Director of Public Prosecutions (WA) v W - [2014] WASC 257

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- W [2014] WASC 257

CORAM: SIMMONDS J

HEARD: 21 & 22 MAY 2014

DELIVERED : 22 JULY 2014

FILE NO/S: DSO 3 of 2014

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

Catchwords:

Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for div 2 continuing detention order - Whether unacceptable risk of committing further serious sexual offences - Whether serious danger to the community - Whether detention order or supervision order appropriate

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 3, s 7, s 8, s 14, s 17, s 30, s 33, s 38, s 42
Evidence Act 1906 (WA), s 106A

Result:

Detention order made

Category: B

Representation:

Counsel:

Applicant: Ms K Robinson
Respondent: Mr D J McKenzie

Solicitors:

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

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

Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Misko [2012] WASC 259
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v West [2013] WASC 14
SIMMONDS J:

Introduction

The Director of Public Prosecutions (WA) (DPP) has applied for orders, under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) pursuant to s 8 of the DSO Act, in relation to W.
On 17 March 2014 McKechnie J made orders under s 14 for, among other things, detention in custody of W until the application for an order under s 17 was heard and determined or until further order (the interim detention order).
DSO Act s 17(1) provides for a choice between two forms of order. The form of order under s 17(1)(a) is an order for the detention of the offender in custody for an indefinite term for control, care, or treatment, an order defined in s 3(1) as a division 2 continuing detention order (detention order). The form of order under s 17(1)(b) is an order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order, an order defined in s 3(1) as a supervision order (supervision order).
The hearing of the application for an order under s 17 was over two days, on 21 and 22 May 2014.
In his orders of 17 March 2014 which included the interim detention order, McKechnie J also provided for W to undergo examination by two named psychiatrists for the purposes of preparing reports to be used at the hearing before me. The two psychiatrists were also to liaise with the Department of Corrective Services (the Department) as to a management plan (if appropriate) for W to be supervised in the community.
These are my reasons for my decision on the DPP's application.
I first describe the applicable law, by describing the legislative framework and applicable principles in respect of that framework.
Then I describe the evidence before me and W's background, in particular his history of offending, focusing on his serious sexual offences within the meaning of the DSO Act. I also describe the programmes he has undergone in prison.
Next I will review the evidence of the two psychiatrists as to W's risk of re‑offending, particularly serious sexual re‑offending, and as to his management and treatment needs. In that section of my reasons I will also refer to some other evidence as to the options for his management and treatment.
I will then address all of the specific matters to which the DSO Act requires me to have regard for making my determination as to whether or not I find W is a serious danger to the community within the meaning of s 7(1). By the terms of s 17 it is only if I so find that the matter of making the choice of order under s 17 in respect of W arises.
As I will explain, I have determined that W is a serious danger to the community. I must therefore make the choice between the orders provided for in DSO Act s 17. I will address the making of the choice in the ensuing section of my reasons.
As I will explain, I have determined that the choice I should make is of a detention order for W.
The concluding section of my reasons summarises my findings and indicates the orders I would make.

The legislative framework and the applicable law

As I have indicated, the framework has two components. One relates to the making of a finding that an offender is a serious danger to the community, in DSO Act s 7. The other relates to the choice of order the court must make if it so finds, in s 17.
DSO Act s 7 is as follows:
7.Serious danger to the community
(1)Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2)The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
(3)In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record; and
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
The term 'serious sexual offence' is by DSO Act s 3(1) given the meaning of that term in Evidence Act 1906 (WA) s 106A. That provision applies to sexual offences and those are, broadly, ones for which the Criminal Code (WA) provides for a maximum penalty of imprisonment of 7 years or more.
DSO Act s 17 is as follows:
17.Division 2 orders
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
The relevant principles relating to the proper construction and effect of the DSO Act s 7 and s 17 were not in dispute before me. As noted in Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [5] (Martin CJ) they are conveniently set out by Corboy J in The State of Western Australia v West [2013] WASC 14 [52] as follows:
(a)Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).
(b)The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).
(c)In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d)It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].
(e)The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] [(Pullin JA)] and [46] (Buss JA).
(f)In a passage that was expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63] ‑ [64]:
'In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.'
(g)The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h)The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].
(i)The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].
(j)The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Decke [52].
There are two further matters of the principles relating to the proper construction and effect of DSO Act s 17 described in DPP v Yates [6] and [7] as follows, referring among other authorities to DPP v Williams:
Having regard to established principles of statutory construction, there are two anomalies evident in these principles. First, two different expressions in the Act ('an unacceptable risk that … the person would commit a serious sexual offence' and 'serious danger to the community') have been given precisely the same meaning. Second, in s 17 the word 'may' has been construed as 'must', and consequently as conveying a duty to make an order, rather than a discretion. However, those aspects of the construction of the Act have been endorsed by decisions of the Court of Appeal of this State ([DPP v Williams]; [DPP v GTR]), and must be taken to represent the current state of the law. In any event, for the reasons which follow, the differing nuances of meaning which might be given to the relevant provisions of the Act would have no bearing upon the outcome of these proceedings.
In some previous cases, questions have arisen as to whether the Act imposes an obligation upon executive government with respect to the provision of resources relating to the management and treatment of offenders falling within the purview of the Act, and as to the extent to which the court should proceed on the basis of an assumption that those resources will be provided (see for example, Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95; Attorney-General (Qld) v Francis [2006] QCA 324; [2007] 1 Qd R 396; Attorney-General (Qld) v Lawrence [2008] QSC 230; Winters v Attorney-General (NSW) [2008] NSWCA 33; Director of Public Prosecutions (WA) v Pindan [No 2] [2012] WASC 234; Director of Public Prosecutions (WA) v Alvisse [No 6] [2013] WASC 154; Attorney-General (Qld) v Sybenga [2009] QCA 382). There may come a point in time at which the resolution of those issues may be relevant to Mr Yates. However, for the reasons which follow, that point has not yet been reached.
I also note the following matter of principle, from DPP v Williams [86] (Wheeler JA, Le Miere AJA agreeing):
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.

