Supreme Court of WA|2010-01-18|Before: Hall J

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- NARKLE [2010] WASC 7 (18 January 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- NARKLE [2010] WASC 7

BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for indefinite detention - Whether unacceptable risk of committing further serious sexual offences - Whether serious danger to the community - Whether indefinite detention order or supervision order appropriate

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206

Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312

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

1 HALL J: Shane Narkle was convicted of serious sexual offences in 1987 and again in 2003. For the 2003 offences he was sentenced to 6 years' imprisonment which commenced on 18 December 2003. Although eligible, he was not released on parole and has served the whole of that sentence.

2 Mr Narkle was due for release on 17 December 2009, but prior to that date the Director of Public Prosecutions (DPP) applied for an order that he be detained in custody for an indefinite term for control, care and treatment: s 17(1) Dangerous Sexual Offenders Act 2006 (WA) (Act). Such an order can only be made if the court finds that Mr Narkle is a serious danger to the community. Where a court finds that an offender is a serious danger to the community, the court must either order that the offender be detained for an indefinite term or make a supervision order permitting the offender to be released into the community subject to specified conditions.

is Mr Narkle a serious danger to the community?; and
if so, is the appropriate order one of indefinite detention or release into the community on a supervision order?

4 Mr Narkle does not accept that he is a serious danger to the community or that orders under s 17 are open. However, on his behalf it is submitted that in the event that the court is of the view that he is a serious danger to the community, the appropriate outcome is a supervision order and not an indefinite detention order. It is submitted that two of the most significant factors which contribute to Mr Narkle's risk of reoffending, namely alcohol abuse and violent tendencies, can be adequately controlled by a supervision order. Before addressing the questions I have identified, it is necessary to briefly explain the statutory basis of the application.

5 Section 17 of the Act provides:

(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -

(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or

(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.

6 Section 7(1) states that before a court can find that a person is a serious danger 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. This suggests that a finding of unacceptable risk is a prerequisite for a finding of serious danger to the community but will not necessarily be sufficient because, for example there may be a risk to a specified person and not to the community generally: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 (Martin CJ) [11]. However, in the same case Wheeler JA (with whom Le Miere AJA agreed) said that in her view once a court had found an unacceptable risk the finding of serious danger to the community inevitably followed [66]. That view was held to be correct in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 (Steytler P and Buss JA) [22].

7 Section 7(2) provides that the DPP has the onus of satisfying the court that a person is a serious danger to the community. The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition: DPP v GTR (Steytler P and Buss JA) [28]. This does not necessarily mean that the risk must be at some high percentage of probability - a risk may be less than 50% yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those factors have been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR (Steytler P and Buss JA) [34].

8 A serious sexual offence is defined in s 3 of the Act to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA). That means an offence mentioned in pt B of sch 7 to the Evidence Act for which the maximum penalty is 7 years or more.

9 The DPP may make an application under the Act where a person is under sentence of imprisonment for a serious sexual offence. At the time this application was made Mr Narkle was serving an aggregate sentence of 6 years' imprisonment. That sentence included concurrent terms of imprisonment for four offences including two of aggravated sexual penetration contrary to s 326 of the Criminal Code (WA), which are serious sexual offences as defined by the Act. The sentences imposed for those offences were 6 years and 32 months' imprisonment respectively.

10 What is meant by 'an unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams [63] - [65]. In that case her Honour said that a judge is required to consider the likelihood of the person offending and the type of offence likely to be committed in considering whether the risk is so unacceptable that the interests of the community require that the person be subject to further detention even though they have already been punished for whatever offence they may have actually committed in the past. That does not exclude the possibility that an unacceptable risk may be effectively addressed and minimised by a supervision order.

11 In DPP v GTR Steytler P and Buss JA at [27] said that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised and the serious consequences for the offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).

12 Section 7(3) of the Act sets out a number of matters that the court must have regard to in considering whether a person is a serious danger to the community. Those matters are:

(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;

(b) any other medical, psychiatric, psychological, or other assessment relating to the person;

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

(d) whether or not there is any pattern of offending behaviour on the part of the person;

(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;

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

(g) the person's antecedents and criminal record;

(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;

(i) the need to protect members of the community from that risk; and

(j) any other relevant matter.

13 While s 7(3)(g) provides that the court must have regard to the criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not mean that there is unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior record will depend on the nature of the offences committed and whether they indicate the existence of behaviour that relates to the risk of committing serious sexual offences.

14 In the present case Mr Narkle has committed one prior serious sexual offence, an aggravated sexual assault in 1987 for which he received a sentence of 8 years' imprisonment. The only other sexual offences are two offences of carnal knowledge that occurred in 1981 when he was a juvenile and which resulted in terms of probation. There are, however, numerous prior offences involving violence, or which are alcohol-related or both. The DPP submits that these prior offences are relevant because they show a propensity to violence and to abuse of alcohol and these are factors which were also present in the serious sexual offences and contribute to the risk that further offences of that nature will be committed.

15 Once a court has concluded that an offender is a serious danger to the community it must make either an indefinite detention order or a supervision order: DPP v Williams (68) (Wheeler JA) and DPP v GTR [49] - [50]. In deciding between those two possibilities the paramount consideration is the need to ensure the adequate protection of the community (s 17(2)). That does not exclude other considerations. Nor does it necessarily favour an indefinite detention order. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order: Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312.

16 In The State of Western Australia v Latimer [2006] WASC 235, Murray J expressed the view that the court would not make a detention order if an adequate degree of protection of the community could be obtained by making a supervision order. His Honour noted that a detention order is for an indefinite term whereas a supervision order is for a defined period. Given the more onerous nature of a detention order, Murray J concluded that the Act requires the court to do no more than is necessary for the continuing control, care, or treatment of the offender to achieve an adequate degree of protection for the community.

