DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- AMT [No 3] [2012] WASC 485 (9 November 2012)

3 McKechnie J's reasons are in [2010] WASC 58. The first annual review, as provided for by the Dangerous Sexual Offenders Act, of your detention under the continuing detention order was heard before EM Heenan J of this court on 28 July 2011 and 19 August 2011. The occurrence of the annual review hearing at that time followed a number of circumstances it is not necessary for me to detail but which EM Heenan J details in his reasons.

4 That review was pursuant to an application by the Director of Public Prosecutions for Western Australia (the DPP) pursuant to the Dangerous Sexual Offenders Act, s 29(2)(a). For the reasons given in Director of Public Prosecutions (WA) v AMT [No 2] [2011] WASC 296, his Honour made under s 33(2)(a) an order expressly declining to rescind the continuing detention order.

5 This, the second annual review, is likewise an application under s 29, but in this case under s 29(2)(b), by the DPP.

6 In the remainder of these reasons, which are fairly brief, I will review the statutory framework for this review. Then I will apply the framework to the evidence before me. The final section is my recital of the order to be made.

7 The statutory framework is to be given first by reference to the Dangerous Sexual Offenders Act, s 33(1), which reads as follows:

When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.

8 A continuing detention order for the purpose of the proceeding before me is an 'order that the offender be detained in custody for an indefinite term for control, care, or treatment': Dangerous Sexual Offenders Act, s 17(1)(a).

9 The phrase 'serious danger to the community' has its meaning given by the Dangerous Sexual Offenders Act, s 7. See s 3(1), 'serious danger to the community'. Section 7(1) says:

Before the court dealing with an application under this Act may find that a person is a serious danger [or reaches the conclusion the person is not a serious danger to the community or fails to reach that conclusion] to the community, the court has to be satisfied that there is an unacceptable 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.

10 The term 'serious sexual offence' in its turn is defined in the Evidence Act 1906 (WA), s 106A. See Dangerous Sexual Offenders Act, s 3(1), 'serious sexual offence'.

11 The court in deciding whether a person is a serious danger to the community must have regard to the matters in s 7(3)(a) (j). I note in particular in relation to those matters factors (h), which is 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; and (j), any relevant matter.

12 Section 7(3)(h), it seems to me, directs me or is capable of directing me to matters in medical reports or their like which I will reach in a moment. Section 7(3)(j) means, it seems to me, that I can take account of the position or attitude of the person in respect of whom the continuing supervision order is made.

13 In this case, you through your counsel did not take any issue with the medical reports or their like that are before me and that matter, it seems to me, is a relevant matter that I can take into account in making my determinations.

14 It will be evident from all of the statutory provisions, as I explained to counsel and counsel did not take issue with, that there are indeed two determinations I must make today. The determinations are these. The first is what might be called a threshold determination. This is a threshold determination whether you, as the person subject to the continuing detention order, remain a serious danger to the community. If I am unable to make such a finding, then I must rescind the order.

15 The second determination, which only falls to be made if the first determination is that the threshold requirement is met, is whether I should either expressly decline to rescind the continuing detention order in this case, or rescind the order and make an order that, at all times during the period stated in the order when the person is not in custody, the person be subject to conditions that the court considers appropriate and states in the order. That is to say it is appropriate in the language of the legislation in s 17(1)(b), which is echoed in s 33(2)(b), that a supervision order be made.

16 In making my determinations in respect of those two questions I must note that proceedings under the Dangerous Sexual Offenders Act are criminal proceedings for all purposes: see s 40. This, however, does not mean the standard of proof that I should stipulate for is proof beyond a reasonable doubt. That standard of proof is for the purpose of the determination whether or not AMT is a serious danger to the community given by s 7(2). That standard requires that the court be satisfied by 'acceptable and cogent evidence' to a 'high degree of probability'. That standard is 'more than the civil standard' (of balance of probabilities) but 'less than the criminal standard' (of beyond a reasonable doubt): Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [34] (Steytler P & Buss JA).

17 Further, the ordinary rules of evidence apply in proceedings like these, subject to a modification. This is the effect of s 42(3) of the Dangerous Sexual Offenders Act read with s 42(4). The modifications include - and here I quote from s 42(4)(b):

[A]nything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.

18 It is in this case the situation that there is a book of material that was provided to me for the purposes of this hearing and no objection was taken to the acceptance of that book of material as evidence in these hearings. That book of material was received into evidence as exhibit 1, book of material for the purpose of the second annual review of detention dated 2 November 2012.

19 In particular there were two reports to which reference was made by counsel for the applicant, the DPP, without objection from your counsel and I therefore consider I am entitled to receive as expert evidence duly admissible. This is the psychiatric report by Dr Hall dated 24 October 2012, item number 9 and therefore exhibit 1.9 in the table of contents to exhibit 1, and the report by R Bell, clinical psychologist, Department of Corrective Services, dated 23 October 2012, item 10 in that exhibit. In particular I was directed by counsel for the applicant without objection from your counsel to material from those reports.

