Director of Public Prosecutions v Coffin [No 3] - [2017] WASC 233

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS -v- COFFIN [No 3] [2017] WASC 233

CORAM: FIANNACA J

HEARD: 16 NOVEMBER 2016, 18 JANUARY, 22 FEBRUARY & 24 MARCH 2017

DELIVERED : 15 AUGUST 2017

FILE NO/S: DSO 1 of 2014

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND
FABIAN ALEC COFFIN
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Second annual review - Serious danger to the community - Adequate protection of the community

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

The court affirms the continuing detention order

Category: B

Representation:

Counsel:

Applicant: Mr M T Trowell QC
Respondent: Ms M R Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Director of Public Prosecutions (WA) v Coffin [2014] WASC 305
Director of Public Prosecutions (WA) v Coffin [No 2] [2015] WASC 436
Director of Public Prosecutions (WA) v Decke [2017] WASC 119
Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Latimer [2006] WASC 235
FIANNACA J:

Summary of the history of the proceedings and the result

This is the second annual review pursuant to s 29 and s 31 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) of the detention under a continuing detention order of Fabian Alec Coffin, the respondent. The detention order was made by Hall J on 5 September 2014, his Honour having found that the respondent was a serious danger to the community for the purposes of the Act: Director of Public Prosecutions (WA) v Coffin.[1] At the first annual review of the detention, Jenkins J found that the respondent remained a serious danger to the community and declined to rescind the order: Director of Public Prosecutions (WA) v Coffin [No 2].[2]
[1] Director of Public Prosecutions (WA) v Coffin [2014] WASC 305 (Coffin).
[2] Director of Public Prosecutions (WA) v Coffin [No 2] [2015] WASC 436 (Coffin [No 2]).
The application for the present annual review was brought by the Director of Public Prosecutions for Western Australia (the DPP), on 2 May 2016. After reports were ordered and obtained in accordance with the requirements of the Act, the hearing of the review was listed to be conducted on 16 November 2016. On that day the respondent applied for an adjournment. The reports that had been prepared supported the conclusion that the respondent remained a serious danger to the community. The issue was whether the community could be adequately protected by the release of the respondent on a supervision order. Such an order would not be appropriate unless there was suitable accommodation for the respondent in the community. Accommodation had been identified in a regional town, but the written materials suggested that it was unlikely to be suitable. The adjournment was sought on behalf of the respondent in order to explore the availability of other accommodation. The respondent was aware that there were other issues the court would need to consider in deciding whether a supervision order would be appropriate, and it was possible that, even if suitable accommodation were found, the court may still affirm the continuing detention order. The adjournment was granted.
The annual review was subsequently conducted on 18 January 2017, 22 February 2017 and 24 March 2017.
The protracted nature of the review was due, in part, to the fact that it became necessary for the parties to adduce evidence about an incident in respect of which the respondent was found to have committed a prison offence on 14 January 2017. The question of whether the respondent had engaged in the conduct alleged against him was relevant to whether his risk of committing a serious sexual offence could be adequately managed on a supervision order. I was of the view that I was not bound by the finding of the visiting justice who had found on 8 February 2017 that the respondent had committed the prison offence. The evidence concerning the incident was heard by me on 24 March 2017.
At the conclusion of proceedings on 24 March 2017, an order was made for the respondent to file closing submissions in writing. Those submissions were filed on 23 May 2017.
Before the hearing of 18 January 2017, accommodation had been identified in the Perth metropolitan area that would be available to the respondent if he were released on a supervision order. The accommodation had been assessed by Western Australia Police (WA Police) and it was the respondent's submission, based on that assessment, that it would be suitable for the purposes of releasing him on a supervision order. While the matter stood adjourned, pending my decision, that accommodation became unavailable (for reasons that I need not go into). Alternative accommodation was then identified, and a report from WA Police assessing its suitability was prepared on 21 July 2017.
For the reasons that follow, I am satisfied that the respondent remains a serious danger to the community. I am not satisfied that the community could be adequately protected against the respondent's risk that he would commit a serious sexual offence if he were released on a supervision order, notwithstanding the very restrictive conditions that have been proposed. It is a combination of factors that leads me to that conclusion.
Although the respondent has demonstrated improvements in self‑awareness in respect of his sexual deviance and risk factors for sexual reoffending, and while his sexual urges have reduced as a result of medical treatment, he continues to have cognitive distortions and sexually deviant urges, such that the effectiveness of a supervision order would depend significantly, in my view, on the respondent's capacity for self-regulation. Having regard to his conduct since the first annual review, I do not have confidence that the respondent would be able to regulate his own behaviour and control his impulsivity so as to be compliant with the conditions of such an order, resist engagement in antisocial behaviour and avoid circumstances that would put him at risk of committing a serious sexual offence. There are also concerns about the suitability of the proposed accommodation, in light of the factors I have identified concerning the respondent's risk.
Accordingly, the continuing detention order will be affirmed.

Legislative framework and relevant principles

When a person is in custody pursuant to a continuing detention order, the detention must be reviewed by the court, on application by the DPP, in accordance with pt 3 of the Act. At the time the application for the present review was made, a review was required to be conducted annually. The Act was amended from 10 September 2016 in this regard,[3] but the amendment did not affect the present review.
[3] Dangerous Sexual Offenders Legislation Amendment Act 2016 (No 17 of 2016) s 24, amending s 29 of the Act.
The purpose of a review is to determine whether the person continues to be a serious danger to the community and, if so, whether the appropriate order is continued detention or release on supervision: s 33 of the Act.[4] If the person is no longer a serious danger to the community the detention order must be rescinded: s 33(1)(a). If the person continues to be a serious danger, the court must either affirm the continuing detention order or rescind that order and make a supervision order: s 33(1)(b). In making that decision, the paramount consideration is the need to ensure adequate protection of the community: s 33(3).
[4] The provisions of s 33 were also amended by the Dangerous Sexual Offenders Legislation Amendment Act 2016 (s 28). For reasons I will give later in relation to the application of s 33(1)(ii) as amended, I am of the opinion that the amendments to s 33 apply for the purposes of these proceedings. The outline of the legislative provisions reflects the amendments.
I discussed the legal principles applicable on an annual review and the appropriate approach to the decision to be made between continuing detention and a supervision order in Director of Public Prosecutions (WA) v Pindan [No 3].[5] In Director of Public Prosecutions (WA) v Ugle [No 3],[6] I said I was inclined to agree with the analysis of the annual review process by Hall J in Director of Public Prosecutions (WA) v Unwin [No 3][7] (which his Honour reiterated recently, with some elaboration, in The State of Western Australia v Corbett[No 5][8]). That remains the case, subject to my further analysis in Pindan [No 3]. The key principles may be summarised as follows.
[5] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [22] ‑ [32].
[6] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [9] ‑ [12].
[7] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [18].
[8] The State of Western Australia v Corbett[No 5] [2017] WASC 115.
Detention under the Act is not punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. As Hall J noted in Unwin [No 3], it is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future.[9] If circumstances change such that the risk of reoffending reduces, it may be that the risk is no longer unacceptable if the person is not subject to a detention order or supervision, or it may be that the adequate protection of the community against the risk, although it is still unacceptable, can be achieved by the making of a supervision order.
[9] Unwin [No 3] [15].
The review process is intended to allow for the possibility of a change of circumstances. It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community.[10]
[10] Pindan [No 3] [51].
Nevertheless, the first question the court must consider is whether it is satisfied to a high degree of probability, on acceptable and cogent evidence, that there remains an unacceptable risk that the respondent will commit a serious sexual offence if not subject to a continuing detention order or supervision.[11] If the court is so satisfied, then, in deciding whether to affirm the detention order or release the respondent on a supervision order, the court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.[12]
[11] s 33(1)(a) read with s 7 of the Act.
[12] The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [79].
When considering whether a supervision order would adequately protect the community, it is necessary to take into account any conditions which can be placed on such an order to ensure that protection. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the protection of the community will always favour detention, as the most assured form of prevention.[13] However, because of the paramount consideration, if, having regard to the evidence concerning possible conditions which might be imposed on a supervision order under s 33(2), the court is left in doubt as to whether such an order would adequately protect the community, it must affirm the continuing detention order.[14]
[13] Williams [58].
[14] Williams [86]; Pindan [No 3] [29] ‑ [32].
The level of risk posed by the respondent, and whether the community can be protected adequately against the risk under a supervision order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities (including his history of offending) and his capacity to control or manage his own behaviour, but also to external constraints and obligations that can be put in place under a supervision order to mitigate the risk. Gains made by the respondent in treatment and his behaviour while in custody will inform the assessment of the personal factors. The availability of new technology or resources in the community will be relevant to the assessment of external factors.
As Hall J remarked in Unwin [No 3], if the risk changes or resources improve to enable more efficacious conditions, then the need for detention may dissipate and continuing detention may become unjust.[15] The review process is intended to ensure that detention only continues where necessary.
[15] Unwin [No 3] [18].

Background

The respondent's background, the evidence in the initial application under the Act and at the first annual review, and the findings made in those hearings, are set out in Coffin and Coffin [No 2]. What follows is a summary in which I have sought to identify matters that will be relevant to my decision.

History of sexual offending

The respondent's history of sexual offending was outlined by Hall J in Coffin.[16] The offences occurred on 10 separate occasions from late 1990 to July 2002, although four of the offences were committed against the same victim in the course of a sexual relationship. Not all of the offences were 'serious sexual offences' for the purposes of the Act, but they were all relevant in assessing the respondent's risk of committing serious sexual offences. All of the offending occurred in towns in the Pilbara region of Western Australia where the respondent was living.
[16] Coffin [34] ‑ [44].
Hall J summarised the history as follows:[17]
It is clear from this history that at least between the years 2000 to 2002 the respondent engaged in a series of serious sexual offences against children. Those offences involved seeking to obtain sexual gratification by indecently dealing with children who were sleeping. The offences involved persistent conduct and appear to have all been related to alcohol use. These offences were not characterised by violence, although the attempted oral penetration of the boy was accompanied by force. The earlier offending in 1990 and in 1995 to 1996 was different. The 1990 offences involved an older victim and at a time when the respondent was himself a juvenile. Those offences were also accompanied by significant use of force and involved multiple acts of penetration. The 1995/1996 offences involved a child of similar age to the victims of the later offences but were different in that they involved a sexual relationship with a child rather than opportunistic acts. It is difficult to draw a pattern of behaviour from the whole of the offending conduct, however it is apparent that it shows that the respondent has displayed a sexual attraction to older children and has been prepared to take significant risks in order to gratify that attraction.
[17] Coffin [44].
It is sufficient for the purpose of these reasons to identify the following additional factors:
1.The ages of the children against whom the respondent offended ranged from 10 to 16 years, but the majority were between 11 and 13 years old.
2.All of the victims were female, except for one, a 12‑year‑old boy who was the first victim in the last series of offences, committed on 31 July 2002.
3.The first offence, when the respondent was a juvenile, occurred in a public place at night time, when the victim was walking home from work.
4.The other offences, other than the last group of offences, occurred in homes where the respondent was residing with his partner, and the victim was either also living in that home or was visiting.
5.The victim of the offences in 1995/1996 was the babysitter of the respondent's children.
6.The last group of offences occurred at two houses where he was not residing, but where it appears he was known to the occupants. At the first house he gained entry through a lounge room window after removing a flyscreen. He committed sexual offences against the boy and two girls who were sleeping in that room. At the second house, which was next door to where he was residing, he entered the house and went to a bedroom where two 13‑year‑old girls were sleeping. He indecently dealt with both girls.
For the offences in 1995/1996, the respondent received a total effective sentence of 6 years' imprisonment on 10 June 1997. Obviously the offences from October 2000 onwards occurred after he was released from prison in respect of that sentence. He was then sentenced to a total effective sentence 6 years' imprisonment on 15 October 2002 for the 2000 and 2001 offences. On 9 June 2003, he received a further total effective sentence of 6 years' imprisonment for the offences that occurred in 1990, cumulative on the sentence he was already serving.

