The State of Western Australia v BC [No 2] - [2022] WASC 356

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BC [No 2] [2022] WASC 356
CORAM:   DERRICK J
HEARD:   17 OCTOBER 2022
DELIVERED          :   27 OCTOBER 2022
FILE NO/S:   SO 9 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BC
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Restriction order application - Whether restriction order should be made - Whether continuing detention order or supervision order appropriate

Legislation:

Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)

Result:

Finding that respondent is a high risk serious offender made
Supervision order made

Category: B

Representation:

Counsel:

Applicant	:	B D Meertens
Respondent	:	T Hager

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Tony Hager

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

Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 313
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; (2007) 35 WAR 297
Garlett v The State of Western Australia [2022] HCA 30
GBT v The State of Western Australia [2019] WASCA 40
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v BC [2021] WASC 164
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Narkle [2019] WASC 404
The State of Western Australia v Newland [2018] WASC 344
The State of Western Australia v Patrick [No 4] [2020] WASC 48
The State of Western Australia v Patrick [No 5] [2022] WASC 61
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330

DERRICK J:

The application

The applicant applies for a restriction order to be made in relation to the respondent pursuant to s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (Act).

Background to the restriction order application

On 11 March 2019 the respondent, who is currently 53 years old, was sentenced in the Children's Court to a total of 3 years imprisonment for six offences of indecently dealing with boys under the age of 14, one offence of carnal knowledge against the order of nature, five offences of indecently dealing with children, two offences of doing an indecent act in public and one offence of inciting an indecent dealing with a child under the age of 14 (index offences). The commencement date of the 3 year sentence was backdated to 23 February 2019. The respondent was made eligible for parole.
On 21 July 2020 the Prisoners Review Board (PRB) refused to release the respondent on parole.
On 12 August 2020 the applicant made an application under the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) for the following orders to be made in relation to the respondent (DSO Act application):
1.Orders under s 14 and s 17(1) of the DSO Act pursuant to s 8 of the DSO Act; and
2.The respondent be detained in custody until the conclusion of the hearing and judgment on the application for a Division 2 Order, pursuant to s 14 (2)(b)(i) of the DSO Act.
On 26 August 2020 the relevant provisions of the Act came into operation.[1] On the same date the DSO Act was repealed.[2] However, by virtue of s 124(1) of the Act, as the DSO Act application had not been finally determined by 26 August 2020, the application continues and is able to be determined under the Act and is taken to have been made under the provisions of the Act that correspond with s 8, s 14 and s 17(1) of the DSO Act. Accordingly, from 26 August 2020 the DSO Act application became an application for the following orders to be made in relation to the respondent:
1.A restriction order under s 48(1) of the Act (the application for this order being made pursuant to s 35(1) of the Act);[3]
2.Orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act; and
3.An order that until the conclusion of the hearing and judgment on the application for a restriction order the respondent be detained in custody pursuant to s 46(2)(c)(i) of the Act.
[1] Part 1 of the Act came into operation on 9 July 2020: Act, s 2(1)(a). Other parts of the Act relevant to the application came into operation on 26 August 2020: Act, s 2(1)(c).
[2] Act, s 123.
[3] The respondent is an 'offender' for the purposes of the Act and at the time of the DSO Act application was 'a serious offender under custodial sentence who is not a serious offender under restriction' within the meaning of s 35(1) of the Act: see the definition of 'offender' in s 3 of the Act, par (b) of the definition of 'serious offender under custodial sentence' in s 3 of the Act and the definition of 'serious offender under restriction' in s 3 of the Act.
On 21 May 2021 the hearing of the application for the orders pursuant to s 46(2) of the Act, the preliminary hearing, took place before Quinlan CJ. Quinlan CJ found that there were reasonable grounds for believing that the court might find that the respondent is a high risk serious offender[4] and therefore made orders as sought by the applicant under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act.[5] His Honour fixed 8 October 2021 for the hearing of the application for the restriction order under s 48(1) of the Act (application).
[4] Act, s 46(1).
[5] The State of Western Australia v BC [2021] WASC 164.
On 7 October 2021 I heard an application by the respondent to adjourn the hearing of the application. The respondent made the adjournment application so that he would have the opportunity, prior to the hearing of the application, to participate in and complete an intensive sex offender treatment programme and to be reviewed by a doctor in relation to commencing antilibidinal therapy. I note in this regard that the respondent, at the time of making the adjournment application and through no fault of his own, had not been given the opportunity to participate in an intensive sex offender treatment programme.
In making the adjournment application the respondent expressly conceded that it would, if the adjournment was granted, be appropriate for me to make an interim detention order pending the determination of the application. He also acknowledged and accepted that given the time that it would take him to complete the intensive sex offender treatment programme (approximately 6 months) the result of granting the requested adjournment would be his detention in custody beyond the expiry date of his sentence, the expiry date being 22 February 2022.
The respondent's adjournment application was not opposed by the applicant.
In the circumstances to which I have referred I allowed the respondent's application to adjourn the hearing of the application. I made programming orders for the filing of updated reports prior to the ultimate hearing of the application. I also made an order pursuant to s 46(2)(c)(i) of the Act that the respondent be detained in custody pending the determination of the application (interim detention order).
On 5 January 2022 a 12-month post-sentence supervision order was made by the PRB in respect of the respondent pursuant to s 74D of the Sentence Administration Act 2003 (WA). The post-sentence supervision order came into effect on 22 February 2022, the expiry date of the respondent's sentence for the index offences. However, given the interim detention order the respondent remained in custody notwithstanding the making of the post-sentence supervision order. The post-sentence supervision order is due to expire on 22 February 2023.
Ultimately, on 17 October 2022 the hearing of the application took place before me.

Evidence on the application

At the hearing of the application the applicant tendered without objection, a Book of Materials comprising 4 volumes, volumes 1 and 2 being dated 25 June 2021, volume 3 being dated 20 September 2021 and volume 4 being dated 13 October 2022.[6]
[6] Exhibit 1.
Volumes 1 and 2 of the Book of Materials include a variety of materials relating to the respondent including his criminal record, his prison records, his medical records, documents relating to his prior offences, and psychological and other reports. Volumes 3 and 4 contain the following reports prepared specifically for the purposes of the application:
1.A report prepared by Dr Peter Wynn Owen, Consultant Forensic Psychiatrist, dated 19 September 2021;[7]
2.A High Risk Serious Offender Psychological Risk Assessment Report prepared by Ms Julie Hasson, Consultant Forensic Psychologist, dated 26 August 2021;[8]
3.A Proposed High Risk Serious Offender Management Plan Report prepared by Dr Sarah Barbas, a Clinical and Forensic Psychologist with the Department of Justice's (Department) Forensic Psychological Service (FPS), dated 3 September 2021;[9] and
4.A Community Supervision Assessment Report prepared by Ms Emma Cashmore, a Senior Community Corrections Officer (CCO) within the Department's Community Offender Monitoring Unit (COMU), dated 7 September 2021.[10]
5.A Treatment Progress Report prepared by Ms Sarah Ballantyne, a Senior Counselling Psychologist with the Department's Forensic Psychological Intervention Team (FPIT), dated 11 April 2022;[11]
6.A Sexual Offender Intensive Treatment Programme Completion Report dated 26 August 2022; [12]
7.An addendum psychiatric report prepared by Dr Wynn Owen dated 6 October 2022; [13]
8.An update Psychological Risk Assessment Report prepared by Ms Hasson dated 7 October 2022; [14]
9.A Treatment Options Report prepared by Ms Tara Stagg, a high risk serious offender planning manager with the Department, dated 11 October 2022; [15] and
10.An update Community Supervision Assessment Report prepared by Ms Aimee Goode, a Team Leader within the COMU, dated 12 October 2022.[16]
[7] Exhibit 1, vol 3, 769. Dr Wynn Owen is a 'qualified expert' as defined in s 3 of the Act. His report was prepared and obtained pursuant to s 46(2)(a) of the Act and in accordance with s 74 of the Act.
[8] Exhibit 1, vol 3, 741. Ms Hasson is a 'qualified expert' as defined in s 3 of the Act. Her report was prepared and obtained pursuant to s 46(2)(a) of the Act and in accordance with s 74 of the Act.
[9] Exhibit 1, vol 3, 733.
[10] Exhibit 1, vol 3, 803.
[11] Exhibit 1, vol 4, 835.
[12] Exhibit 1, vol 4, 841.
[13] Exhibit 1, vol 4, 851.
[14] Exhibit 1, vol 4, 856.
[15] Exhibit 1, vol 4, 872.
[16] Exhibit 1, vol 4, 876.
At the hearing of the application the applicant also tendered without objection an email from its solicitor to the court dated 14 October 2022 setting out answers given by Dr Wynn Owen to some questions asked by the applicant's counsel during a conversation that had occurred between counsel and Dr Wynn Owen in advance of the hearing of the application.[17]
[17] Exhibit 2.
At the hearing of the application Dr Wynn Owen, Ms Hasson, Ms Stagg and Ms Cashmore were called by the applicant to give supplementary oral evidence.
The respondent did not adduce any evidence on the application.