17 Mr Narkle was born on 1 November 1964 in York. He came from a large family but was separated from it at an early age and placed into foster care. He had hearing difficulties which went undiagnosed for some period and caused problems with learning. His father died violently when Mr Narkle was very young.

18 Mr Narkle's first offences were committed when he was in his late teens. They involved offences of breaking and entering, stealing and unauthorised use of a motor vehicle. In 1981 he committed two separate offences of carnal knowledge involving girls aged 15 and 13. Mr Narkle was 16 at the time of these offences and there was no suggestion of violence or coercion.

19 In 1982 Mr Narkle committed his first adult offence. This was an assault occasioning bodily harm and involved a fight with a relative. Punches were exchanged and Mr Narkle threw a dish which struck the other person on the head causing a gash which required hospital treatment. Both Mr Narkle and the victim had been drinking. In the following years Mr Narkle committed numerous offences of breaking and entering, stealing and disorderly conduct. By this time he had developed a problem with alcohol. According to a plea in mitigation made in 1985 he was consuming 2 - 3 flagons of wine a day.

20 In 1986 Mr Narkle committed the first serious sexual offence. At that time he was living with other members of his extended family at a house in Koongamia. One of the others living at the house was Mr Narkle's 62-year-old aunt. She was an invalid pensioner who was blind in the left eye and walked with the aid of a walking stick. On 19 June 1986 she returned home in the mid-afternoon and decided to have a sleep in the backyard. She fell asleep on a blanket and woke sometime later after being grabbed from behind and dragged to the laundry of the residence. Initially she could not see who her attacker was because of her blind eye. She was dragged through the kitchen and into a bedroom and was then able to identify her attacker as Mr Narkle. He punched and kicked her and told her that he was going to rape and kill her. In the bedroom he pushed her to the floor, lifted her dress up around her neck and held her to the floor by her shoulders. She was punched again to the head and pleaded with Mr Narkle to stop. He then raped her and threatened again to kill her before leaving the house. The victim got up from the floor, put her pants on and left the house and struggled down to the street to call out for help. A subsequent medical examination confirmed that she had been physically and sexually assaulted.

21 Mr Narkle was later apprehended and interviewed. He initially denied any wrongdoing but subsequently admitted that he had raped his aunt and had beaten her. As can well be imagined, this offence caused a devastating effect within Mr Narkle's family. Some members of the family, including his mother, continued to support him but others ostracised him. He was the subject of a beating at the hands of immediate relatives and at the time he came to be sentenced was suffering injuries including a split lip and black eye that had been caused by that beating. He was unable to explain the offence other than to say that he had been drinking heavily. This offence occurred within one month of being released on parole after serving a sentence of imprisonment for an offence of breaking and entering for which he was sentenced on 6 December 1985.

22 A pre-sentence report was obtained. That report stated that Mr Narkle exhibited considerable guilt, shame and remorse for his conduct, however, he denied having a drinking problem notwithstanding, as the report writer noted, a record which showed a strong link between his use of alcohol and offending.

23 Mr Narkle was sentenced on 23 April 1987 to 8 years' imprisonment with an order that he not be eligible for parole until he had served at least 4 years. The sentencing judge noted that Mr Narkle's background indicated that he seemed to consistently drink to excess and that he was prone to aggression when drunk. His Honour noted, however, that there was no previous history of aggressive sexual conduct and to that extent the offence might be thought to be out of character. The offence was in a higher category of seriousness because of the aggravating features, being the age of the victim and his familial relationship to her. His Honour granted a minimum term of 4 years because of Mr Narkle's age (then 22 1/2) and circumstances and because a long term of imprisonment would be crushing.

24 Whilst serving his prison sentence, Mr Narkle was assessed to determine his treatment needs. He was interviewed on 16 and 28 November 1990 and was cooperative and communicative, though agitated. The interviewer assessed this as being anxiety regarding a recent failure to obtain parole. In a report on 9 January 1991 it is noted that Mr Narkle admitted responsibility for his offending but felt that alcohol was to blame. It was noted that Mr Narkle had undertaken a substance abuse program but had not addressed his sexual behaviour. That the substance abuse program was not efficacious is evident from his conduct when ultimately released.

25 The report stated that Mr Narkle appeared to have considerable difficulty with impulse control though in more recent times had been exhibiting greater responsibility for his behaviour. This appears to be a reference to a number of earlier incidents in prison where Mr Narkle had responded violently to his conditions or had threatened self-harm. Mr Narkle expressed a belief that he did not need treatment for his sexual offences, but the report writer considered that it was appropriate that he undertake a treatment program to minimise the risk of re-offending. He was told that he must prove himself in his intention not to re-offend before being released. He was assessed as being suitable for participation in the Sex Offender Treatment Program held at Karnet Prison and it was recommended that he be transferred there prior to 7 February 1991 when that program was due to commence. He was not considered suitable for participation in a treatment program at Fremantle Prison due to its prioritisation of recidivists and a belief that he would struggle to come to terms with the intensive group therapy format of that program.

26 Mr Narkle made no attempt to seek a transfer to Karnet Prison in order to participate in the Sex Offender Treatment Program at that prison and he was interviewed at Canning Vale Prison on 2 September 1992 to ascertain his interest in commencing treatment. At that time he presented as being very ambivalent about treatment and stated that he preferred to remain at Canning Vale. He said that he did not wish to discuss his previous behaviour as he knew within himself that he would not reoffend. He was advised of the potential effect that nonparticipation may have on his parole but he was unwilling to reconsider his position. As a consequence, Mr Narkle was considered to be unsuitable for treatment owing to a lack of motivation. In consequence it would appear that he was ultimately released from prison on this occasion without undertaking any treatment in regard to his sexual offending.

