The State of Western Australia v Atkinson [No 3]
[2022] WASC 231
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ATKINSON [No 3] [2022] WASC 231
CORAM: SOLOMON J
HEARD: 16 MAY, 21 & 22 JULY 2022
DELIVERED : 25 JULY 2022
PUBLISHED : 25 JULY 2022
FILE NO/S: SO 4 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
IAN EVERITT ATKINSON
Respondent
Catchwords:
Criminal law - High risk serious offender - Contravention of supervision order - Application to amend supervision order
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 7, s 26(1), s 27, s 29, s 29(1), s 29(2), s 30, s 30(2), s 48, s 48(2), s 53, s 53(2)(b), s 55, s 55(1), s 55(1)(b), s 55(3), s 74, s 80(1)
Result:
Supervision order amended
Category: B
Representation:
Counsel:
| Applicant | : | B Meertens |
| Respondent | : | T Hager |
Solicitors:
| Applicant | : | State Solicitors Office |
| Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
The State of Western Australia v Atkinson [No 2] [2020] WASC 379
SOLOMON J:
Background
This is an application under s 53 and s 55 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) in respect of the respondent, Mr Atkinson. On 21 October 2020, McGrath J was satisfied that, having regard to the factors stipulated in s 7 of the HRSO Act and the evidence before him at the hearings on 12 August and 16 October 2020, its was necessary to make a restriction order in relation to Mr Atkinson to ensure adequate protection of the community against an unacceptable risk that Mr Atkinson will commit a serious offence.[1] Mc Grath J thus found that Mr Atkinson was a high risk serious offender. As a result, in accordance with s 48, McGrath J considered whether Mr Atkinson should be detained pursuant to a continuing detention order under s 26, or released into the community pursuant to a supervision order under s 27 of the HRSO Act.[2]
[1] The State of Western Australia v Atkinson [No 2] [2020] WASC 379 [86].
[2] The State of Western Australia v Atkinson [No 2] [87].
McGrath J determined that Mr Atkinson should be subject to a supervision order under s 27, concluding that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of five years.[3] The terms of Mr Atkinson's supervision order were contained in Annexure 1 to his Honour's reasons for decision in of The State of Western Australia v Atkinson [No 2]. Mr Atkinson's supervision order contained 49 conditions.
[3] The State of Western Australia v Atkinson [No 2] [96].
On 11 March 2021, Mr Atkinson was charged under s 80(1) of the HRSO Act with six contraventions of the supervision order. Mr Atkinson pleaded guilty to all six charges in the Magistrates Court. The details of the contraventions are set out below.
Contravention one
On 9 August 2021, Mr Atkinson pleaded guilty to one charge of contravening condition 33 of the supervision order contrary to s 80(1) of the HRSO Act (charge number MC PER 1853/21).
Condition 33 of Mr Atkinson's supervision order provides that Mr Atkinson '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; and (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'.
On 11 March 2021, Mr Atkinson attended the office of the Sex Offender Management Squad for a Notice of Reporting Obligations (NORO) meeting. During the meeting, Mr Atkinson disclosed that he had recently commenced a friendship with a female neighbour (neighbour), whom he also disclosed is a grandmother and primary carer of three children under 10 years of age. The NORO meeting was subsequently terminated, and Mr Atkinson was placed under arrest.
As a result of further enquiries, it was ascertained that Mr Atkinson befriended his neighbour sometime between 14 January and 11 March 2021, and that the contact Mr Atkinson had with his neighbour occurred while she had children in her care. Mr Atkinson's contact with his neighbour's children without prior authorisation from his CCO thereby contravened condition 33 of his supervision order.
Mr Atkinson was sentenced to four months' imprisonment, to be served cumulatively upon the sentences imposed in relation to charge number MC PER 1857/21.
Contravention two
On 9 August 2021, Mr Atkinson pleaded guilty to one charge of contravening condition 37 of the supervision order contrary to s 80(1) of the HRSO Act (charge number MC PER 1854/21).
Condition 37 of Mr Atkinson's supervision order provides that Mr Atkinson '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'.
Mr Atkinson had various meetings with his CCO prior to 11 March 2021, during which he failed to report his friendship/relationship formed with the neighbour. He thus contravened condition 37 of his supervision order.
Mr Atkinson was sentenced to 4 months' imprisonment, to be served concurrently with the sentences imposed on the other charges.
Contravention three
On 9 August 2021, Mr Atkinson pleaded guilty to one charge of contravening condition 38 of the supervision order contrary to s 80(1) of the HRSO Act (charge number MC PER 1855/21).
