The State of Western Australia v Brown [No 12] - [2024] WASC 419

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BROWN [No 12] [2024] WASC 419
CORAM:   STRK J
HEARD:   29 FEBRUARY 2024, 27 MARCH 2024, 23 APRIL 2024
DELIVERED          :   23 APRIL 2024
PUBLISHED           :   11 NOVEMBER 2024
FILE NO/S:   SO 13 of 2010
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ALWYN WAYNE BROWN
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Review of continuing detention order - Whether respondent remains a high risk serious offender - Whether continuing detention order or supervision order appropriate

Legislation:

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

Result:

Detention order made

Category: B

Representation:

Counsel:

Applicant	:	DS McDonnell
Respondent	:	AG Elliott

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Legal Aid (WA)

Cases referred to in decision:

Bell v State of Tasmania (2021) 96 ALJR 22; (2021) 395 ALR 589
Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405
Director of Public Prosecutions for Western Australia v Brown [No 2] [2011] WASC 191
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 7] [2014] WASC 398
Director of Public Prosecutions for Western Australia v Brown [No 8] [2015] WASC 390
Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226
Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1
Italiano v Western Australia [2009] WASCA 116
The Director of Public Prosecutions for Western Australia v Brown [2012] WASCA 102
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v Brown [No 10] [2020] WASC 476
The State of Western Australia v Brown [No 11] [2023] WASC 4
The State of Western Australia v Brown [No 9] [2017] WASC 355
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v MAM [2022] WASC 100
The State of Western Australia v Patrick [No 4] [2020] WASC 48
The State of Western Australia v Pendleton [2023] WASC 267
The State of Western Australia v UJG [No 2] [2023] WASC 77
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v Woodward [No 3] [2023] WASC 83
The State of Western Australia v ZSJ [2020] WASC 330
Vella v Commissioner of Police (NSW) (2019) 269 CLR 219

Table of Contents

Introduction

Background to the application

Relevant statutory provisions and applicable legal principles

Evidence

Antecedents and criminal history - s 7(3)(g)

Childhood and personal life

Education and employment

Relationships

Alcohol and substance abuse

Criminal record

Serious sexual offending and serious sexually motivated offending

Recent behaviour while subject to the continuing detention order

Responses to supervision

2013 contravention offences

2016 & 2017 contravention offences

2020 contravention offences

Propensity to commit serious offences in the future - s 7(3)(c)

Whether or not there is any pattern of offending behaviour - s 7(3)(d)

Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(e) and s 7(3)(f)

Treatment while subject to the continuing detention order

Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)

Dr Wojnarowska's report and evidence

Background information

History of offending

Recent behaviour in detention

Interview with the respondent

Psychiatric diagnosis

Risk assessment

Dr Peter Wynn Owen's report

Progress notes (medical) authored by Dr Wynn Owen

Psychological and other assessments - s 7(3)(b)

Ms Julie Dabala's community supervision assessment

Preparation for release

Proposed supervision order conditions

Past reports

Analysis and findings

The risk that, if the offender were not to remain subject to a restriction order, the offender would commit a serious offence

Is the risk that the respondent will commit a serious offence unacceptable?

The nature of the risk posed to the community

The likelihood of the respondent offending

The consequences to the respondent of making a finding that an unacceptable risk exists

If the risk remains unacceptable, is it necessary to affirm the restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence?

Should the continuing detention order be affirmed or should it be rescinded and a supervision order made?

Conclusion and orders

STRK J:

