The State of Western Australia v ACG [No 2] - [2023] WASC 467

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ACG [No 2] [2023] WASC 467
CORAM:   MCGRATH J
HEARD:   27 NOVEMBER 2023
DELIVERED          :   8 DECEMBER 2023
FILE NO/S:   SO 17 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ACG
Respondent

Catchwords:

Criminal law - High risk serious offender - Application for restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to a restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by a supervision order - Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Restriction order made
Supervision order made

Representation:

Counsel:

Applicant	:	Ms T-M Holloway
Respondent	:	Ms A Fedele

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid WA

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

Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Latimer [2006] WASC 235

MCGRATH J:

On 8 November 2022, the State of Western Australia applied for a restriction order in respect of the Respondent under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).[1] The State contends that the Respondent is a high risk serious offender and that it is necessary that he be detained in custody for an indefinite term for control, care or treatment and, in the alternative, that should he be released, then he be subject to a supervision order under the HRSO Act.
[1] Application for Restriction Order filed 8 November 2022.
On 9 December 2022, the preliminary hearing was heard before Strk J who determined that there were reasonable grounds for believing the Court might, in accordance with s 7 of the HRSO Act, find that the Respondent is a high risk serious offender. Strk J ordered that the Respondent be subject to an interim supervision order (ISO) pending the determination of the application.
The hearing of the application was listed for 18 May 2023. However, that hearing was adjourned due to the Respondent breaching his ISO. As a consequence, the Respondent was charged with multiple contravention offences and sentenced to a term of imprisonment in the Magistrates Court. Upon his release he returned to the community subject to the ISO.
Counsel for the Respondent submitted that whilst a restriction order may be made under the HRSO Act, he should be released on a supervision order and not detained. At the hearing, the Applicant submitted that whilst the Respondent should be subject to a restriction under the HRSO Act, it would be open for the Court to find that a supervision order would adequately manage the risk of the Respondent reoffending. I accept that submission is properly made.
I have determined that it is necessary that the Respondent be subject to a restriction order under the HRSO Act to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence. I have further determined that subjecting the Respondent to a supervision order for a period of four years under s 27 of the HRSO Act will provide adequate protection to the community.

Legal principles

High Risk Serious Offenders Act 2020 (WA)