Evidence before me

DSO Act s 42(2) ‑ (4) provides for evidence in an application of the present kind. Those subsections do so as follows:
(2)Before the court makes a decision or order on the hearing of an application it must, if the evidence is admissible -
(a)hear evidence called by the DPP; and
(b)hear evidence given or called by the offender or person subject to the order, if that person elects to give or call evidence.
(3)Except as modified by subsection (4), ordinary rules of evidence apply to evidence given or called under subsection (2).
(4)In making its decision, the court may receive in evidence -
(a)any document relevant to a person's antecedents or criminal record;
(b)anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.
The evidence before me was in two forms.
One form was a one volume book of materials for the hearing, tendered into evidence by the DPP by consent as exhibit 1. There was no objection to any of its contents. However, as will be seen, a page missing from exhibit 1 (numbered page 237A) was supplied by consent at the hearing. In addition, as will be seen also, a page in exhibit 1 (page 185) was revised to correct an error in the page and the revised page substituted by consent.
The other form was testimony by four witnesses called by the DPP. Reports from those witnesses were included in exhibit 1.
Evidence in both forms was given by the two psychiatrists named in McKechnie J's orders of 17 March 2014.
One psychiatrist was Dr Mark Hall, consultant forensic psychiatrist. His report dated 7 May 2014 was exhibit 1.24, and page 23 of that report (page 185 in exhibit 1.24) was the subject of revision at the hearing as I have indicated. My references to Dr Hall's report from this point forward after his report as so revised, unless otherwise indicated.
The other psychiatrist was Dr Brian Tanney, consultant forensic psychologist. His report dated 8 May 2014 was part of exhibit 1, as exhibit 1.25.
The two other witnesses, both also called by the DPP, were Ms Tina Marley and Ms Julie Dabala.
Ms Marley was a clinical psychologist and Principal Psychologist, Clinical Governance Unit in the Department. She was the author of the document Proposed Sex Offender Management Plan dated 12 May 2014, which was part of exhibit 1, as exhibit 1.26.
Ms Dabala was Senior Community Corrections Officer, Public Protection Unit in the Department. She was the author of the document Community Supervision Assessment dated 8 May 2014, which included a document Proposed Supervision Order Conditions, and which was part of exhibit 1, as exhibit 1.27, to which the further page, page 237A in exhibit 1.27, was added without objection at the hearing before me. My references to Ms Dabala's report from this point forward are to her report as so amended, unless otherwise indicated.
No other witnesses than the four listed were called, by the DPP or by or for W.
I turn now to the background to W and his offending. My descriptions are drawn from the evidence before me and are not as it appears to me to be in contest, except as I will indicate.

Background

W was born on 7 December 1951, the youngest of four siblings, and was raised in Perth. He reported bullying at school because of a facial condition (variously described in the evidence before me as a hare lip or cleft lip) and as a result was truant much of the time. As a result of his truancy he was placed in a boys' home for two years between the ages of 8 and 10. There is some evidence he suffered physical and sexual abuse there. Later, he spent nine months in a boys' home, at the age of 12 or 13, for stealing.
There is no evidence of domestic violence in his family or of any physical or sexual abuse of him, except for some evidence of some sexual abuse, by another boy in one of the boys' homes.
When W left the boys' home on the second occasion he discontinued his education and entered the workforce. He initially undertook factory work before working in retail, and then travelled to Melbourne to work as a spray painter, motor body builder and storeman, before returning to Western Australia and working for a local council. He then entered a period of unemployment. He later became an orderly in a private hospital in 1980 before taking a redundancy package in 1994. He remained effectively unemployed on Centrelink payments until his imprisonment in 2000.

W had a number of intimate relationships before becoming married to Ms F, in 1978. They were divorced in 2013. One of the previous intimate relationships, he said, resulted in the birth of a daughter who, however, died an hour after birth.
At the time Ms F met W, in 1976, she had three sons, aged between 9 months and 33 months old, by her then husband. Ms F and W themselves had twin boys, J and P, born in 1989.
W's father died in 1984. One of W's brothers committed suicide the following year. The other brother died from cancer in 1990. His mother, who had been living with that brother, and who had after his death moved in with W and Ms F, died in 1996, also from cancer. W reported that his sister, from whom he had become estranged, died sometime after 2000.

Offending other than sexual offences

W's convictions for offending as an adult comprise, apart from convictions for traffic offences, offences of stealing (1970); forgery and utter, two counts each (1970); stealing (1975); aggravated assault (1981); street drinking (1994); and threats with intent to influence (2000). The only custodial sentences he received for any of that offending were for the forgery and utter offences (10 months and 6 months immediate imprisonment, concurrent, respectively); and the threats with intent to influence (12 months immediate imprisonment).
I note that W denied to Dr Hall having committed forgery and utter offences; the aggravated assault offence, a denial he also made to Ms Dabala; and the threats with intent to influence the offence. However, I should note that I must proceed in this matter on the basis W was guilty of all of the offending I have described to this point as well as the further offending I reach next.
It will be seen that W has also denied, consistently, having committed to sexual offending of which he has been convicted. I turn to that offending now.

Sexual offending

W was convicted of sexual offending on two occasions, in May 2001 and in April 2009. As will be seen, the latter convictions were for offences committed before the former convictions.
On 17 May 2001, W was sentenced in the District Court for 18 offences variously committed against his three stepsons and his twin sons. His then wife, Ms F, was also convicted of most of those offences and sentenced in the same proceedings. The convictions of both offenders followed two trials by jury.
The offending against the stepsons was committed on seven separate occasions from March 1988 to April 1990 when the sons were aged between 14 and 16. The offending against the twin boys was committed across the period December 1996 to July 1998 when the boys were aged between 8 and 9.
The offences by W against his stepsons comprised counts of indecent assault, incest by adult female, incest by adult male and sexual penetration of a child under 16. The offences by W against his twin sons comprised counts of attempting to procure a child to engage in sexual behaviour, procuring a child to engage in sexual behaviour and procuring a child to do an indecent act. The large majority of all of these counts were of serious sexual offences within Evidence Act s 106A.
The offending included demanding the boys engage in cunnilingus, fellatio and sexual intercourse with their mother, on one occasion involving sexual penetration of the co‑offender by W at the same time as one of the boys did so, and demanding that the boys perform fellatio upon W.
The offending by W against his twin sons involved attempting to procure one of the boys to digitally penetrate his mother and demanding the other to suck her breasts and perform cunnilingus on her.
Charters DCJ sentenced W to terms of immediate imprisonment with eligibility for parole ranging from 2 years to 6 years, with a total effective term of 12 years, to be served from 17 May 2001.
On 28 April 2009 W was sentenced in the District Court for four offences following his convictions after a trial by jury. At that time he was still serving the sentence imposed on 17 May 2001. Those offences were variously committed against two young sisters, SJW and LAW, daughters of long‑standing friends of W and his then wife Ms F. Ms F was involved in some of this offending. She had previously pleaded guilty to the offences and been sentenced for them, and was serving a prison term at the time of W's sentencing.
The offences by W against SJW were committed in 1978 on 1979, when SJW was about 6 or 7 years old. The offences by W against LAW were committed in 1990 or 1991, when LAW was 11 or 12 years old.
The offences by W against SJW comprised one count of unlawfully and indecent dealing and one count of unlawful carnal knowledge. The offences by W against LAW comprised one count of procuring unlawful and indecent dealing and one count of unlawful carnal knowledge. All four were serious sexual offences within Evidence Act s 106A.
The offending by W against SJW occurred after SJW had awakened in the night and gone to the back of the house to use the toilet. There she found W sitting naked on the toilet. He called her to him and while he was sitting there forced her to engage in fellatio by sucking on his penis.
SJW then waited to use the toilet. When she left the toilet she found W standing in the laundry area. He was naked. He pushed her to the floor and there inserted the tip of his penis into her vagina for what she describes as about 1 mm.
The offending by W against LAW began while everyone was out of the house. LAW was brought into the family room where she found W and Ms F naked. Soon LAW was also naked. W then directed Ms F to perform fellatio on him by sucking his penis as a demonstration for the child. After doing that for a short time, W told LAW to perform fellatio on him. She did so until he ejaculated into her mouth.
Further offending against LAW involved a sleeping tablet and Ms F. LAW awakened to find herself lying naked on W's bed. She was then told to stand at the foot of the bed and was forced to watch while W and Ms F had sexual intercourse. She was then placed on the bed and W inserted his penis into her vagina. He only stopped when she began bleeding.
Yeats DCJ sentenced W to terms of immediate imprisonment with eligibility for parole ranging from 2 years to 5 years, all to be served concurrently with one another and cumulatively on the sentence imposed on him on 17 May 2001.
On 30 March 2012 the Prisoners Review Board declined to release W to parole. The result was that his term of imprisonment expired on 27 April 2014. He continues to be detained in custody as a consequence of the interim detention order.
I note again that W has consistently denied having committed any of the sexual offending I have described, to Dr Hall, to Dr Tanney, to Ms Marley and to Ms Dabala. Again I note I must proceed in this matter on the basis W was guilty of all of that offending.
I turn now to programmes W has undergone while in prison, and certain related matters.

