Huitema v. PGK

PGK, age 56, was convicted for a sexual violation and placed in a compulsory care facility pursuant to the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 for a period of three years. PGK has been in the care facility for the past 18 months. PGK has a history of sexual offenses and felonious behavior and has been institutionalized since the age of seven.

The care co-coordinator has applied to extend the supervised, compulsory care for another three years, which PGK opposes as entirely unnecessary or overly long.

Statutorily, PGK is deemed to no longer be subject to the criminal justice system at the end of the original order. The purpose of an extension is to provide courts with a compulsory rehabilitation option, a way to safeguard the rights of the individual and to provide different levels of care to those with some degree of intellectual disability. The statute allowed for either supervised care or care within a secure facility; the co-coordinator requested the former.

The Court held that the extended order should be granted for another three years.

The Court emphasized that P had a variety of factors that could affect the safety of others. In particular, P had a history of unsuccessful attempts at living independently, lack of coping mechanisms, of alcohol and drug intoxication, and beliefs supporting the use of violate or sexual offending. The Court noted that P has rights in this situation, but those rights cannot compromise the “fundamental rights” of the community to be safe. The Court noted P’s lack of insight by his desire of wanting to open a home for young men with intellectual disability, the same profile as his victim. P was attending a program for sexual offenders and said that he would keep attending the program if released, contrary to statements he had made earlier. The Court also noted that P seemed satisfied with life in the home and that his health and safety were enhanced within it.

The Court rejected a shorter care order of 12 months as not suiting P’s situation and potentially harmful to P. P has made little progress so far and unlikely much will change in 12 months. His care manager described P has significantly more agitated during the month preceding the hearing and more frequent hearings could increase his anxiety unnecessarily.

“[10] The principles by which the Court must be guided also require consideration of three factors, namely, the protection of P’s health and safety, the health and safety of others, and P’s rights. However, the factors affecting P do not assume paramountcy and the Court has a clear duty to consider the community perspective and if necessary, to assume a protective mantle. This is particularly important when one has regard to the offending which triggered the application of the Act.”

“[28] … I accept that P’s rights should be acknowledged and respected, but not to the extent that they compromise the fundamental rights of members of the community to be safe.”

“[36] What is required is a careful balancing exercise having regard to the individual needs of a particular care recipient on the one hand, and the community on the other. Court proceedings are invariably stressful, even for those without the challenges which P faces and I have little doubt that the increased number of Incident Reports involving P’s aggression in the home during the month of May reflected his increased levels of anxiety. Given his high risk of re-offending and the other difficulties to which I have referred, little will be achieved in 12 months and I do not consider that it will be in P’s interests to significantly increase his anxiety levels on an annual basis.”