Introduction

On 4 August 2023 the State of Western Australia applied for an order that the respondent's detention under the continuing detention order made on 13 January 2023 be reviewed as soon as practicable after 22 January 2024 pursuant to s 64 of the High Risk Serious Offenders Act 2020 (WA). The hearing of the application took place on 29 February 2024, was adjourned part‑heard to 27 March 2024, and further adjourned to 23 April 2024.
Given the terms of s 68(1) of the High Risk Serious Offenders Act, the outcome of the application turned upon the answer to two questions. First, did the respondent remain a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act? Secondly, if the respondent did remain a high risk serious offender, should the continuing detention order be affirmed or should the continuing detention order be rescinded and a supervision order made?
It was the State's position that the respondent remained a high risk serious offender within the meaning of the High Risk Serious Offenders Act; and if the court was to so find, then the State submitted that the court ought to affirm the continuing detention order pursuant to s 68(1)(b)(i) of the High Risk Serious Offenders Act.[1]
[1] Submissions filed on behalf of the State, pars 3, 112.
Counsel for the respondent did not seek to persuade the court that the respondent did not remain a high risk serious offender within the meaning of the High Risk Serious Offenders Act,[2] but made submissions as to whether the court ought affirm the continuing detention order or make a supervision order.
[2] ts 498 (29 February 2024).
After the taking of evidence and hearing counsel on 29 February 2024, I considered there to be a lacuna in the evidence before the court with respect to whether anti-libidinal medication could safely be administered to the respondent once regard was had to his medical history and condition.[3] On 1 March 2024 orders were made to adjourn the hearing of the application part‑heard to 27 March 2024.[4] Pursuant to s 85 of the High Risk Serious Offenders Act, the court directed the Chief Executive Officer of the Department of Justice to engage Dr Peter Wynn Owen to prepare a report with respect to the respondent's clinical suitability for hormonal anti‑libidinal treatment; and to the extent that he was able, to opine as to the appropriateness of the respondent commencing such treatment.[5] Dr Wynn Owen is a consultant forensic psychiatrist and the Head of Clinical Service at the State Forensic Mental Health Service, and his report was filed with the court on 20 March 2024.
[3] ts 501 - 502, 510, 520 (29 February 2024).
[4] Order 1 of the orders made on 1 March 2024.
[5] Order 2 of the orders made on 1 March 2024.
At the resumed hearing on 27 March 2024, further evidence was adduced by the State and the hearing was further adjourned to 23 April 2024. It was contemplated that in the interim, Dr Wynn Owen would attend to the respondent so as to explain treatment options and effects of anti‑libidinal treatment for the purpose of ascertaining whether, with the benefit of that information, the respondent consented to such treatment. On 15 April 2024, the court was provided with progress notes that had been prepared by Dr Wynn Owen following his attendance on the respondent on 12 April 2024. Upon receipt of the progress notes, the State maintained its position that the court ought affirm the continuing detention order made on 13 January 2023. The progress notes were tendered and neither counsel sought to make further submissions at the resumed hearing on 23 April 2024.[6]
[6] ts 548 (23 April 2024); exhibit 6.
After weighing the submissions of counsel in light of all of the evidence adduced, I was satisfied that the respondent remained a high risk serious offender within the meaning of the High Risk Serious Offenders Act; and that the continuing detention order ought be affirmed pursuant to s 68(1)(b)(i). I indicated that I would publish my reasons for decision, which would be edited from transcript to correct infelicity of language, to include complete references to materials and evidence before the court, and to include complete citations of statute and authorities relied upon in the disposition of the application. Set out below are my reasons, together with my recommendations for the continuing care and treatment of the respondent.