Programmes in prison

In Ms Marley's report (exhibit 1.26) it is noted that W has not completed any criminogenic programmes during his time in prison. He commenced a psycho-education programme for aggression control in 2001, but missed too much content due to court appearances. He had been listed to complete the Sex Offenders Deniers Programme (SODP) on two occasions, but told Ms Marley he was not included due to circumstances beyond his control. I return to this matter. He expressed to Dr Tanney as well as to Ms Marley a willingness to complete that programme, although Dr Hall's evidence was that he had expressed strong reservations to him about participating in the SODP. I return to those matters also.
In Ms Dabala's report (exhibit 1.27) it is noted W had not incurred prison charges since the commencement of the term imposed on 17 May 2001. He was reported as having been polite and respectful to staff and compliant with the rules and regulations of the unit in which he was living. It was further noted that W was engaged in full-time education, studying for his year 12 certificates, while in Ms Marley's report (exhibit 1.26) it is noted that he had engaged in education throughout his imprisonment.
I turn now to the evidence of the two psychiatrists, Dr Hall and Dr Tanney.

The evidence of the two psychiatrists

There was no objection to any of the evidence of Dr Hall or Dr Tanney. Both of them have substantial experience as consultant psychiatrists. Both of them have expertise in the assessment of offenders for the purposes of proceedings such as these.
There were some differences, including some significant differences, between the opinions of the two psychiatrists. However, I consider that in relation to the matters of the greatest significance for my purposes those differences significantly reduce, if they do not altogether disappear, when those differences are closely examined. I note that neither psychiatrist had read the opinion of the other before they testified.
Dr Hall had two interviews with W at Acacia Prison, of a total duration of 5 hours and 30 minutes. As well, Dr Hall had access to materials provided by the DPP to the psychiatrists for the purposes of the present hearing, under DSO Act s 38(1). Those materials appear to have been the materials in exhibit 1, being exhibit 1.1 to 1.23.
Dr Hall's overall assessment of the risk of W re‑offending sexually in the absence of intervention was that that risk was high. This assessment was arrived at based on Dr Hall's clinical analysis of risk factors for W as guided by the Risk for Sexual Violence Protocol (RSVP) (Hart, Kropp, Laws, Klaver, Logan & Watt 2003).
Dr Hall's assessment of that level of risk was greater than his assessment using actuarial methods, being ones that, unlike the structured clinical guides such as the RSVP, used mainly static risk factors, and that produce scores that could be related to massed statistical reference data.
Dr Hall used two actuarial methods or instruments. One was the STATIC 99‑R (Hanson & Thornton 1999), after he had adjusted his results from that instrument that were set out in the initial version of his report in exhibit 1.24. I have previously referred to that adjustment as a correction of his report at page 185 in exhibit 1.24.
The other such instrument Dr Hall used was the Hare Psychopathic Checklist - Revised (PCL‑R (Hare 1991 and 2002).
Dr Hall testified first, on the first day of the hearing before me.
Dr Hall in his testimony identified a number of factors as particularly significant from his clinical analysis as guided by the RSVP. Those factors as he described them were under the following headings or domains.
In the domain of sexual violence history, Dr Hall identified as particularly significant the factors of chronicity and psychological coercion. Chronicity was a fairly consistent pattern of offending over 20 years from the commencement of the offending in 1978 to the last offending in 1998. Psychological coercion was W's exploitation of familial and close social relationships.
In the domain of psychological adjustment, Dr Hall identified as particularly significant factors W's extreme minimisation or denial of sexual violence and his problems with self‑awareness.
Dr Hall described his assessment of W's extreme minimisation or denial of sexual violence as not necessarily a predictor of re‑offending as such, it is relevant to the management of his risk of re‑offending and rehabilitation. This was because of its 'implications for W's willingness and cooperativeness around treatment programmes, but also his capacity to respond to the types of treatments that may be administered' (21 May 2014, examination‑in‑chief, ts 35).
Dr Hall described his assessment of W's problems with self‑awareness as going to
a related item, more or less, but is actually something that applies even more broadly than simply the sexual offending in terms of his understanding of himself and the factors or processes within himself that contribute to his behaviour (21 May 2014, examination‑in‑chief, ts 35).
In the domain of mental disorder, Dr Hall identified sexual deviance in the form of paedophilia, coupled with strong psychopathic traits within the context of narcissistic personality disorder.
Dr Hall was of the opinion that W satisfied a diagnosis of paedophilia despite his denial of a sexual interest in children and of the offending itself. Dr Hall was also the opinion he possessed a range of psychopathic traits within the context of his narcissistic personality style.
In respect of what Dr Hall referred to as W's psychopathic personality traits in that context, I note Dr Hall's evidence as to the results he obtained from the PCL‑R. Those results, in Dr Hall's view, warranted referring to W as possessing clinically significant psychopathic traits. Those results were also consistent with and supported a diagnosis of W as having a narcissistic personality disorder with antisocial personality traits. Dr Hall gave W a total score in the PCL‑R of 25, placing him just above moderate and in the high range, and indicating he had many of the features of psychopathy. The pattern on the items in the PCL‑R was of very high scores on the interpersonal and affective scale, but of moderate scores on the behavioural and lifestyle scales.
W's psychopathic traits had, in Dr Hall's opinion, been particularly relevant to the manner in which W had accessed his victims and controlled them and others around him. Those traits were, in Dr Hall's opinion, pervasive personality traits that would persist.
