The State of Western Australia v Brown [No 11] - [2023] WASC 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BROWN [No 11] [2023] WASC 4
CORAM:   DERRICK J
HEARD:   13 DECEMBER 2022
DELIVERED          :   13 JANUARY 2023
FILE NO/S:   SO 13 of 2010
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ALWYN WAYNE BROWN
Respondent

Catchwords:

High risk serious offender - Contravention proceedings - Application under s 53(2) and s 55 of the High Risk Serious Offenders Act 2020 (WA) for continuing detention order or amended supervision order

Legislation:

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

Result:

Supervision order rescinded
Continuing detention order made

Category: B

Representation:

Counsel:

Applicant	:	B D Meertens
Respondent	:	S F Rafferty

Solicitors:

Applicant	:	State Solicitors Office (WA)
Respondent	:	Anthony Elliott

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 GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405
Director of Public Prosecutions for Western Australia v Brown [No 5] [2012] WASC 276
Director of Public Prosecutions for Western Australia v Brown [No 6] [2013] WASC 148
Director of Public Prosecutions for Western Australia v Brown [No 8] [2015] WASC 390
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Garlett v The State of Western Australia [2022] HCA 30
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Brown [2021] WASCSR 5
The State of Western Australia v Brown [No 10] [2020] WASC 476
The State of Western Australia v Brown [No 9] [2017] WASC 355
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 Yates [2020] WASC 149
The State of Western Australia v ZSJ [2020] WASC 330

DERRICK J:

Introduction

The State of Western Australia (State) applies under s 55(1)(a) of the High Risk Serious Offenders Act 2020 (WA) (Act) for the rescission of a supervision order to which Alwyn Wayne Brown (respondent) is currently subject and for the making of a continuing detention order in relation to him. In the alternative, the State applies under s 55(1)(b) of the Act for an order amending the supervision order in such terms as the court thinks fit.
I heard the application for the above orders (application) on 13 December 2022.
For the reasons set out below, I have decided to rescind the supervision order and make a continuing detention order in relation to the respondent.

Background to the hearing of the application

Supervision order

In October 2015 Martino J made a supervision order in relation to the respondent (Supervision Order) under s 33(2)(b) of the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).[1] In December 2017 the Supervision Order was amended by Corboy J.[2]
[1] Director of Public Prosecutions for Western Australia v Brown [No 8] [2015] WASC 390.
[2] The State of Western Australia v Brown [No 9] [2017] WASC 355.
Condition 42 of the Supervision Order provides that the respondent is not to have contact with any child under the age of 16 years unless the contact is authorised in advance by a Community Corrections Officer (CCO) and such contact is supervised at all times by an adult approved in advance by a CCO.
Condition 44 of the Supervision Order provides that the respondent give details of any contact with a child under the age of 16 years to a CCO and to the police on the next occasion that he reports to that person or agency.

Contraventions of the Supervision Order and the making of an application under the DSO Act

In January 2020 the respondent was charged in the Magistrates Court with three offences of contravening, without reasonable excuse, a requirement of the Supervision Order (condition 42) by having contact with a child under the age of 16 without the authorisation of his CCO contrary to s 40A(1) of the DSO Act (PE 4006/2020, PE 5193/2020 and PE 5194/2020) and two offences of contravening, without reasonable excuse, a requirement of the Supervision Order (condition 44) by failing to advise his CCO of contact that he had had with children under the age of 16 on the next occasion that he reported to his CCO contrary to s 40A(1) of the DSO Act (PE 4007/2020 and PE 5195/2020).
As a result of the respondent being charged with the five contravention offences the State made an application under s 22 of the DSO Act dated 28 January 2020 for the following orders (DSO Act application):
1.Pursuant to s 23(1)(a) of the DSO Act, the rescission of the Supervision Order and the making of a continuing detention order in relation to the respondent;
2.Alternatively, pursuant to s 23(1)(b) of the DSO Act, and subject to s 23(1B) of the DSO Act, the amendment of the conditions of the Supervision Order in such terms as the court thinks fit.
On 29 January 2020 Fiannaca J made an order under s 22(2) of the DSO Act detaining the respondent in custody until the determination of the DSO Act application.
On 16 March 2020 the Magistrates Court transferred the five charges alleging the contravention offences to this court to be dealt with. The charges were transferred pursuant to s 40B(4) of the DSO Act.
On 3 April 2020 the respondent appeared in this court. At the commencement of the hearing the respondent's former counsel informed the court that pleas of guilty would be entered to the five charges of contravening the Supervision Order, but that a number of the facts of the offences alleged by the State remained in dispute and that a trial of issues would be required. The respondent was then arraigned on the five charges. He pleaded guilty to, and was convicted of, each of the five charged offences (the contravention offences).

Coming into operation of the Act

On 9 July 2020 pt 1 of the Act came into operation.[3] Other parts of the Act relevant to the application came into operation on 26 August 2020 (the commencement day).[4] Upon the coming into operation of these other parts of the Act the DSO Act was repealed.[5] Further, the effect of s 124(1) and s 125 of the Act was as follows:
1.The Supervision Order continued in effect and was taken to have been made under the Act; and
2.From 26 August 2020, the DSO Act application was taken to have been made under s 53 of the Act (which is the corresponding provision to s 22 of the DSO Act) for orders pursuant to s 55 of the Act (which is the corresponding provision to s 23 of the DSO Act) and was required to be determined under the provisions of the Act.[6]

Trial of issues and sentencing for the contravention offences

[3] Act, s 2(1)(a).

[4] The term 'commencement day' is defined for the purposes of the provisions contained in pt 10 of the Act (s 122 ‑ s 125) to mean 'the day on which this section comes into operation'. The 'day on which this section comes into operation' is, by virtue of proclamation, 26 August 2020: Act, s 2(1)(c).

[5] Act, s 123.

[6] I will say more about the relevant provisions of the Act in due course. At this point it suffices to say that the provisions of the Act relating to reviews do not operate significantly differently to the way in which the corresponding provisions of the DSO Act operated.

The respondent was ultimately remanded to appear for his trial of issues on the contravention offences on 3 and 4 December 2020. The trial of issues took place before me on those dates.
On 23 December 2020 I delivered my decision on the trial of issues. I published written reasons for my decision.[7]
[7] The State of Western Australia v Brown [No 10] [2020] WASC 476.
On 2 February 2021 I sentenced the respondent for the contravention offences to a total of 3 years imprisonment with eligibility for parole.[8] I backdated the commencement date of the sentence to 23 January 2020 to take account of the time that the respondent had already spent in custody for the contravention offences.
[8] The State of Western Australia v Brown [2021] WASCSR 5.
At the conclusion of the sentencing hearing I remanded the respondent to appear on 28 June 2021 for the hearing of the application.

Adjournment and further listing of the application

On 28 June 2021, prior to the commencement of the hearing of the application, the respondent made an application to adjourn the hearing. I allowed the adjournment and vacated the hearing date. I gave oral reasons for doing so.[9]
[9] ts 323 - 334, 28 June 2021.
Ultimately the application was relisted for hearing on 13 December 2022.

Amendment of the application

At the commencement of the hearing of the application the State applied to amend the terms of the order that it sought in the alternative (that is, the order amending the conditions of the Supervision Order) so as to make clear that it was also seeking that the period of the Supervision Order be extended for six and a half years. The amendment application was not opposed by the respondent. I allowed the application.[10]
[10] The application was made in light of the current expiry date of the Supervision Order (14 June 2026) and the evidence that was expected to be given (and was ultimately given) by Dr Wojnarowska to the effect that if the respondent is again released on the Supervision Order he should be subject to the order for 10 years.

Respondent's current status

The respondent is serving the sentence that I imposed on him for the contravention offences. He became eligible for release on parole on 23 July 2021.
On 8 July 2021 the respondent requested that he not be released on parole. Accordingly, he was denied release on parole.[11]
[11] Exhibit 1, vol 3, 463.
On 16 September 2021 the respondent applied to be released on parole. However, on 28 October 2021 the Prisoners Review Board declined to release the respondent on parole given his unmet treatment needs, extensive criminal history and poor previous response to supervision.
The respondent's sentence expiry date is 22 January 2023.[12]
[12] Exhibit 1, vol 3, 463.
Given that the respondent has been serving a term of imprisonment for the contravention offences since 23 January 2020 which will not come to an end until 22 January 2023, the Supervision Order is not due to expire until 14 June 2026.[13]
[13] Act, s 57.

Evidence on the application

At the hearing of the application the State tendered, without objection, a Book of Materials comprising three volumes, volume 1 being dated 10 May 2021, volume 2 being dated 21 June 2021 and volume 3 being dated 21 November 2022.[14]
[14] Exhibit 1.
Volumes 1 and 3 of the Book of Materials contain 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.
Volume 2 of the Book of Materials contains the following reports prepared specifically for the purposes of the application:
1.A report prepared by Dr Gosia Wojnarowska, consultant psychiatrist, dated 1 June 2021;[15]
2.An Adult Community Corrections (ACC) Performance Report prepared by Mr Timothy Snow, a Senior CCO with the Department of Justice's (Department) Community Offender Monitoring Unit (COMU), dated 6 May 2021;[16] and
3.An ACC Update Performance Report prepared by Mr Luke Carmichael, a Senior CCO with the COMU dated 15 June 2021.[17]
[15] Exhibit 1, vol 2, 400. Dr Wojnarowska is a 'qualified experts' as defined in s 3 of the Act. Her report was prepared pursuant to s 54(a) and s 74 of the Act.
[16] Exhibit 1, vol 2 417.
[17] Exhibit 1, vol 2 424.
Volume 2 of the Book of Materials also contains a Psychological Intervention Completion Report prepared by Mr David Summerton, a counselling psychologist with the Forensic Psychological Service (FPS), dated 26 October 2020.[18]
[18] Exhibit 1, vol 2, 389.
At the hearing of the application the State also tendered without objection the following:
1.An update report prepared by Dr Wojnarowska dated 23 November 2022;[19]
2.A Treatment Progress Report prepared by Ms Joanne Collyer, Senior Counselling Psychologist with the Department's Forensic Psychological Assessment Team, dated 28 November 2022;[20] and
3.An ACC Update Performance Report prepared by Mr Carmichael dated 5 December 2022.[21]
[19] Exhibit 2.
[20] Exhibit 3.
[21] Exhibit 4.
On 15 December 2022 after the completion of the hearing and with the consent of the parties I received as evidence a letter from Dr Peter Wynn Owen dated 15 December 2022.[22] Dr Wynn Owen is the Consultant Forensic Psychiatrist for the State Forensic Mental Health Service.
[22] Exhibit 5.
At the hearing of the application Dr Wojnarowska, Ms Collyer and Mr Carmichael were called by the State to give supplementary oral evidence.
The respondent did not adduce any evidence at the hearing of the application.
Dr Wojnarowska was responsible for assessing the respondent for the purposes of, and provided evidence on, the proceedings that took place before Corboy J in 2017 under the DSO Act. I will refer further to these proceedings below.