27 In the years following his release from prison, Mr Narkle resumed his abuse of alcohol and this led to further violent offences. On 26 June 1994 he was involved in a violent argument with his brother which resulted in the brother cutting his hand and requiring eight stitches. On 27 August 1994 Mr Narkle threatened a man with a knife and then assaulted him causing bruising, sore ribs, cuts and abrasions. On 12 July 1995 Mr Narkle was drinking at a hotel in York and when asked to leave threw a full can of beer at the licensee which struck and cut the licensee's right hand. On 17 June 1996 Mr Narkle entered another hotel in York thereby breaching a restraining order and whilst inside the bottle shop pushed a man in the chest and challenged him to a fight. On 18 July 1996 Mr Narkle was convicted of punching a 14-year-old boy in the ribs and face on a street in York. On 14 May 1997 Mr Narkle made threats towards his mother and other family members at a house where he was then living in Henley Brook and was convicted of threatening behaviour. On 3 November 1997 Mr Narkle went to a house in Midland and threatened to kill everyone in the house and was convicted of using threatening words. On 14 January 1998 Mr Narkle twice breached a restraining order taken out by his then de facto. On 4 March and 26 March 1998 he again breached the restraining order. On 22 April 1999 Mr Narkle armed himself with two short iron bars and a small knife and walked on the roadway and on the verges of houses in Ewart Street in Midvale shouting abuse and waving the bars above his head. Police attended and Mr Narkle armed himself with a short length of wood which he raised above his head so as to intimidate the police officers. He was convicted of threatening behaviour as a consequence of this conduct.

28 After serving several short periods of imprisonment for offences of the type described, Mr Narkle was sentenced to a period of 6 months for offences including breach of restraining order and being disorderly so as to create a disturbance. Whilst imprisoned on this occasion he was assessed for suitably for a substance use program. On 21 July 2000 Mr Narkle signed an assessment waiver form in which he acknowledged that he was aware that it had been recommended that he participate in a substance abuse program and that if he chose not to participate that decision may have an impact on the parole decision; he nonetheless declined to participate in an assessment interview.

29 In June 2001 Mr Narkle was living at a house in Bushby Street in Midvale with a cousin. On 8 June he entered his cousin's bedroom and found him in bed with a woman who Mr Narkle believed was his own girlfriend. Mr Narkle pulled the woman from the bed onto the floor and struck her in the face with the palm of his hand, causing bleeding from her mouth and nose. The women left the house and Mr Narkle followed her and wrestled her to the footpath before police arrived and arrested him. The woman was taken to hospital for medical treatment for facial wounds. On 4 July 2001 police again attended at the Bushby Street house and saw a man leaving the premises pursued by Mr Narkle who was brandishing a shovel. He was arrested and charged with threatening behaviour.

30 On 23 December 2001 Mr Narkle was in the company of a woman at a shopping centre in Midland. There was an argument and the woman ran from Mr Narkle. He pursued her and attacked her, punching her to the ground and then kicking her in the body. The woman was bloodied and stunned by the initial attack and raised her hand in an attempt to ward off Mr Narkle. He then grabbed her by the hair and attempted to raise her to her feet before pushing her down once more. Police arrived and arrested Mr Narkle and charged him with assault occasioning bodily harm. On 5 November 2002 Mr Narkle again assaulted the same woman, who by this time was his de facto wife and six months pregnant with their child. On this occasion Mr Narkle and the woman were at the house of relatives in Stratton where they were drinking and smoking cannabis. At about 10.00 pm they went to bed in separate rooms. At about midnight the woman was awoken when Mr Narkle attempted to climb into bed with her. He then attempted to remove her clothes and this started an argument between them. He then lost his temper and punched the woman several times to the head and face, knocking her to the ground. The police were called and the woman was taken to hospital where she received medical treatment for swelling and bruises to her head and face and bleeding to the inside of her mouth. Mr Narkle initially denied hitting her, claiming that she must have fallen over. For this offence he was sentenced to 9 months' imprisonment.

31 Unsurprisingly, his de facto wife obtained a restraining order against Mr Narkle. He breached that order on 7 January 2003 by approaching his de facto wife, abusing her and threatening to kill her. He again breached the restraining order on 5 September 2003 by entering his de facto wife's home and threatening to kill her. He was sentenced to a further term of imprisonment for this conduct.

32 On 14 November 2003 a parole assessment report was prepared. Mr Narkle told the report writer that he had a major problem with continued use of alcohol and that his goal was to avoid alcohol entirely. The report writer noted that Mr Narkle recognised that when he was drinking his feelings of anger elevated and his inhibitions diminished. Although he was unable to identify any strategies as to how he would avoid alcohol, Mr Narkle recognised that if he was to remain free in the community he must refrain from drinking. He also accepted the need to participate in substance abuse counselling. Mr Narkle was released on parole on 4 December 2003 with special conditions of substance abuse and anger management counselling. Less than two weeks later he committed the offences, including serious sexual offences, that resulted in his most recent term of imprisonment.

33 On the evening of 17 December 2003 the female victim and a number of other people were drinking at a park in Midland. Mr Narkle was present and suggested that they walk to his house. At the house more alcohol was drunk and at some stage the woman asked if she could use the toilet. Mr Narkle showed her where the toilet was and when she had finished and opened the door she found he was standing blocking her way. He then grabbed her around the waist and pulled her into a bedroom. He pulled her to the ground and hit her head with a piece of wood. She asked him to stop and he told her to shut up and let him do what he wanted to do. She was hit more than once with the piece of wood and felt blood on her face. He then pushed her into a bathroom and forcibly removed her clothes and underwear and then took her back to the bedroom. He then pushed her onto the bed and raped her. As he was doing this he continued to hit her with the piece of wood. He also penetrated her with a finger.

