The State of Western Australia v ACW [No 3]
[2022] WASC 41
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ACW [No 3] [2022] WASC 41
CORAM: ARCHER J
HEARD: 21 JANUARY 2022
DELIVERED : 16 FEBRUARY 2022
PUBLISHED : 16 MARCH 2022
FILE NO/S: SO 10 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ACW
Respondent
Catchwords:
High risk serious offender - Whether the continuing detention order should be affirmed or a supervision order made
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | B Meertens |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Aboriginal Legal Service (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Coffin [2014] WASC 305
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Italiano v The State of Western Australia [2009] WASCA 116
Kim v Witton (1995) 59 FCR 258
The State of Western Australia v A [2018] WASC 250
The State of Western Australia v ACW [No 2] [2020] WASC 480
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Misko [No 6] [2018] WASC 389
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v Rao [2019] WASC 93
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v ZSJ [2020] WASC 330
Table of Contents
Introduction
The original application
Evidence
Legal principles
Statutory framework
Objects of the review requirement
The court's powers
High risk serious offender - unacceptable risk
Precondition to a supervision order - compliance with standard conditions
'Substantially comply' with the standard conditions
Factors relevant to the assessment
Detention or supervision?
Issues
High risk serious offender?
Antecedents and criminal record - s 7(3)(g) factor
Significant offences
Reports - s 7(3)(a) and (b) factors
Dr Hall (from original hearing only)
Ms Hasson
Dr Riordan
Dr Galloghly
Ms MacQuarrie
Propensity and pattern - s 7(3)(c) and s 7(3)(d) factors
Addressing causes and rehabilitation (historical) - s 7(3)(e) and (f) factors
Risk and need to protect - s 7(3)(h) and (i) factors
Other factors - s 7(3)(j) factor
Past response to supervision
Conclusion
Would he substantially comply with the standard conditions?
Detention or supervision?
Conclusion
Criminal conduct
Curfew
Medications/Mental Health
Prevention of high-risk situations
ARCHER J:
Introduction
Between 2009 and 2015, the respondent committed a number of serious offences. He was convicted of the most recent offence on 24 October 2016, and sentenced to 4 years and 6 months' imprisonment.
On 22 November 2019, before he was eligible for release, the State of Western Australia applied for orders under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The State contended that the respondent was a serious danger to the community and sought an order that he be detained in custody for an indefinite term or, if released, be made subject to a supervision order. The State was entitled to bring the application under s 8(1) of the DSO Act. I will refer to this application as the 'original application'.
On 26 August 2020, the DSO Act was repealed, and relevant parts[1] of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) came into effect. Section 35(1) of that Act substantively mirrors s 8(1) of the DSO Act. Under the transitional provisions of the HRSO Act, the State's application is taken to have been made under s 35(1) of the HRSO Act.[2] The court's power to make orders on such an application is regulated by, among other things, s 48 of the HRSO Act.
[1] Part 1 of the HRSO Act, not relevant to these proceedings, came into effect on 9 July 2020.
[2] Section 124 of the HRSO Act.
Under s 48 of the HRSO Act, the first question is whether the respondent is a high risk serious offender. If he is, the court is required to decide whether he should be released on a supervision order or be made subject to a continuing detention order.
The hearing of the original application came before me in December 2020. I decided that the respondent was a high risk serious offender and should be made subject to a continuing detention order. My reasons are set out in The State of Western Australia v ACW [No 2].[3]
[3] The State of Western Australia v ACW [No 2] [2020] WASC 480.
On 23 July 2021, the State of Western Australia applied for a review of the continuing detention order, to be heard after 2 December 2021. The application was made under s 64 of the HRSO Act. I will refer to this application as the 'review application'. It was listed to be heard on 21 January 2022.
After hearing the evidence and closing submissions, I indicated that I would release the respondent on a supervision order. I gave brief reasons, but said I would publish detailed reasons later. These are those reasons.
Later, I will set out the legislative framework. For the moment, it is sufficient to note the following.
The first question on the review application was whether the respondent was (still) a high risk serious offender. It was common ground that he was.[4] If I found that he was, I would be required by the HRSO Act to affirm the continuing detention order or make a supervision order.
[4] ts 146 and 198.
The second question was whether the respondent had satisfied me on the balance of probabilities that he would substantially comply with the standard conditions. If I was not satisfied of this, I would have been required to affirm the continuing detention order. Again, it was common ground that he had proved this.[5]
[5] ts 198.
The third question was whether the respondent should be released on a supervision order or whether I should affirm the continuing detention order. Again, it was common ground that he should be released on a supervision order.[6]
[6] ts 199.
That each of these matters were common ground is not surprising in view of the evidence. Nevertheless, the approach taken by both counsel reflected well on each of them. In particular, it is not the role of State counsel to press for an offender to be detained regardless of the weight of the evidence. State counsel did not do that in this case. On the contrary, he made appropriate submissions based on the evidence.
Although there was no dispute between the parties as to any of these questions, I was nevertheless required to consider each question based on the evidence before me.
The original application
After hearing the evidence in relation to the original application, I found that the respondent was a serious danger to the community and had significant outstanding treatment needs. I further found that, until the respondent's treatment needs were addressed, at least in part, the community would not be adequately protected by a supervision order. Accordingly, I made a continuing detention order.
I noted that:[7]
The fact that the respondent has unmet treatment needs is not his fault.
The respondent has been in custody for five years. Some of the time lost is attributable to the cancellation of a program and COVID‑19. Much of the time lost was unable to be explained and appeared to be unjustifiable. For example, the delays in reassessing him could not be explained.
More recently, since being on an interim detention order, the respondent has not been offered any programs due to the policy described by Dr Riordan.[8]
The policy exists despite what the Chief Justice said in The State of Western Australia v Rao.[9] In particular, his Honour pointed out that it is not in the interests of the community that an offender with known treatment needs not have those needs addressed until such time as they are made the subject of a continuing detention order.[10]
The policy also exists despite what Fiannaca J said in ACW at [138] ‑ [146].
As counsel for the respondent points out, there is nothing unusual about the respondent's treatment needs. They are not unique to him.
[7] ACW [No 2] [134] - [139].
[8] This is (or was) a policy that offenders that are on an interim continuing detention order are generally not permitted to participate in group-based programs - see ts 43 of the original hearing on 1 December 2020.
[9] The State of Western Australia v Rao [2019] WASC 93 [14], [135] ‑ [142].
[10] Rao [137].
I indicated that the respondent needed:[11]
1.weekly counselling of at least 1 to 2 hours unless his treating psychologist considered that he would be better assisted by less regular and/or shorter sessions.
2.to be immediately enrolled in the next available Connect and Respect or Not Our Way Programs; and
3.the Department to assist him with accommodation in [redacted] so that he could ultimately be released when his treatment needs had been met, at least in part, such that he would not pose an unacceptable risk if released into the community into that accommodation on a supervision order.
[11] ACW [No 2] [155] - [157].
I noted that:[12]
The Act is not intended to keep offenders locked up forever. It is intended to keep offenders in custody until their treatment needs have been sufficiently addressed, and appropriate accommodation found such that they would not pose an unacceptable risk if released on a supervision order.
The respondent has done some terrible things, and caused significant harm to his victims. However, he has served the terms of imprisonment that a judge believed was proportionate to his culpability.
The respondent's treatment needs have not been met. At least in part this is because no one really tried to meet them in the last five years. No part of this is his fault.
[12] ACW [No 2] [158] - [160].
