Director of Public Prosecutions (WA) v Pendleton - [2012] WASC 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- PENDLETON [2012] WASC 22

CORAM: McKECHNIE J

HEARD: 10 - 16 JANUARY 2012

DELIVERED : 20 JANUARY 2012

FILE NO/S: MCS 6 of 2011

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
MARK PENDLETON
Respondent

Catchwords:

Criminal law and procedure - Dangerous sexual offender application - Danger to the community - Community in South East Asia - Amendment of Dangerous Sexual Offenders Act 2006 (WA) - Constitutional - Validity of amendment - Spreadsheet of sexual history - Significance - Whether gains in treatment

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Order for detention in custody for an indefinite term for control, care or treatment

Category: B

Representation:

Counsel:

Applicant:     Mr B Fiannaca SC & Mr J Newton-Palmer
Respondent:     Mr D J McKenzie
Intervenor:     Mr R M Mitchell SC & Mr A K Sharpe

Solicitors:

Applicant:     Director of Public Prosecutions (WA)
Respondent:     David McKenzie
Intervenor:     State Solicitor for Western Australia

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

APLA Ltd v Legal Services Commissioner for NSW [2005] HCA 44; (2005) 224 CLR 322
DPP (WA) v GTR (2008) 38 WAR 307; [2008] WASCA 187
Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485
Mobil Oil Australia Pty Ltd v State of Victoria [2002] HCA 27; (2002) 211 CLR 485
Pearce v Florenca (1976) 135 CLR 507
Pendleton v The Queen [2002] WASCA 4
Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1

TABLE OF CONTENTS

What this case is about
The respondent's background

(a) Work, education and citizenship

(b) Personal circumstances

(d) Travel

The circumstances of his apprehension for sexual offending
Summary of sexual offending
Sexual offending

Indictment IND 1627/2000 - 8 November 2000

Sentence

Indictment IND 1685/2001 - 15 January 2002
Indictment IND 1333/2002 - 6 August 2002

These proceedings
The validity of the Dangerous Sexual Offender Amendment Act 2001 (WA)
Are the amendments to the DSO Act constitutionally valid?
Laws can have extra‑territorial effect
The need for a nexus
The principles to be extracted
Application of these principles to the present case

The Dangerous Sexual Offenders Act
DSO Act s 7(3)(a) - any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;
Opinion - Dr Bryan Tanney

Psychological assessments
Observations at interview
Measurement of re-offending risk

Opinion - Dr Peter Wynn Owen
Anti‑libidinal medication
Section 7(3)(c) - information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

Robert Gordon Cummins
The telephone calls

Call 1 - 29 May 2008 - 7.08 pm
Call 2 - 31 May 2008 - 6.33 pm
Call 3 - 2 June 2008 - 7.31 pm
Call 4 - 5 June 2008 - 8.18 pm
Call 5 - 6 June 2008 - 3.02 pm
Call 6 - 6 June 2008 - 8.57 pm
Call 7 - 14 June 2008 - 2.00 pm
Call 8 - 25 June 2008 - 7.14 pm
Call 9 - 28 June 2008 - 12.21 pm
Call 10 - 29 June 2008 - 2.43 pm
Call 11 - 29 June 2008 - 9.43 pm
Call 12 - 15 July 2008 - 9.50 pm
Call 13 - 16 July 2008 - 10.10 pm
Call 14 - 30 July 2008 - 2.35 pm
Call 15 - 5 August 2008 - 4.04 pm
Call 17 (unknown time or date)
Call 18 - 24 August 2008 - 11.39 am
Call 19 - 27 August 2008 - 2.10 pm
Call 20 (No time, no date)
Call 21 - 3 September 2008 - 4.16 pm
Call 23 - 10 September 2008 - 14.44 pm
Call 24 - 10 September 2008 - 14.46 pm

Conclusion on the telephone calls
Conclusion on Cummins' evidence

Dennis Ronald Wayne Ashweirth

Conclusion on his evidence

Paul James Bosworth

Conclusions on his evidence

Dan Edward Cheyne-Johnstone

Conclusions on his evidence

John Christopher Hawke

Conclusion on his evidence
Conclusion on propensity

Section 7(3)(d) - whether or not there is any pattern of offending behaviour on the part of the person;

Exhibits 9 and 10: A sexual history spreadsheet
Is the spreadsheet fact or fantasy?
Conclusion on the sexual history spreadsheets

Section 7(3)(e) and (f) - any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; whether or not the person's participation in any rehabilitation program has had a positive effect on the person;

Treatment completion programme
Sex Offender Treatment Programme
Independent Clinical Review/Assessment
Individual therapy treatment
Conclusion on efforts to address offending behaviour
Conclusion on the DPP application

Finding and order

McKECHNIE J:

What this case is about

The respondent is a paedophile who served a very long sentence for a multitude and variety of offences against many young girls. He had access to some of them because he was a primary school teacher.
The respondent became an Australian citizen in 1985 but renounced Australian citizenship and reverted to his British citizenship, obtaining a British passport in December 2009. This meant that on the day of his intended release, 12 May 2010, he would be deported to the United Kingdom and leave Australia forever. His plan was to meet with others of like mind to go to South East Asia, ingratiate himself with families and commit more sexual offences against young girls.
He would not then be classified a dangerous sexual offender in Western Australia because he could not be a serious danger to this community.
However, authorities became aware of his plans. Parliament amended the definition of 'community' extending its meaning to any community in the world. This amendment is constitutionally valid. Just before the respondent was due for release and deportation, the Governor assented to the Bill and it became law. The DPP immediately sought orders that the respondent be detained until a final hearing declared him to be a dangerous sexual offender.
The respondent's scale of offending and sexual depravity is as extensive as any in my experience. He remains a ruthless, exploitative paedophile from whom no young girl can be safe.
For the reasons which follow, I have no doubt that he is a serious danger and the only present way to protect any community is for the respondent to be detained in custody for an indefinite term for control, care or treatment. In the future, pharmacological intervention may be sufficiently effective in lowering the respondent's libido to enable him to start to address his many deficits and triggers for his offending behaviour.
But for the present, release into the community, no matter what conditions might be imposed for supervision, cannot be contemplated. The danger he poses to young girls is far too great.

The respondent's background

(a) Work, education and citizenship

The respondent was born as a British citizen in the United Kingdom on 31 October 1959 and emigrated to Australia ten years later. The respondent took out Australian citizenship on 23 August 1985. He renounced his Australian citizenship in 2009. Without a visa he has become an unlawful non‑citizen. He signed a request for removal from Australia on 11 January 2011.
Between 1976 to 1983 and then between 1986 to 1992 he worked in the retail sector as a manager.
Between 1985 and 1986 he served as a private in the Australian Army.
Between 1993 and 1995 he studied and completed a Bachelor of Arts, Education (Early Childhood Education) at Edith Cowan University. This included five sessions of practical experience of two weeks duration at five different schools involving either Year 1 or pre‑primary students and one session of practical experience at a primary school for a period of ten weeks.
In 1996 the respondent commenced teaching at 'A' Primary School. In 1997 and 1998 he taught at 'B' Primary School. In 1999 he taught at 'C' Primary School. In the year 2000 he commenced teaching at 'D' Primary School but very shortly into the school year, on 24 February 2000, he was arrested.

(b) Personal circumstances

The respondent was first married in 1981 but the marriage broke down 18 months later.
His second marriage occurred in 1984 or 1985. His first son was born in 1987 and his second child, a son, was born in 1989.
In 1993 the respondent separated from his second wife. He was carer for his sons and remained single.

(c) Criminal history apart from sexual offending

On 23 December 1992 the respondent was sentenced to 12 months probation for stealing from Woolworths while he was employed between 1991 and 1992.
Other than his sexual offending, the respondent's criminal history is unremarkable and does not bear at all on his risk of sexual offending in the future.

(d) Travel

Between 16 September and 8 October 1995 the respondent travelled to Thailand. He travelled again to Thailand between 4 and 18 April 1998.
Between 1 and 15 July 1999 he visited Thailand, China and Laos.

The circumstances of his apprehension for sexual offending

On 24 February 2000, police officers attached to the Child Abuse Investigation Office went to 'D' Primary School and met with the respondent. They asked him to accompany them to search his residence at Herne Hill. The respondent asked if he was under arrest and when advised that he was not, said he would drive his own vehicle to meet police at his house. However, he did not go directly home. He had with him a cardboard box containing much incriminating material, including children's underwear, video cassettes, documents and numerous photographs of young girls. The respondent made a detour on his way home to hide the box on a property near his home. Fortunately, a 14‑year‑old boy saw the respondent driving onto private property. The next morning his older brother located the box which the respondent had unsuccessfully tried to hide, by pushing it under a tree.

Summary of sexual offending

Around 1993 he first offended against the child N, who is not able to be identified. He offended against her again in 1994 after teaching practicums at two different schools in 1993.
In 1995 he offended against MD.
In 1996, in his first placement as a teacher at 'A' Primary School, he offended against three students.
Between 1997 and 1998 he offended against two more students at 'B' Primary School.
In 1999 he offended against ten children while teaching at 'C' Primary School.
At the commencement of 2000 he supplied child pornography to another.
In 2002 he was caught in possession of child pornography he had created while in prison.
The respondent was sentenced in the District Court on IND 1627/2000 on 19 February 2001. The head sentence was a term of 12 years' imprisonment without parole; indefinite sentence imposed.
He was sentenced to a further term of 4 years' imprisonment cumulative in 2002 for more offences in the same period as those of the earlier indictment.
In 2003 he received a further 6 months' cumulative for three offences of child possession. This related to material he had created in prison - 29 pencil drawings of children's genitalia, extensive handwritten notes outlining stories about sexual relations with children, all in the nature of fantasy. The judge considered they were at the low end of the scale because they did not involve actual exploitation.

Sexual offending

Indictment IND 1627/2000 - 8 November 2000

Date of sentence: 19 February 2001
Offences:
•Possessing child pornography - 6 counts
•Indecent dealing with a child under 13 - 20 counts
•Procuring a child under 13 to do an indecent act - 18 counts
•Sexual penetration of a child under 13 - 9 counts
•Indecently recording a child under the age of 13 - 76 counts
•Showing offensive material to a child under 16 - 1 count.

The convictions for possessing child pornography include a series of CDs containing an overall total of 32,152 images. Not all the images were of child pornography, although nearly 50% were. There were 13,330 images of Asian children under the age of 16 years; 464 images of Asian children under the age of 4 years; 1,051 of other images of children under the age of 4 years making a total of 47.7% of the whole.
In addition, there are images of children's underwear, images of dolls and other material.

Sentence

The primary judge imposed a finite sentence of 12 years' imprisonment with no parole eligibility order and made an order for indefinite imprisonment.
That order was found to be in error in Pendleton v The Queen [2002] WASCA 4 [39] ‑ [40] because the psychological report did not distinguish sufficiently clearly between the risk of his re‑offending at the time of his examination, and the risk of his reoffending at the time he would have completed his nominal term of imprisonment, having received treatment. Furthermore, all available and relevant material was not placed before the sentencing judge [44].
The Court of Criminal Appeal quashed the order for indefinite detention and made a parole eligibility order.

