Director of Public Prosecutions (WA) v Comeagain [No 6] - [2016] WASC 100

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- COMEAGAIN [No 6] [2016] WASC 100

CORAM: SIMMONDS J

HEARD: 14 JULY & 29 - 30 OCTOBER 2015 & 8 MARCH 2016

DELIVERED : 14 MARCH 2016

PUBLISHED : 6 APRIL 2016

FILE NO/S: MCS 15 of 2008

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
PATRICK ALFRED DENNIS MERRITT aka COMEAGAIN
Respondent

Catchwords:

Dangerous sex offender - Respondent guilty of contraventions of a supervision order - Whether unacceptable risk that the respondent would commit a serious sexual offence if continuing detention order not made

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 3, s 7, s 17, s 19A, s 22, s 23A, s 23, s 24A, s 33, s 37, s 40A, s 40B, s 42

Result:

Division 4 continuing detention order made

Category: B

Representation:

Counsel:

Applicant: Ms K Robinson
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) 60 CLR 336
Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214
The State of Western Australia v Merritt [2015] WASCSR 233
TJD v The State of Western Australia [2014] WASCA 10
SIMMONDS J:
(This judgment was delivered orally and has been edited from the transcript.)

Introduction

The respondent is a person in respect of whom I made a supervision order under Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) s 33(2)(b) with a duration of 10 years (the supervision order). The supervision order was made on 24 June 2014. It followed my decision that day in Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214. Comeagain was the name by which the respondent was then known.
In DPP v Comeagain [No 5] I described why I found the respondent was a 'serious danger to the community' within DSO Act s 7 so as to require me to choose between expressly declining to rescind the Division 2 continuing detention order to which the respondent was then subject (s 33(2)(a), read with s 3(1) 'Division 2 continuing detention order') (the continuing detention order); and rescinding the continuing detention order and making an order of the kind represented by the supervision order (s 33(2)(b)).
The supervision order I made included the following conditions requiring the respondent to:
5.Report to, and receive visits from, a CCO [Community Corrections Officer] at times and at places as directed by a CCO, such arrangements having regard to any employment commitments of the respondent;
...
25.Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;
...
35.Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by a CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place.
Before me were two matters, heard together, concerning the supervision order (the present proceedings).
One matter was an application by the Director of Public Prosecutions (DPP), dated 9 July 2015 and under DSO Act s 22, for orders under s 23: both provisions fall within Part 2 Division 4 (the Part 2 Division 4 proceedings). The terms of the DPP's application in the Part 2 Division 4 proceedings are:
1.Upon the Court being satisfied that the Respondent has contravened a condition of [the supervision order], an order that the Respondent be detained in custody for an indefinite term for control, care, or treatment.
or in the alternative
2.Upon the Court being satisfied that the Respondent has contravened a condition of the supervision order], an order that the supervision order be amended in such terms as the Court thinks fit, 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 that the court sees fit.
The other matter before me was the subject of proceedings, originally commenced in the Magistrates Court under DSO Act s 40A, for two offences of contravening without reasonable excuse a requirement of a supervision order (the prosecutions).
One offence was such a contravention of Condition [5] of the supervision order (Prosecution Notice 29071/15, or the Condition [5] prosecution).
The other offence was such a contravention of Condition [25] of the supervision order (Prosecution Notice 29905/15, or the Condition [25] prosecution).
It was common ground before me that the contraventions alleged for the purposes of the Part 2 Division 4 proceedings were those alleged for the purposes of the prosecutions.
However, it may be noted that for the purposes of the prosecutions there is also the matter of lack of a reasonable excuse. That matter has no direct counterpart for the purposes of the Part 2 Division 4 proceedings.
As the Part 2 Division 4 proceedings were in progress at the same time as the prosecutions, the prosecutions were transferred to this Court as required under DSO Act s 40B(4). They were heard with the Part 2 Division 4 proceedings.
On 14 July 2015, at a hearing before me in the Part 2 Division 4 proceedings provided for by DSO Act s 23A, I made orders including ones for the respondent to undergo examination by two named psychiatrists for the purposes of preparation of reports pursuant to that provision. Further, following submissions for and against such an order, I made one for the respondent to be detained in custody until the conclusion of the Part 2 Division 4 proceedings, pursuant to s 24A(2)(a) (the interim detention order).
It was accepted at that hearing that the effect of the interim detention order was that no question of bail for the respondent in respect of the prosecutions fell to be decided.
Thereafter there were hearings before me in the present proceedings of both the prosecutions and the Part 2 Division 4 proceedings on 29 and 30 October 2015 and in the Part 2 Division 4 proceedings alone on 8 March 2016.
At the hearing before me on 29 October 2015 the respondent pleaded guilty to the charges in both the Condition [5] prosecution and the Condition [25] prosecution.
At the hearing before me on 30 October 2015, following sentencing submissions for both the prosecution and the respondent, I sentenced the respondent to terms of immediate imprisonment of 4 months for the offence in the Condition [5] prosecution and of 7 months for the offence in the Condition [25] prosecution. I required the two sentences to be served concurrently and backdated them to 18 June 2015: see The State of Western Australia v Merritt [2015] WASCSR 233.
Also on 30 October 2015 I adjourned the hearing in the Part 2 Division 4 proceedings to what became the hearing on 8 March 2016. It was common ground at the hearing on 30 October that the effect of that adjournment was that any possibility of release from the total effective term of imprisonment of 7 months backdated imposed in the prosecutions would be subject to the interim detention order.
In the balance of these reasons I first deal with the findings of fact I made in the prosecutions which I consider I should use in the Part 2 Division 4 proceedings. I then turn to the evidence in and the law applicable to the Part 2 Division 4 proceedings, before I make further findings of fact representing matters not in contest before me, review other relevant evidence before me and arrive at my findings on that evidence in the context of my other findings. I then apply that law to all of those findings to arrive at my conclusions and orders in the Part 2 Division 4 proceedings.