34 Mr Narkle denied the offences but was convicted after trial of unlawful detention, unlawfully doing grievous bodily harm and two counts of aggravated unlawful sexual penetration. The sentencing judge described Mr Narkle's behaviour as a violent, cowardly and callous attack. He was sentenced to 2 years' imprisonment for the deprivation of liberty; 32 months' imprisonment for unlawfully causing grievous bodily harm; 6 years' imprisonment for the first aggravated sexual penetration; and 32 months' imprisonment for the second aggravated sexual penetration. Those sentences were made concurrent making an effective term of 6 years' imprisonment. A parole eligibility order was made and the sentence was backdated to 18 December 2003 when Mr Narkle was first taken into custody.

35 Whilst in prison Mr Narkle was assessed for treatment programs. On 29 June 2005 he indicated a willingness to engage in a cognitive skills treatment program. He was also assessed as having a significant history of alcohol abuse. He accepted that the majority of his offending behaviour had occurred during periods of intoxication and admitted poor impulse control and that heightened moments of aggression were linked to his alcohol use. It is noteworthy, however, that when interviewed Mr Narkle maintained that his most recent offences had been provoked by the victim because, he said, she had attempted to steal from him. It if difficult to understand, even if he had an honest belief in this regard, how this could possibility justify a violent rape of the type committed. In regards to his violent tendencies, Mr Narkle indicated that he was reluctant to participate in treatment intervention and, according to the report, used 'a variety of reasons to justify his ambivalence to change'. Inclusion in an intensive violent offender program was recommended following successful completion of a cognitive skills intervention treatment program. A medium intensity sex offender program was also recommended. An individual management plan was then prepared which included recommended participation in a cognitive skills program at Acacia Prison in April 2006; a sex offender program at Acacia Prison in July 2006; an alcohol and substance use program at Acacia Prison in October 2006; and a violent behaviour intensive program at Acacia Prison in April 2007.

36 A letter of offer for the sex offender treatment program was sent to Mr Narkle on 31 August 2006. He declined the offer and stated that he did not feel comfortable discussing his offences within the group and he did not feel that he could trust anyone to keep it confidential. Whether or not this was a genuine claim is something I will consider later.

37 In November 2006 Mr Narkle was enrolled in an Aboriginal Education Preventing and Managing Relapse Program. This program was intended to facilitate self-awareness with regards to personal high risk situations and to assist participants to explore practical avoidance skills and coping strategies to deal with these high risk situations. Mr Narkle attended the venue for the first session of the program, however, he refused to enter the room and participate and stated that he was not going to do the program. At around this time there are reports of prison incidents in which Mr Narkle threatened self-harm. It appears that the reason for this was the death of his mother and brother and lack of contact with his children.

38 In October 2007 a parole assessment report was prepared. This report noted that Mr Narkle had had a poor response to previous periods of supervision, having only completed two out of six previous parole or supervision orders. Between March 2004 and January 2007 he had committed a number of prison offences of disobeying prison officers and using threatening language. Mr Narkle had consistently refused to complete an Occupational Health and Safety course and that had precluded him from obtaining prison based employment. It was stated in the report that he had demonstrated a subversive demeanour towards prison staff, particularly during periods when he did not get his own way. The report noted that it was of grave concern that Mr Narkle had refused to participate in prison based treatment programs.

39 When interviewed for the report, Mr Narkle said that he had not done these programs due to the presence of his 'enemies'. He said that he was unwilling to discuss his offending behaviour and personal issues in a group based program out of fear that participants would reveal his disclosures to the Noongar Community. He was strongly encouraged to reconsider his position. Mr Narkle suggested that he would be more willing to complete a community based program, though how this would address his concerns as to confidentiality was not apparent. Mr Narkle was advised that his unwillingness to address his offending behaviours would jeopardise his parole application. He said that he would rather complete his sentence in full than have to attend a program for the sake of improving his prospects of parole.

40 The report writer was of the view that without the intervention of a high intensity program Mr Narkle lacked the required level of personal insight to establish a relapse prevention plan or to recognise potential high risk triggers. He continued to deny the 2003 offences or to accept that he needed to address any behaviour arising from them. He was unable to present a viable parole plan and was considered to be a high risk of further serious offending due to the unaddressed offending behaviours. For these reasons he was considered to be unsuitable for parole.

41 To date, Mr Narkle has not participated in any of the available programs for dealing with his alcohol abuse or anger management (other than a short substance abuse course in 1990 that preceded much of his alcohol related offending). Given that alcohol and violence have been consistent contributing factors to his offending behaviour and that both have also been present on the occasions he has committed serious sexual offences, the failure to participate in such programs must mean that there is a risk that these factors, will continue to influence his behaviour if released.

42 As regards sexual offender treatment options, a report by Ms Ballantyne of the Department of Corrective Services was prepared on 23 November 2009. That report considered whether Mr Narkle was suitable for the Indigenous Sex Offender Treatment Program. That program is a 100 hour medium intensity program designed for Indigenous male sexual offenders. The program is still under development with one pilot group having been conducted in 2009. Although this option might be more culturally appropriate and better able to meet Mr Narkle's requirements for treatment, Ms Ballantyne was of the view that its present format is not likely to be of sufficient intensity to significantly benefit Mr Narkle. She is of the view that given Mr Narkle's high level of risk and need for intervention, the intensive sex offender treatment program would be more appropriate. This intensive program is of six months duration and operates for six hours a day, three days per week. Research supports the provision of intensive sex offender treatment to high risk offenders as being beneficial in reducing the risk of re-offending. The program requires 430 contact hours in total. Such a program is only available in prison. The next such programs are scheduled to commence at Casuarina and Bunbury Prisons between April and June 2010. Although these programs are fully booked, a possible inclusion could be negotiated if necessary and those detained on orders under the Act are given priority.