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 The State of Western Australia v ZSJ,[23] 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.
[23] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].
I respectfully 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[24] which addressed the constitutional validity of aspects of the Act, the case law decided under the DSO Act in relation to applications made under s 22 and s 23 of the DSO Act remains relevant to the determination of applications made under s 53 and s 55 of 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.
[24] Garlett v The State of Western Australia [2022] HCA 30.
Section 53 of the Act is the section that specifies the circumstances in which the State may apply for an order under s 55. It is not in issue that in the case of the respondent the circumstances for the making of an application for an order under s 55 exist.
Section 55 of the Act, so far as is relevant, provides as follows:
(1)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must ‑
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2)…
(3)In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
The references in s 55(1) to a 'continuing detention order' are references to 'an order that the offender be detained in custody for an indefinite term for control, care or treatment'.[25] The references in s 55(1) and s 55(2) to a 'supervision order' are references to 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate in accordance with s 30'.[26]
[25] Act, s 3 and s 26(1).
[26] Act, s 3 and s 27(1).
Section 29 of the Act provides:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
The term 'standard condition' is defined in s 3 of the Act to mean, in relation to a supervision order, a condition which 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 he will substantially comply with the standard conditions set out in s 30(2) before the court can amend and/or extend a supervision order pursuant to s 55(1)(b) or affirm a supervision order pursuant to s 55(1)(c).
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'.[27] 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.[28]
[27] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [2019] WASC 427 [29]; The State of Western Australia v ZSJ [56] ‑ [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] - [111]. Any further references to 'serious offence' or to 'serious offences' should be read as references to a serious offence or serious offences as defined in s 5 of the Act.
[28] The State of Western Australia v ACJ [2021] WASC 219 [416]; Garlett v The State of Western Australia [103] - [104], [233].

Even if the court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of a supervision order this will not automatically mean that an order should be made under s 55(1)(b) or s 55(1)(c). This is because by reason of s 55(3), the paramount consideration in deciding which order to make under s 55(1) is the need to ensure 'adequate' protection of the community. Accordingly, even if the court is satisfied that an offender will substantially comply with the standard conditions of a supervision order, there may be circumstances in which, despite such a finding, the court is not satisfied that releasing the offender on a supervision order will ensure adequate protection of the community.[29]
[29] The State of Western Australia v Yates [2020] WASC 149[33].
The use of the word 'adequate' in s 55(3) indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[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 applicable to the operation of s 55(1) 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 (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] ‑ [64]; Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [2018] WASC 344 [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 last sentence of Beech J's quoted remarks which refers to the court expressly declining to rescind the supervision order applies equally to a situation such as the present in which the court is being asked to determine if it is, due to contraventions of a supervision order by an offender, necessary to rescind the supervision order and make a continuing detention order.
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 [24]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [85], [229] - [230].

Value of expert evidence

Given the expert evidence adduced on the application and in particular the submission made by the State in relation to an aspect of the opinion evidence given by Dr Wojnarowska (referred to below) it is worth repeating the following statements made by Steytler P and Buss JA (as his Honour then was) in Director of Public Prosecutions (WA) v GTR:[33]
Although there is no doubt, under the Western Australian Act, that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.
[33] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307[62].

History of relevant proceedings under the DSO Act

In December 2010 E M Heenan J found that the respondent was a serious danger to the community and made a continuing detention order in relation to him pursuant to s 17(1)(a) of the DSO Act.[34]
[34] Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405.
In August 2012 McKechnie J rescinded the continuing detention order and placed the respondent on a supervision order for a period of eight years pursuant to s 17(1)(b) of the DSO Act.[35]
[35] Director of Public Prosecutions for Western Australia v Brown [No 5] [2012] WASC 276.
In April 2013 the respondent was convicted of a number of offences of contravening the conditions of the supervision order made by McKechnie J. The respondent's offences consisted of three offences of breaching his curfew, two offences of having contact with a child under the age of 16, two offences of failing to report the details of his contact with the children to a CCO and the police, two offences of failing to attend counselling appointments, one offence of consuming alcohol and one offence of consuming cannabis.[36] McKechnie J sentenced the respondent to a total of 7 months imprisonment for the offences (sentences of 7 months imprisonment being imposed for each of the offences of having contact with a child and failing to report the contact).[37] McKechnie J also rescinded the supervision order that the respondent was at that time subject to and made a continuing detention order in relation to him.[38]
[36] Director of Public Prosecutions for Western Australia v Brown [No 6] [2013] WASC 148 [12], [54] - [59].
[37] Director of Public Prosecutions for Western Australia v Brown [No 6] [115] - [116].
[38] Director of Public Prosecutions for Western Australia v Brown [No 6] [107].
The facts of the first of the offences of contravening a supervision order by having contact with a child under the age of 16 for which the respondent was dealt with by McKechnie J (PE 13161/2013) were that the respondent had contact on a number of occasions with two boys and one girl who were grandchildren of a woman (IJ) with whom he was in a relationship. The two boys were aged 3 years and 18 months and the girl was aged 3 years. The contacts occurred while the respondent was in the company of IJ. It was not alleged by the prosecution, and McKechnie J did not find, that the respondent's contact with the children constituted grooming activity by him or was sexually motivated.[39]
[39] Director of Public Prosecutions for Western Australia v Brown [No 6] [12], [55]-[56], [113].
The facts of the second of the offences of contravening a supervision order by having contact with a child under the age of 16 for which the respondent was dealt with by McKechnie J (PE 13165/2013) were that the respondent on one occasion had contact with four female children, two of primary school age and two of secondary school age, and that during the contact he participated in painting and drawing with them. The contact occurred in the presence of adults. Again, it was not alleged by the prosecution, and McKechnie J did not find, that the respondent's contact with the children constituted grooming activity by him or was sexually motivated.[40]
[40] Director of Public Prosecutions for Western Australia v Brown [No 6] [12], [55]-[56], [113].
In October 2015 Martino J conducted the second annual review of the continuing detention order made by McKechnie J.[41] Martino J found that the respondent remained a serious danger to the community but that the community could be adequately protected if the respondent was released on a supervision order containing a number of conditions. His Honour therefore placed the respondent on the Supervision Order pursuant to s 17(1)(b) of the DSO Act. The Supervision Order contained 51 conditions and was, at the time that it was made, for a term of 5 years.
[41] Director of Public Prosecutions for Western Australia v Brown [No 8] [2015] WASC 390.
In arriving at his decision Martino J noted that the evidence given before him by Dr S Febbo, a psychiatrist, and Ms V Rankin, a psychologist employed by the Department of Corrective Services, was that the respondent had made gains since he had been placed on the previous supervision order and since he had breached that order.[42] His Honour continued:[43]
… [The respondent] has greater insight into his personal risk factors and the benefits to him and to the community of appropriate supervision. Dr Febbo acknowledged that care is required in considering the information provided by the respondent. Having allowed for that caution he remains of the opinion that the risk of the respondent committing an offence is manageable in the community under a supervision order.
It is also significant that Dr Febbo considers that further time in custody is unlikely to achieve further progress. To the contrary, in Dr Febbo's opinion there is a risk that if he remains in custody there is a risk that there might be a setback in the progress that has been achieved.
[42] Director of Public Prosecutions for Western Australia v Brown [No 8] [19].
[43] Director of Public Prosecutions for Western Australia v Brown [No 8] [19].
Martino J noted that the respondent had commenced antilibidinal medication and that he was willing continue taking the medication.[44] His Honour went on to say the following:[45]
Should the respondent be released under a supervision order he will be closely managed by members of the local risk management group that includes police officers from the Sex Offender Management Squad, Community Corrections Officers from the Department of Corrective Services Public Protection Unit and Dangerous Sex Offender psychologists.
If the respondent is released under a supervision order then he will be able to live in accommodation that has been allocated to him under the DSO Supported Accommodation Programme. The proposed accommodation has been used by another Dangerous Sex Offender under supervision and is well known to the Sex Offender Management Squad of the Western Australian Police and to the Department of Corrective Services Public Protection Unit staff. Ms Dabala's evidence was that if the respondent were to be released on a supervision order he can be subject to Global Positioning System tracking. This will allow the Department of Corrective Services to monitor the respondent's compliance with any curfew requirements, ensure that the respondent does not go to exclusion zones associated with a risk of offending which he is directed not to go to and provide improved information to guide his case management.
I am satisfied by the evidence of Dr Febbo, Ms Rankin and Ms Dabala that while subject to appropriate conditions which will be specified in the order the community can be adequately protected if the respondent is released on a supervision order.
[44] Director of Public Prosecutions for Western Australia v Brown [No 8] [21].
[45] Director of Public Prosecutions for Western Australia v Brown [No 8] [22] - [24].
On various dates in 2016 and 2017 the respondent was convicted in the Magistrates Court of five offences of contravening the Supervision Order.[46] The respondent committed the five offences during the period February 2016 to July 2016.
[46] The State of Western Australia v Brown [No 9] [2017] WASC 355 [16] - [25].
The respondent committed the first of his five offences on 23 February 2016. The offence was comprised of the respondent failing to comply with his curfew requirement by returning to his designated curfew address at 7.13 pm when he was required by his curfew to be at that address by 7.00 pm.
The respondent committed the second and third of his offences on 27 and 28 June 2016. The offences were comprised of the respondent failing to attend for urinalysis testing and a psychological appointment as directed.
The respondent committed the fourth of his offences on 12 July 2016. The offence was constituted by the respondent leaving his designated curfew address without his handheld tracking device. The respondent was not in possession of his tracking device for a total of 14 minutes.
The respondent committed the fifth of his offences on 25 July 2016. The offence was constituted by the respondent returning a positive result for methylamphetamine on urinalysis testing.
The respondent was fined $750 for the first of his offences and $1,000 for the fourth of his offences. The respondent was sentenced to a total of eight months imprisonment for the second, third and fifth of his offences.
In March 2017, following the respondent's above referred to five convictions for contravening the Supervision Order, the applicant applied under s 23(1) of the DSO Act for a continuing detention order to be made in relation to the offender, or in the alternative, for an order amending the conditions of the Supervision Order and/or extending the term of the Supervision Order. The application under s 23(1) was heard by Corboy J on a number of days in June, July, August, October and November 2017.
On 7 December 2017 Corboy J decided that a continuing detention order should not be made in relation to the respondent and that the Supervision Order should be amended so as to contain 51 conditions and extended in time so as to be for a period of seven years.[47] In arriving at his decision Corboy J said the following:[48]
Accordingly, I am not satisfied that the State has established that there is an unacceptable risk that the respondent would commit a serious sexual offence if a continuing detention order was not made. Dr Wojnarowska has concluded that the risk of the respondent sexually reoffending is no higher than when he was released to the community under the Supervision Order made in 2015. The contraventions of the order, apart from the positive test for methylamphetamine, are more in the nature of yellow rather than red lights, to adopt McKechnie J's analogy. The respondent has been in custody since July 2016 - a significant period that ought to have had a deterrent effect and he will be released on even more stringent conditions than those required by the order made by Martino J in 2015. He has not sexually reoffended while in the community. He will be required to take anti-libidinal medication - and I should indicate that, in my view, a failure to comply with that requirement would be a significant breach of the Supervision Order.
However, I am satisfied that the Supervision Order should be amended and extended pursuant to s 23(1)(a) of the DSO Act. I accept the recommendations made by Ms Rathmann to amend the Supervision Order to add conditions, and amend existing conditions, in relation to the respondent not accessing pornography, not remaining in the presence of persons using or affected by alcohol or any illicit substance and reporting the details of any relationship that might become intimate to a Community Corrections Officer, having regard to the evidence that each of those requirements directly relate to the risk of the respondent reoffending.
I also consider that the period for which the respondent is to be subject to the Supervision Order ought to be extended having regard to the evidence concerning the respondent's variable engagement with his counsellors and his community corrections officers. I accept that the respondent's treatment needs are long term having regard to the evidence of Dr Wojnarowska and Ms Place about his personality profile and his deeply entrenched psychiatric disorders. The Supervision Order was made for a period of five years and would have expired on 15 October 2020 but for the effect of s 24(2) of the DSO Act.
In my view, the adequate protection of the community requires the respondent to remain subject to the Supervision Order for a longer period. The Supervision Order will be amended so that the respondent will be subject to the order for a period of 7 years rather than 5 years.
[47] The State of Western Australia v Brown [No 9].At the time that Corboy J dealt with the application s 23 of the DSO Act provided as follows:
(1)If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may –
(a)make an order amending the conditions of the supervision order, or extending the period for which the person is to be subject to the conditions of the supervision order, or both; or
(b)if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, make a continuing detention order in relation to the person; or
(c) make no order.
(2A)In considering whether it is satisfied as required in subsection (1)(b), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.
(2)In deciding whether to make an order under subsection (1), the paramount consideration is to be the need to ensure adequate protection of the community.
[48] The State of Western Australia v Brown [No 9] [52] - [55].
Corboy J's reference to McKechnie J's analogy was a reference to observations made by McKechnie J as to the purpose of a supervision order in Director of Public Prosecution (WA) v Brown [No 6].[49]
[49] Director of Public Prosecution for Western Australia v Brown [No 6] [69] - [71].