Relevant statutory provisions and applicable legal principles

I turn now to dealing in more detail with the provisions of the Act by reference to which the application must be determined as well as with the legal principles that are applicable to the determination of the application.
In relation to the applicable legal principles, in The State of Western Australia v ZSJ,[18] a case in which the State made an application under div 2 of the DSO Act but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):
As will emerge from the outline below of the statutory framework under the DSO Act and [the Act], the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General. The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'. He went on to say:
'In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].'
Whether or not that has been achieved remains to be seen upon analysis of the provisions. However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying [the Act], with appropriate adaptation in cases involving non-sexual offences.
[18] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].
I generally agree with Fiannaca J's observations. In my opinion and having full regard to the recent decision of the High Court in Garlett v The State of Western Australia[19] which addressed the constitutional validity of aspects of the Act, much of the case law decided under the DSO Act in relation to applications made under div 2 of the DSO Act remains relevant to the determination of applications for restriction orders under the Act. Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application will include cases that have been concerned with proceedings under the DSO Act.
[19] Garlett v The State of Western Australia [2022] HCA 30.
Section 48 of the Act provides:
Restriction orders
(1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
The definition of the term 'high risk serious offender' is contained in s 7(1) of the Act. Section 7(1) is in the following terms:
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
The term 'restriction order' is defined in s 3 of the Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 respectively. Thus s 26 provides:
Continuing detention order
(1)In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.
(2)A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.
Section 27 relevantly provides:
Supervision order
(1)In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.
(2)A supervision order has effect in accordance with its terms -
(a) from a date stated in the order; and
(b) for a period stated in the order.
(3)...
With respect to the term 'community' used in s 7(1), s 4 of the Act provides that 'a reference in this Act to the community includes any community and is not limited to the community of Western Australia or Australia'. Accordingly, in deciding if an offender is a 'high risk serious offender' consideration must, if required by the circumstances of the particular case, be given to whether it is necessary to make a restriction order to ensure adequate protection of persons outside of Western Australia and/or Australia against an unacceptable risk that the offender will commit a serious offence against those persons.[20]
[20] Garlett v The State of Western Australia [100] - [101], [225].
As to the term 'serious offence' used in s 7(1), s 3 and s 5(1) of the Act provide that a 'serious offence' is an offence that 'is specified in Schedule 1 Division 1 of the Act', or 'is specified in Schedule 1 Division 2 and is committed in the circumstances indicated in relation to that offence in that Division'. Section 3 and s 5(2) provide that an offence is a 'serious offence' if it was an offence under a written law that has been repealed and the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under s 5(1). Offences that were 'serious sexual offences' under the DSO Act come within the definition of a 'serious offence' under the Act because they are offences that are specified sch 1 div 1 of the Act.
It follows from the definition of 'high risk serious offender' contained in s 7(1) that a finding under s 48(1) that an offender is a high risk serious offender, that is, a finding 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', necessarily entails a finding that if the offender is not subject to a restriction order the community will not be adequately protected against an unacceptable risk that the offender will commit a 'serious offence'.[21]
[21] The State of Western Australia v West[No 6] [2019] WASC 427 [21]; The State of Western Australia v ZSJ [44].
If the court finds that an offender is a high risk serious offender it is not invested with a residual discretion to decline to make a restriction order.[22] In these circumstances the question for the court is whether a continuing detention order or a supervision order should be made.[23]
[22] Garlett v The State of Western Australia [72].
[23] Act, s 68(1)(b).
By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 48(1) that the offender is a high risk serious offender, it must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'. The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[24]
[24] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (28); The State of Western Australia v West [No 6] [6] - [24]; The State of Western Australia v ZSJ [47].
The requirement is not that the risk that the offender will commit a 'serious offence' must be at some high percentage of probability. A risk that the offender will commit a 'serious offence' may be less than 50% yet still be an unacceptable risk.[25] It is the necessity 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' that must be proved by acceptable and cogent evidence and to a high degree of probability.
[25] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].

Whether or not a risk that the offender will commit a 'serious offence' is 'unacceptable' is a question that requires the court's judgment as to the likelihood of the offender committing the 'serious offence' and the nature and extent of the harm that will be caused if the offender commits the 'serious offence'.[26] Further, whether a restriction order is 'necessary' to ensure the adequate protection of the community against the 'unacceptable risk' requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.[27] Accordingly, the court is required to perform an evaluative exercise by considering whether, having regard to the likelihood of the offender offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the offender has already been punished for the offences they have committed, it is necessary in the interests of the community to ensure that they are subject to further control or detention.[28] In addition, although the requirement of an evaluation under s 7(1) depends upon the offender having been convicted of a 'serious offence', s 7(1) and s 48 do not envisage the possibility that a finding that an offender is a high risk serious offender might be made to prevent the commission of a 'serious offence', whether of the same kind or another kind, unless the risk of further offending involves a real threat of harm to the community.[29]
[26] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [2018] WASC 344[12]; GBT v The State of Western Australia [2019] WASCA 40[21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45]; Garlett v The State of Western Australia [73], [226].
[27] Garlett v The State of Western Australia [73], [227]. As Quinlan CJ recognised in The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21] there may be rare situations in which a court will find that it is not necessary to make a restriction order notwithstanding a finding that the offender poses an 'unacceptable risk', for example, where other external restraints (such as a post-sentence supervision order under the Sentence Administration Act) are sufficient to ensure adequate protection of the community from the risk.
[28] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63]; GBT v The State of Western Australia [21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45]; Garlett v The State of Western Australia [73], [226] - [227], [279]
[29] Garlett v The State of Western Australia [84].
By reason of s 48(2), if the court finds that the offender is a high risk serious offender it is the need to ensure the 'adequate' protection of the community that is to be the paramount consideration for the court in deciding whether to make a continuing detention order or supervision order in relation to the offender. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot be assumed that the most assured preventative action is detention and that therefore the protection of the community will always favour such an order.[30] In this regard I respectfully adopt the following statements of Beech J (as his Honour then was) in Director of Public Prosecutions (WA) v DAL [No 2] which, although made in relation to review proceedings under the DSO Act, are equally applicable to the operation of s 7(1) and s 48(2) of the Act:[31]
In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. 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 care and treatment. 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. 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. 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.
[30] Director of Public Prosecutions for Western Australia v Williams [63] ‑ [64]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21]; The State of Western Australia v West [No 6] [26]; The State of Western Australia v ZSJ [51]; Garlett v The State of Western Australia [106].
[31] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]. Also adopted in The State of Western Australia v Narkle [2019] WASC 404 [13] and The State of Western Australia v West [No 6] [26].
The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection of the community.[32]
[32] The State of Western Australia v Latimer [2006] WASC 235 [25]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [85], [229] - [230].
Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.
Section 7(3) of the Act specifies the matters that the court must have regard to in deciding if an offender is a high risk serious offender for the purposes of s 7(1). The matters specified are substantially identical to the matters that the court was, by s 7(3) of the DSO Act, required to have regard to in deciding whether a person was a 'serious danger to the community' within the meaning of the DSO Act. The matters are as follows:
(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.
Although s 7(3)(g) provides that a court must have regard to the offender's criminal record in deciding whether the person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that they will commit a 'serious offence' in the future if they are not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they have been committed. Nonetheless, past behaviour is often a good indicator of future conduct.

By s 48(1)(b) of the Act, the power of the court to make a supervision order is subject to s 29. Section 29 relevantly provides:
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)…
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition that under s 30(2) of the Act must be included in the order. Section 30(2) of the Act specifies seven conditions that must be included in any supervision order.
Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions set out in s 30(2) of the Act before the court can make a supervision order in relation to them.[33]
[33] Garlett v The State of Western Australia [102], [231].
For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the offender committing a 'serious offence'.[34] Further, in determining if it is satisfied that the offender will substantially comply with each standard condition of the supervision order, the court must have regard not only to the constraints that will be imposed upon the offender by the other standard conditions, but also to the constraints that will be imposed upon the offender by all the other 'non-standard' conditions of the supervision order.[35]
[34] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] ‑ [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109]-[111].
[35] The State of Western Australia v ACJ [2021] WASC 219 [416]; Garlett v The State of Western Australia [103] - [104], [233].

