Commissioner of Police v TAK - [2013] WADC 73

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: COMMISSIONER OF POLICE -v- TAK [2013] WADC 73

CORAM: STAUDE DCJ

HEARD: 24 APRIL 2013

DELIVERED : 15 MAY 2013

FILE NO/S: CIVO 197 of 2012

MATTER :IN THE MATTER of s 87 and s 90 of the Community Protection (Offender Reporting) Act 2004

BETWEEN: COMMISSIONER OF POLICE
AND
TAK

Catchwords:

Criminal law - Child protection prohibition order

Legislation:

Community Protection (Offender Reporting) Act 2004

Result:

Order made

Representation:

Counsel:

Applicant: Ms R Young
Respondent: Mr B Meshgin

Solicitors:

Applicant: State Solicitor for Western Australia
Respondent: Legal Aid Commission of Western Australia

Case(s) referred to in judgment(s):

A v City of Swan [No 5] [2010] WASC 204
Commissioner of Police v TAK [No 2] [2011] WADC 219
Dalle-Molle v Manos (2004) SASR 193
Masterman-Lister v Brutton & Co [2003] 3 All ER 162

STAUDE DCJ:

Introduction

The applicant by originating motion dated 15 November 2012 moves for a child protection prohibition order (prohibition order) pursuant to s 90 of the Community Protection (Offender Reporting) Act 2004 (the Act).
The respondent at the date of the application was subject to a prohibition order imposed by Martino CJDC on 5 December 2011: Commissioner of Police v TAK [No 2] [2011] WADC 219. The order made on that occasion was as follows:
1.The respondent must not reside at premises other than those premises which are supervised or supported through funding from the Disability Services Commission (the residential premises), except that the respondent may spend weekends and public holidays with his parents residing at [address].
2.The respondent must not without reasonable excuse associate or have contact with any child, including any teenager under the age of 18, unless the relevant parent or guardian of that child is present and able to view the child at all times.
3.The respondent must not without reasonable excuse be in or near a school, a kindergarten or a childcare centre.
4.The respondent must not without reasonable excuse:
(a)travel on public transport, including buses, trains and ferries; or
(b)be within 50 m of a bus, ferry or train station,
between the hours of 8.00 am and 4.30 pm on weekdays (excluding school holidays when the respondent cannot travel on public transport at any time), unless:
(i)he is accompanied by a case worker; or
(ii)he has prior written permission from a police officer or case worker to be at a train, bus or ferry station during that specified time and on that specified date.
5.In this order:
(i)a 'police officer' means any police officer from the sex offender management squad (SOMS); and
(ii)a 'case worker' means the case manager from Teem Treasure Pty Ltd, or any person who has written authority from the case worker or a police officer to supervise the respondent.
His Honour made the order for a period of 12 months, indicating that if, at the expiration of that time, the applicant still required an order, a further application could be made supported by up‑to‑date information. On 29 June 2012 an amendment was made by consent to insert the words 'on weekdays' in par 4 after the words 'public transport at any time'.
The applicant seeks an order in the same terms. Interim orders were made by Birmingham DCJ (3 December 2012) and Sleight DCJ (11 February 2013). The order made by his Honour Judge Sleight varied the hours set out in par 4 of the order to 7.30 am to 9.30 am and 2.30 pm to 4.30 pm.
The respondent does not object to the making of an order in terms of pars 2 and 3, but disputes the need for pars 1 and 4 which restrict his right to choose where he lives and his ability to travel on public transport.

Legislation

Section 90(1) of the Act empowers a court, upon an application by the Commissioner of Police pursuant to s 87, to make an order prohibiting a person from engaging in conduct specified in the order. A prohibition order may only be made if the court is satisfied that the person is a reportable offender; that the person poses a risk to the lives or sexual safety of one or more children, or children generally; and that the making of the order will reduce that risk. In determining whether to make an order the court must take into account the circumstances specified in s 90(3).
Section 85 defines 'conduct' to include an act or omission or a course of conduct. Section 93(1) provides that a prohibition order may prohibit conduct of any of four kinds, namely, 'associating with or other contact with specified persons or kinds of person, being in specified locations or kinds of locations, engaging in specified behaviour, and being in specified employment or employment of a specified kind'. Section 93(2) provides that s 93(1) does not limit the kinds of conduct that may be prohibited.
No issue of statutory construction arose in the course of the hearing.
It has been held in this court that the reference in s 90 to a risk means a risk that is more than a fanciful, minimal, or merely theoretical risk, and that a risk to the lives and sexual safety of persons is a risk of a person being the victim of a serious physical assault that may threaten the person's life or a risk of a person being the victim of a sexual assault: Commissioner of Police v TAK [No 2] [17].

