Director of Public Prosecutions for Western Australia v Decke [No 2] - [2017] WASC 119

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- DECKE [No 2] [2017] WASC 119

CORAM: FIANNACA J

HEARD: 16 MARCH 2017

DELIVERED : 28 APRIL 2017

FILE NO/S: MCS 36 of 2009

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
BRIAN JOHN DECKE
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Contravention of DSO supervision order - Respondent's risk of reoffending unacceptable under current supervision order - Whether proposed amendments and additions to the supervision order provide adequate protection of the community - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 17, s 21, s 22, s 23, s 33, s 40A

Result:

Supervision order rescinded
Continuing detention order made

Category: B

Representation:

Counsel:

Applicant: Mr M T Trowell QC
Respondent: Mr D J McKenzie

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie Legal Pty Ltd

Cases referred to in judgment:

Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
FIANNACA J:

Introduction

This is an application by the State of Western Australia (the applicant) for an order under s 23 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) in respect of the respondent, Brian John Decke, on the basis that he has contravened conditions of a supervision order under the DSO Act.
On 29 October 2009, having served a term of imprisonment for indecently dealing with a child, the respondent was found to be a serious danger to the community under the DSO Act, in that there was an unacceptable risk he would commit a serious sexual offence if he was not subject to a continuing detention order or a supervision order. The application, which was brought in this court pursuant to s 8 of the DSO Act, was heard by Hall J.[1] The paramount consideration for his Honour in deciding whether to make a continuing detention order or a supervision order was the need to ensure the adequate protection of the community. On the evidence before him, his Honour was satisfied that the community could be adequately protected, at that stage, by releasing the respondent on a supervision order for a period of 10 years, subject to 42 conditions formulated to ensure adequate monitoring of the respondent, control of his behaviour and continuing treatment intended to reduce his risk of sexual offending in the future.
[1] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312.
A person who is released on a supervision order under the DSO Act and contravenes a condition of the order becomes liable to be dealt with by the Supreme Court for that contravention. Proceedings are commenced by an application by a police officer or a community corrections officer under s 21 of the DSO Act for a summons or an arrest warrant which will bring the person before the court. The Director of Public Prosecutions for Western Australia (the DPP) may then apply in the name of the State for an order under s 23 of the DSO Act, being either an order amending the conditions or extending the period of the supervision order, or a continuing detention order. The person is also liable to be charged under s 40A of the DSO Act with the offence of contravening a supervision order.
At various times during 2014 and 2015, the respondent is alleged to have contravened a number of the conditions of the supervision order. Although he was charged with offences under s 40A, no application was made under s 21 of the DSO Act until 3 November 2016, at which time an application was made for an arrest warrant on the basis of seven instances of contravention commencing in February 2014 and concluding in April 2015. At the time the application was made, the respondent was a sentenced prisoner for offences related to the alleged contraventions.
On 8 November 2016, the DPP filed an application in the name of the State seeking an order that the respondent be detained in custody for an indefinite term for control, care or treatment (i.e. a continuing detention order), or, in the alternative, an order that the conditions of the supervision order made on 29 October 2009 be amended in such terms as the Court thinks fit to ensure adequate protection of the community. At a directions hearing on 21 November 2016, Jenkins J ordered that the respondent undergo examination by consultant psychiatrist Dr Adam Brett and that a report be provided by Dr Brett for the purposes of the application.
The application was heard on 16 March 2017. The respondent did not deny that he had contravened the supervision order. His submission was that the appropriate order in all the circumstances was one amending the conditions of the supervision order in a manner that would more specifically control the respondent's behaviour to avoid contraventions of the type he had committed. The applicant, on the other hand, submitted that the evidence established that the respondent's risk of committing a serious sexual offence had increased over the last two years to an unacceptable level while in the community on a supervision order, so that the only way in which to provide adequate protection of the community is for the court to make a continuing detention order in respect of the respondent.
Those opposing positions define the issues. As will emerge from a consideration of the law, it is only if I am satisfied on the balance of probabilities that an amended supervision order would not obviate the unacceptable risk that the respondent would commit a serious sexual offence that I could make a continuing detention order.

Law applicable in contravention proceedings

The provisions concerning contravention of a supervision order are in Div 4 of the DSO Act.
Section 21 provides for the issue of a summons or a warrant for the arrest of the person who is the subject of a supervision order upon the application of a member of the police force or a community corrections officer who reasonably suspects the person is likely to contravene, is contravening, or has contravened a condition of the supervision order. A summons or warrant issued under s 21 requires the person to appear or be brought before the Supreme Court for it to consider the suspected or anticipated contravention.
If a person appears or is brought before the Supreme Court pursuant to s 21, the DPP may apply to the court for an order under s 23.[2] Section 23 is in the following terms:
[2] Dangerous Sexual Offenders Act 2006 (WA) s 22(1).
23.Court may make order
(1)If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may ‑
(a)make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the conditions of the supervision order, or both; or
(b)if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, make a continuing detention order in relation to the person; or
(c)make no order.
(2A)In considering whether it is satisfied as required in subsection (1)(b), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.
(2)In deciding whether to make an order under subsection (1), the paramount consideration is to be the need to ensure adequate protection of the community.
Once the court is satisfied that the person has contravened the supervision order, the approach mandated by s 23 for choosing the appropriate order to be made, if any, is different to the approach under s 17 on an application for a Div 2 order under the DSO Act and under s 33 on an annual review of a continuing detention order. In effect, those sections provide that, if the court is satisfied the person is (or remains) a serious danger to the community, it must choose either to make (or affirm) a continuing detention order or to make a supervision order. The paramount consideration in deciding on the appropriate order is the adequate protection of the community. There is no requirement under s 17 or s 33 for the court to be satisfied as provided in s 23(1)(b) before a continuing detention order can be made or affirmed. Indeed, in the context of s 17 and s 33, I have previously concluded that if the court is not satisfied a supervision order is capable of providing adequate protection of the community (having regard to the possible conditions which might be imposed, as identified in the evidence), it must make a continuing detention order under s 17 or decline to rescind the detention order on an annual review under s 33.[3] That conclusion follows from Director of Public Prosecutions (WA) v Williams, in which Wheeler JA (Le Miere AJA agreeing) said:[4]
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.
[3] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [29] ‑ [32].
[4] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [86] (Wheeler JA) (LeMiere AJA agreeing). See also the reasons of Martin CJ in that case at [47], where his Honour framed the question in terms of 'whether a supervision order could be made which would provide adequate protection to the community'.
The need to ensure the adequate protection of the community is also incorporated in s 23, but it is specified to be the paramount consideration not in deciding between the orders in s 23(1)(a) or (b), but in 'deciding whether to make an order under subsection (1)', in the context in which there is an option in s 23(1)(c) to make no order. Applying the approach in Williams, if the court is not satisfied that the community would be adequately protected by making no order, it must make an order under s 23(1)(a) or (b).
However, in accordance with the requirements of s 23(1)(b), before the court makes a continuing detention order, it must be satisfied that there is an unacceptable risk that, if such an order were not made, the person would commit a serious sexual offence. The standard of satisfaction required under that paragraph is not specified, but the use of the words 'also satisfied' in the context in which satisfaction on the balance of probabilities is specified earlier in the section as the standard of satisfaction in determining whether there has been a contravention, suggests that the same standard was intended to be applied under s 23(1)(b). The only other standards of persuasion referred to in the DSO Act are in s 7 (a high degree of probability in the context of the court being satisfied that the person is a serious danger to the community) and, by implication, in s 40B (which in effect incorporates the criminal standard of proof in proceedings for an offence of contravening a requirement of a supervision order). Those provisions do not apply to an application under s 22. The scheme of the provisions under Div 4 of the DSO Act appears to assume that the person who is the subject of a supervision order continues to be a serious danger to the community. The question that arises under s 23(1)(b) is whether the level of the person's risk has risen to a point where the community can no longer be adequately protected by any existing or amended conditions of a supervision order.

Evidence in the contravention proceedings

At the hearing on 16 March 2016, the applicant tendered a book of materials (exhibit 1) which contained 19 items, including:
1.particulars of the alleged contraventions;
2.an affidavit of Nadine Christina Minnock, a Senior Community Corrections Officer (SCCO) with the Department of Corrective Services (DCS), which (a) attaches a copy of the supervision order, (b) outlines aspects of the respondent's history on the supervision order, the alleged contraventions and the charges brought against the respondent while he has been on the supervision order, and (c) attaches statements of material facts in respect of those offences;
3.sentencing transcripts from 27 June 2014, 8 May 2015, 8 June 2016 and 4 November 2016, relating to the various offences with which the respondent has been charged while on the supervision order;
4.transcripts of police interviews conducted with the respondent on 31 March 2015, 3 April 2015 and 26 June 2015, concerning a number of the alleged offences;
5.photographs of children taken by the respondent forming the basis of charges on 31 March 2015 and 20 April 2015;
6.a psychiatric report of Dr Adam Brett dated 21 February 2017, prepared for these proceedings (exhibit 1.16);
7.DCS Dangerous Sexual Offenders Act 2006 Performance Report dated 8 March 2017, prepared by Ms Erin Hutchings, SCCO (exhibit 1.17); and
8.transcript of the proceedings in the Div 2 hearing before Hall J in August and October 2009.
The applicant also tendered:
9.a psychological report of Dr Dylan Galloghly, dated 13 March 2017, prepared for these proceedings (exhibit 2);
10.a Desktop Accommodation Analysis dated 14 March 2017, prepared by the Western Australia Police in respect of proposed accommodation for the respondent if he were to be released on a supervision order (exhibit 3); and
11.the respondent's criminal history as at 14 March 2017 (exhibit 4).
Also at the hearing, Dr Brett, Dr Galloghly and Ms Hutchings gave oral evidence and were cross-examined. The respondent did not give evidence. He was under no obligation to do so, and I do not draw any adverse inference from the fact he did not give evidence.

