Director of Public Prosecutions (WA) v Allen [No 3] - [2014] WASC 455

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- ALLEN [No 3] [2014] WASC 455

CORAM: JENKINS J

HEARD: 18 NOVEMBER 2014

DELIVERED : 4 DECEMBER 2014

FILE NO/S: MCS 38 of 2009

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
HENRY JOHN ALLEN
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Contraventions of a supervision order - Unacceptable risk that, if a continuing detention order is not made, respondent would commit a serious sexual offence - Effect of lack of appropriate accommodation and health issues on risk

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 23, s 40

Result:

Order that the respondent be detained for an indefinite period for control, care or treatment

Category: B

Representation:

Counsel:

Applicant: Mr B Fiannaca SC
Respondent: Mr S Corish

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Aboriginal Legal Service (WA)

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

Director of Public Prosecutions (WA) v Allen [2009] WASC 360
Director of Public Prosecutions (WA) v Narrier [No 2] [2014] WASC 20
Italiano v The State of Western Australia [2009] WASCA 116
JENKINS J:

Introduction

By an application dated 26 July 2013, the Director of Public Prosecutions (WA) (the DPP), applies for an order under the Dangerous Sexual Offenders Act 2006 (WA) (the Act), s 23, that the respondent be made the subject of a continuing detention order (CDO) or an amended supervision order (the contravention proceedings). Although the application is worded in the alternative, the DPP's position is that a CDO ought to be made. The respondent submits that I should amend his supervision order and permit it to continue.
The respondent has pleaded guilty to four charges against the Act, s 40, which allege that on four occasions over three days in July 2013 he contravened his supervision order, without reasonable excuse, by being in possession of, using, or under the influence of alcohol (the breach offences). My sentencing remarks for the breach offences should be read in conjunction with these reasons.

The Act s 23

The Act s 23 states:
Court may make order
(1)If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may -
(a)make an order amending the conditions of the supervision order and, if the court considers it appropriate in order to achieve compliance with the supervision order or necessary in order to ensure adequate protection of the community, make any other order; or
(b)if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care, or treatment.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
It is not in dispute that the respondent was subject to a supervision order made under the Act and that he contravened that order by committing the breach offences.
In Director of Public Prosecutions (WA) v Narrier [No 2] [2014] WASC 20 I said that before I could amend a supervision order or make an order under s 23(1)(a), I have to consider whether, instead, a CDO ought to be made under s 23(1)(b). When making a decision under s 23(1)(b) as to whether the risk of the respondent committing a serious sexual offence is unacceptable, I must consider whether on the day of the hearing, the respondent is an unacceptable risk of committing a serious sexual offence within an undefined reasonable time from the making of the order, even if he was on an amended supervision order.
The term 'unacceptable risk' is not defined in the Act. A finding that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which I am required, on the one hand, to have regard to, among other things, the nature of the risk and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [46].
In assessing the likelihood of the risk materialising it is relevant for me to take into account that the respondent will be in custody under sentence for a period of time and even when released will be subject to his supervision order until it comes to an end.