The respondent's history of sexual offending

The respondent was born on 8 July 1970 or 8 July 1971.
The respondent has been convicted of a number of offences in New South Wales and Victoria.
Since 1999 the respondent has been convicted in this State of a number of sexual offences involving children.[50]
[50] The facts of the respondent's prior sexual offences involving children are set out in detail in my reasons for decision on the trial of issues: The State of Western Australia v Brown [No 10] [197] - [216].
In 1999 the respondent was convicted of an offence of attempting to sexually penetrate a child under the age of 13 and an offence of what is commonly referred to as child stealing. Both offences were committed against the same 6-year-old girl. The respondent was sentenced to a total term of 6 years imprisonment for the offences.
In 2004 the respondent was convicted of one offence of sexually penetrating a child under the age of 13 and one offence of unlawfully detaining the same child. The child was a 7-year-old girl. The respondent was sentenced to a total term of 4 years and 6 months imprisonment for the offences.
In 2007 the respondent was convicted of two offences of indecently dealing with a child under the age of 13, these two offences being committed against two different female children, and two offences of unlawfully detaining the two children. The two children were aged 12 and 8 and were sisters. The respondent was sentenced to a total term of 2 years imprisonment to be served cumulatively with the sentences imposed on him for the offences of which he had convicted in 2004.

The respondent would have been eligible for release from prison on 26 June 2010 if he had not been made the subject of proceedings under the DSO Act.

