Director of Public Prosecutions (WA) v Pindan [No 4]

[2017] WASC 271

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- PINDAN [No 4] [2017] WASC 271

CORAM:   FIANNACA J

HEARD:   21 APRIL, 5 MAY, 7 & 15 SEPTEMBER 2017

DELIVERED          :   19 SEPTEMBER 2017

FILE NO/S:   DSO 2 of 2013

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

NIGEL PINDAN
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Third annual review - Effect of Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA) (No 17 of 2016) - Amendment of s 29 Dangerous Sexual Offenders Act 2006 (WA) - Serious danger to community - Supervision order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

The Court rescinds the continuing detention order and releases the respondent subject to a supervision order

Category:    B

Representation:

Counsel:

Applicant:     Mr M T Trowell QC (21 April, 5 May 2017), Ms S Markham (7 September 2017) & Mr B D Meertens (15 September 2017)

Respondent:     Ms M R Barone (21 April, 5 May, 15 September 2017) & Ms F A Cain (7 September 2017)

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Barone Criminal Lawyers Pty Ltd

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

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

Director of Public Prosecutions (WA) v Pindan [2013] WASC 393

Director of Public Prosecutions (WA) v Pindan [No 2] [2015] WASC 157

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

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

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

Director of Public Prosecutions v Dinah [No 9] [2017] WASC 158

J v L & A Services Pty Ltd [No 2] (1995) 2 Qd R 10

Prisoners Review Board v Freeman [No 2] [2010] WASCA 167

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

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

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

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

FIANNACA J: 

The application and outcome

1. This is the third annual review of the respondent's detention under a continuing detention order made by McKechnie J under the Dangerous Sexual Offenders Act 2006 (WA) (the Act) on 28 October 2013: Director of Public Prosecutions (WA) v Pindan [2013] WASC 393 (Pindan [No 1]).  The most recent review of the respondent's detention was conducted by me in April 2016, at the conclusion of which, on 16 April 2016, I declined to rescind the detention order:  Director of Public Prosecutions (WA) v Pindan[No 3] [2017] WASC 107 (Pindan [No 3]).  That was because there continued to be an unacceptable risk that the respondent would commit a serious sexual offence if he was not detained in custody.  I was of the view that the community could not be adequately protected against that risk if the respondent were released conditionally, subject to a supervision order.  I identified the factors that militated against such release and the gains the respondent needed to make before the court could be satisfied that a supervision order would provide adequate protection of the community.

2. I conducted the third annual review on 21 April 2017, 5 May 2017, 7 September 2017 and 15 September 2017.  For the reasons that follow, I have come to the conclusion that the respondent has made sufficient gains for me to be satisfied that the community can be adequately protected if the respondent were released on the supervision order annexed to these reasons.  Accordingly, I will rescind the continuing detention order and release the respondent subject to the conditions of that supervision order.

Background

1. The respondent's history, relevant to the proceedings, is set out in detail in Pindan [No 3].  These reasons should be read in conjunction with the reasons in that decision, as the latter provide context for the present review.  It is sufficient for present purposes to summarise the history as follows.

History of sexual offending

1. The respondent has been convicted of sexual assaults upon women on three occasions.  All of the offending occurred in the Kimberley region of Western Australia.  The first occasion on which he was convicted of a serious sexual offence was in 1994 for offending that occurred in December 1993 in Broome, when the respondent was a juvenile.  The second occasion on which he was convicted for such an offence was in 1997 for an offence committed earlier that year in a community near Derby, when he was 18 years of age.  The last occasion on which the respondent was convicted of serious sexual offending was in 2007 for offences he committed earlier that year in Broome, when he was 28 years of age.

2. The offences in 1994 and 2007 were committed after the respondent had broken into the victim's home on each occasion.  The offence in 1997 was committed upon a woman who was sleeping on a mattress with her boyfriend.  In Pindan [No 3] I assumed the offence occurred in a park, because there was a reference to the victim having returned to a 'reserve' after becoming very drunk.[1]  That assumption was not corrected during the proceedings for that review.  In these proceedings it was pointed out that the incident happened on the veranda of the victim's home.  Having reviewed the original materials, it would now appear the reference to 'reserve' was a reference to the community in which the victim was living.  It was not a matter on which the decision turned at the last review, and it is not critical in this review.  However, I will proceed on the basis that the 1997 offence was also committed at the victim's home, on her veranda, and the respondent came to be there without her knowledge.

   [1]Director of Public Prosecutions (WA) v Pindan[No 3] [2017] WASC 107 [3], [74].

3. On each of the occasions in 1994 and 1997 the respondent commenced to have sexual intercourse with a woman who was sleeping, before the woman woke and screamed or pushed him off, causing him to flee.  The offending in 2007 involved a greater degree of violence.  After breaking into her house, the respondent woke the victim from her sleep and forced himself upon her.  He dragged her by her hair to different locations in the house to commit the acts of sexual penetration and attempted sexual penetration.

4. There were other occasions in 1993 and 1995 when the respondent had gone into women's homes without consent while they were asleep, although he did not commit a sexual offence on those occasions.

5. The respondent committed the sexual offences when he was heavily intoxicated with alcohol.  On at least one occasion he had also been using cannabis.

6. On each of the occasions on which the respondent was charged with serious sexual offences, he pleaded guilty to the charges.  In 1997 and 2007 he was sentenced to terms of imprisonment. 

The making of the continuing detention order in 2013

1. The respondent was serving a sentence of 6 years' imprisonment for the 2007 offences when, approaching the end of the sentence, the Director of Public Prosecutions (the DPP) applied for an order under div 2 of the Act that the respondent be detained indefinitely or made subject to a supervision order upon release, on the basis that he was a serious danger to the community.  That required the court to be satisfied that there was an unacceptable risk that, if he was not subject to one of those orders, the respondent would commit a serious sexual offence, as defined in the Act.[2]  On 28 October 2013, McKechnie J found accordingly, and further that the risk was such that the adequate protection of the community could only be ensured by the making of a continuing detention order under s 17(1)(a) of the Act.  His Honour relied on the respondent's history and the expert evidence given in the proceedings concerning the respondent's risk of sexual reoffending.  Evidence was given by Dr Gosia Wojnarowska and Dr Sam Febbo, both of whom used actuarial instruments and clinical tools to arrive at the opinion that the respondent's risk of committing a serious sexual offence again was high and that, as alcohol intoxication was a particularly significant factor in his past offending, it was a significant risk factor for future sexual offending.  The evidence before McKechnie J was to the effect that the respondent's sexual offending developed in the context of him having an entrenched pattern of deviant ways of gratifying his sexual urges and was facilitated by disinhibition caused by alcohol.  Additionally, the respondent was considered to have demonstrated an antisocial way of living, as evidenced by his previous offending and his impulsivity.  It was also noted that he had demonstrated limited empathy for the victims of his sexual offending.

   [2] Dangerous Sexual Offenders Act 2006 (WA) s 7.

2. On the basis of Dr Wojnarowska's evidence, McKechnie J was also satisfied that the respondent has a paraphilia, being an interest to the point of deviance from the normal in sexual relations with sleeping women. 

3. McKechnie J had regard to the fact that the respondent had previously participated in sex offender programmes, but that, although the reports from those were positive, the respondent had reoffended in a sexual manner after completing the first programme.  His Honour also relied on the following factors disclosed in the evidence:

   1.The respondent's understanding of his cycle of offending was superficial, and he did not demonstrate insight or strategies to decrease his risk.

   2.In particular, the respondent continued to lack insight into his alcohol consumption and its possible link with offending.  That lack of insight was itself a risk factor.  His Honour regarded the respondent's consumption of alcohol to be a significant risk factor.

   3.The respondent had demonstrated a negative attitude towards the conditions of a supervision order, saying he did not worry about the court, that the requirements of the supervision order were 'full of shit' and that his offending was not that serious.  The court could have no confidence that the respondent would comply with the conditions of a supervision order.

4. Finally, his Honour found there was no suitable accommodation for the release of the respondent on a supervision order, even if that had been appropriate, which it was not.  The respondent is from the Kimberly and has always expressed a strong desire to return there to live.  McKechnie J considered that eventual release into the Kimberley region on a supervision order would be the preferred option, but no suitable accommodation was available.

5. The psychiatrists had identified the need for the respondent to undertake intensive psychological counselling to address his sexual offending and alcohol abuse, as he still had significant treatment needs.

6. As I concluded in Pindan [No 3], his Honour appears to have relied on all of those factors in deciding that the adequate protection of the community required the making of a continuing detention order at that stage.  The factors in turn disclosed matters that needed to be addressed by the respondent if he was to be considered suitable for release on a supervision order in the future.

The first annual review of the respondent's detention

1. The continuing detention order had to be reviewed annually.[3]  At each review, the court was required to determine whether the respondent continued to be a serious danger to the community and, if so, whether the appropriate order was a detention order (in which case the court would decline to rescind the detention order) or a supervision order (in which case the detention order would be rescinded and the respondent would be released subject to the supervision order).

   [3] Dangerous Sexual Offenders Act 2006 (WA) s 29.

2. At the first annual review, commenced by an application in September 2014, but not heard finally until 7 April 2015, EM Heenan J declined to rescind the order:  Director of Public Prosecutions (WA) v Pindan [No 2] [2015] WASC 157 (Pindan [No 2]).  The circumstances of that decision are outlined in Pindan [No 3] at [6] ‑ [7]. The review was conducted on the basis of the documentary materials that were tendered (including expert reports); no oral evidence was adduced. It is sufficient to say that the respondent was still considered to be a serious danger to the community, but his risk of committing a serious sexual offence was, for the purposes of that hearing, considered to be capable of being managed in the community if he was subject to a supervision order if suitable accommodation could be found, but no suitable accommodation was available.

3. In Pindan [No 3] at [98] I noted that the evidence in the first annual review which spoke of developments in the respondent's circumstances was to be found in the report of Dr Febbo dated 28 October 2014. The evidence, which I outlined, was to the effect that the respondent had gained an understanding from counselling that alcohol was a factor in his offending and that he had to abstain from alcohol and drug use. However, his counsellor, Dr Yewers, considered the respondent's engagement in counselling to be ambivalent, and that he experienced considerable frustration because he thought he was not believed. Further, when interviewed by Dr Febbo, the respondent first denied that alcohol was involved in his offending, before accepting it was a factor, in combination with 'rejection', stress and anger. The respondent indicated he was distressed that he had offended. As his counsellor put it, he had developed 'retrospective insight' into his previous sexual offending, but had limited capacity to apply that information to future risk scenarios. His strategies for dealing with substance and alcohol abuse and his risk of reoffending in the community were regarded as 'concrete'. The respondent had returned two positive urinalysis results for cannabis, which was an adverse reflection on his ability to avoid substance abuse.

