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[2016] WASC 2
General information, not legal advice.
Supreme Court of WA
2016-01-04
Fiannaca J
Original judgment source is linked above.
1 This is an annual review pursuant to s 29 and s 31 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) of the respondent's detention under a continuing detention order. Although the respondent was first declared to be a dangerous sex offender on 23 April 2009, his current detention is pursuant to an order made by Commissioner Sleight under s 23 of the Act on 25 January 2012, after the respondent breached a supervision order. This is the third annual review of that detention.
2 The matter was heard on 11 November 2015. At the conclusion of the hearing I made orders expressly declining to rescind the continuing detention order and setting the date for the next annual review. I provided brief reasons and said I would provide full reasons in due course. Having arrived at the decision that I would decline to rescind the continuing detention order, I considered it appropriate to make the orders immediately so as not to extend unnecessarily the period before the respondent's next annual review.
4 It is not in issue that the respondent remains a serious danger to the community for the purposes of the Act. The issue is whether a supervision order ought to be made or whether I should decline to rescind the current detention order.
5 The respondent seeks release under a supervision order. The Director of Public Prosecutions (DPP) submits that, on the available evidence, the protection of the community requires that the respondent continue to be detained in custody for an indefinite term. On the evidence presented at the hearing, I am satisfied that the respondent continues to pose a high risk of committing a serious sexual offence if he were released. The risk is particularly serious in respect of indigenous women who may come into contact with the respondent. The evidence establishes that there has been no meaningful improvement, since the last annual review, in the respondent's insights and his capacity to be managed in the community, and I am satisfied that his risk of committing a serious sexual offence cannot be adequately managed for the protection of the community by a supervision order. I have concluded, therefore, that I should decline to rescind the continuing detention order.
6 The relevant history of this matter is set out in a series of decisions: The State of Western Australia v Dinah [2009] WASC 123; Director of Public Prosecutions (WA) v Dinah [No 2] [2010] WASC 112; Director of Public Prosecutions (WA) v Dinah [No 3] [2011] WASC 130; Director of Public Prosecutions (WA) v Dinah [No 4] [2011] WASC 278; Director of Public Prosecutions (WA) v Dinah [No 5] [2012] WASC 29; Director of Public Prosecutions (WA) v Dinah [No 6] [2013] WASC 403; and Director of Public Prosecutions (WA) v Dinah [No 7] [2014] WASC 112.
7 That history, leading up to the annual review conducted by her Honour in 2013, is most helpfully summarised by Jenkins J in Director of Public Prosecutions (WA) v Dinah [No 6] [4] [18]. The following is a brief outline.
8 The respondent was the subject of an application under the Act for the first time in 2009, after serving a term of 9 years' imprisonment for sexual penetration without consent, against a background of previous sexual offending. At that time McKechnie J found the respondent to be a serious danger to the community and ordered that he be detained in custody for an indefinite term pursuant to s 17(1)(a) of the Act. In making that order, his Honour relied in particular on the following matters:
9 At the first annual review in April 2010, McKechnie J expressly declined to rescind the continuing detention order. The respondent had commenced an Intensive Sex Offender Treatment Programme (ISOTP), but had not completed it.
10 At the second annual review in May 2011, Commissioner Sleight rescinded the detention order and made a supervision order, a decision that was supported by the DPP and the respondent. The evidence before Commissioner Sleight supported the conclusion that the respondent had made some progress on the ISOTP and that further progress was likely to be made by the respondent being managed under a supervision order. There was perceived to be a risk in continuing detention that the respondent would deteriorate and become institutionalised. Commissioner Sleight was satisfied that conditional release on a supervision order for five years would provide adequate protection of the community.
11 The respondent subsequently breached his supervision order by using cannabis and alcohol. He came to be dealt with again by Commissioner Sleight on 28 September 2011 in the breach proceedings. The evidence before the Commissioner indicated that initially the respondent had performed well on the supervision order, but he had resorted to regular use of cannabis, ruminating on the negative aspects of his life and seeing himself as a victim of a harsh community supervision regime. According to the psychological progress report of Ms Tina Marley, dated 21 September 2011, the respondent had 'concealed information about his relationship' (which I take to be a reference to the breakdown in his relationship with his former partner, towards whom there was assessed to be an increased risk of hostility), provided information of 'dubious truthfulness' and demonstrated 'a tendency to become more hostile with supervision and supports as his risky behaviour escalated': see Director of Public Prosecutions (WA) v Dinah [No 4] [11]. However, Ms Marley was of the view that, while adherence to the conditions of any order was going to present the respondent with significant challenges, at that stage it appeared to her to be too early to determine that the risk posed by him could not be managed. In the event, Commissioner Sleight concluded that the respondent should be released on the same terms as the supervision order of 9 May 2011, but, due to the respondent's regular breaches of that order, his Honour amended the order so that the term of five years would recommence.
12 As a result of further multiple breaches of the order by the respondent, on 25 January 2012 Commissioner Sleight rescinded the supervision order and ordered that the respondent be detained indefinitely. The breaches consisted of the respondent failing to report to his supervising officer, lying about why he had failed to report, consuming alcohol, cutting off the bracelet which was then monitoring his whereabouts, breaching his curfew and failing to continuously reside at his address.
