Director of Public Prosecutions (WA) v Dinah [No 9]

[2017] WASC 158

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- DINAH [No 9] [2017] WASC 158

CORAM:   FIANNACA J

HEARD:   14 NOVEMBER 2016, 1 FEBRUARY 2017, 10 MARCH 2017 & 16 MAY 2017

DELIVERED          :   9 JUNE 2017

FILE NO/S:   MCS 2 of 2009

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

MACKER JOSEPH DINAH
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Fourth annual review - Whether detention order should be affirmed - Whether supervision order will provide adequate protection of the community - Supervision order appropriate - application of legislative amendment concerning effective date of supervision order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), ss 7, 8, 14, 17, 23, 29, 31

Result:

Detention order rescinded
Supervision order made

Category:    B

Representation:

Counsel:

Applicant:     Ms S Markham

Respondent:     Mr S Watters

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     David McKenzie Legal Pty Ltd

Cases referred to in judgment:

Director of Public Prosecutions (Cth) v Keating [2013] HCA 20; (2013) 248 CLR 459

Director of Public Prosecutions (WA) v Dinah [No 6] [2013] WASC 403

Director of Public Prosecutions (WA) v Dinah [No 7] [2014] WASC 429

Director of Public Prosecutions (WA) v Dinah [No 8] [2016] WASC 2

Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306

Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107

Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452

Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515

The State of Western Australia v Corbett [No 5] [2017] WASC 115

The State of Western Australia v Latimer [2006] WASC 235

Table of Contents

Summary of the history of the proceedings and the result
Legislative framework and relevant principles

Background
The annual review in 2015
The evidence on this review
Developments since the 2015 annual review

(i)      Response to treatment
(ii)     Insight into his sexual offending
(iii)    Beliefs concerning his ability to ascertain consent
(iv)    Behaviour towards women and social judgment
(v)     Substance misuse
(vi)    Behaviour in custody
(vii)     Progression to self-care
(viii)      Plans for release
(ix)    Attitude to a supervision order

Consideration of the issues under s 33 of the Act
The respondent remains a serious danger to the community

The nature and extent of the risk

Whether a supervision order would provide adequate protection of the community

(a)     The psychiatric and psychological assessments

(b)    Accommodation

(c)     Proposed conditions of the order

(d)    The respondent's capacity to comply

The respondent's conduct in prison
The respondent's attitude to the conditions of the proposed supervision order

(e)     Has he demonstrated an adequate ability to cope in self-care?

Conclusion ‑ Compliance with a supervision order
Conclusion ‑ Suitability of the accommodation
Conclusion ‑ Release on a supervision order
Period of supervision order
Application of amendment concerning effective date of supervision order

Order

Annexure

FIANNACA J: 

Summary of the history of the proceedings and the result

1. This is an annual review pursuant to ss 29 and 31 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) of the detention under a continuing detention order of Macker Joseph Dinah, the respondent. Although the respondent was first found to be a serious danger to the community under the Act on 23 April 2009, his current detention is pursuant to an order made by Commissioner Sleight under s 23 of the Act on 25 January 2012, after the respondent breached a supervision order. This is the fourth annual review of that detention. The previous annual review was also conducted by me (Dinah [No 8]).[1]

   [1] Director of Public Prosecutions (WA) v Dinah [No 8] [2016] WASC 2.

2. The present annual review was conducted on 14 November 2016, 1 February 2017, 10 March 2017 and 16 May 2017. 

3. At the hearing on 14 November 2016, counsel for the respondent sought an adjournment of the hearing.  It was the respondent's submission that, since the third annual review, the respondent has made progress in the areas that militated against release on a supervision order on that occasion, so that a supervision order would now provide adequate protection of the community, provided suitable accommodation was available.  There was no suitable accommodation available at 14 November 2016, but enquiries were continuing to identify suitable accommodation and there was a prospect that such accommodation would be found within a short time; hence the application for an adjournment.  The adjournment was granted, although it was understood that the availability of suitable accommodation would not necessarily determine whether release on a supervision order would be appropriate. 

4. When the review resumed on 1 February 2017, a property had been identified, but the analysis of its suitability by the WA Police had not been completed.  The review was again adjourned to 10 March 2017, at which time a report of the completed analysis was available and final submissions were made by the parties.  However, there were matters arising from the analysis in respect of which I was of the view that the opinion of Dr Brett, the psychiatrist who gave evidence in the review, should be obtained.  Counsel for the Director of Public Prosecutions for Western Australia, the applicant, undertook to obtain that opinion.  The parties were given leave to file written submissions, once the opinion was available.  Dr Brett's opinion was conveyed to the court by email on 14 March 2017, which was followed by an affidavit dated 20 March 2017 filed on behalf of the applicant containing additional information concerning accommodation.  Further written submissions were filed by the parties on 20 and 21 March 2017. 

5. The Court was subsequently informed by the applicant, on notice to the respondent, that the applicant was made aware of an incident concerning the respondent in custody on 23 March 2017, and the incident may be relevant to the court's consideration of the issues in the annual review.  Eventually that matter was dealt with by way of a consent order which permitted the applicant to inform the court of the incident and to file an affidavit of Ms Henshall, the Senior Community Corrections Officer who has been involved in the management of the respondent.  Those documents were filed on 3 April 2017.  Neither party sought to make further submissions.  However, I considered that the circumstances of which the court was informed potentially affected an important issue in the review, namely whether the respondent had progressed successfully to self-care within custody.  Consequently, a further hearing was convened on 16 May 2017 so that the respondent's status in self-care could be clarified and further submissions could be made concerning the significance of the incident of 23 March 2017 on that status.  At that hearing further evidence was adduced from Ms Henshall and final submissions were made. 

6. The evidence in the review satisfies me to a high degree of probability that the respondent remains a serious danger to the community, in that there is an unacceptable risk that, if he were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence, as defined in the Act.[2] 

   [2] Dangerous Sexual Offenders Act 2006 (WA) ss 3 (definition of 'serious sexual offence'), 7 and 33.

7. If I had been required to decide upon the appropriate form of order when the matter was first heard on 14 November 2016, I would not have been satisfied that a supervision order would provide adequate protection of the community, which is the paramount consideration,[3] even if suitable accommodation had been found.  That is because progression by the respondent to self-care had been identified previously as an important pre‑condition to his release on a supervision order, and, while he was in self-care at the time of the hearing, the period for which he had been in self-care was insufficient in my opinion to adequately demonstrate a successful transition. 

   [3] Dangerous Sexual Offenders Act 2006 (WA) s 33(3).

8. However, since the initial hearing the respondent has been able to demonstrate over an extended period a capacity to function adequately in self‑care, despite some issues that I will discuss later.  Accommodation is available to the respondent within the community.  There are some reservations about the suitability of that accommodation.  However, on all of the evidence now before me, I am satisfied that suitable conditions can be formulated to ensure the adequate protection of the community if the respondent were released on a supervision order to reside at that accommodation.  That conclusion was supported by the submissions of the applicant, the Director of Public Prosecutions for Western Australia (the DPP). 

9. Accordingly, having regard to the relevant legal principles, I have concluded that the respondent should be released on a supervision order, the conditions of which are annexed to these reasons. 

Legislative framework and relevant principles

1. When a person is in custody pursuant to a continuing detention order, the detention must be reviewed by the court, on application by the DPP, in accordance with pt 3 of the Act.  At the time the application for the present review was made, a review was required to be conducted annually.  The Act was amended from 10 September 2016 in this regard,[4] but the amendment did not affect the present review. 

   [4] Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA) (No 17 of 2016) s 24, amending s 29 of the Act.

2. The purpose of a review is to determine whether the person continues to be a serious danger to the community and, if so, whether the appropriate order is continued detention or release on supervision.[5]   If the person is no longer a serious danger to the community the detention order must be rescinded.[6]  If the person continues to be a serious danger, the court must either affirm the continuing detention order or rescind that order and make a supervision order.[7]  In making that decision, the paramount consideration is the need to ensure adequate protection of the community.[8]

   [5] Dangerous Sexual Offenders Act 2006 (WA) s 33 of the Act. The provisions of s 33 were also amended by the Dangerous Sexual Offenders Legislation Amendment Act 2016 (s 28).  For reasons I will give later in relation to the application of s 33(1)(ii) as amended, I am of the opinion that the amendments to s 33 apply for the purposes of these proceedings.  The outline of the legislative provisions reflects the amendments. 

   [6] Dangerous Sexual Offenders Act 2006 (WA) s 33(1)(a).

   [7] Dangerous Sexual Offenders Act 2006 (WA) s 33(1)(b)

   [8] Dangerous Sexual Offenders Act 2006 (WA) s 33(3).

3. I recently discussed the legal principles applicable on an annual review and the appropriate approach to the decision to be made between continuing detention and a supervision order in Director of Public Prosecutions (WA) v Pindan [No 3](Pindan [No 3]).[9]  In Director of Public Prosecutions (WA) v Ugle [No 3],[10] I said I was inclined to agree with the analysis of the annual review process by Hall J in Director of Public Prosecutions (WA) v Unwin [No 3][11] (which his Honour reiterated recently, with some elaboration, in The State of Western Australia v Corbett[No 5]).[12]  That remains the case, subject to my further analysis in Pindan [No 3].  The key principles may be summarised as follows. 

   [9] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [22] - [32].

   [10] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [9] - [12].

   [11] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] - [18].

   [12] The State of Western Australia v Corbett[No 5] [2017] WASC 115.

4. Detention under the Act is not punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised.  As Hall J noted in Unwin [No 3], it is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future.[13]  If circumstances change such that the risk of reoffending reduces, it may be that the risk is no longer unacceptable if the person is not subject to a detention order or supervision, or it may be that the adequate protection of the community against the risk, although it is still unacceptable, can be achieved by the making of a supervision order. 

   [13] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [15].

5. The review process is intended to allow for the possibility of a change of circumstances.  It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings.  In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community.[14]

   [14] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [51].

6. Nevertheless, the first question the court must consider is whether it is satisfied to a high degree of probability, on acceptable and cogent evidence, that there remains an unacceptable risk that the respondent will commit a serious sexual offence if not subject to a continuing detention order or supervision: s 33(1)(a) read with s 7 of the Act. If the court is so satisfied, then, in deciding whether to affirm the detention order or release the respondent on a supervision order, the court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.[15]

   [15] The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [79].

