The State of Western Australia v A [No 3]
[2020] WASC 51
•21 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- A [No 3] [2020] WASC 51
CORAM: CORBOY J
HEARD: 19 DECEMBER 2019
DELIVERED : 21 FEBRUARY 2020
FILE NO/S: DSO 1 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
A
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application to rescind supervision order - Whether respondent will substantially comply with the standard conditions of the order - Whether community will be adequately protected if the order is not rescinded and the responded released from custody
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 18, s 22, s 23
Result:
Supervision order rescinded
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr P G Giudice |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | George Giudice Law Chambers |
Case(s) referred to in decision(s):
Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 206; 35 WAR 297
The State of Western Australia v A [2018] WASC 250
CORBOY J:
The Contravention Application
The respondent has been convicted of various serious sexual offences.[1] In 2018, he was found to be a serious danger to the community. He was released from custody subject to a supervision order (the Supervision Order) made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act): The State of Western Australia v A.[2]
[1] The victims of the respondent's offending were children. Their names have been anonymised in these reasons. The citation for these proceedings has also been anonymised to protect the identity of the respondent's victims.
[2] The State of Western Australia v A [2018] WASC 250.
On 28 March 2019, the State made an application pursuant to s 22(2) of the DSO Act for orders under s 23(1)(a) or s 23(1A)(a) (the Contravention Application). The respondent was arrested the following day and brought before this court. Justice Jenkins adjourned the Contravention Application to 12 April 2019 for directions and ordered that the respondent be detained in custody until the hearing on 12 April 2019 or until further order of the court.
On 12 April 2019, Mitchell JA directed that the Contravention Application be heard on 30 July 2019 and ordered that the respondent be detained in custody until final determination of the application or further order of the court.
On 30 May 2019, the respondent applied for interim release from custody pending determination of the Contravention Application. The application was refused.
On 17 July 2019, orders were made vacating the hearing of the Contravention Application so that a report by a clinical neuropsychologist, Dr Vuletich, could be obtained. The request for a neuropsychological report was made on the recommendation of Dr Wynn Owen, a forensic psychiatrist. Dr Wynn Owen had previously examined the respondent and considered that a neuropsychological examination might assist in assessing aspects of the respondent's past behaviours and reported memory deficits.
Dr Vuletich provided her report on 4 November 2019 and the Contravention Application was heard on 19 December 2019. For the reasons that follow, I concluded that the Supervision Order should be rescinded and a continuing detention order made.
The relevant statutory framework
Section 23 of the DSO Act provides, in effect, that if the court is satisfied, on the balance of probabilities, that the person to whom an application under s 22 relates (the respondent) has contravened, is contravening or is likely to contravene a condition of a supervision order, the court must:
(a)rescind the supervision order and make a continuing detention order in relation to the respondent; or
(b)make an order amending the conditions of the supervision order or extending the period for which the respondent is to be subject to the supervision order or both; or
(c)make an order affirming the supervision order without amendment or extension of the period.
The court cannot make an order amending the conditions of a supervision order or affirming the order unless, on the balance of probabilities, it is satisfied that the respondent will substantially comply with the standard conditions of the supervision order. The onus of proof on the question of substantial compliance rests with the respondent. The paramount consideration in deciding what orders should be made under s 23 is the need to ensure the community is adequately protected.
Section 18(1) of the DSO Act prescribes the standard conditions that a supervision order must incorporate. The standard conditions include that the person in respect of whom the order is made:
(a)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer, including a direction for the purposes of s 19A or s 19B of the DSO Act; and
(b)be subject to electronic monitoring under s 19A;
(c)not commit a sexual offence as defined by s 36A of the Evidence Act 1906 (WA) during the period of the order.
Section 19A of the DSO Act empowers a community corrections officer to direct that a person subject to a supervision order wear an approved electronic monitoring device and to give any reasonable direction to the person necessary for the proper administration of the electronic monitoring of the person. Section 19B permits a community corrections officer to specify a curfew for a person subject to a supervision order.
