Director of Public Prosecutions for Western Australia v Morato - [2008] WASC 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- MORATO [2008] WASC 25

CORAM: JENKINS J

HEARD: 11 FEBRUARY 2008

DELIVERED : 29 FEBRUARY 2008

FILE NO/S: MCS 37 of 2007

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
HENRIQUE GREGORY MORATO
Respondent

Catchwords:

Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for custody or supervision order - Respondent is a serious danger to the community - Supervision order

Legislation:

Child Welfare Act 1947 (WA)
Dangerous Sexual Offenders Act 2006 (WA), s 7(3), s 8, s 17, s 42(4)
Offenders Community Corrections Act 1963 (WA) (Repealed)
Spent Convictions Act 1988 (WA), s 14
Young Offenders Act 1994 (WA), s 189, s 190

Result:

The court finds that the respondent is a serious danger to the community
Order that the respondent be released on a supervision order for a period of 5 years subject to conditions

Category: B

Representation:

Counsel:

Applicant: Mr S E Stone
Respondent: Mr D J McKenzie

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)

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

Director of Public Prosecutions (WA) v GTR [2007] WASC 318
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206
Oleksiuk v Downey (Unreported, WASC, (Seaman J) Library No 940189, 8 April 1994)
Pearce v Bancroft (Unreported, WASC, Library No 7594, 12 April 1989)
Thompson v The Queen (Unreported, WASCA, Library No 980600, 19 October 1998)
Walley v Byrnes (Unreported, WASC, Library No 940662, 30 November 1994)

JENKINS J: This application is made by the Director of Public Prosecutions for Western Australia (DPP) pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act) s 8 for orders pursuant to the Act s 17. If I find that the respondent is a serious danger to the community, I may either make a continuing detention order or a supervision order. At the hearing of the application the applicant's counsel advised me that the applicant sought a supervision order for a period of 5 years. The respondent does not object to the making of such an order.

The law

The Act s 17(1) provides that if a court hearing an application such as this finds that the respondent is a serious danger to the community the court may:
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may ‑
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
Section 7(1) provides that before the court can make a finding that a respondent is a serious danger to the community, it must be satisfied that there is 'an unacceptable risk that, if the [respondent] were not subject to a continuing detention order or a supervision order, the [respondent] would commit a serious sexual offence'.
Section 7(2) states that the DPP has the onus of satisfying the court of the matters in s 7(1) and the court must be satisfied:
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
Offences which fall within the definition of a 'serious sexual offence' include aggravated indecent assault and sexual penetration without consent. Indecent assault simpliciter is not a serious sexual offence.
The Act s 7(3) states that in deciding whether to find that a respondent is a serious danger to the community, I must have regard to the following matters:
(a)any report that a psychiatrist prepares as required by the Act, s 37;
(b)the extent to which the respondent cooperated when the psychiatrist examined the respondent;
(c)any other medical, psychiatric, psychological, or other assessment relating to the respondent;
(d)information indicating whether or not the respondent has a propensity to commit serious sexual offences in the future;
(e)whether or not there is any pattern of offending behaviour on the part of the respondent;
(f)any efforts made by the respondent to address the cause or causes of his offending behaviour, including whether the respondent has participated in any rehabilitation programme;
(g)whether or not the respondent's participation in any rehabilitation programme has had a positive effect on the respondent;
(h)the respondent's antecedents and criminal record;
(i)the risk that, if the respondent were not subject to a continuing detention order or a supervision order, the respondent would commit a serious sexual offence;
(j)the need to protect members of the community from that risk; and
(k)any other relevant matter.
In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 [68] ‑ [72] Wheeler JA (Le Miere AJA agreeing) held that if a court found that an offender was a serious danger to the community it must make either an order under s 17(1)(a) or (b) for custody or supervision, respectively, a court does not have a discretion not to make one of those orders.
Her Honour also considered what was meant in s 7(1) by the words 'unacceptable risk'. Her Honour said:
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention [63].
Wheeler JA included a consideration which is not specifically identified in s 7(3): namely, the consequences of making a finding that an unacceptable risk exists. Her Honour explained this consideration by saying that it seemed to her to be unlikely that Parliament would have intended the court to have no regard at all to the exceptional nature of a power to deal with a respondent, not for an offence which he or she had committed, but for an offence which they may commit. Her Honour said that all the relevant considerations included the potential consequence of a positive finding under the Act for the respondent.
I will summarise the evidence and then consider each of the matters referred to in s 7(3) and by Wheeler JA. The respondent did not seek to challenge any of the factual material presented by the applicant and consents to a finding being made that he is a serious danger to the community and to the making of a supervision order. He does not consent to the making of a custody order. Despite the approach of the respondent and even though his attitude may be a relevant matter for me to take into account, I am still obliged to exercise an independent discretion as to whether the applicant has satisfied me of the matters which he is required to prove to a high degree of probability before I can make any order under the Act.

Admissibility of evidence relating to incidents prior to the respondent attaining the age of 18 years