20 I turn then to apply the statutory framework as I indicated, using the evidentiary material that I have referred to.

21 As to the first question, a serious danger to the community, I consider there is a sufficient evidentiary foundation for a finding that you continue to be such a serious danger, in the report of Dr Hall in exhibit 1, exhibit 1.9, particularly at page 14 in the last paragraph, read with pages 13 14 setting the foundation for the conclusion, expressed at page 14 in the last paragraph, having to do with the risk of offending; as well as a reference to another report in exhibit 1, also referred to without objection in the proceedings before me, being a report of Dr Kate Smith, clinical psychologist, dated 17 October 2011, exhibit 1.2 before me.

22 So far as the second determination I must make, having seen that the threshold requirement has been met in accordance with the standard of proof that I have described, it seems to me that a continuation of the continuing detention order is called for here in view of the material in exhibit 1.9, Dr Hall's report, at page 44 in the book of material, page 15 from the report, referring particularly to the need for continuing interchange with the psychological team that is referred to there, in the context of a consideration of your movement to a minimum security facility closer to Perth. Your counsel particularly referred to the increase in the intensity of interaction with the psychological team that such a transfer would apparently make possible.

23 At the same time I was referred to the report of Mr Bell, exhibit 1.10, in connection with the present question - that is to say, the continuation or otherwise of the continuing detention order - particularly at pages 47 48 of the book of material, read with the plan referred to at pages 48 49, and the conclusion in the Bell report, at page 49, having to do with matters of the development of independent living skills and of the development of skills in respect of management by you of the conditions which might lead to or increase the risk of offending.

24 On the basis of those materials that I have referred to, I am able to answer the two questions or resolve the two issues that I indicated previously in favour of the conclusions which I should now repeat in the language of the legislation. First, that you remain a serious danger to the community and, secondly, that I should expressly decline to rescind the continuing detention order.

25 That conclusion would then lead me to make the order that was handed up to me by counsel for the applicant, the DPP, an order not objected to by your counsel. I should rehearse the terms of the order and then I should say a little more about matters your counsel addressed to me.

Upon the application of the applicant dated 23 August 2012 and upon hearing Ms A J Burrows, counsel for the applicant, and Ms M R Barone, counsel for the respondent, it is ordered and declared that the court having found, pursuant to s 33(2) and s 7 of the Dangerous Sexual Offenders Act 2006, that the respondent remains a serious danger to the community, the court expressly declines to rescind the continuing detention order made on 9 February 2010.

27 In the ordinary course there would then fall for future consideration by this court a further review, what might be called the third annual review, as provided for in the Dangerous Sexual Offenders Act, s 29(2)(b).

28 However, and here I get to matters raised with me by your counsel, there is the possibility for a person who is subject to a continuing detention order, with the leave of the court, to apply to this court for the person's detention under the order to be reviewed, what is referred to by your counsel as an extraordinary or special review, a review out of the annual review sequence that I have referred to.

29 However, s 30(2) says that before granting the leave, the court must be satisfied that there are exceptional circumstances that relate to the person. Ms Barone indicated, perfectly appropriately in the setting of a hearing such as this, that she has instructions and indications from you that you are likely to seek such a special or extraordinary review, and that you have accepted of course that you would need to make out exceptional circumstances for leave for that review to be granted.

30 A number of matters were referred to by Ms Barone that I do not need to rehearse in these reasons but will appear in the transcript of the hearing before me today. For my purposes, I should indicate that the reports of Dr Hall and Mr Bell that I have referred to, in connection with the report of Dr Smith that I have also referred to, as well as the document of Dr Caple, have indicated to me two matters which I believe underlay the remarks Ms Barone made to me.

31 The first of these is the challenge you face, identified in these reports, to develop an appreciation of the conditions within yourself that have the potential to lead to future offending, an identification that will be difficult for you to fully come to in view of all the circumstances referred to in those reports, particularly the condition, the Pervasive Development Disorder (PDD) condition or Asperger's as it is referred to, and, secondly, and perhaps more importantly, the development of programs or arrangements or strategies or systems for you yourself to manage those factors, such that the risk that they will lead to offending is managed down substantially to the point where a court is able to make an order for continuing supervision in the community, rather than continuing detention.

32 It was not put to me, as I understood Ms Barone's submissions, that there can be equivalent confidence arrived at that the serious danger to the community will disappear, although that of course would be a highly desirable outcome. However, Ms Barone signalled, it seems to me, with some reason for optimism in the reports before me - but I express it no higher than that - that a future application might - and I stress 'might' - cause a court to conclude that supervision, rather than detention, is the appropriate arrangement for you.