The contraventions
Part A of the contravention particulars
The particulars of contravention provided by the State were divided into two parts: pt A alleged eight contraventions of the Supervision Order and pt B identified behaviour and conduct which the State alleged established that the respondent was likely to contravene the order.
The contraventions particularised in pt A were admitted by the respondent. In summary:
(1)On 29 November 2018, the respondent was separated from his personal carried unit (PCU) for a period of 28 minutes during which time his movements could not be electronically monitored. There was a period of seven minutes during which monitoring officers were unable to contact the respondent. They were then able to establish contact and the respondent remained in contact with the monitoring officers until he returned to his residence to retrieve the PCU. The respondent was interviewed by police officers from the Sex Offender Management Squad (SOMS) and admitted he had left his residence without the PCU. He stated he had forgotten to take the unit when he left to attend a doctor's appointment. He was charged with an offence under s 40A of the DSO Act and on 30 November 2018, he pleaded guilty to contravening a requirement of the Supervision Order without reasonable excuse. He was fined for that offence.
(2)On 23 January 2019, the respondent was directed by his community corrections officer to attend sessions of the sex offender maintenance program (SOMP). He was issued with a letter confirming the dates of the program sessions. The respondent failed to report for a scheduled SOMP session on 6 February 2019. He was subsequently charged with an offence under s 40A. He pleaded guilty to the charge on 9 February 2019 and was fined.
(3)On 17 February 2019, the respondent was approached by a neighbour and her young son. The neighbour spoke little or no English and her son acted as an interpreter during a conversation between the neighbour and the respondent. The respondent's contact with his neighbour's son was not authorised in advance by a community corrections officer as required by condition 44. The respondent was charged with an offence under s 40A and on 18 March 2019, he pleaded guilty to the offence and was fined. The respondent stated that the conversation had lasted for only about five minutes and was initiated by the neighbour to welcome him to the neighbourhood.
(4)The respondent failed to record his contact with the neighbour's son in his daily diary contrary to condition 38 of the Supervision Order. He also failed to inform his community corrections officer and SOMS the next day about the contact as required by condition 46. The respondent was charged with an offence under s 40A by reason of those matters. He pleaded guilty to the offence on 18 March 2019 and was fined.
(5)On 2 October 2018, the respondent was separated from his PCU for a period of 28 minutes during which time his movements could not be electronically monitored. He was not charged with an offence but was issued with a warning letter.
(6)On 17 November 2018, the respondent was separated from his PCU for a period of 10 minutes. He stated that he had been at a hydrotherapy pool and thought he was permitted to remove his PCU while swimming. He was not charged with an offence but was given an oral warning.
(7)On 25 February 2019, the respondent was issued with a direction by his community corrections officer that he was not to 'loiter, enter or attend any park area which contains child focus play equipment including all of the Kings Park and surrounding areas'. He was directed not to attend any such area without prior approval from a community corrections officer. He was subsequently given a further oral instruction not to enter Kings Park. On 26 February 2019, the respondent was at Kings Park for a period of approximately 50 minutes. He claimed to have been in the company of his mother while in the park. He was not charged with an offence but was given a written warning.
(8)As at 20 March 2019, the respondent was subject to a daily curfew. He breached the curfew on that day and was subsequently interviewed by SOMS officers concerning the breach. He was not charged with an offence but a written warning was issued.
Part B of the contravention particulars
The particulars of behaviour and conduct which the State alleged established that the respondent was likely to contravene the Supervision Order were extensive. In summary, the State alleged that:
(a)From about September 2018, the respondent reported accessing pornography sites online. He also reported feelings of attraction towards adolescent females in their teenage years from around the same time.
