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[2019] WASC 495
General information, not legal advice.
Supreme Court of WA
2022-05-03
Fiannaca J
Original judgment source is linked above.
1 This is an application under s 29 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). It was heard by me in October 2019.[1]
2 At the time, the respondent was the subject of a continuing detention order (CDO) made by Blaxell J on 13 January 2011 pursuant to s 17 of the DSO Act on the basis that the respondent was a serious danger to the community, in that there was an unacceptable risk that the respondent would commit a serious sexual offence if not subject to a CDO or a supervision order.[2] His Honour was satisfied that the only appropriate order at that time to ensure the adequate protection of the community was a CDO.
3 Section 29 of the DSO Act required that a person's detention under a CDO was to be reviewed periodically. Until s 29 was amended in 2016, reviews had to be conducted annually. After the amendment in 2016, the first review was to occur as soon as practicable after the end of the first year of detention and thereafter reviews were to occur every two years.
4 At each of the annual reviews until 2017, the court expressly 'declined to rescind' the CDO (being the language applicable at the time of each of those reviews by which a CDO would continue in force if the court was satisfied the respondent continued to be a serious danger to the community and a CDO was necessary to ensure the adequate protection of the community).[3] In September and October 2017, Jenkins J conducted the sixth annual review of the CDO (the 2017 review). Her Honour 'affirmed' the CDO[4] (being the language applicable at the time of the 2017 review and for the purposes of the present review by which a CDO would continue in force in the circumstances previously described).
5 On 2, 3 and 30 October 2019, I conducted the seventh review of the CDO (the 2019 review). On 30 October 2019, I affirmed the CDO and set 1 November 2021 as the date for the next review. I provided brief reasons and said I would publish my reasons later. I also said that, in advance of publishing my reasons, I would provide the parties with written recommendations arising from the evidence in the proceedings in respect of the further management and treatment of the respondent, with a view to enhancing his prospects of release on a supervision order when his detention is next reviewed. Those recommendations were provided to the parties on 30 November 2019.
6 The respondent's detention under the CDO was to be reviewed as soon as practicable after 29 October 2021.[5] It was for that reason that I made the order setting the date for the next review as 1 November 2021. However, on 13 October 2021, the applicant made an application for the review to be heard as soon as practicable after 1 May 2022, and on 11 November 2021, the parties sought orders by consent for the review to be conducted on 2 May 2022.[6]
7 These are my reasons for making the order affirming the CDO on 30 October 2019 and for the recommendations provided to the parties on 30 November 2019, which are set out at the end of these reasons.
8 These reasons should be read in conjunction with the earlier decisions in respect of the respondent under the DSO Act, in particular Unwin [No 7].
9 The respondent's background and offending history was outlined by Blaxell J in Unwin [No 1] at [5] to [36] and was summarised by Commissioner Sleight in his Honour's decision on the third annual review, namely Unwin [No 4], at [5] to [10].[7] It is not necessary for me to repeat those facts. It is sufficient to note that, at the time of the hearing, the respondent was a 40‑year‑old man with significant cognitive deficits who had a neglected and unhappy childhood, which included sexual and other physical abuse. He was made a ward of the State from the age of 12 years. His background led to behavioural problems, substance abuse and criminal offending. In particular, the respondent has a long history of sexual offending both as a juvenile and as an adult.
10 The respondent's juvenile offending includes two offences of indecent dealing with a male child, six offences of indecent assault and one offence of deprivation of liberty. The indecent assaults were against women and girls aged 13 and 16 years, and the deprivation of liberty was associated with one of the offences of indecent assault. The offences committed by the respondent as an adult included further offences of indecent assault, aggravated indecent assault and aggravated sexual penetration without consent, all of which were accompanied by acts of violence and, on one occasion, a threat to injure. He also committed an offence of assault occasioning bodily harm, associated with one of the incidents of sexual offending. The offences were committed against women. Some of the sexual offences were committed after the respondent was released from prison, having served sentences for previous sexual offending.
11 The respondent was last convicted of sexual offences in the District Court on 31 October 2008 and was sentenced to imprisonment for 2 years and 4 months, backdated to commence on 22 June 2008. The application that led to the making of the CDO by Blaxell J in 2011 was brought during the period of that sentence.
12 The respondent completed the sentence imposed in October 2008 on 30 September 2010. Since completing the sentence, the respondent has remained in custody, initially pursuant to an order made under s 14(2)(b) of the DSO Act, and subsequently pursuant to the CDO made by Blaxell J. By the time of the hearing of the present application, he had been detained pursuant to those orders for a period of more than nine years.
Previous annual reviews Reviews from 2012 to 2016
13 In Unwin [No 4], at [2] to [4], Commissioner Sleight summarised the reasons why the court expressly declined to rescind the CDO in the first two annual reviews. At [65] to [74], his Honour set out his reasons for expressly declining to rescind the CDO at the conclusion of the third review. The fourth, fifth and sixth reviews were conducted by Jenkins J. At the conclusion of the fourth and fifth reviews, her Honour expressly declined to rescind the CDO for reasons set out in those decisions and summarised in her decision in the sixth review.[8]
14 The respondent's cognitive deficits affect his risk of serious sexual re-offending. They have been significant in the assessments that have been made previously that he is a serious danger to the community and that a CDO is necessary to ensure adequate protection of the community. Because of his cognitive deficits, and having regard to his history, he is likely to remain a serious danger to the community. The focus has been on whether the community can be adequately protected if he were to be released on a supervision order. His prospects of becoming suitable for such release depend to a large extent on external support and psychological treatment, particularly directed at enhancing his ability to live independently.
15 On each occasion the court has reviewed the CDO, the presiding judge has made recommendations, informed by the judge's findings, as to the further management of the respondent's circumstances, in the context that his detention is for his control, care and treatment, with the intention of improving his prospects of release under supervision in the future.
16 At the sixth review in 2017, Jenkins J set out a chronology of relevant events since the conclusion of the 2016 review until the conclusion of the 2017 review.[9] Her Honour then addressed each of the recommendations she had made at the conclusion of the 2016 review, and in that way considered what had occurred in terms of the respondent's control, care, treatment and progress over the previous 12 months. Having made that assessment, her Honour found that the respondent remained a serious danger to the community (which was not disputed on behalf of the respondent) and concluded that the CDO must be affirmed. Her Honour then made further recommendations in respect of the respondent's control care and treatment.
17 It is apt to repeat that the recommendations made by Jenkins J at the conclusion of the 2016 review for what needed to be pursued over the following 12 months were:[10]
(1) consideration of a trial of anti‑libidinal medication or an SSRI (selective serotonin reuptake inhibitor);
(2) continuation of counselling, preferably with Ms Rachael Williams (the psychologist who had provided counselling to the respondent in the period preceding the 2016 review);
(3) a record of the respondent's daily behaviour over a block of time ought to be investigated and its usefulness assessed;
(4) pursuit of supported accommodation of the respondent in the community;
(5) completion of an independent living assessment;
(6) continuity in the respondent's psychiatric care;
(7) assessment as to whether the respondent was ready for transfer to a medium security prison to test his capacity to live in an environment where he had more freedom.
18 The respondent gave evidence at the 2017 review, and Jenkins J had regard to that evidence, in addition to various reports and the evidence of expert witnesses at the hearing, in assessing the developments that had occurred since the 2016 review. The respondent was assessed by forensic psychiatrist Dr Peter Wynn Owen for the 2017 review.
19 In relation to the first of the 2016 recommendations, there had been a trial of SSRI medication. The respondent gave evidence that, although he had noticed beneficial effects, he had been concerned about side effects and had stopped taking the medication because he had not received daily checks of his blood levels.[11] He said he had been trying to get an appointment to see a psychiatrist so he could restart taking the SSRI, as he considered it would assist him to get out of prison and avoid re-offending once released.[12] Justice Jenkins considered the respondent's approach to be self‑defeating as a result of getting irrational and reacting in an irrational manner, as he did when misled into believing the SSRI could have dangerous side effects.[13] However, her Honour also noted that when the respondent expressed irritability and a reluctance to take the SSRI, there was no follow up consultation scheduled with him when he was in a better state of mind to correct his misunderstanding about the possible side effects of the drug and to counsel him to continue with the medication.[14]
20 In relation to the recommendation concerning counselling, Jenkins J outlined the developments that had been reported by Ms Joanne Collyer, a senior counselling psychologist with the Department of Justice forensic psychology service, in a treatment progress report and oral evidence, which were based, largely, on information provided by Ms Williams, who had continued to be the respondent's treating psychologist after the 2016 review. Ms Williams told Ms Collyer that the respondent 'continued to present with challenges that impacted on the effectiveness of counselling, including a tendency towards reactivity, argumentativeness, manipulation and lying'.[15] The respondent had a 'fluctuating engagement style dependent on his perception about whether progress was being made in counselling'.[16]
21 Part of the focus in counselling was the use of telephone helplines and fantasy management by the respondent. The respondent had expressed the belief that using telephone helplines to manage sexual release and stress was a good idea and a step forward in rehabilitation.[17] Justice Jenkins noted that the respondent did not understand that using such services and the workers who answered his calls in that way was inappropriate and constituted or bordered on, indecent behaviour.[18] Her Honour was of the view that the respondent's thought processes in that respect illustrated the difficulty in managing his behaviour and getting him to change that behaviour.[19]
22 Ms Williams had also reported to Ms Collyer that various incidents had happened since the 2016 review which highlighted the respondent's problems in tolerating stress.[20] Justice Jenkins noted, as an example, that, in response to triggers of trauma imagery, the respondent named inappropriate coping strategies such as being able to touch another person, which had extended to a request that he be able to touch Ms Williams on her hand or look at her breasts when discussing distressing material.[21]
23 Justice Jenkins also noted that, overall, there had not been any significant achievement in developing the respondent's tolerance skills, and the respondent was unable to recognise the importance of the work in relation to his risk management.[22] There had also been limited progress on the development of a substance use relapse plan.[23] The respondent acknowledged the role of solvent use in his offending. He expressed concern that he would relapse into solvent use if released.[24] He had returned positive urinalysis results for methadone in November and December 2016, which he explained in evidence on the basis that he was under a lot of stress and angry because of the outcome of the 2016 review and he thought he would never get out.[25] Dr Wynn Owen gave evidence that the respondent's use of methadone was not directly related to an increased risk of sexual offending, rather it was a way in which the respondent 'decompensated and managed acute stress', much of which came from the fact the respondent was in prison when he thought he should be in the community, and as a result of things that had happened to him in prison.[26] Dr Wynn Owen supported the respondent's re‑engagement in a substance abuse programme.[27]
24 The respondent had been charged with prison offences in relation to the positive urinalysis results.[28] He had also been charged with a misconduct offence for masturbating in front of a female prison officer in October 2016.[29] He was dealt with for the offences by a visiting justice on 21 February 2017. In evidence before Jenkins J, the respondent explained the masturbation incidents on the basis that he had been told by Ms Williams to keep a 'masturbation diary', and he was under the impression he would not be charged with the offence.[30] Justice Jenkins noted that the respondent 'must realise that masturbating in front of a prison officer was not a necessary part of keeping a masturbation diary'.[31]
The difficulty for Mr Unwin is that his past behaviour has shown that although he might know that he must not deal with stress by using substances or behaving in a sexualised manner, he finds it very difficult when under stress to control his behaviour.
These are all examples of how Mr Unwin is not only prepared to lie and commit inappropriate or unlawful acts but how he believes that such behaviour is justified. It also demonstrates how he lacks the inner personal resources to control this negative behaviour.
27 Significantly, the respondent was aware of his use of dishonesty and manipulation and had told Ms Williams that he would be reluctant to report intrusive sexual thoughts when he was in the community due to the likelihood that it would result in him returning to prison.[35]
28 Justice Jenkins noted that a focus of future counselling would be the development of strategies and outlet for stress management, which is pertinent to the respondent's risk management in the community.[36] In that regard, her Honour stressed the importance of the respondent having access to pro‑social activities such as meaningful work and recreational activities such as his Xbox and craft.[37]
29 Although Dr Wynn Owen considered that counselling should continue, he thought it worthwhile to reassess the therapeutic goals of counselling on an annual basis.[38] He was of the view that, because of the respondent's cognitive deficits, he may fall into the category of individuals who have a 'lack of treatability', for whom the expectation of substantial change may be unrealistic.[39] It had always been Dr Wynn Owen's opinion that the focus should be on finding an appropriate living situation for the respondent which would enable him to live in the community with a significant amount of control and support.[40] Justice Jenkins noted:[41]
In Dr Wynn Owen's opinion the focus whilst Mr Unwin is in custody should be on assessing his ability to learn and change, rather than on expecting him to make substantial improvements from counselling alone.
30 Ms Collyer was also of the view that any gains in counselling in the next 12 months would be small, and that it would take a long time to address the respondent's long‑term, chronic patterns of behaviour.[42] She said that the respondent's lack of responsivity, as well as the change in his prison placements, which increased the respondent's stress, made it difficult to achieve the desired goals from counselling.[43]
31 Justice Jenkins noted the importance of the respondent demonstrating an ability to manage stress before he could be released, notwithstanding the fact that his detention contributed to his stress:[44]
Some of the issues which stress Mr Unwin in prison would not exist if Mr Unwin was in the community. However given his high risk of serious sexual offending, he will only be released into the community on a very strict supervision order. Such a supervision order is likely to have its own stressors and he is also likely to be stressed by other factors in his daily life. It is essential that I can be confident that he can manage his stress in an appropriate manner before he is released into the community or that his living arrangements will be sufficiently supportive and secure that the community will be protected his stress levels increase (sic).
32 During the 12 months prior to the 2017 review, a daily record (in the form of a log) under the prisons' support and monitoring system (SAMS) was kept in relation to the respondent's behaviour, purportedly as recommended by Dr Wynn Owen and recommended by Jenkins J at the conclusion of the 2016 review. Dr Wynn Owen gave evidence that the SAMS record was not the record he had recommended during the 2016 review, as apparently it did not meet his expectation that it would 'record [the respondent's] behaviours, actions and activities in order to gain a clearer view of [the respondent's] ability to care for himself.'[45] In Dr Wynn Owen's opinion, the record did not demonstrate whether the respondent could care and manage daily activities for himself.[46] Justice Jenkins also noted that there was no evidence that the SAMS records had been shown to Ms Williams, medical staff or Dr Wynn Owen, to assist in their assessment and management of the respondent.[47] However, her Honour observed that the SAMS records had been of assistance to her in determining the 2017 review by giving her Honour a clear picture of how the respondent's mood had vacillated and how he had behaved when under stress in the prison environment, and by indicating the respondent's contemporaneous responses to events.[48]
33 Her Honour considered it was not necessary for SAMS records to be kept on a daily basis for the next review, but, if the respondent were to be transferred to a prison where he was expected to perform daily tasks for himself, a record of those activities would be useful for the reasons identified by Dr Wynn Owen.[49]
34 At the time of the 2017 review, there had not been sufficient time to find private accommodation for the respondent in the community, as he had left it late to indicate to his Senior Community Corrections Officer, Ms Rathmann, that he wished to explore accommodation options.[50] The rent for such accommodation would be paid from funds held for the respondent by the Public Trustee. A property had been found under the DSO supported accommodation programme immediately before the conclusion of the 2017 review, but an assessment had not yet been done of its suitability for the respondent.[51] However, Jenkins J did not consider it appropriate to delay the review to enable the assessment to be done, because of the conclusion her Honour had reached, stating:[52]
I determined that as there were insufficient support, mentoring and security arrangements for Mr Unwin in the community and he had not been shown to be able to live independently, the availability of this property was not going to alter my decision on the 2017 review.
35 Her Honour went on to explain that, in the absence of the respondent demonstrating an ability to be resilient to stressors, any accommodation in the community would need to be 'highly supported accommodation', such as to make it possible to protect the community by the support and security such accommodation would offer.[53] Her Honour said:[54]
The problem with private accommodation or accommodation under the DSO supported accommodation programme is that such accommodation would not be appropriate for Mr Unwin unless it came with a network of support services. Mr Unwin could pay for some of these services himself or obtain some funding for them. However he is unable to obtain ongoing funding for the sort of services that would be required because he is ineligible for assistance through the NDIS.
The other fundamental difficulty is that until Mr Unwin transitions from a medium security prison to a pre‑release unit or equivalent and it is ascertained that he is capable of looking after his basis living needs, it would be contrary to Mr Unwin's interests and inconsistent with the protection of the community for Mr Unwin to be released to independent accommodation. Mr Unwin's history indicates and all the experts agree that Mr Unwin's serious sexual offending occurs in circumstances where he is under stress.
36 By the time of the 2017 review, an independent living assessment had been conducted in respect of the respondent by an occupational therapist, Ms Byrne. The respondent had demonstrated some ability to perform basic living skills.[55] However, Ms Byrne had concerns about his ability to plan and to focus on tasks for more than a few minutes.[56] She recommended that the respondent complete a resocialisation programme.[57] Dr Wynn Owen expressed the view that, for the respondent to be ready for release at the next review, the independent living assessment needed to be analysed to assess the respondent's strengths and weaknesses.[58] There needed to be regular monitoring of the respondent's improvements.[59]
37 As to the 2016 recommendation that there should be continuity in the respondent's psychiatric care, Jenkins J noted that there had been no attempt by the prison medical services to identify the respondent's psychiatric, medical or nursing needs and to establish a programme to meet those needs.[60] In particular, prison medical services had failed to establish, after the 2016 review, a schedule 'to do the best to ensure that by the 2017 review [the respondent] had been treated with either a hormonal anti‑libidinal medication or [an] SSRI and that an assessment had been done to ascertain whether it had been effective in reducing his libido and/or managing his sexual interests and mood', all of which could have been done, in her Honour's opinion.[61]
38 As for the last of the recommendations at the conclusion of the 2016 review, which would have involved providing the respondent with an opportunity in medium security to demonstrate an ability to engage in self‑care, Jenkins J noted that the respondent had been transferred to Bunbury Regional Prison, with the intention that he would be moved to the pre‑release unit, once his pending charges had been finalised, but that attempt was unsuccessful.[62] The respondent had not settled into Bunbury Regional Prison and he had negotiated his return to Casuarina Prison.[63] Her Honour noted that it was not clear whether the failure was due to the respondent's self‑defeating behaviour or whether there were valid reasons why he did not settle into Bunbury Regional Prison.[64] The failure followed a previous unsuccessful attempt to 'transition him through Karnet prison farm', although that failure was due to circumstances outside the respondent's control.[65] Justice Jenkins observed that the failures showed that it would be difficult to prepare the respondent for release into the community.[66] However, that did not mean that further attempts should not be made, and her Honour referred to Dr Wynn Owen's evidence that he could see no benefit in keeping the respondent in maximum security until he can demonstrate good behaviour for an extended period of time.[67] In fact, Dr Wynn Owen was of the opinion that an extended period of time in maximum security was likely to increase the prospect of the respondent decompensating.[68]
39 The respondent had indicated a preference to be transferred to Karnet Prison Farm.[69] Justice Jenkins was pleased to note that, according to Ms Rathmann, there were, at that time, preliminary discussions with Karnet about a transfer to that prison.[70] However, such a transfer would require that the respondent be reclassified as a minimum security prisoner, which was not a matter over which the respondent, Ms Rathmann or COMU had any control.[71]
40 Justice Jenkins noted six points that had emerged from the respondent's evidence at the 2017 review. First, her Honour noted the respondent's concrete thinking and concluded:[72]
He does not appear to appreciate, want to appreciate or have the intellectual capacity to appreciate the need for him to demonstrate the ability to control his mood and behaviour[.]
