Director of Public Prosecutions (WA) v Yates

[2014] WASC 136

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- YATES [2014] WASC 136

CORAM:   MARTIN CJ

HEARD:   27 NOVEMBER 2013

DELIVERED          :   15 APRIL 2014

FILE NO/S:   DSO 3 of 2013

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

NIGEL YATES
Respondent

Catchwords:

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

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7, s 8, s 14, s 17
Young Offenders Act 1994 (WA), s 190

Result:

Indefinite detention order made

Category:    B

Representation:

Counsel:

Applicant:     Mr M T Trowell

Respondent:     Ms M R Barone

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Barone Criminal Lawyers

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

Attorney‑General (Qld) v Francis [2006] QCA 324; [2007] 1 Qd R 396

Attorney‑General (Qld) v Lawrence [2008] QSC 230

Attorney‑General (Qld) v Sybenga [2009] QCA 382

Director of Public Prosecutions (WA) v Alvisse [No 6] [2013] WASC 154

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307

Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246

Director of Public Prosecutions (WA) v Pindan [No 2] [2012] WASC 234

Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206

The State of Western Australia v West [2013] WASC 14

Winters v Attorney‑General (NSW) [2008] NSWCA 33

MARTIN CJ: 

Summary

1. Nigel Yates is a Wongai man who was born in Warburton, and subsequently raised in the Warakurna Aboriginal community, which was previously known as the site of the Giles Weather Station and which is situated in the Central Desert near the border of South Australia and Western Australia.  Mr Yates is now 37 years of age and when not incarcerated has spent most of his life in the Central Desert and Goldfields region of Western Australia.  However, he has spent most of his adult life incarcerated as a consequence of repeated offending against the laws of this State.  His pattern of offending behaviour commenced while he was a juvenile, and appears to have been associated with a long history of substance abuse, including the sniffing of petrol and other solvents.

2. Mr Yates' criminal record includes three serious sexual offences. Prior to the completion of the term of imprisonment imposed as a consequence of his most recent conviction for such an offence, the Director of Public Prosecutions (WA) (the DPP) filed an application under s 8 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) for an order under s 17 of the Act. For the reasons which follow, I have concluded that there is an unacceptable risk that if Mr Yates is not made subject to an order under the Act, he would commit a serious sexual offence. Prominent amongst those reasons is the pattern of sexual offending which is evident from Mr Yates' past conduct, the psychiatric evidence which has been presented to the court relating to the risk of Mr Yates committing a further serious sexual offence, Mr Yates' failure to undergo any significant rehabilitative programmes during his incarceration, and the current uncertainties with respect to his capacity to respond positively to any programmes aimed at behavioural modification which might be provided to him in the future. Those same reasons compel the conclusion that, at least on the information currently available, the only disposition which will adequately protect the community from the risk which Mr Yates presents is to order that he be detained in custody for an indefinite term for control, care and treatment.

The law

1. The DPP has applied for an order under div 2 of the Act. Section 17 of the Act provides:

   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.

2. Section 7 of the Act provides:

   7.Serious danger to 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; and

   (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.

3. A number of principles relating to the proper construction and effect of these sections of the Act have been established by prior decisions.  In this case there were no differences between the parties with respect to those principles, at least insofar as they applied to the particular facts and circumstances of this case.  The relevant principles were conveniently enunciated by Corboy J in The State of Western Australia v West [2013] WASC 14 in these terms:

   (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] and [46] (Buss JA).

   (f)In a passage that 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].

4. 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 (Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307), 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.

5. 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.

The facts

1. Relevant facts with respect to Mr Yates' antecedents and his offending behaviour were established by the tender of a bundle of documents. Mr Yates did not give evidence, or adduce any other evidence in relation to those matters. In addition, evidence was given by two psychiatrists who were ordered to examine Mr Yates pursuant to s 14 of the Act, and a report from a clinical neuropsychologist was tendered by consent. Evidence was also led from a clinical psychologist employed by the Department of Corrective Services relating to Mr Yates' participation in programmes offered by the department in the past, and with respect to the programmes that he might be offered in the future. Evidence was also led from a senior community corrections officer employed by the department with respect to the results of her inquiries in relation to the arrangements that might be made for the supervision of Mr Yates within the community.

Antecedents and offending behaviour

1. Mr Yates was born in August 1976 in Warburton.  He is the sixth of seven children born to his parents.  His father is now deceased, and his mother is of advanced years.  Mr Yates has one daughter from a casual relationship but has very little contact with that daughter or her mother.  Mr Yates' childhood appears to have been uneventful, and there is no evidence of domestic violence or substance abuse within the family environment. 

Juvenile offending

1. Mr Yates struggled at primary school and left school at the age of 14. His departure from education coincides with his first appearance in court, as a consequence of offences committed in September 1990, when he was just 14. Those offences involved breaking and entering premises and the possession of a deleterious substance. Those offences were characteristic of a significant number of offences committed by Mr Yates whilst under the age of 18. Evidence of his conviction of those offences is admissible in these proceedings notwithstanding s 190 of the Young Offenders Act 1994 (WA) - see Director of Public Prosecutions (WA) v GTR [52] ‑ [56] (Steytler P & Buss JA). Although the question which must be addressed under the Act concerns the risk of Mr Yates committing a serious sexual offence if not subjected to an order under the Act, his general criminal record is a matter which must be taken into account (s 7(3)(g)). In this case, Mr Yates' extensive criminal record, over a very lengthy period, enables his sexual offending to be viewed in its context, and enables the risk of further offending of that character to be evaluated. While the mere fact that a person has committed previous offences does not necessarily mean there is an unacceptable risk that they will commit further serious sexual offences, in this instance, it does demonstrate Mr Yates' manifest incapacity to abide by the norms and standards of behaviour expected by the community: Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [16] (Hall J).

2. Between December 1990 and January 1991 Mr Yates committed five further offences of break, enter and steal, one offence of break and enter with intent, and the offence of possessing a deleterious substance.  All offences were committed at Warakurna.  The offence relating to a deleterious substance arose from Mr Yates' sniffing petrol, and some of the break and enter offences involved the theft of alcohol.  In February 1991 all previous offences were dealt with in the Warburton Children's Court, and Mr Yates was sentenced to 10 weeks probation.

3. In May 1991 Mr Yates committed the offence of unlawfully driving a motor vehicle, five offences of stealing, one offence of attempted stealing, an offence of possessing an offensive weapon, ten offences of possessing a deleterious substance, two offences of unlawful damage to property, five offences of break, enter and steal, an offence of break and enter with intent to steal, an offence of attempted break and enter, and the offence of common assault.  All offences were committed in the Warakurna community.  In June 1991, Mr Yates committed the offence of being on premises without lawful excuse in Kalgoorlie.  In that month, these various offences were dealt with in the Children's Court which imposed a sentence of 6 months' probation for each offence, to be served concurrently.

4. However, on the same day that Mr Yates was dealt with by the Children's Court, he committed the offence of unauthorised driving of a motor vehicle, driving without a licence, failing to stop when called upon and reckless driving.  All offences were committed in Boulder.  Mr Yates was sentenced to 22 weeks detention as a consequence of those offences.  He was therefore 14 years of age at the time he first lost his liberty as a consequence of his offending behaviour.

5. Following his release from detention, in November 1991 Mr Yates committed one offence of break, enter and steal, three offences of break and enter, one offence of unlawfully driving a motor vehicle, one offence of criminal damage, one offence of disorderly conduct, and seven offences of possessing a deleterious substance.  All offences were committed in the Warakurna community.  Later that month Mr Yates was sentenced to six weeks detention for those offences.

6. Following his release, in March 1992 Mr Yates committed ten offences of possessing a deleterious substance and the offence of possessing an offensive weapon.  All offences were committed in Warakurna.  He received a non‑custodial sentence in respect of those offences.

7. However, within days of being dealt with for those offences, Mr Yates again committed three offences of possessing a deleterious substance and the offence of threatening violence in Warakurna.  He received sentences of probation for those offences.

8. In May 1992 Mr Yates committed the offence of stealing in Laverton, and in June 1992 committed the offence of disorderly conduct, also in Laverton.  Non‑custodial penalties were imposed for those offences.

1. Between July and August 1992 Mr Yates committed six offences of stealing, one offence of possessing an offensive weapon, 16 offences of possessing a deleterious substance, five offences of being on the curtilage without lawful excuse, two offences of disorderly conduct, and four offences of burglary.  The offences were committed in the Blackstone and Warakurna communities.  In September 1992 a sentence of probation for six months was imposed in respect of these offences.

2. However, later that month Mr Yates committed the offences of stealing a motor vehicle, driving without a licence, stealing and causing criminal damage.  Those offences were committed in Laverton and resulted in Mr Yates being sentenced to six weeks detention.

