Act of people such as the respondent, but I think that it is not so much that the services are lacking but that, as Dr Brett's report itself says, "To manage this man safely there needs to be inter‑agency co‑operation and collaboration, without this his management is likely to fail". It must be said that it was recognised by the court when the supervision order was made that this inter‑agency co‑operation and collaboration would be required. The order was framed on that assumption and expressed in terms designed to provide the management measures flexibly, according to the judgment of the experts, and to make it clear to the respondent what he was to do and that he was obliged to comply with the directions he was given, there being no suggestion that his cognitive deficits, such as they are, are such that he was incapable of understanding and following the necessary instruction.

39 That I think was confirmed in a report dated 16 April 2007 by a psychologist attached to the Department of Corrective Services, a Ms Caple. The report was concerned to formulate an appropriate management plan for the respondent, by then of course in custody. Its recommendations very much parallel the management plan represented by the supervision order made in December 2006. Ms Caple particularly identifies a number of risks in respect of the respondent. She regards it as imperative that he, "reside in supported accommodation that provides assistance with self-care needs, social interaction and structured daily routines", to reduce the stressful nature of his reintegration into the community and to prevent boredom and loneliness, which appear to be significant factors affecting the respondent thus far.

40 Ms Caple recommended, "structured volunteer work or other employment opportunities within Mr AA's capabilities". She said that he needed to participate in a sexual offender treatment program and said that individually delivered intervention could be provided. The program should incorporate instruction in behavioural management skills so that the respondent would be given a good chance to prevent relapse. I think the report makes a valuable contribution to understanding what is required.

41 Mr Greble's report of 17 April says that he was the community corrections officer who has been managing the case intensively. He reports that an OutCare worker had had frequent contact with the respondent. Mr Treasure, his mentor, I think it is clear, has also done a lot of work with the respondent, making arrangements with Centrelink for him to receive the disability support pension and having it administered by the Public Trustee, establishing a bank account, accompanying him to appointments, showing him where shops and services were located in the neighbourhood, providing emotional support and spending some time with him on an almost daily basis. Unfortunately, it would seem that through illness and for other reasons, there was some delay until about the end of January before the forensic psychologist from the offenders services branch of the Department of Corrective Services (I assume Ms Caple) was able to become involved in the case.

42 The respondent appeared to be doing moderately well. His regular weekly urine samples were all free of illicit drugs. He took up a casual cleaning job on his own initiative but gave up the employment when Mr Greble told him to do so. It is not clear to me why that instruction was given. He was able to develop living skills, cooking and the like, getting about by bus. In early February 2007 he was introduced to Activ Industries, which offers sheltered workshop employment for persons with intellectual disabilities, although my impression of the respondent is that his disabilities of that kind are not at all profound.

43 During January, Mr Greble says, it became increasingly apparent that the respondent was finding it difficult to cope. Significantly, he "spoke of being lonely and having nothing satisfying to do and he increasingly made it clear that he could not sustain living on his own without some human company and living arrangements akin to the structural rigours of prison life". Arrangements were made for him to transfer to a men's hostel in Bentley. That happened on 14 February. It was a purely temporary arrangement. It seems clear that the respondent did not give this a chance to determine whether such living circumstances were satisfactory for him.

44 Mr Greble was forced to conclude at that time that this, the first effort in this State at a supervision order, had overtaken the capacity of the various agencies involved to co‑ordinate an overall effective response and yet he says developing such inter‑agency co‑operation and co‑ordination during the course of the initial stages of the order showed that it could be achieved and be "reasonably effective". In addition, as I read Mr Greble's report a significant factor was that the respondent lost his initial motivation to make it work and found the transition into the community more difficult than he had supposed.

45 When the matter first came before me on 24 April I expressed the view that this reporting process was in an unsatisfactory state and I asked that the court be provided with further advice to enable a judgment to be made within the framework of the requirements of s 23 of the Act. In short, could a program be devised for this respondent to enable his transition to and maintenance in the community, rather than indefinitely in prison, in a manner which would be calculated to prevent further offending and provide an adequate degree of protection for the community?