Evidence
The State tendered, by consent, two volumes of material[13] that contained historical material relating to the respondent's prior offending, his conduct and treatment in prison, and reports prepared for the purposes of the hearing of the State's original application and for this review hearing. The State also tendered, by consent, a number of documents in relation to the respondent's participation in the Not Our Way program[14] and documents in relation to the proposed accommodation.[15]
[13] Book of Materials, exhibits B1 and B2, (collectively, BOM).
[14] Exhibits C and E.
[15] Exhibits D, F and G.
The reports prepared for the original application included:
(1)a psychiatric report by a psychiatrist, Dr Hall;
(2)a psychological report by a forensic psychologist, Ms Hasson;
(3)a clinical assessment report by a senior counselling psychologist, Ms Collyer;
(4)a management plan report by a senior forensic and clinical psychologist, Dr Riordan; and
(5)a community supervision assessment report from a senior community corrections officer, Ms MacQuarrie.
The reports prepared for the review application included:
(1)a further psychological report by Ms Hasson;
(2)a treatment progress report by a senior forensic and clinical psychologist, Dr Galloghly;
(3)a further management plan report by Dr Riordan; and
(4)a further community supervision assessment report from Ms MacQuarrie.
Ms Hasson, Dr Riordan, and Ms MacQuarrie gave oral evidence in the hearing. The respondent did not challenge the credibility or reliability of any of the witnesses, and did not challenge the expertise of the experts. Each of the witnesses gave their evidence in a measured and frank manner, giving reasons where appropriate. I accept their evidence.
The respondent did not give evidence.
Legal principles[16]
Statutory framework
[16] This section reproduces, or draws from, what I have written in earlier decisions.
The HRSO Act operates in substantially the same way as the DSO Act. For this reason, the principles established by the case law decided under the DSO Act apply to the HRSO Act.[17]
[17] The State of Western Australia v ZSJ [2020] WASC 330 [5], [30] ‑ [31] (see also [32] ‑ [63]) and The State of Western Australia v Narrier [No 6] [2020] WASC 349 [4], [29] ‑ [30].
Under s 64 of the HRSO Act, the State may seek a review of an offender's detention under a continuing detention order.
Objects of the review requirement
In The State of Western Australia v Corbett [No 5], Hall J said (citations omitted):[18]
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for a past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community, then the continuing need for detention must be considered … It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community ...
…
The risk of reoffending may change over time. It may be affected by age, health, or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed by a supervision order. There is also the possibility that the risk may increase because of a failure of treatment or a relapse into deviant thinking.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, a mere welfare check: they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community ...
[18] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [8], [10] ‑ [13].
With respect, I agree. However, I do not consider that the fact that the review process is intended to allow for the possibility of a change of circumstances means that the respondent must demonstrate a change of circumstances. Nor do I consider this was what Hall J intended to convey.
In my view, the question as to whether the respondent is a high risk serious offender, and whether the continuing detention order should be affirmed, is entirely a matter for the judge hearing the review application to determine. While the judge will no doubt give weight to the views expressed by other judges in any previous reviews and on the original application, the judge himself or herself must decide whether the respondent is a high risk serious offender, and whether the continuing detention order should be affirmed.
The court's powers
Section 68 of the HRSO Act provides:
68.Review of detention under continuing detention order
(1)On a review under section 66 of an offender's detention -
(a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b)if the court finds that the offender remains a high risk serious offender it must -
(i)affirm the continuing detention order; or
(ii)subject to section 29, rescind the continuing detention order and make a supervision order.
(2)In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure adequate protection of the community.
Accordingly, the first question I must answer is whether the respondent is a high risk serious offender.
High risk serious offender - unacceptable risk
Section 7(1) of the HRSO Act provides:
7.Term used: high risk serious offender
(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.
This raises materially the same considerations as applied under the DSO Act in determining whether a person was a 'serious danger to the community'.[19]
[19] ZSJ [42] ‑ [47].
Determining whether a restriction order is necessary requires a balancing exercise.
On the one hand, the court is required to have regard to, among other things, the risk the offender would commit a serious offence (with serious consequences for the victim) if the offender was not made the subject of a restriction order and the likelihood of the risk materialising. On the other hand, the court is required to have regard to the serious consequences for the offender (either detention, without having committed an unpunished offence, or being subject to an onerous supervision order) if an order is made.[20]
[20] In relation to the regime under the DSO Act, see Italiano v The State of Western Australia [2009] WASCA 116 [46] (Buss JA, as his Honour then was).
The court must then decide whether the risk of the offender committing a serious offence is so unacceptable that, notwithstanding that the offender has already been punished for the offences he or she has committed, it is necessary that he or she is subject to further control or detention to ensure the adequate protection of the community.[21]
[21] In relation to the regime under DSO Act, see Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] (Wheeler JA), and expressly approved by Steytler P and Buss JA (as his Honour then was) in Director of Public Prosecutions (WA) vGTR [2008] WASCA 187; (2008) 38 WAR 307 [26].
The State bears the onus of satisfying the court that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the respondent would commit a serious offence.[22] It must do this by acceptable and cogent evidence and to a high degree of probability.[23]
[22] HRSO Act, s 7(2). And, in relation to the equivalent provision in the DSO Act, see Director of Public Prosecutions (WA) vPindan [No 3] [2017] WASC 107 [41], [43].
[23] HRSO Act, s 7(1).
The expression 'high degree of probability' sets a higher standard than the standard of the balance of probabilities, but a lesser standard than the standard of beyond reasonable doubt.[24] However, this does not mean that the risk must be greater than 50%. The court must identify 'what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence'.[25]
[24] In relation to the equivalent provision in the DSO Act, see GTR [28] (Steytler P and Buss JA, as his Honour then was).
[25] In relation to the equivalent provision in the DSO Act, see GTR [34] (Steytler P and Buss JA, as his Honour then was).
A 'serious offence' is defined in s 5 of the HRSO Act.
In deciding whether to find a person is a high risk serious offender, the court must have regard to each of the matters specified in s 7(3) of the HRSO Act. These are:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
Section 7(3) of the HRSO Act is relevantly identical to s 7(3) of the DSO Act.
Precondition to a supervision order - compliance with standard conditions
If I find that the respondent is a high risk serious offender, I must make a continuing detention order or a supervision order.
Due to s 29 of the HRSO Act, I will only have a choice if the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions.
Section 29 of the HRSO Act states:
29.Limitation on power to make or amend supervision order
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
There are seven standard conditions for a supervision order. They are set out in s 30(2) of the HRSO Act:[26]
[26] See the definition of 'standard condition' in s 3 of the HRSO Act.
30.Conditions of supervision order
…
(2)A supervision order in relation to an offender must require that the offender -
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
The effect of s 29 is that I must affirm the continuing detention order unless the respondent satisfies me, on the balance of probabilities, that he will substantially comply with these standard conditions.
'Substantially comply' with the standard conditions
The meaning of the phrase 'substantially comply' was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[27] in relation to s 23(1B) of the DSO Act. That subsection was materially the same as s 29(1) of the HRSO Act.[28] His Honour's observations in relation to s 23(1B) of the DSO Act, which I gratefully adopt, apply equally to s 29(1) of the HRSO Act.
(1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.
(2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.
(3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.
(4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.
(5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.
(6)The court 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 sexual offence.
(7)Factors that are relevant to that assessment would include the respondent's history of compliance and non‑compliance and the factors set out at [50] above.