3. Following his release from detention, in December 1992 Mr Yates committed three offences of stealing a motor vehicle in Kalgoorlie, the offence of possessing petrol on community land, and the offence of burglary in Warakurna.  A non‑custodial penalty was imposed for those offences.  In January 1993 Mr Yates committed seven offences of possessing petrol on community land and the offence of burglary in Warakurna.  He was sentenced to eight weeks detention as a result of the offences committed between December 1992 and January 1993.

4. Following his release from detention, in March 1993 Mr Yates again committed six offences of possessing petrol on community land, an offence of stealing, an offence of criminal damage, an offence of insulting behaviour and the offence of escaping legal custody.  All offences were committed in Warakurna.  Non‑custodial penalties were imposed for those offences.

5. In April 1993 Mr Yates committed another six offences of possessing petrol on community land at Warakurna, and the offences of attempted stealing a motor vehicle, stealing a motor vehicle, and stealing in Boulder, and another offence of stealing in Kalgoorlie.  In May 1993, Mr Yates was sentenced to a term of two months detention for those offences.

6. Following his release from detention, in August 1993 Mr Yates committed an offence of burglary, three offences of possessing petrol on community land, and the offence of threatening to kill or injure.  Those offences were committed at Warakurna and resulted in non‑custodial penalties.

7. Later that month, Mr Yates committed further offences of possessing petrol on community land and an offence of being on the curtilage without lawful excuse in Warburton.  Non‑custodial penalties were imposed for those offences.

8. In September 1993 Mr Yates committed three offences of possessing petrol on community land and one offence of escaping legal custody.  The next month he committed six offences of possessing petrol on community land, two offences of criminal damage, two offences of attempted burglary and one offence of burglary.  All offences were committed at Warakurna.  He was sentenced to a further term of detention for those offences, although the precise period of detention which he received is unclear from the records.

9. In April 1994 Mr Yates committed the offence of burglary in Warakurna for which he received a non‑custodial penalty. 

10. The record suggests that Mr Yates received his first sentence of imprisonment in July 1994, being a term of 3 months imprisonment, as a consequence of his conviction for three offences of possessing petrol for the purposes of inhalation.  This seems curious, as Mr Yates would then have been under the age of 18.

Adult offending

1. At all events, following his release from custody in September 1994, Mr Yates committed five offences of burglary and the offence of stealing a motor vehicle in Warakurna, for which he was fined.

2. By this time, Mr Yates had turned 18, and in November 1994 he was sentenced to six months imprisonment without eligibility for parole as a consequence of his conviction for three offences of possession of petrol for inhalation.

3. Two days after his release from custody, Mr Yates was convicted of the offence of assault, committed in Kalgoorlie.  Although the offence was not overtly sexual in nature, the circumstances of the offence shed some light on Mr Yates' subsequent offending behaviour.

4. According to the statement of material facts presented to the court, at about 2.00 pm on Thursday, 23 March 1995, Mr Yates was noted to be following a 20‑year‑old female who was walking towards the Federal Hotel along Hannan Street, Kalgoorlie.  Mr Yates walked alongside her for a short while and then stood in front of her causing her to stop.  When the victim asked him to move aside, Mr Yates placed his hand up his shirt and told the victim to move into a nearby carpark as he was armed with a gun.  He pushed the victim on the arm, but she refused to go, after which a male passerby intervened and Mr Yates fled.  As there is no evidence as to Mr Yates' motive at the time of this offence, it cannot be safely inferred that the offence had any sexual connotation.  Nevertheless, the circumstances of the offence do provide a context for the assessment of Mr Yates' later behaviour towards vulnerable women.  It should be noted that Mr Yates was only 18 years of age when this offence was committed.

5. Mr Yates was remanded in custody following the commission of the offence, but was released approximately two months later when a small fine was imposed.  Within weeks of his release, Mr Yates committed the offence of possessing an offensive weapon at the Ninga Mia Community, for which he was fined.  According to the records of that offence, Mr Yates was waving a knife around while under the influence of alcohol. 

6. The next month, June 1995, Mr Yates committed two offences of burglary at Warakurna.  Both offences involved the theft of petrol, evidently to be used as an inhalant.  Mr Yates was sentenced to 4 months imprisonment for those offences and was released from custody in September 1995.

7. In November 1995 Mr Yates was sentenced to 2 months imprisonment for the offences of attempted burglary, two counts of burglary, and one count of possession of a deleterious substance.  He was released from custody on 21 December 1995.  No details with respect to the circumstances of those offences has been provided.

8. Ten days later, at the Tjukayila Roadhouse, Laverton, Mr Yates stole a knife, and when pursued by the victim, stabbed the victim twice in the back.  A pre‑sentence report prepared at the time suggests that Mr Yates and the victim were both heavily intoxicated.  The same report suggests that Mr Yates' only period of employment up to that time had been a period during which he collected firewood for old people at Warakurna under the Community Development Employment Programme (CDEP).  Mr Yates stated to the author of the report that he consumed large quantities of alcohol on a daily basis and still sniffed petrol, as a result of which he suffered from memory loss.

9. Mr Yates was sentenced to 6 months imprisonment, and was released from custody on 9 May 1996.

10. Less than a month later, on 2 June 1996, Mr Yates committed the offences of stealing and burglary in Warakurna.  The offences involved the theft of a small amount of petrol from a motor vehicle, and the theft of cigarettes from a social club.  Mr Yates was fined for those offences.

11. However, two weeks later Mr Yates was sentenced to 3 months imprisonment for three offences of stealing, one offence of stealing a motor vehicle, one offence of threatening behaviour, and three offences of possessing a deleterious substance.  No details with respect to the circumstances of those offences has been provided.  He was released from custody on 20 August 1996.

12. Six days later Mr Yates was sentenced to 2 months imprisonment for three offences of possessing petrol for inhalation, one offence of being on premises without lawful excuse, and a further offence of stealing.  No details with respect to the circumstances of those offences have been provided.  He was released from custody on 4 October 1996.

13. Six days later Mr Yates was sentenced to 4 months imprisonment for another offence of stealing a motor vehicle, one offence of criminal damage to property, and four offences of possessing a deleterious substance.  No details with respect to the circumstances of those offences has been provided.  He was released from custody on 27 December 1996.

14. Over the next few days, Mr Yates committed one offence of burglary, and four offences of stealing at Warakurna.  The offences involved the theft of petrol.  On 10 January 1997, Mr Yates committed the offence of criminal damage by setting fire to his mattress in the Warburton police lockup.  He was sentenced to 6 months imprisonment for that offence, and for the offences of burglary and stealing.

15. However, on 17 January 1997 Mr Yates escaped from the Laverton police lockup by using an implement to burrow a hole through a wall in the building to gain access to the courthouse, from which he fled.  He was fined for this offence.

16. After being recaptured, two weeks after his previous escape, on 1 February 1997 Mr Yates again escaped from legal custody.  On this occasion he scaled the rear fence at the Eastern Goldfields Prison.  However, he returned to the prison of his own accord the following day.  He was later sentenced to 3 months imprisonment for the offence of escaping from legal custody.  He was ultimately released from custody on 5 June 1997. 

17. Five days later, on 10 June 1997, Mr Yates committed the offence of stealing, by driving the motor vehicle of another without authority.  The offence was committed in Kalgoorlie.  He was remanded in custody on 12 June 1997.  The following day, Mr Yates was sentenced to a term of suspended imprisonment for that offence.

18. The next day Mr Yates smashed the rear window of a vehicle in Kalgoorlie.  He ran away when disturbed but was apprehended by police.  He was found to be carrying a 12‑inch kitchen knife.  He was convicted of the offences of criminal damage and possessing an offensive weapon, for which fines were imposed after Mr Yates had spent a little over a month in custody on remand.

19. A month after his release Mr Yates committed the offences of stealing and criminal damage at Warakurna.  The first offence involved theft of a quantity of petrol from the roadhouse, and the second offence involved breaking the windscreen on a Toyota four‑wheel drive belonging to the Warakurna community, by punching the windscreen with his fist.  On 10 September 1997 Mr Yates was fined for those offences.

20. A few weeks later, on 2 October 1997, Mr Yates committed the offence of aggravated burglary at Warburton.  In company with four others he forcibly removed a padlock securing the front door of residential premises, entered the house and removed a large amount of property.  While in the house, Mr Yates and others were sniffing petrol.  A pre‑sentence report prepared at the time described Mr Yates as a chronic petrol sniffer who would sniff whenever and wherever he could obtain petrol.  On 1 December 1997, in the District Court at Kalgoorlie, Mr Yates was sentenced to 18 months imprisonment with eligibility for parole for the offence of aggravated burglary.  He was released from custody on 23 October 1998.