Indictment IND 1685/2001 - 15 January 2002

Date of sentence: 21 June 2002
Offences:
•Indecently recording a child - 14 counts
•Procuring an indecent act from a child - 27 counts
•Supply child pornography - 1 count
•Possession of child pornography to sell or supply - 1 count.

This indictment was the result of further investigations following the discovery of the box of material. The offences range from 1993 to 2000.
When interviewed about the material on 24 May 2001, the respondent agreed he accessed different sites (page 431 Vol 2):
Oh, pornography mainly but most of it was, ah, child pornography, yeah.
Access did not take him much time. He would set his computer to download and go to sleep. He reposted some images on the internet.
He was asked about pornography and said:
I was interested in all sorts of things but it was mainly child pornography.
The primary judge imposed a total sentence of 4 years' imprisonment with parole eligibility to be served cumulatively on the earlier sentence.

Indictment IND 1333/2002 - 6 August 2002

Date of sentence: 23 March 2003
Offences:
•Possession child pornography - 3 counts

This indictment related to material that was discovered in Acacia Prison. The respondent worked at making jigsaw puzzles. His cell was searched and items which the respondent had drawn were seized. Also seized were a series of sheets of paper which turned out to contain stories which the respondent had written in an autobiographical style about sex abuse.
The respondent was interviewed about them on 21 March 2002. He said:
[I] won't stuff around, they're pornographic.
One jigsaw that was seized was a three layered puzzle of the same girl with different hairstyles and sets of clothes:
[S]o that you could, for instance, take that side of the head off and put another one of the layers in its place and the head would match up but it might be a different colour and a shape so that they were all interchangeable.
He said he chose the jigsaw and coloured it in.
The primary judge imposed a sentence of 6 months' imprisonment with parole eligibility to be served cumulatively on the sentences being served.

These proceedings

On 19 May 2009, the Prisoners Review Board denied the respondent's release on parole and his sentence was administratively changed to a finite term to expire on 12 March 2011.
The respondent would have been released that day and, in all probability, immediately deported to the United Kingdom but for application made by the DPP under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) on 4 March 2011.
At the preliminary hearing on 11 March 2011, I made an order under the DSO Act s 14(2)(b)(i) that the respondent be detained in custody pending the final hearing.
It is regrettable that for many reasons the final hearing has been delayed so long. It is the scheme of the DSO Act that applications proceed expeditiously.

The validity of the Dangerous Sexual Offender Amendment Act 2001 (WA)

The Dangerous Sexual Offenders Amendment Act 2011 (WA) was assented to on 1 March 2011. By s 4 of that Act the DSO Act s 3 was amended to include the following definitions:
'commit a serious sexual offence' includes to do an act or make an omission outside this State or outside Australia that, if it were done or made in this State, would constitute a serious sexual offence;
'community' has a meaning affected by subsection (2);
By s 4(4) the DSO Act s 3 was amended by adding the following:
(2)A reference in this Act to the community includes any community and is not limited to the community of Western Australia or Australia.
The plain meaning of the words requires a conclusion that Parliament's intention is for the DSO Act to have extra‑territorial jurisdiction. If there is any doubt about this, reference can be made to extrinsic material (Interpretation Act 1984 (WA) s 19).
In the course of the second reading speech the Hon Attorney General said:
Amendments contained in this bill will seek to ensure that the safety of persons outside of Western Australia is considered when making assessments and decisions under the act. Although the safety of Western Australians remains the government's primary responsibility, the government understands that the state must be a good national and global citizen. In short, we as a government have a moral responsibility to ensure that dangerous offenders under our control do not harm other potential victims, whether within or outside our state boundaries. If a person has committed a serious sexual offence and is in custody in a Western Australian prison, the threat that that offender may pose to Australians in other states and territories, and indeed to people overseas, should be a relevant consideration in the decision whether they are released from prison and, if released, the conditions under which they are released. Accordingly, the bill clarifies that 'the community' to be considered by the Supreme Court when determining whether an offender poses a serious danger is not limited to Western Australia.

Are the amendments to the DSO Act constitutionally valid?

The issue is whether the amendments to the DSO Act exceed the limits of the legislative power of the State.
A finding that the amended DSO Act s 3 exceeds that power does not affect the rest of the DSO Act: Interpretation Act s 7:
Written laws to be construed subject to State’s legislative power
Every written law shall be construed subject to the limits of the legislative power of the State and so as not to exceed that power to the intent that where any enactment thereof, but for this section, would be construed as being in excess of that power, it shall nevertheless be valid to the extent to which it is not in excess of that power.

Laws can have extra‑territorial effect

The Constitution Act 1889 s 2 provides:
(1)There shall be, in place of the Legislative Council now subsisting, a Legislative Council and a Legislative Assembly: and it shall be lawful for Her Majesty, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, order, and good Government of the Colony of Western Australia and its Dependencies: and such Council and Assembly shall, subject to the provisions of this Act, have all the powers and functions of the now subsisting Legislative Council.
The Australia Act 1986 provides by s 2:
Legislative power of Parliaments or State:
2(1)It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra‑territorial operation.
In Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 the court recognised that there may be some territorial limitation:
The Solicitor-General for New South Wales, appearing for the Attorney‑General for that State as intervener, submitted that even the statement of Dixon J is too restrictive an interpretation of the Parliament's legislative authority. The nineteenth century Privy Council decisions, he submitted, recognize that the grant of power is as large and ample as that enjoyed by the Imperial Parliament itself. As that Parliament is not subject to any territorial restraint, so the Parliament of New South Wales is likewise free from such a restraint. The short answer to this contention is that the nineteenth century decisions, in comparing the scope and extent of the grant of legislative power to colonial legislatures with the power of the Imperial Parliament, explicitly qualified that comparison by reference to the limits of the grant itself: see, e.g., the passage already quoted from the opinion in Hodge. Accordingly, the nineteenth century decisions do not deny that the words 'peace, order and good government' may be a source of territorial limitation, however slight that limitation may be. And, as each State Parliament in the Australian federation has power to enact laws for its State, it is appropriate to maintain the need for some territorial limitation in conformity with the terms of the grant, notwithstanding the recent recognition in the constitutional rearrangements for Australia made in 1986 that State Parliaments have power to enact laws having an extraterritorial operation: see Australia Act 1986 (Cth), s. 2(1); Australia Act 1986 (U.K.), s. 2(1). That new dispensation is, of course, subject to the provisions of the Constitution (see s. 5(a) of each Act) and cannot affect territorial limitations of State legislative powers inter se which are expressed or implied in the Constitution. That being so, the new dispensation may do no more than recognize what has already been achieved in the course of judicial decisions. Be this as it may, it is sufficient for present purposes to express our agreement with the comments of Gibbs J in Pearce where his Honour stated that the requirement for a relevant connexion between the circumstances on which the legislation operates and the State should be liberally applied and that even a remote and general connexion between the subject-matter of the legislation and the State will suffice (13 ‑ 14).

The need for a nexus

While it is undoubted that a State Parliament has power to make laws of extra‑territorial operation, there must still be a nexus to the State so that a law is for the peace, order and good government of the State.
In Pearce v Florenca (1976) 135 CLR 507 Gibbs J:
In accordance with those reasons, it is now often said that the test of validity of a State statute is simply whether it is legislation for the peace, order and good government of the State (Reg. v. Foster; Ex parte Eastern and Australian Steamship Co. Ltd.), and that no additional restriction placed upon mere territorial considerations should be placed upon the constitutional powers of a State: Australasian Scale Co. Ltd. v. Commissioner of Taxes (Q.). However, the test whether a law is one for the peace, order and good government of the State is, as so stated, exceedingly vague and imprecise, and a rather more specific test has been adopted; it has become settled that a law is valid if it is connected, not too remotely, with the State which enacted it, or, in other words, if it operates on some circumstance which really appertains to the State. The rule was expressed in that way in Commissioner of Stamp Duties (N.S.W.) v. Millar, and Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.), the judgments in which were approved by the Judicial Committee in Johnson v. Commissioner of Stamp Duties. In a later decision, Thompson v. Commissioner of Stamp Duties, their Lordships said:
For the purpose of ascertaining whether there is a relevant territorial connection the scope of possible relevancy is wide. In Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) in the High Court of Australia Dixon J. said: 'The power to make laws for the peace, order and good government of a state does not enable the State Parliament to impose by reference to some act, matter or thing occurring outside the State a liability upon a person unconnected with the state whether by domicil, residence or otherwise. But it is within the competence of the state legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers.'
Nevertheless it appears from decided cases that there is no 'relevant territorial connection' if the connection with the territory of New South Wales is too slight. There is an element of degree involved.
Even in its modern form, the rule requiring a relevant connexion between the persons or circumstances on which the legislation operates and the State is still capable of giving rise to that practical inconvenience and uncertainty to which the report of the 1929 Conference on the Operation of Dominion Legislation alluded (see the passage cited by Evatt J. in Trustees Executors and Agency Co. Ltd. v. Federal Commissioner of Taxation). For that reason it is obviously in the public interest that the test should be liberally applied, and that legislation should be held valid if there is any real connexion - even a remote or general connexion - between the subject matter of the legislation and the State. And it has been established by a series of well-known decisions, which are collected in Cobb & Co. Ltd. v. Kropp, that within their limits the legislatures of the States have powers 'as plenary and as ample' as those of the Imperial Legislature itself. It would seem anomalous and unfitting that the enactments of such a legislature should be held invalid on narrow or technical grounds (517 ‑ 518).
As already noted, the judgment of Gibbs J was endorsed in Union Steamships v King.
It was also followed in Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340, 372 and APLA Ltd v Legal Services Commissioner for NSW [2005] HCA 44; (2005) 224 CLR 322.
In Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485, the issue was whether a South Australian court had jurisdiction to try a conspiracy to defraud when substantive elements of the offence took place beyond the boundaries of the State.
The joint judgment (Gaudron, Gummow, Hayne JJ) held that 'the requirement of nexus should be liberally applied' [123].
In Mobil Oil Australia Pty Ltd v State of Victoria [2002] HCA 27; (2002) 211 CLR 485 the issue was whether Victorian legislation providing for group proceedings could bind claimants in other States in a claim by a group against the supplier of defective aviation fuel.
The same plurality as in Lipohar (Gaudron, Gummow, Hayne JJ):
It is clear that legislation of a State parliament 'should be held valid if there is any real connexion – even a remote or general connexion – between the subject matter of the legislation and the State'. This proposition has now twice been adopted in unanimous judgments of the Court and should be regarded as settled. That is not to say, however, that there may not remain some questions first, about what is meant in a particular case by 'real connexion' and, secondly, about the resolution of conflict if two States make inconsistent laws [48].

The principles to be extracted

A law with extra‑territorial effect will be a valid exercise of Parliament's power to make laws for the peace, order and good government of Western Australia if there is a sufficient nexus with Western Australia.
The law will be valid if:
•it operates on some evidence which really appertains to the State;
•it makes any fact, circumstance, occurrence or thing in or connected with Western Australia the occasion of a liability imposed on a person;
•the connection may be remote or general between the subject matter of the legislation and Western Australia;
•but liberally applied there must be a real connection with the State.

