THE STATE OF WESTERN AUSTRALIA -v- AA [No 3] [2009] WASC 74 (26 March 2009)

29. Review - periodic

(1) While a person is subject to a continuing detention order, the DPP must apply to the Supreme Court for the person's detention under the order to be reviewed as specified in subsection (2).

(2) Reviews have to be carried out -

(a) as soon as practicable after the end of a period of 1 year commencing when the person is first in custody on a day on which the person would not have been in custody had the order not been made; and

(b) as soon as practicable after the end of the period of 1 year commencing when the detention was most recently reviewed under this section or section 30.

3 I should also refer to the terms of s 30 which, so far as material, are as follows:

30. Review - application by person subject to order

(1) A person who is subject to a continuing detention order may, with the leave of the court, apply to the Supreme Court for the person's detention under the order to be reviewed.

(2) Before granting leave the court must be satisfied that there are exceptional circumstances that relate to the person.

(3) An application cannot be made under this section for a person's detention to be reviewed until after the detention has been reviewed under section 29(2)(a).

4 As will appear, I need to express a view as to the meaning and effect of these provisions. Section 29 is designed to ensure that there will be periodic reviews of a person's custody under a continuing detention order. It cannot be the case that, such an order having been made and having effect until rescinded, the person who is the subject of the order is simply left detained in prison, despite the fact that he is not serving any sentence imposed by a court. In relation to the offences which were material to the making of the continuing detention order, he has served what may have been a quite lengthy term of imprisonment.

5 However, although s 29 describes the frequency with which the reviews must be carried out, s 29 does not prevent an application for review by the DPP at any earlier time, whenever, in the circumstances of the case, it appears to the DPP to be appropriate to have the question of the continuing detention of the offender reviewed by the court.

6 In that regard, the DPP has a freedom which is denied to the offender, who may only make an application for review by leave granted in exceptional circumstances relating to the person concerned and, in any event, such an application may not be made until after the first review under s 29. This is, in fact, the first review of the continuing detention order made in the case of the respondent.

7 The court's powers on the review are set out in s 33:

33. The review

(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.

8 At the hearing of the review, under s 42(4) of the Act, I received in evidence a book of reports concerning the respondent. Neither party required the authors of those reports to give oral evidence and there was no suggestion that the respondent wished himself to give oral evidence or call other witnesses.

9 I need not discuss the history of the proceedings affecting the respondent which have previously been conducted. The final outcome of those proceedings was the making of a continuing detention order with effect from 28 November 2007. The hearing of the review on 27 February 2009 was held as soon as practicable after 28 November 2008.

10 I am pleased to say that upon the evidence before me, in the period since 28 November 2007, the officers of the Department of Corrective Services have been far from idle. For reasons which I need not mention, there has been some difficulty in having the respondent engage effectively in a sex offender treatment program, but he participated in such a program between 26 August 2008 and 11 December 2008, upon which date he completed what is described as a Sex Offender Treatment Program for the Intellectually Disabled, conducted at Casuarina Prison, where he is located.

11 The respondent is a 48‑year‑old man. His intellectual functioning is described as 'borderline'. He has no more than slight impairment in his social and occupational functioning, according to the report of the reviewing psychiatrist, Dr Wynn‑Owen, which was provided on 13 February 2009 and is in evidence before me. The respondent has, however, spent such lengthy periods serving terms of imprisonment as punishment for the commission of serious sexual offences that he is thoroughly institutionalised, a problem to which I shall return shortly.

12 As I have said he completed the sex offender treatment program and there is a completion report dated 30 December 2008, which is before me. Its authors are the officers responsible for conducting the program. In short, they note that the respondent made limited progress. He gained a limited understanding of the factors underlying his offending, but he continued to divert responsibility for that behaviour away from himself. It is evident that, after a slow start, the respondent made most progress towards the end of the program. The officers recommended another effort of a similar kind to see if those conducting such a program could build on the gains made thus far.

13 In addition I have read a report, dated 27 January 2009, by a forensic psychologist, Ms Caple, who has had considerable contact with the respondent and has been involved, since 2007, in individual counselling sessions with him. She observes that he is not highly motivated to accept further treatment, and she attributes that to an overwhelming fear of the respondent that he will be unable to cope if released into the community. Ms Caple describes the respondent as being unduly reliant upon prison staff and the environment of a maximum security prison for the structure of his daily life. He draws 'psychological safety' from that and he simply lacks adequate skills to live in the community. If released now, she is convinced he would present 'a significant risk of reoffending'.