The first sexual offence

1. Three days after his release, Mr Yates committed two offences of aggravated sexual penetration without consent.  These were the first offences falling within the definition of 'serious sexual offence' in the Act committed by Mr Yates.  He was 22 years of age at the time.

2. During the evening of 26 October, Mr Yates approached a 39‑year‑old woman who was his cousin in a carpark adjacent to a supermarket in Kalgoorlie.  The victim was sitting on a crate at the time.  Mr Yates told police that he was very drunk at the time.  He also asserted that the victim said something to him that annoyed him.  At all events, Mr Yates pulled the victim off the crate.  The victim attempted to leave to go to the women's refuge.  However, Mr Yates pushed her to the ground and kicked her to the left side of the head, and then to the right side of her mouth, and then in the right side of her hips.  He then dragged the victim by the legs across a park into a carpark adjacent to a fast food outlet.  The victim was calling for help, but apparently no‑one came to her aid. 

3. In the carpark adjacent to the fast food outlet, Mr Yates removed part of the victim's clothing and sexually penetrated her without consent.  He then removed the remainder of the victim's clothing and again sexually penetrated her without her consent.  He left the victim in the carpark.  In the course of the assault she suffered injuries to her head, mouth, back, shoulder and arms.

4. In a pre‑sentence report prepared by a forensic psychologist, it was noted that there was some evidence to suggest brain dysfunction.  Mr Yates stated to the author of that report that although he admitted trying to have sex with the victim, he emphatically denied actually having had sex with her.  As will be seen, denial and minimisation of his own role in sexual offending have been recurrent characteristics of Mr Yates' responses to his offending behaviour.  The author of the report expressed the view that:

   Unless Mr Yates is able to cease abusing both alcohol and glue he will continue to present a high risk of reoffending.

5. While on remand for the offences of sexual penetration without consent, on 28 February 1999, Mr Yates and seven others escaped from the Eastern Goldfields prison by removing brickwork from a prison wall to gain access to an area from which they kicked open a door to exit the premises.  They escaped from the prison by running across the roof.  Three days later Mr Yates was recaptured at Ceduna in South Australia.  However, while at large, Mr Yates committed two offences of stealing a motor vehicle, one in Kalgoorlie, and another at Madura, and also committed the offence of stealing at the Connana Aboriginal Community.

6. On 21 May 1999, Mr Yates was sentenced to a total term of imprisonment of 4 years and 6 months, with eligibility for parole, for the various offences which he had committed since his release from custody on 23 October 1998.

Prison programmes

1. In July/August 1999, Mr Yates completed a programme relating to aggression control at Canning Vale prison.  However, a month later, he assaulted his cell mate.

2. Prior to his incarceration, Mr Yates had been assessed as suitable for the sexual offender treatment programme by the forensic psychologist to whom I have referred.  That finding was supported by a psychologist working with the Sexual Offender Treatment Unit within the Ministry of Justice.  He commenced that programme at Greenough Regional Prison on 12 January 2000.  The programme consisted of 34 sessions, each session being of 5 hours duration.

3. Mr Yates failed to complete the programme.  A report prepared following his exclusion from the programme described him as having unwillingly attended 13 full sessions and two half day sessions.  His participation in the programme was terminated on 29 March 2000.  It was noted that Mr Yates was reluctant to accept responsibility for committing the offence, and showed disinterest in his own offending behaviour.  He was also described as having 'demonstrated a defensive and belligerent attitude towards facilitators and other group members who attempted to assist Mr Yates to examine his lifestyle and offending pattern'.  Further, clinical observations were said to support the conclusion that Mr Yates had not established any form of victim empathy either at a cognitive or affective level.  The author of the report concluded:

   Therapeutic intervention does not appear to have been of any benefit to Mr Yates.  Little is known of the precursors that lead to his offending behaviour other than his use of alcohol and cannabis.  Documentation relating to the current offence indicates that anger towards his victim manifested in violent and sexual offending.

   Mr Yates is assessed as high risk for re‑offending and his release to parole is not supported by the writer.

4. On 15 February 2000, Mr Yates was found sniffing petrol in his cell at Greenough prison.  Later that day he was found attempting to choke himself with a torn piece of sheet.  When searched, a small plastic bottle containing petrol was found tucked into his pants.

5. On 5 May 2000, Mr Yates commenced a Substance Use Resource Unit programme at Greenough Regional Prison.  He attended two sessions on the first day, but failed to return for the remaining four days of the programme.  The author of a report prepared following his failure to complete the programme observed that he did not participate for long enough to afford himself any gains in terms of his problematic use of licit and illicit substances.  The report writer concluded that:

   Mr Yates presents as suffering some form of cognitive impairment, possibly as a result of the long-term effects of petrol inhalation.  He presents as having difficulty in comprehending his need to address his offending behaviour to enhance his prospects of release to parole.

6. Unsurprisingly, in light of Mr Yates' failure to respond to the behavioural modification programmes that were offered to him, and the assessments that were made with respect to the high likelihood of him reoffending, Mr Yates was refused parole.

Prison misconduct

1. On 8 September 2000, Mr Yates lost privileges as a result of misconduct in the Greenough Regional Prison, which took the form of banging on the window of the recreation hall and yelling through to female prisoners on the other side of the window.

2. In the same month, a bottle smelling strongly of petrol was found in Mr Yates' cell.  The following month, October 2000, Mr Yates was found under the influence of an unknown substance, and a plastic bag containing a substance smelling like paint thinner was found in his cell.  The next month, November 2000, Mr Yates was suspected of sniffing petrol from a red cup while serving on the garden party.  In January 2001, he was found in his cell with a plastic bag covering the front of his face in which there was a sponge‑like substance.  The bag smelt of paint thinners.  In March 2001, a plastic bottle and a soft drink can, each containing petrol, were found in Mr Yates' cell.  Further, in May 2001, Mr Yates was noticed to be under the influence of some substance, and investigation of his cell recovered a container which contained petrol.  Later the same month, bottles and soft drink cans containing substances that appeared to be petrol were found in Mr Yates' cell.  At the time they were discovered, Mr Yates became aggressive, using a broom to threaten prison officers, and threatening to slit his own throat with a razor.  Three days later, Mr Yates threatened to set himself and his cell alight using petrol.  As officers entered his cell to restrain him, Mr Yates threw petrol at them.

3. In July 2001, Mr Yates was found sniffing a substance in his cell.  The substance was apparently an inhalant.  In August 2001, Mr Yates was behaving erratically and a search of his cell revealed a plastic bag which contained what appeared to be glue.  In each of these instances Mr Yates received facility management penalties.  During this time in prison, Mr Yates was offered a place in a Sex Offender Treatment Programme for offenders with cognitive impairment.  However, for reasons which are unclear, he never commenced this programme.

Offending after release - 2002

1. Mr Yates was released from custody on 1 February 2002.  Later that month he committed the offence of reckless driving, two offences of possessing a deleterious substance, one offence of being on premises without lawful excuse and an offence of disorderly conduct at Warakurna.  The offences were associated with petrol sniffing.

2. The following month, March 2002, Mr Yates got into an argument with the community adviser at Warakurna, after which he threw a rock at him, striking him on the right ankle, and threatened him with a knife.  The following month, at Blackstone (which is also in the Central Desert region), Mr Yates was noticed to arm himself with a large knife when he saw police, who were endeavouring to locate him in relation to the offences which he had committed in Warakurna.  Later that day Mr Yates ran at a vehicle containing Aboriginal Elders from the community of Blackstone and threatened them with violence.

1. Police located Mr Yates in a vacant house at Blackstone early the following morning.  When they called upon Mr Yates to leave the house, he threw a metallic object at one of the police officers, narrowly missing his head.  Mr Yates armed himself with two large knives and a screwdriver and approached police, who used pepper spray in an attempt to contain him.  Mr Yates threatened self‑harm, and then threw an electric frying pan at one of the police officers.  Later, after protracted negotiations, Mr Yates surrendered to police, but then wrestled with, and in one case bit, police as they attempted to take him into custody, where he was later remanded.

2. In May 2002, Mr Yates was sentenced to a term of suspended imprisonment in respect of the various offences he had committed during March and April.

An offence with a sexual connotation

1. On 21 June 2002, Mr Yates committed the offence of assault occasioning bodily harm at Warakurna.  Although that offence is not a 'serious sexual offence' as defined by the Act, the circumstances in which it was committed have a sexual connotation, and also provide a context for the assessment of Mr Yates' attitude towards women. 

2. Mr Yates attended the nurses' clinic in the Warakurna community, where he spoke to the victim, a community nurse, complaining of lumps in his groin.  Mr Yates pulled his trousers down, exposing his groin and genital area, although he covered his genitals with his hand.  He took each of the nurse's hands in turn and placed them in the area of his groin.  According to the nurse, he then grabbed his penis and pulled his foreskin back and said, 'I have a problem with this' or words to that effect.  The nurse directed him to put his trousers back on and moved away from the bed.