The State may make an application for a restriction order where a person is a serious offender under custodial sentence pursuant to s 35 of the HRSO Act. The term 'serious offender under custodial sentence' is defined in s 3:
serious offender under custodial sentence means a person -
(a)who is under a custodial sentence for a serious offence; or
(b)who -
(i)is under a custodial sentence for an offence or offences other than a serious offence; and
(ii)has been under that sentence at all times since being discharged from a custodial sentence for a serious offence;
At the time this application was made, the Respondent was serving a term of imprisonment for a 'serious offence' as defined by s 3 and s 5 of the HRSO Act.
A 'serious offence' is defined by s 5 of the HRSO Act, which relevantly provides:
5.Term used: serious offence
(1)      An offence is a serious offence if -
(a)     it is specified in Schedule 1 Division 1; or
(b)it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division.
(2)      An offence is a serious offence if -
(a)it was an offence under a written law that has been repealed; and
(b)the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).
(3)An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2).
The Respondent has committed offences that come within this category. The Respondent has also committed a number of offences that are not characterised as serious offences. Offences of other types may be relevant in assessing the risk of serious offences being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious offending.[2]
[2] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246, [10].
Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if the Court 'is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure the adequate protection of the community against an unacceptable risk that the offender will commit a serious offence'. The State has the onus of satisfying the Court that a person is a high risk serious offender. This is a greater standard than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt but is otherwise incapable of further definition.[3] This does not necessarily mean that the risk must be at some high percentage of probability; a risk may be less than 50% yet still be unacceptable.
[3] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [28] (Steytler P & Buss JA).
If the Court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the HRSO Act, it necessarily follows that the person concerned is a high risk serious offender.[4] However, the Court must identify what it is that constitutes the risk and what makes it unacceptable, and then consider whether or not those factors have been proved to the requisite standard, that being to a high degree of probability, furnished by acceptable and cogent evidence.[5]
[4] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, [66], [68] (Wheeler JA); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [21] (Steytler P & Buss JA).
[5] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [34] (Steytler P & Buss JA).
In The State of Western Australia v Garlett,[6] Corboy J identified that there is 'arguably a material difference between s 7(1) of the Dangerous Sexual Offenders Act2006 (WA) (DSO Act), read with s 17, and s 7(1) of the HRSO Act, read with s 48'.[7] His Honour observed that s 7(1) of the HRSO Act requires that the Court be satisfied that 'it is necessary to make a restriction order', stating:[8]
It is arguable that the words 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce a further evaluative element over and above an evaluation of whether the risk of an offender committing a serious offence is unacceptable.
[6] The State of Western Australia v Garlett [2021] WASC 387.
[7] The State of Western Australia v Garlett [2021] WASC 387, [133].
[8] The State of Western Australia v Garlett [2021] WASC 387, [135].
Corboy J recognised in The State of Western Australia v Garlett that the current form of s 7(1) requires that the need to ensure adequate protection for the community should form part of the Court's determination of whether the offender is a high risk serious offender (the first step in making a restriction order), and should not merely be the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).[9]
[9] The State of Western Australia v Garlett [2021] WASC 387, [139].
In The State of Western Australia v D'Rozario,[10] Quinlan CJ agreed with Corboy J's construction of s 7(1) of the HRSO Act.
[10] The State of Western Australia v D'Rozario[No 3] [2021] WASC 412.
I also agree with Corboy J's construction of the HRSO Act. Therefore, the Court is required to make two evaluative judgments under s 7 of the HRSO Act being first, whether the risk of future offending is unacceptable and, second, whether it is necessary to make a restriction order to adequately protect the community.
The Court could find that it is not necessary to make a restriction order to adequately protect the community despite the Court finding that the risk of future offending was unacceptable. As Quinlan CJ observed, it would be a rare situation that the Court would find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has been found that the risk of future offending was unacceptable.[11] Quinlan CJ gave the example where 'other external restraints on an offender (such as a post-sentence supervision order under the SentenceAdministration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary')'.[12]
[11] The State of Western Australia v D'Rozario[No 3] [2021] WASC 412, [21].
[12] The State of Western Australia v D'Rozario[No 3] [2021] WASC 412, [21].
A finding that there is an unacceptable risk involves a balancing exercise requiring the Court:[13]
[T]o have regard to, among other things, the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for the respondent if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).
[13] Italiano v The State of Western Australia [2009] WASCA 116, [46].
An unacceptable risk in the context of s 7(1) of the HRSO Act is therefore a risk which is unacceptable having regard to a variety of considerations. These may include the likelihood of the person offending, the type of serious offence which the person is likely to commit (if that can be predicted), and the consequences of finding that an unacceptable risk exists.
I am required to consider whether, having regard to the likelihood of the Respondent offending and the nature of the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding the fact that the Respondent has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[14]
[14] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, [63] (Wheeler JA).
Section 7(3) of the HRSO Act sets out a number of matters that the Court must have regard to in considering whether a person is a serious danger to the community. Those matters are:
(3)In considering whether it is satisfied as required by subsection (1), the court must have regard to the following -
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g) the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j) any other relevant matter.
I note that s 7(3)(j) of the HRSO Act provides that the list of matters to be considered by the Court is not limited by those otherwise delineated in s 7(3).
While s 7(3)(g) of the HRSO Act provides that the Court must have regard to the offender's criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious offence in the future. The relevance of a prior criminal record would depend on the nature of the offences committed, the number of offences, and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.
If the Court determines that an offender is a high risk serious offender, then the Court is required to make a restriction order.[15]
[15] High Risk Serious Offenders Act 2020 (WA), s 48.
The term 'restriction order' is defined in s 3 of the HRSO Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 respectively, in similar terms to those that were used in the DSO Act.[16]
[16] Dangerous Sexual Offenders Act 2006 (WA), s 17.
Section 26 of the HRSO Act provides:
(1)In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.
(2)A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.
Section 27 of the HRSO Act provides:
(1)In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.
(2)A supervision order has effect in accordance with its terms -
(a) from a date stated in the order; and
(b) for a period stated in the order.
(3)The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
In making a determination between those two alternatives, the paramount consideration is the need to ensure the adequate protection of the community.[17]
[17] High Risk Serious Offenders Act 2020 (WA), s 48(2).
However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore, the protection of the community will always favour such an order.[18]
[18] Director of Public Prosecutions (WA) v Decke [2009] WASC 312, [14].
Given the more onerous nature of a continuing detention order, the scheme of the HRSO Act requires that the Court do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection of the community.[19]
[19] The State of Western Australia v Latimer [2006] WASC 235, [24]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312, [15].
Section 29 of the HRSO Act provides that the Court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The onus of proof is on the Respondent pursuant to s 29(2) of the HRSO Act.
The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the Respondent will commit a serious offence.[20]
[20] Director of Public Prosecutions (WA) v Hart [2019] WASC 4, [52].
The term 'standard condition', in relation to a supervision order, is defined by s 3 of the HRSO Act as meaning a condition that under s 30(2) must be included in the order. Section 30(2) of the HRSO Act provides seven conditions that must be included in any court ordered supervision order. Therefore, the Respondent must satisfy the Court that he will substantially comply with those standard conditions before the Court can make a supervision order. The seven standard conditions set out in s 30(2) of the HRSO Act require that the person:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)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 section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.

Evidence

The State tendered a Book of Materials and a Supplementary Book of Materials that comprised the relevant material pursuant to s 84(5) of the HRSO Act.[21] The State relied upon the oral testimony of three witnesses, namely Dr Wojnarowska, Consultant Forensic Psychiatrist; Dr Bannister, Forensic Psychologist; and Ms Sullivan, Senior Community Corrections Officer at the Department of Justice.
[21] Exhibit 1, Book of Materials.
The Respondent did not give evidence nor adduce any evidence.
I now turn to the matters relevant to determining whether or not the Respondent is a high risk serious offender pursuant to s 7 of the HRSO Act. I will do so by considering the evidence in the context of the HRSO Act.

Factors under s 7 of the HRSO Act

History of offending and antecedents - s 7(3)(c), s 7(3)(d) and s (7)(g)

In deciding whether a person is a high risk serious offender, the Court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act.

The criminal record and antecedents are relevant in and of themselves, but are also relevant to whether the person has a propensity to commit serious offences in the future,[22] and as to whether there is any pattern of offending behaviour.[23]

Antecedents

[22] High Risk Serious Offenders Act 2020 (WA), s 7(3)(c).