Background

The respondent's background and history of offending up until December 2009 is set out in Hasluck J's reasons for decision in Director of Public Prosecutions (WA) v Allen [2009] WASC 360.
As neither party challenges his Honour's recitation of the respondent's background and history of offending, I will not repeat it in full but I will take it into account. In relation to the respondent's history of offending, the respondent did not commit his first sexual offence until he was 34, although he had a history of generalised offending, including numerous convictions for violent offending, prior to that. When he was 25 he was convicted of aggravated assault against a female. Between the ages of 34 and 45 the respondent offended against five young women. He raped two of the victims, seriously assaulted another victim in circumstances which indicated that he proposed to rape her, attempted to sexually penetrate a fourth victim, and assaulted the fifth in circumstances that legitimately gave rise to a suggestion that if the victim had not been able to escape, the respondent would have, at the very least, indecently assaulted her. In each of the five cases the respondent used violence in an attempt to subdue the victim and in four of the cases he placed his hands around the victim's neck and applied pressure, during his attack. His offending was associated with alcohol intoxication. He is now 55 years of age.
The last two incidents resulted in the respondent being convicted of attempted sexual penetration without consent and robbery. On 2 March 2005, he was sentenced for both offences to an aggregate term of imprisonment of 5 years and 4 months. The sentencing judge made him eligible for parole. Parole was denied to the respondent for a number of reasons, namely, he did not complete the Sex Offender Treatment Programme (SOTP), he was considered to be at high risk of re‑offending due to his history of sexual offending, his poor past performance on parole, he was considered to be a continuing risk to female members of the community and he had unaddressed offending behaviour. At the conclusion of his sentence on 18 October 2009 the respondent was detained in custody as a consequence of the DPP's application to have him declared a dangerous sexual offender under the Act.
On 4 December 2009, Hasluck J found that the respondent was a serious danger to the community, but that a supervision order should be made as a means of ensuring adequate protection of the community. The supervision order made by Hasluck J was for a period of five years from 16 March 2010. It is not clear why there was a delay of some three months between his Honour's decision and the signing of the supervision order. The supervision order contained 28 conditions, including conditions that the respondent reside at Bayulu Community, via Fitzroy Crossing and that he reside continuously at that address or at a different address only if such different address was approved in advance by his Community Corrections Officer (CCO). He was also not to leave the boundaries of Bayulu Community without the prior approval of the CCO. Other conditions required him to report to the police and the CCO and not to be in possession of, use, or be under the influence of alcohol.
Initially, on release on the supervision order the respondent was generally compliant with the terms of the supervision order. However, there were occasions when the respondent went into Fitzroy Crossing township without permission and/or was not present when police conducted a random check on his whereabouts in Bayulu Community.
On 1 March 2011, the respondent appeared before Murray J at the hearing of an application by the DPP pursuant to the Act s 23 that upon the court being satisfied that the respondent had contravened conditions of his supervision order, an order be made that the respondent's supervision order be varied. There were five contraventions alleged by the DPP and admitted by the respondent. These were as follows:
(1)between 5 January 2011 and 20 January 2011 inclusive at Derby and elsewhere in Western Australia, the respondent contravened condition 1 of the supervision order by failing to reside continuously at Bayulu Community;
(2)on 11 January 2011 at Derby the respondent contravened condition 6 of the supervision order by failing to report to his CCO by telephone as directed;
(3)on 11 January 2011 at Derby the respondent contravened condition 12 of the supervision order by failing to report to police as directed;
(4)on or about 20 January 2011 at Derby or elsewhere in Western Australia, the respondent contravened condition 24 of the supervision order by consuming alcohol; and
(5)between 21 January 2011 and 24 January 2011 inclusive at Broome, the respondent contravened condition 1 of the supervision order by failing to return to and reside continuously at Bayulu Community.
The facts relating to the contraventions were that on 5 January 2011, the respondent obtained the permission of his CCO to leave Bayulu Community in order to go to Fitzroy Crossing to report to police. Later on 5 January 2011, the respondent was in the front passenger seat of his vehicle which was being driven by another person. There were two cartons of full strength beer in the tray of the utility vehicle. Between 7 and 9 January 2013 the police visited Bayulu Community and unsuccessfully searched for the respondent. On 11 January 2013, the respondent failed to report to Fitzroy Crossing police station, despite having been directed to do so by police on 5 January 2011. On the same date the respondent failed to report to his CCO by telephone, as he had been directed to do so. Attempts by his CCO to ascertain his whereabouts were unsuccessful.
On 12 January 2011, a magistrate issued a warrant of apprehension for the respondent. On 20 January 2011 the police arrested him. The respondent underwent a preliminary breath test which returned a reading of 0.172% blood alcohol content.
On 21 January 2011, the respondent appeared in Broome by video link before the Supreme Court in Perth. He was re‑released on the supervision order.
The respondent reported to his CCO later on 21 January 2011. He was issued with a written lawful instruction to return directly to Bayulu Community and not to leave it under any circumstances unless there was a medical emergency. He was also instructed to ring his CCO three times a week. These restrictions were to remain in place until his next court appearance on 4 February 2011. His CCO gave the respondent a bus ticket to return to Bayulu Community. The bus departed later that day, however, when the bus arrived at Fitzroy Crossing, the respondent was not on the bus. The respondent was seen on the morning of 22 January 2011 by a CCO in Broome. The CCO directed the respondent to report to community corrections at 8.00 am on 24 January 2011. The respondent reported to his CCO at 9.00 am on 24 January 2011. His excuse for not having made it to the bus stop on time was that he had met a former girlfriend at the bus stop and they had gone off to have consensual sex. He said that he had not consumed alcohol since his release from court on 21 January 2011 and that he had stayed at his brother's place in Broome. On 25 January 2011, the respondent returned to Bayulu Community and was generally compliant with the conditions of his order after that date.
With the consent of the parties, Murray J amended the supervision order and re‑released the respondent. The amendments were made to facilitate a proposed move by the respondent from Bayulu Community to the Koonjie Community, near Halls Creek. It was believed that the respondent may be able to obtain work at the Koonjie Community. The evidence does not disclose that he went to live at the Koonjie Community.