7. When considering whether a supervision order would adequately protect the community, it is necessary to take into account any conditions which can be placed on such an order to ensure that protection.  The use of the word 'adequate' indicates that a qualitative assessment is required.  It cannot simply be assumed that the protection of the community will always favour detention, as the most assured form of prevention.[16]  However, because of the paramount consideration, if, having regard to the evidence concerning possible conditions which might be imposed on a supervision order under s 33(2), the court is left in doubt as to whether such an order would adequately protect the community, it must affirm the continuing detention order.[17]

   [16] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [58].

   [17] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [86]; Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [29] - [32].

8. The level of risk posed by the respondent, and whether the community can be protected adequately against the risk under a supervision order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external constraints and obligations that can be put in place under a supervision order to mitigate the risk.  Gains made by the respondent in treatment and his behaviour while in custody will inform the assessment of the personal factors.  The availability of new technology or resources in the community will be relevant to the assessment of external factors. 

9. As Hall J remarked in Unwin [No 3], if the risk changes or resources improve to enable more efficacious conditions, then the need for detention may dissipate and continuing detention may become unjust.[18]  The review process is intended to ensure that detention only continues where necessary. 

   [18] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [18].

Background

1. The relevant history of this matter was outlined by me in Dinah [No 8] at [6] - [17]. As I noted there, a more detailed narrative of events before the annual review conducted by Jenkins J in 2013 is contained in Director of Public Prosecutions (WA) v Dinah [No 6] (Dinah [No 6]) at [4] ‑ [18].[19]  For present purposes, the following summary will suffice. 

   [19] Director of Public Prosecutions (WA) v Dinah [No 6] [2013] WASC 403 [4] - [18].

2. The respondent is now 56 years of age. 

3. He was first found to be a serious danger to the community under the Act in May 2009, when he was 48 years old, after he had served a term of 9 years' imprisonment for sexual penetration without consent, having been sentenced on 10 March 2000.  He had a history of previous sexual offending, having been convicted of rape in 1984, indecent assault in 1987, and aggravated sexual assault in February 1990 and May 1990.  He had served lengthy terms of imprisonment for the offences of rape and aggravated sexual assault. 

4. The sexual offences of which the respondent had been convicted were summarised by Jenkins J in Dinah [No 6] at [19]. In short, the respondent offended against women who were known to him, a different woman on each occasion. On the first three occasions he went into the victim's bedroom where she was asleep, or at least lying on the bed. He was either living in the house or visiting. On the fourth occasion, the victim was his neighbour and he entered her house without consent. On the last occasion the victim was his cousin and she was in a vehicle with him after they had been out socialising. The first and last offences involved penile penetration of the woman's vagina without consent. The other offences involved digital penetration of the woman's vagina or fondling of her genitals without consent. On at least four of the occasions the respondent overcame resistance to his sexual attack, and the last three occasions involved physical assaults upon the victims either before the sexual attack or to overcome resistance. On each occasion the sexual offending ceased only when a third party entered the room or arrived home or on the scene. On the last occasion it was when police arrived.

5. In the proceedings under the Act in 2009, having found that the respondent was a serious danger to the community, McKechnie J ordered that the respondent be detained in custody for an indefinite term pursuant to s 17(1)(a) of the Act. The respondent's use of alcohol was identified as a high risk factor for the commission of a serious sexual offence if he were to be released. He had not taken adequate steps to address that issue or other causes of his offending. He continued to be detained after the first annual review of the detention in 2010. However, by the time of his second annual review, in May 2011, he had made some progress on the Intensive Sex Offenders Treatment Program (ISOTP), and he was released on a supervision order, Commissioner Sleight being satisfied that conditional release of the respondent on such an order for 5 years would provide adequate protection of the community.

6. The respondent subsequently breached his supervision order by using cannabis and alcohol.  He came to be dealt with again by Commissioner Sleight on 28 September 2011 in the breach proceedings.  Although he had concealed information from those supervising and treating him and his honesty was called into question, and despite his demonstration of hostility towards supervision as his risky behaviour escalated, the expert evidence suggested it was too early to determine that the risk posed by the respondent could not be managed.  Commissioner Sleight concluded that the respondent should be released on the same terms as the supervision order of 9 May 2011, but, due to the respondent's regular breaches of that order, his Honour amended the order so that the term of five years would recommence. 

1. As a result of further multiple breaches of the order by the respondent, on 25 January 2012 Commissioner Sleight rescinded the supervision order and ordered that the respondent be detained indefinitely.  The breaches consisted of the respondent failing to report to his supervising officer, lying about why he had failed to report, consuming alcohol, cutting off the bracelet which was then monitoring his whereabouts, breaching his curfew and failing to continuously reside at his address. 

2. At the annual review in 2013, Jenkins J declined to rescind the detention order.  The psychiatrist who assessed the respondent on that occasion, Dr Febbo, noted evidence of major personality pathology and was of the view that factors such as impulsivity and a sense of entitlement facilitated the respondent's sexual offending, particularly when there is further impairment of impulse control and judgment through intoxication.  The respondent was also assessed by a psychologist, Mr Bell, who noted that the respondent's involvement in treatment programmes both in custody and when he had been on supervision were marked by defensiveness, minimisation and only a superficial engagement with treating professionals.  Jenkins J concluded that the respondent had not been rehabilitated and remained at high risk of serious sexual and non‑sexual offending.  She identified alcohol consumption as an ongoing issue and did not consider frequent testing to be sufficient protection against the respondent getting drunk and reoffending.  The proposed accommodation at that time meant the respondent would be living without any responsible adult to supervise him and there was a risk that people he would come into contact with in the vicinity would be prepared to supply alcohol or drugs to him, as it was in a location of known drug activity.  Jenkins J was not prepared to rely on the respondent's statements of 'good intent' in a letter he provided to the court, as she doubted his honesty and was not satisfied his expressed intentions were genuine. 

3. At the annual review in 2014, McKechnie J, referring to the psychological and psychiatric evidence on that occasion, concluded that insufficient had changed since the decision of Jenkins J to justify release on supervision (Dinah No [7]).[20]  Although the respondent had made some gains in treatment, in terms of behavioural changes and insight, his Honour considered that they were insufficient to justify the step of supervision at that time.  He said it was significant that the respondent had not progressed to the enhanced wing or the Self Care Unit within Acacia Prison, as it suggested a lack of proper appreciation of the stresses and decisions he would need to make in the event that a supervision order was made releasing him into the community.[21]  His Honour noted:[22]

   The process of adjustment will be stressful and I am not persuaded that the respondent at present has sufficient tools or protective behaviours to manage that stress in a way that will not increase his risk of re-offending. 

   [20] Director of Public Prosecutions (WA) v Dinah [No 7] [2014] WASC 429 [4].

   [21] Director of Public Prosecutions (WA) v Dinah [No 7] [2014] WASC 429 [8].

   [22] Director of Public Prosecutions (WA) v Dinah [No 7] [2014] WASC 429 [9].

4. McKechnie J was of the view that the risk to indigenous women in particular who may come into contact with the respondent was so great that, without further insights on his behalf and further positive improvement, the appropriate decision was to decline to rescind the detention order.  In any event, the accommodation that had been proposed, with his sister, was not suitable.  In particular, the environment was such that it was likely to lead to an exacerbated risk of substance abuse by the respondent.  His Honour acknowledged that the respondent would be exposed to alcohol and cannabis wherever he is, so that if the potential of exposure to substance abuse was the only objection to release on supervision, it might be overcome.[23]  However, there were other difficulties with the accommodation.  In the event, his Honour declined to rescind the detention order. 

   [23] Director of Public Prosecutions (WA) v Dinah [No 7] [2014] WASC 429 [15].

The annual review in 2015

1. At the last annual review, evidence was given by Dr Wojnarowska, a consultant psychiatrist who had given evidence at the previous annual review, Ms Rankin, a clinical psychologist who had also given evidence at the previous review, and Ms Dabala, a Senior Community Corrections Officer.[24]

   [24] See Director of Public Prosecutions (WA) v Dinah [No 8] [2016] WASC 2 [23] - [73].

2. During the period between the 2014 annual review and the last annual review, the respondent's engagement with therapeutic treatment was initially poor and subsequently at best superficial.  There had been a focus on progression to self-care, as that had been a recommendation at the 2014 annual review, but the respondent had failed to make any significant progress.  He had been placed in the enhanced unit (which precedes advancement to self-care), but had been returned to the standard living unit after failing to engage adequately with employment and demonstrating a belligerent attitude towards staff.  The respondent had also returned positive urinalysis results for cannabis and alcohol. 

3. There were two matters of particular significance that emerged at the 2015 review.  First, the respondent had demonstrated poor 'boundaries' within the therapeutic relationship, in that he had made inappropriate comments about his treating psychologist, Ms Place.  He incorporated her as a subject in a scenario he used to describe how he would approach a woman in a nightclub, and to explain Aboriginal words of a sexual nature that other prisoners might say to her.  Secondly, there was an incident on 20 October 2015 in which the respondent had made offensive sexually charged remarks to a female nurse at the prison.[25]  In addition, during therapy and in his interview with Ms Rankin, the respondent had continued to maintain a view he had expressed previously that he had a 'sixth sense' in respect of whether a woman had an interest in sexual activity with him and that consent was a vaguer concept among the indigenous population.[26]

   [25] See Director of Public Prosecutions (WA) v Dinah [No 8] [2016] WASC 2 [44] - [53].

   [26] See Director of Public Prosecutions (WA) v Dinah [No 8] [2016] WASC 2 [36].

4. At the conclusion of the last annual review I was satisfied, having particular regard to the evidence of Dr Wojnorowska, that the respondent's risk of future sexual reoffending was as high as it was before he commenced treatment with Ms Place in 2013.  In that sense, he had regressed since the previous annual review. 

5. The one respect in which there had been a positive change, as identified by Dr Wojnorowska, was the respondent's acceptance that his conduct, the subject of relevant convictions, constituted sexual offending.  However, he was at an early stage of progress and there were other factors that weighed against release on a supervision order, namely:

   1.regression in the respondent's engagement with treatment in respect of risk factors, which he did not acknowledge;

   2.his use of substances while in custody;

   3.his distorted sense of his own capacity to judge whether a woman wished to engage in sexual activity with him, in particular in relation to indigenous women;

   4.his impulsivity and continuing lack of  social judgment, as evidenced by the incident of 20 October 2015; and

   5.his lack of commitment to progressing to self-care, which demonstrated an incapacity to adhere to and fulfil obligations and meet expectations. 