(b)The respondent reported he had joined an online group with the theme of bisexuality exploration in around November 2018. He disclosed, at around the same time, that he had met with an adult male via an online homosexual male dating site. The respondent denied any sexual contact with the male but he disclosed (contrary to previous information he had provided in supervision sessions) that he had engaged on one occasion in oral sex with a male prisoner while in prison.
(c)In January 2019, the respondent disclosed that he had become coordinator for a bisexual meet and greet group and he had been proactive online in initiating contact with people who had shown an interest in the group and promoting meet events. He continued to adopt a leadership position in the group despite warnings that he was precluded from undertaking such activities without prior approval from his community corrections officer.
(d)GPS checks and reviews of the respondent's diary indicated that he had spent considerable time attending group walks. It was ascertained that certain walk areas were close to playgrounds and it appeared that, on at least one occasion, the respondent had been loitering close to a play space.
(e)In February 2019, the respondent disclosed that he had communicated with a woman online and invited her back to his residence and that he had also disclosed to another woman that he was on parole.
(f)During a supervision session in late February 2019, the respondent disclosed that he had experienced difficulty since being released to the community in not looking at young females and having sexual thoughts about them. He claimed that he would not offend but admitted he found young females attractive.
In addition to those matters, the pt B particulars of contravention alleged that the respondent had:
(a)demonstrated ongoing impulsivity and proactive social interactions online without proper verification of the identity of the people he sought to attract, their age or other personal information;
(b)used pornography, including accessing images of adult Asian women of a young appearance, and used his mobile phone to access content related to children;
(c)accessed online sites apparently connected with adolescent females and communicated online with a 16 year old female;
(d)contact with an adult female, including by allowing her to visit his home, without prior approval from his community corrections officer and without disclosing the contact subsequently; and
(e)reported suicidal ideation and made threats of self‑harm due to anxiety and on 27 February 2019, he had sought an emergency consultation at Royal Perth Hospital due to concerns about his ability to cope without self‑harming or engaging in suicidal behaviours.
The State relied on an affidavit made by Timothy Keith Snow to prove the allegations made in pt B of the contravention particulars. Mr Snow is a senior community corrections officer, employed by the Department of Justice and attached to the community offender monitoring unit (COMU). He is the respondent's case manager. The statements made in his affidavit were from his own knowledge; from a review of records and files held by COMU and Department of Justice; from discussions with the respondent's former case manager, Ms Li'en Yun; and from information provided by the police. The book of materials included a statement from Ms Yun that also provided evidence about some of the matters alleged in pt B of the contravention particulars.[3]
[3] The book of materials also included statements from other Department of Justice employees: Gulfam Khokker; Candida Lucia Diamond; and Christopher McCabe. The statements primarily contained evidence about the contraventions alleged in pt A of the particulars. Mr Snow's affidavit also included statements relevant to allegations made in pt A.
In addition to dealing with matters alleged in pt B of the State's contravention particulars, Mr Snow's affidavit also contained statements that were more in the nature of commentary, submissions and conclusions than evidence of events that were alleged to have occurred. I have treated those statements with caution.
At the hearing of the Contravention Application, the respondent did not deny that he had engaged in the conduct alleged in pt B of the State's contravention particulars. However, he did not accept that an inference should be drawn from the allegation made by the State that he was likely to contravene the Supervision Order if released back to the community.
SOWA v A
The reasons why the respondent was declared to be a serious danger to the community, and for making his release subject to the Supervision Order, were given in SOWA v A. The respondent's personal circumstances and history of serious sexual offending were also summarised in the decision.
No issue was raised in the Contravention Application about the findings made in SOWA v A or the accuracy of the facts stated about the respondent's personal history. Accordingly, the findings made in SOWA v A, and the facts about the respondent's history stated in the decision, form part of the material on which the Contravention Application has been determined.
In particular, the following matters from the decision in SOWA v A should be noted:
(a)The serious sexual offences for which the respondent has been convicted occurred on various dates between January 2001 and December 2006. The respondent was aged between 34 and 39 years during that period.