3. Mr Yates then approached the nurse and placed both his hands on each of her shoulders and said, 'It's okay, be quiet'.  She responded by telling him that he was, 'not allowed to do this' and that she would shout for help.  Mr Yates then backed away, and pointed to a graze on his hip, and another graze on his ankle.  While the nurse went to retrieve ointment to treat the grazes, Mr Yates struck her forcibly on the head, causing her to lose consciousness.

4. When interviewed by police, Mr Yates denied exposing his penis to the nurse, and asserted that she had refused to give him a blood test as he had allegedly requested, which is why he 'grabbed a king hit on her'.  He advised police that the nurse struck her head on the door as she fell after being hit.  He denied any sexual motivation.  He did, however, admit to police that he had been sniffing aerosol paint in the period prior to the offence.

5. On 24 June 2002, Mr Yates was sentenced to 18 months imprisonment with eligibility for parole for the offence of assault occasioning bodily harm.  On 1 August 2002, a cordial bottle containing what appeared to be a solvent was found hidden in Mr Yates' clothing.  About two weeks later, another cordial bottle containing a petrol‑like substance was found in Mr Yates' cell.  The next month, Mr Yates threatened a prison officer with a wood chisel. 

6. In November/December 2002, Mr Yates completed a programme entitled 'Indigenous Men Managing Anger and Substance Use' at Greenough Regional Prison.  He was described as 'a very quiet participant during the sessions' which ran over a period of 10 days.  This and the aggression control programme completed in 1999 seem to be the only two programmes he has completed during his lengthy incarceration.

The second sexual offence

1. Mr Yates was released from custody on 23 July 2003.  The next day he committed the offence of sexual penetration without consent in Kalgoorlie.

2. The victim was 19 years of age.  She met Mr Yates for the first time on the day prior to the offence, which is the day he was released from prison.  The victim and Mr Yates were drinking with others in a unit in Kalgoorlie.  Mr Yates made sexual advances to the victim which she rejected.  He then forced the victim back on the couch on which they were sitting, applying his hands to her shoulders.  She could not get up.  He then held the victim down with one hand, using his other hand to remove the tracksuit pants and shoes which she was wearing.  Mr Yates then sexually penetrated the victim without her consent.  Perhaps surprisingly, this occurred in the presence of another woman who is Mr Yates' half‑sister, who apparently took no action to restrain Mr Yates.  She told police that she took no action because she was scared of Mr Yates.  During the incident Mr Yates punched the victim once to the chin.  Mr Yates desisted when others returned to the room.  Mr Yates was arrested that same day and interviewed by police the following day.  He told police that he had only touched the victim on the breasts, and had not had sex with her, although he did admit to lying on top of her.

3. Nevertheless, in due course Mr Yates pleaded guilty to the offence of aggravated sexual penetration without consent.  The author of a pre‑sentence report noted that Mr Yates minimised his responsibility for the offence by initially claiming that 'she wanted me to do that to her', although later in the interview he indicated that he understood that the victim did not wish to have sex with him.  He attributed his offending behaviour to the fact that he was 'drunk and stoned'.

4. In September 2004, in the Kalgoorlie District Court, Mr Yates was sentenced to 32 months imprisonment without eligibility for parole for the offence of sexual penetration without consent.  He was released from custody on 24 March 2006.

Post release offending - 2006

1. On 24 April 2006, Mr Yates was apprehended driving without a motor vehicle driver's licence on a road north-east of Warburton.  He was fined for that offence.  In January 2007 he was again convicted of being in possession of a deleterious substance for inhalation at Warakurna.  He was also fined for that offence.

2. On 29 November 2007, Mr Yates attended a Christmas tree lighting ceremony in Kalgoorlie.  After the ceremony, he followed a woman who had also been at the ceremony and began talking with her.  He asked the woman if she knew the whereabouts of another woman to which she replied, 'no'.  Mr Yates then 'king hit' the victim to the right side of her face, causing her to fall to the ground, grazing her left elbow as she fell.  Mr Yates then kicked the victim to the face while she was on the ground, before leaving the area.  The victim required two stitches to the left side of her lip, and suffered grazing and swelling to her left knee and elbow.  Although the offence has no apparent sexual connotation, it does shed light on Mr Yates' attitude towards women.

3. This offence was ultimately dealt with by the court which sentenced Mr Yates in relation to various other offences on 10 August 2009.  He received a sentence of 6 months imprisonment for this particular offence, cumulative upon the sentences imposed for other offences.

4. A few days after committing that offence, Mr Yates committed various driving offences in Laverton, including driving under the influence of alcohol, driving an unlicensed vehicle, driving without a driver's licence, and failing to wear a seatbelt.  He was released on bail in respect of both the assault and driving offences, but breached bail by failing to appear in the Kalgoorlie and Laverton Magistrates Courts respectively.

5. In August 2008, Mr Yates committed the offence of reckless driving at Warakurna, by driving a Pajero four‑wheel drive through the community at great speed, causing it to fish‑tail and roll onto its side.

6. On 2 October 2008, Mr Yates again failed to attend to answer his bail undertaking, and proceedings for breach were brought against him.

The third sexual offence

1. On 9 January 2009, Mr Yates committed a number of serious offences, including unlawful detention, threatening to kill and sexually penetrating a child between the age of 13 and 16 years.  The victim was 15 years old at the time of the offences.  She had travelled to Laverton from the community in which she lives for a funeral.  On the night in question, Mr Yates offered to give the victim, her female cousin and her aunty a lift in his car from camp into town.  He drove the car so fast that it scared the occupants of the vehicle.  He drove through the Laverton township where he was supposed to be taking them.  Along the way Mr Yates repeatedly made sexual remarks towards the women, telling them to undress so he could have sex with them.  He made various threats as to what would happen if they did not comply - including that he would slit their throats or rape them.

2. Mr Yates drove the vehicle off the main road on to a small dirt track.  It was dark and the occupants of the vehicle were scared.  He was observed to be sniffing a lot while driving the car, and the victim thought he was sniffing petrol.  Mr Yates parked the vehicle in a remote spot and said that one of the occupants of the vehicle was going to have sex with him.  When they refused, he spun the car around at high speed.

3. After stopping the vehicle, Mr Yates threw a rock through the rear window of the vehicle and told the women inside the car that it was their last warning.  The women left the vehicle, but Mr Yates forced the victim into the back seat of the car by threatening her.  He forced her to remove her pants with a threat that he would kill her.  Mr Yates then had sexual intercourse with the victim against her wishes, in the course of which he threatened to punch her.  Mr Yates then drove the women back to the town, threatening to kill them if they told police what had happened.

4. Mr Yates was apprehended the following day and participated in a video‑recorded interview.  He admitted having sex with the victim, but asserted that one of the older women forced the victim to have sex.  He also admitted that he had been sniffing spray paint at the time of the incident.  He had also been drinking earlier that day.

5. Mr Yates pleaded guilty to the charges brought against him, and was remanded in custody.  The author of a pre‑sentence report noted that although Mr Yates had reluctantly acknowledged his guilt, he made repeated attempts to justify his actions and minimised his responsibility, citing his heavy use of solvents and alcohol in the hours preceding the offence.  He also attempted to normalise the offence by suggesting that young women in the local community routinely engaged in sexual activity in exchange for petrol and drugs.  He denied threatening the victim, expressed no remorse, and conveyed a strong sense of self‑justification and sexual entitlement.

6. The author of the report noted the connection between the abuse of petrol and alcohol in Mr Yates' prior offending behaviour, and expressed the view that there was no apparent motivation to cease the use of those substances.  Taking all matters into account, the author expressed the view that 'the potential for future violent, sexual and general offending appears very high'.  The author recommended against community supervision and parole eligibility.

7. A pre‑sentence psychological report was also prepared.  The author of that report noted that Mr Yates minimised, justified and excused his behaviour by blaming his offending on substance abuse, and his continued assertion that the victim was forced to have sex with him by her aunty.  The author concluded that this suggested little capacity for empathy or compassion, and noted that Mr Yates displayed no remorse or regret.

8. The author of the report noted that Mr Yates' intellectual functioning appeared to be below average, and that previous neuropsychological screening indicated borderline intellectual functioning, with the possibility of some form of acquired minor brain injury as a result of substance abuse.

9. The author relied upon the application of the STATIC‑99 risk assessment measure, which placed Mr Yates in the high risk category, relative to other adult male sex offenders, in terms of the chances of sexually reoffending within a five‑year period.

10. As I have noted, on 10 August 2009, Mr Yates was sentenced in relation to the various outstanding charges pending against him.  He received a total effective sentence of 4 years and 6 months imprisonment without eligibility for parole, backdated to 10 January 2009 when he was taken into custody.  He also received a number of fines and driving disqualifications.  Prior to the expiry of that term of imprisonment on 9 July 2013, these proceedings were commenced, and an order was made under div 1 of the Act, the effect of which was to detain Mr Yates in custody until the conclusion of these proceedings.