41 Secondly, the respondent's recent employment as a painter had resulted in improved self‑esteem, general mood and demeanour, and an increase in the money available to him to buy craft material.[73]
42 Thirdly, there had been an increase in the respondent's level of gratuities, which significantly assisted him to purchase items he needed or desired.[74] Her Honour pointed out that it was only fair the respondent be able to access such items, given that he is not being detained for punishment.[75]
43 Fourthly, her Honour noted that hobby materials were extremely important to the respondent's management of distress, and he was required to fund those items from gratuities or the allowance he receives from the Public Trustee.[76]
44 Fifthly, although the Public Trustee was holding close to $100,000 in trust for the respondent, he was only receiving a small amount of that money in instalments, and at one stage he was required to repay the majority of an advance he had received from the Public Trustee for entertainment items and shoes, because the Public Trustee felt he was receiving too much of his money to pay for daily living expenses.[77]
45 Finally, Jenkins J noted that the respondent has a serious nicotine addiction.[78]
46 In affirming the CDO, Jenkins J expressed the following conclusions in respect of the issues the court needed to determine and the submissions that had been made on behalf of the respondent in respect of those issues:[79]
On behalf of Mr Unwin it was conceded that he remains a serious danger to the community. This concession is rightly made. Dr Wynn Owen's evidence, which I accept, was that over the past 12 months there had been no significant change in Mr Unwin's presentation. The trial of the SSRI was unsuccessful. His methadone use and perverse use of telephone helplines for sexual gratification was an indication of poor coping mechanisms even in a highly structured prison environment. He still evidenced dishonest and manipulative behaviours to achieve his own outcomes. Although he had adhered to counselling, it was not evident that progress had been made such that his re-offending risk was reduced. It was therefore Dr Wynn Owen's opinion that Mr Unwin's risk of serious sexual offending remained high unless he was subject to detention or community supervision.
Given that Mr Unwin remains a serious danger to the community, the Act s 33(1)(b) required me to affirm the CDO or rescind the CDO and make a supervision order.
On behalf of Mr Unwin it was submitted that the State had failed to provide adequate care and treatment for Mr Unwin and that enlivened a discretion in me to rescind the CDO and make no further order.
Regardless of my view of the standard of care and treatment provided to Mr Unwin, the Act s 33(1)(b) is clear that if, as I have found, Mr Unwin remains a serious danger to the community I must affirm the CDO or rescind the CDO and make a supervision order. I have no power to rescind the CDO and release Mr Unwin.
In relation to whether pursuant to s 33(1)(b) I ought to affirm the CDO or rescind the CDO and make a supervision order, the paramount consideration is the need to ensure adequate protection of the community.
I concluded that even if I assumed that the accommodation available through the DSO supported accommodation programme was suitable for Mr Unwin, there were still impediments to his release in a manner that would ensure the adequate protection of the community. In particular, the evidence did not satisfy me that:
(1) Mr Unwin is capable of independent living in the community without significant stress being placed on him;
(2) there are sufficient supports and security arrangements available for Mr Unwin in the community; and
(3) Mr Unwin had been established on an SSRI treatment regime by the time of the conclusion of the 2017 review.
Without these matters being addressed prior to his release, it is likely that Mr Unwin would become distressed on his release, with a corresponding increase in the likelihood of him committing a serious sexual offence. For these reasons I affirmed the CDO.
47 Her Honour accepted that a number of the outstanding matters were outside the respondent's control and that, even if those matters were resolved by the time of the next review, it may well be that other matters would be outstanding, such as the unavailability of accommodation.[80] Her Honour acknowledged the difficulties that had been summarised by the respondent's counsel in the following terms:[81]
So, we're now seven and a half years down the track of the Department having the care, control and treatment of Mr Unwin and we end up in this perpetual cycle of nothing is ever ready because there's always this one little bit that needs to be added onto the next bit which needs to be added onto the next bit which is always contingent upon accommodation.
48 Justice Jenkins noted that the control, care and treatment of the respondent is the responsibility of the Department, but that all she could do was make recommendations.[82] Her Honour further noted that the matters identified in Unwin [No 6] were ongoing matters that should be addressed in the two years following the 2017 review.[83] Her Honour made the following recommendations:[84]
Probably the most important matter is for Mr Unwin to be given an opportunity to prove that he is capable of stable living in a minimum security prison and to demonstrate that he is capable of self care. If deficits are identified in his ability to care for himself, he should be given the opportunity to learn new skills and to practice them. I do not underestimate the difficulty of doing this. As I have already indicated, two previous attempts to transition Mr Unwin to self care have been unsuccessful.
In part, the successful transition of Mr Unwin to a new environment needs to ensure that he is appropriately occupied with work and craft activities. He should be provided with appropriate and reasonably priced craft resources.
Counselling should continue, preferably with Ms Williams. An appropriate review of the effectiveness of the counselling should occur and changes made to the processes if they are warranted.
If possible, Mr Unwin should be given the opportunity to undertake a substance abuse programme.
In Mr Unwin's management over the next two years, it would be beneficial if Dr Wynn Owen was consulted over his care and treatment.
If Mr Unwin is transitioned to a minimum security prison, a daily record of Mr Unwin's behaviour over a period of time may assist to identify the skills which he has, those which he does not have but which he needs and his capacity to learn new skills.
Closer to the next review, Mr Unwin should be encouraged to trial a SSRI. When that occurs he would benefit from having the advice and encouragement of a treating psychiatrist who he knows.
Further concerted attempts should be made to obtain supported accommodation and mentoring services for Mr Unwin closer to the next review.
As I said at the conclusion of the 2016 review, it is important that Mr Unwin's management and preparation for release is progressed over the whole of the period leading up to the next review, rather than in the month or couple of months prior to the next review hearing.
49 This review of the respondent's detention was conducted and determined pursuant to s 33 of the DSO Act. The relevant statutory provisions and legal principles have been discussed in the previous reviews. It is sufficient for present purposes to note the following.
50 The starting point in the review was a consideration of whether I was satisfied that the respondent remained a serious danger to the community. Pursuant to s 7 of the DSO Act, before I could find that the respondent was a serious danger to the community, I had to be satisfied to a high degree of probability on cogent and acceptable evidence that there is an unacceptable risk that the respondent would commit a serious sexual offence, as defined in the DSO Act, if he were not subject to a CDO or a supervision order.
51 Under s 33, I was required to rescind the CDO if I did not find that the respondent remained a serious danger to the community. If I found that he remained a serious danger to the community, I was required to affirm the CDO or rescind the CDO and make a supervision order. The paramount consideration in determining whether to affirm the CDO or make a supervision order was the need to ensure adequate protection of the community.
52 Further, I could not make a supervision order unless I was satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order.[85] In that regard, I have applied the principles and approach I considered to be appropriate in Director of Public Prosecutions (WA) v Hart.[86] In essence, I had to be satisfied that the respondent would comply with the standard conditions in a manner and to an extent that is consistent with, and would enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
53 At the hearing, on 2 October 2019, I received into evidence a book of materials (BOM) compiled for this review,[87] which included the following records from the Department of Justice, Corrective Services (DCS) in respect of the respondent for the period since the last review:
(1) 'Incidents and Occurrences' records for the period 2 October 2017 - 31 July 2019;
(2) 'Charge History' records for the period 2 October 2017 - 31 July 2019, concerning charges for prison offences;
(3) 'Incident Description Reports and Minutes' for the period 10 October 2017 - 20 June 2019;
(4) 'Offender Notes' for the period 11 October 2017 - 30 July 2019;
(5) 'Substance Use Test Results' for the period 2 October 2017 - 31 July 2019;
(6) an 'Individual Management Plan' dated 10 June 2019;
(7) a DCS 'SAMS Offender Supervision Log' for the period 24 September 2017 - 4 August 2019;
(8) a DCS 'ARMS Offender Supervision Log' for the period 3 December 2017 - 24 June 2019;
(9) Prison 'Medical Progress Notes' for the period 3 October 2017 - 11 August 2019; and
(10) PathWest 'Forensic Results' for the period 25 January 2018 - 5 October 2018.
(1) a Dangerous Sex Offender Treatment Progress Report dated 10 September 2019, prepared by Dr Ben Bannister, a senior clinical psychologist with the Department of Justice (the Department);
(2) a psychiatric report dated 22 September 2019, prepared by Dr Peter Wynn Owen, who again was appointed to assess the respondent for this review;
(3) a Community Supervision Assessment report dated 25 September 2019, prepared by Mr Kyle Jarvie, an SCCO; and
(4) a (redacted) email dated 24 September 2019 from Ms Kara Cassam, Team Leader in the Community Offender Management Unit (COMU),[88] to counsel for the applicant regarding an update of the availability of suitable accommodation for the respondent.
55 Dr Wynn Owen, Dr Bannister and Mr Jarvie also gave oral evidence at the hearing on 2 and 3 October 2019.
56 The first question I was required to decide was whether the respondent continued to be a serious danger to the community. Having regard to the evidence in the review, it was not put in issue on behalf of the respondent that I could be satisfied to a high degree of probability that there was an unacceptable risk, at the time of the hearing, that the respondent would commit a serious sexual offence if he were not subject to a CDO or a supervision order. In any event, for the reasons that follow, I was satisfied to a high degree of probability that the respondent remained a serious danger to the community at the time of the hearing.
57 The next question was whether I should affirm the detention order or rescind the order and make a supervision order in relation to the respondent. I could not make a supervision order unless I was satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the order.
58 For the reasons that follow, on the evidence presented in the review, I was not so satisfied. Further, I was not satisfied that any conditions that could reasonably be imposed as part of a supervision order would provide adequate protection of the community against the risk that the respondent would commit a serious sexual offence.
59 The determination of the first issue relied substantially on the risk assessment made by Dr Wynn Owen, having regard to developments in the respondent's circumstances since the last review, including any progress made in counselling. Dr Bannister's evidence was relevant to the latter issue.
60 The determination of the second issue relied substantially on developments in the respondent's circumstances, especially in respect of the matters identified in the recommendations made by Jenkins J concerning stability in the respondent's behaviour, self-care, independent living, engagement in work and craft, counselling, engagement in a substance-abuse programme, the trial of SSRI treatment and the availability of suitable accommodation and support in the community. Those matters were also relevant to the first issue.
61 Given the significance of the developments in the respondent's circumstances in the two years since the last review, it is convenient to commence with an overview of those matters.
62 The developments in the respondent's circumstances may be discerned from records prepared or maintained by DCS staff in respect of the respondent, being prison incident reports, DCS 'Offender Notes', the SAMS - Offender Supervision Log, the ARMS[89] - Offender Supervision Log, substance use test results, an Individual Management Plan created on 10 June 2019, and the respondent's medical record and progress notes. Relevant aspects of those developments were set out chronologically and with commendable clarity in Mr Jarvie's report. They were also referred to, helpfully, in the reports and oral evidence of Dr Wynn Owen and Dr Bannister in the context of the issues they considered.
63 After the 2017 review, Mr Jarvie explored further the respondent's ability to function in the community, by enquiring with Ms Byrne, the occupational therapist who had previously assessed the respondent, whether she had any information or further insight as to the supports the respondent would potentially require if he was in the community.[90] Ms Byrne indicated that it was difficult to give a confident opinion about that matter because of the respondent's potential problems with attention, planning, impulsivity and judgment.[91] She indicated that the respondent would likely require daily support for activities such as meal planning, shopping, meal preparation and using transport. He would also require assistance to develop a routine and structure his days with meaningful activities, with planning generally and in returning to education or employment.[92] Ms Byrne envisaged the respondent would require several hours support in the morning and the afternoon, with the aim of slowly extending the time he would spend on his own and plan for that time to be as structured as possible.[93] She thought that, without oversight, she would expect the respondent to have a 'high level of disengagement in the community and limited follow through', and his problems with attention, focus and impulse control could affect his ability to think ahead and control his actions.[94] Ms Byrne thought the respondent might benefit from a further functional analysis in a minimum security prison environment, once he had established a clear role and responsibilities with which he was actively engaged.[95]
64 Mr Jarvie reported that Ms Byrne also believed that the respondent would need to be subject to a guardianship order if he were to be released.[96]
65 It is convenient to set out the developments in respect of the respondent's management and behaviour after that point in time in a table, as Jenkins J did in Unwin [No 7], drawing on the materials to which I have referred above, especially Mr Jarvie's report.[97] I will set out separately, in the following paragraphs, events specific to the respondent's medical treatment.
The respondent refused to supply a urine sample for a urinalysis test.[98]
The respondent was heard to say on the telephone that he would hang himself. When precautionary measures were taken by prison staff, the respondent said he would hang himself if he did not get a 'smoke', and he began to do a headstand in the toilet. He also complained about his medication. He settled after a Senior Officer spoke with him.[99]
The respondent threatened to cause himself harm and appears to have banged his head on his cell wall, causing injuries to his forehead, for which he required medical treatment.[100]
An application was made for the respondent's security classification level to be overridden to minimum, to allow him to transfer to Karnet Prison Farm (Karnet). It was considered that the transfer would enable the respondent to undertake appropriate resocialisation activities and increase his opportunities and responsibilities. The application was approved.
As Karnet does not have a dedicated protection facility, the respondent confirmed, prior to transfer to Karnet, that he would be willing to give up his protection status in order to facilitate the transfer to Karnet.
The respondent commenced refusing his prescribed medication (SSRI/mood stabiliser) three weeks into his placement at Karnet, and was noted to frequently refuse and recommence his medication. This behaviour is set out in the medical notes.
Concerns were raised by the prison about the respondent's engagement and placement at Karnet due to his mood swings and lack of engagement with his work placement in the kitchen.
The respondent's treating psychologist noted that the respondent had demanded to return to Casuarina Prison and had threatened to cut his wrists in order to achieve that outcome. The psychologist noted that the respondent's usual coping mechanisms included distraction through his use of an X-Box, but the respondent was worried that other inmates would take his belongings, so he had left all his items in boxes. The respondent reported not being able to settle and stated he wished to return to unit six in Casuarina, wait for employment and stay there for the rest of his life. The respondent was counselled by mental health staff and eventually calmed, but his presentation of being 'up and down' continued.
The respondent continued to threaten self-harm and said that he needed to be placed in protection as he was at threat from others. He also told Karnet management that he wished to be transferred back to Casuarina. Upon threatening self-harm on 29 May 2018, the respondent was offered placement in a similar environment to protection to facilitate his segregation from other prisoners, however he refused and agreed to stay in his unit overnight.
Karnet management were aware of the respondent's behaviours and were working to maintain his placement at Karnet.
The respondent again stopped taking his medication. There was concern that the respondent was attempting to manipulate staff involved in his management into moving him into a self-care unit immediately. Mr Jarvie noted that ongoing behavioural stability is required prior to placement in self-care, and that premature placement may have put the respondent at risk from others.
The respondent's treating psychologist noted that the respondent was struggling to cope with the lack of structure at Karnet, specifically not being locked down. The respondent had said that he was choosing not to engage with his treating psychologist because he perceived that only negative information was recorded.
The respondent was given employment within the kitchen shortly after he arrived at Karnet. After a brief period, he said he no longer wished to engage in that work. An officer in the kitchen had been paired with the respondent to teach him cooking skills and meal planning. However, the respondent appeared to get bored or adopted the belief that he had achieved the purpose of engagement in the work after a short period of time. Staff continued to encourage and mentor the respondent.
The respondent's attitude was noted to frequently fluctuate, but, overall, his engagement was noted to be positive, and he displayed an ability to undertake the tasks assigned to him under supervision. The respondent was also given employment within the gardens in the area near the kitchen.
It appears the respondent started in the kitchen washing pots and dishes, and progressed to other tasks intended to provide him with skills to be able to cook for himself, using basic principles of cookery. The kitchen supervisor reported:[101]
During his time in the kitchen [the respondent] was able to show he had developed the skills in basic cookery including Planning, Preparation and completion of meals suitable for a healthy balanced diet. He made meals including the following Grilled steak and veg, Roast Beef and vegetables, Tacos, Burgers, Salads, Fried fish and chips, sandwiches and desserts. All these meals were presented and of a suitable quality to satisfy the home cook.
[The respondent] showed an understanding of the principles of cookery and a knowledge of food hygiene requirements. Would he be able to perform these tasks in a commercial setting is at this stage debatable but certainly he has the skills required for self-need catering.
An entry in the medical progress notes by a clinical nurse on 17 July 2018 records that the respondent said he was continuing to like his work in the gardens.[102]
Mr Jarvie noted that during the time the respondent was in Karnet, his SCCO, his psychologist and Karnet prison staff worked with him to explain the purpose of maintaining his placement in a minimum security facility and progressing towards self-care. He was also told that his employment within the kitchen and garden had been identified as areas that required attention for 'capacity building' for his next review.
Prison notes indicate that the respondent was able to achieve periods of good behaviour, but that a deterioration in behaviour was cyclic and caused by a number of external factors of varying degrees.
Mr Jarvie commented that the respondent was quick to disengage from his treating psychologist and SCCO, often viewing others as not helping him even when presented with positive progress. Mr Jarvie noted that this was evident on 5 October 2018, when the respondent was informed that his participation in a traineeship Certificate III had been approved, however he responded that no one was helping him.
The respondent was seen by a female officer masturbating in his cell after she checked the cell for occupancy without knocking.
The respondent approached staff with a request to speak to a female officer about an incident. The officer did not attend to him at that time. However, she spoke with him in her office later, and it became apparent that his intention had been to have her walk in on him in his cell while he was masturbating, although he claimed that he was glad she had not gone to see him and that she would not have seen anything anyway, because he would have stopped if she had attended. This incident was the subject of an Incident Report.[103]
The respondent said to the officer, 'I have to masturbate to get caught out.' However, when asked if he really wanted to get caught, he replied, 'No, not get caught. Just my head wants me to get caught.'[104] Earlier, he had said his head was 'doing funny things' and that he was anxious about his 'psych appointment on Monday'.[105] He also said he was having dreams and no-one could help him.[106]
An entry by a clinical nurse in the medical progress notes on 24 October 2018 indicate that the nurse spoke with the relevant female officer about how to deal with the respondent's attempts to be alone with female officers and discuss his sexual urges and thoughts with them. The officer was informed of the role of the treating psychologist to deal with the respondent's offending and his sexual behaviours. She was advised that custodial staff should not engage with the respondent about the behaviours he wished to discuss, but should direct him to discuss such matters with his psychologist at the next appointment.[107]
However, Mr Jarvie reported that, as a result of the incident, female staff within the unit indicated that they felt unsafe around respondent due to the increase in his sexualised behaviour. Consequently, it was decided by management at Karnet that the respondent could not remain at that prison and would be returned to Casuarina Prison.
The respondent was transferred back to Casuarina Prison.
Upon his transfer back to Casuarina Prison, the respondent refused to engage with his treating psychologist and his SCCO.
In those circumstances, the SCCO contacted a Senior Officer from the respondent's unit and a management plan was formulated 'towards achieving stability and progression towards placement at Bunbury Regional Prison (BRP) and Pre-Release Unit (PRU)'.
Subsequently, it was confirmed that BRP would accept the respondent.
Preparation for transfer to Bunbury Regional Prison
An application to transfer the respondent to BRP was approved.
Prior to the respondent being transferred, management at BRP and PRU were informed of behavioural management techniques formulated by Mr Unwin's treating psychologist, for the purpose of trying to avoid some of the respondent's previous behaviours and destabilisation which had been evident when he was in Karnet. As Mr Jarvie described the management plan, it included 'appropriate responses to behaviours such as: evidence of substance abuse, evidence of excessively utilising free call lines, non-compliance with [SSRI] medication, officer shopping, evidence of sexualised behaviour, evidence of being stood over, appropriate interactions with female staff, flight risk and decline in mental health or stability'.
The prospective transfer was discussed with the respondent. He had 'perceived issues' in relation to certain areas of the prison. For instance, he did not wish to attend for the general medication parade. To avoid issues in that area, it was agreed that the respondent would transfer straight into self-care at BRP and that he would only attend for medication parade in the presence of other self-care residents.
The respondent was transferred to the Crisis Care Unit at his request for 'time out', because he was not coping, largely due to frustration about his future transfer to BRP.[108]
The respondent signed a protection waiver to facilitate his transfer to BRP.
The respondent was transferred to BRP, where he was placed straight into self-care.
Within the first two weeks, the respondent began to display signs of becoming unsettled.
The respondent requested placement into protection, indicating that he had been teased by other prisoners within his unit. The move was facilitated by the prison.
Investigations by unit officers were not successful in identifying any bullying or negative behaviour by other prisoners, and the respondent was not able to identify any persons responsible for the behaviour. The respondent was counselled by Senior Officers and encouraged to work through any 'local issues' that he was dealing with.[109]
The respondent was adamant that he wished to return to Casuarina Prison, stating that he was not interested in being released and he considered prison to be his home.