(b)The victims of the respondent's offences were his two daughters, a friend of one of his daughters and three daughters of a woman with whom the respondent was in a relationship at the relevant time. The age of the victims at the time of the offending ranged between 3 years and 10 months and 15 years.
(c)The psychiatrists who provided reports pursuant to s 37 of the DSO Act, Dr Wynn Owen and Dr Wojnarowska, considered that the respondent was at a high risk of committing a serious sexual offence if he was not made subject to a continuing detention order or a supervision order. Their opinions were accepted.
(d)Psychological testing indicated that the respondent did not meet the diagnostic criteria for psychopathy but antisocial and psychopathic personality traits were observed. In the opinion of Ms Wilson-Brown, a senior counselling psychologist with the forensic psychological service of the Department of Justice, the respondent had low self-worth, depressed moods, poor emotional management skills and a willingness to engage in dysfunctional behaviour to avoid addressing issues. Those problems were the result of a difficult childhood and the respondent's personality structure.
(e)There was a clear pattern to the respondent's offending. His victims were either his children or children of a woman with whom he had been in a significant relationship. The only victim who did not fall within that category was someone who was known to the respondent and a friend of his daughter. His offending occurred in his home, was against young girls with whom he had a relationship and involved the exploitation of the relationship to gratify sexual and emotional needs. There was no evidence that the respondent was attracted to strangers; that is, that he was at risk of committing a serious sexual offence against a person with whom he had no prior relationship. His offending apparently reflected a need for emotional as well as sexual intimacy. The pattern of his offending indicated his risk of serious sexual offending was related to the opportunity for him to form significant relationships with women who had sole custody of young girls or who were willing to partner him to have and raise children. Dr Wynn Owen defined the respondent's risk scenarios as 'sexual contact with a female child aged 5 to 15 with whom he is in a relationship of trust and/or authority, a parental type role … his offending pattern indicates that he would form a relationship with the child's parent or guardian prior to grooming behaviour to confirm trust and authority'. Dr Wojnarowska considered that any repeat offending by the respondent would likely involve 'known/familiar prepubescent female children'. He would have known the victim for some period of time and had established a relationship of trust with her parent.
(f)The respondent had made some gains from counselling prior to his release to the community but he required ongoing counselling. Further, there were some reservations around his capacity to continue obtaining substantial benefit from counselling.
(g)The pattern of the respondent's offending, and his sexual behaviour generally, reflected the psychiatric and psychological traits underpinning the finding that he was a serious danger to the community. Those traits suggested the risk scenarios for the respondent committing a serious sexual offence could be identified with some precision. The opinions expressed by Dr Wynn Owen and Dr Wojnarowska about risk scenarios were accepted.
(h)The possibility of the respondent seeking to form a relationship with a woman who had either sole custody of young girls or who was willing to partner with him to have children could be monitored by appropriate conditions in a supervision order. The risk scenario for the respondent involved the formation of a particular relationship over a period of time.
(i)Dr Wynn Owen and Dr Wojnarowska considered the risk of the respondent committing a serious sexual offence could be adequately managed in the community having regard to the pattern of the respondent's offending and the psychiatric and psychological factors contributing to the risk of him offending. Dr Wynn Owen stated that, in his opinion, the risk of the respondent reoffending could be adequately managed in the community but 'the issue is around contact with his own children and it takes time then to develop that relationship with trust and authority. And if that can be prevented by some fairly simple means, including appropriate supervised only access, if access is indeed required and that the commencement of any relationships that may also provide access, there is some disclosure and the CCO is aware of that, I believe it can be managed'.
(j)The respondent would be confronted with difficulties upon his release to the community. Most notably, he had a significant history of substance abuse; in particular, a dependence on cannabis and alcohol. His abuse of those substances was connected to his offending. There would be other difficulties for the respondent in the community as he had no employment and relatively few social supports.