11. In the meantime, in March 2011, Mr Yates declined to participate in the Indigenous Men's Sex Offender Programme.  He also declined to participate in the Legal and Social Awareness Programme at a date which cannot be ascertained.  In April 2013 another booking for participation in the Legal and Social Awareness Programme was cancelled, because the programme was due to finish after his sentence was complete.  Mr Yates' Individual Management Plan records also show that he was booked in a Violent Offenders Intensive Programme and an Indigenous Men Managing Anger and Substance Abuse Programme.  However, at all events he did not complete either programme.

The psychiatric evidence

1. Prior to the div 2 hearing under the Act, Mr Yates was assessed by Dr Peter Wynn Owen, who is a consultant forensic psychiatrist with considerable experience in the assessment of sexual offenders for the purposes of the Act.  He interviewed Mr Yates on two occasions totalling approximately five and a half hours, and reviewed the large volume of materials which have been tendered in evidence.

2. In his report, Dr Wynn Owen noted that Mr Yates' attitude to his sexual offending revealed:

   [C]onsistent themes of denial, minimisation, in particular minimising and/or denying the level of violence used; attribution of blame to others; and suggesting that he was not in control due to intoxication.  He expressed no remorse when questioned about any past sexual offending and did not demonstrate any understanding of the impact his behaviour may have on his victims in the short or longer term.

3. Dr Wynn Owen noted that intoxication, particularly involving alcohol and/or inhalants, was common to much of Mr Yates' offending behaviour, although not always a factor, as was evident in his serious assault of the community nurse in Warakurna in 2002.  Dr Wynn Owen also noted Mr Yates' history of misconduct while in prison, including repeated use of solvents, his escapes from legal custody and breaches of bail.

4. Dr Wynn Owen noted that Mr Yates planned to return to Warakurna to live with his brother, and did not expect any difficulty in returning to that community.  Although Mr Yates expressed confidence that he would not reoffend, Dr Wynn Owen noted that it was not clear that Mr Yates would cease the use of alcohol or other substances.  Dr Wynn Owen concluded that those plans appeared superficial and unrealistic, and took no account of the specific risk factors related to Mr Yates' offending, or the community tensions which were likely to exist in the event of his return to Warakurna.

5. Dr Wynn Owen applied a number of risk assessment techniques with a view to assessing the likelihood of Mr Yates committing further serious sexual offences.  The first technique he applied was the 3‑Predictor model.  That has been found to be the most reliable tool for predicting reoffending risk in Indigenous Australian offenders.  Three factors are assessed, and a positive finding in respect of two out of the three factors suggests a high likelihood of reoffending.  The three factors are poor coping skills, unfeasible release plans, and unrealistic long‑term goals.  Dr Wynn Owen concluded that all three factors were present in the case of Mr Yates, which suggested a high but unquantifiable likelihood of sexual reoffending.  However, in cross‑examination Dr Wynn Owen conceded that as a stand‑alone measure, the three predictor model had not been validated by research, although it did show consistency with indicators used in other assessment tools that are applicable to offenders from non‑indigenous cultures.

6. Dr Wynn Owen also utilised the STATIC‑99‑R test, while noting that recent research suggested that the test had limited predictive validity in the assessment of sexual offending risk among Indigenous Australian sexual offenders.  Amongst that cohort, the test had been assessed as better at predicting the risk of violent reoffending.

7. During his oral evidence, Dr Wynn Owen stated that the research suggested that, if anything, the STATIC‑99 test was likely to under‑estimate the risk of reoffending amongst Indigenous Australian offenders.

8. Dr Wynn Owen noted that if Mr Yates had been a non‑Aboriginal sexual offender, application of the STATIC‑99 test would place him in the high risk group for reoffending, which, in numerical terms, would indicate a likelihood that 40% of offenders would commit another sexual offence within five years of release.  During cross‑examination he made clear that this risk was in relation to any form of sexual reoffending, as opposed to offences defined as 'serious sexual offences' for the purposes of the Act.  He also accepted that he would not, himself, adopt the quantification of a 40% risk of reoffending over the next five years, given the uncertainty pertaining to the validity of this assessment technique in relation to Indigenous Australian offenders.  Rather, he had formed his own view of the level of risk, without attempting to quantify that in mathematical terms, and without placing significant reliance upon the STATIC‑99 test.

9. Another measure applied by Dr Wynn Owen was the Risk for Sexual Violence Protocol (RSVP).  However, Dr Wynn Owen noted that, as with the STATIC‑99 test, the literature utilised for the purposes of identifying the various risk factors which should be considered did not include specific cohorts of Indigenous Australian offenders, which qualified the weight which could be placed upon the measure.  He also accepted in cross‑examination that the RSVP protocol was more of a management tool for offenders, than a predictor of risk.

10. Dr Wynn Owen observed that many of the risk factors which have been identified with higher risks of sexual reoffending were present in the case of Mr Yates.  Those factors included persistent and frequent sexual violence, the escalation of sexual violence, having regard to the fact that the more recent offence was committed against a child, the use of physical and psychological coercion, extreme minimisation or denial of sexual violence, together with attitudes which supported or condoned sexual violence, through a sense of sexual entitlement, tolerance and normalisation of his own offending and the offending of others.

11. Dr Wynn Owen also noted that Mr Yates does not demonstrate an understanding of his offensive behaviour, or the risk factors associated with his offending behaviour, indicating a lack of self‑awareness.  Dr Wynn Owen also noted that Mr Yates appeared to have significant problems coping with stress, evident in his repeated use of alcohol and inhalants, his rapid return to the use of such substances following each release from custody, and his regular use of inhalants while in custody.  Dr Wynn Owen noted that it was quite possible that cognitive impairment may have been sustained as a result of Mr Yates' long‑term use of inhalants, as frontal lobe damage is often associated with that behaviour.  If frontal lobe damage has been sustained, that would impede executive function and cause difficulties with planning, decision‑making, impulse control, and deterioration in the ability to judge right from wrong.

12. Dr Wynn Owen noted that a number of other risk factors were present in the area of social adjustment given Mr Yates's problems with intimate and non‑intimate relationships, and his long‑established patterns of non‑sexual criminality.

1. In the area of manageability, Dr Wynn Owen noted that Mr Yates has evident problems in planning and poor self‑management.  He has shown an inability to complete any significant programmes relevant to his offending behaviour, and has a demonstrated history of problems with supervision during his time in custody, including his escapes from legal custody, and his breaches of bail.

2. After considering those factors, Dr Wynn Owen expressed the view that the most likely re‑offence scenario was opportunistic rape of a female victim while Mr Yates was intoxicated.  The imminence of that offending behaviour would be related to how rapidly Mr Yates would turn to substance abuse on release, and that in the absence of any plans to address substance abuse that was likely to occur immediately, with the result that such an offence would occur within days or weeks of release.  In Dr Wynn Owen's view, if a victim failed to report a sexual offence committed by Mr Yates, he was likely to continue to offend until an offence was reported and Mr Yates was apprehended.  Dr Wynn Owen considered the likelihood of such an offence was high.

3. During cross‑examination Dr Wynn Owen conceded that research had not established that a number of factors identified in the RSVP measure were definitely connected with increased risk of reoffending, including minimisation, denial, low treatment motivation and lack of victim empathy.  However, as Dr Wynn Owen made clear, the research has not demonstrated that those factors are not related to risk - merely that the relationship to risk has not been empirically demonstrated to date.  In this context I would observe that both intuitively, and drawing upon one's experience of repeat offenders within the justice system, it is difficult to accept that these factors, if present, would not increase the likelihood of reoffending.

4. During cross‑examination Dr Wynn Owen also accepted that empirical research suggested that the two factors which most strongly correlated with an increased likelihood of reoffending were sexual deviance and psychopathy, neither of which were evidently present in the case of Mr Yates, although Dr Wynn Owen considered that Mr Yates might suffer from anti‑social personality disorder which is considered to be related to psychopathy.  In this context, Dr Wynn Owen observed that the number of times serious sexual offending behaviour had occurred in the past was strongly associated with the likelihood of reoffending, and in this case Mr Yates had committed violent sexual offences on three separate occasions over a protracted period from which could be extrapolated a high risk of reoffending.