The respondent refused to attend a visit with his SCCO, who had gone to BRP to talk with the respondent about the issues the latter was experiencing and to assist him to work through such issues.
The respondent refused subsequent telephone calls from his SCCO.
A Senior Prison Officer counselled the respondent and negotiated a cell move, in order for him to return to self‑care.
The return to self-care was not successful until 21 May 2019, due to muster pressures.
The respondent refused to attend a number of medical appointments.
The respondent activated a cell call and demanded to see medical staff because he had injured his head by banging it, and he was bleeding. Upon inspection by a Senior Officer, the respondent did not appear to be bleeding, but had a slight red mark on his head. The respondent threatened to hurt and starve himself. He was placed in an observation cell, on the basis that he was in the high category for being at risk.[110]
It was agreed in discussions with prison management regarding the respondent progressing to PRU that, if the respondent could display a period of stability of approximately eight to ten weeks, the transfer would be progressed.
The respondent was noted to be agitated during a telephone discussion with his psychologist. After the phone call, he asked to be placed back into protection, as he felt this was the only option. Despite attempts by staff to reason with him about the ramifications of returning to protection, he would not take advice and insisted upon being placed in protection. He was placed into a punishment cell in order to segregate him from other prisoners whilst waiting for a bed to become available in protection. The respondent's behaviour deteriorated further. Of particular note, he misused the cell call system (which is intended for emergencies), placing fifteen calls within a fifty-minute period, but did not speak when the calls were answered. He told a Senior Prison Officer that he would 'run amok' until he was transferred back to Casuarina Prison. He was moved to a protection cell that afternoon, and there were no further issues.
The respondent refused to supply a urine sample for a urinalysis test, which resulted in a formal prison charge.
It was determined by the prison that the respondent would again be regressed to 'protection' and that it would be necessary to transfer him back to Casuarina Prison. The respondent had said that he desired to be at Casuarina. It was considered by prison staff that the respondent's attitude was not conducive to a placement in self-care at that time.
The respondent refused to participate in a phone call with his psychologist.
During this period, there was a significant deterioration in the respondent's behaviour, including an increase in his threats of self-harm and abusive behaviour towards prison staff.
His behaviour included a threat to cover himself in blood and hug the prison officer 'so [the prison officer] could feel it' (18 June 2019),[111] covering the CCTV camera in his cell with food stuff, semen and toilet paper (19 June 2019)[112] and a 'tirade of abuse' and threats to kill officers (20 June 2019).[113]
He was placed in high 'at risk' management, due to his threats of self-harm.
The respondent refused to attend an appointment with his treating psychologist. However, when the psychologist was escorted to his unit, he participated in the treatment session.
The respondent was transferred back to Casuarina Prison where he was placed in the protection unit.
The respondent appeared to settle somewhat in the structured environment of Casuarina Prison. However, he continued to display difficult behaviour, such as refusing to attend medical appointments and making demands, which, if not met, would result in him requesting placement within the Crisis Care Unit (CCU).
The respondent recommenced employment, initially as a cleaner, while also engaging in part-time education.
The respondent was given employment in the garden party.
The respondent indicated that he was now open to engaging with his SCCO, provided accommodation and a mentor was found.
Mr Jarvie attended Casuarina Prison to discuss with the respondent a mentoring organisation that had agreed, in principle, to engage with the respondent and to request that he sign a consent form to engage with UCW to source private accommodation for him. The respondent refused to attend for the visit, notwithstanding intervention from unit staff and a Senior Officer, who sought to impress on him that the visit was to discuss the mentor and accommodation.
The respondent agreed to re-engage with Mr Jarvie after urging from the respondent's treating psychologist as to the importance of doing so.
The respondent signed appropriate consents for the release of information to allow for engagement with both the mentoring organisation and for UCW to source private accommodation on his behalf.
66 Although there were two occasions on which the respondent failed to supply a urine sample, on the numerous occasions he did submit to 'substance use' testing, the respondent returned negative results for all illicit drugs and non-prescribed medications for which he was tested, and for alcohol.[114] He told Dr Wynn Owen that on the two occasions when he did not provide a urine sample, he was simply not able to urinate.[115]
67 I note that at the 2017 review, the respondent's use of telephone calls to helplines to speak in a sexually explicit way to women who answered the calls was an issue of some significance. There was no evidence in these proceedings that the respondent engaged in such behaviour during the two-year period since that review.
68 The medical records and progress notes reveal that on 3 October 2017, the day after the decision in Unwin [No 7] was delivered, the respondent was seen by a medical officer. He told the doctor that he was taking Zoloft (an antidepressant) 'for antilibidinal treatment'.[116] He also said that he did not want to take Epilim (the mood stabiliser, Sodium Valproate) any longer, as he felt it was not working for him.[117] The doctor discontinued the Sodium Valproate.[118]
69 On 15 October 2017, the respondent told a nurse in the Co‑morbidity Team that he wished to see a doctor about his medication, referring to bizarre beliefs about his mental state.[119]
70 In progress notes for 8 January 2018, a medical officer observed that the respondent was not coping well and had 'elevated behaviour'.[120] The doctor noted that the respondent had previously been assessed by a psychiatrist, in June 2017, to be suitable for SSRI treatment, using Sertraline. He recorded that, on 8 January 2018, the respondent agreed to commence taking Sertraline and a mood stabiliser he had been taking the previous year.[121] Sertraline and Sodium Valproate were added to the respondent's medication.
71 On 23 February 2018, the respondent was seen by Dr Jacques Claassen, Psychiatrist, at the request of Ms Cassam at COMU, to discuss SSRI treatment with the respondent.[122] Dr Claassen noted that the respondent had consented to such treatment in June 2017, when Dr Claassen had assessed him to be suitable for such treatment, but that the respondent withdrew his consent and ceased SSRI treatment soon after.[123] Dr Claassen recorded that the respondent 'indicated that he actively elected to recommence sertraline approximately 3 ‑ 4 weeks ago, and that this was due to him being advised by the Court that he had to take the treatment in order to move forward.'[124] Dr Claassen recorded:[125]
[The respondent] reported that to date, the treatment had some efficacy (in reducing some of his sexualised thoughts) but that he believed a higher dosage was required to work more effectively. During this part of the conversation it was difficult to understand Mr Unwin's thoughts on exactly how he believed treatment might work for him. Be that as it may, he insisted that he continued with sertraline.
72 Dr Claassen noted that the respondent became frustrated and irritable during the interview and said he felt despondent about the prospects of release in the future, unless he took some form of anti‑libidinal treatment.[126] Dr Claassen noted that the respondent's clinical and physical response to the SSRI treatment would need to be monitored, having regard to other health issues. He also noted that the respondent's testosterone levels would need to be monitored, and that the respondent needed ongoing psychological treatment.[127]
73 By 16 May 2018, the respondent was saying to a clinical nurse that he was 'tolerant to [his] medications now, and they [were] not working for [him]'.[128] He said he was having mood swings and getting angry and upset.[129] He also claimed that he did not tell 'Rachael' (that is, Ms Williams) how he was going, as she did not understand.[130] However, the respondent '[denied] having intrusive urges as in the past and [reported] the sertraline [was] "doing a good job with that".'[131] The plan noted by the clinical nurse noted included booking a non‑urgent review by a psychiatrist and ordering levels to be taken of the respondent's Sodium Valproate levels.[132]
74 The medical progress notes indicate that the respondent expressed a preference for taking his medication at night-time.[133] On 6 June 2018, he reported to a clinical nurse that he was having trouble sleeping.[134] The nurse noted that the respondent seemed to be identifying issues with sexual arousal, but that he was having 'great difficulty' explaining what he wanted or what was happening.[135]
75 On 27 June 2018, the dosage of Sodium Valproate was increased.[136] It was noted in the progress notes that the respondent's compliance with his medication had improved, and he was doing well. The improvement was linked to the fact that a night-time medication regimen improved his compliance.[137]
76 The respondent's behaviour at medical appointments vacillated over the following months. By 11 September 2018, he was again saying that the medication was no longer working for him, and that he was having sexual thoughts.[138]
77 On 3 October 2018, the respondent refused to attend an appointment with another psychiatrist, Dr Natalia Bilyk. Dr Bilyk noted that, given the recent increase in the dosage of the SSRI, it was appropriate to wait for another two months to assess the efficacy of the treatment, but that it would be necessary to monitor the respondent's compliance to make a 'more accurate assessment'.[139] She also noted the need to have feedback from the respondent's treating psychologist as to her assessment of the respondent's response to the SSRI treatment.[140]
78 During a consultation with a mental health worker on 5 November 2018, the respondent said he had had enough of gaol, that he was never going to get out, that it had 'fucked with [his] head' and was creeping up on him 'time and more time'.[141] This appeared to underscore a request by him to have a single cell, so he could 'do the time in peace and quiet'.[142]
79 At some stage, which is not clear from the medical records, the respondent was prescribed antipsychotic medication, depot Zuclopenthixol. The medication was referred to during the respondent's next review by a psychiatrist, Dr Kevin Smith, on 16 November 2018. During that review, the respondent said he had mood swings and that, when he was anxious about something, he could not sleep all night.[143] He again referred to prison getting to him. He said that the only medication that had worked was the depot Zuclopenthixol, because 'it turned him into a Zombie', and that he became immune to other medication unless the doses were increased.[144] Dr Smith noted that it appeared the respondent had been started on the antipsychotic medication 'to curb sexual arousal in relation to intrusive sexual ideation'.[145] The plan recorded by Dr Smith was to cease the Sodium Valproate medication and to review the respondent in three months. I note the following entry in the progress note which reflects the respondent's understanding of his status, as outlined in previous decisions:
States he is being punished by officers but should not be getting punished. Says he can get the Court transcript where Justice Jenkins says he is not in jail to be punished, but for 'control, care and treatment'.
80 I interpose to note that Jenkins J's remarks set out a guiding principle about the approach to be taken to the respondent's detention. Factors that are relevant to that approach include the respondent's cognitive deficits and the need to provide him with opportunities and resources to pursue productive activities, which may in due course enhance his prospects to be released under supervision. However, the guiding principle does not provide a person who is subject to a DSO a licence to behave, without consequences, in an unruly, abusive or dangerous manner inimical to the good order of the prison in which he is held.
81 On 6 May 2019, the respondent refused to attend an appointment with another psychiatrist, Dr Daniel De Klerk. Dr De Klerk noted that he was familiar with the respondent and had seen him sedated on antipsychotic medication depots.[146] He noted that the respondent improved significantly when that medication was ceased. He also noted that the respondent does not have a treatable mental illness, and that the depot was originally given to curb the respondent's sexual impulses.[147] He concluded: 'I am not too concerned about him not taking Sertraline, and will cease this now.'[148] Accordingly, the plan recorded by Dr De Klerk included an entry to discontinue Sertraline. As will appear below, that did not occur, and Dr De Klerk again requested that the medication be ceased at a later time. Apart from the explanation that he was 'not too concerned' about the respondent not taking the SSRI medication, it is not clear why Dr De Klerk was of the view that the medication should be ceased.
82 On 14 May 2019, a clinical nurse was asked to see the respondent after he was put into an observation cell as a result of hitting his head. The respondent appeared to be agitated and said he was 'going loopy from being in the cell' as it was boring.[149] He alluded to 'voices', but became evasive when asked if he was hearing voices. The nurse recorded that the respondent said he had not been taking the nightly Sertraline for over a week, which suggests he had been taking it prior to that.[150]
83 On 20 May 2019, Dr De Klerk reviewed the respondent by video conference and again recorded under 'Plan', 'Please cease sertraline'.[151] Again, there is no explanation as to why Dr De Klerk considered that to be the appropriate course. However, it is part of the context in which one needs to consider the evidence that the respondent had been inconsistent in his compliance with his medication regime.
84 On 8 June 2019, it was recorded that the respondent had been refusing his Sertraline medication.[152]
85 It is evident from the records to which I have referred and the evidence of Mr Jarvie that, apart from the advice the respondent received from medical practitioners, he was also encouraged by Ms Williams and Mr Jarvie to adhere to his prescribed medication, in particular the SSRI medication and the mood stabiliser. I am satisfied that the following passage from Mr Jarvie's report accurately summarises the respondent's conduct in respect of medication prior to 25 July 2019, making a connection between his abstinence from medication and his difficult behaviour:[153]
Despite discussions and encouragement with Mr Unwin throughout his review period from his treating psychologist and SCCO, compliance with his medication regime has been inconsistent. Threats of self-harm and requesting placement into CCU, protection or a return to Casuarina Prison were discussed with Mr Unwin's treating psychologist and believed to be a means of controlling his situation ... After refusing medication, Mr Unwin would sometimes also request to recommence medication at a later date.
86 The following events occurred after the respondent returned to Casuarina Prison, as summarised by Mr Jarvie and evident from the medical record:
Medical Services were requested to engage with the respondent to give him the opportunity to recommence taking the mood stabiliser that had been prescribed for him (Sodium Valproate), in the lead up to his scheduled Court appearance.
The respondent was further counselled by Mr Jarvie as to the importance of the medication. The respondent agreed to attend a medical appointment for consideration of recommencing on the medication.
An email dated 10 September 2019 from Mr Jarvie to a Senior Officer at Casuarina Prison, which is included in the medical record for that date, indicates that when Mr Jarvie spoke with the respondent about this issue previously (which, in context, must be a reference to 12 August 2019), the respondent said that the doctor had told him that he would be recommencing the depot injection (antipsychotic medication), to which the respondent did not consent.[154]
Despite having said on 12 August 2019 that he was prepared to recommence on Sodium Valproate, the respondent again refused to attend a medical appointment to enable that to occur. Medical staff were advised that the respondent may have been confused about the purpose of the appointment. They were asked to make another appointment. An appointment was made for 22 August 2019.
The respondent again refused to attend his medical appointment.
The respondent submitted a request to meet with Medical Services.
Mr Jarvie again spoke with the respondent about his recent refusal to attend a medical appointment to recommence on the Sodium Valproate medication. The respondent told Mr Jarvie he had submitted a form to recommence on the medication.[155]
The respondent recommenced taking the mood stabilizer medication.
87 Dr Bannister gave evidence regarding the respondent's treatment and treatment gains since the 2017 review. He said the respondent had undertaken 45 individual counselling sessions in person and nine phone sessions with Ms Williams since the last review. Other than the odd occasion where the respondent withdrew for various reasons, there had been consistency of care for the respondent throughout that period, and Ms Williams had by and large formed a good therapeutic relationship with him.[156] Dr Bannister said the respondent would continue to rely on contact with Ms Williams if he were released into the community, but the frequency of contact would increase from fortnightly appointments to weekly appointments.[157]
88 Dr Bannister referred to the neuropsychological assessment report prepared in respect of the respondent in January 2017, and noted that the respondent presented with 'possible cognitive limitations and a vulnerability to "opt out" when challenged by cognitively demanding activities'.[158] In Dr Bannister's view, Ms Williams had taken account of the respondent's low intellectual functioning in her therapy with him, and had attempted on a few occasions to educate prison officers who came into contact with the respondent about the best management procedures with him. Ms Williams had noted that the respondent was inclined to cope better with his circumstances when he received consistent and accurate information from those involved in his care.[159] However, in Dr Bannister's opinion, as the role of a prison officer does not have a strong rehabilitative focus, consistency of approach by the prison officers did not always eventuate, despite Ms Williams' efforts.[160]
89 Dr Bannister noted that, to combat the respondent's institutionalisation to some extent, part of the treatment provided by Ms Williams was devoted to the use of gradual exposure tasks aimed at reducing the respondent's anxiety related to being around large groups of people.[161] This included using anxiety reduction techniques in conjunction with behavioural tasks.[162]
90 Part of the psychological treatment was concerned with substance use, endeavouring to provide the respondent with insight into how substances could affect his ability to control his thoughts and resultant behaviour, and the risk factors for substance use, together with suggested responses to them.[163] Ms Williams informed Dr Bannister that the respondent had been able to recognise the effects of substance use on his thoughts and behaviour, and the risk factors and responses I have mentioned.[164]
91 I note that the respondent did not participate in a group substance abuse programme.
92 I will discuss further aspects of the respondent's psychological treatment when dealing with Dr Bannister's evidence about treatment progress later in these reasons.
93 Mr Jarvie reported that on 16 October 2017, an SCCO made a referral to the Office of the Public Advocate (OPA) for consideration of a guardianship and administration order, and provided the OPA with a Neuropsychological Report dated 15 January 2017, and an Independent Living Assessment Report dated 27 September 2017.[165] Mr Jarvie's report stated that on 6 April 2018 a 'closure letter' was received from the OPA noting that it was of the view that the evidence before it did not displace the presumption that the respondent was capable of making his own decisions to the degree required.[166] It was not clear from Mr Jarvie's oral evidence whether the matter was determined by the OPA or whether an application was made to the State Administrative Tribunal, but Mr Jarvie's report suggested that the OPA concluded an application would not succeed and the matter did not proceed further.[167]
94 An application for NDIS funding prior to the 2017 review had been unsuccessful. Mr Jarvie reported that, on 21 December 2017, further enquiries were made with the National Disability Insurance Agency (NDIA) to ascertain whether there would be a change in the respondent's eligibility for disability support.[168] On 12 March 2018, the NDIA advised that it had no record of the respondent having been assessed under the NDIS and requested that a further Access Request form be submitted. A request for access to the NDIS was sent by COMU on 9 April 2018.[169] On 11 April 2018, the NDIA responded that the respondent did not meet the criteria for NDIS eligibility, as his primary disability was considered to be the result of solvent abuse.[170]
(iv) Expert evidence in respect of developments in the respondent's circumstances since the 2017 review
95 It is convenient at this stage to set out the evidence of Dr Wynn Owen and Dr Bannister in relation to the developments in the respondent's circumstances since Unwin [No 7].
96 Dr Wynn Owen and Dr Bannister interviewed the respondent for the purposes of their reports. Both also had regard to the contents of the BOM (apart from their reports). Dr Wynn Owen also had discussions with Mr Jarvie and Ms Williams. Dr Bannister also consulted on an ongoing basis with Ms Williams and had regard to Treatment Review Report she had prepared, dated 2 September 2019.
97 Dr Wynn Owen described the respondent's behaviour in prison over the last two years as erratic and cyclical, involving periods of relative stability, followed by periods of dramatic instability.[171] Dr Wynn Owen was of the view that the periods of instability were often related to external stressors or internal feelings of stress.[172] Dr Wynn Owen identified some examples, namely the respondent having to move from one prison to another, not having access to his X‑Box, and times when he felt internal stress about certain issues and then felt unable to deal with the way other prisoners or officers were interacting with him.[173] The issues that acted as 'background stressors' included chronic issues, such as his own experience of sexual abuse.[174] In Dr Wynn Owen's opinion, such stress had led to significant decompensation, manifested in arousal, agitation and threats to harm himself, and had caused the respondent to become antagonistic towards the prison system.[175]
98 Dr Wynn Owen noted that the periods of agitation had been frequent, but they did not appear to be associated with a mood disorder or other major mental illness.[176] He said that, because of the cyclic nature of the respondent's behaviour, he would always consider the possibility of a mood disorder, whether an organic mood disorder or a functional illness such as bipolar disorder, but, in his opinion, there was no suggestion that the variety of features associated with such disorders, which he outlined, was present in the respondent's case.[177] Rather, the respondent presented as someone with 'relative mood instability', which was not day-to-day, but frequent, and reflected his inability to cope with his situation and adapt to his circumstances in prison, which included wanting to understand what he needed to do to be released and having to cope with others making decisions around him.[178]
99 Dr Wynn Owen noted that, during counselling, which was frequent over the two-year period, Ms Williams had helped the respondent to manage emotional changes resulting from internal and external stressors.[179] He said that the respondent was able to articulate a number of strategies he could use to manage stress, including distracting himself with his X-Box and crafts, such as painting and match work.[180] However, in Dr Wynn Owen's opinion, it appeared that it did not take much for those strategies to become overwhelmed, and for the respondent to return to his maladaptive coping mechanisms.[181] This was manifested in oppositional behaviour,[182] starting with anger and abuse towards prison staff, and then refusing to see support staff, including his treating psychologist, and refusing to work. In Dr Wynn Owen's opinion, the respondent's repeated shouting, his annoying use of the call bell, knowing it would upset people, and his threats to harm himself involved an escalation of his maladaptive behaviour.[183]
100 Dr Wynn Owen noted that sometimes such behaviour was a result of the respondent not having access to his distraction techniques, but, at other times, he still returned to maladaptive coping mechanisms, despite having distractions available.[184] Nevertheless, Dr Wynn Owen considered the respondent's craft work and his Xbox to be therapeutic and effective strategies to manage stress and to assist with his socialisation. Dr Wynn Owen noted that the respondent had demonstrated, at times, that he could use those strategies quite effectively to manage stress. For those reasons, Dr Wynn Owen hoped that those resources would be readily available to the respondent while he remains in detention.[185]
101 Dr Wynn Owen noted that opportunities had been given to the respondent, at Karnet Prison Farm and Bunbury Regional Prison, to reside in self-care and to demonstrate and develop living skills, but he had not been able to consolidate those placements because of his behaviour.[186]
102 Dr Wynn Owen noted that the most significant factor that had contributed to the respondent being transferred from Karnet Prison Farm, was his sexual behaviour and attitude towards female prison officers,[187] including his attempt to have a female officer come into his cell when he was masturbating.[188] During his interview with Dr Wynn Owen, the respondent 'dismissed the events as a deliberate misinterpretation of his words and intentions by officers and denied any sexual interest in women'.[189] I interpose that, having regard to his history, the respondent's denials to Dr Wynn Owen carry no weight, and his dismissive attitude about the relevant events raises concerns about his insight and acceptance of responsibility, which are important factors in determining the manageability of his risk of sexual re‑offending.