[27] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
[28] Section 23 dealt with contravention proceedings. The provision in the DSO Act that mirrored s 29 was s 17. Section 17(3) was relevantly identical to s 29(1) of the HRSO Act (and s 23(1B) of the DSO Act).
A critical point made by Fiannaca J, as set out in (6) of the extract, is that the court 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.
Factors relevant to the assessment
In (7) of the extract, Fiannaca J identified the factors that are relevant to the assessment of whether the respondent will substantially comply with the standard conditions. His Honour said that they would include the respondent's history of compliance and non‑compliance and the factors he had set out in his judgment in paragraph 50.
In paragraph 50, Fiannaca J identified, in effect, the following factors:[29]
[29] His Honour drew the first four factors from Kim v Witton (1995) 59 FCR 258. The next four factors were from The State of Western Australia v A [2018] WASC 250 [123]. The last factor was from The State of Western Australia v Misko [No 6] [2018] WASC 389 [196].
(1)the offender's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);
(2)his capacity to comply with the conditions;
(3)what measures there are in place to ensure he would substantially comply;
(4)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 DSO Act;
(5)the respondent's motivation to remain offence free and in the community;
(6)any willing participation in a sex offender treatment program;
(7)abstinence from drugs;
(8)conduct while in prison; and
(9)demonstrated gains in treatment, self‑management and life skills.
Detention or supervision?
If the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions, I must then decide whether to make a supervision order or a continuing detention order.
In deciding between these options, the paramount consideration is the need to ensure adequate protection of the community.[30] However, it 'cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order'.[31] Nor does it mean that other considerations are excluded.[32]
[30] HRSO Act, s 68(2).
[31] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14]. See also The State of Western Australia v West [2013] WASC 14 [52].
[32] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Williams [57].
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on an offender, but rather for the ultimate purpose of protecting the community.[33] The court should choose the order that is the 'least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[34]
[33] See, in relation to the DSO Act, GTR [97] (Murray AJA).
[34] West [52(j)], citing The State of Western Australia v Latimer [2006] WASC 235; and Decke. See also Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [22].
In Director of Public Prosecutions (WA) v DAL [No 2],[35] Beech J[36] summarised the principles to be applied in considering whether a supervision order would adequately protect the community, in relation to relevantly identical provisions in the now repealed DSO Act. Putting his Honour's observations in list form, and omitting citations, his Honour said:
1.The use of the word 'adequate' indicates that a qualitative assessment is required.
2.In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his [or her] care and treatment.
3.The [DSO] Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO] Act applies would ever be released.
4.The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
5.If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[35] DAL [No 2] [33], citing Williams [57], [86]; Griffiths [20], [103], [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].
[36] As his Honour then was.
In Director of Public Prosecutions (WA) vCoffin, Hall J noted:[37]
The existence of unmet treatment needs will not always act as an impediment to release on a supervision order, it will depend upon the nature of those treatment needs and the extent to which they will have the effect of reducing risk. At present the risk of reoffending is high and the possible risk scenarios suggest that conditions would be unlikely to be effective in preventing that risk from being realised. The fact that the respondent's offending has occurred impulsively and that this is a reflection of his personality type means that it is more difficult to guard against the risk unless his ability to address the risk factors is enhanced. This is unlikely to be achieved without, at the very least, extensive individual counselling.
[37] Director of Public Prosecutions (WA) v Coffin [2014] WASC 305 [93].
Issues
The issues are:
(1)Is the offender a high risk serious offender?
(2)If so, has he proved on the balance of probabilities that he will substantially comply with the standard conditions?
(3)If so, should I affirm the continuing detention order or make a supervision order?
High risk serious offender?
The respondent conceded through his counsel that he was a high risk serious offender.[38] Nevertheless, I am required to determine whether I am so satisfied, in accordance with the legal framework, and having regard to the s 7(3) factors.
Antecedents and criminal record - s 7(3)(g) factor
[38] ts 146.
The requirement to have regard to the respondent's antecedents and criminal record means the court must have regard to 'all prior offences, whether they be [serious offences] or not, to the extent that such offences are relevant to the question of whether there is an unacceptable risk that the person would commit a [serious offence] in the future. It also requires consideration of the person's personal history, including the context in which past offences were committed'.[39]
[39] Hall J in relation to serious sexual offences under the DSO regime, in Coffin [28].
I considered these matters in ACW [No 2].[40] For convenience, the following reproduces, with necessary modifications, the relevant paragraphs.
[40] ACW [No 2] [41] - [52].
In The State of Western Australia v ACW,[41] Fiannaca J dealt with the preliminary hearing in these proceedings. His Honour was satisfied that there were reasonable grounds for believing that the court might find that the offender is a high risk serious offender. In his judgment, his Honour summarised the respondent's antecedents (citations omitted):[42]
39The respondent is a 25 year old male. He is an Aboriginal man who was born and raised in [redacted], although he spent part of his childhood in [redacted]. He has five siblings from his parents' union and a number of other siblings from his parents' previous relationships.
40The respondent has previously described growing up in a household that 'vacillated between stability and alcohol‑fuelled violence'. Both of his parents at times abused alcohol, which resulted in his father being violent to his mother. He has said that this led to his mother and his siblings staying at a women's refuge. The respondent has been inconsistent in what he has said about his mother. To Mr Wszola, the psychologist who examined the respondent in 2014, the respondent described his mother in positive terms, but also said that she spent a lot of time gambling. The respondent told Dr Bala, the psychiatrist who examined him in 2014, that his father raised the children, as his mother would be 'partying' in other parts of Australia and that her absence 'tore [him] apart'. The respondent told the facilitators of the Pathways Program, which he completed in 2017, that his mother was a 'good woman', but she was a 'drinker'.
41Despite the references to alcohol abuse and domestic violence, the respondent told Dr Bala that he had many happy memories of childhood.
42The respondent's father had an accident in 2000, which resulted in him being confined to a wheelchair. That caused sadness to the respondent, as he was close to his father.
43The respondent's parents separated in 2001 or 2002, when the respondent was about 7 or 8 years of age. He remained living with his mother initially, but she found it hard to provide stable accommodation and proper supervision, and the respondent eventually moved to live with his father in [redacted]. It appears that was in 2008, and that his father was then responsible for the respondent's primary care, although the respondent would spend periods with his mother in [redacted]. Prior to the respondent moving to live with his father, his sister died in a car accident, which was said to have had a significant impact on the respondent and caused his [sic: him] a great deal of distress.
[41] ACW.
[42] ACW [39] ‑ [43].
Fiannaca J noted that the respondent had said he was sexually abused as a child by a male, but there was no further information about that.[43] Subsequently, the respondent provided more detail.[44]
[43] ACW [44].
[44] See ACW [No 2] [42].
Fiannaca J continued (citations omitted):[45]
[45] ACW [45] ‑ [55].
Education, substance use and early offending
45The respondent has said that when in [redacted], he was exposed to the use of alcohol and cannabis, while still at school, and he began to engage in criminal activity in his early teen years to the detriment of his schooling. The respondent did not like school because he was bullied, but continued to attend to play football. He told Dr Bala that his grades were 'okay', but he was frequently in trouble. At some stage he attended a school that offered alternative education and life skills for children who do not attend mainstream school.
46In sentencing the respondent on 26 September 2011, Judge Derrick [as his Honour then was] referred to the respondent's education as being fragmented and incomplete, which had resulted in the respondent having difficulty with reading and writing.
47The respondent's criminal record shows that he commenced to offend from the age of 11 years, and from the age of 12 until the age of 15 he was convicted for numerous offences of burglary, aggravated burglary, stealing and receiving, for which he received youth community based orders and intensive youth supervision orders.
