BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Dangerous Sexual Offenders Act 2006 (WA) - Offender a serious risk to the community - Burden and standard of proof as to whether order should be made

Dangerous Sexual Offenders Act 2006 (WA)

Director of Public Prosecutions for Western Australia v Williams [2006] WASC 140

Fardon v Attorney-General of Queensland [2004] HCA 46

R v Hutchinson [2003] WASCA 323

The State of Western Australia v Latimer [2006] WASC 235

1 This is an application by the Director of Public Prosecutions for the continuing detention or supervision of the respondent on the basis that he is a serious danger to the community. The respondent is presently under sentence for a term of 11 years' imprisonment in respect of two offences of sexually penetrating a child under the age of 13 years, one offence of abducting a child and one offence of assault occasioning bodily harm. After allowing for remission of sentences he was due for unsupervised release on 10 July 2006. He is detained on an interim order made by Blaxell J who also outlined the essential facts of the offences in Director of Public Prosecutions for Western Australia v Williams [2006] WASC 140 (at [17] - [20]).

2 The Dangerous Sexual Offenders Act s 40 provides that proceedings under the Act are to be taken to be criminal proceedings for all purposes. These are adversary proceedings. Subject to express statutory provisions to the contrary, and s 7(2) is such a provision, a consequence of proceedings being criminal proceedings is that the burden of proof is at all times carried by the applicant to establish facts beyond reasonable doubt: R v Hutchinson [2003] WASCA 323 at [33], [34]. Another reason why I consider that the applicant must prove its case beyond reasonable doubt is the consequence for the respondent who will be either incarcerated or subject to close supervision. The consequences to him are virtually indistinguishable from a finding of guilty of an offence. There is no burden of proof placed on the respondent. In the context of this application, it is for the prosecution to establish facts for me to make a finding that the respondent poses a serious danger to the community. It must then establish facts as to the proper order to be made. The respondent is under no such duty. For example, the respondent does not have to show that a supervision order rather than a detention order should be made. The applicant must establish its case for an appropriate order.

3 A finding of serious danger to the community is the threshold finding that must be made before the Court is empowered to make any order under s 17. Section 17 does not permit the making of another form of order: The State of Western Australia v Latimer [2006] WASC 235 at [21].

4 The effect of a continuing detention order is that the respondent's liberty will be removed for an indeterminate period without the commission of any offence by him. Because these are adversarial proceedings, criminal in nature, the applicant must satisfy me on facts proved beyond reasonable doubt that such an order is the only order that will satisfy the paramount consideration as to the need to ensure adequate protection of the community.

"I turn then to the decision whether I should make a continuing detention order or a supervision order. I do so against the background of my view that, as the Act is to be properly construed, I should choose the option which is the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community."

6 I would put it rather differently. Conformably with my view that these are adversarial criminal proceedings, it is not a question of choice for the Judge but a question of the applicant discharging its burden of proof of facts beyond reasonable doubt as to an appropriate order.

7 The applicant must establish that the adequate protection of the community, which is the paramount consideration, will be achieved by an order for detention or an order for supervision.

8 By agreement between the parties, a book of evidence and a supplementary book of evidence was tendered as was an addendum to a psychological report by Dr Gregory Dear.

9 The respondent was examined by two psychiatrists, Dr Bryan Tanney and Dr Mark Hall, each of whom provided a report of their opinion and gave oral evidence and were cross-examined. The respondent was also examined by a clinical psychologist retained on his behalf, Dr Gregory Dear, who provided a report and the addendum I have mentioned. Dr Dear also gave oral evidence and was cross-examined.

10 In addition to material relating to the offences and the criminal history of the respondent, the prosecution relied on a series of reports, commencing with reports obtained in conjunction with the pre-sentence report and thereafter a series of reports from Department of Justice, Prisons Division. The prosecution also called Ms Tamala Capel, a forensic psychologist registrar, to give evidence in relation to her report and provide the Court with current information relating to services available.

Is the respondent a "serious danger to the community"?

11 This is a defined term under the Dangerous Sexual Offenders Act 2006 (WA) s 7.

12 Section 7(3) sets out a variety of matters to which the Court must have regard.

Section 7(3)(a): The report by a psychiatrist

13 As I have said, there were two such reports, one by Dr Tanney and one by Dr Hall. I am obliged to receive these reports. However, their opinions do not supplant the judicial decision I must make.