6. Further, I was of the view that the respondent's perceptions, which may be relevant to compliance, had been demonstrated to be disconnected from reality.  That was particularly evident from his self-assessment when interviewed for the annual review that he had been a model prisoner over the previous 12 months and that his treating psychologist was satisfied with the gains he had made, both matters being at odds with reality. 

7. As I noted earlier, alcohol had been identified as a high risk factor when the respondent was first made subject to an order under the Act by McKechnie J in 2009.  His breaches of the supervision order when he was released by Commissioner Sleight on two occasions included consumption of alcohol.  In the year leading up to the previous annual review, while in custody, the respondent had tested positive for alcohol.  I considered it to be of concern that the respondent claimed that alcohol was no longer an issue for him, and that he could just abstain.  I indicated that it was necessary for the respondent to demonstrate a capacity to abstain from substance use while in the controlled and structured environment of a prison, and develop insight and realistic strategies for coping with problems and stress without resorting to alcohol or drugs. 

8. Finally, consistently with the evidence of Dr Wojnarowska, I expressed the view that in order for the court to have any confidence that the respondent could be managed on a supervision order, it was essential that he progress to self-care and demonstrate a capacity to comply with obligations and meet expectations that he may regard to be unpalatable.  I indicated that it was necessary for him to engage with treatment and commit to the plans that may be put in place for his management. 

The evidence on this review

1. At the commencement of these proceedings, the applicant tendered, without objection, a Book of Materials (exhibit 1) which contains Department of Corrective Services (DCS) records concerning the respondent's conduct and management in prison and his health since the last annual review, a psychiatric report of Dr Adam Brett dated 27 October 2016, a psychological report (DCS 'Dangerous Sexual Offender Treatment Progress Report) of Ms V Rankin dated 18 October 2016 and a DCS 'Community Supervision Assessment' report from Ms J Henshall, a Senior Community Corrections Officer.  At the adjourned hearing on 1 February 2017, I received into evidence an addendum report from Ms Rankin dated 4 January 2017 (exhibit 2) and a further Community Supervision Assessment report from Ms Henshall dated 24 January 2017 (exhibit 3).  At the further adjourned hearing on 10 March 2017, I received into evidence (as exhibit 4) a 'desktop analysis' dated 13 February 2017, which was prepared by the WA Police of the proposed accommodation if the respondent were to be released on a supervision order (the desktop analysis), and a further addendum report from Ms Rankin dated 13 February 2017 (exhibit 5).  Subsequently, in the circumstances I explained earlier, the applicant filed an affidavit of Ms Henshall affirmed 27 March 2017 in relation to the incident on 23 March 2017. 

2. Dr Brett, Ms Rankin and Ms Henshall gave evidence at the hearing.  The respondent elected not to give or adduce evidence. 

Developments since the 2015 annual review

1. Response to treatment

1. The respondent's progress in treatment, prior to the hearing of 14 November 2016, is outlined in Ms Rankin's report of 18 October 2016, which is largely informed by her discussion with Ms Place, the respondent's treating psychologist. 

2. After the last annual review, the respondent had nine sessions of individual psychological counselling with Ms Place.  On 20 January 2016, after the first three of those sessions, Ms Place made the decision to suspend treatment until approximately three months prior to the current annual review.  There were three main reasons for that decision: the respondent's engagement in treatment had declined to the point where he was unable to identify outstanding treatment needs and unwilling to discuss goals; he remained resistant to the idea of applying to progress to self-care; and he was considered to have made limited progress in treatment since Ms Place began working with him in January 2014.  He was struggling to identify any treatment targets. 

3. The counselling sessions recommenced on a fortnightly basis on 3 August 2016.  Treatment goals were: analysis of the respondent's sexual and violent offending; substance misuse; intimate relationships; problem solving and impulsivity; and risk management. 

4. Since recommencing sessions in August 2016, Ms Place had noted an improvement in the respondent's engagement.  He had demonstrated an increased willingness to discuss treatment goals, he was much more willing to discuss his previous history of sexual offending and some of the factors underlying that behaviour, and he had observed appropriate boundaries within the therapeutic relationship.  He had also shown an increased propensity to take responsibility for his own progression by applying for and obtaining placement in self-care, albeit late in the period leading up to the current review.  Further there had been a reduction in negative incidents within the custodial environment and urinalysis results had been negative. 

5. In his interview with Ms Rankin on 4 October 2016, the respondent highlighted the positive changes that he had made over the previous few months, such as his progression to self-care and the absence of positive urinalysis tests, and expressed pride in his achievement, because he felt that he had taken some responsibility for himself during the time when he was not receiving counselling from Ms Place.[27]  He said that when Ms Place told him she would not be coming to see him until closer to his next annual review, he realised he needed to make some changes for himself in order to progress to eventual freedom.  He referred to a number of personal motivating factors for his shift in behaviour.[28] 

   [27] Ms Rankin's report [18]; ts 493. 

   [28] Ms Rankin's report [18].

6. The respondent also appears to have regarded the counselling sessions with Ms Place after re-engaging in August 2016 as beneficial.  He said that, if he is released on a supervision order, he would like to continue engaging in such sessions to discuss potential issues that may arise in relation to his adjustment in the community. 

7. However, it has been necessary to scrutinise the significance of those positive developments leading up to the annual review because of the respondent's conduct since the hearing held on 14 November 2016.  At that hearing, an issue that required further consideration was the availability of psychological services to the respondent if he were to be released on a supervision order to reside in Geraldton, which was the proposal at that stage.  At the conclusion of the hearing I requested advice from the DCS forensic psychological service in relation to that issue.  I also sought an update on his engagement in psychological intervention. 

8. Ms Rankin subsequently reported on 4 January 2017 that the respondent had engaged in two further sessions of psychological intervention with Ms Place.  At the most recent session on 21 December 2016 he had presented as angry and frustrated, and the session terminated early due to a lack of productive discussion.  As a result, Ms Place indicated that she would not see him again until a decision was made in these proceedings. 

9. In light of that report, when the matter came back before me on 1 February 2017, I requested a further report in relation to the respondent's engagement in treatment with Ms Place, as it appeared that, notwithstanding the positive indications before the annual review commenced, the respondent was no longer engaging adequately. 

10. The further report from Ms Rankin on 13 February 2017 provided the following information.  The respondent had engaged well at a session with Ms Place on 23 November 2016.  He spoke about his release plans and his intention to continue his placement in self-care and remain incident‑free.  He indicated awareness that December was generally a high-risk time for him in terms of potential substance misuse because of his deceased daughter's birthday, but he expressed confidence in his ability to manage his mood.  However, at the session on 21 December 2016, he presented as angry and frustrated.  He was frustrated about the length of time that he had remained in prison, which he considered to be excessive having regard to the nature of his breach of his previous supervision order.  He was also frustrated because he considered that he had remained abstinent from illicit substances and was no longer a risk to the community.  He was angry that his release plans for Geraldton had been assessed as unsuitable and felt that DCS was not providing him with adequate assistance to find accommodation.[29]  He was also angry with the proposed conditions of the potential supervision order, which appeared to reactivate previous grievances he had expressed about the system treating him unfairly. 

    [29] The issue of accommodation is discussed below. 

11. Ms Rankin pointed out that the respondent had historically defaulted to a position of viewing the world from a victim perspective when he perceives that things are not going his way.  She noted that this appears to be an entrenched belief that is unlikely to shift in the long term and will likely be reactivated from time to time when he perceives he is being treated unfairly. 

12. Ms Rankin noted, as she had at the previous annual review and during the hearing on 14 November 2016, that the respondent is unlikely to make extensive gains in long-term treatment.  She was of the view that he is likely to continue to maintain a superficial engagement in the therapeutic process, and that engagement is likely to fluctuate.  In Ms Rankin's opinion, ongoing therapeutic work, if the respondent is released into the community, is likely to be more productive if focused on containment of his behaviour and management of impulsivity, rather than actively attempting to shift his attitudes. 

13. While the setback on 21 December 2016 exposes fragility in the progress the respondent had made in his engagement in treatment, and perhaps, as Ms Rankin suggested, a degree of superficiality to that engagement, the broader picture over the review period is of a greater willingness by the respondent to engage in the counselling sessions and derive benefits from them.  I note also that the respondent's presentation at his interviews with Dr Brett and Ms Rankin showed encouraging signs for continuing engagement.  Dr Brett said in his report that the respondent's mental state had improved since his previous review of the respondent, that he appeared to be more insightful, less evasive and more honest about his problems, albeit an unreliable historian.  His presentation at the interview with Ms Rankin on 4 October 2016 was as 'a serious man who remained focused on the topic of conversation, which represented a shift from previous assessments'.  In evidence, Ms Rankin confirmed that the respondent's demeanour during the assessment in October 2016 was different to previous years. 

14. Further, while Ms Rankin has questioned the utility of actively attempting to shift the respondent's attitudes, the evidence indicates that there has been some shift in his attitudes. 

1. Insight into his sexual offending

1. Ms Place noted that the respondent had demonstrated a shift in his approach to discussing his history of sexual offending.  He had recently admitted that all of his sexual offences were non-consensual.  He also acknowledged the role of substance misuse, his feelings of sexual entitlement, and his misunderstanding of the intentions of his victims.  These would appear to suggest significant progress in the respondent's gaining of insight into his sexual offending. 

2. In his report, Dr Brett also noted the respondent's acknowledgment of his previous offending, with limited denial or minimisation, regarding it, however, as 'a minimal amount of improvement since the previous review'.[30]  In oral testimony, he said he thought there had been a subtle change in the respondent's account of the most recent offences for which he had served a term of imprisonment, in that he has taken more responsibility for his acts.  The respondent told Dr Brett that he accepted responsibility for the offences and that they were non-consensual.  Dr Brett considered the acknowledgment to be a recent development.  I note that Dr Wojnarowska referred to a similar development at the last review, but considered it was in its early stages.  It would appear that the respondent's acknowledgment of his offending and his acceptance of responsibility have persisted since the last annual review, although Dr Brett considered that, given the respondent's inconsistent accounts in the past, the chronic nature of his previous denial, and the relatively recent change in his attitude, denial or minimisation remains a significant risk factor. 

   [30] Dr Brett's report, Opinion and Recommendations [2].

1. One area in which the respondent's insight remains limited is his potential to engage in violent behaviour in response to perceived injustices.  He has identified that his use of violence in a previous sexual offence was related to feelings of anger and rejection, but he continued to externalise his use of violent behaviour in the majority of incidents.[31]  Further, Ms Place is of the opinion that the respondent has few strategies to manage his anger. 