48He left school at the age of 16 years and tried to engage in TAFE courses, but did not persevere.
49The respondent has a history of alcohol and substance abuse. He was using alcohol heavily on weekends from the age of 14 or 15. He has said that he started using methylamphetamine from the age of 16.
50He spent some time in the Northern Territory, where he also engaged in criminal activity in August 2009 and November 2010, for which he received periods of detention. The offending included the unlawful use of motor vehicles, aggravated burglary, stealing and driving while not licensed.
Sexual offences in 2009 and 2010
51It appears that the respondent spent some time between Western Australia and the Northern Territory, because on 7 December 2009 he committed the first of his sexual offences in Western Australia ... The offences were committed against two small children. The respondent was arrested and charged for those offences soon after. He eventually pleaded guilty and was sentenced for the offences in the Children's Court on 23 March 2010 to a total period of 2 years' detention, backdated to 18 December 2009.
52After serving part of that term of detention, the respondent was released on a supervised release order. During the period that he was subject to that order, on 17 November 2010, he committed his next serious sexual offence during the course of a robbery on a street in [redacted]. The offending was against a woman who was a stranger to the respondent. He was charged in respect of those offences in February 2011. He subsequently pleaded guilty to the offences and an offence of grievous bodily harm committed against the same victim at the same time, and was sentenced on 26 September 2011 to 2 years' detention.
Early adulthood
53After his release from that second period of detention, the respondent gained employment as a ranger with the Department of Parks and Wildlife in [redacted], which he held from November 2013 until September 2014.
54In August 2014, the respondent received a head injury as a result of being punched by another man, which resulted in head trauma and some degree of memory loss. The respondent told Dr Bala that he was assaulted by two men, and that he suffered bleeding to the brain and multiple injuries to the face, including fractures which required plates to be inserted. In any event, he was hospitalised for between 7 and 11 days.
55The respondent has had one significant relationship, being with the female partner against whom he offended violently in 2014 and 2015. It appears the relationship commenced late 2012 or early 2013, when the respondent was 18 and his partner was 14 or 15 years of age. He offended against her when she was 16 and 17 years of age.
The first offence against his female partner occurred on 31 May 2014. Fiannaca J said:[46]
[46] ACW [58] ‑ [60].
Violent offending against his partner in 2014
…
58The respondent was charged with the offence of AAOBH [aggravated assault occasioning bodily harm] in respect of that incident. It appears he was released on bail with a protective bail condition preventing him from approaching the victim. He breached that condition on two occasions, on 20 July 2014 and 7 August 2014 and was charged with the offence of breaching a protective bail condition. The respondent was sentenced for those offences, together with the AAOBH, on 23 December 2014 in the [redacted] Magistrates Court. He was placed on a 6 month Community Based Order (CBO) for the breaches of the protective bail condition and on a 12 month ISO for the AAOBH. It appears he was also subject to a violence restraining order made for the protection of the victim.
Subsequent offending and breaches of orders
59It appears the respondent subsequently breached the ISO and CBO by non compliance on two occasions, but the court ordered that the orders continue. However, on 1 July 2015 he breached the orders in a more significant way by committing the offences of AAOBH and aggravated sexual penetration against his partner. He was arrested on that day and has been in custody since then. He was charged with the aggravated sexual penetration in August 2015. He pleaded guilty in the District Court and was sentenced on 24 October 2016 to the total sentence of 4 years and 6 months' imprisonment backdated to 1 July 2015, as I explained earlier.
60Subsequently, on 23 December 2016, he was sentenced by the Magistrates Court to a cumulative sentence of 3 months' imprisonment for the offence of AAOBH committed on 31 May 2014, because of his breach of the ISO by reoffending.
Significant offences
In terms of the respondent's risk to the community, the most significant convictions are his convictions for sexual offences in 2009, 2010 and 2015, and his violent offending in 2014. The sexual offences were 'serious offences' within the meaning of the HRSO Act. The violent offending, being an aggravated assault occasioning bodily harm, does not fall within that meaning. Nevertheless, in light of the circumstances, it is relevant to the assessment of whether the respondent is a high risk serious offender.
The 2009 offences were two counts of sexual penetration of a child under 13 years of age. Fiannaca J summarised the offending in 2009 as follows (citations omitted):[47]
Offences committed on 17 December 2009
63The first occasion on which the respondent committed sexual offences was on 17 December 2009 in [redacted]. He was 15 years old.
64First, early in the morning, the respondent led a three‑year‑old boy away from his house, where he was playing, to a rocky outcrop about 50 metres away. The respondent penetrated the victim's anus with his finger several times before penetrating his anus with his penis. The child was in pain and began to cry. The respondent then left the scene. The victim suffered an internal tear to his anal wall as a result of the assault.
65On the same day, approximately half an hour later, the respondent approached a three‑year‑old girl who was playing in the front yard of her house. He enticed the child away to a location approximately 800 metres from her home and placed her on a rock. He then penetrated her vagina with his finger. The victim suffered a laceration to the inside of her vagina, as well as a laceration to her labia.
66The victim's father, who had been looking for her, found the respondent standing in front of the girl, who was naked. He chased the respondent when the latter ran off, but was not able to catch him. However, the respondent was apprehended by police later that day. He took part in a video recorded interview with the police and admitted sexually penetrating both children.
67When he was sentenced by Judge Reynolds on 23 March 2010, the respondent demonstrated remorse and some insight into his wrongdoing. It appears from the transcript of those proceedings that there was a psychological report prepared for the sentencing hearing. That report is not in the materials for this application. However, it appears from the transcript that the psychologist considered the offending to have been opportunistic. That was accepted by Judge Reynolds. His Honour also accepted that the respondent was affected by cannabis and ecstasy at the time of the offending, although he found that the respondent appreciated that what he was doing was wrong.
68Judge Reynolds referred to the significant physical and psychological harm the offending had caused the victims. His Honour warned the respondent of the adverse effects of drug and alcohol use on his decision‑making, and, in effect impressed on him that he had to control his sexual urges.
[47] ACW [63] ‑ [68].
The offences in 2010 included an aggravated sexual penetration without consent. The other offences committed at the same time were also serious offences within the meaning of the HRSO Act, being robbery and grievous bodily harm.
Fiannaca J summarised the offending in 2010 as follows (citations omitted):[48]
[48] ACW [69] ‑ [75].
Offences committed on 17 November 2010
69On 17 November 2010 the respondent approached the victim, a 19‑year‑old female, while she was walking to work on a deserted street in [redacted] at about 3.40 am. He demanded money from her. Fearing for her safety, she gave him $70 in cash. The respondent then tried to take her backpack, causing her to fall on the ground. The victim held onto her bag. The respondent dragged her along the ground by pulling on the strap. Whilst she was still on the ground he kicked her to the face, breaking her jaw. He then pushed his hand through the waistband of her trousers and inside her underpants and forced his finger into her vagina, causing a 1.5 cm laceration.
70The respondent was disturbed by an approaching vehicle, which enabled the victim to get up and run off.
71When interviewed about the incident by the police in February 2011, the respondent admitted most of the offending, but denied penetrating the victim's vagina. He was charged with aggravated robbery, grievous bodily harm (in relation to the breaking the victim's jaw) and aggravated sexual penetration without consent. It appears there was a challenge to the admissibility of his video recorded interview. The interview was ruled to be admissible, and the respondent subsequently pleaded guilty to all of the offences, notwithstanding his denial of the sexual penetration during the interview. He was sentenced in the Children's Court on 26 September 2011. He also came to be sentenced for three unrelated offences committed on 26 November 2010, being offences of aggravated burglary, stealing a motor vehicle and stealing.
