The State of Western Australia v ACJ

[2021] WASC 219

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ACJ [2021] WASC 219

CORAM:   FIANNACA J

HEARD:   28 JULY 2020

DELIVERED          :   2 JULY 2021

FILE NO/S:   SO 11 of 2019

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

ACJ

Respondent

Catchwords:

High risk serious offender - Whether the respondent is a high risk serious offender - Whether the risk of committing further serious offences can be managed on a supervision order or whether a continuing detention order is necessary - Supervision order granted

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)

Result:

Supervision order granted

Category:    B

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	Mr S McGrath

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Mr S McGrath

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

Director of Public Prosecutions (WA) v Hart [2019] WASC 4

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

DPP (WA) v Griffiths [2015] WASC 393

The State of Western Australia v ACW [2020] WASC 177

The State of Western Australia v ACW [No 2] [2020] WASC 480

The State of Western Australia v Corbett [No 8] [2021] WASC 171

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

The State of Western Australia v MBW [No 7] [2020] WASC 404

The State of Western Australia v Narrier [No 6] [2020] WASC 349

The State of Western Australia v PAS [No 3] [2021] WASC 117

The State of Western Australia v Pindan [No 5] [2021] WASC 72

The State of Western Australia v Rao [2019] WASC 93

The State of Western Australia v Ryan [2021] WASC 38

The State of Western Australia v ZSJ [2020] WASC 330

FIANNACA J:

The application and its history

1. This is an application that comes to be dealt with under the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) for orders that the respondent be detained in custody indefinitely, or that he be subject to conditions when not in custody, on the basis that he is a high risk serious offender.

Commencement of the proceedings under the Dangerous Sexual Offenders Act 2006

1. The respondent has a history of sexual offending against female children under the age of 16 years, including a number of sexual offences against girls under the age of 13 years.  The offending occurred over a period of 21 years, commencing in 1990.  The offences were committed against eight girls, six of whom were under the age of 13 years.  The respondent was convicted of the sexual offences against those children in 1990, 1994 and 2013.  On each of those occasions he was sentenced to a term of imprisonment.  After serving each of the first two terms of imprisonment, he offended again.  On the last occasion he was convicted, he was sentenced to a total effective term of 7 years' imprisonment.

2. On 31 December 2019, at a time when the respondent was serving the last term of imprisonment, and within the final year of that sentence, the Director of Public Prosecutions for Western Australia (the DPP) made an application in the name of the State of Western Australia (the applicant) for an order under Division 2 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) that -

   (a)the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order);

   (b)alternatively, the respondent be subject to conditions when not in custody (a supervision order).

3. The application was made on the basis that the respondent was, at that time, a serious danger to the community, in that there was an unacceptable risk that, if one of those orders was not made, the respondent would commit a serious sexual offence,[1] in particular, an offence of the kind he has previously committed against female children.[2]

   [1] Section 7 and s 17 of the DSO Act.

   [2] It is sufficient at this stage to note that, by s 3 of the DSO Act, a 'serious sexual offence' was an offence which came within the meaning of 'serious sexual offence' in s 106A of the Evidence Act 1906 (WA), which referred to offences mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more.  The offences of which the respondent has been convicted included sexual penetration of a child under the age of 13 years, indecently dealing with a child under the age of 13 years, and indecently dealing with a child over the age of 13 years, but under the age of 16 years, all of which were serious sexual offences for the purposes of the Evidence Act. 

4. The application was filed pursuant to s 8 of the DSO Act, which provided that such an application may be filed in relation to a person, referred to as 'the offender', who, at the time the application was filed, was under a custodial sentence for a serious sexual offence. The sentence the respondent was serving at the time the application was made was in respect of serious sexual offences.

Preliminary hearing

1. At a preliminary hearing of the application on [REDACTED], pursuant to s 11 and s 14 of the DSO Act, [REDACTED] concluded on the balance of probabilities that there were reasonable grounds for believing that the court might find, under s 7(1), that the respondent is a serious danger to the community. Accordingly, his Honour made orders under s 14(2), setting 28 July 2020 as the date for the substantive hearing of the application under Division 2 of the DSO Act, and ordering that the respondent undergo examinations by two qualified experts, namely, Dr Wojnarowska (a forensic consultant psychiatrist), and Ms Hasson (a forensic psychologist) for the purpose of preparing reports as required by s 37 of the DSO Act.

Interim detention order

1. The sentence the respondent was serving had been imposed on 26 April 2013, and was to expire on 25 April 2020. Section 14(2)(b)(i) of the DSO Act provided that if the respondent to an application (referred to as 'the offender') was in custody at the time of the application and might otherwise be released from custody before the application was finally decided, the court may order that the respondent be detained in custody for the period stated in the order. In accordance with that provision, [REDACTED] ordered that the respondent be detained in custody until the final determination of this application (the interim detention order).

2. The respondent has remained in custody by virtue of the interim detention order since [REDACTED].

Division 2 hearing

1. The hearing of the application under Division 2 of the DSO Act proceeded on 28 July 2020 before me. At the conclusion of the hearing I reserved my decision.

2. The legislation governing the application has subsequently changed. As I noted at the outset, and will explain further below, the application now comes to be dealt with under the HRSO Act. As it will become apparent, the changes do not substantially affect the issues to be determined or the manner in which I must approach the application. Nevertheless, it is necessary to outline the statutory scheme that now governs the application.

Enactment of the HRSO Act

1. The HRSO Act received the Royal Assent on 9 July 2020, as a result of which pt 1 of the HRSO Act came into effect.[3] Although that was before the hearing of this application, the relevant parts of the HRSO Act that affect these proceedings came into force after the hearing, on 26 August 2020 (commencement day)[4] by virtue of proclamation pursuant to s 2(1)(c) of the HRSO Act.[5] Upon commencement of those parts of the HRSO Act, the DSO Act was repealed.[6] Until that time, the DSO Act had effect, so the hearing was conducted under that statute.

   [3] HRSO Act s 2(1)(a) and Compilation table.

   [4] The term 'commencement day' has relevance for the purposes of s 124, and is defined in s 122 to mean 'the day on which this section comes into operation', which, by virtue of s 2(1)(c) and the proclamation referred to below, was 26 August 2020.

   [5] High Risk Serious Offenders Act 2020 Commencement Proclamation 2020, cl 2 (SL2020/131; Government Gazette, WA, 14 August 2020, p 2619).

   [6] HRSO Act s 123.

2. Although the DSO Act was repealed on 26 August 2020, s 124(1) of the HRSO Act provides that, as the application made under the DSO Act in these proceedings had not been finally determined by the commencement day, the application and these proceedings continue and may be determined under the HRSO Act, and for the purposes of determining the application under the HRSO Act, the application is taken to have been made under the corresponding provision of the HRSO Act. By s 124(2), the application may be continued by the DPP or by the State Solicitor (by or under the authority of the Attorney General as provided in s 11 of the HRSO Act).[7] Further, by s 125, if an order made or direction given under the DSO Act is in effect on commencement day, it continues in effect and is taken to have been made or given under the corresponding provision of the HRSO Act. The interim detention order continues in effect accordingly.

   [7] HRSO Act s 124(2).

3. The objects of the HRSO Act are:[8]

   (a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and

   (b)to provide for continuing control, care or treatment of high risk serious offenders. 

   [8] HRSO Act s 8.

4. Section 7 of the HRSO Act provides:

   (1)An offender is a high risk serious offender if the court dealing with an application under this Act finds that it 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 adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

   (2)The State has the onus of satisfying the court as required by subsection (1).

5. A 'restriction order' is a continuing detention order (CDO) or a supervision order, both of which are defined in terms that are similar to the meaning given to those forms of order in the DSO Act.[9]

   [9] HRSO Act s 3 (definition of 'restriction order'), s 26 ('continuing detention order') and s 27 ('supervision order'). In The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ), I explained that, in the DSO Act, the meaning was to be ascertained from s 3 (the definitions section), which referred in respect of each term to the later provisions that authorised the making of the orders (in particular s 17(1)(a) and (b)). The description of the orders in those later provisions gave content to the meaning of those terms.

6. As I noted in The State of Western Australia v ZSJ, the overall effect of the HRSO Act is to widen the scope of the regime that previously applied in respect of persons who came within the description 'dangerous sexual offenders' in the title of the DSO Act, to other offenders considered to be 'high risk serious offenders', within the definition to which I have just referred.[10] The widening of the previous regime is achieved by the definition of 'serious offence'.[11] In addition to offences that previously came within the definition of 'serious sexual offence' under the DSO Act, Parliament has determined that there are numerous other offences (most of which involve violence or some other particular danger to the community) from which the community requires protection by the making of a restriction order if there is an unacceptable risk the offender will commit such an offence.

   [10] ZSJ [5].

   [11] HRSO Act s 3, s 5 and sch 1.

7. However, although its scope is wider, the HRSO Act operates largely as the DSO Act did in respect of serious sexual offences.[12]  Whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether he is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.  I will deal with those matters in more detail below.

The manner in which the application is to be determined under the HRSO Act

[12] ZSJ [5]. See also The State of Western Australia v CF [2021] WASC 20 (CF) [30], [35]; The State of Western Australia v Narrier [No 6] [2020] WASC 349 (Narrier [No 6]) [4], [29] ‑ [30]; The State of Western Australia v MBW [No 7] [2020] WASC 404 (MBW [No 7]) [29] ‑ [30]; The State of Western Australia v ACW [No 2] [2020] WASC 480 (ACW [No 2]) [6]; and The State of Western Australia v Pindan [No 5] [2021] WASC 72 (Pindan [No 5]) [25].

1. The application now comes to be dealt with as an application under s 35 of the HRSO Act, and in accordance with the provisions of s 48. As will appear below, the issues to be determined are essentially the same as were required to be determined under the DSO Act at the Division 2 hearing. The evidence and submissions presented at the hearing address those issues. Therefore, it has not been necessary to invite further submissions on the basis of the legislative change, and neither party has applied to adduce further evidence.[13]

   [13] On 23 December 2020, pursuant to s 11(4) of the HRSO Act, the State Solicitor's Office took over carriage of the matter from the DPP.

Statutory framework and legal principles

1. As I discussed in ZSJ, given that the HRSO Act operates largely as the DSO Act did in respect of serious sexual offences, the concepts and criteria with which the court is concerned in determining applications under the HRSO Act are substantially the same as they were under the DSO Act.[14] Therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non‑sexual offences.[15]

   [14] See ZSJ [30] ‑ [34]. See also CF [34].