Background to the supervision order

In order to determine the issues in these proceedings it is necessary to have regard to the background to the supervision order.
The respondent's history of sexual offending that informed the decision of Hall J in Director of Public Prosecutions for Western Australia v Decke(DPP v Decke)[5] that the respondent is a serious danger to the community is set out in detail in his Honour's reasons. I respectfully incorporate his Honour's narration of the history and will provide only a brief outline for the purposes of these reasons.
[5] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [18] ‑ [34] (Hall J): reproduced in Exhibit 1, 37 - 55.
The respondent's first sexual offence was also his first serious sexual offence for the purposes of the DSO Act.[6] On 29 July 1982, when he was 31 years of age, whilst babysitting a neighbour's children at her home, he touched one of the children, a nine‑year‑old girl, on the vagina with his finger and with his mouth. When the incident was reported to police, the respondent admitted the offence and said that he knew that what he was doing was wrong but could not help himself. He also admitted that he had masturbated in front of the child. He was charged with the offence of indecently dealing with a child under the age of 14 years[7] and upon conviction was placed on probation for 3 years.
[6] Relevantly for present purposes, it means 'a serious sexual offence as defined in the Evidence Act 1906 s 106A': s 3(1) of the DSO Act. Section 106A defines 'serious sexual offence' to include an offence under a section or Chapter of The Criminal Code mentioned in Pt B of Sch 7 of the Evidence Act for which the maximum penalty that may be imposed is 7 years or more, and offences under a repealed section of The Criminal Code that were substantially the same as those under a section or Chapter mentioned in Pt B of Sch 7 and for which the maximum penalty was 7 years or more. The definition includes offences of indecent dealing with children.
[7] Section 183 of the Criminal Code as it stood at that time, which carried a maximum penalty of 7 years' imprisonment.
The majority of the respondent's offences of a sexual nature after that, commencing in 1987, were for wilful exposure, for which he mostly received fines, although he was on occasions placed on probation or a community based order and, on one occasion, in June of 1994, he was sentenced to 4 months' imprisonment. He has eight convictions for wilful exposure, one in each year from 1987 to 1990, one in each year after that from 1992 to 1994, and finally in June 2002. On each occasion, the offence was committed within a few months before the conviction. The offending consisted generally of exposing himself to female children or young women and masturbating in their presence. In September 1990, he was also convicted of an offence of exposing an obscene picture to view in a public place. The offence occurred on 3 April 1990 and consisted of the respondent holding up a pornographic magazine while he was in his vehicle so that a 14-year-old girl in another vehicle could see it. He was fined for that offence.
On 8 July 1997, he was convicted of an offence of indecent assault and doing an indecent act in public, which he committed on 1 July 1996. Having removed his trousers in public so that he was naked from the waist down, he accosted a young woman who tried to ignore him, grabbing her around the neck from behind and dragging her backwards, until she was able to break away. He was convicted after a trial in the District Court and was sentenced to 23 months' imprisonment for that offence. He was also sentenced to 4 months' imprisonment concurrent for the indecent act in public.
The final conviction before the respondent was found to be a serious danger to the community was on 1 March 2007 in the District Court for an offence of indecently dealing with a child who was a lineal relative which occurred on 16 January 2005. The respondent was convicted after pleading guilty and was sentenced to 2 years and 5 months' imprisonment. The circumstances of that offence were that the respondent was staying with one of his sons. The household included the son's partner and their four children, who at that time ranged in age from one to six years. The respondent slept in the lounge room. On the morning of Sunday, 16 January 2005, the two older children, girls aged six and five, came into the lounge room to watch television. As his five-year-old granddaughter lay on the lounge suite, the respondent placed his right hand inside the left leg opening of her underwear. As he did so his son walked in. The respondent was startled and pulled his hand out. He apologised to his son. When interviewed by the police he claimed that his granddaughter had pulled her skirt up and was not wearing underwear, and that he responded by placing his hand over her and telling her not to do that. He admitted that his hand may have touched her, but denied having any sexual intent. However, he later told the police that he felt lonely and that he did not react like he 'probably … should've' upon 'seeing a naked female body there'.[8]
[8] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [34] (Hall J).
Although the police were contacted immediately after the offence in January 2005, the respondent was not dealt with for that offence until early in 2007. In the meantime, he sought assistance from SafeCare, a therapeutic group service for men who have sexually offended against a family member. He also sought assistance from an individual counsellor. A report prepared by SafeCare was summarised by Hall J as follows in DPP v Decke:[9]
That report said that whilst Mr Decke had initially denied and minimised his offending, he had an 'increasing acceptance of responsibility'. He described intense self-loathing for his actions and exhibited significant distress and expressions of sorrow and regret for his actions which had led to estrangement from his family. However, it was noted that there was a lack of honesty about his sexually deviant interests and a tendency to view himself as a victim. The report stated that he continued to place himself in situations where children are present and was unable to recognise the potential risk of doing so because he was confident he had made significant changes. This, it was stated, placed Mr Decke at a greater risk of re-offence.
[9] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [35] (Hall J).

His Honour also referred to the pre-sentence report that was obtained for the proceedings in 2007 and noted that the respondent denied committing the offence and told the author that he was pleading guilty only to avoid any psychological ill-effects for his granddaughter. His Honour continued:[10]
The report writer said that Mr Decke showed minimal insight into his sexually deviant behaviour and attempted to justify his current situation by saying that it was driven by his personal circumstances at the time.
[10] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [36] (Hall J).
The respondent was also assessed by a psychologist for the sentencing proceedings. As with the author of the pre-sentence report, he denied committing the offence against his granddaughter. He also denied or minimised his culpability in respect of earlier offences and presented with a perception that he had been victimised. His score on the Static‑99 actuarial instrument placed him in the 'high risk' category for sexual reoffending. Hall J summarised the psychologist's conclusions in the report prepared in 2007 as follows:[11]
The psychologist concluded that Mr Decke's interest in deviant sexual activities, namely exposing himself to strangers and his sexual interest in children, appeared to be pervasive and deeply entrenched. It was also noted that past interventions to address this issue appeared to have been largely unsuccessful. It was considered to be of paramount importance that Mr Decke be monitored to ensure that his opportunity to reoffend is limited by environmental factors. Unsupervised access to children was said to be something that should be strenuously avoided.
[11] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [38] (Hall J).
When he was sentenced on 1 March 2007, the sentencing judge ordered that the respondent be eligible for parole, but indicated that she did not consider he was a suitable candidate for parole unless he successfully underwent sex offender treatment whilst in custody. Once incarcerated, the respondent was in fact assessed as requiring an intensive sex offender treatment program, but by the time of his earliest date for release on parole, the respondent had not completed such a program. It seems that no such program had been available to him either because the timing of the programs did not fit within his period of incarceration, or they were fully booked when the timing may have been appropriate. In any event, because he had not completed such a program, the respondent was not released on parole and he served the full sentence of 2 years and 5 months' imprisonment. It was in the context that the respondent had not completed a treatment program and was likely to be released into the community without the benefit of supervision that the DPP made the application under the DSO Act for a Div 2 order on the basis that the respondent was a serious danger to the community.
As the respondent had completed his sentence of imprisonment before the hearing of the application for the Div 2 order, he was released by Murray J at a preliminary hearing on a conditional undertaking pending the substantive hearing.