13 Against that background, Jenkins J came to review the continuing detention order on 27 September 2013 and 25 October 2013. Consultant psychiatrist, Dr Salvatore Febbo, prepared a report for that review and gave evidence at the hearing: see Director of Public Prosecutions (WA) v Dinah [No 6] [24] [29]. Dr Febbo noted that the respondent's history suggested considerable minimisation and denial of sexual offending. He also noted that the respondent's offending was clearly linked with alcohol abuse and there was a history of alcohol abuse/dependence, which had emerged as an issue again during the respondent's release on the supervision order. Dr Febbo referred to evidence suggesting the presence of major personality pathology, and expressed the view that factors such as impulsivity and a sense of entitlement facilitated the respondent's offending, particularly when there is further impairment of impulse control and judgment through intoxication. He noted that, while the respondent was able to articulate and had an intellectual understanding of issues such as consent, the relationship between stress and non-compliance, and the impact of alcohol on the risk of reoffending, it is likely that, in the community, he would have considerable difficulty in putting his understanding into practice. However, Dr Febbo favoured release on a supervision order because he did not consider that further time in custody would reduce the respondent's level of risk in the community, and it may actually have the opposite effect by increasing stress and resentment and further substantiating the respondent's view that he had been and was continuing to be unfairly treated.
14 A clinical psychologist, Mr Ryan Bell, also prepared a report for, and gave evidence at, the review conducted by Jenkins J: see Director of Public Prosecutions (WA) v Dinah [No 6] [30] [35]. He referred to treatment programmes that the respondent had undertaken and the individual counselling he received while on the supervision order. He said that the respondent's involvement was marked by defensiveness, minimisation and only a superficial engagement with treating professionals. He described the respondent's participation in the programmes as 'generally poor'. He said that whilst the respondent had a good cognitive understanding of the programme content, he did not demonstrate that understanding during the course of the programmes. Mr Bell did not consider that the respondent would benefit from further treatment in custody. He, too, appeared to favour management of the respondent's risk within the community, suggesting the most appropriate intervention was 'an assertive and negative consequence to noncompliance' with the conditions of a supervision order by rescinding the order and incarcerating the respondent.
15 Jenkins J, while paying due respect to the views expressed by Dr Febbo and Mr Ryan, expressly declined to rescind the continuing detention order, expressing her conclusions as follows:
Unfortunately, after having given this matter much thought I am not of the opinion that a supervision order and the hope I have of its efficacy would adequately protect the community. In coming to this view I have taken into account the following matters:
I have also taken into account Mr Dinah's letter. Various experts have noted that during consultations and when doing courses Mr Dinah often says things which he has learned from previous courses and counselling and which are designed to make him look good. This tendency is also evident in his letter which strings together truisms and well-worn statements of good intent. I do not feel that in light of his past behaviour, I can put significant weight on his statements. In 2009 McKechnie J gave Mr Dinah the benefit of the doubt and said that he did not question Mr Dinah's honesty or good intentions in regard to his future plans. I regret that I am not able to give Mr Dinah the benefit of those assumptions. I strongly suspect that Mr Dinah is prepared to say whatever he thinks is necessary in order for him to be released, whether or not he believes that he can or will be able to comply with the conditions of a supervision order once he is released on it [47] [48].
16 At the annual review conducted on 10 November 2014, McKechnie J received psychiatric evidence from Dr Gosia Wojnarowska, and psychological evidence from Ms Vanessa Rankin, a senior clinical psychologist: Director of Public Prosecutions (WA) v Dinah [No 7]. His Honour summed up the effect of the evidence and his conclusions as follows:
Ms Rankin's opinions at exhibit 11, page 70, paragraphs 24 and 25, are striking in that they suggest that insufficient has changed from Jenkins J's conclusions to justify release on supervision. Dr Wojnarowska largely confirms this both in exhibit 10, at page 62, and her evidence. She does, however, note that:
'Further detention could lead to institutionalisation and the loss of the small gains that the respondent has achieved (page 63).'
This is a very real consideration as it is in everybody's interest that the respondent progresses eventually to the making of a supervision order. However, that has to be tempered by the paramount consideration, which is the adequate protection of the community.
Despite the gains which have been made, some of which remain untested, I consider that the risk to indigenous women in particular who come into contact with the respondent is so great that without further insights on his behalf and further positive improvement, I would decline to rescind the detention order at this time.
Whether this causes the respondent to regress is a matter in the end for him. He may continue to engage with counselling and develop realistic strategies to reduce his risk if his personality traits allow that. If not, he may have to face the prospect of being confined forever, although that is not my decision today [4] [7].
17 His Honour went on to identify the proper context in which he was required to make the decision under s 33, and the consequence of the paramount consideration, in the following terms:
If there was suitable accommodation and the principal purpose of the Dangerous Sexual Offenders Act, was rehabilitation or therapeutic benefit, I would be inclined to make a supervision order. However, that is not the paramount purpose. The paramount consideration is the adequate protection of the community. I am completely unpersuaded that the high risk of sexual offending that the respondent poses can be adequately managed for the protection of the community. He has made insufficient gains in his behavioural changes and insight to justify the step of supervision at this time and I decline to rescind the continuing detention order [19].
18 The present annual review proceeded against that background.
19 The annual review of a continuing detention order is governed by pt 3 of the Act. Section 33 provides:
(1) 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.
(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a) expressly decline to rescind the order; or
(b) 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.