The evidence in the Contravention Application
The book of materials included statements and affidavits from Gulfam Khokhar (an employee of the Department of Justice working in the COMU); Candida Lucia Diamond (employed in COMU); Christopher McCabe (employed in COMU); Mr Snow and Ms Yun. The book also included reports from Dr Wynn Owen, Ms Collyer (the respondent's treating psychologist and counsellor); Ms Wilson-Brown; Dr Vuletich and Mr Snow.
The State called Dr Wynn Owen, Ms Wilson-Brown, Ms Yun and Mr Snow to give oral evidence at the hearing of the Contravention Application. The respondent did not give evidence or call evidence on his behalf.
Psychiatric evidence
A psychiatric report, dated 12 July 2019, was provided by Dr Wynn Owen. Dr Wynn Owen interviewed the respondent on 25 June 2019 and also met with Mr Snow and Ms Collyer. He reviewed the book of materials for the Contravention Application and for the div 2 hearing held on 18 February 2018.
Dr Wynn Owen reported that the respondent had advised that shortly after his release he had noted an attraction to teenage girls, including girls who appeared to be under the age of 16 years. He told Ms Collyer about the interest but added that he had 'stopped looking'. He also advised Dr Wynn Owen that he had stopped feeling attracted to adolescent females a few weeks after his release. However, the respondent acknowledged that his sexual interest in teenage girls was current and ongoing when challenged by Dr Wynn Owen. The respondent denied having initially lied to Dr Wynn Owen but later in the interview he stated, 'I've just realised I've been lying to myself all this time'. That was an apparent reference to the respondent's uncertainty about whether he was attracted to adolescent females.
The respondent also told Dr Wynn Owen that he was attracted to males and that he had enjoyed his one sexual encounter with another male while in prison. He explained his involvement in online chat groups as being impulsive rather than exploitative. He had discussed his involvement with online groups with his community corrections officer.
The respondent acknowledged to Dr Wynn Owen that he had not coped emotionally following his release on the Supervision Order. He expressed considerable resentment about what he perceived to be the lack of support from his community corrections officer, advising Dr Wynn Owen that he was 'screaming out for help'; that his emotions were raw and 'new to me, I only found them in 2015'. He acknowledged that he was accountable for seeking assistance but added, 'I thought, I can deal with this … but I couldn't'. He acknowledged periods of suicidal ideation following his release. However, he denied thoughts of self-harm or suicide at the time that he was interviewed by Dr Wynn Owen.
Dr Wynn Owen considered that the respondent lacked self-awareness about the risk situations that he had placed himself in following his release. He had experienced significant problems in coping psychologically and emotionally following his release and had been unable to engage the support of his supervising team by seeking assistance. That had led to an increase in his risk and an attitude towards his support team of 'stuff you'. Monitoring had been made difficult by the respondent's failure to maintain an accurate diary and the unreliability of his self-reporting.
The respondent's risk of committing a serious sexual offence in the future was high and unchanged from the risk as assessed at the div 2 hearing. However, what had become clear was that management of the respondent had been problematic and he had not coped with his release. There were significant outstanding issues concerning his sexual preoccupation and the possibility that he suffered from a cognitive deficit that adversely affected his ability to engage with and learn from counselling and other treatment.
Dr Wynn Owen stated in his oral evidence that:
(a)The respondent had reported very limited sexual interest and libido when interviewed for the purpose of preparing the psychiatric report for the div 2 hearing. However, there were now significant indications of sexual preoccupation.[4]
[4] ts 152.
(b)The conduct identified in pt B of the contravention particulars related to sexual preoccupation.[5]
[5] ts 158.
(c)The respondent had acknowledged a 'degree' of sexual deviance that had not been previously present. The most likely scenario for reoffending was against young girls.[6]
[6] ts 161 and 167.