The proceedings for the Div 2 order

Two consultant psychiatrists assessed the respondent and prepared reports for the hearing of the application in August 2009. They were Dr Adam Brett and Dr Sam Febbo. The contents of their reports and their evidence at the hearing were outlined by Hall J in DPP v Decke.[12] It is sufficient for present purposes to provide a brief summary.
[12] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [42] ‑ [52] (Hall J).
It emerged that the respondent was the victim of sexual abuse as a child. He tended to rely on that experience and an incapacity to deal with stressful situations to absolve himself of responsibility for his own sexual offending. According to Dr Febbo, he 'directed most of the responsibility externally including to members of his own family'.[13]
[13] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [46] (Hall J).
Dr Brett concluded that the respondent was in need of intensive sex offender treatment and was in a high risk category for sexual offending. He said that the respondent had a number of risk factors that remained unaddressed and untreated. Some were amenable to treatment. According to Dr Brett, the main risk factors included the escalation of sexual violence; denial and a minimisation of sexual violence; problems with self-awareness; problems with coping; problems resulting from child abuse; sexual deviance; problems with relationships; and problems with planning and treatment.[14] Hall J noted that Dr Brett did not specifically distinguish any risk of the respondent committing serious sexual offences as defined in the DSO Act. In other words, he dealt with the issue of the respondent's risk of sexual offending as encompassing all of his sexual offending in the past, including the wilful exposures, which did not come within the definition of serious sexual offences.
[14] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [42] (Hall J).
Dr Brett was of the opinion that the respondent should not be alone with minors and that he required ongoing counselling for his own sexual abuse and management of his depression.[15] He was of the opinion that the respondent would be a significant risk of committing a serious sexual offence if he were not subject to a continuing detention order or a supervision order.
[15] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [43] ‑ [44] (Hall J).
Dr Febbo was of the opinion that the respondent's history represented a pervasive and entrenched pattern of sexual offending, arising from an entrenched pattern of deviant sexual arousal, difficulties with adult relationships, a tendency to absolve himself of responsibility, and difficulties with stress‑inducing factors.[16] He concluded that the respondent remained at high risk of future sexual offending, although, as with Dr Brett, he did not distinguish between sexual offending of a general nature and offences of a serious nature as defined by the DSO Act. Dr Febbo suggested that any future offence would be likely to occur at a time of significant psychosocial stress, with the possible presence of financial difficulty, family related stress and anger, in addition to isolation and, more likely than not, in a situation where the respondent is not in a relationship with an adult female.[17] He suggested that any such offence may be preceded for some time by a deterioration in the respondent's mental state with the presence of significant depressive symptoms, although that was not a prerequisite to offending.
[16] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [47] (Hall J).
[17] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [48] (Hall J).
Hall J then considered the significance of such factors to risk management, as follows:[18]
The likely presence of such factors makes it more possible to formulate conditions for a supervision order that would minimise the risk of any reoffending. In particular, Dr Febbo noted that any supervision order would need to include limitations on contact with children. In his view, any serious sexual offending in relation to children would occur in the context of a relationship and accordingly it is likely that prior to the offending Mr Decke would breach any requirement that contact with children be limited.
[18] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [49] (Hall J).
Dr Febbo noted that, if the respondent was detained in custody, he could complete an intensive sexual offender treatment program for 6 months, although he suggested there were some doubts as to whether such a program would be beneficial.[19] Alternatively, if released on a supervision order, there would be a management plan including counselling and therapeutic interventions. Dr Febbo considered that what would take place post‑release, in particular ensuring that the respondent's contact with young females was limited, would have a more significant impact on his level of risk.[20]
[19] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [50] ‑ [51] (Hall J).
[20] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [50] (Hall J).
Hall J considered the respondent's conduct while released on the conditional undertaking pending the hearing. One of the conditions was that he was not to have contact with children. On the day of his release, he was picked up by his brother, whose children were in the vehicle. His brother had not been aware of the condition, and no action was taken by the respondent's management team. There were two other occasions when the respondent was with his brother's children. He voluntarily reported each of the occasions of contact to his Community Corrections Officer (CCO). While the reporting was commendable, the respondent had also said that he could not see why he could not have contact with children, which caused the Department to have some concerns that he was not taking the conditions of the undertaking seriously and resulted in the issuing of a written instruction reinforcing the respondent's obligations and verbal warnings being given to him about the potential consequences of non-compliance.[21]
[21] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [55] (Hall J).
Hall J noted that the respondent's history of offending, the failed attempts to treat his deviant sexual behaviour, and the evidence which suggested that, even if he were to engage in an intensive sexual offender program, it may not reduce the risk of his reoffending, might be thought to lead to a conclusion that the respondent's risk of sexual offending is intractable and that he must therefore be detained indefinitely. However, his Honour was of the view that requiring a person to undergo treatment was not the only way in which to reduce risk to acceptable levels.[22] Relying on Dr Febbo's evidence that the respondent's sexual offending followed a pattern that makes risk factors predictable, his Honour concluded that if such risk factors can be avoided by imposing strict conditions in a supervision order, then the risk that he would commit a serious sexual offence may be substantially obviated.[23]
[22] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [58] ‑ [59] (Hall J).
[23] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [59] (Hall J).
His Honour also noted that the DSO Act is only concerned with the risk that a person will commit a serious sexual offence, so, if the only risk was that the respondent would commit further offences of wilful exposure, the measures in the DSO Act could not be invoked. However, the offences of wilful exposure were relevant in considering his behavioural tendencies, in particular by showing that his sexual feelings were associated with young females.[24]
[24] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [60] (Hall J).
Hall J took into account that the two most serious sexual offences the respondent had committed were those in which the victims were young female children who were known to the respondent and had built up a relationship with him over time. His Honour noted that it was for that reason that Dr Febbo had suggested that conditions limiting the respondent's access to children would 'acceptably contain the risk of reoffending of a serious nature'.[25] His Honour said:[26]
It would be expected that any such conditions would be breached well before any serious sexual offence was committed.
[25] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [61] (Hall J).
[26] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [61] (Hall J).
His Honour considered it significant that, although the respondent had breached the terms of his undertaking (by being with children) within a short period after being released from prison, he disclosed the breaches, which showed some awareness of his obligations to avoid children.[27] On the other hand, it was clear from what he had said to the CCO that he failed to appreciate why the conditions were necessary, which tended to indicate that the efficacy of conditions could not rely solely on his compliance; they would require regular and intensive monitoring.[28]
[27] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [61] ‑ [63] (Hall J).
[28] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [63] (Hall J).
In concluding that a supervision order would provide adequate protection of the community, Hall J also took into account the fact that the only two serious sexual offences occurred 25 years apart, which suggested there was a prospect of the respondent's behaviour being controllable; the fact that there had been extended periods without serious sexual offending; and the fact that, other than on one occasion, when the respondent had been placed on probation in the past he had completed the periods of supervision in the community satisfactorily.[29]
[29] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [64] (Hall J).
While his Honour took a number of factors into account in deciding to release the respondent on a supervision order for 10 years, it is clear, in my opinion, that his Honour considered appropriate conditions would provide early warning flags that the respondent's risk of serious sexual offending was increasing, if breached, and that was a significant safeguard in ensuring the adequate protection of the community. The question in these proceedings is whether the warning flags constituted by the contraventions satisfy me that only a continuing detention order would provide adequate protection of the community at this stage.

The conditions of the supervision order

The supervision order made on 29 October 2009 and signed by the respondent on that date included the following conditions:
BRIAN JOHN DECKE must:
5.Comply with the same requirements set out in s 76 of the Sentence Administration Act 2003 (WA) that offenders must comply with under that section.
24.Not commit any offence contrary to s 202, s 203, s 204A or s 204B of the Criminal Code1913 (WA).
26.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act1996 (WA).
27.Not commit an offence under s 557K Criminal Code.
30.Have no contact with any child under the age 17 years, whether such contact is in person, in writing, telephone or by electronic means, unless the contact is authorised in advance by a CCO and such contact is supervised at all times by an adult approved in advance by a CCO.
31.Where any contact with a child under the age of 17 years, prohibited by the previous condition, is initiated by the child, you must withdraw immediately from the presence of the child.
32.Provide details of any contact with a child under the age of 17 years both to your CCO and to police upon the next occasion you report to that person or agency.
33.Not conduct computer searches for, nor collect in either electronic or permanent form, images of children, whether indecent or not, with the exception of images of your immediate family that are not indecent images.
The effect of condition 5 is that the respondent was required to comply with the lawful directions of a CCO. Condition 24 is concerned to prohibit obscene or indecent acts in public, and to prevent the showing of offensive materials to children or the use of electronic communications with intent to procure a child to engage in sexual activity or expose them to indecent matter. Condition 27 refers to s 557K of the Criminal Code, which provides relevantly for present purposes:
(6)A child sex offender who, without reasonable excuse, is in or near a place that is ‑
(a)a school, kindergarten or child care centre; or
(b)a public place where children are regularly present,
and where children are at the time is guilty of an offence and is liable to imprisonment for 2 years and a fine of $24 000.
The respondent comes within the definition of 'child sex offender, for the purposes of that section. A child is a person under the age of 18 years.

The contraventions

The respondent is alleged to have contravened various conditions of the supervision order on a number of occasions during 2014 and 2015.[30]
[30] Exhibit 1, Particulars of the contraventions, agreed by the parties, set out in Book of Materials tendered by the applicant in these proceedings, 2 ‑ 5.
Under s 23 of the DSO Act, before determining whether any order should be made on the application, I am required to be satisfied on the balance of probabilities that the respondent has contravened a condition of the supervision order. Although no formal admission was made on behalf of the respondent that he contravened the supervision order, the contraventions, as particularised, were not denied on his behalf. Indeed, as I have indicated, the particulars were tendered as agreed facts. In any event, each of the contraventions was charged as an offence and the respondent either pleaded guilty or, in the last matter, was convicted after trial by jury. The facts alleged in each case support the conclusion that the respondent contravened a condition of the supervision order. I am satisfied on the balance of probabilities, therefore, that the respondent contravened the various conditions stipulated in the particulars.
It is convenient to set out the alleged contraventions in a table, identifying in each case the date of the contravention, the charge number, the condition of the supervision order that was contravened, the offence that was charged, a summary of the facts and the sentence imposed.