Suppression order

At the commencement of the hearing of the application the applicant applied for an order suppressing the publication of the name of the respondent's ex-wife and the address at which the respondent proposes to live if he is found to be a high risk serious offender and is released on a supervision order (the address being the residence of the respondent's ex-wife and children). The application for the suppression order was, in substance, made on the ground that disclosure of the name of the respondent's ex-wife and the address might result in some risk to the safety of the respondent, his ex-wife and their children and might compromise not only the ability to use the address to house the respondent but also the ability of his ex-wife and children to remain in their home. I was satisfied, given the respondent's offending history, that it was appropriate to make the order sought for the reasons advanced by the applicant. I therefore made an order suppressing the publication of the name of the respondent's ex-wife and the address at which he will live if I find him to be a high risk serious offender and decide to release him on a supervision order.

Matters specified in s 7(3) of the Act

As I have indicated, in deciding if the respondent is a high risk serious offender I must have regard to the matters specified in s 7(3) of the Act. I therefore turn to addressing the matters specified in s 7(3) of the Act.

The respondent's history of offending - s 7(3)(g)

The respondent has a history of sexual offending against children. It is the respondent's sexual offending against children that has prompted the application.

1987 offences

On 15 January 1988 the respondent was convicted on his pleas of guilty of two offences of aggravated sexual penetration without consent. The offence of aggravated sexual penetration without consent is a 'serious offence' for the purposes of the Act.
The respondent committed the two offences on two separate occasions in 1987 when he was 19 years old. The victim of the offences was a 12-year-old girl. One of the offences was comprised of the respondent penetrating the victim's anus with his penis. The second of the offences was comprised of the respondent having sexual intercourse with the victim until ejaculation.
The two offences were representative of a prolonged course of sexual offending by the respondent against the victim. The sexual offending commenced in 1984 when the respondent was around 15 years old and the victim was around 8 years old. The sexual offending included many acts of various forms of sexual penetration. The respondent engaged in an extended period of grooming of the victim. The respondent also tricked the victim into posing for nude photographs and then used the photographs to coerce the victim into engaging in sexual activity with him and to ensure that she would not complain about his actions to her parents.
On 12 February 1988 the respondent was sentenced to a total of 5 years and 11 months imprisonment for the two offences. He was made eligible for parole.

2014 offences

On 3 June 2016 the respondent was convicted on his pleas of guilty of nine offences of indecently recording a child under the age of 13 years, two offences of indecently dealing with a child under the age of 13 years and one offence of distributing child exploitation material to another. The respondent committed the offences in 2014. All the offences are 'serious offences' for the purposes of the Act.
The respondent committed the offences against a 12-year-old girl who was routinely offered by her father to middle‑aged men for sexual exploitation. The respondent was one of these men. The respondent committed the offences with the knowledge and encouragement of the victim's father.
The respondent's indecent recording offences were comprised of him, on a number of separate occasions, taking photographs of the victim while she was naked or semi‑naked and generally while she was in sexually provocative poses. The respondent's indecent dealing offences were comprised of him exposing his genitals to the victim on one occasion, and on another occasion masturbating to ejaculation while kneeling between the victim's legs. The respondent's distribution of child exploitation material offence was comprised of him transferring the photographs that he had taken of the victim onto a thumb drive which he left in the mailbox of the victim's father. The respondent also shared the photographs with six other persons who he had met through Craiglist.
On 3 June 2016 the respondent was sentenced to a total of 3 years imprisonment for the offences. The commencement date of his sentence was backdated to 2 July 2015. He was made eligible for parole.

Index offences

The respondent committed the index offences between 1979 and 1985, when he was aged between 13 and 17 years. He committed the offences against seven male victims who were aged between approximately 7 years and 13 years. The index offences comprised of the offence of carnal knowledge against the order of nature and the indecent dealing offences are 'serious offences' for the purposes of the Act.

The respondent's personal circumstances and antecedents - s 7(3)(g)

The respondent, as I have previously mentioned, is 53 years old.
The respondent was born in the United Kingdom. He came to Australia with his family when he was 4 years old.
The respondent is the third of four children born to his parents. The respondent's parents remained together until his father died in around 2017.
The respondent has been estranged from his family since being convicted of the 2014 offences.
The respondent reports being sexually abused at the age of 10 by two male strangers at a football club and again, a short time later, by a scout leader.
The respondent reports that he was bullied at school.
The respondent left school at the end of year 11 when he was 16 years old. On leaving school he completed a four-year apprenticeship in Electrical Fitting for Alcoa. Since that time the respondent has completed several occupational courses as an adult in areas such as management and warehousing.
The respondent has worked in a variety of jobs during his adult life. Prior to being imprisoned for the 2014 offences the respondent did not have difficulty obtaining employment. However, after his release from prison in 2018 he was unable to obtain employment due to his notoriety and was in receipt of Centrelink benefits until his imprisonment for the index offences.
The respondent moved out of his family home when he was about 17 years old. He moved in with family friends who he viewed as uncle and aunty figures. It was the 12-year-old daughter of his 'uncle' and 'aunty' against whom he committed the 1987 offences.
The respondent next lived with a girlfriend for two years before he was sentenced to imprisonment for the 1987 offences.
On being released from prison the respondent lived with his parents for three years.
When he was 25 years old the respondent met his ex-wife (BG).
The respondent and BG have two adult sons. Both sons suffer from disabilities. The respondent's eldest son's disabilities are such that he requires intensive support.
The respondent's marital relationship with BG came to an end when he was convicted of the index offences.
BG and the respondent's sons remain supportive of the respondent. They visit the respondent in prison. The respondent's plan on being released from custody is to return to live with BG and his sons at their home address.
The respondent 'experimented' with illicit substances when he was about 20 years old. He did not persist with his experimentation. He does not have any problems with illicit drug use. His use of alcohol is not problematic.

Efforts by offender to address causes of offending behaviour including participation in rehabilitation programmes and effect on respondent of participation - s 7(3)(e) and s 7(3)(f)

Sex offender's treatment programme - 1989

The respondent completed a sex offenders' treatment programme in 1989. The report relating to the respondent's participation in, and completion of, the programme is not available. Clearly, the respondent's completion of the programme was not sufficient to prevent him from relapsing and committing the 2014 offences.

Community based internet use and child sexual abuse programme - 2018

During the period August 2018 to February 2019 the respondent engaged in community based 'problematic internet use and child sexual abuse programme' conducted by Ms Christabel Chamarette, Clinical Psychologist, and her colleagues (PIU programme). The respondent was referred to Ms Chamarette by his treating doctor under a Medicare mental health plan. The PIU programme was designed to help individuals who had used the internet to interact improperly with a minor (or someone purporting to be a minor) and/or to access child related pornographic material, or who had otherwise demonstrated that they were at risk of sexually abusing children.
In participating in the PIU programme the respondent attended 10 group sessions. He also attended seven individual counselling sessions with Ms Chamarette as an adjunct to his participation in the PIU programme.
The respondent was unable to complete the PIU programme because he was required to commence the Department's community based Sex Offender Treatment Programme (SOTP) pursuant to the conditions of his post-sentence supervision order.[36]
[36] On 1 July 2018 the respondent was placed on a 2-year post-sentence supervision order by the PRB following his completion of the term of imprisonment imposed for the 2014 offences.

Ms Chamarette prepared a report dated 8 March 2019 in which she reported on the respondent's participation in the PIU programme.[37] She prepared the report for the purposes of the sentencing proceedings relating to the index offences.
[37] Exhibit 1, vol 2, 671.
In her report Ms Chamarette stated that in the group counselling programme the respondent had completed the 'Intro and Childhood issues' modules but had been unable to complete the 'Empathy and Relapse Prevention' modules because he was required by his CCO to transfer to the SOTP.
In her report Ms Chamarette said the following in relation to the respondent's risk of committing further offences:
[The respondent's] motivation as demonstrated during treatment is the best indication of his reduced risk of re-offending. He has gained a better understanding of how he came to behave in the way he did through his individual and group therapeutic work in order to ensure that no similar lapse could occur in the future. He has developed a safety plan and has the support of his wife and children. He represents a minimal risk of re-offending in the future. His recent charges to which he is pleading guilty represent historical charges rather than recidivism.
In relation to the respondent's participation in the individual and group counselling Ms Chamarette said the following:
[The respondent] has shown a positive response to the intensive weekly group treatment program which is designed for men who have offended in similar ways to him. At 11 weeks into the 20 week group Treatment program he made good progress and he would have gained considerably if he had been able to continue to completion in April 2019 in a way that was not available to him either before or during his past imprisonment. A report of the Government program in which he is currently participating should support the impression that he is positively engaged in rehabilitation and is at a much lowered risk of re-offending than in the past. Individual sessions which accompany group treatment will continue to ensure a reduction to any risk of re-offending if he remains in the community.
Ms Chamarette concluded her report in the following terms:
[The respondent] completed half of the community based group counselling program conducted by my colleagues and myself and is regarded as a low risk of reoffending. He is currently actively engaged in the Departmental Sex Offender Program and is continuing individual therapy with me. He is highly motivated to ensure that the behaviour relating to his charges never happens again and is ashamed and remorseful. It would be in his and the community interest for him to gain a non-custodial penalty that allows him to remain engaged in his rehabilitation.