(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
20 In Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [9] [12], I referred to a potential issue that had been discussed in Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 (Corboy J ) and Director of Public Prosecutions (WA) v Yates [No 2] [2015] WASC 201 (Martin CJ) concerning the proper construction of s 33, in particular the status to be accorded findings made in a previous hearing which resulted in the detention order under review. For present purposes the issue is encapsulated in the following question posed by Martin CJ in Yates [No 2]:
[I]s the task of the court conducting a review limited merely to ascertaining whether there has been a change in the offender's circumstances since the order was made and if so, assessing the effect which the change or changes in circumstances have had upon the question of whether the offender remains a serious danger to the community or, if the offender does remain a serious danger to the community, upon the character of the order which must be made to provide adequate protection to the community? [4]
21 As I said in Ugle [No 3], I am inclined to agree with Hall J's analysis of the annual review process in Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] [18], which assumes an affirmative answer to the question posed by Martin CJ in Yates [No 2]. However, as in Ugle [No 3], it is not necessary to resolve that issue in this case. The parties proceeded on the basis that, having regard to the circumstances as revealed by the evidence in the present annual review, I am required to determine whether the justification for the making of a detention order remains, namely the existence at the present time of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. In that context, I respectfully agree with Simmonds J in Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214 [29], that, notwithstanding the terms used in s 17(2) and s 33(2) of the Act are not identical, the similarities between the provisions are such that the principles established in the context of cases concerned with s 17(2) are also applicable to cases concerned with s 33(2). Given the approach adopted in these proceedings, the application of those principles will be in a context that includes the history of previous hearings and determinations. In practical terms, the focus of the inquiry is whether the respondent's circumstances have changed since the last annual review, and whether such change renders a supervision order an adequate means of protecting the community. The overall approach accords with that stipulated in Unwin [No 3].
The respondent's convictions for serious sexual offences
22 Consistently with the approach I have outlined, it is necessary for me to have regard to the facts of the offences of which the respondent was convicted, which were part of the foundation on which he was found to be a dangerous sex offender in 2009. The convictions and facts were outlined succinctly by Jenkins J in Director of Public Prosecutions (WA) v Dinah [No 6]:
Mr Dinah's record of convictions includes the following convictions and penalties for sexual offences. In the following summary I have added very brief details of the offending:
23 At the commencement of the hearing on 11 November 2015, the applicant tendered, without objection, a book of materials dated 4 November 2015 (exhibit 1), the book of materials (dated 4 November 2014) that was tendered at the 2014 annual review (exhibit 2), and the two volumes of the book of materials (dated 8 April 2009) tendered at the Division 2 hearing in 2009 (exhibits 3A and 3B).
24 Exhibits 2, 3A and 3B included the psychiatric and psychological reports relied on in the hearings in which those materials were originally tendered.
25 Exhibit 1 included a psychiatric report of Dr Wojnarowska dated 28 October 2015 (Wojnarowska, 28.10.15), a psychological report of Ms Rankin dated 22 October 2015 (Rankin, 22.10.15) and a 'Community Supervision Assessment' report dated 4 November 2015 of Ms Julie Dabala, Senior Community Corrections Officer with the Department of Corrective Services (Dabala, 4.11.15). It also included an 'Incident Description Report' dated 21 October 2015 from Acacia Prison concerning an incident that was alleged to have occurred on 20 October 2015, in which the respondent is alleged to have made offensive and sexually charged statements to a female nurse who dealt with him at the prison medical centre. In relation to that report, after hearing from the respondent's counsel, I received it on the basis that it was evidence of a particular incident having been reported, which formed the foundation of questioning of the respondent by the psychologist and psychiatrist in respect of that incident, but not as proof of the facts alleged in the report. In the event, the evidence given by Dr Wojnarowska at the hearing on 11 November 2015 was that, in her interview with the respondent, he admitted using the words that were attributed to him in the report, but claimed they had been misinterpreted. In those circumstances, I am entitled to take the contents of the report into account as evidence of what was said to the nurse.
26 Dr Wojnarowska, Ms Rankin and Ms Dabala also gave oral testimony at the hearing before me. Ms Rankin's report and her evidence in court included information that had been provided to her by the respondent's treating psychologist over the last 12 months, Ms Chantelle Place. It is standard practice that psychological evidence in hearings under the Act is given by a psychologist other than the treating psychologist. The reporting psychologist is independent of the therapeutic process. The intention is to avoid any potential damage to the therapeutic relationship between the treating psychologist and the offender, and to ensure the court is provided with an independent opinion that is not clouded by clinical judgment (Rankin, ts 409).
27 The respondent has been seeing Ms Place since January 2014. He engaged in fortnightly sessions with her leading up to the last annual review, but his engagement was, at that time, noted to be superficial. He had demonstrated poor boundaries within the therapeutic relationship and tended to minimise the seriousness of his behaviour, including his offending behaviour (Rankin, 22.10.15 [7]). The reference to 'poor boundaries' concerned inappropriate comments made by the respondent, including the use of a scenario that incorporated Ms Place as a subject to explain the manner in which he would approach a woman in a nightclub, and purporting to explain Aboriginal words of a sexual nature that prisoners might say to her (Rankin, ts 410). Although it would appear that the respondent has not made similar comments 'to that degree' to Ms Place since then, the lastmentioned matter has been considered by Ms Place more recently to have similarities to the incident of 20 October 2015, involving comments made to a female nurse (Rankin, ts 410).
28 The respondent has had six sessions of individual psychological intervention with Ms Place since his last annual review, which have occurred at six weekly intervals. Treatment goals have remained the same, namely analysis of the respondent's previous breaches, his sexual and violent offending, substance misuse, intimate relationships, problem solving and impulsivity, and risk management. In addition, due to the recommendation made at the last annual review, a focus of the first six months was to progress him to the selfcare unit at Acacia Prison (Rankin, 22.10.15 [8]).