Findings from the prosecutions

DSO Act s 40B(4)(d) provides as follows:
(4)If proceedings on a charge of an offence under section 40A(1) against a person in relation to certain conduct, and proceedings commenced under Part 2 Division 4 in respect of the person in relation to the same conduct, are in progress at the same time -
…
(d)any findings of fact by the Supreme Court in the proceedings on the charge may be used in the proceedings under Part 2 Division 4; …
It could not be contested, in my view, that the findings of fact so referred to might include at least those I made for the purposes of the conviction and sentencing of the respondent. Those findings which I consider I should use are the ones I made as to the material facts of the offences in the prosecutions, their aggravating factors and their mitigating factors.
The material facts of the offences as I found them to be were as appeared in Exhibit 1 for the purposes of the Part 2 Division 4 proceedings, pages 1 ‑ 2 for the offence in the Condition [5] prosecution; and pages 2 ‑ 3 for the offence in the Condition [25] prosecution: see State v Merritt [6] ‑ [7].
The aggravating factors I found for the offence in the Condition [5] prosecution were described in State v Merritt [8] ‑ [16]. The aggravating factors I found for the offence in the Condition [25] prosecution were described in State v Merritt [8] ‑ [20].
The mitigating factors I found were described in State v Merritt [22] ‑ [30].
The material facts in respect of the offence in the Condition [5] prosecution I so found were these.
On Tuesday, 19 May 2015 the respondent attended at a supervision meeting with his then Community Corrections Officer (CCO), Ms Jane Henshall, at Central West Community Corrections Centre, 30 Moore Street, East Perth. During this meeting Ms Henshall directed the respondent to attend for a further meeting at the same place at 10.30 am on 29 May 2015 (Friday). The respondent failed to attend the appointment on 29 May 2015 as directed.
On 10 June 2015 the respondent was interviewed by police officers from the Sex Offender Management Squad (SOMS) in relation to his failure to attend his appointment on 29 May 2015. The respondent admitted that he did not attend that meeting.
The respondent stated that he had attended a doctor's appointment at the Derbarl Yerrigan Health Service in the morning of 29 May 2015, of which he had one or two days' notice, and of which he had not informed his CCO. He said that his mobile telephone was switched off while he was at the doctor's, and that he did not see any messages when he switched it on as he did not have any credit. The respondent further stated that he had received bad news in relation to a relative's health. He said that he had missed the appointment because he forgot about it as there were too many distractions.
I took it to be common ground before me that the respondent was in custody for part of 10 June 2015 while he was interviewed, prior to his release on bail.
The Derbarl Yerrigan Health Service is located in East Perth, in close proximity to the Central West Community Correction Centre, where the respondent was due to report for supervision.
A Senior CCO, Ms Cassie McNally, repeatedly attempted to contact the respondent by telephone throughout the day, but was unable to do so. At 2.58 pm the respondent telephoned the central monitoring station and inquired whether it had tried to contact him earlier that day.
The material facts in respect of the offence in the Condition [25] prosecution I so found were these.
On 16 June 2015 the respondent was instructed to undergo urinalysis as he was obliged to do, pursuant to Condition [35] of the supervision order. The respondent provided a urine sample, as instructed, which was subsequently analysed by PathWest.
On 19 June 2015, results of the tests were received and identified a positive reading for methylamphetamine and amphetamine.
The respondent was arrested and conveyed to SOMS, where he participated in an electronically recorded interview, during which he declined to comment.
The results of the urinalysis established that, either on 16 June 2015 or on a date unknown shortly before 16 June 2015, the respondent contravened Condition [25] of his supervision order by consuming either methylamphetamine or methylamphetamine and amphetamine.
The aggravating factors in respect of the offences in the prosecutions were as follow.
There were two aggravating factors in respect of both offences. There was a further, third, aggravating factor for the offence in the Condition [25] prosecution.
The two aggravating factors for both offences were these.
One was that the respondent had received specific warnings about the possibility of proceedings of this kind in respect of non‑compliance or contravention with or of the supervision order previously to the offending. Those specific warnings took two forms.
One form was two prosecutions against the respondent, in the Magistrates Court, which resulted in convictions and sentences, albeit of different types, the most recent of those sentences being a less serious penalty than the earlier one.
The other form of warning was warning letters the respondent had received in respect of concerns the Department of Corrective Services had about contravention or possible contravention of requirements of, or conditions in, the supervision order. Those matters appear from exhibit 1, particularly at page 185, part of a report by Ms McNally to which I will return.
The two offences of which the respondent was convicted and for which the respondent was sentenced, on both occasions by Heath CM, appear in exhibit 1 (pages 71 ‑ 88; 89 ‑ 100) for contraventions on 18 October 2014 and 13 July 2014, respectively.
The contravention on 13 July 2014 was of Condition [39] of the supervision order, which required the respondent to have no contact with any child under the age of 16 years, whether such contact is in person, in writing, by telephone or by electronic means unless:
a).the contact is authorised in advance by a CCO and such contact supervised at all times by an adult approved in advance by a CCO.
The respondent had contact with children under the age of 16 years at an address of a relation. There were 12 children present, between the ages of 18 months and 16 years, all of whom were relatives of the respondent and to whom he was introduced. At some point he took photographs of himself with the children on his mobile telephone. The respondent had not contacted his CCO to obtain advance approval to have contact with the children. However, the contact was in the presence of other adults. The respondent's explanation was that he thought he could have such contact if he were not on his own.
At the sentencing by Heath CM on 5 August 2014 on the respondent's plea of guilty, he received a fine of $1,000 with costs. Heath CM accepted that the respondent had reported the contravention and not attempted to delete the photographs, while there was nothing suggestive in them. Heath CM further accepted that the case officer had come to the view the contravention was not deliberate or deceitful, having arisen out of confusion over the conditions. However, Heath CM affirmed that it was 'very important that you comply strictly with all of [the conditions in the supervision order]' (5 August 2014, ts 8); and he confirmed 'the importance to you now to be very familiar with all of those conditions' (ts 9).
The contravention of 18 October 2014 was also of Condition [39].
On that day the respondent was at a shopping centre when he was approached by a female who was looking for her two small children, a girl aged 5 and a boy aged 9. The respondent walked around the centre for about 15 minutes looking for the children. He also went into toilet blocks looking for the young boy. The children were eventually located by the woman at her vehicle in the car park. She asked the respondent to speak to the children to tell them not to run away from their mother. He spoke to them in those terms while they were in the vehicle. The respondent then accompanied the woman back to the shopping centre and informed security offices of the situation after waiting with the woman and the children. He again spoke to the children about not running away from their mother. After the mother and her children had left the centre the respondent spoke to security officers, informing them of the nature of his previous convictions and supplying his personal details. He was interviewed by officers of SOMS and made full admissions. He stated to them he believed he had done the right thing and would do it again.
At the sentencing by Heath CM on 14 January 2015 on the respondent's plea of guilty he received a 6 month conditional release order in the sum of $1,000. Heath CM accepted that had it not been for the admissions the respondent made to security offices his actions would not have come to light as they had done. He also accepted that the respondent had acted honourably and honestly. However, Heath CM further indicated that the respondent was aware of the conditions and restrictions imposed upon him. Overall, there was a need 'to keep the balance between the need to enforce the provisions of the [DSO Act], but to take into account the individual circumstances' (14 January 2015, ts 10).
While those contraventions were ones that might, especially having regard to the penalties imposed, be regarded as of lower seriousness than the contraventions the subject of the prosecutions, nonetheless the respondent had had exposures to the criminal justice system that would have brought home to him the importance of not contravening the supervision order.
Warning letters had been issued to the respondent on at least two occasions. One letter, reminding the respondent of the importance of compliance, followed indications that on 1 August 2014 the respondent had been in contravention of the Metropolitan Inclusion Zone, which was a zone put in place to ensure that the respondent did not leave the metropolitan area without the permission of his CCO. The other letter followed him, on 29 September 2014, not returning home by his amended curfew commencement time.
The second aggravating factor that applied to both of the offences in the prosecutions was that the offence in each case was of a deliberate character. That is, I was satisfied beyond a reasonable doubt that the respondent had made a choice in each case. This was clearer, perhaps, in respect of the drug offence. However, they were both not, in any sense, inadvertent contraventions. These were not, in any sense, matters in which it had not been possible for the respondent to have taken account of the warnings the respondent had received in the two forms described.
There was a further aggravating factor specific to the drug offence. This was that the consumption matter was associated with one of the factors that itself was associated with the respondent's serious sexual offending. That association had been made very clear in my decision as a result of which the respondent was placed on the supervision order: DPP v Comeagain [No 5], see especially [82] ‑[96]. The respondent could have been under no misapprehension as to the importance assigned for the purposes of the supervision order as a protection of the community to that particular provision in Condition [25] of the supervision order about use or consumption of drugs.
The mitigating factors for the offending in the prosecutions were five.
One was the respondent's pleas of guilty to that offending at the earliest reasonable opportunity.
Another matter of mitigation was the genuine and significant expressions of remorse in respect of that offending the respondent had made.
Still another matter of mitigation was the respondent's cooperation with authorities in the prosecutions. In respect of the offence in the Condition [5] prosecution the respondent had drawn to the attention of the authorities that he was concerned whether they had been trying to contact him, as they had. In respect of the offence in the Condition [25] prosecution the respondent had not sought to avoid being tested under the urinalysis provisions of the supervision order.

A further matter of mitigation was the respondent's history of compliance with the supervision order over a period of a little less than a year. This was after account was taken both of the offences for which Heath CM had sentenced him and the matters giving rise to the warning letters.
A final matter of mitigation was the respondent's experience of his most recent custody as altogether more onerous than his previous experience of custody.

The evidence in the Part 2 Division 4 proceedings

DSO Act s 42(2) ‑ (4) provides for evidence in an application under s 23. Those subsections do so as follows:
(2)Before the court makes a decision or order on the hearing of an application it must, if the evidence is admissible -
(a)hear evidence called by the DPP; and
(b)hear evidence given or called by the offender or person subject to the order, if that person elects to give or call evidence.
(3)Except as modified by subsection (4), ordinary rules of evidence apply to evidence given or called under subsection (2).
(4)In making its decision, the court may receive in evidence -
(a)any document relevant to a person's antecedents or criminal record;
(b)anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.
At the hearings on 29 and 30 October 2015, four documents were tendered into evidence by consent.
Exhibit 1, entitled 'Book of Materials for Contravention Proceedings under Section 23 Dangerous Sexual Offenders Act 2006 Listed on 5 October 2015' and dated 29 October 2015, has previously been referred to. It contained among other things the report of each of the two psychiatrists provided for by my orders on 14 July 2015.
One such report by Dr Peter AE Wynn Owen, dated 22 September 2015, was exhibit 1.28 (pages 141 ‑ 152) (Dr Wynn Owen's report of September 2015).
The other such report by Dr Gosia Wojnarowska, dated 24 September 2015, was exhibit 1.29 (pages 153 ‑ 173) (Dr Wojnarowska's report of September 2015).
Exhibit 1 also contained, among other things, two further reports.
One, entitled 'Dangerous Sex Offender Treatment Progress Report', by Dr Ben Bannister, dated 11 September 2015, was exhibit 1.30 (pages 175 ‑ 180) (Dr Bannister's report of September 2015). Dr Bannister was a forensic psychologist.
The other report, entitled 'Community Supervision Assessment Report', by Ms McNally, dated 18 September 2015, was exhibit 1.31 (pages 181 ‑ 190) (Ms McNally's report of September 2015).
Exhibit 2 was a document entitled 'DSO Treatment Progress Report - Addendum', by Dr Bannister, dated 26 October 2015 (Dr Bannister's addendum report of October 2015).
Exhibit 3 was a document entitled 'Community Supervision Assessment Addendum', by Ms McNally, also dated 26 October 2015 (Ms McNally's addendum report of October 2015).
Exhibit 4 was a letter dated 13 July 2015 from Ms Joanne Della Bona, Executive Director, Moorditch Gurlongga Association Inc, concerning a possible offer of supervised voluntary employment to the respondent.
At the hearing on 8 March 2016, a further document was tendered into evidence by consent. It was exhibit 5, entitled 'Book of Materials for Contravention Proceedings under Section 23 Dangerous Sexual Offenders Act 2006 Listed on 8 March 2016' and dated 2 March 2016. It contained, among other things, a further report from each of the two psychiatrists, Dr Wynn Owen and Dr Wojnarowska.
Dr Wynn Owen's report, dated 22 February 2016 and entitled 'Update Psychiatric Report', was exhibit 5.16 (pages 43 ‑ 50) (Dr Wynn Owen's update report of February 2016).
Dr Wojnarowska's report, dated 28 February 2016 and entitled 'Addendum Report', was exhibit 5.17 (pages 51 ‑ 57) (Dr Wojnarowska's addendum report of February 2016).
Exhibit 5 also contained, among other things, two further reports.
One, a further report by Dr Bannister dated 23 February 2016 and entitled 'Addendum', was exhibit 5.14 (pages 31 ‑ 35) (Dr Bannister's addendum report of February 2016).
The other report, entitled 'Community Supervision Assessment Report', by Ms Lisa Rathmann, dated 2 March 2016, was exhibit 5.15 (pages 37 ‑ 42) (Ms Rathmann's report of March 2016). Ms Rathmann was a senior CCO.
Dr Wynn Owen, Dr Wojnarowska, Dr Bannister and Ms McNally also testified before me at the two day hearing on 29 and 30 October 2015. The first three and Ms Rathmann testified before me at the hearing on 8 March 2016.
No other witnesses testified.