[23] High Risk Serious Offenders Act 2020 (WA), s 7(3)(d).

The Respondent was born in Western Australia on 15 January 1962 and is therefore 61 years of age. He is the second eldest of five children. Both his parents are now deceased.
The Respondent reported that his father had been physically abusive towards him and his mother and that he witnessed violence on a regular basis. His parents separated when he was 11 years of age and he was raised by his mother. Consequently, he had no further contact with his father until later in life.
The Respondent attended school until year 8. The Respondent stated that he was not suspended or expelled and performed at an average level. The Respondent reported that at the age of 12 he was placed into Hillston Boys Home. Further, the Respondent confirmed that he spent time in Longmore and Riverbank detention centres for his juvenile offending.
The Respondent's longest period of employment involved owning a car detailer business in South Australia where he lived for 15 years. In addition, the Respondent has worked as a courier driver and a window cleaner. The Respondent reported that he was unemployed for approximately two years when he moved to South Australia at the age of 15.
The Respondent has been in four serious relationships, including being married for 10 years whilst living in South Australia. From that relationship the Respondent has two daughters. The Respondent confirmed that the relationship was volatile and included him being physically violent towards his partner.
The Respondent has two further children; a son and a daughter from a relationship that commenced in 1995. His other significant relationship was with the mother of the victim of the index offending. That relationship commenced in 1997 and continued for 15 years until the victim disclosed the offending.
The Respondent also reported that he had a fourth relationship with a woman with whom he had a son.
In respect to physical health, the Respondent stated that he was diagnosed with Crohns disease in 2019, which required surgery to remove part of his bowel. The Respondent also suffers from neuropathy which affects his gait, and has a history of myocardial infarct, asthma and diabetes.
The Respondent reported that he commenced consuming alcohol when he was 13 years of age and did so on a regular basis. By 18 years of age, the Respondent was abusing alcohol and commencing drinking in the morning. The Respondent reported that he no longer consumes alcohol and maintained that he does not use illicit drugs.

Relevant criminal history

The Respondent has committed a significant number of offences in Western Australia. The Respondent's offending history is outlined in his criminal record which forms part of the material relied upon by the State.[24] The offending history is summarised, in part, in a chronology of offending which was received in evidence.[25] The Respondent's criminal record relevantly includes convictions for sexual offences. I will outline the index offending and then turn to the Respondent's other convictions, delineating the offences that may constitute serious offences under s 5 and sch 1 of the HRSO Act.

Index offences

[24] Exhibit 1, Book of Materials, Criminal Record of the Respondent, p 1 - 8; Exhibit 1, Book of Materials, Updated Criminal Record of the Respondent, p 867 - 872.

[25] Exhibit 1, Book of Materials, Chronology of Offending, p 9 - 14; Exhibit 1, Book of Materials, Updated Criminal Record of the Respondent, p 867 - 872.

In June 2013, the Respondent was sentenced for sexually offending against a child who was his lineal defacto relative. The offending occurred between 2005 and 2008. The Respondent was convicted of four charges of knowingly sexually penetrating his stepdaughter contrary to s 329(2) of the Criminal Code, one charge of attempting to knowingly sexually penetrate his stepdaughter contrary to s 329(2) of the Criminal Code, and one offence of inciting a child who was a lineal relative to do an indecent act contrary to s 329(5) of the Criminal Code.
The offending involved various sexual acts of sexual penetration of the child who was aged between 5 and 8 at the time of the offending, including penetrating the child's anus, penetrating the child's vagina with his penis until he ejaculated, and forcing the victim to engage in the act of fellatio. The act of inciting an indecent act involved the Respondent lying down on his bed and exposing his penis and using the child's hand to masturbate his penis. The one count of attempted to knowingly sexually penetrate a child involved the Respondent using his hand to push the victim's head towards his penis. The child resisted, pulled away and said 'no'.
The sentencing judge imposed a total effective sentence of 9 years 6 months imprisonment.[26]

Other serious offences

[26] Exhibit 1, Book of Materials, Chronology of Offending, p 10 - 11; Exhibit 1, Book of Materials, Updated Criminal Record of the Respondent, p 867 - 872.

The Respondent has been convicted of other serious sexual offences under the HRSO Act. In August 2011, the Respondent was convicted of one count of sexually penetrating a child under 13 years of age contrary to s 320(2) of the Criminal Code, and two counts of indecently recording a child under 13 years of age contrary to s 320(6) of the Criminal Code. The offending occurred between 2005 and 2008. The sexual offending involved penile penetration of the child's vagina. The child was the daughter of one of the Respondent's close friends and was between 4 and 5 years of age at the time of the offending.
The indecently recording offences involved the Respondent taking explicit photographs of the victim's genitalia and further recording himself penetrating the child's vagina with his penis. A total effective sentence of 4 years and 6 months imprisonment was imposed.
Further, in August 2011, the Respondent was convicted of one count of possessing child pornography contrary to s 60(4) of the Censorship Act 1996 (WA). A term of 6 months imprisonment concurrent with the previous terms imposed in 2011 was ordered.