14 Dr Tanney's report of 9 October 2006 noted that the respondent co-operated fully throughout the one interview conducted. In determining the risk of re-occurrence of a serious sexual offence, Dr Tanney used the results of actuarially derived risk ratings for the respondent utilising the Sexual Violence Risk-20 (SVR-20) and the STATIC-99 Assessment. He also conducted what he described as a highly-focused risk appraisal interview guided by his understanding of relevant and important constructs that have been identified in enabling risk prediction and management. His final opinion is derived from the integration of data provided by these various informing processes. He had regard to the sexual history and other tests performed. I shall say more about the STATIC-99 result later. For present purposes, Dr Tanney accepted a STATIC-99 Risk Assessment with a score of 7. Any score of 6 or over places the offender in a high risk category for re-offending. The score does not indicate what type of sexual re-offending or the seriousness of such a crime. The STATIC-99 Assessment is based on a sample of sex offenders from Canada and the United Kingdom. Using the SVR-20 Assessment Dr Tanney noted Mr Summers' conclusion that the respondent is of high risk to re-offend in a sexually violent manner. He met 14 of the 20 criteria that comprised the three key predictive indicators on this measure.

15 Dr Tanney applied each of the measures to reach a score of 7 on a slightly different base from that of Hewitt/Ebbot who had applied the test earlier. Dr Tanney applied the SVR-20 test recording 12 items as definite "yes", one item as a "yes" or a "possible" and two items as "yes with amelioration". The dynamic items that appear not to have been addressed remain problematic or evidence only of minimal or minor gains following intensive treatment.

16 Dr Tanney notes there is no coding guide or translation matrix for a summary score to be created. His clinical impression of the respondent's responses to SVR-20 is a high likelihood of sexual re-offending.

17 Dr Tanney also noted the use of a three predictor model which is a locally developed instrument for prediction of violent offending developed with a sexual offender population of inmates. I gained the impression that he did not rely upon this model, perhaps because it appears still to be in development.

18 Finally, as I have said, Dr Tanney relied upon his interview as part of the process for forming his opinion. In his opinion, without further intervention management the respondent is at significant risk of further serious sexual re-offending. He noted some caveats to the testing.

19 Dr Tanney's impression on interview was of the respondent's minimal strength for adaptive coping. The respondent showed this, for example, in the small number of relapsed prevention strategies he had incorporated. He may not wish or intend re-offending but thoughts of it are present and his means of resisting it are poorly formed. At present he intends that supportive others will afford sufficient strength to him. This is a very maladaptive strategy for many reasons. His limitations in problem-solving when stressed have previously led him to substance abuse, denial, suicidal ideation, threat of violence to others and possibly paedophilia.

"1. This report has made effort to meet the purpose of section 37 of the DSO Act 2006, but the scientific underpinnings to satisfy the standard of predicting with high probability the likelihood of serious sexual reoffending by any offender are incomplete at this time.

2. Despite this, several available instruments derived from an actuarial or guided clinical risk appraisal framework have been realized by a number of interviewers. Their convergence directs an opinion that Mr. Williams is at Moderate-High or High likelihood of serious sexual reoffending within the next five years or sooner, should no further intervention take place. The likelihood estimate in this opinion informs, but does not constitute, a probability of reoffending or the ascertaining of 'unacceptable risk'.

3. At this time, a supervision order would be unable to afford adequate supervision of this level of risk of reoffending. Additionally, community-based rehabilitation services to lessen the likelihood of reoffending (by reinforcing relapse prevention strategies or by minimizing exacerbating conditions) are either unavailable or are unlikely to be used to their potential by Mr. Williams at this time."

21 This impression by Dr Tanney seemed to be amply demonstrated in the many reports generated from the Prisons Division over the years. Dr Tanney concludes that through continued detention and with a supported mandate for program involvement the respondent is able to manage his current risk and to diminish his likelihood of serious sexual re-offending to acceptable risk levels or unacceptable levels that might still be manageable in the community.

22 In cross-examination Dr Tanney was asked about relevant treatment although it was not a matter he had specifically addressed in his report. He was of the view that if Mr Williams could effectively address the issues of substance abuse it would be a significant factor in lessening his risk of offending (TS 54):

"It's his ability to realise that abstaining from alcohol is an important part of his life, not only to address issues that relate to illegal offending and potential recurrence of sexual offending but to help him address other issues in his life."

23 Dr Hall's diagnosis based on DSM IV-TR is as follows:

History of alcohol abuse,

Alienation from community,

Imprisonment, Lack of personal support."

24 In assessing risk, Dr Hall noted it is not possible to predict recidivism with unequivocal accuracy. He used the STATIC-99 and the Hare Psychopathy Checklist SVR-20 and Historical Clinical Risk-20. Mr Williams scored 7 on the STATIC-99 placing him in the high risk category for sexual recidivism. An application of the SVR-20 indicated that Mr Williams is at high risk of sexual re-offending with violence and a similar result was achieved with the HCR-20.

25 In Dr Hall's opinion, Mr Williams is currently at high risk of committing a serious sexual offence if not subject to a continuing detention or supervision area (page 140):

"The essence of his risk lies in several major areas. In terms of his personality, he has led an unstable antisocial lifestyle with a history of violence and presents as emotionally cold. Mr Williams' planning for the future has been poor and his significant alcohol problem has not been adequately addressed. He has deviant and violent sexual fantasies and is sexually preoccupied. His attitudes to sex with children and females as well as his distorted cognitions and negative attitude to interventions are at this stage unaddressed."