Date of offence	Charge	Sentence	Summary of Facts
A date unknown between 23/2/14 and 13/4/14	AR 3373 & 3374 / 2014	27/6/2014 ‑ Fined $600	Breached Condition 30 ‑ prohibiting contact with any child under the age of 17. Breached Condition 32 ‑ requiring him to report any such contact to his CCO and the police. The respondent attended a work colleague's home and gave a lift to his colleague, his wife and her 2 children (aged 9 and 11) to church. The coordinator at the church spoke to the respondent about the fact he had children in the car. The respondent admitted knowing that he should not have the children in the car. Other arrangements were made for the children to be returned home. The respondent did not report the incident to his CCO or police. He pleaded guilty on 27/6/2014 to 2 counts under s 40A of the Act of contravening a supervision order.
20/9/2014	AR 9648/2014	4/11/2016 ‑ 4 months' imprisonment cumulative from 26/12/15	Breached Condition 5 ‑ requiring compliance with lawful written directions of a CCO as in s 76 of the Sentencing Administration Act'. The respondent breached a lawful direction preventing him from entering certain areas. At approximately 6.28 am on a Saturday morning he entered an exclusion zone that encompassed a dance studio near where he was working, which sometimes has children present. He remained in the vicinity of the dance studio for about 16 minutes. He pleaded guilty on 4/11/2016 to a charge under s 40A of the Act of contravening a supervision order.
23/9/2014	AR 9649/2014	4/11/2016 ‑ 4 months' imprisonment concurrent from 26/12/15	Breached Condition 5 ‑ The respondent breached a lawful direction requiring him to 'immediately return to or remain at the place where you reside and charge your transmitter if it is indicating low battery'. He was at a supervision meeting with his CCO when his GPS device indicated a low battery alert, with approximately 10 minutes of battery power. He was directed by the CCO to go straight home and charge it, but he went to Maddington shopping centre instead and his GPS device went flat for approximately 26 minutes. He pleaded guilty on 4/11/2016 to a charge under s 40A of the Act of contravening a supervision order.
3/10/2014	AR 9650/2014	4/11/2016 ‑ 4 months' imprisonment concurrent from 26/12/15	Breached Condition 5 ‑ The respondent breached a lawful direction preventing him from entering certain areas. On a Friday, at approximately 2.53 pm, he entered the same exclusion zone referred to earlier, encompassing the dance studio, and remained there for about 5 minutes. He pleaded guilty on 4/11/2016 to a charge under s 40A of the Act of contravening a supervision order.
31/3/2015	PE 16656/ 2015	8/5/2015 ‑ Fined $400	Breached Condition 33 ‑ prohibiting him, inter alia, from collecting images of children. The respondent reported to the office of SOMS[31] and consented to police searching his bag. They found an iPad containing images of children from the respondent's attendance at a festival event. Some weeks earlier, the respondent had told SOMS officers that he had attended the event and taken photographs using his mobile telephone, but said he had deleted them. He pleaded guilty on 8/5/2015 to a charge under s 40A of the Act of contravening a supervision order.
3/4/2015	PE 16791/ 2015	8/5/2015 ‑ Fined $400	Condition 27 ‑ requiring the respondent not to commit an offence under s 557K of the Criminal Code (WA). He breached the condition by being in or near a public place where children are regularly present. The respondent was with a male friend at Pioneer Park in Gosnells, where a large number of children were present during an Easter Egg hunt. He was seen by SOMS officers who then arrested the respondent. He was remanded in custody. He pleaded guilty to one charge of breaching s 557K of the Criminal Code (WA). SOMS officers had advised him of the requirements under s 557K and had confirmed his understanding on numerous occasions during their scheduled meetings. The respondent pleaded guilty to an offence under s 40A of the Act, based on the contravention of Condition 27. However, the particulars for this contravention also refer to Conditions 30 and 31, which prohibited the respondent from having contact with children under 17 years of age and required him to withdraw from any such contact if it occurred.
20/4/2015	PE 31058/ 2015 PE 31057/ 2015 PE 31053/ 2015 PE 31060/ 2015	4/11/2016 ‑ 7 months' imprisonment cumulative from 26/12/15 4 months' imprisonment concurrent from 26/12/15 Fined $2000 Fined $2000	Breached Condition 24 ‑ requiring the respondent not to commit any offence contrary to s 203 [& other similar provisions] of the Criminal Code. On 20/4/15, police searched the room where the respondent had been living, after the owner of the property located computer equipment and other electronic devices belonging to the respondent. One of the items was a mobile telephone. Located on that telephone were photographs taken up the skirts of 2 unsuspecting women whilst they were on a train. He was charged with doing an indecent act in public contrary to s 203, being the taking of the photographs. (Charge # PE31053/2015) Breach of Condition 26 ‑ requiring him not to commit any offence under the Classifications (Publications, Films and Computer Games) Enforcement Act 1996. The respondent was also found to be in possession of a number of images depicting an adult female having sexual intercourse with a horse. He was charged with possessing an indecent or obscene article under s 59 of the Classifications (Publications, Films and Computer Games) Enforcement Act 1996 (Charge # PE 31060/2015) and with an offence under s 40A of the Act of contravening the supervision order (Charge # PE 31057/2015). Breached Condition 33 ‑ prohibiting him from collecting images of children. There were also 87 non-indecent images of children on his mobile telephone. A number of them were of children in their school uniforms, taken from the respondent's previous home and a nearby 'Men's Shed'. The respondent was charged with an offence under s 40A of the Act (Charge # PE 31058/2015).
20/4/2015	PE 31056/ 2015	8/6/2016 ‑ 6 months 1 day imprisonment from 27/6/2015	Breached Condition 33 ‑ Prohibiting him from conducting computer searches for images of children, or collecting such images. The respondent was charged with an offence under s 220 of the Criminal Code of being in possession of child exploitation material. He was convicted of that offence on 8/6/2016, following a trial by jury. The respondent was in possession of an electronic storage device, USB thumb drive, which was found at his home during the search on 20/4/15. The device contained 15 images of children, 13 of them amounting to child exploitation material, showing children in a demeaning and offensive context. Two of the images showed children in a sexual context. This was the matter in respect of which the respondent was convicted after trial by jury in the District Court.

[31] Sex Offender Management Squad, which is part of WA Police and is responsible for monitoring of persons who have been found to be a serious danger to the community under the DSO Act and have been released on a supervision order.

The sentences imposed in the Perth Magistrates Court on 4 November 2016 resulted in a total effective term of 14 months' imprisonment (backdated to 26 December 2015), by the accumulation of the sentences for:
1.AR 9648/2014 - contravention of Condition 5, by entering the exclusion zone encompassing the dance studio on 20 September 2014 ‑ 4 months' imprisonment;
2.PE 31058/15 ‑ contravention of Condition 33, by collecting images of children taken from his home and 'Men's Shed', found on his computer on 20 April 2015 ‑ 7 months' imprisonment; and
3.PE 31049/2015 (not referred to in the table) ‑ one of four counts of failing to comply with his reporting obligations under the Community Protection (Offender Reporting) Act 2004, contrary to s 63(1) of that Act (PE 31049 ‑ 52 /2015). It was discovered by SOMS officers on 31 March 2015 that the respondent had not disclosed various email and Facebook accounts to the police, contrary to his obligations. He acknowledged that he was responsible for reporting all internet and social media use to SOMS officers. He attributed blame to his brother, who was living interstate, and a female friend who allegedly set up the various accounts on his behalf to maintain communication. Nevertheless, it would appear from the manner in which the matters proceeded on 4 November 2016 that the respondent had pleaded guilty to the charge. He was sentenced to 3 months' imprisonment cumulative for PE 31049/2015 and 3 months concurrent for each of the other counts.

Assessment of the contraventions

Although the applicant relies on all of the contraventions set out above, it is obvious from the factual summaries and what was said about some of the offences at the time of sentencing that not all of the contraventions manifested an increase in the respondent's risk of committing a serious sexual offence. However, I have understood the applicant to be relying on all of the contraventions because they demonstrate an escalation of the seriousness of the respondent's behaviour, commencing with what might be regarded as minor or incidental contraventions and progressing to behaviour that manifests the respondent's deviant sexual interest in children, and which may be regarded as a precursor to serious sexual offending.
The contravention in early 2014, when the respondent gave a lift to church to a colleague and his family, was explained by him on the basis that he was asked to provide transport as a favour. Although he was in the presence of children, when he knew he was not allowed to be, he was driving and there is no suggestion that the children were vulnerable. While acknowledging that the respondent still had a responsibility to comply with his order and to refuse such favours, Magistrate Malone, sentencing the respondent in the Armadale Magistrates Court on 27 June 2014, regarded the breach as being at a relatively low level of seriousness, hence the $600 fine. That is my assessment also.
The offences dealt with by Magistrate Young in the Perth Magistrates Court on 8 May 2015 were also regarded as being at a relatively low level of seriousness. The respondent was fined $400 in respect of each offence, although his Honour took into account the fact that the respondent had spent 2 weeks in custody after he was arrested for the contravention involving his presence at the Pioneer Park Easter Egg hunt.
While the contravention involving the possession by the respondent of images of children on his iPad indicates a disregard for his obligations, the images taken at a festival event appear to have only incidentally captured children within the photographs.[32] The quality of the images is not very good, and I do not consider that they would have served any purpose related to his deviant sexual interest in children. In my opinion, that matter could properly be regarded as involving a low level of seriousness.
[32] Exhibit 1, 227 - 241.
On the other hand, the respondent's presence at or near the Pioneer Park event involved a contravention of a more serious kind, in my opinion, because of the fact that there were likely to be a number of small children present and he had no legitimate reason to be there. When interviewed by Ms Hutchings for the present proceedings, the respondent explained his behaviour in going to that event on the basis that he believed he was exercising his right to attend a public religious event. In my opinion, that explanation was specious. He also claimed that he thought he had been given permission by his SCCO to attend the event, but the DCS records showed that he had not expressed any intention to attend, nor did he make any formal request. That was not challenged, and his explanation is inconsistent, in any event, with his plea of guilty to the offence.
As for the offences committed on 20 April 2015, for which he was sentenced on 4 November 2016, while the images taken up the skirts of women on a train and the pornographic images of an adult woman indicate antisocial and deviant behaviour and a sexual drive, as well as continuing flouting of his obligations under the supervision order, I would place less weight on them as offences indicative of an increased risk that he would commit a serious sexual offence, as defined in the DSO Act, particularly as such offences in the past were committed on young girls.
However, the other contraventions were of particular concern.[33] The images depict children, predominantly girls, from primary school age to teenage years. Although many of the photographs are of girls in school uniforms, not all of them are. Of the teenage girls who are wearing uniforms, some are wearing short skirts. So are two small girls who are not in uniform and appear to be at a park. There is also a photograph of two girls in bikinis. That photograph appears to be a 'selfie' rather than one taken by the respondent. There is no indication in the materials how he accessed it. When interviewed by Ms Hutchings, the respondent admitted he was aware he was in breach of his order, but said he wanted to have photographs of children he could view regularly, because he missed his own children and grandchildren. He denied any sexual arousal when viewing the images. Given his deviant sexual interest in children, the nature of some of the photographs and the fact that he was also in possession of child exploitation material, his denial rings hollow, and his explanation lacks plausibility.
[33] Exhibit 1, Images of children found on the defendant's computer on 20 April 2014, 244 - 288.
When sentencing the respondent on 4 November 2016, Magistrate Gluestein noted that the s 40A offences called for sentences of imprisonment and that personal deterrence loomed very large.[34] He considered that the charges were quite serious because of the repetition of behaviour. As for the photographs of children that were the subject of AR 9648/2014, to which I have referred in the preceding paragraph, his Honour commented that, while on their face they were seemingly innocent photographs, in the context of the respondent being a dangerous sexual offender they caused the court a great deal of concern and that offence was particularly serious. I agree.
[34] Exhibit 1, 14 ‑ 15.
I would add that the offences in which the respondent entered the exclusion zone at or near the dance studio in September and October 2014 are also of concern. While the timing of the first incident may have made it unlikely that the studio would be open or that he would encounter school children, the second incident was at a time when such an encounter may well have been possible. The location was near his place of employment, and the reason why he was excluded from the location would have been obvious to him, given the purpose generally of the conditions of his supervision order.
Further, the flagrant breach of the CCO's instruction on 23 September 2014 to go directly home and recharge his GPS device indicates a desire to be unencumbered by the monitoring device so he could go wherever he pleased. As Magistrate Gluestein said, it was the repetition of contravening behaviour that made the offending quite serious.
Of greatest concern, in my opinion, is the respondent's possession of child exploitation material on 20 April 2015, particularly when one considers that at the same time he had photographs of children on his phone that either he had taken near his place or he had accessed electronically. It appears from Ms Hutchings' report that the respondent's explanation for retaining images of children included the images constituting child exploitation material. That is particularly troubling, given that at least two of the images showed children in a sexual context. The images the subject of the trial in the District Court were not tendered in these proceedings. I did not consider it necessary to view the images, and was prepared to rely on the general description in the particulars, unless the parties considered it was important for me to see them. Neither party was of that view.
When sentencing the respondent in the District Court on 8 June 2016, in respect of the offence of possessing child exploitation material, Stone DCJ said:[35]
Whilst I accept that it's at the lowest level, which is level 1, and there are not a large number of images, you committed this offence whilst the subject of a dangerous sex offender order … for child sex offences which makes your possession in the circumstances more sinister in my view because of your … deviant sexual interest in children.
[35] Exhibit 1, 36.
With respect, I agree with that assessment. The later contraventions constituted warning flags that the respondent's risk of committing a serious sexual offence was increasing. That conclusion is supported by the psychiatric and psychological evidence at the hearing. Before dealing with that evidence, I will consider the evidence given by Ms Hutchings in respect of the respondent's performance more generally under the supervision order.