   [15] ZSJ [31]. See also CF [31]; Narrier [No 6] [4], [29] ‑ [30]; MBW [No 7] [29] ‑ [30]; ACW [No 2] [6]; and Pindan [No 5] [25].

2. At [30] - [63] of ZSJ, I set out my reasons for coming to those conclusions, comparing relevant provisions of the DSO Act and the HRSO Act and referring to the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General, wherein it was noted that the legislation was intended to fully preserve the provisions that applied in respect of dangerous sexual offenders in the DSO Act. I adopt what I said at [30] - [63] of ZSJ. However, for context, it will be necessary to outline the relevant provisions of the HRSO Act and the significant legal principles I must apply.

3. I set out, at [14] above, the provisions of s 7 of the HRSO Act, by which the circumstances in which a person is said to be a high risk serious offender are defined by reference to a finding by the court that it is satisfied of certain matters by acceptable and cogent evidence and to a high degree of probability. The State has the onus of satisfying the court of those matters. The nature of the evidence required, and the onus and standard of satisfaction are the same as under the DSO Act.

4. The matters about which the court must be satisfied under s 7(1) of the HRSO Act are that:

   (1)it is necessary to make a restriction order in relation to the offender;

   (2)the necessity for the order stems from the need to ensure adequate protection of the community; and

   (3)what the community must be protected against is the 'unacceptable risk' that the offender will commit a serious offence.

5. Satisfaction of those matters to a high degree of probability constitutes a finding that the offender is a high risk serious offender.[16]

   [16] HRSO Act s 7(1) and s 48.

6. As I explained in ZSJ,[17] s 7(1) of the HRSO Act is to the same effect as the combined effect of s 7 and s 17(1) of the DSO Act, which was the statutory framework affecting these proceedings at the time of the hearing. In particular, when dealing with the risk posed by an offender who was originally before the court pursuant to the DSO Act, s 7 of the HRSO Act does not contain any criterion necessary to find that person to be a high risk serious offender that was absent in the DSO Act for the purposes of determining whether he was a serious danger to the community.[18] Further, a finding that it is necessary to make a restriction order to ensure adequate protection of the community against 'an unacceptable risk that the offender will commit a serious offence' necessarily entails a finding that, if the offender were not subject to a restriction order, there would be an unacceptable risk he would commit a serious offence, which was the formulation in s 7 of the DSO Act.[19]

   [17] ZSJ [38], [44].

   [18] ZSJ [42].

   [19] ZSJ [44].

7. The starting point under the HRSO Act is to determine if there is a risk that the respondent would commit a serious offence.

8. Pursuant to s 3 and s 5(1) of the HRSO Act, a 'serious offence' is an offence that is specified in Schedule 1 of that Act. Offences that were serious sexual offences under the DSO Act come within that definition, in that they are now set out specifically in Division 1, of Schedule 1, being 'offences that are serious offences in all circumstances'. In particular, the respondent's risk is alleged to relate to the types of offences he committed in the past. They included offences of sexually penetrating a child under the age of 13 years, indecently dealing with a child under the age of 13 years, indecently dealing with children over the age of 13 years and under the age of 16 years, and indecently dealing with a child who is a lineal relative. Those offences were contrary to s 320, s 321 and s 329 of the Criminal Code (WA) (Criminal Code), each of which is a specified serious offence in Schedule 1 of the HRSO Act. In addition, the respondent was convicted in earlier years of offences under provisions of the Criminal Code that have since been repealed and replaced with offences that cover the same conduct. They were offences of indecently dealing with a child under the age of 16 years and procuring a child under the age of 16 years to indecently deal with him (both under Criminal Code s 189), aggravated sexual penetration of a child under the age of 16 years (Criminal Code s 324E) and indecently assaulting a child under the age of 16 years (Criminal Code s 324C). Those offences are also serious offences by virtue of s 5(2) of the HRSO Act.

9. The next issue is whether the risk would be unacceptable in the absence of a restriction order.  In Director of Public Prosecutions (WA) v Williams, Wheeler JA elucidated what, in her Honour's view, was meant by 'unacceptable risk' under the DSO Act.[20] Her Honour's elucidation of the meaning of that phrase, which was subsequently applied in cases under the DSO Act, also applies to the concept of 'unacceptable risk' under the HRSO Act. Her Honour said:[21]

   In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. (emphasis added)

   [20] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [63] - [65].

   [21] Williams [63] - [65].

1. The meaning of 'unacceptable risk' under the DSO Act was considered further in Director of Public Prosecutions (WA)v GTR, where Steytler P and Buss JA said that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender 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).[22] Again, those principles apply equally to the concept of 'unacceptable risk' as it relates to a 'serious offence' under the HRSO Act.

   [22] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 (GTR) [27] (Steytler P & Buss JA).

2. The need for the court to be satisfied 'to a high degree of probability' is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.[23]  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.  However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[24]

   [23] GTR [28] (Steytler P & Buss JA).

   [24] GTR [34] (Steytler P & Buss JA).

3. Section 48 of the HRSO Act, which corresponds to s 17 of the DSO Act, provides:

   (1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -

   (a)make a continuing detention order in relation to the offender; or

   (b)except as provided in section 29, make a supervision order in relation to the offender.

   (2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

4. It follows that the court must make a restriction order (i.e. either a CDO or a supervision order) if, having been satisfied of the matters set out at [22] above, it finds that the person is a high risk serious offender.[25]

   [25] The State of Western Australia v Ryan [2021] WASC 38 at [4].

5. The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2).[26] As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[27]

   [26] The State of Western Australia v Latimer [2006] WASC 235 [49].

   [27] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].

6. However, the proviso in s 48(1)(b), referring to s 29, means that the court cannot make a supervision order, and therefore must make a CDO, unless it is satisfied, on the balance of probabilities, that a respondent will substantially comply with the standard conditions of a supervision order.[28]   The respondent has the onus of proving that he will substantially comply.[29] That proviso and the statement of the onus of proof were previously incorporated in s 17 of the DSO Act.

   [28] HRSO Act s 29(1).

   [29] HRSO Act s 29(2).

7. The standard conditions referred to in s 29 are those specified in s 30(2) of the HRSO Act, which in the DSO Act were specified in relevantly identical terms in s 18(1).[30]  A supervision order must contain conditions that the person who is subject to the order will:

   (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 s 31 or s 32 [of the HRSO Act]);[31] 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;[32] and

   (g)be subject to electronic monitoring under section 31[of the HRSO Act].

   [30] HRSO Act s 3 (definitions) and s 30(2).

   [31] DSO Act s 18(1)(d) referred to 'section 19A or 19B', which correspond to s 31 and s 32 of the HRSO Act.

   [32] DSO Act s 18(1)(f) referred to 'a sexual offence as defined in the Evidence Act 1906 section 36A', which included offences that were not within the meaning of 'serious sexual offence' in the DSO Act. Some of the offences referred to in s 36A of the Evidence Act are not included in the definition of 'serious offence' in the HRSO Act.

8. Therefore, the effect of s 29(1) and (2) of the HRSO Act (as was the case with s 17(3) and (4) of the DSO Act) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order.

9. In Director of Public Prosecutions (WA) v Hart,[33] I expressed views, which have been adopted in subsequent cases, as to the meaning of 'substantially comply with' in the equivalent provisions of the DSO Act. That interpretation applies to s 29(1) of the HRSO Act.[34]  Accordingly, the words of that provision should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order.  In essence, I must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious offence.

   [33] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).

   [34] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [48] (Corbett); The State of Western Australia v PAS [No 3] [2021] WASC 117 [17]; CF [61].

10. As I identified in Hart, some matters that will be of relevance are (a) the respondent's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions); (b) his capacity to comply with the conditions; (c) what measures there are in place to ensure he would substantially comply; and (d) the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the HRSO Act. In particular, where engagement in counselling is to be a condition of the supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk. The same may be said of engagement in supervision with the Community Corrections Officer (CCO) allocated to the respondent.[35]

    [35] The State of Western Australia v Corbett [No 8] [2021] WASC 17 [519].

11. Even where the court is satisfied that the respondent will substantially comply with the standard conditions of a supervision order, the court must make a CDO if it is not satisfied (which includes if it is simply left in doubt) that conditional release under a supervision order will ensure an adequate degree of protection to the community.[36]

    [36] Williams [86] (Wheeler JA, Le Miere AJA agreeing).

12. 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 high risk serious offender, being:

    (a)any report prepared under s 74 for the hearing of the application and the extent to which the respondent cooperated in the examination required by that section;

    (b)any other medical, psychiatric, psychological, or other assessment relating to the respondent;

    (c)information indicating whether or not the respondent has a propensity to commit serious offences in the future;

    (d)whether or not there is any pattern of offending behaviour by the respondent;

    (e)any efforts by the offender to address the cause or causes of his offending behaviour, including whether he had participated in any rehabilitation programme;

    (f)whether or not his participation in any rehabilitation programme has had a positive effect on him;

    (g)the respondent's antecedents and criminal record;

    (h)the risk that, if he were not subject to a restriction order, he would commit a serious offence;

    (i)the need to protect members of the community from that risk; and

    (j)any other relevant matter.

13. This list is not closed and the matters overlap.

14. I note that one of the standard conditions that must be included in a supervision order, and with which the court must be satisfied the respondent would substantially comply, is that he not commit a serious offence during the period of the order (s 30(2)(f)). Although the respondent's risk is alleged to be in respect of sexual offending against children, and the application was brought on that basis, the effect of s 30(2)(f) is to require the court to be satisfied on the balance of probabilities that the respondent will not commit a serious offence of any kind specified in sch 1 of the HRSO Act. It is not an issue that requires further consideration in this case, as there is no suggestion the respondent might commit some other kind of serious offence.

The issues in this application

1. In summary there are two matters to be determined in these proceedings:

   (1)Is the respondent a high risk serious offender?

   (2) If so, is the appropriate order a CDO or release into the community on a supervision order?

2. The applicant's case is that the court can be satisfied to the requisite standard that the respondent is a high risk serious offender, and that, having regard to all the circumstances, the court cannot be satisfied that a supervision order will ensure the adequate protection of the community against the unacceptable risk that the respondent would commit a serious offence, being a serious sexual offence against a girl under the age of 16 years (and potentially under the age of 13 years) of the kind he has committed previously.  Therefore, the applicant's case is that the appropriate restriction order is a CDO.