43 Ms Ballantyne also considered what sexual offender treatment options would be available if the court was minded to place Mr Narkle on a supervision order. The available community based sex offender treatment program operates three hours per week over a 9 month period. Although high risk sexual offenders may be accepted into this program, the limited amount of contact is considered insufficient to adequately engage Mr Narkle given the intensity of his needs. It should also be noted that this program is exclusively offered in the metropolitan area and that Mr Narkle's intentions are to live in York, should he be released. Even with transport and assistance from family members, participation would be difficult. Individual counselling may be available to Mr Narkle in the community but is less well-supported by the research than formal group based sex offender treatment programs. Furthermore, the availability of suitably qualified psychologists to provide such intervention is limited by the specialist nature of the work and the demand for such treatment in the community.

44 Pursuant to orders of the court, Mr Narkle was assessed by two psychiatrists, Dr Brian Tanney and Dr Peter Wynn-Owen. They both provided reports and gave evidence at the hearing of this matter.

45 The report of Dr Wynn-Owen concluded that Mr Narkle has not accepted or addressed any of the factors increasing his future risk of reoffending and that he rationalises his avoidance of programs designed to help with these issues. Dr Wynn-Owen is of the view that Mr Narkle currently presents as a high risk of reoffending. His risk of reoffending if released is unchanged from his offending risk at the time of his offences in 2003 and his anger at the duration of his present incarceration for a crime that he maintains he did not commit may elevate this risk. Dr Wynn-Owen stated that Mr Narkle's score on the Static-99 test indicated that a person with his history had a likelihood of approximately four in 10 of committing a further serious sexual offence within five years. This score is in keeping with his extensive criminal record and the failure to engage in potentially risk mitigating interventions. Dr Wynn-Owen noted that the risk is elevated by alcohol abuse, interpersonal conflict, and violent behaviour.

46 Dr Wynn-Owen stated in his report that Mr Narkle required as a high priority, interventions to address anger management, sexual and violent offending, and alcohol abuse.

47 He noted that Mr Narkle had incurred two potentially serious head injuries and also had long-term alcohol abuse. Mr Narkle had reported memory problems and a cognitive assessment indicated potential problems with concentration and frontal lobe function. As a consequence, Dr Wynn-Owen suggested that Mr Narkle should undergo a neuropsychological assessment which may need to be supported by cranial imaging such as MRI or PET scanning to identify if he has any cognitive deficits. He suggested that such an assessment would enable treatment to be tailored to meet Mr Narkle's cognitive abilities.

48 In his evidence, Dr Wynn-Owen said that there was very strong evidence to suggest that alcohol is a significant factor in Mr Narkle's sexual offending. He said that alcohol contributes an element of additional impulsivity and that when intoxicated Mr Narkle is more likely to take offence or become angry.

49 Dr Wynn-Owen assessed Mr Narkle as having an antisocial personality disorder. This manifested itself in denial and minimisation of criminal conduct; a lack of remorse for his sexually violent behaviour; a lack of empathy for victims; chronic alcohol abuse; periodic threats of self-harm; disregard for the law; poor self-control; poor planning; difficulty coping with stress; and difficulty with management of anger. Dr Wynn-Owen noted that antisocial personality disorder was a reliable predictor of reoffending risk. He noted that sex offender treatment programs have been shown to be of benefit to people with antisocial personality and psychopathy. Successful completion would mean that at the end of the program a person would have the ability to understand the situations that put him at risk and the factors which would otherwise lead to anger and sexually violent behaviour.

50 Dr Wynn-Owen was asked to consider the possibility that Mr Narkle was motivated to change but had been unwilling to participate in prison based programs because of a fear that they lacked confidentiality. In this regard, he said that taking into account Mr Narkle's other behaviour patterns, such as the way he behaved in prison towards prison officers and his long term behaviour in the community, it is more likely that Mr Narkle was engaging in avoidance rather than having a genuine reason for not participating in prison based programs.

51 In cross-examination Dr Wynn-Owen accepted that the clinical assessment tools that he utilised had some limitations. He accepted that the Static-99 test was based upon unchanging historical factors. However, he noted that the presence of dynamic factors such as alcohol use and anger only served to increase the risk that was indicated by the Static-99 test. He accepted that there was a long period between the two serious sexual offences, however, he did not accept that that reduced the risk, particularly when it was taken into account that a significant part of that period was spent in custody and Mr Narkle's opportunity for sexual offending was therefore limited. He did, however, accept that an inference could be drawn from this period of non-offending that Mr Narkle might be capable of controlling his behaviour.

52 Dr Wynn-Owen accepted that programs for dealing with alcohol abuse and anger management were available in the community. He also accepted that individual counselling in a community setting could potentially be beneficial. Community based sex offender treatment programs also had the potential to be beneficial. However, it was difficult to assess whether any of these programs would be efficacious in the case of Mr Narkle in reducing his risk of reoffending because there had been no assessment of his cognitive deficits. That is to say, Mr Narkle may not have sufficient ability to engage with and benefit from such programs. Dr Wynn-Owen said that he had identified some deficits which suggested frontal lobe dysfunction and these preliminary indicators needed to be clarified. Furthermore, it was also important to take into account that Mr Narkle had not participated in programs that were made available to him in prison.