The law applicable to the Part 2 Division 4 proceedings

DSO Act s 23 provides as follows:
(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.
An order under DSO Act s 23(1)(b) is called a 'Division 4 continuing detention order': s 3(1) 'Division 4 continuing detention order'.
The law applicable to proceedings such as the Part 2 Division 4 proceedings has been stated in detail in TJD v The State of Western Australia [2014] WASCA 10. I extract the following propositions from TJD. I consider there can be no contest as to my formulation, as propositions 1 to 10, below.
1.The power in DSO Act s 23 is based on an existing, standing, positive finding that a person is a serious danger to the community within s 7, and there is no power, express or implied, to review that finding in proceedings like the Part 2 Division 4 proceedings: TJD [47] (McLure P, Buss & Mazza JJA agreeing).
2.The condition that enlivens the power to make an order under s 23(1)(a) is the satisfaction of the court on the balance of probabilities that the person the subject of that order is likely to contravene, is contravening or has contravened a condition of a supervision order; while s 23(1)(a) contemplates the continuation of a supervision order and the making of any other order as there described, but does not extend to rescinding or setting aside a supervision order: TJD [48].
3.The conditions that enliven the power to make an order under s 23(1)(b) are two: first, that in proposition 2; and, second, the satisfaction of the court that there is an unacceptable risk that, if a Division 4 continuing detention order were not made, the person who would otherwise be the subject of that order would commit a serious sexual offence: TJD [48] ‑ [49]. It follows, of course, that the satisfaction of the condition in proposition 2 above without the satisfaction of the second of the present conditions would mean that an order under s 23(1)(a) is the appropriate order, not one under s 23(1)(b).
4.The second condition in proposition 3 above differs from the meaning of 'serious danger to the community' in s 7(1), which reads as follows:
Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
5.The difference in proposition 4 above is in two respects: first, under s 7(1) there must be a positive, objective finding of fact by the court that the person is a serious danger to the community, while the second condition in s 23(1)(b) is a subjective test, requiring only that the court be satisfied (no doubt on reasonable grounds) that there is a relevant unacceptable risk; and second, there is the consequence of such satisfaction in proposition 6 below, while the consequence of a positive objective finding of serious danger to the community is that a choice, between a continuing detention order (see s 17(1)(a)), or retaining one (see s 33(2)(a)), on the one hand, and a suspension order (see s 17(1)(b) and s 33(2)(b)), on the other, must be made: TJD [49];
6.The power in s 23(1)(b), once enlivened, must be exercised, that is, the court is then under a duty to exercise it: TJD [49], [51].
7.The standard of proof of the condition in proposition 2 above is the balance of probabilities, the civil standard, applying Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J): see TJD [58]. The reference to Briginshaw I understand to be to the well understood principle that the civil standard, understood as 'reasonable satisfaction', is
not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
8.TJD [53] ‑ [54] indicate it has not yet been resolved whether the standard of proof of the second condition in proposition 3 above is the balance of probabilities or the standard provided for in s 7(2), which is as follows:
The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
9.The matters listed in s 7(3)(a) ‑ (j) as ones to which the court 'must have regard' for the purpose of deciding whether to find a person is a 'serious danger to the community' are not mandatory relevant considerations for the purpose of determining the satisfaction of the condition in proposition 2 above: TJD [59].
10.However, proposition 9 must be understood having regard to the following from TJD [60]:
There being an existing standing finding that an offender is a serious danger to the community, which finding is not reviewable in a s 22 application, the focus of attention must necessarily be on events and circumstances arising after the supervision order was made. That includes any additional psychiatric or other expert evidence obtained for the purpose of the s 22 application. It is also the case that the judge hearing the s 22 application would need to have regard to the matters on which the court relied in making the relevant previous decision(s) under the DSO Act relating to the offender. However, that does not mandate de novo consideration of the source material addressing the s 7(3) matters. That information can be obtained by reading the decisions that resulted in the making of the original order under s 17 and any subsequent review decisions. Whether or not it is necessary in a particular case to have regard to any source material on which earlier decisions are made will depend upon the circumstances of the case. However, the matters in s 7(3) are not mandatory relevant considerations by force of the DSO Act itself.
I add the following about propositions 1 to 10.
I note for the purpose of proposition 2 that the satisfaction is as to a contravention, likely, present or past, and there is no element of a lack of, or any defence of the presence of, a reasonable excuse, unlike in relation to an offence under s 40A. However, it also seems to me that at least some matters of that kind may in a suitable case be expected to be taken into account in determining whether the power in s 23(1)(b) has been enlivened.
Following from proposition 7 above, I have noted and re-read the decision that resulted in the making of the continuing detention order which I rescinded when I made the supervision order. I have also noted and re‑read the subsequent review decisions. All of those decisions up to DPP v Comeagain [No 5] are referred to in that decision at [15] ‑ [20] as follows:
The continuing detention order was made by McKechnie J under DSO Act s 17(1)(a). McKechnie J's reasons are Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235. The order was made on 22 October 2008.
The DPP must apply for annual reviews of a person's detention under a continuing detention order as provided for in DSO Act s 29. The provision I have previously set out for the present review, s 33 [an exceptional circumstances review], is the same provision for annual reviews.
On 17 December 2009, on the first annual review, Murray J expressly declined to rescind the continuing detention order (DPP v Comeagain, first annual review). See Murray J's reasons in transcript 17 December 2009, ts 308 - 310.
On 25 January 2011, on the second annual review, Blaxell J expressly declined to rescind the continuing detention order. Blaxell J's reasons are Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16.
On 6 July 2012, on the third annual review, Commissioner Sleight expressly declined to rescind the continuing detention order. Commissioner Sleight's reasons are Director of Public Prosecutions (WA) v Comeagain [No 3] [2012] WASC 245.
On 23 July 2013, on the fourth annual review, Jenkins J expressly declined to rescind the continuing detention order. Jenkins J's reasons are Director of Public Prosecutions (WA) v Comeagain [No 4] [2013] WASC 297.
On 24 June 2014 I rescinded the continuing detention order and made the supervision order: see DPP v Comeagain [No 5]. This is the last of the decisions to which TJD [60] relates and I have re‑read it.

Events and circumstances arising after the supervision order was made

In what follows I principally set what is not in contest as to events and circumstances arising after the supervision order was made. I do so having regard to the matters on which the court relied in making the relevant previous decisions under the DSO Act relating to the respondent. The following then are further findings of fact I have made.
I begin by noting that the condition in proposition 2 above has been met. I am satisfied on the balance of probabilities that the respondent contravened a condition of the supervision order on two occasions, on 29 May 2015 and on or about 16 June 2015, the subjects of the Condition [5] prosecution and the Condition [25] prosecution respectively. See my use of findings of fact I made in the prosecutions.
I further note from those findings the two earlier contraventions, of Condition [10] of the supervision order concerning contact with children, for which the respondent was sentenced. They were the contravention of 13 July 2014 and the contravention of 18 October 2014.
I further note the following factual matters which appeared not to be in contest and which I find.
The contravention of 29 May 2015 concerning the missed appointment with his CCO the subject of the Condition [5] prosecution was associated with the respondent giving priority to attending a doctor's appointment, which had been for his partner, Ms Winter. This priority was in the context of an argument they had had arising from his telling her of his infidelity.
The contravention of on or about 16 June 2015 concerning substance use the subject of the Condition [25] prosecution was connected with the contravention of 29 May 2015 in that the respondent concluded he was in trouble for missing one appointment, he had responded to that conclusion by using amphetamines approximately one week after missing the appointment, he and Ms Winter continued to argue and their relationship became strained. On an occasion when he was away from her an acquaintance offered him methamphetamine and he accepted the offer, knowing he was 'busted' and feeling stressed. The drug use on this occasion was the substance use in question.
Other stressors the respondent said he had felt at relevant times which might have contributed to both contraventions, that of 29 May 2015 and that of on or about 16 June 2015, included the terminal illness of an aunt and the health problems of an uncle.
On the respondent's return to custody following his arrest for the contravention concerning substance use, the subject of the Condition [25] prosecution, he had briefly terminated his relationship with Ms Winter. But the relationship is now on foot.
The respondent had used methamphetamine several times when in prison, but more recent test results, to the date of the hearing on 29 and 30 October 2015, for samples taken 9 and 10 October 2015, were clear of illicit substances. This was consistent with the respondent having told his treating psychologist, Dr Tara Yewers, that he intended to stop continued drug use in prison.
The respondent had also used an opiate in prison on one occasion, which he reported to Dr Yewers as a self‑harm attempt. That occasion also preceded the two sampling occasions of 9 and 10 October 2015.
All of those occasions of drug use were consistent with what the respondent had reported to Dr Bannister as to finding his return to custody something with which it was very, very difficult to cope.
I should note, however, that on 21 October 2015 the respondent refused to provide a sample, for which he was charged, to which he pleaded guilty, and for which he was sentenced.
A more recent testing history, of events since the hearing on 29 and 30 October 2015 to the date of Ms Rathmann's report of February 2016, was for the most part of results clear of illicit substances. This represented seven of the 12 events referred to in Ms Rathmann's report of February 2016.
However, two of the remaining five events were of positive results, one event for amphetamine and one for cannabis, for tests on 29 December 2015 and 11 January 2016 respectively. Another two events were of refusals to provide a sample, on 17 December 2015 and 19 February 2016, respectively.
The remaining event of the 12 was testing on 26 February 2016 for which results were pending.
On the evidence before me the respondent's bases for the refusals were differently reported to Dr Wojnarowska and to Dr Bannister.
The respondent had reported to Dr Wojnarowska during his interview for Dr Wojnarowska's addendum report of February 2016 that he had refused to provide samples because he knew the results would be positive.
The respondent had reported to Dr Bannister that the refusals were 'genuine in the sense he was not physically able to provide a sample for urinanalysis' within the 'timeframe' allowed (8 March 2016, examination‑in‑chief, ts 1608). However, Dr Bannister accepted he had not explored with the respondent the timeframe involved.
During the course of the respondent's time under the supervision order he had attended weekly supervision sessions with his CCO as directed, save for one occasion, on 15 January 2015, and save for the contravention on 29 May 2015 the subject of the Condition [5] prosecution. However, no charge had resulted from the earlier non‑attendance.
At the same time his engagement with his CCO during sessions he attended was described in Ms McNally's report of September 2015 as 'superficial'. Ms McNally was his CCO for the majority of his sessions. In Ms McNally's report of September 2015 she added that
[d]uring the sessions where his presentation was improved, [the respondent] would engage in conversation; however he provided limited information that offered little insight into his circumstances, well‑being or risk related matters (exhibit 1.31 page 182).