   [31] Ms Rankin's report [12].

2. In his oral evidence, Dr Brett doubted that the progress the respondent had made in treatment demonstrated insight.  He said in cross‑examination that he did not think psychological counselling would be able to address the respondent's understanding of his offending, and that the focus needed to be on 'monitoring and keeping him away from high risk situations, rather than keeping that incident knowledge of why he has acted previously'.[32]  In relation to the respondent's progress in treatment, Dr Brett said:[33]

   It's certainly a positive factor.  I don't think it demonstrates insight.  It may demonstrate that he understands what he needs to say to his treating psychologist. 

   [32] ts 485 - 486. 

   [33] ts 486. 

3. He went on to say:[34] 

   I'm relying on the fact that he has given conflicting reports to a number of clinicians over the years.  I'm accepting that I've seen him for one off assessments to try and glean as much information, and I'm using my clinical judgment from that.  I think really changing behaviour for Mr Dinah is a more important thing than changing what he says. 

   [34] ts 486. 

4. Dr Brett is a well-qualified expert who has extensive experience in assessing persons under the Act, and his opinion generally in a case such as this should be given significant weight.  However, on the issue of whether the respondent has demonstrated at least some insight, Dr Brett has acknowledged that he has assessed the respondent over a limited period.  Ms Rankin has relied on information from Ms Place, who is also well-qualified and experienced in providing counselling to dangerous sexual offenders, and who has had the opportunity to assess the respondent over a much longer period of time.  She has previously identified that the respondent may simply have learnt what he needs to say, but the assessment for this annual review suggests genuine acceptance by the respondent of the nature of his offending and a recognition of the risk factors underlying that offending.  I am prepared to accept Ms Place's assessment.  It seems to me that the respondent has demonstrated a level of insight, even if the depth of that insight may be elusive. 

5. In any event, Ms Place noted that the respondent's recent recognition of the factors underlying his previous offending did not extend to consideration of his future risk, and he continued to express the view that he did not have any future risk factors for sexual offending.  He was also inconsistent in relation to how he would manage sexual urges if released into the community. 

6. The significance of the respondent's progress in gaining insight, therefore, has limitations in terms of attenuating risk.  However, it seems to me that he has taken several steps forward from the position identified by Dr Wojnarowska at the last annual review.  That must be acknowledged when assessing if his risk can be managed in the community.  It is also important to give credit when an offender has made an effort to address the issues that have previously been identified as being of concern in his conduct, his beliefs and his attitudes, especially when, as in this case, he has expressed some pride to Ms Rankin in the steps he has taken. 

7. At the last review, I remarked that the respondent's perception of his progress did not reflect reality.  For this review, it seems his self‑assessment is more realistic, although still inclined to underestimate his risk of sexual reoffending and overestimate his ability to manage risk factors. 

8. In his interview with Ms Rankin, the respondent acknowledged that he had been more open in discussing his sexual offending history with Ms Place, saying that he felt he no longer had anything to hide, and expressing a willingness to continue exploring his offending.  In particular, he said he was aware he needed to stay away from intoxicated women and that forming a relationship with a female who regularly engaged in substance misuse would be a risk factor for him, in that it would place him in the path of a vulnerable female and also tempt him to use substances himself.  He said he intended to maintain a friendship with his former wife, but was adamant that he would not have a sexual relationship with her. 

9. While the respondent initially said to Ms Rankin that he did not have any high risk situations in relation to offending, after further enquiry he was able to list several scenarios that would present risk, such as involvement in an intimate relationship and being around intoxicated women, as noted earlier.  He also said that he understood he needed to maintain a distance from negative peers who engaged in fighting or substance misuse. 

10. Consistently with the evidence at previous annual reviews, the evidence of both Ms Rankin and Dr Brett is to the effect that the respondent is unlikely to make extensive gains in long term treatment.  However, I am satisfied that the respondent's acceptance of responsibility, his appreciation of the true nature of his offending as involving non‑consensual acts, and his acknowledgment of a number of risk factors, including substance misuse, and how they may lead to sexual offending, constitute a positive change in his circumstances. 

1. Beliefs concerning his ability to ascertain consent

1. A specific area in which there appears to have been a change is the respondent's previous distorted sense of his ability to judge whether a woman wished to engage in sexual activity with him, combined with a belief that for indigenous women consent was somehow a vaguer concept than it is for women of other cultural backgrounds. 

2. Ms Rankin gave evidence that the respondent did not make comments during the interview for the current review of the kind he had made in the past concerning his innate ability to know whether indigenous women were prepared to have sex with him, without having to express consent.  In his discussions with Ms Place, he claimed to have been misunderstood about one of his statements, and that he did not believe he had a greater capacity to determine whether indigenous women were consenting.  Having regard to the evidence given at the last annual review, set out in Dinah [No 8], I do not accept that the respondent was misunderstood, but I am satisfied he has realised the folly of his previous belief system and that he no longer has those views.  I am mindful of the observations made by Jenkins J in 2013 that the respondent had learnt what he needed to say to improve his position, and that he was prepared to say such things without inspiring confidence that he was being honest or genuine in his intentions.  However, on balance, the opinions expressed by the professionals who have dealt with the respondent for the purposes of this review suggest that greater weight can be given to his expressions of insight than might have been the case previously.  I have had regard in that context to the matters I discussed in the previous section above, concerning the respondent's progress in treatment. 

3. Notwithstanding my conclusion, this is an area in which there is likely to be a need for reinforcement in future counselling. 

1. Behaviour towards women and social judgment

1. Another area in which the respondent has demonstrated change is in his observance of appropriate boundaries within the therapeutic relationship with Ms Place.  That may simply mean he has learnt that the sort of conduct in which he engaged in the previous review period, where he made inappropriate remarks of a sexual nature involving Ms Place, will have adverse consequences when the court is deciding between detention and a supervision order.  However, viewed in the broader context of the manner in which the respondent has engaged with Ms Place in counselling, I regard the development as a positive change in his capacity to exercise appropriate social judgment.  

2. Further, there was no incident during the current review period of the kind involving the nurse in 2015.  I note that the respondent was charged with a prison offence in respect of that incident, which occurred on 20 October 2015.  He was found guilty and, on 12 January 2016, was penalised by way of a loss of gratuities for seven days.  Again, the fact there has been no repeat of such conduct may simply indicate that the respondent has been deterred by the fact he was charged and the consequences for the 2015 annual review, rather than a lasting change in his behavioural tendencies.  However, even in that regard, one would expect that the deterrence would carry through to his behaviour under a supervision order, if he were released on such an order, as he would face the prospect of a return to detention if he engaged in similar conduct.  A commitment to prosocial behaviour would also be reinforced by close monitoring and counselling. 

1. Substance misuse

1. The abuse of alcohol and cannabis is a significant risk factor for the respondent. 

2. On 22 December 2015, which was after the 2015 annual review, he provided a urine sample for urinalysis which gave a positive result for alcohol.  He provided a further sample for urinalysis on 23 December 2015 which also gave a positive result for alcohol, although at a lower concentration.  He was charged with a prison offence of consuming alcohol in relation to the positive result of 22 December 2015.  He was found guilty and penalised by way of a loss of privileges for 14 days and being confined to his sleeping quarters for five days.  After that inauspicious start to the next review period, the respondent returned seven negative urinalysis results until the hearing of the annual review. 

3. However, although it was not the subject of a positive urinalysis result, the respondent admitted to nursing staff and Ms Place that he had used Subutex, a synthetic opioid usually used as a painkiller, in June 2016.  The medical notes recorded that he said he injected the substance.  Dr Brett said in his evidence that the respondent denied using drugs intravenously, but he considered that the history given by the respondent to his treating psychologist and the prison nurse would be more reliable.  The respondent's explanation to Ms Place for using the Subutex was the same as in the previous year, namely grief regarding the death of his daughter and poor treatment from staff within the custodial environment. 

4. On the one hand, as Dr Brett suggested, the inconsistency in what the respondent has said reflects his unreliability as a historian.  On the other hand, the fact that he disclosed the use of Subutex, when he had not produced a urine sample that tested positive for the drug, does suggest a preparedness to be open with his treating psychologist about such matters.  It is a further positive development, although it is difficult to say whether it is predictive of disclosure under a supervision order, when the stakes might be thought to be higher. 

5. The respondent told Ms Rankin that he had not used illicit substances since June 2016.  He said he recognised that, if he could not demonstrate abstinence in the custodial environment, he would not be able to do so in the community, where temptations were more prevalent.  That is an important development in the respondent's insight into the risk of relapse into misuse of substances.  He told Ms Rankin that using substances no longer 'satisfied' him, and that he no longer experienced cravings.  However, Ms Rankin noted that the respondent went on to mention things he would do if he did find himself thinking about using illicit substances, which tended to suggest he still experienced cravings. 

6. Dr Brett was of the view that the respondent's assertions that he had no wish to smoke cannabis in the future do indicate a shift in attitude, because when Dr Brett saw him seven years ago, the respondent was very clear that he did not want to stop using cannabis.  Dr Brett agreed that the respondent's recognition of his drug use as a problem appears to be genuine.[35] 

   [35] ts 487. 

7. At the time of the hearing, Ms Rankin was of the opinion that a period of  abstinence from drugs of five months (since June 2016) was not sufficient to demonstrate that the respondent would abstain if he was under stress in the community.  I regard the tenor of Dr Brett's evidence to be consistent with that view.  However, a further 6 months have now elapsed, with no positive urinalysis results.  That was confirmed by Ms Henshall at the reconvened hearing on 16 May 2017.  While it is still no guarantee of abstinence in the community, it does provide greater confidence in the respondent's commitment not to use drugs. 

1. Behaviour in custody

1. Ms Henshall reported that after the 2015 annual review, the respondent initially continued to display negative behaviours towards staff, but from the commencement of 2016 he began to 'stabilise and demonstrate more socially acceptable behaviours'.[36]  However, his attitude towards accessing his prison funds continued to be a matter of concern because he continually attempted to circumvent the system to obtain additional funds.  There were also three incidents during 2016 which raise questions about the likelihood that he will comply with strict conditions under a supervision order and respond appropriately to supervision. 

   [36] Ms Henshall's report, 4.11.16, 2. 