(d)The respondent's significant sexual preoccupation was preventing him from positively engaging with counselling and other forms of treatment.[7]
(e)The respondent's report of memory difficulties was significant for assessing his ability to benefit from counselling and other therapies to address his criminogenic needs. Different forms of intervention could be utilised if, on the other hand, his reported memory difficulties reflected a conscious or subconscious denial of the factors relevant to the risk of him offending. Dr Vuletich's report indicated that there was no significant cognitive impairment and accordingly, the respondent could potentially benefit from effective cognitive intervention.[8]
(f)The respondent could benefit from being prescribed with a hormonal antilibidinal agent to be used in conjunction with counselling. A bone scan had been conducted in early December 2019 and the results were normal. Accordingly, a trial use of antilibidinal medication could be conducted.[9]
(g)Ordinarily, a reduction in testosterone levels to a 'steady state' therapeutic level by the use of antilibidinal agents was achieved after six to 12 weeks. Suppression of the respondent's libido would assist in him engaging more effectively with other forms of treatment.[10]
(h)Antilibidinal medication, if prescribed, would be supplied to the respondent while in custody. However, he would be responsible for the cost of the medication on his release to the community.[11]
(i)Antilibidinal treatment was likely to significantly reduce the risk of reoffending while the respondent engaged in further counselling to enable him to develop the skills to be able to manage without medication. Antilibidinal medication was only a short‑term adjunct to other forms of treatment.[12]
(j)Without any intervention, there was a high likelihood of the 'situation' being repeated.[13]
(k)It was to be hoped that the time spent in custody following the respondent's contraventions of the Supervision Order would reinforce the need to comply with the conditions of the order. However, there was a concern that the respondent did not understand the seriousness of his breach in speaking to his neighbour through her child. The concern was with a possible pattern of behaviour in relation to contacts. Further, the importance of reporting and disclosing contacts of this kind could not be overstated in terms of managing an offender in the community.[14]
Neuropsychological assessment
[7] ts 167.
[8] ts 152 ‑ 153.
[9] ts 153.
[10] ts 157.
[11] ts 156.
[12] ts 158.
[13] ts 158.
[14] ts 161 and 163 ‑ 165.
As noted, a neuropsychological assessment of the respondent was undertaken on the recommendation of Dr Wynn Owen. Dr Vuletich concluded that:
(a)A comprehensive neuropsychological assessment revealed that the respondent's cognitive functioning was broadly intact, although there were discrete 'pockets of limitation' within his higher level executive abilities. There was no evidence of deficit in the respondent's information processing speed or motor speed.
(b)There was 'very mild' attenuation in the respondent's initial learning and a tendency for him to embellish his recall of verbally presented material. He was able to clearly encode, store and later retrieve both verbal and visual information within expectation. There was no evidence to indicate a clear memory deficit on his current assessment.
(c)However, there was variability and some inconsistency and limitations in the respondent's higher level executive functions. He was mildly impulsive and impressed as being limited in his capacity to formulate a clear, logical plan while adhering to a set of rules.
(d)The respondent exhibited symptoms of depression, anxiety and stress. There was an issue concerning the reliability of his self-reporting as his rating on depressive symptomology appeared at odds with his general presentation.
Psychological evidence
Ms Wilson‑Brown provided a comprehensive report on the respondent's engagement with counselling following his release to the community. Her report indicated that the respondent had made some progress in treatment, especially in developing a greater understanding of how his personality style could negatively impact on his interactions with others and result in impulsive and poor decision‑making. He had developed some strategies to manage his mood and impulsivity but his poor coping skills, together with his inability to tolerate boredom or loneliness, had resulted in highly impulsive behaviour.
In Ms Wilson-Brown's opinion, the respondent had focussed on meeting his sexual and social interaction needs while in the community rather than on developing and implementing appropriate strategies to manage stress, sexual arousal and psychological instability. He had reported experiencing a deviant sexual interest in pubescent children with whom he had no previous connection.