Between then and his arrest on 9 July 2013, the respondent was in the community or on remand in custody for having breached his supervision order. The breaches which resulted in the commission of offences against the Act s 40A(1) were as follows:
(1)30 December 2011 - fined $500.
(2)31 December 2011 - fined $500.
(3)7 June 2012 - fined $100.
(4)19 June 2012 - fined $100.
(5)26 June 2012 - fined $100.
(6)27 June 2012 - fined $100.
(7)6 July 2012 - fined $100.
(8)12 July 2012 (two offences) - 6 months' 1 day's imprisonment on each offence, to be served concurrently. Imprisonment suspended for 7 months from 6 February 2013.
(9)23 November 2012 - fined $400.
The offences on 30 and 31 December 2011 were recorded in the Kununurra Magistrates Court on 3 January 2012. The remaining convictions were recorded in the Halls Creek Magistrates Court on 6 February 2013.
The offence on 30 December 2011 occurred when police spoke to the respondent and he admitted to them that he had drunk alcohol. A breath analysis was performed which returned a reading of 0.04% blood alcohol content.
The offence committed on 31 December 2011 occurred when the respondent was seen by police sitting in a group of about ten people consuming alcohol in bushland in Halls Creek. An open can of light beer was very close to the respondent. A breath analysis returned a reading of 0.01% blood alcohol content.
On 3 January 2012, the respondent appeared in court and pleaded guilty to those two offences. He said that he was in Halls Creek because his oldest sister had passed away at the end of November 2011. He intended to conclude the funeral arrangements and then return to Bayulu Community. His counsel said that the respondent 'had quite a warning now about the consequences for breaching any of the conditions of his supervision order, even on a relatively low scale'. The respondent instructed his lawyer that he was now going to comply with the conditions of his supervision order. When the magistrate fined the respondent he told him that if he breached his supervision order again he was going to be arrested and he would be sent back to gaol. The respondent acknowledged that he knew that.
The DPP did not bring contravention proceedings in respect of these breaches.
The offence on 7 June 2012 occurred when the police found the respondent laying on the Great Northern Highway, near the Fitzroy Crossing township. The respondent said that he was walking back to the Bayulu Community, which was over 15 km away. The respondent was in breach of his supervision order because he had been given permission by his CCO to travel to Fitzroy Crossing on the previous day only between the hours of 8.00 am and 2.00 pm.
The offence on 19 June 2012 occurred when the respondent was at a roadhouse in Fitzroy Crossing. He did not have permission to travel to Fitzroy Crossing or to leave the Bayulu Community.
The offence on 26 June 2012 occurred when the respondent went to Fitzroy Crossing without the permission of his CCO. The respondent was seen in Fitzroy Crossing by another CCO and the respondent told him that he was in town to collect his medication. However, inquiries revealed that the respondent had not been to any medical facility in the town that day to collect any medication.
The offence on 27 June 2012 occurred as a result of the respondent failing to report for supervision on Wednesday 27 June 2012, contrary to a direction to him to do so. The respondent had made no attempt to contact his CCO to reschedule his appointment or to provide an explanation for his absence. An unannounced home visit was conducted that day by a CCO and the respondent was not at home or in the Bayulu Community.
The offence on 6 July 2012 occurred when the respondent was in Fitzroy Crossing, in an intoxicated state. He gave a preliminary breath test which gave a result of 0.103% blood alcohol content. The respondent told the police that he was in town for the rodeo, he knew he did not have permission to be in town and he had been drinking at the hotel. This offence is particularly relevant as a year later, the respondent was also in Fitzroy Crossing at the rodeo, drinking alcohol and intoxicated.
The offences on 12 July 2012 occurred when the respondent was on a street in Halls Creek. The police spoke to him and requested him to provide his name. The respondent provided a false name. He was taken to the police station where his true identity was ascertained. The respondent admitted to having drunk alcohol and a preliminary breath test was performed. This provided a reading of 0.079% blood alcohol content. He admitted to using alcohol and to having left the boundaries of the Bayulu Community without prior approval of his CCO.
On 13 July 2012, the respondent was remanded in custody as a result of the alleged breaches of his supervision order. On 4 October 2012, he was released on conditional bail which was to run concurrently with his supervision order. He was released to reside at the Pullout Springs Community, a small indigenous community, between Fitzroy Crossing and Halls Creek. Court reports state that although he generally reported as directed, he was verbally aggressive towards community corrections staff and avoided speaking to his CCO.
The offence on 23 November 2012 occurred when the respondent failed to contact his CCO contrary to a direction given to him. When he was arrested on 9 January 2013, the respondent told the police that he had forgotten to report because he was getting old.
When the respondent appeared in court on 6 February 2013, the magistrate noted that the court had 'gone to great lengths to try and [indistinct] client understand the gravity and the seriousness of his offending. But every report I have has indicated that he keeps pushing the boundaries'. When sentencing the respondent, the magistrate told him that it was very serious for him to breach his supervision order and that she was trying to get him to understand that he would go back to gaol if he continued to do so.
After sentencing on 6 February 2013, the respondent's compliance with the supervision order was satisfactory. On 2 April 2013, the respondent relocated to a Department of Housing house in the Fitzroy Crossing township. I have been told that this was to facilitate his care of his disabled brother, although at the time of his arrest in July 2013 he was residing alone at the property. The respondent's CCO authorised the respondent's move to Fitzroy Crossing even though a psychologist thought that the move was a 'potential environmental risk'. The respondent was referred to the Kimberley Community Drug Service Team for substance misuse counselling. I do not know whether he ever attended this service. He failed to report for scheduled supervision appointments on 13 May 2013 and 4 June 2013.
On 8 July 2013, the police commenced an investigation into the death of a woman who had been found dead earlier that morning by the respondent in his home at Fitzroy Crossing. The deceased was an indigenous woman who usually lived at the Noonkanbah Community, but she had been staying for a couple of weeks before her death with relatives in Fitzroy Crossing. It is now known that on the weekend of Friday, 5 July 2013 through to mid‑afternoon on Sunday, 7 July 2013, the respondent socialised with the deceased and other people at the rodeo held at the Fitzroy Crossing Rodeo Showgrounds and also at his home. Whilst socialising with these people, the respondent drank full strength beer and rum and became intoxicated. He also had consensual sexual intercourse with the later deceased woman.

