//
[2017] WASC 107
General information, not legal advice.
Supreme Court of WA
2017-04-13
Fiannaca J
Original judgment source is linked above.
1 This is an annual review of a continuing detention order under the Dangerous Sexual Offenders Act 2006 (WA) (the Act).
2 In November 2007, the applicant was convicted on his pleas of guilty of two counts of sexual penetration without consent and one count of attempted sexual penetration without consent committed in July that year against a woman in her home, after he had broken into the house. He had woken her from her sleep and had forced himself on her. He was violent, dragging her by her hair to different locations in the house to commit the sexual acts. For the sexual offences and related offences of aggravated burglary and deprivation of liberty he was sentenced to 6 years' imprisonment.
3 The respondent was 28 years old when he committed the offences. He had twice before been convicted of sexual assault, in 1994, when he was 15, and in 1997, when he was 18. For the latter he was sentenced to 3 years' imprisonment. On each occasion the respondent commenced to have sexual intercourse with a woman who was sleeping, before the woman woke and screamed or pushed him off, causing him to flee. The offence in 1994 involved the respondent breaking into the victim's house. The offence in 1997 was committed in a park, where the victim (a different woman) was sleeping with her boyfriend. There were other occasions in 1993 and 1995 when the respondent had gone into women's homes without consent while they were asleep, although he did not commit a sexual offence on those occasions.
4 Before the respondent completed the sentence imposed in 2007, the Director of Public Prosecutions (the applicant) applied for an order under Division 2 of the Act that the respondent be detained indefinitely or made subject to a supervision order on release, on the basis that he was a serious danger to the community.
5 On 28 October 2013, McKechnie J found in those proceedings, in accordance with s 7 of the Act, that the respondent was a serious danger to the community and made an order, under s 17(1)(a), that he be detained in custody for an indefinite term for treatment: Director of Public Prosecutions (WA) v Pindan[1] (Pindan [No 1]). His Honour relied on the respondent's history and expert evidence then available to conclude there was an unacceptable risk the respondent would commit a serious sexual offence if he was not subject to a continuing detention order. He considered that the respondent's consumption of alcohol was a significant risk factor and that the respondent lacked insight into that risk.
6 The continuing detention order had to be reviewed annually. At the first annual review, commenced by an application in September 2014, but not heard finally until 7 April 2015, EM Heenan J declined to rescind the order: Director of Public Prosecutions (WA) v Pindan[2] (Pindan [No 2]). The proceedings were unusual, in that the review proceeded, by agreement between the parties, on the basis of reports and other written materials, without any oral evidence being called. That was because
7 His Honour proceeded on that basis, noting that 'if suitable accommodation arrangements were to be found and approved, this would be a case in which release on a supervision order will be appropriate' [12].
8 This is the second annual review of the continuing detention order. Evidence was presented both in the form of reports and orally, including the evidence of a psychiatrist who has reviewed the respondent's risk previously. On behalf of the respondent, his mother's home in Broome was proposed as suitable accommodation for the purposes of a supervision order.
(a) Is the respondent still a serious danger to the community?
(b) If so, could his risk be adequately managed (so as to provide adequate protection of the community) under a supervision order within the community at this point in time, if suitable accommodation is available?
(c) If so, is the proposed accommodation, namely his mother's home in Broome, suitable for the purposes of a supervision order?
10 The submissions made on behalf of the respondent raised a number of further issues:
(d) In answering (b) above, am I bound by the conclusion reached by EM Heenan J at the first annual review, so that, unless the respondent's risk has regressed, I should find that release of the respondent on a supervision order would be appropriate if suitable accommodation is available, or am I required to determine the question afresh?
(e) As the order made by McKechnie J was that the respondent be detained indefinitely for treatment, if no further treatment is available or considered appropriate for the respondent while in custody
(i) am I obliged to rescind the detention order on the basis that detention will be punitive, rather than for treatment, irrespective of whether a supervision order is made?
(ii) should those circumstances outweigh any concerns I may have about whether the respondent's risk can be managed under a supervision order, or about the suitability of accommodation, and lead to the making of a supervision order?
(f) If the answer to (e)(i) or (ii) is in the affirmative, will further treatment be provided to the respondent if his detention were to continue?
11 I conducted the review on 7, 14 and 15 April 2016. After considering the evidence and submissions presented at the review, I was satisfied that the respondent remains a serious danger to the community and that the adequate protection of the community can only be achieved at this stage by the continued detention of the respondent for treatment. I was satisfied that further treatment will be available to the respondent while he remains in custody, although I did not consider that the unavailability of treatment would result in such detention contravening the objects of the Act.
12 Accordingly, on 22 April 2016 I reconvened the proceedings and made orders 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 without further delay so as not to extend inordinately the period before the respondent's next annual review.
14 I am of the opinion that, while I should take into account the conclusion reached by EM Heenan J at the first annual review concerning the appropriateness of releasing the respondent on a supervision order if suitable accommodation were available, I am required to make my own assessment of whether a supervision order would provide adequate protection of the community at the present time, based on the evidence adduced in the present review.
15 It was submitted on behalf of the respondent that the community would be adequately protected if the respondent were released on a supervision order that was essentially in the terms of a draft tendered in the proceedings. It was submitted that there is suitable accommodation available, namely his mother's house in Broome.
16 I am not satisfied that releasing the respondent to reside at his mother's house on a supervision order, with conditions as proposed in the draft supervision order, would provide adequate protection of the community. This is because of the combination of a number of factors.
17 First, the accommodation is attended with problems (in respect of its location and surrounding circumstances) that are likely to expose the respondent to significant risk factors that have led to his sexual offending in the past, in particular his consumption of alcohol and antisocial behaviour.
18 Secondly, the respondent has demonstrated, over the last 12 months, a negative attitude towards the conditions with which he would be required to comply under a supervision order. I do not have confidence that he would have the appropriate resolve to comply with some of the conditions, including the condition requiring him to disclose his status and past sexual offending to any woman with whom he was to commence a domestic or intimate relationship.
19 Thirdly, and related to the last point, there has been some conduct on the part of the respondent while in custody over the last 12 months that suggests he would have difficulty in complying with lawful directions given to him.
20 Fourthly, I would expect that, as head of the household in which the respondent would be living, his mother would have a responsibility to avoid situations being created in her home in which the respondent's risk of reoffending may be increased, for instance because of the presence of women in vulnerable positions. However, Ms Pindan appears to lack awareness of key aspects of the respondent's offending which are relevant to identifying risk factors, so that I do not have confidence in her ability to fulfil that responsibility.
21 Finally, on the evidence presented at the hearing, I am of the opinion that the respondent has outstanding treatment needs that must be addressed, and I am satisfied he will be provided with further treatment. While the evidence suggests there may be little prospect of further treatment gains, that appears to be largely dependent on whether the respondent is prepared to engage with therapy. The respondent must be given the opportunity to demonstrate that he will be able to engage with continuing treatment if he were to be released in the community.
22 The relevant legislative provisions and legal principles that apply to the decisions which a court is required to make on an annual review, and the proper approach to be taken to that task, are outlined, most helpfully and comprehensively, in Director of Public Prosecutions (WA) v Lyddieth.[3] For the purposes of providing context for my conclusions about the issues raised in these proceedings, it is only necessary for me to canvass some of the relevant provisions and principles, and to expand on them where appropriate.
(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.
24 Subsection (1) proceeds from the premise that the respondent was a serious danger to the community, as that is the foundation for a continuing detention order: see s 17(1) of the Act. The question to be determined is whether the respondent remains a serious danger to the community. If not, then the order must be rescinded.
25 The respondent remains a serious danger to the community if there continues to be an unacceptable risk that, if he were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence: s 3 and s 7 of the Act; Director of Public Prosecutions (WA) v Williams;[5] Director of Public Prosecutions (WA) v GTR.[6]
26 If the respondent remains a serious danger to the community, then the court must do one of the two things specified in pars (a) and (b) of s 33(2): GTR [51] (Steytler P & Buss JA). See also Williams; Woods v Director of Public Prosecutions (WA)[7] and Director of Public Prosecutions (WA) v Pindan [No 3][8] (A Pindan [No 3]).
27 The paramount consideration in deciding between continuing detention and a supervision order under s 33(2) is the need to ensure adequate protection of the community. When considering whether a supervision order would adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order to ensure that protection: s 18(2)(a) of the Act. The use of the word 'adequate' indicates that a qualitative assessment is required. It is a matter for judgment in each case: Williams [57]. It cannot simply be assumed that the protection of the community will always favour detention, as the most assured form of prevention: Williams [58]; Director of Public Prosecutions v Decke;[9] A Pindan [No 3] [49].
28 The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer;[10] Williams [79] (referring to the 'least restrictive alternative compatible with the protection of the public'); A Pindan [No 3] [49]. The first part of that proposition recognises that both a detention order and a supervision order involve restrictions on the respondent's liberty. The second part gives effect to the paramount consideration under the Act.
The law applicable to the choice to be made under s 33(2)
29 The paramount consideration under s 33(3) is concerned with ensuring adequate protection of the community. I am mindful that it is not the only consideration to which I should have regard and give weight: Williams [57]. However, in my opinion, s 33(3) does require a court to be satisfied that the form of order chosen is capable of providing adequate protection of the community. If the court is not satisfied a supervision order under s 33(2)(b) is capable of providing such protection (having regard to the possible conditions which might be imposed, as identified in the evidence), it must decline to rescind the detention order. This is the view that was taken by Simmonds J in Lyddieth [29] [30] and [147]. It is the approach considered to be correct by Wheeler JA (LeMiere AJA agreeing) in Williams when dealing with the same issue in the context of s 17(2). Her Honour said:
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order. [86]
30 It would also appear to be consistent with the approach considered to be appropriate in that case by Martin CJ, who framed the question in terms of 'whether a supervision order could be made which would provide adequate protection to the community' [47].
31 Apart from the fact that the decision to be made by the court is in the context that the respondent is already subject to a continuing detention order, s 33(2) mirrors the provisions of s 17(2), and it is clear from the judgment of Steytler P and Buss JA in GTR, at [50] - [51], that the provisions of s 33 and s 17 should be construed in the same manner.
32 Therefore, if, having regard to the evidence concerning possible conditions which might be imposed on a supervision order under s 33(2), I am left in doubt as to whether such an order would adequately protect the community, I must decline to rescind the continuing detention order.
The significance of findings at previous hearings (a) The issue
33 The respondent's submissions in this review raise a further issue concerning the proper construction of s 33. The issue is fundamental to the approach a judge should take to making findings on an annual review, in particular the status to be accorded to findings made on the Division 2 hearing which resulted in the continuing detention order under review, and in any previous annual review of that order. I referred to the issue in Director of Public Prosecutions (WA) v Ugle [No 3],[11] Director of Public Prosecutions (WA) v Dinah [No 8][12] and Director of Public Prosecutions (WA) v Misko [No 4],[13] although it was not necessary to resolve the issue of construction in those cases because of the approach the parties had taken to the proceedings.
34 The issue had been identified in A Pindan [No 3], at [54] [55], by Corboy J, who, similarly, considered it was not necessary to resolve the issue in that case, and was later encapsulated by Martin CJ in the following passage from Director of Public Prosecution (WA) v Yates [No 2]:[14]
In Director of Public Prosecutions (WA) v Pindan [No 3], Corboy J raised an issue with respect to the proper construction of this section of the Act which he did not consider it necessary to resolve in that case. The issue concerns the extent to which the court conducting the review is bound by factual findings made by the court which made the continuing detention order with respect to such matters as the risk of reoffending, the unacceptability of that risk or the protection likely to be afforded to the community by a supervision order. If the court conducting the review is not so bound, is it obliged to make its own independent and fresh assessment of those factual issues? Or is 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]
35 His Honour noted that, as in A Pindan [No 3], the parties in Yates [No 2] did not address those questions of construction in their submissions, being content to proceed on the implicit assumption that the function of the court conducting a review was of the more confined character, which was to the effect that the focus of the court's attention is upon the identification of any changes in circumstances since the continuing detention order was made, and if so, the consequences of those changes in terms of risk to the community: Yates [No 2] [4] [5]. In those circumstances his Honour did not consider it necessary to resolve the issue of construction.
36 The issue had also been considered by Simmonds J in Lyddieth, but again his Honour did not consider it necessary to resolve the matter in that case.
37 The consequences of adopting an approach by which the court is not bound by the previous findings were adverted to by Corboy J in A Pindan [No 3]:
That approach would leave open the possibility that the review court could reach a different conclusion to a court that had previously made a continuing detention order about matters such as the risk of re-offending, the unacceptability of that risk or the protection likely to be afforded to the community by a supervision order even though there had been no material change in the matters specified in s 7(3). [54]
38 The issue requires further consideration in this case, because the respondent contends that I should proceed on the basis that the findings made by EM Heenan J at the first annual review were correct, in particular that the community could be adequately protected from the respondent's risk of serious sexual reoffending by the making of a supervision order, if suitable accommodation could be found. The respondent contends that, on that approach, unless there has been a change in the offender's circumstances since the last annual review, and provided suitable accommodation is now available, I should find, as did EM Heenan J, that a supervision order would ensure adequate protection of the community. The issue also arises in this case in the context of making findings about the nature of the risk posed by the respondent. As will emerge below, there were findings made by McKechnie J at the Division 2 hearing in 2013 (as to whether the respondent has a proclivity to have sex with sleeping women) that may require reconsideration.