Ms Wilson-Brown considered that future treatment of the respondent was complicated by his tendency to deceive and provide highly exaggerated versions of events to avoid negative consequences until challenged. He attempted to portray his breaches as unintentional and a number of treatment needs had been identified. Limited insight, poor emotional control and personality factors were relevant for future treatment.
In her oral evidence, Ms Wilson‑Brown stated that, in her opinion, the treatment gains made by the respondent while in the community had been minimal. The benefit the respondent had derived from treatment in the community had been limited by his emotional distress, sexual preoccupation, impulsivity and the limited time he had spent in the community.
Supervision evidence
Reference has already been made to the affidavit of Mr Snow. He also provided a performance report in which he stated that the respondent had, while in the community, impulsively placed himself in situations which exposed him to contact with children, families and other potentially vulnerable people. In Mr Snow's opinion, the respondent had failed to identify the risks associated with such contact. There was concern about his lack of disclosure during supervision and about the deterioration in his mental health while he had been in the community.
Mr Snow identified some positive aspects of the respondent's performance while in the community on the Supervision Order. They included that the respondent had been subjected to numerous random and regular urinalysis tests and had returned a negative result on every occasion; the respondent had attended substance abuse counselling; he had regularly attended individual counselling sessions with Ms Collyer; and he had attended some SOMP sessions. He also appeared to be motivated to find employment.
Compliance with the standard conditions
Section 23(1B) of the DSO Act requires the respondent to prove, on the balance of probabilities, that he will substantially comply with the standard conditions of the Supervision Order. As to that requirement:
(a)The respondent has breached the conditions of the Supervision Order relating to electronic monitoring. However, he was only separated from his PCU for relatively short periods, contact was quickly established on each occasion and he does not appear to have deliberately not carried the device. I am satisfied, on the balance of probabilities, that the respondent would substantially comply with the conditions of the Supervision Order relating to electronic monitoring.
(b)The respondent has also breached the conditions of his Supervision Order by not complying with some directions given by his community corrections officer. However, he has spent some time in custody as a consequence of the State making the Contravention Application. I am satisfied, on the balance of probabilities, that the respondent will substantially comply with the requirement that he comply with any reasonable direction of his community correction officer given that the seriousness of non-compliance has been reinforced by the time spent in custody.
(c)Except for the requirement imposed by s 18(1)(f), I am satisfied, on the balance of probabilities, that the respondent would comply with the balance of the standard conditions of the Supervision Order having regard to the requirements prescribed by those conditions; the respondent's personal circumstances; the nature of his breaches; and the effect of time spent in custody following his non-compliance.
(d)There may be scope for argument over the meaning of 'substantial' when s 23(1B) is read with s 18(1). However, it is impossible to discern how the notion of 'substantial compliance' could apply to the requirement imposed by s 18(1)(f) that a person not commit a sexual offence (as defined in s 36A of the Evidence Act 1906 (WA)) during the period of a supervision order. I am not presently satisfied, on the balance of probabilities, that the respondent will not commit a sexual offence during the period of the Supervision Order for the reasons given in the next section.
Adequate protection of the community
I do not consider that the community would be adequately protected if the Supervision Order was not rescinded and the respondent was, at this time, released to the community. I have reached that conclusion for the following reasons:
(a)The respondent experienced feelings of sexual attraction to pubescent females while in the community. Those feelings were consistent with the respondent's history of offending but, unlike in the past, they were not confined to young females who were in a familial or other close relationship with the respondent. As Dr Wynn Owen observed, that represented a change in the respondent's reported sexual interests from the time of the div 2 hearing.
(b)The respondent also reported at the time of the div 2 hearing that he had limited sexual interest and low libido. However, he was significantly pre-occupied with his sexual interests during the time he spent in the community. The respondent's sexual pre-occupation, and his reported attraction to pubescent females, impacts on his management in the community. The pattern of the respondent's past offending was distinctive and informed the risk scenarios identified by Dr Wynn Owen and Dr Wojnarowska. The scenarios envisaged the respondent first establishing a significant relationship with an adult female who had young children. The scenarios were long-term and involved the respondent forming relationships that could be readily identified by his counsellors and case managers at an early stage. The apparent shift in the respondent's sexual interests, and his sexual preoccupation following his release, alter the risk scenarios (as Dr Wynn Owen recognised) and make the respondent's management in the community more precarious.