3. The respondent's case is that he has undertaken programmes to address the factors that led to his past offending, that his sexual interest is in adult women and he does not have an ongoing sexual interest in girls under the age of 16 years, and, therefore, the court should not be satisfied that there is an unacceptable risk that he would commit a serious offence of the kind I have mentioned if he is not subject to a restriction order.  In the alternative, the respondent's case is that the court can be satisfied to the requisite standard that he would substantially comply with the standard conditions of a supervision order and that such an order would provide adequate protection of the community, having regard to the conditions that have been proposed.  Therefore, the respondent submits in the alternative, that the appropriate order is a supervision order, and he should be released to reside at a proposed residence where he would be living with his current adult partner.

The evidence in these proceedings

1. In an application for a restriction order, the court must hear any admissible evidence called by the State and, if he elects to give or call evidence, any admissible evidence given by or on behalf of the respondent.[37]  The rules of evidence apply, but are modified to permit the court to receive in evidence:[38]

   (a)any document relevant to the antecedents or criminal record of the respondent; or

   (b) anything relevant contained in the official transcript of any relevant proceeding against the respondent; or

   (c) any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the respondent; or

   (d)any relevant material of the kind mentioned in s 7(3) relating to the respondent.

   [37] HRSO Act s 84(3) (previously DSO Act s 42(2), which was in relevantly identical terms).

   [38] HRSO Act s 84(4) and (5) (previously DSO Act s 42(3) and (4), which were in relevantly identical terms).

2. The evidence adduced by the applicant in these proceedings consisted of a Book of Materials (BOM), which was tendered by the applicant without objection, an email with additional information from the Community Offender Monitoring Unit (COMU) tendered at the hearing[39] and oral evidence given by:

   (1)Dr Wojnarowska, Consultant Forensic Psychiatrist;

   (2)Ms Hasson, Forensic Psychologist; and

   (3)Ms Comery, Senior Community Corrections Officer (SCCO), who prepared a Community Supervision Assessment report.

   [39] Exhibit 2.

3. A report titled Proposed Management Plan was prepared by Dr Bannister, Senior Clinical and Forensic Psychologist with the Forensic Psychological Services of the Department of Justice.  That report, which was included in the BOM, reviewed the respondent's psychological treatment and identified factors that needed to be addressed in the further management of the respondent, whether in the community or in custody, in particular in respect of psychological treatment.  Dr Bannister was unable to give evidence during the proceedings.

4. The BOM includes the reports of each of the witnesses and Dr Bannister, and comprehensive documentary materials concerning:[40]

   (1)the respondent's antecedents, including his criminal records from Western Australia, New South Wales and South Australia, a chronology of his offending prepared by the DPP, and information from the Department of Corrective Services about the respondent's behaviour in prison;

   (2)the offences the subject of Supreme Court proceedings INS 239 of 1990, including relevant witness statements, reports, and transcripts of the police interview with the respondent and the sentencing hearing;

   (3)the offence the subject of Supreme Court proceedings INS 241 of 1994, including the statement of material facts, statements by the victim, investigating officer and the respondent, the sentencing transcript and reports relied upon by the court in sentencing;

   (4)the offences the subject of District Court proceedings IND 590 of 2012, including the statements of material facts, transcript of the police interview with the respondent, statements by the victims, submissions for sentencing, transcript of the sentencing and reports relied upon by the court in sentencing; and

   (5)the post-sentence reports prepared with respect to the respondent, including treatment programme reports, and reports prepared as part of his parole assessment.

   [40] The Supreme Court and District Court proceedings referred to in this paragraph were in respect of the sexual offending to which I have referred in broad terms, and will be discussed in detail below. 

5. The respondent did not give evidence at the hearing.

Consideration of the matters under s 7(3) of the HRSO Act

1. As I noted earlier, the matters listed in s 7(3) of the HRSO Act, to which the court must have regard, overlap. The matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed by the information and findings in respect of all of the other matters listed in s 7(3). Consideration of the questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning the respondent's efforts at rehabilitation and the effect of his participation in rehabilitation programmes.

2. It is convenient to start with the respondent's antecedents, including his criminal history, in particular the offending that is most relevant to the assessment of his risk of serious sexual reoffending.

Respondent's antecedents and criminal history

Social history

1. The summary of the respondent's history, which follows, is collated from various materials in the BOM, including pre-sentence, psychological and psychiatric reports prepared for criminal proceedings, reports from sex offender treatment programmes in which the respondent has engaged, and the reports prepared for these proceedings, in particular the reports of Dr Wojnarowska and Ms Hasson.

2. The respondent is the eldest of five children.  His parents migrated from Malta to Australia, but he was born here.  The respondent was born in New South Wales in 1958 but moved to Western Australia as a young adult.  His parents are now deceased, as is his youngest brother, who died in his thirties.

3. The respondent told Ms Hasson that, as at the time of his interview with her, he was not maintaining contact with his siblings, due to shame and embarrassment associated with his offending and imprisonment.[41]  However, Dr Wojnarowska noted that the respondent's siblings were supportive of him, although they live in the eastern states.[42]

   [41] BOM 533 [4].

   [42] BOM 562 [7].

4. The respondent told Ms Hasson that his home life when he was growing up was happy and stable, and that his parents were loving and kind.[43]  He said his father worked hard to support the family, and engaged with him and his siblings as much as possible.[44]  The respondent told Ms Hasson that his parents had rules and boundaries, and instilled in the children pro-social attitudes, values and beliefs. The respondent also enjoyed a lot of contact with his extended family.[45]  However, in contrast to his happy and stable home life, the respondent described a stressful and negative school and community experience, marked by bullying, both verbal and physical, because of his Maltese ethnicity.[46]  Despite the very positive depiction of his parents, the respondent was critical of them for not doing enough to deal with the bullying he suffered.  Similarly, despite the general impression of a happy home life, the respondent told Ms Hasson that he was sexually abused as a child by an uncle, and that his parents did not report it to the police when he disclosed the abuse to them, although, on reflection, he believed they became more protective of him.[47]  The respondent told Ms Hasson that his 'dislike [of] his parents' lack of assertiveness', which he developed over the years, did not make him love them any less, but he had 'resolved not to be like them'.[48]

   [43] BOM 532 [2].

   [44] BOM 532 [2].

   [45] BOM 532 [2].

   [46] BOM 532 [3].

   [47] BOM 534 [12].

   [48] BOM 534 - 535 [12].

5. The respondent's description of his upbringing to Dr Wojnarowska was in similar terms to that given to Ms Hasson, but he identified some grievances not mentioned to Ms Hasson, and there were some inconsistencies between his account to Dr Wojnarowska and his account to Ms Hasson.  The respondent told Dr Wojnarowska that he felt nurtured by his parents, despite his father being absent most of the time because he worked long hours.[49]  However, he also told her that he received frequent physical punishment for misbehaviour, and that his parents lacked emotional warmth.[50]  Further, he said he was never praised for his achievements in school, and felt his brother was favoured by his parents.[51]  He said this led to him feeling angry and resentful during his formative years, and most of his childhood.[52]  The grievance in respect of favouritism towards his brother appears to be at odds with the respondent's statement to Ms Hasson that his mother treated them all equally.

   [49] BOM 570 [65].

   [50] BOM 570 [65].

   [51] BOM 570 [65].

   [52] BOM 570 [65].

1. Also in contrast to the respondent's description to Ms Hasson of a happy and stable childhood, was the account he gave to Dr Wojnarowska of multiple traumatic childhood events.  It is apparent that the respondent held grievances against his parents for inaction in respect of trauma suffered by one of his siblings and by him separately.[53]  However, the most significant trauma, in terms of matters affecting his risk of reoffending, was the sexual abuse to which he was subjected by his uncle, which the respondent also described to Ms Hasson, although the account he gave to Ms Hasson differed from the account he gave to told Dr Wojnarowska, as I will discuss shortly.  The respondent told Dr Wojnarowska that, when he disclosed the sexual abuse, his mother did not believe him.[54]

   [53] BOM 570 [67].

   [54] BOM 571 [72].

2. It is difficult to reconcile a number of the discrepancies in the respondent's accounts about his childhood, including the different perspectives about the way he felt towards his parents.  Ultimately, there does not appear to be anything in the way he was raised that would explain his sexual offending.  The most significant factor from his childhood that is relevant to his risk of reoffending is the sexual abuse, as will appear in my discussion of the expert evidence below.  The other factor that may be relevant is the respondent's relationship history, which I will discuss next.

Relationships

1. The respondent told Ms Hasson that he had his first intimate relationship was when he was 16 years old.  It lasted for two years and included his first experience of sexual intercourse.[55]  The relationship ended amicably.[56]  He then had an emotionally intimate relationship with a woman who tragically passed away when he was 19 years old, which caused him much sadness.[57]

   [55] BOM 533 [5].

   [56] BOM 533 [5].

   [57] BOM 533 [5].

2. The respondent's account to Dr Wojnarowska of his relationship history differed to some extent and provides some insight into his attitudes, expressed at various times, towards sexual relationships with adult women.  He told Dr Wojnarowska that he had a series of mostly long term girlfriends from the age of 17.[58]  He said that, at the age of 18, he had a relationship which lasted for two years until his partner was unfaithful.[59]  He said that all his girlfriends were unfaithful, and he started to believe that all women were unfaithful.[60]

   [58] BOM 570 [67].

   [59] BOM 571 [74].

   [60] BOM 570 [67].

3. The respondent was married for 12 years to a woman he met when he was 20 years old and she was 19.  They had four children together, three daughters and a son.

4. While they were together, the respondent's wife commenced a relationship with a woman.  It seems there was an initial period of separation, during which she left the respondent for that woman.  At the sentencing hearing for the respondent's first series of sexual offences, which were committed against his oldest daughter, his counsel said that it was during that period of separation that the respondent first commenced offending against his daughter.[61]  However, that appears to be contrary to the evidence, including the respondent's confession at the time, which suggests that the offending commenced earlier, at a time when the girl's mother was babysitting at a relative's home (and her relationship was still ongoing with the respondent).[62]  The discrepancy is not important, as it appears that at least some of the offending occurred when the respondent had access to the children on weekends during the period of initial separation.[63]  In any event, the respondent and his ex-wife subsequently reconciled for a brief period, but when she became aware of his sexual offending against their oldest daughter, she ended the marriage.  The divorce was finalised while the respondent was serving a term of imprisonment for that sexual offending.

   [61] BOM 237.

   [62] BOM 211, 220 and 225.

   [63] BOM 237.

5. In his interview with Ms Hasson, the respondent described the end of his marriage as 'catastrophic' and said he was devastated by it.[64]  He said that he lost contact with his children.[65]  It also appears that part of the adverse impact on him was the fact that his ex-wife had left him for a woman.[66]  The respondent told Dr Wojnarowska that it was humiliating his ex-wife had chosen female partners over him.[67]

   [64] BOM 533 [6].