The facts of the contravention offences

In sentencing the respondent for the contravention offences I stated in detail the facts of the offences as found by me following the trial of issues. My statement of the facts of the contravention offences was as follows:[51]
[51] The State of Western Australia v Brown [2021] WASCSR 5 [9] - [36].
PE 4006/2020
At about 5.40 pm on Saturday 18 January 2020 you were in your red motor vehicle registration number 1DLF 005 near Belmont Forum Shopping Centre Belmont (Belmont Forum). Two 10 year old girls, JP and AC, were walking past your car towards a bus stop when you engaged them in conversation by asking them what they were up to and where the bottle shop was. You produced some money and told JP and AC that you would give them money, the clear implication being that you would give them the money if they agreed to show you where the bottle shop was. You did this in an attempt to induce JP and AC to get into your car. However, JP and AC did not get into your car. At the conclusion of the conversation you drove away in your car and JP and AC continued to walk to the nearby bus stop.
At no time were you authorised by your CCO to talk to JP and AC.
You engaged in the above described conduct with a sexual intention, that is, with the intention of performing a sexual act against, or in the presence of, one or both of JP and AC.
When you drove away from JP and AC you drove your car in the Belmont Forum car park for a short time. Then, while JP and AC were seated at the bus stop you drove your car past them at the bus stop on three separate occasions within a few minutes. You did this so that you could observe JP and AC and because you had a sexual interest in JP and AC.
PE 5193/2020
You drove your car to a shopping complex in nearby Rivervale (the Rivervale shops) and parked in the car park close to an IGA store. You entered IGA and bought a tub of margarine. You then returned to your car and remained seated in the driver's seat of your car for several minutes.
At about 6.00 pm JP and AC arrived at the Rivervale shops on the bus. JP and AC got off the bus and began walking across Gerring Court towards a park that was on the opposite side of Gerring Court to IGA. As JP and AC crossed Gerring Court you called out to them from your car. JP and AC stopped, looked in your direction, and walked a few steps towards your car before turning away and continuing to walk across Gerring Court towards the park.
At approximately 6.02 pm you drove out of the IGA car park, turned right onto Gerring Court and then left into a parking bay which was on the opposite side of Gerring Court to the IGA car park adjacent to the park and close to the recreation centre and public toilets situated in the park. After a very short time you reversed out of the parking bay adjacent to the park, drove back into the IGA car park, and reverse parked in a parking bay which was in front of a cream wall forming the boundary to the IGA car park.
At approximately 6.14 pm you drove out of the parking bay in the IGA car park and to a parking area situated adjacent to the park close to the park's recreation centre and public toilets. This was where you had seen JP and AC walk to. You drove to this location with the intention of engaging in further conversation with JP and AC. You parked your car and then initiated and engaged in conversation with JP and AC. During the conversation JP and AC approached your car and you remained seated in your car. During the conversation you asked JP and AC if they knew where the petrol station was and asked them to get into your car to show you where the petrol station was. JP and AC did not get into your car.
At approximately 6.15 pm you drove away from JP and AC to the other side of the park.
At approximately 6.17 pm you drove back into Gerring Court to the area near where you had just interacted with JP and AC. JP and AC were still in the general area but were walking along the edge of the park back towards IGA. As you approached JP and AC you brought your car to a stop on Gerring Court and again interacted briefly with JP and AC while seated in your car. You then drove away. However, you hovered in the area of the Rivervale shops and the park with the intention of interacting further with JP and AC.
During either your initial conversation with JP and AC or your conversation with them when you drove back from the other side of the park into Gerring Court, you offered JP and AC money to show you where the petrol station was.
At about 6.25 pm you again drove into the parking area situated close to the park's recreation centre and public toilets. You parked your car. You then interacted with JP and AC who were still in the general area and who approached your car. During the interaction you remained in your car. At about 6.27 pm JP and AC walked away from your car in the direction of the IGA car park. You drove out of the parking area, turned left onto Gerring Court and drove away.
At approximately 6.30 pm you drove into the IGA car park from Gerring Court and reverse parked in a parking bay in front of the cream wall forming the boundary to the car park. As you drove into the car park you interacted briefly with JP and AC who were standing close to the entry to the car park. Further, while parked in the parking bay and while seated in your car you continued to interact with JP and AC who stood close to your driver's side door.
During this interaction you gave JP a $50 note and asked her to go into IGA to change the note into smaller notes for you. At approximately 6.32 pm JP ran from your car into IGA to change the money for you while AC remained standing by your car interacting with you. At this time you wanted to continue your interaction with AC.
At approximately 6.35 pm JP, having obtained the change for you, ran back to your car. A short time later you drove out of the parking bay in the direction of Jupp Lane which is the lane situated behind IGA. JP and AC remained standing in the parking bay close to the cream wall.
At approximately 6.40 pm JP and AC walked down Jupp Lane away from the direction of IGA. As they did so you drove into Jupp Lane from the opposite direction, that is, drove into Jupp Lane from Francisco Street and in the direction of IGA. You did so with the intention of looking for JP and AC and interacting further with them.
When you reached JP and AC who were still walking down Jupp Lane you stopped your car and interacted with both of them for a period of time while remaining seated in your car. JP and AC then started to walk back up Jupp Lane towards IGA. You followed them slowly in your car. At one point AC stopped and walked back to the driver's side of your car and interacted with you. AC then moved away from your car and re-joined JP who had continued walking. After these interactions AC and JP continued walking up Jupp Lane towards IGA. You continued to drive in the same direction towards IGA before turning left out of Jupp Lane and driving away.
Either while you were engaging with AC when JP was in IGA changing money for you, or while you were engaging with AC in Jupp Lane, you asked AC to meet you at the end of Jupp Lane and offered her money to do so.
At no time were you authorised by your CCO to speak to JP and AC.
In engaging in the conduct to which I have referred, and in interacting and engaging with JP and AC, you had a sexual intention, that is, an intention to perform a sexual act against, or in the presence of, one or both of JP and AC.
PE 5194/2020
At approximately 6.45 pm AC walked down Jupp Lane on her own away from the direction of IGA towards Francisco Street. She did so because she was looking for you as a result of you asking her to meet you at that location. However, at this time you were not in Jupp Lane. Accordingly, at approximately 6.47 pm AC walked back up Jupp Lane towards IGA where JP was still standing.
At approximately 6.50 pm you drove into Jupp Lane from Francisco Street looking for AC and intentionally parked your car in a secluded location, specifically a vacant area of land that was at the end of Jupp Lane close to the intersection with Francisco Street. This area was out of closed circuit television camera coverage.
At approximately 6.51 pm AC jogged down Jupp Lane by herself to meet you where you had parked. JP waited for AC in the area of IGA.
When AC got to your parked car at the end of Jupp Lane you spoke to her. You asked her if she wanted money, asked her if she wanted to get into your car, offered her $20 to get into your car, and told her that if she got into your car she would have to do something.
AC at this point ran away from your car back up Jupp Lane to JP. You drove away out of Jupp Lane onto Francisco Street and away from the area.
At no time were you authorised by your CCO to speak to AC.
In engaging in the conduct to which I have just referred you had a sexual intention, that is, an intention to commit a sexual act against, or in the presence of, AC.
PE 4007/2020 and PE 5195/2020
On Tuesday 21 January 2020 you attended a meeting in Perth with your CCO. During the meeting you did not disclose your contact with JP and AC at Belmont Forum (PE 4007/2020). Nor did you disclose your repeated contact with JP and AC in Rivervale (PE 5195/2020). You did not do so because you knew not only that your contact had been in breach of the conditions of the Supervision Order, but also because you knew that you had engaged in the contact with a sexual intent.

The respondent's recent personal circumstances[52]

[52] ACC Performance Report (exhibit 1, vol 2, 421 - 422); ACC Update Performance Report (exhibit 1, vol 2, 425 - 426).

The respondent is 49 or 50 years old.
The respondent has no biological family in Western Australia. He has a twin brother who lives in the Eastern States.
The respondent has no community supports in Western Australia save for a former support worker who is no longer employed with the relevant reintegration agency but who provides the respondent with some infrequent support.
In 2018 the respondent was involved in a number of relationships with adult females. The females were not pro-social and engaged in alcohol and illicit drug use as well as criminal behaviour.
In May 2019 the respondent commenced an intimate relationship with an adult female, EG. The respondent had been in contact with EG prior to commencing his intimate relationship with her. The COMU were aware of the respondent's contact with EG in the period leading up to the commencement of the relationship.
On 30 December 2019 EG gave birth to a daughter. Although the respondent believed at the time of the child's birth that the child was his daughter, a paternity test carried out in mid-December 2020 established that this was not the case.
After EG and her daughter were discharged from hospital they resided in supported accommodation approved by the Department of Communities, Child Protection and Family Support (CPFS). The respondent was not permitted to live with EG's daughter or to attend the address of EG and her daughter. He was, however, permitted to have in person, telephone, text and video contact with EG.
After being returned to prison in January 2020 the respondent maintained frequent telephone contact with EG, the last of these contacts being on 1 March 2021.
On 8 March 2021 EG obtained a Family Violence Restraining Order (FVRO) against the respondent. The effect of the FVRO is to prevent the respondent having any contact with EG and her daughter. The FVRO will remain in force until 8 March 2023.
During the time that the respondent was in the community EG was his primary source of support.
While in the community the respondent completed his Certificate 3 in Civil Construction and gained his excavation and front loader tickets. He also, while engaged with Uniting WA, participated in sport and undertook driving lessons. He obtained his driver's licence.

The respondent's performance and progress while on the Supervision Order prior to being returned to prison

The respondent's engagement in psychological counselling[53]

[53] Psychological Intervention Completion Report (exhibit 1, vol 2, 389); ACC Performance Report (exhibit 1, vol 2, 418 - 419).

The respondent's treating psychologist is Mr Summerton. Mr Summerton has been the respondent's treating psychologist since 2011.
During the period September 2011 to January 2020 Mr Summerton conducted a total of 197 counselling sessions with the respondent. For a significant proportion of this period the respondent was in prison.
During the period December 2017 to April 2019 while the respondent was in the community on the Supervision Order, the respondent attended a total of 26 counselling sessions with Mr Summerton. In April 2019 it was mutually agreed between Mr Summerton and the respondent that counselling should cease due to the respondent's lack of motivation to meaningfully engage.
According to Mr Summerton the respondent's response to his extended participation in counselling over a number of years can be characterised as chequered and ambivalent. He assesses the respondent's level of meaningful participation in counselling to have 'incrementally tailed off' over a period of years including during his most recent period of time in the community.
According to Mr Summerton, the respondent's self-reporting of sexually deviant fantasies was variable and ranged from complete denial of any sexual interest in children to hinting at ongoing deviant thoughts. On occasions the respondent implied that he had indulged such fantasies during periods when he had previously denied to Mr Summerton during counselling sessions the presence of deviant thoughts. In Mr Summerton's view the result of the respondent's insistent denial of any current deviant sexual interest when the topic was broached during counselling sessions was that meaningful intervention was not possible.
According to Mr Summerton the respondent, while in the community and during counselling and supervision sessions, demonstrated evasiveness and appeared to engage in obfuscation and/or strategic manoeuvring by way of impression management.
When the respondent first disclosed that EG was pregnant he was given the opportunity to re-engage with Mr Summerton. The respondent participated in five further counselling sessions with Mr Summerton before voluntarily ending the engagement after failing to attend an appointment on 29 October 2019.
After the birth of EG's daughter the respondent was again offered the opportunity to engage in counselling with Mr Summerton. He took up this opportunity by having one telephone call with Mr Summerton. However, despite additional offers to re-engage with Mr Summerton via the COMU the respondent declined to do so advising that he would alert the COMU if he felt the need to do so.
In Mr Summerton's view there was, during the respondent's most recent period of time in the community, some indication that he was motivated to maintain enduring change. Mr Summerton points out that the respondent committed the contravention offences when he was living separately from EG due to EG having given birth to her daughter. Mr Summerton speculates that the respondent's enforced separation from EG in some way paralleled ruptures in the respondent's earlier relationships that he had described as leading to increased engagement in deviant sexual activities. Mr Summerton considers that the evidence is that the respondent's relationship with EG had a stabilising effect on him, in particular making him less inclined to venture into public settings in order to occupy his time.
In Mr Summerton's opinion his working relationship with the respondent during the most recent period of intervention was consistently amicable but often superficial. In his opinion given the substantial overall level of intervention undertaken by the respondent over many years the efficacy of further involvement in intervention appears questionable.

The respondent's compliance with the requirements of the Supervision Order[54]

[54] ACC Performance Report (exhibit 1, vol 2, 418).

From August 2018 to January 2021 the respondent's supervising senior CCO was Mr Snow. Since January 2021 Mr Carmichael has been the respondent's supervising senior CCO.
While subject to the Supervision Order in the community the respondent reported as directed. However, his engagement with his senior CCO varied depending on the subject matter being discussed. The respondent often presented for supervision with a pre-planned agenda. Departmental records indicate that the respondent was often dismissive, vague and sometimes obstructive when it came to discussing his relationships, his efforts to gain employment and his order conditions.
While in the community on the Supervision Order the respondent did fail to comply with the conditions of the order on seven occasions. The instances of non-compliance were comprised of the respondent failing to comply with his curfew by returning to his address two minutes late, being in possession of a small Spiderman pencil toy, entering exclusion zones for brief periods of time and failing to attend scheduled psychological counselling sessions. The contraventions were dealt with by the issuing of verbal and written warnings.

