Director of Public Prosecutions (WA) v Hart

[2019] WASC 4

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- HART [2019] WASC 4

CORAM:   FIANNACA J

HEARD:   10 JANUARY 2019

DELIVERED          :   10 JANUARY 2019

FILE NO/S:   MCS 21 of 2007

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Applicant

AND

DARREN MORTON HART

Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Contravention of supervision order - Substantially comply with standard conditions

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Supervision order amended

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	Mr D J McKenzie

Solicitors:

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

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173

Deputy Commissioner of Taxation (Cth) v Comcorp Australia Ltd (1996) 21 ACSR 590

Director of Public Prosecutions (WA) v Hart [No 3] [2010] WASC 253

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

Director of Public Prosecutions (WA) v Ugle [2017] WASC 280

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

Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250

Hembury v The Chief of General Staff [1998] HCA 47; (1998) 193 CLR 641; (1998) 155 ALR 514

Kim v Witton (1995) 59 FCR 258

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Re Asset Risk Management Ltd (1995) 59 FCR 254

Re Matthews (1989) 1 Qd R 300

Re News Corp Ltd (1993) 11 ACLC 733

The State of Western Australia v A [2018] WASC 250; Director of Public Prosecutions (WA) v Allen [No 5] [2018] WASC 274

The State of Western Australia v Bentley [2018] WASC 135

The State of Western Australia v Hart [2008] WASC 43

The State of Western Australia v Hart [No 2] [2009] WASC 121

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

The State of Western Australia v Misko [No 6] [2018] WASC 389

The State of Western Australia v Newland [2018] WASC 344

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331; (1979) 27 ALR 367

Victoria v Commonwealth (1975) 134 CLR 81

FIANNACA J:

The application

1. This is an application under s 22 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) arising from a number of contraventions by the respondent, Mr Hart, of conditions of a supervision order, to which he was subject while in the community. He was released on that order, pursuant to s 33(2)(b) of the Act, on 1 September 2010.

2. Although the applicant, the State of Western Australia, initially sought an order under s 23(1)(a) of the Act that, upon the court being satisfied of the contraventions, the supervision order be rescinded and a continuing detention order be made in relation to the respondent, it did not pursue that order at the hearing of the application.  Instead, it submitted that the court should make the alternative order it had sought, under s 23(1)(b), namely that the supervision order be amended in such terms as the court thinks fit, and any other order which the court considers necessary to achieve the respondent's compliance with the supervision order and the adequate protection of the community. 

Background

1. The history preceding the making of the supervision order, in brief, was that the respondent had been convicted and sentenced on a number of occasions from 1986 until 1997 of serious sexual offences against women, all involving violence and committed either in the course of a burglary on a home or by accosting the victim in the vicinity of her home.  On 26 November 1997, the respondent was sentenced in the District Court to an aggregate sentence of 16 years' imprisonment (backdated to 10 January 1997) for the last group of offences.  He was not released on parole and, under the statutory scheme applicable at the time, his sentence expired on 14 September 2007.  Before the sentence expired, the State made an application for orders under the Act on the basis that the respondent was a serious danger to the community.[1]

   [1] The history is outlined in greater detail in The State of Western Australia v Hart [2008] WASC 43 [2], [3], [12] - [22].

2. On 20 March 2008, Murray J found that the respondent was a serious danger to the community, in that there was an unacceptable risk that he would commit a serious sexual offence if not subject to a continuing detention order or a supervision order.  His Honour concluded that the adequate protection of the community, which is the paramount consideration,[2] could not be achieved at that time by the making of a supervision order. There was no suitable accommodation for the release of the respondent into the community, but his Honour considered that there were more fundamental issues concerning the respondent's failure to commit wholeheartedly to the violent offender and sex offender treatment, in respect of which he had 'a lot more to learn'.[3]  Consequently, his Honour made a continuing detention order pursuant to s 17(1)(a) of the Act.

   [2] Dangerous Sexual Offenders Act 2006, s 17(2).

   [3] The State of Western Australia v Hart [40].

3. Section 29 of the Act, as it applied at the time, required that, while the respondent continued to be detained under the Act, the detention was to be reviewed annually.  At the conclusion of the first annual review, on 29 April 2009, Hasluck J found that the respondent remained a serious danger to the community and that a supervision order remained inappropriate.[4]  The respondent had only in recent times agreed to participate in a sex offenders treatment programme, having declined to do so previously.[5] The respondent was to commence such a programme in the near future.  Accordingly, his Honour declined to rescind the continuing detention order.[6]

   [4] The State of Western Australia v Hart [No 2] [2009] WASC 121 [58] - [59].

   [5] The State of Western Australia v Hart [No 2] [26] - 28], [60].

   [6] The State of Western Australia v Hart [No 2] [62].

4. At the conclusion of the second annual review, on 1 September 2010, McKechnie J again found that the respondent remained a serious danger to the community (which was conceded on the respondent's behalf), but concluded that the detention order should be rescinded and a supervision order should be made.[7]  His Honour found that in the preceding year, the respondent had made significant gains.  He accepted the opinion of Dr Wojnarowska, the psychiatrist who had examined the respondent for that review, that while the respondent still presented with significant treatment needs, his risk of reoffending, although elevated, could be managed in the community if adequate resources were allocated.[8]  Further, Dr Wojnarowska was of the opinion that there was a strong possibility the respondent's treatment gains would be lost if he remained in detention.[9]  McKechnie J was satisfied that one important aspect of the resources required, namely, individual counselling, would be provided.[10]  He was also satisfied that 'a requirement to remain on anti-libidinal medication within a supervision order, together with other conditions, will mitigate the risk to some extent'.[11]  Finally, he was satisfied that suitable accommodation was available for the purposes of supervision within the community.[12] 

   [7] Director of Public Prosecutions (WA) v Hart [No 3] [2010] WASC 253 [4] - [5].

   [8] Director of Public Prosecutions (WA) v Hart [No 3] [5].

   [9] Director of Public Prosecutions (WA) v Hart [No 3] [5].

   [10] Director of Public Prosecutions (WA) v Hart [No 3] [7] - [8].

   [11] Director of Public Prosecutions (WA) v Hart [No 3] [9].

   [12] Director of Public Prosecutions (WA) v Hart [No 3] [12] - [14].

5. Accordingly, McKechnie J released the respondent on a supervision order under the Act for a period of 10 years, subject to 35 conditions, which were set out at the conclusion of the reasons (the supervision order).[13]  Conditions which are relevant to the consideration of this application will be identified in the course of these reasons.

   [13] Director of Public Prosecutions (WA) v Hart [No 3] [23].

6. After he was released subject to the supervision order on 1 September 2010, the respondent contravened various conditions of the order from as early as January 2011.  There have been numerous contraventions since that time.  However, none of them have involved sexual offending.  Of course, the conditions of the supervision order are intended to enable detection of behaviour which may indicate an elevation of the respondent's risk of sexual reoffending, so that there can be appropriate intervention by those who are supervising or monitoring the respondent.  His contraventions over the years since his release have been dealt with variously by the taking of no action, the issuing of warnings, referrals to the police for consideration of charges and, on occasions, the laying of charges by the police under the Act for the contraventions.

7. I will return later to the nature and circumstances of the respondent's earlier contraventions.  It is sufficient for present purposes to note that, on the occasions when he was charged prior to 2017, the sentences imposed included fines, suspended terms of imprisonment on 6 May 2013 and 21 December 2015, and a term of imprisonment of 12 months and one day imposed on 18 February 2016. That custodial sentence consisted of a term of 6 months' imprisonment for a contravention of the supervision order that occurred while the respondent was subject to the second suspended imprisonment order, and 6 months' imprisonment cumulative for the offence in respect of which he was on the suspended imprisonment order that was breached. The sentence was taken to have commenced on 29 January 2016, and the respondent was made eligible for parole.  He was released on parole on 8 August 2016, having served about six months and one week of the term.  Although he was issued with several written warning letters during the period of parole, he was considered to have satisfactorily completed parole on 28 January 2017.

8. The contraventions the subject of these proceedings occurred against that background.  They resulted in six charges under s 40A(1) of the Act of contravening a requirement of the supervision order without reasonable excuse.  The respondent was convicted of those offences on his pleas of guilty in the Bunbury Magistrates Court and was sentenced on 12 February 2018 to a global sentence for all of the offences of 12 months' imprisonment, backdated to 11 January 2018.  The respondent was made eligible for parole.

9. The present application was filed on 27 April 2018.  On 5 June 2018, Corboy J made programming orders for the hearing of the application, including an order pursuant to s 23A of the Act that the respondent undergo an examination by a qualified expert, namely Dr Wynn Owen.  His Honour also ordered, pursuant to s 24A of the Act, that the respondent be detained in custody until the conclusion of the contravention hearing.

10. The end date of the sentence imposed on 12 February 2018 is 10 January 2019.  The respondent became eligible to be considered for release on parole after serving 6 months of the term.  However, the Prisoner Review Board adjourned consideration of parole while the present proceedings were pending.

The law

1. The approach the court must take in contravention proceedings is governed by s 23 of the Act, which provides, relevantly:

   (1)If, on the hearing of an application under section 22, the court is satisfied, on the balance of probabilities, that the person to whom the application relates has contravened or is contravening a condition of a supervision order, the court must ‑

   (a)rescind the supervision order and make a continuing detention order in relation to the person; or

   (b)subject to subsection (1B), make an order amending the conditions of the supervision order, or extending the period for which the person is to be subject to the supervision order, or both; or

   (c)subject to subsection (1B), make an order affirming the supervision order without amendment or extension.

   …

   (1B)A court cannot make an order under subsection (1)(b) or (c) … unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions or amended standard conditions of the supervision order.

   (1C)The onus of proof as to the matter described in subsection (1B) is on the person to whom the application relates.

   (2)In deciding which order to make under subsection (1) …, the paramount consideration is to be the need to ensure adequate protection of the community.

2. The section was amended to its current form by the Dangerous Sexual Offenders Legislation Amendment Act 2017 (No 21 of 2017), s 20, which came into operation on 29 March 2018 (before these contravention proceedings were commenced).  There was no dispute in these proceedings that the amended form of s 23 applies. 