SOTP - 2019

In early 2019 the respondent commenced the SOTP. At the commencement of the programme the respondent's treatment needs were identified as sexual preoccupation, deviant sexual interest in prepubescent female children, impulsivity and lack of concern for others.
The respondent participated in 16 of the SOTP's 43 sessions. He was unable to complete the programme due to being imprisoned for the index offences. In the Programme Non‑Completion Report dated 15 January 2019, the facilitators of the SOTP said the following:
[The respondent's] assessment scores on the Static-99R and STABLE‑2007 tools combined place him in the Moderate High category and presented with treatment needs related to sexual preoccupation, deviant sexual interest in prepubescent females, impulsivity and a lack of concern for others.
[The respondent] initially presented as somewhat unwilling to engage in the program due to his belief that he would soon be sentenced to a term of imprisonment for the current convictions and would be unable to complete the program. However, as he progressed his motivation appeared to increase and he actively engaged in the group process. In general [the respondent] displayed an intellectual understanding of the concepts presented and some factors that contributed to his offending behaviour. However, due to his short time in the program it was difficult to explore the factors that impeded his ability to enact behavioural change and further develop effective coping strategies to mitigate his risk of re‑offending in a similar manner in the future. Therefore his treatment needs remain unmet.
[The respondent] was exited from the program due to being sentenced to a term of imprisonment for historical sex offences against six male child victims. Therefore he did not have the opportunity to extensively explore the factors related to his offending or formulate effective strategies to mitigate his risk of similar offending in the future. As a result, [the respondent's] treatment needs remain unmet.
It is recommended that [the respondent] would benefit from inclusion in a prison based sex offender program to address his outstanding treatment needs. It is further noted that given [the respondent's] entrenched preoccupation with sex and his sexual attraction towards prepubescent female children, it [is] likely that he would benefit from ongoing monitoring and treatment.

Psychological counselling- 2021 - 2022[38]

[38] Exhibit 1, vol 4, 835.

Between 18 November 2021 and 23 December 2021 the respondent (while in custody) attended five individual counselling sessions with Ms Ballantyne. According to Ms Ballantyne the respondent presented as motivated, informed and prepared to engage in both individual intervention and the Sexual Offender Intensive Treatment Programme (SOITP).
The respondent only engaged in five sessions with Ms Ballantyne because after he had commenced the SOITP it was agreed between Ms Ballantyne and the facilitators of the SOITP that it would not be clinical best practice for individual counselling to continue. According to Ms Ballantyne, group therapy such as the SOITP is the evidence-based best practice 'treatment' of choice for 'offence specific (sexual) criminogenic intervention'. The view was taken that given the demands of the SOITP the best approach was for the respondent to focus on the programme. Account was also taken of the possibility that adjunct individual counselling had the potential to 'contaminate' the integrity of the SOITP and to result in the delivery of mixed messages. The respondent, at the time of attending his final session with Ms Ballantyne on 22 December 2021, had been prepared for the possibility of the individual sessions coming to an end due to his commencement on the SOITP, was expecting the individual sessions to come to an end and was accepting of this occurring.
In his first few individual sessions after the commencement of the SOITP the respondent described a range of perceived 'barriers' to his likely meaningful engagement in the group setting of the programme. The respondent expressed to Ms Ballantyne a reluctance to disclose his own childhood experiences of abuse in front of other participants in the SOITP and indicated that he was likely to provide only superficial accounts of his offending history, particularly his offending history involving males.
The respondent was encouraged by Ms Ballantyne to persist with the SOITP. She provided him with information relating to the likely structure, progress and content of the programme. The respondent was receptive to this information and on subsequent individual appointments with Ms Ballantyne described increasing confidence in the personal relevance of the programme's content and in his capacity to participate meaningfully in the processes of learning and sharing as a group member.
In her sessions with the respondent Ms Ballantyne focussed on developing a rapport with the respondent and obtaining a comprehensive family and psychosexual development history. Her purpose in obtaining this history was twofold. First, to establish a 'baseline' assessment of the respondent's current sexual interests, preoccupation and functioning. Second, to facilitate the assessment of the respondent for antilibidinal therapy.
During the counselling sessions the respondent described to Ms Ballantyne a diverse range of illegal or unusual sexually deviant interests and experiences. These interests included pre-pubescent females and females in the very early stages of puberty. The respondent emphasised that he is not, and never has been, sexually attracted to men.
Initially the respondent expressed reticence in relation to commencing antilibidinal therapy. He raised concerns about the necessity for him to engage in such therapy and about the possible side effects of the therapy. He clearly indicated that if he was to commence an antilibidinal therapy trial he wanted to do so while he was still in custody and before his next court appearance. He expressed his understanding that if after undergoing the necessary medical assessments antilibidinal therapy was indicated, this would be a reason for him to re-engage in individual therapy with Ms Ballantyne.
During his last session with Ms Ballantyne the respondent was encouraged to self-refer for medical assessment with a view to commencing antilibidinal therapy while in prison. Ms Ballantyne left open the possibility that she would recommence individual counselling with the respondent if requested to do so by the facilitators of the SOITP or if the respondent commenced antilibidinal therapy.

SOITP - 2021 - 2022[39]

[39] Exhibit 1, vol 4, 841.

On 30 November 2021 the respondent commenced the SOITP. The respondent completed the programme on 16 August 2022. To complete the programme the respondent attended 104 sessions.
Initially the respondent expressed uncertainty regarding the efficacy of engaging in treatment and articulated his resistance to the group process within the prison context. Nonetheless, he was an active participant and engaged in all aspects of the programme. The respondent engaged in group discussions, completed written tasks and made use of his reflective journal.
Throughout the programme the respondent explored both his current historical offending as well as his most recent offences. He had difficulties in recalling the precipitating factors to his historical offending but was able to explore his most recent offences in order to gain insight into the factors that contributed to his risk. The respondent demonstrated a conceptual understanding of content throughout the programme and was able to explore his offending patterns and make connections across his offences.
The respondent was assessed as requiring intervention for the following treatment need areas: social rejection/loneliness; lack of concern for others; social influence; negative emotionality; relationships stability; hostility towards women; poor cognitive problem solving; impulsive acts; sex drive/preoccupation; sex as a coping mechanism; emotional identification with children; deviant sexual interest; and co-operation with supervision.
During the programme the respondent acknowledged that in the absence of effective problem solving and an intrinsic motivation to develop adaptive coping, his boundaries began to erode in the lead up to his most recent offending. He identified increased use of pornography and over sexualising behaviours as well as casual sexual relationships as reinforcing his return to utilising sex as a coping strategy. He recognised that he would perceive adult characteristics in children in order to view them as equal to himself. He acknowledged these cognitive distortions as reinforcing his offending behaviour and as giving rise to a perception of an ability for his victim to give consent. He articulated understanding regarding the inability for children to provide consent and acknowledged power imbalances and grooming behaviours that would have increased victim compliance.
During the programme the respondent noted that if he began to create reasons to have contact with children this would be a warning sign for an increased risk of offending. He stated that he had no intention of accessing pornography in the future because he believed this to create a risk for normalising sexual behaviours and returning to sexual preoccupation.
Throughout the programme the respondent presented with honesty when discussing his sexual fantasies. He showed insight into his risk. He acknowledged periods when he was stressed and had returned to reliance on sexual fantasy as a coping mechanism. He shared his understanding and explored strategies to cease engaging in these cognitions. He acknowledged the need for him to address his reliance on sexual fantasy and to apply adaptive cognitive problem solving regarding stressors.
During the programme the respondent discussed a desire to meet his sexual needs through his relationship with his ex-partner. However, he understood that this might not be an option. He reported confidence in his ability to meet his sexual needs through masturbation and if required through sex workers or consensual casual relationships.
During the programme the respondent completed a comprehensive risk management plan that showed insight into his risks as well as considerable coping skills. He acknowledged that if he is released he will need to comply with numerous conditions and recognised that although at times this could be difficult the requirement for compliance also has the potential to keep him accountable and to provide him with support.
During the programme the respondent stated that he was willing to comply with an antilibidinal medication regime but indicated that he did have concerns regarding the medical implications of taking such medication. By the completion of the programme the respondent reported a belief that the medication would not be required as he felt capable of managing his risk through therapeutic interventions and a willingness to engage in individual and/or group treatment.
Under the 'Summary and Recommendations' section of their SOITP Completion Report the facilitators said the following:
… [The respondent] developed awareness into how his experience of loneliness and desire to feel wanted by others impacted his interactions with the world and negative emotionality. [The respondent] recognised through sexual behaviour and offending he felt a sense of control that he did not have in other areas of his life. He increased his insight into his lack of stability in relationships and how his perception of threat to his emotional security influenced his emotional identification with children. [The respondent] explored this tendency to perceive adult characteristics in children in order to assimilate and create a perceived connection…. [The respondent] self-reported a reduction in his reliance on fantasy both general and sexual as a coping strategy for emotional discomfort. He was observed to experience fluctuations in his coping skills, however, was willing to [explore] his return to overeating and fantasy in times of stress. Although this is indicative of ongoing risk, he was willing to explore his maladaptive coping and engage in help seeking. In order to continue to reduce his risk of returning to sex as coping [the respondent] will need to maintain his thought challenges and continue to seek support if he is returning to a reliance on fantasy. [The respondent] demonstrated insight into his poor cognitive problem solving leading to impulsivity in regard to both offending and within his general lifestyle. He showed increased conceptual understanding of problem solving and was able to challenge his cognitions that limit his ability to consider alternative options. When utilising appropriate coping skills [the respondent] was able to effectively problem solve and utilise perspective taking in his decision making. In order to continue to develop these skills [the respondent] will need to continue to challenge his negative emotionality and build a stable support network. If he experiences ruptures within his family or difficulties assimilating with others this may present risk for returning to mistrust and a hostile world view.
The respondent acknowledged previous attitudes that impacted his compliance with release conditions and explored his cognitions that supported a return to offending behaviour. He presented with improved responsibility taking for his compliance with conditions and appeared realistic regarding his expectations for release. He reported a willingness to comply with anti-libidinal medication if requested although expressed concerns regarding health implications as well as confidence in his ability to manage any ongoing risk through personal accountability as well as therapeutic interventions.
The programme facilitators recommended that the respondent be assessed for the Sex Offender Maintenance Programme (SOMP) upon release from prison. They expressed the view that if the respondent is not deemed appropriate for participation in this programme he may benefit from ongoing engagement in individual counselling. They considered that this would afford the respondent the opportunity to continue to challenge his negative emotionality and to manage risks as they arise while developing community connections.