The respondent's use of antilibidinal medication while on the Supervision Order[55]

[55] Psychiatric report of Dr Wojnarowska (exhibit 1, vol 2, 405); ACC Performance Report (exhibit 1, vol 2, 419).

While in the community on the Supervision Order the respondent was prescribed the antilibidinal medication Cyproterone acetate (Androcur). The respondent was compliant with his antilibidinal medication regime. However, results from testing of blood samples taken from the respondent on five separate occasions during the period April 2019 to November 2019 revealed that the respondent's testosterone levels were below the suppression level on one occasion only.

The respondent's behaviour in prison since January 2020[56]

[56] ACC Performance Report (exhibit 1, vol 2, 421); ACC Update Performance Report (exhibit 1, vol 2, 425); Treatment Progress Report (exhibit 3, 4)

In November 2020 the respondent was involved in a minor altercation with another prisoner. The altercation was over cigarettes. The respondent has not been involved in any other prison incidents.
The respondent works in prison as a peer support worker. He is a settled prisoner who performs his peer support worker role well.
The respondent has been subjected to regular urinalysis testing since being returned to prison. All the tests have returned negative results to illicit substances.

Respondent's cessation of antilibidinal treatment

After being returned to custody the respondent continued to be prescribed Androcur. However, in October 2021 he ceased taking the medication due to reported negative side effects including weight gain and stomach pain. He denies any increase in sexual thoughts since ceasing taking medication.

Dr Wojnarowska's evidence

Report[57]

[57] Exhibit 1, vol 2, 400.

Dr Wojnarowska's first report reveals the following.
Dr Wojnarowska interviewed the respondent on 15 May 2021.
The respondent told Dr Wojnarowska that he had been lonely until he met EG in January 2019 and that he was lonely after EG gave birth to her daughter. He expressed the view that the feelings of loneliness that he experienced after the birth of EG's daughter were partially the result of the CPFS restricting his contact with EG from that point in time. He reported that once the restrictions were put in place he would spend his time at home and would go out only for the purpose of reporting to the COMU. He described having a very limited social circle and no family support.
The respondent told Dr Wojnarowska that he ceased regular counselling with Mr Summerton because he was of the opinion that there were no benefits to attending counselling as he was no longer experiencing deviant sexual fantasies and did not require risk management strategies.

The respondent expressed the opinion to Dr Wojnarowska that he presents no risk to the community because he has not had any deviant sexual thoughts since 2011 and is not interested in offending against children. He said that thoughts of offending against children had disappeared since he had commenced taking antilibidinal medication and that they had not reoccurred since that time. The respondent denied any interest in pornography.
The respondent was initially reluctant to talk to Dr Wojnarowska about the contravention offences. He expressed the opinion to Dr Wojnarowska that the judge had convicted him on what the judge considered to be the truth rather than the facts.
The respondent was unwilling to provide Dr Wojnarowska with a linear and coherent account of what had taken place on the day that he committed the contravention offences. His account was in essence limited to stating that he met JP and AC when they approached him and asked for money, and that he wanted to help them by giving them money because they were clearly neglected and in need of help and because he gave 'a f**k'. The respondent told Dr Wojnarowska that the talked to JP and AC because he felt lonely and had no one else to talk to at the time.
The respondent blamed 'the system' for his commission of the contravention offences. The respondent said to Dr Wojnarowka, 'They did not do anything for my loneliness and boredom, they know boredom is a trigger for me'.
The respondent reported to Dr Wojnarowska that since he had commenced antilibidinal medication he had a lower sexual drive with occasional masturbation. He reported that he only fantasises about EG and that he has had no sexual fantasies about children since 2011.
According to Dr Wojnarowska the respondent perceived himself to be a victim of systemic injustice. His affect was mildly grandiose and he presented as entitled and self‑assured. He oscillated between accepting some responsibility for his current situation to blaming the system for his return to prison. Dr Wojnarowska found it difficult to assess the respondent's degree of insight because he denied having any sexual intent when he committed the contravention offences.
In Dr Wojnarowska's opinion, although the respondent currently denies any sexual interest in children his commission of the contravention offences leaves no doubt that he continues to have a paedophilic interest. In her view the commission by the respondent of the contravention offences confirms the chronicity of the respondent's paedophilic interest. Her diagnosis therefore remains 'Paedophilia, non-exclusive type, attracted to female children'.
In Dr Wojnarowska's opinion the respondent continues to fulfil the criteria for Antisocial Personality Disorder and narcissistic personality traits.
In Dr Wojnarowska's opinion there is no evidence of the respondent having used illicit substances or alcohol while in the community. Therefore her diagnosis in relation to this issue is 'Polysubstance Use Disorder in remission'.
Dr Wojnarowska undertook an assessment of the risk of the respondent committing further sexual offences. In doing so she made use of a number of risk assessment tools, specifically the Static‑99R, the Revised Hare Psychopathy Check-list (PCL-R), the 3‑Predictor Model and the Risk of Sexual Violence Protocol (RSVP).
The respondent's Static-99R score was 8. This placed him in the '(IVb) Well Above Average Risk' category. The respondent's previous RSVP score was 9. His score has now reduced to 8 by reason of his age.
In routine samples of offenders with the same Static-99R score as the respondent, the 5 year recidivism rate is between 36% to 45%. This means that out of 100 sexual offenders with the same risk score between 36 and 45 will be charged with, or convicted of, a new sexual offence in the community.
Dr Wojnarowska notes that Static‑99R does not measure all relevant risk factors and that the respondent's recidivism rate may be higher or lower than that indicated by Static‑99R.
With respect to the PCL-R, the respondent gave a high score on the interpersonal features of psychopathy such as a tendency to be manipulative and exploitative, having a grandiose sense of self, being impulsive and sensation seeking, and having callous traits.
In making use of the 3‑Predictor Model, which is an instrument used to assess the risk of indigenous sexual recidivism, Dr Wojnarowska found that certain risk factors are present in the respondent's case, specifically the absence of a feasible release plan and the obvious barriers to the respondent's plan to obtain and maintain employment in the construction industry. As to the absence of a feasible release plan, Dr Wojnarowska notes that the respondent's plan to resume regular contact with EG is unlikely to be able to be implemented unless EG relinquishes the right to care for her child. With respect to the barriers to the respondent pursing his plan to work in the construction industry, Dr Wojnarowska notes that such work is frequently required to be performed in public locations with the result that the respondent, if subject to a supervision order, may not be permitted to undertake such work.
In making use of the RSVP Dr Wojnarowska identified a number of risk factors that are present in the respondent's case. One of the factors identified by Dr Wojnarowska is the respondent's problem with supervision. In Dr Wojnarowska's view the respondent's personality style is not conducive to being compliant with his personal or other obligations. Dr Wojnarowska notes in this context that the respondent has demonstrated persistent rule breaking behaviours while in the community. She considers that the conduct engaged in by the respondent towards JP and AC and his failure to disclose his contact with them to his CCO is of concern. She states that it appears that the main reason why the respondent did not proceed to sexually offend against JP and AC is that they refused to get into his car.
Dr Wojnarowska summarises her risk assessment of the respondent as follows:
1.The respondent's risk of reoffending is associated with the presence of psychopathic traits and sexual deviance;
2.Although the respondent made some progress in his treatment prior to his release in 2017 and did not sexually reoffend while in the community, it is very likely that had JP and AC complied with his requests he would have proceeded to sexual offending;
3.At the time of committing the contravention offences the respondent was disengaged from psychological treatment and experienced psychosocial stressors in the form of relationship and family problems;
4.In her opinion the clinical analysis of risk factors as they relate specifically to the respondent as guided by the RSVP indicates that his risk of sexual reoffending is high, this being consistent with his Static‑99R score;
5.In her opinion the respondent continues to be at high risk of sexual reoffending if he is not subject to a continuing detention order or a supervision order; and
6.In her opinion the respondent's level of risk remains the same as assessed by her in 2017.
In Dr Wojnarowska's opinion the respondent's pattern of offending suggests that if he does reoffend the victim will be a prepubescent female who is not known to him and who he encounters accidentally or who he has observed for a period of time. However, Dr Wojnarowska also considers that given the respondent's commission of the contravention offences it is equally possible that he may seek the opportunity to engage a prepubescent female who is unknown to him in a public place.
Dr Wojnarowska considers that if the respondent does reoffend the reoffending will not necessarily occur in the presence of substance use, but that the respondent is more likely to act on his fantasies if intoxicated.
In Dr Wojnarowska's view it is difficult to predict if any reoffending is likely to occur within a short period of time after any release of the respondent. She considers that this will depend on whether the community supports and structure around the respondent will be sufficient to 'fill in the emotional void that causes his dysphoria'.
In relation to the issue of future treatment Dr Wojnarowska, while taking into account Mr Summerton's view that the respondent is unlikely to benefit from further psychological treatment, remains of the opinion that if the respondent is released into the community psychological treatment may mitigate to some degree his risk of reoffending because this will provide an additional avenue to monitor his mental state.
Dr Wojnarowska recognises that the conditions of the Supervision Order were 'somewhat protective'. However, she considers that given the respondent's commission of the contravention offences his restriction zones should be reviewed and that further consideration should be given to restricting his access to shopping centres, parks, swimming locations and child play areas and that specific times and locations should be allocated for him to complete his shopping requirements.

Update report[58]

[58] Exhibit 2.