On 9 July 2013, the respondent was charged with the breach offences and held in police custody. He has been in custody since that date.
The respondent has not been charged with any offence relating to the death of the woman and these contravention proceedings will be determined on the basis that he was not involved in her death.
The respondent was initially placed in the West Kimberley Regional Prison (WKRP). In August 2013, the respondent was admitted to hospital after complaining of chest pains and feeling very weak. On 18 August 2013, he was transferred to Casuarina Prison where he remained until 2 January 2014. He was then transferred back to the WKRP. In early 2014, the respondent was involved in incidents in prison where he swore at a prison officer, threatened to kill himself and, was reprimanded for unacceptable attitudes or behaviour such as being argumentative, using abusive language and swearing at prison officers.
On 2 August 2014, the respondent was found unconscious in his prison unit. He was transferred to hospital by ambulance. The following day he spat at staff and yelled abuse at them. On 4 August 2014, he was transferred back to Casuarina Prison. He had refused further treatment in hospital. On 5 August 2014, the respondent spat into a prison officer's face, he was argumentative and he became belligerent.
On 1 September 2014, the respondent was transferred back to hospital for further diagnosis. On 7 September 2014, whilst an admitted patient at hospital, he threw an empty urine bottle at a prison officer. The respondent's behaviour was noted to be erratic. He would have short outbursts of abuse and/or he would refuse medication. He would then calm down and talk to staff and receive medication as though nothing had happened.
Since being remanded in custody in July 2013, the respondent has had a heart attack and has had a stent implanted. He has also had parasitemia, cataract surgery, and two more recent episodes of low sodium with a possible resulting seizure. Investigations have failed to disclose a cause for his low sodium episodes and it has been determined that the episodes are idiopathic. He will require regular monitoring to ensure that they do not recur. Low sodium levels may be accompanied by altered mental states including confusion and agitation. It can be a life‑threatening condition and be difficult to monitor and manage in a remote community. The respondent has shown irregular compliance with medication and medical management during his time in custody. Currently, he is receiving drug treatments for type 2 diabetes, hypertension, hypercholesterolemia, coronary artery disease and, iron and vitamin B12 deficiencies.
The respondent's erratic behaviour in August and early September 2014 is likely to have been caused by his low sodium episodes.
On 16 September 2014, a letter written by the respondent was intercepted by prison authorities. The letter was written to a woman who lives in the Kimberley area. It made threats of harm to the woman and her sisters if they did not forward money to him. In the letter, the respondent refers to himself as 'the hit man' and 'the boss from Halls Creek'.
According to Dr Tanney who provided a psychiatric report for the purpose of these contravention proceedings, the letter would only be attributable to the respondent's low sodium levels if it was written earlier than the first week of September 2014.