103 It will be recalled that the respondent spoke about his intended sexual behaviour to the female officer who he had asked to see. Dr Wynn Owen was of the view that the respondent's description of his sexual fantasy to the female officer did not necessarily constitute manipulative behaviour; rather, he thought the respondent was simply being honest. In Dr Wynn Owen's opinion, the respondent's masturbation was not necessarily a response to stress. Further, the fact that the respondent confessed his fantasy could be interpreted as a positive factor, in that he was trying to engage.[190] While Dr Wynn Owen acknowledged that it may have been inappropriate for the respondent to share this fantasy with the officer, and that it may have been better for him to share that information with his psychologist, he did not see the respondent's conduct as a failure of coping.[191]
104 While I accept that some credit must be given to the respondent for his honesty, and one must acknowledge his claim to the female officer that he would have stopped if she had entered his cell, nevertheless the respondent had engaged in masturbation at a time when a female officer had entered his cell in October 2016,[192] for which he was charged, so he was well aware of the wrongfulness of such conduct and its implications. It is difficult to avoid the conclusion, in my view, that he had attempted to be manipulative to fulfil his fantasy, without concern for the potential consequences.
105 In any event, as Dr Wynn Owen characterised the consequences, the authorities at Karnet Prison Farm came to the view that they were unable to contain what they considered to be predatory sexual behaviour; alternatively, they were simply unwilling to have someone who was exhibiting such behaviour in the prison.[193] As I noted earlier, in all the circumstances, the decision to transfer the respondent was understandable, given his previous history of similar behaviour.
106 The respondent told Dr Wynn Owen that he had misbehaved specifically to achieve a transfer back to Casuarina Prison, having wanted to leave because he was not getting on with the other prisoners.[194] Dr Wynn Owen said that he took that statement to be a 'blanket statement' to explain why the respondent had left both Bunbury Regional Prison and Karnet Prison Farm, and noted that the respondent would find it difficult to understand the complexities of his own motivations.[195]
107 As I noted earlier, the respondent said to the female officer at Karnet Prison Farm that his 'head was doing funny things', and that he did not really want to get caught, but his head '[wanted him] to get caught'.[196] In Dr Wynn Owen's opinion, this demonstrated an acknowledgement by the respondent of aspects of his sexual thinking that he would not normally acknowledge, because he believes the 'right thing to do' is to demonstrate that he does not have any sexual thoughts.[197]
108 Dr Wynn Owen said that there had been two significant changes in the respondent's coping strategies that he characterised as positive and sustained. First, the respondent did not return any positive tests for illicit substances (acknowledging that he did not give samples on two occasions). Secondly, in the past he had used telephone helplines to talk to women in a sexually explicit way, but he had not engaged in such behaviour in the two years since the last review.[198]
109 It is apt to note in relation to the opportunities provided to the respondent in the two-year period since the 2017 review, that Dr Wynn Owen commended the efforts of the Department of Justice, including the expedition with which his security status was changed to facilitate placement in the lower security prisons.[199] He said:[200]
A lot of people looked like they tried very hard to place Mr Unwin and then to maintain Mr Unwin. He clearly struggled with the Bunbury placement and that fell apart very quickly, but he was in Karnet for quite a long period of time. The final reason for him moving was perhaps, in my opinion, something which could have been worked on, but clearly the staff at Karnet were not able to tolerate the behaviours which he was describing. It may have been there was an opportunity lost there, but I do think that Corrections otherwise - and you wouldn't necessarily expect the system to have that knowledge of Mr Unwin at that level in terms of therapeutic intervention as well as the community protection component. I think they did everything [they] could over that two years. I think all of the things which were mentioned by Jenkins J were touched on ...
110 According to Dr Bannister, Ms Williams was of the opinion that, while those managing the respondent's behaviour in prison viewed his challenging and self-defeating behaviours during the review period as antisocial conduct, the behaviours may be regarded as attempts by the respondent to obtain some sense of control over his circumstances. I note that this resonates to some extent with the evidence of Dr Wynn Owen, to which I have referred above.
111 Dr Bannister said that, occasionally, Ms Williams had to take on a calming or more supportive role to deal with the respondent's challenging and self-defeating behaviours, rather than a role that was 'directly therapeutic', in order to get the respondent to a point where they could discuss the therapeutic issues.[201]
112 Dr Bannister agreed in cross-examination that, while the respondent had not claimed in his interview with Dr Bannister that he was trying to gain control when he engaged in the challenging behaviours, that conclusion could be deduced from the respondent's observable patterns of behaviour.[202] That is, the respondent's reactions to various events or circumstances had been observable, and he had been very demonstrative in his distress;[203] it had been 'acutely obvious',[204] both from the records and from Ms Williams' own observations of the respondent's distress unfolding in sessions with her.[205]
113 When I sought clarification of Dr Bannister's evidence on this issue, he said that it is a reasonable hypothesis that the respondent might have a pervasive sense of not having control over his life and being at the will of other people because of his history, both in respect of his detention and the fact that he does not fit neatly into specific categories.[206] An example of the latter is his unsuccessful application for NDIS funding, notwithstanding the assessment by various professionals that he has cognitive deficits.[207] Behaviours whereby the respondent refuses to attend for appointments or take medication may be attempts to assert himself in respect of things he can control, in the context of the pervasive feeling of not having control over his life more generally.[208] Dr Bannister noted that such behaviours can become self‑defeating, because the respondent is denying himself the opportunities that may assist him.[209] Dr Bannister attributed the respondent's inability to see that he might be making things worse for himself to the respondent's lack of intellectual sophistication.[210]
114 I interpose to note that, while I accept that some of the respondent's behaviour might be explained in the manner suggested by Ms Williams and Dr Bannister, the respondent's abusive and threatening behaviour, as described in the outline of behavioural developments above, would appear to go well beyond simply asserting his autonomy. In any event, Dr Bannister agreed that behaviour by the respondent intended to convey to those supervising or treating him the assertion, 'I'm in control here', could be a manifestation of an anti-authority personality.[211]
115 As I stated above, in identifying the materials from which the developments in the respondent's circumstances may be discerned, they included the DCS 'Offender Notes' and the SAMS and ARMS supervision logs. As Jenkins J did in Unwin [No 7],[212] I found those sources to be of assistance in understanding the vacillation in the respondent's moods and responses to his circumstances, developments in his acquisition of skills and his interactions with prison officers and other prisoners. As I noted earlier, Jenkins J concluded that a daily log was not necessary for the whole of the next review period. Her recommendation for the further maintenance of a daily record was as follows:[213]
If Mr Unwin is transitioned to a minimum security prison, a daily record of Mr Unwin's behaviour over a period of time may assist to identify the skills which he has, those which he does not have but which he needs and his capacity to learn new skills.
116 Dr Wynn Owen was cross examined about whether the logs that had been kept since the 2017 review met the intended purpose, in accordance with the recommendation. He agreed that he had recommended that notes be made of the respondent's daily functioning, with the intention that, in addition to identifying day-to-day behavioural issues, they would inform an assessment of the respondent's capabilities, and would enable those assessing him:[214]
... to try and link issues that arose with behaviour change that was resulting, so [as] to understand what was causing some of the distress or stress or failure to cope and how then that could be fed back as part of his therapy ... and other day to day behavioural issues
117 He said that the logs in the BOM[215] were not a reflection of what he intended the diaries to be, in that they substantially recorded problems or things not done well, rather than looking at the precipitating issues that led to behaviours, or looking at skills and abilities on the basis of identifying recognised achievements and deficits and things that they were working towards.[216] He said that, without context, the information recorded was meaningless.[217] An example in the logs to which Dr Wynn Owen referred was on 30 July 2019 (BOM 90), when the respondent refused to attend an appointment with his SCCO to discuss mentoring and accommodation. Dr Wynn Owen noted that there was no explanation recorded:[218]
What was his explanation at the time? Were there any particular antecedents in that day? Was it part of an ongoing pattern or was it something that was new at the time, and then to follow that up. That's just one example. There are lots of other things.
118 When I sought clarification as to the approach that should have been taken in the example to which he referred, Dr Wynn Owen said that the respondent should have been questioned about those matters and his responses should have been recorded.[219]
119 Dr Wynn Owen said that if the respondent were in a therapeutic environment rather than a corrections environment, there would be an attempt to understand his behaviour, a recognition that the whole point of being incarcerated was to work towards release, and the identification of criteria that would enable that release to occur.[220] He was of the opinion that this 'strengths and abilities approach', based on reinforcement of positive behaviour rather than taking a punitive approach, did not seem to have been implemented.[221] He emphasised the need for an approach that combines the containment (or control) aspect of detention with the therapeutic aspect.[222] He agreed that, otherwise, the opportunity to gain a better insight into what causes the respondent's instability will be lost.[223] Dr Wynn Owen agreed with the proposition that, in this respect, the logs had not achieved their purpose.
120 As I indicated during the hearing, the difficulty with the cross‑examination on this issue, and with the general tenor of Dr Wynn Owen's evidence about it, is that it seemed to proceed on an assumption that the only things that were recorded were negative behaviours. That was not correct. A detailed review of the logs and 'Offender Notes' showed that there were many entries that referred to positive behaviour and described and addressed precisely the sorts of things referred to in the recommendation in Unwin [No 7], such as the respondent's acquisition of skills and his capabilities in implementing those skills. A particular entry I identified during the hearing, namely an entry for 3 February 2018 at 15:16 (BOM 112), referred to the respondent mixing well within the unit, being talkative and polite, having a very clean and tidy cell, carrying out his cleaning duties in the unit's shower area, and mentioning the importance of hygiene when cleaning and preparing food, which arguably was an explanation at least for the cleanliness of his cell. There were other similar entries. It seemed to me that such entries addressed a key purpose of the limited use of daily logs envisaged by Jenkins J, namely whether the respondent was making progress towards being capable of independent living.[224]
121 Dr Wynn Owen went on to say that he was not trying to suggest that the daily records were all negative, rather that they were statements without context.[225] So, while it was important to record the respondent's positive behaviour, as well as negative behaviour, Dr Wynn Owen believed taking the further step of recording information that would enable one to understand what led to the positive (or negative) presentation, would be of assistance in developing an environment that offered a greater chance of stability for the respondent.[226] He suggested that, when the respondent is presenting well, a few questions pointing that out and enquiring of him what he thinks is different to the way things were previously may elicit responses that would provide insight for further analysis by the respondent's treating psychologist.[227] Obviously, the same could be said of questioning about negative behaviour. Dr Wynn Owen explained that the value of that approach, especially having regard to the respondent's cognitive deficits, is the immediacy of an explanation provided by the respondent, which may be more accurate than endeavouring later to obtain an explanation from him in counselling or to surmise an explanation from his circumstances.[228] Dr Wynn Owen noted that the respondent's capacity to understand and reflect his mood and articulate it to another is quite limited.[229]
122 Dr Wynn Owen acknowledged that what he was recommending would not be easy to implement, and that it would require training of prison officers.[230] He said there needed to be co-ordination between prison officers and Ms Williams to identify relevant information that needed to be recorded for context. He also agreed that there were examples in the logs that met the expectations he had outlined.[231] A specific example on 13 August 2018 at 13:57 (BOM 98) traced a trajectory whereby the respondent had started unwell in his cell but had progressed during the day to a point where he presented as being more settled and talkative. This had occurred after a discussion with a prison officer. The officer had asked questions of the kind suggested by Dr Wynn Owen. He had first asked the respondent how he was feeling and, when the respondent said he had had his 'moments' lately, the officer asked the respondent what was troubling him. The respondent referred to the fact that he was being kept in custody and his intention to 'appeal it after 12 months'. The officer explained to the respondent what had been put in place as far as his placement in Karnet Prison Farm was concerned, and he then manoeuvred the conversation to positive matters, finally suggesting that the respondent would feel better if he showered and cleaned up his room. When the officer saw the respondent later, the respondent confirmed he was feeling better and that the shower had helped him.
123 While acknowledging that the entry for that day was a good example of the kind of information that should be recorded, Dr Wynn Owen noted that the approach had been inconsistent between officers over the course of the two years.[232] The quality of the entries depended on the individual.[233] Dr Wynn Owen also clarified that he was not expecting the prison officers to analyse the respondent's explanations. Rather, a record of such explanations would inform later analysis by the treating psychologist, who would be able to understand the information within the broader context of the respondent's functioning.[234]
124 Although I consider that the DCS 'Offender Notes' and the supervision logs in combination met the purpose stipulated by Jenkins J in Unwin [No 7] to some extent over the two-year period, and at times substantially, I accept Dr Wynn Owen's assessment that there was an inconsistency of approach. It is appropriate to reinforce the way in which such notes and logs can be of assistance in the formulation of management strategies for the respondent, as well as in the review process, when considering the progress he has made, especially towards independent living. Accordingly, the evidence of Dr Wynn Owen informed the recommendations I made after giving my decision in this matter, which are incorporated at the end of these reasons.
125 Dr Wynn Owen reviewed the developments in the respondent's medical treatment since the 2017 review.
126 He noted that the respondent had recently recommenced taking Sodium Valproate, which Dr Wynn Owen considered to be an effective mood stabiliser. He said there is research to suggest that the medication can 'level out mood fluctuation and reduce the extremes', rendering a person with mood instability less likely to react.[235] The medication had been prescribed to the respondent because of his mood instability.[236]
127 I noted earlier that the visiting psychiatrist, Dr Smith, had decided to cease the use of Sodium Valproate.[237] Dr Wynn Owen suggested that was likely due to the psychiatrist not having sufficient background information provided to him about the respondent.[238] Dr Wynn Owen was of the opinion that, as long as the respondent's mood was monitored, a trial of Sodium Valproate (Epilim) for at least six months would be worthwhile.[239] It may give the respondent the opportunity to demonstrate progress in other areas, without acting out in a pathological manner.[240] Dr Wynn Owen considered that the purpose of the medication should be explained to the respondent in regular medical appointments, and that Ms Williams should be involved in communicating and reinforcing the benefits of taking the prescribed medication.[241]
128 At the time Dr Wynn Owen saw him, the respondent was no longer on the SSRI medication.[242] Dr Wynn Owen noted that the respondent had taken Sertraline for a while and had then decided he no longer wanted to take it. As I described earlier, the prescription for Sertraline was discontinued by a visiting psychiatrist, Dr De Klerk. Dr Wynn Owen noted that this was when the respondent was last seen by Dr De Klerk in Bunbury, but the respondent had already stopped taking the medication.[243] Dr Wynn Owen said it was not clear that the doctor who ceased the Sertraline was aware that it had been specifically prescribed as an antilibidinal.[244] However, he considered that it was appropriate to cease the medication, given the respondent's ongoing refusal to take it, as it could not be enforced.[245]
129 Dr Wynn Owen noted that, previously, the respondent had also been prescribed a depot antipsychotic to curb his sexual impulses.[246] In Dr Wynn Owen's opinion, that was not an appropriate use of the depot medication.[247] In cross-examination he said that the antipsychotic medication may occasionally have a side effect of that sort (that is, curbing sexual arousal), but, having regard to other (deleterious) side effects, one would never use the medication for any purpose other than as a treatment for mental illness.[248]
130 As to the provision of psychiatric treatment, Dr Wynn Owen adhered to the view he had expressed in the 2017 review, that there was a need for consistency in the treatment provided (preferably that it be provided by one psychiatrist). He said there were two reasons for such a requirement: first, to develop some degree of trust, and second, to ensure there is an individual who understands the longitudinal course of the respondent's care within the prison system, to prevent some of the mistakes or misunderstandings which had occurred, which included, in Dr Wynn Owen's opinion, the prescription of the depot antipsychotic medication.[249]
131 When asked in cross-examination whether it might be appropriate for him (that is, Dr Wynn Owen) to have oversight of the respondent's psychiatric treatment, Dr Wynn Owen explained that it was a complex issue and not one on which he could comment, because such a role would involve a financial gain.[250] The matter to which Dr Wynn Owen was properly alluding was the potential for a perceived conflict if he were to give evidence endorsing a recommendation from which he might benefit financially. However, Dr Wynn Owen did recommend that there should be a psychiatrist working consistently with the respondent, ideally one who is known to the respondent and who has expertise in the area of management of dangerous sex offenders.[251] If it were not possible to have a psychiatrist with the relevant expertise to work consistently with the respondent, then the next best scenario would be to have a psychiatrist with the relevant expertise in a liaison role to provide oversight of the treatment provided by one or more other psychiatrists.[252]
132 In Unwin [No 7], Jenkins J had recommended that the respondent should continue in counselling, preferably with Ms Williams, and that he should be given the opportunity to undertake a substance abuse programme. Dr Wynn Owen agreed that the respondent had not undertaken such a programme. However, he said substance abuse had been an element of the respondent's discussions with Ms Williams over the whole time that he had been in counselling, and he was much more likely to engage seriously with Ms Williams on that issue than if he went into a group programme.[253]
133 Dr Wynn Owen was of the opinion that two developments in the respondent's behaviour since the 2017 review were possibly the result of the therapy with Ms Williams leading to better strategies on the respondent's part to deal with stress.[254] Those changes were the fact that the respondent had no longer engaged in sexualised behaviour over the telephone (which included masturbating while talking to females on helplines),[255] and the fact that he had not used drugs, as was evident from the urinalysis results.[256] Dr Wynn Owen said:[257]
On the basis of those two changes, it suggests that there are improvements in coping skills. And there are periods in the - in the offender notes and in other reports and in my discussion with Ms Williams where there has been relative stability. And for Mr Unwin, the changes over the last two years have actually been quite dramatic. He obviously feels very comfortable at Casuarina, and so the move from there to other prisons has been difficult, and he gets concerned about the attitudes of other prisoners towards him and has to go through meeting a whole group of new people. He has a degree of self‑consciousness which makes him uncomfortable. Has to find a job. The placements that he has been told he's there for take time. All of those things are real stressors that he has had to deal with.