29 According to Ms Place, immediately following the last annual review, the respondent's motivation to engage in treatment was poor. He presented as angry and frustrated at the judgment (not to rescind the continuing detention order) and he blamed the outcome on Ms Place's involvement. Nonetheless, he told Ms Place he would continue the therapeutic relationship, but that he did not have any treatment needs in the areas of substance misuse or relationships. As a consequence of the respondent's poor engagement and the requirement for him to progress to selfcare, it was agreed sessions would be held every six weeks. According to Ms Place, this was designed to give him the opportunity to focus on his selfcare application, particularly given that he had not identified any other treatment goals. The respondent's general engagement was still characterised as superficial, and he appeared to be anxious and focused on impression management (Rankin, 22.10.15 [9]).
30 The respondent applied for the selfcare unit on 10 January 2015, but the following day he registered a positive urinalysis test for cannabis, and his application was subsequently denied on 16 January 2015 due to both the positive urinalysis and several negative reports. At a subsequent meeting attended by Ms Place and staff at Acacia Prison who were involved in the respondent's care and management, the respondent was advised of the requirements he had to meet to achieve selfcare placement, namely a three month minimum period of ongoing employment with an absence of negative reports and positive urinalysis tests (Rankin, 22.10.15 [11]).
31 As a step towards achieving those requirements, the respondent moved to the enhanced unit on 28 February 2015 and commenced employment in carpentry. By 15 April 2015 he had failed to attend his workplace on several occasions without excuse, had displayed a belligerent attitude toward staff, and had returned a further positive urinalysis test on 31 March 2015, this time for alcohol. As a consequence, the respondent was removed from the enhanced unit and returned to a standard living unit (Rankin, 22.10.15 [12]).
32 In a subsequent session with Ms Place, the respondent presented as frustrated and blamed his positive urinalysis test on stress, indicating that he had been targeted for testing and had been discriminated against by prison staff. He said he did not intend to re-apply for selfcare, and, as he had done previously (which was perceived by Ms Place to be an avoidance measure), he asked to be transferred to another prison. Ms Place impressed on him the court's expectation that he progress to selfcare, however, after four further incidents of failing to attend his workplace, the respondent was dismissed from his employment in carpentry. He had told Ms Place that he did not like the position because he only received one coffee and cigarette break per day (Rankin, 22.10.15 [12]).
33 At the time of the hearing, the respondent remained in a standard living unit and was employed within the unit as an art room worker. Reports from the unit indicated that, although he has the capacity to be respectful and compliant, he generally presents as a management issue and several negative notes have been recorded against him (Rankin, 22.10.15 [12]).
34 The respondent has continued to minimise his breaches and maintain that he had been punished unfairly. Ms Place has noted that his tendency to take a victim stance, combined with a sense of entitlement, has 'facilitated him blaming the justice system and his status as an Indigenous prisoner for all of his problems' (Rankin, 22.10.15 [13]). He has demonstrated difficulty reflecting on his past mistakes, preferring to focus on the future. This has led Ms Place to conclude that it is unlikely the respondent would shift his stance in relation to his breaches, with the result that this would no longer be a focus of ongoing intervention (Rankin, 22.10.15 [13]). However, as Ms Rankin noted at the hearing:
[I]t's very difficult for us to learn from our past mistakes and to alter our behaviour in a positive way unless we're able to self-reflect on where we've gone wrong before (Rankin, ts 411).
35 The respondent's incapacity or unwillingness to engage in selfreflection on past mistakes would appear to be an obstacle, therefore, to his capacity to be compliant with the conditions that would necessarily be attached to any future supervision order. This is particularly so, given that he continues to have a 'sense of entitlement that he was justified in his behaviour' (Rankin, ts 411).
36 The respondent has also continued to minimise and excuse his past sexual offending. Of particular concern, given the nature of his sexual offending, he has maintained the view that he is able to ascertain sexual interest through the body language displayed by women, rather than specific explicit confirmation from potential partners, and has generally advanced the position that consent is a vaguer concept among the indigenous population, implying that consent could be assumed (Rankin, 22.10.15 [14], [33]). Ms Rankin gave evidence of the respondent's explanation to her in the following terms:
He said to me that it was much easier with an indigenous woman, that he could essentially walk up to her and ask for sex - in slightly cruder terms ... (Rankin, ts 414).
37 As was identified by McKechnie J at the last annual review, the respondent poses a particular risk to indigenous women who come into contact with him. It would appear he has not gained sufficient insight into that risk. His claim to Ms Rankin that he has a 'sixth sense' in relation to his ability to ascertain whether a woman is interested in sexual activity with him exacerbates the concern. In short, as described by Ms Rankin, he continues to present with limited understanding of consent issues.
38 A significant factor in the respondent's previous offending has been his intoxication, caused by his consumption of alcohol. It has been identified as a high risk factor. His positive urinalysis result for alcohol, from samples taken on 31 March 2015, is an obvious concern. In her report Ms Rankin states that, in a session conducted after the positive result, the respondent blamed the result on stress (Rankin, 22.10.15 [12]). However, in her oral testimony she said that the respondent had denied to both Ms Place and to Ms Rankin that he had used alcohol (Rankin, ts 415), and that he claimed he had injected Buprenorphine, which he believed must have been laced with alcohol, without his knowledge. This accords with the reference in Ms Dabala's report to the respondent telling Ms Place that 'his shot of Subutex had been laced with alcohol' (Dabala, 4.11.15, page 3). The respondent's explanation has not been tested. It appears unlikely, but provides little comfort in any event, having regard to the positive test for cannabis in January 2015 and the fact that he has admitted the illicit use of another substance, namely Buprenorphine. He claimed to Ms Dabala that he used that substance (which he referred to as Subutex) as a coping strategy, 'because he was dealing with the loss of his foster mother and the death of a nephew' (Dabala, ts 428).