Proposed community placements

The respondent proposed two places where he could live if released on an amended supervision order. The first was the Moongardie Community near Fitzroy Crossing, and the second was the Pullout Springs Community.
Enquiries by community corrections have revealed that the Moongardie Community is unsuitable. There is no appropriate accommodation or anybody to supervise the respondent in that community.
The Pullout Springs Community is a sub‑community of the Yiyilli Community. It is located approximately 125 km south of Halls Creek on the Louisa Downs Station, where the respondent was born. The Pullout Springs Community was established many years ago due to an old family feud, whereby the respondent's uncle, Mr Dawson, and others left Yiyilli and created their own community. The two communities are accessed via an unsealed road off the Great Northern Highway. About 5 km off the highway, the track splits into two, with the Yiyilli Community approximately 1 km on the left and the Pullout Springs Community approximately 1 km to the right.
There are approximately 100 adults and 30 children residing in the Yiyilli Community and approximately 20 adults and 15 children living in the Pullout Springs Community. The Yiyilli Community has a store where groceries and cigarettes can be purchased, a community arts centre, an office and a community clinic which is attended by Halls Creek District Hospital staff on a weekly basis. The Pullout Springs residents utilise the facilities in Yiyilli and access the Yiyilli Community council office for business purposes. The communities may become cut off by flood waters and be inaccessible at times during the wet season. As long as the weather permits it, medical staff continue to access Yiyilli during these times by air. There is a public telephone in the Pullout Springs Community which the accused could use to report to his CCO.
The Pullout Springs Community is not a dry community, although there is an endeavour to make it one. The respondent has expressed a desire to get away from alcohol and he believes that the Pullout Springs Community is a good place for him to live to do this.
Mr Dawson is a community elder and chairperson of the Pullout Springs Community. He is an appropriate person to supervise the respondent and he is prepared to do so. Apart from the significant problems of its remoteness, presence of females and female children, lack of alcohol restrictions and lack of permanent community corrections, medical or police officers, the biggest problem with the respondent living at the Pullout Springs Community is the lack of suitable accommodation. The only accommodation available to the respondent at the moment at the Pullout Springs Community consists of an open tin shed. It is basically one room with a concrete floor. There are no fixed windows or doors, no lights, no fans, and no internal bathroom facilities. There is no electricity supplied to the shed. However, power can be provided by an extension cord from the closest property 10 metres away. There is an ablution block approximately 40 metres from the shed. It requires plumbing repairs, but it is still utilised by community residents. The shed has no insulation and there is a concern that conditions in it could be quite intolerable in the wet season. The shed will not be renovated until the community signs an agreement with a housing authority. Whilst there is a possibility of this occurring, it has not occurred to date.
The respondent is apparently not concerned with the condition of the shed and has said that he would be able to put windows and doors in it. Mr Dawson's attitude towards the respondent living there has wavered. Initially, he was of the view that the respondent, as a bushman, would be able to live in the shed. More recently, he has expressed concerns and said that it would be better for the respondent to remain in prison or to reside with relatives in the Moongardie Community until the tin shed is made liveable. I repeat that it is not possible for the respondent to live in the Moongardie Community.
For completion, I note that there is no Department of Housing accommodation available to the respondent and, in any event, it would only be available in townships where he would be able to access alcohol. The consistent opinion of all judicial officers, psychologists, psychiatrists, and community corrections officers is that the respondent must be kept away from alcohol in order to safely manage his risk of sexual reoffending. I would not be prepared to release him on a supervision order if he was to reside in a town with unrestricted access to alcohol.