39 The starting point is that on an annual review the court is dealing with an application under the Act that requires a finding to be made whether the respondent is a serious danger to the community. If the court does not find that the respondent remains a serious danger to the community, it must rescind the continuing detention order. If the respondent is not a serious danger to the community at the time of the review then, obviously, the court could not find he 'remains a serious danger to the community'. Therefore, the provisions of s 7 apply.[15] I alluded earlier to the fact that it provides meaning to the concept of 'serious danger to the community', but in the present context it is necessary to have regard to the process specified in the section for arriving at such a finding. The section provides:
(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must 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.
(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied
(a) by acceptable and cogent evidence; and
(b) to a high degree of probability.
40 Subsection (3) then specifies a number of matters to which the court must have regard in making the decision. It is not necessary to set out the subsection, but the matters that are listed (apart from 'any other relevant matter') include: any psychiatric report prepared for the proceedings; any other medical, psychiatric or psychological report relating to the person; information concerning the offender's propensity to commit serious sexual offences, including his antecedents, criminal history and whether he has demonstrated a pattern of offending behaviour; any efforts made by the person towards rehabilitation; and the effect on the person of participation in any rehabilitation programme. The subsection does not differentiate between a proceeding for a Division 2 order and an annual review or any other application in which it is necessary to decide whether a person is a serious danger to the community. By virtue of the nature of the matters to be taken into account, many that were relevant to the previous finding (or findings) that the respondent was a serious danger to the community will inevitably be relevant on the annual review.
41 It seems to me that the issue is whether the characterisation in s 33 of the task on an annual review in respect of the threshold question, viz to decide whether the respondent remains a serious danger to the community, qualifies the requirements of s 7. Section 33 must be read in conjunction with s 7.[16] What is clear is that, if the respondent's liberty is to continue to be affected under the Act (whether by detention or a supervision order), the court must be satisfied the respondent is, at the time of the annual review, a serious danger to the community. In my opinion, the language of s 33 does not affect the onus placed on the DPP to satisfy the court of that fact or the standard to which the court must be satisfied under s 7(2). It does not clearly and unambiguously evince an intention to remove or dilute the safeguards in s 7 in respect of the respondent's rights affecting his liberty.[17] There is no onus on the respondent to establish that his circumstances have changed so that he is no longer a serious danger to the community.
42 Section 32 of the Act provides for reports to be obtained for the purposes of the annual review from one or more qualified experts in accordance with s 37 and from some other person or body in accordance with s 38A. Such reports would be expected to be part of the acceptable and cogent evidence on which the court would rely pursuant to s 7(2)(a). Section 37 does not differentiate between a Division 2 hearing and an annual review in terms of the contents of an expert's report. The report must indicate 'the reporter's assessment of the level of risk that, if the subject were not subject to a continuing detention order or a supervision order, the subject would commit a serious sexual offence' and the reasons for the reporter's assessment: s 33(2). Although one might expect on an annual review that there would be a focus on any change in the subject's risk since the previous hearing, what will affect the decision to be made under s 33 is the expert's assessment of risk at the time of the review.
43 While the use of 'remains' in s 33 assumes the correctness of the previous decision, the requirements of s 7 mean, in my opinion, that it is not sufficient for the court to be satisfied simply that there has been no change in the respondent's circumstances, in order to be satisfied he remains a serious danger to the community. The court must make its own assessment on the basis of acceptable and cogent evidence at the time of the review, and must reach its own satisfaction to a high degree of probability that the respondent is such a danger. Having regard to the combined effect of s 33 and s 7, I do not consider that the use of the word 'remains' in s 33 was intended to bind the court with the decisions in previous hearings when determining whether the respondent is a serious danger to the community. The doctrine of res judicata does not sit comfortably, in my opinion, with the nature of proceedings on an annual review, because of the nature of the court's task on such a review as outlined above. However, it is not necessary to reach a concluded view about that issue in this case, because the evidence does satisfy me to the requisite standard that the respondent remains a serious danger to the community. For the same reason, it is not necessary to decide whether the court should consider itself bound, on the basis of issue estoppel or any other basis, by findings of fact underpinning the ultimate decision in previous hearings that the respondent was a serious danger to the community.
44 If a finding is made on an annual review that the respondent remains a serious danger to the community, s 7 does not apply to the decision whether the respondent should be detained or released under a supervision order, although the matters set out in s 7(3) would obviously be relevant to that choice. As I discussed above, the question at that stage is whether a supervision order would provide adequate protection of the community. If a court is left in doubt about that, then the detention order should continue. The question of whether on an annual review the court is bound by the findings made in the previous hearing in respect of the choice between detention and a supervision order must be considered in that context. The wording of s 33 makes no assumption about the appropriateness of the existing detention order.
45 In Ugle [No 3], I indicated that I was inclined to agree with the analysis of the annual review process by Hall J in Director of Public Prosecutions (WA) v Unwin [No 3],[18] which I reproduce here for ease of reference:
The clear intention of the annual review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community then the continuing need for detention must be considered.
It is a significant thing to deprive a person of their liberty, not for something they have done but for something they might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
The risk of reoffending may change over time. It may be affected by age, health and the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust [14] [18].
That analysis assumes the correctness of the previous finding that the offender was a serious danger to the community and the previous choice of a detention order as the appropriate means to provide adequate protection of the community at the time the order was made, but importantly it identifies the need for careful consideration of the circumstances at the time of the annual review to determine whether the justification for the making of a detention order remains, namely the existence (at that time) of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release [12].
47 It seems to me that in Director of Public Prosecutions (WA) v Misko [No 2],[19] Simmonds J had taken a similar approach, when his Honour considered that his task under s 33 was to determine the matters referred to in that section by reference principally to the evidence of material facts or circumstances, if any, arising since the making of the continuing detention order, and to any matter that, while not so arising, has become known since then: [12]. I take the latter to include a matter of fact that may have existed, but was not known to the court, at the time the order was made, and which may affect the determination at the time of the annual review of the issues to be decided under both s 33(1) and s 33(2).
48 I should note that in Pindan [No 3], Corboy J identified the potential issue concerning previous factual findings after referring to the observations of Simmonds J in Misko [No 2] and of Hall J in Unwin [No 3]. His Honour did not express disagreement with those observations, acknowledging that the previous finding that a person was a serious danger to the community is, necessarily, the point of departure for a review under s 33, but he still queried whether previous findings should be regarded as binding on the court in determining the issues under s 33. If so, the court's task would be confined to determining if there has been change, and the impact of any such change. His Honour considered that the more confined approach was consistent with the observations of Simmonds J and Hall J.
49 In Lyddieth, while concluding he did not need to resolve the issue, Simmonds J nevertheless observed:
It might be suggested that, while the more confined task might be appropriate for the purposes of determining whether the court 'finds the person subject to the order remains a serious danger to the community' (s 33(2), opening words), by virtue of the use of the word 'remains' (see DPP v Pindan [No 3] [53]), it was not appropriate for the purpose of the choice between the two options s 33(2)(a) and (b). The less confined task described in DPP v Pindan [No 3] [54] was that which the court was required to undertake for the latter purpose.
That less confined task means a judicial officer in my position ought to take account of any evidence, whether in exhibit or testimonial form, in previous proceedings, at least to the extent it had been drawn to that officer's attention in evidence in the present proceedings or in submissions [36] - [37].
His Honour noted that it may be necessary to understand the evidence in prior proceedings in order to properly evaluate evidence of facts or circumstances that have arisen or become known since the last annual review: Lyddieth [38].
50 The evidence on an annual review will almost inevitably include (consistently with the requirements of s 7(3) of the Act) material concerning the offender's serious sexual offending, his previous behaviour (apart from the offending) and statements made by him that were relevant to the assessment of his risk previously, including his behaviour and statements during any previous treatment and during interviews with psychiatrists and psychologists who conducted previous assessments. If materials relied on previously are not tendered at the annual review, those matters will usually emerge in the report of the psychiatrist appointed to review the offender and in the reports of any psychologist and the Community Corrections officer dealing with the case, as such matters will provide a point of departure for discussion about behaviours and statements in the period since the detention order was made or a previous annual review was conducted.
51 The above discussion in respect of this issue has been concerned with the nature of the court's task as a matter of law, although the preceding paragraph dealt with the manner in which evidence may come before the court on an annual review. In practice, one would expect there to be little if any prospect that the expert evidence on an annual review will bring into question the previous finding that the offender was a serious danger to the community. Historically, the experts called in proceedings under the Act have tended to agree on the question of risk insofar as it informs the threshold question. Where there has been disagreement, it has been in respect of the extent of the risk and whether it could be managed within the community under a supervision order. Further, it is common for the psychiatrist reporting on an annual review to have assessed the respondent for one or more previous hearings, so that there is continuity of perspective.
52 It is also relevant to note that, as in this case, the conclusion that the offender is a serious danger to the community will often be conceded on an annual review because the expert evidence supports the conclusion. The issue will usually be whether the adequate protection of the community can be achieved under a supervision order, so that a continuing detention order is no longer necessary.
53 Such practical considerations mean that the court will often rely on previous findings because they are not in dispute and it is a convenient way to focus the issues for the annual review. Even if there is no concession about previous findings, the fact that the offender remains in detention means that there was no appeal from the order made on the previous occasion, or that any such appeal was unsuccessful.[20] In those circumstances, it may be thought to be inappropriate to revisit the correctness of the previous decision on the evidence available at that time. However, it seems to me that the extent to which the court relies on previous findings will be determined by the way in which the proceedings are conducted.
54 The weight that the court gives to previous findings may also depend on the manner in which the findings were arrived at. For instance, if the parties have agreed to proceed on the basis of written reports, without oral evidence, and have made concessions, from their respective positions, about the facts and conclusions to be drawn from the written materials, the findings might be thought to carry less weight than if the evidence had been tested.
55 On the other hand, if previous findings of fact have depended on the hearing of oral evidence and an assessment of the credibility or reliability of witnesses, and those findings were fundamental to the final decision in those proceedings, it is difficult to see why the doctrine of issue estoppel would not apply if those findings are relevant on the annual review.
56 A further consideration affecting whether the court should regard itself to be bound by findings in the previous proceedings is that such findings will usually provide the basis upon which decisions are made in respect of the management and further treatment of the offender. In particular, if specific issues are identified as needing to be addressed, with the prospect that positive developments in those areas may result in the offender being suitable for release on a supervision order, a respondent would be entitled to expect that the court at the next hearing would have regard to the previous findings in assessing the progress he has made.
(e) Conclusions as to the significance of previous findings
57 Having regard to my analysis of the statutory provisions, my review of the authorities, and the practical considerations I have outlined, I draw the following conclusions, which are sufficient for the purposes of this case:
58 In this case, the respondent argued that, in determining whether a supervision order would provide adequate protection of the community, I should accept as correct the conclusion reached by EM Heenan J at the first annual review that, if suitable accommodation had been available, the community could have been adequately protected by releasing the respondent on a supervision order. The respondent submitted that, unless there had been a deterioration of his circumstances, the point of departure for my determination of the issue under s 33(2) should be that the respondent is suitable for release on such an order, subject to the availability of suitable accommodation.
59 There is a fundamental difficulty with the proposition. His Honour's finding ultimately was that the respondent could not be released on a supervision order, because there was no suitable accommodation. Apart from the finding that the respondent remained a serious danger to the community, that was the only essential finding for the purposes of making the order declining to rescind the continuing detention order. In light of the conclusions I have drawn about the proper approach to previous findings, I do not consider I am bound by his Honour's finding that the respondent was otherwise suitable for release on a supervision order.
60 Further, I reiterate that the weight to be given to previous findings may depend on the manner in which the findings were arrived at. As I noted earlier, at the first annual review in this matter EM Heenan J proceeded on the basis of written reports. His Honour summarised the effect of the evidence, on the question of the suitability of a supervision order, as follows:[22]
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.
61 I accept the respondent's submission in these proceedings that his Honour must be taken to have independently analysed the reports before him, notwithstanding the agreement of the parties. However, as his Honour noted, the evidence was not 'challenged by cross-examination or otherwise', and the aspects of the evidence that supported the conclusion that the respondent would be suitable for a supervision order were not elaborated in his Honour's reasons. In the present proceedings, the only item tendered from the materials before his Honour was the report of Dr Febbo, dated 28 October 2014.[23]
62 Notwithstanding these considerations, I have decided that I should take into account the assessment made by EM Heenan J of the effect of the evidence at the first annual review as reflecting the respondent's capacity at that time to be managed on a supervision order. In reaching that decision, I have paid due respect to his Honour's consideration of the issue and have taken into account two other factors. The first is that the applicant at the first annual review conceded that a supervision order would otherwise be appropriate. While the court is not bound by such a concession, it should be given some weight, particularly when the respondent has conducted his case on the basis of the concession. The second factor is that the respondent might reasonably have expected that the matter on which he should focus over the next year was finding suitable accommodation. That is not to say that he was entitled to assume he required no further intervention, because, as I will discuss below, the professional assessments at that time were that further treatment would be necessary. However, he was entitled to assume that, in the court's estimation, he had made progress in treatment to the point where his risk could be managed in the community at that time.
63 I will proceed, therefore, on the basis that the unsuitability of a supervision order on the previous occasion was due solely to the lack of suitable accommodation. In such circumstances, the availability of suitable accommodation at the next annual review may be a sufficient basis to conclude that the detention order should be rescinded and the respondent should be released on a supervision order. However, the assessment of the respondent's risk and whether it can be adequately controlled by conditional release at the time of the annual review must have regard to developments since the last occasion on which the court considered the matter, including evidence of his conduct during that time and the most recent psychiatric evidence. Any change in the respondent's circumstances tending to show that a supervision order will not provide adequate protection of the community will obviously be relevant and may weigh against the making of a supervision order, despite the availability of suitable accommodation.