Background to the application

The background to the application was summarised by the State at pars 1 to 20 of the written outline of submissions filed on 23 February 2024. The following overview substantively draws from the same.
As at April 2010 the respondent was in custody serving sentences of imprisonment for a number of 'serious sexual offences' as defined in the now repealed Dangerous Sexual Offenders Act 2006 (WA). The respondent was to cease to be under sentence of imprisonment for those offences on 26 June 2010.
On 27 April 2010 the Director of Public Prosecutions applied for a continuing detention order under s 17(1)(a) of the Dangerous Sexual Offenders Act, and on 23 December 2010 EM 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 Dangerous Sexual Offenders Act: Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405. The offences that the respondent had committed before that continuing detention order was made were described in his Honour's reasons at [10] to [31].
The continuing detention order made by EM Heenan J took effect from 23 December 2010,[7] and his Honour noted that the date of the first review would be 26 June 2011 because the respondent's detention was from 26 June 2010 under the provisions of the Dangerous Sexual Offenders Act.[8]
[7] As was noted by McLure P in The Director of Public Prosecutions for Western Australia v Brown [2012] WASCA 102 [8].
[8] Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405 [126]; as was noted by McLure P in The Director of Public Prosecutions for Western Australia v Brown [2012] WASCA 102 [10].
On 21 June 2011 EM Heenan J heard and determined an application made by the Director of Public Prosecutions for Western Australia concerning the review of the continuing detention order: Director of Public Prosecutions for Western Australia v Brown [No 2] [2011] WASC 191. In particular, his Honour considered when the review of the respondent's detention order as required by ss 29 and 31 of the Dangerous Sexual Offenders Act should occur.
On 12 July 2011 the Director of Public Prosecutions commenced an appeal, the primary issue of which was whether EM Hennan J had the requisite power to conduct a review of a continuing detention order made under s 17 of the Dangerous Sexual Offenders Act against the respondent before the expiration of one year from the time that the continuing detention order was made: The Director of Public Prosecutions for Western Australia v Brown [2012] WASCA 102. The appeal raised two issues of substance, being the proper construction of s 29(2)(a) of the Dangerous Sexual Offenders Act, and whether a continuing detention order could be backdated.
For the reasons delivered on 9 May 2012, the appeal was allowed and the Court of Appeal set aside the order made by EM Hennan J backdating the continuing detention order and the order that had been made refusing to rescind the continuing detention order. It was held that as EM Heenan J had no jurisdiction to conduct the review in August 2011, and that the review under s 29(2)(a) was to be conducted as soon as practicable from the making of the Court of Appeal's orders. The finding that the respondent was a serious danger to the community and the making of a continuing detention order in relation to him pursuant to s 17(1)(a) of the Dangerous Sexual Offenders Act were not disturbed on appeal.
On 1 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 Dangerous Sexual Offenders Act: Director of Public Prosecutions for Western Australia v Brown [No 5] [2012] WASC 276. The supervision order was very detailed. It contained 45 conditions.
The respondent was subsequently convicted of 11 offences of contravening the conditions of the supervision order made by McKechnie J (three offences related to breach of curfew, two related to having contact with a child under the age of 16, two related to failing to report the details of his contact with the children to his Community Corrections Officer and the police, two related to failing to attend counselling appointments, one related to consuming alcohol and one related to consuming cannabis) and sentenced to a total of seven months' imprisonment for the contraventions.
For reasons delivered on 26 April 2013, McKechnie J rescinded the supervision order that the respondent was at that time subject to, and made a continuing detention order in relation to him: Director of Public Prosecutions for Western Australia v Brown [No 6] [2013] WASC 148. While it was not suggested that the respondent had committed a sexual offence following his release to the community, as was observed by McKechnie J at [6] of his Honour's reasons, the contraventions of the supervision order were 'mostly serious'.
The Director of Public Prosecutions for Western Australia applied pursuant to s 29 of the Dangerous Sexual Offenders Act for review of the respondent's detention, and on 9 October 2014 Simmonds J made an order pursuant to s 33(2)(a) expressly declining to rescind the order made on 26 April 2013: Director of Public Prosecutions for Western Australia v Brown [No 7] [2014] WASC 398.