4. In short, one might say that, at the time of the first annual review, while the respondent had made progress in recognising some of the causes of his offending, the consolidation of those gains remained a work in progress.  As I indicated in Pindan [No 3], despite the concession that had been made by the DPP at the first annual review, it was not clear to me that there had been any significant change in the respondent's circumstances from the time the detention order was made by McKechnie J until the time of the first annual review.  Dr Febbo was of the opinion (in his report for the first annual review) that the respondent had made very much limited improvement in addressing his risk of sexual offending, yet he considered that little more could be gained in a custodial setting, and the respondent should be given the opportunity to test within the community the limited gains he had made.  However, the respondent continued to be detained in custody under the Act.

The second annual review of the respondent's detention

1. The second annual review was conducted by me over three days in April 2016.  Again it was Dr Febbo who gave psychiatric evidence, both by way of a report and orally.  I also received evidence from a forensic and clinical psychologist with the Department of Corrective Services (DCS), Ms Rankin, and from a DCS Community Corrections Officer, Ms Wasley.  The respondent's mother, Ms Ruth Pindan, gave evidence in the respondent's case about the accommodation that she was prepared to make available to the respondent at her home in Broome.  That home had been proposed as the residence to which the respondent would be released if the court decided to release him on a supervision order.

2. The respondent had continued to receive counselling from Dr Yewers in the period between the first annual review and the second annual review, but there had only been two sessions.  Dr Yewers had reported that the respondent had maintained his ambivalent attitude towards treatment, lacking understanding about what constituted therapeutic work, and viewing therapy as requiring him to convince Dr Yewers that he would be able to manage in the community.  He had continued to express frustration that impeded progress towards treatment goals.  Dr Yewers considered that the respondent had a reasonable level of insight into his past sexual offending behaviour and was able to generate alternative decisions that he could have made at the time of the offending, but he had some difficulty generalising that to future potential scenarios.  In that sense, his thinking remained 'concrete'.  Ms Rankin was of the view that the most effective way for the respondent to make progress was to focus on simple strategies that give him a direct link between cause and effect.  The respondent demonstrated awareness that boredom was a factor that had led him to drinking in the past and, therefore, had contributed to his offending.

3. While the respondent had shown understanding of the need for consent in sexual activity, and had at times demonstrated remorse and embarrassment in respect of his offending and empathy for his victims, he had made comments to Dr Febbo in 2013 that suggested a lack of persistence of the empathy and remorse.  Those comments concerned his perception that Aboriginal women did not care what happened to them and that sex was 'a joke' to them, and a suggestion that the victim of the 2007 offences exaggerated aspects of the offending.  I considered the respondent's attitude in those respects to be important in the following way:[4]

   While I approach the issue with caution, I am satisfied that the respondent's previously expressed attitude is a matter that may affect his judgment on the issue of consent in relation to sex with Aboriginal women, and in that way facilitate sexual offending, as it was put by Dr Febbo.  In the absence of evidence that he no longer has the distorted perception, I am of the view that it remains a consideration in determining the level of supervision that would be required if the respondent were to be released on a supervision order.

   [4] Director of Public Prosecutions (WA) v Pindan[No 3] [2017] WASC 107 [141].

4. As to alcohol and substance use, although the respondent had demonstrated an understanding of the role of alcohol in his offending and the need to abstain, he had also indicated quite consistently that he did not believe he needed further treatment in the area of alcohol use as a risk factor.  That was of concern, as Ms Rankin was not convinced that the respondent had adequate strategies in place to avoid the problem.

5. Another area of concern was the respondent's attitude to the conditions of a supervision order.  Ms Rankin noted that, given the respondent's reticence to engage with psychological services, it was unlikely he would benefit from further attempts to engage him in therapy, which meant it was likely that his management in the community would be largely dependent on external controls and the efficacy of restrictive conditions.  The respondent had presented as resistant to the restrictive nature of a supervision order.  Although the respondent had not gone so far as to say he would not comply with the conditions of a supervision order, he was dismissive about some of the conditions and admitted he would be reluctant to comply with the disclosure condition.  Ms Wasley reported that the respondent had again described the conditions as 'stupid' and had indicated he did not want to be under strict monitoring and did not see the point of the conditions.  He said he would sort it out once he got out.  Ms Wasley was of the opinion that the respondent was likely to test the conditions of a supervision order and struggle to comply with them.  There was a reasonable foundation for that opinion, having regard to the respondent's conduct in custody in the period since the first annual review.

6. As I noted at [168] of Pindan [No 3], between 4 June 2015 and 15 February 2016, the respondent had been reprimanded on nine occasions while at the West Kimberley regional prison.  Although I considered most of the incidents to be of a minor nature, a number of them demonstrated a refusal to comply with instructions and belligerence when dealing with certain prison regulations.  There was one incident of particular concern on 15 February 2016, when the respondent refused to obey a lawful order and swore at and challenged an officer who was carrying out his lawful duty.

1. Dr Febbo was of the opinion that the respondent remained at high risk of committing a further serious sexual offence.  As the assessment of risk relies in important respects on historical factors and personality traits that are not likely to change significantly, the assessment of risk is not likely to change in the foreseeable future.  The most likely scenario in which the respondent would commit a serious sexual offence would be similar to his past offending.  The offending would most likely be opportunistic at a time when the respondent felt an increase in sexual arousal and was disinhibited by intoxication from heavy drinking.  There was a potential for the respondent to resort to violence if the victim resisted.  Dr Febbo was of the opinion that, in the absence of intoxication, the respondent would be able to restrain himself if he felt an increase in sexual arousal.  Dr Febbo was not convinced the respondent has a paraphilia in respect of sleeping women, but that did not affect the risk assessment. What was significant was that the respondent had targeted women who were in vulnerable situations.

2. Dr Febbo and Ms Rankin (conveying also the views of Dr Yewers) were of the opinion that the respondent was not likely to engage in further treatment in custody, and it would be preferable for him to test the insights he had gained and the strategies he had developed (limited as they were) within the community.  Although Dr Yewers was of the view that the respondent was 'as well engaged in the therapeutic relationship as he could be', she did not consider him an appropriate candidate for ongoing therapy within the community either.  She considered that the reinforcement of insights and strategies could be achieved by senior Community Corrections staff or an external agency providing programmes to deal with drug and alcohol abuse.  On the other hand, Dr Febbo was of the opinion that there were areas in which the respondent could benefit from further therapy if he chose to engage, and that could happen in custody.  This was in the context that the respondent, despite his frustrations, had been communicative with Dr Yewers, who was of the opinion that he was capable of forming a 'working relationship' with a therapist.  I referred to Dr Febbo's evidence as follows:[5]

   He considered that the areas in which further gains could be made included disclosure of his sexual thinking, with a view to ascertaining whether there is sexual deviance, increased awareness of the effect of alcohol on him and its role as a risk factor, and victim empathy, with particular emphasis on awareness of the victim's pain.  Another area would be in respect of the role of anger and envy as motivating factors in his offending.  Also, the respondent could benefit from counselling in respect of his problem with the requirement for disclosure under a supervision order.  Dr Febbo was of the opinion that if the respondent were to engage well in treatment addressing those areas, it 'could cause a significant additional improvement in his level of risk'.

   [5] Director of Public Prosecutions (WA) v Pindan[No 3] [2017] WASC 107 [152].

3. On the evidence presented at the review, I was satisfied that the respondent remained a serious danger to the community and that the adequate protection of the community could only be achieved at that stage by the continued detention of the respondent for treatment.[6]  Consequently I declined to rescind the detention order.  In the course of giving reasons, I identified a number of specific factors that militated against the release of the respondent on a supervision order.  In summary, they were as follows:[7]

   1.The accommodation that had been proposed for the respondent in Broome was unsuitable, as it was likely to expose the respondent to significant risk factors of the kind that had led to his sexual offending in the past, in particular, alcohol abuse and antisocial behaviour.  The evidence was that the respondent's use of alcohol had been associated with boredom and the influence of negative peers;

   2.The respondent's mother, who was the head of the household at the proposed accommodation, would be expected to have responsibility to avoid situations being created in her home in which the respondent's risk of reoffending might be increased, for instance because of the presence of women in vulnerable circumstances.  I was of the view that Ms Pindan did not have adequate awareness of the respondent's offending that would enable her to identify risk factors to enable her to fulfil that responsibility; 

   3.The respondent had demonstrated a negative attitude towards the conditions of the proposed supervision order in the review period, and I was not satisfied he had the appropriate resolve to comply with some of the conditions, including the condition requiring him to disclose his status and past sexual offending to any woman with whom he was to commence a domestic or intimate relationship;

   4.The respondent had been guilty of a number of disciplinary breaches in prison in the period since the first annual review, which raised doubt about his capacity to comply with lawful directions given to him under a supervision order;

   5.The respondent had outstanding treatment needs that needed to be addressed.  I was of the view that, while, ultimately, the results of treatment would need to be tested within the community, that would have to occur in a context in which the respondent would continue to receive treatment for reinforcement of knowledge, attitudes and skills gained in treatment while in custody.  I was of the view that he would have to demonstrate that he will be prepared to engage in such treatment by engaging in the therapy that would be made available to him in custody.

   [6] That was the form of the order made by McKechnie J in 2013 and which continued in force so long as the court declined to rescind the order.

   [7] Director of Public Prosecutions (WA) v Pindan[No 3] [2017] WASC 107 [17] ‑ [21], [224].

4. Addressing items 3 and 4 above, I said:[8]

   It will be necessary also for the respondent to demonstrate a proper appreciation and acceptance of the proposed conditions of a supervision order and, by his conduct, that he will follow lawful instructions under such an order.  Improvements in those areas will be necessary for the court to have confidence in his resolve to comply with a supervision order. 

   [8] Director of Public Prosecutions (WA) v Pindan[No 3] [2017] WASC 107 [228].

5. Before turning to the evidence in the present review, I will consider the legislative framework and the legal principles I must apply. 

Legislative framework and relevant principles

1. When a person is in custody pursuant to a continuing detention order, the detention must be reviewed by the court, on application by the DPP, in accordance with pt 3 of the Act. 