"... There are certain risk factors which are, as yet, unaddressed for various reasons which, in their current state of being unaddressed, may not be managed at present and, therefore, the risk is there. If those risk factors were managed, and I believe that they are manageable, then it's possible that the risk could be more acceptable if things were being done to manage the risk factors because then that would improve the chances that he would not reoffend."

27 In summary, both psychiatrists consider that the respondent is at high risk of re-offending and, without treatment in which he is fully engaged, that risk will remain.

28 I am prepared to accept generally the evidence of Dr Tanney and Dr Hall insofar as their experience as psychiatrists enables them to express an opinion on the present metal state of the respondent.

29 The administration of the risk tests seems to require less in the way of clinical judgment and more in the way of simple arithmetic by adding up points to reach a score.

30 To the extent that the scores confirmed the clinical judgment of each doctor, based on the doctor's interview, they are of some use.

Section 7(3)(b): any other medical, psychiatric, psychological or other assessment relating to the person

31 The respondent commissioned a report from Dr Gregory Dear, a forensic and clinical psychologist. Dr Dear did not use the STATIC-99 tool but did use the psychopathy check list calculating a total score of 21, slightly lower than the scores obtained by Mr Summers in 2005, and significantly lower than the score obtained by Dr Mark Hall. He said:

"In short, Mr Williams is not a psychopath but he does show a longstanding pattern of instability and antisocial behaviours including domestic violence and entrenched sexual deviance."

32 Dr Dear's evaluation of the respondent is that he poses a risk of offending against pre-pubescent girls with whom he has formed an emotional bond and therefore against a girl within his extended family or close social networks.

33 In his opinion, the respondent displays a number of risk factors for further sexual offending but these risks are manageable with a comprehensive program of psychological treatment, functional family support and close supervision in the community.

Section 7(3)(c): information indicating whether or not the person has a propensity to commit serious sexual offences in the future

34 To a degree this has been covered in the summary of the evidence of Dr Tanney and Dr Hall. In this regard, the current sexual fantasies outlined to Dr Hall by the respondent are worrying. Both Dr Tanney and Dr Hall relied on the STATIC-99 test. Dr Dear is critical of the test for reasons set out both in his report and the addendum. I acknowledge the force of his criticisms. Dr Tanney was of the view that the test had value in the assessment of the respondent but acknowledged that there is always an issue when the test is applied to people other than white Canadian. He said (at TS 57):

"... in academia that this is a regular criticism that's made of every instrument that's developed - that it can only be used for the group of people that it was specifically developed for ..."

35 Whether in academia or not, it seems to me that there is considerable validity in the criticism and in the research outlined by Dr Dear, including the fact that STATIC-99 has been found to be less accurate with ethnic groups, other than white Canadians, and performed particularly poorly with European offenders of African or Asian ethnicity. Dr Hall also acknowledged the difficulties of STATIC-99 although in a different way. He said (TS 71):

"... Indeed with the indigenous population there may, in fact, be risk factors for sexual offending which we don't know about which haven't been captured in any available risk instrument and that's largely where the work on the three predictor model is heading. However, with respect to Static 99 and all of the instruments that haven't been specifically validated for an indigenous population, the problem is that it's not that they can't be applied. It's not that they don't predict with any validity whether someone will reoffend. We don't know if they do. So they may well predict. It's just that if it hasn't been validated on that population, we don't know.

...

... until further studies actually validate it in that population we don't know."

36 I am far from satisfied to a high degree of probability that the use of STATIC-99 is a sufficient predictor of the propensity to commit serious sexual offences in the future so as to discharge the onus under the Dangerous Sexual Offenders Act s 72.

Section 7(3)(d): whether or not there is any pattern of offending behaviour on the part of the person

37 The respondent has a very lengthy record although, apart from the matters for which he is currently sentenced, it is not a record of sexual offences, but rather a record indicative of a long-term chronic substance abuse. While, as Dr Hall indicated, two instances may constitute a pattern, I am not sufficiently persuaded to a high degree of probability that the respondent has developed a pattern of sexual offending.

Section 7(3)(e): any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program

38 As the Corrective Services reports note, for many years the respondent denied involvement in the offences, notwithstanding his pleas of guilty to them. It is only in recent years that he has expressed some acknowledgement of his involvement in them. In view of his denial he was ineligible to be enrolled in sexual offenders programs. He remains reluctant to enter a treatment program. He is in fear of his safety. He has participated minimally in dealing with his substance abuse problem. Regardless of the reasons advanced, and their validity or otherwise, he has made very little effort to address the causes of his offending behaviour.