By an application made on 5 May 2015, the Director of Public Prosecutions for Western Australia again applied pursuant to s 29 of the Dangerous Sexual Offenders Act for review of the respondent's detention. On 15 October 2015 Martino J rescinded the continuing detention order and made a supervision order for a period of five years in relation to the respondent under s 33(2)(b): Director of Public Prosecutions for Western Australia v Brown[No 8] [2015] WASC 390.
On various dates in 2016 and 2017 the respondent was convicted in the Magistrates Court of five offences of contravening the supervision order made by Martino J (one related to breach of curfew, two related to failing to attend for a counselling appointment, one related to leaving his address without his handheld tracking device, and one related to use of methylamphetamine). The respondent committed the five offences during the period February 2016 to July 2016. He was sentenced to a total of eight months' imprisonment for the contraventions.
In March 2017 an application was made under s 23(1) of the Dangerous Sexual Offenders Act for a continuing detention order to be made in relation to the respondent, or in the alternative, for the supervision order to be amended. In December 2017, the supervision order was amended by Corboy J, and the length of the supervision order was also extended so as to operate for a period of seven years: The State of Western Australia v Brown[No 9] [2017] WASC 355.
In January 2020 the respondent was charged in the Magistrates Court with five offences of contravening, without reasonable excuse, the supervision order made by Martino J, as had been amended by Corboy J (three offences related to having contact with a child under the age of 16 without the authorisation of his Community Corrections Officer, and two offences related to failing to advise his Community Corrections Officer of contact that he had had with children under the age of 16 on the next occasion that he reported to his Community Corrections Officer).[9]
[9] As was recorded by Derrick J in The State of Western Australia v Brown [No 10] [2020] WASC 476 [10].
As a result of the respondent being charged with the five contravention offences, an application was made on 28 January 2020 under s 22 of the Dangerous Sexual Offenders Act for the rescission of the supervision order and the making of a continuing detention order in relation to the respondent; alternatively, the amendment of the conditions of the supervision order in such terms as the court thinks fit.
On 30 January 2020 Fiannaca J made an order under s 22(2) of the Dangerous Sexual Offenders Act detaining the respondent in custody until the determination of the application. The respondent was subsequently convicted of the five charged offences and sentenced to a total of three years' imprisonment backdated to 23 January 2020.[10] That sentence expired on 22 January 2023.[11]
[10] The facts of the contravention offences were set out in The State of Western Australia v Brown [No 11] [2023] WASC 4 [72].
[11] The State of Western Australia v Brown [No 11] [23].
The Dangerous Sexual Offenders Act was repealed and replaced by the High Risk Serious Offenders Act, which come into force on 26 August 2020. Pursuant to s 125 of the High Risk Serious Offenders Act, the orders made under the repealed legislation continued in effect and was taken to have been made under the corresponding provisions of the High Risk Serious Offenders Act.
On 13 December 2022 Derrick J heard an application made by the State under s 55(1)(a) of the High Risk Sexual Offenders Act for the rescission of the supervision order to which the respondent was then subject and for the making of a continuing detention order in such terms as the court thought fit. For reasons delivered on 13 January 2023 Derrick J rescinded the supervision order and made a continuing detention order in relation to the respondent: The State of Western Australia v Brown [No 11] [2023] WASC 4.
In making the continuing detention order, Derrick J was:[12]
(a)satisfied that the respondent had contravened conditions of a supervision order made in relation to him by Martino J on 15 October 2015 as amended by Corboy J on 7 December 2017;
(b)not satisfied on the balance of probabilities that the respondent would substantially comply with the standard condition of a supervision order that he not commit a serious offence (specifically a sexual offence against a female child); and
(c)not satisfied that releasing the respondent on a supervision order would ensure adequate protection of the community.
[12] The State of Western Australia v Brown [No 11] [253], [292] and [294].
At [296] to [298] of his reasons for decision, Derrick J made the following comments in relation to the respondent, and what the respondent might do so as to give himself the best prospects on review:
What the respondent needs to do
296 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.
297 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.
298 It follows from the last of my above suggestions for the respondent that it is imperative that the [Forensic Psychological Intervention Team], 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.