72In relation to the offences committed on 17 November 2010, Judge Derrick [as his Honour then was] remarked that the respondent had picked on a woman in the very early hours of the morning on a deserted street when he knew she would be completely defenceless and would have no hope against him. He noted that the respondent had continued to be violent against the victim despite the fact that she had given him money. He described the sexual penetration as a 'final act of humiliation'. His Honour described the physical suffering the victim endured for some time as a result of her broken jaw, and said the respondent had also left her emotionally scarred.
73His Honour was not sure whether the sexual penetration was sexually motivated or not. His Honour was of the view it did not matter, as it was clearly a deliberate act aimed at degrading the victim further as 'vengeful type act' intended to cause the victim more pain and distress because the respondent was angry she had put up resistance.
74Again, although it was not part of the materials in these proceedings, it appears from the transcript of the sentencing that a psychological report was prepared for that hearing. The submissions of the prosecutor and the sentencing remarks of Judge Derrick indicate that the psychologist was of the opinion that the respondent demonstrated poor insight into his offending and tended to externalise responsibility for his offending, in particular to his level of intoxication. The psychologist also considered that the respondent demonstrated superficial victim empathy.
75However, Judge Derrick accepted that the respondent was remorseful for his offending, albeit rather belatedly. He also accepted that the respondent was 'highly intoxicated' at the time of the offending, as a result of consuming 'a really large concoction of alcohol and drugs', but his Honour did not regard that as mitigatory. Ultimately, substance use was one of a number of risk factors identified by the psychologist that the respondent needed to address in rehabilitation. His Honour was of the opinion that the respondent was at high risk of reoffending at that time, and the protection of the community was a significant consideration in sentencing him.
In 2014, the respondent committed an aggravated assault occasioning bodily harm. Fiannaca J summarised the 2014 offending as follows (citations omitted):[49]
Violent offending against his partner in 2014
57The respondent and the victim had been in a relationship for approximately one and a half years. On 31 May 2014, the victim was sleeping at the respondent's sister's house in [redacted]. The respondent went to the address and punched the victim while she was sleeping. When she woke, he argued with her about leaving his sister's place during the night. The victim ran from the house when the respondent went to the toilet. She sought refuge in her sister's house, but the respondent found her, grabbed her by the hair and dragged her outside. He then stood on her chest and kicked her to the head while she was on the ground. He then threw a rock at her, narrowly missing her. The victim managed to run away from the respondent when police arrived. The respondent was arrested at the scene. The victim required treatment at the hospital for her injuries, which included a split lip and bleeding to a previous cut to her face.
[49] ACW [57].
Although the 2014 offence is not a 'serious offence' within the meaning of the HRSO Act, it is plainly relevant. It was a violent attack on his female partner. He was given an Intensive Supervision Order (ISO) for this offence, and was still subject to the ISO when he committed the serious offence of aggravated sexual penetration in 2015.
Fiannaca J summarised the 2015 offending as follows (citations omitted):[50]
[50] ACW [76] ‑ [80].
Offences committed in 2015
76The offences in 2015 were committed by the respondent against his de facto partner. They were committed against a background of earlier violence to the victim and breaches of protection orders and violence restraining orders, as I have described earlier in these reasons. At the time of these offences, the respondent was 21 and the victim was 17 years of age.
77Around 6 pm on 1 July 2015, the respondent went to the Aboriginal community where the victim was present. They were both intoxicated. As the two of them walked to a relative's house, the respondent to argue with the victim and assaulted her by punching her above the eye, which caused it to bleed.
78A relative observed the incident and called the police. The respondent and the victim went into scrub behind the premises in an attempt to hide from the police. While they were hiding, the respondent pulled down his shorts, exposing his erect penis. He then said to the victim, 'Shut the fuck up and suck my cock'. The victim told the respondent she did not want to. She was crying. The respondent said to her, 'Hurry up and suck me off before the policeman gets me'. The victim again said she did not want to. The respondent then pulled the victim's head towards his penis until she was performing fellatio on him. He did not ejaculate.
79The respondent was arrested by police shortly afterwards. He was interviewed on 12 August 2015. He denied having forced the victim to perform oral sex on him. He was charged with aggravated assault occasioning bodily harm and aggravated sexual penetration without consent.
80Despite his denial in the interview, the respondent pleaded guilty to both offences, although not at an early stage. At the time of the sentencing, he expressed remorse for the offending. The sentencing judge, Scott DCJ, accepted the respondent was remorseful and that he had been intoxicated at the time of the offence, but noted that his history indicated he should have been well aware that intoxication at times caused him to become violent to women and to act as if he could deal with them as he wished. His Honour accepted that, during the period of over one year that the respondent had been in custody on remand, he had had time to think about the seriousness of his offending and that he wanted to commit to making his life better.
Reports - s 7(3)(a) and (b) factors
In Director of Public Prosecutions (WA) v GTR, Steytler P and Buss JA[51] said:[52]
Although there is no doubt, under the [DSO Act], that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in the light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.
[51] As his Honour then was.
[52] GTR [62] (Steytler P and Buss JA, as his Honour then was).
Each of the reports in this case was comprehensive. Where opinions were expressed, the foundation and reasoning were properly exposed. The witnesses gave oral evidence in a demonstrably objective fashion. I accept the evidence and opinions of the report writers.
Dr Hall (from original hearing only)
Dr Hall is a forensic consultant psychiatrist with considerable experience in this area. He interviewed the respondent and prepared a report for the original application. He also gave oral evidence in the hearing of the original application. Dr Hall did not provide an updated report for the review application and did not give evidence in these proceedings. However, I have had regard to the report he prepared for the purposes of the original application.
In my judgment on the original application, I summarised Dr Hall's evidence.[53] What follows reproduces that summary, with some modifications.
[53] ACW [No 2] [56] - [69].
Dr Hall said that the respondent's principal diagnosis is antisocial personality disorder. His secondary diagnoses are narcissistic and borderline personality traits, alcohol abuse, methamphetamine abuse and cannabis dependence (the last three are all in remission due to the respondent being in custody).[54]
[54] BOM pages 159 - 160.
Dr Hall said that there was no evidence to indicate that the respondent has a pattern of deviant sexual arousal.[55]
[55] BOM page 161 [84].
Dr Hall evaluated the respondent's risk of reoffending using a forensic tool, the RSVP. He said the risk factors were:[56]
(1)in the sexual violence history category: chronicity of sexual violence, diversity of sexual violence and physical coercion in sexual violence;
(2)in the psychological adjustment category: extreme minimisation or denial of sexual violence, attitudes that support or condone sexual violence, problems with self‑awareness, problems with stress or coping and problems resulting from child abuse;
(3)in the mental disorder category: problems with substance abuse;
(4)in the social adjustment category: problems with intimate and non‑intimate relationships and a non‑sexual criminal history; and
(5)manageability category: problems with planning, treatment and supervision.
[56] BOM pages 162 - 164.
Dr Hall concluded that the respondent is at high risk of reoffending sexually without further intervention.[57] He said that the respondent was also at high risk of committing a violent non‑sexual offence without further intervention.[58] In his oral evidence, Dr Hall confirmed that he meant that the respondent is at high risk of committing an offence such as a sexual penetration offence and a violent offence such as a grievous bodily harm, a robbery or a sexual assault with intent to rob.