2. On 25 February 2016, the respondent was verbally abusive towards two Acacia Prison custodial officers when he was being escorted to undertake a urinalysis test.  On 10 April 2016, while he was confined to his cell, having been found guilty of the prison offence of consuming alcohol, a television set was found to be concealed in his cell, contrary to the confinement regime.  On 13 October 2016, the respondent was verbally aggressive and abusive towards medical staff when he attended for treatment at the Acacia Medical Centre.  When he was questioned about that incident, he said that he did not appreciate being escorted every time he attended the medical centre. 

3. In evidence Ms Rankin considered the behaviour that occurred in February 2016 to be of a kind that is a function of the respondent's personality, in that he is quite impulsive and at times he reacts aggressively to perceived slights.  He has been able to reflect on the reasons for his behaviour after the event, and how he might avoid such situations in the future, but he has not always demonstrated the capacity to put those coping strategies into place when he has needed to. 

4. That was particularly evident on 23 March 2017, while the annual review was adjourned pending my decision.  The incident report states that around 7.10 am that day, prison officers attended the respondent's cell to escort him for a urinalysis test that was part of 'prevalence testing', in other words, a testing regime in which a large number of prisoners were to be tested.  When the respondent was informed that he needed to go with the officers, he became abusive towards them, saying, 'Don't you fucking tell me to come with you.'  He called them 'fucking cunts', challenged their authority to tell him what to do and, when told that that was no way to speak to the officers, said, 'Whatever, I don't give a fuck.'  However, he did go with them and gave a sample, as required.  The urinalysis result was negative. 

5. As a result of his conduct, the respondent was regressed from self‑care; that is, he was removed from the self‑care unit and returned to the general prison population.  The incident report notes that the respondent was fully compliant and respectful during the move. 

6. The respondent's explanation for his behaviour was put before the court as hearsay in an affidavit sworn 11 May 2017 by his solicitor, Mr McKenzie.[37]  There was no objection to the evidence being provided in that way.  However, I have regard to the fact that the respondent has been assessed on more than one occasion as being an unreliable historian and I have not been prepared to accept some of his explanations in respect of other matters.  In essence, the respondent says that the prison officers arrived at his cell just after he had woken up, and he found their behaviour in demanding that he come with them to be threatening and unlike the way in which other prison officers had behaved in a similar situation.  He says he felt threatened and discriminated against.  He claims that when they told him that they wanted him to do a urine test, he asked why they had not told him that immediately and, in frustration, said, 'Fucking hell.  What's wrong with you cunts?' 

   [37] Exhibit 7. 

7. To the extent that the respondent's explanation suggests his use of expletives was relatively innocuous and not as part of a challenge to the officers' authority, it is entirely inconsistent with the incident report, and I am not prepared to accept it.  It would be surprising, in my opinion, if he were to have been regressed on his version of events.  However, I accept there is nothing in the incident report to suggest the respondent was told immediately that he was required for a urine test, so it is plausible he was upset by the initial demand to go with the officers without knowing why.  Nevertheless, his response was uncalled for, and indicative of an underlying distaste for being told what to do by persons in positions of authority, which can result in the kind of aggressive reaction to perceived slights referred to by Ms Henshall when commenting on his behaviour in February 2016.  On the other hand, he was compliant and respectful when subsequently regressed. 

8. At the hearing on 16 May 2017, Ms Henshall said this about the respondent's conduct generally in self-care:[38]

   Whilst Mr Dinah was in self-care, there were no other reported incidents.  One of the requirements in self-care is to maintain a certain standard of behaviour which includes towards officers, as well as other prisoners, and he was maintaining that until this incident, yes. 

1. Progression to self-care

   [38] ts 614. 

1. As I indicated above, at the conclusion of the 2015 annual review, I expressed the view that, for the court to have any confidence that the respondent could be managed on a supervision order, it was essential that he progress to self‑care and demonstrate a capacity to comply with obligations and meet expectations that he may regard to be unpalatable. 

2. Ms Henshall reported that, after my decision in the 2015 annual review, an initial case conference was held on 25 January 2016 in respect of the respondent at Acacia Prison, where the respondent has been in custody.  At that conference, custodial staff said that, in order to progress into self‑care, the respondent needed to consistently demonstrate a capacity to comply with obligations and meet behavioural expectations.  From late December 2015 until April 2016, the respondent was involved in a number of incidents which made him ineligible to apply successfully for entry into self-care.  It appears, in any event, that the respondent did not make an application for admission into self‑care until the second half of 2016.  He applied for admission into the top category of self-care, but that was denied on 3 August 2016 because he did not meet the requirements.  He was told that he would have been placed in an alternative self-care unit earlier in the review cycle if he had applied, which would have assisted him in progressing into the top category.  He confirmed that he was aware of the process, but declined to apply for the alternative option.  He did eventually progress into the top category of self‑care on 19 September 2016.  He was residing in that unit at the time of the hearing, and remained there until recently. 

1. Ms Rankin was of the view that it was a positive factor that the respondent had applied to move to self-care, notwithstanding it had occurred in the second half of the year, leading up to this annual review, and might be regarded as an attempt by him to improve his circumstances prior to the review.  The respondent told Ms Rankin that he was enjoying his placement in self‑care. 

2. Ms Rankin was of the view that the period of time that the respondent had been in self-care by the time of the hearing on 14 November 2016 showed that he was able to manage in a less restrictive environment than the mainstream, but she was not sure that it demonstrated a capacity for him to progress seamlessly into the community.  She was of the opinion that it would increase confidence in his capacity to self-manage and regulate his behaviour and his emotions in the community if he were to spend a longer period of time in a less restrictive environment. 

3. Dr Brett also considered that it was an advantage for the respondent to be in self-care, because the respondent has been inconsistent in the things he has said, from which progress might be judged, and his behaviour in self‑care would demonstrate unequivocally the progress he has made.  Dr Brett was aware that there were different levels of self-care at Acacia Prison and that the respondent initially went into the lowest level before progressing to the highest level, but he did not know what the different levels meant.  Although progression to self‑care was a positive factor, Dr Brett considered that the respondent's relatively late application to go into self-care, with the annual review imminent, was indicative of his impulsive personality and impaired capacity for long term planning. 

4. Similarly to Ms Rankin, Dr Brett considered that the period the respondent had been in self-care (as at 14 November 2016, when Dr Brett gave evidence) was a fairly short time, and it was 'difficult to take a lot from that'.[39]  From a clinical perspective, Dr Brett considered it would be preferable for the respondent to be in self-care for a longer period, and he would like to see the respondent transfer to Karnet Prison, which Dr Brett believes to be 'more open' and requiring more responsibility on the part of the detainee.  Dr Brett said he would like to see the respondent 'demonstrate with his behaviour [in that environment] that he can do the things he has been talking about'.[40]  In cross‑examination he said, for instance, that while the respondent is saying the right things in relation to substance use, he needs to demonstrate his understanding through actions rather than words.  The fact that he used substances when he was last released into the community indicates that it is difficult to predict whether his substance abuse is a treatable risk.[41]  However, abstinence in self-care would give one more confidence that he might remain abstinent in the community.  Dr Brett explained in the following exchange:[42]

   And how would it be demonstrated in self-care as opposed to within the general prison environment? --- I think you have more ability to take responsibility for yourself and your behaviours, to look after yourself, and I think if he can demonstrate that in self-care, I would have more confidence that he would be able to survive in the community.  Because it's more akin to the community than mainstream prison. 

   [39] ts 476. 

   [40] ts 474. 

   [41] ts 480. 

   [42] ts 490. 

5. The desirability of the respondent progressing to a placement at Karnet Prison was also raised by Ms Place.  In her report of 18 October 2016, Ms Rankin, in discussing the treatment plan outlined to her by Ms Place in the event the respondent were to remain in detention, said:[43]

   She noted that there would be an expectation for Mr Dinah to maintain his current placement in self-care, as that would potentially facilitate an eventual transfer to Karnet Prison Farm to allow him time to adjust to a less restrictive environment prior to any future release. 

   [43] Ms Rankin's report [16].

6. As I have already indicated, after the hearing of 14 November 2016, the respondent remained in self-care for a further 4 months, until 23 March 2017, when he was regressed from self-care in the circumstances I described above.  As Ms Henshall explained on 16 May 2017:[44]

   In regards to regression, self-care at Acacia Prison ‑ at any prison, for that matter ‑ is one of the highest placements you can be in the custodial setting, which you have to … demonstrate certain behaviours to retain that position.  Regression means he was reduced from self-care into the general population, which means he does lose certain privileges, if you wish. 

   [44] ts 612. 

7. Of course, the consequence of the respondent's regression is that, if released on a supervision order, he would now be transitioning from the general prison population, rather than from self-care.  Whether that will increase the challenges he will face to comply with a supervision order remains to be seen.  However, despite the respondent's setback, the overall picture from Ms Henshall's evidence is that, apart from the incident of 23 March 2017, during the period of some 6 months the respondent was in self-care, he maintained the standards of behaviour required of him towards officers and other prisoners, and he did not return positive urinalysis results for tested substances. 

(viii)  Plans for release

1. When interviewed by Ms Rankin for the annual review, the respondent considered that his release plans were 'more developed' than he had put forward for previous reviews.  He said he had recently re‑established a relationship with his sons, and he planned to continue to foster those relationships if he were released.  He indicated a desire to study art at university level with a view to improving his skills. 

2. While Ms Rankin considers that the respondent's plans for release appear to lack depth, it seems he has put more thought into accommodation and further education than at his last review.  She considered that this appears to represent an increased willingness to take responsibility for his future rather than relying on others to source opportunities for him.  However, he is likely to require considerable additional support from those involved in his management and external services, such as Outcare, to establish and maintain a stable lifestyle if he is released into the community. 

3. It will be necessary for the respondent to continue to have counselling sessions with Ms Place to address treatment goals. 

4. While the respondent's plans to pursue art as a vocation and to undertake study at tertiary level are commendable, Ms Henshall noted that the appropriateness of his attending a tertiary institution in light of his risk factors will need to be assessed once he is released.  If he were to remain in detention, steps could be taken to facilitate enrolment in tertiary studies if the respondent qualified and the study could be undertaken remotely. 

1. Attitude to a supervision order

1. In terms of his attitude to a supervision order, the respondent expressed to Ms Rankin, during the interview on 4 October 2016, a desire to interact positively with those involved in his management if released into the community.  The respondent previously had a difficult relationship with his senior community corrections officer when he was on a supervision order.  Ms Rankin pointed out that the respondent's ability to manage his aggression and impulsive behaviour towards those who are supervising him has yet to be tested, but she considered that the respondent's behaviour towards officers within the custodial setting probably gives a fairly good indication of how he will manage in the community.  Unfortunately that has been variable, as I noted above. 