Section 7(3)(f): whether or not the person's participation in any rehabilitation program has had a positive effect on the person

39 The most that can be said is that there are some signs that the respondent is developing some insight, but his lack of realistic preparation for life outside prison is an indicator that any rehabilitation program has so far had only an incremental positive effect.

Section 7(3)(g): the person's antecedents and criminal record

40 The record is extensive but of itself is not such as would lead to the conclusion that he is a serious danger to the community.

Section 7(3)(h): the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence

41 Members of the community most at risk are pre-pubescent young girls for whom the need for protection is obvious.

42 Dr Tanney, Dr Hall and Dr Dear were all agreed that the respondent is at risk of committing a serious sexual offence. A professional disagreement comes as to the way in which that risk should be managed, whether by continuing detention or close supervision within the community.

Conclusion on the criteria under s 7(3)

43 Despite my rejection of the results of the STATIC-99 test, I am nevertheless satisfied by other acceptable and cogent evidence, namely of Dr Tanney and Dr Hall, the opinions and tests used by Dr Dear, and the factors I have outlined under s 7(3), that the respondent is a serious danger to the community and that there is an unacceptable risk that if he is not subject to some form of order he will commit a serious sexual offence.

44 At the commencement of the proceedings counsel for the applicant said (TS 41 - 42):

"STONE, MR: ... The application today is for orders in terms of section 17 of the Dangerous Sexual Offenders Act 2006. Before we perhaps embark upon the full hearing, I wonder whether I could raise a couple of preliminary matters to perhaps narrow the issues, so to speak.

Firstly, your Honour would be aware from the papers that the respondent put forward two proposals for accommodation and they have been deemed unsuitable and at this stage there appears to be no proposal being put forward by the respondent as to where he would reside, whether it be in a rural setting or in the metropolitan area. I raise that because that impacts upon the type of orders and conditions that would be imposed if your Honour were minded to order a supervision order within the community.

In relation to the treatment programs that are available and that are being recommended for Mr Williams, I was informed this morning, after discussion with Ms Capel - she is the senior clinical intervention officer and her report is towards the back of the first book. She has taken some advice from the people that she works with in the corrective services and their advice is along the lines that at present there are no treatment programs suitable for Mr Williams in a rural area, so there's none whatsoever.

In a custodial setting, she advises, there are intensive treatment programs that are suitable for him. The indigenous sex offender treatment program is one of them and there's a substance abuse program. However she advises that the programs that were available in Bunbury are now fully booked up but there may be programs in other custodial settings, but the Bunbury one is fully booked up.

Insofar as the metropolitan area is concerned, she advises that the treatment programs available there are what she describes as of low intensity and not suitable for someone such as Mr Williams. He would need personalised, individualised counselling insofar as the treatment programs were he to embark upon them insofar as they are concerned.

The difficulty that she raises - and I suppose it's there in the background of everything - is that we have this new legislation in place but there's a lack of resources sometimes to back up and I just thought I would raise those matters with your Honour because at the end of the day the objects of the legislation and what is being sought in terms of section 17 - one is concerned with the community's interests and the community's protection and also the needs of the person to be released.

It seems that his accommodation proposals impact on the treatment programs and also, to a large extent, on what each of the various psychiatrists that we were planning to call have to say because it seems at this stage that they would be talking or giving evidence in a vacuum, so to speak, in terms of where his setting is, where he is to be placed and what sort of programs there are."

45 Dr Tanney did not discuss treatment in his evidence-in-chief or report. In the course of cross-examination, the following interchange occurred (TS 51 - 54):

"VELTMAN MS: What treatment would you propose?---I must say I wasn't asked, your Honour, to provide that advice in my report. We were simply asked to provide an assessment of risk and a comment on any programs that were proposed for him I am aware that programs have been proposed for him. Either of the programs that were proposed I think would have been appropriate involving an ongoing addressing of the sexual offender treatment issues, and more so I think the opportunity to be involved in rehabilitation, counselling for substance abuse, for example, and moving on from dependency program would have been valuable.

...

Okay. I will ask you though in terms of what you feel would be relevant treatment for Mr Williams. Were an order to be made, what would you think would be appropriate?---Your Honour, I'm simply unsure if - I'm quite prepared to answer that question but it wasn't what I was asked to do by the court, nor was involved in. I do provide treatment services like this at some level in the community and do advise with respect to them as a person who works for the Department of Corrective Services, so I'm prepared to answer it."

46 Although Dr Tanney did venture his views about treatment, in the circumstances I pay only limited regard to those views. Treatment was something beyond what he was asked and his views then are necessarily not considered views reached after reflection.

47 Dr Tanney did conclude that a supervision order would not afford sufficient protection. However, this conclusion was made against a background where no proper supervision had been proposed due to lack of resources.