Treatment prior to 2014

During his first period of imprisonment between 15 February 1997 and 27 November 1999, the respondent participated in a pre‑release sex offender programme. As Hall J noted in Coffin,[18] the programme was not effective in achieving lasting and significant change in his behaviour, and his sexual drive for children persisted. During the subsequent periods of imprisonment, prior to the initial application by the DPP under the Act in 2014, the respondent completed other programmes to address his sexual offending, including an Intensive Sex Offender Treatment Programme. Important issues that emerged from the treatment he received included: an entrenched pattern of alcohol use, which appeared to have been disinhibiting in terms of his decisions to engage in sexual behaviours; a tendency to respond aggressively when intoxicated; impulsivity; a need to address his own experience of sexual abuse; and his sexually deviant interest in female children. In one of the programmes it was noted that the respondent had shown no improvement in his impulsivity, which Hall J considered to be a 'significant reservation, given the apparently opportunistic nature of the offences committed in 2002'.[19]
[18] Coffin [47].
[19] Coffin [49].
It was considered that the respondent abused alcohol in response to feelings of depression and inadequacy or disempowerment, particularly where he was unable to reconcile the behaviour of others with his own needs or wishes.[20]
[20] Coffin [51].
Hall J summarised the respondent's participation in programmes as follows:[21]
Whilst the respondent's willingness to attend and engage with programmes cannot be faulted, there are reasons to doubt whether those programmes have achieved long term, significant and sustainable change.
[21] Coffin [54].
His Honour noted that, whilst in prison, the respondent had committed a number of prison offences including possession of pornographic material and possession of drugs, the latter of which offset gains he had made in a substance abuse programme.[22] It is apparent from other parts of his Honour's reasons, that the respondent's use of cannabis was also regarded as a risk factor for the respondent when assessing his risk of sexual reoffending.

Findings in the 2014 proceedings

[22] Coffin [54].

For the application in 2014, the respondent was examined by two consultant psychiatrists, Dr Wojnarowska and Dr Febbo.
Dr Wojnarowska diagnosed the respondent with having the clinical disorder of 'paedophilia of a non-exclusive type, though … attracted predominantly to female children'.[23] The respondent admitted that he was still attracted to young girls. Dr Wojnarowska also noted the existence of an antisocial personality disorder. Using actuarial instruments and structured clinical guides, her assessment was that the respondent was at high risk of sexual reoffending if not detained. Factors that contributed to that conclusion were the respondent's high sex drive, his deviant sexual interest in children, his untested coping skills, the high likelihood of him resorting to alcohol, unresolved issues from his childhood and no developed realistic relapse prevention plan. Dr Wojnarowska was of the opinion that the respondent was likely to offend in a manner similar to his previous offending. The context would include the use of alcohol and cannabis. Although the risk would not be immediate, it could be realised notwithstanding very strict supervision and an immediate response to any breaches of a supervision order. Because of the respondent's high sex drive, consideration was given to anti-libidinal medical treatment, but he was assessed to be unsuitable because of health issues.
[23] Coffin [63].
Consistently with Dr Wojnarowska, Dr Febbo diagnosed the respondent with the 'clinical disorder of paraphilia not otherwise specified, paedophilia and … having paranoid and borderline personality traits'.[24] Dr Febbo also used actuarial instruments and structured clinical guides to arrive at his assessment that the respondent was at high risk of further sexual offending if he was not subject to a detention or supervision order. Further, Dr Febbo was of the view that additional preparation was required before the respondent's risk of reoffending could be adequately managed in a community setting.[25] Dr Febbo considered that the respondent had problems with supervision in the past.[26]
[24] Coffin [75].
[25] Coffin [81].
[26] Coffin [77].
Hall J was satisfied on the basis of the psychiatric evidence that the respondent's treatment needs at the time of determining the application were such that there were no conditions that could be imposed on a supervision order that would reduce the risk of reoffending to an acceptable level. In particular, his Honour noted that the fact the respondent's offending had occurred impulsively, which was a reflection of his personality type, meant that it was more difficult to guard against the risk unless the respondent's ability to address the risk factors was enhanced. His Honour considered that that was unlikely to be achieved without, at the very least, extensive individual counselling.[27] His Honour said:[28]
One of the critical factors in reducing risk is to ensure that the respondent's appreciation of risk factors and ability to self-manage them can be confidently relied upon. His unmet treatment needs mean that at this point it is not possible to have such confidence. Having said that, the respondent's positive attitude to treatment means that there are very good prospects of him reaching a point in the future where the risk could be managed effectively in the community.

The first annual review - 2015

[27] Coffin [92] ‑ [93].

[28] Coffin [106].

For the first annual review, the respondent was examined again by Dr Febbo. The respondent had been having counselling with a clinical psychologist, Ms Chantelle Place, during the previous 12 months and had completed a Pathways Programme to address alcohol and substance abuse. The respondent said things to Dr Febbo to indicate that he had an increasing awareness of the link between his offending and alcohol abuse. He reported to Dr Febbo that he continued to have sexual fantasies relating to underage girls, but claimed that 80% of his fantasies related to adult women, which he said was an improvement on the ratio prior to counselling.[29] As a result of his consultation with the respondent and from information obtained from Ms Place, the respondent's treating psychologist from the Forensic Psychological Services (FPS) of the Department of Corrective Services (DCS), Dr Febbo was impressed by the improvement the respondent demonstrated in his awareness and understanding of the factors that related to his sexual offending, including sexual deviant fantasies, relationship difficulties and alcohol abuse. Dr Febbo thought it was difficult to say whether the positive changes were long-term changes, but he thought they would persist in the medium to long term.
[29] Coffin [No 2] [15] ‑ [17].
There were two areas that remained of particular concern in Dr Febbo's opinion, namely the respondent's continuing sexually deviant fantasies, and his continuing inappropriate beliefs regarding the age of consent and the ability of an intoxicated woman to provide consent. The respondent's 'pathway' to sexual offending was said to be 'strongly through deviant fantasies and urges, the disinhibition caused by alcohol abuse and his impulsivity', but a propensity to violence could not be discounted as a cause of the respondent's serious sexual offending.[30]
[30] Coffin [No 2] [34].
Although Dr Febbo believed that the respondent's risk of committing a serious sexual offence had decreased, he was still of the opinion that the respondent remained at high risk of sexual reoffending if he was not subject to a continuing detention order or a supervision order. He considered that a supervision order could be crafted that would further decrease the respondent's level of risk and would potentially 'work' in the community.[31] Dr Febbo noted that, over the previous 12 months, the respondent had been taught strategies to deal with his impulsivity. He believed that the strategies made the respondent manageable in the community.
[31] Coffin [No 2] [31].
I note that Dr Febbo appears to have been impressed with the respondent's honesty when he spoke with him, and he believed his honesty was a good thing which would help with the respondent's management in the future.[32]
[32] Coffin [No 2] [37].
Jenkins J also took into account the evidence of Ms Vanessa Rankin, a senior clinical psychologist with the FPS, who interviewed the respondent for the annual review, but also relied on information from Ms Place.
Some of the sessions Ms Place had conducted with the respondent addressed violence and anger management. During the period of his detention the respondent had been convicted of a number of assaults on other prisoners within the prison. I note that he had also been the victim of assaults. Further, other information before Jenkins J indicated that, while the respondent engaged well with other prisoners initially, he became involved in altercations with others when knowledge of his offending became known.[33]
[33] Coffin [No 2] [75], referring to the evidence of Ms Jane Henshall, Senior Community Corrections Officer at DCS.
Ms Place had noted that, while the respondent was able to reflect on why he behaved violently, he continued to justify his use of violence.
As to the respondent's sexual deviancy, Ms Place had said that he still maintained the opinion that children were capable of an adult‑like understanding of sex, and he viewed them to be sexual beings from the age of approximately 13 years.[34]
[34] Coffin [No 2] [48].
In terms of factors that would be relevant to his management on a supervision order, Ms Place had expressed the view that the respondent appeared to be overconfident in his ability to avoid relapsing into substance misuse. She also noted that the respondent had the potential to react aggressively if he perceived his behaviour was being overly restricted by police or elders within his community, and that he would likely be sensitive to perceived scrutiny by those responsible for managing him on a supervision order.[35]
[35] Coffin [No 2] [50].
Ms Rankin had concluded that, while it appeared the respondent had made good progress in working with Ms Place on agreed treatment goals, additional work was still required in relation to substance misuse, the respondent's propensity for violence and his continuing deviant interest in young girls, in order for him 'to maximise [his] chances of successfully navigating any future release to the community'.[36]
[36] Coffin [No 2] [55].
Ms Rankin had also expressed concerns about the respondent's manageability on a community supervision order, because of his past history of reacting with violence or threatened violence when he felt that the authorities, in particular the police, were being intrusive.[37] The assaults he had committed in prison over the previous 12 months illustrated an ongoing level of impulsivity. Ms Rankin was of the view that the respondent was good in hindsight in examining the thoughts, emotions and patterns which led to him offending, but he was not able to do that prior to the offending event.[38] Although the respondent was strongly motivated to comply with the conditions of a supervision order, Ms Rankin was concerned that his motivation may decline over time. The respondent had told Ms Rankin that there was an element of excitement in being able to do something and not be caught for doing it, and Ms Rankin was concerned that, in the longer term, this thought pattern might predominate over his motivation not to return to prison.[39]
[37] Coffin [No 2] [59].
[38] Coffin [No 2] [61].
[39] Coffin [No 2] [63].
The respondent had been tested twice for substances in the period between the decision of Hall J and the first annual review. The tests had returned negative results for alcohol and other substances.
Jenkins J reached the following conclusions:[40]
Given the time the respondent has had to mature and change during the last 13 years in prison, Dr Febbo's evidence and the positive effect of psychological treatment from Ms Place over the last 12 months, there are reasons to feel optimistic about the respondent's ability to live offence-free in the community. However, as Hall J noted, 'whilst the respondent's willingness to attend and engage with programmes cannot be faulted, there are reasons to doubt whether those programmes have achieved long term, significant and sustainable change'. This is particularly so given the respondent's continuing sexual interest in children. Further, given the comment in the Pathways completion report about more work needing to be done in respect of the respondent's impulsivity, which is confirmed by his history of committing multiple physical assaults since he was declared a DSO, there are also reasons for me to doubt that the respondent is able, when under stress, to implement the strategies which he has learned to avoid offending of any type. Despite the gains which have been made over the past 12 months, I am of the opinion that if the respondent was living in the community there would be a significant risk that he would commit serious sexual offences against an older child or children. Any such offence would likely be committed when the respondent was under stress and had been consuming alcohol or other substances.
[40] Coffin [No 2] [117].
As to the assaults committed by the respondent while in prison, Dr Febbo had expressed the view that the violence may be as a result of frustration and stress on the respondent's part and that those emotions may become worse if the respondent was not released.[41] Jenkins J reached the following view about those matters:[42]
Although Dr Febbo does not place great weight on the assaults which the respondent has committed over the past 12 months, I do not think that they can be readily discounted. The fact that the respondent retains the propensity to resort to violence when he becomes stressed and frustrated does not give me confidence that he will be able to comply with the strict provisions of a supervision order, which are very likely to cause him stress and frustration.
[41] Coffin [No 2] [35].
[42] Coffin [No 2] [118].
Although the assaults involved an inability to manage his non‑sexual violent impulses, Jenkins J considered (appropriately, in my respectful opinion) that they were relevant to the respondent's suitability for release on a supervision order:[43]
The fact that he has this maladaptive response to stress causes me to doubt whether he will be able to consistently implement the strategies he has learned to avoid serious sexual offending. Before he is released from prison the respondent needs to show that he can manage his impulsivity and remain offence-free in the prison environment.
[43] Coffin [No 2] [119].
The respondent's sexual urges were regarded as a significant risk factor. As anti‑libidinal medication was not considered appropriate because of his health issues, Dr Febbo had recommended the use of a selective serotonin reuptake inhibitor (SSRI), which, although not as effective, was an alternative treatment which may reduce the respondent's deviant sexual urges.[44] Dr Febbo had also suggested that the use of pharmacological strategies, such as Antabuse, should be considered, if not contraindicated by his physical condition, to address the possibility of the respondent resorting again to alcohol abuse.[45] Jenkins J was of the opinion that the respondent should commence an SSRI course before release and should be assessed for his suitability to undergo Antabuse therapy.[46]
[44] Coffin [No 2] [23] ‑ [24].
[45] Coffin [No 2] [23].
[46] Coffin [No 2] [120] ‑ [121], [130] ‑ [131].
Although there were deficiencies in the proposed accommodation for the purposes of a supervision order, it is clear from Jenkins J's reasons that her Honour considered the other factors I have outlined to be determinative in deciding a supervision order would not provide adequate protection of the community. Her Honour recognised that, if the respondent was subject to further continuing detention, some of the gains he had made may be lost, but she had factored that into her consideration of the need to ensure adequate protection of the community, and she was of the view that there were still positive gains that the respondent could make over the next 12 months that would enhance his chances of being released in the future, and that prospect outweighed the possibility of him regressing.[47]
[47] Coffin [No 2] [124].
Her Honour identified the respondent's control of his impulsivity as a significant factor he needed to address, and made it clear what he needed to do to enhance his chances of release on a supervision order at the next annual review:[48]
The respondent should make it his goal not to commit a prison offence before the next review as this will support a view that he has learned to control his impulsivity and is able to implement strategies to prevent offending, both in custody and in the community.
[48] Coffin [No 2] [127].
Her Honour also identified the things that needed to be done by those who have responsibility for managing the respondent in detention. These included: ascertaining whether there is a programme to address the respondent's impulsivity and further addressed issues which are related to it; continued psychological intervention, even if at a reduced frequency; assessment for SSRI and Antabuse treatment; continued assistance to the respondent to help him lose weight and to exercise; and a temporary transfer to another prison to enable the respondent to have more contact with his family.[49]
[49] Coffin [No 2] [128] ‑ [133].