Report of Dr Tanney

Dr Bryan Tanney, consultant forensic psychiatrist, prepared a report and gave oral evidence at the hearing of the contravention proceedings. For the purpose of preparing the report, Dr Tanney interviewed the respondent personally for one and a half hours. He also reviewed a psychiatric report and documentation that he had prepared for the respondent's initial division 2 hearing in 2009 and documents relevant to the contravention proceedings. He also discussed community management considerations with a CCO.
Dr Tanney prepared his report and gave evidence subject to restrictions which I placed on him which required him not to speak to the respondent about, or take into account, the death of the woman at the respondent's home or whether or not he had told the woman that he was on a supervision order before he had sexual intercourse with her. I am grateful to Dr Tanney for being prepared to provide a report for the contravention proceedings under these restrictions. Any resultant limitations in his report are the result of those restrictions and are no reflection on Dr Tanney.
Dr Tanney's opinion in 2009 was that the respondent was at high risk of further serious sexual offending and that the risk of such further offending could not be adequately managed in the community at that time.
When interviewing the respondent for the contravention proceedings, Dr Tanney noted some positive improvements. The respondent was open and more talkative than previously, with some spontaneity of responses. The respondent clearly attempted to present himself favourably, and his recent and remote memory was intact. He demonstrated a limited range of emotions, but these were appropriate and reactive and not labile. The respondent emphasised a number of themes during the interview. These included Christian life and teaching, avoiding women and alcohol, looking to the future and not the past, and being a role model/mentor for community youth. The reference to Christian life and teaching appears to have stemmed from a relationship which he had with a pastor in early 2013. In respect to avoiding women, he said that he was no longer seeking a female partner or relationship. He said that he intended to keep away from women and not be tempted by them. He was able to articulate that he had done the wrong thing in the past and that when a woman said 'no' to sex he was not to force them to have sex. In respect to alcohol, the respondent told Dr Tanney that he was leaving that behind him.
The respondent gave numerous examples to Dr Tanney of his expectation that his behaviour would be controlled by others. For example, that someone would keep an eye on him to prevent alcohol abuse and to take him away from drink.
Dr Tanney also notes, on the positive side, that since the respondent's release on the supervision order, he had not offended in a sexual or violent manner. However, Dr Tanney remains of the view that the respondent has a 'very significant likelihood of violent reoffending', although he has made some gains in several of the RSVP risk factors. Dr Tanney also remains of the view that there is 'a high likelihood of sexual reoffending … should no further intervention have taken place'. He says that the dynamic risk elements that are likely to exacerbate the likelihood of further serious sexual offending remain. These are alcohol intoxication, impaired regulation of affects of entitlement and anger, social isolation and non‑existent support relationships. These comments are made having regard to the respondent's serious sexual offending and other violent offending occurring in the context of chronic alcohol misuse.
Dr Tanney says that detention in custody represents a means of assuring the ongoing safety of the community from the respondent's potential for sexual reoffending. However, Dr Tanney is of the view that this approach is valid only if there are programmes available in prison which are likely to impact and reduce the factors that lead to the respondent's sexual reoffending. That consideration is not relevant to my determination.
Dr Tanney says that the elements of a successful community placement are known. These are placement in a remote and dry community to limit both victim access and exposure to alcohol, support and encouragement of pro‑social activities such as employment and mentoring, firmly enforced supervision conditions, supportive counselling respecting the issues of alcohol and sexual reoffending, and counselling related to the respondent's attitude towards women and his history of general violence.
Dr Tanney notes that the respondent does have significant medical needs and that there must be arrangements in place to manage these, if the respondent is to be released into the community on a supervision order.

