BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Custodial sentence has been served - Application for review of continuing detention order - Assessment of risk of further sexual offending - Whether respondent continues to be a serious danger to the community - Evidence that offender is unwilling to engage in treatment programmes to address risk - Availability of suitable accommodation and programmes in regional locations - Community supervision order unsuitable for management at current level of risk of reoffending - Finding that continuing detention order should be continued until further review

Dangerous Sexual Offenders Act 2006 (WA), s 28, s 29, s 31, s 33(2)

Application for review heard and determination made that continuing detention order continue

1 The Director of Public Prosecutions has applied for a review, pursuant to certain provisions of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act), in respect of the respondent, Dexter Charles Williams.

2 The subject application is dated 22 August 2008 and is in these terms:

An order that the respondent's detention under the continuing detention order made by his Honour McKechnie J on 5 October 2007 be reviewed as soon as practicable after 5 October 2008, pursuant to section 29 and section 31 of the Dangerous Sexual Offenders Act 2006.

3 The background to the matter is that the respondent was required to serve terms amounting to 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. He was due for unsupervised release into the community on 10 July 2006.

4 As appears from the decision of Blaxell J in Director of Public Prosecutions v Williams [2006] WASC 140, an interim order was made, pursuant to the provisions of the DSO Act, whereby the respondent was to continue to be detained in custody from the expiration of his sentence until further orders were made.

5 On 26 April 2007 McKechnie J found that the respondent was a danger to the community but dismissed an application for a detention order or a supervision order due to a certain perceived lack of particularity in the evidence before him. However, on 22 August 2007 the court of Appeal allowed an appeal by the DPP and remitted the matter back to McKechnie J for further determination and for further evidence to be adduced.

6 On 5 October 2007, McKechnie J placed the respondent on a detention order. It is that detention order which is the subject of the application for review before me that I mentioned a moment ago.

7 The effect of the review provisions was that in due course, on 29 August 2008, the matter came before Murray J in relation to the annual review of the subject detention order and the related process.

8 Programming orders were made for examination and filing of reports and submissions. The department undertook to provide information to assist the court with respect to the matters in issue. The respondent was ordered to remain in custody until the annual review on 16 December 2008.

9 Section 28 of the DSO Act provides that the purpose of pt III of the Act is to ensure that a person's detention under a continuing detention order is regularly reviewed.

10 By s 29 of the Act, while a person is subject to a continuing detention order, the DPP must apply to the Supreme Court for the person's detention under the order to be reviewed as soon as practicable after the end of a period of one year commencing when the person is first in custody, on a day on which the person would not have been in custody had the order not been made.

11 By s 31, after an application is made, the court has to give directions for the hearing of the application. By s 32, the chief executive officer must arrange for a person to be examined for the purpose of varying reports to be used on a review. By s 33(1), when the court reviews a person's detention, the court must rescind the order if it does not find that the person subject to the order remains a serious danger.

12 However, by s 33(2), the court may, if it finds that the person subject to the order remains a serious danger to the community, either expressly decline to rescind the order or rescind the order and make an order subject to conditions that the court considers appropriate. The paramount consideration is to be the need to ensure adequate protection of the community.

13 It is pursuant to these provisions that the matter has come before the court.

14 The evidentiary materials include a book of material for the purpose of the first annual review of detention dated 3 December 2008, which was admitted by consent and has been marked as exhibit 1.

15 The subject book contains recent letters from the respondent concerning his current imprisonment at the Albany Regional Prison. It includes also a treatment update report dated 22 August 2008, a psychiatric report by Dr B Tanney, a consultant forensic psychiatrist, dated 2 December 2008, and a community justice services assessment report by G Bowen, senior community corrections officer, dated 2 December 2008.

16 When I review the previous rulings of the Supreme Court concerning the respondent and the book of evidentiary material, I note that in his ruling of 5 October 2007 McKechnie J indicated at that time that he was certainly not satisfied that the community would be properly protected if he made a supervision order, even one as restrictive as that proposed by Dr Deere.

17 His Honour observed that the respondent was not yet ready to fully engage and participate in the sort of intensive programs that would be required of him for eventual release into the community.

18 In the treatment update report dated 22 August 2008, the relevant officers of the Department of Corrective Services reported that the respondent had not actively engaged in any treatment interventions during his period of detention.

19 They noted that he was offered individual intervention sessions by the DSO psychologist but was ambivalent about engaging and declined further attempts to engage. He failed to acknowledge his problematic alcohol issues. In the assessment report dated 2 December 2008 the author of the report visited the respondent at Albany Regional Prison on 21 October 2008 to discuss his release plan.