48 Dr Hall did discuss management of the respondent in his report and amplified his views when giving evidence. Although it is lengthy, I set out a portion of his evidence because it encapsulates the issues. Dr Hall said (TS 70 - 78):

"I may be able to add something more from a practical perspective, your Honour, and that is that the acceptability could be seen as related to the manageability and the circumstances with Mr Williams as they are at present are that there are certain risk factors which are, as yet, unaddressed for various reasons which, in their current state of being unaddressed, may be not managed at present and, therefore, the risk is there. If those risk factors were managed, and I believe that they are manageable, then it's possible that the risk could be more acceptable if things were being done to manage the risk factors because then that would improve the chances that he would not reoffend.

...

VELTMAN MS: If we turn now to the kind of treatment that you believe would assist Mr Williams - because it seems clear that you do believe treatment would assist Mr Williams, yes?---Just to draw a distinction between treatment being medical treatment or a therapeutic intervention as opposed to management of various factors in his life, I think the risk factors which need intervention are his tendency to use alcohol as a coping mechanism and also therefore his coping skills generally. His placement in the community would need to be such that it was not placing him in undue close contact with children but also that wasn't a stressful environment for Mr Williams. I know that has presented a problem because he has expressed a preference to live in a rural area, but that would of course result in difficulties with supervision, but a metropolitan setting may be stressful for him and impact on his ability to cope. The other major issue is, of course, the as yet unaddressed sexual deviancy, or at least not satisfactorily addressed at this stage. Other issues are that he is not a particularly resourceful person, in my experience with him. Having said that, I feel that the sort of approach that needs to be taken with Mr Williams is that it would be ideal before his release if he were able to undertake the indigenous sex offender treatment program. However, his fears about his safety are very difficult for him to overcome at the moment and he has found it very difficult to be reassured about that. It may be that there is something the Department of Corrective Services can offer or can help with him in terms of his concerns about that. The other thing is, due to what I find to be his lack of resourcefulness, I think that he requires the assistance of a case manager, a corrections officer, somebody that would be able to look at suitable accommodation for him, assist with liaising with family. I understand from Mr Williams that his own attempts to communicate with family have been difficult and of late they have not been accepting his phone calls. I also understand that he received a letter from Outcare that told him that as far as they were concerned he was still a remand prison and couldn't help him and he ran into a brick wall there and I think that Mr Williams wasn't quite sure how to overcome those hurdles. I think with the assistance of a case manager or corrections officer some of those practical barriers may be more negotiable. Case management might also make it more possible that he could be assigned a mentor in the community, somebody that would be a contact person, a support person, with preferably an indigenous background or somebody with a cultural awareness and sensitivity. Mr Williams has indicated his willingness to undertake whatever substance abuse rehabilitation program may be imposed and lastly Mr Williams did suggest that as an option in the event that he was unable to avail himself of a sex offender treatment program or was unable to be kept out of satisfactory range of children, then he would entertain on a voluntary basis undergoing some hormonal treatment to provide some degree of reassurance.

...

And what are your feelings about a supervision order for Mr Williams?---It comes back to my original point and that is that his risk factors at the moment are not adequately managed and so I believe that that would set Mr Williams up for failure at the present time and further intervention should be achieved first.

Is there any way that you could see this intervention occurring in the community?---As with all sort of, if you like, discharge planning and planning for release into the community, the process of managing this wouldn't be able to begin once he was released into the community. It would need to begin prior to release into the community.

Have you got any idea of how long prior this would need to be?---Unfortunately, no, I can't offer any comment on that. That would depend entirely on the resources and processes within the Department of Corrective Services.

One of the things that Dr Tanney considered at the end of his evidence was provision of assistance through Mental Health Services. Is there anything that you think about that or you could add to that?---I don't believe that Mr Williams would qualify for treatment within the Mental Health Services at this stage.

...

... Sure. My first suggestion is that any community supervision be highly structured. Unfortunately I'm not in a position to comment as to how often, how many times per week or where he should report and so forth. That's a matter for the Department of Corrective Services and the court. I believe that he will benefit from participation in a community based sex offender treatment program, whether group based or individual counselling. I don't have the depth of knowledge of the services within the Department of Corrective Services to know whether such a service exists or whether there's sufficient numbers for an intake at this time. He may benefit from referral to a community based anger management and substance program such as - I believe there may be one available through the offender services branch of the Department of Corrective services. The last comment relates really to his fear of entering an institutional sex offender treatment program and I have said here that there has been some acceptance of responsibility and an expression of remorse for his offences and that his refusal to enter a treatment program is based on the potential threat of harm and that in the event that a supervision order was considered, given the challenges that Mr Williams may face in meeting strict reporting conditions or avoiding proximity to children, he should be provided with the opportunity to receive (indistinct) consent - hormonal, anti-libidinal medications which is the point I was making earlier.

...