(c)The respondent's mental state significantly deteriorated while he was in the community - he was anxious, depressed and highly stressed. Eventually, the respondent presented at the Emergency Department of Royal Perth Hospital expressing thoughts of self-harm and suicidal ideation. In my view, the adverse effect of the respondent's release to the community on his emotional and psychological equilibrium indicated that better and more deeply 'internalised' management plans and strategies were required for the respondent to return to, and remain in, the community. I also consider that the deterioration in the respondent's mental state would have had a negative effect on the respondent's ability to meaningfully engage in, and benefit from, counselling in the community; contributed to his sexual pre-occupation; resulted in feelings of social isolation and resentment towards those responsible for his management in the community; and consequently, increased the risk of reoffending.
(d)Dr Wynn Owen did not consider the respondent's risk of committing a sexual offence in the future had altered from the risk assessment that he undertook for the purpose of the div 2 hearing. I accept that assessment. However, in my view, the requirements for managing the respondent's risk of reoffending have been more clearly, and acutely, identified as a result of his experiences while in the community. I consider that it is necessary for the respondent to engage effectively in further counselling and other forms of treatment such as cognitive behaviour therapy if the community is to be adequately protected on the respondent's release under a supervision order. Counselling and other forms of treatment are required to address matters such as insight, coping strategies, transparency, sexual pre-occupation, impulsivity and emotional and psychological well-being.
(e)It is clear from the evidence presented in the Contravention Application that the respondent's sexual pre-occupation while in the community was a significant impediment to him engaging in, and benefiting from, counselling. It also presented real risk and management issues. I accept Dr Wynn Owen's opinion that the respondent could substantially benefit from antilibidinal medication. A trial will be conducted while the respondent is held in custody under the continuing detention order I have made. It may be that a successful trial will significantly alter the respondent's risk and management scenarios. If so, any future plan for the respondent's release to the community would need to address how the respondent could access the medication given that he would be required to bear the cost.
Self-evidently, the reasons why I have concluded that the community would not be adequately protected if the respondent was released from custody at this time concern the risk of the respondent reoffending. I have reached that conclusion applying the ‘high level of probability' standard referred to in DPP v GTR.[15] It follows that I am not satisfied, on the balance of probabilities, that the respondent would not commit a sexual offence during the period of the Supervision Order if he was now released under the order.
[15] Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 206; 35 WAR 297.
Findings
I made the following findings in determining the Contravention Application:
(a)The respondent had contravened the Supervision Order in the manner alleged in pt A of the State's contravention particulars. The respondent was convicted of some of the alleged breaches of the Supervision Order and did not dispute that he had committed the breaches for which a warning had been issued.
(b)The respondent had engaged in the conduct alleged in pt B of the contravention particulars. Again, he did not dispute that he had engaged in the conduct alleged by the State; the cross-examination of Ms Yun and Mr Snow was primarily directed to eliciting context.
(c)I was satisfied, on the balance of probabilities, that the respondent was likely to breach the Supervision Order having regard to the number and nature of the breaches referred to in pt A of the contravention particulars and the matters alleged in pt B.
(d)I was not satisfied, on the balance of probabilities, that the respondent would substantially comply with the standard conditions of the Supervision Order – in particular, with the condition imposed by s 18(1)(f) of the DSO Act.
(e)I was not satisfied that the community would be adequately protected if the supervision order was not rescinded and the respondent was released back to the community. There were no further conditions that could be imposed, or amendments made to the Supervision Order that could, in my view, adequately protect the community.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Jenkins21 FEBRUARY 2020
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