Derrick J also observed at [299] of his reasons that attempts should be made prior to the first review hearing to ensure a viable accommodation option for the respondent so that if he were found to be suitable for release on a supervision order, the absence of accommodation would not prevent release from occurring.
The hearing of the State's application filed on 4 August 2023 was the first review of the continuing detention order made by Derrick J on 13 January 2023.

Relevant statutory provisions and applicable legal principles

I did not understand there to be any dispute between the parties as to the law and the principles to be applied in undertaking this review. They have been set out in a number of decisions of this court, and comprehensively in The State of Western Australia v Woodward [No 3] [2023] WASC 83 [17] ‑ [40]. In undertaking this review, I applied the law and principles summarised by Derrick J, reproduced below:[13]
[13] All references to 'the Act' in the reproduced paragraphs of The State of Western Australia v Woodward [No 3] are references to the High Risk Serious Offenders Act. Footnotes have been omitted unless otherwise indicated.
17In relation to the applicable legal principles, in The State of Western Australia v ZSJ [[2020] WASC 330 [30] - [31]], a case in which the State made an application under div 2 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):
As will emerge from the outline below of the statutory framework under the DSO Act and [the Act], the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General. The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'. He went on to say:
'In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].'
Whether or not that has been achieved remains to be seen upon analysis of the provisions. However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying [the Act], with appropriate adaptation in cases involving non-sexual offences.
18 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 [[2022] HCA 30 [55], [103], [104], [106]] which addressed the constitutional validity of aspects of the Act, the case law decided under the DSO Act in relation to applications for review of continuing detention orders remains (with appropriate adaptation in cases involving non-sexual offences) relevant to the determination of such applications under the provisions 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.
19Section 63 of the Act provides:
The purpose of this Part is to ensure that an offender's detention under a continuing detention order is regularly reviewed.
20 Section 64 of the Act provides for the making by the State of an application for an offender's detention under a continuing detention order to be reviewed.
21 Section 66 of the Act provides for the hearing by the court of an application by the State for the review of an offender's detention under a continuing detention order.
22 Section 68 of the Act provides:
Review of detention under continuing detention order
(1) On a review under section 66 of an offender's detention –
(a) if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b) if the court finds that the offender remains a high risk serious offender it must –
(i) affirm the continuing detention order; or
(ii) subject to section 29, rescind the continuing detention order and make a supervision order.
(2) In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure the adequate protection of the community.
23 The definition of the term 'high risk serious offender' is contained in s 7(1) of the Act. Section 7(1) is in the following terms:
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
24 The term 'restriction order' is defined in s 3 of the Act to mean 'a continuing detention order' or 'a supervision order'. A 'continuing detention order' is 'an order that the offender be detained in custody for an indefinite term for control, care or treatment'. A 'supervision order' is 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate in accordance with s 30'.
25 As to the term 'serious offence' used in s 7(1), s 3 and s 5(1) of the Act provide that a 'serious offence' is an offence that is 'specified in Schedule 1 Division 1' of the Act, or 'is specified in Schedule 1 Division 2 and is committed in the circumstances indicated in relation to that offence in that Division'. Section 5(2) of the Act provides that an offence is a 'serious offence' if it was 'an offence under a written law that has been repealed and the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence' under s 5(1). Section 5(3) of the Act provides that an offence is a 'serious offence' if it is an 'attempt…to commit an offence that is a serious offence' under s 5(1) or s 5(2).
26 It follows from the definition of 'high risk serious offender' contained in s 7(1) that a finding under s 68(1)(b) that an offender 'remains a high risk serious offender', that is, a finding that it remains necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence, necessarily entails a finding that if the offender is not subject to a restriction order the community will not be adequately protected against an unacceptable risk that the offender will commit a serious offence.
27 If the court finds that an offender 'remains a high risk serious offender' it is not invested with a residual discretion to decline to make a restriction order. In these circumstances the question for the court is whether a continuing detention order or a supervision order should be made.
28 By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 68(1)(b) that the offender remains a high risk serious offender, it must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'. The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.
29 The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability. A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk. It is the necessity to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence that must be proved by acceptable and cogent evidence and to a high degree of probability.
30 Whether or not a risk that the offender will commit a serious offence is 'unacceptable' is a question that requires the court's judgment as to the likelihood of the offender committing the serious offence and the nature and extent of the harm that will be caused if the offender commits the serious offence. Further, whether a restriction order is 'necessary' to ensure adequate protection of the community against the 'unacceptable risk' requires consideration of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. Accordingly, the court is required to perform an evaluative exercise by considering whether, having regard to the likelihood of the offender offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the offender has already been punished for the offences they have committed, it is necessary in the interests of the community to ensure that they are subject to further control or detention. In addition, although the requirement of an evaluation under s 7(1) depends upon the offender having been convicted of a serious offence, s 7(1) and s 68 do not envisage the possibility that a finding that an offender remains a high risk serious offender might be made to prevent the commission of a serious offence, whether of the same kind or another kind, unless the risk of further offending involves a real threat of harm to the community.
31 By reason of s 68(2), if the court finds that the offender remains a high risk serious offender it is the need to ensure 'adequate' protection of the community that is to be the paramount consideration for the court in deciding whether to affirm the continuing detention order or to make a supervision order. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot be assumed that the most assured preventative action is detention and that therefore the protection of the community will always favour such an order. 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] [[2016] WASC 212 [33]] which, although made in relation to review proceedings under the DSO Act, are equally applicable to the operation of s 7(1) and s 68(2) of the Act:
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.
32 The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.
33 Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.
34 Section 7(3) of the Act specifies the matters that the court must have regard to in deciding if an offender is a high risk serious offender for the purposes of s 7(1). The matters specified are substantially identical to the matters that the court was, by s 7(3) of the DSO Act, required to have regard to in deciding whether a person was a 'serious danger to the community' within the meaning of the DSO Act. The matters are as follows:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
35 Although s 7(3)(g) provides that a court must have regard to the offender's criminal record in deciding whether the person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that they will commit a serious offence in the future if they are not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they have been committed. Nonetheless, past behaviour is often a good indicator of future conduct.
36 By s 68(1)(b)(ii) of the Act, the power of the court to rescind the continuing detention order and make a supervision order is expressed to be subject to s 29. Section 29 relevantly 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.
37 The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition that under s 30(2) of the Act must be included in the order. Section 30(2) of the Act specifies seven conditions that must be included in any supervision order.
38 Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions set out in s 30(2) of the Act before the court can make a supervision order in relation to them.
39 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 is consistent with, and will enable the attainment of, the general objects of a supervision order and the Act, specifically the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence. 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.
40 As to the purpose of a review hearing under the Act, the following statements made by Hall J in The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [[2019] WASC 359 [7] - [11]] in relation to the review process provided for under the DSO Act are apposite (footnotes omitted):
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending, rather it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be better managed in the community, then the continuing need for detention must be considered.
The risk of reoffending may change over time. It may be affected by age, health or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of the prison authorities to facilitate change by offering programs and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, merely a welfare check, rather they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.
In addition to the passages reproduced above, I noted as follows.
Further to [25] of Derrick J's reasons (reproduced above), a 'serious offence' is an offence that is specified in sch 1 div 1 of the High Risk Serious Offenders Act, or is specified in sch 1 div 2 and is committed in circumstances indicated in relation to that offence in div 2.[14] Schedule 1 comprises a list of serious violent and sexual offences, the majority of which attract a maximum penalty of imprisonment of seven years or more. In relation to sexual offences, the offences set out in sch 1 div 1 include all offences formerly defined as 'serious sexual offences' under the Dangerous Sexual Offenders Act.
[14] High Risk Serious Offenders Act s 3, s 5(1) and s 5(2).