   [65] BOM 533 [6].

   [66] For instance, the Completion Report from the Intensive Sex Offender Treatment Program, in which the respondent participated in 2015, notes that he appeared to experience 'significant shame regarding his wife's same sex attraction and declined to discuss it in group', indicating also that he considered his wife 'dead … don't think about her':  BOM 505.

   [67] BOM 564 [23].

6. The respondent was then alone for a few years and met his sexual needs by visiting sex workers.[68]  During that time, he was in other relationships, but they were not serious or long-term.[69]  One of his later victims was the daughter of one of those partners, although the respondent has denied specifically targeting that partner to gain access to her daughter.[70]

   [68] BOM 533 [7].

   [69] BOM 533-534 [8].

   [70] BOM 571 [69].

7. The respondent is currently in a de facto relationship which has lasted almost 18 years.  At the time of the hearing, his partner, Ms K, was 62 years old.[71]  The respondent had known Ms K for many years prior to becoming a couple, as he was friends with Ms K's deceased husband.  They reconnected when they were working on the same mine site.  Although the respondent's relationship with Ms K was previously an intimate relationship, she has indicated that she is not sure whether it will resume on that basis, and she has told the respondent that she will have him back in her home as a companion at this stage.[72]

   [71] BOM 583.

   [72] BOM 584.

8. Ms K is aware of the respondent's offending and the present application, and has indicated that she is prepared to be a part of the respondent's supervision and management team, if he is released.[73]  She appears to be a prosocial influence, although it has been noted that the respondent was in a relationship with her at the time he committed his most recent offences, and Ms K expressed views questioning the respondent's guilt of some of his offences when she was interviewed for the purposes of the respondent's parole assessment.[74]  In terms of ensuring the respondent avoids contact with children, Ms K told Ms Hasson that, even prior to the respondent's incarceration, her children did not visit her and the respondent on their property, which is in a rural location a considerable distance from Perth, and that the respondent will not have access to her granddaughters if he is released.[75]

Education and employment

[73] BOM 534 [11], 582.

[74] See [141] below.

[75] BOM 534 [10].

1. The respondent's time at school was affected by the bullying I referred to earlier.  The victimisation by his peers stemmed from ethnic prejudice and included name-calling, frequent assaults and humiliating experiences, both at school and away from school.[76]  It resulted in the respondent being in a number of physical altercations while he was in high school.[77]

   [76] BOM 532 [3] and 570 [66] - [67].

   [77] BOM 570 [67].

2. The respondent was an average student overall, but excelled in practical skills,[78] which led ultimately to his occupation as a mechanic.

   [78] BOM 570 [67].

3. Prior to the respondent's last term of imprisonment, he had had a stable history of employment, having worked since he left school in Year 10, predominately as a mechanic in the mining industry.  He has also been self-employed, owning and operating service stations[79] and a bait and tackle shop, which was the location of one of his offences.[80]  His employment history is seen to reflect 'a strong work ethic instilled in him by his parents'.[81]

   [79] BOM 533 [3].

   [80] BOM 266.

   [81] BOM 533 [4].

4. The respondent has previously been re-employed following periods in prison, so he is confident of his capacity to gain work in his area of expertise if released.

Substance use

1. The respondent reported no significant history of alcohol or illicit substance abuse.  As will appear later, the opinion of the expert witnesses is that there does not appear to be any association between substance use and the respondent's sexual offending.[82] 

   [82] BOM 537 [24]; BOM 545 [75]; BOM 577 [109].

2. However, I note that, at the hearing in November 1990 in respect of the respondent's first series of sexual offences, his counsel informed the court that, after the breakdown of the respondent's marriage, he was drinking heavily and using marijuana excessively, which were said not to be his regular or normal lifestyle.  His counsel seemed to suggest that his offending occurred in the context of a somewhat self-destructive and maudlin time in his life.[83]  On the other hand, when interviewed by Dr Wojnarowska, the respondent said that he drank excessively after his offending against R, as he became depressed, devastated by his actions.[84]

   [83] BOM 237.

   [84] BOM 564 [26].

3. Alcohol and illicit substance abuse were not identified as relevant issues in the sentencing proceedings in 1994 or 2013.

Medical history

1. The respondent has no previous history of major mental illness.  Dr Wojnarowska notes that despite the respondent stating that he has had a previous admission to Graylands Hospital, there is no evidence that he has had contact with the psychiatric services in Western Australia.[85]

   [85] BOM 569 [60].

2. The respondent has said that he has had three suicide attempts in the past in the context of relationship breakdowns and being charged with sexual offending.[86]  He has previously been treated with antidepressant medication during his second period of imprisonment.

   [86] BOM 569 [60].

3. I note that when the respondent was sentenced in 2013, the court was informed of a number of traumatic events in his life as an adult, in particular his involvement in rescue efforts after the Granville train accident and an incident in which he assisted the victim of a road accident, who died while the respondent was attending to him.[87]  However, there is no evidence that these events have had an enduring impact that is relevant to the respondent's risk assessment or treatment needs.

   [87] BOM 485.

4. The respondent has had a number of health issues in the past and continues to suffer from type 2 diabetes and the effects of a hernia, for which he has had surgery.  Both matters may have relevance in the present context.  For instance, in his interview with Ms Hasson, the respondent referred to his hernia as creating some impediment to masturbation, because it can be painful.[88]  Dr Wojnarowska referred to the possibility of type 2 diabetes causing erectile dysfunction.[89]  However, as will emerge, neither of those matters affects the final assessment of the respondent's risk of committing a further serious offence.  I will return below to what the respondent said about his current sexual drive at the time he was interviewed by Dr Wojnarowska and Ms Hasson.

Sexual development and sexual interests

[88] BOM 535 [15].

[89] ts 73.

1. As I mentioned earlier, the respondent spoke to both Dr Wojnarowska and Ms Hasson about the sexual abuse he suffered as a child at the hands of his uncle.  He also told both of them about an incident that happened years earlier, when he was in primary school, which he recalled as an abusive episode (and which he had characterised as such as a young child).[90]  The incident occurred during a medical examination by a nurse at school which occurred in front of other children.  Although this detail was missing from his account to Ms Hasson, the respondent told Dr Wojnarowska that he was the only boy in the room and there were a number of girls.[91]  He said that his pants were pulled down in front of the other children.  He told Dr Wojnarowska that the nurse touched his testicles.[92]  He said he was laughed at and teased by the other children; indeed, he told Ms Hasson the teasing continued for years.  The respondent told Ms Hasson that he wanted his parents to take action in relation to that incident, but they refused, believing that medical professionals were above reproach.[93]

   [90] BOM 534 [12] and 571 [71].

   [91] BOM 571 [71].

   [92] BOM 571 [71].

   [93] BOM 534 [12].

2. While the incident was perceived by the respondent as having a sexual character, he said he experienced it as abuse, as I noted earlier, and clearly it was traumatic for him, beyond the short-lived nature of the incident.  While it may be regarded as part of his history of sexual development, it does not appear to have any relevance to his sexual offending against girls under the age of 16 years, including girls who were under the age of 13 years, all of which, in any event, occurred in private.

3. The sexual abuse by the respondent's uncle, on the other hand, is relevant.

4. The respondent told Dr Wojnarowska that he was raped and indecently assaulted on numerous occasions by his maternal uncle over a period of 3 years.[94]  However, he told Ms Hasson that the abuse occurred over a period of 3 months, commencing when he was aged 7 or 8 years old.  His recollection when he described the incident to Ms Hasson was of his uncle 'rubbing himself against [the respondent].'[95]

   [94] BOM 571 [72].

   [95] BOM 534 [12].

5. The respondent told both Dr Wojnarowska and Ms Hasson that he reported the abuse by his uncle to his parents, but that they did not go to the police.[96]  I have referred earlier to the respondent's grievance in that regard, as described by him to Ms Hasson.

   [96] BOM 534 [12].

6. The respondent also told Dr Wojnarowska that, at the age of 12, he received the 'sex talk' from his friend's mother, while with her sons.  He also said that she taught him how to masturbate when she was alone with him.[97]

   [97] BOM 571 [73].

7. The respondent said that he was exposed to his father's pornographic magazines as a child.  He admitted viewing pornography as an adult in the past, but denied ever watching child pornography.[98]

   [98] BOM 535 [15].

8. The respondent became sexually interested in similar aged girls in his mid-teens and had a series of relationships as described above.

9. The respondent told Dr Wojnarowska that his sexual drive has always been in the average range.[99]  However, he told Ms Hasson that he experienced sexual dysfunction around the age of 27, during his first marriage, and that it had placed a strain on the relationship.[100]  He told Ms Hasson that he considered his current level of sexual drive (i.e. as at the time of the interview) to be normal for a man of his age and circumstances.[101]

   [99] BOM 571 [75].

   [100] BOM 535 [14].

   [101] BOM 535 [15].

10. The respondent told Dr Wojnarowska that he had never been unfaithful to his partners.[102]  However, that needs to be assessed against the fact that his sexual offending occurred while he was in relationships.  He told Dr Wojnarowska that he previously thought that women were 'manipulative, deceitful and could not be trusted', but that he has modified his views since he met his current partner.[103]

    [102] BOM 571 [75].

    [103] BOM 571 [75].

11. Ms Hasson noted that there was no clear indication that, as at the time of the interview, the respondent engaged in sexual fantasy or masturbated more frequently when he was feeling stressed or experiencing low mood, so 'sexual activity [did] not appear to be a maladaptive coping mechanism to self-soothe or ameliorate dysphoric emotions'.[104]  However, Ms Hasson was of the view that there is some evidence historically that this may have been an issue related to the respondent's offending.[105]

    [104] BOM 535 [16].

    [105] BOM 535 [16].

12. In terms of deviancy, Ms Hasson noted that the respondent acknowledged that 'exhibitionism and showing his penis to others is thrilling and exciting for him as he likes to see the look of shock and surprise on the faces of those he exposes himself [to]'.[106]

    [106] BOM 535 [17].

13. During his interview with Ms Hasson, the respondent denied a specific sexual interest in children, claiming he had never fantasised about children.  During his interview with Dr Wojnarowska, he hesitated when asked whether he thought he was a paedophile, eventually saying that 'although his actions could suggest that he was, he knew that his primary sexual interest was of adult women'.[107]  I note that, as the respondent did not give evidence in these proceedings, his denial of (or hesitation in admitting) a sexual interest in children must be assessed against his history of offending, to which I will turn shortly.

