THE STATE OF WESTERN AUSTRALIA -v- UNWIN [No 9] [2022] WASC 479 (24 July 2024)

Findings in respect of developments in the respondent's circumstances

1. Regrettably, in the 2.5 years since the 2019 review, the respondent had regressed in his treatment progress. In particular, the respondent committed a serious sexual offence while in prison and re-engaged in sexualised behaviour over the telephone. While the fact that the respondent did not return any positive results for drug use during that time is a positive outcome, it demonstrates that his high risk of committing a serious offence is not necessarily linked to drug use. It is primarily attributable to entrenched personality traits, an inability to assimilate techniques learned in therapy to control his behaviour, which is likely due to his cognitive deficits and personality, an inability or unwillingness to control his sexual urges, and the unpredictability of his mood states, particularly when he is under stress or feels aggrieved.
2. Overall, the respondent's behaviour since the 2019 review amounted to similar cyclical behaviour that he displayed before the 2019 review. As Dr Wynn Owen said, it involved periods of relative stability, followed by periods of decompensation. Attempts to give him opportunities in self-care and to gain practical living skills were thwarted by self-defeating behaviours. Even though he had made some progress in acquiring and implementing such skills, there were times when he displayed defiance towards persons in authority and non-compliance with prison rules and directions. Those instances appeared to be related to the respondent's continuing problems with emotional regulation.
3. I was satisfied that, while the respondent was able to articulate stress management strategies, he had shown little insight in relation to the application of those strategies, and the offences against Ms X were clear evidence of his inability or unwillingness to implement appropriate strategies when he is under stress. I was satisfied that the respondent's insight into his offending and the risk factors for such offending continues to be deficient, and that deficiency underpins his inability or unwillingness to implement strategies to avoid offending sexually. Further, the respondent's offences against Ms X demonstrated a lack of empathy, notwithstanding his ability to recall counselling sessions about the harmful impact of his offending on his victims.
4. In addition, I was satisfied that the respondent continued to lack the internal resources necessary to manage his stress and avoid decompensating in a manner that could lead to sexual re-offending, as he had done in the past.
5. That risk is imminent while the respondent continues to have a sexual drive, which he clearly does, as was demonstrated by the assault on Ms X, his propensity to fantasise and be fixated on female prison officers, and his engagement again in sexualised behaviour over the telephone. The sexualised thinking about female officers (which he articulated at times) and his behaviour on the telephone are part of the cyclical behaviour to which I have referred.

1. 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, and his re-offending while in custody, that amounts to a high risk that the respondent will commit a serious sexual offence against a female victim in circumstances such as those identified by Dr Wynn Owen as the most likely scenario, which is likely to involve violence and significant psychological harm to any potential victim.

Conclusion - the respondent remains a high risk serious offender

1. Based on those findings, I was satisfied that there continued to be an unacceptable risk that the respondent would commit a serious sexual offence if he were not subject to some form of restriction. As has been observed in previous decisions concerning the respondent, it is likely he will continue to be a serious danger to the community for the foreseeable future.
2. Further, I was satisfied that it is necessary for the respondent to be subject to a restriction order to ensure adequate protection of the community against the unacceptable risk. Anything short of a restriction order would not provide adequate protection of the community. The evidence satisfied me that the respondent requires a high level of supervision and monitoring and ongoing counselling, at least in relation to behaviour management, if his risk is to be adequately managed. Within the community he would also require a high level of support because of his cognitive deficits, which put him at risk of decompensating. That is a significant factor in his risk of committing a serious sexual offence and the imminence of that risk.
3. In short, in the absence of a restriction order, there would be no adequate measure to sufficiently mitigate the unacceptable risk that the respondent would commit a serious offence.
4. Therefore, I was satisfied that the respondent remains a high risk serious offender. The respondent's concession in that regard was properly made.