One example of lack of disclosure emphasised in Ms McNally's report of September 2015 was the respondent having been unfaithful to Ms Winter of which his CCO became aware from her, but not from him. It was not in contest that the relationship of the respondent with Ms Winter was understood, not least by the respondent himself, as of considerable significance under any arrangement like the supervision order, as support for it: see DPP v Comeagain [No 5] [5], [139], [207].
Also during the course of the respondent's time under the supervision order, but also extending into his time after his going into custody, the respondent had gone to appointments with Dr Yewers. Dr Yewers was a treating psychologist from the Forensic Psychology Service of the Department of Corrective Services. From 26 June 2014 to 11 September 2015, the date of Dr Bannister's report of September 2015, there had been 40 such appointments. During the first five months the respondent presented as hostile and contemptuous, being typically uncommunicative or offering cursory responses to questions.
However, for the bulk of 2015 to 11 September 2015 his contact with Dr Yewers, while continuing to be inconsistent, showed a diminution in overt hostility, in contempt, and in his tendency to negatively interpret neutral statements. These changes had resulted in more recent interactions that had generally been civil and contained.
From 15 September 2015 to 26 October 2015, the date of Dr Bannister's addendum report of October 2015, the respondent's therapeutic relationship with Dr Yewers continued to improve. Dr Yewers reported to Dr Bannister that the respondent presented as future focused and communicative, initiating discussion on relevant topics, demonstrating some insight into his internal state, and engaging in dialogue related to the therapeutic process. He demonstrated congruent affect, was responsive to questioning and on one occasion accepted a moderate degree of challenging. Dr Yewers further reported that the respondent had appeared to take on comparatively greater responsibility for his own actions.
It may be noted that the early history of the respondent's engagement with psychological counselling under the supervision order was consistent with the previous history of his engagement with psychological counselling that is referred to in DPP v Comeagain [No 5] [127] ‑ [128], and inconsistent with the indications the respondent gave to one of the psychiatrists who reported to and testified before the court in that proceeding: see [129], [135].
However, the more recent history of engagement to which I have referred, as well as the drug testing results for samples taken on 9 and 10 October 2015, were, I considered, of sufficient potential significance to warrant on 30 October 2015 granting the respondent's application for an adjournment of the hearing for a minimum of three months to permit further experience in both respects to be obtained and assessed.
I have previously referred to the drug testing history since the hearing of 29 and 30 October 2015.
As to the history of the respondent's engagement with psychological counselling since that hearing, Dr Bannister's report of February 2016 indicates that the respondent's therapeutic relationship with Dr Yewers had continued to improve. Dr Bannister's report of February 2016 also indicates that there had been elements of that continued engagement which represented a change from the respondent's previous level of participation and which boded well for his risk management. Those elements were four (Dr Bannister's report of February 2016 [17] ‑ [20]):
Firstly, he has continued largely active and meaningful engagement in psychological counselling with Dr Yewers, regardless of his mood state. This is important because it means that despite how he feels emotionally, it has generally not affected how well he is willing to engage in discussion on relevant topics.
Secondly, he has responded to moderate challenging by Dr Yewers. This is important because it means that he has been less able to dictate the narrative of sessions and has become more open to considering alternative points of view without resistance. As such, it allows for the increased possibility of addressing his problematic behaviour.
Thirdly, Mr Merritt has discussed topics with Dr Yewers that he has previously refused to. This is important because it demonstrates he is becoming comparatively more open to focusing on risk relevant factors.
Lastly, he has more readily acknowledged the connection between his drug use and offending. This is important because drug use is a criminogenic need for Mr Merritt and it is crucial that he recognises it as such, as this will make his risk management more likely to be successful.
As I will indicate, at the adjourned hearing on 8 March 2016 Dr Bannister testified that the first of these was 'perhaps' the most important, for the reasons he indicated and which I will refer to.
I will also indicate, however, that it is important in my view to note the qualifier 'generally' in that first element. This in my view is illustrated by the character of the respondent's latest interaction with Dr Wynn Owen to which I also refer below.
Finally, I note as to the history under the supervision order that there were further incidents drawn to my attention.
Two of those incidents were of contraventions of, respectively, an exclusion zone and of the curfew requirement under the supervision order. I have already referred to those two incidents as ones for which warning letters were sent to the respondent.
There were five other contraventions to which my attention was drawn.
One was a failure to attend a 'supervision appointment' (apparently an appointment with the respondent's CCO) on 15 January 2015 to which I have previously referred.
Four others were a failure by the respondent to keep his GPS handheld device on him on four occasions between 7 December 2014 and 11 December 2014. He was required to keep that device on him under Condition [4] of the supervision order (see also Condition [29] read with DSO Act s 19A).
There was a further incident, not clearly involving a contravention, to which my attention was also drawn. It was a failure to attend a psychological appointment on 9 December 2014. That failure resulted in a 'written lawful instruction' directing the respondent to comply with his psychological appointments, an instruction apparently issued under Condition [4].
It should also be noted, however, that none of those incidents to which my attention was drawn resulted in a charge against the respondent.
With the exceptions noted as contraventions without charge, and the four for which he was prosecuted, I consider the respondent should be treated as compliant with the supervision order over the period 24 June 2014 to 19 June 2015, the date on which he was taken into his present custody.
The quality of his compliance is, however, a different matter, in respect of his engagement with his CCO and with Dr Yewers. The former, under the supervision order, was generally of a low standard, while the latter, which had initially been poor, had improved in the second half of the supervision order and has continued to improve while the respondent has been in custody.

The qualifications and experience of the two psychiatrists, Dr Wynn Owen and Dr Wojnarowska

Dr Wynn Owen's qualifications and experience are set out in DPP v Comeagain [No 5] [65] and also appear in Dr Wynn Owen's report of September 2015.
Dr Wojnarowska's report of September 2015 indicates she is a medical practitioner with a speciality in psychiatry and a sub‑speciality in Forensic and Child and Adolescent Psychiatry and has 10 years' experience in forensic psychiatry. She has completed training in the assessment, including as to the offending risk and the treatment, of dangerous sexual offenders. She has presented reports under DSO Act s 37.
No objection was taken to Dr Wynn Owen's or Dr Wojnarowska's qualifications as experts to express, in their reports and in their testimony, the opinions I describe.
Dr Wynn Owen interviewed the respondent in September 2015 for approximately two hours. He reviewed the Book of Materials for Psychiatrists for Contravention Proceedings dated 12 August 2015 under DSO Act s 23; a Treatment Progress Report by Dr Bannister; urinalysis analysis results for 9 July 2015 to 20 September 2015; and DVDs of four police interviews with the respondent, on 15 July 2014, 21 October 2014, 10 June 2015 and 19 June 2015. Dr Wynn Owen also had a teleconference with Dr Bannister, Dr Yewers, Ms McNally and Dangerous Sexual Offenders Coordinator Ms Amy Sykes. He also had separate telephone discussions with Ms McNally and Dr Yewers, respectively.
Dr Wynn Owen reviewed Dr Bannister's addendum report of October 2015.
Also, following the hearing on 30 October 2015, and for the purposes of the hearing on 8 March 2016, Dr Wynn Owen considered, among other things, the following further source material: the respondent's drug test history from 30 October 2015 to 2 February 2016, covering nine of the 12 events I previously referred to; an interview with the respondent in February 2016 of approximately 50 minute; a teleconference with Ms Rathmann, Dr Bannister and Dr Yewers; and separate telephone discussions with Ms Rathmann.
Dr Wynn Owen had been one of the two psychiatrists who prepared reports for, and testified for the purposes of, the exceptional circumstances review of the respondent's detention under the continuing detention order. That review resulted in DPP v Comeagain [No 5]. In Dr Wynn Owen's report of September 2015 he indicates he compiled that report not only from the sources already listed up to that date but also from documentation and information he noted in his report for that review: see the description of that documentation and information in DPP v Comeagain [No 5] [67], [69].
For her part, Dr Wojnarowska interviewed the respondent on 5 September 2015 for two hours. She reviewed the Book of Materials dated 12 August 2015; the supervision order; the substance use test results from 20 June 2015 to 13 August 2015; a letter from the DPP to the Department of Community Services dated 12 August 2015; and two discs of interviews, dated 10 June 2015 and 19 June 2015. She also had a meeting with Dr Yewers and Ms McNally. Further, she had a meeting with counsel for the DPP who appeared before me and with Dr Wynn Owen.
Dr Wojnarowska reviewed Dr Bannister's addendum report of October 2015.
Following the hearing of 30 October 2015, and for the purposes of the hearing on 8 March 2016, Dr Wojnarowska considered, among other things, the following further source material: an interview with the respondent in February 2016 of one and a half hours; Dr Bannister's addendum report of February 2016; communications with Dr Yewers; the respondent's drug test history of events since 30 October 2015 to the date of Ms Rathmann's addendum report of February 2016, comprising the 12 events referred to above; and a phone conversation with Ms Rathmann.
Dr Wojnarowska had not been a reporting or testifying psychiatrist for any of the proceedings in respect of the making of the continuing detention order or the review of detention under it. However, she reviewed the Book of Materials for each of the proceedings that resulted in the continuing detention order and the second through fourth annual reviews as well as the exceptional circumstances review.
I now review the opinions of both psychiatrists and the bases for those opinions that in my view are relevant to the nature and level of the risk of the respondent committing a serious sexual offence if the respondent were not detained under a Division 4 continuing detention order and the manageability of that risk (see DSO Act s 23(1)(b)); and relevant to any amendments to, or other orders for the respondent's release under, the supervision order (see DSO Act s 23(1)(a)).