20 The officers of the Department of Corrective Services concluded that the respondent had not been able to propose any accommodation beyond places that had already been deemed unsuitable. It is said that he had no desire to engage in any form of programmatic intervention to address his offending behaviour. He failed to avail himself of Alcoholics Anonymous meetings in the prison. The report concluded in this way:

Based upon Mr Williams' lack of viable accommodation, unsuitability for Outcare services and lack of desire to engage in programmatic interventions, he appears unsuitable for release to community at this stage.

21 It appears from the evidentiary materials that Dr Tanney considers that the respondent remains a serious danger to the community, for there is an unacceptable risk of further sexual offending. It appears from the report that Dr Tanney reviewed the respondent personally at Hakea Prison on 13 November 2008. He was of the opinion that a further period of detention is required to afford suitable protection for the community from an ongoing unacceptable risk of sexual re-offending.

22 Dr Tanney noted that the respondent declined the opportunity to be returned to a prison in Perth for treatment interventions and has not actively engaged in any at the Albany Regional Prison, nor has he utilised the AA programme for support. He appeared to be marking time. His passive cooperation was evident but active cooperation towards changing risk factors was not evident.

23 Dr Tanney noted that, of the ten dynamic risk factors of concern identified in Dr Tanney's assessment of October 2006, seven showed no change or progress, three evidenced deterioration and one additional risk factor has been identified as worsening. The respondent's attitude is marked by denial and avoidance.

24 Dr Tanney observed that continuing detention affords the best possibility of making expert resources available and the time to allow the assessment or treatment readiness work to be undertaken without competing influences. Dr Tanney said that there seems to be no logic that can support the management of his current level of risk through a community supervision order.

25 At this point in time Dr Tanney believes that a community environment would overwhelm the respondent's limited coping skills and lead to a cycle of further failure and avoidance. The summary to Dr Tanney's report is in these terms:

(1) Mr Williams remains a serious danger to the community, for there is an unacceptable risk of further sexual reoffending;

(2) Of potential dispositions afforded under the legislation, I am of the opinion that a further period of detention is required to afford suitable protection for the community from this ongoing unacceptable risk of sexual reoffending;

(3) I am further of the opinion that Mr Williams should be made formally aware of the need for him to meaningfully and actively cooperate with a defined and limited number of program activities during the period before the next annual review under the legislation;

(4) DCS and DSO support resources should be expected to prioritise the access of Mr Williams to these limited program needs, including the facilitation of inter-institutional transfers as needed.

26 The materials before me include also the outline of submissions dated 9 December 2008, filed and served on behalf of counsel for the respondent.

27 It appears from these submissions that the respondent has instructed that he does not wish to challenge the application of the DPP. He does not admit the matters outlined in the reports or in the applicant's submissions, which reflect some of the points made earlier, but reserves the right to challenge submissions in the future. This was confirmed by counsel at the hearing which was attended by the respondent. Counsel noted in the course of her address that some of the alleged failure to progress may be due to the respondent not fully grasping the basis upon which he is being detained.

28 I must note also for the sake of completeness that, in the course of my exchanges with the respondent at the hearing, he indicated some dissatisfaction with the availability of the courses or the form of intervention which is the subject of the reports mentioned earlier. He stressed that there was an absence of facilitation. He indicated that it is his wish to participate in programmes if they be available on a basis satisfactory to him.

29 The respondent's stance might be thought to give rise to a contested issue of sorts. However, even if the matter be regarded in that way, I have to say that in the end I am inclined to give weight to the evidentiary materials relied upon by the applicant for the order, as the situation and circumstances of the respondent do appear to have been thoroughly considered by people with experience in this area. I give weight especially to the report of Dr Tanney.

30 I am satisfied by the evidence presented by and on behalf of the DPP that the position contended for by Dr Tanney has been substantiated. However, that being said, I would strongly urge that very careful consideration be given to everything said by the respondent on his own behalf in the course of the exchanges at this morning's hearing, because it is most important, as counsel for the DPP himself recognised, that there must be a continuing attempt on all sides to have progress made in this matter. There is a need to avert the possibility of an institutionalisation which reaches a point which is beyond remedy.

31 It is against this background that I come finally to the conclusion that the available evidence does establish that the respondent remains a serious danger to the community, in that there continues to be an unacceptable risk that, if he were not subject to a continuing detention order, he may commit a serious sexual offence.

32 The alternative of a supervision order is precluded, as there have been very limited or no treatment gains to date. I am of the view that the evidence before me weighs decisively against release to the community under a supervision order at this stage.

33 Accordingly, I am of the view that the court must decline to rescind the continuing detention order, which means that the detention will continue. However, the effect of the statutory provisions is that the process of review required by those provisions will, of course, be ongoing.