39 What is of particular importance is the evidence of Ms Rankin that, while on some level the respondent probably recognises that there has been a link between substance use and his offending, 'he maintains the view that that's no longer an issue that he needs to concern himself with, because he believes that he can just abstain' (Rankin, ts 417). That, of course, is completely at odds with his failure to abstain when he was previously released on supervision orders. When asked by Ms Rankin what risk factors he had, he said he did not believe he had any risk factors (Rankin, ts 417). I am satisfied that in respect of this most significant risk factor, the respondent has not made progress since the last annual review.
40 Dr Wojnarowska interviewed the respondent on 25 October 2015. She noted that he did not look well, which was consistent with his account that his health had declined, and he was more subdued overall (Wojnarowska, ts 390).
41 In her report, Dr Wojnarowska noted that the respondent said he 'now takes responsibility' for what had happened in respect of the 'index offence' (Wojnarowska, 28.10.15 [7.1]). The index offence is the offence of which the respondent was convicted on 10 March 2000, having occurred on 9 September 1998 (exhibit 3B, pages 356, 420 422, 459; the date is wrongly identified in Dr Wojnarowska's report as 15 July 1999, but the facts are described correctly). However, in oral testimony, Dr Wojnarowska seemed to indicate that the respondent accepted he had committed sexual offences (which would suggest the broader spectrum of sexual offences of which he has been convicted) and 'he understood it was rape' (Wojnarowska, ts 381). Of course, the previous determinations that the respondent is a dangerous sexual offender have been based on his history of sexual offending, commencing in 1984, as set out above.
42 Ms Rankin said in crossexamination that the acceptance of responsibility identified by Dr Wojnarowska was not something recognised by Ms Place (Rankin, ts 421). However, she noted that the reports prepared for this review demonstrated that the respondent 'reports inconsistently to people' (Rankin, ts 421).
43 Despite the apparent acceptance of responsibility, Dr Wojnarowska reported that the only explanation the respondent could give for the offending was that he was drunk, evidencing 'a continuous lack of insight into his cycle of offending and the risk factors' (Wojnarowska, 28.10.15 [7.1]). Nevertheless, she considered that his preparedness to accept responsibility for offending showed progress in his treatment, although she considers it to be 'a quite early stage of his progress' (Wojnarowska, ts 382). She noted, however, that there had been no shift since last year in the respondent's attitude to his contravention of the previous supervision orders or to his use of alcohol and illicit substances as a coping strategy (Wojnarowska, 28.10.15 [7.2] [7.3]; ts 382 383). His strategy for abstaining from alcohol was simplistic, relying on his diabetes as a disincentive.
44 Dr Wojnarowska placed some significance on the incident that occurred on 20 October 2015, in respect of which the respondent was charged with an offence under the Prisons Act 1981 (WA) and was placed on a 28 day Behavioural Management Plan (see Dabala, 4 November 2015, page 3). He is alleged to have used what Dr Wojnarowska described as 'assaultive and sexually inappropriate language' towards a female nurse (Wojnarowska, 28.10.15 [9.1]). In light of the significance placed on the incident, it is necessary to outline the allegation.
45 The incident occurred when the respondent attended the medical centre at Acacia Prison to receive his medication on the afternoon of 20 October 2015. While being attended to by a female nurse, he told her that she should know the swear words in Aboriginal language in case someone said something to her. He then said she did not need to know. However, a short time later, when the nurse was escorting him out of the medical centre, he turned to her and said, 'I will tell you what a man might say to you ... I want to fuck you up the arse or I want to fuck you.' The nurse felt threatened and was shaken by the incident, particularly as the respondent had told her earlier that he was being released soon (exhibit 1, page 9, 'Incident Description Report').
46 In her report, Dr Wojnarowska outlined the respondent's explanation for the incident as follows:
Mr Dinah's version was not consistent with the incident report. He said that on that day he was 'having a yarn' with some nurses and wanted to 'teach them some aboriginal language' to make them aware of what 'some prisoners may say to them'. He denied that he was sexually attracted to the nurse or that he had sexual fantasies about her. He denied that he wanted to threaten her in any way and said that he was surprised that 'she took it that way' (Wojnarowska, 28.10.15 [9.2]).
47 In oral testimony, Dr Wojnarowska said that she had put to the respondent the specific words reported by the nurse as contained in the Incident Description Report (and as set out above), and that the respondent did not dispute he had used those words; he disputed that he intended them to convey any sexual meaning to the nurse (Wojnarowska, ts 386 387). She elaborated on his explanation as follows:
I asked him whether he had any intention to convey any sexual themes to her, which he completely denied. He indicated it was totally innocent statement that was supposed to assist the nurse rather than to distress her and he appeared to have a quite limited insight to the fact that that kind of language that he used was offensive and distressing (Wojnarowska, ts 386).
48 To the extent that this suggests an acceptance of the respondent's explanation, I would regard it as a somewhat charitable approach. I find it difficult to accept that the respondent did not intend his comments to reflect a sexual attraction to the nurse. The comments had nothing to do with Aboriginal swear words, to which he had referred earlier. They convey the idea that a man would want to have sex with the nurse. However, irrespective of what the respondent intended to convey, the remarks reveal at least a preoccupation with sexual themes. This was identified by Dr Wojnarowska as one of the matters highlighted by the incident, provided one accepts 'the content of his talk was indeed sexual' (Wojnarowska, 28.10.15 [14.2]; ts 386). It tended to detract from the respondent's claim that his libido had decreased significantly in the last 12 months because of his diabetes, which he said had resulted in erectile dysfunction (Wojnarowska, 28.10.15 [14.1]).