... To answer your earlier question, if I may, additional conditions that should be considered - or not conditions but circumstances from a psychiatrist's point of view really relate to what I was talking about earlier, and that is that he should be assigned a case manager and he should be assisted with accommodation. He should be - he should have a mentor in the community, who is culturally sensitive and appropriate, who can assist him with stress management and be a contact person - assist him with avoiding alcohol to deal with stress and so forth.

Now, you heard what Dr Tanney had to say about naltrexone and urinalysis. What is your opinion on the value of urinalysis and/or naltrexone use for substance abuse - alcohol abuse, in particular?---I'm not an expert in substance abuse rehabilitation. So what I can offer the court is limited in that respect but I agree with what Dr Tanney said."

49 Ms Capel, a Senior Clinical Intervention Officer, gave evidence as follows (TS 84 - 88):

"STONE MR: ... Dealing with Mr Williams, can you tell the court what treatment programs are available in a rural environment if that was where he sought to be placed in due course?---Okay. When we look at treatment programs there's two areas we would have to look at. We would have to look at custodial services and we would have to look at community based services. If we're talking in a rural area, for community based services I have been instructed by my manager that there are currently no resources available for the provision of those services within the community. Services are provided within Bunbury Regional Prison. However, a program that was due to run has all the people that are going to be on it. So that's where the services would be in a rural area.

I take it the treatment programs are the indigenous sex offender treatment program. Is that ?---One of the programs that is run is the indigenous sex offender program. That's run at Greenough. It's currently not running at the moment due to a lack of resources. The other programs that we do run within the custodial environment are a medium intensity sex offender program which is run at Karnet and Bunbury and we also have an intensive sex offender program which is run at Bunbury and also Casuarina.

McKECHNIE J: But they are the ones that are booked out?---Sorry, your Honour?

Is that the one that's booked out, in Bunbury?---The one in Bunbury was, yes. It's an intensive sex offender program. It's due to start very soon. They already have the numbers for the program. There is one due to start in Casuarina in May and they haven't selected the participants for that yet.

STONE, MR: The other program is a substance abuse program?---Yes.

Again, I take it that's available in a custodial setting but not in a rural environment. Is that right?---The substance abuse programs that we run are available within custody settings. We don't have any substance abuse programs through our branch run in the community. Community Justice Services also operate programs but I am not familiar with their suite of programs that they have and where they run them, but from my branch which is attached to a prison division we do not have programs in the community.

If Mr Williams were to reside in the metropolitan area what can you tell the court about the availability of the programs that we have mentioned and their suitability to Mr Williams?---In the community in the Perth metro area we run a community based sex offender treatment program. That is actually designed for people of a low to moderate risk that have a lower number of treatment needs. Mr Williams probably would not be suitable for that program. The other provisional services that we could have would be an individually designed counselling program for him and that would have to be based on a comprehensive assessment in consultation with an indigenous programs development officer.

If I can just go back to the low intensity program. You have said it's not suitable for Mr Williams because it deals with the low to moderate risk factor?---Yes, and also the treatment needs.

And the treatment needs. But how often do people participate? On what frequency are they required to turn up?---Those programs run over a duration of about six months and there's one weekly session of three hours' duration. The programs within the prison environment run for longer because they're of a higher intensity.

Are you saying that there isn't within the metropolitan area an equivalent of the intensive program that's run ?---No, because the most need we have would be from the custodial environment because that's where most of the highest risk, highest need sex offenders are placed on custodial orders.

If Mr Williams were to have an individualised, personal treatment program, how would one go about that, from your point of view?---Okay. What we would need to do - we would need to conduct an assessment of Mr Williams. It would probably take a number of weeks to do that. We would have to consult the indigenous programs development officer and that would be based on identifying what Mr Williams' particular needs are and how we could tailor a service to meet those needs so that it's culturally relevant particularly and, as I said, the assessment would probably take a number of week, to do that, and then it would be about how and when we could provide that service.

Do you know whether or not the resources are available at present for such ?---The resources are extremely limited at the moment for individualised services because most of our money goes into providing prison-based programs. I did speak with my manager and she said, "Well, if it was court ordered we would have to provide a service." How long that would be is really something I feel I can't comment on because we don't have - it's not a funded service, so I can't say this is what we operate and this is exactly what we can provide. It would be an individual basis and it would have to be reviewed at certain periods as we went along.

50 Under cross-examination Ms Capel amplified this evidence:

"VELTMAN MS: You said that most of these services are provided in a custodial setting because there's no need in the community or ?---No, I didn't say there was no need in the community - basically that the majority of need was in the custodial environment. I mean, government services are funded to provide particular services and need demands where those services are provided.

So if there were a number of people that had a particular need in the community, then there would be a service provided within the community?---Not necessarily. It would depend on government funding and we're only funded to provide a certain number of services and run certain programs, so that's something that you would have to check with departmental managers in relation to that.