2. However, as an indication of his desire to engage with supervising officers, the respondent said he would like to keep a diary because it would assist him to manage his various appointments.  He also said he would like to continue engaging in counselling sessions with Ms Place to discuss potential issues in relation to adjusting in the community.[45] 

   [45] Ms Rankin's report [24].

3. On 4 October 2016, the respondent did not raise any concerns in respect of the likely conditions of a supervision order.  In particular, he said he did not have any concerns about wearing a GPS monitoring device, and he would not attempt to interfere with such a device as he did on his previous release.  Those indications of good intentions need to be considered now in the light of his negative behaviour during the session with Ms Place on 21 December 2016, when he was angry about a number of things, including the proposed conditions of the potential supervision order, which Ms Rankin regarded as a reactivation of previous grievances the respondent had expressed about the system treating him unfairly. 

4. At best, it may be said that the respondent has given mixed signals about his attitude to the conditions of the proposed supervision order. 

Consideration of the issues under s 33 of the Act

1. I turn next to the questions I am required to determine on the annual review.  Having regard to the discussion of the legal principles above, they can be formulated as follows:

   (a)Does the respondent remain a serious danger to the community? 

   (b)If so, would a supervision order provide adequate protection of the community against the unacceptable risk that the respondent would commit a serious sexual offence if he were released into the community? 

2. Both issues are informed in part by the matters I have discussed above that have arisen since the last annual review.  However, the answer to the first question depends primarily on the formal psychiatric assessment made by Dr Brett.  The answer to the second question requires a consideration of the conditions and accommodation that have been proposed for a supervision order, and an assessment of the respondent's capacity to comply with the conditions. 

The respondent remains a serious danger to the community

1. Dr Brett assessed the respondent's risk of sexual offending by applying the Static-99-R risk assessment instrument, the '3 Predictor Model' and the Risk for Sexual Violence Protocol (RSVP). 

2. The Static-99-R instrument utilises historical (and therefore unchanging) factors relevant to the respondent's risk.  His risk factors would score him in the high risk group for sexual reoffending.[46] 

   [46] Dr Brett's report [39].

3. The '3 Predictor Model' is a model developed by WA researchers, that was measured on indigenous sexual offenders, although it has not been validated.  The respondent is indigenous.  The model proposes three dynamic factors linked to violent and sexual offending, being unrealistic long term goals, unfeasible release plans and poor coping skills prior to release.  In Dr Brett's opinion, the respondent's long term goals are unrealistic and he does not appear to be able to address how they will be achieved.  He does not have clear release plans; they change rapidly and are inconsistent.  The respondent also appears to have poor coping skills within the prison.  Dr Brett includes within that assessment, the respondent's poor compliance with medical regimes to address his diabetes and other conditions, and his attempts to manipulate staff to get his needs met by relying on his medical conditions. 

4. The RSVP is a set of structured professional guidelines that require evaluation of information about the offender, evaluation of risk factors and their relevance in developing risk management plans, the development of risk scenarios and strategies to manage the risk of sexual violence, and judgments about overall risk.  Applying those guidelines, Dr Brett is of the opinion that the respondent remains a high risk for sexual reoffending if he were not under supervision.[47]  In particular, Dr Brett noted that the nature and extent of the respondent's previous sexual offending (the 'chronicity of sexual violence') is a significant risk factor that remains relevant and has a reliable association with recidivism.[48]  Further, substance abuse has been associated with his sexual offending and continues to be a significant risk factor.  The main substances of concern are cannabis and alcohol.  Difficulty in coping with stress was also seen as an issue associated with the respondent's sexual offending and continues to be a problem for him.  The respondent will need significant support for a community placement to succeed.[49] 

   [47] Dr Brett's report [107].

   [48] Dr Brett's report [52].

   [49] Dr Brett's report [107].

5. As I noted earlier, Dr Brett was of the opinion that there has been a minimal amount of improvement since the respondent's last review.[50]  That improvement has been in the respondent's acknowledgment of his previous offending, with limited denial or minimisation.  He told Dr Brett that he accepted his offences and that they were non-consensual.  As I said earlier, although Dr Brett described this as a recent development, it does seem that the respondent's acknowledgment of his offending and his acceptance of responsibility have persisted since the last annual review.  Nevertheless, I accept Dr Brett's opinion that denial or minimisation remains a significant risk factor. 

   [50] Dr Brett's report, Opinions and Recommendations [2]. See [54] above.

6. Dr Brett's opinion that there had been minimal improvement took into account that, at the time of his assessment of the respondent, the respondent had not made the transition to self-care, having failed to transfer at an early opportunity.  Since then the respondent has spent a significant period in self‑care.  I will deal below with Dr Brett's views in evidence about the desirability of a longer period in self-care.  It is sufficient for present purposes to note that the issue of transition to self‑care is of significance to the question of whether a supervision order would provide adequate protection of the community.  Having regard to Dr Brett's evidence, it does not affect the conclusion that the respondent remains a high risk of sexual reoffending if he is not subject to detention or supervision. 

7. Having regard to the psychiatric evidence, in the light of other evidence concerning the respondent's circumstances since the last annual review, I am satisfied to a high degree of probability that there remains an unacceptable risk that the respondent would commit a serious sexual offence if he is not subject to continuing detention or a supervision order. 

The nature and extent of the risk

1. According to Dr Brett's assessment, the respondent's risk scenarios continue to be as outlined in previous reports.[51]  The respondent is likely to be intoxicated and the victim is likely to be an indigenous adult female known to him.  He may misinterpret the victim's approach or his own needs may take priority over her wishes.  Inadequacies in his social judgment and his impulsivity are relevant factors to such conduct.  He has poor coping skills and, if things are not going his way, 'he can change rapidly' and act impulsively.  Ms Rankin also agreed that his impulsivity continues to be 'one of the most potentially concerning aspects of [the respondent's] presentation'.[52] 

   [51] Dr Brett's report [102].

   [52] Ms Rankin's report [14].

2. Having regard to the respondent's offending history, Dr Brett considers that physical violence is likely to be associated with any further sexual offending by the respondent. 

3. Dr Brett is of the opinion that substance abuse would considerably increase the respondent's risk of reoffending and remains a significant risk factor that will require close monitoring.[53]  More specifically, there has been a significant relationship between alcohol intoxication and the respondent's sexual offending, so, in Dr Brett's opinion, it is an 'extremely important aspect of his management and his risk'.  However, cannabis use can lead to impaired judgment and may also be associated with the use of alcohol, so it also has relevance as a risk factor.  In the past, substance use has been a coping mechanism for the respondent when he has been under stress, and it is likely he would again resort to substances to cope with stress, and that could increase his impulsivity.  Ms Place considers that the respondent still employs largely avoidant coping strategies for managing problems and negative emotions, essentially 'distraction and thinking positive thoughts'.[54]  It is to be expected that the respondent would come under stress on a supervision order, given the significant constraints on his freedom.  Of course, on the two prior occasions he was released on a supervision order, he breached by using substances. 

   [53] Dr Brett's report [81].

   [54] Ms Rankin's report [11], [14]. 

4. The respondent continues to have sexual drive.  He has discussed with Ms Place the need to manage his sexual urges if he is released into the community.  When interviewed by Ms Rankin, he claimed to have erectile dysfunction, but said that he had asked Ms Place about the possibility of obtaining a prescription for Viagra to address that.  In any event, his sexual offending has included acts other than penile penetration, so the claim of erectile dysfunction does not detract in any significant way from the nature and extent of the respondent's risk of committing a serious sexual offence.  As Dr Brett put it:[55]

   … [O]bviously the biggest sexual organ is the brain, and if he's thinking about sex, that's significant.  Whether he can get an erection or not is not that relevant to his risk.  He can sexually offend in other ways, and so he's still thinking about sex. 

   [55] ts 491. 

5. In cross-examination it was suggested to Dr Brett that the fact the respondent did not sexually offend when he was released on a supervision order previously was a paradigm shift in his behaviour.[56]  Dr Brett said it was a positive factor.  I then queried with Dr Brett what the significance was of the kind of breach the respondent had committed (using drugs) compared to the fact that he had not sexually offended.  He said:[57]

   Well, my concern is that he placed himself in a very high risk situation.  From his own admission, he started a relationship with a woman who used drugs, and it has been well documented that that's a high risk situation for him.  He started forming a relationship with her, and that's how his previous offending has occurred.  And so with the use of alcohol and drugs on top of that, he placed himself in a very dangerous position.  I think what he needs to do is avoid situations like that, and I think that's what the monitoring needs to do.  He blamed a lot of other people for that, things like saying that his community corrections officer told him to form a relationship, which I understand [is] not the case.  And I think he needs to take responsibility for his actions, and I think that's the key issue I was trying to get at, is that his behaviour needs to demonstrate that he has made those psychological changes. 

   [56] ts 479. 

   [57] ts 491. 

6. In my opinion, little weight could be placed on the fact the respondent did not commit sexual offences while under a supervision order as an indicator of his risk.  As one would expect, the conditions of the previous supervision order were designed to identify behaviour by the respondent that would create a risk of serious sexual offending, and ensure he was brought back before the court to be dealt with before the risk was realised.  The fact the respondent did not commit a sexual offence may be attributable to the effectiveness of the order.  It could hardly be regarded a paradigm shift. 

Whether a supervision order would provide adequate protection of the community

(a)     The psychiatric and psychological assessments

1. In his report, Dr Brett expressed the opinion that it is unlikely the respondent's risk will reduce significantly with ongoing detention.  He explained in evidence that the point he was trying to make was that, historically, the respondent has had extremely poor coping mechanisms, and if he is not released on a supervision order, 'that would be a big dent to him, and he may well act out again'.[58]  Of course, while it would be regrettable, the prospect that the respondent may regress cannot determine whether he should be released on a supervision order.  The paramount consideration is the adequate protection of the community. 

   [58] ts 482. 

1. The CCO will also have considerable oversight of the respondent's association with women, including the attendance by women at his place of residence, and the attendance by him at their place of residence.  In fact, he will be prohibited from attending the private residence of another person without approval in advance from his CCO.  Such a restriction is necessary at this stage because some of his offending in the past occurred in homes where the victims lived with third parties.  The respondent will also be required to make full disclosure of his past offending and the supervision order to anyone with whom he commences a friendship or a domestic, romantic, sexual or otherwise intimate relationship, and the disclosure must be able to be confirmed by a CCO or a police officer.  Such measures will go some way to mitigate the risk created by the fact that vulnerable women may live in the residential complex or nearby. 