Discussion

It is not disputed that the respondent has contravened, on many occasions, his supervision order. This enlivens my discretion to make an order amending the conditions of the supervision order or, if I am satisfied that there is an unacceptable risk that if the respondent is not detained on a CDO he would commit a serious sexual offence, to order that he be so detained.
The evidence also proves that the respondent remains at high risk of serious sexual reoffending. An issue for me is whether that risk will remain at an unacceptable level if the respondent is placed on an amended supervision order. In determining this issue, I must apply the statutory principle that the paramount consideration is the need to ensure adequate protection of the community.
Although there is evidence that the respondent's risk of serious sexual reoffending was reduced when he was previously in the community on the supervision order, I am not satisfied that the conditions of the supervision order reduced his risk from an unacceptable risk to an acceptable one. This is because:
(1)the respondent repeatedly left the Bayulu Community without the permission of his CCO and in breach of his supervision order;
(2)the respondent repeatedly drank alcohol in breach of the conditions of his supervision order;
(3)despite admonitions from his CCO and judicial officers not to breach his order and of the likely consequences if he did so, the respondent contravened his supervision order on subsequent occasions;
(4)the respondent continued to show interest in sexual matters by having sexual relations with two women whilst he was on the supervision order; and
(5)even whilst in custody, the respondent has, on occasions, been violent and, in the letter he attempted to send, has made threats of serious violence towards women.
The next question is whether there are amendments I could make to the supervision order which would strengthen it and reduce the respondent's risk of serious sexual reoffending to an acceptable level. Regrettably, I am of the view that there are not conditions which I could place on the order which would achieve this result. The major impediments to an amended supervision order having this result are:
(1)despite the respondent's assertions that he would not drink whilst on the supervision order, his history shows that he is unable to meet his promises in this respect;
(2)intoxication is a significant risk factor for the respondent. His previous history of drinking whilst on the supervision order, the lack of any dry community for him to live at, and the remoteness of the Pullout Springs Community would make it difficult to supervise his behaviour and stop him from accessing alcohol whilst on the supervision order;
(3)the presence of women and female children at the Pullout Springs Community means that he would have access to potential victims;
(4)the respondent has not received any recent counselling so as to reduce his risk of reoffending;
(5)if the respondent was to live at the Pullout Springs Community, counselling would be available to him but not through a psychologist approved by community corrections;
(6)sanctions have been imposed on the respondent in the past for breaching his supervision order and these have not been successful in stopping him from breaching it again;
(7)despite the respondent being aware of the association between intoxication and his prior serious sexual offending, he has voluntarily become intoxicated whilst on the supervision order; and
(8)the respondent has behaved in a violent manner and made threats of violence whilst recently in custody. Even accepting that some of these incidents are the result of low sodium levels, the other incidents show that he is prepared to act out even with authorities close by and closely supervising him.
Further, I am of the opinion that the respondent's risk of serious sexual reoffending could only be reduced to an acceptable level in the community if he had stable and adequate accommodation. The tin shed at the Pullout Springs Community does not meet this requirement. Given the condition of the tin shed and given the local climate, it is likely that if the respondent was accommodated in the shed, he would not want to stay for long periods of time in it. He would go out and about to seek more comfortable surroundings. This would increase his risk of serious sexual reoffending. In my opinion, it would be inappropriate for the court to release the respondent on a supervision order which did not envisage that he would reside in accommodation fit for human habitation, particularly given his many serious health problems. Unfortunately, this is what is proposed and there is, at this point, no acceptable alternative.
Thus, I am of the opinion that even if I amended the supervision order as proposed, the respondent would be likely to breach it by drinking alcohol and leaving the Pullout Springs Community, without permission. This behaviour would pose an unacceptable risk that the respondent would commit further serious sexual offences.
The respondent's counsel suggested that the court could, in effect, release the respondent on a supervision order which would require adequate accommodation to be found for the respondent or ensure that he was only released when such accommodation was located. This would be an alternative to me releasing the respondent on a supervision order on the condition that he reside in the tin shed at the Pullout Springs Community. I do not understand that these alternatives are available under the Act. I cannot force the State to provide accommodation for the respondent in the community. Neither is it possible for me to make a supervision order which is conditional upon accommodation being found before the supervision order comes into effect.

Conclusion

Accordingly, being satisfied that the respondent has contravened his supervision order, and also being satisfied that there is an unacceptable risk that if the respondent is not detained under a CDO that he would commit a serious sexual offence, I order that he be so detained. In coming to this view, I have taken into account that I may make an order amending the conditions of the supervision order. However, I am not satisfied that there are amendments that I could make to the conditions of the supervision order which would adequately protect the community.