5. In the summary contained within his written report, Dr Wynn Owen noted that it was not possible to express a view as to the likelihood of Mr Yates' apparent lack of control being attributed to underlying neurological damage, because appropriate neuropsychological assessment had not been undertaken.  In that context he expressed the view that neuropsychological assessment would potentially assist in understanding the level of future risk, and would also assist in the identification of appropriate treatment modalities.  During cross‑examination, Dr Wynn Owen expanded upon those views, and indicated that neuropsychological assessment might indicate the extent to which Mr Yates was capable of learning and responding effectively to programmes aimed at behavioural modification.  However, if neuropsychological assessment showed significant cognitive impairment, this would suggest that the risk of reoffending was high, and that the prospect of behavioural modification through programmatic intervention was reduced.

6. Dr Wynn Owen concluded his report with the following summation:

   At present Mr Yates, on the basis of patterns of behaviour following release in the past, presents a high likelihood of serious violent and sexually violent reoffending within a short time following release.  While this cannot be quantified using actuarial tools there have been no interventions other than imprisonment to address his risk, history is therefore likely to repeat itself, particularly if he returns to an environment containing ongoing stressors where offences have previously occurred.

7. In this context Dr Wynn Owen expressed the view that it would be extremely risky for Mr Yates to return to Warakurna, given the offending behaviour which had occurred in that environment in the past, and the very limited capability for monitoring and supervision in that remote community.

8. In his written report, Dr Wynn Owen made the following recommendations:

   (i)Neuropsychological assessment plus/minus any indicated neuroimaging to establish presence of brain damage and cognitive dysfunction, established level of cognitive dysfunction if present, identify ability to engage in therapeutic intervention and thereby tailor interventions to meet needs.

   (ii)Sex Offender Treatment via appropriate modality if Mr Yates deemed suitable following detailed neuropsychological assessment

   (iii)Participation in a program(s) to address substance abuse tailored to meet his needs on the basis of findings from (i)

   (iv)Careful consideration of appropriate release placement taking into account access to supervision and monitoring to mitigate risk of reoffending

9. In cross‑examination, Dr Wynn Owen added a recommendation to the effect that it would be highly desirable for arrangements to be made for Mr Yates to form a relationship with a mentor/social trainer - ideally from his own cultural background.  In his view it would be preferable for that relationship to commence prior to Mr Yates' release from custody.

10. During re-examination, Dr Wynn Owen was asked about the lack of resources available to monitor and supervise Mr Yates in a remote community such as Warakurna.  In that context, he was asked to express a view with respect to the risk of reoffending if Mr Yates were to be released into residential accommodation in the metropolitan area.  In response, Dr Wynn Owen expressed the view that Mr Yates would be more at risk in the metropolitan area because it would be a completely unfamiliar environment, in which Mr Yates has no established links or supports, other than one friend who visits him in prison from time to time.

11. The other psychiatrist who assessed Mr Yates in accordance with the div 1 of the Act was Dr Gosia Wojnarowska.  She is also a consultant psychiatrist with considerable experience in the assessment of offenders pursuant to the provisions of the Act.  Dr Wojnarowska is the clinical director of the Frankland Centre, which is the inpatient unit of the State Forensic Services of Western Australia.

12. Dr Wojnarowska also undertook two lengthy interviews with Mr Yates, totalling six hours in duration, and reviewed the voluminous materials that have been presented to the court.  During her interviews, Dr Wojnarowska asked Mr Yates for his account of the offence which led to his most recent imprisonment.  During the first interview she noted that Mr Yates continued to minimise the severity of his offending and to project blame onto the older woman, and upon his intoxicated state.  She noted that there was no evidence of remorse regarding the sexual assault, nor any sense of acceptance of responsibility for his actions.  Dr Wojnarowska noted that during the second interview, Mr Yates gave inconsistent versions of the offence, saying at one point that he had never had sex with the victim, and at another point, that he only had sex with her because her aunty told him to do it.

13. In her report, Dr Wojnarowska made a number of observations with respect to the circumstances of Mr Yates' sexual offending.  She noted that his offences were frequent, having regard to the relatively brief periods of time that he has not been incarcerated since becoming an adult, and that the offences were opportunistic in nature.  Although there was no evidence of grooming, there was evidence of violence or threats of violence in each case, and the violence used was disproportionate to the intended objective of subduing his victims.  Dr Wojnarowska also noted that the scale of Mr Yates' offending was escalating, having regard to the most recent offence which was committed against a child and also involved the deprivation of liberty.  She also noted that on each occasion Mr Yates was intoxicated with either alcohol or inhalants or both, and that he had feelings of anger towards his victims.

14. During the interviews, Dr Wojnarowska made inquiries into Mr Yates' emotional and behavioural regulation.  Mr Yates denied a history of deliberate risk taking behaviour but described a lifestyle whereby he would engage in substance abuse on a regular basis.  He accepted that he was short tempered but denied being aggressive, except when under the influence of alcohol or inhalants.  On inquiry into his sense of empathy, Mr Yates struggled to understand the concept.  When asked if he was remorseful about the offence for which he was most recently incarcerated, Mr Yates said that he was angry with the victim for reporting the offence, and with her aunty for forcing him to have intercourse with the victim, consistent with his own feelings of victimisation.

15. Dr Wojnarowska also inquired into Mr Yates' attitude towards treatment programmes aimed at his offending behaviour.  She reported that Mr Yates maintained that he was not a sex offender, and that he did not require a sex offender treatment programme, and also denied requiring any counselling in relation to his substance abuse.  Although he expressed some interest in the anger management programme, he added that he was only angry when drunk or sniffing petrol.

16. In her report, Dr Wojnarowska formulated her diagnosis in these terms:

    Mr Yates presents with cognitive distortions including denial, minimisation and justification in relation to his violence, as well as abrogation of personal responsibility for his behaviour.  He is entitled and quotes racial discrimination as the reasons for his current predicament.  He exhibits major deficits in empathy and remorse and continues to deny that he ever committed a sexual offence.  He also presents with major misconceptions about women and relationships which, according to Mr Yates, are representative of his cultural background and also represent his family member's [sic] views.  He has no insight into his entrenched pattern of drinking alcohol and using solvents.  He possesses a strong, negative attitude towards authority figures and towards women.  He has a remarkably long history of generalist offending and frequent imprisonment.  His presentation is consistent with a diagnosis of antisocial personality disorder and alcohol and solvent abuse.  He presented as an inconsistent and unreliable historian and therefore it would be difficult to comment on relevant factors that informed his personality style and current life trajectory.

17. Dr Wojnarowska used a number of techniques to inform her assessment of the likelihood of Mr Yates committing further serious sexual offences.  In cross‑examination she conceded that all the tools currently available were suboptimal.  In particular, she did not use the STATIC‑99 or the STATEC‑99‑R test because she considered them to be unreliable predictors of sexual offending amongst Indigenous Australian offenders, although they were more reliable predictors of violent reoffending amongst that cohort of offenders.

18. Dr Wojnarowska applied the PCL‑R test which is relevant to the assessment of psychopathy.  She noted that Mr Yates' score was in the high range, but below the threshold to confirm psychopathy.  She noted that individuals with a score in the high range have been demonstrated to sexually reoffend more quickly than others, and are more likely than those with lower scores to commit general or violent non‑sexual offences.  She concluded that aspects of Mr Yates' score on this test were consistent with a diagnosis of anti‑social personality disorder.

19. Dr Wojnarowska applied a test known as HCR‑20 version III, which endeavours to assess the risk of reoffending.  Using that test, she assessed Mr Yates' risk of reoffending generally as high, although, as I would understand her evidence, this test is not focused upon the risk of sexual reoffending but rather on the risk of violent reoffending.

20. Like Dr Wynn Owen, Dr Wojnarowska also had regard to the RSVP test.  She agreed with the proposition that RSVP was more concerned with the management of offenders than predicting the risk of sexual reoffending.  Generally speaking, Dr Wojnarowska identified the same factors relevant to the application of this measure as Dr Wynn Owen, and arrived at the same conclusions.  Like Dr Wynn Owen, she accepted that there was presently no empirical evidence to support the proposition that factors like minimisation, denial or lack of empathy increased the risk of reoffending.  As with Dr Wynn Owen, she confirmed that this does not necessarily mean that these factors are unrelated to the risk of reoffending, but rather, that any relationship between these factors and the risk of reoffending has not yet been demonstrated empirically.

21. Dr Wojnarowska also utilised the 3‑Predictor model and found, as did Dr Wynn Owen, that all three risk factors were present, which reinforced the conclusion that the risk of reoffending was high.

22. In her written report, Dr Wojnarowska concluded:

    Mr Yates is at high risk of reoffending if not subject to a continuing detention order.  The essence of Mr Yates' risk lies in his previous offending behaviour, unaddressed sexual offending treatment needs which include denial of sexual offending and other cognitive distortions, negative attitudes towards women, antisocial personality structure with a marked propensity for violence, unaddressed substance use treatment needs with a high likelihood of resuming alcohol and solvent use, and limited prospects for successful supervision.