The evidence on this review

For the purposes of the present review, the applicant tendered a book of materials (exhibit 1) consisting of:
1.DCS charge histories and incident report histories for the respondent for the period from 18 October 2015 to 8 November 2016, including specific reports for 13 October 2016 (Casuarina Prison), 7 June 2016 (Roebourne Regional Prison) and 24 August 2016 (Roebourne Regional Prison);
2.a DCS Individual Management Plan for the respondent;
3.a Health Encounters Report for the respondent for the period from 4 October 2015 to 25 October 2016;
4.a treatment progress report dated 26 October 2016 from Mr David Summerton, counselling psychologist;
5.a DCS Community Supervision Assessment Report dated 9 November 2016 from Ms Jane Henshall, Senior Community Supervision Officer (SCSO); and
6.a psychiatric report dated 10 November 2016 from Dr Gosia Wojnarowska.
At various stages during the proceedings the following materials were tendered by the applicant, except for exhibit 3, which was tendered on behalf of the respondent:
1.an updated DCS Community Supervision Assessment Report dated 13 January 2017 from Ms Henshall (exhibit 2);
2.substance abuse test results for the respondent for tests conducted from 4 December 2015 to 7 November 2016 (exhibit 3);
3.a further updated DCS Community Supervision Assessment Report dated 16 February 2017 from Ms Henshall (exhibit 4); and
5.a Desktop Analysis dated 31 January 2017, prepared by WA Police in respect of the suitability of accommodation that was proposed for the respondent for the purposes of a supervision order (exhibit 5).
Dr Wojnarowska, Mr Summerton and Ms Henshall gave evidence at the hearing on 18 January 2017. Ms Henshall gave further evidence, speaking to her updated reports, on 22 February 2017. As I will explain when dealing with the respondent's behaviour in custody, a further hearing was conducted on 24 March 2017, at which evidence was given by a prison officer called by the applicant and by the respondent and two other witnesses called on his behalf.

Developments since the 2015 annual review

Overview

After the annual review in 2015, the respondent continued to engage in individual psychological counselling with Ms Place on a fortnightly basis until he was transferred to Roebourne Regional Prison on 12 May 2016. He re‑engaged in counselling with Ms Place when he was returned to Casuarina Prison on 2 September 2016, and it appears his return to that prison in the Perth metropolitan area was for that purpose, leading up to the present annual review.
Counselling was aimed, in part, at reviewing previously established treatment goals, including the respondent's offending cycle, substance use (as relevant to his offending), violent offending and relationships. There was also some focus on impulsivity and a sustained consideration of issues concerning the respondent's sexual functioning, including deviant sexual fantasy, sexual preoccupation and his use of sex as a means of coping.[50] As will appear in the sections which follow, the respondent was considered to have retained the understanding he had gained in previous years concerning factors relevant to his risk of serious sexual offending, and in some respects he may be considered to have made progress. However, concerns remain in respect of his deviant sexual interest in female children and his attitude to cannabis use. Further, he failed to achieve the goal of not committing a prison offence, which Jenkins J had considered to be an important step for him to take to demonstrate his capacity to control his impulsivity and implement strategies to prevent offending.
[50] Exhibit 1, page 133 (Mr Summerton's report [9]).
The respondent was transferred to the Roebourne Regional Prison so he could engage with family members and peers and develop those relationships, while also exploring potential accommodation options in that region. Unfortunately, rather than make the most of an opportunity to build foundations for support within the community upon his release, the respondent engaged in drug use while in Roebourne in circumstances that, in my opinion, cast significant doubt on his ability to abstain if he were released into the community on a supervision order. Of course, it is necessary to consider his conduct in the broader perspective.

In the period between the last annual review and the present review, the respondent provided 11 samples for urinalysis testing and was breathalysed on one occasion. All of the samples returned negative results, except for the sample taken on 24 August 2016, while the respondent was at Roebourne Regional Prison. That sample tested positive for cannabis metabolites, which indicate cannabis use. Ms Henshall's report of 9 November 2016 also notes that the sample of 24 August 2016 was considered to be dilute, and was the only dilute sample provided during the 'review cycle'. As Ms Henshall points out, a dilute sample may reduce the probability of any substances being detected. It can be indicative of an attempt to conceal the use of drugs, for instance by the consumption of excessive amounts of fluids.
As a consequence of the positive drug test result, the respondent received a loss of privileges for 90 days in relation to non‑contact visits.
On 13 October 2016, when the respondent was back in Casuarina Prison, he refused to provide a sample for urinalysis testing. Again he received a loss of privileges, this time in relation to contact visits, and he was charged with a prison offence of not submitting a body sample.
The respondent subsequently underwent a further urinalysis test on 13 January 2017. The result of that sample was negative.
Looked at in the broader perspective, the single positive result in August 2016 might be regarded as an aberration that should not reflect adversely on the respondent's prospects of complying with the conditions of a supervision order that would include a complete prohibition on his use of illicit substances, as well as alcohol. However, from the respondent's own admission (and his honesty in this regard is to his credit), he used cannabis on more than one occasion while he was in Roebourne. Further, he was aware that cannabis is considered a significant risk factor for him, and he was aware of the comments made by Jenkins J at the last annual review concerning the behaviour expected of him if he is to be released into the community, yet he was prepared to flout those concerns and expectations by the use of drugs at a time that was approaching the present annual review.
The respondent's explanations for using cannabis while at Roebourne Regional Prison varied, but the common theme was that he smoked the cannabis with his son, who was a sentenced prisoner in Roebourne Regional Prison at the time, as he saw it as a way of bonding with him. He told Ms Henshall that he got 'carried away' whilst smoking cannabis with his son. He also admitted smoking cannabis on other occasions (which I take to be a reference to his time in Roebourne) which were not detected during the testing. He claimed that he would use cannabis prior to playing basketball for motivation, but then said he was using the drug as a way of bonding with his son, as I have mentioned. He told Dr Wojnarowska that he smoked cannabis with his son in order to settle him down and help him adjust to prison, as well as to bond with him.
The respondent did not indicate to any of the professionals who interviewed him that he was under stress at the time that he used the drug.
In relation to his refusal to submit a sample for urinalysis testing on 13 October 2016, the respondent told Ms Place that he refused because he felt the 'prison prosecutor' was 'out to get [him]', and claimed that if the request had come from his SCCO or psychologist, he would not have minded. I note that the respondent also told Mr Summerton that he had made a complaint about being singled out regularly for drug testing, and that he had refused a drug test because '[his] name was always on the top of the list'.[51] The respondent's attitude, in particular the perception that he was being persecuted, brings into question his ability to cope with the close monitoring of his conduct by police in the Sex Offender Management Squad that would occur under a supervision order. Specifically, it brings into question his preparedness to comply with requirements that he submit for drug testing. I will discuss later whether his conduct in custody in this regard can be regarded as predictive of the attitude he may have in the community under a supervision order.
[51] Exhibit 1, page 138 (Mr Summerton's report [30]).
In terms of the respondent's medical history, the records show that he continued to be treated regularly for his diabetes. While there has been a plan in place to assist him with weight loss, and there are entries in the medical records concerning advice he was given about exercise and snacking, he has not made progress in relation to his obesity. An entry on 2 September 2016 states that the respondent had been 'non‑compliant with most diet and lifestyle choices', although for the most part his diabetes had remained stable.[52] While these health issues are not directly related to his risk of committing serious sexual offences, they were of concern to Jenkins J in the first annual review, in particular because she considered that it did not appear DCS health services had done much to assist the respondent to avoid the risk to his health from obesity. That issue is linked to the respondent's diabetes, which is an obstacle to anti‑libidinal treatment. In any event, to the extent to which those issues might be regarded as relevant to the appropriateness of continuing detention, it appears to me that DCS health services have made suitable efforts to assist the respondent with weight loss since the first annual review. The lack of progress appears to be due to the respondent's failure to implement adequately or at all the diet plan and advice he has been given.
[52] Exhibit 1, page 30.
After asking for literature about SSRI treatment and discussing the risks and side effects with his treating doctor, the respondent commenced SSRI treatment (Sertraline) from 19 April 2016.
Consideration was given to Antabuse treatment, as suggested by Jenkins J, but it appears to have been determined to be unsuitable because it was doubtful that the benefit of such treatment would outweigh the risk to his health from potential side‑effects.[53] Dr Wojnarowska confirmed in these proceedings that Antabuse medication is not suitable for the respondent. She noted that the very severe side effects when it is used concomitantly with alcohol can include cardiovascular complications. It can be fatal.
[53] Exhibit 1, page 83.
Returning to behavioural issues, I note that, while the respondent was in Roebourne Regional Prison, a medical note from a clinical nurse on 11 June 2016 recorded that he presented that day as very aggressive verbally and dismissive. She commented that such behaviour from the respondent was becoming more common in the medical centre, and that, if he continued the 'abusive behaviour', he may not be able to be managed in Roebourne.[54] There is no entry after that to suggest such behaviour continued. However, when considered with other aspects of the respondent's behaviour in custody, it does raise further concerns about his ability to cope under a strict supervision regime in the community.
[54] Exhibit 1, page 59.
In terms of employment during the period in between reviews, Ms Henshall reported that almost immediately after his transfer to Roebourne Regional Prison, the respondent was employed in the role of a carer to a vulnerable prisoner, but he lost the position after two days because he was failing to attend to his duties. It appears the respondent later claimed that he was not aware he had lost his position, and that he considered he was continuing to work as a peer support worker and carer for some of his nephews. In any event, there is no other evidence concerning the respondent's employment while in detention that enables me to make any assessment of his capacity to be usefully occupied if released into the community.