64 More generally, on the question of previous findings, no issue was taken by either party in these proceedings to my taking into account the findings made by McKechnie J in the Division 2 proceedings and by EM Heenan J at the first annual review. Indeed aspects of the findings made by McKechnie J were explored in cross-examination of the psychiatrist called in the proceedings, Dr Febbo.
65 The factors that are relevant to my assessment of the respondent's risk of sexual reoffending and whether I should rescind the detention order are to be discerned from the reports and evidence of experts called in the proceedings. They all have regard to the respondent's history and longitudinal observations and assessments that have been made of the respondent and his risk of offending in the course of previous proceedings under the Act. Those matters provide context for the more recent observations and assessments, which is necessary in order to ascertain if there has been any change that affects the appropriateness of the existing detention order. Consistently with the approach I have outlined above, I will take into account for that purpose relevant findings and references to evidence in the previous proceedings, and will examine whether any of those findings require reconsideration in light of the evidence in the present proceedings.
The respondent's risk findings in the Division 2 proceedings
66 The findings by McKechnie J in the proceedings for the Division 2 order are set out in Pindan [No 1]. It will be necessary to outline some of those findings for context.
67 The Division 2 proceedings were conducted over two hearings, on 1 August 2013 and 9 October 2013, the matter having been adjourned after the first hearing for a report to be obtained about whether the respondent was likely to respond to treatment and the kind of treatment that was most likely to meet the aims of the Act, and to obtain information as to any other terms that may be included in a supervision order for the rehabilitation or care or treatment of the respondent.
68 Evidence was given at the first hearing by two consultant psychiatrists, Dr G Wojnarowska and Dr S D Febbo. Their reports were tendered along with other reports concerning the respondent's participation in two treatment programmes conducted in prison for indigenous men, one addressing anger management and substance abuse (completed in 2010) and the other addressing risk factors and risk management strategies for 'medium' sex offenders (completed in 2011). At the adjourned hearing, a clinical psychologist, Mr Bell, gave evidence addressing the issue of the respondent's suitability for counselling. His report was also tendered. There was also evidence from a Senior Community Corrections Officer, Ms Dabala, about proposed accommodation if a supervision order were made.
69 In respect of the respondent's background, it is sufficient to note that McKechnie J found the respondent had a happy childhood in Aboriginal communities and Broome, being raised by his mother and step-father, both of whom were supportive and positive influences. He did quite well at school. However, he fell into a pattern of alcohol and drug abuse and criminal offending from his teenage years. The evidence from both psychiatrists was to the effect that the respondent had an antisocial personality disorder, evidenced from childhood into adulthood in the form of criminal activity, drug taking and impulsivity. He was diagnosed as being dependent on alcohol and cannabis.
70 As his Honour found, the respondent had spent many years of his adult life in prison as a result of convictions for sexual assaults. His Honour found that the respondent had 'a predilection' to have sex with sleeping women, and that on occasions that had occurred without their consent.
71 In the first section of these reasons, I provided a brief outline of the respondent's sexual offending. The facts of the various offences of which he has been convicted were set out in detail, by reference to transcripts of the criminal proceedings, at pages 7 to 10 of the report of Dr Febbo dated 1 2 August 2013, which was part of the book of materials tendered in the proceedings before McKechnie J and was tendered in the present proceedings as exhibit 2. However, it is convenient to elaborate the circumstances of the offending in a shorter form by reference to the descriptions given by McKechnie J in Pindan [No 1].
72 His Honour noted that the respondent was first convicted on 26 and 27 January 1994 in the Broome Children's Court, for offences that were committed in December 1993. The respondent received a 12 month conditional release order. His Honour described the offences as follows:
On 2 December 1993 the respondent, who was then aged nearly 15, entered a house where a 23-year-old woman was sleeping in her bedroom. He grabbed her by the wrists, letting go when she awoke. She screamed and scratched his arms. A couple of nights later, on 5 December 1993, he broke into a house where a 34-year-old woman was sleeping in her bedroom. He started to have sex with her. She awoke. He grabbed her by the wrists and when she screamed and scratched his arms, he left the house.
On 23 December 1993 the respondent entered a house where a 36-year-old woman was sleeping on the floor. He turned off all the lights and the television. Whether he also grabbed this victim by the wrists is immaterial to the resolution of the issue. When she awoke he punched her to the forehead and then left [43] [44].
73 His Honour considered the offences to be the first signs of a pattern whereby the respondent would enter homes where women were sleeping and assault them.[24] He then referred to convictions on 27 February 1995 in the Broome Court of Petty Sessions of one count of burglary with intent, and one count of being on premises without lawful excuse:
The offences were committed on 19 January 1995 at about 5.15 am. [The respondent] entered one house by climbing through a bedroom window and disturbed the female occupant in the lounge room. He then left, crossed the street and entered another house where again the female occupant of the house awoke. He decamped the scene via the front door [46].
74 The next conviction was on 5 August 1997 in the District Court, the respondent having pleaded guilty to an offence of sexual assault. He was sentenced to 3 years' imprisonment with parole eligibility. The facts were summarised by McKechnie J as follows:
On 24 May 1997, a young woman who was very drunk, went back to a reserve. Lying on a mattress she removed her top so she was naked from the waist up. She and her boyfriend went to sleep. She awoke when she found that there was a man on top of her having sex with her. Originally she thought it was her boyfriend. When she realised it was not she pushed the respondent away. He ran away and was chased by the victim and her boyfriend. The respondent was later apprehended by police [47].
75 As his Honour noted, while he was in prison serving the sentence for that offence, the respondent took part in the Greenough Prison Pre-release Sex Offender Treatment Programme. He was released on parole on 3 August 1998. McKechnie J summarised the balance of the respondent's offending as follows:
On 30 October 1998 the offender was convicted of being on premises without lawful excuse. He was fined $2,000. Parole nevertheless continued.
On 30 September 1999 there was a further alleged incident for which the respondent was charged and acquitted. I take no account of it.
On 6 and 7 July 2007 the respondent entered a house at night time and sexually assaulted a sleeping female occupant in the lounge room, again in the bathroom and then again in the lounge room. These offences were committed with considerable violence. On 5 November 2007 the respondent was sentenced to a total term of imprisonment of 6 years with parole from 7 July 2007 [49] [51].
76 The facts of the offences in 2007 need clarification. The respondent went up to the victim, who was sleeping on a couch, and put his hand over her mouth. This caused her to wake. The sexual assaults occurred after that, while she was awake.
77 Further, although it is not specifically mentioned in the recitation of the facts, there was evidence, and his Honour accepted, that the respondent was intoxicated by alcohol at the time he committed the sexual offences.
78 In respect of the last offence, counsel for the respondent tendered in the present proceedings a paragraph from the pre-sentence psychiatric report in 2007, which was contained in the book of materials tendered in the proceedings for the Division 2 order and which set out the respondent's account of that offence.[25] The respondent had said that on the night of the offence he had been sitting outside a house that was close to the victim's house, drinking alcohol with his uncle. He claimed to have drunk approximately one carton of pre-mixed Bourbon drinks with his uncle. He said he continued drinking after his uncle went inside, and he eventually decided to go home to get something to eat, but took a wrong turn and ended up back at his uncle's place. However, he went into the victim's place instead. He claimed the door was open. He said he knew the victim, who he claimed was a distant relative, but he had never spoken with her before that day. He said he saw the victim sleeping on a couch and that he did not know what came into his mind, but he started kissing her. When she woke up and pushed him away, he became angry. He said he punched her twice and sexually penetrated her on three occasions. While the violence admitted by him was significant, it did not reflect the full extent of the violence as I have noted it earlier. However, the respondent added that his memory of the events had been dimmed by his state of intoxication.
Nature of risk identified in the Division 2 hearing
79 For the Division 2 hearing, both Dr Wojnarowska and Dr Febbo used actuarial instruments and clinical tools (or 'structured professional judgment') to arrive at assessments of the respondent's risk of committing further sexual offences in the future. Both were of the opinion that his risk of reoffending was high and that, as alcohol intoxication was a particularly significant factor in his past offending, it was a significant risk factor. While each of them acknowledged in cross-examination that there was a period of nine years in which the respondent did not offend, despite continuing to have alcohol dependence and being intoxicated on many occasions both in remote communities and in the urban community of Broome, that did not affect their opinion that he posed a high risk of committing a serious sexual offence.[26]
The evidence overwhelmingly establishes the respondent poses a serious danger of sexually assaulting sleeping women unless a detention or supervision order is made. I am satisfied to the required standard that he is a serious danger to the community [57].
81 Underlying that conclusion were the following findings:
I am satisfied that the respondent has a propensity to commit further offences. I accept that he has a paraphilia which is an interest to the point of deviance from the normal in sexual relations with sleeping women [34].
82 Those findings depended primarily on the opinion of Dr Wojnarowska, on the basis of the respondent's history of sexual offending. Dr Wojnarowska had expressed the view in her report that the respondent's history suggested a social deficit that likely contributed to his first sexual offence. She continued:[27]
Unfortunately, this developed further into deviant interest in sleeping women and deviant sexual arousal. This has been confirmed by both Mr Pindan and his history of sexual offending, therefore the diagnosis of paraphilia not otherwise specified has been made.
83 McKechnie J noted that Dr Wojnarowska had provided a psychiatric report for the purposes of the sentencing proceedings in 2007, and that her diagnosis was not materially different from that time. In the 2007 report she had said:[28]
His sexual offending developed in the context of him having an entrenched pattern of deviant ways of gratifying his sexual urges and was facilitated by disinhibition caused by alcohol. Additionally the accused demonstrates an antisocial way of living as evidenced by his previous offending and his impulsivity. Of concern has been his limited empathy for the victims.
84 McKechnie J noted that Dr Wojnarowska's diagnosis was not in substantial conflict with that of Dr Febbo. He explained:
There is a difference as to the presence of paraphilia. Dr Febbo's diagnosis is less definite. However, he did not have the disclosure by the respondent, which Dr Wojnarowska was given during interview, about the respondent's interest in sexual relations with sleeping women [19].
85 Dr Febbo had suggested that the possible presence of sexual deviance could be explored in the context of psychotherapy.
Whether the respondent's offending disclosed a propensity for violence
86 As was described earlier, McKechnie J accepted that the last of the respondent's sexual offences (for which he had been sentenced in 2007) involved considerable violence. The violence included the respondent dragging the victim by her hair to different locations in the house to commit the sexual acts. That raised the question of whether the respondent's offending had escalated and indicated a propensity for violence in the future. His Honour outlined the evidence and made findings as follows:
Cross-examination, particularly of Dr Febbo, also explored the fact that the first two convictions did not involve violence beyond, of course, the nature of the sexual assault itself. The third conviction did involve violence. It was suggested, fairly, that the third conviction involving violence may not have been an escalation of offending behaviour, but was explained as the respondent had explained it to Dr Febbo: 'it didn't work out, I thought it was going to be quick'. I accept that, if it was necessary for me to be convinced, I could not be satisfied to the required standard that the respondent would offend again in a similarly violent manner in the future because it is at least a reasonable conclusion that the violence was opportunistic on that occasion and not part of his usual method of offending. There was no evidence from either Dr Wojnarowska or Dr Febbo that the respondent has fantasies of rough non-consensual sex [24].
87 However, his Honour considered that the issue of violence in the third offence was of limited relevance, because the Act is concerned with predicting further sexual offending and is not limited to violent sexual offending.[29] His Honour ultimately dealt with the issue of violence as follows:
However, it is unnecessary for me to further develop this proposition because, on any view, I am satisfied that the type of offending which the respondent would likely engage in is the sexual assault of a sleeping adult woman. While Ms Barone argued, and I accept, that the violence accompanying the third offence does not necessarily mean there will be an escalation or a repeat of violence in the future, that, with respect, minimises the violence inherent in any sexual penetration without consent. Whether in the ordinary meaning of the term or the statutory definition, the likely offences that the respondent would commit, unless an order is made, are, in my view, serious offences [56].
88 Dr Wojnarowska had made the following observations in her report tendered in the proceedings before McKechnie J, relevant to the level of the respondent's risk of reoffending:[30]
Mr Pindan participated in two sex offender programs and the reports from both programs are positive. Of a concern is, that despite the successful completion of the first program, he re-offended in a sexual manner. It is also of a concern that his current understanding of his cycle of offending is superficial and he does not demonstrate insight or strategies to decrease his risk.
89 Both she and Dr Febbo identified the need for the respondent to undertake intensive individual psychological counselling to address his sexual offending and alcohol abuse, as he still had significant treatment needs. Dr Febbo suggested a phased release from custody, involving a residential alcohol rehabilitation programme in the first instance. He considered that, subsequently, placement in a dry community would be preferable. Dr Wojnarowska agreed that admission to a residential rehabilitation programme would be desirable.
The decision to order indefinite detention lack of suitable accommodation
90 Having found that the respondent was a serious danger to the community, McKechnie J considered the information available at the adjourned hearing concerning proposed accommodation, if the respondent were to be released on a supervision order, and his suitability for treatment programmes. The evidence established that the respondent could not be released into a residential rehabilitation programme, because he would not be accepted by those running the programmes.
91 McKechnie J outlined the situation in respect of accommodation as follows:
The respondent's country is in the Kimberley and that is strongly where he wishes to return.
The respondent has no ties to the Perth community and finds even Broome to be a large town. If he had a real connection to the metropolitan area I would be satisfied that the community could be adequately protected by a supervision order releasing him into the metropolitan community with the support which has been outlined. He would require intensive one-on-one counselling but that is available, according to Mr Bell, both in and out of prison. That counselling would have to include assistance for him to gain greater insight into his alcohol consumption and its effect on offending because organisations that provide such programmes in the community have, as indicated, declined to accept him.