Background

The relevant history of this matter up to the time of the making of the order on 5 December 2011 is set out in the reasons for decision of Martino CJDC at [18] ‑ [29].
An interim child protection prohibition order had been made by Kennedy CJDC on 14 August 2008, followed by a two‑year order by O'Brien DCJ on 28 November 2008. The latter prohibited the respondent from having contact with children unless a parent or guardian was present, from being within 100 m of a school, kindergarten or child care centre, and from travelling on public transport and being within 50 m of a train, bus or ferry station except between the hours of 10.00 am and 2.00 pm on weekdays (excluding school and public holidays) and when travelling to work, to a medical appointment or on other specified occasions.
Having heard evidence from Detective Sergeant William Mansas of SOMS, Ms Catherine Mary Shand, a senior service coordinator with Teem Treasure Pty Ltd, and Ms Lara Harmsworth, a psychologist, Judge Martino concluded as follows [39]:
I find that the respondent is a reportable offender. He has autism and a low intellect. He is attracted to young females and if his life is not structured he will engage in behaviour that will make it likely that he will come into contact with young children by travelling aimlessly on public transport. If he does so he will be at risk of coming into contact with girls. If he does come into contact with young girls then, by reason of his attraction to them and his lack of empathy, there is a risk that he will indecently assault girls as he has done in the past. If the respondent is required to live at accommodation provided by Teem Treasure and he participates in Teem Treasure programmes he may develop routines of behaviour that will reduce his risk of committing indecent assaults on girls … In my view there is a need to make an order prohibiting the respondent from residing at premises other than those supported by the Disability Services Commission so that he can obtain those benefits. The likelihood of his participating in Teem Treasure programmes will be increased if he does not travel on public transport between the hours of 8.00 am and 4.30 pm on weekdays.

Capacity

Although the respondent suffers from an intellectual disability, he is not a represented person for the purposes of O 70 of the Rules of the Supreme Court 1971. Nor is he a person who, by reason of mental illness, defect or infirmity, however occasioned, has been declared by the court to be incapable of managing his affairs in respect of these proceedings.
On 5 August 2011 the State Administrative Tribunal appointed the Public Advocate as limited guardian of the respondent for the purpose of determining where and with whom he may live, the services to which he should have access and the persons with whom he is to associate, but that order was revoked in the face of the application for a child protection prohibition order that year. It was noted by the Tribunal at that time that the respondent was subject to an interim prohibition order (10 October 2011) and that a further application could be made if necessary after the application for the order was finally determined. Currently, the respondent is not the subject of any order under the Guardianship and Administration Act 1990.
Order 70 contains procedural rules which regulate the representation of persons who, by reason of disability, cannot care for themselves and require the protection of the court. In civil proceedings such persons are required to be represented.
There is a presumption in favour of capacity, the test of which is whether the person is capable of understanding, with proper explanation from a legal adviser, the issues upon which his or her consent or decision is likely to be necessary in the course of the proceedings: Masterman‑Lister v Brutton & Co [2003] 3 All ER 162. The test is issue specific. The mental capacity required in order to be capable of managing one's own affairs will vary according to the legal character and significance of the litigation. The person must be able to understand the nature of the litigation, its purpose and its possible outcomes: Dalle-Molle v Manos (2004) SASR 193, A v City of Swan [No 5] [2010] WASC 204.
This application is brought in the court's civil jurisdiction. It arises, however, as a consequence of the respondent's convictions of a number of criminal offences and the operation of the Act. The respondent was legally represented in respect of the criminal prosecutions and has been so represented in respect of all applications for child protection prohibition orders. Although there is no application before the court for an O 70 r 1 declaration, neither side taking any point with respect to capacity, I have turned my mind to the question of whether a guardian ad litem is necessary in all the circumstances.
I am satisfied on the evidence, and by what has been said on the respondent's behalf by his counsel, that he adequately understands the effects of the order sought and the consequences of them, having been under orders of this kind since 2008 and that he has been able to instruct counsel adequately for the purposes of the hearing.