Condition 38 of Mr Atkinson's supervision order provides that Mr Atkinson 'report at your next contact with your CCO and WA 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'.
Mr Atkinson had several meetings with both his CCO and Western Australian Police prior to 11 March 2021, during which he failed to report his association/relationship with the neighbour, and that she had children under 18 years old in her care. He thus contravened condition 38 of his supervision order.
Mr Atkinson was sentenced to 4 months' imprisonment, to be served concurrently with the sentences imposed on the other charges.
Contravention four
On 9 August 2021, Mr Atkinson pleaded guilty to one charge of contravening condition 41 of the supervision order contrary to s 80(1) of the HRSO Act (charge number MC PER 1856/21).
Condition 41 of Mr Atkinson's supervision order provides that Mr Atkinson 'not be in possession of any children's toy, game or confectionery that could reasonably be perceived to be capable of being an enticement to children, unless such possession is for a legitimate purpose'.
Upon hearing that the neighbour had three grandchildren, Mr Atkinson purchased confectionery (jelly cups), and was aware that the neighbour later supplied these to her grandchildren, advising them that they were from 'Uncle Ian'. Mr Atkinson thus contravened condition 41 of his supervision order.
Mr Atkinson was sentenced to 4 months' imprisonment, to be served concurrently with the sentences imposed on the other charges.
Contravention five
On 9 August 2021, Mr Atkinson pleaded guilty to one charge of contravening condition 42 of the supervision order contrary to s 80(1) of the HRSO Act (charge number MC PER 1857/21).
Condition 42 of the supervision order provides that 'as directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a police officer'.
At no time before or after forming a friendship with the neighbour did Mr Atkinson disclose his history of past offending to her. Further, when the neighbour asked Mr Atkinson about the purpose of his GPS monitoring device, he told the neighbour that it was due to being sick in Malaysia and a false‑positive COVID‑19 result where he needed to be tracked by police. Mr Atkinson thus contravened condition 42 of his supervision order.
Mr Atkinson was sentenced to 5 months' imprisonment, to be served cumulatively with the sentence imposed in relation to charge MC PER 1853/21.
Contravention six
On 9 August 2021, Mr Atkinson pleaded guilty to one charge of contravening condition 46 of the supervision order contrary to s 80(1) of the HRSO Act (charge number MC PER 1857/21).
Condition 46 of the supervision order provides that the respondent 'not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 44, without prior approval of the CCO'.
On 11 March 2021, the respondent reported for a supervision session during which a CCO conducted a review of his mobile phone. Mr Atkinson disclosed that he had allowed his neighbour to use the telephone to make a call on 10 March 2021. The CCO noted that there were nine calls made to a telephone number, which Mr Atkinson confirmed was correct, stating that the neighbour had called a friend about obtaining some money from an ATM. He also admitted to allowing her to use his phone approximately two weeks prior. Mr Atkinson thus contravened condition 46 of his supervision order.
Mr Atkinson was sentenced to 4 months' imprisonment, to be served concurrently with the sentences imposed on the other charges.
Outcome of contraventions
Each of the conditions contravened by Mr Atkinson was a condition expressly made for the 'prevention of high risk situations'. The total effective sentence for the six contraventions was 9 months' imprisonment, which Mr Atkinson has since completed.
On 28 October 2021, the applicant commenced this application pursuant to s 53 and s 55 of the HRSO Act.
On 25 November 2021, Quinlan CJ directed that the application be heard on 16 May 2022. Quinlan CJ made further orders for examination of Mr Atkinson by experts and for the preparation of expert reports, and further ordered that Mr Atkinson be detained in custody until the determination of the application, pursuant to s 53(2)(b) of the HRSO Act.
Pursuant to the orders of Quinlan CJ the matter came before me on 16 May 2022. Following the hearing of the evidence on that day (as outlined below), the matter was adjourned pending the provision of further information regarding the availability of suitable accommodation, should the court conclude that Mr Atkinson could be released into the community under a supervision order.
Relevant legislative provisions
Section 53 of the HRSO Act specifies the circumstances in which the applicant may apply for an order under s 55. This includes where an offender is charged with an offence under s 80(1) of the HRSO Act. It is not in dispute that the respondent falls within the terms of this section.
Section 55 of the Act relevantly provides as follows:
(1) If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must -
(a) rescind the supervision order and make a continuing detention order in relation to the offender; or
(b) except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c) except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2) If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the court must -
(a) rescind the supervision order and make a continuing detention order in relation to the offender; or
(b) except as provided in section 29, make an order –
(i) amending the conditions of the supervision order; or
(ii) amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order.