However, I accept Mr Trowell's observation that to release him into the Perth community may be setting him up to fail. In fact I consider there is a very considerable chance that he would breach his supervision by taking refuge in alcohol. If he did so that would increase his risk to the community to an unacceptable level.
Release into the Kimberley region on a supervision order would be the preferred option but there is no suitable accommodation [95] - [98].
The decision to order indefinite detention other concerns
92 Although his Honour's earlier remarks suggested his Honour would have been prepared to release the respondent on a supervision order if he had 'a real connection to the metropolitan area', his Honour's concluding remarks suggested otherwise. His Honour said:
In any event, and leaving aside the question of accommodation, I am concerned at the respondent's continuing lack of insight into the risk factor posed by his consumption of alcohol. It is true, as Ms Barone suggests, that during the nine year period there were many occasions when he was drunk and yet did not offend. On the other hand, over the years as his record shows, there are a number of occasions when he was drunk and did offend.
I am aware of the report from IMMASU[31] quoted earlier but on the whole of the evidence I consider that his lack of insight into his alcohol consumption and its possible link with offending is a significant risk factor [101] - [102].
93 His Honour had earlier referred to concerns about the respondent's attitude to a supervision order. Referring to the Community Corrections report, his Honour said:
His expressed attitude is of concern:
On 11 July 2013, the writer attempted to explain to Mr Pindan the potential requirements of a supervision order should he be deemed suitable for release under the Dangerous Sexual Offenders Act 2006. Mr Pindan's retort was that he 'does not worry about the Court' that the order requirements were 'full of shit' and that 'my offending was not that serious' [74].
94 Having regard to the whole of his Honour's reasons, it seems to me that his Honour did not consider the lack of suitable accommodation to be the only obstacle to making a supervision order. The need for further treatment and the respondent's expressed views about the conditions of a supervision order, which provided little confidence that he would comply, were significant matters militating against the conclusion that the community could be adequately protected at that time by the making of a supervision order, if suitable accommodation had been available. His Honour concluded:
The paramount consideration is the protection of the community. Bearing that consideration in mind, I conclude that the risk to the community by release on supervision is unacceptable. The only order I can presently make is an order for detention for treatment. [103]
The respondent's risk - findings on the first annual review
95 I have already referred to the manner in which the first annual review proceeded.[32] It was first listed for hearing on 11 November 2014, but was adjourned on two occasions to enable further information to be obtained about potential accommodation in the community if the respondent were to be released on a supervision order. When the review was ultimately concluded on 7 April 2015, EM Heenan J noted that while there had been encouraging prospects of the respondent obtaining accommodation with a relative in the Kimberley before the second hearing date (25 February 2015), the relative had withdrawn consent to the proposed arrangements shortly before that hearing, hence the second adjournment.[33] His Honour further noted that the focus of the recent reports that had been obtained had been on the availability of suitable accommodation for the respondent with relatives or others in the Kimberley region. His Honour said:
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 [7].
96 I have referred earlier to his Honour's explanation that the unchallenged evidence was to the effect that the respondent would be a person who, despite representing the danger to the community, would be suitable to be released on a supervision order if appropriate accommodation arrangements were to be found.[34] Indeed, counsel for the applicant (the DPP) had acknowledged, 'without binding the DPP', 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 [10].
97 No suitable accommodation had been identified by 7 April 2015, so his Honour was obliged to decline to rescind the existing detention order.
98 As I noted earlier, his Honour's reasons did not elaborate upon the basis on which the evidence supported the conclusion that the respondent would be suitable for release on a supervision order if suitable accommodation were available. In the present proceedings, the report of Dr Febbo dated 28 October 2014, which was part of the materials before his Honour, was tendered as exhibit 3. Dr Febbo was of the opinion that the respondent remained 'at high risk of sexual offending if he [was] not placed on a continuing detention or supervision order'. He outlined the following developments in the previous twelve months and during his interview with the respondent for the first annual review:
[T]here has been some, but very much limited improvement in addressing Mr Pindan's risk [of] sexual offending. His engagement in counselling has been somewhat superficial and the information that Mr Pindan now provides in relation to, for example, the risk of returning to the use of alcohol and cannabis and its role in the offending is very much at a superficial level. The same can be said about Mr Pindan's plans in relation to the future where he sees himself as constantly moving around the North West and largely free of stress. These plans are, in my opinion, unrealistic; however, it is fair to say that the more realistic plans of, for example, residential rehabilitation or residing in a dry Aboriginal Community, have also failed.
100 However, Dr Febbo also expressed the view that extending the respondent's detention for a further twelve months was 'unlikely to be associated with any additional improvement and, in fact, there may be some further deterioration in Mr Pindan's mental state and [it] may make release more difficult'. Therefore, he was of the opinion it would be appropriate to consider a supervision order by which the respondent would reside in 'an urban setting where there can be continuing input in relation to alcohol and substance abuse counselling (if not residential rehabilitation), continuing input from his DSO Psychologist, and close monitoring including GPS surveillance.'
101 It would appear to have been the latter view that satisfied EM Heenan J, taking into account the concession made by the applicant, that the community could have been adequately protected by the conditions of a supervision order if suitable accommodation had been available. It must be noted, however, that there were areas of concern raised in Dr Febbo's report, to which I have referred, about the extent to which the respondent had in fact gained insight into his risk factors and his prospects of complying with the conditions of a supervision order. It is not clear to me that there had been any significant change in the respondent's circumstances from the time the detention order was made by McKechnie J until the time of the first annual review.
102 Nevertheless, as I indicated earlier, I will proceed on the basis, as found by EM Heenan J, that the respondent's circumstances at the time of the first annual review warranted the conclusion that the community could be adequately protected if the respondent were released on a supervision order, provided suitable accommodation could be found. It is necessary to consider then, whether there is evidence on the annual review to alter that conclusion, and whether, in any event, there is suitable accommodation available.
103 At the start of these proceedings, a book of materials (exhibit 1) was tendered by the applicant and received into evidence. It included:
104 During the course of the hearing, the applicant also tendered Dr Febbo's reports dated 16 July 2013 and 28 October 2014, which had been in evidence at the previous hearings. Counsel for the respondent tendered programme completion reports, a treatment completion report and a community supervision report, which were also in evidence at the previous hearings.
105 Dr Febbo, Ms Rankin and Ms Wasley were called by the applicant and gave evidence at the hearing. The respondent's mother, Ms Ruth Pindan, was called and gave evidence in the respondent's case about the availability of her home as accommodation for the respondent, if he were to be released on a supervision order.
The respondent remains a serious danger to the community
106 The first issue I must decide is whether the respondent remains a serious danger to the community, in that there is an unacceptable risk that he would commit a serious sexual offence (as defined in the Act) if he were not subject to a continuing detention order or a supervision order.
107 The respondent is now 37 years old. [35]
108 Dr Febbo interviewed him on 28 February 2016. He also had regard to the decision of EM Heenan J in Pindan [No 2] and DCS records, as well as interviewing Ms Wasley and Dr Yewers, who has been responsible for providing the respondent with psychological counselling since the first annual review, having provided therapeutic treatment to him in previous years.
109 On the basis of the information obtained by Dr Febbo from those sources, he is of the opinion that the respondent remains at high risk of committing a further serious sexual offence[36] if he is not subject to a continuing detention order or a supervision order. The respondent does not submit otherwise, and I am satisfied to a high degree of probability, on the basis of the evidence I have identified above from the Division 2 proceedings and the first annual review, and on the evidence in the present review, that he remains a serious danger to the community in the relevant sense. The evidence in the present review supports the conclusion that there has not been a change in his circumstances to reduce the risk. In fact, as will emerge below, I consider that there has been some deterioration in his risk.
110 Dr Febbo described the nature and extent of the respondent's risk of committing a further serious sexual offence by reference to the most likely scenario in which he would offend.[37] This would involve the respondent returning to excessive drinking, leaving any group he was with and wandering aimlessly on the streets, after which he would make an attempt to enter a dwelling and, if he succeeded and found a woman asleep in there, he would commence to have sexual intercourse with her. If the woman woke, that could result in the respondent either leaving or forcing himself on her and not allowing her to leave. In the latter situation, there is a potential for significant physical and psychological harm to the victim.
111 In Dr Febbo's opinion, the previous offending was opportunistic, and it is likely any future offending would also be opportunistic. However, I note that in relation to the last incident, the respondent told Dr Febbo that he began to feel 'a bit frisky' and 'wanted to check this place, check that place',[38] which tends to suggest that there was some premeditation when he entered the house in which his victim was sleeping. What it does suggest, according to Dr Febbo, is that there is an increase in sexual arousal that precedes the offending, and the offending is associated with disinhibition caused by excessive use of alcohol. In the absence of intoxication, the respondent would be able to restrain himself if he felt an increase in sexual arousal.[39]
112 Relying on what the respondent had said to Dr Wojnarowska and the opinion she arrived at as a result, McKechnie J found that the respondent has a paraphilia, in that he has a proclivity to have sex with sleeping women. I note, however, that in respect of the offences in 2007, the victim woke when the respondent put his hand on her mouth. The sexual assaults occurred after that, while she was awake. It may be open to question whether the respondent intended to have sex with that victim while she was asleep.
113 In any event, Dr Febbo does not consider that the evidence would enable him to diagnose a paraphilia in respect of sleeping women.[40] He is of the opinion that the fact the women he sexually assaulted were asleep when he commenced, does not mean that the respondent has a sexual deviance in that regard. It may have been opportunistic, in the sense that the circumstances presented him with a vulnerable woman upon whom he decided to impose himself, rather than him looking for sleeping women. A sexual deviance in that regard would require the respondent to have impulses specifically to have sex with sleeping women, and to fantasise about it.[41] Whatever the respondent may have said to Dr Wojnarowska, he had denied to Dr Febbo that he had any such impulses or fantasies, claiming that the suggestion was ridiculous,[42] although Dr Febbo acknowledged that the respondent's reliability might be questioned. As I understand Dr Febbo's ultimate position on this issue, he has left open the possibility of sexual deviance, but he is not prepared to diagnose a paraphilia on the available evidence.
114 In light of Dr Febbo's opinion, I do not consider I am bound by the previous finding made by McKechnie J in respect of paraphilia, and I do not make that finding on the evidence in these proceedings. However, I do not consider that it makes any difference to the respondent's level of risk of committing a serious sexual offence. It remains the case that he has committed sexual offences against women who were in very vulnerable situations, and that is the likely scenario in which he would offend in future. Disinhibited by alcohol, he would have no regard for whether the woman was capable of consenting. He would regard the fact that a woman was sleeping as an opportunity to satisfy his sexual impulse, irrespective of whether he has a deviance in that regard. If the woman were to wake and resist him, he may use violence to overcome the resistance. That, in my view, is the effect of Dr Febbo's evidence.
115 The potential for the respondent to use significant violence to force himself sexually on a woman can be inferred from his conduct in committing the offences in 2007. He dragged the victim by her hair to the bathroom and later back to the lounge room of her home, sexually assaulting her in both places. As I outlined earlier, in Pindan [No 1] McKechnie J said that, if it was necessary for him to be convinced, he could not be satisfied to the required standard that the respondent would offend again in a similarly violent manner in the future because it was at least a reasonable conclusion that the violence was opportunistic on the occasion of the 2007 offences and not part of his usual method of offending. His Honour had regard to the respondent's explanation to Dr Febbo that he became violent because it 'didn't work out' after he thought 'it was going to be quick'.
116 With respect, I have difficulty in seeing how the violence used by the respondent during the 2007 offences could be regarded as opportunistic, given that he used violence to deprive the victim of her liberty and to force her to engage in sexual acts with him. If his Honour was simply indicating that he could not be satisfied the respondent would set out to use violence, because there was no evidence that he fantasised about rough non-consensual sex,[43] his Honour's conclusion is understandable. However, Dr Febbo's opinion supports the conclusion that the likely risk scenario for future offending may include the use of violence if the respondent encounters resistance, as happened on the last occasion. On all of the evidence, I am satisfied to the requisite standard that the 2007 offences did amount to an escalation of offending and there is a real risk that the respondent would offend again in a similar violent way.
117 As I outlined above, Dr Febbo has again identified intoxication with alcohol as a significant risk factor for the respondent. Indeed, he considers that the respondent would be capable of restraining himself if he was not intoxicated. The use of alcohol by the respondent has been associated with boredom and the influence of negative peers. Ms Rankin considers that the two are connected. When the respondent is bored, he will tend to associate with negative peers. This will potentially lead to him drinking alcohol, with the risk that he will go down the path of serious sexual offending.[44] In assessing what measures are necessary to adequately protect the community against that risk, it is necessary to consider what level of insight the respondent has gained in respect of those issues and the potential level of exposure to negative peers and alcohol if the respondent were released into the community.
Developments in the respondent's circumstances since the first annual review
118 I turn now to the evidence of events since the first annual review and the respondent's response to treatment.
Report and evidence of Ms Rankin, Senior Clinical Psychologist
119 In her report of 10 March 2016, Ms Rankin identified developments in the respondent's circumstances since the first annual review and placed them in the context of his prior response to psychological counselling. She noted that prior to the first annual review, the respondent's concrete thinking style had impeded his ability to generate strategies for managing future risks for substance misuse and subsequent offending. However, according to Dr Yewers, he had gained a solid understanding of consent issues and the factors underlying his sexual offending behaviour. Further, Dr Yewers did not consider that the respondent had problems controlling his anger or that he displayed any significant social deficits. Still, in the lead up to the first annual review, the respondent had been assessed as having made limited gains in therapy due to his ambivalence toward the process. He was considered unlikely to make any further gains while he remained in custody.