In the domain of social adjustment, Dr Hall identified the most relevant factors as problems with both intimate and non‑intimate relationships. In respect of intimate relationships, Dr Hall noted that W's offending had occurred within, involved and was facilitated by his marital relationship. In respect of non-intimate relationships, Dr Hall noted W had no real social supports at present; and that he had exploited a non‑intimate relationship with friends of his and his wife's, in order to sexually abuse the friends' children.
In the domain of manageability, Dr Hall identified as significant issues that W had not developed, or at least had not exhibited, any capacity to develop a relapse prevention plan; and was unlikely, based on his current presentation, to make use of services and other provisions that were aimed at the prevention of re‑offending.
In respect of that unlikelihood, Dr Hall noted W's comments to him about the SODP. I return to the SODP below. Dr Hall noted that W had indicated to him a paranoid attitude to the SODP, indicating his view that the SODP's facilitators used manipulative and subversive techniques to shift a person from denial to admission. Were they to succeed, his view was also that that would destroy W's chances of suing the government for his prosecutions, something he wished to do. Dr Hall noted in his testimony that that was not correct of the SODP, which was confirmed by the evidence of Ms Marley that I will return to below.
Dr Hall also identified as a consideration that in his opinion it was not appropriate to allow W the age-related amelioration of his risk of re‑offending. That amelioration would sometimes apply, particularly if the offender was over 60, as W was. However, Dr Hall noted that W's sexual function was intact relative to others his age; he continued to engage in masturbatory behaviour, although on his account rarely; there was an unaddressed pattern of deviant sexual arousal; and his offending was to be viewed as persistent child sex offending over a long period of time, in the presence of psychopathic personality traits and a degree of callousness, and also to some extent sadistic behaviour in the way in which the offences were undertaken.
Overall, Dr Hall indicated that in his opinion the clinical analysis of risk factors as they related to W, as guided by the RSVP, indicated his risk of sexually re‑offending was high, as I have previously noted.
This assessment was, as he indicated, one which contrasted with the risk level as assessed using actuarial methods, particularly the STATIC‑99R. The score Dr Hall derived from the STATIC‑99R, after the correction he made at the hearing, was 1. That score placed W in the low risk category of sexual and violent recidivism. However, if the age adjustment in the STATIC‑99R for age alone were not made, his score would have put him in the low to moderate risk category.
At the same time, notwithstanding this contrast, Dr Hall's opinion was that W remained at a high risk of re‑offending sexually without that intervention.
Dr Hall's evidence was that the most likely form of re‑offending sexually, by far, would be a repeat of the type of offending seen previously and repeatedly. That re‑offending scenario would be contact offending against children, including penetration. The children would be ones he gained access to through a relationship.
Dr Hall's evidence was also that the potential psychological harm to victims from such re‑offending was difficult to overstate. That harm was in the form of an enduring personality disturbance related to a very fractured and damaged personality, with low self-esteem, emotional fragility and vulnerability to depression, with other associated matters, such as substance use and misbehaviour. However, in Dr Hall's opinion, there was only a low potential for the harm to victims to escalate to a serious level in physical terms. Any such escalation would not be consistent with the way in which W had selected his victims and the grooming practices he had employed in order to facilitate the offending itself.
Dr Hall's evidence as to strategies to manage W's risk of re‑offending was that the treatment or rehabilitation strategy most needed was W's participation in a sex offenders treatment programme aimed at deniers, such as the SODP. It appears it was common ground before me that the only suitable sex offending deniers programme available to W was the SODP, and the SODP was only available in a custodial setting.
In Dr Hall's opinion there was little role for any therapy that required significant engagement on W's part, such as individual psychological counselling or the use of anti‑libidinal medication. There would be a role for psychological counselling that would support W to employ and consolidate what he might learn in an SODP.
However, in Dr Hall's opinion, there was a poor prognosis in terms of W making enduring personal change as to how he functioned on an interpersonal level or his awareness as to factors which contributed to his offending explicitly.
Further, Dr Hall's evidence was that it was difficult to predict whether or not W would be able to gain from the SODP. Indeed, if he were to make no gains, a continuing detention order would do little more than to aggrieve him in view of his spending more time in prison.
Dr Hall's evidence as to the management of W's risk was also that such management would require primarily a containment approach, rather than relying on development within W of personal strategies to avoid offending. This management would involve at least restricted access to children; a requirement to disclose his offending to any intimate partner should the relationship have the potential to cause W to have access to children; disclosure to his Community Corrections Officer (CCO) of any intimate relationship as well as of any non‑intimate relationship, if the latter had the potential to cause W to have access to children; and monitoring of Internet activity, if possible.
Dr Hall's opinion was that if W complied with management strategies of those sorts there would be some amelioration of the level of risk of re‑offending. However, it was difficult to quantify the impact on his risk level of those management strategies, the matter depending on the extent to which he complied with the restrictions on his behaviour they entailed.
At the same time, at least in the absence of W having completed the SODP, W would still be in the high risk bracket, given his make-up, his past offending, his view of himself and his interpersonal conduct.