Other offending

In 1974, the Respondent was convicted of indecently dealing with a child under 13 years of age under s 320 of the Criminal Code. There is no information regarding the circumstances of the offending, nor the penalty imposed in respect to both offences. In 1976, the Respondent was convicted of indecently dealing with a child under 13 years of age. The offending was dealt with in the Children's Court. There is no information regarding the circumstances of the offending, nor the penalty imposed.
As a juvenile, the Respondent was convicted of various offences including stealing, arson, the use of violence with intent to steal, burglary, aggravated assault and criminal damage.[27]

Contravention proceedings

[27] Exhibit 1, Book of Materials, Updated Criminal Record of the Respondent, p 867 - 872.

The Respondent was convicted of six offences of contravening his ISO contrary to s 80 of the HRSO Act.[28] On 3 July 2023, the Respondent was sentenced to a total effective sentence of 8 months imprisonment suspended for 12 months.
[28] Exhibit 1, Book of Materials, Prosecution Notices, p 873 - 886.
The most significant breach involved the Respondent possessing on his mobile phone, images of prepubescent females from an internet site. The images depicted children in gymnastic type clothing and toddlers in swimwear at the beach. One image depicted a juvenile female in a bath.
A further contravention of concern involved the Respondent being approached by a child and failing to withdraw. The Respondent interacted with the child and did not report the incident to the authorities. The interaction included blowing up a ball for the child.
The other contravening acts included the Respondent reinstalling Facebook to his mobile phone and then deleting the site, and failing to report that he had set up internet accounts with Ola, Uber, Didi and eBay.

Propensity to commit serious offences in the future ‑ s 7(3)(c) & Whether or not there is any pattern of offending behaviour ‑ s 7(3)(d)

The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR, Murray AJA stated that:[29]
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[29] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307, [178] (Murray AJA).
The Respondent has been convicted of committing nine serious offences on six separate occasions during the four year period between 2005 and 2008. The offending involved sexually assaulting female children aged between 4 and 7 years of age. The State submits that the Respondent's criminal record demonstrates a propensity or tendency to commit serious sexual offences generally.
I find that the Respondent has a propensity to commit serious sexual offences against prepubescent female children. The pattern of offending involves grooming children known to him and then engaging in serious acts of sexual offending.

Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect ‑ s 7(3)(e) and s 7(3)(f)

I must also consider if the Respondent has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs. Further, I must consider whether or not the participation in any rehabilitation program has had a positive effect.
The Respondent has not completed or participated in any treatment programs during his most recent term of imprisonment. Dr Wojnarowska noted that the Respondent refused to participate in individual psychological intervention.[30]
[30] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [50].
In 2013, the Respondent was assessed and recommended for an Intensive Sexual Offender Treatment Program. Regrettably, the Respondent refused to participate in the program without providing any reason. The individual management plan dated 23 June 2022 states that the Respondent had changed his stance on participating in the program but no places were available in the program prior to his release date.
The Respondent has commenced treatment with a psychologist but has not yet progressed to directly focusing on treatment for his criminogenic needs.
It is clear that the Respondent has historically chosen not to engage with treatment programs but now appears to be positively engaging to address his outstanding treatment needs.

Psychiatric report prepared under s 74 and extent to which the Respondent cooperated with examination ‑ s 7(3)(a) - Dr Wojnarowska