46 Further reports were provided and tendered in evidence. They included a report dated 16 May from Dr Brett, who made it clear that the Community Forensic Mental Health Service which he heads could monitor the respondent's mental state and manage his psychotropic medication. A variation on this process was recommended in relation to the anti‑libidinal medication, Androcur. Dr Brett observed that the respondent will benefit from psychological counselling with regard to his coping mechanisms and to gain a better understanding of his functioning. This can not be done by the Mental Health Service and it was recommended that it be done by Community Justice Service psychologists. All of that is in line with the Court's present understanding and might readily be a management process within the framework of the existing supervision order.

47 I was disturbed by the report dated 22 May, made by Ms Caple the forensic psychologist in the Offender Services Branch of the Department of Corrective Services. Whilst recognising the respondent's needs in relation to psychological counselling she said they could not be met by her branch, although she recognised that that was the appropriate service to handle that matter, because she said that "a hold has been placed on all community based treatment services for sex offenders". Presumably that means that a decision has been taken that the resources of that branch should be devoted to offenders in custody, but in my opinion that is not an adequate response to this case, particularly as, as Ms Caple observed, it appears that no alternative services are available within the community which could adequately meet the respondent's sex offender specific treatment needs.

48 However, I am pleased to say that as of the date of the hearing, the position appears to have changed, because Mr Bates took instructions from Ms Caple and advised the Court that she has in fact commenced working with the respondent on an individual basis to provide counselling and instruction to improve his coping skills and his reintegration into the community, to help him deal with loneliness and social isolation. In the first instance she is conducting those sessions weekly on a one‑to‑one basis. She would hope that in due course group counselling might be undertaken to continue the treatment process. Again it would seem that no amendment to the existing supervision order is required.

49 It is important I think to note that Dr Brett's report contains the following perceptive observation:

"Mr [AA] has managed to garner services by stating that he 'wishes to re‑offend'. It is unclear whether his intentions are genuine or whether he just needs increased care in the comfort of prison, which he has been used to. His mental state will fluctuate significantly within short timeframes. Accommodation appears to be a real issue for Mr [AA]."

50 There is before the Court a carefully compiled report dated 24 May by Mr Greble. In it he expresses the opinion that the continuation of the respondent's supervision order, even in an amended form, will not protect the community adequately. He offers two main reasons for that view. The first is that he regards the respondent as being unsuitable for a supervision order. Secondly, he says that the components of such an order that would allow the respondent to be managed more effectively in the open community cannot currently be provided.

51 In support of the proposition that the respondent is fundamentally unsuitable for community based supervision despite the parole eligibility orders consistently made by the courts Mr Greble relies on the respondent's past performance, which I agree with him can be a reasonable predictor of future performance. But in the end Mr Greble's account is of decisions by the Parole Board to defer or deny parole rather than an account of the respondent's performance on parole. All of that material was before me at the hearing following which I made the supervision order. I discuss it in the judgment delivered on 12 December 2006. On the odd occasions when parole release was ordered in a meaningful way the respondent has complied.

52 His offending history is sporadic although persistent. He seems to have the capacity to resist the temptation to offend for long periods of time. The opinion of Dr Hall given in evidence before me in December 2006 that the magnitude of the risk was not immediate but was likely to emerge after a period of years is well supported by the history and, relying upon that evidence, I made the supervision order operative for a period of 7 years. With respect to Mr Greble I do not think it can be said, as he puts it, that the respondent has been assessed over the past 13 years, "as having a chronic unsuitability for community‑based supervision".

53 Mr Greble then turns to the inadequacy of the present arrangements made by the authorities for the implementation of the order in the period between 14 December 2006 and 16 February 2007. The evidence amply supports the view expressed by Mr Greble that the respondent quickly lost his momentum towards rehabilitation and the development of coping skills to enable him to survive in the community without undue risk of further offending, but I think the evidence also supports the view that that was in no small measure attributable to the failure of the authorities to respond adequately to his needs, rather than his wishes.

54 It is clear in hindsight that the accommodation provided for him was inadequate, leaving him alone too often, a prey to loneliness and boredom. Apart from attending to his treatment needs in an adequate way it is clear that the respondent needs structured accommodation involving regular human contact. It is reported that he can and indeed has learned ordinary coping skills. If not in a job like the cleaning position he found for himself and was required to give up, the respondent needs regular employment, perhaps most desirably of the kind offered by Activ Industries. He needs in short to be helped to find a lawful purpose to his life.