134 Dr Wynn Owen went on to agree that the changes were incremental.[258] He said they suggested there had been a degree of retention of learning and a change of behaviour over a 'reasonably significant' period, which suggests that such retention and change may continue.[259] However, in Dr Wynn Owen's opinion, the respondent had not yet progressed enough to reduce his risk and demonstrate that he would not fail to cope with an increase in stress.[260]
135 Dr Wynn Owen expressed surprise at the outcome of the request for access to the NDIS,[261] given the respondent's difficulties with adaptation, social interaction and learning. He said that the NDIA tends to look only at the person's Intelligence Quotient (IQ) score as the primary threshold, and if an applicant has an IQ above 70 (which is the cut-off score for intellectual disability), the agency will not consider other factors.[262] As I will discuss below at [146], the respondent had previously scored 72 on the IQ test, which is considered within the 'border[263]e' range.263 Dr Wynn Owen noted that intellect is more than an IQ score, and when the respondent's score is considered alongside his lifetime of maladaptive coping, maladaptive social interaction and learning difficulty, Dr Wynn Owen was of the opinion that the respondent met all of the criteria for intellectual developme[264]disorder.264 He disagreed with the NDIA's assessment that the respondent had an acquired cognitive problem as a result of so[265]nt abuse.265 He was of the view that the respondent's cognitive deficits are neurodevelopmental and preceded su[266]ance use,266 although the respondent's cognitive state may have been worsened by his subs[267]ce abuse.267
136 However, while acknowledging that he is not an expert on how the NDIA allocates funding, Dr Wynn Owen noted that, even if NDIS funding were secured, it would not extend to funding for a risk‑mitigation strategy; it would only extend to funding for a rehabilitative or therapeutic purpose. As will appear below, Dr Wynn Owen was of the view that the respondent is likely to require 24-hour per day supervision, seven days per week, for a period of at least six months when he is eventually released into the community. That would mean live-in support. In his opinion, having someone remain overnight in 'any facility' (which I understood to be a reference to any form of accommodation in the community) would be regarded as risk‑mitigation, rather than a therapeutic or rehabilitative need, and not within the funding criteria.[268] Nevertheless, as the respondent will require supported accommodation in any event, Dr Wynn Owen recommended that the respondent be referred again for NDIS funding without delay.[269]
(v) Dr Wynn Owen's clinical assessment of the respondent
137 In this section, I will deal with Dr Wynn Owen's clinical assessment of the respondent based on his interview with him for this review. Apart from Dr Wynn Owen's assessment of the respondent's mental health and formal psychiatric diagnoses, I will refer to his assessment of the respondent's sexual thinking and sexual drive and the respondent's attitude and amenability to supervision.
138 Dr Wynn Owen conducted a mental state examination of the respondent, which revealed nothing remarkable other than the respondent's speech being slightly slurred.[270]
139 Dr Wynn Owen diagnosed the respondent with:[271]
(i) Substance Use Disorder (solvents/inhalants), currently in remission;
(ii) Sexual Sadism Disorder;
(iii) Antisocial Personality Disorder; and
(iv) Intellectual Developmental Disorder (mild to moderate severity).
140 In relation to the substance use disorder, which the respondent had in the past, but which was in remission at the time of the review, Dr Wynn Owen thought it was noteworthy that the respondent had not returned any positive urinalysis tests in the past two years.[272]
141 In relation to the diagnosis of sexual sadism disorder, Dr Wynn Owen said in evidence:[273]
I do agree with some of the previous assessors and on further discussion with the sexual sadism disorder in that ... his behaviour towards women, the physical pain inflicted, as well as grabbing the breast, [and] his recanting of that in his own mind ... over time - it sort of meets the diagnosis of a paraphilia.
143 The diagnosis of a mild to moderate intellectual development disorder was based on a consideration of a number of relevant factors. First, the respondent was born at a time when his mother had hypertension and he was quite jaundiced, which was a potential insult, as sometimes jaundice can affect neuro development and cause some cognitive problems.[276] Secondly, the respondent did not meet his childhood developmental milestones as would be expected.[277] Thirdly, the respondent required support from the Disability Services Commission from a very young age through his primary schooling.[278] Dr Wynn Owen noted, therefore, that the respondent's developmental issues with learning had been recognised well before his substance abuse commenced.[279] Fourthly, there were also behavioural issues in the respondent's childhood, according to his mother.[280]
144 The respondent then abused solvents, which have a general cognitive effect, but also a 'very specific effect on the frontal lobe', which can affect executive functions (such as problem solving, impulsivity and planning).[281]
145 Dr Wynn Owen concluded, therefore, that the respondent's disorder is predominantly neurodevelopmental, but that it has been exacerbated by substance abuse.[282]
146 Dr Wynn Owen said that the respondent had participated in a number of IQ and intellectual assessments. The respondent's results varied, but the assessors had often said that the tests were 'conflicted' (by which I understood 'compromised') because the respondent had seen the tests many times before and at times did not engage well with the tests. Dr Wynn Owen placed store in the IQ test conducted by Dr Watts, being a test in which the respondent had engaged well. As noted earlier, the respondent's score on that test was 72, which is within the 'borderline' range.[283] Dr Wynn Owen said that, with scores of 70 to 75, it is necessary to look carefully at the person's functioning and consider whether, notwithstanding that his score is higher than the cut‑off of 70, the person is not coping. As I mentioned earlier, Dr Wynn Owen was of the view that when the respondent's IQ score is considered alongside other factors in his life which show poor functioning, he meets the criteria for intellectual development disorder.[284]
147 Dr Wynn Owen was of the opinion that the respondent's state, in terms of his intellectual development disorder, has remained relatively stable over time.[285]
148 Dr Wynn Owen also noted the probable presence of post-traumatic stress disorder (PTSD). This means the respondent has a level of background anxiety, which will escalate in situations that are similar to his own experience of trauma.[286] The PTSD also adds a degree of volatility and makes it more difficult at times for the respondent to cope with normal day-to-day matters.[287]
149 Dr Wynn Owen said that the respondent was keen to impress on him that he had no sex drive, and that the therapy with Ms Williams 'got rid of that for him completely and that he no longer needed that distraction'.[288] This was at odds with other things he said to Dr Wynn Owen, such as that he was still masturbating and had had sexual contact with 15 to 20 other prisoners in the previous 12 months, even though Dr Wynn Owen thought the latter description may have been an exaggeration.[289] The respondent also maintained that he was exclusively homosexual and had no interest in women.[290] This was inconsistent with his acknowledgement to prison officers at Karnet Prison Farm that he had had sexual fantasies about women.[291] It was also inconsistent with his statements to Dr Wynn Owen about what he would do to satisfy his sexual needs if he were in the community. He said that he hoped to meet men in saunas, but also said he would go to a brothel if he needed or had an interest in a relationship or sexual contact with a woman.[292] He said he would do the latter 'every week or so or once a week'.[293]
150 Therefore, Dr Wynn Owen came to the view that the respondent has an active libido and a sexual interest in both men and women, without preference for either.[294]
151 Dr Wynn Owen said, of the respondent's conflicting statements, that it was likely he was being dishonest about his sexual thinking to present in a way that made him appear less of a risk, with a view to improving his prospects of leaving prison.[295] On the other hand, Dr Wynn Owen believed the respondent was being truthful when asked about his sexual activity (in prison) and his intended sexual activity if he were in the community.[296]
152 In discussing his plans for future sexual contact in the community, the respondent told Dr Wynn Owen that it would not be difficult to have relationships with males and that he would not have to disclose his sexual offending history to men, because he had never offended against men.[297] He also said he would not have to disclose his history to women in brothels because he would only be there for a very short time.[298] In Dr Wynn Owen's opinion, these views about disclosure to future sexual partners was concerning from the point of view of supervision and monitoring.[299] It was something the supervision team would need to be aware of, the views would need to be clarified, and a 'very black and white direction' would need to be given to the respondent as to what he could and could not do, and what disclosure he was required to give.[300]
153 Dr Wynn Owen considered the respondent's opinions about disclosure to be 'concrete opinions', in that they were simple ('this equals that'), rather than what would be expected of many adults, namely a contextual consideration of the matter, having regard to constraints and consequences.[301] Dr Wynn Owen was of the view that the respondent's reaction, if challenged about those concrete opinions, would probably depend on who was making the challenge. If it was his psychologist, whom he trusts, he would likely take it on board and think about, but if it was someone else, he would likely become angry.[302] Dr Wynn Owen gave the example of his discussion with the respondent about how the respondent intended to make money post release. When he challenged the respondent about his plan to make money through eBay purchases and online gambling, the respondent did not respond well and was not able to see any alternative point of view, suggesting Dr Wynn Owen was stupid if he could not understand that it was 'a very straightforward money spinner'.[303] Dr Wynn Owen suggested that the conversation may have gone differently if it had been Ms Williams discussing the matter with the respondent.[304] Dr Wynn Owen was of the view that, at the time of the hearing, Ms Williams was the only person in whom the respondent had the necessary level of trust.[305]
154 In terms of the impact of the respondent's sexual thinking and urges on his risk of sexual offending, Dr Wynn Owen agreed in cross‑examination that management of the risk is not about controlling the respondent's sexual urge; rather, it is about ensuring that, if he engages in sexual activity, it is at times when he is not distressed or destabilised.[306] Dr Wynn Owen considered that to be a difficult matter, because of 'the complexity of the requirement for sexual intimacy and having that need met, and the frustration that may come from not having that need met'.[307] It would be a matter of trying to get the balance right between the safety of the community on the one hand, and 'protection of any vulnerability [the respondent] might have'.[308] Dr Wynn Owen noted that perceived rejection may lead to considerable distress for the respondent,[309] which is factor that puts him at risk of offending.
155 Dr Wynn Owen said that the respondent has concrete opinions in relation to likely supervision conditions and his obligation in relation to them, which would require clear clarification should he be released under supervision.[310] In Dr Wynn Owen's opinion, any such conditions would need to be explained by both the respondent's CCO and his psychologist, and he would need to be given the opportunity to take them away and think about them.[311] Ideally, the psychologist would clarify the meaning of the conditions with him, before the respondent met with his CCO to go through them again and 'sign them off'.[312] Dr Wynn Owen was of the view that the respondent should not be expected to read, understand, and sign off on the conditions on the same day. His reaction to the conditions would need to be gauged over at least a couple of weeks, which would allow for two sessions with Ms Williams.[313]
156 In Dr Wynn Owen's view, even with such clarification of the conditions with the respondent, unless there was significant long-term repetition of the conditions, if there was a behaviour that the respondent was particularly fixed on and which was contrary to a condition, he would likely do it anyway, especially if he was distressed or angry.[314] That is because one of the respondent's issues is impulse control.[315] Dr Wynn Owen later agreed that the respondent's tendency to decompensate and be impulsive could result in non-compliance with the standard conditions of a supervision order.[316] The prospect of non‑compliance as a result of those factors is unpredictable.[317]
157 Although it was not put in issue by the respondent in these proceedings that he remained a serious danger to the community, and the primary focus was on whether there had been any change in the respondent's circumstances such that he could be released on a supervision order, I was required to be satisfied on the evidence that the respondent remained a serious danger to the community. The primary evidence going to that issue was Dr Wynn Owen's risk assessment.
158 As on previous occasions, Dr Wynn Owen utilised the STATIC‑99R actuarial instrument and the Risk for Sexual Violence Protocol (RSVP) structured professional/clinical judgment guideline to make that assessment.[318] The nature and content of those tools have been discussed in other decisions under the DSO Act. It is sufficient for present purposes to refer to the results of Dr Wynn Owen's assessment for the present review.
159 The respondent's score on the STATIC-99R placed him in the 'well above average' risk category (previously the 'high risk' category).[319] The respondent's failure to respond to extensive treatment and his ongoing patterns of anti-social behaviour and dysfunctional coping placed him in the 'High Risk/High Needs' subcategory.[320] Offenders with this score have a 35% likelihood of committing a further sexual offence within five years of release into the community. Offenders with this score who, like the respondent, have a cognitive impairment have a 36% likelihood of committing a further sexual offence within that period,[321] and a 48.5% chance of committing a further sexual offence within 10 years of release.[322] Dr Wynn Owen noted that this was in respect of any sexual offence, not only serious sexual offences.[323]
160 Administering the RSVP, Dr Wynn Owen identified a number of historical (static) and dynamic risk factors which increase the respondent's risk of sexual re-offending.[324] The same factors, which I discuss below, have been identified in previous decisions under the DSO Act concerning the respondent.
161 The findings in the domain of Sexual Violence History remain unchanged,[325] as it is concerned with historical offending. The factors relevant to the respondent's risk are chronicity of sexual violence, escalation of sexual violence and physical coercion,[326] all of which were manifested in his offending over time.
162 In the domain of Psychological Adjustment, the respondent continued to exhibit behaviours and attitudes from which Dr Wynn Owen concluded that the risk factors of extreme minimisation or denial of sexual violence, problems with self-awareness and problems with stress or coping were all present. In relation to problems with self‑awareness, Dr Wynn Owen noted that the respondent reported he had no risk of future offending, although he appeared to acknowledge he may be at risk of 'breaching other conditions of any order'.[327] The respondent's attitude displays a lack of insight into his risk of sexual re‑offending and the fact that breaches of conditions of a supervision order may well manifest an increased risk of sexual re-offending. Dr Wynn Owen went on to say in respect of this risk factor:[328]
[The respondent] rapidly returns to pathological/maladaptive coping mechanisms when under stress and acknowledges at interview that at these times consequences are of no importance to him. Problems with self-awareness are regarded as a significant dynamic risk for future sexual offending.
163 Dr Wynn Owen also concluded that problems resulting from child abuse remains a risk factor in this domain.[329]
164 In the domain of Sexual Deviance, the risk factors of sexual deviance and problems with substance abuse were present, although, as noted earlier, the respondent's substance abuse disorder was in remission at the time of the review.[330] In relation to sexual deviance, although the respondent does not acknowledge the sexual interest, Dr Wynn Owen noted, based on the respondent's offending history, that 'he appears to have a specific and long-standing deviant interest in/fascination with female breasts and a history of behaviours causing pain to individuals through damage/injury to their breasts'.[331]
165 In the domain of Social Adjustment, the risk factors of problems with intimate relationships and problems with non-intimate relationships are both present. The risk factor of problems with employment is also present. Dr Wynn Owen noted that employment problems related to education problems, as is the case with the respondent in part, have been linked in research with increased risk of future sexual offending.[332] I will discuss below the respondent's plans for 'employment' if he were to be released.
166 In the domain of Manageability, all three of the risk factors, problems with planning, problems with supervision and problems with treatment were present, which Dr Wynn Owen did not consider to be unusual.[333]
167 As to issues with planning, Dr Wynn Owen referred to both day-to-day planning and planning for the longer term. Regarding long term planning, the respondent told Dr Wynn Owen that, if released, he planned to start an internet business, trading on eBay, and to play poker online, claiming he would apply a system that would ensure he would 'stay ahead and make money'.[334] From the savings he expected to accumulate, he planned then to buy a house in regional Western Australia. The respondent would not countenance any challenge from Dr Wynn Owen to the feasibility of his plan.
168 Dr Wynn Owen considered the respondent's plan to be concerning. It demonstrated the respondent's incapacity to think about his ideas, and their prospects of success or failure, in the context of the real world.[335] He also had not thought through the practicalities of his plan. For example, it had not occurred to him that, if he were to sell and buy things from eBay, he would need to leave the house to go to the post office or have people come to his house for collections, which would involve risks, and that potentially he would have to seek permission from his CCO under the supervision order.[336]
169 The respondent also indicated that he was strongly opposed to mentoring, because he thought it would be a waste of money, and of no benefit.[337] He told Dr Wynn Owen that the only thing he would need is transport to and from appointments.[338] Again, as Dr Wynn Owen indicated, these attitudes are matters of concern. They demonstrate a lack of insight by the respondent into the level of support he will require in the community, as has been assessed objectively. They also raise concerns about his preparedness to receive support and be compliant with supervision, if he were in the community.
170 As to the risk factor of problems with supervision, Dr Wynn Owen noted that the respondent had previously breached a conditional release order and re-offended.[339] However, of more immediate concern are his behaviours within the prison system that inform this risk factor. In that regard, Dr Wynn Owen referred to the respondent's inability to manage when placed in reduced security settings, the fact that he would become distressed or stressed when unable to cope, and his inability to deal with supervision in prison work settings, which had resulted in the respondent not being able to continue in those work settings or refusing to work.[340]
171 As to the risk factor of problems with treatment, Dr Wynn Owen noted that the respondent has disengaged on a number of occasions from treatment with his psychologists and from preparations for his release.[341]
172 Dr Wynn Owen made an assessment of likely risk scenarios, that is, 'a consideration on the basis of previous offending and [the respondent's] presentation of what may occur should ... an offence occur'.[342] Dr Wynn Owen considered that the most likely risk scenario would be a repeat of the respondent's most recent pattern of behaviours, which he reported involved approaching a female stranger while intoxicated, attempting to engage with that victim, and then attempting to expose, touch or bite the victim's breasts with force and also requesting or forcing oral sexual penetration and digital vaginal penetration.[343] If an escalation were to occur, Dr Wynn Owen considered that the offending would involve the same type of offending with greater physical violence, resulting in greater harm. However, he did not consider that an escalation was likely.[344] In oral evidence, Dr Wynn Owen clarified that, although he did consider that the risk factor of escalation of sexual violence was present:[345]
... that doesn't necessarily mean that the first offence after release would be an escalated offence ... this is what has happened historically. So there is a higher likelihood in this individual of the next offence being an escalation on the previous offence in some manner, whether it be in the nature of the violence or the type of sexual offence, but it just means they're more likely a person that hasn't got a trajectory. Trajectories tend to go to a certain plateau. [T]hey're not permanent and it's difficult to say, which is why the RSVP, which is a theoretical approach to understanding the offending behaviour and then putting structures in place to manage risk, asks you to consider what might happen, not just what you think is most likely to happen.
173 As to the imminence of the risk scenario, Dr Wynn Owen said this would be related to how the respondent managed the stress of a transition into the community. Unless the respondent was closely monitored, Dr Wynn Owen could foresee him becoming stressed or distressed quickly (in a matter of weeks to months), which could rapidly lead to substance use, and then re-offending.[346]
174 Dr Wynn Owen concluded that the respondent's risk of future serious sexual offending remained high unless he was subject to detention or a supervision order.[347]
175 Dr Wynn Owen considered whether the respondent's risk could be managed within the community under a supervision order and what mechanisms of supervision would be required. He noted that the respondent still had not clearly demonstrated that he can function fully independently, in terms of the activities of daily living.[348] He said:[349]
If you look at his OT [occupational therapist] report, there were concerns about his sequencing, about his safety. The neuropsychologist talked very clearly about the requirement for support in a range of areas of normal day-to-day and social function, and ... the concern about his volatility at times and his inability to manage stress would suggest that in periods when he's on his own that he's very unpredictable. I would be concerned should he be on his own, for example, even with electronic curfew until he had demonstrated for a period of time, at least six months, that he is able to manage within that. In addition, I believe he needs support with his skill of independence, activities of daily living and so on.
176 Dr Wynn Owen went on to clarify that, in his opinion, before the respondent could be regarded as ready to cope with living in the community, he would need to demonstrate stability for a minimum period of three months within a more independent living setting within the prison.[350] During that time work could be done on the respondent's understanding of the proposed conditions of a supervision order.[351] He was of the opinion that the respondent would then require a minimum of six months of '24/7' live-in support within the community 'to demonstrate and work through managing the day-to-day stresses and problem solving issues'.[352] I have used the term 'live-in support' to encapsulate the kind of support Dr Wynn Owen considered to be necessary. However, what he had in mind included overnight supervision,[353] which he explained in the following terms:[354]
What I'm saying is I don't think, in - in my opinion, a curfew - without that being supported by somebody being on site, a curfew is not adequate to mitigate risk once he is first released because none of those other support people would be available at that time.
177 Dr Wynn Owen acknowledged, in respect of the first stage of his recommendation, that it may not be realistic, in that 'there are not many prison environments in which the [three-month assessment] can be achieved without enormous delays and red tape around even getting the placement',[355] in part because of the demand for such facilities.[356] Although, as I noted earlier in these reasons, Dr Wynn Owen considered that the respondent's placement in Karnet Prison Farm and Bunbury Regional Prison had occurred with commendable expedition. Dr Wynn Owen acknowledged that a long delay in achieving placement in self-care could result in the respondent feeling significant frustration and deteriorating in his behaviour, which could then lead to a change in his status and being denied a placement in self-care.[357] However, as Dr Wynn Owen believed that the respondent had not demonstrated readiness to live in the community, it was necessary to consider how such readiness could be achieved,[358] and a placement in self-care followed by transition to the community would be the ideal outcome.[359]
178 Dr Wynn Owen agreed in cross-examination that his recommendation for a three-month period in self‑care in prison correlated with the recommendation in Unwin [7] that the respondent be given an opportunity to prove he is capable of stable living in a minimum security prison, and of self-care.[360] In Dr Wynn Owen's plan, criteria or goals would be set for the respondent to meet by the end of the three‑month period.[361] He explained:[362]
Mr Unwin would be engaged in those so he would know what it was that was to be achieved in the areas of his emotional management, in terms of socialisation, in terms of any work function, in terms of his - his independence, skills of independence or activities of daily living. It wouldn't be a huge complex list. It should be something straightforward that can be presented to Mr Unwin and he can see. At least then he would have some substance to achieve, something to work towards.