The DPP tendered material relevant to various incidents which occurred when the respondent was under the age of 18 years.
The applicant submitted that this material was admissible despite the provisions of the Young Offenders Act 1994 (WA), the effect of which is that evidence of any conviction arising from those incidents is not admissible and any such conviction is not to be regarded as a conviction for any purpose. The respondent consented to the tender of the material.
Despite the respondent's consent to the tender of the material the applicant, quite properly, drew my attention to the relevant provisions of the Young Offenders Act and to a recent decision of McKechnie J in Director of Public Prosecutions (WA) v GTR [2007] WASC 318 wherein his Honour held that, subject to certain statutory exceptions, those provisions rendered evidence of any behaviour which led to a conviction of a person under the age of 18 years to be inadmissible if more than two years has elapsed since the matter was before the court.
In coming to this conclusion, McKechnie J considered the relevant provisions of the Young Offenders Act, in particular, s 189 and s 190, which state:
189. Certain offenders to be regarded as not convicted
…
(2)If a young person is convicted of an offence and a period of 2 years has expired since ‑
(a)the discharge of any sentence imposed as a result of the conviction, or every sentence if more than one sentence was imposed; or
(b)the date of conviction, if no sentence that required to be discharged was imposed as a result of the conviction,
the conviction is not to be regarded as a conviction for any purpose, except as provided in this section.
…
(7)This section does not prevent ‑
(a)a person in respect of whom a youth community based order has been made upon the person's conviction of an offence from being subsequently dealt with for the offence as a person so convicted if a condition of the order is not observed;
(b)any subsequent proceedings that may be taken against the offender under this Act or on indictment in relation to the offence to which this section applies or for a subsequent offence; or
(c)the making of a record of anything that paragraph (a) or (b) allows.
(8)This section does not affect ‑
(a)the right of a person to appeal against a conviction or to rely on a conviction in bar of any subsequent proceedings for the same offence;
(b)the revesting or restoration of any property in consequence of the conviction;
(c)the right of a court to disqualify a person from holding or obtaining a driver's licence issued under the Road Traffic Act 1974; or
(d)any cancellation or disqualification that occurs by operation of any written law.
(9)Part 3 of the Spent Convictions Act 1988 has effect in relation to a conviction that, under this section, is not to be regarded as a conviction as if it were a spent conviction under that Act.
190. Disclosure of certain convictions
(1)If section 189 provides that a conviction of an offence is not to be regarded as a conviction, evidence of that conviction is not admissible in any proceedings, other than proceedings under this Act or on indictment for the offence or for a subsequent offence.
…
In respect to s 189(9), I note that pt 3 of the Spent Convictions Act 1988 (WA) is in div 4 of that Act. Section 14(1) of the Spent Convictions Act states:
14.Proceedings in courts not affected by Division 4
(1)Nothing in Division 4 affects -
(a)the procedure of, or evidence admissible in, proceedings of a court or tribunal that applies the laws of evidence or proceedings under section 6; or
…
Thus, s 189(9) of the Young Offenders Act and pt 3 of the Spent Convictions Act do not apply to this application. The question remains as to whether the remaining provisions of s 189 and s 190(1) of the Young Offenders Act do apply?
The DPP does not challenge McKechnie J's finding, which is plainly correct, that evidence is not admissible of any conviction arising out of the incidents occurring when the respondent was under the age of 18 years. He does, however, submit that I ought not follow McKechnie J's finding that evidence of the incidents themselves and the surrounding circumstances is inadmissible. In order to justify this submission the DPP relies upon the decision in Thompson v The Queen (Unreported, WASCA, Library No 980600, 19 October 1998).
In Thompson the appellant appealed against his conviction and sentence for sexual offences. One of the grounds of appeal against sentence was that the trial judge erred in taking account of the appellant's convictions recorded over two years prior to the sentencing for offences committed prior to the appellant's 18th birthday. In respect to this ground, Steytler, J as he then was (Kennedy and Wallwork JJ agreeing), said:
… I am not persuaded that there is anything in s 189(2) of the Young Offenders Act 1994 which should preclude the court from taking into account offences committed by a juvenile when considering his antecedents for the purpose of sentencing him in respect of later offences.
His Honour then quoted the relevant portions of s 189 and s 190(1) of the Young Offenders Act and continued:
It seems to me to be plain, from ss189(2) and 190(1), that the legislature did not intend, by s 189(2), to prohibit a court from taking account of the fact of a finding of guilt in respect of a prior offence when considering an appropriate sentence for a subsequent offence. Section 190(1) says in terms that evidence of the prior conviction is admissible in proceedings for a subsequent offence. All that the court is prohibited from doing is regarding a conviction which falls within the provision of that section as being a conviction for any purpose except as provided in the section (see, by way of example of the application of the section, The Queen v MacKay, unreported; CCA SCt of WA; Library No 970689; 10 September 1997 and P v The Queen, unreported; CCA SCt of WA; Library No 970580; 4 November 1997).
That the Act draws a distinction between a conviction and a finding of guilt is, I think, apparent from provisions such as s14(2)(c) thereof which provides that the chief executive officer is to keep records, inter alia, of every 'finding by the court that a young person is guilty of an offence and every conviction of a young person of an offence' and s15(1) which provides that records of every 'finding by the court that a young person is guilty of an offence' are to be made available by the chief executive officer to any court and to any person requiring the information for the purposes of performing a function under the Act.
Moreover, this construction accords with that which has previously been given to the similar provisions of s40 of the Child Welfare Act 1947 (which provides that the conviction of a child of an offence 'shall ... be deemed not to be a conviction for any purpose ... ' (see Pearce v Bancroft, unreported; SCt of WA (Franklyn J); Library No 7594; 12 April 1989 and Oleksiuk v Downey, unreported; SCt of WA (Seaman J); Library No 940189; 8 April 1994). Moreover regard has, in other circumstances, been had to past offences committed by young offenders for the purpose of sentencing them (see, for example, Pedretti v The Queen, unreported; CCA SCt of WA; Library No 970714; 12 December 1997) (18 ‑ 20).
The DPP also relies upon the unreported single judge decision mentioned by Steytler J of Oleksiuk v Downey (Unreported, WASC, (Seaman J) Library No 940189, 8 April 1994). In that case the appellant appealed the sentences which a magistrate had imposed on him for offences of burglary and fraud. One of the issues on appeal was whether the magistrate ought to have had regard to the appellant's Children Court's record in deciding whether or not to grant the appellant parole. In the course of dismissing this ground of appeal, Seaman J said:
I am in no doubt that the tentative view expressed by Franklyn J in Pearce v Bancroft, unreported; SCt of WA (Franklyn J); Library No 7594; 12 April 1989, is correct and that the learned Magistrate was obliged to have regard to the Children's Court record of the appellant by virtue of s37A(3)(c) of the Offenders Community Corrections Act. He was not thereby treating it as a conviction for the purposes of s40(2) of the Child Welfare Act 1947 but as a matter of antecedents as required by the Offenders Community Corrections Act (5).
In Pearce v Bancroft (Unreported, WASC, Library No 7594, 12 April 1989), Franklyn J determined an appeal against the severity of sentences imposed on the appellant in the Court of Petty Sessions. One of the grounds of appeal related to the magistrate's reliance upon the appellant's Children's Court convictions. Franklyn J decided that for other reasons the fact that the magistrate had access to the appellant's record of convictions in the Children's Court was immaterial to the appropriateness of the penalties imposed. His Honour continued:
I would query however the assumption that he was not entitled to such access. Section 9 of the Offenders' Probation and Parole Act requires the court to give consideration, where an offence is punishable by imprisonment to the alternative of a probation order. To determine whether the making of such an order is expedient the court is required to have regard to the circumstances including the nature of the offence, the character and personal history of the offender, his home surroundings and other environment. It seems to me impossible in the case of a young person to have regard to his character and personal history without taking note of the fact that he has been guilty of offences when that is the case. Indeed if he has recently been in custody or departmental care that fact may even bear on the question of environment. To that extent access to the Children's Court record appears not only helpful but essential for the purposes of s 9 of such Act. To not have such access could result in probation being granted as 'expedient' when the record would show it to be clearly inexpedient. It appears to me, without now deciding as it is not necessary so to do, that consideration, for the purposes of assessing the expediency of probation, of the fact that a person has been found guilty of offences as a child, would not necessarily be contrary to the provisions of s 40. The relevance of the section to the matters to be taken into account under s 37A of the Offenders' Probation and Parole Act when considering whether or not eligibility for parole should be ordered is also a matter which may require consideration in the appropriate case (11).
The Offenders Community Corrections Act 1963 (WA) (Repealed) which prior to April 1991 was titled the Offenders Probation and Parole Act 1963 (WA), s 37A(3)(c) provided that a court considering whether to make an offender eligible for parole may take into account the antecedents of the convicted person.
The Child Welfare Act 1947 (WA) s 40(2) (Repealed) was later quoted by Owen J in Walley v Byrnes (Unreported, WASC, Library No 940662, 30 November 1994), when his Honour determined an appeal against the decision of a magistrate in the Court of Petty Sessions to imprison the appellant. At 10 ‑ 13 Owen J said:
While perhaps not strictly necessary for the disposal of the appeal I should deal briefly with a matter that was raised during argument. The question is whether the convictions in the Childrens' Court can be taken into account in assessing the comparative histories of the three offenders to see whether the parity principle has been infringed.
Section 40 of the Child Welfare Act 1947 has the marginal heading 'Rehabilitated Offenders'. It is, relevantly, in these terms:
'(2)Where a child is convicted of an offence and -
…
(b)a period of two years has expired since ‑
(i) the date of the conviction; or
(ii)the discharge of any sentence or order imposed in relation to the conviction, whichever is the later,
that conviction shall, subject to the provisions of this section, be deemed not to be a conviction for any purpose, except in relation to -
…
(d)any subsequent proceedings that may be taken against the offender under this Act or on indictment in relation to that offence or for a subsequent offence.
(2a)Part 3 of the Spent Convictions Act 1988 has effect in relation to an offence referred to in subsection 2 as if the conviction were a spent conviction under the Act.'
Section 40 was introduced into the Child Welfare Act by Act No 73 of 1976. Prior to that time the Act simply provided that where a child was convicted of an offence no person, other than the child, could disclose the fact of the conviction except to a court of law: s126. When commenting on the amending Bill during the Second reading speech in the Legislative Council the Minister said (Hansard, Tuesday 21 September 1976, p2596):
'A concept of rehabilitated person is introduced which provides that where a child has completed a successful period of probation, or where that child has cleared his commitment and not offended for two years, such child will be deemed not to have been convicted. This will give the child concerned some incentive, and an opportunity to prevent juvenile convictions disrupting his adult life.'
It is difficult to construe the express wording of the Act in sympathy with this statement. Section 40(2) refers clearly to 'a conviction' and it seems to me that this means that separate consideration must be given to each conviction and the 2 year time limit applied in relation to each conviction separately. The extract from Hansard suggests that 'rehabilitation' is to be measured by an absence from offending for a two year period. I do not think that the words used by Parliament can be interpreted to achieve that result.
I think the section should be construed according to the plain meaning of the words. Once the two year period has expired a conviction in the Childrens' Court for an offence is deemed not to be a conviction for any purpose. There are exceptions. One exception is that the offence may be taken into account in subsequent proceedings under the Child Welfare Act or in subsequent proceedings on indictment for the same offence (although this must be of extremely limited application) or in subsequent proceedings on indictment for a subsequent offence. In relation to this last exception, the earlier Childrens' Court conviction is deemed not to be a conviction where the 'subsequent offence' is not an indictable offence. Where the 'subsequent offence' is an indictable offence, the Childrens' Court conviction is not notionally obliterated by the deeming effect of the section.
One example of the effect of s40(2a) is that, once the two year period has expired, the offender is not obliged to disclose the conviction where such disclosure is required by a written law. A second example is that a prospective employer can not discriminate against the offender on the basis of the conviction: see Spent Convictions Act 1988 ss 25 and 18.
Further difficult problems arise in the application of s40 where the offender's antecedents (using that term in its broadest sense) come under consideration. One example of this is where the Court is required, under s37A of the Offenders Community Corrections Act 1983, to consider whether it is expedient to make the offender eligible for parole. This problem was alluded to in Pearce v Bancroft, unreported, SCt of WA (Franklyn J); Library No 7594; 12 April 1989 at 8-9, 11. It was also referred to in Oleksiuk v Downey ,unreported, SCt of WA (Seaman J); Library No 940189; 8 April 1994 at 5. There is something of an air of unreality in ignoring past convictions when assessing the expediency or otherwise of a particular disposition. On the other hand the concept of referring to a record of criminal convictions to assist in that decision without taking into account convictions that, by force of the statute are deemed not to be convictions, is not without its own difficulties.
This line of reasoning may apply to an assessment of a sentence for adherence to the parity principle because the background history encompasses considerations other than mere convictions.
Perhaps the answer is that in these circumstances regard can be had to the offender's conduct rather than the convictions themselves. To what extent the criminal history record can stand as proof of conduct, as opposed to convictions, is an open question. I express no concluded view on the matter.