53 In Dr Tanney's report of 30 November 2009 he concluded that after applying a number of different clinical tests, he assessed Mr Narkle as being at a high risk of committing further serious sexual offences against vulnerable females with accompanying violence within the next five years or sooner should no further intervention take place. By a high risk Dr Tanney meant a 40 % chance within the next five years. Dr Tanney stated that any such re-offending would be most likely opportunistic and unpredictable. However, a number of risk elements are likely to exacerbate the likelihood of further offending: alcohol intoxication; inability to cope; and nonexistent social or support relationships. He considered that alcohol is the most critical factor in triggering a risk scenario.

54 Dr Tanney noted that possible victims of further sexual offending represented a large population group to whom Mr Narkle, if he were released, would have considerable access. Potential victims were not confined to relatives or women falling into a small identifiable group. Offending would appear to be opportunistic and primed by alcohol intoxication.

55 Dr Tanney concluded that save for continuing detention it is not possible to construct supervisory conditions that would manage Mr Narkle's access to those at risk. A key factor in lessening the risk to an acceptable level would be Mr Narkle's willingness to adhere to supervision and his engagement with treatment programs. Dr Tanney stated in his report that he is of the view that community supervision does not have the potential at this time to reduce the likelihood of Mr Narkle sexually reoffending to a manageable level. This is because Mr Narkle is unprepared or unable to adhere to, or meaningfully commit to, planned programs at this time.

56 Dr Tanney noted that Mr Narkle has been in custody for a considerable period of his adult life and has minimal social or personal supports in the community. He also had major difficulties with interpersonal relationships and admits a lack of trust both in people and in institutional resources. In Dr Tanney's view, Mr Narkle's suggestions for risk management, whilst positively directed, are unrealistic.

57 In making his assessment, Dr Tanney conducted two interviews with Mr Narkle. It is notable that Mr Narkle's attitude was defensive and resistant in these interviews. In regard to both the 1986 and 2003 offences, he denied his conduct and disparaged the victims. He expressed no remorse or regret.

58 Dr Tanney utilised similar tests as those applied by Dr Wynn-Owen. Dr Tanney's conclusions were that the Static-99 test predicted a high likelihood of reoffending. The Risk for Sexual Violence Protocol test (RSVP) suggested chronic major broadly based deficits in all risk factor clusters and few grounds for optimism about rehabilitation potential. The three factor predictor model offered no or minimal support for a lessened likelihood of reoffending.

59 As an alternative to these tests, Dr Tanney also considered a list of behavioural factors that might impact on the likelihood of reoffending. These factors were considered in the context of Mr Narkle's particular life circumstances. Dr Tanney's conclusion in this regard was that the undesired behaviour is established and reinforced. He concluded that Mr Narkle has virtually no protectors against reoffending. His inner resources are impaired and external resources are absent or limited. This points to an increased likelihood of reoffending. Dr Tanney stated that Mr Narkle's attitudes towards women; his coping by aggression; violence to maintain control and meet his needs; his impulsivity; and the general disinhibition of social controls with alcohol intoxication all support the view that he has too few controls. These attitudes and maladaptive behaviours are deeply entrenched, socially reinforced and resistant to considering the challenge of change.

60 Dr Tanney was asked about Dr Wynn-Owen's view of the possibility that past head injury and chronic alcohol abuse had led to significant brain damage. He said that he was not convinced as to this, but accepted that, should there be such damage, there would be a need to modify future treatment in terms of expectations and the delivery of the type of treatment offered.

61 In evidence, Dr Tanney said that in his view Mr Narkle had the capacity to change and that he might be able at some point in the future to use programs that are available in the community to meet his treatment needs. However, his concern was that at the moment Mr Narkle was not able to do that. In Dr Tanney's view Mr Narkle should be given the opportunity to demonstrate that he can change by being again offered treatment opportunities in an institutional or residential setting.

62 In cross-examination Dr Tanney accepted the limitations of the tests that he had applied and that it was not possible to provide a definite predication as to human behaviour given its inherent nature. However, he stated that the best predictor of future human behaviour is past behaviour and in this regard the Static-99 test had value. Dr Tanney also accepted (as did Dr Wynn-Owen) that the Static-99 test had not been validated on an Aboriginal population. However, he noted that the test had been assessed several times in North America and in Scandinavia and New Zealand and that the New Zealand assessment had included a population that was 50 % Maori. Dr Tanney also accepted that the Static-99 was based on unchanging historical factors and did not take into account the possibility that a person had rehabilitated or brought about positive change in their life. However, that was a possibility that he had considered.

63 Whilst Dr Tanney was of the view that Mr Narkle had the capability of changing, he was also of the view that the motivation to do so was presently nonexistent. When questioned further on this, Dr Tanney said he had discussed a number of treatment options with Mr Narkle including medications to deal with substance abuse and sexual desire. Mr Narkle had 'simply rejected those out of hand'. Dr Tanney did not accept that this rejection arose from some concern on Mr Narkle's part about taking medications. He noted that Mr Narkle had been prescribed a number of other medications for health issues and that he was highly compliant in taking those medications. Dr Tanney accepted that Mr Narkle had expressed a desire not to offend again so that he could see his children. However, Dr Tanney did not accept that Mr Narkle had genuine motivation to do things that would help to achieve the stated objective.