3. I discussed the effect of the section before the amendment in Director of Public Prosecutions (WA) v Ugle [2017] WASC 280, at [27] - [33].

4. It remains the case that the provisions of div 4 of the Act, which include s 23, assume that a person in respect of whom a supervision order is extant continues to be a serious danger to the community for the purposes of the Act.  The court is not required to make that determination.  The court is required to determine which order should be made from those listed in s 23(1)(a) - (c).  As to the approach to be taken to that determination, the effect of the section is now different from its pre-amendment form. 

5. Prior to the amendment, before the court could rescind the supervision order and make a continuing detention order, which is an order that the person be detained in custody for an indefinite term for control, care, or treatment,[14] the court had to be satisfied on the balance of probabilities that, if such an order was not made, there was an unacceptable risk that the person would commit a serious sexual offence.[15] In other words, the court had to be satisfied that the level of the person's risk had risen to a point where the community could no longer be adequately protected by any existing or amended conditions of a supervision order.[16] That requirement for positive satisfaction that a continuing detention order was necessary, was in contrast to the position that had been held to apply (and continues to apply) under s 17 (upon an initial application under the Act) and s 33 (upon an annual review).  Consistently with the views expressed in Director of Public Prosecutions (WA) v Williams,[17] if a court considering the options under those provisions is not satisfied[18] that a supervision order is capable of providing adequate protection of the community (having regard to the possible conditions which might be imposed, as identified in the evidence), it must make a continuing detention order under s 17 or decline to rescind the detention order on an annual review under s 33.[19] 

   [14] Director of Public Prosecutions (WA) v Ugle [2017] WASC 280 [31] - [33].

   [15] Director of Public Prosecutions (WA) v Ugle [30].

   [16] Director of Public Prosecutions (WA) v Ugle [30].

   [17] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [86] (Wheeler JA, Le Miere AJA agreeing) and [47] (Martin CJ).

   [18] Which includes if the court is left in doubt that a supervision order will provide adequate protection: Director of Public Prosecutions (WA) v Williams [86] (Wheeler JA, Le Miere AJA agreeing).

   [19] My reasons for concluding that this is the appropriate construction are set out in Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [29] - [32] and Director of Public Prosecutions (WA) v Ugle [28], relying on Director of Public Prosecutions (WA) v Williams and the paramount consideration of the need to ensure the adequate protection of the community under each of the provisions.

6. As currently worded, s 23(1) in conjunction with s 23(2), has, in relevant respects, the same effect as sections 17 and 33 in terms of the choice to be made between continuing detention and a supervision order.  Accordingly, while the court should choose the order that, consistently with the paramount consideration, is least invasive of the respondent's right to be at liberty,[20] unless the court is satisfied that the community could be adequately protected by releasing the respondent again on the supervision order made by McKechnie J, with or without amendment or extension of the period of that order, it would be necessary to rescind the supervision order and make a continuing detention order. 

   [20] The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Williams [79].

7. Moreover, subsections (1B) and (1C) (of which there are now equivalent provisions in sections 17 and 33) prevent the court from making an order releasing the respondent on the supervision order, with or without amendment or extension of the period, unless the court is satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions or amended standard conditions of the supervision order.

8. The parties were generally in agreement about the manner in which the requirements of s 23(1B) and (1C) should be construed.  In my opinion, the following propositions from the applicant's submissions are correct:

   (1)Section 23(1C) effects a reversal of the burden of proof that ordinarily applies under the Act by virtue of s 40, which deems proceedings under the Act to be criminal proceedings.

   (2)As the respondent has the legal burden of establishing that he will substantially comply with the standard conditions of the supervision order, he also has the evidential burden.[21]

   (3)However, in deciding whether the burden has been discharged, the court must have regard to all relevant and admissible evidence adduced in the proceedings. 

   (4)The evidence adduced by the applicant may form part or all of the evidence on which the respondent relies to establish that he will substantially comply.[22] This is in a context in which statements made by a respondent to medical and other professionals are routinely taken into account in proceedings under the Act as evidence of the respondent's state of mind, including his attitudes, beliefs and intentions, without the need for the respondent to give direct evidence about such matters, by virtue of s 42(4), which modifies the ordinary rules of evidence which would otherwise apply.

   (5)Therefore, it may not be necessary for the respondent to give evidence concerning his attitudes or intentions in order to prove that he would substantially comply with the standard conditions.  The need for him to do so will depend on what other evidence there is from which the court can draw a conclusion about that issue.

   [21] Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434, 454 [35] (French CJ, Crennan & Kiefel JJ).

   [22] See Braysich v The Queen 454 [37].  That case was concerned with proof of a statutory defence to a charge of a criminal offence, but the reasoning applies equally to the

9. In determining whether the respondent will substantially comply with the standard conditions or amended standard conditions, the respondent's prior history of compliance and non-compliance will be relevant and important.  However, self-evidently from the statutory scheme, the fact that the respondent is being dealt with for contraventions of conditions of the supervision order, including standard conditions, is not determinative of the issue under s 23(1B), and will not necessarily result in the making of a continuing detention order. The court must have regard to any other evidence, including evidence of developments in the respondent's circumstances since the contraventions occurred, which may inform the question of future compliance.

1. As to what is meant by 'will substantially comply', the Act provides no definition or guidance. 

2. A number of decisions have been delivered at first instance under the Act since the amendment came into force.[23]  They have involved proceedings under div 2 of the Act and periodic reviews of continuing detention orders.  In a number of the cases, the application of the amendment to the proceedings, which commenced before the amendment, was put in issue.  In each of those cases, the presiding judge concluded that it was not necessary to determine that issue, because the amendment would not affect the outcome. 

   [23] The State of Western Australia v Bentley [2018] WASC 135; The State of Western Australia v A [2018] WASC 250; Director of Public Prosecutions (WA) v Allen [No 5] [2018] WASC 274; The State of Western Australia v Newland [2018] WASC 344; The State of Western Australia v Misko [No 6] [2018] WASC 389.

3. In The State of Western Australia v Bentley, which concerned an application for div 2 orders, McGrath J did not determine the issue because he was satisfied the respondent was able to discharge the burden of establishing that he would substantially comply with the standard conditions of a supervision order in any event.[24] In making that finding his Honour did not discuss what was meant by 'will substantially comply', and it appears the parties did not raise that question.  The proceedings were under div 2, so determination of the question of prospective substantial compliance with conditions was based on psychiatric and psychological assessments and the respondent's conduct in custody while serving a lengthy term of imprisonment.  There was no question of the court having to consider prior contravention of conditions in making the determination.

   [24] The State of Western Australia v Bentley [27], [129].

4. The circumstances were similar in The State of Western Australia v A, which also concerned an application for div 2 orders.  Corboy J concluded that it was not necessary to determine 'whether the amendments to s 17 [applied] retrospectively in deciding [the] application', because, in his Honour's view, even before the amendment, s 17 required consideration of the likelihood of an offender complying with the standard conditions (and any other conditions) to be imposed if a supervision order was made, and, in the circumstances of that case, his Honour was satisfied the respondent would comply with such conditions.[25]  As his Honour explained:[26]

   Section 17 of the DSO Act requires the court to make either a continuing detention order or a supervision order once it is found that an offender is a serious danger to the community.  The paramount consideration in deciding which order should be made is the need to ensure adequate protection of the community.  In my view, that stipulation necessarily requires the court to consider the likelihood of an offender complying with the standard conditions (and any other conditions) to be imposed if a supervision order is made.  Self‑evidently, the protection of the community would be undermined if there is a real doubt about an offender's compliance with a supervision order.

   There may be cases in which the onus is significant in deciding which order must be made under s 17.  It is likely that those cases will be rare but, in any event, this is not such a case. 

   [25] The State of Western Australia v A [57] - [58], [122].

   [26] The State of Western Australia v A [58] - [59].

5. Having identified the factors in that case that led to the finding that the respondent was a serious danger to the community, his Honour said:[27]

   In my view, a supervision order could only be made in this application if I was positively satisfied that it is likely that the respondent will comply with the standard conditions of the order (and in this context, the word 'likely' connotes at least more probable than not).  I could not find that the community will be adequately protected unless I am satisfied about that matter regardless of which party carries the onus on the issue.

   [27] The State of Western Australia v A [61].

6. Later, his Honour referred to the factors that pointed to the likelihood that the respondent would comply with both the standard and non-standard conditions of the proposed supervision order.  Those factors included the respondent's motivation to remain offence free and in the community, the fact that he willingly participated in a sex offender treatment programme, his abstinence from drugs and his conduct while in prison.  His Honour said he was 'positively satisfied' that it was 'likely (more probable than not) that the respondent [would] comply with the standard conditions to be imposed by the supervision order'.[28]  As his Honour did not qualify his finding that the respondent would comply, no occasion arose for consideration of what is meant by 'will substantially comply'.

   [28] The State of Western Australia v A [122].

7. The views expressed by Corboy J in The State of Western Australia v A that s 17, pre-amendment, entailed a requirement for the court to be satisfied that an offender would comply with a supervision order were consistent, in my view, with the general principles outlined by Wheeler JA in Director of Public Prosecutions (WA) v Williams, to which I have referred at [17] above. Further, his Honour's view was consistent with the approach that had been taken by Martin CJ in Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250, which was a decision in respect of contravention proceedings prior to the amendment of s 23. In considering whether the respondent in that case should be released again on the supervision order, Martin CJ had regard to whether the respondent would 'substantially comply with the significant conditions imposed by [the supervision] order'.[29] His Honour was satisfied that it was 'more likely than not' that Mr Yates would comply, although he could not exclude 'the prospect of minor contraventions of the extraordinarily stringent conditions of the … order'.[30]

   [29] Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250 [60].

   [30] Director of Public Prosecutions (WA) v Yates [No 4] [60].

8. The provisions of s 23(1B) and (1C) reflect the approach that Martin CJ had taken in Yates [No 4] in respect of the need for satisfaction that an offender 'will substantially comply' with the conditions of a supervision order and the standard of satisfaction required. 