23. Dr Wojnarowska identified a number of issues which were particularly significant.  They included her assessment that there was a very high likelihood that Mr Yates would resume drinking and using solvents within a short time after release, which would likely lead to reoffending.  Further, Dr Wojnarowska observed that Mr Yates has made no progress in relation to empathy or in addressing his negative attitudes towards women.  In terms of non‑custodial options, Dr Wojnarowska considered that the risk of reoffending would be exacerbated if Mr Yates were to live in a remote community with corresponding limits upon access to treatment and supervision, and that wherever Mr Yates was located, his sense of entitlement and his negative attitude towards authority suggested a reasonable likelihood of failure to comply with the conditions of a supervision order.

24. In her oral evidence, Dr Wojnarowska clarified that in her view the reoffending behaviour which was likely if Mr Yates was released was sexual reoffending, which could be serious violent sexual reoffending.

25. Dr Wojnarowska expressed the view that if Mr Yates is detained in custody, future intervention should target areas of sex offending, anger management, substance abuse and cognitive skills.  She strongly suggested neuropsychological testing for the purpose of establishing Mr Yates' capacity to learn information prior to any decisions being made with respect to the type of programmes to be provided to Mr Yates.  Like Dr Wynn Owen, Dr Wojnarowska recommended the engagement of an Indigenous mentor/social trainer who would ideally develop a relationship with Mr Yates before his release from custody, and then continue to provide support following his release.  Although she noted the limited capacity for supervision and treatment in a remote community such as Warakurna, Dr Wojnarowska expressed major concerns if Mr Yates were to remain in the metropolitan area, where he had virtually no support systems.

Neuropsychological assessment

1. When this matter first came before me for substantive hearing, counsel for Mr Yates applied for an adjournment in order that a neuropsychological assessment of Mr Yates could be undertaken.  The application for adjournment was not opposed by the DPP, and given that each psychiatrist had recommended neuropsychological assessment as the first step in any future programme aimed at reducing the risk of Mr Yates' reoffending, it seemed to me that evidence of that character was material to the issues which had to be addressed.  Accordingly, I granted the adjournment, and arrangements were made for Mr Yates to be assessed by Dr Jonson Moyle, who is a clinical neuropsychologist.  Unfortunately, shortly before the consultation took place, Mr Yates was informed of the death of a relative.  At their first meeting Mr Yates advised Dr Moyle that he did not wish to undertake the assessment, referring to the death of his relative.  Arrangements were made for the assessment to be undertaken the following week.

2. However, before the scheduled appointment, Dr Moyle was advised by the Department of Corrective Services that Mr Yates had indicated that he was not willing to undertake the assessment and the appointment was cancelled.  Accordingly, Dr Moyle was unable to proffer any meaningful view in relation to Mr Yates' cognitive capacity, or the extent to which that capacity may have been affected by substance abuse in the past.

Treatment options

1. Evidence was led from Mr David Summerton, who is a psychologist working with the Dangerous Sex Offender Psychology Team at the Department of Corrective Services.  Mr Summerton spoke to a written report which he had prepared and which was also part of the book of documents tendered.  That report covered the extent to which Mr Yates had engaged in treatment programmes during his incarceration, and which I have set out above as part of the chronological sequence.  Mr Summerton summarised that history in these terms:

   In summary, Mr Yates has been assessed as having significant needs for intervention over his numerous periods of incarceration.  His criminogenic needs encompass factors related to sexual and violent offending along with an extensive substance abuse history.  He has been involved in limited intervention during the course of his frequent and extended stays in prison and specifically, he has not completed any programs during his two most recent periods of imprisonment.  There have been questions regarding his cognitive functioning although to date he has been assessed as suitable for mainstream programs.  His treatment needs remain largely unaddressed.  Motivation has been a factor in his nonparticipation in programs over time, while more recently security issues and program scheduling have also impeded his participation.

2. Mr Summerton's report identifies the programmes which might be available to Mr Yates in the event that an order for his continuing detention is made.  Those programmes include three different sex offender programmes, a programme aimed at violent offenders, a programme directed at offending conduct associated with substance abuse, and individual psychological counselling.  Mr Summerton's evidence was that if Mr Yates is made subject to a continuing detention order, a process of assessment would be undertaken with a view to identifying an appropriate treatment programme suitable to Mr Yates' particular needs and circumstances.

3. During his oral evidence, Mr Summerton was asked about the practicality of arranging an appropriately qualified Indigenous mentor.  His evidence was generally to the effect that while there may well be practical difficulties in making such arrangements, and that those difficulties were not easily overcome, there was at least some prospect that such arrangements might be made by the Department of Corrective Services.

4. Ms Julie Dabala is a senior community corrections officer employed by the Department of Corrective Services.  She prepared two reports dealing with the arrangements that might be made if Mr Yates was made subject to a supervision order under the Act.  Those reports were tendered and augmented by Ms Dabala's oral evidence.

1. Mr Yates advised Ms Dabala that he proposed to return to Warakurna following his release to live with his older brother.  Mr Yates' mother also resides at Warakurna, but she is of advanced years and suffers the effects of old age and dementia.

2. As Warakurna is approximately 1,200 kms from the nearest community corrections centre at Kalgoorlie, supervision by a community corrections officer would have to occur by way of weekly telephone calls, and fortnightly visits.  Those visits would, however, be subject to weather and road conditions.  Although there is a multifunctional police centre approximately 4 kms from Warakurna, police advised that they would have limited capacity to monitor Mr Yates, as there are only three police officers stationed in Warakurna (two officers provided by WA Police and one officer provided by NT police), with responsibility for three additional communities other than Warakurna.  The ability of police to conduct home visits and/or breath analysis would be restricted.

3. Police advised Ms Dabala that Mr Yates' brother had a daughter, aged 6, who often resides with her father.  Mr Yates' younger brother also resides at the property.  Both of Mr Yates' brothers have significant criminal records including convictions relating to the possession of deleterious substances.

4. Ms Dabala was advised that the Warakurna community had approved Mr Yates' return to the community, notwithstanding concerns which had been expressed by residents of Warakurna, including community staff. 

5. There are no treatment programmes or therapeutic interventions available in the central desert area, including Warakurna.

6. The victim of Mr Yates' most recent sexual offence resides in a community approximately 100 kms from Warakurna.  She made it clear that she would have concerns for her safety if Mr Yates was released and permitted to return to Warakurna.

7. In her supplementary report, Ms Dabala noted that since word of Mr Yates' possible release from custody and return to Warakurna had spread through the Warakurna community, a number of residents had expressed concern, and had given consideration to obtaining restraining orders against him.

8. During cross‑examination, Ms Dabala stated that a GPS tracking bracelet could only monitor Mr Yates' movements while he was in the Warakurna township, and would not work if he left the immediate area of the townsite given the absence of mobile telephone reception outside that area.  She confirmed that there would be a much wider range of counselling services available in the Perth metropolitan area, if Mr Yates were released into the community of Perth.  That is one of the factors that caused Ms Dabala to express the view that residence in Warakurna would only be feasible for Mr Yates in the longer‑term, and that, if he were released from custody, it would be preferable for him to remain in the metropolitan area in the first instance.  In relation to the possibility of providing a mentor or trainer for Mr Yates, Ms Dabala stated that resources of that kind were not available within the Department of Corrective Services.  Rather, they would depend upon the provision of such a service by a non‑government organisation.  She corroborated the evidence given by Mr Summerton to the effect that the identification and engagement of such persons is very difficult.  It was, however, something which could be attempted.

Section 7 factors

1. Having set out the relevant facts, and summarised the relevant findings of the psychiatrists and departmental officers in relation to Mr Yates' risk profile, management needs and options, an assessment can be made as to whether Mr Yates is a serious danger to the community. As I have noted, s 7(3) of the Act requires the court to have regard to a number of specific factors before deciding this question, which collectively can be used to determine whether there is an unacceptable risk that if he or she were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. I will now address each of those specific factors.

(a)     the psychiatric reports

1. The evidence given by Dr Wynn Owen and Dr Wojnarowska was entirely consistent and credible.  There is no evidence to the contrary.  I have no hesitation in accepting their evidence in its entirety.

2. Each psychiatrist has expressed the view that there is a high risk that Mr Yates would commit a serious sexual offence if released from custody.  Ultimately, of course, the assessment of risk is a matter for the court, rather than the relevant psychiatrists, but the reasoning processes enunciated by the psychiatrists in the course of their reports and evidence are of assistance to the court in the formulation of its view.  Each psychiatrist properly accepted that there are limitations upon the reliability and validity of the various measures and tests which have been developed by psychiatrists and psychologists in this field, particularly given Mr Yates' Aboriginality.  Neither attempted to quantify the risk of reoffending in mathematical terms, which is entirely appropriate.  Expression of the risk of recidivism in any particular case in mathematical terms creates a misleading impression of precision and accuracy with respect to an issue which necessarily defies mathematical precision and accuracy, as it involves the prediction of future human behaviour.