[57] BOM page 164.
[58] BOM page 166.
Dr Hall said that a high priority was suitable accommodation. He said:[59]
[A] significant outstanding need at this stage remains that of suitable accommodation. Ideally, accommodation would be free from unwanted or excessive visitation, free from exposure to alcohol use, accessible to sources of supervision and therapeutic intervention, and conducive to mobile telephone contact and electronic monitoring.
[59] BOM page 167. See also BOM page 165.
Dr Hall concluded:[60]
[ACW] has a persistent lack of self‑awareness both in relation to his offending, and to the challenges ahead in terms of managing the risks of him relapsing to substance use. As such, risk management for the foreseeable future relies on external constraints rather than his self‑management, a circumstance that does not generally bode well.
[60] BOM page 167 [112].
Dr Hall's report was dated 2 November 2020. He gave evidence in December 2020. As the more recent evidence shows, the respondent has made some significant gains since then.
Ms Hasson
Ms Hasson is a consultant forensic psychologist with considerable experience in this area. For the purposes of the original application, she interviewed the respondent twice and prepared a report.[61] She also gave oral evidence. She did the same for the purposes of the review application.
[61] BOM pages 114 - 115.
Ms Hasson said that the respondent demonstrated improved insight into his offending behaviour and aspects of his personality and functioning.[62] She said he also demonstrated improved maturity.[63] In addition, she said he had a much better understanding of the meaning and limitations of consent and the need to be mindful that he is not behaving in a threatening or intimidating manner and that the other person just agrees because they are scared.[64]
[62] BOM page 204.
[63] BOM page 207.
[64] BOM page 210.
Ms Hasson noted that alcohol misuse appears to be a disinhibiting and contributory factor in the respondent's violent and aggressive behaviour towards both males and females. She noted that neurological testing suggests that the respondent should be able to stop, think and consider the consequences before acting on impulse. However, she said that he would not be able to do this when intoxicated.[65]
[65] BOM pages 208 - 209.
Ms Hasson said that the respondent now recognises that alcohol is a problem. She said he has now realised that he will not be able to drink or use drugs because the risk of him committing offences is high and his ability to manage his risk would be compromised.[66] She wrote:[67]
[ACW] indicated that he has accepted that he cannot use alcohol or illicit substances in the community. [ACW] acknowledged that abstinence will not be easy however he indicated that he believes he has good refusal skills citing the fact he has not tested positive for drugs in prison and that he has declined to use drugs when they have been available to hm. [ACW] is aware he must not drink or use drugs as they contribute directly to his offending. Whilst [ACW] has previously indicated he did not see cannabis as problematic he accepts that should he be released it is likely he will have conditions around urinalysis and will not be able to smoke cannabis for the duration of any order.
[66] BOM page 208.
[67] BOM page 216.
Ms Hasson summarised the respondent's treatment since the last hearing.
Ms Hasson said that the respondent had completed the Not Our Way program (NOW program) at [redacted] Prison in August 2021. This program targets the criminogenic treatment needs relating to family violence offending perpetrated by Aboriginal men.
Ms Hasson summarised the findings and comments of the facilitators. Some were positive and some were negative. Ms Hasson said that she had discussed the report with Mr Summerton (a psychologist who began counselling the respondent in late 2021) and Dr Riordan. Both told Ms Hasson that they believed that the respondent had made treatment gains following his participation in the NOW program. Ms Hasson said she was also of that view.[68] Ms Hasson also noted that the respondent had written quite extensive notes during his engagement in the NOW program.[69]
[68] BOM page 214.
[69] BOM page 216.
Ms Hasson said:[70]
Over the past 12 months [ACW] has made a great deal of progress in addressing many of the issues outlined in previous assessments. Several areas require an ongoing focus to manage risk and to provide [ACW] with skills to successfully reintegrate into the community and to develop meaningful and prosocial relationships. [ACW] would benefit from further psychological input around relationships, intimacy, trust, nature and types of intimate relationships, fidelity, appropriate sexual behaviour, and communication. These areas of treatment need were discussed with [ACW] during the current assessment and he voiced agreement that he would benefit from having someone to talk to about such matters where he won't feel embarrassed and can get some good advice. To that end [ACW] displayed a positive attitude toward further counselling. Additional exploration around sexual drive, sexual interests and links between sex and violence and disrespect toward women should also be a focus of future intervention.
[70] BOM page 211.
Ms Hasson used two actuarial tools to assess the respondent's risk of future sexual offending, the Static-99R and the PCL-R. She also used non-actuarial tools (RSVP and SARA).
Using the Static-99R tool, Ms Hasson said that the respondent is considered to be at high risk of reoffending.[71] Ms Hasson noted, however, that the Static-99R is, as its name suggests, primarily based on static and not dynamic factors. Accordingly, it is not affected by treatment gains or maturity.[72] It also does not measure all risk factors.[73]
[71] BOM page 219.
[72] BOM page 218.
[73] BOM page 219.
In the RSVP tool, the first five risk factors relate to the sexual violence history. They are therefore also static factors.[74]
[74] BOM page 219.
The next five risk factors relate to psychological adjustment. Ms Hasson said that two were present and three were partially present. The risk factors that were present are:[75]
1.Problems with Stress or Coping; and
2.Problems Resulting from Child Abuse.
[75] BOM page 221.
In relation to the first, Ms Hasson said that the respondent[76]
has made some promising changes in how he copes and it is anticipated that if he remains motivated, he will further develop a range of skills to manage difficulties in the future.
[76] BOM page 221.
In relation to the second, Ms Hasson said that the respondent[77]
has unresolved trauma in relation to negative environmental influences and exposure to inappropriate sexual behaviour, as well as unresolved issues related to his own experience of childhood sexual abuse.
[77] BOM page 221.
She said, however, that he had 'begun to develop some insight into how his history has impacted on his personality, temperament, experience and expression of anger as well as a range of other emotions'.[78]
[78] BOM page 221.
The risk factors that were partially present are:[79]
1.Extreme Minimisation or Denial of Sexual Violence;
2.Attitudes that Support or Condone Sexual Violence; and
3.Problems with Self-Awareness.
[79] BOM pages 220 - 221.
In relation to the first, Ms Hasson noted that, while this risk factor was partially present, there had been a significant shift in ACW's acceptance of his offending behaviour.[80]
[80] BOM page 220.
In relation to the second, Ms Hasson again noted the improvement in ACW's attitudes. However, she said this would require ongoing focus in counselling.[81]
[81] BOM pages 220 - 221.
In relation to the third, Ms Hasson said the respondent was now better able to identify triggers and has improved awareness of the association between thoughts and behaviour.[82]
[82] BOM page 221.
Ms Hasson then turned to the risk factors that relate to mental disorder. She said that the factor 'sexual deviance' may be present and requires ongoing monitoring. She said that three other factors were present historically - problems with substance use, violent ideation, and suicidal ideation.[83]
[83] BOM page 222.
In relation to the risk factors that relate to social adjustment, the respondent has all of them - problems with intimate and non-intimate relationships, problems with employment, and non-sexual criminal activity.[84]
[84] BOM pages 222 - 223.
In relation to manageability, there are three risk factors: problems with planning, problems with treatment and problems with supervision.
In relation to the first, Ms Hasson said that the respondent had demonstrated some positive changes in this skill set in the current assessment. She said:[85]
If he remains focused and committed to change his skills in this area will increase over time with exposure to a broader range of issues and events that require him to be more reflective, use improved judgement and delay a need for immediate gratification and to engage in consequential thinking.