Record of offending behaviour

The respondent was born in August 1985 and is now aged 27 years. His relevant criminal record as an adult commences in August 2004 when he was convicted of one count of common assault, two counts of aggravated indecent assault, one count of wilful exposure, one count of assault and two unrelated offences for which he was given an 18‑month community based order with a supervision requirement.
The two offences of aggravated indecent assault occurred at the Midland bus station when the respondent approached two young females aged 13 and 14 respectively. He was then aged 18. The first count involved the accused walking up to the victim and standing by her. He turned her around slightly by her shoulders and then rubbed his hands across her breasts on the outside of her school uniform. The second count involved the girl who observed the first offence. The respondent approached her and stood in front of her. He stroked her right arm and then moved his hand across her right breast on the outside of her school jumper. He then moved his hands down onto her right leg and towards her groin.
The wilful exposure offence occurred when the respondent walked up towards a bus looking at a group of female students. He pulled down his pants exposing his genitals.
The assault occurred when the accused picked up a rock and threw it towards the bus. The rock passed through a window and struck the head of a passenger.
On 14 March 2006 the accused was given a further 18‑month community based order with supervision for a number of offences which included breach of protective bail conditions, common assault, disorderly behaviour in public and wilful exposure.
The wilful exposure was committed on 19 May 2005 at a carpark in Great Eastern Highway, Burswood. He had been in an adult products shop which he was asked to leave because he was seen masturbating. Outside of the shop in the carpark he again masturbated.
The offence of doing an indecent act in public was committed on 7 September 2005 when in the vicinity of a brothel in Victoria Park near the intersection of Temple Street and Albany Highway he masturbated in public and exposed himself to passing traffic.
The offences of common assault and disorderly behaviour in public were committed on 30 June 2005 when the respondent was on a train from Fremantle to Perth. He sat next to a 12‑year‑old school girl whom he touched with his elbow causing her to move aside. The victim stood up. When she did so the accused moved towards her seat. When she sat down again she contacted the accused's leg. She stood again. The respondent moved towards her putting his knee against her right knee. She told him to get off and moved aside. The respondent used obscene language towards her and her companions.
The breach of bail conditions offence was committed on 21 December 2005 when the respondent was on a train on the Armadale line at 3.36 pm when a protective bail condition prohibited him from being on public transport between 2.30 pm and 4.30 pm on weekdays.
On 3 April 2007 the respondent was convicted of one count of disorderly behaviour and conduct relating to an incident on 7 December 2006 when he was on a Transperth bus travelling west on Scarborough Beach Road. He shouted in a loud voice at other passengers causing a nuisance. He then proceeded to remove his clothing. He sat at the rear of the bus with no clothes on. Other passengers were upset. These included women and children.
On 5 July 2007 the respondent was convicted of one count of common assault committed on 4 June 2007 when he and the victim, a girl aged 12 years, alighted from a train at Fremantle train station. The respondent had been verbally abusive to her on the train and followed her from the station. He pushed her causing her to strike the side of a bus. The respondent was then 21 years old. He was given a supervised community based order and 60 hours of community service work by way of penalty.
On 8 July 2007 the respondent was convicted of one count of stalking involving the same victim. A week after the incident involving the assault the respondent and the victim were again on the train to Fremantle. The respondent followed her to a supermarket and was verbally abusive towards her. On 2 July 2007 the respondent and the victim were again on the same train. He again followed her to the supermarket and was verbally abusive to her. On 6 August 2007, again on the Fremantle train, the accused said words to the victim: 'I know where you live and my family is going to kill you for what you did to me'. (This comment was said to relate to the assault charge resulting from the incident on 4 July 2007). The respondent was given a sentence of imprisonment of 6 months 1 day. He was released on 2 January 2008.
On 21 August 2008 the respondent was convicted of two counts of breaching a violence restraining order (VRO). These related to a VRO issued by the Magistrates Court at Fremantle which prohibited the respondent from communicating with the protected person, being the victim of the stalking offence, going within 10 m of her, or behaving in an intimidating, dangerous, offensive or provocative manner towards her. The breaches occurred on 23 June 2008 when the respondent boarded a Fremantle train on which the victim was a passenger and sat directly opposite her. Again, on 1 July 2008, the accused was on the Fremantle train and moved along the train into a carriage within 10 m of the victim. For each of these breaches the respondent was sentenced to imprisonment for 6 months 1 day suspended for 18 months.
On 29 September 2009 the respondent was convicted of one count of indecent assault. This had the effect of breaching the suspended sentence orders. These offences related to an incident on 16 July 2009 when the respondent followed a 17‑year‑old girl from a shop in the Carillon shopping arcade to an upstairs store room. The respondent engaged the victim in conversation and followed her into a staff only area where he walked up behind her and ran his hand over her bare left arm moving it across her left shoulder and stroking her lower back and buttocks. The victim went into a store room and locked the door. The respondent was ultimately sentenced to 13 months imprisonment (following appeal), seven months for the offence to be served cumulatively upon the six‑month suspended sentences (concurrent) imposed for the VRO breaches.
On 17 March 2010 the respondent was convicted of five counts of failing to comply with the 2008 prohibition order, the offences occurring on 3 November 2008, 3 April 2009, 29 April 2009, 5 May 2009 and 6 May 2009. Each of these breaches involved using public transport contrary to the order. They were not associated with any other offending. The respondent was given a term of six months imprisonment on each of the five counts (concurrent) to be served cumulatively upon the term then being served. On appeal the sentences were reduced on counts 1 to 4, but not count 5, and the sentences were ordered to be served concurrently from 17 March 2010 when they were originally imposed. The respondent was released on 16 September 2010.
On 16 September 2011 the respondent was sentenced for an offence of indecent assault committed on 4 November 2010 at 8.30 am when the respondent approached an 18‑year‑old female in the foyer of the Kings Ambassador Hotel whilst the complainant was waiting for a lift. He said: 'Let's have sex. I want to have sex with you'. When the lift door opened the complainant stepped into the lift. As she did so the respondent took hold of her by her right shoulder and pulled her towards him. She struggled and the respondent released her. She was shaken and disturbed by the incident but did not sustain any physical injury. The respondent was remanded in custody. He was eventually released on bail on 1 March 2011 on conditions which required him to comply with the requirements of an intellectual disability diversion programme, particularly with respect to accommodation and community access. He was sentenced to a community based order for six months with supervision and programme requirements.
This is not a complete summary of the record of the respondent which contains other offences of a relatively minor nature which do not bear on the merits of the application. The nature of his offending is consistent with his documented autism spectrum disorder which affects his capacity for empathy and limits his ability to pick up social cues, and with his intellectual disability. These conditions result in social isolation and inability to relate to others in a normal way.
The respondent was only 18 years of age when he committed the offences of indecent assaults upon a 13‑year‑old and 14‑year‑old, of which he was convicted in August 2004, and was 19 when he committed the offence of wilful exposure for which he was convicted in March 2006. He was 20 when he committed the indecent act in public of which he was convicted at that time and 21 when he committed the stalking offence of which he was convicted in October 2007. The respondent was aged 23 when he committed the indecent assault of which he was convicted in September 2009 and which involved a 17‑year‑old female. He was 25 when he committed the indecent assault upon the 18‑year‑old female at the Kings Hotel for which he was convicted in September 2011. He has not been convicted of any offence against a child under the age of 16 since 2007. He has not committed an offence on or near public transport since May 2009, when he committed the last of the breach of prohibition order offences of which he was convicted on 17 March 2010.