Dr Wojnarowska prepared a report dated 21 April 2023,[31] an addendum report dated 16 November 2023,[32] and gave evidence at the hearing.[33] Dr Wojnarowska diagnosed that the Respondent fulfils the diagnostic criteria paedophilia, non-exclusive type, attracted to female children. Dr Wojnarowska stated due to the Respondent's denial, the duration and current intensity of his deviant sexual fantasies are uncertain.[34] However, his history of juvenile sexual offending and recent contraventions suggests the presence of a long and enduring paedophiliac interest.
[31] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, p 836 - 852.
[32] Exhibit 1, Book of Materials, Addendum Report of Dr Wojnarowska, p 923 - 927.
[33] ts 42 - 57 (27/11/2023).
[34] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [72].
Further, Dr Wojnarowska stated that the Respondent's criminal history before the age of 18, as evidenced by his juvenile offending and history of generalist offending, is consistent with the presence of Antisocial Personality Disorder.[35] In addition, the Respondent has a history of Alcohol Use Disorder, currently in remission.[36]
[35] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [73].
[36] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [72] - [73].
Dr Wojnarowska considered the characteristics of the Respondent's sexual offending.[37] Dr Wojnarowska stated that the Respondent's sexual preference is prepubescent female children. The offences appear to be planned and calculated and took place when no other adult was present. Dr Wojnarowska stated that there was a likely period of significant grooming involving the victims and their parents.[38]
[37] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [26] - [29].
[38] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [28].
Dr Wojnarowska said that most of the Respondent's offences were characterised by a high degree of depravity and callousness with a deviant sexual interest in female children.
Dr Wojnarowska used the Static-99R instrument, the Hare Psychopathy Check-list-Revised (PCL-R) and the RSVP instrument.
The Static-99R is an instrument to position offenders in terms of their relative degree of sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sex offenders. Static-99R contains 10 items, which are added together to create a total score.[39] In routine samples of sexual offenders, the average 5 year sexual recidivism rate is between 5% and 15%. This means that out of 100 sexual offenders of mixed risk levels, between 5 and 15 would be charged or convicted of a new sexual offence after 5 years in the community. Conversely, between 85 and 95 would not be charged or convicted of a new sexual offences during that time period.[40]
[39] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [75].
[40] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [78].
The Respondent's Static-99R score of 1 places him in the 'low risk range'. The offenders who scored 1 from the routine samples have been found to sexually offend at 2.5% to 5.8% after five years. This risk can decrease with years of non-offending in the community. However, Dr Wojnarowska stated that Static-99R does not measure all relevant risk factors and that the Respondent's recidivism risk is higher than that indicated by Static-99R. Dr Wojnarowska reiterated that in her opinion the Respondent is a deviant sexual offender whose denial inhibits any chance of treatment.[41]
[41] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [79].
The PCL-R assesses the extent to which an individual's personality structure forms to the clinical construct of psychopathy. The score obtained is an important component of other risk assessment tools including Structural Clinical Guides. Dr Wojnarowska stated that the Respondent's overall score has not reached the threshold for psychopathy. However, the PCL-R score indicated that there were some elevations on Factor 1 that capture interpersonal and affective features and scores on Factor 2. This determined that the factors that assess behavioural and lifestyle aspects within the clinical construct of psychopathy were within the moderate range. People with similar scores to the Respondent tend to be exploitative, grandiose, callous, manipulative, and domineering. Their relationships with others are shallow, self-serving and lacking of empathy. The elevations on Factor 2 are consistent with the DSM5 diagnosis of Antisocial Personality Disorder and are relevant in formulating appropriate management plan in the community.
The RSVP instrument was utilised by Dr Wojnarowska. Dr Wojnarowska stated that there appears to be an escalation from indecent dealings to more significant acts including a degree of depravity. The dynamic risk factors identified by Dr Wojnarowska include psychological coercion in sexual violence, extreme minimisation in denial of sexual offending, attitudes that support or condone sexual violence, problems with self-awareness, sexual deviance, problems with planning, problems with treatment and problems with supervision.
In respect to likely risk scenarios, Dr Wojnarowska stated that the Respondent is most likely to commit an offence of sexual penetration involving oral sex, digital penetration, or penile penetration against a female prepubescent child. The likely victim would be a child in respect to whom he has pre-existing access and has been able to groom through a position of trust. The likely motivation would be the gratification of his deviant sexual interest in children. However, Dr Wojnarowska stated that there is only a very low potential for the sexual violence to escalate to include physical coercion.[42]
[42] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [100].
Dr Wojnarowska stated that in her opinion, based on the application of the Static-99R, PCL-R and RSVP, the Respondent is at a high risk of committing a serious sexual offence as defined by the HRSO Act if not subject to the HRSO Act. The Respondent possesses an important factor that is causally related to future offending, namely sexual deviance (paedophilic interest).[43]
[43] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [104].
Dr Wojnarowska stated that a supervision order would be sufficient to mitigate the risk of reoffending in the community given that his movements would be restricted and his location and communications would be monitored.[44]
[44] Exhibit 1, Book of Materials, Report of Dr Wojnarowska, [105].
In respect to future treatment, Dr Wojnarowska stated that the Respondent would benefit from antilibidinal treatment and anti-depressant medication. Dr Wojnarowska stated that given the Respondent's strong stance of denial, this form of treatment has not been discussed with him.
Dr Wojnarowska, in her addendum report dated 16 November 2023, confirmed that her diagnosis has not changed and that the Respondent's recent compliance supports her previous opinion that his risk of offending may be managed in the community by the imposition of a supervision order.[45] In that regard, Dr Wojnarowska stated that the Respondent has shown progress with the psychological treatment that he has commenced.[46] Dr Wojnarowksa in her report stated that any supervision order should be of five years duration. However, during her testimony, Dr Wojnarowska accepted that the minimum period of any supervision order should be three years.[47]

Psychological reports prepared under s 74 and extent to which the Respondent cooperated with examination - s 7(3)(b) - Dr Bannister

[45] Exhibit 1, Book of Materials, Addendum Report of Dr Wojnarowska, [24].

[46] Exhibit 1, Book of Materials, Addendum Report of Dr Wojnarowska, [64].

[47] ts 56 (27/11/2023).

Dr Bannister produced a report dated 2 May 2023,[48] an addendum report dated 13 November 2023,[49] and gave evidence at the hearing.[50] The Respondent was cooperative during the consultations with Dr Bannister.[51]
[48] Exhibit 1, Book of Materials, Report of Dr Bannister, p 815 - 835.
[49] Exhibit 1, Book of Materials, Addendum Report of Dr Bannister, p 916 - 922.
[50] ts 57 - 68 (27/11/2023).
[51] Exhibit 1, Book of Materials, Report of Dr Bannister, [1].
Dr Bannister also assessed the Respondent using the PCL-R. Dr Bannister stated that the Respondent did not meet the clinical cut-off score for psychopathy, scoring in the moderate range on the PCL-R.[52]
[52] Exhibit 1, Book of Materials, Report of Dr Bannister, [55].
Dr Bannister also utilised the VRS-SO which is a structured clinical judgment tool designed to assess risk and predict sexual recidivism, to measure and link treatment changes to sexual recidivism, and to inform the delivery of sexual offender treatment.[53] The VRS-SO comprises 7 static (historical) and 17 dynamic (changeable) factors that have been empirically or conceptually linked to sexual recidivism. Dynamic factors with higher ratings identify treatment targets linked to sexual offending. All factors are scored on a four point scale, allowing for more nuance than other structured risk assessment tools that only have a three point scale.
[53] Exhibit 1, Book of Materials, Report of Dr Bannister, [57].