Application of these principles to the present case

Although the immediate focus is on the amendment enlarging the definition of 'community', it must be remembered that the amendment is now part of the DSO Act and it is appropriate to read the DSO Act as a whole.
The objects of the DSO Act:
The objects of this Act are -
(a)to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community; and
(b)to provide for continuing control, care, or treatment, of persons of a particular class (s 4).
The court can make orders for the detention or supervision of an offender only if the court finds that the offender is a serious danger to the community: DSO Act s 17. The particular class of persons mentioned in the Objects are persons under sentence of imprisonment wholly or in part for a serious sexual offence: DSO Act s 8(1).
If an order is made, the person must be detained in custody or released on supervision. There are conditions of a supervision order directly related to Western Australia, including a provision not to leave or stay out of Western Australia without the permission of a community corrections officer: DSO Act s 18(1)(e). Amendment of conditions of a supervision order or proceedings for contravention of a supervision order must be brought in the Supreme Court.
On behalf of the respondent, Mr McKenzie submitted that there is not even a remote or general connection between the circumstances on which the legislation operates or the subject matter of the legislation in the State because:
•the subject matter of the legislation concerns the future risk or danger to the community if and when the person is released from custody;
•the respondent is not a citizen or permanent resident and will be subject to removal from Australia and not domiciled in the State when released from prison;
•if he is a serious danger to the community it will not be the West Australian community in which he will never reside.
He submitted therefore that the amendment is invalid to the extent that it deals with people who will not be resident in Western Australia or Australia after release from custody and therefore cannot be a 'serious danger to the "community"'.
Put another way, there is no sufficient nexus between Western Australia and a person who will be forcibly removed from and remain outside Western Australia.
Mr McKenzie, who capably argued the point on behalf of the respondent, further submitted that the determination of whether or not the respondent has a connection to the State arises in the future; that is, the date when he is deported. If he did pose a risk it would be to a community in England to where he would be deported and it is at that time that there would be need to be territorial nexus with Western Australia. The risk is being determined in the future and there will be no connection to Western Australia at that point.
If the sole determinant of connection was temporal; that is, the time at which the respondent becomes a risk to a community, there would be much to commend Mr McKenzie's submission.
However, applying the principles I have set out, a law may be valid if there is any liberal basis for finding a real connection with Western Australia. In the present case, there are a number of connections.
First, the respondent is physically in Western Australia. Second, he is of a class of persons who meet the Objects of the DSO Act. He is in that class by virtue of prior conduct in Western Australia.
In submissions on behalf of the Attorney General intervening, Mr Solicitor said that the DSO Act can be analysed by reference to the basic elements:
•the who;
•the what; and
•the why.
He argued that both the conviction and the fact that the person is still under sentence of imprisonment satisfy a territorial connection as to the person.
In answer to Mr McKenzie's submission, the Solicitor conceded the place where the risk may materialise may not provide a connection with the State but the source of the risk is a person presently in the State and that is a sufficient territorial connection.
I agree. I hold that there is a sufficient nexus between the Objects of the DSO Act and its application to make it a valid law for the peace, order and good government of Western Australia notwithstanding that it also has extra‑territorial application.

The Dangerous Sexual Offenders Act

The DSO Act s 7(1) provides:
Serious danger to the community
(1)Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
In DPP (WA) v GTR (2008) 38 WAR 307; [2008] WASCA 187 Steytler P and Buss JA:
In our opinion, the definition of 'serious danger to the community' in s 3, read with s 7 (in particular, s 7(1)), suggests a Parliamentary intention that if the court is satisfied that there is an 'unacceptable risk' of the kind described, then the person will necessarily and automatically be a 'serious danger to the community'. Although s 7(3) enumerates various matters to which the court must have regard in deciding whether to find that a person is a 'serious danger to the community', those matters must be relevant (alternatively, also relevant) to the court's determination of whether there is an 'unacceptable risk' of the kind described [21].
The DPP has the onus of satisfying the court by acceptable and cogent evidence to a high degree of probability.
In deciding whether to find the respondent is a serious danger to the community, I must have regard to the various matters enumerated in s 7(3) - some are not relevant.

DSO Act s 7(3)(a) - any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;

I appointed Dr Bryan Tanney and Dr Peter Wynn Owen as psychiatrists, each to prepare a report for the court. They have done so. I am satisfied that the respondent cooperated with each of them at the respective interviews they held. Each prepared their report without reference to the other. Their conclusions are consistent. Each brings considerable expertise to the task. Their conclusions about risk were not challenged and I accept them.
Cross‑examination explored whether the risk could be managed through supervision in the community. It also explored the psychiatrists' opinions as to treatment gains made by the respondent over the years.
The report by Dr Tanney is exhibit 87. The report by Dr Wynn Owen is exhibit 88.

Opinion - Dr Bryan Tanney

Dr Tanney reviewed many documents and interviewed the respondent at Casuarina Prison on 16 December 2011 for 4.25 hours.
Dr Tanney noted a personal database. Child sexual offending began at the age of 18. It continued to the age of 41 when the respondent was taken into custody. He achieved a teaching degree and university graduation in 1995 after his second marriage ended. He worked yearly contracts in rural schools - pre‑primary teacher 1996 ‑ 1999. He is a quiet, unremarkable inmate in custody with no educational/social advancement. There are no chronic seriousness illnesses or hospitalisation. There is no history of mental health treatment in the family and he has had one treatment exposure to a group programme intended to diminish sexual re‑offending, the ISOTP programme, in 2006. No substance abuse.
Under sexual history:
Child sexual abuse was an experience he described as 'pleasurable', 'looked forward' to it, and 'missed it' when it ended. He said ... that he 'genuinely' discovered aversive, distressing elements to this experience, such as grooming, in 2009.
The respondent compiled a table of sexual incidents (exhibits 9 and 10) which Dr Tanney refers to as exhibit E and describes:
[I]s a detailed history of his sexual encounters beginning with 'doctors and nurses' play while still in England. It includes descriptions of age appropriate sexual activity and partners in addition to offending behaviours. This document has and continues to be argued by him to be 'dramatis personae' for erotic stories he was writing in 1999 and the characters, though not the reported catalogued events, based on his own experiences (699).
Dr Tanney noted that the respondent acknowledged a fetish for 'knickers' beginning in late childhood.
Under the heading 'Description of Serious Sexual Offendings', Dr Tanney lists possession and distribution of child pornography, an extensive variety and very large number of computer images, the majority being child pornographic in content. The respondent said this began at the age of 18. He became aware of pornography on the internet while at university. His collection and cataloguing of images eventually took several hours each day and he acknowledged it interfered with ongoing roles and social function.
The 2003 convictions for possession of pornographic materials related to the images that the respondent had drawn and the story that he maintains was written at Hakea prison in early 2000 when he was under considerable psychological distress. This story and accompanying images are fantasy, but are partly autobiographical, as he has admitted.
In 2008, the respondent's cell was searched and a videotape, edited from public television, featuring clothed and one unclothed young female children was located. This did not lead to any formal proceedings, but reflected the respondent's ongoing interest to that date in having access to such images that he acknowledged were used for sexual arousal.

Psychological assessments

Dr Tanney noted that the respondent was open and direct in discussion of his offences, often appearing to relish the opportunity to describe the events in great detail. This was described as 'gloating' and describing his offences without any negative emotions, and by Dr Srna as 'eloquent and descriptive'.

Observations at interview

The respondent was initially quite assertive about the interview and the judicial processes surrounding the DSO legislation. This settled and he remained throughout both the interviews. He made efforts to please and accommodate the interviewer, and these impressed as subtle efforts to manage or manipulate the conversation. Dr Tanney felt the respondent was directly evasive of the line of enquiry on only one occasion, relating to the progression/evolution of his offending behaviour. A working relationship for purposes of this interview was minimally established.
The respondent was 'detached' emotionally throughout and directly related this to feeling uneasy at the purpose of the interview, having to repeat again his history of offending behaviours to another assessor and the short time frame. He had failure to express empathy or emotional awareness.
There were two instances of expressed emotion. The respondent was tearful and called himself 'stupid' when he described his relationship with the victim SC, describing that behaviour as 'pathetic, embarrassing'. When he described buying his second wife lingerie, there were clear physiological involuntary signs of arousal and excitement including enlarged pupils, quivering voice tone and licking his lips.
The respondent described in detail his relationship with SC (who was the subject of the indictment of 8 November 2000 among other children).

Measurement of re-offending risk

Dr Tanney used STATIC‑99 and RSVP. The sum total of STATIC‑99 was 5 and the RSVP from Cluster A and item 11, there is a long‑established pattern of entrenched, fixated deviant, sexual offensive behaviour. The offending is diverse, and has evolved to being more frequent and more severe. Psychological coercion is a hallmark of the activity.
All the remaining clusters indicate or reflect lifelong and severe impairments of his inner psychological processes.
Cluster B deficits involve overall and sexual maladjustment.
Cluster C noted the strong element of narcissism.
Cluster D - social maladjustment in all life domains related to interpersonal and social relationships.
Cluster E offers little optimism for the future likelihood of his utilizing available resources to deter further sexual offending. The respondent's response to treatment has been very limited and community risk management cannot be enforced. He is competent and able to plan, but has not been able to enforce or carry this through respecting a realistic plan for relapse prevention or suppressing his recurring behaviour. It does appear that there is little deterrent effect from external sanction or punishment respecting his sexual offending.
Dr Tanney gave two opinions. The first was made without taking account of the material relating to South East Asia and the second was made taking that into account.
On the first opinion, 'Opinion A':
RISK
1.Without effective, ongoing management (including monitoring and specific treatment) and the implementing of specific risk diminishing measures, Mr Pendleton is at very high (5/5) risk of further serious sexual offending, as estimated by available procedures and measures (705).
Dr Tanney then explained his finding by reference to results from the STATIC‑99 and RSVP tests together with taking account also of the numerous sexual offender treatment assessments consistent over a decade. The preferred objects of the respondent's sexual offending behaviour have consistently been young, pre‑pubescent females approached with grooming and intent. Further sexual re‑offending would be expected to be persons with similar characteristics. His interest in this sexual object choice is fixated but not exclusive. This may be evolving as it appears that the respondent may initially have chosen children when adult sexual relationships were not available. By the late 1990's, it appeared more likely that his interest in children was interfering with his need or wish to establish adult satisfying relationships. Exclusivity would increase the likelihood of reoffending. The choice of extrafamilial children as victims increases the likelihood of reoffending.