Findings relevant to the appropriateness of supervision in the community

1. In terms of matters relevant to whether a supervision order would be appropriate, I note again that it was conceded on the respondent's behalf that such an order would not be appropriate at the time of the present review. For the following reasons, that concession was properly made.
2. First, I was not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order. That is, I was not satisfied that he would comply with the standard conditions in a manner and to an extent that is consistent with, and will 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 he will commit a serious offence.
3. In that regard, the respondent would be required, as a standard condition, to be under the supervision of a CCO and to comply with any reasonable direction of the officer.[297] That would inevitably require the respondent to engage in supervision sessions in which he would be required to disclose any matters that might be relevant to his risk of offending, such as his emotional state and any problematic thinking or conduct.
4. Having regard to the evidence of the respondent's behaviour since the 2019 review, I was not satisfied that the respondent would be open and honest during supervision sessions or therapy in the community about important matters relevant to his risk, for instance 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. That would be particularly so if he thought the truth might put him at risk of returning to prison. I accept the evidence of Dr Wynn Owen that the respondent's lack of candour or awareness of the need to disclose was demonstrated by his failure to disclose his thoughts prior to the offences against Ms X.
5. As I noted earlier, in the period since the 2019 review, the respondent at times failed to comply with prison rules and directions and refused to engage with arrangements intended to assist him or to monitor his situation, for instance by not attending medical appointments. That gives rise to concerns about his reliability in complying with supervision. 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 supervision and with a behaviour management regime if he is released.
6. In addition, I am not satisfied on the balance of probabilities that the respondent would not commit a serious offence, which, of course, is a fundamental standard condition of a supervision order.[298] That finding follows from the conclusions I have reached in respect of the respondent's high risk of committing a serious sexual offence, and the imminence of that risk being realised. In making that finding, I have had regard to whether the external constraints that would be imposed by a supervision order of the kind proposed by Ms Cashmore, and the measures available to the authorities to monitor the respondent's whereabouts and activities, would sufficiently mitigate the risk as to make it unlikely that the respondent would commit a serious sexual offence. I am not satisfied that they would, given the respondent's level of risk. If he was prepared to commit the offences against Ms X in a prison, with security at hand and the prospect of dire consequences, both in terms of prosecution and more restrictive management of him within the prison, I cannot see how one could be satisfied on the balance of probabilities that he would not commit an offence in the community while subject to a supervision order.
7. Further, I was satisfied that Dr Wynn Owen's proposal concerning supported accommodation is appropriate and would be a necessary condition to ensure adequate protection of the community if the respondent were to be released under a supervision order. That is so, notwithstanding the significant constraints and obligations that would be imposed by such an order as was proposed by Ms Cashmore. Dr Wynn Owen's proposal would require the respondent to be in supported accommodation for at least six months, with support workers providing him with assistance, but also supervising him and monitoring his behaviour in accordance with a behaviour management plan 24 hours a day, seven days a week. Further, I was satisfied that, even before release subject to 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. The adequacy of such skills would need to be assessed having regard to his cognitive difficulties.
8. There was no supported accommodation available to the respondent at the time of the hearing.

1. For the reasons I have outlined, I was not satisfied that a supervision order would provide adequate protection of the community against the high risk that the respondent would commit a serious sexual offence 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, which I accept, as to the imminence of the respondent committing a serious sexual offence. While that assessment, in the formal context of risk 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. As Dr Wynn Owen indicated, the imminence of offending would be related to how the respondent managed the stress of a transition into the community. Unless the respondent was closely monitored, one could foresee him re-offending within a matter of weeks. As I understood Dr Wynn Owen's evidence, the imminence would be high even taking into account the restrictive conditions of the proposed supervision order, unless the respondent was in supported accommodation as Dr Wynn Owen proposed.
2. I was satisfied that the respondent continued to lack a proper understanding of the stresses he is likely to experience in the community, and continued to overestimate his capacity to deal with such stresses. When those factors are combined with the respondent's deficits in his ability to implement stress management strategies, the prospect of rapid decompensation is a real possibility in the absence of close and constant support, at least in the early stages of the respondent's release into the community.
3. 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, is unacceptable without the sorts of protective measures recommended by Dr Wynn Owen to supplement the restrictive conditions of a supervision order. Those measures were not available at the time of the hearing. While there had been a change in the respondent's circumstances, in that NDIS funding had been approved for certain supports, there was no suitable accommodation available and the engagement of support services at the level recommended for the respondent to live in the community had yet to occur.