120 The respondent had one session with Dr Yewers shortly after the decision was handed down by EM Heenan J, and a further session on 1 March 2016. The gap between the sessions was as a result of the respondent returning to the West Kimberley Regional Prison shortly after his annual review. Dr Yewers had planned to re-engage with him when he returned for the current annual review.
121 During the sessions after the first annual review, Dr Yewers dealt with the issues of consent and factors contributing to the respondent's offending, including stress and alcohol, as well as strategies to abstain from alcohol use, preparation for release and the likely conditions of supervision.[45]
122 In summary, the respondent maintained his ambivalent attitude toward treatment, lacking understanding about what constituted therapeutic work. According to Dr Yewers, the respondent appeared to view therapy as requiring him to convince her that he was able to manage in the community, and he tended to perceive questions about his management plan as indicating that she did not believe he had the ability to manage. Interestingly, the respondent confirmed, when interviewed by Ms Rankin, that he saw the process as requiring him to convince Dr Yewers that he could manage risk in the community, but he indicated he enjoyed the challenge. That does not accord with Dr Yewers' opinion that, over a long period, the respondent's view of therapy resulted in frustration that impeded progress toward treatment goals. Ms Rankin's opinion is that the respondent's frustration stems from a perception that he is being asked to go over the same ground again, which can create resentment towards the therapist and can become counter-therapeutic.[46]
123 In any event, Dr Yewers was of the view that the respondent was 'as well engaged in the therapeutic relationship as he could be', but overall she did not consider him an appropriate candidate for ongoing therapy. However, she considered that one of his strengths was an ability to form working relationships with those involved in his management.
124 Dr Yewers was of the opinion that the respondent had a 'reasonable level of insight into his past sexual offending behaviour, and that he was able to generate alternative decisions that he could have made at the time of the offending, although he had some difficulty generalising that to future potential scenarios'. She was of the view that the content she had covered in sessions with the respondent, such as issues concerning drugs and alcohol and the need to have consent for sexual activity, could be reinforced by senior Community Corrections staff or an external drug and alcohol agency, and it did not necessarily require input from a psychologist.
125 Dr Yewers' assessment led Ms Rankin to express the view at the hearing that, if the respondent were placed on a supervision order, he would have the capacity to establish a good working relationship with an SCCO and potentially to engage in 'therapeutic contact' within the community.[47] However, this needs to be considered in the light of the respondent's expressed attitudes towards the requirements of a supervision order.
126 When questioned by Ms Rankin about potential release on a supervision order, the respondent described any such order as likely to take over his life. He expressed distaste for wearing a GPS tracking device, as it would 'make him look stupid'. He also complained about the potential for those involved in his management to conduct visits at times that would disturb him. He considered that the scrutiny was unnecessary. He also expressed apprehension about having to explain the conditions of any future order to former intimate partners or potential new intimate partners. He said that if he were released into the community, he would speak with his Senior Community Corrections Officer and establish boundaries in relation to the level of contact they had with him in order to minimise any potential frustrations.
127 As for the respondent's level of insight, Ms Rankin described his understanding of consent issues and factors underlying his sexual offending as involving 'concrete thinking'. This correlates with Dr Yewers' assessment that, while he can identify specific risk factors, he has difficulty generalising to potential future scenarios. In terms of risk management and ongoing treatment, Ms Rankin was of the view that the most effective way for the respondent to make progress is to focus on simple strategies that give him a direct link between cause and effect.[48] When she interviewed him, the respondent demonstrated awareness that boredom was a factor that had led him to drinking in the past and, therefore, had contributed to his offending. He intends to pursue music and art as activities that will enable him to avoid boredom. He maintained that he no longer had a desire to drink alcohol, as he recognised it put him at risk of reoffending. He told Ms Rankin that he did not consider he needed to attend alcohol and drug counselling, although he might attend one session. Ms Rankin noted that the respondent's position appears to have shifted since making those comments.
128 Although the respondent recognises that returning to the use of alcohol is a risk factor, Ms Rankin is not convinced that the respondent has adequate strategies in place to avoid the problem.[49] She said in evidence that the respondent did not indicate how he would avoid alcohol use and it is difficult to assess what skills he has to overcome peer influence. He knows what to say and do, but his ability to implement appropriate measures is untested.
129 In light of what had been said by Dr Yewers, Ms Rankin was of the view that the respondent does not present as a suitable candidate for ongoing therapeutic intervention, and that review of his risk management issues would be best provided in the context of a supervisory relationship with a Senior Community Corrections Officer. She noted that his concerns regarding the intrusive aspects of any future community-based order would need to be addressed early in his working relationship with an SCCO, and there may be a need to reinforce the rationale for the conditions of such an order so as to reduce 'the frustration that he experiences and the stress that [will be] placed on him in terms of attending multiple appointments and engaging with multiple people'.[50]
130 Ms Rankin noted that, although the respondent expressed a strong desire to remain abstinent from alcohol use and recognised the likely challenges of being around intoxicated people, he may underestimate the difficulties he will face being surrounded by family and peers who regularly drink to excess.
In general terms, Mr Pindan appears to have a basic understanding of what will be required of him if he were released to the community, although he does present as resistant to the restrictive nature of a community-based order. Given his reticence to engage with psychological services it is unlikely that he would benefit from any attempts to engage him in that way and it may even serve as counter-productive to his overall management. Therefore it is likely that if he is released to the community his management would be heavily dependent on external controls such as GPS and restrictions on his movements and associations with others. On the other hand, the longer he remains in custody the greater the likelihood that he loses contact with family and peers in the community and that any treatment gains that he has made to date will be eroded [28].
132 Ms Rankin's opinion recognises that placing the respondent within the community will inevitably involve a risk that he will again commit a serious sexual offence, in that he will have access to women and will be exposed to the temptation of alcohol if his peers are drinking. While this is a concern, Ms Rankin explained in cross-examination that the respondent has completed various Pathway programmes that specifically included 'peer refusal skills', and the only way of knowing whether they have been effective is for the respondent to test his skills in the community.
133 In terms of providing insight into the respondent's development over the previous 12 months, Dr Febbo was able to elicit a limited amount of information because, according to Dr Febbo, there was limited engagement by the respondent in the interview process, and on a number of occasions his responses were somewhat dismissive. Nevertheless, the following emerged from Dr Febbo's report and oral evidence.
134 When asked by Dr Febbo about his counselling sessions with Dr Yewers, the respondent said they 'just talk' about 'nothing much'.[51] While that would tend to suggest a lack of therapeutic gain, the respondent was able to describe aspects of his discussions with Dr Yewers that indicated he had made some progress in gaining awareness about issues concerning consent. He said, in essence, that the only way he would know if a woman was interested in a sexual encounter was by asking her specifically or by her asking him specifically.[52] Dr Yewers confirmed with Dr Febbo that the respondent managed to retain information that had been covered in previous sessions, prior to his last annual review, in relation to consent.
135 The respondent told Dr Febbo that he wishes to become involved in a long-term relationship. He said he did not want a woman if she was asleep.[53]
136 There is an aspect of the respondent's attitude to his offending that raises a concern about the extent to which his awareness of issues concerning consent would reduce his risk of serious sexual offending. When the respondent was first assessed by Dr Febbo in 2013, he expressed a degree of anger and envy about the fact that the victims he offended against had boyfriends who were able to have sex with them, but he could not. Dr Febbo did not see this as an attitude that drove the respondent's sexual offending, rather a feeling of anger on the respondent's part in hindsight that he was charged with the offences when the women were having sex anyway.[54]
137 Of greater significance was a view expressed by the respondent in 2013 'along the lines of Aboriginal girls not caring about what happens to them and that sex is a joke to them'.[55] Although the respondent had added that 'perhaps they are hurting inside'[56] and accepted that his offending was wrong, Dr Febbo regarded the respondent's attitude as evincing a degree of minimisation 'about the whole issue of sexual intercourse' with Aboriginal women, because he perceived it to be something that happens all the time. While it does not amount to an attitude that supports or condones sexual violence,[57] it probably is an attitude that facilitates the sexual offending.[58] I note that this specific issue was not addressed in Dr Febbo's report of 28 October 2014[59] or the report prepared for these proceedings, or in Ms Rankin's report for these proceedings. Having regard to all of the materials tendered in these proceedings, it is not clear whether the respondent has shifted from his perception of the attitude of Aboriginal women to sexual intercourse expressed in 2013.
138 Dr Febbo agreed in cross-examination[60] that, during the Sex Offender Indigenous Medium Program, the respondent had expressed empathy for victims of sexual assault and awareness of the impact of sexual offending in the community. He also agreed that the report from that programme[61] indicated that there was no evidence that the respondent blamed his victims, and indeed he had expressed remorse and embarrassment for his offending, stating that he could see flashbacks of his victims that made him jump.[62] However, the respondent's comments to Dr Febbo (in 2013) were made nearly two years after he had completed the programme. At least to some extent they suggest a lack of persistence of the empathy and remorse expressed at an earlier time. I note in particular that in 2013 the respondent suggested to Dr Febbo that the victim of the 2007 offences exaggerated aspects of the offending.[63] Dr Febbo considered at that time that there was 'possible or partial evidence' that the respondent was engaging in 'extreme minimisation or denial of sexual violence', although the opinion was followed by a question mark. On the other hand, in his report of 28 October 2014, Dr Febbo said that the respondent 'described feeling particularly distressed that he had offended', stating that he felt 'real bad', that it 'broke his heart' and that he had flashbacks.[64]
139 Dr Febbo also agreed in cross-examination that one should be cautious about putting too much weight on the expression by the respondent of one comment or attitude about women as an indication of risk, because of the lack of scientific correlation between 'a poor attitude to women' and risk of sexual offending; rather it identifies an area for treatment in an individual management plan.[65] However, the attitude that the respondent expressed to Dr Febbo in 2013 was not about women generally. It was a perception that would more accurately be described as being about the cultural attitude to sex of women within his ethnic group, with whom he will be most likely to associate, having regard to his history.
140 Dr Febbo agreed that the fact the respondent might still express the attitude he previously expressed about Aboriginal women would not be determinative of his view as to the respondent's release on a supervision order.[66]
141 While I approach the issue with caution, I am satisfied that the respondent's previously expressed attitude is a matter that may affect his judgment on the issue of consent in relation to sex with Aboriginal women, and in that way facilitate sexual offending, as it was put by Dr Febbo. In the absence of evidence that he no longer has the distorted perception, I am of the view that it remains a consideration in determining the level of supervision that would be required if the respondent were to be released on a supervision order.
142 As in his discussion with Ms Rankin, the respondent also acknowledged to Dr Febbo that alcohol was significant in his offending. He demonstrated awareness of the relationship between becoming stressed and using alcohol, although he did not believe he would be at risk of abusing alcohol in the context of stress.[67] He again expressed his intention to stop using alcohol and said that he does not wish to participate in any more alcohol programmes prior to release. Dr Yewers told Dr Febbo that the respondent was able to identify strategies to abstain from alcohol use, although they were relatively concrete, such as declining offers of alcohol and not associating with people who are drunk or drinking. She said that the respondent had expressed a willingness to attend a local alcohol and drug counselling service in Broome.[68] However, given the respondent's attitude that he does not really need to address the issue anymore, Dr Febbo had reservations about the respondent's preparedness to comply once released.[69]
143 On the other hand, Dr Febbo acknowledged in cross-examination that, in the past, the respondent has declared that he would not participate in programmes, but has then done so, so that such declarations do not necessarily reflect what he will do.[70] Dr Febbo noted, however, that the examples referred to by the respondent's counsel were from some years ago. In dealing more generally with the respondent's willingness to engage in further therapy, Dr Febbo said:[71]
[T]he programs that Ms Barone was talking about, I mean, that happened a few years ago now. It's we can't say that because he said no at the very beginning but then he sort of accepted it later on that he's going to do this three or four years down the track. I mean, I think that's a different ... you know, he was probably more hopeful at that point that maybe he would go through the process and in one more year he would be released, but that's about three or so years ago now, and that's why, I think, that it's going to be very difficult for him to engage despite, perhaps, additional pressure to do so.
144 I agree with Dr Febbo that is difficult to know what weight to give to such changes of attitude in the past, particularly when the respondent has indicated quite consistently in recent times that he does not believe he needs any further treatment in the area of alcohol use as a risk factor.
145 Dr Febbo also discussed with the respondent the issue of cannabis use. The respondent told Dr Febbo that he had no intention of using cannabis because Corrective Services would become aware of it and he would be breached, although he indicated that he 'wouldn't mind' using cannabis. In cross-examination,[72] Dr Febbo agreed that, in the respondent's case, cannabis does not have a direct link to sexual offending. Alcohol is the substance that has the direct link and which has been the major issue in the respondent's offending history. However, Dr Febbo did not entirely discount cannabis as having relevance. He said it was 'nowhere near the issue of alcohol', which would suggest it may still be an issue to some extent. Further, the cross-examination focussed on the absence of a direct link between cannabis and sexual offending. One can envisage cannabis as having a disinhibiting effect that may lead to the respondent resorting to the use of alcohol, if he is in the company of others who are drinking.
146 The fact that the respondent has expressed a desire to use cannabis, despite his assurances that he would abstain, suggests it may present a temptation that would be more difficult to resist than alcohol. I do not consider that I should ignore the potential for the accused to use cannabis as a factor that may contribute, even if indirectly, to his risk of serious sexual offending. However, the most significant issue is his capacity to abstain from using alcohol.