Performance report

In her report, Ms Hutchings said that, according to DCS records, since his release on the supervision order, the respondent 'demonstrated a tendency to place himself in high risk situations and display resistance to the supervision order and/or brief intervention'. However, in evidence she said that between 2009 and 2012 the respondent had engaged relatively well, in that he would attend supervision as directed and would engage with his supervising officer.
From a combination of her report and her evidence, it can be discerned that there were incidents of non-compliance with the conditions of his supervision order from as early 2010. One such incident involved him accepting a lift with his brother to church while his brother's children were in the car. While that may not be regarded as being of a serious nature, and is comparable to the contravention in early 2014 when he gave a colleague and his family a lift to church, it came after he had been warned of the danger of doing that very thing in the Div 2 proceedings, having earlier breached his undertaking by accepting a lift with his brother while there were children in the car. In any event, Ms Hutchings' evidence was that incidents of non-compliance between 2010 and early 2014 were dealt with by warning letters. Such letters issued for behaviour such as presenting to his SCCO in an aggressive and intimidating manner in February 2012, spending a night in August 2013 at a place not pre‑approved by his SCCO, and in March 2014 for commencing a period of employment without permission of his SCCO. Between July 2013 and December 2014, he was issued with seven warning letters for entering geographical exclusion zones, failing to charge his GPS device and failing to take his GPS device with him.
Although earlier on the respondent seemed more receptive of the warning letters, there was a noticeable change in his attitude to supervision from 2014. In her report, Ms Hutchings identified two incidents, in December 2014 and February 2015, when the respondent arrived late for his supervision session and presented as argumentative and disrespectful, which did not allow for meaningful supervision to occur. There were other occasions when the respondent displayed anger during such sessions. On 12 February 2015, he 'yelled, slammed his hands on the desk and stormed out of the interview room' when he was directed not to take up an employment contract at a concert for the band One Direction, where young teenage girls would have been expected to attend. On 26 June 2016, he was advised to stop swearing and talking over the top of officers when they were speaking. On that occasion, he was dismissive and belligerent.
When asked in cross-examination what may have resulted in the respondent's deterioration in attitude, she said:[36]
It was difficult to establish because Mr Decke was often untruthful or avoidant of questions put to him in supervision as to what was really going on for him in his life. So when challenging him on his behaviour in the community or at church or on his attitude towards his supervision officer or the GPS, he was very avoidant of discussing it.
[36] ts 53 (16 March 2017).
The respondent displayed a similar attitude when interviewed by Ms Hutchings for the purposes of the report. She said in evidence:[37]
I touched on that briefly with Mr Decke when I saw him for the purpose of this report. But again, he was very avoidant of that question and very circular in his answers and often attributed blame to other people for his behaviour. So there was no admission, from what I can recall, about him being personally responsible or anything going on in his life which led to the breaches.
[37] ts 54, (16 March 2017).
Ms Hutchings said that the respondent's belligerent attitude was also directed at electronic monitoring officers, particularly when he was issued with directions he did not agree with or deem fair. That continued until his remand in custody in the middle of 2015.
The respondent was referred for psychological counselling on the 19 February 2014 to address apparent grooming behaviours. He attended five sessions with the DCS psychologist before the counselling was terminated. According to Ms Hutchings, the psychologist noted that the respondent 'demonstrated limited motivation to engage, and presented with personality factors which indicated that he was unamenable to change, casting doubts on the utility of psychological counselling as a therapeutic intervention.'[38]
[38] Exhibit 1, Performance Report (page 2), 305.

The psychiatric evidence

Dr Brett interviewed the respondent at Casuarina Prison on 3 February 2017. He found the respondent to be quite an intense man who did not like to be interrupted, even though he was not answering questions directly. The respondent became quite emotional at times during the interview.
The respondent is now 65 years old. Except for a short period, he has been in custody since April 2015. He was married until he and his wife divorced in 2005. He has four children from that marriage, all of whom are now adults. He believes he has 14 grandchildren. He said he has had no contact with his children because of the prohibition in the supervision order, but that prohibition is subject to contact being allowed in a manner approved in advance by a CCO and with the consent of the family members concerned (Condition 21).
In his report, Dr Brett noted that the respondent's personal history is well documented in previous reports.[39] Of significance, the respondent was sexually molested by an uncle when he was nine years of age and was sexually assaulted at the age of 15 by a man in his workplace. He told his parents about the incident with his uncle when it happened, but he believes that nothing was done about it and he was troubled by the fact that they continued to have contact with his uncle afterwards. It appears that the respondent did not report to authorities the sexual assault when he was 15, as he believed he was being ridiculed about it at work. The respondent told Dr Brett that the incidents caused him to lose trust in people and, in particular, he was not able to relate well to males. Dr Brett is of the opinion that the respondent's experiences of sexual abuse have had a negative impact on the development of his personality, his interactions with males, his ability to trust and his relationships.[40]
[39] Director of Public Prosecutions for Western Australia v Decke[2009] WASC 312 [16] ‑ [17] (Hall J).
[40] Exhibit 1, Dr Brett's report [108], 301.
In particular, consistently with what he has said previously, the respondent told Dr Brett that he believes his sexual offending relates to his own sexual abuse and that it is a form of revenge. He made the same connection, although in somewhat different terms, when speaking with Ms Hutchings, who says in her report:[41]
Mr Decke cried throughout the discussion, stating that the sexual abuse he suffered as a child led him to find safety in children. He attributed this view to his current offending.
[41] Exhibit 1, Performance Report (page 2), 305.
It is difficult to reconcile the notions of revenge and finding safety in children. In any event, Dr Brett considers these views as part of a 'significant previous history of attitudes that support and condone sexual violence'.[42]

Diagnosis of clinical disorders

[42] Exhibit 1, Dr Brett's report [62], 297.

Dr Brett diagnosed the respondent with having the clinical disorders of Paedophilia and Exhibitionism. He also diagnosed a mild depressive disorder.

STATIC-99-R

As he had done previously, Dr Brett used the STATIC‑99‑R risk assessment instrument, which is designed to assist in the prediction of sexual and violent recidivism for sexual offenders. It is an actuarial instrument that relies on 10 historical (and therefore unchangeable) items relating to the individual and produces estimates of future risk based upon the number of risk factors present in the individual. The respondent would score on the moderate to high risk category of reoffending using the STATIC-99-R assessment tool. His age at the time of his release will be a significant mitigating factor.
In evidence, Dr Brett said that the STATIC-99-R instrument does not discriminate between serious sexual offences and other offending of a sexual nature, such as wilful exposure. As for the age factor, he agreed in cross‑examination that age reduces risk after 60, but noted, in effect, that it could be a two-edged sword:[43]
And what could you say about Mr Decke in that regard, because, obviously, it's an individual thing as well, what could you say about him as far as age, amelioration of the risk? --- I think his chronological age reduces his risk and that's reflected in the static-99R and you score much less as you age. And so from a chronological perspective that does reduce risk and it's usually related to reduction in sexual drive. The concern about Mr Decke is that he's unreliable at relaying his sexual drive and Dr Galloghly mentions this in his report that one of the downsides about his age is his stickiness or rigidity in his thinking and so that might remain more fixed and less liable to change with psychological therapy.
Yes? --- So there are positives and negatives.

Risk for Sexual Violence Protocol (RSVP)

[43] ts 20 (16 March 17).

In assessing the respondent's risk of reoffending, Dr Brett also applied the Risk for Sexual Violence Protocol (RSVP), a set of structured professional guidelines that can also be considered a psychological test. It comprises six steps including the evaluation of 22 individual risk factors, relevance of the risk factors in the development of risk management plans, the development of risk scenarios, the development of strategies to manage the risk of sexual violence and judgments regarding overall risks in the particular case. The first step considers the respondent's history of sexual violence.