Dr Bannister stated that the Respondent's pro-rated total score for the variables is 30.8 out of a possible 50, which places him in the percentile range of 83.66%. That means that the Respondent's dynamic score was more than 83.66% of the original normative sample.[54]
[54] Exhibit 1, Book of Materials, Report of Dr Bannister, [91].
The Respondent's pro-rated total combined static and dynamic variable score for the variables is currently assessed as 43.8 out of a possible 72. Statistically, this places him in the 86.22 percentile, which means that the Respondent scored higher than 86.22% of the normative sample. Therefore, the Respondent is in the high risk category of sexual offending as defined by the VRS-SO.[55]
[55] Exhibit 1, Book of Materials, Report of Dr Bannister, [92].
Using the VRS-SO normative sample, a five-year and a 10-year risk assessment can be assigned to the Respondent. Dr Bannister stated that the Respondent will have a 15.2% to 22.1% chance of sexually re-offending in the community within five years if he is not subject to a supervision order or a restriction order. Further, the Respondent will have a 24.7% to 32.3% chance of sexually re-offending within 10 years if he is not subject to a restriction order.[56]
[56] Exhibit 1, Book of Materials, Report of Dr Bannister, [94].
In respect to risk scenarios for future offending, Dr Bannister stated that the most likely risk scenario would involve him establishing a relationship or friendship with a person that increases possible access to a prepubescent female on a regular basis. The Respondent would then seek to groom the child over time in order to commit criminal offences against the child. Dr Bannister stated that the Respondent is unlikely to offend impulsively, however, it remains a possibility if there are no victims available to groom.[57]
[57] Exhibit 1, Book of Materials, Report of Dr Bannister, [97].
Dr Bannister stated that in his opinion, the Respondent currently poses a high risk of sexually reoffending if not subject to either a continuing detention order or a community supervision order under the HRSO Act.
Dr Bannister stated that the Respondent's denial and minimisation of his offending behaviour makes a comprehensive formulation of his sexual offending difficult. The Respondent presents with a range of outstanding treatment needs, including deviant sexual preferences and related cognitive distortions. The Respondent requires intervention in order to assist him to improve his problem-solving, stress management and consequential thinking.
Dr Bannister expressed the opinion in his report that should the Court impose a supervision order, then that order should be of five years in duration to permit the Respondent to self-manage his risk of re-offending in the community. During examination at the hearing, Dr Bannister accepted that a supervision order of three years in duration might be adequate given that the State may apply to extend the term if necessary.
During his testimony, Dr Bannister stated that whilst a curfew was appropriate during the term of the supervision order, the curfew requirement might no longer be required.[58] Therefore, the curfew condition could be removed.
[58] ts 61 (27/11/2023).
In his addendum report, Dr Bannister confirmed that his recommendations have not changed. Dr Bannister stated that the Respondent's risk factors have not changed.

Any other reports or assessments relating to the Respondent - s 7(3)(b)

Community Supervision Assessment Reports

Ms Sullivan, Senior Community Corrections Officer, gave evidence at the hearing.[59] I also received a Community Supervision Assessment Report dated 11 May 2023,[60] and an Updated Community Supervision Assessment Report dated 20 November 2033,[61] which outline the Respondent's behaviours to be managed and the strategies to be implemented by reference to the opinions of Dr Wojnarowska and Dr Bannister.
[59] ts 68 - 76 (27/11/2023).
[60] Exhibit 1, Book of Materials, Community Supervision Assessment Report, p 853 - 866.
[61] Exhibit 1, Book of Materials, Updated Community Supervision Assessment Report, p 928 - 937.
The Updated Report states that the Respondent is now positively engaging by taking steps to ensure clarification of the ISO and is being proactive to avoid breaching the ISO.[62] Ms Sullivan stated that the Respondent's psychologist has confirmed that he is engaging with the current focus on trauma experienced in custody and in childhood. During her testimony, Ms Sullivan confirmed that the Respondent has completed 17 sessions with his psychologist.[63]
[62] Exhibit 1, Book of Materials, Updated Community Supervision Assessment Report, p 931.
[63] ts 70 (27/11/2023).
Ms Sullivan stated that since the Respondent was released into the community after the contraventions, there has been limited non-compliance.[64] The updated report provides a proposed supervision order should the court consider that an appropriate order. The proposed supervision order comprises 46 conditions, including five conditions that are not presently in the ISO.[65] The accommodation of the Respondent was assessed as continuing to be suitable.[66]

Treatment Options Report - Ms Thatcher

[64] Exhibit 1, Book of Materials, Updated Community Supervision Assessment Report, p 931.

[65] Exhibit 1, Book of Materials, Updated Community Supervision Assessment Report, p 932 - 937.

[66] ts 70 (27/11/2023).