49 Dr Wojnarowska also considered that the incident highlights the respondent's inability to control his impulses and his lack of judgment, especially in the context of the upcoming hearing (Wojnarowska, 28.10.15 [14.2]); that is:
He knew that his hearing is not far away and nevertheless he was not able to contain himself and judge the situation appropriately (Wojnarowska, ts 386).
50 Dr Wojnarowska also considered the incident to be relevant to the assessment of the respondent's social deviance, for which he received a high score in the testing for psychopathy (PCLR). So, while he presented as less grandiose than before, which could be the result of declining health, and while any improvement in the social deviance factor could only be tested in the community, the incident shows that he continues to act impulsively and irresponsibly (Wojnarowska, 28.10.15 [17.2]). This would suggest a poor prognosis for improvement in the community. The assessment is important because the overall PCLR score is considered to have 'good predictive validity with respect to sexual offences' and has been found to be related to violent and sexual recidivism (Wojnarowska, 28.10.15 [17.2]).
51 The other factor in the PCLR test concerns matters such as lack of remorse or guilt and failure to accept responsibility (Wojnarowska, 28.10.15 [17.2]). While Dr Wojnarowska considered there to be limited evidence of improvement in this regard, because of the respondent's acceptance of responsibility for the index offence, she noted that, in respect of the incident involving the nurse:
He acknowledged that 'I shouldn't have said that' but only in the context of this incident having a negative impact on his chances of release into the community. Otherwise there was no sense of remorse or empathy toward the victim (Wojnarowska, 28.10.15 [9.2]).
52 I note that Ms Dabala, in her report, stated that the respondent told her there were 'no issues' with his behaviour, again claiming he had been misinterpreted (Dabala, 4 November 2015, page 3). Whether this amounts to recanting of his concession to Dr Wojnarowska is not clear, but it tends to reinforce the lack of remorse or empathy.
53 Finally, in relation to the incident, Dr Wojnarowska considered it to be 'an example of difficulties that are likely to be encountered while managing Mr Dinah in the community' (Wojnarowska, 28.10.15 [17.5]).
54 Dr Wojnarowska conducted a Risk for Sexual Violence Protocol (RSVP) assessment, which examines eight domains which include psychological, behavioural and social factors (Wojnarowska, 28.10.15 [17.3] [17.15]). In the psychological domain, she was of the opinion that the respondent's minimisation or denial of sexual violence is no longer 'extreme', but is still present to a lesser degree. The respondent acknowledged that exposure to intoxicated women posed a risk for him. However, he has made little progress in relation to 'problems with stress or coping'. In the domain of mental disorder, while there is no evidence of a major mental illness or sexual deviance, his psychopathy score has not altered and his problems with substance use have persisted. In the domain of problems with treatment, Dr Wojnarowska noted that the respondent's commitment to individual treatment has decreased since the last hearing. She also considered that manageability (which is the last of the domains) is a factor that would require careful consideration if a supervision order were to be made, given the respondent's previous noncompliance with basic requirements and his denial of experiencing problems or stressors, when clearly he had experienced them.
55 In Dr Wojnarowska's opinion, the respondent is less manageable now than she thought he was last year (Wojnarowska, ts 392). She noted that the prison reports indicate he has been unpredictable in his behaviour, vacillating between being polite and compliant on some occasions and being belligerent and non-compliant on others (Wojnarowska, ts 393). The latter appear to be a function of his narcissistic personality characteristics (Wojnarowska, ts 393 394).
56 Dr Wojnarowska identified the potential risk scenario for sexual reoffending by the respondent as follows:
If Mr Dinah were to reoffend, his future offending would be similar to previous offences; he would return to drinking excessively which may be associated with stressors, however this may also occur in family celebratory situations. His alcohol consumption may occur on a daily basis or in a binge pattern, and may be associated with cannabis use. He is likely to drink with acquaintances and family members. It is likely that the people around him will be as intoxicated as he is and in this context, he may be able to separate himself from the rest of the group with a woman. Mr Dinah is likely to misinterpret a woman's intentions which is driven by his inflated sense of self worth and grandiose beliefs of his attractiveness; being intoxicated would lower his levels of inhibition. Once he is rejected he is likely to react violently, which may include sexual violence. There is a likelihood of considerable psychological harm to the victim and the possibility of physical harm as well.
57 Although Dr Wojnarowska has noted that the respondent's grandiosity appears to have diminished, I do not consider that reduces the risk. There are three persistent aspects of the respondent's belief system, referred to in my discussion of Ms Rankin's evidence above, that are likely to 'drive' his misinterpretation of a woman's intentions: his 'sense of entitlement', which has been identified in assessments over a number of years; his belief that he has a 'sixth sense' in relation to his ability to ascertain whether a woman is interested in sexual activity with him; and his belief, in essence, that obtaining sex from an indigenous woman is as easy as going up to her and asking for it, implying that consent could be assumed. In relation to the 'sense of entitlement', Dr Wojnarowska referred to the respondent's perception of being 'more worthy or above certain standards or expectations', which she considers to be an obstacle to his capacity to translate his intellectual understanding of consent to his own practical circumstances (Wojnarowska, ts 394).
58 Dr Wojnarowska is of the opinion that the respondent continues to be a high risk of reoffending if not the subject of a detention or supervision order. In her assessment in 2014, she had concluded that there was a minor decrease in his overall risk as evidenced by his greater ability to reflect on his behaviour, his motivation to continue engagement with his psychologist and his high motivation to live in the community. However, she now considers that he has regressed:
Since the last review, Mr Dinah's lack of progress in his employment, failure to secure housing in self-care, decreased engagement in psychological treatment, positive urine tests for alcohol and cannabis and most notably, the recent incident suggests that his risk of future sexual reoffending is as high as it was before he commenced treatment with Ms Place in 2013.