In his report, Dr Brett referred to the respondent's history of sexual offending, as I outlined it earlier. In particular, he noted that the respondent continues to deny the offence of 29 July 1982 and 'stated that his subsequent offending could be seen as revenge for this conviction'.[44] It is noteworthy that while the respondent has resorted again to the notion of revenge to explain his sexual offending, he has not been consistent about the motivation for his supposedly vengeful conduct.
[44] Exhibit 1, Dr Brett's report [34], 294.
Still dealing with the respondent's history of sexual violence, Dr Brett highlighted the fact that, in relation to the offence committed on 1 July 1996, when the respondent indecently assaulted a young woman by grabbing her around the neck and dragging her backwards while he was naked from the waist down, the sentencing judge had noted that it was an escalation of previous behaviour, and the respondent lacked remorse, regret or concern for the victim. I take into account, however, as did Hall J, that the offence was not a serious sexual offence for the purposes of the DSO Act.
In relation to the last of his sexual offences, committed on his granddaughter in January 2005, although he described self‑loathing for his actions and exhibited 'significant distress and expressions of sorrow and regret for his actions',[45] the respondent's description of the incident to Dr Brett suggests a deviant perception of his child victim and a grossly distorted attempt to explain his conduct. It causes me to have great concern about the escalation of his risk of committing a serious sexual offence. Dr Brett states:[46]
Mr Decke stated that before the offence he had had an argument with his son about starting a cabinetmaking business. He believed that because of this he wanted to revenge [sic] his son. He believed that his granddaughter started playing with his penis. He believes that she asked him to do something.
[45] Exhibit 1, Dr Brett's report [48], 296.
[46] Exhibit 1, Dr Brett's report [49].
This explanation appears to be a new development. Dr Brett referred to it as a cognitive distortion about the respondent's own sexuality and sexual behaviour that helps the respondent to justify his behaviours.[47] He agreed that it reflects the respondent's sexual thinking towards children and is an unmet need.
[47] ts 29 - 30 (16 March 2017).
In my opinion, the deflection of responsibility for physical contact to his granddaughter, and the sexualised perception of her at this point in time, are matters of significant concern in assessing the level of the respondent's risk of committing a serious sexual offence. On a more immediate level, they are relevant considerations in assessing his purpose in possessing the child exploitation material and the other images of children. This is particularly so given that the respondent is regarded as having a very poor understanding of paedophilia and, during the recent interview with Dr Brett, tried to rationalise the description intellectually by suggesting that the term meant 'a love of children'. While he accepted that he had a serious problem, and is to be commended for his frankness in telling Dr Brett that he had difficulty differentiating between love and sex, the admission simply confirms my concern in respect of his level of risk.
The RSVP also looks at the individual's diversity of sexual violence. Dr Brett noted that, although the majority of the respondent's offending has been wilful exposure, there has been diversity in his offending, including 'hands on' offending and it has previously been noted that his treatment needs are considerable. Another relevant factor is the escalation of sexual violence, Dr Brett noted that the respondent's offending escalated until he was found to be a serious danger to the community under the DSO Act and made subject to a supervision order. He has not committed a serious sexual offence since 2005, but, in Dr Brett's opinion, the respondent's recent breach offences raise some concerns due to their sexual nature.
Other relevant factors under the RSVP include the respondent's use of physical coercion in the 1996 offence and the abuse of power in respect of his granddaughter in the 2005 offence.
In the area of psychological adjustment, the respondent has a significant previous history of extreme minimisation and denial of his sexual offending, and that remained pertinent at the time of Dr Brett's most recent assessment. As I noted earlier, he is also considered to have a previous history of attitudes that support and condone sexual violence as well as problems with self‑awareness. Importantly, Dr Brett is of the opinion that the respondent has a very poor understanding of his most recent breach offences and behaviour, minimising a number of the breaches and blaming others for some of the offences. Dr Brett also cites an example in which the respondent's CCO challenged him about an incident in which he was seen to be looking at a child running through a shopping centre. He could not understand why he was asked about that, which, according to Dr Brett, demonstrated a lack of awareness of his history and his risk.
In evidence, Dr Brett was of the opinion that the respondent has probably gone backwards since 2009 in terms of his denial or extreme minimisation of offending.
A further relevant factor is that the respondent has a historical problem with managing stress and coping. Dr Brett is of the opinion that some of the respondent's previous sexual offending appears to have occurred within the context of increased stress.
In his report, Dr Brett noted that the respondent has had problems with treatment and has ongoing unmet treatment needs. In particular, he has unresolved issues related to sexual deviance. Dr Brett considers that the respondent's breach offences appeared to relate to his deviance. In his report, Dr Brett said that, although the most recent therapy while he was on the supervision order was terminated due to a lack of progress, the respondent would benefit from another assessment by psychological services to assess his needs.
In his evidence, Dr Brett initially expressed the opinion that the respondent is unlikely to respond to therapy, as he is very difficult to engage psychologically. He considered that the respondent's risk factors will need to be controlled by external constraints. However, he subsequently acknowledged that it would still be worthwhile to pursue therapy, especially as the respondent is now requesting it, and there are some things he would like to address specifically, including his own childhood abuse. He did not consider there would be a great deal of difference between commencing therapy in prison or in the community, but if commenced in prison and a therapeutic relationship developed, he would expect it to continue in the community upon the respondent's release. The respondent needs to engage in years of therapy, as change will be a very slow process.
The efficacy of external constraints needs to be considered in the light of the respondent's history under supervision. Dr Brett noted that the respondent has a significant history of problems with supervision and, at the time of his interview, still had a poor understanding of supervision and the role of those involved in his management.
Dr Brett posited two potential scenarios in which the respondent would offend in a sexual way. He was of the view that the offence the respondent would most likely commit would be wilful exposure, as it has been his most frequent offending behaviour. The victim would most likely be a female child, and the risk of offending would be greatest when the respondent is under stress or if he feels that he has been mistreated. However, Dr Brett is of the opinion that the respondent is also at risk of 'hands on' sexually offending against female children. In relation to that kind of offending, his victim is most likely to be someone who is known to him, and his offending behaviour is likely to be similar to his previous offending against children.

Dr Brett's opinion

Taking into account the STATIC-99-R score and his clinical judgment applying the RSVP factors, Dr Brett concluded in his report that the respondent remains a risk of serious sexual offending, has been placing himself in high risk situations and has offended in a manner which has had sexual connotations, in respect of which he has shown limited insight. He was of the opinion that the respondent could be managed on a supervision order because he has not committed a serious sexual offence whilst in the community under the current order, and his risk may reduce with psychological assistance. He was of the view in his report that, given the respondent's deep‑rooted issues, his risk will not reduce significantly if he remains in prison. However, as I noted earlier, he has not ruled out the possibility of therapeutic engagement by the respondent while he is in prison with the potential for some change in his thinking.
The significance of the fact that the respondent did not commit a serious sexual offence while under supervision in the community was explored in cross-examination in the following passage:[48]
Now, it's the case, isn't it, that whilst there have been breaches of this order there have been no serious sexual offences in – in terms of contact offences? --- Yes.
Does that say something about Mr Decke's risk? --- Well, clinically I think I would say that his risk increased during that period and ‑ and those behaviours would have been seen as flags and so his risk increased as those behaviours increased, but they didn't go over the point of offending in a serious manner. He did have some more minor sexual offences but he didn't have any hands-on sexual offences.
[48] ts 20 - 21 (16 March 2017).
Of course, the whole point of a supervision order is to manage what has already been determined to be an unacceptable risk of serious sexual offending. Where there is a demonstrated increase in the offender's level of risk, the conditions of a supervision order should result in intervention at a stage before the offender's behaviour goes 'over the point of offending in a serious manner'. That occurred in the present case. The fact that such intervention has occurred does not mean that a supervision order remains an adequate means to protect the community, particularly when the offender has been incarcerated for a substantial period of time as a result of convictions for offences stemming from the contraventions of the supervision order.
Ultimately, Dr Brett's opinion at the hearing was that the respondent's series of breaches of his supervision order from 2014 to 2015, and the escalation of such breaches, manifested an increase in his risk of committing a serious sexual offence. In particular, the contraventions involving the taking of photographs of children and keeping images of children, including sexualised images, caused Dr Brett concern because they showed that the respondent has a lack of understanding of the purpose of the prohibitive conditions in the supervision order, he continues to have a sexual drive towards children and he lacks awareness of the wrongfulness of those behaviours.
Further, the fact that the respondent's serious sexual offences had involved grooming does not mean that the risk of such offending may not be imminent if the respondent were to engage in the behaviours that constituted his contraventions, as appears from the following passage in cross-examination of Dr Brett:[49]
And so in Mr Decke's case it ‑ other than the ‑ other than the opportunistic wilful exposure things, the lead up to sexual offending is longer for him? ‑‑‑ Generally, yes. But the episode, such as that in the park, would cause me significant concern because that could be an indication that he was trying to groom children.
But in his case it would need to be more than a one-off meeting? ‑‑‑ It would be more likely, but it couldn't be excluded.
All right? --- And, obviously, his risk ‑ look at the example of his risk in prison is more or less zero because he doesn't have access to ‑ to any victims and so … the more you can restrict his access to victims the safer he will be and safer the community would be.
[49] ts 21 (16 March 2017).
Significantly, Dr Brett said in re-examination:[50]
I think my concern would have been if he hadn't been breached and placed in custody then a serious offence may have occurred.
[50] ts 28 (16 March 2017).
Dr Brett confirmed in evidence that the respondent's behaviour would have to be controlled by external constraints. In his report, he had suggested there would need to be 'appropriate adjustments' to a supervision order. However, the sorts of conditions he identified in evidence as necessary for the purpose of controlling the respondent were conditions that were already part of the supervision order, such as prohibiting or limiting his contact with children and placing constraints on where he can go. On the other hand, although Dr Brett was not asked about the proposed amendments to the supervision order, Ms Hutchings included with her report a draft amended supervision order which would have additional conditions that she said were arrived at in consultation with Dr Brett. I will deal with them when I consider Ms Hutchings' evidence.
In his report, Dr Brett said the respondent would need to be 'assertively managed' and needed to have a clear understanding of what would happen if he breaches the conditions.[51] However, it seems to me the respondent was assertively managed previously. Further, the consequences of breaching the conditions of the supervision order were made clear to him at the time he was released on the supervision order and on several occasions when he has appeared in court to face charges under s 40A of the DSO Act. As I will explain later, I do not consider that the recommendations that have been made for adjustment to the supervision order and the management of the respondent's behaviour would achieve a change in his understanding or his behaviour, unless he has taken steps towards such change in advance.
[51] Exhibit 1, Dr Brett's report [98], 300.
When I asked Dr Brett about what would improve the respondent's awareness of consequences, he said that he would hope a remand in custody would drive home the consequences, but he was not convinced from his interview with the respondent that he had learnt a lesson in terms of the significance of the conditions. Dr Brett said that it changes the respondent's risk profile if he repeatedly transgresses, and if he were to do it again, having received the clear message of the consequences from his incarceration, then in Dr Brett's opinion that would mean the respondent really is unable to comply with supervision orders and that would change Dr Brett's risk assessment in the negative.[52]
[52] ts 30 (16 March 2017).
Of course, the clearest signal of the consequence of breaching the conditions of a supervision order in a manner that increases risk is the making of a detention order where that is found to be the only adequate way in which to protect the community. The question is whether that point has been reached, having regard to the respondent's persistent contraventions despite numerous warnings.