179 Dr Wynn Owen said the respondent should be provided with the specific set of achievable goals in a written list.[363] He elaborated that the goals should be in relation to broad areas of self-management concerning personal hygiene, food preparation, appropriate diet, nutrition and social interaction.[364] This 'positive learning approach', would enable the respondent to demonstrate a progression towards each goal on a regular basis.[365] The list could be prepared by COMU, with some input from occupational therapists to develop the goals and provide an understanding of the specific things that would need to be done at a practical level to achieve those goals, but a further occupational therapy assessment was not required.[366]
180 Dr Wynn Owen also recommended that, once the respondent is placed in self-care, the individuals most frequently involved with the respondent in that setting should be given specific support and information about the goals that he is trying to achieve, and there would need to be some consistency in their responses to the respondent's behaviours so as to manage the behaviours, but also maintain a positive direction towards achieving the goals.[367]
181 Dr Wynn Owen agreed, in cross examination, that, if the pre‑release plan was implemented, the respondent would benefit from day release whilst still in custody, although he was not sure what options would be available for day release.[368] He said that if the respondent were able to complete periods of day release successfully, he would be demonstrating skills, and the ability to manage without decompensation in a less structured environment.[369]
182 Dr Wynn Owen noted that there was a Department of Justice facility within the community for offenders with intellectual disability which was staffed '24/7' and suggested that a facility of that kind would be an appropriate place for the respondent, as it did not have 'the broader constraints of a large prison environment'.[370] It was not clear whether Dr Wynn Owen was suggesting such a facility for the first phase of his proposal, or the second phase. Given the overall tenor of his evidence, I understood him to be referring to the second phase, after the respondent had demonstrated he had acquired living skills in a low security prison environment. In any event, Dr Wynn Owen noted that relatively few people had been placed in that facility and he did not know whether it would be available to someone who was subject to an order under the DSO Act.[371] After making enquiries, Dr Wynn Owen said in cross examination that sex offenders are excluded from that facility and, consequently, the respondent would be ineligible.[372]
183 I note that Mr Jarvie was subsequently asked about the availability of such facilities within the community. His evidence was that, apart from the supported accommodation provided by UCW, there are psychiatric facilities with 24-hour live-in support available in the community for offenders, including persons who are subject to orders under the DSO Act, who have a 'primary diagnosis of a mental health issue', but such facilities are generally not available for persons with low or mild to moderate intellectual functioning, if they do not have a primary diagnosis of a mental health issue.[373] For persons in the latter category, there are some services that will provide live-in support if accommodation (and funding) is available.[374]
184 As to the potential effectiveness of a curfew, if the respondent were accommodated within the community, Dr Wynn Owen agreed in cross‑examination that, given the respondent's preference for a structured environment in prison, there is a chance he would regard a curfew as a form of lockdown for security reasons, with which he had coped, but Dr Wynn Owen maintained there was a chance the respondent would not comply, particularly in times of extreme distress.[375] In re-examination, Dr Wynn Owen differentiated the lockdown situation in prison from a curfew, on the basis that the former involved 'locked door containment within a small area of a large complex facility', which is very different to being asked to stay in one's home.[376] Further, in Dr Wynn Owen's opinion, when one has regard to the respondent's history of non-compliance with rules and regulations in prison environments (which he described as 'lots of non‑compliance'), the more likely outcome would be at least some non-compliance with a curfew where there is a choice to be made by the respondent to stay inside or leave, in circumstances where there is no physical locked door to prevent him from leaving.[377]
185 Further, while Dr Wynn Owen acknowledged in cross‑examination that it was not possible to estimate the likelihood that the respondent would not comply with a curfew condition, as he has never been tested in the community in that regard, Dr Wynn Owen was of the view that the respondent's neurodevelopmental and cognitive profile, combined with his level of impulsivity, suggests that he is more likely than a person without that profile to breach a curfew.[378] He is also more likely to do so than a person without an antisocial personality disorder, or a person who does not have a history of substance abuse as a coping mechanism.[379] In other words, all of those factors increase the likelihood of non-compliance.
If there could be a guarantee that the moment there was a signal received that Mr Unwin was leaving the house, and the response was rapid, as in within a very short distance away, 5/10 minutes, I think there will be a sense that that would better manage the overnight issue.
... So close monitoring with a rapid assertive response, so direct presence.
... For me it's more about the moment Mr Unwin, for whatever reason, walks out of that perimeter that there is a response from somebody that prevents anything occurring.
187 Dr Wynn Owen said that the immediacy of the response would be for the purpose of containment, rather than deterrence of future breaches.[382]
188 Dr Wynn Owen was asked, in cross-examination, whether the level of care and supervision he considered necessary for the respondent in the community could be met sufficiently by the combination of the respondent living in private accommodation, engagement of a mentor (for which the respondent had private funds), a curfew, and supervision and monitoring by DCS in accordance with a supervision order.[383] Dr Wynn Owen was of the view that such an arrangement 'would meet some of the therapeutic needs and rehabilitative goals, but it would not necessarily manage the risk, particularly the unpredictable risk of distress manifesting outside of the times when those people are available, and [the respondent] being unable to cope with that'.[384] He said he 'could not predict' that the suggested measures would operate to control the respondent's risk, having regard to the respondent's cognitive limitations, lack of insight, unawareness, limited ability to articulate how he is feeling, or even to understand questions about mood or emotion at times, and 'his sense that he's travelling fine, and nobody needs to know about anything else'.[385]
189 Dr Wynn Owen agreed in cross-examination that, while he considered the risk of the respondent becoming distressed and decompensating to be unpredictable, at times the respondent had communicated his distress to others, and at times there had been manifestations of behaviour that would 'precipitate before offending', such as his illicit substance use, which could act as warning signs for those monitoring and supervising him under a supervision order.[386] However, there had been times when the respondent had been 'absolutely clear' that he had no problems and had the skills to manage successfully, when, in fact, he had been distressed and about to decompensate.[387] Further, the respondent's substance use in the community had been mainly with solvents, and Dr Wynn Owen was not aware of any test that could be conducted for solvent use, so those supervising him would be reliant upon self-reporting by the respondent or observations about his behaviour.[388]
190 Dr Wynn Owen was of the view that any plan for release should also include consideration of making an application for guardianship and administration in respect of the respondent, notwithstanding the previous unsuccessful application, as he was concerned the respondent could access immediately the funds held for him in trust, and there was the potential for him to lose that money very quickly, given his income plans of gambling online and trading on eBay.[389] Dr Wynn Owen agreed that his concerns about the respondent's financial vulnerability in the short term would be allayed if the respondent could not access his money without the Public Trustee releasing funds from the trust account.[390]
191 Dr Wynn Owen also suggested that the Exceptionally Complex Needs Support Program (ECNSP) should be considered as a means to have some oversight of the management of the respondent should he be released.[391] Mr Jarvie, in his report, explained that the ECNSP is an interagency group that, at the time of the review, was 'chaired by the Mental Health Commission and Department of Communities'.[392] He said there is no referral process for the ECNSP, but, if the respondent were to be released subject to a supervision order, consideration would be given to involving that interagency group.
192 Ultimately, Dr Wynn Owen was of the view that the respondent's level of risk was such that it could not be adequately monitored in the community unless he was subject to supervision 24 hours per day, at least in the first six months of his release, when the stresses would be greatest, given the dramatic change to his circumstances, appreciating that the respondent's transition into the community would be very difficult for him.[393] The respondent's history had shown that he could decompensate 'extremely rapidly', from appearing to be calm and stable, to 'acting out'.[394] Dr Wynn Owen clarified that he did not think the respondent actually needed to have somebody with him every moment of the day, but he considered that it would be fraught to 'speculate as to the timeframes and how to manage the timeframes when he is without other people', when the respondent had not given 'any recent demonstration of anything except relative instability in a highly structured environment'.[395] Dr Wynn Owen had significant concerns about the respondent's risk of sexual re-offending being able to be managed in the community in those circumstances without supervision of the kind he had recommended.[396]
193 Despite his recommendations, Dr Wynn Owen was of the view that it was unlikely anything was going to change for the respondent within prison, which was an averse, unpleasant environment that did not suit the needs of a person with an intellectual disability. However, he could not recommend that the respondent be released, even into a controlled supervised environment, unless the respondent has had a period of stability within the prison environment and demonstrated a level of self-care.[397]
194 Although Dr Bannister's report and his evidence addressed matters that are relevant to the respondent's level of risk and its amenability to management in the community, Dr Bannister's role was to assess the respondent's progress in treatment, not to assess his risk of sexual reoffending.
195 Earlier in these reasons, I set out Dr Bannister's summary of the psychological therapy administered to the respondent during the two years since the 2017 review,[398] and his evidence, including the opinions he and Ms Williams had formed, concerning the respondent's behaviour during that period.[399]
196 Dr Bannister summarised Ms William's general account of the counselling sessions and her extended role as follows:[400]
Ms Williams reported that Mr Unwin's engagement was generally good, although on occasions was characterised by an initial period of argumentativeness. She described Mr Unwin was often a challenging client, and said his overall progress was slow partly because engagement was typically dependent on his frame of mind on any given day. Ms Williams explained that Mr Unwin's treatment was also influenced by his fractured personality, apparent executive functioning difficulties and mood. Additionally, she noted that the counselling was largely reduced to responding to various practical issues as they arose. As many of his difficulties centred around prison-based issues, she said she had concurrently attempted to educate prison staff about how to manage Mr Unwin more successfully.
197 Further, Dr Bannister referred to what Ms Williams' had said about a continuing need to focus on the therapeutic relationship, and her role in dealing with the respondent's emotional experiences:[401]
Ms Williams explained that Mr Unwin has an acute sense of not fitting in, from a general sense in the community setting, and more specifically from a service provision perspective. He is also apparently aware that others can find his behaviour to be estranging and antagonistic, and as such, he does not build relationships easily. Therefore, Ms Williams said that an ongoing focus of counselling was the therapeutic relationship, explaining that she aimed to provide corrective emotional experiences and set firm, explicit boundaries and expectations for behaviour.
Mr Unwin reported that he found his contact with Ms Williams beneficial, stating that she had a calming effect on him. He explained that it had been his request that he be allocated a female counsellor, as he felt that women knew comparatively more about risk factors than men. Mr Unwin outlined the main risk factors that he felt applied to him as "drugs, stress and coping strategies".
199 Dr Bannister said that the goals of the respondent's treatment were to address: (a) problems with stress management; coping and problem‑solving skills; (b) substance use; (c) sexual fantasy and sexual behaviour; and (d) improvement of independent living skills.[404]
200 Dr Bannister agreed with Dr Wynn Owen's assessment that the respondent's treatment gains had been 'incremental'.[405] He said that the respondent demonstrated some degree of insight and was able to make clear links between his substance use and maladaptive coping strategies.[406] Dr Bannister was of the view that the respondent was also able to articulate appropriate stress management strategies, including things he could do to manage stress in the community.[407] They were outlined in Dr Bannister's report as follows:[408]
Specifically, [the respondent] said that he usually attempted to avoid problems before they became issues for him, but otherwise had a range of strategies to deal with problems he faced. These included identifying and writing down alternative potential options for problem solving, avoiding negative solutions, ensuring he engaged in a planned, organised, purposeful and considered approach.
201 However, Dr Bannister noted that the respondent admitted that he often found it difficult to think in abstract terms.[409] Further, in Dr Bannister's opinion, notwithstanding the respondent's ability to articulate strategies, he showed less insight in relation to the application of those strategies, as his behaviour in prison suggested he found it much more difficult under extreme stress to apply those strategies.[410] I note also that the respondent told Dr Bannister that he had not considered what stressors he would likely encounter once released to the community.[411] Dr Bannister believed the respondent underestimated he stresses he would face. In my opinion, this underscores Dr Wynn Owen's concerns about the likelihood of the respondent failing to cope without preparation before release from detention for the types of stressors he would face upon release. I deal with this further below.
202 Regarding sexual fantasies and sexual behaviour, Ms Williams had reported to Dr Bannister that the respondent sometimes used sexual behaviour as a coping mechanism.[412] She also said that the respondent often claimed that his focus on breasts cleared his mind and calmed him.[413] He also told Ms Williams that, when he was stressed, the frequency of his masturbation would increase.[414] In addition, the respondent admitted to Ms Williams that he sometimes used violent and revenge-based fantasies involving women during masturbation.[415] However, he maintained that it was the imagined sexual behaviour itself rather than the non-consensual elements that he found arousing.[416] In any event, Ms Williams told Dr Bannister that she had discussed with the respondent ways in which he could incorporate consensual sexual activity in his fantasies.[417] Finally, Ms Williams reported that the respondent was able to describe only a limited understanding of the social nuance involved in requesting engagement in sexual activity.[418]
203 Dr Bannister viewed the respondent's admission that, during masturbation, he sometimes used violent and revenge-based fantasies involving women, as a positive factor, showing that the respondent is not interested in impression management and is more interested in being open and honest, relying on his therapeutic relationship with Ms Williams to confide such (potentially damaging) information.[419] He said that disclosure of that kind allows such issues to be discussed and become part of therapy, with a view to formulating protective behaviour.[420] However, the respondent demonstrated a limited understanding of how he might go about making a connection with someone, if he wished to have an intimate relationship with them.[421]
204 In his interview with Dr Bannister, the respondent identified as bisexual, and said that his 'current' masturbatory fantasies involved both men and women.[422] However, he claimed that, if released into the community, he would seek out male prostitutes and 'would likely not seek out sexual activity with women as he was largely averse to penetrative sex with women'.[423] He also claimed that it was easier for him to form an emotional connection with a male partner.[424] He told Dr Bannister that he no longer focussed on women's breasts, because, while it had been a longstanding fixation since he was 12 years old, 'he had now become concerned that acting on these thoughts could potentially see him remain in prison indefinitely'.[425]
205 Dr Bannister was referred to Dr Wynn Owen's risk scenario, and was asked whether the respondent's understanding of social nuance should be an area on which to concentrate, given that his understanding in that respect is limited, even after intensive counselling of 150 sessions.[426] Dr Bannister said it should be part of the respondent's treatment, but he speculated the respondent's limited understanding of social nuance in requesting intimate engagements is likely to remain for as long as he is in prison, as he has no lived experience to which he can connect what he learns, and he is relying on abstract concepts.[427]
206 In cross-examination, Dr Bannister agreed that the respondent had come as far as he could in a custodial setting from a therapeutic perspective, given his intellectual limitations.[428] In his opinion, the respondent was not likely to make any further significant changes.[429] He agreed that, if any progress was to be made in the next 12 months, it would be further consolidation of his gains, rather than any dramatic steps forward.[430] He agreed that the next step in the respondent's therapy would involve 'changeable community living', in which the respondent would experience an event in the community, such as the stress of running out of money for the week, and would then talk about it with the psychologist in the 'immediacy of experiencing that event'.[431]
207 In re-examination, Dr Bannister agreed that, while it was reasonable to expect that the respondent would not make any more therapeutic advances in custody, it was also reasonable to expect that he should not detract from those advances.[432] Dr Bannister agreed that, ideally, a therapeutic goal could be to 'maintain consistency over the advances that [the respondent] had made', but he thought the respondent's capacity to do that was in question.[433]
208 Dr Bannister referred to Ms Williams' view, which he shared, that a mentor for the respondent would be positive as part of a support network, and would assist with the transference of learned behaviour to actual behaviour.[434] The role of his mentor would be to provide practical support, but also to act as a positive influence in the respondent's life to encourage him to make good decisions.[435] Dr Bannister said it would be ideal for the respondent to have a high degree of trust in the mentor in the same way he seems to trust Ms Williams. He would need to have some familiarity with that person over a period of time to build that trust.[436]
209 In his report, Dr Bannister outlined the respondent's attitude to having a mentor as follows:[437]
... He said he did not see the need for a mentor. He elaborated that it was his understanding a mentor had previously been recommended by a psychologist, and resentment about this was the reason he had withdrawn from individual counselling on the occasions that he had. He explained in detail why he felt a mentor was unnecessary for him, saying that he felt he had enough supports and did not want someone to 'follow [him] around like a leech'. He said the only benefit he could see in such an arrangement was to have someone to talk to, but then noted that Ms Williams served that purpose for him. However, he also conceded that it would be a positive step if someone could be found to support him, as he was aware he did not appear to fit the criteria of many avenues of assistance available. Nevertheless, he said that once in the community he would 'prove' that he did not need practical assistance.
210 In evidence, Dr Bannister said he did not think that the respondent's view that a mentor would be redundant and an inconvenience to him would necessarily prevent the development of trust in such a mentor.[438] He did not consider the respondent's view to constitute active resistance to the idea of having a mentor, because the totality of what the respondent had said demonstrated an understanding that mentoring would likely be required, and he said he would appreciate the opportunity to prove that he did not need a mentor.[439] Dr Bannister also considered that the respondent's desire to be released from prison was stronger than his objection to having a mentor.[440]
211 In cross-examination, Dr Bannister agreed that the respondent had expressed a willingness to comply with supervision and had not given any indication that he would subvert the role of supervision.[441] In re‑examination, Dr Bannister was referred to the passage in his report concerning the respondent's attitude to having a mentor. He was asked whether that might suggest an inclination to subvert supervision. Dr Bannister did not think so, having regard to the totality of what the respondent had said, for reasons outlined at [210] above.
212 Of course, while the respondent's attitude to supervision is an important consideration, it does not necessarily reflect his ability to comply with supervision, which requires a consideration of his behaviour more broadly and the degree of insight he has into the factors that put him at risk of serious sexual offending.
213 Dr Bannister said that, as a provider in relation to practical living skills had not been allocated to the respondent, Ms Williams took the initiative to develop the respondent's skills in that area. According to Dr Bannister, while that is not typically a focus of psychological intervention, Ms Williams was well-placed to achieve good outcomes in that area because of her existing therapeutic relationship with the respondent.[442]
214 In cross examination, Dr Bannister was asked about Dr Wynn Owen's recommendation that the respondent should be required to demonstrate his capacity for self-care and independent living skills over a minimum period of three months. Dr Bannister said that this was not something Ms Williams had recommended, and he thought there was enough information to suggest that the respondent may well be able to live independently.[443] He said there was no indication from Ms Williams that the respondent did not have adequate skills in relation to cooking or personal hygiene.[444] When asked if there was 'anything about a three-month independent living assessment that he would necessarily gain that he does not already have, Dr Bannister responded: 'I would say probably not. No.'[445]
215 In re-examination, Dr Bannister clarified that he perhaps did not share Dr Wynn Owen's view about the 'practicality of that three month period' and what it would demonstrate.[446] He said that his opinion that the respondent has some capacity to live independently was based on the information that was available to him,[447] namely, that the respondent had worked in the kitchen and done some cooking at Karnet Prison Farm, and that Ms Williams had undertaken some work with the respondent in relation to practical skills in some therapy sessions.[448] Dr Bannister also thought that the assessment by the occupational therapist had identified relevant skills.[449] However, the evidence in these proceedings in relation to the occupational therapy assessment, as set out at [63] above, was that it occurred at the start of the review period and that the occupational therapist was of the view that, at that time, the respondent would likely require daily support for activities such as meal planning, shopping, meal preparation and using transport.
216 I explored this issue further with Dr Bannister, noting that the demonstration of skills in cooking that Dr Bannister had referred to had occurred while the respondent was in Karnet Prison Farm in 2018, and there was an indication in the logs that after a short period, the respondent became bored of the activity and said he did not wish to engage in it any longer. I asked Dr Bannister whether that was really indicative of a capacity to be able to do that sort of activity independently in the community. He responded:[450]
No. It's, realistically, not - not enough information in and of itself. That's accurate.