There is a possibility that Mr Dinah's poor physical health and his feelings of hopelessness, which have developed over the years of incarceration, have contributed to this decline (Wojnarowska, 28.10.15 [19.2] [19.3]).
59 Dr Wojnarowska is of the opinion that progression to selfcare is essential for the respondent before he could be considered as able to function well within the community. His failure to do so, despite the formulation of plans by those managing him and the provision of assistance, is strong evidence that he could not be managed on a supervision order at this time.
60 Ms Rankin explained that, after the management plan and the progression plan were formulated by Ms Place, unit staff and sentence management staff, the respondent was brought into the meeting and all of the terms of the plans were explained to him. She continued:
My understanding is that he agreed with all of those particular conditions, you know, that he would maintain a - a minimum three month period of ongoing employment with no negative incidents reported against him, and no positive urinalysis tests (Rankin, ts 413).
61 It was suggested to Dr Wojnarowska in crossexamination that the respondent's failure to take the opportunity provided to him under the plans might be the result of his having become institutionalised. Her response was:
Well, he - he wasn't left to his own devices, so the structure was there for him, and what he needed - the only thing that was expected from him was not to use substances and to show up at work, which he failed to do (Wojnarowska, ts 396).
62 When it was suggested to Dr Wojnarowska that, perhaps, the respondent's failure to comply with his employment obligations under the management plan was because he did not like carpentry, as his main interest in life is art, she responded:
I don't think that this is a point. The point is that he consistently demonstrated lack of commitment and motivation. That was something that was expected from him. It was discussed with him. It was noted as a management plan for him, and he failed to adhere. So it's not about whether he likes carpentry or not, whether he can actually adhere to certain obligations and fulfil them, or expectations, and that's what was expected from him (Wojnarowska, ts 402).
63 As I indicated at the outset, the respondent seeks release under a supervision order. I will return presently to the question of whether a supervision order would adequately protect the community, having regard to the evidence concerning the respondent's personal circumstances since the last annual review. In practical terms, such an order cannot be made unless there is suitable accommodation available at which the respondent can be required to reside. Such a requirement is necessary to enable supervision and monitoring of the respondent.
64 As is the usual practice, the Department of Corrective Services sought proposals for accommodation from the respondent and conducted an assessment of each proposed place. The respondent has sufficient personal funds to obtain private accommodation. However, the accommodation must be assessed to be suitable, having regard to his personal needs and the measures that would need to be put in place to protect the community.
65 The respondent proposed four places that are in country towns in Western Australia, including two hostels, one of which is no longer in operation and the other being a place where it was considered unlikely that he would be accepted. By the time of the hearing, the one firm proposal was the home of the respondent's aunt in Mount Magnet, 573 km northeast of Perth and 335 km from Geraldton (Dabala, 4.11.15, page 7). His aunt has indicated she would be willing to accommodate the respondent for as long as necessary and would assist him to find his own accommodation in Mount Magnet (Dabala, 4.11.15, page 7). The town has approximately 500 residents.
66 The Department expressed concerns about the respondent residing at the proposed accommodation and his risk of reoffending, based on his history of sexual offending against female family members, the limited ability to monitor illicit drug use and the possibility that there may be limits to GPS tracking in the region without further exploration (Dabala, 4.11.15, page 8). Electronic monitoring is a mandatory requirement of any supervision order: s 18(1)(g) of the Act.
67 If the respondent were to reside in Mount Magnet, supervision would be by the Senior Community Corrections Officer (SCCO) in Geraldton (a three hours' drive away) and visits would be once a fortnight. Urinalysis drug testing would require the respondent to travel two hours to Meekatharra Hospital to provide a sample. The respondent would be reliant on his aunt to take him. WA Police could assist in monitoring alcohol use by conducting breath testing upon request. Substance abuse counselling could be provided by a female counsellor at the nursing station.
68 There is uncertainty about the efficacy of GPS tracking if the respondent were to reside in Mount Magnet. It relies on the mobile telephone network for monitoring, and the Geraldton SCCO has indicated that mobile telephone coverage diminishes in locations between Mount Magnet and Geraldton and between Mount Magnet and Meekatharra. If, as happened on the last occasion the respondent was released on a supervision order, he were to remove the tracking device, the authorities would not become aware of it if it occurred in a location where the signal had dropped out.
69 The Geraldton SCCO also reported that on his inspection of the location of the proposed accommodation around lunchtime there were people, mainly females, out the front of three neighbouring homes drinking alcohol. The locale is wellknown to police for alcohol-related disturbances. I am of the view that these circumstances render the need for strict and regular supervision essential. I am not satisfied that such supervision would be available.
70 Most significantly, it is intended that if the respondent were released on a supervision order, he would continue to receive counselling from Ms Place. Ms Dabala gave evidence that the forensic psychological services would not be able to conduct counselling in the town. Any counselling would have to be by telephone. Dr Wojnarowska is of the opinion that, if the respondent were to be released on a supervision order, then, given his history, the treatment and supervision he would require would be 'at the highest level in terms of intensity and frequency' (Wojnarowska, ts 403). She did not consider that counselling by telephone or by Skype (i.e. video conferencing by telephone or computer) would be sufficient. Given the respondent's previous difficulties with engagement, onetoone contact was important, and Skype would not be of adequate quality to enable the counsellor to properly interpret body language or facial expressions (Wojnarowska, ts 404).