Psychological evidence

The following matters emerged from Dr Galloghly's report and his evidence at the hearing.
After he was released on the supervision order, the respondent attended a total of 12 sessions with Ms Ballantyne, a senior counselling psychologist with the DCS Forensic Psychological Service. Counselling concluded in March 2010. The therapy dealt with a number of issues that were identified during the Div 2 hearing in respect of which the respondent required treatment, namely: the respondent's denial of his past offending and his entrenched view of himself as the victim; his lack of insight into his sexual offending and the cycle of that offending; sexual deviance; his problems with the requirements of the supervision order; his problems with stress; and the problems stemming from his childhood abuse.
At the time that counselling ceased in 2010, his psychologist considered that the respondent had done well and, after discussion, the respondent's management team agreed there was not much point in pursuing further therapy. The respondent's perspective of the therapy appears to have been different, in that he told Dr Galloghly that the counselling did not work because he did not trust Ms Ballantyne. He also suggested that previous clinicians, which would include Ms Ballantyne, had not wanted to go into his childhood trauma. That is contradicted by the DCS records from the sessions.
In 2014, the respondent was again referred to the Forensic Psychological Service for counselling because of concerns about his behaviour under supervision, in particular flouting GPS restrictions and certain reporting requirements. He took part in five sessions with Mr Summerton, a psychologist, but according to Dr Galloghly the sessions only really involved an assessment of the respondent's current status and what would be required for treatment rather than the delivery of treatment. The respondent was 'quite obdurate in his resistance to participating in therapy' at that stage, saying he did not see the need for it, denying he was at risk of reoffending and claiming to be on top of his issues.[53] In those circumstances, the counselling ceased because of his lack of motivation. Mr Summerton had assessed the respondent's prominent risk factors to be sexual self-regulation, poor problem-solving, negative emotionality and hostility, and poor cooperation with supervision.
[53] ts 32 ‑ 33 (16 March 2017).
In his interview with Dr Galloghly, the respondent appeared to blame 'the system' for not getting sufficient treatment, yet it is obvious that it was his attitude to counselling that resulted in a lack of continuing therapeutic intervention. In any event, Dr Galloghly was of the view that the respondent has never had a 'significant body of individual therapy', even allowing for a course of private therapy which the respondent had sought in the past.
The respondent indicated that he now wishes to engage in therapy, and that he would like to deal in particular with his sexual behaviour, which he viewed as being addictive in nature, and with his childhood trauma.
In discussing his past sexual offending, the respondent maintained similar themes to what he has said in the past and what he said to Dr Brett. He described his offending as originating from a form of 'revenge' and said that he believed he was wrongly convicted in respect of the first offence. He said he was 'hooked' on the thrill of his offending, but denied being sexually aroused when he offended, claiming he could not understand his behaviour. He attributed his offending to stress, but denied responsibility when speaking of certain offences in detail. Dr Galloghly noted that the respondent vacillated between appearing to admit aspects of his offending and then denying them.
In discussing his breaches of the supervision orders, he again maintained he had been treated unfairly and was frequently falsely accused of inappropriate behaviour. He denied responsibility for the images found on his computer and USB drive. This is inconsistent with what he said to Ms Hutchings, which I outlined earlier. I have proceeded on the basis that his admissions to Ms Hutchings were truthful. Given his history of denials and minimisation, I am satisfied that he would not admit responsibility for offending behaviour unless it was the truth.
Dr Galloghly is of the opinion that the respondent retains a high sexual drive that can 'morph into offending behaviour'. He identified a number of areas in which the respondent requires treatment, being: the fact that he maintains a significant level of denial about his offending and seems to default to deflecting responsibility onto others; his sexual deviancy orientated towards children; his childhood sexual trauma; compliance with the conditions of his order, including the need to take responsibility for his actions, process emotions and tolerate challenges to his ego; and his difficulty with being open and honest.

Dr Galloghly is of the opinion that the respondent would benefit from an Integrated Sex Offender Treatment Program (ISOTP). Such a program is available only in custody. He has not previously completed such a program (as I indicated in outlining the background) and there would be benefits that are not available in individual counselling. The first is the intensity of the program, being 300 hours of sessions over 6 to 9 months. Secondly, the sessions involve challenging from the offender's peers, which Dr Galloghly considers is probably a more powerful challenge than an individual therapist can make. Dr Galloghly said there is a lot of research supporting the benefits of group therapy for issues of sexual offending.
If the respondent is detained in custody and takes part in an ISOTP, Dr Galloghly is also of the opinion that the respondent should re-engage in individual counselling. There would probably be two separate areas of focus, and the therapist would identify the frequency of individual sessions that is necessary and the issues that would be best dealt with in such counselling. After the ISOTP, the frequency of individual counselling would likely increase. If the respondent were then to be released on a supervision order, the plan would be for counselling to continue in the community with the same individual therapist to ensure a smooth transition with someone the respondent feels comfortable with.
In cross-examination, Dr Galloghly agreed that therapy within the community would be the only way of assessing how the respondent was adapting in the community, and the exchange of information between members of the management team, including police, the respondent's CCO and the psychologist would allow for treatment needs to be identified and for the veracity of information conveyed by the respondent in therapy to be assessed by the psychologist. However, a team-based approach is also taken in managing the respondent in custody, although meetings are less frequent than they would be in the community.

Accommodation and support in the community

In the event that the respondent were to be released into the community on a supervision order, it would be necessary for suitable accommodation to be available. Ms Hutchings reported that, while he was in the community on the supervision order previously, the respondent had predominantly resided with acquaintances whom he met through church. However, due to his deteriorating behaviour and poor attitude towards his supervision order, he was evicted from most of those places of accommodation.
Ms Hutchings gave evidence that the respondent was previously heavily involved in various church congregations and spent most of his time when he was not working visiting various church services. Because of the nature of his offending, a contract was put in place by one of the congregations he was attending, so that he could only attend if he abided by the terms of the contract. I have mentioned previously the fact that the coordinator of the church where he attended at the time of his first contravention confronted him about being with children. The respondent continued to 'push the boundaries' which led to his eventual parting with the church at the end of 2014.
He was excluded from another church because he was no longer welcome and, in any event, an exclusion zone was imposed under the supervision order after he was served with a Violence Restraining Order (VRO) between 3 April 2015 and 8 May 2015. The VRO was in relation to a woman with whom he wished to commence a romantic relationship, but who was not interested in such a relationship with him. He made unwanted phone calls, followed her on a train and was alleged to have accosted her at the church on one occasion by grabbing her by the wrists and pulling her outside.
Ms Hutchings reported that the respondent currently has minimal to no supports or pro-social networks in the community. UnitingCare West (UCW), which has previously provided the respondent with accommodation through the DSO Supported Accommodation Program, indicated in February 2017 that it has accommodation available, which it would hold for him, and can offer the respondent with practical support if he is released.
A Desktop Accommodation Analysis (DAA) was conducted by WA Police of the accommodation, and the results are set out in a report dated 14 March 2017. As with other residences made available under the DSO Supported Accommodation Program, the residential unit in question has a number of shopping centres, parks, sporting complexes, schools, churches and licensed premises within what is described as 'easy walking distance' (being a 2 km radius), as well as a bus and train station and a public reserve. To the extent that any of these areas may be seen as presenting a problem, in terms of the respondent coming into contact with children, they could be made the subject of exclusion zones, as before. Ms Hutchings confirmed that, on her own analysis, those areas can be managed in that way. The respondent would be subject to GPS monitoring. The supervision order, whether the present one or an amended order, would also contain conditions which would prohibit the respondent from being in circumstances in which he may come into contact with children.
There are families with children in the immediate vicinity of the unit and there is a vulnerable teenage girl. There was concern expressed in the DAA report that some of the families may be susceptible to grooming by the respondent, and some children may be unsupervised and vulnerable. There is no need for me to go into further details, as it has not been suggested by the applicant that the accommodation should not be regarded as suitable if it were otherwise appropriate to release the respondent on a supervision order. A draft amended supervision order was included with Ms Hutchings' report, and it would appear that the proposed conditions of that draft order would be regarded as sufficient to overcome any risks associated with the accommodation, of the kind I have outlined.
I am satisfied on the basis of Ms Hutchings' evidence that the accommodation would be suitable.