Dr Tanney testified after Dr Hall, and on the second day of the hearing before me.
Dr Tanney had one interview with W at Acacia Prison, for a total of 3.3 hours, a period Dr Tanney described in his report as 'restricted' (exhibit 1.25, page 196 ([08])). In addition, he had access to a range of materials which appear to be the materials provided to psychiatrists for the purposes of the present hearing pursuant to DSO Act s 38(1).
Dr Tanney's overall assessment of the risk of W re‑offending sexually in the absence of intervention was that that risk was high, where that risk was the combination of the likelihood of his re‑offending and the severity of the re‑offending that was likely to occur, if it did occur. Based on the likelihood measures in the STATIC‑99R and the RSVP, Dr Tanney assessed the likelihood of re‑offending as low. However, because of the severity of the offences W had committed, Dr Tanney had come to the conclusion that the risk could not presently be accurately measured by the structured measures he had, and those measures should be overruled in favour of the overall conclusion his risk of re‑offending was high.
The measures Dr Tanney indicated in his evidence he had used with the STATIC‑99R, the PCL‑R and the RSVP. Dr Tanney also indicated he had used another approach, which was not a structured approach but 'idiosyncratic analysis' (exhibit 1.25, page 210) that 'in a sense replicated the RSVP' (22 May 2014, examination‑in‑chief, ts 87).
Dr Tanney's evidence, unlike Dr Hall's, did not indicate any significant difference in risk assessment from the results of the tests Dr Tanney had used, and in particular between the STATIC‑99R and the RSVP. However, I do not consider that there is a difference between them that is significant for my purposes in terms of their overall assessment of the risk of W re‑offending sexually.
With respect to the STATIC‑99R, Dr Tanney's evidence was that, although he had not read Dr Hall's report, he had met with Dr Hall the night before Dr Tanney testified. They had discussed their respective STATIC‑99R scores. Dr Tanney's was 2; Dr Hall's, as I have indicated, was 1. Dr Tanney gave as his opinion that that was not a significant difference, and that it arose out of a difference in scoring of one item.
Dr Tanney's evidence of the results from his administration of the PCL‑R was W scored 15, which did not put him in the clinical group of psychopaths. For that reason Dr Tanney testified he was able to say that, for the purposes of the mental disorder domain of the RSVP, W had no serious psychopathology in that regard. It will be recalled that, by contrast, Dr Hall's corresponding score was 25, which in Dr Hall's opinion warranted referring to W as having possible clinically significant psychopathic traits.
However, this difference between the two psychiatrists, which, like the remaining differences in other domains I reach below, was not on the evidence before me the subject of any exchange between them, is in my view much reduced by Dr Tanney's evidence that W did reach significant levels on one of the other disorders that is included in the cluster of psychopathy. Dr Tanney explained that in the subset of the PCL‑R that would measure the traits of a person with narcissism Dr Tanney found W at the highest levels, representing a severe personality disorder. This in my view goes to reduce, although not to eliminate, the difference between the two psychiatrists. It will be recalled Dr Hall considered the results of his administration of the PCL-R are were consistent with and supported a diagnosis of W as having a narcissistic personality disorder with antisocial personality traits.
Dr Tanney's evidence of the results of his use of the RSVP was by comparison with Dr Hall's evidence of some similarity but also difference in the factors present for W from the domains in the RSVP I have described.
In particular, in the domain of sexual violence history Dr Tanney found chronicity and psychological coercion present, as had Dr Hall. However, Dr Tanney added the factor of diversity of sexual violence.
In the domain of psychological adjustment, Dr Tanney identified, as did Dr Hall, the factors of extreme minimisation or denial of sexual violence and problems with self‑awareness.
In the domain of mental disorder, Dr Tanney identified the factor of sexual deviance, as did Dr Hall, and no other factor, where as I have indicated Dr Hall also identified psychopathic personality disorder. However, as I have also indicated, this difference appears to be reduced by Dr Tanney's finding of W's severe personality disorder.
In the domain of social adjustment, Dr Tanney found no factors applicable to W. It will be recalled Dr Hall identified the most relevant factors as problems with both intimate and non-intimate relationships. However, I consider the difference is reduced by the matters on which Dr Hall relied for this purpose, namely, the circumstances of W's offending and his lack of current social supports. It appears that Dr Tanney also recognised those matters.
In the domain of manageability, Dr Tanney found the factor of problems with treatment, as did Dr Hall, which Dr Tanney appeared in his report to associate with W's 'steadfast denial of any sexual offending' (exhibit 1.25 [56]).
However, Dr Tanney identified no other factor, unlike Dr Hall, who identified problems with planning in the terms I have previously described.
I further note Dr Tanney, unlike Dr Hall, did not indicate it was not appropriate to allow W any age‑related amelioration of his risk of re‑offending. However, Dr Tanney did testify to the effect that the fact W was over 60 was not sufficient to indicate he was unlikely to reoffend, while also testifying that there was a view in the field, to the contrary of the allowance for age in the STATIC99‑R, that the effect of age 'may not be anywhere near as strong and noticeable for persons who undertake offences against children' (22 May 2014, examination‑in‑chief, ts 89 ‑ 90).
Dr Tanney's evidence was that the results of this assessment using general behavioural principles respecting recurrence of any behaviour, which as I have previously indicated is referred to in his testimony as an approach by 'idiosyncratic analysis', taken together with the results from the RSVP, pointed to a low/low-moderate possibility of similar re‑offending. Those indications were in strong agreement with the indications from the STATIC‑99R results.
I have previously described how, notwithstanding those indications, Dr Tanney arrived at the conclusion W's risk of sexual re‑offending was high. It will be recalled Dr Hall's assessment of risk was also that it was high, although he appears to have assessed the likelihood re‑offending as higher than the corresponding assessment by Dr Tanney.
As to what sort of re‑offending was most likely, Dr Tanney's evidence was that, in the face of his denials of his offending by W, which in Dr Tanney's view prevented him establishing how or why W had learned his past maladaptive behaviour, Dr Tanney was left with the general law of human behaviour that the way a person had offended in the past was the way that person would offend in the future. This reaches a view of the most likely form of sexual re‑offending on the part of Dr Tanney corresponding with that of Dr Hall.
Dr Tanney, unlike Dr Hall, gave no evidence to the potential psychological harm from such re‑offending.
Dr Tanney's evidence as to strategies to manage W's risk of re‑offending was that the SODP was something Dr Tanney would very much wish W to do. It will be recalled that in effect was also Dr Hall's view. Dr Tanney was of that view for two reasons. One was a possibility, albeit a low one, of a beneficial impact on W. The other was that the SODP might afford information that would enable those concerned to manage W's likelihood of re‑offending to do so more effectively. Counselling in the community with a Dangerous Sex Offender (DSO) team psychologist and reporting to CCO and the Sex Offender Management Squad (SOMS) would not afford that information.
Dr Tanney indicated that one possibility was that W's involvement in the SODP would lead to the discovery of something that would be a trigger for offending by him that those conditions did not cover.
Dr Tanney in his report noted that W was 'open to treatment in a Deniers programme in a custodial setting, although it is not his preferred outcome of this matter' (exhibit 1.25 [80]).
This matter was not explored with Dr Tanney in questioning. It may be noted this reference to openness is not easily reconciled with Dr Hall's evidence I previously referred to, of W having indicated to Dr Hall a paranoid attitude towards the SODP.
However, I did not draw from Dr Hall's evidence that W had indicated he would not undertake the SODP. I have previously noted occasions which W was listed to complete the SODP, but did not do so. However, I do not consider I can draw anything from his not having done so, in view of what on the evidence of Ms Marley I reach below were the reasons for his not doing so.
Dr Tanney's evidence was that, for the management of W's risk otherwise, and even in the absence of W completing the SODP, for the pattern of re‑offending to be expected, that appropriate external supervisory conditions could manage his risk in the community. Dr Tanney's report appears to refer for these conditions to the 'usual and considerable elements of required supervision, including electronic monitoring' (exhibit 1.25 [87]). Further, his report indicates W was likely to be cooperative to the elements of monitoring and supervision [87]. This, Dr Tanney testified, was a conclusion as to manageability based on what was known about W, even in the absence of completion of the SODP.
However, a 'concern' was whether what was known about W was 'enough' (22 May 2014, cross‑examination, ts 107).
These views of Dr Tanney's are, in my assessment of them, more favourable to W's release into the community on an appropriate supervision order than the corresponding views of Dr Hall. However, I consider the difference is one of degree only.
I turn now to address all of the specific matters to which the DSO Act requires me to have regard before making my determination as to whether or not W is a serious danger to the community within s 7.

Whether or not I find W to be a 'serious danger to the community': introduction

I believe I must address this question in the detail below, notwithstanding that the answer to the question is not (as I will indicate) in significant dispute before me. I so believe, both because I must make that determination having regard to the matters listed in DSO Act s 7(3), and because a number of matters to which I must have regard also go in my view to the choice I must make between the options in DSO Act s 17(1)(a) and (b).
I adopt the structure used by McKechnie J in Director of Public Prosecutions (WA) v Misko [2012] WASC 259. That structure follows DSO Act s 7(3).