Evidence

The present application is supported by the affidavits of Philip Scott Watts, psychologist, sworn 12 March 2013; Ms Shand of Teem Treasure, sworn 14 November 2012; and Michael Colangelo, detective senior constable attached to the Western Australia Police SOMS, sworn 15 November 2012 and 1 February 2013. Each of the deponents was called at the hearing of the application and was cross‑examined.
No evidence was given by, or adduced on behalf of, the respondent.
Dr Watts gave evidence in terms of his report dated 6 March 2012 (annexure PW2). He was requested to do an independent assessment without reference to any previous assessments. He did so on the basis of his interview with the respondent and the psychological testing which he administered. He did not have access to any other information about the respondent, except that he had been diagnosed with autism spectrum disorder. Dr Watts was provided with a letter of instructions, the applicant's minute of proposed orders, the respondent's criminal record and a summary of the respondent's prior relevant offences.
There was no issue taken by the respondent with Dr Watts' expertise. In my view Dr Watts is appropriately qualified by study, training and clinical practice experience to express the opinions of which he gave evidence.
To Dr Watts' observation the respondent displayed a number of peculiar obvious mannerisms, including stereotypic repetitive behaviours which were a common defining characteristic of autism, but could be related to intellectual disability in general. His behaviour was consistent with autistic spectrum disorder. The respondent also had an intellectual disability. The respondent's social skills and ability to relate to others were weak.
On intelligence testing the respondent produced uniformly low scores across the domains of verbal comprehension, perceptual reasoning, working memory and processing speed. His IQ was extremely low, in the first percentile of the population. On an information subtest he produced a higher score (37th percentile), indicating that he was able to remember basic facts at a level about equal with the normal population.
The respondent lived in supported accommodation. He told Dr Watts he would like to go to Victoria or New South Wales to live. He was able to read simple words, but his reading level was thought to be below that of upper primary school. He was not capable of managing money and was unable to function independently, even though he had a basic understanding and a basic level of functional interaction.
Dr Watts considered that the respondent needed to be in a sheltered environment as he was not able to live independently. He was able to manage his behaviour to a degree by learning rules. His understanding of social rules was incremental, but at a very slow rate. Because of the observed defiant aspect of his personality, he would, if not carefully managed, become rule‑defiant.
Due to his autism the respondent was likely to have difficulty reading the emotional reactions of others, both positive and negative, and his intellectual disability would markedly impair his general understanding such that the combination of the two conditions meant that inappropriate sexual behaviour was quite likely. It was not uncommon for a person with an intellectual disability to direct sexual behaviour towards children because, at the level of their intellectual functioning, such a person saw children as peers to whom they could relate.
The commission of offences such as wilful exposure and masturbation in public suggested a psycho‑sexual disturbance as well as straight intellectual disability. Such offences indicated that sexual urges were surfacing without basic social control. The most recent offences, being against older females than the victims of earlier offences, reflected the respondent's maturing and an awareness of the consequences of contact with young children, but still demonstrated inappropriate behaviour consistent with intellectual disability.
The respondent reported no interest in children because, he said, they were immature and he did not want to be associated with them. There was no observed paedophilic interest, as opposed to inappropriate expression of sexual desire towards peers. Dr Watts' concern was not whether he was a risk to children specifically, but whether, given a general risk of inappropriate sexual behaviour, he was likely to direct his behaviour towards vulnerable people, such as children or even women with disabilities.
Although his last relevant offence was of indecent assault in November 2010, it was too early to say whether his behaviour had been modified by rule conformity, given the structured management plan to which he was subject. The respondent was aware that there were times when he was not allowed to catch the train and was able to understand basic time frames. He was capable of understanding rules that were clear and simple, even though he did not like being under the prohibition order. Dr Watts observed:
The types of orders being requested are not so much to change his behaviour but to limit opportunities for inappropriate behaviour. In that regard such an order would have some benefit in that if there is somebody accompanying [the respondent] then the opportunities are markedly reduced. As children are more vulnerable than adults, in my opinion, the inclusion of a subsection about children is helpful. While I am not satisfied that [the respondent] has a specific attraction to children, I do consider that there is a greater risk [to] more vulnerable people and children being in that category particularly.
In oral evidence, Dr Watts confirmed that, although the respondent had no particular interest in children, they and persons with intellectual disability would be vulnerable to approaches by him as they lacked protective skills. Behaviour which might otherwise be simply offensive could lead to sexual offending. Dr Watts explained:
If I can put it in simple terms, I don't think he can stop himself. It then becomes the other person who will be the one who stops it going too far. And if they don't have the ability to stop it, that's where the danger is, where it rapidly escalates.
Dr Watts acknowledged that there had been no sexual offences committed against young teenagers since the respondent was convicted in August 2004 of two offences of aggravated indecent assault involving girls aged 13 and 14 years respectively. In July 2007 the respondent was convicted of physically assaulting a 12‑year‑old girl and on 8 October 2007 with stalking the same victim. In August 2008 he was convicted of two offences of breaching a violence restraining order in favour of the victim of those offences. Dr Watts considered that it was significant that there had been no offences involving such young children since that time. Although in July 2009 the respondent committed an indecent assault on a 17‑year‑old girl whom he touched on the arm, shoulder and buttock, and in November 2010 an indecent assault upon a woman who he propositioned in a hotel foyer and touched on the shoulder, in Dr Watts' opinion, the respondent would have perceived these victims as adults.
Dr Watts identified a trend of approaching older females which he attributed to three factors: first, that as the respondent got older, so did his relative peer group; second, that he learned from being told repeatedly not to do so, that he should not go near children; and, third, that his conduct had been managed by the prohibition order. The second and third factors overlapped, but Dr Watts was of the view that the trend away from offending against young children was more likely to be due to him learning to stay away from children than his appreciation of the consequences in terms of a court penalty.
Ms Shand gave evidence that Teem Treasure is a non‑government agency which provides support to people with disabilities and their families to improve their quality of life. Her role is that of case manager. Teem Treasure supported the respondent in a residential unit in Clarkson which he rented with another client from the Department of Housing. Teem Treasure provided 24/7 support. The respondent had planned activities Monday to Friday between 10.00 am and 4.00 pm. These included recreational outings and household shopping. With staff support the respondent attended to the maintenance of his home and meal preparation. He was also supported in his attendances at the SOMS. The respondent was not suited to employment.
Ms Shand said that the respondent had coped extremely well with the restrictions placed on him by the previous order. Although the respondent had indicated that he did not like the order, in her experience this was not an unusual response. Ms Shand acknowledged that there were times when the respondent was in the community without a support person. Teem Treasure took no responsibility for the respondent when he was by himself in the community and in fact did not agree to him being able to travel independently.
Ms Shand was asked about utterances made by the respondent whilst sitting in the gallery of the court during the evidence of Dr Watts. He was observed to become agitated and to say the words 'Don't want to live under carers all my life because I will bloody kill them - I hate them'. Ms Shand said that the respondent later approached her outside the court during a short adjournment in a distressed state and asked her to inform the court that he did not mean what he said. She observed him to be stressed. Ms Shand was not aware of any occasion on which he had attacked any staff.
With respect to the respondent's conduct in court, I find that it was consistent with the behaviours described by Dr Watts. I draw no inferences against the respondent because of his intemperate language. It is evident from the facts of some of his offending and from interview notes kept by case officers from the SOMS, with which I will deal in the context of Mr Colangelo's evidence, that the respondent is given to making threats to kill to express his frustration or dissatisfaction. I interpret his statements as expletives. It is understandable, however, that others would find them offensive and, perhaps, frightening.
Ms Shand also gave evidence that on 25 December 2012 when the respondent breached the order by going on a train, an incident of which she was made aware, he had just moved house and was dealing with this application (which had been adjourned to a further hearing in February 2013). It was a stressful period. Ms Shand said it took some weeks for him to settle down after the move.
Ms Shand said that the respondent had learned a lot of life skills and complied with what was asked of him. She was concerned at one stage, about a year ago, that the respondent was upset because transit officers were observing him closely. He had called her on several occasions in that regard and she had personally observed transit officers following him and noting their observations. She had not been able to speak with anyone about transit officer surveillance.
With respect to his compliance with the previous order she observed the respondent to use his computer to ascertain school holidays. To her knowledge he did not go out during the times specified in the order. On occasion he would ask his parents to pick him up if he were not allowed to use public transport. He was aware of his restrictions.
Detective Senior Constable Colangelo gave evidence that officers of the SOMS met with the respondent on a weekly basis. Information obtained in relation to the respondent was uploaded onto a national database, the Australian National Child Offender Registry. The respondent has been reporting since March 2005. Mr Colangelo conceded that very few reportable offenders were required to report to the SOMS as frequently as the respondent. Section 28(1) requires a reportable offender to report his or her personal details annually, but by s 28(3) the Commissioner of Police may by notice require a reportable offender to report at any time as stated in the notice.