147 My overall impression of the respondent's statements to Dr Febbo is that they reveal the sort of attitude described by Ms Rankin. While expressing an intention to remain abstinent from alcohol, he underestimates the difficulties he will face if surrounded by family and peers who are using substances, in particular alcohol, and overestimates his ability to abstain.
148 Dr Febbo summarised his assessment on all of the information he had obtained as follows:[73]
[I]t does appear that Mr Pindan, despite only having had very few additional sessions with his the DSO psychologist, is able to articulate relatively realistic, all be it simple, strategies that would assist him in not offending sexually following release. He appears to have an understanding in relation to consent, acknowledges that alcohol has been a significant factor in the offending, and can describe ways in which he will avoid alcohol. Mr Pindan denied the presence of any inappropriate sexual fantasies. Although he was somewhat unrealistic about not experiencing stress following release, he was able to comment that he would use the resources of corrective services if he did experience significant stress.
Whether further gains can be expected from treatment
149 As I noted earlier, according to Ms Rankin, Dr Yewers, who has been providing therapeutic counselling to the respondent, has expressed the view that the respondent is not a suitable candidate for continuing therapy, whether in custody or in the community under a supervision order. She considers that it would not be necessary for ongoing counselling to be provided by a psychologist if the respondent were released into the community. These views were confirmed by Dr Yewers in her discussion with Dr Febbo.[74] She expressed the view that the respondent's responsiveness and capacity to benefit from ongoing psychological intervention was limited. She said that he is ambivalent about engaging and she does not believe that any additional psychological intervention would be of benefit. However, the respondent had been communicative in sessions despite his frustration, and Dr Yewers was of the view that the respondent does appear to have the capacity to form a working relationship, notwithstanding the limitations of his mindset and concrete thinking.[75] Furthermore, Dr Yewers' views and the prospect of further treatment were put in context in Ms Rankin's oral evidence.
150 Based on the views that had been expressed by Dr Yewers, and her own assessment when she interviewed the respondent, Ms Rankin's opinion was that very little could be gained by the respondent from continuing with the kind of treatment he had been receiving from Dr Yewers in a custodial setting.[76] However, in cross-examination Ms Rankin clarified the position if the respondent were to remain in detention. She said that, in those circumstances, it was Dr Yewer's intention to have a discussion with him as to what the next 12 months would hold in terms of treatment options.[77] The outcome would depend largely on whether the respondent was prepared to engage in therapy, given the intense frustration he had expressed previously towards the counselling sessions.[78] Ms Rankin said:[79]
[T]reatment readiness and motivation are dynamic factors that can change. It may well be that, you know, depending on the outcome of this particular hearing, Mr Pindan may decide that he has some issues that he would particularly like to work on, and Dr Yewers is certainly not going to refuse him the opportunity to do that. So it may well be that ... they do do some work. It may well be that he says, 'Look, no, I really don't want to engage. I really don't see any benefit in it. I'm not motivated to do it.'
151 I note that towards the end of his interview with Dr Febbo, the respondent described a sense of hopelessness if he is not released.[80] That may not augur well for his motivation to engage in further therapy in custody, but the opportunity will be available for him to take further steps towards release on a supervision order.
152 Initially, in cross-examination, Dr Febbo agreed that the respondent has done all the programmes that are available to him in custody and there is little more that he could do in custody in terms of further treatment. Dr Febbo agreed that the respondent needs to put his learnt skills into action. However, in answer to questions put by me, Dr Febbo expressed the view that the respondent could make further gains in custody if he chooses to engage.[81] He considered that the areas in which further gains could be made included disclosure of his sexual thinking, with a view to ascertaining whether there is sexual deviance, increased awareness of the effect of alcohol on him and its role as a risk factor, and victim empathy, with particular emphasis on awareness of the victim's pain. Another area would be in respect of the role of anger and envy as motivating factors in his offending.[82] Also, the respondent could benefit from counselling in respect of his problem with the requirement for disclosure under a supervision order. Dr Febbo was of the opinion that if the respondent were to engage well in treatment addressing those areas, it 'could cause a significant additional improvement in his level of risk'.[83]
153 In Dr Febbo's opinion, there is room for the respondent to develop increased awareness of factors that lead to offending, such as stress.[84] Indeed, he considered that one-on-one counselling with a psychologist would be necessary for the respondent to consolidate any gains if he were released into the community under a supervision order.
154 In further cross-examination, in light of his answers to me, Dr Febbo agreed that the respondent was more likely to engage if he was in the community rather than in prison, because if he was living in the community he would have a context, based in the reality and dynamics of his living circumstances, to which he could relate the content of counselling sessions. I will return to that issue later.
Whether a supervision order would provide adequate protection of the community (a) Proposed conditions of the order
155 A proposed supervision order containing 43 conditions was prepared by the SCCO, Ms Wasley, and her colleagues, for consideration by the court as an order that could provide adequate protection of the community if the respondent were released from detention. It was included with Ms Wasley's report.[85]
156 Apart from the usual conditions required by the Act, including electronic monitoring, the conditions address a number of matters designed to monitor and control the respondent, as well as provide for continuing treatment. They are tailored to best achieve appropriate management of the respondent and his risk of sexual offending. They address risk factors, such as alcohol use and access to women who are affected by alcohol, by prohibiting his possession or consumption of alcohol and prohibiting him from remaining in the presence of females who are affected by alcohol unless their identity is approved in advance by the CCO having supervision over the respondent. He would also be required to undergo urinalysis or other testing for alcohol or prohibited drugs as directed by his CCO or by a police officer. He would be prohibited from remaining in a place where prohibited drugs were being consumed, or, if such consumption was occurring at his place of residence, would need to remove himself from that part of the residence where it was occurring. He would be subject to a curfew, as directed by his CCO. He would also be required to make full disclosure of his past offending and the supervision order to anyone with whom he commenced a domestic, romantic, sexual or other intimate relationship.
157 The draft order would require the respondent to reside at the address that has been proposed on his behalf, in Broome, and he would be prohibited from leaving the Broome township without the prior permission of a CCO.
158 In my opinion, the proposed conditions reflect the minimum requirements that would be necessary to manage the respondent in the community in order to adequately protect the community against the risk that he would commit a serious sexual offence. The issue, of course, is whether the community could be adequately protected if the respondent were to be released from detention.
(b) The respondent's attitude to the conditions of the proposed supervision order
159 I have referred above[86] to the attitude expressed by the respondent to Ms Rankin towards the proposed conditions of a supervision order, as outlined by her in her report for these proceedings.
160 In her evidence at the hearing, Ms Rankin said that while the respondent expressed distaste for aspects of the proposed order, he did not go so far as to say he would not comply with the conditions of the order.[87] As to his apprehension about having to explain the conditions of any future order to either former or new intimate partners, Ms Rankin elaborated that the respondent said it would be awkward and onerous for him to discuss his prior offending and why he could not attend certain locations due to the presence of alcohol. Ultimately however, Ms Rankin was of the view that the respondent would be compliant with the order because she thinks that he understands the stakes that are involved if he were to fail to comply.[88]
161 Ms Wasley gave evidence that, in an interview in August 2015, the respondent had shown a negative attitude towards the conditions and the rigours of the order that might be imposed on him, saying he did not like it and did not want to follow it.[89] While he did not say he would not comply with the conditions, he described them as being 'stupid' and indicated he does not want to be under strict monitoring. He went so far as to say he was going 'to do his own thing on release'.[90] During an interview in November 2015, the respondent said he did not like the residential condition and did not want to be restricted to staying in Broome. It seems that this attitude stems, at least in part, from a desire to live in remote communities. That is understandable, but those communities have been assessed as unsuitable for the purposes of managing the respondent under a strict supervision order.
162 The respondent expressed to the SCCO the same attitude concerning the GPS device that he had to Ms Rankin. At one stage he indicated that he was not going to agree with the order as he did not want the GPS device.[91] In particular, he was not impressed with the proposition that there would be exclusion zones covering areas where the signal would not be strong. He considered that may restrict him from going on his fishing trips, or to more remote areas to visit family.[92]
163 Again, the respondent admitted to the SCCO that he would be reluctant to comply with the disclosure condition.[93] On the other hand, he considered that he could comply with the conditions requiring him to abstain from using alcohol or drugs.
164 In the most recent interview with an SCCO, Ms Henshall, in March 2016, the respondent was reported to have presented with a dismissive attitude towards the conditions, claiming that he would 'sort it on release'.[94]
165 Overall, Ms Wasley's opinion is that the respondent is likely to test the conditions of the order and struggle to comply with them, especially since he has challenged persons in authority in the prison system, and has said over a period of time that he does not particularly want to be supervised under such stringent conditions, because he does not see the point of them.[95]
166 Dr Febbo's assessment of the information from Ms Wasley was that the respondent had a fluctuating attitude towards the conditions required for release on a supervision order. The respondent told him that he believed he would be able to comply with the obligations of a supervision order, claiming he could 'do them easy', having seen the list.[96] However, Dr Febbo expressed concern that the respondent appears to be ambivalent about the requirements of a supervision order.
167 The respondent's conduct while in prison over the last 12 months is also relevant to the question whether he would be likely to comply with the strict requirements of a supervision order.
168 Between 4 June 2015 and 15 February 2016 he was reprimanded on nine occasions while at the West Kimberley regional prison. I consider most of the incidents that resulted in those reprimands to be of a minor nature. However, a number of the incidents demonstrated a refusal to comply with instructions and belligerence when dealing with certain prison regulations.
169 The incident of greatest concern was on 15 February 2016, when the respondent refused to obey a lawful order and swore at and challenged an officer who was carrying out his lawful duty. The respondent had been seen to be loitering and speaking to two female prisoners. He was told to stop the conversation and to return to his gardening duties. He continued to shout to the women as they were being moved to another section. The respondent was ordered to return to the garden area. He replied in an offensive and abusive manner, continuing to shout back and swear at the officer. The respondent was counselled by his unit senior officer and was reminded of the level of behaviour expected from him.[97]
170 While the way in which the incident was dealt with may suggest that it was not considered to be of a particularly serious nature, nevertheless it tends to demonstrate a negative attitude towards lawful instructions that may be given to him. It assumes significance when considered in combination with the negative attitudes he has expressed towards the conditions with which he will be required to comply under any supervision order.
171 The Community Supervision Assessment report[98] by Ms Wasley refers to three options for accommodation about which enquiries were made. First, the respondent had been on a waiting list for a Department of Housing one bedroom home in Fitzroy Crossing. However, he had thrown away a letter received from the department because he considered that he had suitable accommodation available to him, namely his mother's property in Broome, to which I will return shortly. Secondly, consideration was given to referring the respondent to the DSO Supported Accommodation Programme. However, the only accommodation available under that programme is in the Perth metropolitan area, and the respondent does not want to reside in Perth. Therefore, the referral form was not completed.
172 The accommodation that was proposed by the respondent as the place at which he would wish to reside while subject to a supervision order is his mother's home in Broome. It is a three bedroom detached house leased from the Department of Housing. The respondent's mother, Ms Pindan, is the leaseholder. It must be noted that the respondent informed Ms Wasley that he nominated the Broome address to gain release, but he intended to relocate from that address as soon as possible to Fitzroy Crossing if Department of Housing accommodation became available there.[99] In fact he said that he has never wanted to go to Broome, and that he was being forced to go to Broome in order to find suitable accommodation.
173 Ms Pindan has said she is prepared to have her son reside with her, and the Department of Housing has indicated it would have no reason to decline a request for the respondent to be added as a householder.
174 On 26 February 2016, Ms Wasley and another SCCO met with Ms Pindan and two other family members (the respondent's aunt and uncle) at Ms Pindan's house in Broome. The respondent had made it clear to Ms Wasley that only his mother, aunt and uncle were to be contacted for the purposes of the community supervision assessment.
175 Ms Pindan has lived in the house for 25 to 30 years. She has extended family in Broome, Fitzroy Crossing and Looma Community who frequent her home. Some of those relatives have in the past used intoxicating substances at the house and behaved in a disrespectful way. At the meeting attended by Ms Wasley, Ms Pindan indicated that over a number of years there has been anti-social behaviour at the house, including fights spilling onto the property from a neighbour's property and disruption and damage caused by intoxicated persons coming to the property. Some of the disruption is from neighbours coming onto the property. Ms Pindan expressed concern about how the respondent might react to such behaviour. Most significantly, although Ms Pindan does not drink alcohol or use illicit drugs, visiting relatives have tended to bring such substances to the property. Ms Pindan said she had told her family there was to be no more drinking or cannabis use at her house. In particular, she had sent a message to that effect to her sisters in the Looma Community.[100]
176 A so-called Desktop Accommodation Analysis was conducted in respect of the property by the Sex Offender Management Squad (SOMS) of the Western Australia Police, relying on information from Broome Police and the Department of Corrective Services as well as data from various sources concerning buildings and facilities within approximately 2 km from the house. The report was not tendered in evidence, but was referred to in Ms Wasley's report and in her testimony. The information was also available to Ms Rankin and Dr Febbo.
177 The analysis identified a number of issues that could pose difficulties for the respondent in terms of his capacity to avoid risk factors. In particular, parks and other public spaces in the immediate environs are used by groups of people for antisocial behaviour such as street drinking, illicit drug use and disorderly conduct. These activities have occurred on the same street as the proposed residence. According to local police it is a notorious street for rioting, assaults and drug dealing, and for the presence of large groups of intoxicated people in other residences.