Except for the period of his second marriage, the behaviour has been continuous throughout his life. There was a clear escalation when opportunity presented itself.
The majority of offences occurred in daylight in public places and did not involve disinhibition or intoxication. The respondent is aware of the risk of being caught or discovered and this is a 'intense' reinforcing stimulus for his offending behaviour.
The behaviours are planned and intended. The risk scenario can be clearly identified.
As a diagnosis, Dr Tanney noted:
1.There is no obvious Axis 1 Diagnosis Most Responsible for his mental state and offending behaviour. ...
a)He fulfils criteria for Sexually Devient Disorders including Paedophilia, ... Voyeurism and Paraphilia Not Otherwise Specified. ... There are in essence descriptive labels for his offending behaviours and convey little direction about origins or treatments.
Contrary to Dr Srna, Dr Tanney considered that the respondent does not fulfil the criteria for a diagnosis of anti‑social personality disorder or the full diagnosis of psychopathic personality. He rated highly on Factor 1 Aggressive Narcissism:
Mr Pendleton indicated in our interview that he suppresses thoughts of child sexual activity, suggesting that these are still present. He is realistic in his treatment expectation that these thoughts will not go away but need to be minimized and controlled. The outcome hoped for would be 'not to do it again', 'able to control it in the future' and eventually 'live and not feel the need to do it'. That he can realise this is progress, but it is also clear that he has yet to establish effective mechanisms to manage or control this (709).
Under the heading 'Managing Risk', Dr Tanney notes the respondent's risk would be ongoing in continuing custody/detention.
The respondent has participated in appropriate treatment programmes but treatment gains have been minimal and further involvement in SOTP programmes would likely to be anti‑therapeutic both for himself and potentially for other group members.
The programme of individual treatment could be reactivated although Dr Tanney holds grave reservation about the likelihood of strong treatment gains. No other interpersonal approach is available.
Psychopharmacology trials could be undertaken with adequate monitoring.
The respondent is at very high risk of serious sexual reoffending such that unsupervised release would almost certainly lead over time to further serious sexual offending. There are a large number of dynamic treatment issues that remain in need of management. There are no social or interpersonal community supports available to him.
At present, I do not believe that a risk management program could be developed that would address sufficient of these issues to allow successful management of his risk of offending in the general community.
Under 'Conclusion':
2.... Mr Pendleton is at high risk of serious sexual re‑offending against a specific population (familiar, extra‑familial pre‑pubertal female children). ...
3.He is a paedophile whose behaviour is fixated and entrenched. Classic aspects of targeting, grooming and coercion are present. Elements of compulsive behaviour are present, and some characterize these as 'addiction'. His behaviour escalated in frequency and severity with indecent dealings including digital penetrative conduct. There are concerns about further escalation due to desensitization.
...
9.Risk management in the community will require monitoring and enforcement for a minimum period of 10 years (712).
Under heading 'Opinion B', Opinion B considered also the allegation that the respondent intends to consort with other known child sex offenders of his acquaintance within South East Asia, most recently Thailand. Together these offenders intended to, reputedly, directly engage in child sexual abuse involving physical contact and, other paedophilic activities.
Dr Tanney's opinion is that the risk remains very high (5/5) risk of further serious sexual offending.
Dr Tanney noted that in relation to the respondent's goals about 'not to do it again':
It is, however, difficult to reconcile these statements about goals with his planning for future sexual offending (718).
Furthermore, in the light of his planning further offending at the time of ISOTP participation, it now appears that he was not unable but uninterested in addressing relapse prevention strategies.
It is possible that the individual treatment programme in 2009 did accomplish some treatment gains as it took place after the planning for further sexual offending in Southeast Asia. I believe this can be rejected by Mr Pendleton continued to move forward with plans for renouncing his Australian citizenship in 2009 2010. Again, it is possible that he made this decision for other reasons, independent of plans for moving on to Southeast Asia for further sexual offending activity. I think this unlikely. It is appropriate to conclude that the minimal treatment gains from individual treatment should be severely questioned (718).
Dr Tanney expresses the view that psychopharmacology trials now appear to be the only treatment option reasonable for consideration at this time:
There have been few signs that any of the issues underlying his offending had been seriously addressed in his treatment episodes. ... His motivation towards relapse prevention is clearly in serious question (719 - 720).

Opinion - Dr Peter Wynn Owen

Dr Wynn Owen also had available numerous exhibits and material. He interviewed the respondent on 14 and 19 December 2011.
In relation to the spreadsheet, Dr Wynn Owen notes that:
Mr Pendleton stated to me that during ISOTP he made up all of the behaviours prior to the breakdown of his second marriage because one of the facilitators had told him that unless he admitted events in the chart were true, he would not be allowed to participate. He stated that in fact he did not have any sexual interest in young girls prior to 1992/93. He has given the same explanation for his revelation to other recent assessors. It is of note that Mr Pendleton told forensic psychologist Gail Boyle that he has experienced paedophiliac sexual fantasies for 90% of his adult life.
Dr Wynn Owen describes the respondent's personality:
[H]is ability to take advantage of others, his failure to conform to social norms and a lack of remorse. In addition he had demonstrated interpersonal exploitation and a lack of empathy. He has difficulty forming adult relationships and feels more comfortable in the company of children. One of his pathological means of coping with stress (well characterised in his writing detailed child pornographic stores when first received into Hakea Prison) is to seek comfort in deviant fantasy (736).
Under 'Psychiatric Diagnosis':
Axis IClinical Disorders
Paedophilia, sexually attracted to females, exclusive type
Axis IIPersonality Disorders
Cluster B Personality Disorder, predominantly Antisocial with some Narcissistic traits.
Under 'Risk Assessment' under STATIC‑99, the respondent is placed in the High Risk category.
Under RSVP:
Mr Pendleton's offending history indicates chronicity, escalation, and use of psychological coercion. These are not causal risk factors but markers of other risk factors such as, in Mr Pendleton's case, attitudes that support and condone sexual violence, problems with self awareness and sexual deviance (739).
Under 'Risk Scenarios Imminence' Dr Wynn Owen notes:
Mr Pendleton is more likely to return to finding and viewing child pornography and/or taking and collecting opportunistic photographs of young girls if under stress. If he does return to this behaviour this is likely to result in him subsequently contemplating and then planning contact sexual offences.
Frequency -
Once offending is re-established it is likely to be frequent and ongoing until discovery.
Likelihood -
The risk will probably persist while Mr Pendleton has an active libido (740).
When coupled with his STATIC‑99 score, Dr Wynn Owen concludes that:
[I] am of the opinion that Mr Pendleton's reoffending risk is increased by the present of paedophilia and Cluster B Personality Disorder, he thus currently presents a high risk of sexual reoffending if released.
When taking into account matters relating to Thailand:
If Mr Pendleton is found guilty of planning to exploit children overseas this would reinforce my opinion that he has current paedophilic fantasy and drives, is deceptive and his self report cannot be relied on and he presents a very high risk of reoffending if released. These are, however, all concerns which I have already noted in my consideration of current risk in light of interviews, documents available to me and Mr Pendleton's convictions to date. If this is not the case I still find Mr Pendleton to be a high risk as articulated above.
Dr Wynn Owen, like Dr Tanney, was asked to prepare an opinion disregarding any material about the possibility of the respondent going to South East Asia, and an opinion also taking that material into account. In short terms, it made no difference to his opinion because he regarded the respondent as a high risk even without the South East Asian material.
In relation to the sexual history spreadsheet (exhibit 9), Dr Wynn Owen did not assume it is all fact and his opinion in relation to high risk is based on it not being all true:
However, my - the way I've incorporated the - those - that particular set of documents is that it merely underlines the entrenchment of his paedophilic thinking and establishes ongoing and longstanding sexual deviancy, not necessarily reflects a real list of actual crimes. The fact and the presence of that deviancy in the ongoing way maintained over a long period of time is in itself a significant risk factor. (ts 219)
Dr Wynn Owen was shown the description of the video tapes which were seized from the respondent and some of which formed the evidence for counts 7 to 33 on the indictment of 8 November 2000. In Dr Wynn Owen's opinion the admission of activity with lots of girls concerned him because it goes to reinforce the statements the respondent made in the sexual offender treatment programme in relation to a number of offences which had been committed for which he has not been convicted.
As to the South East Asian material, he said:
I don't believe it materially affects the risk. I think this gentleman presents a very high risk. He may well be planning, he may not be planning. However, that doesn't contribute to my estimation of risk at this point in time. (ts 222)

Anti‑libidinal medication

Both Dr Tanney and Dr Wynn Owen refer to the possibility of pharmacological intervention. Dr Wynn Owen noted that considerable research has gone into looking at using an anti‑androgen or anti‑testosterone medication to reduce libido. In some sexual offenders this has been successful and others not, but the groups in which it has been demonstrated to be most successful have been paedophiles, particularly those with entrenched deviant sexual arousal.
Dr Wynn Owen:
[I] see that not only has he got a longstanding and an entrenched paedophilic interest, he also seems to have at least a normal libido and so I believe that it would be worthwhile trialling this medication. The intent would be to reduce the internal thinking about and arousal to paedophilic images and - and thoughts to enable him without that being quite as present as it probably is at the moment to look at his other treatment needs, to start to develop self awareness, et cetera. You can't guarantee that a treatment like this will be effective, but he I believe represents one of that group of people in which it has been demonstrated to be most effective elsewhere. (ts 223)
One of the difficulties about measuring the effectiveness of such treatment is that it would rely on self‑report. In view of the respondent's unreliable history as a reporter, this represents a difficulty.
In cross‑examination Dr Wynn Owen noted there were a number of narcissistic traits but he did not make a diagnosis of narcissistic personality disorder.
Dr Wynn Owen thought that the respondent is likely to be ego‑syntonic rather than ego‑dystonic (ts 228).
He was asked about anti‑libidinal medication by Mr McKenzie and said of the medication:
It also depends on the - the contribution of testosterone to libido in Mr Pendleton's case. To titrate properly would take normally between say two months and four to five months to titrate. The issue for me is that there needs to be at least some degree of confidence in that this is having an effect because in some individuals it has no effect at all, notwithstanding that I do see Mr Pendleton as being a likely high responder.
And when you - when you say effect, what do you really mean by that---I mean genuine reduction in - in arousal and fantasy.
How could that be assessed---It can only be assessed through self-report. (ts 229 - 230)

Section 7(3)(c) - information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

The DPP asserts that during his time in custody the respondent discussed with others and made plans to travel to South East Asia, probably Thailand, start a business, ingratiate themselves with poor mothers and sexually offend against their children.
A number of witnesses, all sex offenders, gave evidence.