(3) In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
A continuing detention order is an order that 'the offender be detained in custody for an indefinite term for control, care or treatment'.[4] In contrast, a supervision order is an order that 'the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30'.[5] If a supervision order is made, there are various conditions that the court must impose,[6] and various conditions that the court may impose.[7] The standard conditions that a supervision order must contain require, inter alia, that an offender undertake mandatory reporting, notify a CCO of any changes of circumstances, be supervised by a CCO, not leave the State of Western Australia without permission, not commit a serious offence during the duration of the supervision order, and be subject to electronic monitoring.
[4] HRSO Act s 26(1).
[5] HRSO Act s 27(1).
[6] HRSO Act s 30(2).
[7] HRSO Act ss 30(3), (5) and (6).
Section 29(1) of the HRSO Act provides that 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 of the order'. The onus of proof is on the respondent pursuant to s 29(2) of the HRSO Act. The words 'will substantially comply with' in s 29(2) of the HRSO Act are afforded their ordinary meaning, consistent with the purposes of the HRSO Act and the general conditions of a supervision order, as well as the overall object of the HRSO Act which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the offender will commit a serious offence.
Even if a court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions set out in s 30(2), this will not necessarily mean that a supervision order should be rescinded, amended, or affirmed.[8] This is because, by reason of s 55(3), the paramount consideration in deciding whether or not to make an order under s 55(1) is 'the need to ensure adequate protection of the community'.[9] Even if the court is satisfied that an offender will substantially comply with the standard conditions of a supervision order, there may be extenuating circumstances outside of the offender's control such that, despite such a finding, the offender cannot be released into the community.
[8] HRSO Act s 55(1)(a), (b) and (c).
[9] HRSO Act s 55(3).
The evidence
The State tendered two volumes of documents for the purposes of the application: one filed 27 April 2022 and the other which was finally completed by 10 May 2022.
Volume 1 of the Book of Materials (BoM) contained relevant information regarding Mr Atkinson's criminal record, prior judgments regarding his status as a high risk serious offender, contravention materials and historical assessment reports.
Volume 2 comprised a Treatment Progress Report prepared by senior forensic and clinical psychologist Dr Kathryn Riordan, a Performance Report endorsed by Luke Carmichael, Aimee Goode and Tara Jones from the Community Offender Monitoring Unit (COMU), a Psychiatric Report prepared by forensic psychiatrist Dr Peter Wynn Owen, a statement regarding the operation of the COMU and role of a Senior Community Corrections Officer (SCCO) authored by Luke Carmichael and Community Business Information System (CBIS) notes from various authors across various dates.
At the hearing of 16 May 2022, Dr Wynn Owen, Dr Riordan and Mr Carmichael all gave evidence. The respondent did not challenge the evidence of any of the witnesses and did not challenge the expertise of any of the experts. Each of the witnesses gave their evidence in a frank and measured manner.
I set out below a summary of the salient parts of evidence of the witnesses at the contravention hearing and then turn to consider the basis upon which both parties agree that Mr Atkinson should be subject to an amended supervision order.
Dr Kathryn Riordan
For the purposes of the contravention proceedings, Dr Riordan assessed Mr Atkinson and provided a written report dated 19 April 2022 pursuant to s 74 of the HRSO Act.
Dr Riordan noted in her report that Mr Atkinson returned to prison on 12 March 2021 following his conviction for the six contraventions outlined above. Since this time, he has not been involved in any incident or charge.
Dr Riordan reported that Mr Atkinson had consistently engaged in the individual intervention sessions offered to date across a range of settings and clinicians.[10] Mr Atkinson articulated and acknowledged that he remains sexually attracted to pre‑pubescent girls, and that such a sexual attraction requires active management on his behalf.[11] Dr Riordan reported that the insight and awareness that Mr Atkinson has developed over time in understanding the factors that have underpinned his past offending are limited in their application to managing risk in a community-based setting.[12] Mr Atkinson was limited in the extent to which he demonstrated insight or awareness that the relationship he had formed with the neighbour was a high‑risk situation or in any way offence paralleling.[13] Dr Riordan described Mr Atkinson's distorted perception of himself as a 'rescuer', and that he fails to acknowledge that the tendency to 'rescue' women and children is self‑serving and forms part of his repertoire of grooming behaviour that facilitates his sexual offending.[14]
[10] BoM, 480.
[11] BoM, 481.
[12] BoM, 481.