178 Although Ms Pindan has said that she has taken steps to prevent this, a major concern, in terms of management of the respondent on a supervision order, is the possibility of family members bringing alcohol onto the property. Ms Rankin was of the view that, as the respondent is quite a traditional indigenous man, if there were elders who sought to entice him into drinking alcohol with them, he may find it difficult to refuse. The respondent will be in need of a stable environment, and that would be jeopardised by the presence of people who are drinking excessively and engaging in illicit drug use.[101]
179 The respondent would already be facing numerous stressors as a result of the strict regime under the proposed supervision order. His negative attitude towards some aspects of the order indicates compliance will be stressful for him. Exposure to alcohol and drug use both within the home and in the immediate environs would be an added stressor. He has said to those who have interviewed him that he would chase away anyone who brought alcohol or drugs to the house.
180 It was suggested to Ms Rankin during cross-examination that the risk of such exposure could be alleviated by the inclusion in the supervision order of a condition stipulating that only certain people could remain at the house at the same time as the respondent, or the issue of a lawful instruction to that effect. However, Ms Rankin noted there are limitations to the effectiveness of such a condition or instruction. There is no fencing around the perimeter of the property. People could be entering within the boundaries of the property without their knowledge; the respondent may then feel the need to chase them away, which could potentially put him at risk of offending in a general way, not necessarily in terms of serious sexual offending. Such circumstances would add to his stress, which could lead to greater potential for opportunistic offending. Hypothetically, if there happened to be an intoxicated woman sleeping in the front yard of the property, that could lead to a more immediate risk, especially if the respondent had access to alcohol.[102] Ms Rankin expressed concern that, if the respondent is put in the path of high-risk situations while under a supervision order, it would seem like he was being set up to fail.[103]
181 Dr Febbo was also concerned that alcohol will be a major temptation for the respondent and that he will be subjected to a considerable amount of stress dealing with antisocial behaviour around the neighbourhood of the proposed accommodation. The stress and impact of alcohol abuse would need to be addressed again and reinforcements undertaken on an individual treatment basis. Yet the respondent's attitude was that he does not need to address this issue anymore, because it is not really necessary, notwithstanding that he says he is prepared to comply with whatever requirements are contained in a supervision order.
182 In the past, the respondent's mother had said she was not prepared to house the respondent. One of her concerns had been that one of the respondent's victims lived close by and would be verbally abusive to Ms Pindan when passing the house. However, according to Ms Pindan, that person and her family have since relocated. Ms Pindan had also been concerned about the prospect of media attention and the respondent's ability to cope with that.
183 Ms Wasley gave evidence that Ms Pindan had taken steps to obtain a transfer to a different house, one which does have a fence around it, but the wait list was too long. As an alternative measure to reduce the number of people coming onto her property, Ms Pindan had obtained paperwork for approval to erect a fence. However, Ms Wasley was unsure if the paperwork for the fence was completed.[104]
184 In short, the accommodation would potentially be a stressful environment lacking the stability required by the respondent to enable him to comply with the strict regime of a supervision order, and he is likely to be exposed to significant risk factors, if not within the house (assuming the banning of alcohol and drug use by his mother was effective), then within the immediate environs of the house.
185 The respondent's mother would be his main support. She would have a significant role in ensuring he avoided scenarios that would put him at risk of committing a serious sexual offence. That would require her to have awareness of how such scenarios may arise.
186 Ms Pindan gave evidence at the hearing. She confirmed that she is able and prepared to provide accommodation for the respondent if he were released on a supervision order. She said that her reluctance to have him reside with her in the past was mainly due to the problems she had with people coming to her house, but that was no longer a problem because they have moved away. She emphasised there is no drinking of alcohol at the house and, if the respondent was residing there, she would maintain a strict rule prohibiting the consumption of alcohol and drugs.[105] She said there were previously children who would come around causing trouble, but they no longer have contact with her.
187 In cross-examination, Ms Pindan confirmed that her home was on a large property that was not fully fenced off and that at times there would be people fighting in front of the driveway. She also confirmed that at times some of her relatives would come inside her house already drunk.[106] In terms of the sort of antisocial behaviour that tends to occur near the house, she said that there are a lot of young people drinking and fighting on the street, smashing bottles and making loud noises. They would be outside her house, especially during the football season. She said that sometimes people sleep on her driveway when they are drunk, but she rings the police to come and pick them up.[107]
188 As to her knowledge of the circumstances of her son's offending, Ms Pindan gave evidence that she had not discussed her son's sexual offending with him, and she did not go to court when the respondent was sentenced. She said she relied on Ms Wasley for information about what happened to the victims,[108] but it was apparent that she did not know what the circumstances of the offences were, and she did not really want to know.[109] In re-examination Ms Pindan somewhat reluctantly said she would be prepared to find out what the circumstances of the offending were, but, as matters stood at the time of the hearing, there was no suggestion that she would know what measures might be necessary to avoid risk scenarios for her son.
189 Ms Pindan admitted that she told Ms Walsey in relation to one of the victims, that she was a drinker who always drinks and that she sees her with a lot of white men, hanging around her house.[110]
190 Ms Wasley had given evidence earlier that Ms Pindan had described the victim as a drunkard and had said that she could have been sexually assaulted by any man.[111] When Ms Wasley told Ms Pindan that that was not the way the law or the wider community saw it, and pointed out the trauma to the victim, Ms Pindan said, 'Yeah, I know that, but I know the rules and I told Nigel [the respondent], you know.' Despite Ms Pindan having attempted to retrieve the situation in that way, Ms Wasley formed the impression she was excusing or minimising the respondent's offending against that victim, although Ms Pindan had also said she knew nothing about it. It is a matter that, in addition to her lack of knowledge of the circumstances of the offending, affects Ms Pindan's ability to provide adequate supervision of the respondent and assist him to avoid risk scenarios. Dr Febbo was also of the view that, if Ms Pindan is inclined to minimise the respondent's offending, that could contribute to the respondent's negative attitude to compliance with the supervision order, as he would perceive it as unnecessary.
Conclusions - Compliance with a supervision order
191 It was submitted on behalf of the respondent that he knows he has to comply with the conditions of a supervision order, and he has said that he will comply. It is understandable that he would say that; one would expect him to say he would comply when asked directly. He knows that he will not be released if he is not prepared to comply with the conditions of a supervision order. However, it is necessary to assess such assurances in the light of persistent statements he has made that demonstrate an attitude that he regards a number of the conditions as 'stupid' or unnecessary, and that he will 'sort it out' when he is released.
192 Of particular concern is the respondent's aversion to having to disclose his DSO status and past offending to anyone with whom he commences a relationship. The point of such a condition, as Dr Febbo ultimately acknowledged, is to provide the other person with the opportunity to protect herself and other women with whom she associates and who may come into contact with the respondent from the risk of the respondent offending against them when they may be vulnerable. It enables that person to take steps to avoid that vulnerability, either on her part or on the part of female associates. Such vulnerability may arise if they are asleep in a place to which the respondent will have access or are intoxicated in his presence.
193 The respondent's negative attitudes to the conditions of the proposed supervision order, and his particular aversion to disclosure, inspire no confidence that he will comply with the conditions of a supervision order. Dr Febbo was of the view that, in light of such specific indications of distaste for the conditions, less weight should be given to the respondent's general statement that he would be prepared to comply with everything on a supervision order.
Conclusions - Suitability of the accommodation Difficulty with avoiding risk factors
194 I am not satisfied that the proposed accommodation would provide a suitable environment for the respondent to be able to comply with the conditions of the proposed supervision order and manage his risk sufficiently to provide adequate protection of the community. Despite the measures that have been taken by his mother to warn off relatives who might be inclined to bring alcohol or drugs to the property, there remains a risk that alcohol will be brought onto the property and that the respondent will be put in an environment in which his resolve will be significantly challenged. His strategies for avoiding relapse into alcohol use are rudimentary and likely underestimate the difficulty he would face. While I accept that his capacity to cope with stress and avoid relapse can only be demonstrated upon release, the environs in which he will be living will be particularly stressful and lacking the stability he will require to cope adequately and comply with the conditions of a supervision order. Regrettably, it appears to be a hub of riotous and other antisocial behaviour.
195 The fact that intoxicated people occasionally fall asleep in the front yard of the property or in the surrounding public places will be of particular concern if any of those people are women, given the circumstances of his previous offending.
The capacity of the respondent's mother to provide supervision
196 The suitability of the proposed accommodation depends also, in my opinion, on the capacity of the respondent's mother to have a role in the management of his risk. At the last annual review, EM Heenan J noted that suitable accommodation was not available because 'there is no close relative ready and able to provide accommodation and supervision' for the respondent.[112] His Honour's comment reflects the expectation, which I share, that the person providing accommodation to the respondent would also have a role in his supervision. That is particularly so in circumstances in which the respondent has demonstrated distaste for the conditions under which he would be released. Further, as he will not be the head of the household, he will not necessarily be able to determine who could come to the home or the circumstances in which they may be allowed to stay, even if he was determined to avoid circumstances that might increase his risk of reoffending.
197 As the head of the household at the proposed accommodation, I would expect the respondent's mother to have a role in his supervision and to take steps to avoid situations being created in her home in which the respondent's risk of reoffending may be increased because of the presence of women in vulnerable situations. This would require her to be aware of the key aspects of his offending. She should know, for instance, that some of the women against whom the respondent offended were sleeping or intoxicated at the time, and were vulnerable as a result. She should also know that there was an escalation in the respondent's use of violence on the last occasion he offended. As I noted earlier, when questioned about the matter at the hearing, Ms Pindan said she did not know the details of the respondent's offending, and did not want to know.[113] Although in re-examination, Ms Pindan said that she would be prepared to find out the details of her son's past offending, I do not have confidence in Ms Pindan's present ability to fulfil the supervisory responsibility to which I have referred.
198 In summary, while Ms Pindan's offer of accommodation to her son and her preparedness to assist in his supervision are commendable, I am not satisfied that the community could be adequately protected if the respondent were released on a supervision order (with strict conditions as proposed) at the proposed accommodation under the immediate supervision of Ms Pindan.
Whether a failure to provide treatment or adequate treatment amounts to a repudiation of the preventive objects of the Act
199 The respondent submitted that, as the order made by McKechnie J for the respondent's detention stipulated that he was detained for treatment, and not for control or care, if there has been no attempt by the department to engage in planning for the future or treatment of the respondent, then there has been a repudiation by the executive government of the preventive objects of the Act and the detention has become punitive. It was submitted that, in such circumstances, this court should not make an order that would result in the continued detention of the respondent.
It is possible, too, that the view taken by Gummow J in Fardon v The Attorney-General for Queensland supports an argument that executive government repudiation of the preventive objects of the Act in a particular case (as, for example, by the refusal of any treatment to a prisoner clearly capable of, and amendable to, rehabilitation) could lead the court to refuse to make any order at all [24].
201 In A Pindan [No 3], at [67] [71] and [77] - [83], Corboy J explained the context in which that proposition was made and why it could not apply in respect of the legislation in this State because of the decision in Williams. The court has an obligation to make an order.
202 In GTR, Steytler P and Buss JA addressed the question of the court's obligations on an annual review in the following terms:
It appears to be plain enough, from s 33, that once a court finds that a person remains a serious danger to the community it must do one of the two things mentioned in s 33(2) and that the option of rescinding the order and releasing the offender is only to be adopted if the court does not find that the person remains a serious danger to the community. Also, so far as s 56 of the Interpretation Act is concerned, the provisions of that section apply unless, in relation to a particular written law, express provision is made to the contrary or, in the case of a statute, the intent and object of the statute or something in its subject or context is inconsistent with their application: s 3 of the Interpretation Act. On the view of the majority in Williams, there is in the subject matter and context of the Act material that is inconsistent with the application of s 56 of the Interpretation Act. [51]
[Section 56 provides
(1) Where in a written law the word may is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion.
(2) Where in a written law the word shall is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.]
203 In Director of Public Prosecutions v Pindan [No 4][116] (A Pindan [No 4]) McKechnie J identified the competing considerations in assessing whether the State is meeting its obligations:
The State undoubtedly owes a duty to the respondent as outlined by Corboy J.
It now appears to have acknowledge[d] that duty and is undertaking significant efforts to assisting the respondent. The court will be vigilant to ensure those efforts are maintained but it must be recognised that the respondent's needs have to be taken into account along with the State's obligation to others in prison or detention [30] [31].
204 I note, further, that the hypothetical example given by the Queensland Court of Appeal in Attorney-General (Qld) v Francis, in which a court might not make an order, envisaged the refusal of any treatment, and that the prisoner who was refused treatment was clearly capable of, and amenable to, rehabilitation. The words I have italicised are conditions that qualify the circumstances of the example and, in my opinion, are significant.
205 The first condition suggests there must be complete failure by the Executive to give effect to the purpose of the detention. The court was not suggesting that detention would become punitive because there may be a perception, dependent on either a quantitative or qualitative assessment, that there was some shortfall in the treatment that was provided.
206 The second condition makes it clear that regard must be had to the prisoner's circumstances. His cooperation is, obviously, a relevant consideration. However, it is also relevant to take into account whether any treatment is likely to be effective in the prisoner's rehabilitation. If it appears that treatment is futile, because the prisoner is not capable of rehabilitation (or, in the present context, further rehabilitation) if provided with treatment, the failure to provide such treatment could not be regarded as a repudiation of the preventative objects of the Act. It must be expected that the Executive will act responsibly in its allocation of resources.
207 In the present case, the Executive has provided treatment to the respondent. The submission made on his behalf is not that there has been a refusal to provide any treatment, but that more treatment should have been made available to him. The evidence in this case tends to establish that the respondent may not be capable of further rehabilitation, if indeed it can be said that he has achieved any degree of rehabilitation so far. That may depend on one's concept of rehabilitation.