3. The evidence of the psychiatrists confirmed what we all know from human experience - namely, that the best guide to likely future behaviour is past behaviour.  Mr Yates has committed three serious sexual offences.  Two of those offences were committed shortly after his release from custody.  All three offences involved the use of force and violence to subjugate a vulnerable female to his will.  All offences were associated with intoxication and/or substance abuse, and Mr Yates' long‑standing reliance upon alcohol and solvents makes it highly likely that he would revert to his use of those substances if released from custody, thereby significantly increasing the risk of all reoffending, but in particular reoffending by committing serious sexual offences.

4. Each of the psychiatrists recommended neuropsychological assessment in order to ascertain whether Mr Yates suffered cognitive impairment, particularly frontal lobe damage, as a result of his sustained use of solvents.  The results of such an assessment would be relevant to the assessment of issues arising under the Act in two respects.  First, if Mr Yates does suffer cognitive impairment, this would support a conclusion that he is likely to have continuing difficulty in controlling his impulses, which in turn would increase the assessment of the risk of him reoffending.  Second, if Mr Yates suffers cognitive impairment, it would make it less likely that he has the capacity to benefit from programmes directed at behavioural modification.  Conversely, if Mr Yates does not suffer cognitive impairment, he may have the capacity to learn through participation in programmes, and the risk of reoffending might diminish.

(b)     any other psychological assessment

1. As I have noted, attempts were made to assess Mr Yates from a neuropsychological perspective.  The timing of those attempts was unfortunate, and ultimately they failed.  It is, however, clear from the evidence that neuropsychological assessment is an essential, indeed critical, step in assessing the likelihood of Mr Yates reoffending, and the programmes and techniques that might best be adopted to reduce that risk.  For that reason, at the conclusion of the hearing, I indicated my view that it was highly desirable for efforts to obtain neuropsychological assessment to be renewed.  The other assessments of Mr Yates' offending behaviour and risk of reoffending contained within the tendered book of documents, generally prepared on a pre‑sentence basis, lack the immediacy of those reports prepared for this hearing, thereby diminishing their probative force.  However, there is nothing in those reports to expressly contradict the findings of Dr Wynn Owen and Dr Wojnarowska, and in fact the general effect of those reports is consistent with those findings, particularly in relation to Mr Yates' substance abuse issues and lack of empathy.

(c)     propensity to commit serious sexual offences in the future

1. Mr Yates has been convicted of three serious sexual offences.  The offence which he committed against the community nurse at Warakurna clearly has a sexual connotation.  There is no reason to think that any of the circumstances or underlying personal and behavioural factors which contributed to the commission of those offences by Mr Yates has changed in any material respect.  To the contrary, there is every reason to think that Mr Yates is likely to commit further offences of this nature if released from custody.

(d)     patterns of offending behaviour

1. Mr Yates is a chronic recidivist offender.  He has spent most of his adult life incarcerated.  He has commonly resumed his pattern of offending behaviour within days of release.  That pattern of offending behaviour is often, but not invariably, associated with alcohol and substance abuse.  However, Mr Yates apparently lacks any insight into the risks created by his dependence upon alcohol and the inhalation of solvents, or any motivation to change that dependence or to behave in a way which conforms to community standards and expectations.  It is clear that he has developed characteristic responses to his offending behaviour which include an almost complete lack of empathy for his victim or remorse, minimisation or denial of his own role in the offending behaviour and attribution of blame to others, and an almost total lack of insight into the causes of his offending behaviour.  In my view, those factors increase the likelihood that Mr Yates will reoffend if released from custody, including reoffending by committing serious sexual offences.  I hold that view because it accords with common human experience, irrespective of whether or not empirical evidence to support a correlation between these factors and reoffending is to be found in the psychiatric literature.

(e)     efforts to address the causes of offending behaving, including participation in rehabilitation programmes

1. I have set out my findings with respect to Mr Yates' conspicuous failure to participate effectively in any programme likely to modify his behaviour in any relevant sense, and his complete lack of effort to address the cause or causes of his offending behaviour.  No doubt these matters can be attributed, at least in part, to Mr Yates' lack of insight into the causes of his offending behaviour.  It may also be the case that Mr Yates' level of cognitive function has affected his disposition to the rehabilitative programmes in which he has been enrolled.  His failure to participate effectively in rehabilitative programmes while incarcerated causes me to conclude that it is unlikely that he would participate in any such programmes, or respond favourably to supervision or therapeutic intervention in a community setting.

(f)     whether or not rehabilitation has had a positive effect

1. As Mr Yates has not participated effectively in any relevant rehabilitation programme, it follows that none have had a positive effect upon him.

2. Both psychiatrists suggested that Mr Yates was likely to gain most benefit from engagement with a cultural mentor or social trainer, particularly if that person shared Mr Yates' cultural heritage.  I appreciate the difficulties involved in identifying and engaging such a person.  However, as I observed at the conclusion of the hearing, it is highly desirable that every effort be made to identify and engage such a person.  On the information currently available to me, there would seem to be a significant risk that Mr Yates will be incarcerated for a lengthy period unless all possible steps are taken to reduce the risk of him reoffending upon release.  Given his failure to respond to mainstream programmes, this makes the need to adopt unconventional measures of paramount importance if lengthy incarceration is to be avoided.

(g)     antecedents and criminal record

1. I have set out Mr Yates' criminal record in detail.  Its length and the frequency of offending must inevitably lead to the conclusion that Mr Yates has demonstrated an inability to conform to the norms and standards of behaviour expected by a civilised society.  That is the context in which his serious sexual offending must be assessed.  That context reinforces my conclusion that the risk of Mr Yates committing further serious sexual offences if released from custody is high.

(h)     the risk that the person would commit a serious sexual offence if not subjected to an order under the Act

1. See above.

1. the need to protect members of the community from risk

1. Because I assess that the risk of Mr Yates committing further serious sexual offences if released from custody as high, it follows that there is a significant need to protect members of the community from that risk.  The sexual offences committed by Mr Yates in the past not only meet the Act's definition of 'serious', but are, on any view, towards the more serious end of the spectrum of sexual offending, involving the use of force and violence to sexually penetrate vulnerable women without their consent.  A significant risk that Mr Yates might commit further offences of that character is 'an unacceptable risk' in the sense of that phrase explained by Wheeler JA in Williams [63] ‑ [65], notwithstanding that Mr Yates has already been punished for all of the offences of which he has been convicted.

Conclusion

1. Having regard to the factors which I am required to take into account under s 7 of the Act, I have no doubt that there is an unacceptable risk that if Mr Yates is not made subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. It follows that I find he is a serious danger to the community. As a result of that finding, under s 17 of the Act I must now consider whether Mr Yates should be detained in custody for an indefinite term for control, care and treatment, or whether he can be released into the community under supervision and subject to conditions.

2. It will be apparent from the observations I have made, that at this stage at least, I have no doubt that the only order which will adequately protect the community from the risk which Mr Yates presents is a continuing detention order.  The risks and difficulties associated with the supervision of Mr Yates in the community are so great as to render that course unacceptable and impractical, and at this stage, it has not been demonstrated that Mr Yates would respond to treatment in a community context.

3. Of course this is not to say that there might not come a time at some point in the future where circumstances have changed sufficiently to support the conclusion that Mr Yates' supervision within the community would represent an acceptable risk.  However, if that point is ever to be reached, significant effort and resources will have to be applied to the management and treatment of Mr Yates.  As I have indicated, those resources must include neuropsychological assessment and should include the engagement of a culturally appropriate trainer/mentor who could hopefully develop a relationship with Mr Yates during his continuing detention.  The results of the neuropsychological assessment might also enable a view to be formed as to whether rehabilitation programmes are likely to offer any benefits to Mr Yates, and if so, as to the most desirable form of such a programme or programmes.

4. If there does come a point in time at which Mr Yates' release into the community can be seriously considered, difficult questions will arise as to the most appropriate arrangements for his supervision in the community.  Those difficulties will be significantly exacerbated by the fact that Mr Yates has spent virtually all his time at liberty, and has virtually all his connections and ties in remote parts of the central desert, where there are inevitably limited resources available for supervision and treatment.  On the other hand, release of Mr Yates on condition that he reside within the metropolitan area carries its own significant risks, given his lack of familiarity with the metropolitan area and his almost total lack of support or connection with anyone in that area.  Unfortunately these dilemmas are not novel in this area of the court's jurisdiction, nor is there any ready or obvious solution to them.  However, any meaningful programme of treatment and management aimed at returning Mr Yates to the community must necessarily grapple with these difficult issues.

5. For these reasons there will be an order that Mr Yates be detained in custody for an indefinite term for control, care and treatment.