It was Mr Colangelo's evidence that the respondent had been charged with a breach of the interim order made by Judge Birmingham on the basis of his admission to interviewing officers at a SOMS meeting on 27 December 2012 that he had been on a train between Edgewater and Clarkson stations on Christmas Day. He reported the breach at a scheduled meeting on 27 December. CCTV footage was obtained that confirmed his report. His explanation was that he knew he was not supposed to travel on that day, but was upset due to an argument with his parents. The fact of the respondent's prosecution for a breach in these circumstances gives some indication of both the level of control he is under as a reportable offender and the candour with which he reports his activities.
It is evident from the interview records that the police in the course of regular meetings with the respondent have been able to elicit more information from him than he is bound by law to give, yet he is not cautioned and the interviews are not video‑recorded. Mr Colangelo believes that the respondent knows that he does not have to answer questions, other than to give his personal details and any changes to them: see s 26(1).
Some criticism of the police was implicit in the cross‑examination of Mr Colangelo. For example, it was suggested by reference to interview notes of a meeting on 8 August 2012 that the police acted oppressively by telling the respondent not to talk to strangers on public transport when he was not prohibited from doing so. On that occasion Mr Colangelo and another officer spoke to the respondent about a field report of the respondent having been seen speaking to a woman at Clarkson train station who was observed to be about 30 years old and to be pushing a pram. (Field reports are made by transit officers who are made aware of the restrictions placed on the respondent by the order). The notes indicate that the respondent was visibly upset by this reference. He was 'advised' not to talk to strangers. Mr Colangelo acknowledged that the respondent was not prohibited from doing so, and said that he was merely advised, not compelled, not to do so.
Whilst one can readily appreciate the respondent's exasperation by the constancy of surveillance and the frequency with which he must account to the police, it would not be appropriate to reflect upon the conduct of the police case officers or the transit officers. The court accepts, however, that the respondent is burdened by his management regime and that it is a cause for frustration and resentment. One would expect those officers to be sensitive to such feelings. It is also to be hoped that, with time and satisfactory behaviour, the intensity of his supervision may lessen.
Mr Colangelo produced other field reports. A report dated 9 July 2012 stated that the respondent was seen glancing at a young woman at Clarkson station. On 26 August 2012 there was a report that he was seen at Perth station on the day of the City to Surf Fun Run when there were children about. It is apparent from the field reports attached that the police have been regularly informed of the respondent's observed behaviour on trains and at train stations and rely on such information to monitor curfew compliance. The respondent had reported to police that he felt harassed by transit officers. Mr Colangelo said the respondent was made aware that he was under surveillance from time to time. He could see why he would feel frustrated and accepted that it might be a reason for him wanting to live away from Perth.
The SOMS interview notes record detailed conversations with the respondent. The records are admissible pursuant to s 79C of the Evidence Act 1906. They are relevant to some of the matters which the court is required to consider pursuant to s 90(3).
Twelve move‑on notices referred to in and attached to (MC17), the first affidavit of Mr Colangelo, are also admissible pursuant to s 79C. They were issued from 27 March 2007 to 16 July 2009. There is no evidence of any such notices having been issued since. Only two such notices mention behaviour towards young females. They were issued in 2007. There is insufficient information in the others to draw any inferences from them. They have little weight.
Mr Colangelo in his affidavit has expressed opinions as to the need for and likely effect of an order in the terms sought by the applicant. I do not consider that Mr Colangelo, merely by reason of his experience as a police officer (17 years) and his particular experience of being attached to the child abuse squad (2005 ‑ 2007) and as a member of the SOMS since February 2011, is qualified as an expert to express the opinions set out in his first affidavit from [18] ‑ [132]. These are in the nature of submissions. They are not admissible as expert evidence. His characterisation of the respondent's prior offences in [96] ‑ [102] is inadmissible for the same reason.
What is clear from the evidence of Mr Colangelo is that the respondent is closely supervised by the SOMS. He knows that he may be under surveillance. He is mindful of the restrictions imposed on him by the prohibition order. He exhibits a particular awareness of the requirement to stay away from female children. In this respect the information contained in the SOMS interview notes is consistent with and supportive of Dr Watts' observations regarding the respondent's capacity to learn and obey rules. The interview notes reveal the extent to which compliance with reporting obligations and the prohibition order dominate the respondent's existence. He has reported being upset by being called a paedophile. He is distressed by the extent of his surveillance. He is resentful of the prohibition order. He would like to live elsewhere. At the same time he is compliant with the order and very aware that he must stay away from children.