It is also relevant to note the terms of the Dangerous Sexual Offenders Act, s 42(3) and (4) which state:
(3)Except as modified by subsection (4), ordinary rules of evidence apply to evidence given or called under subsection (2).
(4)In making its decision, the court may receive in evidence ‑
(a)any document relevant to a person's antecedents or criminal record;
(b)anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.
None of the cases to which I have just referred are binding on me. In the case of Thompson this is because the comments concerning the distinction between a conviction and a finding of guilt were not an essential finding given the facts in that case. The facts in that case were also different to the facts of this matter.
Nevertheless McKechnie J's decision on this point is not consistent with the reasons and views expressed by the Court of Criminal Appeal in Thompson and those of the single judges in Oleksiuk v Downey, Pearce v Bancroft and Walley v Byrnes.
Although I appreciate the reasons which led to McKechnie J's decision, I am satisfied that the views expressed in the earlier cases, albeit many of those views were expressed in respect to similar but different legislative provisions, are correct. In enacting the relevant provisions of the Young Offenders Act in 1994 Parliament chose to state that a 'conviction' meeting the other requirements of the Act was not to be regarded as a 'conviction' for any purpose. A 'conviction' in both law and ordinary usage is the recording of a finding of guilt of an offence. It is a narrow term and does not include evidence of conduct which may result in a 'conviction'. For example, evidence that a person drove a motor vehicle at a speed which exceeded the applicable speed limit would not usually be regarded as evidence of the 'conviction' of that person for the offence of exceeding the applicable speed limit. Taking such evidence into account as part of a driver's background would not amount to regarding it as a 'conviction'. It is reasonable to believe that the Parliament used the word 'conviction' in its usually understood meaning.
Secondly, as Steytler J observed, the Young Offenders Act makes a distinction between a conviction, a finding of guilt and the commission of an offence. In addition to those sections referred to by Steytler J I would add s 22A and s 55. I assume that Parliament has maintained this distinction throughout the Act. If Parliament intended that evidence of the commission of an offence, as opposed to a conviction, could not be adduced in evidence, then consistent with the terminology it used in other parts of the Act, I would have expected it to use a wider word or phrase than 'conviction' as it did in s 190(1).
Finally, as other judges have been influenced by the requirements of particular statutory provisions to have regard to the antecedents of offenders, I have been influenced by the provisions of the Dangerous Sexual Offenders Act s 42(4). This specific provision, enacted over a decade after the Young Offenders Act, could not be given effect if the Young Offenders Act s 189 and s 190 were interpreted in the manner suggested by McKechnie J. Some material relating to the youthful antecedents of a respondent may be inadmissible because it is irrelevant due to the passage of time. However, in other cases, highly relevant material would be rendered inadmissible if McKechnie J's interpretation was accepted. Where it is possible to interpret the provisions of the Young Offenders Act in a manner which gives effect to the specific provisions in the later enacted Dangerous Sexual Offenders Act, I should adopt such an interpretation.
For these reasons it is my view that, whilst the evidence of any conviction of the respondent for offences occurring whilst he was under the age of 18 years is not admissible in these proceedings, evidence of his youthful antecedents, even if it includes evidence of conduct which may constitute an offence, is admissible in these proceedings pursuant to the Dangerous Sexual Offenders Act s 42(4).