9. The State of Western Australia v Misko [No 6] was a decision in respect of a periodic review of a continuing detention order which proceeded on the basis that the equivalent amendment to s 33 applied.  Derrick J was satisfied the respondent would substantially comply with the conditions of a supervision order, but did not rescind the detention order because of the lack of suitable accommodation or practical means to provide the 24 hour supervision the respondent would require.[31] His Honour did not consider the meaning of 'will substantially comply', as it appears not to have been raised as an issue in that case.  As in Bentley, in finding that the respondent would substantially comply, his Honour relied on evidence of the respondent's conduct while in custody and his demonstrated gains in treatment, self-management and life-skills in coming to his decision.  There was no question of the court having to consider any prior contravention of conditions. 

   [31] The State of Western Australia v Misko [No 6] [196] - [197].

10. It may be assumed that in Bentley and Misko [No 6], McGrath J and Derrick J respectively regarded the words 'will substantially comply' to have a plain meaning that did not require elaboration.  As will appear below, that may be a sound approach to the interpretation of those words, but the decisions in Bentley and Misko [No 6] were given in a context in which the interpretation of the words was not a live issue.

11. In the present case, the applicant has raised the issue of what is required for the applicant to satisfy the court that he will substantially comply, particularly in light of the prior contraventions.  Ultimately, the applicant did not submit that the respondent had failed to discharge the burden of establishing that requirement, having regard to the evidence adduced in the proceedings.  Nevertheless, as the issue of the interpretation of s 23(1B) has been raised in the context of contravention proceedings, I have considered what is meant by the phrase 'will substantially comply'.

12. The starting point in construing the provision is to have regard to the text, context and purpose of the provision.[32]  The context includes the part of the statute within which it is contained and the broader statutory framework, including the purpose and policy of the legislation as a whole.  Where there is relevant extrinsic material available, it is appropriate to refer to such material to assist in the interpretation, whether to confirm that the meaning is the ordinary meaning conveyed by the text,[33] or to determine the meaning when the provision is ambiguous or obscure.[34]  However, extrinsic material cannot displace the clear meaning of a provision when that is discernible from the text and context.[35]

    [32] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby & Hayne JJ).

    [33] Interpretation Act 1984 (WA) (Interpretation Act), s 19(1)(a).

    [34] Interpretation Act, s 19(1)(b)(i).

    [35] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47].

13. The applicant referred to the explanatory memorandum in respect of the Bill containing the amending provision.[36]  The relevant portion of the memorandum read:

    The use of the phrase 'substantially comply' affords the court discretion to make a supervision order even if it comes to the conclusion that the offender may commit a trivial breach of the standard conditions. This wording is used throughout the Bill to ensure that this requirement is met in all cases where the court is considering making a supervision order, an interim supervision order or amendments to supervision orders.

    [36] Explanatory Memorandum to the Dangerous Sexual Offenders Legislation Amendment Bill 2017, 5.  Reliance may be placed on the memorandum pursuant to s 19(2)(e) of the Interpretation Act. 

14. The reference to 'discretion', in context, must be to the decision that the court must make, subject to the requirements of s 23(2), if it is satisfied the respondent will substantially comply with the standard conditions of the supervision order.  It is plain enough from the explanatory memorandum that the intended effect of the provision was that the prospect of a trivial breach of the standard conditions of a supervision order would not prevent the court from being satisfied that a respondent would substantially comply with the conditions.  That much could be inferred from the ordinary meaning of the text in any event, and it is consistent with the language used by Martin CJ in Yates [No 4] in putting to one side 'minor contraventions'.  However, to approach the matter as if the notion of substantial compliance means 'compliance in all respects other than trivial or minor breaches' is to put a gloss on the statutory language that is apt to obscure the purpose of the amendment and the fact that the assessment under s 23(1B) is a matter of judgment about a concept involving degrees.[37]  It begs the question of what would be 'trivial' or 'minor' in any particular case, and potentially ignores other factors that may be relevant to what is one aspect of the broader exercise of predicting whether the community can be adequately protected if the respondent is released again subject to a supervision order.

    [37] See the analysis of the words 'substantial compliance', in the context of an exception to provisions concerning the invalidation of deeds under the Corporations Law, in Deputy Commissioner of Taxation (Cth) v Comcorp Australia Ltd (1996) 21 ACSR 590, 627 - 628 (Carr J, Lockhart J agreeing).

15. Further, when looking at prior conduct as a basis for predicting future conduct, the frequency or regularity of contraventions might also inform the question of whether a respondent will substantially comply, so that the distinction between minor and more significant contraventions may not be determinative in any event.  Contraventions that appear to be minor when considered individually might take on greater significance if they occur frequently, and may raise doubts about whether an offender will substantially comply if released again on a supervision order.  On the other hand, a breach of a more serious kind of a standard condition on an isolated occasion would not necessarily mean the offender is not substantially complying with such conditions.

16. The applicant submitted that guidance for the interpretation of s 23(1B) might be derived from authorities that have considered the meaning of the word 'substantial' in the context of the phrase 'substantial miscarriage of justice' in the common form criminal appeal provision.  The applicant referred to Hembury v The Chief of General Staff[38], which in fact dealt with a provision of the Defence Force Discipline Appeals Act 1955 (Cth), which was not in the common form, but nevertheless required the appellate court to be satisfied there had been a substantial miscarriage of justice. Putting aside the specific legislative context, the applicant submits that two possible interpretations of 'substantial' were referred to in that case. McHugh J, relying on a formulation used by Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union,[39] was of the view that the word 'substantial' must be taken to mean 'real or of substance as distinct from ephemeral or nominal'.[40]  Kirby J was of the view that (footnotes omitted):[41]

    Against the background of legal history, and the strict approach conventionally taken to errors of law, the words 'substantial miscarriage of justice' in a provision such as s 23 [of the Defence Force Discipline Appeals Act 1955 (Cth)] are used in contradistinction to a miscarriage which is de minimis.

    [38] Hembury v The Chief of General Staff [1998] HCA 47; (1998) 193 CLR 641; (1998) 155 ALR 514.

    [39] Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union(1979) 42 FLR 331; (1979) 27 ALR 367, FLR 348.

    [40] Hembury v The Chief of General Staff [22].

    [41] Hembury v The Chief of General Staff [74].

17. His Honour pointed out that, in the context of the expression 'substantial miscarriage of justice' in legislation providing for the ordering of retrials, 'substantial' is a technical word and includes a technical meaning.[42]

    [42] Hembury v The Chief of General Staff [73].

18. In my opinion, given the specific and technical context of the common form criminal appeal provision, the interpretation of 'substantial' in that context is not really helpful in construing s 23(1B) of the Act.  In particular, I would not consider that 'substantially comply' means simply to comply in a manner that is more than de minimis, or in a manner that is not ephemeral or nominal.

19. With respect, greater assistance is derived from examining authorities that have dealt with the concept of 'substantial compliance' in other legal contexts, including the Corporations Law,[43] immigration law (concerning applications for visas)[44] and probate legislation concerning the formalities for a valid will.[45]  Although those authorities concern the assessment of past conduct to determine whether there has been 'substantial compliance', rather than the prediction of future conduct (which is required in this case), the general principles nevertheless provide guidance, in my opinion, as to the proper approach to interpreting the phrase 'substantially comply with'.

    [43] Deputy Commissioner of Taxation (Cth) v Comcorp Australia Ltd, 44; Re Asset Risk Management Ltd (1995) 59 FCR 254; 130 ALR 605.

    [44] Kim v Witton (1995) 59 FCR 258.

    [45] Re Matthews (1989) 1 Qd R 300.

20. Deputy Commissioner of Taxation (Cth) v Comcorp Australia and Others concerned an application under s 445G of the Corporations Law for declarations that certain deeds of company arrangement where void because of contraventions of the provisions of the legislation relating to entering into such a deed. Section 445G(3) empowered the court to declare that a deed was valid, despite a contravention of a provision of the relevant part of the legislation, if the court was satisfied that the provision was substantially complied with and no injustice would result for anyone bound by the deed if the contravention was disregarded.[46] The judge at first instance dismissed the Deputy Commissioner's application and made declarations that the deeds were valid.  On appeal, Carr J (Lockhart J agreeing) considered what was meant by 'substantially complied with'.  His Honour drew on earlier decisions[47] concerning 'a similar exculpatory provision' under the legislation to conclude that what amounts to substantial compliance is a matter of degree in each case, and that the court is concerned with the practical effect of what has been done, which should be compared with the practical effect the legislature appears to have sought to achieve.[48]

    [46] Deputy Commissioner of Taxation (Cth) v Comcorp Australia Ltd, 626

    [47] Re News Corp Ltd (1993) 11 ACLC 733, 734 (Hill J); Re Asset Risk Management Ltd, 607 (Burchett J).

    [48] Deputy Commissioner of Taxation (Cth) v Comcorp Australia Ltd, 627 - 628.

21. In particular, Carr J agreed with the views of Burchett J in Re Asset Risk Management Ltd cautioning against putting a gloss on the language because 'each case is likely to raise its own problems, and it will always be necessary to apply afresh the statutory language'.[49] A similar approach had been taken in Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd,[50] another case referred to by Carr J in Comcorp, where Smithers J had commented:[51]

    'Substantially' is a word the meaning of which in the circumstances in which it is applied must, to some extent, be of uncertain incidence and a matter of judgment.  There is no precise scale by which to measure what is substantial. 

    [49] Re Asset Risk Management Ltd 607 (Burchett J).  Similar views were expressed by Carter J in Re Matthews, a case concerning the execution of a will, where his Honour, adopting the view that 'a question of degree is involved', noted (at 302) that 'departures from the statutory formalities are likely to be many and varied'.

    [50] Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173; 64 FLR 238.

    [51] Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd, 259 - 260.

22. Carr J also referred to the remarks of Deane J in Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union, a decision under Pt 4 of the Trade Practices Act 1974 (Cth) in which it was necessary to consider whether conduct was likely to result in 'substantial loss or damage'. Deane J had noted that 'the word “substantial” is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision'.[52]

    [52] Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union, FLR 348.

23. The approach that Carr J took ultimately in Comcorp was particular to the legislative context of that case, and involved an assessment of past conduct, rather than a prediction of future conduct.  Nevertheless, noting that the word 'substantially' was used in a relative sense, the approach involved an assessment of the degree to which the practical effect of the legislative provision was diminished by the contraventions, to determine whether, nevertheless, it could fairly be said that the provision was substantially complied with.[53]

    [53] Deputy Commissioner of Taxation (Cth) v Comcorp Australia Ltd, 628.