Ms Thatcher prepared a Treatment Options report dated 15 May 2023.[67] The report identifies options to address outstanding treatment needs. The report confirms that the Respondent declined to engage in any sex offender treatment programs until 2022 when his imminent release meant that there was insufficient time to participate.
[67] Exhibit 1, Book of Materials, Treatment Options Report of Ms Thatcher, p 814.
The Respondent was assessed by the Forensic Psychological Intervention Team (FPIT). Mr Summerton was appointed as the Respondent's treating psychologist.
Ms Thatcher reported that the Respondent commenced attending treatment on 21 July 2023 and had completed 15 sessions. The treatment has not yet directly focused on the Respondent's treatment needs due to his denial or minimisation of his offending, but the treatment has commenced addressing these outstanding matters indirectly.[68]

The risk that a serious offence will be committed if a continuing detention or supervision order is not made ‑ s 7(3)(h)

[68] Exhibit 1, Book of Materials, Addendum Report of Dr Bannister, p 919.

Both Dr Wojnarowska and Dr Bannister assessed the Respondent as a high risk of committing a serious sexual offence as defined under the HRSO Act if he is not subject to a restriction order. The evidence supports a finding that the likely offending will involve the Respondent sexually assaulting a female prepubescent child. The victim would likely be a child with whom the Respondent has access and has been able to build trust and then engage in a pattern of grooming. The motivation for the offending will be to satisfy the Respondent's deviant sexual interest in children.

The need to protect members of the community from that risk ‑ s 7(3)(i)

I find that there is a need to protect the community from the risk that the Respondent will commit a serious sexual offence as defined under the HRSO Act, if not subject to a restriction order. The evidence that I have outlined fully supports that finding.

Assessment and conclusion

Counsel for the Respondent submitted that I should be satisfied that it is necessary to make a restriction order and that the risk may be managed in the community with a supervision order. Counsel for the State agreed that it is open for the Court to make that finding.
After considering the evidence in respect to the factors under s 7(3) of the HRSO Act, and finding that evidence to be acceptable and cogent, I am satisfied to a high degree of probability that the Respondent currently presents an unacceptable risk that he will commit a serious violent offence under the HRSO Act.
Further, I am satisfied that it is necessary to make a restriction order in relation to the Respondent to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence. I have made this determination for the following reasons.
First, both Dr Wojnarowska and Dr Bannister gave cogent evidence that supports that finding. The Respondent has been diagnosed with paedophilia. The Respondent possesses an important factor causally related to future reoffending, namely sexual deviance. The Respondent has a significant history of child sexual offending involving acts of sexual depravity inflicted on prepubescent children. Dr Wojnarowska stated that the Respondent is likely to groom a female child with whom he has access.
Second, whilst subject to the ISO the Respondent did reoffend. Subsequently, he continued with the ISO satisfactorily after his release from incarceration. However, the contraventions demonstrate that the Respondent remains at risk of reoffending.
Third, I am satisfied that the Respondent has outstanding treatment needs that require addressing. The treatment needs may be addressed whilst subject to a restriction order.
Fourth, a restriction order will provide the necessary support to the Respondent as he develops the necessary coping skills in the community. At this time, the Respondent continues to minimise and deny his history of offending. He needs to accept responsibility and cease denying his offending history.
Therefore, I am satisfied that a restriction order must be made under the HRSO Act.

Continuing detention order or supervision order

I must now decide whether the Respondent should be detained pursuant to a continuing detention order or be released into the community under a supervision order. The Applicant accepts that a supervision order will adequately manage the risk that the Respondent will commit a serious offence. I am of the view that the Applicant's submission is properly made.
The Court must choose the order that is the least invasive to the Respondent's liberty, while ensuring an adequate degree of protection of the community.
In considering whether a supervision order will adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the Respondent, his care and treatment, and to ensure adequate protection of victims of offences committed by the respondent.[69]
[69] High Risk Serious Offenders Act 2020 (WA), s 30(5).
I must also be satisfied, on the balance of probabilities, that the Respondent has established that he will substantially comply with the standard conditions of the order under s 30 of the HRSO Act.
I find that this is a case where the protection of the community may be properly and satisfactorily advanced by a supervision order, rather than a continuing detention order. Further, I am satisfied, on the balance of probabilities, that the Respondent will substantially comply with the standard conditions of a supervision order as set out under s 30 of the HRSO Act.
In my view, there are conditions that may be imposed under a supervision order that will provide adequate protection of the community. I have made this finding for the following reasons.
First, both Dr Wojnarowska and Dr Bannister expressed the opinion that the risk of reoffending can be managed in the community with appropriate monitoring and treatment under a supervision order. Second, the Respondent is now actively engaged with his psychologist and is receiving treatment. Third, the Respondent will be subject to stringent monitoring whilst in the community, including being required to reside at stable accommodation. That stringent monitoring includes GPS monitoring and residing at a fixed address that has been assessed by the police regarding its suitability. Fourth, the Respondent will be provided with the guidance and support of a Community Corrections Officer who will monitor and give necessary directions to him.
The conditions that are to be imposed are outlined in the supervision order, which is attached as Annexure One. The conditions are extensive and serve to manage the risk in the community. The Applicant proposed conditions that stated that the Respondent was to undergo medical treatment, including taking medication as directed by the Community Corrections Officer. The Applicant submitted that was not the intention of the proposed conditions. Dr Wojnarowska gave testimony that a medical practitioner will only prescribe medication for a patient who voluntarily agrees to undergo the treatment.[70] That evidence is uncontroversial. I have redrafted the proposed conditions to make it abundantly clear that the Respondent, when undergoing medical treatment, must inform the CCO of that fact and further, whether he ceases that treatment. The CCO cannot direct the Respondent to undertake medical treatment, including prescribed medication.
[70] ts 47 - 48 (27/11/2023).
Counsel for the Respondent submitted that a curfew requirement was not necessary to be included as a condition of the supervision order. Rather, if a curfew was required from time to time then a direction may be given by the CCO. I am of the view that the curfew should be included as a condition.
In respect to the duration of the supervision order, both Dr Wojnarowska and Dr Bannister in their respective reports stated that the duration of any supervision order should be five years. During his testimony, Dr Bannister stated that a three-year term might be adequate given that the State may apply to extend the term. During her testimony, Dr Wojnarowska appeared to accept that a three-year term may be adequate. After considering this matter, I will impose a supervision order of four years in duration. This length is required in light of the Respondent's outstanding treatment needs and his continual failing to take responsibility for his past offending.