1. It followed from the above findings that the CDO had to be affirmed.

Recommendations for further management and treatment

1. In the course of these reasons, I have set out the further recommendations made by Dr Wynn Owen, which I accept, for the further management of the respondent while he continues to be subject to continuing detention. As I indicated at the conclusion of the hearing on 2 May 2022, the recommendations in these proceedings may be regarded as a refinement of the recommendations set out at [280] ‑ [302] of Unwin [No 8], which I summarised at [17] above. They continue to be relevant and should be taken to be incorporated, in the detail set out in Unwin [No 8], for present purposes.
2. I preface the further recommendations with the following observations.
3. First, I was satisfied that appropriate 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 I set out at in Unwin [No 8]. However, having regard to the evidence I have outlined, I accept that there continued to be deficiencies in that regard. This was mainly in relation to the consistency of approach by different officers. I accept the submissions of both parties that it would be appropriate to reinforce those guidelines.
4. Secondly, there were good examples in the prison logs of positive reinforcement of behaviour and activities that indicated improvement in the respondent's attitudes and capacities. It is difficult to determine the extent to which this occurred, or whether the approach was consistent, because one must rely on the prison logs and management plans, which are not consistent in the level of detail. It is sufficient to note that the examples that clearly indicate the giving of positive feedback should serve as guides for the proper approach.
5. Thirdly, while it was for a limited period, and perhaps confined to the approach taken by some, but not all, prison staff who were required to record observations of the respondent's behaviours, there were some good examples in the prison logs of the approach that should be taken to recording observations and endeavouring to explore the context in which the respondent's behaviours, whether positive or negative, had occurred. In my view, they were of an adequate standard to enable an assessment to be made of strategies that might be adopted to promote positive behaviours and attitudes and manage circumstances that led to negative behaviours and attitudes, all of which are reflective of the respondent's capacity to cope with his circumstances. Again, these limited entries should be regarded as guides for the proper approach.
6. However, there was no evidence to indicate that the observations made by prison staff, whether or not they met the standards expected by the 2019 recommendations, were fed back to management or other staff to guide the continuing care, control and treatment of the respondent. Moreover, there was no evidence of written goals or a behaviour management plan having been formulated, let alone implemented, with reasonable objectives identified, to which feedback from prison staff could be directed.
7. I accept that it may be difficult to meet the expectations of the 2019 recommendations in this regard, particularly if departmental psychologists do not have an appropriate level of expertise in dealing with persons with cognitive deficits, given Dr Wynn Owen's recommendation that the behaviour management plan be prepared by, or at least in conjunction with, a psychologist. That difficulty may be compounded by the need to assign a male psychologist to the respondent, when the pool from which that assignment can be made is small. Further, I acknowledge that the ability to implement the recommendations concerning written goals, a behaviour management plan and the completion of logs to provide feedback for the care, control and treatment of the respondent in accordance with such a plan will be affected by staffing levels, the rotation of staff through the respondent's unit, and the training, skills and experience (or lack thereof) that individual prison officers may have to deal with prisoners with cognitive deficits.
8. Nevertheless, in the period before the next review, it would be expected that steps would be taken to meet the recommendation concerning written goals and a behaviour management plan, which, in accordance with Dr Wynn Owen's evidence, should not be particularly complex, as there is a need to keep goals understandable and manageable for the respondent. Further, the use of the prison logs should continue, and the proper approach should be modelled on the good examples to which I have referred. Prison officers who will be dealing with the respondent and required to make entries should be informed of the relevant recommendations and provided with sufficient information and guidance as to the proper approach to enable them to make meaningful entries, as discussed above.
9. Having regard to the evidence of Dr Wynn Owen and the parties' submissions, the following recommendations should be implemented in the period before the next review, in addition to or as refinements of the 2019 recommendations.
10. First, it will be necessary for the Department to follow up on progress in respect of the functional capacity and positive behaviour specialist assessments in respect of the respondent, which were identified as necessary to increase the level of NDIS funding available to the respondent. 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.
11. Secondly, the Department is to give consideration to having a behaviour management plan developed, implemented and overseen by a psychologist, working with custodial staff. It would be expected that the plan would identify specific behaviours to be focused on. In the implementation of the plan, it is desirable that a psychiatrist be involved in addressing issues related to situations of acute stress that may be affecting the respondent.
12. Thirdly, there should be a psychiatric review of the respondent, with a view to ongoing oversight from the same clinician.
13. Fourthly, if such medication is not already prescribed to the respondent, consideration should be given to prescribing mood-stabilising medication to assist the respondent. If the prescribed medication appears to be ineffective, consideration should be given to whether a different mood stabiliser may be effective, with a view to changing the medication.
14. Fifthly, the respondent should continue to engage in leisure activities that assist him to learn strategies to manage when he has less structure.
15. Sixthly, the respondent should continue to engage in activities that relate to daily living, self-care, personal hygiene, his ability to manage and understand his nutrition, and basic financial management. This would include providing the respondent with employment opportunities that would give him skills, and positively reinforce his view of himself.
16. Seventhly, the 2019 recommendation in respect of counselling (recommendation 6)[299] remains apt to the extent that it indicates that the particular focus 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. Such counselling would be expected to be conducted within the framework of any behaviour management plan developed for the respondent. Unless otherwise determined, after consultation with Dr Wynn Owen or a psychiatrist providing care to the respondent, only male psychologists should be assigned to the respondent.
17. Finally, I reiterate the following recommendation from Unwin [No 8] at [281] - [283]:

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.

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.

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.

1. It is regrettable that these reasons come to be published at a time after the passage of the next review period. However, the fact that the 2019 recommendations continued to be relevant, and the content of the additional or refined recommendations above, were made clear in the oral reasons given at the conclusion of the hearing on 2 May 2022 and in the course of the evidence of Dr Wynn Owen and Dr Bannister, and in discussion with counsel during the parties' submissions.

1. For the above reasons, on 2 May 2022, I ordered that:

(1) Pursuant to s 68(1)(b)(i) of the HRSO Act, the Court, having found that the respondent remains a high risk serious offender within the meaning of s 7(1) of the HRSO Act, affirms the continuing detention order made on 13 January 2011 by the Honourable Justice Blaxell.

(2) The next review is to be held as soon as practicable after 2 May 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Western Australia Parliamentary Debates, Legislative Assembly, 26 June 2019, p 4675 (Hon John Quigley).

[3] Director of Public Prosecutions (WA) v Unwin [No 4] [2014] WASC 241 (Unwin [No 4]) [5] ‑ [10].

[6] Ms X's name has been anonymised pursuant to s 36C of the Evidence Act 1906 (WA).

[8] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ).

[10] The State of Western Australia v Garlett [2021] WASC 387 (The State of Western Australia v Garlett).

[11] I note that the definitional issue identified by Corboy J in The State of Western Australia v Garlett was not considered by the High Court in Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888.

[12] See for instance Garlett v The State of Western Australia [55], [103] - [104], [106].

[13] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 (Pindan [No 3]).

[16] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [86].

[17] The State of Western Australia v West [No 6] [2019] WASC 427 (West) [21]; ZSJ [44].

[18] The State of Western Australia v Latimer [2006] WASC 235 [49]; Williams [79].

[20] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).

[22] Hart [52]; The State of Western Australia v Narrier [No 6] [2020] WASC 349 (Narrier) [51].

[24] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [15].

[25] Garlett v The State of Western Australia [103].

[26] Exhibit 1. As the BOM is paginated continuously, references to this exhibit henceforth will be to 'BOM' followed by the page number.

[39] Exhibit 3, Offender Notes, p 7 of 11.

[40] Exhibit 3, Offender Notes, p 7 of 11.

[41] Exhibit 3, Offender Notes, p 7 of 11.

[43] Exhibit 3, Offender Notes, p 7 of 11.

[44] Exhibit 3, Offender Notes, p 7 of 11.

[46] Exhibit 3, Offender Notes, pp 1 - 2 of 11.

[47] Exhibit 3, Offender Notes, p 2 of 11.

[60] BOM 116 - 117, 127, 129, 130, 131.

[160] BOM 597 [107] (2); ts 216, 227 (XXN).

[175] See, for instance, Unwin [No 1] [65].

[180] ts 210; BOM 595 [93], [97].