    [107] BOM 572 [79].

14. The respondent told both Ms Hasson and Dr Wojnarowska that, as at the time of his interviews, he rarely masturbated and, when he did so, he fantasised about his current partner.[108]

Criminal history and treatment interventions

[108] BOM 535 [15] and 572 [80].

1. The respondent's criminal history consists predominantly of his sexual offending, although he also has convictions for some relatively minor traffic offences, which occurred from 1985 to 2000 in Western Australia, South Australia and New South Wales, and for an offence of possessing an unlicensed firearm in Western Australia in December 1990, for which he was fined $50.

2. Although the respondent's offending against female children, involving serious sexual offences, commenced in 1990, he has an earlier conviction, in 1986, of 'wilful exposure', which, as will appear later in these reasons, was an instance of respondent's long-standing sexual deviance of exhibitionism, which is relevant to the assessment of his risk of committing further sexual offences against female children. 

Offence committed 6 October 1986

1. The respondent was convicted of the offence of wilful exposure on 6 October 1986.  That was his first criminal conviction.  He was fined $200 and placed on a good behaviour bond for 12 months.[109]

   [109] BOM 2.

2. The facts referred to in the Chronology of Sexual Offending in the BOM in respect of this offence simply state that the respondent was driving in Palmyra and initially drove past the complainant.  He then stopped his vehicle and exposed his genitals to the complainant by lying on his back and spreading his legs.[110]  The age and gender of the complainant are not stated in the available materials.  When the respondent was sentenced in 1990 for subsequent offences, his counsel informed the court that the respondent claimed the exposure occurred accidentally, while he was fixing a car.  Nevertheless, the magistrate convicted him after trial.

   [110] BOM 13.

3. Notwithstanding the respondent's claim at the time, he has subsequently admitted that he has had a problem with exhibitionism for a long time.

Offences committed between 4 April 1990 to 30 June 1990

1. On 9 November 1990, in the District Court, the respondent was convicted, on his pleas of guilty, of 10 sexual offences committed against his oldest daughter, R, who was 9 years old at the time of the offences.[111]  The offences consisted of four counts of aggravated sexual assault of a child under the age of 16 years, four counts of aggravated indecent assault of a child under the age of 16 years and two counts of procuring a child under the age of 16 years to indecently deal with him.  He committed the offences between 4 April 1990 and 30 June 1990. The counts on the indictment were said to be representative of the respondent's persistent sexual abuse of R.

   [111] BOM 244.

2. Most of the offending occurred when the respondent's ex-wife was babysitting at another home or when the respondent had access to the children on the weekends during a period when he was separated from his ex-wife, and he was alone with the children.  However, on other occasions, when the respondent's ex-wife was home, he would manipulate circumstances to be alone with R, including outside their house at the bins.

3. The first four counts were for offences of aggravated sexual assault.  The first two counts involved the respondent calling R into his bedroom in the evening while the other children were in the bath.  On the first occasion, with the door closed, he made R perform oral sex on him by placing his hand on her head and pushing his penis in and out of her mouth.  On the second occasion, he did the same thing, although it seems the door was open on that occasion.  The third count related to an occasion when the respondent's ex-wife was home and he asked R to take rubbish out the back of the house.  He followed her, put his penis in her mouth, and told her to suck it, making her perform oral sex on him by pushing on her head.  The fourth count related to an incident when the respondent was in the bathroom, having come out of the shower, and was wearing a robe. R came in to cuddle him and he again made her perform oral sex on him. 

1. The next four counts were for offences of aggravated indecent assault.  The fifth count consisted of the respondent calling R into his bedroom, putting her on the bed and biting her in the area of her vagina.  Counts 6 to 8 consisted of incidents in which the respondent rubbed R on her genitals.  The prosecution proceeded, in respect of these offences, on the basis that the rubbing was on the outside of R's underpants.[112]  It seems the offences occurred both inside the house and outside at the bins. 

   [112] BOM 235.

2. The last two counts, being offences of procuring R to indecently deal with him, consisted of the respondent exposing his penis and having R masturbate him.  The first of those offences occurred in the kitchen of the family home, while the respondent's ex-wife was watching television in the living room and the other children were in bed.  The last count occurred at the bins, and the respondent had R masturbate him until he ejaculated.  

3. The offending came to light when R wrote a note to her mother, who reported the matter to the police.  After some initial hesitancy, the respondent admitted the offending to the police.

4. The respondent was sentenced on 9 November 1990 in the Supreme Court to a total effective sentence of 3 years' imprisonment.  He was released on parole on 3 October 1991, after serving approximately 11 months in prison.[113]

Offence committed on 24 September 1993

[113] BOM 24; BOM 245; BOM 267.  The timing of the respondent's release on parole appears to have been a function of the sentencing regime in force at the time, whereby one third of the sentence was immediately remitted, and an offender was eligible to be released on parole after serving half of the remainder of the sentence imposed (having regard to the length of the sentence imposed on the respondent).

1. On 8 February 1994, the respondent was convicted in the District Court, on his plea of guilty, of a single count of indecently dealing with a child under the age of 13 years.[114]

   [114] BOM 265.

2. The offending occurred on 24 September 1993 in the respondent's bait and tackle shop.  He had been in the community for almost two years since his release on parole.  However, as will appear below, the respondent had committed other sexual offences against another victim during that period, for which he was charged in 2011 and eventually dealt with in 2013.

3. The victim in this instance, DP, was an 11-year-old girl who was known to the respondent.  He was friends with her mother.  On 24 September 1993, as DP was walking past the respondent's shop, on her way to another shop, he called out to her to come into the shop and asked to read the newspaper she had just bought.  Having left the newspaper with the respondent, DP went to the other shop and then returned to the respondent's shop alone.  She sat on his lap.  As she did so, the respondent placed his hand between her legs and rubbed her vagina over her pants.  The respondent subsequently grabbed DP's hand and placed it on his groin area, squeezing her hand to stimulate himself.  DP was frightened and deliberately dropped a lolly bag so she could climb off the respondent's knee and get away.  She then left the shop and told her mother what had happened.

4. The respondent was sentenced to 18 months' imprisonment with parole eligibility.  The sentencing judge requested that the respondent receive treatment and counselling from the Sex Offenders Treatment team during his imprisonment.[115]

   [115] BOM 273.

5. The respondent was released on parole on 29 July 1994.[116]

The respondent's participation in the Community Based Sex Offender Treatment Program

[116] BOM 24.

1. The respondent was interviewed by a psychologist at the Sex Offender Treatment Branch, Ms Zuin, on 1 March 1994.  He was assessed to be in need of treatment and to be suitable for the Sex Offender Treatment Programme (SOTP) at Karnet Prison.[117]  The plan was that the respondent would complete that programme and then follow on and complete the Community Based Sex Offender Treatment Program (CBSOTP).[118]  However, he was not able to be transferred to Karnet Prison in time for him to complete the SOTP before his release from prison.[119]  In those circumstances, another psychologist, Mr Wehner, subsequently supported the respondent's release on parole, after an interview on 12 July 1994, on condition that he attend the CBSOTP[120].

   [117] BOM 274.

   [118] BOM 276.

   [119] BOM 275.

   [120] BOM 276 - 277.

2. Accordingly, after he was released on parole, the respondent participated in the CBSOTP from 4 August 1994 until the termination of his parole order on 19 January 1995.[121]

   [121] BOM 278.

3. I note that, in her report of 8 March 1994, Ms Zuin observed that, while the respondent accepted responsibility for his offending, he tended to minimise the extent of his behaviour, displaying cognitive distortion and a degree of immaturity in respect of the offending.  Further, although the respondent had expressed a willingness to take part in the SOTP, his scores on psychological testing indicated that he was dishonest about sexually deviant interests and was not motivated towards treatment.[122] 

   [122] BOM 274.

4. On the other hand, in his report of 14 July 1994, Mr Wehner was of the view that the respondent generally had good insight into the nature of his sexual deviancy and positive motivation to engage in treatment.

5. The post‑treatment report, by another psychologist in the Sex Offender Treatment Unit, Ms Cull, recorded that, by the time the parole order expired, the respondent had completed all modules of the programme except for Relapse Prevention.[123]  Further, due to the early termination of the programme, the respondent did not complete the post‑treatment test.[124]  Ms Hasson has noted that the respondent would have completed modules in Anger Management, Victim Empathy and Human Relationships and Sexuality.[125]

   [123] BOM 278.

   [124] BOM 278.

   [125] BOM 540 [47].

6. The respondent initially sought permission to continue with the programme voluntarily to complete all the modules, but his work commitments interfered with his intention to do so.[126]

   [126] BOM 278.

7. The post‑treatment report noted that the respondent participated well in the programme despite some disruptive challenges to group facilitators and some 'inappropriate testing of their professional boundaries'.[127]

   [127] BOM 278.

8. The respondent expressed positive views about the CBSOTP to Ms Hasson.[128]  However, he told Dr Bannister that he had not made any treatment gains from participating in that programme and that he was 'thrown out' by the facilitator after completing just over half of it, which he said angered him.  As Dr Bannister pointed out, that is contrary to the objective evidence that the respondent completed a majority of the programme.[129]  Dr Wojnarowska noted in her report that the respondent could not recall what he learnt in the CBSOTP.[130]

   [128] ts 102.

   [129] BOM 552 [5].

   [130] BOM 571-572 [76].

9. No specific treatment gains were identified in the post-treatment report.  Given the respondent's varied and inconsistent accounts about the CBSOTP, it is questionable whether he made any significant gains.  History indicates that any gains were not enduring, in any event, given his later offending.  Indeed, one of the subsequent offences occurred within a year or two of the end of the parole order.  It is unfortunate, however, that he did not complete the module which, by its name, would appear to have been of particular significance to preventing relapse.

Offences from 1992 to 2011 - Index offending

1. The last series of sexual offences of which the respondent was convicted occurred from 1992 to 2011.  On 22 February 2013, he was convicted in the District Court, on his pleas of guilty, of 14 sexual offences committed by him against 6 victims during that period.  The offences have been referred to in these proceedings as the 'index offences', in that they were the offences for which the respondent was serving a sentence of imprisonment at the time this application was commenced, and which provided the foundation for the application. 