Conclusion

For the above reasons, I have determined that it is necessary to make a restriction order in relation to the Respondent. Further, I have determined that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of four years.

ANNEXURE ONE

SUPERVISION ORDER MADE BY THE HONOURABLE JUSTICE MCGRATH ON 8 DECEMBER 2023

Pursuant to s 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), the Court, having found that the Respondent is a high risk serious offender within the meaning of s 7(1) of the HRSO Act, makes a supervision order (the Order) in relation to the Respondent, for a period of four years from 8 December 2023, on the following conditions:

You, ACG, must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, within 48 hours of the Order being imposed and advise a CCO of your current name and address.

Report to and receive visits from, a CCO as directed by the Court.

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

Be under the supervision of a CCO, which includes complying with any reasonable direction of the officer (including direction for the purposes of s 31 or 32 of the HRSO Act).

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

Not commit a serious offence during the period of the Order.

Be subject to electronic monitoring under s 31 of the HRSO Act.

ADDITIONAL CONDITIONS

Residence

Take up residence at [Address Redacted], and spend each night at that address or at a different address only if such different address is approved in advance by a CCO.

Reporting to a CCO and supervision by a CCO

Report to a CCO at your approved release address within normal business hours on the day of release from custody under the Order.

Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.

Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of a CCO.

Attendance at programs or treatment

Consult, engage, attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, mentor, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO.

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

Medications/Mental Health

Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO. Undertake medication treatment, including anti-depressant medication or anti-libidinal treatment in consultation with a medication practitioner or medical practitioners.

Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO.

Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of any medical treatment or medication being undertaken including if they become aware, or suspect that you have ceased undertaking medication; and provide details relating to your level of risk of reoffending and compliance with treatment to the Department of Justice.

Comply with all testing to monitor your compliance with medical treatment and anti-libidinal treatment as directed by a CCO.

Reporting to WA Police

Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 72 hours of the imposition of the Order, and thereafter report to and receive visits from WA Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team or their delegate.

Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).

If requested, permit WA Police to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under the Order and allow the seizure of any such items that WA Police believe to contravene the conditions of the Order.

Remain at your premises and/or vehicle when WA Police conduct a search of your residence and/or vehicle under the provisions of the HRSO Act.

When requested, advise WA Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all screen name(s), user name(s), and email addresses.

Disclosure/Exchange of Information

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

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

Restrictions on contact with victims

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

Unless contact with victims is permitted pursuant to condition 25, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture.

Report to a CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next working day you report to a CCO or WA Police.

Prevention of high-risk situations

Report at your next contact with a CCO, the formation of any domestic, romantic, sexual or otherwise intimate relationship by you with any person.

As directed by your CCO, make full disclosure regarding your past offending and the Order to anyone with whom you commence an ongoing domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or by WA Police.

Not purchase, or possess, or consume or use alcohol.

Not to go, enter any part of your body inside, or remain at any licensed premises unless permitted or required to do so for the following reasons:
a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person
b) For a purpose, and a duration approved in advance by a CCO.
c) On the order of a CCO or WA Police.

Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
a)The contact is authorised in advance by a CCO and such contact is supervised at all times by an adult approved in advance by a CCO.
b)The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.

Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under condition 32, you must withdraw immediately from the presence of the child.

Provide the name, address, location and any details known by you of any contact with a child under the age of 18 years both to a CCO and to WA Police on the next occasion you report to a CCO or WA Police.

Not to form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time, including former victims of your previous offending, without prior approval of a CCO.

Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved by a CCO and to cease/cancel such memberships if directed to do so by a CCO or by WA Police.

Advise a CCO or WA Police of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.

Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 37, without prior approval.

Enable device locking or password access of your computer, telecommunication and/or electronic devices. Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 37, or any online accounts, to any person other than a CCO or WA Police.

Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to a CCO or WA Police upon request any passwords or any other means used to unlock or access the device. This includes providing all screen name(s), user name(s), and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.

Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

Not to access online child pornography. Pornography means printed or visual or any medium of material that contains the explicit description or display of sexual organs or activity.

Not access the internet for, nor collect or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not. Possession of such images depicting a child or children on items such as on household items or of your immediate family, may be authorised by a CCO. Immediate family means pictures of yourself, your siblings, your parents and your spouse.

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

Curfew

Be subject to a curfew, pursuant to s 32 of the HRSO Act, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.

When subject to a curfew under the Order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to a CCO or WA Police or their agent monitoring your compliance with the curfew.

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

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
7 DECEMBER 2023