Since the court must assess the risk that the offender will commit 'a serious offence', the application must specify the serious offence within sch 1 to the High Risk Serious Offenders Act which the State alleges there is an unacceptable risk that the offender will commit.[15]
[15] Garlett v The State of Western Australia [2022] HCA 30; (2022) 277 CLR 1 [219] (Edelman J), citing Bell v State of Tasmania (2021) 96 ALJR 22; (2021) 395 ALR 589 [100] (Edelman & Gleeson JJ).
By s 7(1) and s 7(2) of the High Risk Serious Offenders Act, before a restriction order can be made, the State has the onus of proving that it is 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' against an 'unacceptable' risk.[16] I note that 'community' is defined in terms that include 'any community' and is not limited to the community of Western Australia or Australia.[17]
[16] Garlett v The State of Western Australia [220] (Edelman J).
[17] High Risk Serious Offenders Act s 4(1); The State of Western Australia v Pendleton [2023] WASC 267 [51], [224] - [227].
Section 82(1) provides that proceedings under the High Risk Serious Offenders Act, or on an appeal under the High Risk Serious Offenders Act, are taken to be criminal proceedings for all purposes. However, anything that is to be evidenced for the purposes of the High Risk Serious Offenders Act need not be evidenced to a higher standard than is required by s 7(1).[18]
[18] High Risk Serious Offenders Act s 82(2).
Finally, I note that if upon review a respondent is found to remain a high risk serious offender, the court does not approach the application with a predisposition to affirm the continuing detention order. Again, in deciding whether to affirm the continuing detention order or to rescind it and make a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[19]
[19] High Risk Serious Offenders Act s 68(2).

Evidence

At the hearing of this application on 29 February 2024, I received into evidence a book of materials in two volumes. The first volume was dated 7 November 2023. The second volume was dated 8 February 2024. Together the two books of materials comprise over 360 pages.
The first volume contained materials provided by the Department of Justice, which included a copy of the State's application for review; the respondent's criminal record; a chronology of offending prepared by the State dated 7 November 2023; the decision of EM Heenan J delivered on 23 December 2010: Director of Public Prosecutions for Western Australia v Brown [2010] WASC 405; the decision of Martino J delivered on 15 October 2015: Director of Public Prosecutions for Western Australia v Brown [No 8] [2015] WASC 390; various Department of Justice prison records; individual management plans with decision date 27 January 2023 and 13 July 2023; medical progress notes and substance use test results. The first volume also contained a copy of reports prepared for previous hearings under the Dangerous Sexual Offenders Act and the High Risk Serious Offenders Act (with preparation dates ranging from June 2010 to September 2015).
The second volume also contained a copy of reports prepared for previous hearings under the Dangerous Sexual Offenders Act and the High Risk Serious Offenders Act (with preparation dates ranging from February 2010 to November 2022), and a copy of the reports prepared for the purposes of this application.
On 29 February 2024 the State also tendered into evidence the Desktop Spatial Analysis that had been received in relation to accommodation proposed for the respondent, should he be released on a supervision order.[20] This was included in an email communication sent by Aimee Stacey Elise Goode, a Team Leader within the Community Offender Monitoring Unit of the Department of Justice, sent to the State Solicitor's Office on 26 February 2024.
[20] Exhibit 3.
On 29 February 2024 the State also tendered a bundle of three documents which were prison medical records concerning the respondent.[21]
[21] Exhibit 4.
On 27 March 2024 the State tendered a letter titled 'Re Mr Alwyn BROWN_suitability for antilibidinal therapy' dated 15 March 2024 prepared by Dr Wynn Owen, a consultant forensic psychiatrist and the Head of Clinical Services at the State Forensic Mental Health Service.[22]
[22] Exhibit 5.
Without objection, on 23 April 2024 the court also received into evidence a document titled 'Progress Notes', which were prepared by Dr Wynn Owen and dated 12 April 2024.[23]
[23] Exhibit 6.
On 27 February 2024 the State called three witnesses who gave evidence. They were as follows:
(a)Dr Gosia Eva Wojnarowska, a forensic consultant psychiatrist and author of the psychiatric report dated 22 January 2024;
(b)Julie Dabala, a Senior Community Corrections Officer within the Community Offender Monitoring Unit of the Department of Justice. Ms Dabala was the author of and one of the three signatories to a community supervision assessment report dated 7 February 2024; and
(c)Chantelle Place, the Acting Manager of the Forensic Assessment Team within the Department of Justice and the author of a letter titled 'Treatment Progress Report for Court' dated 16 January 2024.
On 27 March 2024 the State called Ms Goode in her capacity as a Team Leader within the Community Offender Monitoring Unit of the Department of Justice to give evidence.[24]
[24] ts 524 - 531 (27 March 2024).
In advance of the hearing, counsel for the State filed a written outline of submissions dated 23 February 2024, together with a minute of proposed detention order and a minute of proposed supervision order.
During the course of the hearing, the respondent did not give evidence and no documentary evidence was tendered on behalf of the respondent. The findings therefore were grounded upon the documentary evidence, including the reports received, the evidence of the four witnesses called on behalf of the State and the cross‑examination of the State's witnesses.