[13] BoM, 481.
[14] BoM, 481.
In the hearing on 16 May 2022, Dr Riordan commented on the relationship Mr Atkinson had with his counsellor, Dr George, noting that he spoke very positively of her and was disappointed when she left the Department. It was Mr Atkinson's failure to report his relationship with his neighbour to his CCO that constituted the basis of his contravening offending. However, Dr Riordan noted that the relationship Mr Atkinson formed with his neighbour would also be something she would expect a high risk serious offender to disclose to his or her counsellor.[15]
[15] Transcript, The State of Western Australia v Ian Everitt Atkinson, Supreme Court of Western Australia, 16 May 2022, 163.
Dr Riordan expressed the view that Mr Atkinson experienced stressors adjusting to life in the community when released on his supervision order that were similar to the stressors that precipitated his original offending.[16] Such stressors included problems with social isolation, loneliness, boredom, and difficulties with mood management.[17] Mr Atkinson acknowledged that while he felt able to cope with the requirements of his supervision order, his 'previously established avenues of establishing an identity and a sense of belonging to the community were thwarted by his offending history and order requirements'.[18] This included the inability to secure volunteer work due to the requirement to either obtain a working with children check or national police clearance. Mr Atkinson has struggled with effecting change in his life through exploring alternative options to develop a sense of a belonging in his community other than those in which he had previously belonged.[19]
[16] BoM, 481.
[17] BoM, 481.
[18] BoM, 481.
[19] BoM, 481.
Dr Riordan indicated that Mr Atkinson's outstanding treatment needs remain consistent with those outlined in the reports of Dr Poli (a senior forensic psychologist who authored a report for Mr Atkinson's initial DSO hearing) and Dr Wynn Owen. Dr Riordan outlined that Mr Atkinson has a range of outstanding treatment needs that require ongoing management.[20]
[20] BoM, 482.
Dr Riordan indicated that Mr Atkinson can continue to be provided treatment by Mr David Summerton whether he is detained on a continuing detention order or placed on an amended supervision order. In his interview with Dr Riordan, Mr Atkinson noted that his relationship with Mr Summerton was in its infancy and that he had not yet managed to establish the same level of rapport that he had enjoyed with Dr George, however it had not been a barrier to facilitating therapeutic intervention effectively.[21]
[21] ts 16 May 2022, 166.
In conclusion, Dr Riordan opined that Mr Atkinson is likely to respond best in an environment where he works with staff consistently in both supervisory and treatment settings.[22] In particular, Dr Riordan noted that the 'development of a strong therapeutic alliance will allow for empathic challenging of the transparency of the information provided across those involved in his supervision, in addition to challenging his beliefs, attitudes and responsibility taking'.[23] Dr Riordan commented that Mr Atkinson continues to engage adequately in the recommended individual treatment with Mr Summerton. Mr Atkinson has made some incremental progress towards addressing the identified treatment goals, notwithstanding the contraventions of his supervision order.[24]
Dr Peter Wynn Owen
[22] BoM, 482.
[23] BoM, 482.
[24] BoM, 482.
For the purpose of the contravention proceedings, Dr Wynn Owen assessed Mr Atkinson and provided a written report dated 9 May 2022 pursuant to s 74 of the HRSO Act.
Dr Wynn Owen noted in his report that Mr Atkinson described his adjustment to the community as 'hard', as he believed he had been given inappropriate accommodation.[25]
[25] BoM, 491.
Further, Mr Atkinson had expressed frustration at not being able to attend swimming pools and the beach, due to the various conditions imposed by his restriction order.[26] With reference to his current sexual thinking and function, Mr Atkinson reported a low sex drive commenting that there was 'an occasional spark'.[27] Mr Atkinson acknowledged 'trying to block sexual thoughts of children or past offending when they arose', commenting that such incidents occurred infrequently.[28] In his description of avoiding children's television programs, Dr Wynn Owen commented that this suggests Mr Atkinson's deviant thinking is still 'readily promoted by images of children'.[29] When discussions surrounding children arose, Dr Wynn Owen opined that Mr Atkinson was 'very open' and had expressed that he understood that there was an ongoing need to be aware of his thoughts about children.[30]
[26] BoM, 491.
[27] BoM, 492.
[28] BoM, 492.
[29] BoM, 492.
[30] ts 16 May 2022, 134.