Reports prepared under s 74 and extent to which respondent cooperated in examinations - s 7(3)(a)

Dr Wynn Owen's evidence

Report dated 19 September 2021[40]

[40] Exhibit 1, vol 3, 769.

Dr Wynn Owen's first report reveals the following.
In order to enable him to prepare his report Dr Wynn Owen had access to volumes 1 and 2 of the Book of Materials and Ms Cashmore's Supervision Assessment Report dated 7 September 2021.
Dr Wynn Owen interviewed the respondent on 26 August 2021, 31 August 2021 and 3 September 2021.
The respondent reported to Dr Wynn Owen having attempted suicide when he was 19 in the context of being charged with the offences of which he was convicted in 1988. The respondent reported a more recent period of suicidal ideation in relation to the application and intermittent suicidal thinking since that time.
The respondent stated that although his relationship with BG has ended, his plan is to return to his family home to continue his role as a father and to assist as a carer to his and BG's sons. The respondent stated that he plans to take a significant role in the care of his sons. The respondent stated that he hopes that his intimate relationship with BG will be rekindled.
The respondent reported a reduced but ongoing libido and normal sexual function. He acknowledged that he has a long-standing sexual interest in young (prepubescent and peri-pubescent) girls which has persisted since his teens.
The respondent reported that he has experienced long periods of high sex drive and significant sexual preoccupation. According to Dr Wynn Owen, the respondent's high sex drive and sexual preoccupation was most recently evidenced during his commission of the 2014 offences when his wish to see the victim overrode his by then full awareness of the wrongfulness of his behaviour, the victim's reticence, his appreciation that the victim had likely been victimised by her father and others, and the significant consequences to himself and his family of detection for his crimes.
Dr Wynn Owen's view was that there is no indication that intoxication or substance use and/or dependence is a factor in the respondent's past or possible future sexual offending.
The respondent expressed hope of finding work on his release, although he acknowledged that the notoriety that resulted from him being one of a group of high profile sex offenders who committed offences against the victim of his 2014 offences will severely restrict his employment options. He reported that he is considering how he can offer a service repairing electrical equipment from home while adhering to strict supervision conditions. Dr Wynn Owen formed the view that overall the respondent's plans in this respect seem realistic.
In response to questioning by Dr Wynn Owen, the respondent stated that his most significant risk factor on release would be having unsupervised internet access. He further stated that not having any sexual outlet, by which he meant intimate sexual interaction with another as opposed to masturbation, would also be a risk factor for him. The respondent did not expressly state that his ongoing deviant sexual interest would be a risk factor. Nor did he mention unsupervised contact with children as a risk factor. Dr Wynn Owen noted that the respondent may have assumed that his deviant sexual interest in children and unsupervised contact with children were such obvious risk factors that they did not need to be specifically identified by him. However, Dr Wynn Owen was of the opinion that statements of the obvious of this type are necessary when demonstrating self-awareness in the context of questions about the self-management of risks. Dr Wynn Owen's view was that the risks which the respondent did mention are significant and relevant but are risks which stem from his underlying deviant sexual interest.