2. The respondent was originally charged with 22 offences, but, on the date of the pre-recording of the evidence of the youngest victim, and after negotiations with the State, he pleaded guilty to 14 counts on a new indictment, the State agreeing to discontinue the balance of the charges.  In summary, the charges of which the respondent was convicted consisted of eight counts of indecently dealing with a child under the age of 13 years, one count of sexually penetrating a child under the age of 13 years, 3 counts of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, and two counts of indecently dealing with a child who he knew to be his lineal relative.  The victims were another of the respondent's daughters, the daughter of a de facto partner, friends of the respondent's daughter, and the daughter of a friend of the respondent. 

3. The first two counts (indecently dealing with a child under the age of 13 years) occurred on dates unknown between 13 August 1992 and 15 August 1993 when the respondent was either 33 or 34 years old.  Notably, the offences were committed before the offences against DP, which occurred on 24 September 1993.  Potentially, they were significantly closer in time to when he was released on parole after his first sentence.  The offences were committed against the victim RK, who was aged between 9 and 11 years.  She was the daughter of his de facto partner at the time.  Count one was in respect of an incident that occurred when the respondent took RK fishing on the bank of a river.  He exposed his penis to RK and asked her if she wanted to lick it.  She refused to do so.  The respondent told her not to tell her mother, as she would not be believed.  Count two occurred on another fishing trip, this time on the respondent's boat.  The respondent again exposed his penis to RK and told her to hold it, which she did for a short time.  Again, the respondent told the victim not to tell her mother as she would not be believed.

4. Counts 3 to 5 were offences that occurred on dates unknown between 31 December 1994 and 1 March 1997 when the respondent was 36 to 38 years old.  He committed the offences against NF, who was aged 12 and was the daughter of one of the respondent's friends.  In respect of count 3 (indecently dealing with a child under the age of 13 years), NF was in the lounge room of the respondent's home.  The respondent walked past her and exposed his penis to her, by pulling his shorts aside.  This count was representative of regular instances of similar offending.  Counts 4 and 5 related to an occasion when the respondent took the victim fishing on his boat.  He anchored the boat on the river and exposed his penis to the victim, telling her to touch it and suck it. The victim refused, but the respondent took her hand and placed it on his penis.  That conduct was the subject of count 4 (indecently dealing with a child under the age of 13 years).  After a short time, NF pulled her hand away.  In respect of count 5 (sexual penetration of a child under the age of 13 years), the respondent then placed his hand down NF's pants, touched her on the vagina and penetrated her vagina with his finger.  She asked him to stop and to take her home, which he did. She did not tell her parents but called the Kids Helpline.

5. Counts 6 to 8, all of which were offences of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, occurred on unknown dates between 31 January 1997 and 1 January 1999 when the respondent was aged 38 to 40 years old.  The victim, BG, who was 14 years old, was a friend of the respondent's second-oldest daughter, K.  The respondent had gotten to know BG when she stayed over at his home with K.  He met BG's parents and chatted with them when BG's mother said she wanted to meet the respondent if BG was going to stay over on other occasions.  The respondent created an employment opportunity for BG in his delivery business and suggested that she stay at his house, as they would sometimes have to start early.  He had managed to gain the confidence of BG's parents sufficiently at that stage that they agreed to the arrangement. 

6. Count 6 related to an incident that occurred about a week after BG had started working with the respondent.  They had finished deliveries for the day and were heading home in the respondent's truck.  While they were both seated in the vehicle, the respondent asked BG to rub his groin as he had pain there.  BG leant over and began to rub the inside of the respondent's leg.  The respondent then grabbed her hand and placed it on his testicles underneath his shorts.  He was not wearing underwear.  She tried to remove her hand, but he held it there and caused her hand to squeeze his testicles.  He kept her hand there for a number of minutes.  When BG eventually took her hand away, the respondent told her she could keep going, if she wanted to.  She said she did not want to.

7. Count 7 related to another occasion in the same truck when the respondent again asked BG to rub his leg, which he said was sore.  As she did so, he again put her hand on his testicles underneath his shorts.  Again he was not wearing underwear.  A short time later, the victim pulled her hand away.  Count 8 related to another occasion when the respondent and BG were sitting in the respondent's truck and he told her to rub his groin because it was sore.  BG said she did not want to.  The respondent yelled at her, saying she had to help him out.  The yelling frightened her, so she rubbed his thigh.  Again the respondent grabbed her hand and placed it on his testicles under his shorts.  Again he was not wearing underwear. She tried to remove her hand, but the respondent kept placing her hand there.  Eventually she was able to remove her hand, and she refused his invitation to keep going.

8. BG said in her statement that she did not tell the respondent's daughters about the first incident, because she did not think they would believe her,[131] and she did not tell her parents about any of the incidents because she was scared of how they would react.[132]  She said that she complied with the respondent's demands because she was frightened of not being paid by the respondent or losing her job.  She also described that, from an early stage when she was staying at the respondent's home, he would walk around with only a towel on or naked, and would remove his shorts in the presence of his daughters and BG.  She also described an occasion when the respondent purported to assist her with back pain, when he came into the bathroom naked while she was naked in the shower.

   [131] BOM 352 [110].

   [132] BOM 355 [131].

9. Counts 9 and 10, which were offences of indecently dealing with a child under the age of 13 years, occurred on unknown dates between 31 December 1998 and 6 June 2000 when the respondent was either 40 or 41 years old.  He committed the offences against CF, the sister of NF, and, therefore, also daughter of one of the respondent's friends.  She was 12 years old at the time.  Count 9 occurred when the CF was sleeping at the respondent's house overnight with her brother.  She woke up to find the respondent's penis exposed and pushed into her face.  She pushed him away and he left.  Count 10 occurred on a different occasion, when CF was at the respondent's house helping her father repair his truck.  The respondent caught CF removing money from her father's wallet and told her, 'If you don't touch, it I will tell your dad.'[133]  The respondent then took CF's hand and placed it under his shorts on his penis. CF then pulled her hand away and left the house.

   [133] BOM 283.

10. Counts 11 and 12 were offences of indecently dealing with a child who the respondent knew to be his lineal relative.  He committed the offences on dates unknown between 31 December 1998 and 1 January 2000 against the youngest of his daughters, E, who was 16 to 17 years old at the time.  The respondent 40 or 41 years old.  In relation to count 11, E was lying on her bed watching a movie with the respondent, when he placed his hand on her genital area over her clothing and rubbed her vagina.  E moved away and asked him why he was doing that.  The respondent said, 'I don't know what's come over me, I haven't done that for a long time.'[134]  The victim told him not to do it again. Count 12 related to a different occasion when E had friends sleeping over and, therefore, was sleeping in the respondent's bed with him.  During the night, the respondent placed his hand under her knickers and rubbed her on the vagina.  She pushed him away and left the room.

    [134] BOM 283.

11. The respondent was interviewed by police in relation to counts 1, 2, 6 and 7 on 30 March 2011.  He denied all of those offences.

12. Less than two weeks after that interview, between 7 and 11 April 2011, the respondent committed counts 13 and 14, being two counts of indecently dealing with a child under the age of 13 years.  The respondent was aged 52 years, and the victim, GB, was aged 10 years old.  The respondent was a friend of the GB's parents and, at the relevant time, he was staying at their house, sleeping on a sofa in the lounge.  Count 13 occurred when GB got up in the night to go to the toilet and walked past the respondent.  He called out to her and then pulled out his penis as she approached.  He told her to touch it.  GB put both of her hands on his penis, until he removed them after a short time and she went back to bed.  Count 14 occurred the following morning.  GB was getting dressed in her bedroom with her older sister.  The respondent entered the room while GB was naked and touched her bottom.  He then sat on the bed and watched her get dressed.  GB's older sister told the respondent to leave, but he did not leave until the victim had finished dressing.

13. The respondent was again interviewed by the police on 26 August 2011.  Again he denied all of the offences.

14. The respondent was charged in respect of the offences I have outlined above on 14 September 2011, although, as I noted earlier, at that stage there were additional charges that were subsequently discontinued.

15. Having pleaded guilty on 22 February 2013, the respondent was sentenced on 26 April 2013 by Bowden DCJ.  His Honour imposed individual sentences for the 14 counts ranging from 12 months' imprisonment to 24 months' imprisonment.  His Honour ordered that the sentences for four of the counts were to be served cumulatively upon each other.  The balance of the sentences were ordered to be served concurrently.  This resulted in a total effective sentence of 7 years' imprisonment.  His Honour also ordered that the respondent be eligible for parole.[135]

    [135] BOM 489.

16. In sentencing the respondent, Bowden DCJ noted that the reports that had been obtained, which included a psychological report, spoke about the respondent's lack of ability to think beyond the present and to consider the consequences of his actions, as well as the fact that he was prone to undertake risky behaviour and behave irresponsibly.  His Honour noted that the reports also referred to the respondent's lack of insight and the fact that his previous participation in a treatment programme had not curtailed his offending.  A connection between the respondent's offending and his own sexual abuse had also been noted.  Other factors that had been identified as contributing to his offending included unmet sexual and emotional needs, poor social skills, poor interpersonal boundaries, poor emotional regulation and impulsivity.   His Honour noted that the respondent was considered to be a moderate to high risk of re-offending if untreated.  The respondent was considered to be paedophilic in his behaviour, with distorted attitudes towards his victims, including a lack of empathy and understanding of the effects of his abuse on children.[136]  His Honour noted that it had been assessed in the reports that the respondent should be closely monitored on release and should never have unsupervised contact with minors.[137]

1. In my opinion, the evidence establishes that the respondent has an overblown, unrealistic view of his own capacity to manage his risk in the community.  That was particularly evident during the ISOTP.  Further, while Ms K will provide a measure of protection against the respondent's risk of sexual re-offending, her support would not be sufficient to prevent the risk from being realised, as was evident in 2011.

2. For the reasons I have given, I am satisfied to a high degree of probability that, if the respondent were not subject to a restriction order, the risk that he would commit a serious offence is unacceptable.  I find, therefore, that he is a high risk serious offender.

Conclusion - CDO or supervision order

1. The question then is whether the respondent's risk could be managed adequately in the community if he were subject to a supervision order, in particular one in similar terms to the draft supervision order in these proceedings.  If so, then the appropriate order is a supervision order, given the need to make the order least invasive of the respondent's right to be at liberty (the respondent having served the punishment for his offending), provided the order will ensure adequate protection of the community, which is the paramount consideration.  Of course, before the court can reach that conclusion, it must be satisfied on the balance of probabilities that the respondent will comply with the standard conditions of the supervision order. 

2. If a supervision order cannot mitigate the respondent's risk sufficiently, then the court must make a CDO.

3. For the reasons that follow, I have come to the conclusion that a supervision order in the terms of the Annexure to these reasons will provide adequate protection of the community if the respondent is released to reside with Ms K at the proposed accommodation in Town A.