Response to treatment

Dr Wojnarowska, relying substantially on her interview with the respondent, formed the impression that the respondent had engaged well with Ms Place during the period since the first annual review. He talked about gains, but he also maintained a degree of self-awareness about his shortcomings. Dr Wojnarowska was of the view that he was able to identify quite well the risk factors that could lead to his reoffending. He was able to identify that substance use and his interest in female children were among such risk factors. However, he did not use the word 'children'; he referred to them as 'young women'. He spoke about being part of a culture in which young men bragged about sexual interactions with 'young women'. He told Dr Wojnarowska that he understands that is wrong.
In relation to the SSRI treatment, the respondent told Dr Wojnarowska that it had decreased his libido and his urge to have sexual fantasies. However, he admitted that he continued to experience sexual fantasies about young girls.
Dr Wojnarowska considered that the respondent's understanding of his offending had improved since she interviewed him in 2014, because he now recognised that his fantasies about girls were deviant. In her report, Dr Wojnarowska said that the respondent now sees his 'DSO status' as something that has helped him, rather than as punishment, saying it has 'lifted him up' and enabled him to focus on his future, whereas previously he had too much money and smoked too much cannabis.[55]
[55]Exhibit 1, page 163 (Dr Wojnarowska's report [9.3]).
As I will discuss later, Dr Wojnarowska formed the view that the respondent was highly motivated to comply with the conditions of a supervision order. The motivation stemmed mainly from his desire to be at liberty. Dr Wojnarowska was of the opinion that, in light of the respondent's achievements in self‑awareness, which she considered to be significant, his reduced sexual drive as a result of the SSRI treatment, his preparedness to engage in counselling, and his motivation to comply, his risk of committing a serious sexual offence could be managed in the community under a supervision order. However, that would be subject to strict supervision and monitoring, including regular urinalysis testing and ongoing counselling to reinforce the treatment gains.
Mr Summerton, in his report and oral evidence, referred to Ms Place's assessment of the respondent's progress in treatment, as well as providing his (Mr Summerton's) own assessment.
Ms Place concluded, overall, that the respondent had maintained treatment gains described in the 2015 annual review, and she was of the view that there was evidence of potential progress regarding his problem with sexual preoccupation and high sexual drive. However, she was also of the view that certain treatment targets pertaining to general self‑regulation have proved relatively resistant to change. In particular, Ms Place reported that, while there had been some focus on impulsivity as a treatment target, the respondent did not believe that he had a problem with impulse control. In my opinion, that is a matter of concern, as it suggests the respondent would have little motivation to learn and implement coping strategies in relation to his impulsivity. Ms Place considered that the respondent's coping strategies in relation to impulse control were limited and unrealistic.
Mr Summerton's own assessment was also that the respondent appears to have maintained previously identified treatment gains with respect to his insight into the broad factors that led to his sexual offending. However, he noted that the respondent has had a reasonable awareness of such factors since the time of his first involvement in treatment in 1998, yet any early insight did not translate into behavioural change and he reoffended on a number of occasions prior to his return to prison in 2002. The point of highlighting this, according to Mr Summerton, is that insight is likely to have relatively limited value if factors such as substance use and high levels of deviant sexual arousal remain unchecked. Further, apart from the assessment by Ms Place that the respondent's coping strategies are limited and unrealistic, to the extent that he has learnt coping strategies from counselling for the purpose of regulating his behaviour more broadly, Mr Summerton questioned whether the respondent 'will choose to utilise [those] strategies as appropriate, given his failure to do so thus far in the prison environment where there is a reasonably high level of monitoring of his behaviour'.[56]
[56] Exhibit 1, page 140 (Mr Summerton's report [35]).
Mr Summerton considered that the respondent described 'adequate coping responses designed to either escape or avoid situations that might bring him into contact with female children'.[57] Obviously, his capacity to put them into practice is untested. More to the point, it seems to me, his past offending has not involved him being in situations that might bring him into contact with children; rather, he had sought out the children for his sexual gratification. It seems to me that his principal strategy must be to avoid being in a situation in which he is disinhibited by intoxication and at risk of pursuing his sexually deviant urges, when sober strategies for avoiding children may have little impact on his behaviour.
[57] Exhibit 1, page 140 (Mr Summerton's report [35]).
Mr Summerton noted that the respondent's deviant sexual arousal has remained an enduring target for intervention. Similarly to what he told Dr Wojnarowska, the respondent informed Mr Summerton that he had reduced sexual arousal and associated deviant content, which he attributed to the SSRI medication. However, Mr Summerton thought that, presuming one can take at face value the respondent's self‑report about those matters, there is some question as to how such a regimen might be monitored in a community setting. In that regard, I note that Dr Wojnarowska said the levels of Sertraline can be monitored by testing.

Insight into his sexual offending

In his interview with Mr Summerton, the respondent identified alcohol and cannabis as significant factors in his offending, implying they impaired his judgment and allowed him to act on his sexual interest in children. He also suggested that sexual jealousy stemming from his relationship at the time had been a factor. Mr Summerton does not say whether the respondent referred to any particular time, given that his offending occurred at different times over a number of years. In any event, according to Mr Summerton, the respondent said he was disgusted 'thinking about his various justifications for his offending'.[58]
[58] Exhibit 1, page 137 (Mr Summerton's report [25]).
According to Ms Place, the respondent had denied the presence of deviant fantasies concerning children earlier in the year, but he subsequently acknowledged occasional thoughts, usually prompted by images from television. The respondent told Mr Summerton that he had used his remote control to freeze images on television of girls in the age range of 14 to 17 years, saying 'it's all about body parts and innocence of where it's going to lead to'.[59]
[59] Exhibit 1, page 137 (Mr Summerton's report [26]).
The respondent told Mr Summerton that sexual fantasy and masturbation had been a habitual behaviour over the course of his time in prison. He stated that his heightened sexual drive was related to 'being without a woman', and feelings of boredom and loneliness associated with being away from 'his country'. However, while admitting that he had continued to engage in deviant masturbatory fantasy over the course of his 'most recent prison sentence', he claimed that he had ceased to do so since commencing counselling with Ms Place.[60]
[60] Exhibit 1, page 137 (Mr Summerton's report [26]).
The respondent told Mr Summerton that female prison staff, including officers and nurses, had also formed part of his ongoing sexual interest. He had discussed that matter with Ms Place. She reported that the respondent's focus on female staff had been addressed as problematic, particularly as some of the respondent's behaviour had been regarded by her as being predatory. She considered that his sexual interest in particular female staff members was underpinned by a range of cognitive distortions to the effect that they flirted with him, were promiscuous or intentionally presented themselves so as to attract sexual attention from prisoners. Ms Place had observed that the respondent had been relatively resistant to modification of those beliefs, although she had added that the respondent was aware that his approach involved sexual objectification of the women and that this might not be appropriate. Ms Place had endeavoured to have the respondent implement a 'reconditioning strategy' to assist him to change the inappropriate focus of his sexual fantasies. She reported that he was ultimately unwilling to utilise the technique to shift his thoughts in sexual behaviour with respect to female staff.
Dr Wojnarowska's opinion on this issue was not entirely clear. It seemed to me that initially she did not place significant weight on the information about the respondent's beliefs and behaviour concerning female prison staff, because there had been no formal complaints from such staff. She placed some weight on the respondent's claim to her that he knew how far he could go before he was perceived to be socially inappropriate, so he was able to place boundaries on his fantasies.[61] She acknowledged that the respondent appeared to have provided different information to her than he had provided to Ms Place, but noted that the respondent had said this was an area he was willing to work on.
[61] ts 314.
When it was pointed out to Dr Wojnarowska that the real issue was the respondent's cognitive distortions that female staff members flirted with him, were promiscuous and intentionally sought to attract sexual attention from prisoners, she agreed that the cognitive distortions were very much present and it was an area in which he required further treatment. Although she considered he did not have much insight into this particular cognitive distortion, Dr Wojnarowska thought that his beliefs were very much a matter of how the respondent perceived himself - as desirable to women - rather than a belief that women generally behave in that way. However, some of the matters reported by Ms Place to Mr Summerton suggested the respondent was expressing a more general belief about the promiscuity of the female officers. That is apparent from the following passage in Mr Summerton's report, which puts the issue in context:[62]
Questions have previously been raised about Mr Coffin's appreciation of consent issues. In the current instance, he impressed as having a reasonable understanding of consent as applicable to his sexual interest in children. However, there is some indication that he has difficulty accurately interpreting cues from women. In the prison context this has manifested in his beliefs that female prison staff flirt with him and more broadly invite sexual attention from prisoners. He has also expressed beliefs that certain officers are promiscuous and these beliefs have been relatively impervious to any alternative understanding. If he misinterprets cues from women within the custodial setting then it is equally possible that this might be a factor in his interactions with women when he is released to the community.
[62] Exhibit 1 page 140 (Mr Summerton's report [36]).
In relation to the assessment that the respondent's beliefs had been impervious to any alternative understanding, in that he had been unwilling to implement the technique suggested by Ms Place to shift his thoughts, Dr Wojnarowska said that it would be concerning if the respondent had actually said he was unwilling to do it, but she would need to know more precisely what was said and the context. In my opinion, it was clear enough from Mr Summerton's report and his evidence (which followed Dr Wojnarowska's evidence) that, in saying the respondent was unwilling to implement the techniques, that is precisely what Ms Place meant. Whether the respondent said it specifically or indicated it less directly does not matter, it seems to me.