24. Although he dissented in the outcome in Comcorp, Sheppard J also analysed the meaning of 'substantially complied with' in a manner which, in my respectful opinion, is of assistance in the present case.  His Honour was of the view that expressions such as 'substantial compliance' are ordinary English expressions and ought to be given their ordinary meaning.[54] Nevertheless, his Honour noted that the expression has a history and a significance in relation to problems relating to statutory construction where a question arises whether a provision of a statute, apparently mandatory in its terms, is in fact mandatory or directory.  His Honour drew on views expressed by Stephen J in one such case, Victoria v Commonwealth (1975) 134 CLR 81; 7 ALR 1, to emphasise the need to consider the objects of the legislation. Stephen J had said:[55]

    A directory construction will not assist in securing validity unless, despite the non-compliance which is the occasion for invoking that construction, there may nevertheless be seen to be substantial compliance with the general object at which the statutory provision aims. Sometimes the stipulation which has not been complied with is, in its context, so relatively unimportant to the attainment of that general object that, although there has been total non-compliance, a directory construction may be appropriate.

    [54] Deputy Commissioner of Taxation (Cth) v Comcorp Australia and Others 599.

    [55] Victoria v Commonwealth (1975) 134 CLR 81; 7 ALR 1, CLR 179.

1. In Comcorp, Sheppard J was of the view, accordingly, that it is necessary to consider whether what has been done gives effect to the general object of the legislation; if it does not, there will not be substantial compliance.[56]  In my respectful opinion, approaching the question in that way has the virtue of focussing on the compliance, rather than the breach, to determine if there has been substantial compliance.

   [56] Victoria v Commonwealth, CLR 601.

2. In the context of s 23(1B), the question would be, in essence, whether the court is satisfied that the respondent would comply with the standard conditions in a manner that would give effect to the general object of the supervision order and the legislation, namely the adequate protection of the community by appropriate management of the unacceptable risk that the respondent will commit a serious sexual offence.

3. In Kim v Witton (1995) 59 FCR 258, the issue under the Migration (1993) Regulations 1992 (Cth) was whether the applicant, who was applying for a specialist overseas entry permit had 'complied substantially' with the conditions of the tourist visa he held at the time of the application, which prevented him from working in Australia.  He had provided graphic artwork to a government department and had been paid for his expenses.  Sackville J held that the Immigration Review Tribunal had been correct in accepting that 'an applicant might "comply substantially" with a condition imposing a prohibition, even if the condition has been breached', as the regulations contemplated that '“some degree of non-compliance with visa conditions” may be permitted'.[57]  His Honour was of the view that whether an applicant had 'complied substantially' with a condition prohibiting work 'is a question of fact, to be determined having regard to the particular circumstances of the case'.[58]  Further, he considered it was broadly correct that, in determining the question of substantial compliance, it was necessary to take into account the 'proportionality' of the breach and the bona fides (or lack of bona fides) of the applicant.[59]  Proportionality required consideration of the significance of the breach by reference to the purposes for which the visa or entry permit was granted.  An assessment of the applicant's bona fides would consider whether he had deliberately flouted the condition and, if he failed to appreciate that he was in breach, what, if anything may have contributed to that failure.[60]

   [57] Kim v Witton, 270 - 271.

   [58] Kim v Witton, 271.

   [59] Kim v Witton, 271.

   [60] Kim v Witton, 271.

4. Kim v Witton was concerned with an assessment of past conduct rather than a prediction of future conduct.  Nevertheless, making allowance for the contextual difference, the reasoning of Sackville J in that case, and the considerations to which his Honour referred, are apt in the context of s 23(1B).  Of course, in the context of contravention proceedings, an assessment of past compliance or non-compliance with the conditions of the supervision order will be relevant in determining whether the respondent will substantially comply with conditions in the future.  In that context, considerations such as the relative significance of any breach in light of the objects of the legislation (and of the supervision order more specifically), the bona fides of the respondent and whether there are explanations that might mitigate the breaches, inform the question of whether the respondent was substantially compliant previously, notwithstanding the breaches. 

5. In the context of predicting future conduct, the factors identified in Kim v Witton translate into questions concerning the respondent's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions), his capacity to comply with the conditions, what measures there are in place to ensure he would substantially comply, and the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the Act.  Considerations of the kind relied on by Corboy J in The State of Western Australia v A[61] and by Derrick J in Misko [No 6] would be relevant in that context.  In particular, where engagement in counselling is to be a condition of the supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk.

   [61] See [27] above.

6. The court and the community expect that a person released on a supervision order will comply with the conditions of the order strictly.  However, it is realistic to recognise, as s 23(1B) does in effect, that there may be missteps from time to time, particularly given the very onerous nature of the conditions required to adequately manage the person's risk.  The question is whether, notwithstanding such missteps, I can be satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order.

7. In summary, in light of the authorities I have reviewed, I consider that the appropriate approach to what is required under s 23(1B) is as follows:

   (1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.

   (2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.

   (3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.

   (4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve. 

   (5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.

   (6)The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.

   (7)Factors that are relevant to that assessment would include the respondent's history of compliance and non-compliance and the factors set out at [50] above.

The issues in these proceedings

1. Having regard to the provisions of s 23 and the applicable legal principles, the issues in these proceedings are:

   (1)Can the adequate protection of the community be ensured if the respondent is released on the supervision order, amended to refer specifically to the need for compliance with s 18 of the Act?

   (2)As a step in answering that question, am I satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order, in the sense discussed above?

Evidence in the proceedings

1. At the hearing of this application on 4 October 2018, the applicant tendered, without objection, a book of materials (BOM) which included:

   (1)particulars of the alleged contraventions the subject of these proceedings;

   (2)psychiatric reports of Dr Wojnarowska from the proceedings in 2007 and 2010;

   (3)the respondent's criminal history;

   (4)materials in respect of the respondent's 'historical contraventions from 2012 to 2016;

   (5)materials in respect of the recent contraventions, including transcripts of his interviews with the police in respect of two of the contraventions;

   (6)the sentencing transcript from 12 February 2018 in the Bunbury Magistrates Court;

   (7)a psychiatric report of Dr Wynn Owen, dated 24 September 2018 (Dr Wynn Owen's report);

   (8)a Dangerous Sex Offender Treatment Progress Report by Ms Wilson-Brown, Senior Counselling Psychologist with the Forensic Psychological Service within the Department of Justice, dated 11 September 2018 (Ms Wilson Brown's report); and

   (9)an Adult Community Corrections Performance Report by Ms Oppert, Senior Community Corrections Officer, dated 21 September 2018 (Ms Oppert's report). Ms Oppert has been the respondent's supervising Community Corrections Officer for the last two years. 

2. Each of Dr Wynn Owen, Ms Wilson-Brown and Ms Oppert gave oral evidence at the hearing which confirmed and elaborated upon the contents of their reports.  Each of them had interviewed the respondent for the purposes of these proceedings, and their reports and oral evidence included information provided by the respondent.  The witnesses were not challenged in respect of their evidence, and I am satisfied their evidence was cogent and reliable.

3. The respondent elected not to give evidence.  For the purposes of s 23(1B), he relied on the evidence in the applicant's case.

The contraventions of the Supervision Order

1. It is convenient to consider the evidence in respect of the contraventions first.

2. As I said earlier, each of the contraventions the subject of the application was also the subject of a summary charge in the Magistrates Court for an offence under s 40A of the Act of contravening a requirement of the supervision order without reasonable excuse.

3. On 12 February 2018, in the Bunbury Magistrates Court, the respondent pleaded guilty to, and was convicted of, all of the six offences with which he was charged.  He was sentenced to 12 months' imprisonment in respect of each offence, all of the terms to be served concurrently.  The magistrate ordered that the total effective sentence of 12 months' imprisonment be taken to have commenced on 11 January 2018, when he was taken into custody.

4. While the respondent's pleas of guilty were admissions of the contraventions, a formal admission was made on behalf of the respondent in any event at the commencement of these proceedings in respect of the contraventions and the facts set out in the Amended Particulars.  Therefore, I find each of the contraventions and the facts in the Amended Particulars proved in these proceedings.  However, in relation to the facts, I also take into account the other materials tendered in the proceedings, which provide further context.

5. The facts as set out in the Amended Particulars are as follows.

The conditions that were breached

1. Condition 7 of the supervision order required the respondent to report initially to the CCO at Bunbury Community Justice Services.  Condition 8 then provided:

   Thereupon be under the supervision of a CCO, and when so supervised, to comply with the same requirements set out in section 76 of the Sentence Administration Act 2003 that offenders must comply with under that section.

2. Section 76 of the Sentence Administration Act 2003 provides, relevantly, that an offender must comply with the lawful orders or directions of any CCO.

3. Condition 31 of the supervision order provided that the respondent was to:

   Attend for, and submit to, urinalysis or other testing for illicit drugs or substances as directed by the CCO or by a Police Officer.

4. Condition 34 provided that the respondent:

   Not use or be under the influence of alcohol, except if such use is approved in advance by the CCO.

5. Condition 35 provided that the respondent was to:

   Attend for, and submit to, urinalysis and other testing, including breath testing, for alcohol as directed by the CCO or by a police officer, in order to monitor his compliance with the immediately prior condition.

6. During the currency of the supervision order, a CCO issued a number of written lawful directions to the respondent pursuant to Condition 8 on various occasions.  The dates and text of the directions were as follows:

   (1)26 November 2015 - 'To be contactable by a CCO at all times on your personal mobile phone, which is to be sufficiently charged at all times' (the contact direction).

   (2)7 November 2016 - 'YOU ARE HEREBY DIRECTED TO: keep with you your Personal Carried Unit (PCU) whenever you are not at home' (the PCU direction).

   (3)7 November 2016 - 'YOU ARE HEREBY DIRECTED TO:  immediately respond to any vibration alert or phone call from the Central Monitoring Station' (the CMS direction).