Respondent's background

The respondent was born on 10 January 1971 in the then Rhodesia. His father was Portuguese, although born in Timor. The respondent's father had gone to find work in Rhodesia and he there commenced a relationship with a woman. The respondent was born of that relationship. When the respondent was only an infant his father and mother moved to Mozambique. His father then had another child to a different woman. A short time later the respondent's father again had to move because of the unstable situation in Mozambique. He moved to Portugal, as a refugee, taking the two children but leaving behind their mothers. After a time in Portugal the family moved to Spain and finally to Australia when the respondent was a young boy. By then the respondent had lived in four different countries and he had had little or no formal education.
In 1981 the family moved to Darwin. The respondent's father arranged for a woman with whom he had an earlier relationship to be brought from Timor. The respondent and his brother grew up believing that she was their mother. In about 1986 the respondent was told that she was not his natural mother.
When the respondent attended school in Darwin he was noticed to have a short attention span, to be always on the move, to be easily antagonised, to be quick to retaliate, to lack social skills, to respond to directions only when he wanted to and to be physically aggressive with others without reason. He had 'considerable educational difficulties' and these included that he was a non‑reader and had difficulties with the English language.
The respondent's approach to education and other students improved as he was given specialised attention. However, after he was enrolled at high school his behaviour deteriorated and he paid little attention to his formal education.
In the mid‑1980s the respondent commenced using cannabis on a regular basis and this exacerbated his behavioural difficulties. He commenced stealing in order to buy drugs. He and his father argued due to his drug use, behaviour and choice of friends. In the mid‑1980s the respondent left home and lived on the streets.
Between May and August 1986 the respondent regularly entered other people's homes and stole property. On one occasion on 21 August 1986 the respondent entered the home of a 34‑year‑old woman in a suburb in Darwin intending to steal property from the home. He was armed with a knife. He came upon the occupant of the home who was asleep in her bed. She awoke and tried to get off the bed. The respondent pushed the woman onto the bed and had sexual intercourse with her, without her consent. In order to persuade her not to struggle the respondent had put the knife against the woman's throat. The respondent left the premises. He returned shortly thereafter but left again when the woman threatened to call the police.
After that incident, a child psychiatrist saw the respondent and prepared a report. The psychiatrist was aware of the respondent's behaviour which I have just outlined. The author of the report did not address the reasons for the respondent's deviant sexual behaviour and appeared to regard it as another example of the respondent's lack of awareness of boundaries and his 'maladaptive ways of coping with the world'. The psychiatrist noted that the respondent showed no evidence of formal mental illness and his level of intelligence was probably at least average.
As a consequence of his behaviour, the respondent was detained in a juvenile detention facility in Alice Springs. During his detention a female officer attempted to comfort the respondent and counsel him on his behaviour after he had been disciplined for a minor incident. As the female officer attempted to leave the room the respondent put his arms around her, pushed her onto the bed and climbed on top of her to get hold of a set of keys. She attempted to get up and to shout for help. The respondent put his fingers into the officer's mouth and this caused two cuts to the inside of her mouth. The respondent also bit the officer's hand in an attempt to make her drop the keys, causing an abrasion to the female worker's hand. Eventually assistance arrived and the respondent was restrained. At the time it was accepted that there was no sexual motive for the behaviour. However, a psychologist who prepared a report at the request of the respondent's then solicitors noted that he was concerned over the sexual aspects of the respondent's conduct, especially having regard to his prior sexual behaviour.
It is not altogether clear but it seems that the respondent was released from any form of detention in the Northern Territory at the end of 1989. He then moved to Western Australia. He still has outstanding warrants in the Northern Territory for alleged assaults on a female with whom he was in a relationship.
The respondent was convicted on numerous occasions in the 1990s for traffic related offences. He also was convicted in May 1991 of common assault, breaching bail and possessing cannabis. It appears that the conviction for common assault related to an assault by the respondent on a 17‑year‑old female complainant who he assaulted with a baseball bat on her forearm and with his open hand on her leg. No further details are in evidence. In January 1992 the respondent was convicted of unlawfully driving a motor vehicle, stealing, damage, breaching a restraining order and breach of bail. In 1994 he was again convicted of breaching bail and of burglary.
In approximately 1992 the respondent commenced a relationship with a woman and a child was born of that relationship in about 1994.
In the early hours of 23 August 1995 the respondent was accused of sexually assaulting a woman. He denied the allegations. The respondent and the complainant, the woman's brother, argued about the allegations. The complainant was sitting down and as he tried to stand up the respondent hit him on the left side of his face with a clenched fist. As a consequence of the punch the complainant suffered three fractures to the jaw and cheek, damage to the rim of his left eye and nerve damage to the left side of the face. The respondent had received boxing training. On 12 August 1996 the respondent was convicted of causing grievous bodily harm to the complainant and sentenced to 9 months in custody.
In 1997 another child was born to the respondent and his then girlfriend. However, in late 1997 the relationship ended and the respondent became very upset.
On 31 January 1998 the respondent broke into the home of a woman he knew with the intention of stealing property. He went into her bedroom where she was sleeping with her 4‑year‑old son. The respondent picked up some money which was on a shelf in the bedroom and then walked over and stood above the woman. She awoke and found the respondent standing over her. She then began a conversation with him and the respondent put the money back on the shelf and left.
On 2 February 1998 the respondent went to the home of someone he said used to supply him drugs. His admitted intention was to obtain drugs to use before he killed himself. The respondent arrived at the home at about 8.00 am when no one was at home. He concealed himself in the garage and armed himself with a hammer which he found there. At about 8.15 am the 29‑year‑old female complainant returned home. The respondent approached her from behind and struck her to the back of the head with the hammer, causing her to fall to the ground. He wrestled with her and struck her several more times to the head with his fists. The respondent then blindfolded and gagged the complainant. He tied her hands behind her back with electrical tape and bound her feet together with rope. After having bound and gagged the complainant the respondent began to indecently caress and kiss the complainant. The respondent removed the ties from the complainant's legs and removed her pants. The respondent digitally penetrated the complainant and then had sexual intercourse with her without her consent. The respondent then rolled the complainant inside an off cut of carpet in order to conceal her. He attempted to remove her, in the carpet, from the garage but the complainant resisted and the respondent dropped the complainant on the ground on several occasions. The respondent eventually carried the complainant upstairs into the bathroom and untied her hands so as to undress her. She was still blindfolded and gagged. The respondent put the complainant into the shower recess. He undressed and got into the shower with the complainant and proceeded to wash her with soap to remove any evidence of semen. The respondent then removed the gag from the complainant's mouth and forced his penis inside her mouth. He then carried the complainant into her daughter's bedroom and placed her on the floor. The complainant was still naked and blindfolded. At this point the complainant guessed the respondent's identity. The respondent again commenced to kiss the complainant and again he placed his penis inside her mouth and digitally penetrated her vagina. After he had done that, he again had sexual intercourse with her without her consent.
A conversation then occurred between the complainant and the respondent after which he removed her blindfold. The complainant walked to the lounge room and laid down on some cushions on the floor. The respondent lay behind her and again had sexual intercourse with her without her consent.
The respondent told the complainant to get dressed. The complainant persuaded the respondent that she needed to go to the hospital and the respondent agreed to take her there. Once at the hospital the complainant made an immediate complaint to the medical staff. The respondent surrendered himself to the police and took part in a video record of interview. The respondent admitted most of his conduct but insisted that some of it was consensual.
On 15 May 1998 in the District Court in Perth, the respondent was convicted of a number of serious sexual offences relating to the incident on 2 February 1998 and sentenced to a total of 15 years' imprisonment. The respondent was made eligible for parole by the then Chief Judge of the District Court on the basis that the Chief Judge thought that on the respondent's release into the community the respondent needed to be under some form of supervision. The Chief Judge said that in his view the respondent could only be released under strict supervision.
A number of reports were prepared for the sentencing process.
On 7 April 1998 Denise Cull, a forensic psychologist, completed a report. In it she stated that she had administered the Minnesota Multi Phasic Personality Inventory 2 which she said was a measure of the presence and degree of clinically significant personality variables. However, Ms Cull found that the respondent deliberately attempted to manipulate the test results so as to invite sympathy. Ms Cull noted that, whilst invalid, the outcome of the test served to further support the impressions she gained during her interview with the respondent, that he was 'a manipulative and egocentric young man whose primary, if not sole, focus is on his own current unhappy predicament. A narcissistic personality profile is suggested'. Ms Cull said that there was no evidence to suggest the presence of a thought or delusional disorder. The respondent's affective state presented as stable despite his strong emphasis upon his experience of depression and of persistent thoughts of suicide.
Ms Cull opined that the respondent was a 'high risk of re‑offence'. She said that his treatment needs were considerable, 'emphasised by his gross minimisation of his violent behaviour, and the effects thereof upon his victim, and further emphasised by his apparent egocentricity and perception of himself as a victim of his current circumstance'. Ms Cull noted that the respondent was willing to engage in special sex offender treatment and was suitable for such treatment.
A pre‑sentence report was prepared by a senior community corrections officer. The author also opined that the respondent was a high risk of re‑offending. She noted that the respondent accepted that his substance abuse was an issue requiring some remedial actions. She noted that with regard to anger management and sexual offending treatment programmes, the respondent was less ready to accept serious treatment needs.
A psychiatric report was prepared by Dr Ananth Pullela. Dr Pullela noted that the respondent's personality profile indicated low threshold tolerance to stress and that he easily reacted with frustration, anger and, perhaps, aggression. The respondent was noted to have poor coping strategies and poor social and communication skills.
Dr Pullela had treated the respondent whilst he was in custody. He noted that he did present with variable periods of depression but with no actual risk of suicide. He said that the respondent appeared to have gained a reasonable degree of insight into his ongoing life circumstances, his personality deficits and unstable mood swings. He had also expressed a reasonable degree of remorse, shame and guilt for his offending. However, Dr Pullela opined that given the possible predictors for future dangerousness, such as the respondent's abuse/dependence on illicit drugs, anti‑social/borderline traits, problems in controlling his anger and perhaps impulsivity, it was his opinion that the respondent was likely to re‑offend in the future. Dr Pullela was of the view that the risk of re‑offending could be minimised if the respondent underwent specific intervention programmes such as anger management, ongoing psychiatric and psychological supervision and monitoring, along with alcohol and drug assessment.
On 20 August 1998 a programmes officer with the Department of Corrective Services Sexual Offender Treatment Unit completed a treatment assessment report in respect to the respondent. The author said:
During his initial interview, Mr Morato promptly informed the writer that he is prone to stress, was stressed (due to family problems) and that he would possibly be defensive regarding his offences. Mr Morato was successful in demonstrating these characteristics, which quite accurately described his overall presentation. Most outstanding appeared to be his potential for self absorption and subsequent feelings of anger, stress, distress and urge to communicate those in some way. His Initial interview ceased prematurely due to the degree of stress he was demonstrating and his frequent references to previous and possibly current desires to kill himself or to 'lose it' in some way. Mr Morato was unable to demonstrate that he possesses any insight into these moods and further seemed resistant to explore, reflect or respond to feedback. He was subsequently referred to the Forensic Case Management Team (FCMT). During his second interview Mr Morato was more able to focus, however, continued to be somewhat defensive and vague.
The author concluded that in light of the respondent's emotional volatility, identified treatment needs, significant criminal history, prior convictions for violence and prior sexual violence the respondent would likely be considered at high risk of re‑offending in a sexual manner without treatment. He was therefore recommended for inclusion into the Intensive Sex Offender Treatment Programme and waitlisted for the programme.
The respondent undertook an Intensive Sex Offender Treatment Programme held at Casuarina Prison between 29 November 2004 and 24 June 2005. Two senior programme officers completed a report at the conclusion of the programme. The report noted that during the course of the programme it was observed that the respondent had a 'generally egocentric focus on his own needs at the expense or ignorance of others'. He also adopted a 'victim stance' viewing himself as the 'black sheep of the family'. It was noted that the respondent's sex offences were precipitated by disruption or rejection in significant relationships. It stated that in the lead up to the offences for which he was incarcerated his long term relationship terminated and his mistress rejected him on the morning immediately preceding the offences. It was said that during the course of the programme the respondent was able to identify that his feelings of inadequacy and egocentricity led to his adopting a victim stance. Also during the course of the programme the respondent exhibited some positive progress in his ability to identify the egocentricity and self‑absorption which contributed to him justifying his offending behaviour on the basis of his having deciding that his life was over and he did not care about anything. It was said that he appeared to gain significant insight in respect to the understanding of his victim's experience and the possible consequences for her, her family and others in the community because of his offending behaviour.