Mr Atkinson informed Dr Wynn Owen that he has not spoken with his CCO 'for a couple of months'.[31] While he is aware his previous accommodation is no longer available, he expressed his interest to live somewhere 'less noisy and stressful'.[32] Mr Atkinson also indicated that he hoped to find social contacts through voluntary employment or a Men's Shed, however he expressed some anxiety in relation to potentially being released and that he has some 'down days' when he worries about how he will cope.[33]
[31] BoM, 492.
[32] BoM, 492.
[33] BoM, 492.
Dr Wynn Owen used the diagnostic tool DSM‑V to determine the psychiatric diagnosis for Mr Atkinson. The DSM‑V professional diagnostic tool is an internationally recognised diagnostic system of the American Psychiatric Association. The DSM‑V is a comprehensive and highly detailed classification system for psychiatric disorders based on clinical description rather than presumed causation.[34] Dr Wynn Owen stated that Mr Atkinson has paedophilic disorder, non‑exclusive type and preferentially attracted to females.[35] Paedophilic disorder is characterised by 'recurrent sexually arousing fantasies, sexual urges or behaviours involving sexual activity with a prepubescent child or children over a period of a minimum of 6 months'.[36] This diagnosis remains consistent with the diagnosis expressed by Dr Wynn Owen two years prior.[37]
[34] The State of Western Australia v Atkinson [No 2] [66].
[35] BoM, 493.
[36] BoM, 493.
[37] The State of Western Australia v Atkinson [No 2] [67]; BoM, 282.
Dr Wynn Owen also undertook an assessment of the risk of Mr Atkinson committing a future serious offence. He did so using actuarial and non-actuarial tools in combination with a clinical assessment. These included two standard mechanisms: the Static‑99R measure and the Risk for Sexual Violence Protocol (RSVP). The Static‑99R is an actuarial tool designed to assess the long‑term potential for sexual recidivism amongst adult male sex offenders. Mr Atkinson's Static‑99R score is in the Level IVa or 'above average risk' range. In the Static‑99R high risk/high needs cohort of offenders, individuals whose Static‑99R was the same as Mr Atkinson on release had a 17.3% five-year recidivism rate and a 27.3% 10‑year recidivism rate.[38] In routine samples with the same score as Mr Atkinson, the average five‑year sexual recidivism rate is 9.2%.
[38] BoM, 494.
The RSVP is a structured clinical judgment framework and requires consideration of a comprehensive range of risk factors for sexual offending, with emphasis given to the manageability of the risk of future sexual violence. Dr Wynn Owen's report indicates the various risk factors present for Mr Atkinson. These include:
(a)sexual violence history;
(b)psychological adjustment;
(c)mental disorder;
(d)social adjustment;
(e)manageability; and
(f)other considerations, including Mr Atkinson's acute ill health.
Dr Wynn Owen assessed that the presence of psychological coercion, including grooming, is a risk that requires specific attention in developing an appropriate risk management plan.[39] In his interviews, Mr Atkinson made comments about his neighbour, such as that she doesn't 'have a motherly instinct in her body'.[40] Such thinking rationalises the behaviour to perhaps become closer to children in someone's care in order to 'rescue' them. Further, risk factors associated with stress and coping remain present for Mr Atkinson. Both have been contributory factors in all of Mr Atkinson's past offending, suggesting that his past sexual offending with reference to deviant sexual fantasy and behaviours are more likely to occur during times of stress.[41]
[39] BoM, 494.
[40] BoM, 495.
[41] BoM, 495.
The risk factor of major mental illness was also described by Dr Wynn Owen as 'possibly present'.[42] Mr Atkinson has many predisposing factors for depression, including social isolation, chronic illness, his stigmatised status as a high risk serious offender and related conditions, as well as his avoidant personality style.[43] Dr Wynn Owen notes that depression in particular is known to interfere with the ability and motivation to comply with treatment and supervision requirements. Mr Atkinson's reports of fleeting suicidal ideation also evidence potential difficulty for Mr Atkinson in adjusting to and coping with circumstances resulting from breaches of a supervision order.[44]
[42] BoM, 496.
[43] BoM, 496.
[44] BoM, 496.
Mr Atkinson's ongoing issues with intimate and non‑intimate relationships are also definitely present. The relationship Mr Atkinson formed with his neighbour precipitated all six of the breaches of his supervision order. Mr Atkinson holds an ambivalent attitude towards the relationship, indicating that he recognises he was attempting to 'rescue' his neighbour, however he does not correlate these actions with the beginning of a potential offence cycle.[45] Problems with intimate and non-intimate relationships exacerbate feelings of loneliness and isolation, negatively prompting pathological coping such as deviant sexual fantasy.[46] Dr Wynn Owen noted in oral evidence that he was surprised that Mr Atkinson did not perceive his interactions and behaviours towards the neighbour in any way related to an offending cycle or offending‑type behaviour.[47] In his words, the instance of purchasing the jelly cups for the neighbour's grandchildren should have been an 'immediate red flag' for Mr Atkinson.[48] Dr Wynn Owen referred to his previous interview with Mr Atkinson in 2020 when Mr Atkinson told him explicitly that he 'had to avoid rescuing people' and specifically 'avoid dysfunctional families'.[49]
[45] BoM, 496 – 497.