Antecedents and criminal history - s 7(3)(g)

I now turn to the matters that were relevant to determining whether or not the respondent remained a high risk serious offender pursuant to s 7 of the High Risk Serious Offenders Act. In so deciding, I was cognisant that the court was required to have regard to the person's antecedents and criminal record. That required all prior offences to be considered, to the extent that such offences were relevant to the question of whether the respondent was a high risk serious offender within the meaning of the High Risk Serious Offenders Act (whether they be serious offences or not). It also required consideration of the person's antecedents, including the context in which the past offences were committed.[25]
[25] As observed by McGrath J in The State of Western Australia v UJG [No 2] [2023] WASC 77 [35].
For the purposes of the review hearing, the criminal record and antecedents were relevant in and of themselves but were also relevant to the question of whether the respondent has a propensity to commit serious offences in the future. Furthermore, the criminal record and antecedents were relevant in ascertaining whether there was any pattern of offending behaviour.[26] It was therefore convenient to first consider the respondent's antecedents and criminal history as required by s 7(3)(g).

Childhood and personal life

[26] Again, as observed by McGrath J in The State of Western Australia v UJG [No 2] [36], referring to the High Risk Serious Offenders Act s 7(3)(c) and s 7(3)(d).

The respondent was born on 8 July 1970. He had previously reported that he was the third eldest of eight children to the same mother.[27]
[27] Exhibit 1, book of materials vol 1, page 146 (Psychiatric report prepared by Dr S Febbo dated 13 June 2010, page 38). Some of the documentary evidence refers to the respondent as having been born on 8 July 1971.
Dr Wojnarowska in her report noted that the respondent has a well-documented history of abandonment, and psychological and physical neglect as a child which he has attempted to address in his individual counselling. She recorded that themes of abandonment and maltreatment had endured in his formative years and continue to have a negative impact on his psychological functioning. Dr Wojnarowska further recorded that there was a reported history of child sexual abuse.[28]

Education and employment

[28] Exhibit 2, book of materials vol 2, pages 337 and 343 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024, pars 40 and 77).

I understood that the respondent had begun doing seasonal work around the age of 15 or 16. He worked between six to seven months a year, depending on work availability, for four or five years until he was approximately the age of 21. I understood that the respondent then joined his younger brother in working for a company as a 'designer', and commenced an apprenticeship as a screen printer. The respondent left the apprenticeship around the age of 24, returning to seasonal work in conjunction to which he received unemployment benefits. He moved to Broome at the age of 28 and did not work, having reported that he preferred to receive unemployment benefits.[29]
[29] Exhibit 1, book of materials vol 1, pages 115, 149 and 150 (Psychiatric report prepared by Dr S Febbo dated 13 June 2010, pages 7, 41 - 42).
While in a custodial setting, Dr Wojnarowska reported that the respondent had been employed as a peer support worker and was receiving level 2 gratuities. The respondent reported that he had been asked to paint murals. Dr Wojnarowska reported that the respondent enjoys both jobs as they are 'meaningful and important'.[30] I considered the respondent's recent conduct with respect to work to be promising, noting that Dr Wojnarowska had observed that his employment as a peer support worker gave him 'a lot of satisfaction and pride'.[31]
[30] Exhibit 2, book of materials vol 2, pages 336 and 337 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024, par 33).
[31] ts 453 (29 February 2024).
At the hearing of the State's application the respondent was 54 years of age, and while his enthusiasm for employment was encouraging, I was cognisant that the respondent had not been employed outside of a detention setting for about 30 years. I accepted Dr Wojnarowska's observations that the respondent has a poor work history and his status as a sex offender is likely to be an obstacle to him gaining paid employment. I also accepted that the respondent would require supports and careful consideration would need to be given as to the type of employment that would be feasible for him.[32]

Relationships

[32] Exhibit 2, book of materials vol 2, page 341 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024, par 65).