Section 90(3) considerations

Turning, then, to the matters which I must take into account in determining whether, and if so, in what terms, a prohibition order should be made, my findings and observations are as follows.

(a) The seriousness of the reportable offender's reportable offences and corresponding reportable offences

Section 3 of the Act defines 'reportable offence' as having the meaning given to that term in s 9. Relevantly, section 9 provides by reference to sch 1, sch 2 and sch 3 of the Act that a reportable offence is a class 1 or class 2 offence or a class 3 offence if the person concerned has previously been found guilty of another class 3 offence.
In this case the reportable offences are the two aggravated indecent assaults committed in 2004 and the offence of indecent assault committed in 2009. These are class 2 offences. The first two offences I have observed were committed when the respondent was aged 18. The victims were 13 and 14 years respectively. The offences occurred in a public place, namely the Midland bus station, in view of witnesses. The respondent touched each of the victims on their breasts over their school uniforms, and, in the case of the second victim, on her upper leg. They involved importunate sexual behaviour towards young teenage girls whom the respondent viewed as his peers. He had no record of any sexual offending up to that time. He may not have appreciated the wrongfulness of his acts. He did not persist in his behaviour. The victims were able to avoid him. There was no coercive behaviour involved. Although the offences by their nature were serious, they were not so, on their facts.
The indecent assault committed in 2009 involved a 17‑year‑old female who was working in a shop in a city arcade. Again, the approach was made in public. It was importunate and, accordingly, rebuffed. There was some element of persistence in that the victim was followed to a store room and had to lock the door behind her to get away from the respondent who called out for her to show him something. On the evidence of Dr Watts the respondent viewed the victim as an adult, notwithstanding her actual age. The contact constituting the assault was to run his hand over the bare left arm of the victim, across her left shoulder and to stroke her lower back and buttocks. Without wishing to play down the distress occasioned to the victim, this was not a serious offence of its kind.

(b) The period of time since the offences were committed

The first two reportable offences were committed nine years ago, the third nearly four years ago. As I have observed, the respondent is now nearly 28 years of age and since 2008 has been under prohibition orders preventing him from having contact with children who are unaccompanied by a parent or guardian. The evidence of Dr Watts is that he has learned that as a rule.
The first prohibition order in 2008 was made after the respondent's convictions in July and October 2007 of common assault and stalking in respect of a 12‑year‑old female in Fremantle. It would appear that in the time that has passed since the making of the first order, the respondent has learned to stay away from children, and has matured somewhat, at least to the extent that he does not see young teenagers as his peers.

(c) The age of the reportable offender and the age of the victims of those offences at the time those offences were committed

I have commented on the relative ages of the respondent and the victims and the significance given to this feature by Dr Watts.

(d) The difference in age between the reportable offender and the victims of those offences

I have commented on the age differential and its significance particularly in respect of the 2004 offences. The respondent was 18 years of age and the victims, although young teenagers, were likely to be perceived by him as his peers with whom he could most relate with least difficulty. The victims of his 2009 and 2010 offences, though aged 17 and 18, were perceived by him as adults.

(e) The reportable offender's present age

The respondent is aged 27. The psychological evidence is that he has matured to some extent and has learned certain rules, but is still liable to behave in a sexually inappropriate manner due to the combined effect of his autism and his intellectual disability.

(f) The seriousness of the reportable offender's total criminal record

I have commented in these reasons upon the relevant criminal record of the respondent, which includes offences of wilful exposure and committing an indecent act in public, common assaults, stalking, and as recently as November 2010 an indecent assault upon an 18‑year‑old female. The latter offence also involved an inappropriate sexual approach in a public place. The respondent sought to enter into conversation with the victim and propositioned her before taking hold of her as she was walking away from him into a lift.
The criminal record of the respondent is a matter of proper concern, but it is not serious having regard to the fact that the sexual assault offences have not involved violence or coercion, have been committed in public places, and have been characterised by behaviour that is wholly consistent with the respondent's autism and intellectual disability, the combined effect of which has a profound effect on his ability to socialise. The offences of wilful exposure and doing an indecent act in public indicate his difficulty in managing his sexual inclinations in a social context and probably, to use Dr Watts' expression, psychosexual disturbance.

(g) The effect of the order sought on the reportable offender in comparison with the level of the risk that a further reportable offence, or an offence that may give rise to an offender reporting order, may be committed by the reportable offender

The court has to balance the respondent's right to freedom of movement which a prohibition order would curtail with the risk of offending that such an order may avert. In my view what s 90(3)(g) requires is a weighing of the rights of the respondent against the benefits of an order in terms of risk reduction. It is an invidious task.
The evidence in this case does not show that the 2008 or 2011 orders have imposed unduly upon the respondent's freedom, when viewed with the positive effects of the orders. The evidence shows that since the first prohibition order was made in 2008 the respondent has committed only one reportable offence, being the indecent assault in 2009 against a 17‑year‑old female. He served a term of imprisonment. In 2010 he was convicted of five counts of failing to comply with the 2008 order by travelling on public transport when not permitted. He was again imprisoned. Apart from the Christmas Day incident, for which he is yet to be dealt, he has not subsequently committed a breach. Although he committed an indecent assault in November 2010, this was not a reportable offence and was not serious.
It would appear, then, that whether by rule‑learning, or due to fear of a court penalty, the respondent's behaviour has changed such that the incidence of offending has diminished. The effect of previous orders may well have been to teach the respondent that he will get into trouble if he goes near children. It is also the case, however, that the terms of those orders have significantly restricted the respondent's use of public transport, and, consequently, the opportunity for social contact which may lead to inappropriate and potentially unlawful behaviour.