Dr Wynn Owen formed the opinion that the respondent meets the diagnostic criteria for paedophilia, non-exclusive type, attracted mainly to females. Dr Wynn Owen's opinion was that the diagnostic criteria for this condition (sexual thinking, duration and behaviours) are clearly met in the respondent's case. Dr Wynn Owen noted that the respondent acknowledges an ongoing sexual interest in, and arousal to, female children. Dr Wynn Owen's view was that the duration of the respondent's sexual interactions with young boys in late adolescence suggests that notwithstanding his conscious efforts to modify this interest it may still persist.
Dr Wynn Owen also considered that the respondent meets the diagnostic criteria for Antisocial Personality Disorder.
In assessing the respondent's risk of committing further sexual offences Dr Wynn Owen made use of well recognised risk assessment tools, specifically the Static-99R, the Hare Psychopathy Checklist (PCL-R) and the Risk for Sexual Violence Protocol (RSVP).
The respondent's Static-99R score was in Level IVb or the 'Well Above Average Risk Range'. In the 'High Risk/High Needs' Static-99R samples individuals released with the same score as the respondent had a 25.7% five year likelihood of sexual recidivism and a 37.3% likelihood of committing a new sexual offence within 10 years.
The score obtained by the respondent on the PCL-R indicates that he has some features of psychopathy. However, his overall score did not meet the threshold for prototypical psychopathy.
As a result of making use of the RSVP Dr Wynn Owen identified the following risk factors as being 'definitely present' in the respondent's case:
1.Chronicity of sexual violence;
2.Diversity of sexual violence (in victim selection and type of offending);
3.Psychological coercion in sexual violence;
4.Problems with self-awareness;
5.Problems with stress or coping;
6.Serious sexual deviance;
7.Suicidal ideation;
8.Problems with intimate and non-intimate relationships; and
9.Problems with planning, treatment and supervision.
As a result of making use of the RSVP Dr Wynn Owen identified the following risk factors as 'present':
1.Minimisation or denial of sexual violence (the respondent has only recently reported his acceptance of responsibility for the index offences but also asserts that he has no recollection of the offending);
2.Attitudes that support or condone sexual violence; and
3.Serious problems resulting from child abuse.
Dr Wynn Owen identified as the most likely scenario for future offending by the respondent to be that the respondent, in the context of loneliness and a lack of intimacy, possibly related to not re-establishing an intimate relationship with BG, and in the face of other stressors such as unemployment and financial duress, will return to a pattern of using sex as a coping mechanism. Dr Wynn Owen formed the view that the respondent, if he reoffends, will initially engage in deviant sexual fantasy, will possibly access child exploitation material, and will then move to considering options for accessing a female child through an intermediary or through grooming a known child. He considered that once established the offending is likely to persist until it is discovered or reported.
Dr Wynn Owen's opinion was that taking into account the respondent's history prior to committing the 2014 offences and on the assumption that there was no other sexual offending behaviour between 1987 and 2014, 'the imminence of contact reoffending…is low'. It was also Dr Wynn Owen's opinion that the imminence of the respondent committing offences involving child exploitation material is 'greater', and that the respondent's use of such material is likely to remain a coping strategy until new strategies and skills are learned.
On the basis of his structured professional judgment approach to the assessment of the risk of the respondent reoffending, Dr Wynn Owen's opinion was that the respondent presents a high risk of future serious (sexual) offending if not subject to a restriction order. In this context Dr Wynn Owen noted that the respondent's score on the Static-99R places him in the well above average risk category and that this is a useful predictor based on past behaviour 'but is a group likelihood of offending and as such does not enable discrimination between individuals with the same score as [the respondent], ie who will or will not reoffend or take into account dynamic risks'. Dr Wynn Owen further noted that his use of the RSVP identified a significant number of dynamic risk factors in addition to static historical factors that make it more likely that the respondent is in the group who will go on to reoffend. Dr Wynn Owen identified sexual deviance, lack of empathy and lack of self-awareness as being of particular relevance. Dr Wynn Owen stated that also of concern is the fact the respondent participated in sex offender treatment after his 1988 convictions.
In analysing and identifying the factors and circumstances which have contributed to the respondent's offending, Dr Wynn Owen opined as follows.
Following his own sexual abuse as a child the respondent started using sex as a method of managing his distress and because he found this effective became sexually preoccupied and highly promiscuous with the result that he engaged in coerced/non-consensual and consensual sexual activity with same age and underage males and females when he was between the age of 12 and 19 years. After the respondent was released from prison for the 1987 offences and had commenced his relationship with BG, he became a prosocial contributor to the family, was employed and productive, and reported feeling happy. The respondent was certainly needed by BG and the children and would have received many indicators of this. The unusual feeling for the respondent of being needed and effective was probably a significant contributor to the respondent's period of stability. The respondent's stability and a reportedly mutually satisfying and rewarding sexual relationship in turn contributed to the better management of his underlying sexual deviance. After a period of time the respondent's reduced intimacy with BG (due to BG's health issues) combined with his recently acquired access to the internet resulted in the respondent starting to reinforce sexual deviance through accessing child exploitation material. This was a return to using sex as a coping mechanism and when internet pornography access was not enough the respondent started to have extramarital relationships, paying models he was photographing to have sex with him. The respondent's selection of models appears to have perpetuated his underlying sexual deviance in that he sought models with physical characteristics suggestive of being much younger and childlike. It was in this context that when an opportunity to photograph the victim of the 2014 offences arose, who was obviously a child, the respondent took the opportunity hoping for sexual contact with the child.
Dr Wynn Owen's opinion was that sexual deviance, the ability to break the law and a lack of empathy with victims have been the enablers to the respondent's offending. Dr Wynn Owen considered that these factors remain unaddressed notwithstanding the long period of apparent absence of offending between 1987 and 2014.
Dr Wynn Owen made the following recommendations in relation to the respondent:
1.Participation in an intensive sex offender treatment programme;
2.Individual criminogenic psychological intervention to address future sexual offending risk with an emphasis on sexual deviance, self-awareness and coping strategies;
3.Antilibidinal therapy if the respondent enters an individual or group treatment program to address sexual pre-occupation;
4.If the respondent is released on a supervision order, the conditions of the order should reflect and address offence specific risks which in the respondent's case include, in particular, unsupervised access to children and unsupervised internet access; and
5.The development of a prosocial support network, given that the respondent's tendency to social isolation is likely to be associated with an increased level of risk which will be exacerbated if his hoped for reconciliation with BG does not eventuate.
Dr Wynn Owen's opinion was that if the respondent is placed on a supervision order the duration of the order should be eight years. He stated that research data supports there being a progressive and quantifiable reduction in risk of sexual reoffending with time spent in the community. He stated that the risk presented by a cohort of offenders with the same Static-99R score on release as the respondent will reduce to a likelihood in the 'Average' range after eight offence free years in the community.

Addendum psychiatric report dated 6 October 2022[41]

[41] Exhibit 1, vol 4, 851.

Dr Wynn Owen's addendum report reveals the following.
Dr Wynn Owen has prepared his report for the purpose of reviewing and identifying progress and/or change in the respondent during the 12 months since he last assessed the respondent.
In order to enable him to prepare his report Dr Wynn Owen reviewed the SOITP Completion Report and again interviewed the respondent on 27 September 2022.
Based on the SOITP report and his interview of the respondent it appears to Dr Wynn Owen that the respondent engaged well and openly with the SOITP. The respondent described to Dr Wynn Owen a range of past thinking and behaviours that indicate an improved understanding of the antecedents to his sexual offending. He also articulated a number of strategies to avoid future offending. In Dr Wynn Owen's view the respondent engagement in the SOITP and the outcome of his engagement augurs well for his capacity and motivation to engage with individual and/or group intervention in the future.
Dr Wynn Owen recommends that the respondent start individual counselling with a psychologist as soon as possible to consolidate gains he has made in the SOITP and to address his ongoing and outstanding issues. He considers the commencement of individual counselling to be particularly important if the respondent is found to be a high risk serious offender and is released on a supervision order. He also considers that the respondent is likely to benefit from a Community Offender Maintenance Program if he is released on a supervision order.
Dr Wynn Owen's assessment of the respondent's risk level remains as it was when he assessed the respondent in August and September 2021. In Dr Wynn Owen's opinion the respondent is at high risk of future serious offending if not subject to a restriction order.
Dr Wynn Owen discussed with the respondent the rationale for antilibidinal treatment, the likely treatment duration and the type and incident of common side effects. Following this discussion the respondent told Dr Wynn Owen that he is willing to commence a trial of antilibidinal treatment as soon as possible.

Oral evidence[42]

[42] ts 65 - 79, 17 October 2022.

In his oral evidence Dr Wynn Owen maintained the material views and opinions expressed by him in his reports. He also confirmed that the email from the applicant's solicitor to the court dated 14 October 2022[43] correctly recorded the additional information he had provided to the applicant's counsel during his conversation with counsel in advance of the hearing of the application.
[43] Exhibit 2.
In his evidence Dr Wynn Owen confirmed that the respondent's sexual deviance is comprised of his paedophilic disorder. Dr Wynn Owen explained that although paedophilia tends to be a lifelong sexual preference it can become more or less salient at different times during a person's life. It is highly unlikely to go away completely.
Dr Wynn Owen testified there are two factors that significantly elevate the risk of sexual reoffending against children. One is paedophilic disorder and the other is psychopathy. The respondent does not have psychopathy.
Dr Wynn Owen testified that the RSVP problems with self-awareness risk factor is still present in the respondent's case. However, the respondent has demonstrated the ability to recognise that he has self-awareness problems. The respondent has become more aware of his thinking, his pathological patterns of coping and the cognitive distortions that enabled and perpetuated his offending. These are significant changes that have occurred since the respondent's completion of the SOITP.
Dr Wynn Owen stated that he thinks that the SOITP has had a significant effect on the respondent and that the respondent has made good progress as a result of participating in the SOITP. However, the gains that the respondent has made by participating in the SOITP need to be repeated for reinforcement and for long-term learning.
Dr Wynn Owen expressed the view the RSVP problems with stress or coping risk factor is still present in the respondent's case. However, the respondent's treatment through the SOITP has definitely moderated this risk factor.
Dr Wynn Owen testified that he has liaised with the respondent's treating psychiatrist at Acacia Prison in relation to the respondent commencing antilibidinal treatment. He understands that the respondent received his first dose of hormonal antilibidinal medication on Thursday 12 October 2022.
Dr Wynn Owen testified that he recommended antilibidinal treatment for the respondent. He did so not only because of the existence of the respondent's sexual deviance, but also because sexual preoccupation was a definite factor in the respondent's offending. Antilibidinal medication reduces sexual preoccupation and therefore enables full focus on treatment. The respondent's antilibidinal treatment will be an adjunct to the respondent's psychological therapy. It will not be a standalone risk management treatment.
Dr Wynn Owen said that if the respondent is found to be a high risk serious offender he does not consider that antilibidinal treatment is a pre-requisite to him being released on a supervision order. The respondent has already demonstrated that he has the capacity to make treatment gains in the absence of antilibidinal medication. However, the respondent's use of antilibidinal medication will likely further enhance the respondent's ability to gain from psychological therapy because it will reduce his level of sexual preoccupation.
Dr Wynn Owen testified that it usually takes between four and twelve weeks for anti-libidinal medication to result in testosterone levels reducing to what is commonly referred to as the 'suppression level'.
Dr Wynn Owen explained that the plan at the moment is for the respondent to receive his antilibidinal medication by injection once every four weeks. While the medication is being titrated the frequency of the injections and the dosage amounts might change depending upon the respondent's testosterone levels. These levels will be tested on a weekly basis while the respondent is in prison. He believes that if the respondent experiences side effects from the medication of such severity that it is necessary to cease the treatment, the respondent will still be able to make treatment gains through psychological therapy and other forms of intervention.
Dr Wynn Owen testified that although in his opinion the respondent remains at high risk of committing serious sexual offences if he is not subject to a restriction order, he is also of the opinion that the respondent's risk can be managed in the community under the supervision order conditions proposed by Ms Goode and with treatment engagement.
Dr Wynn Owen expressed the view that the building of therapeutic rapport is a very important part of being able to gain from treatment. Accordingly, the ideal situation would be for the respondent to meet his potential treating FPIT psychologist before he leaves prison so that he is familiar with the psychologist by the time that he is released into the community.
Dr Wynn Owen stated that he would be concerned if the respondent is released without a psychologist having been allocated to him. The longer the gap in time between the respondent's release and the allocation of a psychologist to him, the more concerned he would become. He is aware that stress and coping is an issue for the respondent and he thinks it is important that this is recognised as a significant component of his supervision and risk management strategy.
Dr Wynn Owen expressed the view that the respondent's plan to live with his former wife and children is very suitable and will operate as a protective factor. He thinks that the respondent's employment plans are practical and reasonable. Overall he believes the respondent to have a realistic release plan.
Dr Wynn Owen explained that in recommending that any supervision order be for a period of eight years he took into account a number of factors, specifically research that has been undertaken 'on desistance after release', the long period between the respondent's commission of the index offences and the 1987 offences which suggests that he self-managed for a number of years, the respondent's age and the respondent's current mental state. Dr Wynn Owen expressed the view that a period of eight years will not be crushing for the respondent. Dr Wynn Owen also expressed the view that a period of eight years 'is a good balance of the time frame that captures both the long period of desistance and the current relatively high Static-99 score'.
In response to questioning by me Dr Wynn Owen confirmed that the sexual offences that in his opinion the respondent is at high risk of committing if he is not subject to a restriction order, are offences against female children. Given the period of time that has elapsed since the respondent committed the index offences, the respondent's age at the time of doing so and the respondent's expressed antipathy towards males, he does not believe that the respondent is at high risk of committing sexual offences against male children. Although in his view the risk exists, it is 'very small' compared to the risk of serious offending against female children. Accordingly, there does not appear to him to be any reason why the conditions of a supervision order directed at restricting the respondent's contact with children need to be expressed in terms that apply to male children.