A preliminary issue ‑ amendment to s 29 of the Act

1. At the time I declined to rescind the continuing detention order on 16 April 2016, a review was required to be conducted as soon as practicable after the end of a period of one year commencing when the detention was most recently reviewed: s 29(2)(b) of the Act (as it then was). That continued to be the case until the Act was amended on 10 September 2016, from which time the period for review was changed to two years from the date on which the detention was most recently reviewed.[9]  The applicant brought the application on the basis that the amendment did not affect the requirement that the respondent's detention be reviewed as soon as practicable after the end of a period of one year commencing 16 April 2016, and the proceedings were conducted on the assumption that the matter was properly before the court as an 'annual review', the timing being reckoned from the date of my decision in the second annual review.

   [9] Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA) (No 17 of 2016) s 24, amending s 29 of the Act. The amendment also changed the wording so as to frame the requirement in terms of an obligation on the DPP to bring applications 'so as to ensure that reviews are carried out' within the specified timeframes. That change does not affect the resolution of the issue I have identified.

2. As it is a matter that goes to the jurisdiction of the court to conduct the review, I invited submissions from the parties on the effect of the amendments to s 29 of the Act made by s 24 of the Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA) (No 17 of 2016) (the Amending Act). Having considered the submissions, I am of the opinion that it was proper (and necessary) for the review to proceed as an annual review under the pre‑amendment provisions of s 29.

3. I dealt with the question of retrospectivity of the Amending Act in Director of Public Prosecutions v Dinah [No 9] [2017] WASC 158[10] in the context of dealing with the procedure that applies under s 33 when a supervision order is made.[11]  That is a different context, although it is relevant when dealing with the application of s 33 in this case. 

   [10] Director of Public Prosecutions v Dinah [No 9] [2017] WASC 158 [166] ‑ 176].

   [11] The issue concerning s 29 was not dealt with in Dinah [No 9], although the annual review fell due as soon as practicable after 11 November 2016, two months after the amendments came into effect, so that the question did arise. It would seem the issue was overlooked because the application for the annual review had been brought by the DPP in June 2016, before the Amending Act came into effect. Although the issue was not addressed directly, in giving reasons in respect of the effect of the amendments, I made the assumption that the obligations imposed on the DPP and the court under Part 3 of the Act arose at the commencement of the period following the most recent review, and conferred correlative rights at that point in time on the person who was subject to the detention order to have the continuing detention reviewed: Director of Public Prosecutions v Dinah [No 9] [2017] WASC 158 [169]. That approach was consistent with the conclusion I have come to in this matter.

4. As I noted in Dinah [No 9], the common law principle concerning the retrospective application of legislation was explained in Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 518 ‑ 519. It is sufficient for present purposes to extract the following propositions:

   1.The rule at common law is that a statute should not be given a retrospective operation where to do so would affect an existing right or obligation, unless the language of the statute expressly or by necessary implication requires such construction. 

   2.There is no presumption against retrospectivity in the case of a statute which affects mere matters of procedure. Strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively, in that it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events.  Therefore, there is no room for the application of such a presumption.

   3.The difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural may operate in such a way as to affect existing rights or obligations.  When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation.

5. In Rodway v The Queen, statutes of limitation were identified as coming within the category of statutes that may be classified as procedural, but which operate in such a way as to affect existing rights or obligations. In my opinion, the amendment to s 29 is analogous to a statute of limitation. Section 29(2)(c), as it was in force before the amendment, placed an obligation on the court to review a detention order within the timeframe specified. That timeframe commenced when the detention was most recently reviewed. By virtue of s 29(1), there was an obligation on the DPP to make an application to facilitate the carrying out of a review within that timeframe. The obligation gave rise to a correlative right in the respondent to have the review carried out within that timeframe. That right accrued at the time the court declined to rescind the continuing detention order at the conclusion of the second annual review. The context, of course, is that detention under the Act is for preventive and rehabilitative purposes, not punitive purposes, and the prospect of a further review within a particular timeframe has a bearing on the measures taken for the treatment of the detainee from the time a decision is made on an annual review. Further, as the legislation affects the liberty of the subject, it should be strictly construed.

6. The Amending Act did not provide a transitional provision to deal with the situation under consideration. In my opinion:

   1.Section 24 of the Amending Act affected existing obligations and rights;

   2.The language of the section does not expressly or by necessary implication require a construction that would apply its provisions to detention that was continuing at the time of the amendment as a result of a decision on a review of detention given prior to the amendment;

   3.Therefore, the section should not be construed as having such application. 

7. It follows that the annual review was properly conducted in accordance with s 29 as it was in force prior to the amendment.

8. However, as I concluded in Dinah [No 9], the manner in which the review is to be conducted is affected by the amendments made to s33 by the Amending Act, as those amendments were procedural and had effect in any proceedings after 10 September 2016. The outline of the legislative provisions that follows reflects the amendments to s 33.

The purpose of the review

1. The purpose of a review is to determine whether the person continues to be a serious danger to the community and, if so, whether the appropriate order is continued detention or release on supervision: s 33 of the Act. If the person is no longer a serious danger to the community the detention order must be rescinded: s 33(1)(a). If the person continues to be a serious danger, the court must either affirm the continuing detention order or rescind that order and make a supervision order: s 33(1)(b). In making that decision, the paramount consideration is the need to ensure adequate protection of the community: s 33(3).

The legal principles

1. I discussed the legal principles applicable on an annual review and the appropriate approach to the decision to be made between continuing detention and a supervision order in Pindan [No 3].[12]   As I said in Dinah [No 9], subject to the further analysis in Pindan [No 3], I adhere to the views I expressed in Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 at [9] - [12], agreeing with the analysis of the annual review process by Hall J in Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 at [14] - [18] (which his Honour reiterated, with some elaboration, in The State of Western Australia v Corbett [No 5] [2017] WASC 115).  In Dinah [No 9], I summarised the key relevant principles in a manner that is apt for present purposes.[13]  For convenience I will repeat them.

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

   [13] See Director of Public Prosecutions v Dinah [No 9] [2017] WASC 158 [13] – [18].

2. Detention under the Act is not punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised.  As Hall J noted in Unwin [No 3], it is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future.[14]  If circumstances change such that the risk of reoffending reduces, it may be that the risk is no longer unacceptable if the person is not subject to a detention order or supervision, or it may be that the adequate protection of the community against the risk, although it is still unacceptable, can be achieved by the making of a supervision order. 

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

3. The review process is intended to allow for the possibility of a change of circumstances.  It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings.  In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community:  Pindan [No 3] [51].

4. Nevertheless, the first question the court must consider is whether it is satisfied to a high degree of probability, on acceptable and cogent evidence, that there remains an unacceptable risk that the respondent will commit a serious sexual offence if not subject to a continuing detention order or supervision: s 33(1)(a) read with s 7 of the Act. If the court is so satisfied, then, in deciding whether to affirm the detention order or release the respondent on a supervision order, the court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [79].

5. When considering whether a supervision order would adequately protect the community, it is necessary to take into account any conditions which can be placed on such an order to ensure that protection.  The use of the word 'adequate' indicates that a qualitative assessment is required.  It cannot simply be assumed that the protection of the community will always favour detention, as the most assured form of prevention:  Williams [58]. However, because of the paramount consideration, if, having regard to the evidence concerning possible conditions which might be imposed on a supervision order under s 33(2), the court is left in doubt as to whether such an order would adequately protect the community, it must affirm the continuing detention order: Williams [86]; Pindan [No 3] [29] ‑ [32].

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

7. As Hall J remarked in Unwin [No 3], if the risk changes or resources improve to enable more efficacious conditions, then the need for detention may dissipate and continuing detention may become unjust.[15]  The review process is intended to ensure that detention only continues where necessary. 

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

Issues to be decided in this review

1. The issues I must decide, having regard to the legislative framework, are:

   (a)Is the respondent still a serious danger to the community?

   (b)If so, could his risk be adequately managed (so as to provide adequate protection of the community) under a supervision order within the community at this point in time, if suitable accommodation is available?

   (c)If so, is the proposed accommodation suitable for the purposes of a supervision order?

2. The answer to the second question will be informed by a consideration of whether there have been developments in the respondent's circumstances in respect of the factors outlined above, which I identified at the second annual review, which previously militated against his release on a supervision order.  Without limiting the matters that bear on the question, the following issues loom as most significant:

   (i)Has the respondent engaged in therapy and demonstrated a willingness to continue to do so if he is released into the community?

   (ii)Has the respondent developed further insight into his offending, in particular understanding the wrongfulness of his perception about the attitude of Aboriginal women to sex and his perception about the attitude of the victim of his offences in 2007?

   (iii)Has the respondent demonstrated a proper appreciation and acceptance of the proposed conditions of a supervision order?

   (iv)Has the respondent demonstrated by his conduct whilst in custody that he has the capacity to comply with the conditions of a supervision order and the restrictions they will entail?

   (v)Is there suitable accommodation available for the purposes of giving effect to a proposed supervision order so as to ensure the adequate protection of the community?

Evidence in these proceedings

1. The evidence in these proceedings consisted of a book of materials (exhibit 1) which included records from DCS concerning the respondent's conduct in custody and his medical records for the period between the second annual review and the present review, a Treatment Progress Report dated 20 March 2017 from Ms Chantelle Place, a Senior Forensic Psychologist with DCS, a Community Supervision Assessment dated 12 April 2017 by Ms Jane Henshall, a Senior CCO with DCS, and a psychiatric report dated 14 April 2014 from Dr Wojnarowska.  Dr Wojnarowska and Ms Henshall were called by the applicant and gave oral evidence in the proceedings.  Ms Place's report was received into evidence with the consent of the respondent, who did not require her for cross-examination.

2. It will be noted that Dr Wojnarowska provided an opinion in the Division 2 proceedings before McKechnie J, and had also provided a report in respect of the respondent when he was sentenced in 2007.

3. So-called Desktop Accommodation Analysis reports prepared by WA Police, assessing the suitability of two proposed residences, were also tendered, but they have become redundant in light of the availability of another property about which information was provided in a Community Supervision Assessment Update Report dated 29 August 2017 prepared by Ms Lisa Rathmann, a Senior CCO with what is now the Department of Justice (exhibit 6). 

The respondent remains a serious danger to the community

1. Dr Wojnarowska used an actuarial instrument and a structured clinical guide to assess the respondent's risk of committing sexual violence in the future.  The first tool takes into account static factors relevant to the individual and results in a score that can be related to 'statistical reference data'.  The score is then relevant to the second tool, which requires a clinician to consider different factors which have an impact on the assessment of risk. 