64 In regard to motivation to change, Dr Tanney noted that Mr Narkle did not appear to understand that the offences he had committed were serious offences and that there were things that could be done to change him and to change the likelihood of such conduct reoccurring. Dr Tanney said that Mr Narkle seemed to be incapable of making connections between things that had happened in his life and things that would occur in the future. There was a 'straight unwillingness to talk about them'. Dr Tanney was left with an uncertainty as to whether Mr Narkle was saying he could not make the connections or he would not do so. Mr Narkle stated to Dr Tanney that he did not look to the past but took one day at a time. The difficulty with this was that it shut off any discussion regarding planned thinking. In Dr Tanney's view, he was either avoiding engaging with past events or denying them. Dr Tanney said that it was as if for Mr Narkle the past events were not real, these things never happened, and this was a remarkably subtle defence mechanism. It was notable that although Mr Narkle had accepted and spoken of the sexual offending in the past, in dealing with the psychiatrists he chose to deny or defend it. Dr Tanney noted that Dr Wynn-Owen had suggested that this may be because of frontal lobe damage and consequential limitations to cognitive ability but Dr Tanney was less convinced that this was the explanation and was more inclined to the view that Mr Narkle was making a deliberate choice not to deal with past experiences.

65 In regards to Mr Narkle's offending behaviour, Dr Tanney noted that Mr Narkle was prone to general violence and on two occasions this violence was linked with serious sexual offending. It could not, however, be said that violence was always used to coerce sexual gratification. Whilst it was very likely that Mr Narkle would reoffend with violence, whether that violence would also be linked with sexual offending was much more unpredictable. Dr Tanney accepted that the two instances of serious sexual offences were manifestations of a larger tendency to exhibit violence.

66 Dr Tanney was asked about the efficacy of individual counselling as opposed to group treatment programs. He said that the weight of opinion is that treatment of sexual offenders can be done more effectively in group contexts. Such a context gives more opportunity to try things out that are new methods of learning. He also noted that the reality is that people who have a strong trait of psychopathy can more often than not get around an individual therapist. For a person with antisocial behaviour tendencies like Mr Narkle, a group program would be a substantially better option than individual counselling. Whilst individual counselling coupled with a community based group program may have some value, Dr Tanney did not consider that it would have the same benefits as an intensive sex offender program that is conducted in prison. This is because the intensive program has a saturation nature and this is more likely to effect changes in a person's long-standing behaviour.

67 Dr Tanney accepted that whilst Mr Narkle had been unwilling to engage with programs in a prison environment in the past, the prospect of indefinite detention might change the level of his motivation. When asked whether motivation might also change if he was offered the opportunity to be released into the community, Dr Tanney said that the indications in this regard were that he did not have a good ability to learn from past consequences. Dr Tanney also noted that when asked whether he would participate in an intensive sex offender program in prison in the future Mr Narkle had said 'No'. However, there were indications that in other cases continued detention had reduced resistance to participating in programs. Dr Tanney also noted that remaining in custody provided an opportunity to continue to offer programs that were otherwise unavailable. On the other hand, to be released from prison into the community without treatment could add to an accumulating risk.

68 Dr Tanney considered whether management controls could be implemented in the community that would reduce the risk of reoffending. Whilst a number of such controls were accepted by Dr Tanney as having the prospect of some effect, including regular monitoring; complete abstinence from alcohol with random monitoring; stable accommodation; involvement in treatment programs; and community support with an opportunity of some defined social role, whether any of these controls would be effective in the case of Mr Narkle is influenced by his attitude and his abilities as constrained by his personality issues. Dr Tanney also referred to the difficulty in gaining compliance of a person who has a passive aggressive resistant style. Furthermore, Dr Tanney remained of the view that even the feasible delivery and enforcement of directed management in the community would not reduce the likelihood of Mr Narkle sexually reoffending to a manageable level.

69 Mr Narkle's history of offending reveals an entrenched pattern of violence and alcohol abuse. The violence is not always, or even often, coupled with sexual offending. However, on two occasions serious sexual offences have occurred in a context that included violence and intoxication, of both victims and perpetrator.

70 The fact that the two incidents of serious sexual offending occurred some 17 years apart might be thought to indicate that the likelihood of sexual reoffending is low, but for several reasons such a conclusion cannot be drawn. Firstly, the sexual offending is a manifestation of a more general tendency to violence. The sexual aspect has occurred unpredictably and opportunistically in the past. The fact that the last violent offences in 2003 were of a sexual nature suggests that this continued to remain a potential aspect of Mr Narkle's violent behaviour. Secondly, for a very significant proportion of the 17 year gap Mr Narkle was in custody and thus had limited opportunity to be exposed to alcohol and vulnerable females. Thus the absence of further serious sexual offending does not necessarily indicate that behaviour leading to this type of offending was controlled or dealt with or that the behaviour had changed its nature in this important respect.

71 In assessing whether any risk of reoffending is unacceptable, it is important to take into account the nature of any offence that Mr Narkle is likely to commit. The previous offences have involved significant violence on vulnerable female victims. Whilst the 1987 and 2003 incidents have some common features: intoxication; violence; female victims known to Mr Narkle; and offences committed in the home environment, it is not possible to discern a clear pattern such as to be able to predict with any degree of certainty how or when such an offence would occur in the future. What can be said is that any such offences are likely to involve alcohol and violence but are otherwise largely unpredictable. However, the serious nature of this type of violent offending means that a risk of less than 50% in the next five years could, in my view, be unacceptable. It is not possible to predict with certainty what that risk is or to express it in some figure or percentage term, but I am satisfied that the risk is significant for the reasons that follow.