4. All of the findings I have set out at [395] and [396] above are relevant to the consideration of whether a supervision order is appropriate.  There are a number of factors identified there, and to a greater extent in my detailed analysis of the evidence, which could impinge on the effectiveness of a supervision order.  Of particular note are the respondent's failure to fully accept the diagnosis of paedophilia and the risk it presents for him, and his limited insight into the potential impact of other factors on his risk of re-offending.  In addition, the respondent's unrealistic belief that he can manage his own risk might make him inclined to be less reliant on the protective measures in the supervision order and to resent the very restrictive regime created by the conditions.  The compulsive and impulsive nature of the respondent's exhibitionism, which he acknowledges, may make it difficult for him to avoid committing an indecent or obscene act constituting a serious offence.

5. In considering whether a supervision order would adequately protect the community, the court must take into account any conditions that can be included in the supervision order.[562]  The court must also take into account whether the place where the respondent intends to live, and the circumstances in which he will be living there, are suitable to ensure that the supervision order will provide adequate protection of the community.  As I have explained above, the effectiveness of the proposed supervision order and the suitability of the proposed accommodation are interconnected issues.  The essence of the applicant's argument is that the proposed accommodation is not suitable because it would undermine the effectiveness of the supervision order in circumstances where the respondent continues to have outstanding treatment needs.

   [562] DPP (WA) v Griffiths [2015] WASC 393 at [103].

6. In my opinion the conditions of the supervision order in the Annexure, which incorporate the amendments I discussed above, address the various issues that have been raised by the experts as risk factors for the respondent. My reasons for reaching that conclusion are set out at [365] - [371] above. In my opinion, they are the minimum conditions that would be necessary to effectively manage the respondent's risk and adequately protect the community.

7. The conditions require the respondent to engage in treatment, both psychological and pharmacological. It is clear from the expert evidence that the respondent's ability to manage his impulsivity and exhibitionism is crucial in managing his risk of more serious sexual offending. I am satisfied, on the basis of Dr Wojnarowska's evidence, that it is a necessary condition of the respondent's release into the community that he be required to comply with a course of anti‑depressant (preferably SSRI) medication, as directed by his CCO, to assist in the treatment of those issues. As I noted earlier, the condition in the Annexure concerning medication is confined to non-hormonal anti-libidinal treatment (which includes SSRI medication), in accordance with Dr Wojnarowska's expert recommendation. It is nevertheless a significant measure in dealing with two aspects of the respondent's risk, namely his libido and his impulsivity, the latter of which is associated in particular with his exhibitionism. The respondent's preparedness to take the medication will be an important indication of his commitment to comply with the supervision order and deal with his risk of reoffending.

8. The proposed conditions also place restrictions and other obligations on the respondent that go well beyond the restrictions and obligations to which he was subject while on parole.  On the one hand, that might suggest that his previous successful completion of parole may not be a reliable guide to whether he will comply with the conditions of a supervision order.  The more stringent conditions may create greater stress for him and make it more difficult for him to comply.  On the other hand, the more extensive and closer degree of supervision and monitoring which the conditions would allow should enable the authorities to detect any non-compliance more readily and to act as necessary to deal with any change in his risk of re-offending.

9. The conditions provide for a substantial degree of monitoring in the community, even if the resourcing for such monitoring may be limited and the efficiency of responses may be reduced, given the geographical location of the respondent's intended residence.  I accept that the issues raised by the applicant's submissions in respect of those matters are real, and that there is a potential for the effectiveness of the usual measures for monitoring risk to be compromised because of the location of the residence.  I also accept that that the combined effect of outstanding treatment needs and logistical difficulties makes the effective implementation of a supervision order more precarious than if only one of those factors was at play.  However, the individual and combined effect of these factors needs to be considered in context.

10. For instance, the applicant's argument in relation to exclusion zones must be considered in the context that Town A does not have any schools, services or amenities where children are likely to be present. In light of Ms Comery's description, it is difficult to envisage the need for exclusion zones in that town.  As for Town B and Town C, there might be reason to create exclusion zones in those towns, but both have a police station with officers on duty.  While they are not 24-hour stations, the curfew condition could be utilised to ensure the respondent was not in those towns when the police station is not open.  In addition, as the respondent submitted, even in the metropolitan area, there is not necessarily an expectation that police would attend the scene and apprehend the respondent immediately, if he has entered an exclusion zone.  It is also relevant to consider that, apart from the respondent's very first offence of wilful exposure, his offending has been in or around homes where he was living or visiting, at his workplace (including in his truck) or in a secluded location while fishing, all with girls with whom he was familiar, rather than in public places with strangers.  Further, most of the respondent's offending has involved a degree of grooming.  The conditions are such that any elevation of risk should be detected at an early stage in treatment or in the supervision process, before grooming could occur.

11. The applicant acknowledged that, if the court concludes that a respondent is a high risk serious offender, but that in all other respects his risk could be managed in the community, the police would need to take a practical approach to the allocation of resources to enable the respondent's risk to be adequately monitored.

12. Although it was not discussed at the hearing, practical solutions could be utilised to overcome, at least to some extent, the difficulties raised in the desktop spatial analysis.  For instance, if a curfew is in place, consideration could be given to the police and the CCO contacting the respondent using an audio-visual application to check that he is in the house.  That might also be a means of checking who else is at the house, in particular whether any child is in the house.  Ms Comery's evidence was that it is a small house (two bedrooms and one bathroom).

13. I have given consideration to whether it ought to be a condition of the respondent's release that there be CCTV cameras installed at the front and rear entrances of the property, connected to a recording device, with conditions that the recording not be erased without approval of WA Police or a CCO.  That would allow for the comings and goings at the property to be captured on video, which might alleviate some of the concerns about infrequent compliance checks and monitoring who attends the house.  However, I have come to the conclusion that such a requirement is not necessary.  A significant consideration in that regard is that I am satisfied that Ms K has been consistent in her indication that she will not have children at the house and there appears to be no reason to doubt her statement to Ms Hasson that she did not allow her grandchildren to come to the house before the respondent was incarcerated on the last occasion.

14. I have come to the conclusion that the location of the proposed accommodation would not prevent the supervision order from providing adequate protection of the community.  I am satisfied that the respondent's risk can be adequately managed in the community while he is subject to the conditions of the supervision order in the Annexure, despite the fact he has not yet commenced individual psychological treatment or treatment with SSRI medication, and the combined effect of that with the logistical difficulties referred to be the applicant.  In that regard, I accept the opinions of Dr Wojnarowska and Ms Hasson that the respondent could be managed in the community while the SSRI medication and psychological treatment are commencing and in their early stages.  It seems to me also that Dr Bannister's opinion about a treatment plan was consistent with that conclusion.

15. Further, given the uncertainty that remains about the impact that the COVID-19 pandemic may have on freedom of movement and interactions the community in the future, I should note that I am satisfied that an adequate level of psychological counselling can be provided to the respondent by audio‑visual means if necessary.  However, while the geographical isolation of the proposed accommodation may also require counselling to be delivered in that way from time to time, it would be preferable for the respondent to attend in person whenever possible, as he has said he is willing to do.

16. To the extent that it is considered necessary to monitor the respondent's travel away from Town A in the early stages, condition 53 of the supervision order allows the CCO to require the respondent to give notice of such travel.

17. As I noted above, the respondent has indicated a desire to operate a workshop business in Town B.  The fact that he has an intention to pursue employment is a positive factor, but, given the intended location, it would need to be managed in light of the issues I outlined in discussing the condition concerning travel to Town B (condition 54 in the Annexure).  The respondent would be required to have approval from his CCO for any travel to Town B.  This might also be an instance in which exclusion zones could be used to prevent the respondent from going to places where his risk of reoffending might be elevated.

18. Finally, on the general question of whether the supervision order in the Annexure will provide adequate protection of the community, assuming adequate structures and services are in place, as discussed above, I have taken into account the imminence of the respondent re‑offending.  Both Dr Wojnarowska and Ms Hasson were of the opinion that the single most important factor that would affect the imminence of the risk that the respondent would sexually re-offend would be close physical proximity to a child.  As Ms Hasson said, other dynamic factors would also be relevant, but, as Dr Wojnarowska noted, if the respondent were subject to a supervision order and had no opportunity to see children or be in their presence, then the risk would not be imminent.  In my opinion, it is a relevant consideration in this regard that the respondent did not offend for a period of more than 10 years between his offending in 1998 - 2000 and his last offences in 2011.

19. The question of whether the respondent will substantially comply with the standard conditions of the supervision order requires consideration of all of the circumstances, both personal to him and external, which will affect him.  External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro-social support available to him.

20. Matters personal to the respondent include his attitude towards the relevant legislation, these proceedings and the conditions of a supervision order.  While the respondent's negative comments to Dr Bannister about those matters are a relevant consideration, I am satisfied on the basis of the evidence of Dr Wojnarowska and Ms Hasson that comments of that kind are part of the respondent's tendency to vent, raise grievances and perhaps even be contrarian, but that, as Ms Hasson put it, he 'does settle and change his views' when he is challenged and is required to reason about the issue.[563] For the reasons set out at [321] - [324] above, I do not consider that the comments made to Dr Bannister reflect an intention not to comply with the conditions of a supervision order. Nor do I regard them as indicative of a mindset that would predispose him to deliberately flout the conditions or compromise his compliance in some other way. On balance, his comments to the experts have indicated that he is prepared to comply if the court finds that a supervision order is necessary.

    [563] See [322] above.

21. I have come to the same conclusions, on the same basis, about the respondent's comments to Ms Hasson about psychologists and to Ms Comery about the ACC staff in Town C, where he will be required to report.  Ms Hasson said she thought the rapport she was able to build with the respondent might be regarded as indicative of his capacity to work with a psychologist.  Ms Comery said the respondent indicated a desire to make a fresh start with the ACC office in Town C.

22. I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order, in the relevant sense.  I am also satisfied he is likely to comply with the balance of the conditions.  In coming to those conclusions, I have taken into account the respondent's attitude to the conditions of the supervision order, his capacity to comply with the conditions and the measures that are in place to ensure he would substantially comply.  Apart from the reasons I have already outlined in this section, which inform this issue, I rely on the following matters.

23. The respondent has served a significant term of imprisonment and has remained in custody on an interim detention order for a further significant period.  Given his age, it might be expected that the prospect of a further term of imprisonment or indefinite detention would weigh more heavily on him now.  Those are real potential consequences in the event he were to contravene a condition of the supervision order.