2. Relevant to the assessment is Dr Wojnarowska's psychiatric diagnosis of the respondent.  She said that her 'diagnostic formulation' has not changed since her assessment of the respondent in 2013, and includes Antisocial Personality Disorder and Cannabis and Alcohol Use Disorder.  Relying on the respondent's pattern of sexual offending, involving sleeping women, she also maintained her diagnosis of 'Paraphilia, not otherwise specified'.  As to the latter, the respondent told Ms Place that his 'targeting of sleeping women' (which I take to be Ms Place's expression, not the respondent's) was the 'easy thing to do'.  He told her that he had heard friends bragging about having sex with sleeping women.  He insisted that it happened on a regular basis in the West Kimberley, but he knew it was wrong.  Although I have previously said that the question of whether the respondent had a paraphilia did not matter in the final analysis of the respondent's risk, his admissions to Ms Place tend to lend support to Dr Wojnarowska's diagnosis and McKechnie J's finding in 2013 that the respondent had a predilection for having sex with sleeping women.  I appreciate that a cultural attitude to such matters, if that is what it was, would not be a paraphilia.  However, Dr Wojnarowska pointed out that the pattern in the respondent's behaviour was present from when he was a juvenile, so she still believed it supported a finding of deviancy.[16]

   [16] ts 618.

3. Applying the assessment tools and having regard to all relevant information, Dr Wojnarowska concluded that the respondent continues to be at high risk of sexual reoffending if not subject to a detention order or a supervision order.  Although the assessment, in its terms, is not confined to the risk of the respondent committing serious sexual offences as defined in the Act, the offending of which the respondent has been convicted previously is of that kind and forms the basis of the assessment. 

4. I am satisfied to a high degree of probability that the respondent remains a serious danger to the community.

5. Further, on the basis of the evidence of Dr Wojnarowska and the psychological evidence, I am satisfied that the risk factors remain as previously identified.  Alcohol and cannabis use are the most significant factors.  While cannabis is not regarded as contributing to sexual urges (in contrast to alcohol), it is a risk factor in that the disinhibiting effect of cannabis may lead to the respondent's use of alcohol.  Moreover, the same lifestyle factors that might lead to cannabis use, including boredom and association with negative peers, are the factors that have led to heavy alcohol use by the respondent in the past.

Developments in the respondent's circumstances since the second annual review

1. Response and attitude to treatment

1. Ms Place reported that between the last review and the hearing on 21 April 2017, the respondent had engaged in 12 counselling sessions with Dr Yewers.  Sixteen appointments had been scheduled.  Two were missed because the respondent forgot and another two for reasons not attributable to him.  I do not consider that the respondent's forgetfulness on two occasions reflects on his engagement with therapy, although he would need to be vigilant about appointments if he were on a supervision order to ensure he did not contravene the order. 

2. At the appointment after the last review, the respondent presented as disappointed and said he felt he was misunderstood and wrongly represented by the expert witnesses who assessed him.  He expressed frustration about the opinion that he would have difficulty complying with the conditions of a supervision order, and thought that his risk management plans had been overlooked.  Of course, his plans were not overlooked, but they were considered to be superficial and inadequate, particularly in respect of avoiding a relapse into alcohol use. 

3. Ms Place's report says that the respondent was initially 'reticent' about engaging in further therapy, but he told Dr Yewers that he did not wish to return to the West Kimberley Regional Prison, and he was willing to engage in ongoing therapy.  This was a significant change of attitude and an important indication of commitment to his treatment, given that he has long indicated a desire to return to his country.  Dr Yewers reported to Ms Place that the respondent's engagement with therapy became 'increasingly constructive' over the review period.  The treatment was adapted to his particular needs, with sessions kept short.  Practical assistance was also provided to the respondent in order to ensure he had constructive activities to fill his days.

4. When interviewed by Ms Place, the respondent agreed that his engagement in counselling had improved since the last court review.  He attributed the improvement to being used to the counselling process and discussing his problems.  He said he found counselling to be beneficial, because he could get his thoughts out, which he considered to be a good thing.  Unfortunately, he was not so positive about the benefits of counselling when he was interviewed by Dr Wojnarowska.  He said he did not mind talking to his psychologist and it was 'better now', but said he had not learnt much.  However, Dr Wojnarowska did not think that the respondent's appraisal that he had not learnt much undermined the gains the respondent had made, which were apparent not only from what Dr Yewers had reported, but also from her own assessment during the interview.  In her opinion, it was evident from the respondent's behaviour and his engagement with her that the respondent was learning.[17]  Further, she considered that it was a positive factor that the respondent was open in his self-appraisal, without any attempt to manipulate Dr Wojnarowska's perception by portraying himself in a better light.[18]  She said there was no evidence of the respondent trying to impress or mislead.[19]

   [17] ts 610.

   [18] ts 610 ‑ 611.

   [19] ts 612.

5. Overall Dr Wojnarowska considered that the respondent's engagement in counselling was one of two areas in which she observed the most noticeable improvement.  The other was his 'more flexible approach to his future accommodation'.

6. I note that Dr Yewers was of the opinion that, should the court decline to rescind the continuing detention order, there is a potential for the respondent to develop feelings of hopelessness and to refuse to engage with his management team.  Dr Yewers considers that much of the respondent's progress is attributable to his perception that he is working towards his release.  There is a risk that without such a definite goal to work towards, he is likely to cease to be engaged with therapy.  Dr Wojnarowska expressed similar views, suggesting that, if the respondent is not released on a supervision order, he is likely to lose the gains obtained through 'very sustained' effort over the last year.[20] 

   [20] TS 610

7. I accept that where the court declines to rescind a detention order after a detainee has made genuine efforts to engage in therapy and gain insight into his offending and risk factors, there is a risk that one of the purposes of detention, namely treatment, will be undermined.  However, the paramount consideration remains the adequate protection of the community, having regard to all relevant information.  In addition, it is worth noting that pessimism was expressed at the last two annual reviews about the respondent's capacity to engage further with therapy, yet, despite initial disappointment and reluctance, the respondent engaged constructively over the 12 months leading to this review.

8. In any event, I am satisfied that the respondent has met the first of the objectives I identified in the last review as steps towards satisfying the court that a supervision order would provide adequate protection of the community.  While the respondent has continued to indicate that he wishes minimum intrusion in his life on a supervision order, and would prefer to have a small management team, as he would find it difficult to deal with a large number of people, he has indicated he would continue to participate in counselling.  Moreover, he has indicated to Dr Yewers that, while he does speak to his family and friends when he has a problem, he does not talk about the problem itself, and Dr Yewers is the only person to whom he talks about the problems in his life.  Ms Place reflected that this is typical of avoidant behavioural and cognitive tendencies and it is promising, for instance, that Mr Pindan was able to discuss the death of a close friend with Dr Yewers. 

9. It seems that the working relationship Dr Yewers has developed with the respondent is likely to encourage his engagement in counselling once he is in the community.  Under the proposed supervision order there would be a requirement that he participate in counselling as directed. 

10. Dr Wojnarowska considered that the respondent's treatment needs initially would be focussed on everyday functioning, rather than offence‑specific interventions, primarily because increasing the respondent's control over his life would make it more likely that he would comply with the conditions of the order.  That is not to say that counselling would ignore factors that may arise that are directly relevant to the respondent's risk of sexual reoffending.  It would be expected that the manner in which the respondent was coping with avoiding alcohol and illicit substances would be canvassed as appropriate. 

11. Another area which it would be expected would be addressed as appropriate is one in respect of which Dr Wojnarowska noted the respondent had been resistant in counselling.  That concerns discussion about his current sexual fantasies and functioning.  Dr Yewers has acknowledged that cultural circumstances, including the fact that she is a woman, may be an obstacle in this regard.  However, it is an area in which the respondent would be expected to be more forthcoming if he were released on a supervision order, as it would be part of the role of counselling in those circumstances to address any fantasies and sexual urges that could put him at risk of committing a sexual offence.

12. Dr Yewers informed Ms Rathmann on 22 August 2017 that she temporarily suspended psychological treatment with the respondent awaiting completion of the current review.[21]  Since the hearing of 5 May 2017, Dr Yewers visited the respondent once, on 30 May 2017.  That session focussed on grief issues following the death of his grandmother and the level of his coping regarding the pending review.  Dr Yewers indicated that the findings in Ms Place's report remain relevant.  She said that, if the respondent is released on a supervision order in Perth, she will recommence sessions with him during the 21 day pre-release period with the intention of focussing on reviewing his management plan and preparing him for release.  In the community, the respondent would initially be required to attend psychological counselling on a weekly basis.  The sessions will focus on his risk and self-management, his adjustment to living in the community and management of any stressors he may encounter. 

    [21] Exhibit 6, Community Supervision Assessment Update Report page 1. 

13. It seems to me that the matters to which I have referred above as appropriate for attention in counselling within the community would come within the scope of what Dr Yewers has proposed.

1. Insight into offending and risk factors

1. The developments in the respondent's insight into his risk factors since the last annual review emerge from the information provided by Dr Yewers to Ms Place, from Ms Place's interview with the respondent and from Dr Wojnarowska's interview with him.

Alcohol use

1. According to Dr Yewers, during the period since the last annual review the respondent had demonstrated an awareness of alcohol as a personal risk factor for reoffending and had progressed to discussing the link between his alcohol use and negative emotions that put him on a 'trajectory' towards sexual offending.  He recognised that he had feelings of anger and frustration when drinking, and these led him to make poor decisions.  He demonstrated an awareness of the need to resolve problems when sober, including issues with his family and with partners.

2. The respondent also identified the way in which ruminating upon negative emotions posed a risk for relapsing into alcohol use.  He outlined several strategies he would employ to address the risk as and when the negative feelings or problems might arise.  The respondent also identified his alcohol use was linked to a desire for immediate gratification, and that such desire had played a role in one of his offences.  He recognised that when intoxicated, he had difficulty delaying gratification, which led to the consumption of more alcohol.

3. The respondent again acknowledged the role of alcohol in his offending when interviewed by Ms Place, but he said to her, 'I don't blame alcohol, I blame myself.'  His acceptance of responsibility in that way is a positive factor, provided it does not involve a minimisation of the risk that alcohol poses for him.  Taking into account the whole of the evidence, I do not regard his comment in that way.

4. The respondent said that he intended to manage this risk by abstaining from alcohol and having stable employment and a routine.