   (4)7 November 2016 - 'YOU ARE HEREBY DIRECTED TO: not interfere with, render inoperable, cause damage to, destroy, remove, deface or alter the operations of the transmitter that is fitted to your person' (the transmitter direction).

   (5)23 May 2017 - 'As per condition 35 of your order, you are required to attend for and submit to urinalysis and other testing. Furthermore you are required to provide a sample that is viable and able to be tested appropriately. Should your initial sample be unsuitable, you will be required to remain or return to the testing centre on the same day until a valid/testable sample is able to be provided' (the testing direction).

   (6)25 July 2017 - 'You are required to inform Adult Community Corrections before you have a female staying at your address overnight' (the July 2017 direction).

7. A PCU is part of the electronic monitoring device which a person subject to a supervision order is required to carry with him to facilitate the electronic monitoring required as a standard condition by s 18(1)(g) of the Act: see s 19A. The CMS is the station at which the location of a person subject to a supervision order is monitored.

8. From 18 June 2017 to 12 January 2018, the respondent contravened the order on six occasions.

Contravention 1 - 18 June 2017 (also charge MC BUN 3818/17)

1. On 18 June 2017, a 'tamper alert' was received from the respondent's Electronic Monitoring Two Track System device at the Central Monitoring Station (CMS), which was an indication that the device may have been tampered with.  As a result, an Electronic Monitoring Officer (EMO) attempted to contact the respondent by telephoning his mobile at 12.27 pm, 12.34 pm and 12.42 pm, but the calls were not answered.  A further call was made to the respondent's mobile phone at 12.53 pm, but the respondent did not answer. Three further calls were made to the respondent's PCU, but he did not respond to those calls either.

2. The respondent eventually contacted CMS at 1.15 pm that day, stating that there was nothing wrong with his monitoring device.

3. It was later established that the ankle strap component of the respondent's monitoring device was broken, which had set off the tamper alarm. It was not possible to say with precision how that had happened.

4. On 4 July 2017, the respondent participated in a video recorded interview with police.  His explanation for not answering his mobile phone was that he had been provided with a new temporary mobile phone by Community Corrective Services (as there was no credit on his personal mobile phone) and he had not heard the phone ringing, because he had left it in the kitchen, while he was in another room.  His explanation for not answering the calls to his PCU was that the PCU was on its charging dock in the kitchen.  He said that he had heard it ring on two occasions and had tried to answer, but no one spoke to him.  The applicant notes that the latter explanation is not corroborated by CMS staff.  In light of the evidence that has been given concerning the future manageability of the respondent's risk under a supervision order, it is not necessary to resolve that issue.  No additional evidence was adduced in that regard.

5. The respondent was not able to give an explanation for his failure to call the CMS back on the phone number that was clearly displayed on the front of the charging dock.

6. The respondent's conduct in failing to immediately respond to the phone calls from the CMS was in contravention of Condition 8 of the supervision order and the CMS direction issued on 7 November 2016.

Contravention 2 - 7 July 2017 (also charge MC BUN 3819/17)

1. On 7 July 2017, the respondent left his residence in a suburb of Bunbury without taking his PCU with him.  Therefore, he could not be monitored by the CMS.  However, someone from CMS was able to contact the respondent on his mobile phone and he returned home to retrieve his PCU.

2. The respondent's explanation to his CCO was that he had got distracted and simply forgot to take his PCU.

3. The respondent's conduct in not taking his PCU with him when he left home was in contravention of Condition 8 and the PCU direction issued on 7 November 2016.

Contravention 3 - 11 August 2017 (also charge MC BUN 4309/171)

1. On 11 August 2017, the respondent was directed to attend a testing centre for urinalysis. The respondent attended the testing centre as directed, however he provided a sample which was not viable for analysis due to a low creatinine level. 

2. After the respondent left the testing centre, his CCO attempted to contact him on his mobile phone, without success. The CCO and a manager attended at the respondent's home, but he was not present. It was ascertained that the respondent had left home without his mobile phone.  Further, the phone was switched to 'silent' mode.

3. The respondent was eventually contacted on his PCU, but by that time it was too late for him to return to the testing centre to provide a further urine sample that day.

4. However, the respondent attended the testing centre again the following day and provided a viable sample, which tested negative for illicit drugs or substances.

5. The respondent's conduct in failing to provide a viable sample of urine for analysis was in breach of Condition 35 and the testing direction issued on 23 May 2017.

6. On 17 August 2017, the respondent attended Bunbury Police Station by appointment in respect of this matter.  He declined to participate in an interview.

Contravention 4 - 11 August 2017 (also charge MC BUN 4310/ 17)

1. This contravention concerns the respondent's failure to take his mobile phone with him on 11 August 2017, which resulted in the CCO being unable to contact him when it was discovered that he had provided a sample for urinalysis which was not viable.

2. The respondent's conduct in not taking his mobile phone with him when he left home was in breach of Condition 8 and the contact direction issued on 26 November 2015.

Contravention 5 - 24 December 2017 (also charge MC BUN 86/18)

1. On 24 December 2017, whilst at a friend's house, the respondent consumed an unconfirmed quantity of bourbon without having been given prior approval by his CCO.

2. On 27 December 2017, the respondent reported for his weekly supervision meeting with his CCO, during which he disclosed that he had consumed alcohol at a friend's house over the Christmas period.

3. On 30 December 2017, the respondent was conveyed to Bunbury Police Station, where he participated in a video recorded interview with police. During the interview, he admitted that he had consumed alcohol and claimed that he had only drunk a 'capful' of bourbon. He also admitted knowing that this was in contravention of the supervision order and that he had not been given approval by his CCO.

4. The respondent's consumption of alcohol was also confirmed by witnesses who were present.

1. The respondent's explanation was that he was angry because other members of his family had gone to Collie for Christmas and he was unable to go, due to the terms of an exclusion order made pursuant to the supervision order.

Contravention 6 - between 10 & 12 January 2018 (also charge MC BUN 193/18)

1. On the nights of 10 and 11 January 2018, the respondent allowed a young woman, aged 17 years, to stay at his premises. The respondent failed to inform Adult Community Corrections of that fact.

2. The respondent knew that the young woman had been in a care home in Armadale and had run away from the facility.

3. On 12 January 2018, the respondent was arrested and conveyed to the Bunbury Police Station where he participated in a video recorded interview.  He admitted that he allowed the young woman to stay at his home over two nights and that he failed to inform Adult Community Corrections of that fact. He also admitted being aware of the availability of a phone number that could be called 24 hours a day, 7 days a week (the 24/7 phone number), which he could call to report such incidents if he so wished.

4. The respondent's conduct in permitting the young woman to stay at his home overnight without informing Adult Community Corrections was in breach of Condition 8 of the supervision order and the July 2017 direction.

The respondent's police interview re Contravention 6 - additional matters

1. In addition to the Amended Particulars, the Book of Materials contains the full transcript of the respondent's interview with the police in relation to the last contravention.

2. The respondent explained that the young woman was a 'friend of a friend from down the road'.[62] He said that on the Wednesday night (10 January 2018) he was in bed, sound asleep, when he heard a knock on the door. When he answered the door, the young woman was standing there with a male. He said he told the young woman that she could not be there, but she was upset and said she had nowhere to go and did not want to sleep on the streets. Respondent told the police that the young woman said she just needed 'somewhere … to crash'. He said that he then allowed the young woman to stay overnight, and the young male who was with her left. He said that the following day the young woman went out all day, but returned in the early evening. He said that although he told her to 'grab her stuff and to go along', she said she was going back to Perth on Friday and just needed somewhere to stay until then.  In those circumstances, he let her stay again on the Thursday night.[63]

   [62] BOM 309.

   [63] BOM 309.

3. The respondent told police that he thought the young woman was 17 years of age.[64] When asked about her physical development, he said he did not look at her like that.[65] 

   [64] BOM 310.

   [65] BOM 311.

4. When questioned about his failure to inform Adult Community Corrections, the respondent said it was 11 o'clock at night and he was half asleep, but he also said that he did not think there was an issue.[66] When it was pointed out to him that he had a further opportunity to contact Adult Community Corrections on the Thursday, he said that the young woman had told him she did not want him to do that.  He said:[67]

   I understand the instructions that, that was given to me, but at the time she was in a state of she didn't want to get me in trouble or herself in trouble, and I was in a logjam - I was more cautious of my own site, knowing that this is gonna happen.

   [66] BOM 311.

   [67] BOM 312.

5. When it was pointed out to the respondent that the young woman was a 'very vulnerable 17-year-old girl', the respondent said:[68]

   I will not do that. I will never do that. Please don't think, I'm not a bad, I'm not that person there.

   [68] BOM 314.

6. Although for the most part the respondent was cooperative, admitting what had occurred and explaining that he had been placed in a difficult situation, towards the end of the interview he became somewhat argumentative about how the police could establish that the young woman had been in his house.[69]

The respondent's account to the authors of reports re Contravention 6

[69] BOM 317 - 320.

1. The accounts given by the respondent to the authors of the reports prepared for these proceedings, concerning the incident with the young woman, were generally consistent with each other and with what he had said to the police.

2. Ms Wilson-Brown said that the respondent initially queried whether he had done anything wrong, stating, 'All I did was help a female friend stay on my couch.'[70] However, he acknowledged that he knew he had breached his order by letting her stay, and he said he had told her so. He went on to explain that he wanted to help the young woman.  He said she wanted to talk and that he had given her a cup of tea and some food, and that they had watched television and talked. He said he believed she was in trouble that night, and that she did not have anywhere to stay. He expressed the view that he had acted as a 'responsible person' and would do it again, even if it meant a return to prison, because 'she could have gone missing' and that 'would have made [him] feel really bad'.[71]

   [70] BOM 358 [29].

   [71] BOM 358 [29].

3. Dr Wynn Owen said he explored the incident with the young woman in considerable detail with the respondent.[72]  The respondent denied that he had any sexual interest in the young woman. He said he knew he would be in trouble, but he felt that he needed to offer her a safe haven. 

   [72] ts 35.

4. As he did with Ms Wilson-Brown, the respondent told Dr Wynn Owen that he would do it again if placed in the same situation, because he believed that, if someone is at risk, he could do the right thing by that person.  Dr Wynn Owen was of the opinion that the respondent delivered his answer with considerable sincerity.[73]

   [73] ts 36.