2. The respondent will be required to undergo testing for drugs and alcohol, and will be required to provide a valid sample, so that any attempt to circumvent the process will be a breach of the supervision order.  If requested, he must permit police to search his premises, which would provide a further means by which he can be monitored for the use of drugs or alcohol.  Of course, knowing of the condition, if the respondent were to relapse, it would likely be away from his home, but other conditions, such as the prohibition against being in the presence of alcohol or any place where drugs are being used, or being in the presence of persons affected by alcohol or drugs, would result in a breach of the order if he were caught. 

3. The respondent will also be subject to a curfew and to GPS tracking.  Compliance with the curfew and lawful directions preventing him from attending excluded zones will be monitored. 

4. The requirement that the respondent comply with any reasonable direction of his CCO would also allow for directions to be tailored to deal with any specific area of concern that may become apparent in relation to the accommodation or persons or activities in the vicinity after the respondent has taken up residence. 

(d)     The respondent's capacity to comply

The respondent's conduct in prison

1. Ms Rankin expressed the view that perhaps the greatest area of concern continues to be the respondent's level of impulsivity.  Although it occurred to a reduced degree in recent times, the respondent had continued to react impulsively to perceived slights within the custodial environment since the last annual review.  Ms Rankin was of the view that if the respondent is released to the community, he may react similarly to directions from those involved in his management.  This has the potential to unsettle him emotionally, which may result in an increased risk of relapse into substance misuse to manage his negative emotions.  It is an ongoing concern, because it is largely personality driven.  In essence, as was noted earlier, his behaviour towards prison officers is likely to be a reasonable predictor of the way he will behave towards a supervising officer in the community. 

2. Two points can be made in the respondent's favour in this regard.  First, despite the incidents involving negative behaviour (which have been described above), overall the respondent was compliant, particularly while he was in self‑care.  While the incident on 23 March 2017 could properly be regarded as a setback, he was subsequently reported to be compliant and respectful when he was moved from self-care, a time during which one might have expected him to have negative emotions because of the potential consequences for these proceedings of his regression. 

3. The second point is that Ms Rankin identified a number of ways in which those who are supervising the respondent may assist to contain his behaviour, in terms of his impulsivity.  The measures that could be taken would include transparency in their dealings with him, ensuring that he understands his obligations and the expectations of his behaviour, and the taking of swift action if he does not comply with the conditions of a supervision order.  They are a combination of guidance and support to shape his behaviour positively, and external controls. 

The respondent's attitude to the conditions of the proposed supervision order

1. As I noted earlier, the respondent has given mixed signals about his attitude to the conditions of the proposed supervision order.  The most recent reported indication, during the session with Ms Place on 21 December 2016, was that he was angry about the proposed conditions of a supervision order, suggesting a regression to the position that he is the victim of a system that is treating him unfairly.  Of course, suitability for release on a supervision order does not require that the person affected must look upon the conditions favourably, but one might ordinarily expect that significant antagonism would not augur well for compliance, with a potential for increased risk.  In any event, over 5 months have passed since the session with Ms Place on 21 December 2016.  The respondent's case has been put consistently since then on the basis that he accepts the proposed conditions and intends to comply.  There has been no indication in recent times that the respondent maintains the antagonism. 

2. On balance, I do not consider that the respondent's attitude to the proposed conditions presents an obstacle to release on a supervision order. 

(e)     Has he demonstrated an adequate ability to cope in self-care?

1. Although the respondent has been regressed from self-care, it was not because of a failure on his part to demonstrate an ability to care for himself in circumstances of relative independence, although not as independent as he may have been if he had been transferred to Karnet Prison Farm.  The evidence is that he had managed adequately until his failure to maintain a proper standard of behaviour towards the officers on 23 March 2017. 

2. I am satisfied that the respondent has largely met the requirement I stipulated in my reasons in the 2015 annual review that he would need to meet for the court to have confidence that he could be managed on a supervision order, namely that he progress to self-care and demonstrate a capacity to comply with obligations and meet expectations that he may regard to be unpalatable.  As I indicated in the introductory section of these reasons, I have come to that conclusion because of the extended time the respondent spent in self‑care after the initial hearing in these proceedings in November 2016. 

Conclusion ‑ Compliance with a supervision order

1. In all areas relevant to my consideration of the appropriate order to make, it may be said that there is room for improvement in the respondent's circumstances, and perhaps significant room.  He has gained insight into his offending and his risk factors, but the extent of the insight has been described by Dr Brett as minimal and the respondent has not been particularly adept at translating his understanding of his risk factors into anything more than superficial strategies for dealing with risk scenarios.  He has progressed to self‑care and appears to have managed well generally, but he did so at a relatively late stage in the review period and he has not progressed as far as Dr Brett would have liked, namely to Karnet Prison.  He has engaged in treatment and has said he wants to continue counselling with Ms Place, but his last session was unproductive.  His release plans are more advanced than they have been for the purposes of past reviews, but they still remain relatively superficial. 

2. However, notwithstanding the room for improvement in each of those areas, the consensus in the psychiatric and psychological evidence was that the respondent had made progress and that, under strict conditions and tight controls, his risk of committing a serious sexual offence could be managed in the community. 

3. I am satisfied that the progress the respondent has made in each of the areas to which I have referred provides the court with a reasonable degree of confidence he will comply with the conditions of the proposed supervision order.  As the applicant pointed out, those who are tasked to supervise the respondent and enforce the conditions of the supervision order are also there to provide him with support to enable him to remain compliant.  If, as Ms Rankin indicated, they are transparent with the respondent in administering the conditions, the prospect of the respondent becoming defensive and resistant will be reduced.  Ongoing counselling with Ms Place will reinforce the understanding he has of his risk factors and the things he needs to do to avoid those risks.  The respondent will also receive assistance from Outcare workers. 

4. Of course, as I have made clear, the success of the respondent's reintegration and the adequate protection of the community will depend also on his attitude and behaviour.  A positive factor identified by Ms Rankin is the respondent's increased willingness to take responsibility for his future rather than relying on others to source opportunities for him. 

5. I am mindful that the respondent was released on a supervision order in 2011 after it appeared that he had made some progress in treatment and it was assessed that he was unlikely to make any further progress in detention, yet he breached the order by using cannabis and alcohol, concealed information and was hostile towards supervision.  However, I am required to assess his circumstances as they are now, and it seems to me that his progress has been more significant on this occasion, despite its limitations.  Further, one would expect that the extended period he has spent in detention since the contravention proceedings in 2012 would serve to deter the respondent from engaging in conduct that would breach the supervision order. 

6. The conditions of the supervision order are formulated so as to enable early detection of behaviour that may be regarded as a precursor to serious sexual offending, especially the use by the respondent of alcohol or illicit substances.  This allows for intervention at that stage to prevent the risk of such offending being realised.  It is to be expected that if he were to breach any of the conditions, the respondent would be dealt with swiftly (as Dr Brett has suggested) and he would be brought before the court on contravention proceedings so that the court can decide, if satisfied there has been a contravention, whether the adequate protection of the community requires the making of a continuing detention order.[71]  

   [71] Dangerous Sexual Offenders Act 2006 (WA) s 23.

Conclusion ‑ Suitability of the accommodation

1. While there are concerns about the suitability of the proposed accommodation because of the elevated risk referred to by Dr Brett, I am satisfied that the adequate protection of the community can be ensured by the restrictions and monitoring proposed by the applicant under the strict and extensive conditions of the supervision order, and by the support he will receive under that order.  I arrive at that conclusion in a context in which the respondent has generally demonstrated a commitment to dealing with the risk factors associated with his sexual offending, including engaging in treatment; has remained free of alcohol and illicit substances for a significant period of time in the last 12 months; has demonstrated a capacity to live in self-care arrangements within prison and to comply with his obligations in that environment; and has made efforts to plan a future in the community in which he will be occupied with study and art, although the viability of those endeavours remains to be assessed. 

2. I am satisfied, therefore, that adequate protection of the community can be ensured if the respondent is released on a supervision order to reside at the proposed accommodation. 

Conclusion ‑ Release on a supervision order

1. Consistently with the legal principles I outlined above, I should make the order that is least invasive of the respondent's right to be at liberty, whilst ensuring an adequate degree of protection of the community.  The respondent's circumstances have changed since the last annual review.  The change is such that I am satisfied the adequate protection of the community can now be achieved by a supervision order in the terms proposed in the annexure to these reasons. 

Period of supervision order

1. It is necessary to decide on the duration for which the supervision order is to be in force. I take into account that under s 8(4A) of the Act, if an offender is subject to a supervision order that is to expire within one year, the DPP can apply to the court for orders under s 14 of the Act[72] and for a further supervision order to take effect at the expiry of the current order.  That allows for a review of the offender's circumstances close to the end of the supervision order to determine whether there is a continuing need for the offender to be subject to supervision to ensure the adequate protection of the community.  Nevertheless it is necessary for me to make an assessment of the period that is necessary at this stage to ensure the adequate protection of the community and to enable the respondent to become self-sufficient in the management of his risk, if the risk persists after that passage of time. 

   [72] In effect recommencing the process of determining that the offender is a serious danger to the community and the making of orders for psychiatric reports and so on. 

2. The respondent is now 56.  While he has made progress, there is at this stage a need for tight controls and a continuing need for counselling to reinforce the insights he has gained and to support him in formulating strategies to avoid behaviour that will place him at risk of reoffending.  On the evidence adduced in these proceedings I conclude that it will take some considerable time for the respondent to become self-sufficient in that regard, if it happens at all.  In those circumstances, I consider that the appropriate duration for the order is 7 years. 

Application of amendment concerning effective date of supervision order

1. Section 33(1)(b)(ii) of the Act requires that when, on an annual review, a continuing detention order is rescinded and a supervision order is made, the orders are to take effect 'from a date specified by the court, but not earlier than 21 days after the day on which the review is concluded'. The review is concluded on the day that the decision is given.

2. Section 33(1)(b)(ii) resulted from an amendment to s 33 effected by s 28 of the Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA) (No 17 of 2016) (the amending Act). Prior to that amendment the procedure on an annual review when the court was satisfied that the offender remained a serious danger to the community was governed by s 33(2), which provided that the court may either (a) expressly decline to rescind the continuing detention order, or '(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.'