71 Even if a supervision order were otherwise appropriate, it would be subject to very strict conditions, no less than those imposed on the previous occasions the respondent was released. I am not satisfied that the proposed residence is in a suitable location to enable the respondent to be managed and treated to the necessary level, as described by Dr Wojnarowska. The likely exposure to alcohol use and behaviours affected by such use would potentially increase the respondent's susceptibility to relapse, particularly in circumstances in which he has demonstrated a lack of insight into the risk factors for both his substance abuse and his sexual offending. Although it might be expected that the respondent's aunt would provide some oversight, I have no information about her capacity to do so. She has not had contact with the respondent for some five years. One would expect, therefore, that her ability to identify risk factors for the respondent would be limited.
72 The respondent's counsel submitted that in a small town such as Mount Magnet, there is likely to be a quicker response by police to any breach by the respondent of a supervision order than in the metropolitan area. In my view, the evidence does not support that conclusion. Ms Dabala said there are six police officers stationed at Mount Magnet, but at any one time there may only be two on duty. It cannot be assumed that police would be at the ready to respond at all times. In any event, it is difficult to see how a response would be prompted unless it involved the respondent entering an exclusion zone (and being detected by the electronic monitoring), or someone were to report conduct constituting a breach. Further, if the breach were to be by sexual offending, a police response to a complaint would, of course, come too late.
73 On the available evidence, I conclude that no suitable accommodation has been identified for the purposes of conditional release of the respondent into the community.
The respondent remains a serious danger to the community
74 The evidence I have outlined overwhelmingly establishes that there continues to be an unacceptable risk that, if the respondent were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. The respondent does not take issue with that conclusion. The issue is whether the community can be adequately protected by the conditional release of the respondent on a supervision order.
75 As I have concluded that no suitable accommodation has been identified, it inevitably follows that a supervision order cannot be made that would adequately protect the community, in particular indigenous women with whom the respondent may come into contact.
76 However, I have also concluded that the community could not be adequately protected by releasing the respondent on a supervision order, even if suitable accommodation were available.
Supervision order would not adequately protect the community
77 I am satisfied on all of the evidence, but in particular on the basis of the evidence of Dr Wojnarowska, and for the reasons that she gave, that the respondent's risk of future sexual reoffending is as high as it was before he commenced treatment with Ms Place in 2013. In that sense, his circumstances have changed since the last annual review, but negatively.
78 The one respect in which there has been a positive change, as identified by Dr Wojnarowska, is the respondent's acceptance that his conduct, the subject of relevant convictions, constituted sexual offending. However, that gain amounts to an early stage of progress. I cannot accept the submission made by the respondent's counsel that, at this point in time, it provides a foundation for further progress in treatment in the community. That proposition is not supported by the evidence of Dr Wojnarowska. Moreover, the gain in that regard is outweighed by:
79 The respondent's counsel submitted that the respondent is motivated to be released and that I can be satisfied he will be motivated to comply with the conditions of a supervision order because of the threat that he will be returned to custody, a threat made good previously. However, the respondent was well aware of the threat after his breach of the first supervision order, if not before, and yet he breached again. Further, the respondent's perceptions, which may be relevant to compliance, have been demonstrated to be disconnected from reality. For instance, his selfassessment in his interview with Ms Dabala that he has been a model prisoner over the last 12 months and that Ms Place was satisfied with the gains he had made (Dabala, ts 428) are at odds with the reality, as outlined above.
80 In outlining the background, I referred to the finding made by McKechnie J in 2009 that alcohol was a high risk factor and that the respondent had not addressed that issue. When the respondent was first released on a supervision order by Commissioner Sleight, his breaches of the conditions included the consumption of alcohol. When his Honour again released the respondent on a supervision order, his breaches of that order again included consumption of alcohol. In the last year, while in custody, he has tested positive for alcohol. I have discussed above his claim that another substance he took must have been laced. Whether or not that is true, it continues to be a matter of great concern that he insists alcohol is no longer an issue for him, and that he can just abstain. He told Ms Rankin that random and regular drug testing, his health problems and the potential threat that he would be returned to prison in the event of a positive test would be sufficient deterrence (Rankin, ts 423). Apart from the health issues, the other factors were operative under the previous supervision orders and did not provide sufficient deterrence. As for the health issues, they have not deterred him from using substances, including cannabis, while in custody. As has been stated on previous occasions, his strategies for abstinence and coping with stresses are unrealistic.
81 Until the respondent demonstrates a capacity to abstain from substance use while in the controlled and structured environment of a prison, and develops insight and realistic strategies for coping with problems and stress without resorting to alcohol or drugs, he will not have addressed the issue that was identified as a high risk issue six years ago.
82 Finally, in order for the court to have any confidence that the respondent could be managed on a supervision order, it is essential that he progress to selfcare and demonstrate a capacity to comply with obligations and meet expectations that he may regard to be unpalatable. That will need to be a focus for him in the period until the next annual review.
83 It is unfortunate that the respondent has regressed, a risk that was referred to by McKechnie J at the last annual review. However, as his Honour said then, it is a matter for the respondent. Further, as was pointed out by Dr Wojnarowska in these proceedings, the respondent has not been left to his own devices. He has been provided with the structure and support to make gains. It is necessary for him to engage with treatment and commit to the plans that may be put in place.
84 Applying the principles to which I have previously referred, I am satisfied that it is necessary for the adequate protection of the community for the respondent to continue to be detained in custody for an indefinite term for control, care and treatment.
85 Accordingly, I decline to rescind the continuing detention order made on 25 January 2012.