5. Although the plan to abstain has previously been regarded as simplistic, especially in a context in which the respondent is regarded as not having a realistic appreciation of how difficult that may be, given the stresses he is likely to encounter under a supervision order, the respondent has offered reasons for abstaining that tend to suggest progress in this area.  First, he told Ms Place that he wishes to abstain from alcohol for health reasons, citing his diabetes.  Secondly, he attributed his abstinence from substance use over the past 12 months to the fact that he was regularly subjected to urinalysis testing at Acacia Prison, whereas he claimed that while at the West Kimberley regional Prison he was not tested as regularly.  He indicated he was aware that on a supervision order he would be subject to regular urinalysis testing and breath testing for alcohol. 

6. Dr Wojnarowska's assessment was that the respondent was 'very much well aware' of the association between alcohol use and his offending.[22]  Although she was of the opinion that the respondent still underappreciates the risks associated with relapsing into substance abuse in the community, she considered it an indication of his insight into the need to abstain, and his commitment to do so, that the respondent was now choosing to take up accommodation in Perth if he is released on a supervision order.  She said:[23]

   Well, obviously, the most important aspect of Perth accommodation is that Mr Pindan himself chooses this as a first option and this is associated with his insight that perhaps Broome with all its shortcomings in terms of availability of alcohol and his knowledge of people who drink alcohol and his associations with people who drink alcohol will place him at risk.  So his plan would be to consolidate all the gains from the treatment in an environment that he's not subject to other family members coming and perhaps encouraging him to drink and then when he feels stronger within himself, he can then move to Broome.

   [22] ts 608.

   [23] ts 608 ­‑ 609.

7. The respondent said similar things to Ms Place, stating that he wanted to use his time in Perth to 'get a clear mind', so as to be prepared for the challenges to his resolve that he may face when he returns eventually to the West Kimberley.[24]  Therefore, although his current plans for dealing with family and peer pressure to engage in drinking remain simplistic ('say no', 'walk away and go bush'), he recognises the challenges of dealing with family and peers and he has taken a responsible approach.  If released on a supervision order, his ability to return to the Kimberley will be determined by his case management team, which would no doubt take into account whether the respondent has consolidated treatment gains and the suitability of accommodation.

Consent issues and feelings towards women

[24] Exhibit 1, Book of Materials pages30 - 31 (report of Ms Place dated 20 March 2017 [30]).

1. Dr Yewers was of the view that the respondent had maintained a reasonable understanding of consent issues.  However, there are three things he has said during the period since the last review that raise concerns about his progress in that regard.

2. Dr Yewers said that, 'initially' the respondent had said that women consent to sexual activity 'by their eyes'.  In context, 'initially' appears to be a reference to the commencement of counselling since the last review.  Of course, the respondent's offending occurred in circumstances in which the victims were asleep or were woken and resisted, so there was no occasion for ascertaining consent from their eyes, and the respondent has not suggested they consented, although there is an issue in respect of his attitude to the 2007 offences, to which I will return.  Nevertheless, a belief that women consent with their eyes would be fraught with danger for someone with a history of sexual assault who has previously expressed distorted views about the attitude of Aboriginal women to sex.  Dr Yewers told Ms Place that 'on further exploration' the respondent was 'able to provide concrete indicators of reciprocated sexual interest'.  Importantly, Dr Yewers' assessment that the respondent had maintained a reasonable understanding of consent issues was made notwithstanding the 'initial' perception expressed by the respondent.

3. The second matter of concern is that there appears to have been an element of minimisation in the respondent's explanation to Ms Place that, while the behaviour was wrong, the targeting of sleeping women with whom to have sex was something that happened on a regular basis where he came from and 'he was not the only one to do it'.

4. The third matter of concern is in relation to the respondent's account to Ms Place about the last of his sexual offences in 2007.  He claimed that at some point during the assault he realised that what he was doing was wrong and he stopped.  He said that he apologised to the victim, but she said nothing back.  He said he told her to relax and offered to buy her cannabis.  Importantly, when asked what he thought the impact of his actions were on the victim, he said he did not see any trauma and 'she had a smile, a laugh, she thought it was a bit funny'.[25] Given the facts on which the respondent was sentenced for those offences, his claim about the victim's reaction must be rejected as a gross distortion intended to minimise the seriousness of his offending on that occasion. 

   [25] Exhibit 1, Book of Materials page 30 (report of Ms Place dated 20 March 2017 [25]).

1. When questioned about the significance of the respondent's statements to Ms Place about the last incident, Dr Wojnarowska said that it would be a concern if the respondent had that perception, and such a problem in his perception would be an area for further counselling.  She said that she did not get that kind of response from the respondent, and that in fact he had told her he did not think the victim of his last offence would be accepting of an apology, because 'she was hurt a lot'.[26]  Dr Wojnarowska understood 'hurt' to mean both physically and mentally.[27]  However, she acknowledged that she had not spent a lot of time talking about it with the respondent, because she thought his statement to her was genuine.[28]  She said that she did not get the impression that the respondent had cognitive distortions about the last offence, but Dr Yewers would be 'very much more in a position to know exactly where he stands'.[29] Ultimately, Dr Wojnarowska agreed with the proposition in cross-examination that the other treatment gains the respondent had made would be sufficiently protective as to counteract any negative attitudes still held about his offending.[30] 

   [26] ts 614 ‑  615.

   [27] ts 615.

   [28] ts 614, 616.

   [29] ts 614.

   [30] ts 616.

2. When interviewed by Ms Place, the respondent appropriately identified (having regard to his offending history) that individuals who are intoxicated, asleep or under the influence of drugs are unable to give consent to sexual acts.  Upon prompting, he also acknowledged that persons who are underage or in a situation in which they might feel threatened or intimidated could not give consent.[31]  His responses, being made outside the therapeutic context, tend to support the general proposition that he has maintained a reasonable understanding of consent issues.

   [31] Exhibit 1, Book of Materials page 30 (report of Ms Place dated 20 March 2017 [28]).

3. More generally, in terms of the factors that led to the respondent's offending, he told Ms Place that his 'feelings towards women' led to the offending, specifically feelings of anger and frustration from being rejected.[32]  The respondent explained that the rejection did not occur on the day of the offending, in each case, but 'had built up over time in the way that women would talk to him and by the fact that his relationships only tended to last a week before his partners moved on.'  He added that he would also get 'wild' about the fact that they would use up his money.

Explanations for specific offences

[32] Exhibit 1, Book of Materials page 29 (report of Ms Place dated 20 March 2017 [25]).

1. When asked specifically by Ms Place about each offence, the respondent gave what might be regarded as superficial explanations.  He attributed the first offence to 'stupidity' and the fact that he was significantly intoxicated.  In relation to the second offence, initially he said 'it just happened', but later said that he was 'in the mood for doing something stupid' and thought that he would not get caught.  In relation to the last offence, Ms Place did not report any explanation from the respondent about the manner in which he came to commit the offence, but referred to the distorted account about the aftermath to which I have already referred.

2. It seems to me that the specific explanations need to be considered in the context of the general explanation about his anger and frustration towards women, and his distorted views about sex with sleeping women in his community.  There might be perceived to be a degree of inconsistency in his explanations.  On the one hand there is an explanation steeped in negative feelings towards women because of rejection.  On the other hand there is an explanation suggesting 'stupid' opportunism pursued in a state of intoxication to fulfil an urge for sexual gratification.  Of course, the explanation in each case may be a combination of those factors. 

Significance of the respondent's openness about his offending

1. What is significant is that the respondent has been open about these matters in therapy, when previously he had not been forthcoming about the sexual offending and the specific factors that had led to the offending.  In particular, he has been able to identify the source of his anger at the time of his offences.  While at least in one interview he has continued to minimise the severity of the last offence and the impact on his victim, in another interview he has identified the harm he has caused to her. 

2. The expert evidence is to the effect that the gains made by the respondent in counselling should overcome any cognitive distortions, which can be dealt with in further counselling in any event.  Overall, I am satisfied the respondent has taken significant steps in gaining insight into his offending and the factors that he must address to avoid committing serious sexual offences in the future.

Implementing strategies to deal with risk factors

1. There remain reservations about the respondent's capacity to implement strategies to address the factors about which he has gained insight.  He has continued to demonstrate difficulties with abstract and future thinking, which can be important in planning to avoid situations in which his risk of sexual reoffending might be elevated.  For instance, Dr Yewers reported that she had discussed different coping strategies with the respondent and, whilst he could identify past examples where he had used such strategies, he showed a lack of understanding of the advantages and disadvantages of various coping strategies.  Dr Yewers is of the opinion that it is unlikely the respondent will make any more meaningful gains in that area.  Ms Place pointed out that such a limitation is typical of the respondent's 'concrete thinking style', which impedes his ability to generate strategies and manage risks.  That, of course, is a matter of concern.

2. I have already referred to the respondent's simplistic strategy for avoiding alcohol.  He also expressed an unrealistic strategy for dealing with sexual urges in the event that he is not able to form an intimate relationship with a woman, stating that he would not worry about his sexual needs and would simply try to 'blank it out'.[33]  Ms Place regarded this as further evidence of his tendency to use 'avoidance strategies'.

   [33] Exhibit 1, Book of Materials pages 31, 33 (report of Ms Place dated 20 March 2017 [33], [39]).

3. However, the respondent has expressed to each of the professionals that he has strong motivation to live a pro-social life.  As for avoiding alcohol, his reasons for remaining in Perth and his reference to health issues indicate that he has thought beyond simply relying on his resolve to abstain.  His belief that it will be easy for him to avoid alcohol because he knows very few people in Perth is still unrealistic, but his commitment appears to be genuine and something which can be reinforced in counselling and monitored by urinalysis testing.

4. Although, the respondent's strategy for dealing with sexual urges does not inspire confidence that he would cope, his history does not suggest that sexual urges alone will be a risk factor.  His offending has been in the context of anger and frustration and disinhibition from alcohol intoxication.  The expert evidence has consistently been that those are the areas that require attention in terms of coping strategies.  Frustration may stem from relationship problems or an inability to form a relationship.  It may also stem from boredom, as may a relapse into the use of alcohol.