5. I will return later to the significance of this contravention to Dr Wynn Owen's assessment of the respondent's risk of sexual reoffending.

6. The respondent's account to Ms Oppert was in similar terms to the other accounts, and it is not necessary to repeat it. 

The magistrate's comments

1. In sentencing the respondent for the six offences of contravening the supervision order without reasonable excuse, the learned magistrate, on 12 February 2018, outlined the respondent's history on the supervision order, in particular the contraventions that had previously resulted in terms of suspended and immediate imprisonment.  Her Honour noted that the respondent had been made well aware that the court took breaches of supervision orders 'extremely seriously'.  She said:[74]

   You've continued to breach your supervision order in similar manners (sic) to which you had in the past. Some of these breaches are, of course, more serious, particularly the breach in which a 17 year old female was at your address in contravention of the order, you not having notified Community Corrections that she was going to be there. Now, I accept the basis upon which she was there, but you, having been breached on so many occasions in the past and been subject to this order, which you agreed to be subject to, you did nothing in order to ensure that Community Corrections knew that she was there.

   [74] BOM 337.

2. Her Honour went on to say:[75]

   It seems to me, Mr Hart, that despite numerous opportunities being provided to you to comply with this supervision order, you continue to breach it.

   [75] BOM 337.

3. Further:[76]

   You, having been convicted of seven breaches of a supervision order in the past, are now before me again with … six further breaches, some of which are quite serious.

   The most serious one I consider is the one where the 17 year old female was at your address. The other one that I consider to be serious is the fact your ankle bracelet - there was a tamper alert, and you failed to answer three calls made to you and a further three calls to the unit and a further call to the mobile, when finally you decided to call them back later.

   [Y]our explanations of getting distracted and not remembering to take your device or your personal carriage unit with you really are unacceptable explanations, given the fact that you have been breached for the same breaches of the supervision order in the past, and, in fact, you have served your suspended term of imprisonment as a result of breaching the order in a similar manner.

   [76] BOM 337 - 338.

4. Her Honour said that she had to take into account the need for personal deterrence, which she considered to be paramount, and the need for general deterrence. In the circumstances, her Honour considered that the only appropriate sentence was an immediate term of imprisonment.  She determined that it should be a global sentence of 12 months.

5. I agree with the learned magistrate's assessment that the first contravention (failing to immediately respond to calls concerning a tamper alert) and the last contravention (allowing the young woman to stay at his house without informing his CCO) were particularly serious.  The first contravention thwarted the ability of the authorities to monitor the respondent's location for a period of time.  Such monitoring is an important aspect of ensuring the adequate protection of the community.  The last contravention undermined an important measure available to those supervising the respondent to ensure (a) the protection of any vulnerable female who may be alone with the respondent and (b) that the risk of the respondent committing a serious sexual offence does not manifest.  While the other contraventions were of a less serious kind, I would not regard them as trivial or minor, especially having regard to the respondent's prior history of non-compliance.  Nothing said by the magistrate would suggest that she regarded any of the contraventions to be trivial or minor either.

6. Of course, the considerations in sentencing the respondent, in particular the need for punishment, personal deterrence and general deterrence, were different to those that inform my decision in these proceedings.  In having regard to personal deterrence, the magistrate took into account the potential for the respondent to be released again on a supervision order at some future time, and the expectation that the sentence would deter the respondent from contravening in the future.

Previous assessment of the respondent's risk

1. As a number of the opinions expressed by Dr Wynn Owen in this matter depend on a comparison between the respondent's previous attitudes and behaviours and those expressed and shown at the time of the current assessment, it is necessary to consider what was said about those matters previously and their significance in the assessment of his risk of reoffending in earlier proceedings.

2. Dr Wynn Owen was one of two psychiatrists who assessed the respondent for the div 2 hearing in 2007.  The views expressed by Dr Wynn Owen at that time were summarised by Murray J, who noted that he had concluded the respondent was at a high risk of reoffending sexually.  His Honour referred to the following passage from the report prepared by Dr Wynn Owen on that occasion, which is relevant for present purposes:[77]

   Mr Hart's denial, rationalisation and/or minimisation of his offences and his unwillingness to participate in treatment suggest a lack of insight increasing risk, as, without insight he cannot address his offending behaviour. 

   [77] The State of Western Australia v Hart [24].

3. Dr Wynn Owen had noted that the respondent had taken anti-androgen or anti-libidinal medication since 1997, with some breaks in treatment.  However, the respondent had avoided participation in a sex offender treatment programme, reportedly because it brought to the fore his own experiences of childhood abuse, which made participation impossible.  Dr Wynn Owen had also referred to the respondent's ongoing apparent inability to control his anger and his apparent reliance on the anti-androgen therapy and relatives to avoid re-offending.  Although the respondent had participated in counselling, Dr Wynn Owen could find no treatment gain arising from that participation. 

4. Significant factors leading to the conclusion that the community could not be protected adequately by a supervision order were the fact that the respondent was not prepared to participate in treatment and his associated lack of insight.[78]

   [78] The State of Western Australia v Hart [26], [40].

5. Dr Wojnarowska, the other psychiatrist who examined the respondent in 2007, had come to similar conclusions as Dr Wynn Owen, in particular that the respondent was at high risk of sexual reoffending. Murray J referred to the following passage from Dr Wojnarowska's report which is relevant for present purposes:[79]

   His impulsivity with impaired emotional regulation prevents him developing appropriate strategies.  His high level of sexual deviance and personality characteristics which produce a score in the high range of psychopathy and include a lack of genuine remorse and guilt, a shallow effect, lack of empathy, failure to accept personal responsibility in a genuine way, poor behaviour controls, impulsivity and irresponsibility all point towards high risk.

   [79] The State of Western Australia v Hart [27].

6. Dr Wojnarowska agreed that the respondent needed intensive sex offender treatment and intensive violent offender treatment before he would be ready to be released, and that before he could undertake those programmes his attitude needed to change in a manner that would enable him to benefit from participation in them.[80]

   [80] The State of Western Australia v Hart [28].

7. I note also from Dr Wojnarowska's report, dated 15 October 2007, which is in the book of materials, that she made the following points, which are relevant for present purposes:

   (1)The respondent displayed a tendency to deny, minimise and justify past violent acts.[81]

   (2)However, he was able to identify his needs in the area of anger management.[82]

   (3)He was mildly grandiose during the interview. His affect was reactive and, on occasions, when confronted, he had difficulty containing his anger.[83]

   (4)His emotional responses when his feelings of remorse were discussed did not match his verbal expression. He was also dishonest about his offences, and there appeared to be some engagement in impression management.[84]

   (5)Although he appeared to have an understanding of the role of sexual preoccupation in his offending, his insight in respect of other relevant issues was relatively poor.[85]

   (6)The treatment records indicated that the respondent's progress in psychological treatment was hampered by a lack of motivation for change and his reluctance to accept full responsibility for his actions.[86]

   [81] BOM 46.

   [82] BOM 48.

   [83] BOM 51.

   [84] BOM 51.

   [85] BOM 51.

   [86] BOM 51.

8. In 2009, for the first annual review, the respondent was examined by Dr Tanney.  Hasluck J, in his reasons, set out the summary contained in Dr Tanney's report.  It included the following passages of relevance in these proceedings:[87]

   [87] The State of Western Australia v Hart [No 2] [16].

   (2) There has been a minimal deterioration in his risk management over the past year.  Recommendations for his risk management in custody have not been implemented but Mr Hart's attitude and behaviour have also contributed to this disappointing outcome.

   …

   (4)Recommendations for a highly structured and monitored treatment programme that fulfils the expectations of the initial detention order of March 2008 are set forward.

   …

   (6)Mr Hart should be made formally aware of the need for him to meaningfully and actively cooperate with a defined and limited number of programme activities during the period before the next annual review under the legislation.  This reiterates the advice of Murray J in transcript of initial proceedings.

9. The respondent's risk of sexual reoffending was considered by Dr Tanney to be such that it could not be managed in the community under a supervision order until the respondent had undertaken a treatment programme during a further period of detention.[88]

   [88] The State of Western Australia v Hart [No 2] [16].

10. In 2010, the respondent was examined again by Dr Wojnarowska.  I referred earlier to the essence of her conclusions, as adopted by McKechnie J.[89]  Dr Wojnarowska's report, dated 19 April 2010, is in the book of materials.  Of significance to these proceedings, she said that, on her examination of the respondent:[90]

    (1)The mistrust issues were less pronounced.

    (2)There was a reduction of grandiosity and irritability. Dr Wojnarowska did not note hostility on that occasion.

    (3)The respondent did not project his anger towards the authorities for his then current predicament (of being in custody).

    [89] See [6] above.

    [90] BOM 63 - 64.

11. In relation to risk factors and manageability, Dr Wojnarowska noted that:

    (1)The issue of substance abuse required further consideration, because the respondent had a history of illicit substance and alcohol use which had contributed to his offending. 

    Given the fact that he has not drunk alcohol for the last 15 years, the possibility of him having lower tolerance and becoming intoxicated after a relatively small amount of alcohol is quite high. Alcohol abstinence will therefore be suggested in the risk management.[91]

    (2)The respondent was now acknowledging his propensity for violence and had developed some understanding of his antisocial behaviours.[92]

    (3)He appeared to display less negative attitudes and was willing to accept recommendations.  However:

    The Problems with Supervision relates to his antisocial stance which, although has shifted to a certain degree, remains the area of concern. This however can only be tested in the community. Preparedness to accept both psychological and pharmacological treatment is encouraging.[93]

    [91] BOM 65.

    [92] BOM 66.

    [93] BOM 66.  The bold text is in the report.

12. In short, Dr Wojnarowska was of the opinion that there had been a noticeable shift in the respondent's 'attitude, insight and willingness to change'.[94]  Although she still assessed his risk of sexual reoffending as high, and the respondent still had significant treatment needs, she was of the opinion that the risk could be managed in the community under a supervision order.

    [94] BOM 66.