Robert Gordon Cummins

At the outset of his evidence Mr Cummins was advised of his right to decline to answer questions on the grounds that the answer may incriminate him and also advised of the provisions of the Evidence Act 1906 (WA) s 11. He understood his rights. However, he did not exercise his right at any stage during the giving of evidence.
This added to my general impression of him that while he is a dangerous sexual offender he is making efforts to change and one of those changes is owning up to his behaviour.
He became friendly with the respondent when he was in the sex offender treatment programmes unit. Mr Cummins was undertaking the ISOTP for the second time. The respondent would talk about the treatment session:
Well, in - in our discussions he - he would get quite excited about the details of others' offending and also in reference to his own and he would talk about how he would like to do the - that similar offending or how he would use those methods to - for future offending and even talk about, fantasising about the - the offending stories and - and masturbating (ts 60).
This occurred midway through the nine month programme.
They met again at Karnet. The respondent described his attitude towards the programme itself:
Toward the end, it was - he would say that the program was easy to - to get through, you know, easy to manipulate the facilitators as far as telling them what they want, with - with psychologists, just to play the game and get through the program (ts 63).
In Casuarina, the respondent talked about his past experience and showed Mr Cummins photographs and told stories of being a teacher's aide in a primary school. The discussion changed to plans he had made with another prisoner, Mr Ken Bishop. He said:
That he'd known Ken for a while, and they had discussed going over there, starting a business or something as a base, so that they could then travel around Thailand. Initially it was - the discussions were very straightforward, of just travelling over there and living in the life. He described how easy it was to live over there, how accepting the people were, how cheap it was to live, and how he had arranged with other people who had been over there to - to give him information about what had - what it was like over there. And initially he had made these plans with Ken to go over there (ts 64).
He also mentioned a man called Hans Urban who had an Indonesian wife. The respondent told Mr Cummins that he and Bishop were helping Urban:
Hans to get back to his wife from Germany with some money, which he'd organised to get to him, and that he had a - I believe it was some sort of bed and breakfast, or accommodation place in - in Bali, which they were planning on going over, and starting their - their trip in - in South-east Asia from - from there, and that Hans would help him get around (65).
[M]ark told me that he had - it was easy to - to move - that Peter had told him of the visa conditions; that you could just nip over the border and get your visa renewed, that it was cheap to live there and basically do what you like.
There were discussions about starting a business:
[his] business idea initially which he said he had been working on for a long time was manufacturing porcelain dolls, traditional South-East Asian porcelain - porcelain dolls and hiring the - the local women to sew them and - and put them together as - as his - his base. He also mentioned about having accommodation house or something like that as well (ts 66).
He would often say:
Yeah, he often say that the - the attitudes were - over there were a lot more open, accepting. Because of their poverty also parents were more at ease with children being used for sex as long as there was money involved. He would tell me stories about how the kids were used to go and collect shrapnel in the jungle from the war and things like that. And if, you know, there was an accident, they lost a child, the family would be more prepared to - to sell the child for sex. Also about the sex trade in Thailand, how prolific that was and how more accepting the people were to sex (ts 67).
It appears that the respondent and Mr Bishop were to a degree advanced in their discussion and planning when Mr Cummins joined in. Mr Cummins said he wanted to start a new life legitimately but was not keen travelling on his own. The initial plan was to start in Indonesia with Bishop but after discussion with Mr Cummins, the respondent found Thailand more appealing. The respondent started changing his plans to involve Thailand more:
[B]ecause I was leaving earlier than Mark from prison, we discussed how I would gather information for him about Thailand, including costs, places to live, things like that, basic living things, and also language skills. Mark said he wanted to learn Thai and I thought that was a good idea if we were going to live there, and also to make some contacts over there prior to going over there, so I agreed that I would see what I could do and keep in contact with him and send him information so that he could continue his plans and dreaming in prison until his time to - for release was.
Did he indicate to you when that was---It was a couple of years after my release. I'm not sure exactly, but I knew it was a couple of years (ts 69).
A lot of the discussions were in their rooms, gardens and a lot of the more detailed private conversations were held in the library.
Mr Cummins' plan when he left prison was to set up a sewing business from the skills he had learned in prison. He did this, setting up a company making canvas bags and harnesses. After that time he had many phone calls with the respondent. Phone calls initiated by the respondent were recorded. He gave the respondent the phone number of the factory where he was also living and thereafter they would have phone calls one or two times a day through March to September 2008. He did quite a lot of activity in relation to Thailand accessing dating websites, talking to various women, some with families and some single parents, some on their own. He targeted people - village women who were poor because the respondent had said the poor women will do anything for money as long as there is food on the table and a roof over their head, they are prepared to turn a blind eye to what would normally be unacceptable in most communities, like child sex.
Mr Cummins would print out photos that were sent to him on the internet and forward them to the respondent in prison. He sent money to people in Thailand.
A particular woman whose children were discussed with the respondent, had a child named Film. Another child to a different family was named Guitar. He was an older boy.

Mr Cummins made the point that the conversations were guarded because he knew the phone calls were being recorded.
In cross‑examination he agreed that there were sometimes jokes involving sexual innuendo while they were in prison and this persisted in their telephone calls after he was released. He agreed that he wanted to go to Thailand to meet up with some of the women and eventually have a life living in Thailand and having a business there.
Mr Cummins agreed that he sent photos of Thai, Laotian and Vietnamese costume dolls to the respondent because he was interested for his doll business and because the respondent thought he could have a business also in Thailand. The business of making ceramic dolls would relate quite nicely to the proposed business of sewing and that this was among their discussions.
It was put to him by Mr McKenzie:
Because isn't it the case that, really, your communication with Mark Pendleton about Thailand was always about the setting up of a business---It was about the setting up the business, living over there and also about the offending.
Well, what I'm putting to you is that it was only about the business, not about offending---No. There was a fair bit of discussion about that and it's pretty obvious in the phone calls.
You'd completed the Sex Offenders' Treatment Program, hadn't you, twice---Yeah.
You didn't intend to offend again---Not initially, but after - after a while, I felt that if I had have gone over there, I would have offended.
And when you came to that realisation, that was when you were out in the community---Yes.
While you were in custody, you didn't have that intention at all---No.
So there was never a proposal to go over to Thailand while you were in custody. Let's define it. While you were in custody, before you were released in 2008, there was never an intention on your part to go to Thailand and offend against children. That's a fair comment, isn't it---Yeah.
...
And in chatting with her, is that - you not only developed a sexual interest in the mother, but you developed some sort of interest in this child as well [Film]---Yes. (ts 105 - 106).
In relation to the charges he faces, he was not offered anything in order to give this statement, no letter of comfort:
So my main early plea was the only thing I was expecting as far as a reduction in sentence for anything (ts 111).
His statement was based on his experience only.
When it was put to him:
From the time that you met Mr Pendleton, when you were in prison - - ----Mm hmm.
- - - to the time that you started to have thoughts about offending against children when you were chatting on the Internet, there was no agreement, was there, with Mr Pendleton to commit any offence---Oh, no, there - plus there was an agreement, we'd both discussed that that was what we were going to do over there, or could - we could possibly do over there (ts 111).
...
No, he'd tell me of his experiences over there and how easy it would be to offend and you could go over there and - and set up facilities to offend (ts 112).

The telephone calls

The prosecution tendered a series of 24 phone calls between May and September 2008 (exhibits 115 and 115A). These were calls between Mr Cummins and the respondent. I have listened to them.
While Mr Cummins agreed that there was a degree of sexual innuendo and banter between the two men both as part of their relationship and in the telephone calls, he did not suggest that the calls were discussing a fantasy. Extracts of the calls are informative.

Call 1 - 29 May 2008 - 7.08 pm

In this call Mr Cummins advised the respondent he has culled them down to three and its hard work 'Chasing up where they live and they're teaching me how to speak'. The ones Mr Cummins is interested in come from villages and they are more simple people which elicits the response by the respondent: 'No. But it would be interesting talking to those living in the smaller villages with the way of life and, um, - fuck yeah'.
There is then discussion of photos and the respondent suggests the next time speaking to the women as a matter of interest ask them how much it would cost to build a house in the village the same as their houses. Mr Cummins advised him he did some research and it was something like AUD$20,000 for a really fancy house. Mr Cummins tells the respondent that trying to get rid of one woman he told her why he had been to gaol, eliciting the response from the respondent that there is a totally different outlook on it to Australia.

Call 2 - 31 May 2008 - 6.33 pm

After irrelevant discussion, Mr Cummins advises the respondent that there is this other lady who wants to start an orphanage. 'She doesn't want kids of her own ... But she wants to teach kids in an orphanage ... she's pretty desperate'.
There follows a discussion between the two about the possibility of Mr Cummins going to visit the country.

Call 3 - 2 June 2008 - 7.31 pm

After discussion about irrelevant matters, Mr Cummins advises the respondent that he is reading on the websites '[that] they do not often use their real name they all have nicknames because their real names are like wheelbarrows'. He says: 'I'm sending a favourite of my favourite and her family and her name is Quan ... and she's got a daughter named Film'. They then discuss how Mr Cummins might send a photograph to the respondent, including a photograph of a house.

Call 4 - 5 June 2008 - 8.18 pm

Mr Cummins advises the respondent that he is working out how to send some money to Thailand so she can buy some powdered formula for the baby and there is a discussion about the ways in which money might be sent. There is then discussion about a language translator which Mr Cummins had purchased. Before discussion centres on a woman in the photograph. It is clear that the respondent has a photograph of the woman. Mr Cummins: 'And the one with (indistinct) yeah. Little Film'. The respondent: 'The Film'. Mr Cummins: 'A can of Film down there'. The Respondent: 'Yeah, yeah, yeah'.

Call 5 - 6 June 2008 - 3.02 pm

The call commences with the respondent enquiring about if Mr Cummins received the letter. Mr Cummins responds in the affirmative and says: 'So I'll be able to send that off to everyone now. Post it on the internet for all to see'.
The respondent notes that it is general waffle, nothing specifically, 'It's just waffle on about me so that it is generic. ... It's just tell us about yourself and stuff isn't it?'
Mr Cummins then advises the respondent that they have sorted the money out and the fact that it is going to be three months pay to keep her on line and 'Pay for services to be rendered yeah'. It is clear that Mr Cummins and the respondent are aware that the woman has a family and a girl. There is further talk about the use of the translator and how it can be used to send a message in Thai. The conversation concludes as follows:
Cummins: Yeah, I've got a joke for you but if you don't understand it I'm not going to explain it, you think about it and let me know if you work it out later today. You'll know why.
[The respondent]: Okay. Yeah.
Cummins: All right. What do I have to watch for when I have sex over there?
[The respondent]: What do you have to watch for when you have sex over there. Um, I don't know, go on.
Cummins: Well little Film on the end of my dick. Oye, gets it straight away.
[The respondent]: Yeah. Oh mate. No. While you are playing guitar, yeah, no.
While this is sexual innuendo and word play involving the name of the girl, it is illustrative of the pervasive thoughts of both of them about sex with children.

Call 6 - 6 June 2008 - 8.57 pm

The following interchange occurs after Mr Cummins was talking about the chance of finding a woman in Australia:
Cummins: So - and he goes yeah well that makes - you know, they're a lot more open and forgiving and all the rest of it over there.
[The respondent]: Well they are and they're sexier and better looking and they've all got long black hair and oh shit, what else would you want.
Cummins: Ah yeah.
[The respondent]: Yeah.
Cummins: Yeah. They look good on film.
[The respondent]: Yeah I was going to say yeah.
Cummins: Oh dear.
[The respondent]: Oh dear. You're a very bad man Robert.
In the course of that call Mr Cummins advises the respondent that he has sent off the respondent material having scanned it. They then speak about Quan who the respondent says: 'Yeah well she looks cute enough anyway' and then 'Don't forget to get lots of film as well mate. That's what we need. Oh you're a very bad man Robert'.

Call 7 - 14 June 2008 - 2.00 pm

This call is about small presents which Mr Cummins has brought for one of the women including a lovely little outfit for the little one. There is further discussion about communication with another woman.