[85] BOM page 223.
In relation to the second, Ms Hasson said that this factor was historically present, but the respondent[86]
appears to have engaged well in the recent NOW program and individual counselling and has retained the course content. [ACW] expressed positive views about the benefit of counselling and he appears to have a genuine belief that counselling can assist him.
[86] BOM page 223.
In relation to the last, Ms Hasson said that the respondent would likely continue to push boundaries, but that, with a good collaborative and working relationship, he would substantially comply.[87]
[87] BOM page 223, ts 174.
Ms Hasson said that, considering the RSVP and the Static-99R (2016) together, she remained of the view that ACW is a high risk of sexually reoffending without the benefit of ongoing intervention, supervision, support, and monitoring.[88]
[88] BOM page 223.
Ms Hasson also re-examined the respondent's risk of reoffending using the SARA tool. This is a tool that was developed to screen for risk factors of spousal or family-related assault. His score has reduced to 32, although this still places him in the high-risk category for reoffending against a future intimate partner or family member. In relation to the reduction in his score, Ms Hasson said:[89]
[ACW]'s score was reduced on this occasion pertinent to the following items and his engagement and progress in treatment: his scores on the items of extreme minimisation or denial of spousal assault history and attitudes that support or condone spousal assault were reduced. Similarly, a reduction on the substance abuse scale was seen as warranted as his substance use disorder has been in remission throughout his time in custody and [ACW] has now indicated that he recognises that he will need to abstain from use should he be released to the community. This is a shift in his attitude and insight into the significance of his risk factors. Substance abuse however remains a critical risk factor.
[89] BOM page 227.
Ms Hasson provided her opinion of the respondent's offending, including:[90]
As noted earlier in the report, neuropsychological test results, have indicated there is no cognitive reason for [ACW] not to be able to inhibit violent, aggressive or sexual impulses, response inhibition can however be undermined or compromised by alcohol and substance abuse and for this reason it will be essential to ensure [ACW] remains abstinent from alcohol and substance use and that monitoring, discussing and exploring problems and issues likely to arise in intimate and non-intimate relationships occurs regularly.
During the current assessment it was clear that [ACW] had improved his insight into his offending behaviour and was more willing to accept responsibility for his choices and decisions and to view the events on the evening of the offence from alternative perspectives. There was also evidence that [ACW] has a developing understanding of some of his beliefs and attitudes about relationships and women in general that have contributed to his offending. This developing awareness is especially evident in his understanding of consent.
[90] BOM pages 227 - 228.
Ms Hasson set out the respondent's plans for living in the community if he was released from detention. She said they were prosocial, appropriate and achievable.[91]
[91] BOM page 228.
Ms Hasson said that the respondent had various ongoing treatment needs which he could address through ongoing participation in individual counselling.[92] Ms Hasson detailed the supervision strategies that could be implemented to mitigate the risks.
[92] BOM page 228.
n summarising her report, Ms Hasson noted that the respondent had made progress in addressing various issues. She said, however, that 'further progress is likely to be limited until he returns to living in the community and is faced with real world situations and scenarios'.[93]
[93] BOM page 229. See also BOM page 230.
In oral evidence, Ms Hasson said that, in her opinion, the respondent had achieved all the treatment gains that he could possibly gain within the custodial environment. Further gains could only be achieved once he was released into the community.[94]
Dr Riordan
[94] ts 177 - 178.
Dr Riordan is a senior forensic and clinical psychologist, employed by the Department of Justice.
Dr Riordan summarised the respondent's background, his offending behaviour and his treatment history. She discussed his conduct while he was detained in [redacted] Prison during the review period.
In Dr Riordan's opinion:[95]
[ACW] presents with outstanding areas of treatment need with respect to intimate partner relationships. He has clearly identified in both intervention sessions and during the current assessments that meeting his sexual and intimacy needs is a priority for him once released into the community. Meeting his sexual and intimacy needs are considered appropriate approach goals for [ACW]'s return to the community with respect to being able to establish a well-rounded pro‑social lifestyle. Ongoing intervention occurring concurrent to the establishment of any new intimate relationship would be of benefit in this regard to allow for [ACW] to develop insight into his own needs, the needs of others and how to meet these in a manner that is safe and mutually beneficial within the complexities of dyadic relationships. At the time of the initial assessment interview, [ACW] appeared to underestimate the extent to which the characteristics and complexities of his proposed intimate partner who remains in Boronia Pre-Release Centre mirrors that of his past relationships and overestimated his ability to cope with such a relationship. During the second assessment interview however, [ACW] demonstrated capacity for reflection as to some of the practical and emotional barriers that the couple may encounter should the relationship evolve.
[95] BOM page 199.
Dr Riordan also said:[96]
[ACW] also presents with outstanding treatment needs in the area of emotional regulation, managing interpersonal relationships, particularly peer and family influence and substance use. With respect to substance use, it is acknowledged that [ACW] has maintained abstinence from substances during the review period, demonstrating some capacity to draw upon skills to adhere to his goal of abstinence. These skills are however confined to the prison context and have not been tested within a less restrictive environment.
Dr Galloghly
[96] BOM page 199.
Dr Galloghly provided individual counselling to the respondent from May 2020 to July 2021. Dr Galloghly's report was overall a favourable one. He described the respondent's engagement in the process in very positive terms and felt that the respondent was showing real progress.[97]
Ms MacQuarrie
[97] BOM pages 178 - 179.
Ms MacQuarrie is the respondent's CCO.
Ms MacQuarrie set out her interactions with the respondent since the last hearing and his behaviour in prison.[98]
[98] BOM pages 238 - 240 (in particular, the entries for 28 March 2021, 6 July 2021, 3 October 2021, 23 and 26 November 2021 and 1 December 2021).
Ms MacQuarrie also analysed the various accommodation options available to the respondent if he was to be released on a supervision order.[99]
[99] BOM pages 244 - 248.
Although there are pros and cons associated with each of the options, the most suitable option is the home of a person who has pro‑social values, positive family values and is in full-time employment. There are no children living in that home. The home is suitable for electronic monitoring, with a strong signal confirmed on testing.[100] The State submitted that making a supervision order with conditions requiring him to live in that home would adequately protect the community.[101]
Propensity and pattern - s 7(3)(c) and s 7(3)(d) factors[102]
[100] BOM pages 245 - 246.
[101] ts 201.
[102] This section partly reproduces what I wrote in ACW [No 2] [89] - [91].
There are some patterns in the respondent's offending against adult females. He has a pattern of committing violent sexual offences while under the influence of alcohol and/or drugs.
The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. It means[103]
that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.
[103] GTR [178] (Murray AJA). See also Griffiths [66].
At the time of deciding ACW [No 2], I was satisfied that the respondent had a propensity to commit serious and violent sexual offences when under the influence of drugs or alcohol. I considered that this was shown by his history of sexual offending. I remain of that view.
Addressing causes and rehabilitation (historical) - s 7(3)(e) and (f) factors
In ACW [No 2],[104] I discussed the efforts (and lack of effort) that had been made by the authorities in seeking to address the respondent's risk.
[104] ACW [No 2] [92] - [101].
As set out earlier, both Ms Hasson and Dr Riordan summarised the treatment the respondent has received since that time.[105] Plainly, the respondent has made considerable progress. There is still some work to be done, but further gains can really only be achieved once he is released into the community.[106]
Risk and need to protect - s 7(3)(h) and (i) factors
[105] See the discussion above of their reports.