Dr Wojnarowska prepared her update report to address the respondent's progress and changes in his circumstances and mental state since preparing her first report. The update report reveals the following.
Dr Wojnarowska interviewed the respondent on 12 August 2022. There was no change in the respondent's presentation or in his reported history. The respondent repeated, in substance, the assertions that he made when Dr Wojnarowska interviewed him for the purpose of preparing her first report. In particular, the respondent again expressed the opinion that he presents no risk to the community, maintained that he has not had any deviant sexual thoughts since 2011, continued to deny that he initiated engagement with JP and AC, and blamed 'the system' for his commission of the contravention offences.
The respondent told Dr Wojnarowska that he had not had any psychological counselling because he is now a sentenced prisoner. He stated that he was happy to continue to report and obey any other conditions of a supervision order.
The respondent told Dr Wojnarowska that although he understood that it would not be possible for him to reunite with EG he would like to have contact with '[his] baby'.
When Dr Wojnarowska questioned the respondent about psychological treatment he said that he would like to have occasional sessions driven by his needs at the time. When Dr Wojnarowska asked the respondent what his treatment goals would be, the respondent stated that psychological counselling would not be about addressing specific goals but rather about obtaining ongoing support.
Dr Wojnarowska again found it difficult to assess the respondent's level of insight given that he continued to deny any sexual intent in committing the contravention offences.
Dr Wojnarowska refers to the fact that the respondent ceased his antilibidinal treatment on 21 October 2021. She is concerned that the respondent is not currently engaging in psychological counselling and is not taking prescribed antilibidinal medication. In her view the respondent's failure to engage in counselling and to take antilibidinal medication elevates his risk of reoffending.
In Dr Wojnarowska's opinion the clinical analysis of risk factors as they relate specifically to the respondent as guided by the RSVP, indicate that his risk of sexual reoffending is high. She notes that this is consistent with the respondent's Static-99R score. She considers that the respondent continues to be at high risk of committing a serious sexual offence if he is not subject to a continuing detention order or a supervision order for the reasons that she gave in her first report.
Dr Wojnarowska notes that she has taken into consideration Mr Summerton's views that the respondent is unlikely to benefit from further psychological treatment. However, she remains of the opinion that if the respondent is released into the community psychological treatment may mitigate to some degree his risk of reoffending as it would provide an additional avenue to monitor his mental state and provide him with a degree of support.
In relation to the conditions that should be imposed as part of any supervision order, Dr Wojnarowska remains of the view that given the contravention offences the respondent's restriction zones should be reviewed. In her view consideration should be given to restricting the respondent's access to shopping centres, parks, swimming locations and child play areas, and to allocating specific times and locations for him to complete his shopping requirements.

Oral evidence

In her oral evidence-in-chief Dr Wojnarowska gave the following supplementary evidence.[59]
[59] ts 369 - 374, 13 December 2022.
The respondent's paedophilia is a lifelong condition. However, paedophilia symptoms can be managed with appropriate psychological and/or pharmacological treatment.
In her opinion the main factors associated with the respondent's high risk of sexual reoffending are his 'sexual deviance, mainly paedophilia' and his psychopathic anti-social traits.
When she interviewed the respondent on 12 August 2022 he told her that he had ceased taking antilibidinal medication.
It is the position that antilibidinal treatment is not recommended as a standalone treatment. Moreover, it is obvious that the optimal form of treatment is psychological and pharmacological treatment. However, in her view if psychological treatment is not available pharmacological treatment alone is superior to no treatment at all.
She is aware of Mr Summerton's position in relation to the respondent engaging in further psychological counselling. However, even if the respondent is not given the opportunity of further psychological counselling she would still recommend that he recommence antilibidinal treatment as a standalone therapy.
In her opinion, provided that the respondent is at least treated with antilibidinal medication his risk of serious offending can be managed if he is released on a supervision order containing the conditions recommended by Mr Carmichael. Ideally, if the respondent undergoes psychological counselling and pharmacological treatment his risk will in her opinion be manageable.
The respondent will be at 'major' risk of committing further offences if he is around unsupervised children. It is for this reason that in her opinion certain shopping centres should be made the subject of exclusion zones. In this respect she has a number of shopping centres in mind which are, to her knowledge and experience, in areas where children are less likely to be supervised and school non-attendance is more prevalent.
In her opinion if the respondent is again released on the Supervision Order, or an amended version thereof, he should be subject to the order for at least 10 years. She accepts that given that the Supervision Order is not due to expire until June 2026, the appropriate course to give effect to her opinion would be to extend the order for approximately six and a half years.
In expressing the opinion that the respondent is at high risk of committing further sexual offences, she is referring to sexual offences that are serious offences within the meaning of the Act. Further, the serious offences that she is referring to are offences against female children, most likely prepubescent female children. In her view given that the respondent is a paedophile there is a greater risk of him offending against prepubescent female children.
In cross-examination Dr Wojnarowska gave the following supplementary evidence.[60]
[60] ts 374 - 386, 13 December 2022.
She has no doubt that the respondent is capable of functioning in a prosocial manner provided he does not have access to children.
When she interviewed the respondent on 12 August 2022 she discussed with him that if he was to be released on a supervision order he would be required to recommence antilibidinal treatment. The respondent told her that he was prepared to recommence antilibidinal treatment if required. She also made the respondent aware that it was her opinion that if he was to be released on a supervision order he would need to undergo further psychological counselling. The respondent expressed a willingness to engage in such counselling.
The respondent's disengagement from psychological counselling in January 2020 resulted in his mental state not being closely monitored by a psychologist. Accordingly, the deterioration in his mental state (associated with his significant psychosocial stressors at the time) was not 'picked up' and this contributed to him committing the contravention offences. The respondent did not have any strategies to deal with his mental state. In her view, if a psychologist had been aware of the deterioration in the respondent's mental state strategies could have been put in place to avoid what subsequently occurred.
She agrees with the proposition that sometimes in the context of a clinical relationship there needs to be a new clinician involved. She agrees that the fact that the relationship between a clinician and the person being treated has 'run its course' does not mean that the person no longer requires treatment. She agrees that the relationship between the respondent and Mr Summerton has run its course. She agrees that the mere fact that the relationship between Mr Summerton and the respondent has run its course does not mean that the respondent is incapable of receiving treatment benefits from further counselling with another psychologist. She accepts that it would be to the benefit of the respondent to develop a relationship with a new psychologist.
One of the significant factors underpinning her opinion relating to the ability to manage the respondent's risk in the community is that the respondent, if he is released, will have stable accommodation provided by Uniting WA and have the benefit of the structured support program that is provided by Uniting WA. The Uniting WA support program will in her view provide the respondent with another layer of structure and supervision.
Her 'ultimate conclusion' is that the risk that the respondent poses can be adequately managed in the community provided he engages in antilibidinal treatment and provided he engages meaningfully in psychological counselling. The respondent has told her that he is willing to do both these things.
In her view a psychologist will be able to discern if the respondent's engagement in counselling is superficial rather than meaningful. Further, if the psychologist forms the view that the respondent's engagement in counselling is superficial and that the superficial engagement means that the respondent is at an elevated risk of reoffending, the psychologist will be able to make recommendations to the respondent's CCO.
In her opinion any counselling would need to take place, in the initial phase of the respondent's release on a weekly basis. She agrees that the counselling psychologist would need to be someone other than Mr Summerton.
At the end of cross-examination I asked Dr Wojnarowska whether the respondent's current refusal to accept that he has a sexual interest in female children has any bearing upon her view as to the potential benefits to the respondent of engaging in further psychological counselling or upon her view as to the likelihood that the respondent will meaningfully engage in psychological counselling. In response to my question Dr Wojnarowska testified that the respondent's current refusal to admit that he has a sexual interest in female children is 'definitely a barrier which hopefully…once he's…meaningfully engaged…could be overcome'. Dr Wojnarowska further stated that 'there is no guarantee and it is a definite obstacle in relation to meaningful engagement in psychological counselling'.
After Dr Wojnarowska gave the above evidence in response to my question the respondent's counsel, at my invitation, asked some further questions of her. In response to the further questioning Dr Wojnarowska stated that it was not unusual for a person with a paedophilic sexual interest who is confronted with an expert witness to deny the existence of their interest. She stated that a therapeutic relationship needs to develop between a counsellor and the person before the disclosure of a deviant sexual interest is made and that in the context of psychological counselling this usually happens over the long term. She agreed that once the 'barriers come down' meaningful engagement can occur. She stated that she was unable to say definitively if the respondent would be willing to disclose what he is undoubtedly very ashamed of. She stated that the respondent has insight into the fact that having a sexual interest in children is wrong. She stated that the respondent's refusal to accept 'certain factual matters' the subject of the contravention offences could be due to a number of factors including fear of the consequences of doing so and an inability to admit publicly and to himself that he has a sexual interest in children. She accepted that 'these…things' (that is, the respondent's refusal to accept the existence of his paedophilic sexual interest, his refusal to accept some of the facts of the contravention offences and his reasons for these refusals) should be the subject of psychological treatment. She agreed that if the respondent was to be released into the community psychological treatment would be 'an absolute necessity'. She agreed if that there was no meaningful engagement in relation to these issues an experienced clinician would be able to pick up on this.

In further support of its submission, the State contends that the respondent's current situation is not dissimilar to his situation at the time of his release on the Supervision Order in December 2017.
The State does not attempt to argue that if, contrary to its submission, I find that the respondent has discharged his burden of proving that he will substantially comply with the standard condition specified in s 30(2)(f) of the Act, I should nonetheless conclude that the adequate protection of the community cannot be ensured by releasing him on the Supervision Order. The State in effect accepts that if I find that the respondent has discharged his burden of proving substantial compliance with s 30(2)(f) I should also find that releasing the respondent on the Supervision Order amended so as to include all the additional conditions proposed by Mr Carmichael and extended for a period of six and a half years, will ensure adequate protection of the community.