Ms Hasson's evidence

Psychological Risk Assessment Report dated 26 August 2021[44]

[44] Exhibit 1, vol 3, 741.

Ms Hasson's first report reveals the following.
In order to prepare her report Ms Hasson interviewed the respondent on 17 August 2021 and again on 19 August 2021. She had access to volumes 1 and 2 of the Book of Materials. She also had discussions with Ms Cashmore and BG.
The respondent was polite and cooperative throughout his lengthy interview process with Ms Hasson. According to Ms Hasson he responded with candour and spontaneity to all questions and required little prompting.
The respondent indicated to Ms Hasson that if he is released into the community he wants to start his own business repairing, repurposing and recycling electrical and other items for resale. He said he would like to involve his two sons in front of house duties while he works at the back of his house which would ensure that he has limited opportunities to engage with children. Ms Hasson's discussions with BG confirmed these plans. BG informed Ms Hasson that self-employment had been a long-term goal for them as a couple as a means of providing their boys with employment. BG informed Ms Hasson that the respondent's plan is realistic and that they would be able to commence the start-up should the respondent be released.
The respondent informed Ms Hasson that he would like to resume his relationship with BG if he is released. However, he was realistic about the challenges ahead before any such decision could be arrived at.

It is, I think, worth remembering in this context that the respondent's most recent incarceration is not the result of him having committed sexual offences against young female children at some point after the offences of which he was convicted in 2016 and while he was in the community on the PSSO. Rather his current imprisonment results from his conviction for serious sexual offences committed by him against juvenile males not less than 35 years ago. In other words, and without in any way intending to diminish their seriousness, the offences that have resulted in the making of the application were committed a long time ago and cannot be said to be a product of the longstanding deviant sexual interest that I have found the respondent to have and which underpins the risk that he currently poses.
As I have previously indicated, by s 29(1) and s 29(2) of the Act I cannot make a supervision order unless the respondent has satisfied me on the balance of probabilities that he will substantially comply with the standard conditions of the order.
Ultimately, taking into account the matters to which I have referred, I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order. That is, I am satisfied that the respondent will comply with the standard conditions in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.
I am also, in light of the matters to which I have referred, satisfied that the need to ensure adequate protection of the community can be met by releasing the respondent on a supervision order containing the conditions formulated by Ms Goode, subject to some amendments that I identify below. I am satisfied that the proposed conditions are sufficiently extensive and stringent to enable the adequate management of the risk that the respondent currently presents to the community. I am satisfied that there are adequate safeguards contained in the proposed conditions to ensure that if the respondent begins to regress this will be quickly noticed and dealt with by those responsible for his supervision and management in the community with the result that he will not be able to proceed to further offending.
In relation to the period of the supervision order, Dr Wynn Owen's evidence was, as I have already indicated, that any order should be for a period of eight years. Dr Wynn Owen explained his reasons for being of this view.
Although in her reports Ms Hasson recommended that any supervision order should be for a period of 10 years, in her oral evidence she stated that she did not have any concerns with the period of the order being eight years as recommended by Dr Wynn Owen.
I accept the evidence of Dr Wynn Owen on this issue. I therefore consider that the supervision order should be for a period of eight years.