[106] ts 177 - 178.
Ms Hasson is of the opinion that the respondent is at high risk of committing a serious offence if not subject to a continuing detention order or community supervision order.[107]
[107] BOM page 229
Ms Hasson said:[108]
The most likely future offence will be committed against an intimate partner and will involve [ACW] becoming persistent in his requests for sexual intercourse leading to violent and/or aggressive behaviour if his sexual advances are dismissed. A partner may feel coerced into engaging in sexual intercourse out of fear.
[108] BOM pages 224 ‑ 225.
Ms Hasson noted that this scenario is likely to cause significant psychological harm to the victim. She said physical injury was also likely.[109]
[109] BOM page 225.
In relation to imminence, Ms Hasson said:[110]
[ACW]'s imminence of sexual offending will depend on the presence or absence of acute dynamic risk factors, most specifically areas of concern would be if he relapses back into alcohol and substance abuse, if his relationship with a significant other is deteriorating and there is an increase in conflict, feelings of mistrust or jealousy or refusal to engage in sex or sexual incompatibility. If [ACW] is feeling lonely, isolated, rejected, sexually frustrated, abandoned, or stressed he may be at increased risk of sexual offending. Monitoring of his emotional regulation and psychological wellbeing will be important as will be the quality of his relationships with others. Obtaining information about his intimate relationships is essential.
[110] BOM page 225.
I accept the opinion of Ms Hasson. There is an obvious need to protect the community from this risk. The types of offences the respondent may commit are likely to cause significant harm.
However, as was properly drawn to my attention by the State, the most likely risk scenario can only exist once the respondent has entered into a relationship in the community.[111] The authorities will therefore have at least some time to work with the respondent after his initial release, and assist him through what is often a very stressful time, before the risk that he might offend against a partner will arise.
Other factors - s 7(3)(j) factor
Past response to supervision
[111] ts 204.
In ACW [No 2],[112] I noted that the respondent's response to supervision in the past has been poor. I included a summary of the orders that the respondent was on when he committed each of the sexual offences. It is unnecessary to repeat that summary here. Given the positive effects of the respondent's treatment, this historical factor is less of a concern that it was at the time of the original hearing.
Conclusion
[112] ACW [No 2] [112].
Having considered all of the s 7 factors, I am satisfied to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the respondent would commit a serious offence. I therefore find that the respondent is a high risk serious offender.
Therefore, I must affirm the continuing detention order or make a supervision order. Due to s 29 of the HRSO Act, I will only have a choice if the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions.
Would he substantially comply with the standard conditions?
As noted earlier, a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will 'substantially comply' with the standard conditions. The onus of proving this is on the offender.[113]
[113] HRSO Act, s 29.
In this context, the most relevant of the standard conditions are those set out in s 30(2)(d) and (f) of the HRSO Act. These sub‑paragraphs relevantly impose conditions that the offender comply with any reasonable direction of a community corrections officer and not commit a serious offence during the period of the order.
In terms of the factors relevant to the assessment, of particular relevance here is the respondent's history of non-compliance and his remaining treatment needs. However, since the original application, the respondent has made significant progress and has matured.
I have also had regard to 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. The most likely breach would be a refusal to follow a direction of a CCO. Given the progress the respondent has made, and the likely risk scenario, I do not consider that it is likely that the respondent would breach by committing an offence.
In Ms Hasson's opinion, the respondent is likely to substantially comply with the standard conditions.[114]
[114] ts 174.
The State noted that, if the respondent was released on a supervision order, stringent conditions would be imposed. The State submitted that this, combined with the respondent's substantial progress in addressing his treatment needs, should persuade me that it was likely that he would substantially comply with the standard conditions.[115]
[115] ts 198.
I accept this submission. The conditions include electronic monitoring, significant restrictions on movement and associations, and drug and alcohol testing. Having regard to all of the evidence, I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions.
Detention or supervision?
The final question is whether I should make a supervision order or affirm the continuing detention order. The following matters are particularly relevant.
First, the respondent has matured and has demonstrated his commitment to engage in treatment.
Second, the respondent has demonstrated that he has the capacity to learn and the capacity to form positive working relationships with authority figures.
Third, the respondent has made significant treatment gains.
Fourth, the respondent cannot really make further progress until he is back in the community.
Fifth, if the respondent was to re-offend, the most likely offence would be an offence against a partner. He will not immediately have a partner on his release.
Sixth, the respondent now fully understands how important it is for him to comply and how serious the consequences for failing to comply are likely to be.
I am satisfied that a supervision order would reduce the risk posed by the respondent to a reasonably acceptable level that ensures adequate protection of the community. Given that, I will release him on a supervision order, subject to the stringent conditions proposed by the State.
Conclusion
For the reasons I have given, I will release the respondent on a supervision order, on the conditions set out in the annexure to these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Associate to the Honourable Justice Archer
16 MARCH 2022
ANNEXURE
_________________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE ARCHER
ON 21 JANUARY 2022
_________________________________________________________________________
Pursuant to section 68(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent remains a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of five years from 8 March 2022, being a date not earlier than six weeks from the date this Order is made, on the following conditions:
You, [ACW], must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a CCO at the [redacted] within 48 hours of being issued this order and advise the officer of your current name and address;
Report to, and receive visits from, a CCO as directed by the court;
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 days before the change happens;
Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
Not leave, or stay out of, the State of Western Australia without the permission of a CCO;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you;
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order;
Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO;
Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO;
Attendance at programs or treatment
Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO;
Reporting to WA Police
Report to the Officer-in-Charge of 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 Officer-in-Charge of the [redacted] or his/her delegate;
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and seize any items deemed appropriate by them to monitor your compliance with this order;
When requested, advise 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
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
Allow the CCO, WA Police, or other person 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
Have no contact, directly or indirectly, with the victims of your current offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice;
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
Criminal conduct
Not commit any other 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;
Not commit an offence under s 202, s 203, s 204 or s 557K Criminal Code 1913 (WA);
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse Of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider;
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020 (WA), such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
Medications/Mental Health
Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO;
Undertake any medication regime as directed by the CCO in consultation with a medical practitioner(s) and in accordance with a medical practitioner's direction and comply with all testing to monitor your compliance with that treatment as directed by a CCO;
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice;
To engage with mental health services and to obey the instructions of the treating psychiatrist with regard to treatment and medication;
Prevention of high-risk situations
With the exception of public transport, not enter in or on any vehicle with any female or where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by a CCO;
Not hitch-hike, nor accept lifts in vehicles from any female who is unaware of your offending history, unless the identity of such person is approved in advance by the CCO;
Not allow any female hitchhiker to enter any vehicle under your control;
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
Not to possess, or consume, or purchase, or use alcohol;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
Provide a valid sample pursuant to condition 39;
Not go to or remain at any licensed premises unless permitted or required to do so for the following reasons:
(a)For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;
(b)For a purpose, and for a duration, approved in advance by a CCO;
(c)On the order of a CCO or Police Officer.
Not to remain in the presence of any female who you know, or ought to know, to be affected by alcohol or illicit substances, unless the identity of such person is approved in advance by a CCO;
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place;
Not enter the premises of, or access the services of, escort agencies or sex workers, unless approved in advance by a CCO;
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless
(a)the contact is authorised in advance by 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);
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
Provide details of any contact with a 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;
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;
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;
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;
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
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;
Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information, owned by you, whether or not it is capable of being connected to the internet, and the location of that device;
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; and
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet.
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