Call 8 - 25 June 2008 - 7.14 pm

The respondent speaks about a film that he had viewed about Thailand which was 'pretty interesting'. There is further talk about Thailand. There is conversation about the fact that the respondent has written a letter. There is some trouble with communicating with Quan but Mr Cummins advises the respondent: '[D]on't worry we will make sure - we'll find some more for you so you've got backups'.

Call 9 - 28 June 2008 - 12.21 pm

Mr Cummins advises the respondent that he had passport application with photos ready to go - so one step closer.

Call 10 - 29 June 2008 - 2.43 pm

There is discussion about Thailand. '[Y]ou have already put a lot er - we have already had these big plannings and discussions so but yeah I know what you mean though'. There was then discussion about the respondent making simple basic designs of the products and little logos. The discussion then talks about getting some ladies sewing and doing stuff over in Thailand and Mr Cummins advises that he is thinking for his first trip and putting together ideas of what he wants to do over there.

Call 11 - 29 June 2008 - 9.43 pm

There is conversation during which Mr Cummins advises the respondent that he was chatting to one of the ladies, '[T]he one I was telling you about that doesn't speak very much English'. He then says that four of the women come from a province in the north east corner of Thailand and they can't meet him at the airport 'But I'll be busy doing business things so that's all right'.
This call indicates that there is a separation between the business that is being contemplated in Thailand and visits to women, particularly women who have children.

Call 12 - 15 July 2008 - 9.50 pm

There was discussion about a mobile number in Thailand that Mr Cummins is trying to call. Then there is discussion about rental prices and houses.

Call 13 - 16 July 2008 - 10.10 pm

There is talk about a woman called Mook who is said to be paying a local villager to take photos 'with their new gear and everything'. The respondent offers to find a telephone number in Thailand. Mr Cummins advises that he checked up on some more air fares from KL to Changmai.

Call 14 - 30 July 2008 - 2.35 pm

The respondent advises that he went to print out the letters he had written to Yeng. Mr Cummins then advises that he has been chatting to Mook who sends pictures 'So which is very strange considering this is one of the birds that knows about my past so I kind of thought what's going on here. Oh well whatever. Obviously they don't give a fuck ... Or you know don't have the same hangups anyway'.

Call 15 - 5 August 2008 - 4.04 pm

After general discussion including Mr Cummins advising that he had sent money to Ame, Mr Cummins says 'Oh it was so funny but yeah she's obviously over the moon. Yeah I'm not above buying a family'. The respondent: 'No fuck no. No, fucking hell. If you can buy a shirt you can buy a family bloody oath'. Mr Cummins: 'Yeah. You can wear them both'. The respondent: 'Yeah. Oh dear. Oh well that's all right anyway, yeah, at least she's keeping up (indistinct)'. There was further discussion of air flights with Air Asia via KL. Mr Cummins also advises of problems with his passport because he was born in New Guinea.

Call 17 (unknown time or date)

There is talk about visas and the difference between marriage visa and working visa. The respondent advises that 'Yeah and I mean as for like getting a visa and nicking off every three or six months or whatever, (sound effects), so what? So how long has he lived there for? For ten years ok he didn't do it after the fucking sixth years but for six years he was for however many months it was I can't remember what he told me but to renew his visa and he was down in Carabie. So that's down near Malaysia'. There was then conversation by Mr Cummins about '[w]here Aim lives is like a stone throw away from Viet Thien. ... That's Laos' and '[s]o it's like a day trip over Laos' and the respondent contributed that 'you can hire a taxi for the day and get a visa'.

Call 18 - 24 August 2008 - 11.39 am

The respondent advises he just finished his letter to Ying. There was then discussion about communication with Ying and Mook. Then further conversation about what will happen when they meet the women. The call concluded with Mr Cummins advising that he is planning to go over at the beginning of November once his passport comes through.

Call 19 - 27 August 2008 - 2.10 pm

Mr Cummins advises he has been chatting to Mook. In the communication Mr Cummins says 'Yeah so anyway, yeah they are all sorted out and of course um Ying is worried if I bale out on Mook you will bale out on her'. Late on Mr Cummins says 'Well, I have got 2 businesses I am looking at at the moment. I have actually been in touch with the real estate agent over there. One is a karaoke bar with accommodation'. ... '[U]se the top floor completely for your bedroom, so if I moved in there with Aim and the kids'. There was also discussion about the second business which is available and a 'good location to nip over the border anytime you want to renew your visa or whatever'.

Call 20 (No time, no date)

Mr Cummins advises that he had received a disk on the Lonely Planet - got one on Vietnam, one on KL, one on Malaysia and Vietnam.

Call 21 - 3 September 2008 - 4.16 pm

Mr Cummins advises that he has an application for a job and if he does that between now and when he goes 'get a nice $6,000, ... My nest egg'. There was then discussion about a little map of where Aim lives.

Call 23 - 10 September 2008 - 14.44 pm

There is discussion about the travel that Mr Cummins is intending. The respondent has received pictures of possible businesses. There is discussion about a message from Quan and 'my usual from Ame' and messages from the kids as well. There is further discussions about properties and their locations.

Call 24 - 10 September 2008 - 14.46 pm

There is discussion about the respondent writing to Ying and Mr Cummins advising about the price of air fares and the progress of his passport.
Shortly after this phone call Mr Cummins was spoken to by police and thereafter ceased all contact with the respondent.

Conclusion on the telephone calls

The telephone calls are clear evidence that Mr Cummins and the respondent had many discussions about South East Asia. There were two aspects to these discussions. One aspect certainly was the development or purchase of a business in a South East Asian country, particularly Thailand. However, the second aspect of the discussions was about the development of relationships with women in Thailand. These were not simply women but women with children and the possibility that the women may be less concerned about the possibility of their daughters being abused.
Mr Cummins admitted as much and the telephone calls are eloquent confirmation of his evidence in this respect.

Conclusion on Cummins' evidence

I approach Cummins' evidence with caution. There remains the possibility that he will receive a letter of comfort. He is in the position of a possible co‑offender giving evidence against another accused person. Some of the evidence he gives is of conversations of a private nature where there is no corroboration.
In all the circumstances I should be, and am, cautious in readily accepting his evidence.
That said, I do accept his evidence because it is confirmed in considerable measure by the telephone calls. From the nature of those calls it is obvious that they were preceded by discussions between the two men. Moreover, the respondent had previously been to Asia and has admitted sexual acts against children there.
The comments about Film must be seen in context with the photograph exhibit 116 showing a very young child.
The evidence of the other witnesses, which I also accept, including Mr Bosworth and Mr Hawke, provides some corroborative detail that the respondent discussed with others the prospect of going to an Asian country and abusing children.

Dennis Ronald Wayne Ashweirth

He is aged 49 and a serving prisoner who first met the respondent in 2000. He recalls in 2003 or 2004, the respondent talking about going over to Indonesia and getting a teaching job of some description. He also noted at one point the respondent cutting out pictures from Kmart magazines of kids on bikes, things like that of, ages seven and down, and sticking them into a book. He was not going to travel on his own but with someone else. On a few times when Mr Ashweirth was sitting outside having a cigarette he heard the respondent talking about it.

Conclusion on his evidence

I accept that Mr Ashweirth was an honest witness, genuinely trying to recount a conversation. The conversations had occurred many years ago and did not directly involve him, although he was definite in his response that the respondent wanted to travel with Ken Bishop. In view of the lapse of time, and the possibility that he may have been mixing up what he heard directly from the respondent, and what he may have heard from other people, I cannot safely draw the conclusion that that conversation occurred. I do not regard the evidence as sufficiently cogent.

Paul James Bosworth

Mr Bosworth is 54 years of age and a registered sex offender. He gave evidence that he overheard a conversation between the respondent and Ken Bishop:
They were discussing setting up a business in upper-Vietnam not far from the Cambodian boarder. I believe it was either a hotel or an inn. And that it would be very easy - Mark Pendleton made the comment that it would be very easy to get a load of kids to work for them. [T]here was a mention of ... being near the Cambodian border so that they could cross the border to renew their visas on a regular basis. And it was very easy - the guards were easy to bribe on the border (134).
Mr Bosworth's recollection was challenged in cross‑examination. He disagreed that the conversation was about setting up a dolls factory in Thailand. He only heard a part of the conversation:
Did Mark Pendleton in fact say that it would be very easy to get people to work for the business?---He said it would be easy to get kids to work for them, not people, kids (140).

Conclusions on his evidence

The conversation took place years ago and Mr Bosworth is relying on his recollection. However, I accept the reliability of his account. The reason I do so is his reaction at the time. It was a Sunday morning and he had gone onto the veranda to read the Sunday Times as was his custom. The conversation disturbed him so much that he moved inside so he would not hear anything further. This conversation obviously had an emotional effect on him which I consider increases the probability that his recollection of it has remained throughout the years.

Dan Edward Cheyne-Johnstone

Mr Cheyne‑Johnstone gave evidence that he overheard conversations between the respondent and Mr Bishop that he thought were inappropriate. They would often discuss the legality of the crime and so on:
Well, in other countries you can get away with what you - what they were charged with but over here they some to come down - come down heavy on ya (144).
In 2005/2006, mainly at Karnet in 2006, they discussed plans. There was a prisoner who had done his time and returned to Bali because he was married to an Indonesian lady:
Well, once he got back there and - and everything was - he'd settled down, there was some money sent over to him to help him and the idea was that this was going to be like a base to start off with. At least once they were there they had somewhere, they had a contact and then once you were in Indonesia movement is - is quite easy from there. They discussed your - the time problem that once you're there you can only stay so long, then you're supposed to return, whereas by just catching a cheap plane trip over the border to Vietnam or something, which was rather cheap, and then back the same day you - you're - you're back to full time for your stay there.
...
Well, because of their different laws over there it's - it's - it's easy to mix with - with kids or - or - or find young people over there. Their laws are a lot relaxed. Not so much as going out to buy a child but you go out to the country box - blocks and it's a lot cheaper. And just lots of other sort of little things that yeah, I just can't sort of - - - (ts 145)
...
Can you tell us where the conversations took place, in what areas---Mainly in and out our little sort of common room (ts 146).

In cross‑examination it was put:
Well, out of the whole group. When you heard the group talking about sexual matters you don't have a memory of exactly who was talking---Often I'd hear Mark Pendleton and I'd hear Ken Bishop and there was a few others that were there (ts 149).
He agreed that there was a bit of joking. It was never taken too serious.

Conclusions on his evidence

While I think Mr Cheyne‑Johnstone was doing his best, the conversations occurred years ago and there is no certainty as to the contribution of the respondent. The evidence is not sufficiently cogent or acceptable to be relied upon.