The opinions of Dr Wynn Owen

Dr Wynn Owen's opinion as to the respondent's present risk of reoffending was expressed as follows (29 October 2015, examination‑in‑chief, ts 1380):
Dr Wynn-Owen, how would you say, does Mr Merritt's risk of sexual reoffending compare to his risk in 2014, when you last reviewed him? Has anything changed in relation to the risk?‑‑‑Mr Merritt, in my opinion, is of high risk of serious sexual offending and my opinion has not changed. The presence of ongoing amphetamine use and potentially of relationship instability are factors which have to be taken into account, in addition to underlying psychopathy as part of the overall burden of risk. So at least the same level of risk of reoffending is currently present, and that is affected by the dynamic factors that I've mentioned.
So you would say at least the same level of risk?‑‑‑Yes.
But you can't really comment on whether the quantum has changed in any way?‑‑‑If anything, I would say the risk potentially is slightly higher, in that although a highly structured supervision program was in place, that that supervision was not effective in the management of the avoidance of ongoing amphetamine use, or of other breaches.
I took the nature of the risk so assessed to be that which I indicated in DPP v Comeagain [No 5]. Dr Wynn Owen had testified to in those proceedings. That risk was of serious sexual offences against adult female victims involving significant violence and a minimum of social interaction before the offending: see [196] read with [176] ‑ [177].
I further took that opinion to be as to a risk of reoffending to include the allowance for management under the supervision order, as indicated.
The principal bases for Dr Wynn Owen's opinion appear from the following testimony (29 October 2015, cross‑examination, ts 1392):
Now, in your evidence you said it's the presence of ongoing use, the relationship instability and those factors taking into account the underlying psychopathy. That, in essence, is the three core reasons as to why you say your opinion hasn't changed about the level of risk; is that correct?‑‑‑Yes.
Dr Wynn Owen explained the relevance of drug use to a risk assessment of that kind as follows (29 October 2015, examination‑in‑chief, ts 1383):
Dr Wynn-Owen, at page 145 of the book of materials, which is page 5 of your report, you refer to your recommendations in relation to the annual review last year and in relation to drugs, your recommendation was random drug screening to support abstinence and (positive) tests to trigger risk assessment?‑‑‑Yes.
Have you got that?‑‑‑Yes.
Why did you recommend that last year?‑‑‑Because it was my - it is my opinion that if Mr Merritt is using amphetamines on a regular basis, that this actually makes his risk level higher. The intoxication would be associated with impulsivity and the high likelihood of aggressive acts.
When you say intoxication, do you mean intoxication with amphetamine or methamphetamine?‑‑‑With methamphetamine or amphetamine, yes.
So was it effectively your view that any positive test should trigger a new risk assessment?‑‑‑Absolutely my view, yes, because I believe that not only was the presence of the amphetamine in and of itself likely to increase risk, but it was also a strong indicator of a problem with managing other stressors, and some of those stressors may have already led down a path towards potential offending, in terms of the type of thinking that Mr Merritt was undertaking at the time and other behaviours.
Dr Wynn Owen testified as to the respondent's relationship with his partner Ms Winter as 'probably' a protective factor where, as I have indicated above, it had had its ups and downs. He so testified as follows (29 October 2015, examination‑in‑chief, ts 1386):
I would like to ask you a few questions about your summary, which commences at page 150. You state at the bottom paragraph that Mr Merritt's relationship with his partner is probably a protective factor. Is there anything that - is there a reason why you say 'probably' as opposed to is a protective factor?‑‑‑The ‑ ‑ ‑
Because, clearly, he has a partner who is quite supportive of him. Why do you believe it's probably a protective factor?‑‑‑The work that has been done around the protective nature of cohabiting and intimate relationships for the males in those relationships has not been about specific individuals. It has been in studies of large cohorts of people, including offenders, and so there is good information around general reoffending as well as some information around sex offending. However, there's not a body of work looking specifically at psychopathy and it's usually relationships of a duration of at least a year that are taken into account - a relationship of a much longer period but a prison to community relationship with a much more recent 11-month cohabiting relationship which has had its ups and downs is why I've said 'probably'.
All right?‑‑‑And I don't know that we can definitely say that this relationship has been protective.
Dr Wynn Owen gave his opinion as to whether or not the risk I have described could be managed under a supervision order and the basis of that opinion as follows (29 October 2015, examination‑in‑chief, ts 1389 ‑ 1390):
All right. Is it your view that at this point in time Mr Merritt's risk of sexual reoffending can be managed on a supervision order?‑‑‑I don't believe so.
Why?‑‑‑I believe that the inability to disclose when problematic issues arise, the willingness to not only not disclose but to commit illegal acts whilst in the community demonstrates an ongoing flaunting of the laws of the land and, in particular, the use of amphetamines and the associated intoxication, impulsivity, poor planning puts the risk of any sort of opportunistic offence significantly higher than it would be without that.
What sort of changes on Mr Merritt's part would you consider to be necessary for his risk to be manageable in the community?‑‑‑I think Mr Merritt would have to demonstrate compliance with a supervision regime.
Yes?‑‑‑And I don't mean for a couple of months.
All right. Do you remain of the view that, because at the last hearing you said that there should be random testing for drug use and if a positive sample came back then that would - a risk assessment would be appropriate ‑ ‑ ‑ ?‑‑‑I think, and I have stated many times, intoxication is a dynamic factor which elevates risk in the face of what is already a high risk. So I believe that it's only appropriate that risk management is dynamic as well and that we review risk in the face of any issue that may potentially elevate risk.
And that would be your view if Mr Merritt were to be released to supervision again either now or in the future?‑‑‑I believe that if there were limited compliance with the supervising team, in particular with the psychologist, I would have the same reaction.
Dr Wynn Owen was asked in cross-examination why, if there had been no change in the factors relevant to the respondent's manageability arising out of his psychopathy, Dr Wynn Owen agreed that the respondent was 'no less degraded' as to lying and reliability of information currently than at the time of his release on the supervision order in June 2014. That was the subject of the following exchange (29 October 2015, cross‑examination, ts 1394 ‑ 1395):
So insofar as you talk about lying and reliability of information, we are no less degraded in that respect than we were on the day he was released in 2014?‑‑‑No, that is taking it out of context. The context is there is the presence of psychopathy and there are the behaviours that have occurred over the 12 month period, in which we have expected no behaviours of an illegal nature and no behaviours that were in breach of a series of conditions. That would have been the expectation that was set at the time of release. So I think that they are different circumstances because of those facts.
They may be interpreted differently, but their significance in terms of manageability are not less - no change - have not changed?‑‑‑Well, don't they give us an indicator as to whether or not the structures we're using have indicated manageability or not. If we were looking at something that had been wholly manageable, (1), the breaches would not have occurred. (2) There would have been disclosure about the level of stress and/or distress that would have enabled intervention. And, (3), the hostile injection that had occurred for the first three to five months would not have occurred.