Over the past 12 months [the respondent's] overwhelming fear of release from prison has not seemed to have abated in any manner. This has led to significant barriers to him engaging in treatment. To address his low treatment readiness it is proposed that small changes to his prison environment and living tasks be staged in over a significant period of time. If Mr [AA] can learn to adapt to these changes, his ability to live within the community can be re‑evaluated, with the aim of preparing him for re‑entry.

15 An important document in evidence before me is an assessment report made by a senior community corrections officer at the Casuarina Prison based unit of the Community Justice Services section of the Department of Corrective Services, Ms Charlton. Ms Charlton and the transition manager at Casuarina, Ms Raph, have undertaken a comprehensive review of structured, supervised accommodation available in the community which, it was thought, might meet the support and supervision needs of the respondent.

16 Eleven non‑governmental agencies and three governmental agencies were canvassed. In some cases, there were, in any event, very long waiting periods (up to nine years), but the officers were unable to identify any accommodation in the community which could meet the respondent's needs for a structured environment; for constant support and supervision; and for continual reinforcement of his progress.

17 They therefore proposed to take up the suggestion of a long‑term management plan in the prison setting. Apart from continuing treatment efforts, the plan is described as 'a graduated transfer to a minimum security prison to see how he will cope in a less structured environment'. The report does not say what the gradual process would involve, nor, I think, is it necessary that I should understand that. However, it would seem that the prison management officers consider that the process, 'could take up to three years to achieve'.

18 As I understand the evidence, the advice tendered to the court is that the respondent is now engaging in a treatment process which may ultimately reduce the risk of reoffending and also improve his ability to cope with life in the community. But the respondent is so institutionalised that he is comfortable within the familiar, highly‑structured environment of a maximum security prison. He is not motivated to put himself in the situation where he might be released into the community.

19 Progress in reducing the threat he poses to the community, if released, is therefore dreadfully slow, but the authorities are hopeful that progress will continue until ultimately the respondent might safely be released on terms with which he would have the capacity to comply with, involving a less structured accommodation requirement without constant supervision. In that event, accommodation in which the respondent might be safely placed would be more likely to be available.

20 The report of the psychiatrist, Dr Wynn‑Owen, was provided at the court's request. It confirms the problems involved in managing the case of this respondent. Crucially, for present purposes, Dr Wynn‑Owen expresses the view that unless treatment gains can be maintained, probably with the assistance of anti‑libidinal medication, the respondent is and will remain a serious danger to the community within the meaning of the Act.

21 Of course, under s 33(3), the paramount consideration for the court is the need to ensure adequate protection of the community from the danger posed by the respondent if he were to be now released. I accept the opinion of Dr Wynn‑Owen, which is also expressed in other evidence to which I have referred, and therefore conclude that the respondent remains a serious danger to the community. Further, I am satisfied that a supervision order under the Act could not be appropriately framed so as to permit the respondent's release at this time. Therefore, at the hearing of the review, I declined to rescind the continuing detention order.

22 In conclusion, I express the hope that this most difficult case will continue to attract the considerable effort which has been expended by the authorities in dealing with the case over the past year. However, it also seems to be abundantly clear that a considerable impediment to making more rapid progress in the respondent's case is his own lack of motivation to fit himself for a return to the community.

23 At the hearing of the review, I urged the respondent to put more effort into the process of his treatment and rehabilitation. He must accept that the psychologists and other counsellors working with him know what they are doing; can help him not to reoffend; and can teach him how to live a useful and fulfilling life in the community. I cannot accept that the respondent will condemn himself to many more years in prison, subject to annual reviews which will continue to show a lack of progress.

24 Finally, I place on record here what I said at the hearing about the capacity to bring the matter again before the court. The DPP has the capacity to do so at any time when he feels that it is appropriate to have the respondent's case again reviewed.

25 So far as an application by the respondent is concerned, I consider that the requirement in s 30(2), to demonstrate exceptional circumstances before leave to bring an application will be granted, would be satisfied by evidence that the respondent's case had been progressed to the point where it was felt that conditions could be devised to permit his release into the community in accordance with the terms of a supervision order. Such circumstances would, in my view, demonstrate an exception to those presently applicable to this case which demand the continuation of the indefinite detention to which the respondent is currently subject.