The conditions of the supervision order

During the course of the applicant's counsel's closing submissions I pointed out that a number of the supervision order conditions proposed by Ms Goode dealing with the respondent's ability to have contact with children were expressed to apply to 'children' as opposed to 'female children'. I questioned counsel about the appropriateness of this in light of the evidence of Dr Wynn Owen and Ms Hasson as to the type of 'serious offences' that the respondent is at high risk of committing if he is not subject to a restriction order. Ultimately, I directed the applicant to provide for my consideration a draft supervision order in which the references in the supervision order conditions proposed by Ms Goode to 'children' were, to the extent that the applicant considered appropriate in light of the evidence given by Dr Wynn Owen and Ms Hasson, replaced with references to 'female children'.
On 21 October 2022 an Acting Managing Law Clerk employed by the applicant's solicitor sent an email to the court attaching the requested draft supervision order. In the draft supervision order conditions 35 - 37 and 39, unlike conditions 35 - 37 and 39 of the conditions proposed by Ms Goode, were expressed to apply to 'female children' rather than 'children'.
In his email the Law Clerk stated that conditions 41, 42 and 45 as proposed by Ms Goode, which also contain references to 'children', had not been amended in the draft supervision order by replacing the references to 'children' with references to 'female children'. By way of explanation of this position the email set out comments that had been made by Ms Goode in relation to proposed conditions 41, 42 and 45. Ms Goode's comments, as set out in email, are in essence as follows.
1.Condition 41 - There is an 'ongoing concern for possession of or viewing CEM of any gender'. If the respondent is affiliated with, or a member of, a club, association or group whose members include male children or non-binary children the respondent may be able 'to photograph and have images (more non-indecent than decent) of male children'. Further, if the condition is expressed to apply to female children the respondent's CCO will be required to conduct the potentially complex task of conducting inquiries to confirm that there are no members of the club, association or group who are female children;[62]
2.Condition 42 - If the condition is expressed to apply only to female children, the condition may be rendered 'pointless' and will become complex to enforce because it will be necessary to prove that 'the item is capable of enticing only a female child and not a male child'. The same items 'would be capable of enticing a female that can also entice a male child or children that identify as non-binary'; and
3.Condition 45 - The COMU wants to be able to 'approve [the respondent] to have household items and in particular items not explicitly in his household that have non-indecent images of male and/or female children on them, for example board games and education resources of his adult children and photographs of his own children when they were juveniles'. If the condition is expressed to apply only to female children, this will 'also' not allow the Risk Management Team to approve the respondent having 'household items such as grocery items like - milo and nutrigrain with a male child on them [and] would only allow [the Risk Management Team] to approve items that have a (1 singular) female child on them'.
[62] I have proceeded on the basis that Ms Goode's use of the word 'decent' in the phrase 'more non-indecent than decent' is intentional, that is, that it was not her intention to state 'more non-indecent than indecent' (emphasis added). However, even if Ms Goode did intend to use the word 'indecent' nothing tuns on the issue.
On 22 October 2022 I arranged for an email to be sent by my associate to the applicant's counsel and the respondent's counsel. In the email my associate informed the applicant's counsel that in the absence of any indication to the contrary I would assume that the comments of Ms Goode as set out in the Managing Clerk's email reflected the applicant's position, and that if this assumption was incorrect and he wished to be heard further in relation to the subject matter of the email he should advise her accordingly so that a further hearing could be convened. In the email my associate also advised the respondent's counsel that if he wished to be heard further in relation to the contents of the email or the draft supervision order he should inform her so that a further hearing could be convened.
On 23 October 2022 the applicant's counsel sent an email to my associate in which he confirmed that Ms Goode's comments as set out in the Managing Clerk's email did reflect the applicant's position. Counsel stated that because the COMU would be the principal agency responsible for supervising and managing the respondent in the community it was best placed to 'recommend the wording of the supervision order conditions which will enhance its objectives in that role'. Counsel also stated that the reasons advanced by Ms Goode for not inserting the word female in conditions 41, 42 and 45 are 'logical'.
On 24 October 2022 the respondent's counsel sent an email to my associate advising that he did not want to make any submissions in relation to the contents of the Managing Clerk's email or the draft supervision order.
Given the applicant's counsel's confirmation that the comments of Ms Goode as set out in the Managing Clerk's email reflect the position of the applicant in relation to the appropriate wording of conditions 41, 42 and 45, I will from this point onwards refer to and treat Ms Goode's comments as the applicant's submissions.
Conditions 35 - 37 and 39 as proposed by Ms Goode are expressed to apply to 'children' rather than 'female children'. Bearing in mind that the scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection of the community and given my finding as to the type of 'serious offences' that the respondent is at high risk of committing if he is not subject to a supervision order, these conditions should be expressed to apply to 'female children'. Accordingly, conditions 35 - 37 and 39 of the supervision order that I will make will, consistently with the terms of the draft supervision order provided by the applicant, refer to 'female children'.
With respect to proposed condition 41, the first limb of the applicant's submission is, with respect, misguided. Given my finding as to the type of 'serious offences' that the respondent is at high risk of committing if he is not subject to a supervision order, there is no basis for prohibiting the respondent from having 'non-indecent' images of male children. Further, if the respondent does, through his connection with a club, association or group, come into possession of an 'indecent' image of a male child it will almost inevitably constitute CEM with the result that he will be in contravention of proposed condition 6.
The second limb of the applicant's submission concerning proposed condition 41 does, however, in my view have merit. I accept that if the condition is expressed to apply only to female children its application and enforcement may become unduly burdensome and complex for the respondent's CCO and/or others responsible for his management in the community. Accordingly, and given the absence of any objection by the respondent to the proposed condition referring to 'children', condition 41 of the supervision order that I will make will refer to 'children'.
In relation to proposed condition 42, the applicant's submission as expressed is misguided. Altering the wording of the proposed condition so that it refers to 'female children' will not mean that to establish a contravention of the condition it will be necessary to prove that the item is capable of constituting an enticement only to female children. If the condition is expressed to apply to 'female children', possession in a public place of an item that is capable of constituting an enticement to male and female children will still amount to a contravention of the condition. Nonetheless, I can foresee that to limit the operation of the condition to 'female children' may leave scope for the respondent, if he is so minded, to disingenuously attempt to avoid responsibility for contravening the condition by arguing that the item was capable of constituting an enticement only to male children. Therefore, condition 42 of the supervision order that I will make will refer to 'children'.
In relation to proposed condition 45, the submission as expressed, as I understand it, is that given the general prohibition contained in the first sentence of the condition which refers to 'children', if the second sentence is amended so as to refer to a 'female child' or 'female children' the Risk Management Team will only be authorised to approve the respondent being in possession of 'non-indecent' images of a female child or female children that are on 'household items or items in his household'; the Risk Management Team will not be authorised to approve the respondent being in possession of 'non-indecent' images of a male child or male children that are on 'household items or items in his household'. I accept this submission. Such a result would for obvious reasons be unnecessary and undesirable. Therefore, the second sentence of condition 45 of the supervision order that I will make will refer to 'a child or children'.
I note for the sake of completeness, that although the applicant's argument does not expressly address the first sentence of proposed condition 45, I can think of no good reason why the respondent should not be prevented from searching for, collecting, accessing, or being in possession of images of children, regardless of whether they are male or female. Further, I can envisage that if the first sentence is amended to refer to 'female children' difficulties may arise in establishing that any computer searches by the respondent were for female children as opposed to male children. Therefore, and given the absence of any objection by the respondent to the first sentence of the condition referring to 'children', the first sentence of condition 45 of the supervision order that I will make will refer to 'children'.
In her report Ms Goode proposes that a clause in the following terms be included just prior to the signature section of any supervision order:
I understand and acknowledge WA Police Force will use passwords or tokens located within my devices to access any cloud-based platforms and services and that a password may not be required. By authorising this I understand and acknowledge a Police Officer from WA Police Force may change the password(s) to these accounts so I will no longer have access.
In the course of his submissions the applicant's counsel informed me that the acknowledgment has been included by Ms Goode in the proposed supervision order at the request of the WA Police.[63]
[63] ts 105, 17 October 2022.
The respondent did not oppose the inclusion of the acknowledgment in the supervision order to be made in respect of him.
In the absence of any objection by the respondent, I will include the acknowledgment in the supervision order that I will make.

Conclusion

For the reasons I have given I find that the offender is a high risk serious offender.
Pursuant to s 48(1)(b) of the Act I will order the release of the respondent on a supervision order containing the conditions set out in Annexure A, amended as indicated in paragraph 335 above. The period of the supervision order will be eight years.

ANNEXURE A

PROPOSED SUPERVISION ORDER CONDITIONS:

STANDARD CONDITIONS REQUIRED BY THE ACT

1.Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, within 48 hours of the Order being issued and advise the officer of your current name and address;

2.Report to and receive visits from, a Community Corrections Officer as directed by the court;

3.Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;

4.Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);

5.Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer;

6.Not commit a serious offence during the period of the Order;
7.Be subject to electronic monitoring under section 31;

ADDITIONAL CONDITIONS

Residence

8.Take up residence at [proposed address] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;

Reporting to a CCO and supervision by a CCO

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

10.Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments you have;

11.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

12.Attend all appointments, receive visits from, consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO;

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

Medications/Mental Health

14.Undergo medical treatment, including anti-depressant medication or antilibidinal treatment, as directed by the CCO in consultation with a medical practitioner or medical practitioners;
15.Comply fully with any treatment prescribed pursuant to condition 14 and comply with all testing to monitor your compliance with medical treatment and/or antilibidinal treatment as directed by a CCO;
16.Permit any medical practitioner, psychiatrist, psychologist, and/or counsellor, to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Justice, via your CCO;

Reporting to WA Police

17.Report to the Officer-in-Charge of the Serious Offender Management Squad at Hatch Building, 144 Stirling Street, Perth WA 6000 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 Sex Offender Management Squad or his/her delegate;

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

19.If requested, permit Police Officers to enter and search your residence and/or vehicle and/or search your person at any time 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;

20.Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020;

21.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 screen name(s), user name(s), identities and email addresses. Further authorise police officers from the Western Australia Police Force (WA Police Force) to access any cloud-based platforms or services associated with the devices you use, and examine the internet accounts at any time for the purposes of monitoring your online behaviour (absent any investigation for any offence);

Disclosure/Exchange of Information

22.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;

23.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

24.Have no contact, directly or indirectly, with the victims of your serious 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;

25. 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;

Criminal conduct

26.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;

27.Not commit an offence under s 202, s 203, s 204, s 557 Criminal Code 1913 (WA) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia)Act 2021;
28.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;

29.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

30. Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;

31.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;

32.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

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

34.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;

35.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);

36.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;

37.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;

38.Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;

39.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;

40.When and as directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;

41.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;

42.Whilst in any public place, or in view of a public place, not be in possession of animate or inanimate item capable of constituting an enticement to children, unless such possession is for legitimate purpose and approved in advance by a CCO;

43.Not to access online social media (websites or applications) unless approved in advance by a CCO. Due to the progressive development of social media, you are to enquire with your CCO if a website or application is considered social media and this will be defined for you, therefore you will not inadvertently contravene this condition if you are enquiring with your CCO and access the public component of any website or application; you must however not progress to gain a login (temporarily or otherwise) unless you have explicit CCO approval to do so;

44.Not to access online pornography;

45.Not to conduct computer searches for, nor collect or access, or be in possession of, in either electronic or permanent form, images of children, including drawing or sketches, whether indecent or not. Possession of such images depicting a child or children on items such as on household items or items in your household that are not explicitly yours, may be authorised by a CCO. You are directed to review and remove any items that you have in your prison property within 48 hours of your release to this Order and then your compliance will be confirmed by your CCO and or WA Police;

46.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;

47.Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 46, without prior approval of the CCO;

48.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 46, or any online accounts, to any person other than a CCO or Police Officer;

49.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 or information, 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; this includes providing all screen name(s), user name(s), and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO;

50.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 (BGS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
27 OCTOBER 2022