John Christopher Hawke

Mr Hawke is a sex offender who was imprisoned with the respondent. According to Mr Hawke, he spoke with the respondent who discussed his sexual offending. He said:
About - about him having - playing with little girls fannies and - and that when he was a school teacher.
All right. And do you recall what he actually said about that---He said that he'd rather lick a little girl's fanny than a real woman's fanny. They're sweeter.
Do you recall anything else that he said about that---He's penetrated - like he - he did penetrate a few little girls that - with his fingers, they liked it and he did a number of their underpants, one with stars on the underpants, little stars next to the numbers were the ones that used to like it (ts 203).
Mr Hawke remembered a particular conversation in April 2009 in his room at Acacia shortly before he (Hawke) was transferred back to Casuarina:
He said did I want to work in Asia or Balga - Bali, over there. He said that you can earn up to $20,000 a week looking after young girls between the age of eight and 12. And he said you can have any girl you like. Then he said to me - I didn't believe him - but he said, "I've got documents to prove it", then he produced pictures of young girls naked with men on top of them and then some young girls with legs apart. They'll be aged between the eight and 12-year-old. And I said, "How do you do all this?" And he said, "You get a - you get a - I show you the document, you sign this document." He showed me a document. And then I don't know how he got all these.
FIANNACA, MR: Did you read this document or not---I just saw the document saying that where you sign, where you've got to go to Mandurah, you meet a guy down Mandurah and he takes the bar - on a boat over there to meet up with somewhere else and they take you to the place where you'll be staying and looking after these girls.
Right. Okay. But did you actually read this or did you just skim over the top---I looked at it but I didn't see it properly. I didn't - I didn't read it properly. I saw it was a document, a - a form, document you had to sign.
Right. Well, what happened---Well, I said to him, "No, I'm not - I'm not interested." I said, "You're a sick man, you need help."
What happened after that---I walked out.
Right. Now do you recall anything else that Mr Pendleton said about the girls? You said that he - - ----Yeah, there's one - there's one stipulation. He said, "Once a girl gets her period, you don't - you kick them out." And he - they'd produce another girl and once they're 13 he doesn't want them anymore. They don't - they can't do it anymore. He only wants the girls between the age - age in eight and 12. (ts 104 - 205)
In cross‑examination, Mr Hawke conceded that he had significant heart problems and depression which had affected his memory to a considerable degree to the extent that he had no memory that his father had died in 1992 until about a week ago when he 'spoke to me mum and said "how's dad?"'. He said, in relation to his memory:
[I] can't remember that far back what I was reading at the time cos I went between then, April and the time I got to Casuarina, I went through a lot of depression. I lost a lot of memory and all that. When I went to Casuarina I was going through a lot of heart problems. I've had heart problems and all that and me memory just went for a while and then I - so when it come up with - about Mark, it just all clicked again, what - what I saw. I blocked it all out cos what he told me made me sick. It's a blockage. The doctors call it a blockage.
...
Yes. And they looked at this memory problem that you'd had---No, I - I'd been through this before I went to gaol. Like the time I went - before I got picked up I had another heart attack. I had picked up - when I was picked up from gaol, arrested, right, I had a heart attack. On 19 January 2007 I had six bypasses and then I had a pacemaker in 2008. While I was losing the oxygen to my - to my heart and all that, that's where the doctors at Royal Perth Hospital said you were losing a lot of memory loss. I can't remember half the things I did 10 years ago now. It's only one that - it just clicks, the doctor said it'll click like that and you can lose it just like that (ts 207 - 208).
He explained that in his police statement he had said that the statement had been in March. However, he was confused about that and when he went home and it sorted out in his mind, he realised it was April. About his memory he said:
It sort of clicked, but it didn't click properly till I got home and then - then I thought about a lot of things that was going through my head and that's when I come up, that's what happened there when I said to Bruno(?) here that I remember now a lot of things now what happened, what he said to me, it just comes to me and goes. And I - I read it before I come into court and all I said and everything else like that. I know I'm telling the truth. And I know that - you know, what I said and I had to call him a "sick man" when I told him that. (ts 208)

Conclusion on his evidence

As with the other witnesses, I approach Mr Hawke's evidence with some caution because he is recollecting a conversation which occurred years ago. Moreover, as he freely admitted, he has had problems with his memory from time to time. The conversation is to a degree consistent with what I find to have been the respondent's discussions during that time about young girls in Asia. There is also a degree of corroborative support because the comments he attributes to the respondent about girls underwear is consistent with what police found in a search of the respondent's residence on 24 February 2000. When they executed a search warrant, 33 pairs of young girls knickers, which appeared to be well worn, were located in a shoe box on a dressing table in the master bedroom. Four other pairs of young girls' knickers, which also appeared to be well worn, were located in other parts of the bedroom. Accompanying the knickers in the shoe box was a notepad containing handwritten entries which detailed female names and ages from four to 15. Under each entry of a female name is a description of a particular pair of knickers.
As to the document which Mr Hawke says the respondent showed him, although he noted it was written on a computer, he did not pay much attention to it, and I cannot make any particular findings about the document, not having seen it.
However, in general terms, I do accept Mr Hawke's account of the conversation in April.

Conclusion on propensity

On all the evidence I am satisfied beyond reasonable doubt that the respondent's intention was to go to Thailand on his release. This was not a fantasy but a real plan. Although the respondent was in discussions about starting or buying a business in Thailand, his driving intention was to further his paedophilic desires. Whether his plans would have come to fruition is beside the point. They were thought out by him and apparently reasonable. I am satisfied to a high degree of probability that the respondent has a propensity to commit further offences in the future.

Section 7(3)(d) - whether or not there is any pattern of offending behaviour on the part of the person;

Exhibits 9 and 10: A sexual history spreadsheet

When the respondent was arrested on 24 February 2000, among items seized by the police, and subsequently tendered at the sentencing hearing, were exhibit 9, a book containing a hand drawn spreadsheet involving details of sexual encounters by the respondent with various girls and women, and exhibit 10, a Victory Project book. These are both in spreadsheet style, although some pages of exhibit 10 have the attributes of a list.

Is the spreadsheet fact or fantasy?

In the plea in mitigation on the first indictment, counsel then acting for the respondent said:
Now, in relation to some of the exhibits, the written texts, in particular various stories my learned friend had produced to you by way of exhibits, my instructions are that a lot of those stories are simply that; they are fictional accounts of child pornography of an imaginary nature and were not in fact of a description of events that actually occurred (344).
The specialist psychological report, prepared on 12 February 2001 for the assistance of the sentencing judge, discussed exhibit 9 and the following comment is made:
[E]xhibit 9 indicates that at age 18 he began offending by engaging in sexual acts with younger females. Sexual intercourse, and other activities with an 8‑year‑old girl until she was 14 is recorded. Paedophile sexual activity when in his 20's and 30's is recorded in Exhibit 9, but Mr Pendleton contends this is a fictitious account intended for writing up as stories to be shared with someone on the Internet (351).
In the ISOTP report, the writers noted:
While he acknowledged a great deal of his abusive behaviour, he continued to minimise the extent of his abusive behaviours. ... He admitted to various other offences for which he is not charged including offences from when he was about 17/18 years against a friend's daughter. There appeared to be no break in Mr Pendleton's interest in prepubescent girls according to his disclosures. His early offences were perpetrated against customers in the stores where he worked, or against the daughters of people whose trust he had been able to gain in some way (623).
The respondent engaged in extensive one‑on‑one therapy with a psychologist, Ms Boyle. She noted:
Mr Pendleton also asserted that the document produced by him and referred to in the court transcripts 'Schedule 9' was not a victim log and did not record actual sexual encounters. He maintained that the log listed people he had known, many of whom were children, and that the sexual activities listed and ticked, as well as the sexually explicit descriptions, were recorded by him for his fictional child pornography writing. He attempted to convey the impression that he considered that keeping the log was harmless activity in itself, and seemed oblivious that this document represented violations of the personal boundaries of the young girls and women objectified and offensively described therein.
Dr Tanney reported that exhibit 9:
Has and continues to be argued by him to be dramatis personae for erotic stories he was writing in 1999 and the characters, though not the reported catalogue defence based on his own experience.
Dr Wynn Owen:
Mr Pendleton stated to me that during ISOTP he made up all of the behaviours prior to the breakdown of his second marriage because one of the facilitators has told him that unless he admitted events in the chart were true he would not be allowed to participate. He stated that, in fact, he did not have any sexual interest in young girls prior to 1992/3. He has given the same explanation for his revelations to other recent assessors. It is of note that Mr Pendleton told Forensic Psychologist Gail Boyle that he has experienced paedophilic sexual fantasies for 90% of his adult life.
The respondent did not give evidence as to his intentions when preparing the spreadsheet or the extent to which it was or was not fantasy.
On his behalf, Mr McKenzie submitted:
There's no doubt, in my submission, that there is a factual element to them and perhaps to a great degree there is fact in the lists. ... And I think even the schedule, that my learned friend has presented today, certainly some of the conclusions in relation to some of the children mentioned in the lists, what Mr Pendleton has put in the list goes beyond what he was certainly convicted for. And to that extent it may be those parts of it may be fantasy which is what he's maintained all along (ts 284).
...
So part of the fantasy is the reliving of events in the past. And in writing those lists, in my submission, he's reliving what had happened, but maybe engaging in fantasy beyond that as well. And rather than being a list in which to directly write a story they may well be just a series of a setting out of what's happened in the past plus some fantasies in which to extract parts of it to write stories (ts 285).
The entries in respect of some women and some girls are confirmed by other evidence.
In final submissions, Mr Fiannaca submitted a schedule of entries on which the applicant relies in asserting that the exhibits record actual conduct.
It is unnecessary for me to set those matters out. I have examined each of the references to which the DPP has referred and compared them with the entries in the spreadsheets. The spreadsheets closely correspond to events which occurred to real persons and for which there is some confirmatory evidence in the form of photographs or admissions to others or video recordings.
The explanation that the spreadsheets were produced as an aid for writing subsequent fictional stories is unbelievable. There is no point in writing a fictional spreadsheet in order to subsequently write a fantasy story. The stories that the respondent did write in prison were full of very explicit detail and written in an autobiographical style. They were written without the benefit of exhibits 9 and 10 which had been seized from him much earlier.

Conclusion on the sexual history spreadsheets

On the whole of the evidence, I find to a high degree of probability that the sexual history spreadsheets are a largely accurate account of the respondent's offending behaviour. That behaviour is pervasive.
I leave to one side the first page of exhibit 9, which commences in 1967 when the respondent was aged 7 and the girl was aged 6, until after the second entry on page 2 which occurred in 1977 when the respondent was aged 18 and the girl aged 16. The ages of the girls were similar to that of the respondent. While the seeds of his paedophilic behaviour may be found in that contact (together with the contact when he himself was victimised by his aunt, an event not recorded), because of the similarity of ages between the females, I am unable to draw any adverse conclusions. However, the third entry on page 2 of exhibit 9 is dated 1977 when the respondent was aged 18 and the girl was said to be 13. Thereafter, with some exceptions when the girl was relatively close to his age, there is disclosed a detailed history of sexual offences against increasingly younger girls from ages 13, 8, 3, 6, 5, 6, 7, 4.
There is a gap in offending between 1985 and 1992 in both exhibit 9 and exhibit 10. This coincides with the period of the respondent's second marriage which was at times a happy marriage. Following the breakdown of that marriage the sexual offences increased in intensity, especially once he became a primary teacher and continued unabated until his arrest.
Mr McKenzie makes a fair point that the spreadsheets are now historical. If there had been significant treatment gains in the last decade, the spreadsheets would lose some importance. However, there have been no significant gains. I can only conclude that the paedophilia that drove the respondent to offend against prepubescent children for almost all his adult life, apart from the break to which I have referred, continues more or less unabated. The spreadsheets are therefore not only of historical significance but also offer an insight into the respondent's largely untreated mind. It is not a pleasant sight.