3. The relevant part of the amending Act commenced on 10 September 2016.  The application for this annual review was made on 21 June 2016.  The respondent submits that the amendment has no application to the annual review.  He submitted that the amendment affects a substantive right, and that ordinarily it is presumed that Parliament did not intend legislative amendments to have a retrospective effect, especially if it affects a substantive right.[73]  He submitted that, although an amendment that is merely procedural is to be construed retrospectively, that will not be the case where the statute, whilst procedural in character, nevertheless affects vested rights adversely; in such a case it is to be construed prospectively.[74]  It was submitted that, once the annual review commenced, the respondent had a vested right to be released immediately under s 33(2)(b). 

   [73] Relying on Director of Public Prosecutions (Cth) v Keating [2013] HCA 20; (2013) 248 CLR 459.

   [74] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261.

4. The assumption in the respondent's argument is flawed.  Before the amendment, a person who was subject to a continuing detention order did not have a right to be released on a supervision order upon the commencement of an annual review.  Assuming that the obligations imposed on the DPP and the court under pt 3 of the Act conferred correlative rights on the person who was subject to the order, the person's right at the commencement was to have the continuing detention reviewed.  If s 33(2)(b) conferred a right to immediate release,[75] it was only if at the conclusion of an annual review the court decided to make a supervision order and the person was not in custody for any other reason.  There was no 'vested right' under s 33(2)(b) before then.  Section 33(2) stipulated the procedure the court was required to adopt if satisfied the offender remained a serious danger to the community.  That procedure involved an exercise of discretion resulting in either declining to rescind the detention order or rescinding that order and making a supervision order. 

   [75] It is correct that once a detention order was rescinded under s 33(2)(b) the person would be entitled to be released (if he was not in custody for any other reason).  It is not necessary for present purposes to consider whether it was open to the court to defer the date on which the order was to take effect. 

5. A right to a particular procedure is acquired only when the occasion for the application of that procedure arises.[76]  In respect of the procedure under s 33(2), that was at a point in the annual review when the court had determined that the offender remained a serious danger to the community. 

   [76] Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 523.

6. The common law principle was explained in Rodway v The Queen in the following terms:[77]

   The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction.  It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation.  It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure.  Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption.  It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events.  A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance.  But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations.  When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation.  But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations. 

   [77] Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 518 ‑ 519.

7. In my opinion, the amendment effected to s 33 by the amending Act prescribed 'the manner in  which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events'.  At the time the amendment came into effect, the decision to be made under s 33 was something that was required to be done at a point in time in the future.  That time is now.  Therefore, the amendment operated prospectively. 

1. In any event, the amendment was, in my opinion, procedural, so there is no presumption against retrospectivity, even if the respondent had a right to have the matter determined according to the procedure in s 33 as it then existed when the annual review commenced. 

2. Finally, the High Court in Rodway was clear that a retrospective operation may be given to an amendment that affects an existing right or obligation if the language of the statute expressly or by necessary implication requires such construction.  In my opinion, if the respondent had the right for which he contends, then the amendment requires a construction that gives it retrospective operation by necessary implication from the objects of the Act[78] and s 33(3), both of which make the adequate protection of the community paramount. The obvious reason for the introduction of the delay of at least 21 days is to enable the protective measures under the supervision order, including electronic monitoring, to be put in place before the offender is released. The authorities could not be expected to assume the outcome of a review and have measures in place beforehand, particularly where, as in this case, the accommodation is not a private residence, but part of the supported accommodation program.

   [78] See Dangerous Sexual Offenders Act 2006 (WA) s 4.

3. Support for the construction of the amendment as procedural or as intended in any event to apply to proceedings that had already commenced may be found in the second reading speeches by the relevant Ministers to their respective Houses of Parliament.  It is appropriate to have regard to those speeches to confirm what I consider to be the ordinary meaning conveyed by the amending Act.[79]  The Ministers explained the policy underpinning the amendment as follows:[80] 

   This bill supports integrated cross-agency management of dangerous sexual offenders.  The lead agencies - in particular, the Department of Corrective Services, the Western Australia Police sex offender management squad, the Office of the Director of Public Prosecutions and the Prisoners Review Board - work closely together on this offender management, which is a cornerstone of the effectiveness of this legislation.  The bill will contribute to enhanced integrated management arrangements for dangerous sexual offenders by inserting new provisions facilitating the exchange of information between agencies.  This will be facilitated further by a new requirement that the release of a dangerous sexual offender under a supervision order must not take effect for at least 21 days to give the authorities responsible for the monitoring and management of the offender sufficient time to put any necessary policing arrangements into place. 

   [79] Interpretation Act 1984 (WA), s 19(1)(a) and (2)(f). 

   [80] See Western Australian Parliamentary Debates, Legislative Assembly, 17 May 2016, 3070c-3072a (Mrs L M Harvey, Minister for Police); Western Australian Parliamentary Debates, Legislative Council, 2 December 2015, 9224b-9226a (Hon Michael Mischin, Attorney General). 

4. In my opinion, the provisions of s 33(1)(b)(ii) of the Act apply and I am required to specify a date for the orders to take effect that is not earlier than 21 days after the date I make the orders rescinding the continuing detention order and making the supervision order.

Order

1. Accordingly, I rescind the continuing detention order made by Commissioner Sleight on 25 January 2012 with effect from 30 June 2017 and make an order that for a period of 7 years after that date, the respondent be subject to conditions in terms of the supervision order annexed to these reasons, and the respondent is to reside initially at the accommodation that was identified as the proposed accommodation during the course of the proceedings. 

Annexure

IN THE SUPREME COURT OF WESTERN AUSTRALIA

MCS 2 of 2009

IN THE MATTER of the Dangerous Sexual Offenders Act 2006

DIRECTOR OF PUBLIC PROSECUTIONS
FOR WESTERN AUSTRALIA   Applicant

-and-

MACKER JOSEPH DINAH  Respondent

___________________________________________________________________________

SUPERVISION ORDER MADE BY
THE HON JUSTICE FIANNACA ON 9 JUNE 2017

___________________________________________________________________________

The Court, having found pursuant to section 33(1)(a) of the Dangerous Sexual Offenders Act 2006 that the Respondent remains a serious danger to the community, pursuant to section 33(1)(b)(ii) of the Dangerous Sexual Offenders Act 2006, rescinds the continuing detention order made by Commissioner Sleight on 25 January 2012 and orders that the Respondent be the subject of a supervision order for a period of seven years from 30 June 2017, being a date 21 days from the orders made, on the following conditions:

THE RESPONDENT must:

STANDARD CONDITIONS REQUIRED BY THE ACT

1. Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of the person's current name and address;

2. Report to and receive visits from, a Community Corrections Officer as directed by the court;

3. Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;

4. Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B); and

5. Not leave, or stay out of the State of Western Australia without the permission of a Community Corrections Officer; and

6. Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order; and

7. Be subject to electronic monitoring under section 19A.

ADDITIONAL CONDITIONS

Residence

1. Take up residence at [Address stated], and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;

2. Keep a permanent place of residence as approved by a CCO;

3. Not invite or allow a female to attend at your place of residence unless such attendance has been approved in advance by a CCO, or unless otherwise directed by a CCO.  This does not include those persons involved in the management of your order, including support agencies;

Reporting to a CCO and supervision by a CCO

1. Report to a CCO at your nominated address as directed on the day of release from custody under this order, and thereupon advise the CCO of your current name and address;

2. Notify the CCO of any change of your name at least 2 business days before the change is due to happen;

3. Not commence or change your voluntary or paid employment, or place of education without the prior approval of a CCO;

Attendance at programs or treatment

1. Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;

2. Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO;

Reporting to WA Police

1. Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS), [Address stated] within 48 hours of your release, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of SOMS or his/her delegate;

2. If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order, and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order;

3. Permit a CCO or WA Police to access any computer, telephone, or device capable of storing digital data, for the purpose of ascertaining your computer related activities, and provide to the CCO or police any passwords required for access;

4. When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet usernames or identities used by you;

Disclosure/Exchange of Information

1. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;

2. Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;

Restrictions on contact with Victims

1. Have no contact, directly or indirectly, with the victims or alleged victims  of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Corrective Services;

2. Unless contact with victims is permitted pursuant to the previous condition, immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;

3. Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;

Criminal conduct

1. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;

2. Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA);

3. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;

4. Not possess, consume or use any prohibited drugs or substances, including, but not limited to, cannabis;

Curfew

1. Be subject to a curfew, pursuant to section 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;

2. When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;

3. When subject to a curfew under this order, ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;

Medications/Mental Health

1. Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO;

2. Undergo medical testing or treatment, including anti-depressant medication or anti‑libidinal treatment, as directed by the CCO in consultation with a medical practitioner or medical practitioners;

3. Comply fully with any treatment prescribed pursuant to condition 33;

4. Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease undergoing pharmaceutical anti-libidinal and or anti-depressant medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment;.

5. Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;

Prevention of high-risk situations

1. Unless compliance with this condition is waived in advance by a CCO, not hitch‑hike, nor accept lifts in vehicles from any female who is unaware of your offending history, unless the identity of such person is approved in advance by the CCO;

2. Not allow any female who is unaware of your offending history to enter any vehicle under your control, or in which you are a passenger, unless the identity of such person is approved in advance by the CCO;

3. Not attend at the private residence of another person unless such attendance is approved in advance by a CCO, or unless otherwise directed by a CCO;

4. Not associate with any person known by you to have committed a sexual offence, unless such association is authorized in advance by the CCO;

5. Not be in the possession of, use or be under the influence of alcohol;

6. Not go or remain at any licensed premises unless permitted or required to do so for the following reasons:

   (a)For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;

   (b)For a purpose, and for a duration, approved in advance by a CCO;

   (c)On the order of a CCO or Police Officer

7. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;

8. Provide a valid sample for testing pursuant to condition 43;

9. Not remain in the presence of females who you know to be affected by alcohol, or who you reasonably ought to know to be affected by alcohol, unless the identity of such person is approved in advance by the CCO;

10. Not remain in the presence of any person who you know to be affected by illicit substances or reasonably ought to know to be affected by illicit substances;

11. Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place;

12. Not enter the premises of, or access the services of, escort agencies or sex workers;

13. Make full disclosure to your CCO of the details of anyone with whom you commence a friendship, or a domestic, romantic, sexual or otherwise intimate relationship;

14. Make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship or a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.