The authors applied the Static 99 Risk Assessment method to estimate the respondent's risk of re‑offending. It was noted that his score of six placed him in the high risk category; that is on a sample of sex offenders from Canada and the UK upon which the Static 99 was developed, this suggested that the respondent had a four in ten chance of sexual re‑offending within a five year period.
The authors believed that the respondent had gained insight into the interplay between his victim like thinking following rejection by others (particularly women) and the adoption of inadequate coping strategies such as escalating drug use and criminal behaviour in the lead up to his offending. Whilst the authors noted that increased insight was a positive treatment indicator, insight itself may only indicate the beginnings of positive and ongoing change. In order to continue to make positive changes regarding his interpersonal relationships and the adoption of adequate coping strategies when faced with conflict or experiencing emotional distress, as well as maintaining a pro‑social lifestyle and abstaining from substance use or association with criminal peers, the authors suggested that the respondent may benefit from ongoing therapeutic support in the community. The authors said that the respondent had identified a desire to obtain counselling in the community and that this indicated that the respondent was motivated to engage in appropriate therapeutic intervention. The authors noted that the respondent had provided an adequate relapse prevention plan outlining plans to remain abstinent from drug and alcohol use, return to education, seek physical fitness and maintain legitimate employment. The authors said that this relapse prevention plan may serve as moderating risk factors, should he be successful.
Finally, the authors recommended that should the respondent be successful in any application for parole that he abide by the following recommendations:
1.Undertake relationship counselling with his partner;
2.establish pre‑release contact with an appropriate drug and alcohol agency with the intention of providing the respondent with appropriate substance use support upon his release to the community;
3.access supportive individual counselling; and
4.abide by any conditions determined by the Victim Mediation Unit.
In 2006 a parole assessment recommended that the respondent not be granted parole. Concerns were raised about the suitability of his partner's home. The respondent was and is in a relationship with a woman whom he met whilst in prison through her brother, who was a fellow prisoner. Her home was considered unsuitable due to its close proximity to a school and park and also due to the presence of her two children in the home. It was also recommended that the respondent should initiate the Triple P Programme run by Holyoake whilst in prison to 'provide a smoother transition from prison to the community'. The author noted that the respondent would require intensive support and strict supervision conditions given the length of time he had spent in custody.
A report completed on 27 March 2006, indicated that a visit to the respondent's partner's home in February 2006 had revealed an immaculate house which the author deemed suitable as accommodation. The author noted that it was expected that should the respondent be released to this address the supervising community corrections officer would liaise closely with the partner to discuss protective behaviours within the household in regard to ensuring the protection of her children.
The author noted that during his term of imprisonment the respondent had made constructive use of his time by participating not only in the intensive sex offender treatment programme but also other programmes such as 'Choices Drug and Alcohol Programme' and 'Men without Hats and Relapse Prevention Programme'. Further, the respondent had undertaken an education programme whilst in custody and had shown a willingness to learn, not only to address his offending behaviour but also to gain qualifications and life skills. Despite these gains, the author did not recommend release on parole due to the respondent's high risk of re‑offending.
A parole assessment completed in January 2007 recommended early release with support and supervision. In addition to the information previously outlined in respect to his proposed accommodation, the author noted that the respondent's cousin was prepared to provide appropriate work for the respondent. The proposed employer was aware that the respondent would have some statutory obligations and was prepared to be flexible in his hours of employment.
The Prisoners Review Board made a decision on 6 September 2007 to deny the respondent release on parole. The reason for the decision was as follows:
The Prisoners Review board did consider the need for strict supervision in the community but considers this can be imposed for a longer period through an application through the Dangerous Sexual Offenders Act. Risk of re‑offending due to risk to safety of the community, serious and violent nature of current offences and the Board notes completion of Intensive Sex Offender Treatment Program. However, completion report indicates outstanding treatment needs and high risk of re‑offending.
The respondent's earliest date of release is 4 March 2008.

Is the respondent a serious danger to the community?

The Act s 7(3) states that in deciding whether to find that a person is a serious danger to the community I must have regard to a number of matters that I have earlier set out. I will address each of these in turn.