It was submitted on behalf of the respondent, relying on evidence given by Mr Summerton, that little weight should be placed on 'the respondent and the psychologist disagreeing about modification (reconditioning) techniques'.[63] Mr Summerton's evidence was that it is not uncommon for there to be issues of contention between a counsellor and the client, and you would not want the client to 'entirely acquiesce to advice', as ultimately counselling is about the client coming to behavioural regulation of their own accord.[64] It was in that context that Mr Summerton said that he 'wouldn't place so much issue on the fact that there is a disagreement in that context'.[65] However, the full context was that, according to Ms Place, the respondent had been 'relatively resistant' to modification of his beliefs about the female staff. In circumstances in which cognitive distortions are at the core of the respondent's sexual deviancy, it seems to me that the respondent's unwillingness to adopt a strategy proposed by his psychologist cannot simply be dismissed as a disagreement on which little weight should be placed. His alternative strategy appears to have been 'knowing how far he could go', which could hardly be relied upon if the respondent were intoxicated within the community.
[63] Respondent's closing submissions, 23 May 2017 [20(d)], relying on Mr Summerton's evidence (ts 361).
[64] ts 361.
[65] ts 361.
In cross‑examination, Dr Wojnarowska agreed that the fact the respondent had indicated to Ms Place that his approach involved sexual objectification of the women, and might not be appropriate, was a step towards addressing the cognitive distortions that had been identified. However, I consider it significant that he had not been prepared to take the specific step of implementing a technique that Ms Place had provided. While the respondent has undoubtedly demonstrated an intellectual understanding of the problem, his preparedness to implement strategies is less certain. It is true, as was pointed out by his counsel, that there is no evidence to suggest he acted on his fantasies concerning the female prison staff (other than incorporating them into his masturbatory fantasies), although he did admit following and watching them. Of course, his exercise of restraint was in the context of a restrictive environment in which the objects of his fantasies have authority over him. Whether that would be translated into the community is another matter. What is of significance, as Mr Summerton pointed out in his report, is the misinterpretation of cues from women.
I am mindful that the respondent's sexual offending has been mainly in relation to adolescent girls, stemming from his sexual deviancy. However, there are reasons to be concerned that his misinterpretation of cues may occur in relation to children, as much as they have in relation to female staff in the prison system.

Beliefs in respect of sexual relations with children

Mr Summerton reported the following things said by the respondent in respect of his cognitive distortions concerning the sexuality of children:[66]
He said that he had been drawn to children due to his perception of himself as the 'experienced partner in the relationship' adding that he had considered himself to be playing a teaching role in sexual interactions with them. He further explained that his sexual interest in girls had been a function of gaining 'bragging rights' with friends; he implied that adult sexual activity with children was not uncommon within his community milieu, as exemplified in the following comments, 'It's a bit of a rat race; men do young women. You hear different stories [about girls], sorts of stories that interest you'. He identified as relevant to his sexual offending, conversations with his peers that centred on girls' sexual development and their perceived readiness to engage in sexual behaviour.
[66] Exhibit 1, page 136 (Mr Summerton's report [22]).
In terms of cognitive distortions relevant to his offending:[67]
Mr Coffin indicated that he had considered himself a 'Casanova' and to be good looking, such that he believed victims had sought him out. In an attempt to assess his understanding of previous sexualisation of children as a possible factor in their engagement with adults, he was asked why girls might appear to seek out sexual contact with him or other adult men. He responded that as a consequence of tribal obligations an underage girl might have been promised to him; however, he stated that such practice was no longer common and implied that he considered it to be inappropriate. (emphasis added)
[67] Exhibit 1, page 136 (Mr Summerton's report [23]).
A difficulty that is immediately apparent in the respondent's account is a gross distortion of the circumstances in which he offended. Far from the respondent being sought out, the offending in 1990 involved the respondent using force to impose himself on his victim (albeit at a time when he was still a juvenile), and the offences from 2000 to 2002 involved him seeking sexual gratification by indecently dealing with children who were sleeping. Further, there was no suggestion in any of the facts of the sexual offences that any girl had been promised to him, putting aside the moral turpitude attaching to such an explanation.
I take into account that the respondent told Mr Summerton he was disgusted 'thinking about his various justifications for his offending'.[68] In a similar vein, Dr Wojnarowska noted in her report that the respondent has been able to 'verbalise the feelings of shame associated with his offending', quoting him as saying: 'It was horrific, against moral standards, you should look after your children, not treat them like sex objects'.[69] However, the persistence in the respondent's cognitive distortions about his past behaviour, notwithstanding his claims that he now appreciates the inappropriateness of that behaviour and his previous thinking, makes it difficult to assess the extent of his progress.
[68] Exhibit 1, page 137 (Mr Summerton's report [25]).
[69] Exhibit 1, page 163 (Dr Wojnarowska's report [9.2]).
Nevertheless, the respondent was able to give adequate explanations for what is informed consent and why children do not have the capacity to consent to sexual activity, including the fact that they may not be sufficiently developed to know the difference between right and wrong. He also indicated some awareness of the power differential between adults and children, which (although not specifically referred to in context) was an obvious issue in his sexual relationship with the babysitter in 1995 and 1996.

Sexual drive

The respondent's sexual urges and preoccupation with sex have previously been regarded as significant risk factors. Dr Wojnarowska was of the opinion that she could rely on the respondent's claim that his sexual urges had reduced since being on the SSRI treatment, as he had previously been frank about the high level of his sexual drive, even though such an admission was detrimental to his prospects of release. In her opinion, the reduction in the respondent's sexual drive as a result of the SSRI treatment is one of the most important achievements since the first annual review, both in terms of reducing the level of his risk and improving the ability to manage the risk.[70] She said it is possible to test for Sertraline levels, so the respondent's compliance with the treatment could be monitored in the community, and Dr Wojnarowska can provide information to DCS to assist those responsible for the respondent's supervision to select when and how frequently he should be tested.
[70] ts 330.
Dr Wojnarowska agreed that there is nothing more that can be achieved in terms of reducing the respondent's sexual drive, because anti-libidinal treatment is not appropriate in his case for medical reasons.
While it may be that the respondent's sexual drive has been reduced, it is clear that he still has a sexual drive, and that he has continued to have sexually deviant thoughts about adolescent girls. Importantly, Dr Wojnarowska is still of the opinion that the respondent poses a high risk of committing a serious sexual offence if not subject to detention or supervision.

Substance misuse

Although the respondent's offending has been linked most closely to alcohol abuse, his use of cannabis has also been identified as a factor that puts him at risk of future sexual offending.[71] It can do so in at least two respects. As Dr Wojnarowska noted, cannabis and alcohol tend to be associated in social settings, so that if the respondent was using cannabis in the community, he would likely also be using alcohol. Further, cannabis use could lead to a loss of inhibitions and impaired judgment.
[71] The respondent's closing submissions, 23 May 2017 [13], submits otherwise, but the submission is not supported by the evidence of Dr Wojnarowska.
The respondent submits that his risk scenario is 'formulated in terms of disinhibition in the context of contact with children arising out of a family relationship or friendship, not disinhibition generally'.[72] The submission appears to be that, absent the family relationship or friendship, disinhibition from cannabis use would not be a relevant risk factor. There is a difficulty with the proposition, in that, putting aside the first offence, which was on a stranger but may be regarded as not typical of the respondent's sexual offending, there is no material in this hearing that indicates to what extent, if at all, the respondent was acquainted with the victims of his offending on the last occasion when he broke into one home and entered another uninvited. It is apparent from the facts that he was known to the adults in the home, but his entry into the homes to commit the sexual offences did not involve exploitation of the friendship. There was no grooming involved. What enabled the offending was his awareness that the children were in the houses. While I accept that circumstances would need to arise in which the respondent has become acquainted with a family, so as to be aware of the fact there are children in a place, that does not, in my view, diminish the significance of the respondent's cannabis use as a risk factor, having regard to Dr Wojnarowska's evidence.
[72] Respondent's closing submissions, 23 May 2017 [14].
The respondent submitted that I should not regard the respondent's drug use in custody as a factor militating against the adequacy of a supervision order to provide adequate protection of the community.
Dr Wojnarowska was of the view that the respondent's use of cannabis after the last annual review was 'very much in keeping with his antisocial stance and his antisocial traits that are quite well entrenched'.[73] They reflect 'oppositional attitudes towards authority'.[74] Dr Wojnarowska said that she did not believe the respondent was physiologically dependent on either cannabis or alcohol, which is the other substance that has been identified as a risk factor for sexual reoffending by the respondent.
[73] ts 308, 18 January 2017.
[74] ts 308, 18 January 2017.
Dr Wojnarowska said that she discussed with the respondent what Jenkins J had said about the respondent's need to remain offence‑free and control his impulsivity. She said the respondent perceived his use of cannabis as a failure on his part, but he sought to identify areas in which he thought he had improved. In my opinion, by diverting attention to his achievements, in that context, the respondent may be regarded as attempting to minimise the significance of his failure to remain entirely abstinent from drug use.
Dr Wojnarowska was of the opinion that one could not rely on the respondent's assertions that he would refrain from using alcohol or drugs if he were released into the community, because of his strong antisocial personality traits, which are associated, also, with impulsivity. However, she thought that the respondent's risk of relapse into alcohol and drug use could be managed by very close supervision in the community involving frequent random urine analysis. She considered that the consequences of a breach of a supervision order would also deter him from relapsing. However, as I will discuss later, Dr Wojnarowska's opinion in this regard appears to rely on a distinction she draws between the effectiveness of deterrence within the community and its effectiveness while the respondent remains in custody. On the face of it, the fact the respondent was not deterred from using cannabis when he was aware of the potential consequences in the context of the annual review (something he regarded as a failure) would not augur well for his compliance on a supervision order. Although Dr Wojnarowska appeared to have some confidence, in her oral testimony, that the respondent's risk of substance abuse could be managed on a supervision order, she appeared to be less confident in her report, where she said in respect of the respondent's problem with substance use:[75]
The relevance of this factor in his future management cannot be overstated: Mr Coffin has a history of cannabis use in prison only recently. Whether he is capable of abstaining from alcohol and cannabis once he is living in the community where he would have more free access to those substances and where he is subject to stressors associated with independent living on [a] daily basis remains questionable.
[75] Exhibit 1, page 168 (Dr Wojnarowska's report [15.3]).
Mr Summerton noted that the respondent identified the combination of cannabis and alcohol use as a risk factor regarding his offending. However, Ms Place reported to Mr Summerton that the respondent was more equivocal with respect to cannabis being a risk factor for sexual offending, noting that he primarily considered cannabis use as a form of relaxation. Ms Place had concluded that despite his insight into the link between substance use and his offending, combined with basic behavioural strategies to manage the risk, the respondent's cannabis use when he was in Roebourne Regional Prison would suggest that his capacity to refuse substances when in the company of his family was questionable.
In my opinion, the position in respect of substance abuse is aptly summarised in Mr Summerton's report, where he notes that, while the respondent has identified the combination of cannabis and alcohol use as a risk factor regarding his offending:[76]
His capacity to abstain from both substances is under question given his reported substantial recent use of cannabis in the relatively restricted custodial environment and during a period when the potential consequences for doing so are clearly significant.