Respondent's submissions

The respondent submits that I should find that he has discharged his burden of proving on the balance of probabilities that he will, if released on the Supervision Order amended in accordance with Mr Carmichael's recommendations, substantially comply with all the standard conditions specified in s 30(2) of the Act. The respondent submits that if I arrive at this finding I should also find that adequate protection of the community will be ensured by releasing him on the amended version of the Supervision Order. The respondent concedes that if he is released on the amended version of the Supervision Order it would be appropriate to extend the term of the order by six and a half years.
The respondent submits that there is no basis for me to reject the opinion evidence of Dr Wojnarowska that the risk that he poses to the community can be adequately managed by releasing him on the proposed amended version of the Supervision Order provided that he engages in antilibidinal treatment and provided also that he engages meaningfully in psychological counselling. The respondent submits that the foundation for Dr Wojnarowska's opinion in this respect was not challenged by the State in any meaningful way. The respondent submits that if I accept the opinion evidence of Dr Wojnarowska on this point, the real issue for my determination is whether it is likely that the respondent will engage in psychological counselling in a meaningful way. The respondent in effect concedes that before I could conclude that adequate protection of the community will be ensured by releasing him on the proposed amended version of the Supervision Order, I would need to be satisfied that there is a likelihood that he will, if released, meaningfully engage in psychological counselling.
The respondent submits that I should find that if he is released on the proposed amended version of the Supervision Order it is likely that he will meaningfully engage in psychological counselling, provided that the counsellor is somebody other than Mr Summerton. The respondent submits that there is evidence supporting this finding comprised of the statements that he made to Dr Wojnarowska that he would do so. The respondent submits that his statements to Ms Collyer to the substantive effect that he does not need to, and does not intend to, engage in any substantive psychological counselling if he is released must be viewed in light of the fact that Ms Collyer did not discuss with him the issue of counselling in the context of dealing with the relationship between antilibidinal treatment and counselling.
The respondent submits that if he is released on the proposed amended version of the Supervision Order but does not participate meaningfully in psychological counselling, this will be quickly picked up by his treating psychologist with the result that appropriate steps will be able to be taken under s 51 of the Act to manage any elevated risk associated with his superficial engagement.
The respondent submits that I should infer that the sentence of imprisonment that I imposed on him for the contravention offences has had a deterrent effect on him and has consequently decreased the likelihood that he will contravene the Supervision Order or commit further offences.
The respondent points to the fact that if he is released he will, during his initial period in the community, have the benefit of the additional layer of support provided by Uniting WA's reintegration support program.
The respondent submits that I should give great weight to the opinion of Dr Wojnarowska that provided there are two pre-conditions in place, specifically that he undertake antilibidinal treatment and that he engage meaningfully in psychological counselling, his risk can be adequately managed by releasing him on the proposed amended version of the Supervision Order.

Decision

The respondent was in the community on the Supervision Order for a period of approximately two years before he committed the contravention offences. During this two year period, and as I have already indicated, the respondent did fail to comply with conditions of the Supervision Order on seven occasions. In addition, the evidence of Dr Wojnarowska is that the respondent has a problem with supervision and that his personality style is not conducive to being compliant with his personal or other obligations. Further, the respondent has a significant history of contravening supervision orders (prior to his commission of the contravention offences he had been convicted of 16 offences of contravening a supervision order). Nonetheless, when I view the respondent's conduct during the two year period while on the Supervision Order overall in light of the nature of the seven instances of non‑compliance, I am satisfied on the balance of probabilities that if the respondent is permitted to remain in the community on the Supervision Order, or an amended and/or extended version thereof, he will substantially comply with the standard conditions specified in s 30(2)(a)-30(2)(e) and s 30 (2)(g) of the Act.
That leaves the standard condition specified in s 30(2)(f) of the Act.
The respondent now has accommodation available to him in the community. The accommodation is suitable if not ideal (accommodation for high risk serious offenders is rarely ideal).
The respondent has indicated that he is willing to recommence antilibidinal treatment. He has been assessed by Dr Wynn Owen as suitable to do so.
The matters referred to in the previous two paragraphs are of significance. However, even when I give full weight to these matters and take into account the constraints that would be imposed on the respondent by the standard conditions specified in s 30(2)(a) - s 30(2)(e) and s 30(2)(g) and the other 'non-standard' conditions of the amended version of the Supervision Order as proposed by Mr Carmichael, I am not satisfied on the balance of probabilities that if the respondent is released on the Supervision Order he will not commit a serious offence, that is, a sexual offence against young female children contrary to s 320 and s 321 of Code, during the period of the order. I am not so satisfied having regard to the following matters.
First, the respondent has committed a number of very serious sexual offences against young female children, although it must be acknowledged that the last of these offences was committed many years ago. He has an established propensity to commit such offences.
Second, the respondent continues to have a sexual interest in young female children. His paedophilic interest in females, as demonstrated by his commission of the contravention offences, is chronic.
Third, the respondent's risk of committing further sexual offences against female children remains high.
Fourth, and as I found on the trial of issues, the respondent committed the contravention offences that involved him interacting and engaging with JP and AC (PE 4006/20, PE 5193/2020 and PE 5194/2020) because he had a sexual interest in them and with the intention of luring them, or at least one of them, into a situation that would enable him to offend sexually against them. The respondent's intention was to act on his sexual interest in the girls by sexually offending against them once he had created the opportunity to do so. Thus, unlike the contraventions the subject of the 2017 proceedings before Corboy J which resulted in the respondent being re-released on the Supervision Order (amended and extended), the contravention offences are in the nature of 'red light' contraventions. Indeed, and as has in effect been recognised by Dr Wojnarowska, it would appear that the only reason that the respondent did not proceed to act upon his sexual intention and offend against either or both girls was that he was unsuccessful in his attempts to lure them into his car. To put it another way, it was not the conditions of the Supervision Order that prevented him from actually progressing to sexually offending against the girls.
Fifth, the respondent refuses to acknowledge that he continues to have a sexual interest in young female children. Indeed, despite my findings as to the facts of the contravention offences and the strength of the evidence that was presented against him on the trial of issues, the respondent continues to deny the existence of his true intentions in committing the offences, specifically that he had a sexual interest in JP and AC and that he intended to sexually offend against them if it became possible for him to do so. The respondent's refusal to acknowledge his sexual interest makes it impossible to conclude that he has any substantial insight into the risk that he presents to the community.
Sixth, consistently with his refusal to acknowledge his sexual interest in young female children and a corresponding lack of insight, the respondent does not accept that he presents a danger to young female children.
Seventh, again consistently with his refusal to acknowledge his sexual interest in young female children and a corresponding lack of insight, the respondent does not have a full appreciation of the need to avoid situations that are, for him, high risk, or to use his words, 'dodgy' (most obviously, remaining in locations at which he comes across female children and interacting with female children).
Eighth, the respondent has expressed the view that it is difficult for him to avoid all risk scenarios and unrealistic to expect him to have no contact with children. He has in effect expressed an intention to respond to any initiation of contact with him by a child so as to avoid appearing rude.
Ninth, although the implementation of more stringent and extensive restrictions on the ability of the respondent to attend certain shopping centres and perhaps also other locations at various times of the day (whether by way of the implementation of exclusion zones or other means) will inevitably reduce the possibility of the respondent encountering and interacting with unsupervised female children, the implementation of such restrictions will not completely remove this possibility.
Tenth, the respondent has repeatedly expressed his distrust of those who would be responsible for supervising, monitoring and managing him in the community. It is therefore not possible to have any confidence that the respondent will engage with such persons, including his CCO, in a manner that will enable the detection of any warning signs so far as his risk of reoffending is concerned.
Eleventh, accepting that the respondent was, at the time of committing the contravention offences experiencing psychosocial stressors and associated feelings of loneliness, and accepting also that these stressors and feelings of loneliness played a role in the respondent's decision to interact and engage with JP and AC and to thereby commit the contravention offences, it is highly likely, given the respondent's lack of family and social supports, that if he is released on the Supervision Order he will again be exposed to such stressors and feelings of loneliness.
Twelfth, at the time of committing the contravention offences the respondent was, as provided for by condition 31 of the Supervision Order, taking prescribed oral antilibidinal medication. Although as Dr Wynn Owen has noted there was considerable variation in the respondent's testosterone levels while the respondent was taking the medication, the fact remains that the respondent's use of the medication was not sufficient to prevent him from experiencing, and acting upon, a sexual interest in JP and AC.
Thirteenth, some of the possible additional conditions identified by Mr Carmichael are retrospective in nature. Accordingly, given the respondent's previously demonstrated unreliability in relation to self-reporting it is, in my view, doubtful that they will be particularly effective in reducing his risk of offending.
Fourteenth, prior to being re-released on the Supervision Order by Corboy J in December 2017 the respondent had been in custody as a result of his contraventions since July 2016. The time that the respondent spent in custody on this occasion did not deter him from committing the contravention offences. Therefore, even though the respondent has spent a significantly greater period in custody as a result of committing the contravention offences than he did for the contraventions that were the subject of the proceedings before Corboy J, I am not willing to infer that his most recent incarceration has had a significant deterrent effect on him.
Fifteenth, the respondent does not see the need to continue to meaningfully engage in psychological treatment in an attempt to address his paedophilic tendencies. He does not want to talk about any 'deep stuff'. This is notwithstanding that he committed the contravention offences while disengaged from psychological counselling. Therefore, even if he is compelled by lawful directions given pursuant to the conditions of the Supervision Order to participate in psychological counselling and intervention on a short term basis as an adjunct to antilibidinal therapy or even on a longer term basis while in the community he is, particularly bearing in mind his more recent interactions with Mr Summerton, highly unlikely to do so in a meaningful way. If he does not engage in psychological counselling and treatment in a meaningful way it is unlikely that such counselling or treatment will mitigate his risk of committing further serious offences. In addition, a failure by the respondent to engage in psychological counselling and treatment in a meaningful way will severely compromise the ability of those responsible for his supervision, monitoring and management in the community to monitor his mental state and to pick up any warning signs so far as his risk of reoffending is concerned.
As is apparent from the last of the above identified matters, I am not, on the material that is currently before me, satisfied that if the respondent is released on the proposed amended version of the Supervision Order he will consistently and meaningfully engage in psychological counselling.
The respondent has over a sustained period demonstrated an ambivalence towards meaningful engagement in psychological counselling. The respondent has made unambiguous statements to Ms Collyer to the effect that he is not interested in engaging in psychological counselling in a meaningful way. Further, it is clear from Ms Collyer's evidence viewed overall that she doubts the respondent's motivation to engage in psychological counselling for the purposes of achieving behavioural change. In these circumstances the mere fact that the respondent told Dr Wojnarowska during her interview with him on 12 August 2022 that he is willing to engage meaningfully in psychological counselling is insufficient to satisfy me that it is likely that he will do so if he is released on the Supervision Order.
I am not persuaded that the respondent's expressed attitude towards psychological counselling is solely attributable to his relationship with Mr Summerton having 'run its course'. Nor am I persuaded, in the absence of some clear demonstration of intent by the respondent, that his attitude in this respect is likely to dramatically change simply because he is provided with a different psychologist.
I accept that the respondent is willing to submit himself to psychological counselling to the extent that is necessary to enable him to continue with antilibidinal treatment (which according to Dr Wynn Owen will need to have been administered for approximately four months before any counselling can usefully begin). However, as is apparent from what I have already said, I am not currently satisfied that the respondent will do so in a way that will involve any meaningful and beneficial discussion in relation to issues that bear directly on his risk of reoffending such as his sexual deviancy and strategies for dealing with high risk situations.
In summary, when I take the above identified 14 matters into account in conjunction with each other I am not satisfied on the balance of probabilities that if the respondent is released on the Supervision Order, or an amended and/or extended version thereof, he will substantially comply with the standard condition that he not commit a serious offence, or more specifically a sexual offence against a female child, during the period of the order.
I note, as should in any event be apparent from what I have said, that my conclusion expressed in the previous paragraph is not inconsistent with the opinion evidence of Dr Wojnarowska given that one of the matters that has contributed to my conclusion is my failure to be satisfied that the respondent will, if released, meaningfully engage in psychological counselling, his meaningful engagement in counselling being, in Dr Wojnarowska's opinion, a pre-condition to him being able to be managed in the community.