Reports prepared by psychiatrists pursuant to s 37

As is required by the Act, I have received into evidence two reports prepared by psychiatrists pursuant to s 37 of the Act. The Act provides that the reports must indicate the psychiatrist's assessment of the level of risk that, if the respondent was not subject to a continuing detention order or a supervision order, the respondent would commit a serious sexual offence and the reasons for the psychiatrist's assessment.
Dr Gosia Wojnarowska completed a 24 page report. Dr Wojnarowska, a consultant psychiatrist, had access to the material which was tendered in evidence and she also had a consultation with the respondent; the length of which was not disclosed in evidence. Dr Wojnarowska's report was accepted by the respondent and he did not seek to cross‑examine her on any parts of her report.
The report summarised the material which I have previously referred to. It also detailed matters such as the respondent's attitude towards his offending and victims, his emotional and behavioural regulation, his alcohol and drug history and his current functioning.
Dr Wojnarowska diagnosed the respondent pursuant to the American Psychiatric Association's Diagnostic and Statistic Manual of Mental Disorders 4th ed Text Revision (DSM‑IV‑TR) as having an anti‑social and narcissistic personality disorder. She noted that people with narcissistic personality disorders are very sensitive to rejection or criticism and are likely to respond with outbursts of rage when challenged. The narcissist has an inflated sense of self and if they offend it usually serves to fulfil their current needs, be they sexual, financial or other. Dr Wojnarowska also noted that the respondent's 'deep seated mistrust towards others and his need to control people in his immediate environment, particularly women with whom he develops a friendship, has been identified as a problem factor for future management'.
The doctor opined that at this point in time the respondent's 'sexual offending was driven by his anti‑social and narcissistic tendencies rather than by sexual sadism. This hypothesis however could only be tested when he is released into the community'.
Dr Wojnarowska conducted a risk assessment in three parts. In the first part, being an introduction, Dr Wojnarowska referred to a study by Hansen Bussie're 1996‑1998 of the overall sexual offence recidivism rate based on 61 follow up studies. The overall recidivism rate was 13.4% during the four to five year average follow up period. The rates increased with longer follow up periods. For example, they increased to 15% at five years and 22% at 10 years. According to the authors, the offenders were most likely to re‑offend sexually if they had an established pattern of sexual deviancy, failed to comply with treatment and had a history of general criminology.
Dr Wojnarowska noted that the respondent appeared to be positive in one out of three of these factors; that is, general criminology. Dr Wojnarowska noted that other studies highlighted a close correlation between high psychopathy scores and the rate of violent or sexual re‑offending.
In order to estimate the respondent's risk of re‑offending as closely as possible Dr Wojnarowska attempted to answer the following questions:
1.What are the factors that in the respondent's case predicted recidivism;
2.how does the respondent rate on the relevant factors; and
3.given the combination of these factors, what is the probability that the respondent will commit a particular type of offence over a given period?
In the second part of her risk assessment Dr Wojnarowska described the instruments used by her in her risk assessment. These included actuarial instruments and structured clinical guides. Given that the methodologies and bases of these different risk assessment tools were not challenged by the respondent it is unnecessary for me to go into a lot of detail about them. Dr Wojnarowska's report described how actuarial instruments used mainly static risk factors to assess risk. The actuarial instruments used in her assessment were the Static 99 and the Hare Psychopathy Check List‑Revised (PCL‑R). The Static 99 is designed to assess the long term potential for sexual recidivism among adult male sex offenders. The PCL‑R assesses the extent to which an individual's personality structure conforms to the clinical constructive psychopathy.
In respect to the structured clinical guides employed by Dr Wojnarowska, these used both static and dynamic risk factors in order to assess risk. Dr Wojnarowska chose to use the Risk of Sexual Violence Protocol (RSVP) and the Historical Clinical Risk 20 (HCR‑20) as structural clinical guides. Additionally, Dr Wojnarowska was guided by the 3‑Predictor model which is an experimental instrument developed in the course of an earlier landmark Western Australian study in 2002 by Allan and Dawson. The study found that for sexual offenders the three factors that best predicted sexual re‑offending were all dynamic and included poor coping skills, unrealistic long term goals and unfeasible release plans.
In the third and final part of Dr Wojnarowska's risk assessment she described the results of the application of the risk assessment tools and her interpretation of them.
In respect to Static 99 the respondent scored six out of 12 which places him in a high risk of re‑offending category. This indicates that he has a 36% chance of sexual re‑conviction in the first five years of liberty, a 44% over 10 years and a 51% over 15 years in the community. Dr Wojnarowska noted that a recent pilot study conducted in California found that a subject scoring in the range of six in the pilot sample had a much lower rate of re‑offence (15% at 10 years) than that found in the developmental sample (44%). Dr Wojnarowska said that this confirmed the limited predictive validity of actuarial instruments, where the dynamic factors are not taken into account.
In respect to PCL‑R the respondent's score was in the very high range suggesting that he exhibits many of the features of psychopathy as defined by the PCL‑R. According to the author of the PCL‑R, offenders scoring high on PCL‑R (more or equal 25) were significantly more often reconvicted than the others.
The respondent's score relating to interpersonal and affective features of psychopathy was high, at the range of the 100th percentile. The respondent also had a score in the high range on the social deviance scale. In the study it was found that rapists with high PCL‑R scores appeared to be at particular risk of re‑offending (sexual, violent non‑sexual and general).
In respect to HCR‑20, Dr Wojnarowska said that the respondent's score confirmed that he is at high risk of future violence. Relevant historical factors include history of previous violence, young age at first violence, history of relationship instability, his score on PCL‑R, history of early maladjustment, personality disorder, history of substance abuse problems and history of prior supervision failure. Current clinical factors of concern included his limited insight into his personality problems and his extreme egocentrism and propensity for rages. Dr Wojnarowska said:
Although Mr Morato acknowledges his need to have control over women he does not appear to make a connection between this factor and his sexual arousal. Of concern is that he does not see himself as violent and that he exhibited negative attitudes as evidenced by his tendencies to shift responsibilities to others, to portray himself as a victim and his tendency to minimise violence. In addition he exhibited impulsivity and demonstrated high treatment needs after already completing an Intensive Sexual Offenders Treatment Program. Future risk management items include likely exposure to de‑stabilisers such as illicit substances and relationship problems.
In respect to RSVP, Dr Wojnarowska noted that the first domain of RSVP contains five factors which are related to a person's history of sexual violence. The respondent scored low in the domain of chronicity of sexual violence as despite the early onset of his offending his sexual offending has not been persistent or of high density. Dr Wojnarowska noted that there is some evidence of an escalation of violence, as evidenced by a number of the charges in respect of which he is now in custody. In respect to diversity of sexual violence and psychological coercion, the respondent had low scores. However, the respondent had a high score on physical coercion in sexual violence. The high score on physical coercion and escalation predicts that his future re‑offending is likely to be violent in nature. The factors in this domain, Dr Wojnarowska noted, are stable so there is little space for improvement during the treatment.
The second domain comprises five factors reflecting aspects of psychological adjustment that have a strong and specific link with decisions to engage in sexual violence. On self report, the respondent scored relatively low on attitudes that support or condone sexual violence. The respondent scored high on minimisation and denial of sexual violence.
The third domain, mental disorder, comprises five factors which reflect the presence of significant psychopathology. Dr Wojnarowska said that the respondent does not appear to have a pattern of abnormal and dysfunctional sexual arousal. It was accepted by her that there is not enough evidence to take into account sexual deviance as a factor in the respondent's risk of re‑offending. The other factors in the mental disorder category include the respondent's high range PCL‑R score. The remaining factors such as substance abuse are associated with general risk of violence or criminality.
The social adjustment domain comprises four factors which reflect problems relating to other people and fulfilling social roles. The respondent scores high in problems with intimate relations as evidenced by his personal and sexual history.
Finally, manageability comprises planning, treatment and supervision. Dr Wojnarowska said that although the respondent has developed future goals he continues to underestimate the challenges that he will face in the community.
Dr Wojnarowska then outlined risk scenarios in respect to re‑offending. She opined that the sexual offence likely to be committed by the respondent is likely to be any type of penetration committed against a woman who is either acquainted with the respondent or whose circumstances are known to him. Thus, it is likely to be a serious sexual offence. Dr Wojnarowska pointed out that when released to the community, the respondent will be living with the mother of two children and that he has a history of leaving his relationship when the focus of his partner's attention shifted to a baby. In the domestic situation that the respondent expects to be living in, he will have to share his partner's attention with her children. He will also be faced with the children's difficulties in accepting the respondent into their family. Dr Wojnarowska pointed out that the resulting stress and conflict is likely to lead to a deterioration in the respondent's emotional stability. If history repeats itself this will lead to substance abuse and could lead to general criminality and sexual offending.
In respect to any harm done to a potential victim by the respondent's future offending, Dr Wojnarowska considered that this is likely to be predominately psychological but physical harm could not be excluded. Dr Wojnarowska said that the future victim could be protected to some degree if the respondent's past history was to become known in his environment.
Dr Wojnarowska concluded that for the reasons outlined in her report, it is her opinion that the respondent is at a high to moderate risk of committing a serious sexual offence if not subjected to continued detention or a supervision order. In summary she said:
Several factors contribute to assessment of Mr Morato's risk level. Firstly although there are identifiable triggers which are specific to his offending, those triggers are difficult to eliminate as they constitute every day life stressors such as relationship problems or difficulty with children. In the community he will also be subjected to other destabilising factors such as the presence of alcohol and other illicit substances. His personality characteristics will impede his ability to empathise. His extreme narcissism, ability to manipulate and deceive the others by his pathological lying and by being superficially charming all point towards management problems. The other concern has been that there is no specific treatment that could significantly reduce his risk of reoffending in the future.
Dr Wojnarowska concluded her report by outlining recommendations that she says may assist with the management of the respondent in the community.
The second psychiatric report prepared pursuant to s 37 of the Act is from Dr Bryan Tanney, a consultant forensic psychiatrist. Dr Tanney prepared his report after having all the relevant material made available to him and after he interviewed the respondent for a period of four hours. Dr Tanney's report is 39 pages in length. It outlined, in some detail, the respondent's background which I have previously dealt with. Dr Tanney's report commenced by outlining the difficulties in predicting violence and sexual violence, and he referred to the several processes available for attempting to do so including unstructured clinical assessment, guided clinical risk appraisal, and actuarial derived, standardised instruments. He acknowledged that each of these processes has inherent procedural defects but that reports of the nature of his report should embrace the variety of procedures available.
Dr Tanney reported the result of actuarial derived risk ratings utilising the RSVP and Static 99 measures. He stated that he also conducted a highly focused risk appraisal interview that was guided by his understanding of relevant and important constructs that have been identified in enabling risk prediction and management. He said that his final opinion is the result of his integration of the data provided by these various informed processes. He stated that his report was prepared and his opinion formulated with the perspective that information gleaned from his interview with the respondent should be valued equally with that of actuarial derived instruments. Further, a relatively low standard of certainty for the likelihood of recurrent serious sexual offending is implicit in his considerations. His 'measure of certainty' has been significantly altered (I assume adversely so) as result of his experience with the Act by virtue of what he said is the 'virtual total failure' of the Department of Corrective Services to provide adequate resources to implement appropriate risk reduction measures as a part of community management orders. Although I did not hear in person from Dr Tanney as the respondent did not seek to cross‑examine him, I can only sympathise with Dr Tanney in regard to his experience with the legislation and the lack of resources available in the community. If appropriate resources were available in the community, for the effective supervision of dangerous sexual offenders, psychiatrists and judges may have far greater confidence that a person's risk of committing a serious sexual offence in the community would be significantly diminished.