(a) the psychiatric reports, including cooperation in the examinations

I have previously reviewed the evidence of the psychiatrists. That review included taking account of their respective reports.
I note from those reports that there are indications W cooperated in the psychiatrists' respective examinations.
I also note, however, that Dr Hall was of the view W was a 'markedly unreliable historian' (exhibit 1.24 [88]).
In his testimony, Dr Hall explained that there were two reasons for that conclusion. One was a large number of discrepancies between what had been recorded as W's views or accounts in previous assessments in the materials provided to the psychiatrists and what he told Dr Hall during the interviews, as well as inconsistencies during the interviews. The other reason was that during the course of the interviews, W had a tendency to digress or provide a lot of irrelevant material, which Dr Hall took as W appearing superficially cooperative, without providing much information in direct response to the questions being asked.
In respect of discrepancies, I note exhibit 1.24 [46] (any history of domestic violence in the marriage with Ms F); and [68] (any engagement in group sex or 'swinging').
In respect of the inconsistencies I note exhibit 1.24 [36] (sexual abuse at the hands of other boys in the home he had been placed in at first); and [44] (relationship with his stepsons' biological father).
In respect of a tendency to digress or provide a lot of irrelevant material, I note the reference in exhibit 1.24 [88] to W providing 'excessive and irrelevant detail by way of back‑stories'.
By contrast, there were no similar views expressed by Dr Tanney. To the contrary, in his report, he described W as a 'fully reliable historian' (exhibit 1.25 [07]). In his testimony, Dr Tanney explained that by 'reliable' he meant W had told a consistent story, consistent with any other story he had previously provided in the data provided to Dr Tanney, although the story might not necessarily be true.
Further, while Dr Tanney noted in his report that at times in his interview with W W provided 'over‑inclusive details' (exhibit 1.24 [44]), Dr Tanney testified that in his interview with W Dr Tanney had not experienced 'extensive back stories', but rather received the 'excessive detail in small snippets' (22 May 2014, examination‑in‑chief, ts 93). After reading on the stand the corresponding paragraph in Dr Hall's report that I have previously referred to (exhibit 1.24 [88]), Dr Tanney testified it 'wasn't my conclusion' for his interview with W that W had sought to control the interview by providing the detail he had (22 May 2014, examination‑in‑chief, ts 93).
Overall, allowing for all the similarities and differences I have referred to, I conclude that the psychiatric reports indicate at their lowest that there is a significant risk of serious sexual re‑offending, in the sense of a likelihood of such offending, if W were not subject to a detention order or a supervision order.

(b) any other medical, psychiatric, psychological or other assessments

There were a number of these in exhibit 1, most of them in relation to other proceedings and dated in 2012 or earlier. See exhibits 1.12, 1.16, 1.17, 1.18 and 1.20. I consider the two psychiatrists take sufficient account of them for my purposes.
Of the remaining assessments, only that in the report of Ms Marley (exhibit 1.26) received any emphasis before me. Ms Marley also testified, as I have indicated.
I turn to Ms Marley's evidence now.
As I have previously noted, Ms Marley was the Principal Psychologist in the Offender Services Division of the Department. She testified she had prepared reports for the court on particular offenders since 1986.
Ms Marley's evidence was concerned principally with management and interventions for W, by reference to his treatment needs, and she testified that her 'business' was not an 'assessing risk' (21 May 2014, examination‑in‑chief, ts 58). However none of her evidence, including evidence which went to risk, was challenged before me. I consider no such challenge to it in the respects I note below could successfully be made.
Ms Marley had one interview with W at Acacia Prison, and otherwise appears to have had access to the same materials as the two psychiatrists. She also had direct consultations with three officers of the Department, including Ms Dabala.
I note the following from Ms Marley's evidence.
In both Ms Marley's report (exhibit 1.26) and her testimony she noted W's interest in pursuing future relationships 'so long as the person is nice' (21 May 2014, examination‑in‑chief, ts 55). This is a matter of significance in relation to both risk and its management, in view of the re‑offending scenario I have noted as described by the two psychiatrists.
It may be noted that Dr Hall's evidence differed from that of Dr Tanney as to how likely it would be that W would succeed in that pursuit. Dr Hall's evidence was that W presented to Dr Hall as a 'congenial and charming, and in some respects authoritative and trustworthy' who could easily form a relationship with a woman with small children or small grandchildren who might be struggling or vulnerable to abusive relationships (exhibit 1.24 [124]; and 21 May 2014, examination‑in‑chief, ts 39, source of quotation). Dr Tanney's evidence was that he had a different picture of W, who had appeared to him to be someone who had 'not been good in his life at making relationships' (22 May 2014, examination‑in‑chief, ts 103). Neither psychiatrist was challenged on these views.
I consider that overall the difference between the two psychiatrists is not significant for my purposes, as Dr Tanney's view does not preclude the possibility that W would seek to pursue a relationship and would succeed in that pursuit.
Ms Marley was also asked about the relevance of denial of offending to predictions of sexual recidivism and to risk management.
In her report (exhibit 1.26) Ms Marley noted that literature and research into denial as a risk factor for sexual recidivism showed mixed results. In her testimony she said denial was not one of 'the strongest predictors of sexual recidivism' (21 May 2014, examination‑in‑chief, ts 56). Of the two psychiatrists, only the evidence of Dr Tanney appeared to address the literature and research to which Ms Marley referred, and did so in similar terms, broadly (exhibit 1.25 [69]).
As to the relevance of denial of offending to risk management, Ms Marley testified, consistently with the report, that it was relevant from the standpoint of both risk and treatment. She further explained that denial by a person of their offending allowed that person, if they had a narcissistic personality, to defend themselves from uncomfortable feelings that would otherwise flow.
I note that this testimony is consistent with the way in which, as indicated above, both psychiatrists dealt with W's denial of sexual offending, as a risk factor relevant because of its bearing on the manageability of W's risk.
Ms Marley was also asked about the SODP. Her evidence included that W had expressed a willingness to complete it, and that she had consulted other sources than W about his failure to complete the SODP on two previous occasions when it had been available to him. Her testimony in the latter respect confirmed that he was precluded from doing the SODP by external circumstances, then outstanding charges in one case, and the present proceedings in the other. Her evidence was not objected to, challenged or otherwise explored.
Ms Marley's recommendation, in view of her assessment of W's outstanding treatment needs, was that he should be included in the SODP. Her evidence was also that the SODP was not intended to change a stance of denial, but rather to work with offenders to minimise the risk of future offending through planning for the future.
In her testimony she said this about the SDOP (21 May 2014, examination‑in‑chief, ts 57):
It's about getting some buy‑in from the person, engaging them in some understanding that they need to actively protect against situations that may lead to further charges.
Ms Marley further amplified on this response in her cross‑examination as follows (21 May 2014, ts 65):
And you have discussed some of the things that the course aims itself at, but it's sort of a risk management course in a sense. Would you agree? No. It's a self‑manage - it's building someone to a self‑management approach. So it's helping them to understand what the risk factors are that apply to them and engage them in a partnership in terms of managing themselves so that they don't reoffend again.
Also, Ms Marley was asked in cross‑examination whether, if W did not complete an SODP, it was her view that risk management strategies or conditions could still be put on a supervision order that would address W's risk issues. Her reply was as follows (21 May 2014, ts 68):
But if he wasn't able to do that, didn't have that opportunity, then a supervision order could be developed with some very stringent checks and balances. The issue with that is it wouldn't be as well tailored, possibly, as if [W] was given an opportunity to do a program because some of the things that occur in the program would help us to tailor something to him.