Would an order amending, extending or affirming the Supervision Order ensure adequate protection of the community?

It necessarily follows from the conclusion expressed in the previous paragraph that I am also not satisfied that to release the respondent on the Supervision Order, or on an amended and/or extended version thereof, will ensure adequate protection of the community.

Continuing detention order

Given my above expressed conclusions it is necessary for me to rescind the Supervision Order and to make a continuing detention order.

What the respondent needs to do

As I have already indicated, the respondent has refused to accept not only some of the facts of the contravention offences as found by me but also that his commission of the offences was sexually motivated. If he has not done so yet, it is unlikely that he will do so in the future.
On the assumption that he will continue to maintain his current stance in relation to the contravention offences, it is my view that the respondent, in order to give himself the best possible chance of being released on a supervision order following the first review of the continuing detention order, needs to do the following. First, acknowledge and accept the chronicity and continued existence of his sexual interest in young female children (despite the embarrassment that he may experience as a result of doing so and even if his acknowledgment is not accompanied by an acceptance of the sexual motivation for his commission of the contravention offences). Second, acknowledge and accept that his sexual interest in young female children does render him a serious danger to the community. Third, recommence antilibidinal treatment. If the respondent recommences antilibidinal treatment during the next 12 months then by the time of the review of his detention the court should be in a position to assess whether the treatment has resulted in a steady state of testosterone suppression. Recommencement of antilibidinal treatment while the respondent is in custody will also enable adjunct psychological counselling to commence prior to the review of his detention. Fourth, re-engage in a meaningful way with psychological counselling and treatment with a view to developing strategies to manage and mitigate the risk that he poses. The respondent needs to abandon his dismissive attitude towards his deviant sexual interest and the need for psychological intervention. He needs to understand that acknowledgment of his sexual interest and his meaningful participation in counselling and treatment prior to the review of his detention in 12 months or so will significantly enhance his prospects of demonstrating that he will engage in counselling if he is released into the community, that he is capable of substantially complying with the standard conditions of a supervision order and that placing him on a supervision order with appropriate conditions will ensure the adequate protection of the community.

It follows from the last of my above suggestions for the respondent that it is imperative that the FPIT, despite the respondent's previously and currently expressed attitudes, assign to the respondent as quickly as possible a psychologist, other than Mr Summerton, so that the respondent is given the opportunity to commence engaging in psychological counselling in a meaningful way. The situation must not be allowed to arise whereby the opportunity for the respondent to engage in psychological counselling is not provided until only a short time prior to the review hearing. If the opportunity is afforded to the respondent and he does not take advantage of it, then he will have no one but himself to blame and will have to bear the consequences of his decision.

Accommodation

Attempts should be made, prior to the first review of the continuing detention order, to ensure a viable accommodation option for the respondent so that if he is found to be suitable for release on a supervision order the absence of accommodation will not prevent this from occurring.

Orders

Pursuant to s 55(1)(a) of the Act I rescind the Supervision Order and make a continuing detention order in relation to the respondent.

ANNEXURE A

PROPOSED SUPERVISION ORDER CONDITIONS

STANDARD CONDITIONS REQUIRED BY THE ACT

1.Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth Western Australia (WA) 6004 within 48 hours of being released to this Order and advise the officer of your current name and address;
2.Report to and receive visits from, a CCO as directed by the Court;
3.Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
4.Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32);
5.Not leave, or stay out of the State of WA without the permission of a CCO;
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 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.Be under the supervision of a CCO, report to, receive visits from a CCO at times and places as directed by the CCO and comply with the lawful orders and directions of a CCO;
11.Not commence or change paid or unpaid employment, volunteer work, education or training without the prior approval of the CCO;

Attendance at programs or treatment

12.Consult, engage and attend all appointments with any medical practitioner, psychiatrist, psychologist, mentor, 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;
14.Comply with the requirements of: Uniting WA, and all programs designed to assist you to perform daily living activities and/or reduce your risk of serious sexual re-offending, as directed by a CCO;

Reporting to WA Police

15.Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team or his/her delegate;
16.Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
17.lf requested, permit Police Officers to enter and search your residence and/or vehicle and search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order;
18.Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020;

Disclosure/Exchange of information

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

Restrictions on contact with victims

21.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;
22.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 serious 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 victims at all times;
23.Report to the CCO and WA Police any direct or indirect contact with the victims of your serious offending on the next working day you report to the CCO or Police;

Criminal conduct

24.Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;
25.Not commit an offence under s 202, s 203, s 204, s 557K Criminal Code 1913 (WA) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;
26.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
27.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 prescriber;
28.Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;

Curfew

29.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;
30.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;
31.When subject to a curfew under this Order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;

Medications/Mental Health

32.Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO;
33.Undertake any medication regime in accordance with a medical practitioner's direction, including pharmaceutical anti-libidinal and/or anti-depressant medication, which may be prescribed to you following the medical practitioner's consultation with a CCO, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;
34.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice;
35.Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease pharmaceutical anti-libidinal and or anti-depressant medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment;

Prevention of high-risk situations

36.With the exception of public transport, not to enter in or on any vehicle, including taxis and rideshare vehicles such as but not limited exclusively to Uber, where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by the CCO;
37.Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO;
38.Not purchase, or possess, or consume or use alcohol;
39.Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
40.Provide a valid sample pursuant to Condition 39;
41.Not to go, enter any part of your body inside, or remain at any licensed premises unless permitted or required to do so for the following reasons:
a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
b)For a purpose, and duration approved in advance by a CCO;
c)On the order of a CCO or Police Officer;

42.Not remain in the presence of any person who is affected by alcohol or prohibited substances, or who you ought to know is affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO;
43.Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the person/s consuming prohibited drugs from your residence;
44.Unless otherwise directed by a CCO, you must provide your projected daily movements to a CCO in writing at your supervision sessions each week. You must provide any additional projected movements that you are not able to provide in advance in writing in your supervision sessions and any proposed deviations from your projected movements verbally by telephone call to a CCO. You must provide your projected movements for any weekend to your CCO by 3.00pm on the Friday before that weekend. You must not undertake the movement unless you have been given verbal or written approval by your CCO in advance, with the exception of the following circumstances:
a)To obtain urgent medical or dental treatment for yourself;
b)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
c)To obey an order issued under a written law (such as a summons) requiring your presence elsewhere;
d)At the direction of a CCO and/or Police Officer.

45.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 upon request;
46.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);
47.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;
48.Provide the name, address, location and any details known by you, of any contact you have with a child under the age of 18 years and/or any association by you with a person who has a child/children under the age of 18 years in their care either full time or part time, to both your CCO and the Police on the next occasion you report to that person or agency;
49.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;
50.Not to form any domestic relationship with any person who has children under the age of 18 years in their care either full time or part time, without prior CCO approval;
51.Not access the internet for, conduct computer searches for, nor collect, or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not. Possession of such images depicting a child or children on items such as on household items (including but not only limited to grocery items and art) or your immediate family, may be authorised by a CCO. Immediate family means pictures of yourself, your siblings, your parents and your spouse only. 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;
52.Whilst in any public place or in view of a public place, not be in possession of any 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;
53.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;
54.Have no contact with, membership of, or affiliation with, clubs, associations or groups, where membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
55.Advise a CCO or Police Officer 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;
56.Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 55, without prior approval from your CCO. Enable device locking or password access of your computer, telecommunication and/or electronic devices. Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 55, or any online accounts, to any person other than a CCO or Police Officer;
57.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 mobile or landline telephone services used by you 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;
58.Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data or information including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police; and
59.Not to access online pornography, nor to be in possession of any pornographic material, in either hard-copy or digital form, or access or view pornography on the internet, unless authorised in advance from a CCO. Pornographic material means printed or visual or any medium of material that contains the explicit description or display of sexual organs or activity.

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
13 JANUARY 2023