217 I also noted that the available information indicated that the respondent had demonstrated an ability to undertake the tasks assigned to him under supervision. I asked Dr Bannister whether the fact that the respondent carried out those tasks under supervision necessarily indicated a capacity to live independently and carry out those tasks once he was in the community. Dr Bannister responded:[451]
218 Of course, the ability to sufficiently mitigate the respondent's risk of sexual reoffending in the community, so as to ensure adequate protection of the community, will depend in part on his ability to manage his stress, which has been a precursor to his offending. As I said above, the respondent was able to articulate to Dr Bannister things he was able to do to manage his stress, including things he would do in the community. However, it was Dr Bannister's view that the respondent underestimated the stress that he would likely experience in the community, and overestimated his capacity to deal with things when they happen, or the stress that he might experience.[452] In Dr Bannister's opinion, as the respondent operates in concrete terms, it is probable that he would not reach a good understanding of those matters prior to his release, but once he was transferred to the community and experienced that stress directly, he would then have an acute sense of it.[453] In Dr Bannister's opinion, that informs the level of support that the respondent would need upon release, rather than what needs to be done prior to release.[454]
219 Dr Bannister referred to the respondent's 'relapse prevention plan', which sounded very much like 'something he had consolidated on his own'.[455] The plan, which covers a number of issues, including the respondent's plans for employment, which went beyond what he proposed to Dr Wynn Owen, is described in Dr Bannister's report as follows:[456]
[The respondent] said that his primary strategy was to keep himself engaged in meaningful activity and prioritise securing an occupation. He suggested a range of potential options he had considered for employment, including opening a café using his funds held with the Public Trustee, buying and reselling items for profit on various internet sites, selling second hand purchased computer games to the Department of Justice and professional gambling. He said that ultimately he would take any work that became available to him. Mr Unwin also stated that he was confident that he would not reengage in solvent abuse. He explained he would do this by making a shopping list to focus his purchases at the supermarket and enable him to avoid the "glue section". He also said that because in the event he was released to the community he would likely have a curfew, he would not come into contact with "sniffers, because they only come out at night".
220 An aspect of the respondent's plan that was referred to in the section of Dr Bannister's report dealing with support networks was that people he would befriend at male prostitution establishments could 'call in and check up on [him]'.[457] Dr Bannister referred to that matter as one of the 'odd aspects' of the respondent's relapse prevention plan, which may not be practical.[458]
222 Notwithstanding Dr Bannister's reservations about the respondent making any further treatment gains, referred to at [206] above, he recommended that Ms Williams maintain her engagement with the respondent, as long as he continues to be ame[461]le to it.461 He expected that any further treatment gains would again be [462]remental.462 He also recommended that psychological treatment only form one part of the respondent's treatment, as he would also benefit from developing positive relationships with those tasked with his supervision and able to prov[463] support.463 Dr Bannister said that, while the respondent gets that support from COMU and from Ms Williams, he does not necessarily get it from pris[464]officers.464 If the respondent remained in detention, Ms Williams would continue her approach of talking to prison staff and explaining the challenges that the respondent might present, and the best way they might respond to that. However, he expected a mixed outcome from such intervention by Ms Williams, as, in Dr Bannister's opinion, the respondent does not appear to have been treated any differently to any other prisoner by prison officers in the two years since the [465]7 review.465 In my opinion, the records I have discussed in detail above, do not support such a generalised characterisation of the approach that had been taken by prison officers. It may be accepted that not all officers were sensitive to the challenges and appropriate responses referred to by Dr Bannister, but there are many examples where officers appear to have been sensitive to those matters and acted in accordance with the guiding principles to which Jenkins J referred in Unwin [No 7]. The difficulty, as Dr Wynn Owen had noted, was a lack of consistency among prison staff.
223 Dr Bannister was of the view that Ms Williams had done the best job that she was able to do while working with the respondent, as the need to contain him emotionally, and his difficulty in relating concepts to actual lived experience had created challenges.[466] Dr Bannister did not recommend anything that had not already been part of her therapeutic approach, and he expected that, if Ms Williams maintained contact with the respondent, she would maintain an 'agile' therapeutic response, changing her approach as necessary.[467]
(viii) Evidence of Kyle Jarvie - Community Supervision Assessment
224 Mr Jarvie gave evidence regarding the respondent's progress since the last review, and the supports the respondent would require if released into the community, as set out in the proposed community supervision plan.[468] In the event that the court found the respondent should be released on a supervision order, a draft order was prepared to reflect the minimum conditions considered necessary by COMU for the adequate protection of the community. A further draft, which substantially reflected the draft in Mr Jarvie's report, was presented to the court by the applicant at the hearing.
225 A key issue in determining whether the respondent could be released on a supervision order is the availability of suitable accommodation. It was determined in Unwin [7] that, if the respondent were to be released on a supervision order, he would need supported accommodation, and it was a recommendation of Jenkins J that 'concerted efforts should be made to obtain supported accommodation and mentoring services for [the respondent] closer to the next review'.[469]
226 Mr Jarvie reported that attempts to find suitable accommodation commenced in September 2019, with enquiries being made with seven providers from 6 September 2019. I will not identify the organisations approached, other than UCW, but will summarise the outcomes.
227 The first organisation, which provided supported accommodation, had also been approached in 2017, at which time they had said they were unable to offer the respondent a placement because of the vulnerability of staff and residents. When approached on 11 September 2019, the proposal was put before the Board of the organisation to determine if circumstances had changed to allow further consideration of the respondent's application. Mr Jarvie reported the response as follows:[470]
The organisation advised that given Mr Unwin's extensive history and period of incarceration, they would only consider him for placement if he were able to demonstrate a period of time in the community without offending, display stability in the community and evidenced linkage to recovery including alcohol and other drug services during this time. [The supported accommodation facility] also noted that their service is capped at 12 months tenancy.
228 A second organisation, which did accept referrals straight from custody, did not accept convicted child sex offenders. A third organisation did accept such offenders but took a cautious case-by-case approach and required applicants to 'evidence five to six weeks in the community substance free prior to entering rehabilitation'.[471] A fourth organisation, which provided a long term residential facility which caters to people with mental health issues said they would consider 'one off' sexual offenders, but would not accept referrals of recidivist sexual offenders.[472] A fifth organisation (reached as a result of approaches to some hostel services) provided a 'Street to Home Program' which assists with maintaining long-term accommodation. That organisation confirmed that it did not have exclusions based on convictions, but they were a crisis service only, which required a client to attend on the day to check availability (there being no waitlist), and entry into the program was on a 'first come first serve' basis.[473] The sixth approach referred to by Mr Jarvie was to a transitional accommodation facility run by a charitable organisation. That facility indicated it was at its 'quota' for registered sexual offenders.[474] In any event, Dr Wynn Owen had advised Mr Jarvie that the premises were not ideal for the respondent, having regard to the location and concerns about the capacity to monitor the respondent's interactions at the premises.[475]
229 The respondent had previously been engaged with Outcare for the DSO Supported Accommodation Program. Mr Jarvie reported that contractual changes had occurred, and the respondent was referred to the same programme, which at the time of the review was facilitated solely by UCW.[476] UCW indicated that the respondent was ineligible, because the programme is managed under the community housing guidelines, and the respondent's savings exceeded the limit for eligibility.[477] However, with the respondent's consent, UCW agreed to assist to find the respondent private accommodation and, by the time of the review, three applications had been completed.[478] However, difficulties were identified:[479]
Due to the lack of income history, rental references and stigma associated with the classification and offending of someone subject to the [DSO Act], access to the private rental market can be a difficult task. In addition to this, once a property is identified, the assessment process and approval by the Court, even if expedited, can often mean that timely response to acceptance can also disadvantage accommodation options as properties would need to be secured and held pending release.
230 The respondent's community support network is restricted primarily to his mother. Although she has had a problematic relationship with the respondent, she had previously obtained accommodation and leased it in her own name, with the intention that the respondent could move into the home.[480] However, as the respondent was not released on the previous occasion, she was left to bear the cost of the rental property for six months, and she did not want to do the same on this occasion. However, she agreed to look for rental properties and apply on his behalf, with a view to the respondent signing the lease if an owner approved the application.[481] Mr Jarvie reported that the respondent's trust manager had agreed to guarantee that 'the costs to the landlord of the property' would be covered if the respondent was not released. A potential property had been identified but had yet to be assessed for its suitability.[482]
231 However, even if in other respects the property was considered appropriate, that would only be part of the equation, if the respondent required live-in support.
232 In evidence, Mr Jarvie said that, at the time of the hearing there was accommodation available to the respondent in the community that had 24-hour or live-in support.[483]
233 As I noted earlier in these reasons, Mr Jarvie said there were some psychiatric facilities in the community that had 24-hour live-in support, some of which were available to persons who were subject to an order under the DSO Act, but generally there was a prerequisite that the person had a primary diagnosis of a mental health issue.[484] In the respondent's case, if accommodation was available, it would be necessary to engage a service provider for live-in support.[485] UCW properties do not have live-in support unless otherwise provided by another service provider.[486]
234 I have referred above, at [94], to the history of applications made on the respondent's behalf for access to the NDIS, to be able to fund live-in support in the community.
235 Mr Jarvie was referred to the evidence of Dr Wynn Owen, in which he disagreed with the NDIA assessment that the respondent's cognitive deficits are due to solvent abuse. Mr Jarvie said he intends to re‑submit a referral to the NDIA, using Dr Wynn Owen's report as evidence.[487] He said the process could take anywhere from four to nine months.[488]
236 Mr Jarvie said that the type of '24/7' support Dr Wynn Owen envisaged for a period of at least six months in the community could be made available through NDIS funding and has been provided to certain persons subject to supervision orders under the DSO Act previously. In the respondent's case, the Interchange agency, which is a registered NDIS provider, is willing to provide that support on a private basis, if it is not available through NDIS funding.[489] Mr Jarvie agreed that, potentially, Interchange could be used to supplement services provided by the NDIS, if the latter did not include 24-hour support.[490]
237 Mr Jarvie said the NDIS can fund assistance in areas including transport, living, mentoring, health and wellbeing. The NDIS does not provide funding for accommodation, nor for any services involving the management of risk.[491] Mr Jarvie said there are no services in the community that manage risk, other than the role played by DCS and WA Police through supervision and monitoring, and the adjuncts to those processes, such as urinalysis testing, psychological counselling, and check-ins with Community Corrections officers.[492] In cross‑examination, Mr Jarvie agreed that DCS will fund that management only to a certain level.[493] He agreed that it is a policy decision of DCS not to fund mentoring services, accommodation or any shortfall in the funding of medication (such as SSRI medication) for persons who are subject to an order under the DSO Act in the community.[494]
238 When I sought clarification from Mr Jarvie about the role an NDIS funded support worker would have in the management of risk in the event, for instance, of a person who is subject to a supervision order deciding in the middle of the night to leave the premises, in breach of a curfew, Mr Jarvie said they would be expected to contact COMU or the 24-hour monitoring service, but they could not physically intervene.[495] He said that such service providers are given training on how to deal with a person subject to a supervision order and the conditions of the order, but they are not specifically trained in the area of risk management.[496] In the example of a person breaching their curfew, the support worker may try to persuade the person to stay and may provide them with insight into the possible ramifications of their actions, but they would not physically restrain the person.[497]
239 As I discussed earlier in these reasons, a guardianship order was sought in 2018, but it had been determined that the presumption that the respondent was able to make his own financial decisions was not displaced, and the application would not proceed.[498] Mr Jarvie said he intends to reapply for a guardianship order for the respondent, based on Dr Wynn Owen's evidence that guardianship and administration would allay concerns about the respondent's vulnerability to losing money very quickly.[499]
240 In cross-examination, Mr Jarvie said that, while the money held for the respondent by the Public Trustee is held in trust, the respondent does have some say in what the money is spent on.[500] However, the respondent is not able to withdraw money while he is in custody, and there are some limits as to what he can spend the money on.[501] For example, Mr Jarvie did not believe the respondent could request '$90,000 in cash tomorrow'.[502] However, as the respondent is not subject to an administration order, Mr Jarvie was not sure whether those limits would apply if the respondent were in the community.[503] Although Mr Jarvie's understanding was that the role of the Public Trustee was to assist the respondent with expenditures he wished to make with the money, the evidence at the 2017 review, referred to at [44] above, suggested that the Public Trustee had a greater role in determining whether funds were being spent appropriately, even to the point of having the respondent repay[504]me funds.504 Nevertheless, approval was required from the respondent before funds would be expended. Mr Jarvie noted that, in the lead up to this review, after initial consultation as to whether the respondent could spend funds on accommodation and mentor services, the public trust manager indicated to Mr Jarvie that the respondent would need to give approval for those funds to be spent for those purposes, which approval the respondent subseq[505]tly gave.505
241 In his report, Mr Jarvie had raised the concern that, as the respondent is not subject to a Guardianship Order or Administration Order, if he were released, 'he may misspend the funds or withdraw consent for the money to be spent on mentoring or accommodation'.[506] In cross‑examination Mr Jarvie said that the mentoring organisation from which mentoring services have been sought for the respondent provides financial counselling services, and has the ability to assist the respondent in the prudent management of his funds.[507]
242 The history concerning the respondent's placements in Karnet Prison Farm and Bunbury Regional Prison was discussed above in the outline of developments since the 2017 review.
243 Mr Jarvie said that, in order for the respondent to be transferred to Karnet Prison Farm, he has to waive his protection status, as there are no protection facilities at that prison. Consequently, if he were to require segregation from other prisoners, it may involve his placement in a punishment cell.[508] That had occurred during the respondent's time at that prison.
244 Mr Jarvie said he had approached management at Karnet Prison Farm to see whether they would be willing to accept the respondent again at that facility. Given the respondent's previous failed placements at that prison and at Bunbury Regional Prison, they were not prepared to accept him at that stage.[509] Mr Jarvie was of the view that, before a further application could be made for such a placement, one would need to be confident that the respondent could be managed in that environment, which would require a change of circumstances or the implementation of measures that would mitigate the issues previously experienced.[510]
245 Mr Jarvie identified a possible alternative option to a further placement at Karnet Prison Farm, namely transferring the respondent to a self-care unit in a protective section of Acacia Prison, which would not require his security level to be changed.[511] That option would require the prison to undertake its own assessment to determine whether the respondent should be accepted into such a unit.[512] If self‑care became too onerous for the respondent in that setting, there is another setting within the protective section of Acacia Prison that is not self-care, so that it may not be necessary to return the respondent to Casuarina if he experienced difficulties.[513]
246 As to whether the respondent could continue to have counselling from Ms Williams for consistency of therapy, if he were transferred to Acacia Prison, Mr Jarvie could not confirm whether Ms Williams would be able to facilitate such an arrangement, having regard to the need for travel to the prison, which is approximately an hour out of Perth. However, he presumed that it would not be an issue, given that Ms Williams had been able to travel to Bunbury Regional Prison and Karnet Prison Farm when the respondent was in those facilities.[514] I have proceeded on the basis that the arrangement could be facilitated and counselling would continue with Ms Williams.
247 Mr Jarvie was cross-examined regarding the respondent's consistency of psychiatric care, in light of the recommendation of Jenkins J at the last review that, in the respondent's management over the next two years, it would be beneficial if Dr Wynn Owen was consulted over his care and treatment.[515] Mr Jarvie said no attempts were made by DCS to consult with Dr Wynn Owen in that regard, because there would be a service fee, which would have required approval.[516] Mr Jarvie accepted in cross-examination that the respondent had not had consistency of psychiatric services, that there had been misunderstandings in the medical notes, and that this was a failing on the part of DCS.[517] However, in re-examination he said that he had had communications with prison officers about 'keeping an eye' on the respondent's medication.[518] An email in the records also showed that he was in discussion with a senior medical officer in September 2019 about the respondent's refusal to attend a medical appointment and the fact that he had agreed to recommence on Sodium Valproate.[519] The point of this evidence was that some attempt had been made by the respondent's CCO to monitor his compliance with medication and his medical appointments. That is also evident from the developments I outlined above in relation to his medical treatment. Mr Jarvie noted that he had not been the respondent's CCO for the whole of the review period of two years; the respondent had had three CCOs.[520]
248 Nevertheless, it must be recognised, as Mr Jarvie accepted, that the system had not fulfilled the expectation in Jenkins J's recommendation.
249 In relation to psychiatric services, Mr Jarvie explained that each facility is allocated funding for a psychiatrist for that facility.[521] He said that, as at the time of the review, there would be no expenditure from within the Department's general budget to allow for consistency in the provision of psychiatric services to the respondent, if he was being transferred between prisons.[522] However, Mr Jarvie could not rule out the availability of such funds in the future.[523]
250 It is not necessary to outline the proposed conditions for a supervision order which was included in Mr Jarvie's report. The conditions are extensive and would involve significant restrictions and constraints on the respondent's behaviour and movements within the community. Those movements would be monitored by means of a GPS device. However, there would remain a significant degree of trust reposed in the respondent to comply, and the efficacy of supervision and counselling sessions to monitor his behaviours and thinking would be dependent on the respondent being truthful and forthright about those matters.
251 The applicant's submission, based primarily on Dr Wynn Owen's assessment, was that the respondent remained a serious danger to the community and that the court could not be satisfied that the respondent would substantially comply with the standard conditions of a supervision order, nor would a supervision order provide adequate protection of the community. Accordingly, the CDO should be affirmed.
252 The respondent acknowledged that, in the absence of suitable accommodation, the respondent could not be released on a supervision order, even if the court considered a level of support or supervision less than proposed by Dr Wynn Owen would provide adequate protection of the community. The respondent's submissions were primarily directed at the perceived deficiencies in the way in which DCS and prison staff had managed the respondent, having regard to the recommendations of Jenkins J in Unwin [No 7], particularly the guiding principles referred to by her Honour. The respondent submitted that there had continued to be a punitive approach, rather than a therapeutic approach, and that was not conducive to progress. It was also submitted that the recommendations of Dr Wynn Owen for the use of the logs had not been followed consistently, such that the opportunity to gauge the precipitants of the respondent's negative and positive behaviours was lost. It was also submitted that the failure to implement a system for consistency of psychiatric treatment or consultation with someone like Dr Wynn Owen had resulted in misunderstandings of what was required in terms of medication, and that the respondent's vacillating attitude to his medications might be understood in that context.
253 In dealing with the evidence of the witnesses, I have identified other issues that were raised by Senior Counsel for the respondent in respect of his management during the review period.
254 At the conclusion of submissions on the issues to be determined, I invited submissions from the parties in respect of the recommendations that should be made for the further management and treatment of the respondent, if the CDO was affirmed. The recommendations at the end of these reasons incorporate matters put forward in those submissions.
255 Except to the extent that I have indicated otherwise in these reasons, I was satisfied that the evidence of Dr Wynn Owen, Dr Bannister and Mr Jarvie was acceptable and cogent. In relation to Dr Bannister's evidence, I also accept as reliable what Ms Williams reported to him in respect of her treatment of the respondent, including his behaviours and statements made by him to Ms Williams. My findings are also informed by the documented evidence that I have outlined in detail.
256 I was satisfied, based on Dr Wynn Owen's assessment, which I considered to be supported by the evidence overall, that the respondent remained a high risk of committing a sexual offence. Having regard to the offending of which he has been convicted previously, that amounts to a high risk of committing a serious sexual offence.
Findings in respect of developments in the respondent's circumstances
257 I was satisfied that over the period of two years since the 2017 review, the respondent had made incremental gains in his treatment. I accept that the fact the respondent did not return any positive results for drug use and the further fact that he did not engage in sexualised behaviour over the telephone during that period are significant changes, and reflective of the incremental gains.
258 However, the respondent's behaviour over the period of two years amounted to a similar cycle to that he had displayed before the 2017 review. Attempts to give him opportunities in self-care and to gain practical living skills were again thwarted by his self-defeating behaviours. The respondent's behaviour over the period was aptly described by Dr Wynn Owen as being erratic and cyclical, involving periods of relative stability, followed by periods of dramatic instability. There were times when he displayed defiance towards persons in authority and non-compliance with rules and directions.