Behaviour in custody

General

[76] Exhibit 1, page 140 (Mr Summerton's report [34]).

I have already referred to the respondent's use of cannabis while in Roebourne Regional Prison, and the prison charge for refusing to provide a urine sample on 13 October 2016. The respondent was also the subject of another incident report on that day (I23596611) in respect of behaviour that posed a threat to the good order and security of the prison, involving standover behaviour, bullying and alleged assaults within a particular prison unit.[77] He was placed under close supervision for 14 days for that behaviour. The incident report noted that the respondent had a 'prolonged history of standover and violence towards vulnerable prisoners'.[78]
[77] Exhibit 1, pages 5 ‑ 6.
[78] Exhibit 1, page 6.
According to Mr Summerton, Ms Place had assessed the respondent as having 'relatively impoverished coping responses' to manage his violence, such that he considered aggression to be an acceptable response to situations that he believed were otherwise unresolvable. In his interview with Mr Summerton, the respondent referred to the allegations that had been made against him about 'stand over' behaviour as 'trumped up allegations', but he made other comments that tended to suggest he may well have engaged in such conduct and regarded it as a normal part of being in prison. To Dr Wojnarowska, he said that the incidents were not reflective of his aggression, but that people are scared of him and he supposes he makes that impression on them. She thought he appeared to be proud of that fact. He said to both Dr Wojnarowska and Mr Summerton that he had previously regarded himself as an 'alpha male'. He told Mr Summerton that he was someone who had a significant capacity for violence, but also said there was a current need for him to exercise restraint over the degree of force that he might exercise.
It is obvious the respondent is aware that his prospects of release may be jeopardised if he exhibits violent behaviour. It was a matter specifically referred to by Jenkins J as a 'maladaptive response to stress' that caused her Honour to doubt whether the respondent would be able to consistently implement the strategies he had learned to avoid serious sexual offending. As was identified by her Honour, it demonstrates an inability by the respondent to manage (or at least adequately manage) his impulsivity, which is a factor that puts him at significant risk of serious sexual offending. The respondent submits that Mr Summerton's evidence 'speaks against such a link' (i.e. between violent offending in prison and impulsivity).[79] As I will discuss below, under 'Impulsivity', I do not consider his evidence to suggest there is no link. In any event, the point here is that the respondent has been aware of the potential consequence for these proceedings of adopting maladaptive responses to stress. If his problematic behaviour since the last annual review has not been impulsive, it may be thought he is not readily deterred by potential adverse consequences.

Incident of 14 January 2017 - the issues

[79] Respondent's closing submissions, 23 May 2017 [25].

On 14 January 2017, four days before the adjourned hearing date for the annual review (after the matter was adjourned on 16 November 2016), the respondent was charged with an aggravated prison offence in respect of an incident that occurred that day. The charge was pursuant to s 70(d) of the Prisons Act 1981 (WA), that he was in possession of drugs not lawfully issued to him. It was alleged that he passed a small paper package containing six capsules and two tablets to another prisoner. The incident was witnessed by a prison officer who seized the package and found the capsules and tablets wrapped inside. When the capsules and tablets were analysed, they were found to be medication which the respondent was not authorised to possess.
The charge was heard by a visiting justice at the prison on 8 February 2017,[80] and the respondent was found to have committed the offence.[81] The manner in which the visiting justice was required to deal with the charge was by way of inquiry and determination, not bound by the rules of evidence.[82] In those circumstances, although I was told that the visiting justice heard evidence from the prison officer and from the respondent and witnesses called by him, I was of the opinion, having heard submissions from the parties, that the determination of the visiting justice did not bind the parties in respect of the respondent's culpability or the facts generally in respect of the incident. As the applicant sought to rely on the incident as evidence of the respondent's conduct that is relevant to the determination of whether he would be compliant on a supervision order, it was necessary for me to hear evidence afresh.
[80] The Prisons Act 1981 provides that the superintendent of a prison may refer a charge of a prison offence to a visiting justice: s 71(1)(c).
[81] Given that the visiting justice dealt with the charge, it was dealt with as a 'minor prison offence': s 73(1)(b) Prisons Act 1981.
[82] Prisons Act 1981, s 75
The fact that a prisoner passed the package to another prisoner was not in dispute at the hearing. Nor was it in dispute that the package contained six capsules and two tablets, and that, upon analysis, they were found to be two forms of medication. Evidence about the use of the medication was given by Dr Wojnarowska.

On the other side of the ledger, Dr Wojnarowska noted that the respondent's propensity for aggression/violence has persisted over the years and is well entrenched in his personality style. It is, therefore, not readily amenable to change with therapeutic intervention, and is something that will need to be managed, rather than treated.[125]
[125] Exhibit 1, page 168 (Dr Wojnarowska's report [15.4]).
Dr Wojnarowska also noted the significance of the respondent's cannabis use.[126] I have discussed this above in detail, including the fact that, while in her report Dr Wojnarowska questioned the respondent's ability to abstain from alcohol and cannabis use in the community, she appeared to have some confidence in her oral testimony that he would be deterred from substance use and the risk could be managed because of the strict supervision.
[126] Exhibit 1, page 167 (Dr Wojnarowska's report [15.3]).
Finally, Dr Wojnarowska referred in her report to the item in the RSVP concerning problems with supervision. She said:[127]
Supervision failure is an important marker for sexual recidivism. Mr Coffin's history of breaches of his orders, reoffending while on bail as well as the prisons incidents and charges suggest future difficulties in this area.
[127] Exhibit 1, page 169 (Dr Wojnarowska's report [15.10]).
Dr Wojnarowska concluded that the respondent's risk of sexual reoffending remains high 'and is associated with the presence of sexual deviance, high risk of generalist violent recidivism, antisocial personality, psychopathic traits and alcohol use disorder'.[128] That assessment, of course, is on the basis that the respondent is not subject to a continuing detention order or a supervision order.

The nature and extent of the risk

[128] Exhibit 1, page 169 (Dr Wojnarowska's report [16.1]).

Dr Wojnarowska was of the view that it was unlikely in the future that the respondent would assault a stranger. She identified his pattern of offending as relating to girls who were part of his community and known to him, if not directly, then indirectly through others. I note that the respondent's first sexual offence was against a stranger, but that was when he was still a juvenile, and Dr Wojnarowska's description of the respondent's pattern of offending more generally is borne out by the history I outlined above.
The sexual offending would likely be against girls between the ages of 10 and 16, and would be similar to previous offences.[129] In my view, the fact that, when speaking with Dr Wojnarowska about his deviant sexual interests, the respondent referred to female children as 'young women' highlights the entrenched nature of his deviant thought processes, notwithstanding the progress he has made in understanding the deviant nature of his sexual interest in young girls. Dr Wojnarowska agreed that it disclosed continuing distorted beliefs.
[129] Exhibit 1, page 169 (Dr Wojnarowska's report [15.11]).
Dr Wojnarowska noted that harm to the victim would be mainly psychological, but, although the use of 'additional violence' occurred only once in the past, this 'may change unexpectedly'.[130] Of course, even if the harm were confined to psychological harm, it is well known that childhood sexual trauma can have lasting adverse effects on a victim's life. The potential harm to victims, therefore, is a significant factor is assessing whether the respondent's risk of serious sexual reoffending is unacceptable.
[130] Exhibit 1, page 169 (Dr Wojnarowska's report [15.12]).
Dr Wojnarowska did not think that the respondent's risk of committing a serious sexual offence would be imminent upon his release. In her view, for the risk to arise the respondent would need to feel comfortable in his new environment, he would need to be part of a social gathering where girls were present, and most likely he would need to be intoxicated. She said that 'reoffending without intoxication is a highly unlikely scenario'.[131] The reason Dr Wojnarowska places significance on intoxication is that, in her view, the respondent 'has got quite good self-awareness of what are the factors that lead to reoffending',[132] which presumably would hold him in good stead to avoid those risk factors while sober. However, as I noted earlier, Dr Wojnarowska considered that, if the respondent engaged in cannabis use, it is likely he would also consume alcohol.
[131] ts 311.
[132] ts 310.
Dr Wojnarowska's view that, in order for the risk of a sexual offence to arise, the respondent would need to be in a social gathering in which girls are present is curious, as it does not reflect the respondent's previous offending, if the suggestion is that the girls would be his potential victims. It may be accepted that, when the respondent committed the later offences, he had become intoxicated after he had been socialising, but the children were not at a social gathering. They were in their homes, asleep. The respondent gained entry to their homes, and at least in respect of the offending when he entered through the window, it was for the very purpose of committing the sexual offences. It may be accepted, as Dr Wojnarowska agreed, that randomly breaking into a stranger's home in the hope that the respondent might find a child is a most unlikely scenario.[133] However, breaking into a home where he may have become familiar with the occupants clearly is a scenario for which there is precedent in his history.
[133] ts 324.
When cross‑examined about the respondent's imminence of reoffending, Dr Wojnarowska expressed the view that, if he were not to be supervised, it would take him a couple of weeks to fall back into the pattern of behaviour that would put him at risk of sexual reoffending.[134] When asked about imminence of reoffending if the respondent were supervised, Dr Wojnarowska said:[135]
Well, it would be difficult for him to reoffend under those circumstances.
She agreed it would be far less imminent.
[134] ts 324.
[135] ts 325.
There is no doubt that the strict conditions of a supervision order are intended to make it difficult for the person who is subject to the order to reoffend, and one would hope that the order would be effective in that regard. However, whether imminent or not, it would only take the one occasion on which the respondent relapsed into substance use, became intoxicated and acted on his still existing deviant sexual urges, for the risk of a serious sexual offence to be realised. One could have no confidence that the insights gained by the respondent into his sexual offending, and expressed appropriately by him when sober, would inhibit his actions when intoxicated. That is why substance use is considered to be a significant risk factor for him. The ability of those supervising him to identify the signs of possible relapse would depend to some extent on his honesty in reporting who he was associating with and his activities. As I discussed earlier, while the respondent's candour in his disclosure of continuing sexually deviant thoughts and urges is to his credit and provides scope for optimism that he would continue to engage in treatment productively, he has also demonstrated a capacity to be dishonest in order to avoid the consequences of his illicit behaviour.
On the basis of the whole of the evidence on the annual review, including Dr Wojnarowska's formal assessment, I am satisfied that there continues to be an unacceptable risk that if the respondent were not subject to continuing detention or a supervision order he would commit a serious sexual offence. He remains a serious danger to the community.

Whether a supervision order would provide adequate protection of the community

The respondent submits that his risk of serious sexual offending can be managed within the community on a supervision order.