[46] BoM, 497.
[47] ts 16 May 2022, 134.
[48] ts 16 May 2022, 139.
[49] ts 16 May 2022, 139.
Additionally, issues with obtaining employment and volunteering have been ongoing for Mr Atkinson, where feelings of inadequacy, financial stress and isolation are associated risks of pathological coping strategies and a dynamic factor for repeat sexual offending.[50]
[50] BoM, 497.
Dr Wynn Owen indicated that he noticed a difference in terms of expression of responsibility and the reduction in minimisation and attribution to others for Mr Atkinson's offending behaviour.[51]
[51] ts 16 May 2022, 134.
As aforementioned, there are also ongoing issues with Mr Atkinson making and implementing pro-social life plans, with such risk closely associated with Mr Atkinson's lack of self-awareness in befriending a 'needy' woman whom Mr Atkinson knew had occasional care of young children.[52] Mr Atkinson's burden of thrice weekly renal dialysis, derived from one of his chronic illnesses, places another stressor on Mr Atkinson in light of managing his reporting requirements in relation to his supervision order.
[52] BoM, 497 – 498.
Dr Wynn Owen concluded that Mr Atkinson's risk of reoffending could be managed on a supervision order with amended conditions. Dr Wynn Owen recommended that the amended supervision order be clarified with Mr Atkinson, particularly in relation to the amended condition regarding contact (as explained further in [77] below).[53]
[53] ts 16 May 2022, 147.
Dr Wynn Owen made a number of recommendations in relation to Mr Atkinson's future treatment, including that he participate in one‑on‑one counselling with a specialised psychologist, be reassessed every six months by a psychiatrist, and potentially trial a selective serotonin reuptake inhibitor (SSRI) antidepressant.[54]
Luke Carmichael
[54] BoM, 501.
Mr Carmichael has primarily case managed Mr Atkinson through his role as a Senior Community Corrections Officer in the COMU since 5 January 2021 (save for between 21 May 2021 and 24 June 2021 when Mr Atkinson was in custody and under the supervision of Ms McNally, another officer in the COMU).
Mr Carmichael prepared a performance report on 9 May 2022, a statement dated 10 May 2022 and an updated performance report dated 13 June 2022 in relation to Mr Atkinson for the purposes of the contravention hearing. Mr Carmichael's performance report of 9 May 2022 comments on Mr Atkinson's performance in relation to supervision, psychological counselling, relationships, and re‑integration support with Uniting WA. Mr Carmichael notes that Mr Atkinson was engaged with Uniting WA since he commenced his supervision order and resided in accommodation supplied by the HRSO Supported Accommodation Program. In relation to the service, no ongoing issues were raised in relation to Mr Atkinson, and staff from Uniting WA remained Mr Atkinson's primary social contacts in the community.[55]
[55] BoM, 505.
Mr Carmichael's performance report of 9 May notes that Mr Atkinson committed one initial instance of non-compliance with his supervision order. Such contravention was in breach of condition 36 of his supervision order, where Mr Atkinson had failed to enter attendance at three locations between 10 and 12 December 2021. Given this was his first instance of non‑compliance, and the omitted locations were unrelated to any increase in risk, a written warning was issued.[56]
[56] BoM, 507.
Mr Carmichael was Mr Atkinson's CCO at the time of his six offending contraventions. He gave evidence that Mr Atkinson in his sessions with him did not mention the extent of his contact with his neighbour, nor that he had lent her money or bought jelly cups for her grandchildren which are the most concerning aspects of Mr Atkinson's relationship with his neighbour.
Nevertheless, it is significant that both Mr Carmichael and Dr Wynn Owen considered that there was no deliberate intention on the part of Mr Atkinson to engage in such conduct in order to have access to the children. Rather, the problem was Mr Atkinson's inability to appreciate the significance of his conduct and his lack of awareness that this was the type of conduct that could lead to his offending. In the circumstances, Mr Carmichael on behalf of the applicant, in consultation with Dr Wynn Owen, drafted a proposed new order that would, in their view, provide a greater level of clarity and a satisfactory safeguard to permit Mr Atkinson to resume his life in the community with adequate supervision.
