DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- PINDAN [No 2] [2015] WASC 157 (5 May 2015)

3 There were further directions that the report prepared by the Department of Corrective Services be provided to Mr Pindan before the hearing, and that the psychiatrist named, namely Dr Febbo, should liaise with the Department of Corrective Services as to a management plan, if appropriate, for the respondent. There were other directions given authorising the supply of audio visual recordings and interviews and there was liberty to apply.

4 In due course, a series of materials was prepared, including the report of Dr Febbo and a series of other reports from the Department of Corrective Services; from the West Kimberley Regional Prison; from PathWest; other reports from Casuarina Prison; and then a cognitive intervention programme report; Pathways programme report; a report by the Department of Corrective Services treatment progress forensic psychologist report; and a Department of Corrective Services community supervision assessment by Ms Wasley, a Senior Community Corrections Officer, in November 2014. All those materials have been tendered by consent on the present application.

5 On the day fixed for the hearing of the review, namely, 11 November 2014, the application came before Hall J who, after hearing submissions which effectively dealt with the unavailability of reports or arrangements for the future accommodation in the community of Mr Pindan, agreed to adjourn the application until 25 February this year.

6 The matter then was listed for hearing before me on 25 February 2015 and at that point, according to the evidence, encouraging prospects were available about the accommodation of Mr Pindan in the Kimberley region with a relative. However, very shortly before that hearing, the relative concerned withdrew consent to the proposed arrangements, leaving no alternative accommodation arrangements in place and the application in the situation where there was insufficient time to explore other alternatives. As a consequence, and by consent, I then adjourned the application for a continuing detention or supervision order sine die and it has been relisted for hearing before me today.

7 In the meantime, further reports have been prepared and filed: exhibit 2, a report by Chantelle Place, a forensic psychologist dated 2 February 2015; exhibit 3, a report by Ms Wasley dated 13 February 2015; and exhibit 4, a still further report by Ms Wasley dated 31 March 2015. The focus of these recent reports has been upon the availability or suitable of accommodation arrangements for Mr Pindan with relatives or others in the Kimberley region. They proceed on the assumption that, according to the psychiatric opinion and the other reviews, Mr Pindan remains an offender who, if released unconditionally, would represent a danger to the community and that there would be an unacceptable risk of him reoffending were that to occur.

8 Nevertheless, the evidence, such as it is, and it has not been challenged by cross-examination or otherwise in view of the agreement of the parties about the determination of today's hearing, is to the effect that Mr Pindan would be a person who, despite representing the danger to the community, would be suitable for a supervision order if appropriate accommodation arrangements were to be found, hence the concentration over the past four or five months on the exploration for possibilities of acceptable alternative accommodation. However, the latest reports indicate that the only alternative propositions which have been investigated are unavailable, again because there is no close relative ready and able to provide accommodation and supervision for him.

9 In those circumstances, it is acknowledged that it would be inappropriate to make an order providing for his release subject to a supervision order and that the only alternative available to the court is to decline to rescind the existing detention order. That situation appears to acknowledge the high degree of probability that, were suitable accommodation arrangements to be made, then a supervision order with appropriate conditions could or should be made if the various authorities accept the accommodation arrangements.

10 In those circumstances by his counsel, Mr Pindan agrees, I am sure reluctantly, but nevertheless realistically, that there is no alternative but for me to decline to rescind the existing detention order, but acknowledges that if and when, as he hopes, arrangements for future accommodation suitable to the authorities can be put in place, that he would be able to make an application to the court under s 30 of the Act for a review of his existing detention order, more than 12 months having now elapsed since it was made and this review having taken place. Such an application could only be made with the leave of the court but, in such a case, the court would need to be satisfied that exceptional circumstances exist. Without binding the DPP counsel for the applicant acknowledges that were suitable accommodation arrangements to be discovered and approved within the next 12 months, that would probably lay the foundation for an application for review by leave of the court under s 30 on the grounds that this constituted exceptional circumstances. I understand that to be the premise upon which it is accepted that the fate of today's application must be to refuse to rescind the existing order. That is enough to indicate that I am satisfied that the appropriate disposition of the present application is to refuse, or to decline, to revoke the existing detention order.

11 There have been written submissions put in by counsel for the applicant in November 2014 which refer to the relevant authorities applying to these applications, and I mention these in case it may be thought that these had been overlooked, or not addressed, on this present application. They have been reviewed by Martin CJ in the Director of Public Prosecutions v Yates [2014] WASC 136, particularly at [5], and it remains the position that the court must be satisfied that there is an unacceptable risk that if a person who is a serious danger to the community were not subject to a continuing detention order, or a supervision order, the person would commit serious sexual offence. That is provided for by explanation in the case of the Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28]. There are other authorities to the same effect which I do not consider that I need mention.

12 In the circumstances, there being no acceptable arrangements for the proper accommodation of Mr Pindan in the community, it follows that I must decline to rescind the existing detention order. In doing so, I acknowledge that it seems to be conceded on both sides that on the evidence as it stands, that is, as it is in April 2015, if suitable accommodation arrangements were to be found and approved, this would be a case in which release on a supervision order would be appropriate. Unfortunately, that is not the case yet.

13 The order of the court will be that the court refuses to revoke the existing detention order.