In her re‑examination, Ms Marley elaborated on this answer as follows (21 May 2014, ts 69):
What aspects of the Sex Offender Deniers Program allows the department - or allow the department to tailor the supervision order specifically to the offender? So some of the things that may be discussed in the program, such - in his self‑management plan, might be that he explore some particular protective relationships. So that might be discussed in the program, and he may commit to that and he may start that during the program. I don't know, some - maybe some sort of club or something. So if that's the case, then that could be built in and we could all support him in that, that sort of thing. Or there could be aspects to his lifestyle that hasn't become apparent through the assessments, that become apparent when he's in a group. Or some interpersonal - because groups are built on a social learning model where the benefit of a program is they're in a group, they're interacting with each other. It's a very rich environment to rehearse and practice some interpersonal skills. Some of those aspects may become apparent and be reflected to him, and they can be incorporated into a tailored risk management plan as well.
I note that Ms Marley's evidence as to the SODP in all of these respects is consistent with that of the psychiatrists.
Ms Marley also testified as to the role of the arrangement for management of risk under a supervision order represented by the work of the DSO psychology team as integral to the risk management plan. Dr Hall also referred to that team as involved in monitoring under a supervision order, with the SMS. Dr Tanney referred to counselling by a psychologist from the team and to W seeing the SOMS.
Overall, I consider the evidence of Ms Marley supports the conclusion I drew from the evidence of the psychiatrists.

(c) propensity

I take the view that the legislature has used the word 'propensity' in its ordinary meaning in the context of the criminal law, as described in DPP v GTR (Murray AJA), as follows:
In my view 'propensity' in this context means what it ordinarily means in the context of the criminal law. It means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder [178].
On the evidence before me, I consider W has a propensity to commit serious sexual offences of a kind described by the re‑offending scenario outlined by Dr Hall above, which corresponded, as I have indicated, with Dr Tanney's evidence as to what sort of re‑offending by W was most likely.

(d) pattern

On that same evidence, and as I find to be indicated by Dr Tanney in his evidence described above as to what sort of re‑offending was most likely, there is a pattern of offending behaviour by W that may be described in the terms of the re‑offending scenario.

(e) and (f) efforts to address the cause or causes of behaviour including participation in any rehabilitation programme and its effect

As to efforts to address the cause or causes of behaviour generally, I note the evidence I have reviewed as to W's denial of his offending. I further note the following, from Ms Marley's report, under the heading 'Insight' (exhibit 1.26, page 223), which was not challenged, and is consistent with all of that other evidence:
Given his absolute denial, [W] has no insight into his offending or psychological underpinnings for such. He has elaborate schemas that underpin this denial, which seems organised around threat and persecution. This seems to be related to a narcissistic personality structure and is considered to be emblematic of a very primitive psychological defensive strategy. Simply put, he does not appear able to cope with any threat to his ego. Claims of his sexual offending are threatening to his identity and given his fragile personality structure and psychological defences, these are primitive coping strategies that help him perhaps reconcile his sexual offending and self‑view. Given the complex and primitive nature of his belief symptoms it is unlikely that [W]'s position of denial will be shifted. This will continue to be a barrier for effective risk management and engagement in treatment. It is also considered a dynamic risk factor. Treatment should not focus on his denial as something to shift or address.
As to participation in any rehabilitation programme and its effect, I note, as indicated above, he has not completed any such programme. There is no evidence before me of any effect of such participation as he was able to undertake.

(g) antecedents and criminal record

I have previously described these.

(h) risk of a serious sexual offence

I consider that this 'risk', in DSO Act s 7(3)(h) refers to the likelihood of such an offence being committed, rather than the nature of the particular serious sexual offence concern. I note the distinction between those two aspects of 'risk' in Italiano v The State of Western Australia [2009] WASCA 116 [4] (Pullin JA), [46] (Buss JA), referred to in The State of Western Australia v West [52] at (e) above.
I have previously described the respective assessments by the two psychiatrists of the likelihood of serious sexual offence being committed by W if he were not subject to a detention order or a supervision order, and what I consider those two reports taken together indicated at their lowest as to that likelihood. The other evidence before me confirmed the assessment of the likelihood in those latter terms, namely, there is a significant such risk.

need to protect the community from that risk

I note again the re‑offending scenario as described by Dr Hall and his further description of the potential psychological harm from such re‑offending. I consider, on that evidence, which is consistent with the other evidence before me, that there is a strong need to protect the community from such re‑offending.

(j) any other relevant matter

There was one such matter I understood to be referred to me, by counsel for W in counsel's closing. This matter was the medical history for W as set out in Dr Tanney's report, exhibit 1.25 [24] ‑ [28]. That medical history, as counsel for W accepted, was not described by Dr Tanney as indicating matters which are presently risk reducing. I note Dr Hall's description of W's medical history, in similar if not entirely corresponding terms, in Dr Hall's report exhibit 1.24 [25] ‑ [28]. Dr Hall also did not describe that history as indicating matters which are presently risk reducing. Neither Dr Tanney nor Dr Hall was asked any questions about those descriptions.
Counsel for W invited me to find, as a matter of common sense, that that history could be described as having at least a limited relevance, as risk reducing, at least in respect of two conditions from which W had suffered. One was what W had claimed to Dr Tanney and Dr Hall was leukaemia. The other was in respect of W's history of erectile dysfunction.
However, in respect of the claim that leukaemia, I note the indications in Dr Hall's report (exhibit 1.24 [28]) that W should not be considered to be suffering from that condition.
In respect of the history of erectile dysfunction, I note it is not clear from the accounts in similar terms in both psychiatrists' reports (exhibit 1.24 [26]; exhibit 1.25 [28]) that, as a matter of common sense or otherwise, this history currently manifests itself in a form affecting his risk of re‑offending.
I conclude I should not arrive at the finding counsel for W invited me to make.