Respondent's performance on the Supervision Order generally

General impression

1. In her report concerning the respondent's performance on the supervision order, Ms Oppert stated:[95]

   Mr Hart's compliance with conditions of his [supervision order] has been considered generally satisfactory. He has reported for supervision on a weekly basis as directed and engaged with a Departmental psychologist on a fortnightly to monthly basis. However, Mr Hart's engagement on the [supervision order] could be described as superficial with him failing to disclose serious matters in relation to financial issues and contact with sex workers. Furthermore, he has consistently provided contradictory information dependent on who he was interacting with i.e. his Community Corrections officer; the Departmental Psychologist or the police (Sex Offender Management Squad).

   [95] BOM 364 - 365.

2. In evidence, Ms Oppert described the respondent's compliance in respect of the specific conditions of reporting for supervision, urinalysis testing and attending psychological counselling as good, and 'certainly according to what was required of his order'.[96]  She explained that her concern in respect of the respondent's level of engagement related to his lack of disclosure of significant events occurring in his life. The supervision sessions, which at times were fortnightly, appeared to gloss over such matters, and the impression was that everything was going well.  It turned out that was not the case.

Lack of disclosure

[96] ts 79.

1. In her report, Ms Oppert listed examples of the respondent's lack of disclosure of important matters.  He had failed to disclose the matters to his CCO, his psychologist and the police with whom he was in contact. The first two matters related to the respondent's use of money to pay for the services of sex workers in 2016 instead of paying his utility bills, which resulted in his power being disconnected.  In evidence, Ms Oppert said that Community Corrections became aware on 1 May 2017 that the electricity had been disconnected. It was of particular concern because it was going to compromise the GPS monitoring of the respondent. Inquiries revealed that the respondent had ignored several disconnection notices.  During subsequent discussions the respondent revealed that one of the reasons he had not paid his electricity bills was that he had used his money to pay for the services of sex workers.

1. Dr Wynn Owen explained that Static-99 and the additional research is in relation to both people released under supervision and some without supervision.  There has been no specific study relating to people who have been under supervision.  He acknowledged there is a risk that persons who are under supervision may be less likely to be committing an offence because of the conditions of supervision, but once the conditions are removed, the risk might return to a higher level.[137] In his opinion, longer term follow up will be required in the research.

   [137] ts 40.

2. In any event, Static-99 is only one aspect of the assessment.  Dr Wynn Owen also relied on the Risk for Sexual Violence Protocol (RSVP) structured assessment instrument, which examines both historical and dynamic risk factors for violent sexual offending. This was an update on the results from the previous application of RSVP.

3. Dynamic factors relate to both risk of offending and the ability to be supervised and managed. 

4. In the psychological domain, the respondent had shown that he still had difficulties with coping with risk factors. Dr Wynn Owen referred to the example of the respondent drinking alcohol, albeit a small amount, on 24 December 2017 because he had difficulty coping with quite powerful emotions at that time. It was an example of poor stress management. However, Dr Wynn Owen recognised that the respondent had managed 'a number of stresses and stressors both acute and chronic', particularly during his volatile relationship with his girlfriend and when dealing with his family.[138]  He considered that the respondent's ability to manage stress had improved over time.[139]

   [138] ts 42.

   [139] ts 44.

5. In relation to the risk factor of sexual deviance, Dr Wynn Owen found no evidence of deviant sexual interest, in contrast to his deviant interest in violent sexual contact at the time he was offending. Dr Wynn Owen considered that the respondent's experience in the intensive sex offender treatment programme had been of benefit to him in that regard.[140]

   [140] ts 43.

6. In relation to the respondent's manageability, Dr Wynn Owen acknowledged that there were a number of contraventions prior to the contraventions the subject of these proceedings, but suggested that overall they did not detract from the manageability of his risk.  He said:[141]

   It certainly says that he, at times, finds it difficult to comply with the supervision conditions.  It also relates perhaps to underlying personality, and so some of his decision-making, particularly his impulsive decision-making, returns to the anti-authority, antisocial type decision-making.  But, overall, he has not committed a sexual offence … of a serious type or … a non-serious sexual offence, and there do not appear to have been events in which the event cycle towards a sexual offence, either a break in or any sort of aggressive interaction with a woman, …have led to that event cycle being started.

   [141] ts 43 - 44.

7. As I noted earlier, Dr Wynn Owen said he explored the incident concerning the young woman in considerable detail with the respondent.  He said he did so because of the 'concerns one might have that this was a risk situation'.[142]  Dr Wynn Owen considered the respondent's previous sexual offending and concluded that the scenario with the young woman 'did not seem to be in any way a mirror of those scenarios'.  The offending had occurred in the context of sexual aggression resulting from the respondent's ego being damaged because he had felt insulted or criticised, or in a context in which 'he had sought out a significant power differential', entering houses and taking somebody by force 'at a time when he was also having sexually deviant thinking which involved forced sexual contact'.[143]  None of those 'high risk triggers' were present during the respondent's interaction with the young woman.[144]

   [142] ts 35.

   [143] ts 35.

   [144] ts 36.

8. Dr Wynn Owen was asked for his opinion as to the level of risk the respondent had placed himself in by allowing the young woman to stay the two nights.  Dr Wynn Owen did not answer the question directly, but indicated that one needed to take into account the absence of the 'high risk triggers', the fact that the respondent's housemate was home on both nights, and the fact that the respondent had demonstrated self-awareness of a potential breach, showing that there was 'probably a degree of self-questioning as to his motivation'.[145] I conclude from Dr Wynn Owen's evidence on this issue that he did not regard the risk to be significant. 

   [145] ts 36.

9. Further, Dr Wynn Owen's view that the respondent appeared to be sincere when he said he would do the same thing if placed in the same situation, because he believed that he had an obligation to assist someone who was at risk, tended to reinforce the conclusion that the incident did not indicate an elevated level of risk that the respondent would commit a sexual offence.[146]

   [146] ts 36.

10. Based on the findings made on his examination, Dr Wynn Owen is of the opinion that, overall, the respondent still presents a higher than average risk of sexual offending.[147] However, he is also of the opinion that the risk could be managed in the community if the respondent is subject to a supervision order. He said:[148]

    I believe that … the ability to maintain himself in the community without committing a sexual offence for the duration of the orders to date demonstrate that, for the moment, that can be adequately managed.

    [147] ts 44.

    [148] ts 44.

11. As to the duration of any supervision order on which the respondent might be released, Dr Wynn Owen was of the view that the current duration of the order would be adequate. In coming to that view, he took into account the time the respondent has spent in prison and the reduction in the respondent's risk which Dr Wynn Owen believes has occurred. He acknowledged that it is not possible to know to what extent the reduction of risk is due to the supervision order, but he reiterated that risk is reduced with age and with 'time free'.

Accommodation

1. Ms Oppert gave evidence that the premises in which the respondent resided while he was subject to the supervision order remain available for his accommodation should he be released on a supervision order now.  It appears the house has been maintained in good condition by the respondent's former housemate, and, as far as the period the respondent has been in custody is concerned, the Department is content with the rental payments that have been made by the housemate and have suspended the payments due from the respondent. Therefore he will not have any debt in relation to rent if he were to be released, and the suspension of rent payable by him will continue until he is again in receipt of a social security payment or other income.

2. I am satisfied on the basis that the accommodation was previously considered to be suitable, and on the evidence given in these proceedings, that, if the respondent is released on a supervision order, he should reside at that accommodation.

Submissions

1. As I noted in the first section of these reasons, the State ultimately submitted that, on the evidence presented at the hearing, the court could be satisfied that the adequate protection of the community could be ensured if the respondent were released again on the supervision order, with an amendment to reflect the standard condition in s 18(1)(d) of the Act, provided the court was satisfied the respondent would substantially comply with the standard conditions of the order.

2. The respondent's counsel agreed with that submission and submitted further that, on the evidence presented, I can be satisfied on the balance of probabilities that the respondent will comply with the standard conditions.

Conclusions

Whether a supervision order will ensure adequate protection of the community

1. When the respondent was first found to be a serious danger to the community in 2008, the decision that the adequate protection of the community could not be achieved by the making of a supervision order was based essentially on the fact that the respondent lacked insight into his offending and its causes and was not prepared to participate in treatment. Indeed, he did not fully accept responsibility for his offending.

2. In 2009, Dr Tanney was of the view that there had been 'a minimal deterioration' in the respondent's risk management over the previous year, and that the respondent's attitude and behaviour had contributed to that outcome.

3. The respondent's attitude subsequently changed. He underwent the intensive sex offender treatment programme and participated in individual counselling.  By the time of the second annual review in 2010, Dr Wojnarowska was of the opinion that there had been a noticeable shift in the respondent's attitude, insight and willingness to change, such that she thought he could be managed in the community under a supervision order.  It was evident that he had made significant gains from participation in the treatment programme and from counselling.

4. On the evidence in these proceedings, I am satisfied that, notwithstanding the respondent's numerous contraventions of the supervision order over a period of nearly 7 years, he has maintained the gains in respect of his acceptance of responsibility and insight into his offending, and has made further progress.  That is particularly evident from the evidence of Dr Wynn Owen and Ms Wilson-Brown, which I have outlined above.  There appear to be good prospects that his treatment gains will persevere, given that he is able to relate things he learnt from the treatment programme so long after he undertook the programme.  No doubt the individual counselling which has continued on a regular basis over the years has assisted in that regard, but I am satisfied from the evidence of Dr Wynn Owen and Ms Wilson-Brown that the respondent has demonstrated enduring change in his beliefs and attitudes towards sexual offending, and more generally towards women. 

5. It appears that he no longer harbours a deviant interest in violent sexual contact.  In fact, he has insight into the role such deviancy played in his violent offending and the harm his offending caused to his victims.

6. His tendency to become angry, particularly when he felt insulted or rejected, and to project his anger onto his victims was a significant factor in his violent sexual offending. Although emotional regulation continues to be a focus of treatment, the respondent has insight into the role that anger played in his offending and has demonstrated a capacity to negotiate difficult relationships, and potentially feelings of rejection, without relapsing into violent behaviour or thinking. 

7. In the early stages of the order, and perhaps until relatively recent times, the respondent was antagonistic towards at least some aspects of the supervision order, in particular those that constrained his freedom.  I am satisfied that he now has a more positive view of the order and the way in which it will benefit him, as well as the community.  It is likely that the change in his attitude has been gradual over time, but it certainly appears to have crystallised in sessions he has had with Ms Oppert while he has been in custody.