55 Mr Greble reports that there is a men's hostel, which it is unnecessary that I name in these reasons, which provides more suitable accommodation of a structured kind, not unlike the structured environment of the prison in the sense that he has his own room, but ample contact with those who manage the hostel and other residents. All his meals can be provided, there is no impediment to him satisfying his addiction to nicotine, there is a curfew and the accommodation may be available for as long as is required rather than on a purely temporary basis.

56 Of course, as one would expect, the demand for the accommodation is high and it is not possible at any given time to say when a bed might become available, but at the hearing last conducted before me I asked the applicant to place the respondent's name on the waiting list and for the Court to be advised when a room was available. The respondent will be accepted I was told, as he has lived there before and has complied with the rules of the house. He regards the accommodation as suitable for him and commented apparently on its centrality as being a good feature, so that he could readily get to the various appointments he has with the agencies handling his case. My request that the accommodation be sought, I said in open court, was not to be taken as a commitment to continue, whether as it is now framed or in amended form, a supervision order.

57 Mr Greble concedes that better arrangements should have been made for him to resume his anti‑libidinal medication and his psychotropic medication and for the respondent to be placed on a suitable program of counselling and other treatment. As I have indicated above, that seems now to have been attended to and the evidence is that there is no impediment to a continuation of what is required in the community. If the respondent was again released, Mr Treasure has indicated that he would be prepared to continue the mentoring effort and, as I have said, it would be necessary to redouble efforts to ensure that the respondent was actively engaged during the day.

58 Having regard to all that evidence and the history of the matter I turn to the questions posed for me by the Act, s 23. I am not persuaded on the balance of probabilities that the respondent is likely in the relevant sense to contravene the supervision order by committing an imprisonable sexual offence. Indeed, it seems to me that the way he telephoned 000 and the way he behaved on 16 February supports the view that he wished then to put himself in the position where he would not offend, putting the most serious construction on those events, ie - accepting that he genuinely did think that he might offend. I am not even persuaded of that because it seems to me that it is equally consistent with his behaviour that his loneliness was such and his dissatisfaction with his life out of prison was such that he used what occurred on 16 February as a mechanism to secure the aid of the authorities to improve his lot. I do not therefore get over the threshold question which would justify the making of an order, either by way of amendment of the supervision order or by way of a continuing detention order.

59 However, even had I been of the view that it was more probable than not that the respondent might contravene the order, I would not in the circumstances of this case have been further satisfied that there was an unacceptable risk that he would commit a serious sexual offence as defined by the Act if not indefinitely detained in custody. On the contrary, it seems to me that the evidence before me shows again that an adequate degree of protection for the community may be obtained by the implementation of the supervision order in the terms originally made. The conditions of the order were carefully devised to cover the areas relevant to his control, treatment and rehabilitation and were expressed in a form designed to enable them to be operated flexibly and to allow the responsible community corrections officer and the other authorities involved in handling the respondent's case to implement measures designed to meet the respondent's particular needs for treatment, counselling, appropriate living circumstances and meaningful occupation and social contact. At the same time I do not suggest that the respondent's case is other than complex and demanding of considerable effort and skill.

60 In the end therefore, I will dismiss the application presently before me but I will not do so until I am advised by the DPP, as I now require, that the suitable accommodation discussed above is available for the respondent to take up and generally that the arrangements for his treatment and management which I have discussed are this time effectively in place so that he can be seamlessly transferred from a prison environment to the open community.

61 Finally I should say this, Mr AA needs to be helped to understand that this legislation will not be implemented by the Court so as to make a continuing detention order because when things get difficult in the open community he thinks it would be pleasant to return to the structured prison environment which he by now finds comfortable. I was assured when the supervision order was originally made, by the respondent's counsel and by him personally, that he understood that he would have to put effort into making a law abiding life in the community work for him. It is regrettable that he lost his momentum in that regard when the attempt was made. It is to be hoped that the respondent may be helped to make a success of the transition from prison to the community on a second attempt.

62 I accept that he needs a considerable amount of help, but I think it can be provided and if he can be brought to a law abiding way of life it is by that outcome that the community will be best provided with an adequate degree of protection from further offending by the respondent. Such an outcome is consistent with the scheme of the Act, which in my view is to use indefinitely continuing detention for offenders who have served their sentences, as on option of last resort to be used where no other means of providing adequate protection for the community are available.

Sexual Offenders Act 2006

At a glance

Court

Decision date

Before

Source

Judgment (65 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)