(a) Proposed conditions of the order

A proposed supervision order containing 56 conditions was prepared by the SCCO, Ms Henshall, and her colleagues, for consideration by the court as an order that could provide adequate protection of the community if the respondent were released from detention. It was included with Ms Henshall's report of 13 January 2017, the reference to accommodation now requiring amendment to reflect the most recent proposed accommodation.[136]
[136] Exhibit 2.
Apart from the usual conditions required by the Act, including electronic monitoring, the conditions address a number of matters designed to monitor and control the respondent, as well as provide for continuing treatment. They are tailored to best achieve appropriate management of the respondent and his risk of sexual offending. They address risk factors, such as alcohol and cannabis use by prohibiting his possession or consumption of alcohol and prohibited drugs, and prohibiting him from remaining in the presence of persons affected by prohibited drugs. He would also be required to undergo urinalysis or other testing for alcohol or prohibited drugs as directed by his CCO or by a police officer. He would be prohibited from remaining in a place where prohibited drugs were being consumed, or, if such consumption was occurring at his place of residence, he would need to remove himself from that part of the residence where it was occurring. He would be subject to a curfew, as directed by his CCO. Subject to a qualified exception to enable him to complete a commercial transaction (for instance at shops where such children may be employed as shop assistants), he would be prohibited from having contact with any child under the age of 16 years by any means, unless such contact is authorised in advance by his CCO and such contact is supervised at all times by an adult. He would be required to report any such contact. He would be prevented from conducting computer searches for, or possessing, any images of children in any form, except for non‑indecent images of his family. He would be prohibited from forming a domestic relationship with any person who has children in their care under the age of 16 years. He would also be required to make full disclosure of his past offending and the supervision order to anyone with whom he commenced a friendship, domestic, romantic, sexual or other intimate relationship.
The draft order would require the respondent to reside at a proposed address considered by the court to be suitable for the purpose of his supervision.
In my opinion, the proposed conditions reflect the minimum requirements that would be necessary to manage the respondent in the community in order to adequately protect the community against the risk that he would commit a serious sexual offence. The issue, of course, is whether the community could be adequately protected if the respondent were to be released from detention.

(b) The psychiatric and psychological assessments

As I outlined above, Dr Wojnarowska was of the opinion that the reduction in the respondent's sexual drive means there would now be a better ability to manage his risk of committing a serious sexual offence in the community, provided he continues on the SSRI treatment, which can be monitored. While she considered that there is still work to be done in respect of the respondent's cognitive distortions about the sexual maturity of adolescent girls, she agreed in cross‑examination that it is not necessary for all of that work to be done in custody before the respondent could be regarded as suitable for management in the community. In other words, further treatment in the form of counselling can and should continue after he is released.
Dr Wojnarowska considered the respondent's acknowledgement of the wrongfulness of his sexual attraction to adolescent girls, and his awareness of the need to actively work on strategies to avoid such thoughts and urges were significant achievements since she interviewed him two years earlier. She regarded them to be achievements 'in terms of self-awareness'.[137] She agreed with the proposition put by the respondent's counsel that 'self‑awareness is about internal regulation of behaviour … [as] opposed to relying solely on the external'.[138]
[137] ts 335.
[138] ts 335.
In my opinion, the respondent's conduct in supplying the drugs to Mr Indich on 14 January 2017 demonstrates a significant failing in his internal regulation of behaviour, which tends to undermine the confidence one can have in the progress he has made in terms of self‑awareness. Further, compliance by the respondent with restrictive conditions and prohibitions in respect of antisocial behaviour that is broader than sexual offending will be essential to management of his risk of serious sexual offending under a supervision order. His preparedness to engage in prohibited conduct in custody at a time when the hearing of the annual review was pending raises a serious concern about his ability to comply with such conditions and prohibitions and, therefore, the effectiveness of a supervision order as a means to manage his risk.
In cross‑examination, Dr Wojnarowska agreed that the respondent's antisocial personality disorder is relevant to 'the way in which someone might choose to implement [a supervision] order, as opposed to whether or not he's initially suitable for an order'.[139] She said it is relevant to 'the management'.[140] Putting aside the potential intrusion of the evidence into the area of the ultimate issue, it is not obvious to me how one could discount the respondent's antisocial personality disorder from consideration when determining whether the community could be adequately protected from his risk of committing a serious sexual offence by releasing him on a supervision order. It would appear to be clearly relevant to the question of whether the respondent is likely to comply with the conditions of an order. That likelihood has a bearing on the capacity of such an order to provide adequate protection of the community. If all that was meant by the question and Dr Wojnarowska's response was that the respondent's antisocial personality disorder does not necessarily render him unsuitable for release on a supervision order, that is obvious, but not particularly helpful in the context of this case.
[139] ts 344.
[140] ts 344.
Ultimately, it seems to me that Dr Wojnarowska's opinion that the respondent's risk could be managed on a supervision order relies mainly on the expectation that external constraints and monitoring and the deterrent effect of the consequences of a breach will ensure he will not engage in behaviour that would put him at risk of sexual offending, and if he did so engage, it would be detected before he committed a serious sexual offence. I do not overlook the fact that Dr Wojnarowska has taken into account the respondent's engagement in treatment, the fact that he has made and retained treatment gains, his candour in disclosing the extent of his drug use in Roebourne, his candour in disclosing a continued deviant sexual interest in children, the fact that he is on SSRI treatment which would be expected to reduce his sexual urges, and his demonstration of insight into his sexual offending and the underlying deviancy and risk factors. However, apart from the SSRI treatment, many of those factors have been evident in the past, but the court has not considered that external constraints and deterrence would be sufficient to ensure adequate protection of the community if the respondent were released on a supervision order.
In terms of treatment, Hall J had noted in the 2014 proceedings that the respondent's willingness to engage in programmes could not be faulted. However, his Honour considered that, because of the impulsive nature of the respondent's offending, and the fact that it was therefore more difficult to guard against his risk of reoffending, one had to be able to confidently rely on the respondent's appreciation of risk factors and his ability to self‑manage them before one could be satisfied his risk was adequately reduced for release on a supervision order. I agree with his Honour's analysis.
Jenkins J, at the first annual review, found that the psychological treatment the respondent had received had had a positive effect. There was no questioning his preparedness to engage in such treatment. The most significant factors that militated against release on a supervision order were the respondent's continuing cognitive distortions about female children as sexual beings, his sexual urges (which were regarded a significant risk factor) and his impulsivity, as manifested in misconduct in custody.
Of course, there have been some changes since then. There has been an improvement in the respondent's understanding of the wrongfulness of his sexual attraction to adolescent girls, and he has demonstrated remorse and empathy for the victims. However, his sexual interest in girls has persisted, as have his sexual urges, although I am prepared to accept, on what he has said to the experts, that his deviant fantasies and urges have reduced since he has been on the SSRI treatment. The extent to which cognitive changes have taken hold is questionable, given his use of the description 'young women' (which Dr Wojnarowska agreed connoted sexuality) and his distorted view of his past offending as involving children being sexually attracted to him. The changes are not such as to give me confidence in the respondent's ability to self‑manage his risk factors. That confidence is further dented by the respondent's relapse into drug use in August 2016 and the incidents of aggressive behaviour and misconduct I have described above.
In the course of dealing with specific issues under the heading 'Developments since the 2015 annual review', I referred to the opinions expressed by Mr Summerton both in his report and his oral evidence, which inform the question of whether the respondent could be adequately managed under a supervision order. While he concluded that the respondent had maintained fairly good insight into aspects of his sexual offending and to have developed adequate coping strategies to manage future risk, he questioned whether the respondent would utilise the strategies within the community, given his failure to do so, at least in some respects, in the prison environment. Mr Summerton considered that the respondent's motivation to desist from drug and alcohol use is based on the likely consequences of such activity as opposed to being internally driven. Again, he questioned his capacity to abstain, given his relapse in prison.
Both Dr Wojnarowska and Mr Summerton consider that strict supervision and monitoring of the respondent would be required if he were released on a supervision order. Both were also of the view that, while further counselling is unlikely to result in additional gains in respect of unmet treatment needs, it would have the capacity to reinforce gains made to date and should, therefore be pursued. If the respondent were to be released on a supervision order, then counselling would have the capacity to assist the respondent to adjust to community living if he were released and would provide one means of monitoring his behaviour, so that if the respondent were drifting towards behaviour that put him at risk of sexual offending it could be identified and addressed. Such counselling should be provided by Ms Place, at least initially, because of the rapport she has developed with the respondent.

(c) Accommodation

Dr Wojnarowska was of the view that if the respondent were released to reside in supported accommodation, that would be a significant positive factor to enable him to adjust to community living and have the best prospect of succeeding on a supervision order.
The accommodation that is now available to the respondent is supported accommodation made available by Outcare Incorporated (Outcare), a nominated agency under the DSO Supported Accommodation Program. It would be available for three to six months, during which period Outcare would assist the respondent to find alternative accommodation.

A 'spatial analysis' has been conducted by WA Police. It is not necessary to go into details about the accommodation other than to say it is a unit that is part of a complex of units in the metropolitan area with ready access to shopping precincts and various public spaces. There are also schools and childcare centres in relatively close proximity. The police have information to suggest that illicit drug activity has occurred in the 'immediate environs', including within the proposed unit block. There is also information indicating that there are families and individuals with children in the 'immediate environs'. Finally, there is information that a convicted child sex offender lives in relatively close proximity to the residence.
Although the respondent's submissions in respect of proposed accommodation related to the accommodation that was available as at 23 May 2017, not the latest proposed accommodation, they address similar concerns that had been raised in respect of the earlier proposal. In essence, the respondent submits that there is no accommodation (other than prison) that does not pose some risk in respect of the factors I have referred to above (except perhaps the proximity to a convicted child sex offender). The respondent submits that the mere fact the respondent will be required to report to a CCO, and travel on public transport and access public spaces to do so, will put him in situations in which he may come into contact with drug users, vulnerable children and other offenders. He submits that such problems are pervasive in the community as a whole. The respondent submits that the experience of DCS officers in supervising dangerous sexual offenders at nominated addresses, and the surveillance capabilities of the Sex Offender Management Squad, should overcome any perceived concerns with the accommodation.
As Hall J said in Director of Public Prosecutions (WA) v McGarry [No 9],[141] the issue is not whether the proposed accommodation is the best that can be found, but whether, together with all the conditions that could reasonably be included on a supervision order, it would enable adequate protection of the community from the risk of reoffending.[142] In assessing the suitability of accommodation, it is necessary to have regard to any issues that have been identified in relation to the respondent's capacity to comply with a supervision order. The respondent's submissions concerning accommodation have merit in general terms. If I had confidence in the respondent's capacity to regulate his own behaviour and implement coping strategies, so that the effectiveness of a supervision order would not be dependent mostly, if not entirely, on external controls, I would have been prepared to accept that his risk could be managed at the proposed accommodation. However, given my lack of confidence in the respondent's ability to self‑manage his risk factors and implement adequate coping strategies, the heightened risk associated with the accommodation, particularly in respect of illicit drug activity and the presence of vulnerable children nearby, takes on greater significance.
[141] Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306.
[142] McGarry [No 9] [65].
Having regard to all the circumstances, I am not satisfied that the accommodation would be suitable.