Dr Wynn Owen gave his view of the signs of improvement in the respondent's relationship with Dr Yewers as follows (29 October 2015, examination‑in‑chief, ts 1386 ‑ 1388):
And I note that in your report you refer to Mr Merritt's counselling with Dr [Yewers]. At page 151 of the book of materials, you - at the second paragraph you say that limited communication with a supervising team gives little or no opportunity to monitor Mr Merritt's reoffending risk. However, I note that the level of engagement with Dr [Yewers] has improved over the last six months, notwithstanding this improvement t[w]o significant breaches of conditions that have occurred. Now, in relation to Mr Merritt's engagement with Dr [Yewers], first of all, have you had the opportunity to read the updated treatment progress report by Dr Bannister?‑‑‑I've scanned it. I've only received it very recently, as did most people. So I've read through it once.
Do you need the opportunity to read it again?‑‑‑No. I don't.
The treatment progress report or the updated treatment progress report by Dr Bannister indicates that recently Mr Merritt's engagement in counselling has been positive?‑‑‑Yes.
And, certainly, improved to what it was before?‑‑‑Yes.
With that in mind, can you - do you have a view on whether the counselling relationship between Dr [Yewers] and Mr Merritt has now improved to a degree that would enable supervision to be a bit more effective, because he would be more willing to disclose problems, stress factors, things that are going on in his life?‑‑‑The counselling relationship over time has been very variable and has moved from outright hostility and difficulty completing more than a couple of minutes of contact through to something which has been more engaged. It has been very much at Mr Merritt's bidding, in the sense that he has made the decision as to the quality of that relationship. I would imagine that while I absolutely acknowledge there had been some change in the engagement in the six months prior to his return to prison, I would imagine that the step-up in engagement that has occurred more recently in prison is about leaving prison and it's about Mr Merritt being very, very clear that there needs to be a strong quality of engagement demonstrated if there's any chance for him being released. Immediately after release, Mr Merritt was so hostile and detached that I think probably, if I had been part of a team involved in that sort of monitoring, I would have wanted to reassess risk immediately and if somebody had refused to comment on their sexual thinking and sex life as a sex offender, I would have said, 'Well, then we cannot monitor you and we must now review your supervision conditions.'
All right?‑‑‑I wouldn't be at all surprised if that were to recur on release.
Did you discuss with Mr Merritt his counselling sessions or his - perhaps I should say - general rapport with Dr [Yewers] at all?‑‑‑I did. Yes.
What was his view - what was Mr Merritt's view about that particular relationship or the rapport he has been able to establish with Dr [Yewers]?‑‑‑Mr Merritt stated that he understood why the sessions were occurring. He stated that he understood that there were - or he had an opinion there were some things which could be discussed in that arena and some not, and he made the point to me that he had actually disclosed an unpleasant event from his childhood, some physical and psychological abuse which he had found very difficult on one occasion as part of demonstrating his willingness to engage. I have to say that in discussions with Mr Merritt that superficially there is a lot of - sort of, a sense that there is a lot of substance to what's happening and when the surface is scratched, there is not a lot of rationale given for particular decisions or behaviours.
Did Mr Merritt indicate to you that he had made any gains, specifically, in relation to counselling?‑‑‑No.
Did he indicate whether he had a specific problem with Dr [Yewers] or whether he had a difficulty just with a counselling process in general? What I'm getting at is, is there a possibility that it was perhaps just a personality clash between him and Dr [Yewers] which perhaps prevented a rapport from being established or did he give you any clues or any indication in relation to that?‑‑‑I think there is definitely a personality issue in the establishment of rapport and establishment of rapport in the presence of psychopathy is sometimes impossible and is nearly always the relationship and the engagement quality is completely controlled by the individual, not by the therapist. That's unlikely to change. The impression I got was not that the individual was the issue. It was more the onerous requirement to engage in counselling.
But when you say that an obstacle to establishing a rapport is the psychopathy ‑ ‑ ‑ ?‑‑‑Yes.
Dr Wynn Owen acknowledged that there were further signs of a greater level of engagement referred to in Dr Bannister's addendum report of October 2015, but added that on what he understood of that document the 'quality and motivation are not explored' (30 October 2015, cross‑examination, ts 1456). He testified as to the view ascribed to Dr Wojnarowska that it did not matter why there was a better engagement but rather that there was a better engagement as follows (30 October 2015, cross‑examination, ts 1457):
But Dr Wojnarowska gave evidence, and I'm summarising. I'm sure his Honour or my learned friend will correct if I am summarising it incorrectly. Dr Wojnarowska gave evidence that in fact it wouldn't matter why there was a better engagement. What matters is that there is a better engagement?‑‑‑In the absence of psychopathy that's absolutely true, but there is literature which relates to improved engagement in some cases hiding increased risk, so there being no direct link between improved engagement and increased risk in some people with psychopathy.
Dr Wynn Owen accepted that there could be gains in the form of a reduction of risk or the manageability of risk or both even in such cases as he described, but did so in the following terms (30 October 2015, cross‑examination, ts 1359 ‑ 1360):
Can I turn then to, with the caveats you've already clearly given, if it doesn't matter, why it might not matter that someone is not necessarily engaging in a treatment therapy motivation as opposed to a 'I want to get out of jail' motivation? What is it that would come from that engagement that would mean it wouldn't matter, the motivation behind it?‑‑‑If the recurrent conversations and the interest being demonstrated by the therapist and the awareness being demonstrated by the therapist were able to model a behaviour that was then successfully incorporated by the individual notwithstanding their resistance. So it may be a conscious or unconscious choice that somebody thinks, 'I'm going to do this because it will get me out', but there is an opportunity within that, because one is actually listening, where one perhaps wouldn't, and listening and incorporating, there is the possibility that one still makes gains.
So unwitting learning, in a way?‑‑‑Correct.
There's also, and I know you've given evidence in a similar way to this in another matter just this week, that there might be unwitting disclosure, is that correct, of information that's useful to risk management?‑‑‑In the interaction between the therapist and the individual it's not always a therapeutic interaction. There is a sharing of information. There's always the potential for that and, in fact, in the presence of psychopathy particularly, people who have a lot of the facet 1 characteristics, they can at times reveal significant information without needing to, just if given the opportunity to talk.
So even if - sorry - which would be an improvement in manageability, having a dialogue, as opposed to the description that we've had of Mr Comeagain before, which is he's aggressive and - aggressive is the wrong word - he's unengaged. Some sessions have gone for five minutes, barely able to ‑ ‑ ‑ ?‑‑‑I think the word that Dr [Yewers] used was 'hostile' in her report.
Hostile. Thank you?‑‑‑However, you are correct, and one would have to, as the treating team or the managing team, take care not to become complacent. So one would have to be considering the therapeutic versus the many contact gains that were being made, and to try and differentiate that. And that is a subtlety that relates very much to the individual therapist and their understanding of the quality of the relationship.
Dr Wynn Owen gave his further view as to the utility for an evaluation of risk of a further three months of abstinence from drug use as follows (30 October 2015, cross‑examination, ts 1468):
Dr Wojnarowska's view is that a three-month period of abstinence could be informative for his Honour and might better underlie, then, an evaluation of present risk and she would feel more confident in her evaluation of present risk if she had the opportunity to review three months of what has been described by Dr [Yewers] as a better engagement. Do you agree?‑‑‑I think the value-add would be relatively marginal. I think we would be having the same discussions in three months' time, however, I understand there could be some shift. I would be concerned that we would be wasting everybody's time, however, there could be some shift. Three months is a very short period of time and I think it's highly likely that when we come back in three months that that's exactly what people will say: 'Notwithstanding this three-month period, there were this, this and this contextual factor' and that would also not be good for Mr Merritt.
Well, it might be good from the point of view it might delay indefinite detention?‑‑‑It might be good, but it might not be, in that it doesn't do that. I'm not sure, however, that it does anything more than delay a decision. I'm not sure that we would be informed. If you talked about a year or two years, I might be convinced, but I genuinely don't think - three months is a very short period of time.
Too short a time to display a choice, a desire to not use?‑‑‑I think a choice to use and a desire to not use are two completely different things, and the one thing I think is missing here is a desire to not use, an underlying - I think there are choices made to take a particular action rather than the other way around. I think the two are not automatically in correlation to each other.
Dr Wynn Owen accepted that the supervision under the supervision order likely had an effect on the risk of reoffending as follows (29 October 2015, cross‑examination, ts 1390 ‑ 1392):
You indicated that your opinion was that he remains at high risk of committing a further serious sexual offence?‑‑‑Yes.
In 2014 what was your opinion in relation to imminence?
SIMMONDS J:   In relation to, I'm sorry?
BARONE, MS:   Imminence.
SIMMONDS J:   Imminence.
THE WITNESS:   My opinion was based on previous offending ‑ ‑ ‑
BARONE, MS:   Yes?‑‑‑ ‑ ‑ ‑ was - the imminence was quite potentially high so could easily offend within a matter of days if not weeks or months of release.
Yes. In fact, a matter of days, that sort of thing?‑‑‑In a ‑ ‑ ‑
Because he has got a history of offending quickly?‑‑‑Having been released unsupervised, he has a history of offending rapidly.
Reoffending. And offending ‑ ‑ ‑ ?‑‑‑When released unsupervised.
‑ ‑ ‑ rapidly. But it's not so much whether he's supervised or unsupervised, it's the drug use and the convergence of stressors, isn't it, that relate to his imminence?‑‑‑I believe that the monitoring and supervision is specifically there to address risk and is partly a risk mitigation factor. As such, I would expect it to delay. Otherwise, if the imminence had remained, no decision to release to the community would have been sensible. It was obviously deemed appropriate that those or deemed that those structures would mitigate risk.
So you draw your conclusion that the supervision in and of itself must affect imminence based on the decision of a judge to release?‑‑‑No. I draw my conclusion that the structure itself, because of its nature, does affect and does potentially have an affect on imminence. Mr Merritt's previous offences had occurred in a wholly unsupervised environment without any obligation to report, without any obligation to demonstrate lack of use of alcohol or drugs, with no accountability. To put - to say that the imminence would be unchanged in a much more accountable structure would probably be a mistake. There are a variety of reasons why imminence would be deferred and the RSVP construct of imminence is if unsupervised, what would be the likely imminence of reoffending.
If compliant with that supervision though?‑‑‑Yes. But there are levels of compliance and if there is some level of compliance, there will be some level of effect. And, clearly, there are a number of other contextual factors which were different on this release.
So notwithstanding the relapse to drug use and notwithstanding the use of drugs, if I understand your evidence correctly, in fact, the other aspects of supervision are protective and remain protective, such as ‑ ‑ ‑ ?‑‑‑Which is why they're there.
Sorry. To - sorry. I paused but I appreciate I should have finished that question properly. Such as to reduce imminence?‑‑‑Yes.
Notwithstanding, say, one use of drugs in the community; yes?‑‑‑Yes.
And notwithstanding one missed appointment in the community?‑‑‑Yes.
However, I understood Dr Wynn Owen's testimony in the present respect as requiring to be understood in the context of his evidence above as to the principal bases for his risk assessment, and its manageability, including the indications of the respondent's improved engagement with Dr Yewers and his abstinence from drugs.
Dr Wynn Owen's update report of February 2016 indicates that the respondent's consistent engagement with Dr Yewers during the period of imprisonment since 30 October 2015 and his willingness to discuss sexual thinking and offending suggested to Dr Wynn Owen that, if that level of engagement and disclosure were maintained 'in the community', his risk of serious sexual reoffending would be 'more manageable than at previous assessments' (exhibit 5.16, page 49). He expanded on this in his testimony while also contrasting his experience of his latest interview with the respondent, that for the purposes of Dr Wynn Owen's update report of February 2016, as follows (8 March 2016, examination‑in‑chief, ts 1556):
If what Dr [Yewers] has described is consistent and continues in the community, there is an improvement, potentially, in manageability. If Mr Merritt then goes ahead to disclose stresses, to disclose consideration of drug use, to disclose, in particular, areas he has not discussed before but had discussed with her on this occasion, that is, his sexual thinking, his relationship and aspects of his past offending, if that's the case and he can continue to do that, there would be an improvement in manageability. Having said that, my experience was of somebody who was really not prepared to disclose and was just very angry.
Dr Wynn Owen explained a number of those matters further as follows (8 March 2016, examination‑in‑chief, ts 1557 ‑ 1558):
So there's no change to the level of risk, and I'm not describing any change to the level of risk here. What we're talking about is the change to the manageability. If Mr Merritt were to continue to disclose particularly in those areas, whether that he around his sexual thinking, sexual fantasy, if there's any disclosure of deviancy in the same way as if he's prepared to disclose stress and/or thinking about drug use, all of these would be positives in terms of his manageability. It would allow early intervention. It would allow discussion and the development of a response that didn't use pathological coping strategies or result in - in offending.
In relation to the respondent making full disclosure to support staff including in relation to his drug use, and in relation to ceasing it, Dr Wynn Owen testified as follows (8 March 2016, examination‑in‑chief, ts 1555):
I've documented in my report a number of responses which I think relate to those gains in terms of Mr Merritt understanding the importance of full disclosure of his thinking to those support staff he was working with, particularly if he was experiencing stress. I led into the question, but he did say, 'It just needs to happen. Talk about everything.' Seemed to acknowledge that. He also, in relation to drug use and ceasing drug use, did just say, 'I've just got to do it', and he mentioned that he had taken the wrong approach, in his opinion, to the previous period of supervised released and he had just laid around for 11 months. He shouldn't have done this. He needs to find work, and I thought that was an important step. And in terms of overall supervision and monitoring, he did mention that he would just have to adhere to the conditions as they were written down, notwithstanding any concerns he may have.
Dr Wynn Owen responded to the proposition put to him that the respondent's acknowledgement in the past he had taken the 'wrong approach' was something Dr Wynn Owen had called an 'important step', as follows (8 March 2016, cross‑examination, ts 1564 ‑ 1565):
That may have been a mistake on my part, saying something like that. This is not new for Mr Merritt. This has been quite consistent in that there has been a consistent recognition that he was absolutely expected not to have - to use drugs, and that the actual results were both damaging for him, in terms of ongoing incarceration, but also for his partner.
I think you were - your evidence was, and these were your words, I wrote them, that when you were speaking about the fact that he had insight into the fact that he had taken the wrong approach, I think, to supervision, effectively, in the past, you said that that was an important step, his recognition, that he had taken the wrong approach?‑‑‑Mmm.
You - they were your words?‑‑‑Yes. Well, I ‑ ‑ ‑
I wrote them down?‑‑‑ ‑ ‑ ‑ have said the wrong thing. So I didn't intend or mean that ‑ ‑ ‑
Well ‑ ‑ ‑ ? ‑ ‑ ‑ ‑‑‑in the sense of anything other than if that were the case, it would be an important step. The message is not inconsistent with the message that Mr Merritt has given on a number of previous occasions around the same issue.
But that's correct, isn't it, that if he now discovered the insight that he had been inappropriate in his previous attempt at supervision with his officers ‑ ‑ ‑ ?‑‑‑Yes.
That would be an important step, wouldn't it?‑‑‑Yes. It would. Definitely.
Could you explain to his Honour why that would be an important step?‑‑‑Why gaining insight into ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ his behaviour is important?
Yes?‑‑‑Because insight into his behaviour helps him to understand why he takes certain actions, whether that's drug use or sexual offending, and that's a start point for enabling strategies to address that. So to develop - not for the first time that this has occurred, but yes.
But it's that important reflection on ones own behaviour, isn't it?‑‑‑It's an important reflect in a man in his mid-40s who has a longstanding personality disorder, where he has been through a number of intensive sex offender treatment programs, knows this sort of thing and knows what it - what are the right things to say. I wouldn't - I guess what I'm saying is don't put too much weight on that particular aspect. If it were successful with any individual: yes. They would be much more manageable.
Just because someone has psychopathy as a trait doesn't mean that they're always lying, does it?‑‑‑He doesn't have a trait of psychopathy; he has a psychopathic personality disorder. And it doesn't mean they're always lying. No.
So it doesn't mean that when he says to you that he had taken the wrong approach on the last occasion that you should automatically dismiss that, does it?‑‑‑No. But if one has heard that before and it has been well‑documented in previous assessments over quite a long period of time one has to at least take the history into account.