Since Mr Atkinson returned to custody, he has not incurred any prison incidents or charges. Prison staff have reported that Mr Atkinson is a polite and respectful prisoner. Mr Atkinson is presently employed in custody as a garments worker.[57]
[57] BoM, 509.
Mr Carmichael's report notes that Mr Atkinson has little in the way of community support or accommodation options to assist with release planning.[58] Mr Carmichael reported that Mr Atkinson stated that the best way for him to avoid similar situations in the future would be for him to not be housed in a 'block of flats' that is already 'on the Police's radar'. Mr Carmichael notes that this is an apparent attempt by Mr Atkinson to blame his housing situation and close quarters living for his contraventions.[59] Despite some minimisation and deflection of blame, Mr Atkinson ultimately accepted fault for his behaviour in contravening his supervision order.[60]
[58] BoM, 509.
[59] BoM, 509.
[60] BoM, 510.
Mr Carmichael's report also addressed the then current housing situation for high risk serious offenders. Mr Atkinson has remained engaged with Uniting WA's High Risk Serious Offender Supported Accommodation Program throughout the duration of his time in custody, as well as having been waitlisted for accommodation via the Department of Communities housing program. At the time of the hearing on 16 May 2022, Mr Atkinson was seventh on Uniting WA's Supported Accommodation Program waitlist.
At the hearing of 16 May 2022, Mr Carmichael indicated that a property was potentially being vacated by another high risk serious offender and that it would possibly become available to Mr Atkinson over the forthcoming weeks. As a result, I requested an update from the State by 13 June 2022, to allow for further information to be ascertained regarding the suitability of the property.
On 13 June 2022, the State provided the updated performance report of Mr Carmichael. Mr Carmichael noted that the property he referred to at the hearing of 16 May 2022 would be both suitable (in accordance with the recommendations by the Western Australia Police Force and COMU) and available for Mr Atkinson to move into within the following four weeks. That time period was dictated by leasing negotiations and the subsequent relocation of the current tenant.[61]
[61] Updated Performance Report of Luke Carmichael (13 June 2022), 3.
Mr Carmichael has indicated that Mr Atkinson is unlikely to gain employment in the community due to his chronic health issues, and would likely continue his Disability Support Pension if re‑released on a supervision order.
The State and Respondent's submissions
The State accepted that in light of the evidence it was appropriate for Mr Atkinson to be released into the community, albeit on an amended supervision order in accordance with the proposal of Mr Carmichael and Dr Wynn Owen, and that the amended supervision order would be extended to six years and four months from 4 November 2020. This would take the form of an amendment to condition 37 of the restriction order, namely:
37. Report at your next contact with your CCO any contact or association with any person on more than two occasions including, but not limited to, the formation of any association, this includes social, friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person.
Counsel for Mr Atkinson did not object to the proposed amendment of condition 37 or to the proposed extension of time for the amended supervision order.
Amended supervision order
In light of the evidence, particularly the evidence of Dr Wynn Owen and Mr Carmichael, I am satisfied that the appropriate disposition of the application is, pursuant to s 55(1)(b), to make an order amending the conditions of the supervision order and extending the period for which the offender is to be subject to the amended supervision order. On the basis of the evidence, I am also satisfied on the balance of probabilities that Mr Atkinson will substantially comply with the amended supervision order, and that the community will be adequately protected by the amended conditions of this order.
Mr Atkinson's most significant risk factor relating to reoffending is the presence of sexual deviance. His most recent breaches confirm that he has outstanding treatment needs in relation to self-awareness, stress and coping, and intimate and non-intimate relationships.[62] It has been suggested that Mr Atkinson should be monitored for evidence of depression and be provided with opportunities to socially interact in order to reduce feelings of isolation and loneliness. In all the circumstances, I am satisfied that there are propitious mechanisms in place for Mr Atkinson to return to a life in the community while continuing to receive treatment and comply with the amended supervision order. As observed by Mr Carmichael, Mr Atkinson will benefit from 'clear and firm boundaries' as well as 'regular clarification and rehearsal of conditions and obligations'.[63]
[62] BoM, 501.
[63] BoM, 514.
In making these new orders, I also echo the recommendations suggested by Dr Wynn Owen in his Psychiatric Report of Mr Atkinson and strongly urge that such points are taken into consideration upon Mr Atkinson returning to living in the community.