72 On the basis of the psychiatric evidence, Mr Narkle falls into a category that presents as a high risk of reoffending by committing further serious sexual offences in the next five years if released into the community. I note in this regard that both psychiatrists were careful to distinguish the prospect of further serious sexual offences from violent offences more generally. This conclusion is supported not only by applying tests based upon unchanging historical factors, but by taking into account dynamic and personal factors such as Mr Narkle's alcoholism, tendency to violence and antisocial personality. To the extent that historical factors relate to conduct prior to the last incarceration in 2003, it is relevant to consider whether anything has changed that could mitigate or reduce the risk of reoffending.

73 The evidence of the psychiatrists is that the risk of reoffending has not changed since 2003. No programs have been undertaken by Mr Narkle to address his violent tendencies, alcoholism or sexual offending. In fact, there has been a wilful resistance to such programs. That resistance, in my view, arises from a lack of motivation and a negative attitude to address behavioural factors. I have considered other possible explanations for Mr Narkle's intransigence, including the suggestion that he has been concerned regarding a lack of confidentiality of group programs. I accept that he has expressed such a concern, but it is inconsistent with other evidence. That concern does not account for a failure to undertake violence or substance abuse programs. The concern regarding confidentiality was expressed to arise from a reluctance to talk about sexual offending in the presence of other offenders who may report back the broader Noongar Community. That may be applicable to the sexual offender program but not to the violence and alcohol programs. Furthermore, it is notable that in his recent contact with the psychiatrists who prepared reports for this matter, Mr Narkle has denied the serious sexual offences and denigrated the victims of those offences. This strongly indicates that the real reason for his nonparticipation in programs is a resistance to change and a lack of acceptance of a need for such change. What is revealed by recent examinations is that Mr Narkle positively refuses to accept or address his past behaviour. Nor has he shown any real intention to address factors which have contributed to that behaviour, other than to express an entirely unplanned and thus unrealistic intention to avoid abusing alcohol.

74 There appears to be a prospect of change, but not one that is likely to be achieved in the community context. Whilst programs and treatment have the potential to reduce the risk of reoffending, they depend significantly for their efficacy on Mr Narkle's attitude and genuine application. The evidence does not support a conclusion that supervision and programs within the community would either be properly embraced by Mr Narkle or would be efficacious in reducing the risk of his reoffending. The lack of efficacy arises from both the lack of motivation and from the unsuitability of those programs to meet the treatment needs of Mr Narkle. In particular, the evidence is that the most appropriate program for dealing with Mr Narkle's sexual offending is the intensive program only available in a prison context. Whilst it may not be appropriate to detain Mr Narkle merely to ensure that he had an opportunity to engage with a treatment that is only available in prison, he presently presents as an unacceptable risk and the treatment options available in the community would not reduce that risk such as to make conditional release appropriate.

75 Based upon Mr Narkle's past history of offending, the nature of the serious sexual offences he has committed and his high risk of re-offending I am satisfied to a high degree of probability that there is an unacceptable risk that further such offences would be committed by him if an order under the Act was not made. For that reason Mr Narkle is a serious danger to the community. I note in that regard that the danger he presents is not confined to a single person or confined group and would be a largely unpredictable risk that could occur opportunistically. The risk is compounded by the fact that Mr Narkle has not addressed the factors that contributed to his past offending, namely his alcoholism, tendency to violence and antisocial personality disorder. Furthermore, recent psychiatric assessments support a conclusion that these factors would continue to have a significant effect on Mr Narkle if he were released and that he has little appreciation of their effect or motivation to control them. In the present circumstances I am satisfied that there are no conditions that would be either affective or adequate to manage the risk or reduce it to an acceptable level. Community protection, as the paramount consideration, cannot be met other than by indefinite detention. However, other factors such as the availability of appropriate care and treatment also strongly favour detention in this case. In coming to this conclusion I have taken into account the very serious consequences to Mr Narkle of being further detained, but those consequences are outweighed in this case by the need to protect the community.

76 I have also taken into account the tentative view expressed by Dr Wynn-Owen that Mr Narkle's inability to engage effectively with treatment programs may be compromised by cognitive deficits. There was a suggestion that such deficits may have been caused by previous head injuries and by long term alcoholism. There is insufficient information available to determine whether there would be any benefit in pursuing neurological testing to determine whether Mr Narkle has some brain damage. This is a matter which may need to be considered by the Department of Corrective Services. However, it was not necessary for further evidence on this issue to be obtained for the purposes of this application. That is because what is of essential importance is whether Mr Narkle presents as an unacceptable risk of reoffending. In my view, it is clearly the case that he does present as such an unacceptable risk and as such is a serious danger to the community. Whether there are impediments to reducing that risk based upon cognitive deficits and whether those cognitive deficits may need to be taken into account in adjusting programs to meet Mr Narkle's individual needs are matters that can be taken into account in determining appropriate future treatment, they do not, however, bear upon the question of the risk to the community that Mr Narkle presently presents. No doubt this is a matter that may require further consideration at an annual review stage.

77 I have considered the evidence as to the availability of accommodation for Mr Narkle with relatives in York. Whilst I have some concerns as to the suitability of that accommodation and the availability of treatment and supervision outside the metropolitan area, this is not a factor that has ultimately borne upon my decision. Since I am of the view that Mr Narkle presents as a serious danger to the community and that a supervision order would be inappropriate in any event, it has not been necessary to consider the particular conditions of a proposed supervision order. Based upon the evidence and in particular that of the psychiatrists, it is clear that no conditions could be imposed that would satisfactorily reduce the risk of reoffending to an acceptable level.

78 Pursuant to s 17(1) of the Act, I order that Shane Narkle be detained in custody for an indefinite term for control, care or treatment.

Sexual Offenders Act 2006

Director of Public Prosecutions (WA) v GTR

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (91 paragraphs)

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- NARKLE [2010] WASC 7 (18 January 2010)

Parties

Legislation Cited (1)