5. Dr Yewers was of the opinion that Mr Pindan's attitude towards future long term relationships was realistic, although discussion of that topic was hindered somewhat by cultural differences.  What does emerge, however, is that what he said to Dr Yewers about the way he would go about developing such a relationship was inconsistent with what he subsequently said to Ms Place.  To Dr Yewers he spoke of a relationship developing from first having casual sex.  To Ms Place he spoke about a preference for a woman he already knows, as she would likely already know about his offences.  He also spoke of his need for an honest woman, with whom there would be no secrets, and that he could potentially find such a partner by attending church.  While Ms Place considered that the respondent holds overly optimistic views about his ability to find a suitable partner, she felt he was able to demonstrate some awareness of the difficulties he might face throughout a relationship.

6. The respondent's attitude to the potential for boredom once he is in the community, and the risk that may pose for him returning to the use of alcohol, is more of a problem.  It has been identified by the psychiatrists who have assessed him, and by Dr Yewers, as a risk factor, yet he has been inconsistent about its role in his offending.  When interviewed by Ms Place, he denied it was an issue leading up to his offending.[34]  On the other hand, Dr Wojnarowska said he had acknowledged the association between his substance use, boredom and relationship stress and his offending behaviour.  The interviews were conducted approximately one month apart, the interview with Dr Wojnarowska being the later of them.  It may be that the respondent had developed some appreciation in the interim that boredom was an issue.

   [34] Exhibit 1, Book of Materials page 30 (report of Ms Place dated 20 March 2017 [27]).

7. However, perhaps of greater significance is that the respondent has persistently dismissed boredom as a potential issue once he is released.  Again, this is a matter that can be monitored and addressed in further counselling within the community.  In his favour, the respondent has identified activities that he has undertaken in prison, such as art and music, which he will undertake in the community.  They would appear to be activities that could be realistically transferred to community life.  He has also identified exercising and fishing as activities he might undertake.  He also told Ms Henshall that he would seek to engage in a course to further develop his literacy and numeracy skills, as well as those that may increase his chances of obtaining employment.  He has said he intends to establish a routine of such activities as well as those that will be associated with compliance with the conditions of a supervision order, and that he will then look for work, although understandably he is unsure what kind of employment he would want to pursue. 

8. Stable employment would obviously be a positive factor in the future management of the respondent's risk of sexual reoffending, but it will be his ability to engage in practical activities that give meaningful structure to his day that will be important as a protective measure for the community.  Ms Place noted that, in addition to his acceptance of counselling, it was the respondent's ability to engage in such activities in Acacia Prison (including education and organising to sit for his learner exam for the driver's licence) that allowed him to feel he was making tangible progress towards his release. 

Conclusion in relation to coping strategies

1. Ms Place summarised the position in respect of the respondent's capacity to devise and implement strategies for coping with risk factors as follows:[35]

   It is unlikely that Mr Pindan will progress to developing more robust risk management strategies in the future.  The only conditions which may improve his ability to do so would be having opportunities to test his risk management strategies, therefore prompting him to review their utility and expand on them.

   [35] Exhibit 1, Book of Materials page 33 (report of Ms Place dated 20 March 2017 [40]).

2. Obviously, there is a need to balance the benefits of giving the respondent such opportunities against the need to ensure the adequate protection of the community.  Of course, the prospect of improvement in the respondent's coping strategies is a desirable objective, as it will enhance the protective nature of a supervision order and should provide a measure of protection of the community beyond the period of such an order.  Each of the experts in these proceedings has expressed the view that the point has been reached where the respondent needs the opportunity to test his learning and strategies in the community in circumstances in which he will be strictly supervised and will continue to be assisted in counselling.    

1. Attitude to a supervision order

1. Unfortunately, the respondent's attitude to at least some of the conditions of the proposed supervision order continues to be concerning.  While he was moderate in his appraisal to Ms Place, acknowledging he might find the conditions frustrating at times, he appears to have been more forthright with Dr Wojnarowska, maintaining his previous position that he perceived the supervision order to be 'stupid', as he considers that he is not a danger to anyone.  Specifically, he objected to his personal life being intruded upon by having to disclose his past offending to any new partner.  He also was not happy about the need to wear the GPS device, which he considered an unnecessary burden, which would further stigmatise him.[36]  These sentiments echo views he expressed at the time of the last annual review. 

   [36] Exhibit 1, Book of Materials pages 58 - 59 (report of Dr Wojnarowska dated 14 April 2017 [15.10]).

2. The frustrations the respondent mentioned to Ms Place related to intrusions on his life (for instance, being woken by police knocking on his door, or not being given permission to do an activity he wished to do), which would cause him to become annoyed. 

3. Dr Yewers was of the opinion that the respondent does not have a negative attitude to the conditions of the order, but 'has a negative disposition in general'.[37]  That opinion was expressed before Dr Wojnarowska issued her report, so one must assume Dr Yewers was not aware of the things said by the respondent to Dr Wojnarowska.  Those statements were related to specific conditions.  Moreover, the respondent's statement that he is not a danger to anyone raises doubts about the depth of the insights he is said to have gained.  

   [37] Exhibit 1, Book of Materials page 28 (report of Ms Place dated 20 March 2017 [20]).

4. However, I am inclined to give weight to Dr Yewers' views, given the extended period over which she has dealt with the respondent.  Despite his rather petulant remarks about the supervision order from time to time, he has persistently said in the last year that he will comply with the conditions.  He also said to Dr Yewers that he would focus on the good things in his life rather than the restrictions.  Dr Yewers is of the view that the respondent's initial negative reaction to the conditions of a supervision order was understandable, especially given his 'previous unregimented transient lifestyle'.[38]

   [38] Exhibit 1, Book of Materials page 28 (report of Ms Place dated 20 March 2017 [20]).

5. Further, as Dr Yewers pointed out, the respondent's capacity to comply with the conditions of a supervision order might be better assessed by reference to his conduct in custody over the last 12 months.  I will return to that shortly.

6. Dr Yewers noted that the respondent may find asking permission to do certain things or go to certain places unpalatable, but indicated that this would largely be ameliorated by a management team that was kept to the minimum number necessary and which had a good rapport with the respondent.  The respondent had indicated to Dr Yewers that such an arrangement would be one with which he could cope. 

7. Ms Place generally agreed with the views expressed by Dr Yewers.  She considered that overall the respondent's attitude towards the conditions of a supervision order was realistic, acknowledging that, whilst he may find them frustrating at times, he needs to comply with them. 

8. One matter about which the respondent has consistently expressed reluctance is the need to disclose his sexual offences to any prospective partner.  He fears that it would hinder his capacity to form an intimate relationship. However, again, he acknowledged to Ms Place the necessity of such disclosure.

9. While the respondent's attitude to the conditions of the supervision order in some respects detracts from the confidence the court might have that he will comply strictly with all of the conditions of the order, the conditions would be such as to enable a contravention to be detected promptly, with the consequence that the respondent's liberty under the order would be in jeopardy.  Having taken into account all of the matters I have outlined, I do not consider that it is an insurmountable obstacle to his release on a supervision order if other factors favour the making of such an order.

1. Conduct in custody

1. Since the last review there have been no incidents of note in respect of the respondent's behaviour in prison.  The Individual Management Plan in exhibit 1 notes that on 1 September 2016, the respondent commenced a course in General Education for Adults (Probationary).  Staff had reported that he was polite towards them and, although he had started only recently, it was noted that he had been participating well and had demonstrated a good work ethic.

2. The reports of Ms Place and Ms Henshall disclose that, since the last review, prison staff described the respondent as 'quiet' and respectful towards staff, and that he associates primarily with prisoners within his unit who are his 'Countrymen'.  Occasionally he needs prompting to attend his daily education programme.

3. Between his last review and the preparation of the reports, the respondent had been subject to urinalysis testing on five occasions and the results were all negative.

4. As I noted earlier, the respondent has been engaged in a number of practical activities in custody which have given meaningful structure to his days which allowed him to feel he was making tangible progress towards his release.

5. Of course, life in the community subject to a supervision order will not be identical to life in custody subject to a prison regime.  However, for a detainee in the respondent's position, the only means of demonstrating his capacity to comply with a restrictive regime such as will apply under the supervision order is to behave in a respectful, compliant and constructive manner, as he has done.  I am satisfied that the respondent has demonstrated by his conduct whilst in custody that he has the capacity to comply with the conditions of a supervision order and the restrictions it will entail, notwithstanding the negative attitude he has expressed about the order from time to time.

Whether a supervision order would provide adequate protection of the community

(a)      Proposed conditions of the order

1. A proposed supervision order, prepared by DCS, was submitted for consideration by the court as an order that could provide adequate protection of the community if the respondent were released from detention.  After discussion about the conditions in the course of submissions, an amended version was arrived at.  Substantially it contains most of the prohibitions, restrictions on behaviour and provisions for monitoring that have been contained in versions of a supervision order previously discussed with the respondent.

2. Apart from the usual conditions required by the Act, including electronic monitoring, the conditions address a number of matters designed to monitor and control the respondent, as well as provide for continuing treatment.  They are tailored to best achieve appropriate management of the respondent and his risk of sexual offending.  They address risk factors, such as alcohol use and access to women who are affected by alcohol, by prohibiting his possession or consumption of alcohol and prohibiting him from remaining in the presence of females who are affected by alcohol unless their identity is approved in advance by the CCO having supervision over the respondent.  While his past offending has been against women who were asleep, or in one case was woken by him from sleep, at least two of the victims were also affected by alcohol.  There is a need to protect women who may be vulnerable as a result of intoxication. 

1. The respondent would also be required to undergo urinalysis or other testing for alcohol or prohibited drugs as directed by his CCO or by a police officer.  He would be prohibited from remaining in a place where prohibited drugs were being consumed, or, if such consumption was occurring at his place of residence, he would need to remove himself from that part of the residence where it was occurring.  He would be subject to a curfew, as directed by his CCO.  Subject to direction by his CCO, he would also be required to make full disclosure of his past offending and the supervision order to anyone with whom he commenced a domestic, romantic, sexual or other intimate relationship.  While this is a matter about which he has been reluctant, it is a necessary protective measure for any woman with whom he forms such a relationship, and for any woman who may be associated with a person with whom he forms a friendship and with whom he may come into contact.  For instance, any person with whom he formed a friendship and at whose place he may visit should know that the respondent previously sexually assaulted sleeping women.  It would enable that person to take such measures as they thought necessary to reduce the risk of the respondent committing an offence against any woman who may be in their home.  This was one of the issues that was of concern in the last annual review, affecting the suitability of the home of the respondent's mother as a residence for the purposes of the supervision order.

2. The order would require the respondent to reside at the address that has been proposed on his behalf in the Perth metropolitan area, and he would be prohibited from leaving the address without the prior permission of a CCO.