Treatment completion programme

The first programme was a reasoning and rehabilitation programme in August/September 2005. The respondent completed a cognitive skills programme.
Interestingly, and reflecting a comment of Dr Tanney in the course of giving evidence, the report writer noted:
The Cognitive Behavioural rating scale showed that Mr Pendleton scored relatively low in the dimensions of Ability to think/develop alternatives, Awareness of consequences, Ability to set and achieve goals/ambitions, Impulsivity and Morals/values reasoning. His highest score was attained in the area of Ability to recognise that problems exist, with mid scores in the remaining dimensions (619).
Dr Tanney's evidence six years later was to similar effect; namely, that the respondent could recognise an issue but had no strategy to manage it.
The summary indicated the area that the respondent felt he gained most in was creative thinking, especially in the area of consequences, alternatives, and considering others points of views, which had changed his way of thinking. He also made gains in problem solving.

Sex Offender Treatment Programme

The respondent undertook this programme between 29 September 2005 and 28 April 2006. Some of the comments made by the psychologists who ran the programme are informative:
Mr Pendleton explained that he was highly motivated to change his behaviour, however anecdotal evidence within the program and from within the unit suggest that the veracity of his claims in this regard was questionable.
Mr Pendleton appeared to be gloating about his offending at times. Particularly in videotaped sessions where facilitators were not present, he tended to become quite excited when recounting how he had deceived the families of his victims and during one session he appeared to be competing with another offender in regard to his exploits. Furthermore, the respondent's expressions of remorse appear to be contrived and superficial and contrary to the expressions observed during his accounts of offending (625).
He was found to have treatment needs in three of the four domains of the structured risk assessment; namely, sexual interests, distorted attitudes and socio‑affective functioning. His greatest area of need was assessed as being his sexual interests. In that area his needs related to his high level of sexual preoccupation and his longstanding preference for prepubescent females.
The writer noted:
Mr Pendleton is considered to have significant outstanding treatment needs in terms of his sexual interests. His motivation to change his interests appear to be questionable and the likelihood of progress in this area is also questionable.
Under the heading of 'Distorted Attitudes' the writer noted:
He appeared to be well aware of the fact that sexual behaviour towards his victims was wrong, and planned his offending extensively to avoid detection or negative reactions from his victims, suggesting that he in fact did not hold any distorted attitudes.
...
Mr Pendleton spent a considerable amount of time in developing strategies for assessing victims and avoiding detection by others. He used highly manipulative and deceitful behaviours to invite trust from the victim's parents and also to normalise his high level of contact with the victim.
Under the heading 'Socio-Affective Functioning' he was assessed as having significant treatment needs:
Specifically he demonstrated a callous disregard for the victims and their families; lacked emotionally intimate relationships with adults; had a distorted intimacy balance and; he appeared to have a strong sense of inadequacy (628).
In summary, the report:
[He] made some gains in the area of distorted attitudes, but continues to have significant treatment issues in terms of his sexual interests and his socio‑affecting functioning (631).

Independent Clinical Review/Assessment

Following completion of the ISOTP, the respondent was independently assessed by a psychologist. The recommendation was that the respondent's outstanding treatment needs would be best addressed through individual counselling, which will permit an individualised intervention and focus not available in the standard group programme. This is considered essential given the entrenched nature of his sexual deviancy and offending behaviour.
Dr Tanney reached the same conclusions about individual group programme, although for slightly different reasons. In view of the respondent's aggressive narcissistic profile, Dr Tanney considered that group work could be detrimental to other members of the group and also to him.

Individual therapy treatment

The respondent undertook individual treatment with Ms Boyle, a psychologist, for approximately 58 hours of individual sessions over a 12 month period between January and December 2009.
Ms Boyle noted that while the respondent initially described the abuse he had suffered as a six‑year‑old, perpetrated by an aunt of a friend, as a 'wonderful' experience, after detailed investigation he realised the aversive elements to the abuse he had experienced. His reactions appeared genuine and it seemed that he had been affected by a new awareness that his previously idealised sexual experience contained aversive elements.
In relation to fantasy management, the respondent reported that after basic techniques of diversion and arrest were used, his inappropriate fantasies firstly reduced then ceased altogether. Ms Boyle noted that although desirable, such an extreme response was unlikely to have been achieved by measures taken during the course of the treatment on the entrenched behaviour that the respondent had described.
The respondent's relapse prevention plan was of concern. The plan appeared fluid and unrealistic. In conclusion, Ms Boyle considered that although the respondent appeared to make some gains in developing more understanding about his offending behaviour and the origin of his sexual interest in children, this does not seem to translate into appropriate relapse prevention strategies. His long term goal of a doll business by sourcing dolls in Asia was not consistent with his stated interest in avoiding children. His stated intention to move overseas away from family and all known supports, other than a convicted paedophile who was deported to the United Kingdom some years ago, was also disturbing. She concluded:
Therefore, although Mr Pendleton appeared to make some gains during treatment they are not verifiable, and at the end of treatment he presented with ongoing treatment needs relating to arousal reconditioning, fantasy management, social-affective functioning and relapse prevention.

Conclusion on efforts to address offending behaviour

The respondent has been an active participant in a number of programmes. It must be acknowledged that he has made some gains. However, my assessment is that the gains are relatively minor, superficial and do not reduce his risk to the community in any meaningful way.
In trying to measure the depth of his commitment to change, it is telling that while the respondent was undertaking intensive therapy with Ms Boyle, he was also plotting to go to South East Asia to abuse children.
The conviction in 2002 (IND 1333/02) was a conviction for possession of child pornography which he had created while in prison. On 12 November 2007 his cell was searched and videos were removed. These were a large amount of child related footage, some of naked children, one of a topless pubescent girl. The tapes were made by him from recording otherwise innocuous television programmes. His possession of them indicates a continuing fascination with sexual deviancy. Subsequent events, including his discussions about South East Asia, indicate this fascination remains.

Conclusion on the DPP application

The convictions of the respondent establish that he is a dangerous paedophile obsessed with children, child pornography and sexual activity. He was a dangerous sex offender when he was convicted in 2000 and remained so when he was again convicted in 2003. The only change to that status might occur if, during the intervening period, he has gained significantly from the treatment programmes that have been offered to him, including the ISOTP and the Intensive individual counselling.
However, the report writers do not give any evidence of any significant gains. Each concluded there are still serious and outstanding treatment needs.
Their opinions are reinforced by Dr Tanney:
I think Mr Pendleton was very frank when he said to me 'I don't ever expect that I'll get rid of these fantasies and thoughts but what I have to do is learn how to manage them' (ts 166).
When asked about management Dr Tanney said:
And the critical pieces that the thoughts we can help them manage but the uncontrollable urge issue perhaps related to narcissism is the difficult part because that is the piece that we find it very difficult to help people learn how to address and deal with.
McKECHNIE J: Is it possible ...
Is it possible, bluntly---Seldom, but yes. More than rare but - more than rare, seldom and - and yes, it's - it's manageable. ... And the other possibility is psychoanalytic treatment. And - and - and I think that that's where I would go. I mean, we know the first isn't available any long, that experiment. But the - the rare to seldom I think is possible with psychoanalytic treatment. But it requires an immense commitment on the part of the therapist in addition to the commitment on the part of the person to want to have this behaviour changed.
In Dr Tanney's opinion there is no supervision requirement possible. It would all have to be external checks because the respondent has no internal measures to control his urges.
Dr Wynn Owen has reached a similar conclusion that the respondent is a high risk of reoffending that cannot really be managed in the community.
The evidence is overwhelming that the respondent is a serious danger to any community that has young girls. His crimes, the history of sexual abuse that he compiled, the photographs, stories, videos, drawings and fetishes including underwear, all showed an intense pervasive obsession with prepubescent females. This extended at least through the 1990's until his arrest in February 2000. It continued in prison as evidenced by the material the subject of the third indictment. The continuing sexual fantasies involving young girls is demonstrated by his discussions and plans about South East Asia. His principal purpose for wishing to travel there is to indulge his paedophilia.
As recently as December 2011, in interview with Dr Wynn Owen, the respondent admitted to continuing fantasies.
It is clear that he remains a serious danger to the community.
Despite considerable efforts at treatment, any gains made have been minimal. Among other things, this is demonstrated by his continuing plans and discussions about South East Asia, despite the intensive one‑on‑one therapy with Ms Boyle.
I have considered whether the community could be adequately protected if the respondent was subject to supervision in the community.
There are two reasons why supervision would not be suitable.
The first reason is the inevitability that the respondent will be deported the moment he is released from custody. He has been given a notice of his removal, as soon as is reasonably practicable, as an unlawful non‑citizen who asked the Minister, in writing, to be removed: Migration Act 1958 (Cth) s 198(1). Because of his substantial criminal record, he will not be eligible for the grant of another Australian visa.
Removal from Australia will also remove the respondent from the supervisory jurisdiction of this court. None of the conditions for his release into the community that might ensure its adequate protection could be enforced.
The second reason is that I have no confidence that the respondent could presently comply with a supervision order. I note in his favour that the respondent has no issues with drugs or alcohol. Mr McKenzie's cross‑examination of Dr Tanney and Dr Wynn Owen explored some of the external checks that could be put in place to minimise the possibility of re‑offending. These relate to conditions restricting his employment and residence to avoid contact with children, conditions restricting his ability to groom children, and conditions on the use of the internet.
Mr McKenzie also points to the fact that the respondent, if released, will have other obligations under ANCOR.
These external checks, important as they are, do not give me sufficient confidence in the adequate protection of the community in the absence of corresponding internal controls within the respondent. His relapse prevention plan was described by Ms Boyle as 'of concern', 'lacks solid details, is fluid and unrealistic'. Ms Boyle described his relapse prevention strategies as 'basic'.
The present position is that the respondent's fantasies are not able to be controlled by him. He has demonstrated no potential regime of control. He is capable of considerable planning and effort in pursuing his paedophilia and without internal controls, supervision will inevitably breakdown and he will offend further.
The only conclusion on the evidence is that the respondent is a serious danger to the community and must be detained in custody for an indefinite term for control, care or treatment.
I am aware of the consequences of this finding. Because of the first reason why supervision is not feasible, the respondent faces the real prospect that he will never be able to demonstrate, on annual review, that is his risk to the community may be adequately supervised outside detention. He would have to show such gains in overcoming his paedophilia that he was no longer regarded as a serious danger to any community. The only possibility, and it is not a strong possibility, is that such gains may be assisted by pharmacological intervention in some form of anti‑libidinal medication. That apart, the respondent's paedophilia is so entrenched that he faces the bleak possibility of life in detention forever.

Finding and order

I find that Mark Pendleton is a serious danger to the community.
I order that Mark Pendleton be detained in custody for an indefinite term for care, control and treatment.