Dr Tanney arrived at the same score of six for the respondent in respect to the Static 99 measure. Dr Tanney gave more detail in respect to the RSVP than Dr Wojnarowska did. He said that 22 items were available for scoring and a further category of other/idiosyncratic considerations was also available. Item scores were either recorded as yes (definite), possible or no (not present). 'Yes' meant that the item was present and has clear or substantial relevance, 'possible' meant that it was present and had unclear or limited relevance and 'no' meant that it was not present and not relevant. There was also two time frames available being a past (greater than one year ago) and present (within the past year). Dr Tanney pointed out that as the respondent has been incarcerated for the past several years the timeframe is 'moot' for many items.
Dr Tanney went through each of the 22 items and gave a result in respect to each of them. In his assessment he recorded as currently or possibly present and relevant to the development of a risk management plan for the respondent, the following items:
•Chronicity of sexual violence (possible);
•physical coercion in sexual violence;
•extreme minimisation/denial of sex offences;
•attitudes that support or condone sexual violence (possible);
•problems with self awareness;
•problems with stress and coping;
•psychopathic personality disorder;
•substance use;
•suicidal ideation (possible);
•adjustment problems in intimate relationships;
•adjustment problems in non‑intimate relationships;
•non‑sexual criminality;
•problems with planning (possible);
•problems with treatment (possible); and
•problems with supervision.
Dr Tanney said that there was no strong indication of a pattern of sexual violence. Dr Tanney noted that there were areas where change/treatment/help could be targeted as a means of supporting further prevention of relapse. These were in respect to his psychological adjustment. Whilst there were long standing impairments of the respondent's psychological processes involving emotional regulation, he had shown the ability to understand these disturbances during treatment. There remained the risk of re‑emergence of these disturbances as influences on his behaviour when stressed or less regulated in the community.
Dr Tanney diagnosed that, pursuant to the DSM‑IV‑TR, the respondent has a 'Personality Disorder of Mixed components' encompassing Antisocial and Borderline elements. His social adjustment difficulties can, in Dr Tanney's view, be strongly attributed to the interpersonal and behavioural traits of such a disorder. Dr Tanney noted that whilst the respondent had previously had difficulties with planning, treatment and supervision he had consistently in the last two years presented himself as a person who has managed 'a very considerable change in his life outlook. He directly states his intentions towards planning, treatment and supervision in a constructive, motivated and positive fashion'. However, Dr Tanney noted that there has been no opportunity to observe his ability to prevent relapse in the community.
In respect to long term goals Dr Tanney considered that the respondent did not offer or appear to be actively considering himself in any situation beyond the current issue of release from custody. Dr Tanney did not believe that he had at all realistically addressed this factor and doubted his capacity to implement long term goals. In respect to release plans, Dr Tanney was of the view that the respondent has described realistic plans that can be implemented and are feasible. Thirdly, Dr Tanney noted that the respondent has had lifelong difficulties in coping in an appropriate way with strongly emotional situations involving important others. 'Violence, substance abuse and suicidal ideation have been characteristic of maladaptive responses'. Dr Tanney noted that the respondent has currently expressed some self‑awareness and motivation to seek support in managing his stress and coping responses and in utilising the prevention strategies he has learned.
Dr Tanney summarised his observations from his interview with the respondent. These included that the respondent's verbal intelligence and reasoning was above average. Throughout the interview he had a clear sense that the respondent was selective in his responses and made a subtle, but 'concerted effort', to present himself in a positive light. Dr Tanney did not note any evidence of abnormality in process, content or form of his thoughts, psychosis, anxiety disorders or major mood disorders. The respondent described his current feelings to Dr Tanney as being 'frustrated' and somewhat scared/anxious in respect to this application and his potential return to the community. The respondent denied suicidal ideation and endorsed none of the signs of clinical depression. Dr Tanney observed that there was no depth to the respondent's emotional reactions and limited reactivity. There was no lability or loss of emotional control. Dr Tanney made an effort to purposely frustrate the respondent on a number of occasions to measure impulsivity and loss of control. The respondent demonstrated a minimal level of response and was quick and able to recover/minimise any such responses.
Dr Tanney then expressed his opinion as follows:
Without effective, ongoing management (including monitoring and possible treatment) and the implementing of certain risk diminishing measures, this man is at some risk of further serious sexual offending, as estimated by available procedures and measures.
In support of this Dr Tanney identified the respondent's Static 99 score, together with some modifications to that risk estimate due to the nature of the respondent's previous sexual offending. However, Dr Tanney noted that Static 99 had only moderate predictive accuracy and did not address factors that might be considered in a dynamic risk assessment. Dr Tanney also relied upon the RSVP and the three predictor models. Dr Tanney noted that whilst the results from these three measures were broadly convergent, there was a strong presentation by the respondent that his risk factors were part of his history and that he has changed positively during his time in custody such as to ameliorate them.
In respect to the cause of the respondent's prior sexual offending, Dr Tanney opined that it was likely that his social prohibitions were lessened as part of the respondent's Personality Disorder and as a more immediate consequence of the effects of substance abuse. Dr Tanney was of the view that the respondent's sexual offending was but 'a particular instance of his general maladaptive response to emotional, interpersonal and social situations that generate dysphonic emotional states' for which the respondent has no acceptable means of expressing, managing or resolving. On the positive side Dr Tanney noted that the respondent was not without some awareness of social prohibitions, he is not entirely callous and disregarding or without emotional responses.
Dr Tanney concluded that:
From static and historical data, [the respondent] is at significant, even 'High' likelihood of serious sexual re‑offending against adult women with accompanying violence within the next five years or sooner, should no further intervention take place.
Dr Tanney defined 'High' to mean re‑offending rates approximating 40% at five years. He says that this likelihood estimate informs, but does not constitute a direct probability of personal re‑offending nor does it address the ascertaining of 'unacceptable risk'.

Any other psychiatric psychological or other assessment relating to the respondent

I have already outlined other psychiatric, psychological and other assessments in the segment relating to the background of the respondent.
Broadly speaking, those previous assessments are consistent with the opinions of the two psychiatrists. They have identified that the respondent has seriously maladaptive ways of with dealing with stress in personal relationships and substance abuse problems. His risk of re‑offending is increased by those matters as well as his Personality Disorder.

Information indicating whether or not the respondent has a propensity to commit serious sexual offences in the future

By propensity, I assume that the Parliament intended the word to have its ordinary dictionary meaning of inclination or tendency. I have reviewed the respondent's background as well as the expert's opinions in respect to him. It is apparent that all that material indicates that the respondent has a propensity to commit serious sexual offences in the future. The extent to which this has been ameliorated by treatment and growing personal awareness whilst the respondent has been in custody is unclear.