3. I note that the condition that requires the respondent to comply with the directions of a CCO, stipulates that the directions must be lawful.  The standard requirements provided for in s 18 of the Act refer to 'any reasonable direction':  s 18(1)(d).  However, as was accepted by the respondent's counsel, the requirements are minimum requirements.  If I consider that a stricter condition is required for the adequate protection of the community, it is open for me to include such a condition.  The applicant submitted that the respondent should be required to comply with any lawful direction given by a CCO.  It was submitted that the qualification that a direction be reasonable had resulted in difficulties where the person subject to a supervision order took the view that a direction was not reasonable.  One would have thought that any non‑compliance with a direction in such circumstances put the person at risk of contravention proceedings and the possibility that the person would be detained.  However, it seems to me that any reasonable direction given by a CCO would necessarily be lawful, so 'lawful' will include the requirement in s 18(1)(b).  It would be expected that a CCO would act reasonably, but I am satisfied that it is appropriate to require the respondent to comply with every lawful direction.  It was submitted on his behalf that there may be a lawful direction that is unreasonable, for instance a direction requiring him to submit to urinalysis testing an inordinate number of times (say, daily).  It is a highly unlikely hypothetical, given the impost on resources that would be involved.  However, if it transpires that lawful directions are given that are oppressive, one might expect an application for an amendment to the supervision order under s 20 of the Act. 

4. Other conditions that were the subject of argument as to whether they were necessary are those that require the respondent to give access to a CCO or police officer to every device the respondent uses to access the internet, and not to delete any search history or log from such a device.  It was submitted on behalf of the respondent that his offending did not involve the use of the internet or electronic devices.  However, the identification of a paraphilia by Dr Wojnarowska satisfies me that the authorities should have access to any devices by which the respondent might access the internet to monitor whether he is making searches or having communications of a kind that might suggest the presence of deviant sexual thoughts on which the respondent might act.  Of course, if he does not use the internet, the condition will not place any imposition on him.

5. In my opinion, the proposed conditions reflect the minimum requirements that would be necessary to manage the respondent in the community in order to adequately protect the community against the risk that he would commit a serious sexual offence.  The issue, of course, is whether the community could be adequately protected if the respondent were to be released from detention.

6. It can be seen that the conditions of the supervision order will allow for a high level of monitoring and intensive engagement with the respondent.  It would be expected that monitoring and engagement at those levels would continue for as long as it was considered necessary by the supervising CCO and other professionals to ensure that there was adequate protection of the community.  The conditions will provide a significant degree of protection. Should circumstances that are likely to lead to sexual offending, and indeed offending of the kind in which he engaged in the past emerge, such as becoming intoxicated and breaking into homes, the conditions should enable prompt intervention by the authorities.  Such circumstances would include any indication that the respondent had been using cannabis or alcohol, or that he was associating with others who were using cannabis.  Anything less than strict compliance with the conditions is likely to result in the respondent being returned to custody and the imposition of a continuing detention order.

7. Apart from the coercive conditions, the order also provides for support to be given to the respondent, through counselling and other means, to engage in a pro-social lifestyle, including finding and engaging in employment.  These are measures which, as much as the coercive conditions, are intended to provide protection to the community, by reducing the respondent's risk of further serious sexual offending through personal development.  He has demonstrated a capacity for such development over the last review period.

8. I have come to the conclusion that, provided suitable accommodation is available, the conditions of the annexed supervision order will provide adequate protection of the community, having regard to the developments in the respondent's circumstances since the last annual review.  Those developments are his engagement in treatment, the gains he has made in treatment, as identified by Ms Place and Dr Wojnarowska and outlined above, his good behaviour over the review period and his engagement in constructive activities.  His gains include a commitment to avoiding the use of alcohol and a willingness to be in an environment away from his country in order to enhance his prospects of succeeding.  They also include his insights into emotional factors and attitudes that contributed to his offending when affected by alcohol. 

9. I am satisfied that the respondent appreciates the importance of complying strictly with the proposed conditions and the potential consequences of not doing so.

(b)     Accommodation

1. The evidence in respect of available accommodation is contained in exhibit 6, the Community Supervision Assessment Update Report dated 29 August 2017 prepared by Ms Lisa Rathmann (the Update Report).  Ms Rathmann was not called to give evidence, as the applicant submits it is open for me to find that the accommodation is suitable.  Nevertheless, I am required to make an assessment of the suitability of the property having regard to the need to ensure the adequate protection of the community.

2. In the past the respondent has said he wants to return to the West Kimberley.  Until the last review it had not been possible to find suitable accommodation in that region, in terms of allowing for the proper management of the respondent under a supervision order.  No doubt, as McKechnie J said in the Division 2 hearing, it is desirable that the respondent eventually return to his country.  However, as was discussed in Pindan [No 3], that option has risks at this time because of the potential adverse influence of family members and peers in that region, particularly in respect of alcohol use.  The respondent has taken a sensible and responsible approach to the issue of where he should be accommodated in order to minimise the challenges he will face, by agreeing to remain in the metropolitan area, as I outlined earlier.  Obviously, that will bring other challenges, as he does not know many people in Perth.  His mother and sister continue to support him, but they are located in the Kimberley.  However, he will have support from the service provider that is making accommodation available, and he will also have support from the CCO assigned to him and Dr Yewers, at least in the early stages.

3. The respondent has been offered a property at which to reside which is newly available under the Dangerous Sexual Offender Supported Accommodation Programme.[39]  It has been offered by Outcare, a private non-profit provider of rehabilitation services in Western Australia.  Although evidence was not led on this matter, I am aware that under the programme, accommodation is available for a 12 month period during which the person who is subject to a supervision order would be assisted in securing their own accommodation.

   [39] Exhibit 6, Community Supervision Assessment Update Report page 2. 

4. The unit in question is the only property under consideration for the respondent at this time.  It is within a unit complex in the Perth metropolitan area.  A 'desktop spatial analysis' of the property was provided to DCS by WA Police on 22 August 2017.

5. A number of areas of concern have been identified within a 2 kilometre radius of the property.  This is not unusual for such accommodation.  Areas that are properly identified as of concern include public spaces such as parks, recreation and community centres and nature reserves.  Some public spaces of that kind are in close proximity to the property.  Some of them have been identified as being used for anti-social behaviour, including drug activity and sexual activity in the last six months.  There are also several licensed premises and liquor outlets in proximity of the property.  Information available to WA Police also indicates that illicit drug activity has occurred within the unit block within the last six months.  The time estimated for a police response in the event of an incident at the units would be within a reasonable timeframe for the metropolitan area.  Of course, the point of the conditions of a supervision order is to identify risk-laden behaviour and deal with it before offending occurs. 

6. There are families and single females living in the 'immediate area' who have been 'subject to domestic violence reports' in the last 12 months.  The police have indicated that there would be 'concerns for the vulnerability of these families and potential for Mr Pindan to be exposed to anti-social activity or drug use, if socialising with these individuals'.  It is not clear whether the 'individuals' are the same people who are considered to be vulnerable, but that does not affect the outcome.  The point is that there are women who may be vulnerable if the respondent were to relapse, and there are potential negative influences who may contribute to a relapse. 

7. It seems to me that the issue concerning vulnerable women is that they may be alone and at risk of the kind of offence committed by the respondent when he entered his victim's homes without consent.  Their vulnerability may also extend to a reduced capacity to resist violence.  However, the risk needs to be considered in the context that the respondent has made some progress in terms of insight and has indicated a resolve to avoid alcohol and cannabis use.  Further, he will be closely supervised, including monitoring by the WA Police Sex Offender Management Squad (SOMS) and counselling from Dr Yewers.  The conditions place significant constraints on the contact he can have with women.  He would be required to report any contact that involved the development of a friendship or relationship.

8. The Update Report indicates that Global Positioning System (GPS) tracking can be used, in conjunction with the designation of exclusion zones (where the respondent would be prohibited from going), to prevent him going to high risk areas in the vicinity of the proposed address.  GPS tracking could also be used to identify patterns in the respondent's behaviour.  There are limitations in the utility of GPS tracking, in that it will not indicate who the respondent is with or what he is doing.  However, it is expected that his movements and interactions in the community would be discussed during appointments with his Senior CCO and officers from SOMS.

9. Contact with the Victim-offender Mediation Unit on 15 August 2017 confirmed that there were no current issues from that Unit's perspective with the respondent living at the proposed residence.

10. As for the risk of the respondent engaging with illicit drug users or suppliers, or being tempted to access alcohol, apart from the use of exclusion zones to constrain his movements, the proposed conditions provide for monitoring that would expose any use of drugs or alcohol by the respondent through random urinalysis testing, which one would expect would occur on a regular basis, especially in the early stages.

11. As I have had occasion to say previously, the court must accept that 'ideal' accommodation is likely to be elusive.  That is not to say that the court will regard accommodation as suitable for the purposes of a supervision order simply because it is 'the best that can be found'.  The question is whether, together with all the conditions that could reasonably be included on a supervision order, the accommodation would enable adequate protection of the community from the respondent's risk of sexual reoffending.[40]   

    [40] Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306 [65].

12. While there are concerns about the suitability of the proposed accommodation, I am satisfied that the adequate protection of the community can be ensured by the restrictions and monitoring that would occur under the strict and extensive conditions of the supervision order, and by the support he will receive under that order.  I arrive at that conclusion in a context in which the respondent has, over the period since the last annual review: demonstrated a commitment to dealing with the risk factors associated with his sexual offending, including engaging in treatment; remained free of alcohol and illicit substances for a significant period of time; demonstrated a capacity to comply with regulations in custody and to be respectful of those who have supervision over him; and made efforts to plan a future in the community in which he will be occupied with study, art and other activities.  Of course, the viability of those plans remains to be assessed, but his engagement in such activities in a constructive manner over the last 12 months or so provides optimism that he will succeed in that regard. 

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

Duration of order

1. No evidence was given by Dr Wojnarowska in these proceedings about what might be an appropriate duration for a supervision order in the respondent's case.  It is a question that is usually addressed by the psychiatric expert because the formal assessment of risk is made by that expert.

2. At the second annual review, Dr Febbo was of the view that a term of 5 to 8 years would be appropriate, although he was not asked to elaborate upon the reasons for a term of that order.