Conclusion: whether I find W is a serious danger to the community

Counsel for W accepted as I understood him that the real issue before me was not this question but rather whether a supervision order would adequately address the risk issue. I understood this to be a reference to the choice to be made under DSO Act s 17(1) between a detention order and a supervision order, which as I have indicated is only to be made if the present question is answered in terms that I find W is a serious danger to the community.
However, in accordance with DPP v GTR [34] (Steytler P & Buss JA), I must identify what it is that constitutes the risk and makes the risk unacceptable, and I must consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence.
What constitutes the risk in this case, and makes that risk unacceptable, is the level of likelihood I have indicated as to be drawn, from the evidence of the two psychiatrists, of a serious sexual offence of the kind described by Dr Hall is the likeliest re‑offending scenario, with the potential psychological harm from such re‑offending he describes as I have indicated.
Thus, I considered that in accordance with DSO Act s 7(2) the DPP has discharged its onus of satisfying me in those terms by acceptable and cogent evidence and to a high degree of probability I so determine by reference to my review of the matters to which s 7(3) says I must have regard.
I turn now to the choice I must make that determination.

The choice of order to make: the applicable law

As I previously indicated I drew from The State of Western Australia v West I should choose the order that is least invasive or destructive of W's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 [49] (Murray J), where a continuing detention order was made.
I should add from Latimer the following, which is accepted in Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [15] (Hall J), where a supervision order was made:
The [DSO] Act prescribes no overall limit of time after which the prisoner must be released, and so it can be seen that a continuing detention order, when made, has the potential to last indefinitely, for a period well beyond the term of any sentence of imprisonment which might be imposed as punishment upon the commission of a serious sexual offence by the offender. It is having regard to that such matters that I express the opinion that the scheme of the Act requires the Court to do no more than [is] necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection for the community [24].
Of course, the paramount consideration is the need to ensure the protection of the community (DSO Act s 17(2)).
Thus, as I have previously indicated I drew from DPP v Williams [86] (Wheeler JA, Le Miere AJA agreeing), if I cannot be satisfied that the community is adequately protected by a supervision order then I must make a detention order.

Making the choice

I have noted in this regard the evidence I have reviewed above as to the value of W participating in an SODP, which on the availability of the programme (only in custody) would require if he were to do it that, as appeared to be common ground before me, the choice of a detention order.
However, I have also noted the evidence I have reviewed above as to the possibility, even without such participation, of conditions being drawn up and complied with by W and of other arrangements being made for the purposes of a supervision order to manage his risk.
In respect of those conditions, that compliance and those arrangements, I note the evidence of Ms Dabala in her report (exhibit 1.27), including the additional page, page 237A. I also note her testimony before me on the first day of the hearing, 21 May 2014.
As I previously indicated Ms Dabala is a Senior Community Corrections Officer in the Department. No challenge was made to any of her evidence nor in my view could one be successfully be made to the aspects of her evidence of significance to me.
Ms Dabala had two interviews with W, and also used as sources of information for her report his Western Australian court history; WA Police records; the Department file; Outcare Inc (on accommodation for him); the Victim‑Offender Mediation unit; the Department of Housing, Mirrabooka (also on accommodation for him); Dr Hall and the Total Offender Management Solution (TOMS) (a database of offenders). Further, Ms Dabala was present in court for the testimony of Dr Hall and Ms Marley.
Ms Dabala's report, as I previously indicated, sets out Proposed Supervision Order Conditions (the Conditions). They are numerous, stringent and restrictive. Among other things, they call for monitoring and supervision by members of the local Risk Management Group, including police officers from the SOMS, CCOs, management staff from the Department's Public Protection Unit and DSO psychologists. Ms Dabala indicated the Conditions were 'just a draft' and that 'things can be argued at the last minute' (21 May 2014, examination‑in‑chief, ts 73).
The Conditions include:
1.reporting and monitoring conditions, including electronic monitoring and the possibility of visits for monitoring purposes to the residence that would be prescribed for W;
2.compliance with directed psychological arrangements and with the requirements of programmes designed to address his offending behaviour or risk of serious sexual offending as directed;
3.exchange of information between persons or agencies involved in the implementation supervision of the order, including confidential information;
4.restrictions on contact with victims; curfew arrangements;
5.compliance with medication directions;
6.prevention of high risk situations, including
a.not to contact any child under the age of 16 years unless authorised or in compliance with certain restrictive conditions;
b.to provide details of any contact with a child under the age of 16 years to the nominated agencies;
c.to report immediately to the nominated agency the formation of any domestic, romantic, sexual or otherwise intimate relationship by W with a person who has children under the age of 16 years in their care either full or part‑time;
d.not to conduct computer searches for or collect in either electronic or permanent form images of children, whether indecent or not, with the exception of images of W's immediate family that are not indecent images;
e.not to form any domestic relationship with a person who has children under the age of 16 years in their care either full‑time or part‑time;
f.to make full disclosure regarding W's past offending and the current order to anyone with whom he commenced a domestic, romantic, sexual or otherwise intimate relationship; and
g.to have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children and to cease or cancel such memberships where directed to do so by one of the nominated agencies.
Ms Dabala referred to all but the last of the lettered conditions I have referred to as conditions particularly relevant to W.
Ms Dabala testified that, while the conditions allowed for monitoring of compliance with them through such as the powers of entry of a number of agencies, the reporting of relationships and contact with children would 'basically' depend on W's 'self-reporting' (21 May 2014, examination‑in‑chief, ts 74). At the same time, Ms Dabala testified it was easier at least to some extent to monitor behaviour associated with his likely re‑offending, given the pattern of offending identified by Dr Hall, which I took to be Dr Hall's re‑offending scenario.
I consider that matters of the possibility of conditions of the sort I have described, compliance with them by W and the other arrangements I have referred to must be evaluated for the purpose of the choice I must make with the concern I have indicated Dr Tanney referred to as to the adequacy of the information to hand for the purpose of tailoring conditions to W and the evidence of Ms Marley as to tailoring such conditions in the light of what might be learnt from an SODP in which W participated. For that purpose, I must also take account of the particular character of the potential harm from the re‑offending scenario I have indicated Dr Hall described. That purpose is to make that choice in accordance with the applicable law, with the paramount consideration being the need to ensure the adequate protection of the community.
I have concluded that, notwithstanding the possibility I have described, that concern, that character and that potential harm are such that I am satisfied that the adequate protection of the community would only be possible if a detention order were the choice of order made under DSO Act s 17(1).

Conclusion on choice and orders

I am satisfied that W is a serious danger to the community within the meaning of DSO Act s 7(1), having been so satisfied by the DPP by evidence to the standard as described in s 7(2).
I am also satisfied that meeting the need to ensure the adequate protection of the community would only be possible if a detention order were the choice of order made under DSO Act s 17(1).
Accordingly, I make a detention order for W.
I should add the following. As Dr Tanney notes in his report (exhibit 1.25 [85]), it would be possible for W to participate in an SODP and to apply for leave of the court to be given for the detention order I would make to be reviewed. See DSO Act s 30. However, I should note that before granting that leave the court must be satisfied that there are exceptional reasons that relate to W, as s 30(2) indicates. Further, even if such leave were granted, the court would still have to perform the task of review described in s 33, which would be similar to if not identical with that I had to perform in the present proceedings.
I will hear from the parties as to any further orders I should make consequent on my reasons.