259 I was satisfied that, while the respondent had been able to articulate stress management strategies, he had shown less insight in relation to the application of those strategies, and his behaviour in prison suggested he found it much more difficult under extreme stress to apply those strategies. I was not satisfied that the respondent had the internal resources to manage his stress and avoid decompensating in a manner that could lead to sexual re-offending, as he had done in the past.
260 The evidence established that the respondent continued to have a sexual drive, and again demonstrated, when he was in Karnet Prison Farm, a propensity to fantasise about female prison officers and to try to behave in a sexual way in front of one of them. This is part of the cyclical behaviour to which I have referred. While I accepted Dr Wynn Owen's and Dr Bannister's assessment that the respondent's admission to the female prison officer concerning his plan have her see him masturbate may be regarded as a positive demonstration of his preparedness to be honest and open about his sexual thinking and sexual behaviours, there were other instances in the evidence that demonstrated his inconsistency in that regard, even within what he said to Dr Wynn Owen during the assessment interview.
Findings relevant to the appropriateness of supervision in the community
261 I was not satisfied that the respondent would always be open and honest during supervision sessions or therapy in the community, if he had engaged in non-compliant or problematic behaviour or had thoughts that might put him at risk of committing a serious sexual offence, and he thought the truth might put him at risk of returning to prison. His incremental gains may indicate that he is capable of making advances in understanding that honesty and openness is necessary to enable others to assist him. He has demonstrated that at times with Ms Williams and with Mr Jarvie and prison officers, but at other times he has not been honest or has refused to engage, for instance by not attending appointments. At the very least, the respondent should work towards consistency in attending and engaging in appointments as required, to demonstrate that he would comply with a supervision and therapy regime if released.
262 The respondent's attitude towards having a mentor has been instructive in considering the way in which he might approach supervision in the community. While he has appeared to be resigned to the possibility that he may benefit from mentoring, his overall vehement rejection of the idea, to the point of saying he did not want to have a 'leech' following him, did not augur well for the efficacy of mentoring or supervision in the community, notwithstanding Dr Bannister's view that the respondent would be capable of forming a good relationship with a mentor. Nor did it augur well for the prospect of the respondent having support workers with him 24 hours per day. The reinforcement with the respondent of the benefits of mentoring and supervision was, in my view, an area that required further attention in therapy and supervision while the respondent remains in custody.
263 I was satisfied by Dr Wynn Owen's evidence that the plan he proposed, involving a minimum of three months in self-care in prison followed by at least six months in '24/7' supported accommodation, if the respondent had demonstrated adequate practical skills for independent living, was a necessary and appropriate means of ensuring the community would be adequately protected if the respondent were to be released on a supervision order after further detention. I preferred Dr Wynn Owen's opinion in that regard over Dr Bannister's opinion, for the reasons I outlined above. In my view, Dr Bannister ultimately acknowledged that the basis of his opinion that the respondent already had independent living skills was not sound.
264 The evidence of the assessment made by the kitchen supervisor at Karnet Prison Farm in the period of April to October 2018 was that the respondent had performed his tasks well and, at that stage, had the skills required for self-need catering. However, he had worked in the kitchen under supervision, and he had lost interest in that work. Further, some time had elapsed by the time of the review, and there was no evidence to suggest that he had retained the skills he had demonstrated in Karnet Prison Farm. Underlying Dr Wynn Owen's proposal was the need for the respondent to demonstrate such skills on a consistent basis for a prolonged period. That said, the respondent should be commended for his performance in the kitchen at Karnet Prison Farm and should be encouraged to again apply himself with a view to acquiring the necessary skills.
265 I was satisfied that Dr Wynn Owen's recommendations in relation to enhancing the respondent's independent living skills and self-care were appropriate and should be implemented. They are reflected in the recommendations that follow.
266 For the reasons I have outlined so far, I was not satisfied that a supervision order would provide adequate protection of the community against the high risk of sexual re-offending posed by the respondent, in the absence of the constant form of supervision proposed by Dr Wynn Owen, at least in the early stages of release. Of particular importance was Dr Wynn Owen's opinion as to the imminence of the respondent committing a sexual offence. While that assessment was made on the basis that the respondent would not be subject to restrictions, it also informs the question of what level of restrictions would be required for adequate protection of the community. I accepted Dr Wynn Owen's evidence that the imminence of offending would be related to how the respondent managed the stress of a transition into the community, and that, unless the respondent was closely monitored, one could foresee him becoming stressed within a matter of weeks to months, which could rapidly lead to substance use and then re-offending. Given the deficits in the respondent's ability to implement stress management strategies, I was satisfied that the prospect of rapid decompensation was a real possibility in the absence of close and constant support, at least in the early stages of release into the community.
267 In my opinion, the risk that the respondent would re-offend in a similar manner to his past offending, with the potential for significant trauma to a victim, was unacceptable without the sorts of protective measures recommended by Dr Wynn Owen.
Findings in respect of further management of the respondent
268 I was also satisfied that recommendations made by Dr Wynn Owen in his report and his evidence concerning the further medical and psychiatric treatment of the respondent, and by Dr Bannister in his evidence in relation to the further psychological treatment of the respondent, were sound and appropriate for the further management of the respondent. They are incorporated in the recommendations that follow. They include recommendations about the need for consistency in the provision of psychiatric treatment.
269 Although I considered that the DCS 'Offender Notes' and supervision logs reflected to some extent the type of record that Jenkins J had intended they should, there remained room for improvement, particularly in relation to consistency. I was satisfied that the recommendations of Dr Wynn Owen as to the approach that should be taken were apt, and I have included them in the recommendations that follow.
270 I was satisfied that efforts had been made, at least by some prison staff, to approach the management of the respondent in a manner that was consistent with the guiding principles set out by Jenkins J. However, having regard to the evidence I have outlined, I accepted that there was some force to the respondent's submission that there continued to be deficiencies in that regard and that the court should reinforce the guidelines. I have done so in the recommendations that follow.
271 In summary, the same issues that needed to be addressed at the conclusion of the 2017 review, still needed to be addressed at the time of the present review. Further, the recommendations made by Jenkins J in Unwin [No 7] remained apt and are reflected in the recommendations that follow.
Conclusion - continuing detention order affirmed
272 Based on the evidence presented at the hearing, I was satisfied to a high degree of probability that the respondent remained a serious danger to the community, and that it was likely he would continue to be a serious danger to the community for the foreseeable future.
273 Based on the evidence of Dr Wynn Owen, I was satisfied that, to adequately protect the community against the unacceptable risk that the respondent would commit a serious sexual offence, the respondent would need to be subject to a very intensive form of supervision, which would essentially require someone to be with him 24 hours a day, seven days a week. Such support was not available to the respondent in the community at the time of the hearing.
274 In any event, I was not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order, nor was I satisfied that additional conditions would provide adequate protection of the community, having regard to:
(1) the respondent's behaviours over the previous two years, which showed continuing problems with emotional regulation and, from time to time, with his attitude to authority and compliance with prison rules and directions;
(2) the deficits that remained in his insight into his offending and the risk factors for such offending;
(3) the deficits that remained in his understanding of the stresses he is likely to experience in the community, and his overestimation of his capacity to deal with such stresses;
(4) the respondent's simplistic, and in many respects unrealistic relapse prevention plan;
(5) the deficits that remained in his daily living skills;
(6) the fact that I was not satisfied the respondent would be consistently open and honest in supervision and therapy within the community;
(7) the respondent's generally negative attitude towards having a mentor; and
(8) the respondent's refusal from time to time to attend for medical appointments, meetings with his CCO and treatment sessions, notwithstanding that generally he had been compliant and that he had a good therapeutic relationship with Ms Williams.
275 As was the case at the time of the 2017 review, the respondent's prospects of being released on a supervision order continue to depend largely on the availability of supported accommodation with live-in support workers available to support him at any time of the day. That will require funding. The respondent had been considered not to qualify for NDIS funding at the time of the hearing. One of the recommendations that will follow is that a fresh application should be made on behalf of the respondent for NDIS funding, based on the evidence that was given by Dr Wynn Owen. It is fundamental that the respondent be given every opportunity to access any funding that might be available, having regard to his cognitive deficits, which might properly be regarded as a disability, in order that steps can be taken in the future to put in place the kind of supervision to which Dr Wynn Owen was referring.
276 However, I was satisfied that, even before release on such supervision, the respondent would need to demonstrate within a self‑care environment in prison that he had acquired and would be able to implement basic living skills that would reduce the potential for stresses to build in the community.
277 It followed from the above conclusions that the CDO had to be affirmed.
Recommendations for further management and treatment
278 At the time of affirming the CDO on 30 October 2019, I was of the view, based on that evidence, that there were a number of matters to which attention must be given, and there were steps which should be implemented in the further management and treatment of the respondent, to enhance the prospects that his risk could be adequately managed in the community by the time of the next review, or before then, in which case the respondent would be able to bring an application for an exceptional review.
279 I said I would provide the parties with written recommendations in relation to those matters, in advance of publishing detailed reasons, and that it would be expected that those recommendations would be made available to the Department and those who are responsible for the care, control and treatment of the respondent. Those recommendations were provided to the parties on 30 November 2019 and are set out below.
280 Most of the recommendations outlined by Jenkins J at [108] - [116] of Unwin [No 7] continue to be relevant to the control, care and treatment of the respondent. The recommendations that follow draw upon her Honour's recommendations and build upon them, having regard to the evidence in the present review.
(1) Guiding principles in the management of the respondent
281 It is necessary for those responsible for the management of the respondent while he remains in custody to be guided by the principle that his detention is for the control, care and treatment of the respondent, and not by way of punishment. 'Control' in this context means control of the risk that he may commit a serious sexual offence. That is achieved by his detention in custody, which is necessary for the adequate protection of the community. The concepts of care and treatment are concerned with the respondent's welfare and rehabilitation.
282 It must be accepted that the Department has a responsibility for maintaining the good order of the prison in which the respondent is detained, and the welfare of other prisoners and staff in that prison, and the respondent must comply with such rules and regulations as are in place for those purposes.
283 However, in dealing with the respondent through its employees, the Department should bear in mind the guiding principle to which I have referred and, in particular, have regard to the respondent's therapeutic needs and Dr Wynn Owen's recommendation that there be an emphasis on positive reinforcement of good behaviours.
284 It continues to be important that the respondent be given an opportunity to demonstrate that he is capable of stable living and self‑care in a minimum security prison. If circumstances permit and the respondent is assessed to be suitable for such a transfer, he should be given a further opportunity to move into a self-care unit. That is so, even though, if he is released on a supervision order in future, it is almost inevitable that it would be subject to the respondent having a support worker with him the whole day, seven days a week, for a period of time to be determined. As Jenkins J noted in Unwin [No 7], the difficulty of successfully achieving a move to self-care should not be underestimated, given previous attempts. However, the opportunity should be provided, if possible, so that the respondent can build his capacity to be psychologically stable and contribute to the maintenance of his well-being in a more independent living arrangement in the community.
285 The respondent should be encouraged to apply the skills he has developed since the previous review in respect of maintaining personal hygiene, cleanliness of his living environment, proper hygiene in the handling and preparation of food, nutrition, and social interactions. As before, if deficits are identified in his ability to care for himself and his social interactions, he should be given the opportunity to learn (or re‑learn) appropriate skills and to practise them.
286 In turn, the respondent should strive in the period until the next review to demonstrate that he is capable of a reasonable degree of self‑care and stable behaviour in a less restrictive and more independent living environment, and that he will be able to cope and manage the change if he is released into such an environment on a supervision order. The respondent will demonstrate that capacity, in part, by consistently applying skills of the kind referred to in the previous paragraph. Ideally, if he is in the self-care unit, he would do so over a period of three months, but he should strive to demonstrate stable behaviour on a continuing basis prior to the next review, irrespective of where he is detained in the prison.
287 The respondent should be provided with written goals in simple terms identifying practical behaviours to assist him to demonstrate a reasonable degree of self-care and stable behaviour. Such practical behaviours would include those necessary to maintain good personal hygiene and a clean cell, healthy habits in relation to the preparation of food and nutrition, and good social relations, including the manner in which he seeks to have his requests or demands met and his responses if they are not met. Such goals should be formulated in consultation between the respondent's supervising CCO, his psychologist, the consultant psychiatrist and prison staff.
288 Although, if released on a supervision order in future, it is almost inevitable that the respondent would have a support worker with him constantly for a significant period of time, the respondent should strive to demonstrate that he is capable of keeping to a schedule and that he will attend and engage in appointments with his psychologist and other medical professionals. That is something that will need to be reinforced with the respondent by his supervising CCO and psychologist, and it should be included in the written practical goals provided to the respondent.
289 It remains the case, as was identified by Jenkins J, that to achieve the respondent's successful transition to a new environment, it will be necessary, in part, to ensure that he is appropriately occupied with work and craft activities. For that purpose, he should be provided with appropriate and reasonably priced craft resources.
(5) Records of the respondent's behaviour and daily activities
290 If there is a change in the applicant's circumstances, in terms of where he is accommodated within the prison, or if he is moved to another prison, a record should be kept of the respondent's daily activities, behaviour and responses, in order to identify how the respondent copes with the change. The context in which such a record (previously referred to as daily logs) should be kept is the need to assess whether the respondent is capable of stable living and a reasonable degree of self-care in a less restrictive living environment, as discussed in the recommendations above. In terms of self-care, it will be of assistance, in my opinion, if the record describes the respondent's activities in a manner that enables an assessment to be made of his skills in the areas I referred to earlier. In terms of stability, the need for the record should be considered against the background that, since the previous review, the respondent showed periods of relative stability, followed by periods of dramatic instability (as described by Dr Wynn Owen), often related to external stresses or pressures, or internal feelings of stress.
291 Therefore, any such record must be more than a description of the respondent's behaviour, whether positive or negative. Entries describing behaviour should endeavour to identify any event before the behaviour, or the surrounding circumstances, or things said by the respondent which might explain the behaviour. Examples of such entries can be found in the previous daily logs, although generally the logs were descriptive of behaviour, without identifying the surrounding circumstances for context. It would be expected that prison staff would be provided with guidance from the respondent's supervising CCO, his psychologist or the consultant psychiatrist as to the type of content that should be recorded.
292 To the extent that the focus of entries about behaviours is the respondent's ability to cope, then, if he is coping well, the entries should provide an understanding of what behaviours he has been engaging in or what surrounding circumstances there have been that have contributed to his ability to cope. If he is not coping well, the entries should shed light on what has occurred, for instance in his interactions with others or in his surrounding circumstances, that may have led to his negative behaviour or feelings.
293 The duration of the record should be a matter of consultation between prison staff and the respondent's supervising CCO and psychologist. The record should be available to the CCO and the respondent's psychologist for review on a regular basis. The evidence of Dr Wynn Owen was that it need not be kept for the whole of the year, but should be for a period that is sufficient to reveal the 'cyclic behaviour' previously identified and for the respondent's psychologist or the consultant psychiatrist to be able to assess the respondent's ability to cope with change, and to implement strategies, if necessary, to assist him with coping.
294 The purpose of such a record generally would be to assist in the consideration at the next review of how the respondent might cope with transition into the community. It would also be considered by those responsible for supervising and treating the respondent to determine what actions might be necessary to improve his ability to cope, if that is identified as an issue. Further, it may inform the level of support the respondent may require if released on a supervision order, and therefore may affect the sort of plan put forward to the NDIA for funding from the NDIS.
295 The respondent should continue to receive counselling, preferably from Ms Williams. As Jenkins J recommended in Unwin [7], an appropriate review of the effectiveness of the counselling should occur and changes made to the processes if they are warranted. A particular focus of therapy should be to provide the respondent with practical assistance to enable him to develop (or maintain current) skills to manage negative emotions and feelings of distress.
296 The Department should endeavour to ensure that there is consistency in the psychiatric care, treatment and advice provided to the respondent. Ideally, that care, treatment and advice would be provided by one psychiatrist for the duration of the period until the next review under the Act. If possible, a psychiatrist should be appointed by the Department for that purpose at the earliest opportunity. If that is not possible, the Department should appoint one psychiatrist to consult and provide oversight of the psychiatric care, treatment and advice provided to the respondent, with a view to achieving a consistent approach. Dr Wynn Owen should be consulted in the first instance on those matters, in light of his assessment of the respondent for this review. As was discussed during submissions, if Dr Wynn Owen were to be appointed to provide the continuing oversight, it would have the advantage that he would bring the experience and knowledge of assessments of the respondent made over a number of years. However, consideration would need to be given to whether Dr Wynn Owen may be required to assess the respondent for the next review, and whether a conflict may arise if he has been involved in the treatment of the respondent.
297 As part of the psychiatric care and treatment provided to the respondent, consideration will need to be given to what medication, if any, may be of benefit to help stabilise his mood and to reduce his libido. At this stage, it would appear to be appropriate to continue with the trial of Sodium Valproate and monitoring of the respondent's mood. Although the respondent has previously discontinued a trial of SSRI medication, it may be that a further trial is considered appropriate.
298 In respect of any medication prescribed to him, the respondent would benefit from having the advice and encouragement of a treating psychiatrist he knows. In any event, it is necessary for there to be consistency of advice to the respondent about the purpose of the medication, so as to reinforce the advice being given to him by his psychologist and supervising CCO as to the value of the medication, in terms of stabilising his mood. It may be beneficial for the treating psychiatrist and the psychologist to meet with the respondent together to explain the purpose and benefits of the medication.
299 The respondent should be further encouraged to have a mentor and, if he is amenable, a culturally appropriate mentor should be made available to assist the respondent with daily living in a way that minimises stress.
(10) Supported accommodation and referral for NDIS funding
300 Concerted attempts should be made to find suitable accommodation and a suitable service provider who can provide disability support to the respondent in the community 24 hours each day, 7 days per week for a period of at least six months, on the basis that any future release of the respondent on a supervision order would be conditional upon the availability of such supported residential accommodation.
301 Further, at the earliest opportunity, a further referral should be made for NDIS funding, on the basis of the opinion expressed by Dr Wynn Owen in this review. It would be expected that, if the respondent qualifies for funding, it would be directed towards the provision of disability services within supported accommodation.
302 Finally, again on the basis of the opinion expressed by Dr Wynn Owen in this review, and the statements made by the respondent to Dr Wynn Owen about his plans for earning an income if released, consideration should be given to approaching the Public Advocate's Office again for an application to be made for the appointment of an administrator under the Guardianship and Administration Act 1990 (WA) in respect of the respondent's estate, to protect his savings in the event that in future he is released on a supervision order.
303 The CDO made by Blaxell J on 13 January 2011 is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[1] The DSO Act has since been repealed, upon the High Risk Serious Offenders Act 2020 (HRSO Act) coming into operation: HRSO Act s 123. However, a CDO made or affirmed under the DSO Act continues in force and is taken to have been made under the HRSO Act: HRSO Act s 125.
[2] Director of Public Prosecutions (WA) v Unwin [2011] WASC 11 (Unwin [No 1]).
[3] DSO Act s 33(2)(a), as it applied until 9 September 2016.
[4] Director of Public Prosecutions (WA) v Unwin [No 7] [2018] WASC 65 (Unwin [No 7]).
[6] The delay until May 2022 was due to the fact that the respondent was serving a term of imprisonment, which suspended the operation of the CDO for 6 months and 1 day.
[7] Director of Public Prosecutions (WA) v Unwin [No 4] [2014] WASC 241 [5] - [10] (Unwin [No 4]).
[8] Director of Public Prosecutions (WA) v Unwin [No 5] [2015] WASC 385 [106] ‑ [108] (Unwin [No 5]); Director of Public Prosecutions (WA) v Unwin [No 6] [2016] WASC 296 [73] - [75] (Unwin [No 6]); Unwin [No 7] [6] - [8].
[25] Unwin [No 7] [11] (Chronology), [40].
[28] Unwin [No 7] [11] (Chronology).
[29] Unwin [No 7] [11] (Chronology).
[86] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart) [50], [52].
[88] COMU is the unit within the Corrective Services division of the Department which is responsible for the management of persons subject to the DSO Act.
[97] BOM 302 ‑ 306. Unless a reference is given from another source, information in the table is from Mr Jarvie's report.