(h) To the extent that they relate to the conduct sought to be prohibited – the circumstances of the reportable offender, including the reportable offender's accommodation, employment needs and integration into the community

The respondent is not capable of living independently and is not suited to employment. He does not have a motor driver's licence. He is supported by Teem Treasure and his parents. He would not be able to live away from Perth without similar support, so while he may want to live in Sydney or elsewhere, it is not practically possible.
There is no evidence before the court of any particular activities in which he is participates or would like to participate that an order in the terms sought would preclude. The restrictions sought by the applicant would prevent the respondent from accessing public transport at times when structured activities are provided for him through Teem Treasure. Such activities are more conducive to his welfare than idle travel on trains and buses.
I find that the terms of the existing prohibition order have not been incompatible with the semi-independent lifestyle which the respondent is able to enjoy with the supports I have mentioned, and he has not been prevented from engaging with the community whilst under the order except at certain times.

Conclusion

The respondent’s objection to the application is limited to pars 1 and 4 of the proposed order. Issue is taken with the restriction on his place of residence to accommodation funded by the Disability Services Commission and with the restriction on the times he can access public transport.
The court is concerned not to restrict the respondent's freedom to any greater extent than is reasonably necessary in the circumstances to meet the requirements of the Act.
Having considered the matters set out in s 90(3)(g) in the light of the evidence, I have come to the view that no substantial change to the status quo by way of alteration of the current regime is indicated.
I find on the basis of Dr Watts' opinion and other evidence, that the respondent has a tendency to behave in a sexually inappropriate manner and therefore poses a risk to the sexual safety of children. His untoward behaviour over the last two or three years is not enough to displace that risk. Dr Watts' view is that it may take 10 years of non‑offending to justify having no management plan.
I am satisfied that the respondent does pose a risk to the sexual safety of children generally, not because he has any identified paedophilic tendency, but because children, whom the Act defines to be persons under the age of 18 years, are vulnerable to, and should be protected from, approaches by the respondent which could lead to the commission of a sexual offence. The risk is relatively low, but still requires management. A prohibition order will reduce that risk as it has been shown to do in the past.
Section 90(3)(j) requires the court to take into account any matter that the court considers relevant. In determining the content of the order I am mindful that the respondent has become used to conforming to the restrictions to which he has been subject to date. In my opinion, no change to the existing regime should be made which may be interpreted by the respondent as a licence to act in a manner that might undo the achievements he has made in terms of acceptable behaviour in recent times. At the same time, however, terms which are shown to be redundant should not be included.
I note also that, irrespective of the terms of any order, the respondent will remain subject to the reporting obligations imposed on him as a reportable offender. These are clearly onerous. The effect of a prohibition order is complementary. It is evident that the respondent is able to understand and obey clearly expressed rules of conduct. His compliance is enjoined in various ways including transit officer surveillance, which I accept may be intrusive and even oppressive at times, but which is a necessary concomitant of his management by the SOMS.
I am of the view that par 1 of the proposed order is appropriate. Paragraphs 2 and 3 are not contentious. The wording of those parts will be simplified. In respect of par 4, it is sufficient to prohibit the respondent from going on public transport, or being within 50 m of a train, ferry or bus station, between 8.00 am and 4.30 pm on weekdays. There is no meaningful distinction to be drawn between weekends and school holidays in terms of risk management. The respondent has not offended on or near public transport for six years (excluding breach offences).
The term of the order will be two years. Either party may apply pursuant to s 96 to revoke or vary the order at any time.

Order

Subject to any further submissions by counsel as to its terms, the order will be as follows:
1.Unless he is staying at his parents' home, the respondent must not reside at premises other than premises in which he has 24‑hour per day support funded by the Disability Services Commission.
2.The respondent must not, without reasonable excuse, associate or have contact with any child, including any teenager under the age of 18, unless a parent or guardian of the child is present.
3.The respondent must not, without reasonable excuse, be in or near a school, a kindergarten or a childcare centre.
4.The respondent must not, without reasonable excuse:
(a)travel on public transport, including buses, trains and ferries; or
(b)be within 50 m of a bus, ferry or train station,
between the hours of 7.30 am and 4.30 pm on weekdays, unless:
(i)he is accompanied by a case worker; or
(ii)he has prior written permission from a police officer or case worker to be at a train, bus or ferry station during that specified time and on that specified date.
5.In this order:
(i)'police officer' means any police officer from the sex offender management squad (SOMS); and
(ii)'case worker' means the case manager from Teem Treasure Pty Ltd, or any person who has written authority from the case worker or a police officer to supervise the respondent.
The order will be explained to the respondent in language likely to be understood by him in accordance with s 94.