Dr Bannister further elaborated upon that aspect of his answer and drew a conclusion from it as follows (30 October 2015, cross‑examination, ts 1490 ‑ 1491):
In your addendum report, which is exhibit 2, I think you also have that. Paragraph 6 you mention in the latter sessions Dr [Yewers] - Mr Merritt initiated some discussion about his family, childhood and including his offending. That is of significance, isn't it?‑‑‑It is. It represents quite a change from previous levels of engagement and disclosure.
In fact, they were taboo topics for Mr Merritt before, weren't they?‑‑‑Yes, and I think what's different is that he has at least entertained the notion. I think the issues around sexuality and sexual fantasy and sexual functioning, these sort of issues, I think that he has indicated that he would be very uncomfortable talking about those issues. I think that he also indicated that he would want his partner present, but the simple fact that he is entertaining the idea of discussing them does represent a change from previous state of affairs.
And given they're almost hot button topics, that adds to your belief, doesn't it? Or your opinion, sorry, that it's a genuine penny drop moment as opposed to - - - ?‑‑‑The concurrent behaviour change, again, as a forensic psychologist, the collateral information is always key, but that certainly adds to my opinion of the fact that it's potentially genuine.
And the other one thing, also, which is of significance, isn't it, is that he accepted a moderate degree of challenging?‑‑‑Yes.
He was not, before, a person who would be - - - ?‑‑‑No.
- - - prepared to sit still through that type of challenge at any degree?‑‑‑No.
The fact that he's prepared to accept it, again, is of significance - or that collateral information, isn't it, that actually underlies your view of genuineness?‑‑‑Yes, and I - I mean, I - again, I would say the issue is potentially not even whether it's genuine, but that certainly speaks to his intent - - ‑
His intent ?--- ‑ ‑ ‑ at this point.
All right. So the intention to engage?‑‑‑More medically, yes.
Of course, because as you said, it's the intention to engage that matters, not necessarily what's underpinning it?‑‑‑The fact that he is engaging rather than not, yes.
Yes. So can we, doctor, then put it this way - is that the collateral evidence that you have relied upon and referred to in combination with the direct evidence that you have seen, would indicate that at this stage, today, Mr Merritt is likely to engage with Dr [Yewers] if he were released into the community?‑‑‑I would say one doesn't necessarily follow the other, but what I would say is that from his experience - his behaviour, rather, in statements to Dr [Yewers] up to this point that it appears that potentially he has got enough intrinsic motivation to want to continue that once he's in the community.
Which makes it more likely?‑‑‑Yes.
Dr Bannister's addendum report of February 2016 provided the indications as to the history of the respondent's engagement with psychological counselling since the hearing on 29 and 30 October 2015, to which I have previously referred.
Dr Bannister testified that 'perhaps' the most significant change for the respondent was that 'he was more readily able to take responsibility for his circumstances' (8 March 2016, examination‑in‑chief, ts 1607).
Dr Bannister further testified, as I understood him, in respect of the respondent having 'largely active and meaningful engagement in psychological counselling with Dr Yewers, regardless of his mood state' (see exhibit 5.14 [17], page 34), as follows (8 March 2016, cross‑examination, ts 1624):
And the reason why you say this bodes well for his manageability is that, if Mr Merritt is able to continue with this relationship, notwithstanding the ups and downs of the therapeutic environment, then it's more likely to sustain going forward. Isn't that right?‑‑‑Yes. And it's - and it's also about the fact that, when that challenging can occur, it's - it's sort of encouraging critical thinking as well. Yes.
It also means that, in that sort of challenging process - that we might be able to get more qualitative information about Mr Merritt's thought patterns. Right? About what he's thinking about particular topics?‑‑‑Yes.
Which might be particularly valuable in that holistic risk management approach of Dr Yewers feeding into the entire risk management group?‑‑‑Yes. Definitely.
Because we shouldn't, as you say, look at Dr Yewers only on her own?‑‑‑No. And more broadly, psychological treatment is - is not a panacea. It's - I think sometimes people, unfortunately, think that it is, but ‑ ‑ ‑
So one of Dr Yewers' key values to the risk management team is to feed back, if - I'm going to use the wrong word, but intelligence, if I can put in that way. I'm not intending for it to be criminal intelligence, but intelligence about what's going on in Mr Merritt's mind and in Mr Merritt's life at the moment?‑‑‑Well, yes. Her role, broadly, is to - obviously, within the limits of confidentiality - but it's - it's to talk about risk-relevant factors.
Dr Bannister further clarified that it seemed to be the case that for the respondent (8 March 2016, cross‑examination, ts 1629, a response to a question of mine):
[T]hat he perhaps didn't volunteer information if it wasn't being discussed but would freely explain what was happening, what was the choice around, for example, his decision to use or otherwise and that was certainly my experience in assessing him also.
I note from Dr Bannister's addendum report of February 2016 the following (exhibit 5.14 [23], page 34):
It is likely that Dr Yewers and Mr Merritt have established the basis of the therapeutic foundation upon which risk relevant factors can be meaningfully addressed.
Dr Bannister appeared to me to elaborate on this matter taking account of the respondent's drug use in his testimony as follows (8 March 2016, cross‑examination, ts 1623 ‑ 1624):
Not intending for it to do that, but - - -?‑‑‑No. It's more that - broadly, that - that Dr Yewers, and also Ms Ballantyne [another CCO], in her session with him - perhaps more readily able to - to - to call Mr Merritt on statements, rather than just choosing to - or rather than it seeming more difficult to - to challenge at the time. So that's - that is a positive thing.
To make him more accountable for things he might say?‑‑‑Yes. To - to - to question, to - to - - -
Yes?‑‑‑Yes.
So to then go back and say, 'Well, you've previously said this. I'm going to probe you about,' you know, 'why you've used - or what you were thinking about in leading up to this stressor or why this was of particular value?'?‑‑‑Yes. Exactly, and that's probably a good example, where it might be - when Mr Merritt might have said, 'Well, I've decided that - that, you know, I - I - I need to stop using drugs,' and (indistinct) might have come back with, 'Well, you've sort of said that in the past. What's different now?' or, you know, the - that sort of challenging.
And the reason why you say this bodes well for his manageability is that, if Mr Merritt is able to continue with this relationship, notwithstanding the ups and downs of the therapeutic environment, then it's more likely to sustain going forward. Isn't that right?‑‑‑Yes. And it's - and it's also about the fact that, when that challenging can occur, it's - it's sort of encouraging critical thinking as well. Yes.
It also means that, in that sort of challenging process - that we might be able to get more qualitative information about Mr Merritt's thought patterns. Right? About what he's thinking about particular topics?‑‑‑Yes.
This is the testimony I previously referred to in connection with what I saw to be similar testimony of Dr Wojnarowska as to the relative significance of the improvement in the therapeutic relationship with Dr Yewers and the respondent's drug use during the same period.
Finally, I note Dr Bannister's testimony as to what changes to the supervision order should be made and other matters that should be attended to as follows (30 October 2015, cross‑examination, ts 1490):
Having been able to have Dr [Yewers]' input and also your own input, are there any conditions that you would say to his Honour are things that might need amendment, strengthening or inclusion that would better assist Dr [Yewers] in the management of Mr Comeagain's risk?‑‑‑I can't think of anything.
I consider that Dr Bannister's testimony as to matters of this kind at the hearing of 8 March 2016 was to the same effect (see cross‑examination, ts 1625).