But if you were ordered to, you would provide services?---Look, if we were ordered by the court, we obviously have an obligation to provide a service but that doesn't mean that we would put someone into a program that was not suitable because that would be considered to be counterproductive.

But individual treatment, for instance?---That's probably the only option we would have available to us and that's something that would seriously have to be looked at, as to how that would be implemented and funded.

Do you have any knowledge of substance abuse programs that are available?---Community or custody?

Community?---No, it's not the area where I work in but community justice services have programs. I'm not sure what they would have suitable and there are other community based agencies that run programs but we would be looking at something that would be culturally relevant and was able to provide an intensive level of service. I'm just not familiar with what those programs are in Perth.

So you wouldn't be familiar with the criteria for entry to those either?---No, sorry. I couldn't comment on that.

It seems from what you have been saying that there are these two separate organisations that - there's community justice services and you're from within the prison. Is that right?---Yes. We have a number of different business units within a department. I work with the Department of Corrective Services and I come under the offender services branch and within that branch I come under offender programs. We come under adult custodial division. That's where the funding comes from and that's where we provide our services. Then we have community justice services and they provide, obviously, community supervision of people who are on orders and they also have their own programs division and they provide particular programs.

You were talking about tailor making - the concept of tailor making a service for Mr Williams and you said you felt that it would take a number of weeks for an assessment to occur--Yes.

Would it be possible, do you think, for that to initially occur within the prison setting while accommodation and other requirements were organised and then move that into the community setting?---Look, I think it would be most appropriate for that to occur within a custodial setting. One of the issues that we have if we're looking at delivering any type of program or intervention is that accommodation and community support is essential to the success of these endeavours. So that would be something we would have to seriously look at as to what that actually entails but it probably would be wise to start the assessment from a custodial - the time that he is actually in custody.

...

Are you aware if there are any indigenous peer support officers in the community?---Not in the community. They are all provided within custodial services."

51 The respondent has lived most of his adult life outside the Perth metropolitan area and would, if possible, return to rural Western Australia. The accommodation options which had been explored by him and with him have been deemed to be unsuitable and there is no present proposal as to where he would reside.

52 Dr Dear argued that the respondent would be better managed within the community albeit that supervision would need to be intensive. He noted that the respondent was not able to demonstrate in interviews well-developed competencies in managing highly stressful circumstances and intense emotional distress. He is of the view that although there are a number of risk factors for further sexual offending, these risks are manageable within a comprehensive program of psychological treatment, functional family support and close supervision in the community. The members of Mr Williams' family who would be required to monitor and support him (page 157) would require extensive guidance and support in developing effective protective strategies for children in the family who are likely to interact with Mr Williams. Those children should also have comprehensive training in protective community behaviours.

Conclusion on the evidence called by the applicant

53 Preventative detention is a protective law in the interests of public safety: Fardon v Attorney-General of Queensland [2004] HCA 46 at 217. However, it remains an exceptional case that a person is detained beyond the time fixed at law for their proper punishment. It may be that an intensive form of treatment and counselling to reduce the risk to the community will fail in the respondent's case because he is unable or unwilling to fully participate. However, so far nothing has been seriously tried or proposed that would give any prospect that he would be fit one day to return to the community. It is an inadequate response by the Corrective Services Department to cite lack of resources and that resources would be assigned only if they were Court ordered. If it was an adequate response then the community would be complicit in indefinite preventative detention without prospect of rehabilitation. While the community has every right to protect itself, preventative detention, without prospect of release, is anathema to modern Australian society.

54 The evidence called by the applicant is not sufficiently persuasive for me to find that an order that the offender be detained in custody for an indefinite term for controlled care or treatment is the only order that can be made to ensure the adequate protection of the community. If there was evidence that no supervision order could adequately protect the community, detention may be the only possible order. However, the evidence neither establishes that a supervision program is appropriate nor that a supervision program is inappropriate. The two psychiatrists were not asked to report on a supervision program, although Dr Hall nevertheless considered the matter, and so their answers, while helpful, do not carry, in my mind, sufficient persuasion. In any event, they each conceded that the possibility of intensive supervision might be appropriate.

55 The lamentable fact is that for whatever reason, and the lack of funding must be one strong reason, the Government, represented by the Department of Corrective Services, has made no worthwhile effort at all to investigate the possibility of a supervision order within the community.

56 Although he does not bear the onus, the respondent called Dr Dear. His evidence (TS 98 - 99) was:

"... In Mr Williams' case I believe that a program of psychological therapy, counselling - call it what you like - in the community would need to involve a significant amount of individual therapy.

...

... I see no reason that such a comprehensive psychological therapy would not be effective with Mr Williams. There was nothing in my findings to lead me to regard him as someone who would not respond to treatment. I can add to that that we can never guarantee what the outcome of treatment will be."