Section 48(2) provides that the paramount consideration in the decision to make a restriction order is the need to ensure adequate protection of the community. At the same time, s 8 makes plain that the objects of the Act are not limited to the protection of the community but include the care or treatment of the offender. It might sometimes be observed that the community's understandable concern for the former object is not matched by its enthusiasm for the latter. That is all the more reason to be reminded that the care and treatment of offenders must also be at the forefront of the application of the statutory regime. The importance of that object is all the more evident given that the Act provides for the detention or curtailment of the liberty of a person who has fully served his or her sentence. The Act reflects a delicate balance between the necessary protection of the community and the rights of an individual offender. That balance will be unjustly skewed if proper attention is not given to the statutory object of the care and treatment of people who come within the reach of the Act.
Orders
(1)Pursuant to s 55(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), the conditions of the Supervision Order made by the Honourable Justice McGrath on 21 October 2020 (Supervision Order) be amended as marked on Annexure A to these reasons.
(2)Pursuant to s 55(1)(b) of the HRSO Act, in addition to any extension to the Supervision Order by operation of s 57(2) of the HRSO Act, the period for which the respondent is to be subject to the Supervision Order is extended by a period of seven months and two weeks.
(3)The address specified in condition 8 of the Supervision Order as amended is suppressed from publication.
ANNEXURE A
IN THE SUPREME COURT OF WESTERN AUSTRALIA
SO 4 of 2020
IN THE MATTER of the High Risk Serious Offenders Act 2020
THE STATE OF WESTERN AUSTRALIA Applicant
-and-
IAN EVERITT ATKINSON Respondent
_________________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE MCGRATH
ON 21 OCTOBER 2020
AMENDED BY THE HON JUSTICE SOLOMON ON 25 JULY 2022
_________________________________________________________________________
Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is 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 5 years from 4 November 2020 on the following conditions:
You, IAN EVERITT ATKINSON, must:
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of your current name and address.
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 two business days before the change happens.
Be under the supervision of a CCO and 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 (address redacted) and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.
Reporting to a CCO and supervision by a CCO
Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this order.
Be under the supervision of a CCO, report to and receive visits from a CCO at times and places as directed by the 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 sexual re-offending, as directed by a CCO.
Reporting to WA Police
Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody and thereafter report to and receive visits from WA Police at times and at locations as directed by the Officer-in-Charge of SOMS or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).
If requested, permit police officers to enter and search your residence and/or vehicle, and/or your person for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the police officer believes to contravene the conditions of the order.
Remain at your premises and/or vehicle when police officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020 (WA).
When requested, advise WA Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all 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 sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to condition 21, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring;
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997 (WA).
Criminal conduct
Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203 or s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorized under the Medicines and Poisons Act 2014 (WA), and your use is in accordance with the instructions of the prescriber.
Curfew
Be subject to a curfew, pursuant to
section 19Bsection 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 curtilage of your approved address, or speak on the telephone, to any CCO or police officer or their agent monitoring your compliance with the curfew.
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.
Prevention of high-risk situations
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the 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; and
(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 condition 33, 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 WA Police on the next occasion you report to that person or agency.
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and police officer upon request.
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 any contact or association with any person on more than two occasions including, but not limited to, the formation of any association, this includes social, friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person. The CCO may direct that certain associations do not need to be further reported.
Report at your next contact with your CCO and WA 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.
Not conduct computer searches for, collect, access, or be in possession of in either electronic or permanent form, images of children including drawings or sketches, whether indecent or not, with the exception of images of your immediate family that are not indecent images if approved in advance by a CCO. Possession of such images depicting a child or children on items such as household items, may be authorised by a CCO.
Not be in possession of any children's toy, game or confectionery that could reasonably be perceived to be capable of being an enticement to children, unless such possession is for a legitimate purpose.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a police officer.
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 possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
Not access the internet on any computer, telecommunication or other device capable of internet access, unless such access is approved and supervised at all times by a person approved in advance by a CCO. Such approval may include a requirement for the access to be supervised by a person approved in advance by a CCO.
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 44, without prior approval of the CCO.
Enable device locking or password access of your computer, telecommunication and/or electronic devices; not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 44 or any online accounts, to any person other than a CCO or police officer.
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; should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
____________________________________
THE HON JUSTICE MCGRATH
I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I contravene it.
Signed by the Respondent _____________________________
IAN EVERITT ATKINSON
In the presence of: _____________________________
Name and address: _____________________________
_____________________________
Date: _____________________________
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NW
Associate to Justice Solomon
25 JULY 2022
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