8. I accept that some aspects of the respondent's behaviour, including his contraventions and his failure to disclose some significant matters in his life to those who were supervising or treating him, suggest that his engagement with supervision was relatively superficial.  However, I am satisfied that overall the respondent engaged well in counselling, and he was open with his CCO about matters that had led to difficulties, even if those difficulties (for instance, the unpaid bills) were not disclosed in a timely way.  Further, I am satisfied that the respondent has continued to improve in his engagement during interview sessions with Ms Oppert while he has been in custody.

9. It is significant that the respondent has not committed any criminal offence while he has been subject to the supervision order other than the offences of contravening his supervision order and a breach of bail which had been set in respect of those offences.  I accept Dr Wynn Owen's evidence that, from the perspective of predicting recidivism, the fact the respondent has not committed a sexual offence during the time he has been in the community subject to the supervision order reduces his risk of committing a serious sexual offence in the future.  I also have regard to his evidence that risk will reduce with age.  The respondent was 27 years of age when he was sentenced in November 1997 for the last series of sexual offences.  He is now 48.

10. The conditions of the supervision order have been formulated to allow for the early detection of behaviour that manifests a potential increase in the risk that the person will commit a serious sexual offence, and to enable action to be taken to prevent that risk from being realised.  That has occurred in the respondent's case, by way of warning letters, lawful directions and contravention charges.  However, there is no evidence to suggest that any of the conduct that has constituted contraventions of the supervision order put the respondent at imminent risk of sexual offending, or that the risk of such offending was increased in any significant way, given the protective measures of the order and the changes in the respondent's insight, beliefs and attitudes.  In particular, in relation to the last contravention, concerning the young woman, I accept Dr Wynn Owen's evidence that it did not involve the 'high risk triggers' or scenarios that had led to the respondents' sexual offending in the past.

11. The respondent has been punished for his contraventions.  His comments to the authors of the reports suggest the recent term of imprisonment has provided a salutary lesson and will deter the respondent from future contraventions.  One might be sceptical about that, given that the previous term of imprisonment did not prevent the more recent group of contraventions from occurring.  However, I am inclined to accept that the respondent has taken some further steps forward since he has been in custody.  In particular, he has come to realise that the obligation to notify his CCO or the authorities when a female is to stay overnight at his place is as much for his benefit as it is for the protection of the female and the community.

12. Finally, for the reasons set out at [138] to [157] above, I consider that there are circumstances that mitigate the contraventions in the context of determining whether the supervision order will provide adequate protection of the community if the respondent is released. 

13. For all of those reasons, I am satisfied that, notwithstanding the contraventions, the respondent's risk of committing a serious sexual offence can be managed sufficiently under the supervision order so as to ensure the adequate protection of the community.

Whether the respondent will substantially comply with the standard conditions or amended standard conditions

1. In coming to that conclusion, I have considered whether the respondent will substantially comply with the standard conditions or amended standard conditions of the supervision order. 

2. As I noted earlier in these reasons, while the court and the community expect that a person released on a supervision order will comply with the conditions of the order strictly, it must be recognised that there may be missteps from time to time, particularly given the very onerous nature of the conditions required to adequately manage the person's risk. Although in respect of most of the contraventions, it could not be said they are trivial or minor, for reasons I discussed at [112] above, they may properly be regarded as missteps which warranted punishment but do not lead inevitably to the conclusion that the respondent will not substantially comply with the supervision order.

3. I am satisfied that the respondent engaged in a meaningful way with supervision and counselling, particularly in recent years while he has been subject to the supervision order.  By and large, he complied with the conditions of the order.  Ms Oppert's opinion was that his compliance was quite good, notwithstanding the contraventions.  I am also satisfied that the respondent is committed to complying and completing the order.  The change in his attitude to the conditions of the supervision order should enhance his prospects of doing so.

4. Therefore, I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions, in that he will comply in a manner, and to an extent, that will ensure the adequate protection of the community.

5. The respondent will be released on the supervision order, subject to the amendments I discuss below.

Duration of the order

1. By virtue of s 24(2) of the Act, the period of the current supervision order has been extended by the periods during which the respondent has been in custody serving terms of imprisonment in 2016 and since 11 January 2018.  On that basis, the order has about 3 years and 2 months to run. 

2. Having regard to the evidence of Dr Wynn Owen, and for the reasons he gave, I am satisfied that the duration of the order should not be extended.  The applicant did not submit otherwise.

3. If, at a time within one year of when the supervision order is to expire, it appears to those who have supervision of the respondent that there is a need for a further supervision order to ensure the adequate protection of the community, an application can be made by the State under s 8(4A) of the Act for such an order.

Amendment of the supervision order

1. As I explained above,[149] condition 8 of the supervision order incorporated the requirements of s 76 of the Sentence Administration Act 2003, so as to oblige the respondent to comply with the lawful instructions of a CCO.

   [149] [62] - [63] above.

2. That obligation now arises as a standard condition under s 18(e) of the Act, which provides that a supervision order must require that the person who is subject to the order:

   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).

3. That provision was amended by s 5(1)(a) of the Dangerous Sexual Offenders Amendment Act 2012 (No 58 of 2012), which came into operation on 1 February 2013 and inserted the words that appear after 'corrections officer'. I note that s 6 of that amending Act inserted sections 19A (electronic monitoring) and 19B (curfew). Section 5(1)(c) inserted paragraph (g) in s 18(1), which is in the following terms:

   (g)be subject to electronic monitoring under section 19A.

4. As I indicated when dealing with the law, the options under s 23 are to:

   (1)rescind the supervision order and make a continuing detention order;

   (2)make an order amending the conditions of the supervision order, or extending the period of the order; or

   (3)make an order affirming the supervision order without amendment or extension.

5. It is not an option to make a new supervision order. 

6. The provisions of s 18(1) of the Act apply when the court makes a supervision order, which can occur either under s 17 (in div 2 proceedings) or under s 33 (on a periodic review).  It does not occur under s 23(1)(b). 

7. However, the reference in s 23(1B) to substantial compliance with 'the standard conditions or amended standard conditions of the supervision order' appears to contemplate that the amendment under s 23(1)(b) may be an amendment of the standard conditions. 

8. The applicant proposed only an amendment to condition 8 to reflect the wording of s 18(1)(d). It submitted that the reference to s 76 of the Sentence Administration Act 2003 can be deleted because there is nothing of relevance remaining in 76 to be incorporated into the supervision order once condition 8 makes specific reference to the need for compliance with 'any reasonable direction of the CCO'. Section 76 referred to 'the lawful orders or directions of a CCO'. It is difficult to envisage in the context of directions that might be given by a CCO any direction that would be lawful that would not also be reasonable. I do not consider that s 76 would add to the ability of the supervision order to ensure the adequate protection of the community. The requirement of reasonableness is entirely appropriate and, as the applicant advocates for deletion of the reference to s 76 in condition 8, I am satisfied it is appropriate to do so.

1. However, the amendment of condition 8 that would reflect the current s 18(1)(d) of the Act makes reference to s 19A in circumstances in which it is now a standard condition that must be included in a supervision order that the person be subject to electronic monitoring under s 19A. The current supervision order required the respondent to submit to electronic monitoring only when subject to a curfew (conditions 6). It would appear that GPS monitoring outside the curfew was the result of a lawful direction given to the respondent. I earlier referred to a direction in 2016 requiring the respondent to carry his PCU with him whenever he was not home.[150] 

   [150] See [67] above.

2. In my view, the supervision order should be amended to reflect the current standard condition in relation to electronic monitoring.  It was clear from the evidence of Ms Oppert that electronic monitoring is contemplated and was further discussed with the respondent, in particular the potential use of a one piece unit, rather than the two piece unit he was using previously.  I am satisfied that electronic monitoring is appropriate, particularly given that the respondent has been in custody for 12 months and will need to reintegrate into the community and readjust to his obligations under the supervision order.

3. It follows that condition 6 should be deleted and in its place should be a condition that reflects s 18(1)(g).

4. Accordingly, I will amend the conditions of the supervision order by:

   (1)Deleting the current condition 6 and substituting:

   6)Be subject to electronic monitoring under s 19A of the Dangerous Sexual Offenders Act 2006

   (2)Deleting the current condition 8 and substituting:

   8)Thereupon be under the supervision of a CCO, which includes, comply with any reasonable direction of the CCO (including a direction for the purposes of section 19A or 19B of the Dangerous Sexual Offenders Act 2006).

5. The accommodation to which the respondent will be released will be different to that specified in the supervision order.  However, the first condition of the order allows for the respondent to reside at a different address if it is approved in advance by a CCO.  Therefore, it is not necessary to make any amendment to the condition in that regard.

Suppression order

1. At the time McKechnie J released the respondent on the supervision order on 1 September 2010, his Honour made an order suppressing publication of the unit and street name of the respondent's proposed accommodation.

2. In these proceedings, the applicant explored with Ms Oppert whether a more extensive order might be necessary in light of events that followed the respondent's release in 2010 and recent developments which it is not necessary for me to elaborate.  In the end, Ms Oppert did not consider that a more extensive order was required.  The order made by McKechnie J, although it was in relation to a different address to the current proposed accommodation, remains in force and will apply to any address to which the respondent is released, or to which he may move with the approval in advance of a CCO while he remains subject to the supervision order. 

Orders

1. The respondent will be released on the supervision order made by the Hon Justice McKechnie on 1 September 2010, subject to the following amendments:

   (1)Condition 6 of the supervision order is deleted and replaced with the following condition:

   6)Be subject to electronic monitoring under s 19A of the Dangerous Sexual Offenders Act 2006

   (2)Condition 8 and of the supervision order is deleted and replaced with the following condition:

   8)Thereupon be under the supervision of a CCO, which includes, comply with any reasonable direction of the CCO (including a direction for the purposes of section 19A or 19B of the Dangerous Sexual Offenders Act 2006).

2. The suppression order made by McKechnie J on 1 September 2010 continues in force.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

XH
Research Associate to the Honourable Justice Fiannaca

9 JANUARY 2019