Proposed amendments to the supervision order

In consultation with Dr Brett and the risk management group for the respondent, Ms Hutchings provided a draft amended supervision order for the court's consideration, which amended some of the conditions and added others. In summary, the amendments:
1.add to Condition 24, which prohibits the commission of offences involving indecency, other offences under the Criminal Code concerned with the production, distribution and possession of child exploitation material and involving a child in child exploitation;
2.add to the requirement in Condition 29 that the respondent attend for and submit to urinalysis testing for alcohol or drug use, a requirement that he provide a valid sample;
3.modify Condition 30 (see [43] above) to allow the respondent to have contact with a child for a commercial transaction, provided the contact is limited to the minimum contact required to complete the transaction and another adult is present. The amendment also adds a broad definition of 'contact';
4.broaden Condition 40, which prohibited the respondent from attending a particular school near his place of residence or any other school should he change residence. The amended condition would prohibit the respondent from attending any school, childcare centre, or any other facility known, or reasonably perceived to be frequently utilised by children under the age of 17 years unless such attendance is for a legitimate purpose and approved by a CCO.
The new conditions would require the respondent:
A.to be subject to electronic monitoring under s 19A of the Act. This was previously done by lawful direction;
B.to maintain a daily diary of his movements, activities & associates as directed by a CCO and present the diary to a CCO or Police Officers upon request;
C.to advise the CCO of every device used by the respondent to access the internet, and the location of that device;
D.with respect to any computer or device (which includes a mobile telephone) in his possession that is connected to the internet or has been used by him to access the internet, not to delete or otherwise disguise any search histories or logs capable of identifying his activities on that computer or device, without the approval in advance of a CCO or WA Police;
E.with respect to any computer in his possession that is connected to the internet or has been used by him to access the internet, not allow any other person to use or access that computer (other than a CCO or WA Police) without the approval in advance of a CCO or WA Police; and
F.to permit a CCO or WA Police to access any computer or any device capable of storing digital data, for the purpose of ascertaining his computer activities, and provide to the CCO or police upon request any passwords required for the access.
In my opinion, while the proposed amendments to Conditions 24, 29 and 40 would be appropriate if the respondent were to be released on a supervision order, I consider that only the amendment to Condition 40 would add a level of protection not available under the current supervision order. Even so, none of the contraventions have involved the respondent attending schools, child care centres or similar facilities. While his entering the exclusion zone encompassing the dance studio might be regarded as coming within the ambit of the amendment, the risk was previously adequately dealt with by the imposition of the exclusion zone.
While the amendment to Condition 24 would more specifically capture some of the material found in the respondent's possession, the existing conditions were adequate to ensure his possession of images of children, both non-indecent and exploitative, resulted in a contravention of the order.
As for Condition 29, there is no indication that the respondent has provided an invalid sample in circumstances that have raised concerns. Further, while alcohol and drugs are known to be disinhibiting, which can contribute to the risk of sexual offending, that is not part of the respondent's risk profile in respect of the commission of serious sexual offences.
The amendment to Condition 30, in effect, allows for an exception.
The proposed additional conditions (A to F above) are intended to allow for an additional layer of monitoring of the respondent's movements and of his electronic devices. It appears they also seek to address the possibility of the respondent claiming that others have put images of children, whether exploitation material or not, on his devices. That claim, of course, has not assisted the respondent on this occasion. However, Condition E would specifically prevent the respondent from having someone else access or place prohibited materials on his devices.
The maintenance of a daily diary would augment the GPS tracking system in determining where the respondent has been and with whom he has been in contact. According to Ms Hutchings, it is intended to encourage the respondent to carefully plan his journeys which could reduce the likelihood he would enter high risk areas.
However, the efficacy of a diary would depend on the respondent's honesty and reliability. His credibility has been called into question repeatedly. His tendency to minimise or deny offending and wrongful behaviour, and his cognitive distortions, give me reason to doubt that proposed Condition B would lead to amelioration of the respondent's attitudes and behaviour or the more effective management of his conduct. His attitude and behaviour over the last few years of the supervision order lead me to conclude that it is more likely than not the respondent would seek to push boundaries and fail to be open about his activities. It may well be that monitoring by SOMS officers may catch him out if he is dishonest, but it would not be appropriate for me to release the respondent on a supervision order if I consider on the balance of probabilities that the supervision order would not adequately protect the community because of the likelihood that he would not comply.
The efficacy of proposed Condition C also depends on the respondent being honest, and the same considerations apply discussed in the preceding paragraph.
While proposed Condition F would provide a specific requirement for the respondent to allow inspection of his electronic devices, police officers were able to inspect his devices previously. The respondent had not prevented that from happening.
In short, while I consider that the specificity of proposed Conditions D to F would facilitate the monitoring of the respondent's electronic devices and should act as a deterrent if the respondent were inclined to misuse his devices to record, access or store images of children, I am of the view that their efficacy in providing adequate protection of the community (in combination with the other conditions of the order) would depend on the respondent being honest and reliable, accepting responsibility for his behaviour and achieving greater insight into his offending and the risk factors leading to it.

The respondent's submissions

It was submitted on behalf of the respondent that, while his possession of the child exploitation material did have a sexual aspect to it, it was not a serious sexual offence. That is so, but as I indicated earlier, the point of a supervision order and contravention proceedings is to pre‑empt the commission of a serious sexual offence when the warning flags suggest the respondent is on the path to committing such an offence. Obviously, the fact that a serious sexual offence has not been committed does not preclude the conclusion that the only means by which the community can be protected adequately is to make a continuing detention order.
It was also submitted on behalf of the respondent that there was a period of a number of years during which the respondent complied with his conditions, so he has demonstrated that he is capable of complying, even if his compliance is the result of external controls. However, the most recent history shows that he is not capable of complying, even after repeated warnings.
It was further submitted that the respondent has learnt his lesson because of his incarceration, which resulted from his breaches. As I said to counsel, there is no evidence of that. The evidence from Dr Brett and Dr Galloghly is that he still fails to understand the need for the constraints that have been placed on him, and he considers that he has been unfairly dealt with. He continues to challenge the need for some of the conditions. Counsel conceded that was the case, but suggested that the respondent's demonstration that he wishes to have counselling is a positive indicator that he wants to rehabilitate in some manner.
I accept that the respondent's willingness to rehabilitate is a positive factor, but it must be weighed against his overall lack of insight and negative attitude to supervision. Further, his wish for counselling can be accommodated within the custodial setting, if I conclude that a continuing detention order is necessary.
It was further submitted that the respondent's deterioration, as evidenced by his breaches, has enabled the authorities to better understand what can happen to him and will enable them to formulate better strategies for his supervision, and he can be monitored in a 'much more positive way, in that all the people who are involved in his supervision can be vigilant now'.[54] With respect, to the extent that the submission assumes a lack of vigilance previously, it ignores the number and spread of charges brought against the respondent during 2014 and 2015. He was also charged at an earlier time. It seems to me that the issue was not a lack of vigilance, but a fairly tolerant approach taken to the respondent's resistance to supervision and breaches of conditions at an early stage. In my estimation, he was given every opportunity to learn his lesson and change his ways before DCS considered that the final straw had been reached and it was necessary to commence contravention proceedings. Before then he had received numerous warnings from his CCO and at least one from a judicial officer on 27 June 2014.
[54] ts 74 (16 March 2017).

Conclusions

From the evidence in these proceedings, I draw the following conclusions.
The respondent has continued to demonstrate a lack of insight in relation to his offending. He has a very poor understanding of his paedophilia. He continues to have a poor understanding of his risk factors and of high risk situations. He has demonstrated repeatedly a lack of honesty and reliability.
His contraventions of the conditions of the supervision order demonstrate an obstinate resistance to the constraints that have been placed on him for the adequate protection of the community. He has continued to challenge the need for some of the conditions. Moreover, his breaches evince an increasing risk that he would commit a serious sexual offence. As Dr Brett put it, 'if he hadn't been breached and placed in custody then a serious offence may have occurred'.
The respondent's attitude of denial and minimisation of offending has deteriorated since 2009. As I noted earlier, his account to Dr Brett of the incident involving his five-year-old granddaughter in 2005, which was the last serious sexual offence of which he was convicted, causes me to have great concern about the escalation of his risk of committing a serious sexual offence. As Dr Brett acknowledged, it indicates cognitive distortion, at the present time, about his sexuality and the capacity for sexual behaviour of young children. It confirms my conclusion, supported it seems to me by the evidence of Dr Brett, that the respondent's possession of the child exploitation material and the other images of children was a red flag that he was on the path to committing a serious sexual offence.
The respondent continues to have a sexual drive. He has claimed that he wanted to have images of children to remind him of his children and grandchildren. I have found that to be implausible, but even if there was an element of affection in the respondent's attitude to children with whom he may come into contact, he has acknowledged that he has difficulty in differentiating between love and sex. It seems to me that this exacerbates the risk that he would act on his deviant sexual interest in female children in such circumstances.
The respondent has outstanding treatment needs. I am satisfied on the basis of Dr Galloghly's evidence that those needs would be best met at this stage by his participation in an ISOTP in conjunction with individual therapy. As Dr Galloghly suggested, being challenged by peers about his beliefs, attitudes and behaviour may provide a more powerful impetus for change than being challenged in individual therapy. This would appear to be particularly apt in the respondent's case given that in 2009 to 2010, when Ms Ballantyne and the management team thought the respondent had made gains, he was of the view that counselling had not been effective and he did not trust the psychologist.
I am satisfied that the respondent's risk that he will commit a serious sexual offence has become unacceptable within the community under the current supervision order. Further, I do not consider that the proposed amendments and additions to the supervision order would provide adequate protection of the community against that risk at this stage. That is essentially because of the respondent's lack of honesty and reliability and his resistance to supervision in recent years.
I take into account that in the early stages of his supervision the respondent was open about incidents in which he was with children while either accepting or providing transport to others. I also take into account that he gave access to his electronic devices when requested during reporting to police. However, the overwhelming picture is that he has not been honest or reliable in recent years. In particular, he has often been untruthful and avoidant when asked questions in supervision sessions about what was really going on in his life.

Until the respondent demonstrates that he is prepared to be open and honest about his plans and activities, and that he understands the purpose of the conditions of a supervision order and accepts his obligation to comply, the court could have no confidence that he would comply with the conditions of such an order which he has previously flouted repeatedly.
Dr Brett was of the view in his report that, given the respondent's deep-rooted issues, his risk will not reduce significantly if he remains in prison. However, the question is not whether his risk will reduce in prison, but whether his current level of risk is unacceptable within the community under a supervision order. In other words, am I satisfied the community could not be adequately protected by the conditions of a supervision order? The risk need not be imminent. The respondent's serious sexual offences involved grooming over a period of time. As I pointed out to the respondent's counsel, if the supervision order had been for a lesser period in this case, there would have been a real risk that the respondent's behaviour evincing an increased risk of serious sexual offending would not have been identified.
Having regard to all of the matters I have outlined, I am satisfied on the balance of probabilities that there is an unacceptable risk that, if a continuing detention order is not made, the respondent would commit a serious sexual offence.
It would be the court's expectation that the respondent will be given the opportunity, commencing as soon as possible, to engage in an ISOTP and individual therapy, with a view to enabling him to demonstrate over the next year that his risk can be managed under a suitable supervision order in the future. As time passes, his age will continue to mitigate his risk, but it is to be hoped that his prospects of release in the future will turn on his capacity and preparedness to change, rather than the march of time.
However, at this time, the appropriate order is that the respondent be subject to a continuing detention order.

Order

I order that the supervision order made on 29 October 2009 be rescinded, and that the respondent be detained in custody for an indefinite term for control, care, or treatment.