The evidence of the CCOs, Ms McNally and Ms Rathmann

Ms McNally was the respondent's CCO for the majority of the time he was in the community under the supervision order. It was not suggested she was qualified as an expert to give opinion evidence. However, before me she gave evidence, without objection, as to the respondent's conduct under the supervision order save in respect of the psychological counselling. I have drawn on that evidence in the earlier findings I have referred to.
I note at this point two other aspects of Ms McNally's evidence.
The first aspect was as to the possibility of suitable accommodation for the respondent were he to be released under the supervision order, as amended if appropriate.
Ms McNally in her testimony noted a number of concerns as to the accommodation proposed for the respondent. However, she confirmed that the Department of Community Corrections did not consider that accommodation to be entirely unsuitable (see 29 October 2015, cross‑examination, ts 1443).
The second aspect concerned what amendments to the supervision order, if any, which Ms McNally's experience of the respondent led her to consider might be necessary to assist her in the management of that order. In particular, I noted the following exchange (29 October 2015, cross‑examination, ts 1449 ‑ 1450):
If Mr Merritt were to be released again, are there any amendments to the order that you would tell his Honour would be necessary to assist you in the management of that order?‑‑‑I did give consideration to this. I couldn't think of any ‑ ‑ ‑
But, as far as we know, if he were to be released, there is accommodation?‑‑‑Correct.
And nothing on a practical sense getting in the way of release?‑‑‑No.
All right. And he would fall back into regular appointments with yourself?‑‑‑Correct.
Regular appointments with Dr [Yewers]?‑‑‑I should - sorry - with a CCO. It may not ‑ ‑ ‑
A CCO?‑‑‑ - - - necessarily be me.
May not be - with a - the psychologist, hopefully, Dr [Yewers] or whomever might next be in that role?‑‑‑Yes.
And any other service provider that is deemed appropriate?‑‑‑Yes. There's - I can't think of any at this stage, but - - -
There was some reference, potentially, to Holyoake too as an adjunct to ‑ ‑ ‑ ?‑‑‑Yes.
- - - substance abuse. So that would be an immediate referral if deemed appropriate by the treating team?‑‑‑Yes.
And it would come with all of the usual bells and whistles of proactive case management, as we know it, including SOMS and the team and all the like?‑‑‑Yes.
Ms McNally did not provide evidence for the purposes of the 8 March 2016 hearing.
Ms Rathmann has been the respondent's supervising CCO since the hearing on 29 and 30 October 2015. It was not suggested to me she was qualified as an expert to give opinion evidence. However, before me her evidence, in Ms Rathmann's report of February 2016, as to the respondent's history in prison since that hearing, including his drug test history, was not objected to in any respect. I have drawn on that evidence in the earlier findings I have referred to.
Ms Rathmann has, since the hearing of 29 and 30 October 2015, visited the respondent in custody on five occasions. Ms Rathmann's report of February 2016 describes the exchanges in those visits as follows (exhibit 5.15, pages 39 ‑ 40):
Mr Merritt refused to engage throughout [the initial interview]. Mr Merritt later identified he was upset regarding a recent loss of contact visits and the rescheduling of this Court appearance for the current matter. Mr Merritt's engagement has since improved. While conversation is typically driven by the writer, Mr Merritt has shown the ability to actively engage in and initiate conversation.
Mr Merritt identified his previous lack of engagement with his former supervising officer and psychologist as uncooperative and reported a commitment to ongoing engagement if released from custody. Despite this commitment, Mr Merritt has consistently raised his discontent with case management decisions made during his DSO Supervision Order. Those decisions have been made by the Risk Management Group to manage Mr Merritt's risk factors in the community. Mr Merritt has expressed to the writer an intention to continuously request for changes to former case management decisions and this persistence highlights a lack of acceptance with the Risk Management Group's decision making process and their perceptions of risk situations. Dr Yewers spoke to Mr Merritt about this behaviour and he accepted it was counter-productive. He agreed to request changes at a lesser frequency than originally identified. Despite this, these behaviours may prove to be a barrier to supervision in the future.
In regards to the above-mentioned substance misuse, Mr Merritt stated he had chosen to use illicit substances in custody over December 2015/January 2016 to commemorate his father's passing. He felt this was an appropriate way to grieve his father's death, although claimed he would not relapse to illicit substances during similar periods in the future. Mr Merritt could not verbalise any strategies to prevent illicit substance use in the future, other than a motivation to remain drug-free to avoid imprisonment. Mr Merritt voiced a desire to engage in substance abuse counselling if released from custody. Dr Yewers indicated that drug use would be addressed in the psychological counselling sessions; however, counselling in addition to these sessions could be explored upon release, if deemed necessary. In the event Mr Merritt was released from custody Mr [sic] Winter reported a desire to really engage with counselling with Holyoake to assist her to support Mr Merritt with his issues pertaining to substance misuse.
From Ms Rathmann's report of February 2016 I further note the following (exhibit 5.15, page 42), which includes a reference to accommodation for him were he to be released into the community:
Despite Mr Merritt's ongoing engagement with psychological counselling and appointments with the writer, he has relapsed to illicit substance use in custody. If released to the community, Mr Merritt is proposed to reside with his partner in [suppressed]. While access to the high risk areas in proximity to this accommodation (i.e. schools) can be managed by the introduction of exclusion zones, Mr Merritt's interactions with his immediate neighbours and their children would be difficult to monitor. Given the updated information provided by CPFS, the Department have concerns about their ability to adequately monitor Mr Merritt at this property. Ongoing structured activities on Mr Merritt's life are supported; however other than obtaining employment, no other activities have been proposed by Mr Merritt.
In her testimony, Ms Rathmann elaborated on the matter of concern to the Department in relation to the child of an immediate neighbour (see 8 March 2016, examination‑in‑chief, ts 1634 ‑ 1635; see also cross‑examination, ts 1635 ‑ 1641, where the possibility of strategies to address those concerns is canvassed).
Ms Rathmann also testified to the effect that there were no changes to the supervision order she would suggest (see 8 March 2016, cross‑examination, ts 1646 ‑ 1647).

My findings on this evidence in the context of my other findings

I have already indicated that I have found contraventions by the respondent of conditions of the supervision order. Accordingly, that condition for the purposes of DSO Act s 23(1)(a) and s 23(1)(b) is met.
As to the further condition which would require me to exercise the power in DSO Act s 23(1)(b), to make a Division 4 continuing detention order, namely, whether I am satisfied that there is an unacceptable risk that if such an order were not made the respondent would commit a serious sexual offence, I make the following findings.
I make all of the following findings in accordance with the highest of the standards referred to in TJD [53] and [54]: see proposition 8, above.
The respondent continues to show a significant incidence of illicit drug use. This has included since the hearing on 29 and 30 October 2015, as I have indicated and notwithstanding the focus of many sessions with his psychologist Dr Yewers to which Dr Wojnarowska's addendum report of February 2016 refers, his accounts to her of his high motivation to cease his drug use (see her examination‑in‑chief, 29 October 2015, ts 1417 above) and the conditions of his supervision order, as well as in custody
The respondent has acknowledged his 'weakness' in that regard and is concerned to seek methadone treatment, as indicated in Dr Wojnarowska's addendum report of 2016 and her testimony.
The significance of drug use to the risk of serious sexual reoffending by the respondent is clear in my assessment of, in particular, Dr Wynn Owen's evidence (see especially examination‑in‑chief 29 October 2015, ts 1280 and ts 1383 above), as well as Dr Wojnarowska's evidence (see Dr Wojnarowska's report of September 2015 [22.1], above). That evidence describes the nature of the risk of reoffending as to which I am satisfied.
I accept that the risk of serious sexual offending is more manageable now than at the hearing on 29 and 30 October 2015, or indeed at the release of the respondent on the supervision order.
However, I consider it is clear from the same evidence that it is of indispensable if not sole significance to that manageability that the improved relationship with the respondent's treating psychologist continue.
I further accept, on the evidence of Dr Wojnarowska and Dr Bannister, that it is likely to continue.
However, that likelihood is in my view a matter that falls to be assessed with the magnitude and nature of that risk of serious sexual reoffending and the history of shortfalls in the respondent's behaviours in the circumstances I have just described.
Those shortfalls are especially, although not only, in respect of drug use since the hearing on 29 and 30 October 2015, in the circumstances as to drug use I have just described.
I accept that the shortfalls were detected, both those under the supervision order and those in custody. I further accept that there is no necessary immediate connection between an incident of drug use and serious sexual offending. I note in particular Dr Wojnarowska's evidence in that regard, above.
However, the magnitude of the respondent's risk of serious sexual offending of the nature I have identified, coupled with that shortfalls history in the circumstances I have just described, in my view is such that that history must be weighed heavily in assessing whether I am satisfied that the second condition for DSO Act s 23(1)(b) is met and thus its power must be exercised.
In that weighing exercise, I am necessarily involved in assessing whether the likelihood of the improved relationship being sustained is such that it is telling against such satisfaction.
My assessment of that likelihood is that it is not telling. This is by reason in part of the relatively short period of the improvement, which was significantly short of one year under the supervision order, or of six months in custody, as to the most recent expressions of that improvement, those since the hearing on 29 and 30 October 2015. This is also by reason of the experience of Dr Wynn Owen in his dealings with the respondent most recently, which I consider to be of particular significance having regard to the extent of Dr Wynn Owen's involvement with the respondent historically. I also note Ms Rathmann's experience of her dealings, at least initially, with the respondent.

My conclusions on the application of the applicable law to these findings

On the basis of the findings described in the previous section of these reasons, and the assessment to which I have referred, and in accordance with my understanding of the applicable law, I am satisfied, in the terms of DSO Act s 23(1)(b) read with s 23(2), that there is an unacceptable risk that, if an order is not made under that provision, the respondent would commit a serious sexual offence.
It follows I must make a Division 4 continuing detention order in respect of the respondent.
I should add the following matters. It is my understanding of the DSO Act that the provisions in pt 3 for annual and exceptional circumstances review would apply to detention under such a Division 4 continuing detention order.
In my view, continuing signs of improvement in the respondent's relationship with his treating psychologist, particularly if coupled with signs of improvement in the respondent's drug use behaviours, might well produce an assessment under such a review (see DSO Act s 33) that would permit the court to release the respondent on a new supervision order.

My orders

I have received from the DPP a proposed order were I to have arrived at those conclusions.
I would make orders in the terms proposed.