24. Secondly, for the reasons I gave earlier concerning Ms K, I am satisfied she will provide support to the respondent that will augment in a meaningful way the support he will receive from his psychologist and his CCO to ensure he remains compliant with the conditions of the supervision order.  Her statement that she is prepared to be part of the risk management team suggests a commitment to ensuring the respondent remains compliant for his benefit as much as for the protection of the community.

25. Thirdly, the respondent has previously completed parole periods successfully.  His re-offending after doing so indicates a failure to rehabilitate, including a failure to internalise what he learnt during the CBSOTP, but it does not detract from the conclusion that the respondent was compliant with supervision.

26. Fourthly, he has exhibited compliant behaviour while in custody.  While I appreciate that is a very different setting, it is nevertheless the most recent indication of the respondent's attitude towards persons in authority.

27. Of course, the respondent would be expected to comply strictly with the conditions of the supervision order, in a manner and to an extent that is consistent with achieving the adequate protection of the community by the management and mitigation of his risk.  While the paramount purpose of the order is to protect the community, it also provides the respondent with the means by which he can maintain his liberty and avoid putting himself at risk of further sexual offending against female children, which would inevitably result in a further term of imprisonment.  He has an opportunity to receive treatment and support to enable him to achieve a reduction of his risk in due course to a point where it can be self-managed by him without the need for restrictions to protect the community. 

28. The respondent must also understand that offending involving indecent exposure, without touching, will nevertheless constitute a contravention of the order.  Regarding himself simply as 'a flasher' is not only wrong; it is a dangerous mindset that will put him at risk of further offending and a contravention of the supervision order.  If he contravenes the order, then, in light of the findings I have made concerning his risk, he would face the prospect of a CDO. 

29. As I noted in Hart, satisfaction that the respondent will substantially comply with the standard conditions of a supervision order is a necessary finding before a supervision order can be made, but it is only one consideration in determining whether such an order will provide adequate protection of the community.[564]  For all of the reasons outlined in this section, I am satisfied that the supervision order in the Annexure will provide adequate protection of the community against the otherwise unacceptable risk that the respondent would commit a serious offence.  Therefore, the appropriate restriction order in this case is a supervision order.

    [564] Hart [52].

Duration of supervision order

1. Both Dr Wojnarowska and Ms Hasson considered that a period of at least 5 years would be necessary to enable the benefits of psychological counselling to take effect with the goal of reducing the respondent's risk of sexual reoffending to an acceptable level without restrictions.  The distinct impression I have is that it is unlikely the respondent's risk would be sufficiently reduced in that time.  Indeed it remains to be seen whether it ever gets to the point where he can self-manage his risk without restrictions.

1. Under s 36 of the HRSO Act, the State may apply for a restriction order in relation to an offender who is subject to a supervision order that is to expire within one year. There is provision, therefore, for the State to apply for a further supervision order if, approaching the end of the supervision order I make, there is evidence that the respondent's risk is still at a level where there is a need for a further period of restriction I order to provide adequate protection of the community.

2. I have taken into account that the respondent's last offences were committed after a period of about 10 years without offending.  That might suggest that a risk may persist for that order of time, without it being realised, but that the protection of the community would warrant a lengthy period of restriction.  However, the respondent was not subject to a supervision order during that time and did not have the benefit of long-term individual treatment.

3. I have also taken into account that the respondent has been subject to interim detention order since [REDACTED].

4. I have come to the conclusion that, at this stage, the appropriate duration of the period for which the respondent should be subject to the supervision order is 5 years, and the respondent's circumstances can be reviewed by the authorities in the final year of that period to determine whether a further order is necessary.

Commencement date

1. Section 27 of the HRSO Act provides:

   (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.

2. Given that the accommodation to which the respondent would be released is a private residence he has previously shared with Ms K, it is possible that the implementation of the order could occur earlier than 21 days from the making of the supervision order.

3. However, as I noted earlier, approaching the delivery of this judgment, the Perth region is in lockdown due to the COVID-19 pandemic.  In those circumstances, I will hear from the parties as to the appropriate commencement date having regard to any impact the lockdown may have on implementation of the order.

Orders

1. Accordingly, I rescind the interim detention order made on [REDACTED], effective upon the coming into operation of the following order.

2. I order that, when not in custody, the respondent is to be subject to conditions in the terms of the Supervision Order annexed to these reasons, and that the order is to have effect for a period of 5 years from a date to be set after I have heard from the parties.

Anonymisation and suppression order

1. Ms Comery gave evidence that, if the address (the town, street address and number) of the respondent's proposed accommodation were to be published, it could put the safety of the respondent and his partner, and persons from any agencies who visit the address at risk, because of the potential for vigilante action.[565]  That could render the property unsuitable for use as the residential accommodation under the supervision order, with the consequence that the implementation of the supervision order could be compromised.  I am aware that there is an historical basis for these concerns, and that they are real.  There is, of course, a public interest in members of the community knowing whether they are at risk from a high risk serious offender.  However, the conditions of the supervision order allow for the authorities to make disclosure of the respondent's status to other persons, and it would be expected they would exercise judgment in that regard to ensure the adequate protection of the community.

   [565] ts 128.

2. Ms Comery said that COMU would support full suppression of details that would identify the respondent's residential address.  I am satisfied that is appropriate for the reasons outlined.  Accordingly, all references to the relevant location have been anonymised in these reasons (references to Towns A, B and C) and are redacted in the Annexure.

3. Further, I order that the publication of the address, including the town where the respondent will be residing when released, according to the Supervision Order made 2 July 2021, is prohibited.

4. To protect the privacy of the victims of the respondent's offending, the names of the respondent and the victims have also been anonymised in these reasons.

Annexure

IN THE SUPREME COURT OF WESTERN AUSTRALIA

SO 11 of 2019

IN THE MATTER of the High Risk Serious Offenders Act 2020 (WA)

THE STATE OF WESTERN AUSTRALIA  Applicant

-and-

[ACJ]  Respondent

_______________________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 2 July 2021

_______________________________________________________________________

The Court, having found pursuant to section 7 and section 48(1) of the High Risk Serious Offenders Act 2020 (WA) that there is an unacceptable risk that the Respondent would commit a serious offence if not subject to a continuing detention order or a supervision order, orders that the Respondent be the subject of a supervision order pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (High Risk Serious Offenders Act), for a period of 5 years from [DATE TO BE DETERMINED AT TIME OF JUDGMENT], on the following conditions:

You, [ACJ], must: 

STANDARD CONDITIONS REQUIRED BY THE ACT

1. Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of your current name and address.

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

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

4. Be under the supervision of a CCO which includes complying with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32 of the High Risk Serious Offenders Act).

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

6. Not commit a serious offence as defined in s 5 of the High Risk Serious Offenders Act during the period of the Order.

7. Be subject to electronic monitoring under s 31 of the High Risk Serious Offenders Act.

ADDITIONAL CONDITIONS

Residence

1. Take up residence at [REDACTED] and to spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.

Reporting to a CCO and supervision by a CCO

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

1. Be under the supervision of a CCO, report to and receive visits from a CCO at times and at places as directed by the CCO, and comply with the lawful orders and directions of a CCO.

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

Attendance at programmes or treatment

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

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

Reporting to WA Police

1. Report to the [REDACTED] Local District Manager at the [REDACTED] within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and at locations as directed by the [REDACTED] Local District Manager or his/her delegate.

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

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

4. Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act.

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

Disclosure/Exchange of Information

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

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

Restrictions on contact with Victims

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

2. Unless contact with victims is permitted pursuant to condition 21, immediately withdraw physically 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, and you must avert your gaze from such victim at all times.

3. Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring.

Criminal conduct

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

2. Not commit an offence under s 202, s 203, s 204 or s 557K Criminal Code 1913 (WA).

3. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

Curfew

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

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

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

Medications/Mental Health

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

2. Undertake any medication regime, including medication for non-hormonal anti-libidinal treatment (such as Selective Serotonin Reuptake Inhibitor anti-depressants), as directed by the CCO in consultation with a medical practitioner(s) and comply with all testing to monitor your compliance with that treatment as directed by a CCO.

3. Comply fully with any treatment prescribed pursuant to condition 31.

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

5. Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect, that you have or intend(ed) to cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment.

Prevention of high-risk situations

1. Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present such diary to the CCO and/or a Police Officer upon request.

2. Not associate with any person known by you to have committed a serious offence (as defined in s 5 of the High Risk Serious Offenders Act), unless such association is authorised in advance by the CCO.

3. Have no contact with any female 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 the CCO and such contact is supervised at all times by an adult approved in advance by the 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.

('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication)

1. Where any unsupervised contact with a female child under the age of 18 years is initiated by the child, unless the contact is permitted under condition 37, you must withdraw immediately from the presence of the child;

1. Provide details of any contact with a female child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency;

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

1. Report at your next contact with your CCO and Police any association or relationship by you with a person who has a child or children under the age of 18 years in their care either full time or part time;

1. Not form any domestic relationship with a person who has a child or children under the age of 18 years in their care either full time or part time, without prior approval of a CCO;

1. As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;

1. Not conduct computer searches for, collect, access, or be in possession of in either electronic or permanent form, images of children including drawings or sketches, whether indecent or not, with the exception of images of your immediate family that are not indecent images if approved in advance by a CCO.  Possession of such images depicting a child or children on items such as household items, may be authorised by a CCO;

1. Not be in possession of any children's toy, game or confectionary that could reasonably be perceived to be capable of being an enticement to children, unless such possession is for a legitimate purpose;

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

2. Not to attend concerts, events or venues frequented by children under 18 years, without the prior approval of a CCO;

1. Advise a CCO 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;

1. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 48, without prior approval of the CCO;

1. Enable device locking or password access of your computer, telecommunication and/or electronic devices, and you must not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 48 or any online accounts, to any person other than a CCO or Police Officer;

1. 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 you must provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advice from a CCO;

1. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications 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.

1. As and when directed by a CCO, you are to advise the CCO prior to leaving the town of [REDACTED], unless for a medical emergency, in which case you should advise the CCO as soon as practicable.

1. Not to attend the town of [REDACTED], unless approved by a CCO.

____________________________________

THE HON JUSTICE FIANNACA

I have received a copy of this order.  I have had explained to me and understand the effect of this Order and what may happen if I contravene it.

Signed by the Respondent  ___________________________________

[ACJ]

In the presence of:  ________________________________

Name and address:  ________________________________

________________________________

Date:  ________________________________

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EP

Associate to the Honourable Justice Fiannaca

2 JULY 2021