Whether or not there is any pattern of offending behaviour on the part of the person

It is not possible to identify a pattern of offending. What I do note is that the respondent has offended against adult females in their own homes, that the offending appeared opportunistic, that the respondent was motivated by his own desire for sexual gratification or desire to feel power over his victims, that he had abused alcohol or drugs prior to the incidents and that his offending primarily involved penile penetration of the victims.

Efforts by the respondent to address the cause or causes of his offending behaviour, including whether the respondent has participated in any rehabilitation programme

I have summarised the efforts made by the respondent to rehabilitate himself through participation in formal programmes whilst in custody. The respondent has made considerable efforts in this regard. In addition to completing the Sex Offender Treatment Programme he has participated in and completed a number of other programmes designed to assist in an offender's rehabilitation. There are signs that these programmes have had a positive effect on the respondent. The issue is to what extent these improvements can be maintained once the respondent is in the community.

Whether or not the respondent's participation in any rehabilitation programme has had a positive effect on him

I have dealt with this in the previous paragraph.

The respondent's antecedents and criminal record

I have summarised the respondent's antecedents and criminal history in the segment of this judgment relating to his background.
The respondent was raised in an environment in which he was deprived of appropriate emotional support. He displayed behavioural difficulties from a very early age and did not receive consistent and appropriate intervention to correct his behaviour and attitudes. He engaged in antisocial and criminal activity from an early age. His offending behaviour continued up until the offences resulting in his present incarceration.

The risk that if the respondent were not subject to a continuing detention order or a supervision order he would commit a serious sexual offence

On the basis of the evidence before me, in particular, the opinions of the two psychiatrists, the respondent's antecedents and his criminal record, I conclude that there is a significant risk that if the respondent were not subject to a continuing detention order or supervision order he would commit a serious sexual offence.

The need to protect members of the community from that risk

The respondent's sexual conduct without the consent of the victims has been a gross violation of their rights to personal privacy and safety. The latter series of offences, occurring in 1998, were violent, prolonged, repetitive, injurious and frightening for the victim. The 'need' to protect members of the community from the risk of the respondent committing similar offences in the future must be seen in the light of the seriousness of the offences he committed at that time.

Any other relevant matter

Wheeler J in Director of Public Prosecutions (WA) v Williams [63] said that in determining whether there was an unacceptable risk that a respondent would commit a serious sexual offence the court should take into account the consequences of making a finding that an unacceptable risk exists. I note in this regard that the respondent does not object to a finding that he is a serious danger to the community and that involves a finding that there is an unacceptable risk that if he were not subject to a continuing detention order or a supervision order he would commit a serious sexual offence. This concession is a significant matter for me to take into account in determining this application. It is an acknowledgement by the respondent of the matters which the Director of Public Prosecution relies upon in support of the application.

Conclusion

I have taken into account all the foregoing matters in determining whether I am satisfied that there is an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order he would commit a serious sexual offence. It cannot be disputed that there is a risk of that nature. The real issue is whether it is an unacceptable risk. As Dr Tanney has indicated in his report it is neither clear what unacceptable means in this context or easy to determine whether the risk of the respondent committing serious sexual offences in the future meets the standard of unacceptability. This is particularly the case where, as the respondent is in custody and has been for some 10 years. Thus, it is not possible to make an assessment of the degree of risk of re‑offending based on any recent experience of the respondent in the community.
However, even taking into account that the respondent has spent 10 years in custody, that he has matured in that time and has undergone programmes in order to reduce the risk of recidivism, I am satisfied that taking into account all the matters that I am obliged to consider under the Act that there is an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order he would commit a serious sexual offence.

Should the respondent be subject to a continuing detention order or a supervision order?

The applicant does not ask for a continuing detention order. Nevertheless, the onus is on me to determine whether the community would be sufficiently protected by a supervision order. Even after considering all the evidence this is a matter of fine judgment. On one hand there are matters such as the respondent's increased maturity, the programmes he has completed, his feasible release plans, his family support, the length of time between his offending and the conditions which can be placed on him in the community which indicate that his risk of re‑offending can be adequately managed in the community. On the other hand there is the seriousness of his prior serious sexual offending, his Personality Disorder, his previous susceptibility to relapse into drug use when stressed and the untried nature of his proposed domestic arrangements which indicate that the risk will remain at a substantial level.
After considering these and other relevant matters I have decided that the risk can be adequately managed in the community. It should be apparent to those supervising the respondent if there are precursors to the respondent committing serious sexual offences such as a breakdown in his relationship, other stress in his life, use of drugs or abuse of alcohol and general offending. The existence of these precursors should enable those supervising the respondent to take measures to prevent the respondent from committing further serious sexual offences.
The parties are in general agreement as to the provisions of the supervision order. The terms as proposed by the parties are as follows:
The Respondent be placed on a supervision order for a period of 5 years … on the following conditions:‑
(1)To report to a community corrections officer ('CCO') at Belmont Community Justice Services, 39 Abernethy Road, Belmont, WA, no later than 10:00am on the first working day following his release from custody on his existing sentence, and thereupon notify the CCO of his current name and address;
(2)To report to, and receive visits from, a CCO at times and places as directed by the CCO, and to report at least weekly for the first six months of the order;
(3)To notify the CCO of every change of his name, place of residence, or place of employment at least 2 days before the change happens;
(4)To be under the supervision of a CCO ('the CCO');
(5)Not to leave, or stay out of, the State of Western Australia without the permission of the CCO;
(6)Not to commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of this order;
(7)to refrain from breaking the law;
(8)To comply with any interagency case management process as directed by the CCO;
(9)To agree to the exchange of information between persons and agencies involved in the management of his order, including otherwise confidential information;
(10)To reside only at accommodation approved in advance by the CCO;
(11)To reside continuously at the address approved by the CCO unless authorised in advance to be absent by the CCO;
(12)Not to change address or commence or change employment without the prior approval of the CCO;
(13)To engage with a psychiatrist, psychologist, mentor, support service and/or support person nominated by the CCO for the period set by the CCO;
(14)To attend and comply with the requirements of all programmes designed to address his offending behaviour as directed by the CCO;
(15)To comply with the same requirements set out in section 76 of the Sentence Administration Act 2003 that offenders must comply with under that section;
(16)To have no contact, directly or indirectly, with either [names of complainants].
(17)Not to associate with any person known by him to have committed a sexual offence, unless authorised by the CCO;
(18)To allow the CCO, or other persons or agencies approved by the CCO, to (a) interview any associate or potential associates and (b) to disclose to them his offending history including otherwise confidential information;
(19)Not to possess, consume or use illicit drugs or substances including, but not limited to, cannabis;
(20)To attend for urinalysis or other testing for illicit drugs or substances as directed by the CCO.
In my view these are appropriate conditions. However, I would add the following stipulations. On the basis of the evidence from the psychiatrists, it would seem to me imperative that appropriate relationship and protective behaviour counselling be offered to the respondent's partner, her close associates and her children. It is also imperative that the respondent be required to engage with a psychologist or other appropriate expert as well as be required to engage in programmes designed to address his offending behaviour and to reduce his risk of committing further serious sexual offences. These programs must include a high intensity program specific for a person with his Personality Disorder, whatever it is found to be. Additionally, it is imperative that the respondent be required to attend regularly, including on random occasions, for urinalysis or other testing for illicit drugs and alcohol.
I am satisfied that the community will be adequately protected by a supervision order which contains the above conditions and is implemented in the manner I have stipulated.
In respect to the length of the order the respondent is 36 years of age. The incident in Darwin and the serious sexual offences committed in Perth occurred over 10 years apart. In my opinion it is appropriate to take this length of time into account in fixing the length of the supervision order, whilst acknowledging that the risk of re‑offending decreases with age. With these matters in mind, I fix the period of supervision at 5 years. If the respondent's behaviour is such that the conditions that I impose are not considered necessary in the future then application may be made under the Act to have them relaxed.