208 Some progress has been made in the respondent's appreciation of factors that have put him in circumstances which have led to him being charged with sexual offences. In that regard, Dr Febbo did consider that psychological counselling on a more frequent basis may have provided further reinforcement of any gains. However, for periods of time during his incarceration over the last 12 months the respondent has not been amenable to further treatment.
209 There is a further consideration, in my opinion, that militates against the respondent's argument based on Attorney-General (Qld) v Francis. The remarks made in that case concerning potential circumstances in which the court may refuse to make any order, appear to have been predicated on the view that the Queensland provision that is the equivalent of s 17(1) of the Act provides the purposes for which continuing detention may be ordered, and that the use of the disjunctive to connect those purposes means that an order for continuing detention may be made for one or more of those purposes. So, if the order is that the respondent is to be detained for treatment, that is the 'preventive object' of the statute that is to be achieved.
210 However, the objects of the Act are specified in s 4 as follows:
(a) to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community; and
(b) to provide for the continuing control, care, or treatment of persons of a particular class.
211 In my opinion, it is clear from the structure of s 4 that the principal purpose of detention in custody (and of supervision under a supervision order) is 'to ensure adequate protection of the community'. This is consistent with the provisions of s 17(2) and s 33(3) of the Act which provide that in determining whether to make a detention order or a supervision order, or in determining whether to rescind a detention order and make a supervision order, the paramount consideration is to be the need to ensure adequate protection of the community.
212 Paragraph (b) of s 4 provides additional objectives to those set out in par (a). The objectives in par (b) mirror the purposes for which a person may be detained under s 17(1)(a).
213 Each of the objectives in paragraphs (a) and (b) of section 4 concerns something to be done in respect of 'persons of a particular class'. That particular class is the class of persons found to be 'a serious danger to the community', being persons who pose an unacceptable risk that, if they were not subject to a continuing detention order or a supervision order, they would commit a serious sexual offence.
214 In my opinion, the combined effect of the objects in s 4(a) and the provisions of s 17(1)(a) and (2) and s 33(3) is that detention serves -
(a) the principal purpose of providing adequate protection of the community from the unacceptable risk that the offender, if not detained, would commit a serious sexual offence; and
(b) the additional purpose of meeting one or more of the needs specified in s 4(b) and s 17(1)(a), namely control, care or treatment.
215 Each of the objectives in (b) serves a purpose in attaining the ultimate objective of the adequate protection of the community. Control and care of the offender provide immediate protection. The treatment of an offender is intended to reduce the offender's risk to a level where he is no longer a serious danger to the community or the community could be adequately protected against that danger by the release of the offender on a supervision order.
216 The fact that the detention order made by McKechnie J in this case specified treatment as the purpose of the detention does not mean that detention would cease to be preventative and become punitive if suitable treatment was not available or was considered futile.
Whether a preference for treatment in the community provides a good reason for making a supervision order
217 The respondent also relied on Attorney-General (Qld) v Francis to argue that, if treatment is more likely to be effective in the community than it is in custody, for instance because the respondent would be able to put into practice strategies that are discussed to reduce risk, the court should opt for a supervision order to enable that treatment to be received. The argument relies on the following passage in Attorney-General (Qld) v Francis:
It may be, however, that, in some instances, a dangerous prisoner has such clear and pressing prospects of rehabilitation that the court's choice of an order under s 13(5)(a) [a continuing detention order], rather than under s 13(5)(b) [a supervision order] will turn on the answer to the factual question whether further treatment, necessary to ensure adequate protection to the community, is likely to be available or effective only while the prisoner remains in detention. If the court were to be satisfied in a particular case that further treatment of a prisoner was necessary, and likely, to reduce the risk of reoffending to acceptable levels, but that such treatment would not be made available to the prisoner in detention, then that would be a good reason to make an order under s 13(5)(b). The choice between an order under s 13(5)(a) or (b) must, of course, be controlled in the end by s 13(6) of the Act [which is in identical terms to s 17(2) of the DSO Act]; but, in such a case, it might make little sense to make a continuing detention order for the purpose of 'control, care or treatment' of the prisoner. [30]
218 Assuming, without reaching a concluded view, that the approach described may be appropriate in a case that meets the criteria referred to in the passage, the criteria are not met in the present case. In the first place, it cannot be said that the respondent has 'clear and pressing prospects of rehabilitation'.
219 As I noted earlier, there was a difference of opinion between Dr Febbo and Ms Rankin (whose opinion reflected that of the treating psychologist, Dr Yewers) as to the extent to which the respondent continues to have prospects of making further gains towards selfmanagement of factors and circumstances that put him at high risk of reoffending. Dr Febbo is of the opinion that the respondent may benefit from further psychological intervention, and indeed considers continuing one-on-one treatment with a psychologist as essential if the respondent were to be released into the community. Ms Rankin, on the other hand, said that the respondent was considered (by the psychologists) to be unsuitable for ongoing psychological input. It was the opinion of the Forensic Psychological Service that matters that had been covered in psychological treatment could be reinforced by senior Community Corrections staff or an external drug and alcohol agency, in the event that the respondent was released on a supervision order.
220 However, as I outlined earlier, Ms Rankin did say that if the respondent remains in custody, although he is unlikely to benefit from long-term psychological engagement, he will be offered the opportunity to review his selfmanagement and risk management strategies in the period leading up to any future annual review. That goes to the second aspect of the circumstance identified in Attorney-General (Qld) v Francis that may be a good reason for the making of a supervision order, namely that, the court being satisfied that further treatment was necessary, and likely, to reduce the risk of reoffending to acceptable levels, the court is also satisfied that such treatment would not be made available to the respondent in detention.
221 As I outlined when dealing with the question of whether further gains can be expected from treatment,[117] Dr Febbo ultimately was of the view that the respondent could make further gains in custody if he chooses to engage.[118] He identified a number of areas in which he thought further development could occur. As I also noted earlier, Dr Febbo agreed that the respondent was more likely to engage if he was in the community rather than in prison. However, the likelihood of the respondent's engagement in treatment is not the paramount consideration under the Act.
222 While the objective ultimately should be the release of the respondent into the community, giving him the opportunity to put into practice the content of his counselling, that can only occur in circumstances in which the community can be adequately protected from his risk of committing a serious sexual offence by the conditions of a supervision order and the availability of suitable accommodation that would be conducive to proper monitoring of the respondent and compliance by him with the conditions of a supervision order.
223 I have found that the respondent remains a serious danger to the community.
224 Having considered the evidence in detail, as set out above, I make the findings set out in the summary of findings at [14] [21] above. As a result of the combination of those findings, I am not satisfied that that the adequate protection of the community can be ensured by a supervision order in the terms proposed, at the proposed accommodation. In short:
225 In his report, Dr Febbo makes the following comments:
Whilst there is a real risk that Mr Pindan will have difficulty complying with the supervision order, particularly in the context of living with his mother in Broome, it is difficult to see how, other than considering an alternate location, there can be any further improvement in his level of risk if he were to remain in prison for an additional 12 months. Mr Pindan described a sense of hopelessness if he is not released and it is likely that there will be additional disengagement from treatment if there is a further delay in release.
226 The issue, however, is not whether the respondent's risk of sexual reoffending can be further reduced by therapeutic intervention whilst in detention, but whether the community can be adequately protected if he were to be released on a supervision order. A risk does not become acceptable merely because it cannot be further reduced.[119] However, the oral evidence given by Dr Febbo at the hearing supports the conclusion that there is scope for further treatment gains by the respondent even in detention.
227 As I said when I gave my decision on 22 April 2016, the respondent must be given the opportunity to demonstrate that he will be able to engage with continuing treatment if he were to be released in the community. That means that attempts must be made to engage him in psychological counselling and to deal with the areas that Dr Febbo identified as areas in which gains potentially could be made. Those attempts should be made in sufficient time before the next annual review to enable a meaningful assessment to be made of any such gains and his level of engagement. Of course, the respondent's preparedness to engage in such further treatment would have a bearing on the extent to which treatment is provided.
228 It will be necessary also for the respondent to demonstrate a proper appreciation and acceptance of the proposed conditions of a supervision order and, by his conduct, that he will follow lawful instructions under such an order. Improvements in those areas will be necessary for the court to have confidence in his resolve to comply with a supervision order.
229 It will also be desirable for alternative accommodation that is more suitable to be found. To the extent that it is possible, assistance should be provided to Ms Pindan in her endeavours to find alternative accommodation, with the expectation that the respondent may be able to reside with her. It may be that, if there are improvements in the respondent's personal circumstances, they may give the court confidence that the kinds of difficulties identified with the accommodation during this review could be overcome, but that prospect should not reduce the efforts that need to be made to find accommodation that is more suitable. Obviously, progress in respect of all the areas of concern identified during this review would be the preferred course.
230 For the reasons I have given, I declined to rescind the continuing detention order.
[1] Director of Public Prosecutions (WA) v Pindan [2013] WASC 393.
[2] Director of Public Prosecutions (WA) v Pindan [No 2] [2015] WASC 157.
[3] Director of Public Prosecutions (WA) v Lyddieth [2014] WASC 391 (Simmonds J) at [20] [30] and [144] [147].
[4] The section has been amended between the giving of the decision in this matter and the publication of these reasons. The reasons must necessarily deal with the legislation and the case law as they applied at the time of the decision.
[5] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, [60], [66] - [68].
[6] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [20] - [25] (Steytler P & Buss JA).
[7] Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217 [155] (Steytler P & Buss JA), [204] (Murray AJA).
[8] Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 [40] - [48]. The case concerns a different respondent with the same surname, Adrian Pindan.
[9] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14] (Hall J).
[10] The State of Western Australia v Latimer [2006] WASC 235.
[11] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [9] [12].
[12] Director of Public Prosecutions (WA) v Dinah [No 8] [2016] WASC 2 [20] [21].
[13] Director of Public Prosecutions (WA) v Misko [No 4] [2016] WASC 4 [12].
[14] Director of Public Prosecution (WA) v Yates [No 2] [2015] WASC 201.
[15] As I noted earlier, it has been held that the provisions of sections 33 and 17 should be construed in the same manner: Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [50] - [51] (Steytler P & Buss JA).
[16] This is because of the provisions of s 7(1) as well as the need in statutory interpretation to have regard to the language used in the statute as a whole: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129, 16 1-2 (Higgins J).
[17] See Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; 195 ALR 24 [30] (Gleeson CJ).
[18] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178.
[19] Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300.
[20] See s 34 to s 36 of the Act. An appeal is by way of rehearing.
[21] Given the level of detail and analysis involved in proceedings for Division 2 orders and annual reviews, it seems to me such a development would be unlikely, but allowance must be made for the possibility.
[22] Director of Public Prosecutions (WA) v Pindan [No 2] [2015] WASC 157 [8].
[25] Exhibit 7 - report dated 2 November 2007.
[31] The Indigenous Men Managing Anger and Substance Abuse programme.
[34] Pindan [No 2] [8]. See [91] [94] above.
[35] His date of birth was established in the proceedings for the Division 2 order in 2013 to be 31 December 1978.
[36] Although in his report of 23 March 2016 (exhibit 1.8), Dr Febbo does not use the adjective 'serious' in his conclusion, it is obvious from the balance of his report and the scenario he outlines for potential reoffending by the respondent that he is referring to a serious sexual offence as defined in the Dangerous Sexual Offenders Act.
[37] ts 303 - 4; exhibit 2, report dated 1-2 August 2013, page 30.
[45] These matters were also confirmed by Dr Yewers with Dr Febbo. See Dr Febbo's report, 23 March 2016 (exhibit 1.8), page 3.
[51] Dr Febbo's report, 23 March 2016 (exhibit 1.8), page 2.
[52] Dr Febbo's report, 23 March 2016 (exhibit 1.8), page 2.
[53] Dr Febbo's report, 23 March 2016 (exhibit 1.8), page 3.
[55] Exhibit 2 - Dr Febbo's report dated 16 July 2013, pages 15 and 26.
[57] Exhibit2, page 26; ts 306, 7 April 2016.
[59] Exhibit 3 (prepared for the first annual review).
[61] Exhibit 6 (report dated 20 September 2011).
[67] Dr Febbo's report, 23 March 2016 (exhibit 1.8), page 3.
[68] Dr Febbo's report, 23 March 2016 (exhibit 1.8), page 4.
[73] Dr Febbo's report, 23 March 2016 (exhibit 1.8), page 5.
[74] Dr Febbo's report, 23 March 2016 (exhibit 1.8), pages 4 - 5.
[75] Dr Febbo's report, 23 March 2016 (exhibit 1.8), page 5.
[80] Dr Febbo's report, 23 March 2016 (exhibit 1.8), page 4.
[94] Exhibit 1.10, Ms Wasley's report, 30 March 2016, page 4.
[96] Dr Febbo's report, 23 March 2016 (exhibit 1.8), page 4.
[98] Exhibit 1.10, Ms Wasley's report, 30 March 2016.
[99] Exhibit 1.10, Ms Wasley's report, 30 March 2016, pages 6 - 7.
[109] ts 507 508 and 512 513, 14 April 2016.
[113] ts 507 508 and 512 513, 14 April 2016.
[114] Director of Public Prosecutions (WA) v Mangolamara [2007] WASC 71 [58] [61].
[115] Attorney-General (Qld) v Francis [2006] QCA 324; [2007] 1 Qd R 396.
[116] Director of Public Prosecutions (WA) v Pindan [No 4] [2015] WASC 124.
[119] Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306 [65] (Hall J).
(2008) 38 WAR 217
(2003) 211 CLR 476
(2007) 35 WAR 297
(1920) 28 CLR 129
(2008) 38 WAR 307