3. I take into account that under s 8(4A) of the Act, if an offender is subject to a supervision order that is to expire within one year, the DPP can apply to the court for orders under s 14 of the Act[41] and for a further supervision order to take effect at the expiry of the current order.  That allows for a review of the offender's circumstances close to the end of the supervision order to determine whether there is a continuing need for the offender to be subject to supervision to ensure the adequate protection of the community.  Nevertheless it is necessary for me to make an assessment of the period that is necessary at this stage to ensure the adequate protection of the community and to enable the respondent to become self‑sufficient in the management of his risk, if the risk persists after that passage of time.

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

4. The respondent is now 39 years of age.  While he has made progress, there is at this stage a need for tight controls and a continuing need for counselling to reinforce the insights he has gained and to support him in formulating strategies to avoid behaviour that will place him at risk of reoffending.  On the evidence adduced in these proceedings I conclude that it will take some considerable time for the respondent to become self‑sufficient in that regard, if it happens at all, particularly given his 'concrete' style of thinking.  In those circumstances, I consider that the appropriate duration for the order is 8 years.

Commencement of order

1. Section 33(1)(b)(ii) of the Act requires that when, on an annual review, a continuing detention order is rescinded and a supervision order is made, the orders are to take effect 'from a date specified by the court, but not earlier than 21 days after the day on which the review is concluded'. The provision applies in this case.[42]

   [42] Director of Public Prosecutions (WA) v Dinah[No 9] [2017] WASC 158 [167] ‑ [176].

2. The review is concluded on the day that the decision is given.  The delay of 21 days is intended to provide the authorities sufficient time to make arrangements for the detainee to be released to the designated accommodation in an appropriate manner and with the proper structures for supervision in place.  In this case it will enable Dr Yewers to provide the counselling to prepare the respondent, to which I have referred earlier.  I was informed that it would be to the benefit of the respondent to have the arrangements put in place at the start of a working week.  There is no reason for the commencement date to be any later than 21 days from the date on which this decision is given.

Conclusions

1. While the respondent remains a serious danger to the community, I am satisfied that his circumstances have changed since the last annual review and that his risk can now be adequately managed within the community if he is subject to the 41 conditions of the annexed supervision order and resident at the proposed residence.  I am satisfied that the community will be adequately protected by the making of such an order.

2. As I said in Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 at [113]:

   … there will always be a sense of unease in the community when a person who is assessed to pose an unacceptable risk of serious sexual offending is released into the community.  However, the assessment of unacceptable risk is by reference to the absence of a detention order or a supervision order.  The legislature has expressed its intention in the provisions of the Act that the adequate protection of the community can, in appropriate cases, be achieved by a supervision order.  The legislature has also expressed its intention that one of the functions of indefinite detention is the treatment of an offender.  The purpose of treatment is to reduce risk, with the goal, where it is achievable, that the risk may be able to be managed in the community on conditional release.

1. The respondent's case is an example of treatment achieving that goal.

Suppression order

1. Both parties sought a non‑publication order in respect of the address of the residence to which the respondent will be released under the supervision order.  The applicant sought suppression of the number and street name.  The respondent also sought suppression of the suburb.  The applicant did not oppose that application.

2. The basis of the applications is that there is very limited supported accommodation for persons who are otherwise found to be suitable for release on a supervision order under the Act.  There have been occasions in the past when persons on continuing detention orders were found to be suitable to be released, but there was no suitable accommodation available.  Therefore, it is necessary to safeguard the integrity of any such residence as accommodation that will facilitate the effective supervision and rehabilitation of the person who is subject to a supervision order.  If the ability of the accommodation to function in that way is compromised, it has an adverse effect on the administration of justice, which should function to enable a person whose risk can be managed adequately in the community to be released on a supervision order.  

3. There have been instances in which the location of the residence in which a person the subject of a supervision order is living has become known publicly and has led to activity by members of the public that has compromised the integrity of the property in the manner I have described.  Moreover, it has placed the supervised person under a degree of stress that was deleterious to his continuing rehabilitation within the community.  Stress is often a risk factor for reoffending by persons who have been found to be a serious danger to the community.

4. It was also submitted that those who are responsible for supervising persons who are subject to a supervision order can be impaired in their ability to perform their duties when the location of a property has been identified publicly.  I am satisfied on the information provided to me by counsel that these concerns are real.  I was informed that DCS supports the application for suppression of the name of the suburb.

5. In one sense, the issue might be thought to have been avoided by the fact that the address, including the name of the suburb, were not mentioned in open court, and it has not been necessary for me to refer to those particulars in these reasons.  However, if the supervision order were to be annexed in un-redacted form, the address would be stated.  Moreover, in the absence of a suppression order, the report that was tendered as an exhibit and which refers to the address would be available as part of the public record.  It is necessary therefore to rule on the applications and make any appropriate order.

6. The relevant principles on such an application were stated in Prisoners Review Board v Freeman [No 2] [2010] WASCA 167 at [8] ‑ [9]. The question, in essence, is whether the order prohibiting the publication of evidence is really necessary to secure the proper administration of justice.

7. I am mindful of the principle of open justice.  I am also mindful of the right of the public to know when a person who has been found to be a serious danger to the community under the Act is released on a supervision order, and of the concerns some members of the public may have about such persons being resident in their neighbourhoods.  However, the protection of the public is intended to be achieved by the conditions of the supervision order and the monitoring and supervision that occur in consequence of that order.  The conditions include disclosure requirements.

8. The application is not made simply to save the respondent from loss of privacy, embarrassment, distress or other 'collateral disadvantage'.[43]  It is made to avoid a circumstance in which the efficacy of the court's order may well be compromised.  I have no difficulty in concluding, for the reasons that have already been outlined, that publication of the actual address should be suppressed.  That has been accepted as appropriate in other cases under the Act.

   [43] See J v L & A Services Pty Ltd [No 2] (1995) 2 Qd R 10 at 45 (Fitzgerald P & Lee J), referred to in Prisoners Review Board v Freeman [No 2] [2010] WASCA 167 [8] – [9].

9. I also accept the submission that the only reason the suburb would be of interest to anyone would be as a step towards locating the residence.  I am satisfied on the information provided by counsel that it is in the interests of the administration of justice to suppress publication of the suburb.

Orders

1. For the reasons I have given, I rescind the continuing detention order and make an order that for a period of 8 years from 10 October 2017 the respondent be subject to a supervision order in the terms of the supervision order annexed to these reasons.  The order is to take effect on 10 October 2017, being not earlier than 21 days after the day on which this review was concluded.

2. I order that there be no publication of the address, including the suburb, of the property at which the respondent will be residing when he is released subject to the supervision order.

ANNEXURE

IN THE SUPREME COURT OF WESTERN AUSTRALIA

DSO 2 of 2013

IN THE MATTER of the Dangerous Sexual Offenders Act 2006

DIRECTOR OF PUBLIC PROSECUTIONS

FOR WESTERN AUSTRALIA  Applicant

-and-

NIGEL LEE PINDAN  Respondent

_____________________________________________________________________

SUPERVISION ORDER MADE BY

THE HON JUSTICE FIANNACA ON 19 SEPTEMBER 2017

_____________________________________________________________________

The Court, having found pursuant to section 33(1)(a) of the Dangerous Sexual Offenders Act 2006 that the Respondent remains a serious danger to the community, pursuant to section 33(1)(b)(ii) of the Dangerous Sexual Offenders Act 2006, rescinds the continuing detention order made by the Honourable Justice McKechnie on 28 October 2013, to take effect on 10 October 2017, and orders that the Respondent be subject to a supervision order for a period of 8 years from 10 October 2017, on the following conditions:

You, NIGEL LEE PINDAN, must:

STANDARD CONDITIONS REQUIRED BY THE ACT

1.  Report to a Community Corrections Officer (CCO) at the address specified in condition 8 on the date of your release from custody.

2.  Report to and receive visits from a CCO as directed by a CCO.

3.  Notify a CCO of every change of your name, place of residence, or place of employment at least 2 days before the change happens.

4. Be under the supervision of a CCO, which includes that you must comply with any lawful direction of the officer (including a direction for the purposes of section 19A or 19B of the Dangerous Sexual Offenders Act 2006).

5.  Not leave, or stay out of the State of Western Australia without the permission of a CCO;

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

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

ADDITIONAL CONDITIONS

Residence

8.  Reside at [SUPPRESSED], or at a different address approved by the CCO assigned to you, or another CCO in the absence of the CCO assigned to you, but only if such different address is approved by the CCO in advance.  You must spend each night at the address at which you are required to reside, unless a CCO has approved in advance another address at which you may spend a night or nights specified by that CCO, in which case you must spend each night that has been specified by the CCO at the address that has been approved by the CCO in advance.

Attendance at programmes and treatment

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

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

Reporting to WA Police

11.  Report to the Officer-in-Charge of the Sex Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth WA 6000, within 48 hours after your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate.

12.  If requested, permit Police Officers to enter and search your residence for the purpose of monitoring your compliance with your obligations under this order.

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

Disclosure/Exchange of Information

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

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

Restrictions on contact with Victims

16. Have no contact, directly or indirectly, with the victims of your sexual offending unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Justice.

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

Criminal conduct

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

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

20. Not commit an offence under s 202, s 203, s 204 Criminal Code 1913 (WA).

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

Curfew

22. Be subject to a curfew such that you are to remain at and not leave your approved address as directed by a CCO from time to time.

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

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

Medications/Mental Health

25. Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the CCO.

26. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Corrective Services.

Prevention of high-risk situations

27. Not hitch-hike, nor accept lifts in vehicles from any female who is unaware of your offending history, unless the identity of such person is approved in advance by the CCO.  

28. Not allow any female hitchhiker to enter any vehicle under your control.

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

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

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

32. Provide a valid urine sample for testing pursuant to condition 31. 

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

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

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

36. Make full disclosure to your CCO of the details of any person, female or male, with whom you commence a friendship, or a domestic, romantic, sexual or otherwise intimate relationship.

37. As and when directed by a CCO or police officer, make full disclosure regarding your past offending and the current order to a person with whom you have commenced a friendship, or a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by the CCO or a Police Officer.

38. Advise a CCO of every device used by you to access the Internet and the location of that device.

39. Permit a CCO or Police to access any computer or device capable of storing digital data, for the purpose of ascertaining your computer activities, and provide to the CCO or Police upon request any PIN or password required for access.

40. With respect to any computer or device in your possession that is connected to the Internet or has been used by you to access the Internet, not delete or otherwise remove or disguise any search history or log capable of identifying your activities on that computer or device, without the approval in advance of a CCO or Police.

41. Not commence voluntary or paid employment without the prior approval of the CCO.