57 There is no doubt that such a supervision program would be intensive. As Dr Dear said (TS 100 - 102):

"... Let me first outline the principle upon which I'll give my answer, the principle being that Mr Williams certainly, in my mind, needs more than just a one hour appointment once a week, the reason for that being that the nature of the psychological factors that everyone has identified within the report are such that he needs to come into a therapeutic session, go out into his life, experience some of the stresses and difficulties for a very short period of time before he comes into his next session again. I'm not sure what full time therapy meant. I don't know whether that meant seven days a week, five days a week or whatever, but if it was in the community, it wouldn't be more than five days a week. So already we're talking about being left to his own devices over the weekend, typically speaking. For myself, I would regard him as needing to be seen two or three - I'd say - for myself, if he was referred to me, as a clinician I'd be wanting to see him three times a week, the reason being that the impact of what we're doing in therapy needs to be intensive across his life to begin with. That's in the early stages of therapy. That can be dropped down to weekly sessions at some point - a point measured not so much in time, or at least not a time I can give you now, but more in response to the key dynamic risk factors shifting significantly, so clinical progress - the key risk factors being his capacity to cope in a socially acceptable way with intense emotional distress, and even low levels of emotional distress, and his capacity to do so without falling back into a pattern of drinking. My formulation, if you like, of Mr Williams' psychological risk factors is that that coping difficulty lies at the heart of all the other risk factors, and that's what I mean by a sequence that is tailored to the individual. That's where I would begin. With all of the other things sitting on top of it - the drink refusal training, the support and protective behaviours training for family members, it all needs to be in place in a very intensive way to begin with. Might I say one more thing that has really only just occurred to me as I was speaking? If he were - I would hold that opinion almost regardless of what he were to do in prison.

I don't quite understand what you're saying there?---That in order to manage his risk upon release, that's the nature of the release plan that I believe this man needs.

Yes?---Doing more alcohol programs or abusive training or whatever in prison I don't think would really change that a great deal. He needs to address his problems in the context with which those problems are problematic for him and a risk to the community. I say that on the basis of the information that I got from talking to prison officers who manage him is that he doesn't show the same level of problematic behaviour, or virtually no level of the problematic behaviours that bring him undone in the community and lead him back to drinking. He doesn't show them in the structured environment of a prison. From a psychological point of view he is not learning through imprisonment to change the factors that he needs to change in the community. Aspects of his dynamic risk factors relating to sexual deviance and ways of controlling it, programs that can be done in prison or can be done in the community will be equally effective."

58 Although the respondent does not bear an onus, there are problems with Dr Dear's proposal. Dr Dear proposed a number of conditions on any supervision order and in cross-examination agreed that Condition 1 he proposed is essential:

"Mr Williams should not be permitted to be in the company of a child or children under the age of 16 without the direct line of sight supervision of an adult who is aware of (a) Mr Williams' convictions for sexual offences against children; (b) his sexual attraction to pre-pubescent children and (c) the terms of the supervision order or orders that the Court has imposed on Mr Williams."

59 A supervision order in those or any other terms is quite unsuitable to protect the community. I doubt my ability to make orders of the type I have just set out with other possible conditions suggested by Dr Dear. Under the Dangerous Sexual Offenders Act s 18, after reciting certain standard orders, it is provided:

"(2) The supervision order may contain any other terms that the court thinks appropriate -

(a) to ensure adequate protection of the community; or

(b) for the rehabilitation or care or treatment of the person subject to the order".

60 In the particular circumstances of the respondent, the effect of any supervision order I might contemplate would necessarily place a huge burden and responsibility on adults and children in the respondent's vicinity. I do not think that Parliament intended such a wide power; that is, a power to pass on to others, who are not party to these proceedings, the burden of protecting the community from the respondent. Even if that were Parliament's intention in a broad sense, I do not consider such an order would be at all appropriate in this case.

61 I am not satisfied that the community would be adequately protected by a supervision order.

62 The applicant has satisfied me that the respondent is a serious danger to the community but has failed to satisfy me that a detention order should be made in the light of the lack of evidence that a supervision order - a less restrictive option - would be a better order to adequately protect the community. Dr Dear's evidence, which is a reasonable possibility, is that some form of supervision order may ultimately provide for the safety of the community better than a detention order.

63 No real work at all has been done to explore whether a supervision order is feasible and would adequately protect the community and, on the evidence before me, I cannot be satisfied that a supervision order is appropriate.

64 On these applications, the Court is not exercising a discretion analogous to that exercised by the Prisoners' Review Board.

65 Rather, the Court exercises jurisdiction to determine a matter in controversy between parties on the basis of evidence proved to a particular standard of proof. The applicant carries the obligation to prove its case that a respondent is a serious danger to the community and that to ensure the protection of the community a particular order should be made.

66 While the applicant has discharged its obligation and established that the respondent is a serious danger to the community, the evidence falls well short of establishing what order should be made in consequence to ensure the protection of the community.

67 The result must be that the application is dismissed.