(d) The respondent's submissions

Submissions as to the burden and standard of proof

The respondent submits that, on an annual review, the applicant bears the onus of establishing that a supervision order would not provide adequate protection of the community.[143] Further, in relation to the respondent's use of cannabis while in custody, he submits that it is for the applicant 'to establish to the court to the requisite standard that the respondent's drug use in custody is relevant to finding that a supervision order would not adequately protect the community from serious sexual offending'.[144] The respondent has not relied on any authority to support either proposition, nor has he identified 'the requisite standard'.
[143] Respondent's closing submissions [7].
[144] Respondent's closing submissions [16.]
As there was no opportunity for a further hearing at which the propositions might have been developed, I will assume the respondent relies on s 40 of the Act, which provides that proceedings under the Act are to be taken to be criminal proceedings for all purposes, except that 'anything that is to be evidenced for the purposes of the Act' is not required 'to be evidenced to a higher standard than is required by section 7(2)' (ie to a high degree of probability, on acceptable and cogent evidence). However, as will be apparent from my outline of the legislative framework and legal principles above, while the threshold question under s 33(1) requires the court to be satisfied to that standard (when read with s 7), and the burden can properly be regarded as being on the applicant in that regard (again, because of s 7), the consideration of which order to make under s 33(2) is qualified only by the requirement in s 33(3) that the paramount consideration is to ensure the adequate protection of the community. Section 33(2) does not, in its terms, require anything to be 'evidenced'. It does not require proof of any particular matter, in respect of which the applicant could be said to bear the burden. It is concerned with the exercise by the court of its discretion. It is conceivable that the parties may be agreed in their submission about the appropriate order, yet the court may exercise its discretion differently if it considers there is good reason to do so.
As I discussed in Director of Public Prosecutions (WA) v Decke,[145] the position under s 33 can be distinguished from the requirement in s 23 of the Act, concerning proceedings where there has been a contravention of the conditions of a supervision order, where there is a need for the court to be satisfied, in effect, that there would be an unacceptable risk of reoffending under a supervision order before the court could make a continuing detention order.[146] The absence of such a requirement under s 33 militates against the respondent's argument.
[145] Director of Public Prosecutions (WA) v Decke [2017] WASC 119.
[146] Director of Public Prosecutions (WA) v Decke [10] ‑ [13].
In my opinion, the respondent's submissions concerning the burden and standard of proof in respect of the appropriateness of a supervision order are not consistent with the principles I referred to above, derived from Williams. If the community could be adequately protected under either a detention order or a supervision order, then I must choose the order that is least invasive of the respondent's rights. However, if I am left in doubt as to whether a supervision order would adequately protect the community, I must affirm the continuing detention order.
In deciding that question, it is for the court to determine the relevance of any particular factual matter, the test being whether the evidence or fact can rationally affect, in combination with other evidence, the assessment of the probability of the existence of a fact in issue.[147]

Relevance of the respondent's use of cannabis in custody

[147] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413.

For the reasons I have given, having regard to the psychiatric and psychological evidence, the respondent's use of cannabis in custody in the period leading up to this annual review is relevant to my assessment of whether he would be able to remain abstinent from cannabis use under a supervision order. I am satisfied that cannabis use is a factor that puts the respondent at risk of committing a serious sexual offence. His use in custody is relevant, therefore, to whether a supervision order would ensure adequate protection of the community, notwithstanding the prohibitions and monitoring by urinalysis testing.

Submissions as to factual findings

The respondent submits that a combination of factors should satisfy the court that his risk can be managed adequately on a supervision order, and the continuing detention order, therefore, should be rescinded. Those factors are that: he has now engaged in substantial intervention (ie his counselling with Ms Place) and has made and sustained treatment gains; he has developed adequate coping strategies to manage future risk; he has shown candour in his disclosures regarding drug use and sexual thoughts, which should give the court confidence that he will be candid in his dealings with Ms Place and those supervising him under a supervision order; he has demonstrated his willingness to control his sexual urges by his commitment to the SSRI treatment, which would be expected to reduce his sexual urges, which underpin his deviant sexual fantasies; he has demonstrated insight into his risk factors and has expressed an understanding of the link between his substance use and his risk of sexual reoffending; he would not be left to his own devices, in that he will reside in supported accommodation and will have supervision from his CCO and Ms Place; and the proposed supervision order will provide stringent external controls which, in combination with the other factors, will provide adequate protection of the community.
I have dealt with each of those factors, in context, above. In respect of almost all of them I have identified the reservations with which I am left on the evidence. It is not unexpected that there would be reservations, otherwise it would be unlikely that the respondent would remain a serious danger to the community. The question is to what extent they affect my confidence in the effectiveness of a supervision order and, ultimately, whether I am left in doubt that the community could be adequately protected if the respondent were released on such an order.
I do not underestimate the significance of the respondent's candour to Ms Place and to each of the authors of reports for these proceedings. I accept that the fact it has resulted in disclosure of continuing sexually deviant thoughts and urges should be regarded as a positive factor. It has been recognised for some time that his entrenched deviancy will be hard to shift, so that the emphasis will need to be on management of his behaviour. Continuing disclosure in therapy would facilitate such management. The same may be said of the respondent's disclosure about his use of cannabis in Roebourne. However, as I have indicated, the fact that he used cannabis to the extent he did is a significant issue in my assessment of his risk of relapsing into cannabis use in the community. Whether he will be so candid about that issue in future remains to be seen.
The respondent submits that his drug use in custody 'mandates strict external controls', but should not prevent me from finding that he is suitable for release on a supervision order.[148] For reasons I have given, I consider it is an important and worrying manifestation of the respondent's problems with self-regulation and failure to implement coping strategies. Further, such factors are not to be considered in isolation. In combination with other conduct, it speaks to whether the consequences of the breach of a supervision order will deter the respondent from engaging in conduct that will put him at risk of committing a serious sexual offence.
[148] Respondent's closing submissions, 23 May 2017 [31].
The respondent's conduct on 14 January 2017 was a significant setback, in my opinion, given that it occurred while these proceedings were pending. His dishonesty in these proceedings has also been a setback. It undermines the confidence one can have in his candour on a supervision order in respect of matters that may be precursors to conduct that will put him at risk of committing a serious sexual offence.
I do not underestimate the significance of the respondent's commitment to the SSRI treatment. However, while cognitive distortions and sexual urges remain, the emphasis must be on behavioural management, and, as Hall J identified in 2014, confidence that such management can be achieved will depend to a significant extent on the respondent demonstrating that he has adequate capacity for self‑regulation.
The respondent has referred to the fact that his last sentence of imprisonment expired on 15 February 2014, and he has been detained under the Act since then. He submits that the length of detention post-sentence is a relevant consideration in deciding whether the risk the respondent would pose under a supervision order continues to be unacceptable.[149] That is so, but as the court said in Director of Public Prosecutions (WA) v GTR, the word 'unacceptable' (in the context of determining whether the person is a serious danger to the community) connotes a balancing exercise, requiring the court to have regard to all relevant factors. I am mindful that the respondent continues to be detained without having committed an unpunished offence.[150] I referred to the significance of that issue when discussing the legal principles. However, the paramount consideration continues to be ensuring the adequate protection of the community.

(e) Conclusion as to whether supervision order would provide adequate protection of the community

[149] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [27] (Steytler P & Buss JA).

[150] Director of Public Prosecutions (WA) v GTR [27] (Steytler P & Buss JA).

The respondent has demonstrated improvements in self‑awareness in respect of his sexual deviance and risk factors for sexual reoffending, and I am prepared to accept his assertions that his sexual urges have reduced as a result of the SSRI treatment. However, despite that, and despite his remorse and expressions of empathy for his victims, he continues to have cognitive distortions about adolescent girls as sexual objects and he continues to have sexual urges. In my view, the observations of Hall J in 2014 remain pertinent. In the circumstances I have described, the effectiveness of a supervision order would depend significantly on the respondent's capacity for self‑regulation augmenting the external controls. It was made clear to him by Jenkins J in her decision on the first annual review, that he should make it his goal to remain offence-free in the period until the second annual review. Her Honour regarded his misconduct in prison as a manifestation of his impulsivity, which is a significant risk factor for him. The key issue, it seems to me, is the respondent's preparedness to act without consideration for, or irrespective of, the consequences of his actions. It is an aspect of his capacity for self‑regulation.
Having regard to the respondent's conduct since the first annual review, in particular his use of cannabis in Roebourne, his aggressive behaviour towards medical staff and his conduct on 14 January 2017, I do not have confidence that the respondent would be able to regulate his own behaviour and control his impulsivity so as to be compliant with the conditions of a supervision order of the kind that has been proposed, resist engagement in antisocial behaviour and avoid circumstances that would put him at risk of committing a serious sexual offence. That is particularly so, given the reservations that have been expressed about the respondent's capacity and preparedness to implement coping strategies. I take into account also that, having regard to all the circumstances, the proposed accommodation would not be a suitable residence for the respondent.
I am not satisfied that the adequate protection of the community would be ensured if the respondent were released on a supervision order.

What the respondent needs to do

Like Jenkins J on the first annual review, I acknowledge that there is a risk that some of the treatment gains the respondent has made may be lost if he remains in detention. He may consider his achievements to have been futile. Of course that is not the case. They provide a foundation on which he must build in terms of his behaviour while in custody, so that the court can have confidence at the next review of the detention order that he has an adequate capacity for self‑regulation and a willingness to implement appropriate coping strategies, such that a supervision order would be an effective means of ensuring the adequate protection of the community against his risk of serious sexual offending.
It would be expected that the respondent would continue to engage in psychological treatment to consolidate the gains he has made and to endeavour to improve on his coping strategies, both in terms of adopting appropriate strategies and demonstrating a willingness to implement them, and to address his substance misuse. There is still room for further gains to be made in terms of his cognitive distortions concerning matters such as the circumstances in which he offended (perceiving children as having a sexual interest in him) and his misinterpretation of cues from female prison staff.
It would also be expected that the respondent would continue with the SSRI treatment, as long as it does not cause medical problems for him. There continues to be a need for assistance to be provided to the respondent to improve his health.
Finally, again, the respondent should make it his goal not to commit a prison offence before the next review, and he must abstain from using any illicit substance. As Jenkins J said on the first annual review, achieving such goals will support a view that the respondent has learned to control his impulsivity and is able to implement strategies to prevent offending, both in custody and in the community.
The next review is to be conducted as soon as practicable after the end of the period of two years from the date of this decision: s 29(2)(b) of the Act.[151] However, if the respondent is able to demonstrate that he has addressed the issues to which I have referred by the end of 12 months, it may be that he will be able to show exceptional circumstances for an earlier review under s 30 of the Act.
[151] The provision came into force on 10 September 2016 as a result of an amendment by s 24 of the Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA). It applies to this case: see Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158 [166] ‑ [176]. Although the reasoning there concerned s 33(2), it applies equally to s 29 of the Act.

Conclusion - continuing detention order affirmed

For the reasons I have given, I affirm the continuing detention order.
The next review will be listed for hearing on 15 August 2019.