The respondent has a very limited network and no family support. While subject to the continuing detention order, the respondent had no social visits. His family reside in New South Wales.[33]
[33] ts 455 (29 February 2024).
Dr Wojnarowska reported that the respondent feels lonely with only one friend outside his family who is a retired outreach worker.[34] His only other available community support is Uniting WA.[35]
[34] Exhibit 2, book of materials vol 2, page 338 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024, par 41); ts 456 (29 February 2024).
[35] Exhibit 2, book of materials vol 2, page 353 (Community Supervision Assessment report prepared by J Dabala dated 7 February 2024).
Ms Dabala reported that the respondent expressed that he felt that his life had 'gone downhill' when his former partner and her child were 'taken away from him'. Ms Dabala reported that the Department of Communities, Child Protection and Family Support had become involved with the respondent and his former partner in July 2019 when the Community Offender Monitoring Unit was informed of his former partner's pregnancy.[36]
[36] Exhibit 2, book of materials vol 2, page 350 (Community supervision assessment prepared by J Dabala dated 7 February 2024, page 3); ts 491 (29 February 2024).
Dr Wojnarowska reported that the respondent acknowledged that his former partner's child is not biologically his, and had also acknowledged that his previous plan of living with his former partner was no longer realistic. Further, Dr Wojnarowska reported that the respondent had agreed that his relationship with his former partner has no future given that she had relapsed into substance use and her child was now in the care of the Department of Communities, Child Protection and Family Support.[37]
[37] Exhibit 2, book of materials vol 2, page 337 (Psychiatric report prepared by Dr Wojnarowska dated 22 January 2024, par 35).
Dr Wojnarowska reported that the respondent indicated that he would like to meet someone in the community but did not know how he could achieve this and expressed worry that he may commit suicide due to his loneliness.[38] The respondent had also reported to Dr Wojnarowska that he held the belief that having someone with him all of the time would prevent him from feeling lonely.[39]

Alcohol and substance abuse

[38] Exhibit 2, book of materials vol 2, page 338 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024, par 42).

[39] Exhibit 2, book of materials vol 2, page 338 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024, par 43).

Alcohol and substance use were a common theme in the respondent's offending prior to 2017. It was Dr Wojnarowska's opinion that alcohol was a factor in the respondent's risk matrix.[40]
[40] ts 469 (29 February 2024).
The respondent commenced drinking around the age of 15 or 16 and continued to drink 'every day, all day' until the age of 21.[41] He reported drinking to the point of intoxication on a daily basis; that while there had been a decrease in his drinking in his early twenties, he continued to binge-drink on weekends; that when he moved to Broome there was a further decrease in his alcohol consumption, to the point where his binge‑drinking occurred twice a month; to having a total of six alcohol related blackouts; that he commenced using cannabis at the age of nine; and to the increased use of the substance to the point that he smoked in the region of 30 cones daily as of 2010.[42]
[41] Exhibit 1, book of materials vol 1, page 145 (Psychiatric report prepared by Dr S Febbo dated 13 June 2010, page 37).
[42] Exhibit 1, book of materials vol 1, page 146 (Psychiatric report prepared by Dr S Febbo dated 13 June 2010, page 38).
As was recorded by Derrick J in The State of Western Australia v Brown [No 11] at [100], the respondent has been subjected to regular urinalysis testing since being returned to prison in January 2020. All of the tests returned negative results to illicit substances.
Since January 2020 the respondent had provided thirteen urinalysis samples, all returning negative results. The respondent submitted a sample for drug testing on 13 March 2022 which indicated a negative result to illicit substances.[43]
[43] Exhibit 2, book of materials vol 2, page 352 (Community supervision assessment prepared by J Dabala dated 7 February 2024, page 5).
Dr Wojnarowska reported that when questioned about his substance use, the respondent denied having cravings for illicit substances or alcohol but acknowledged that ceasing tobacco use was difficult. She also recorded that the respondent expressed the view that remaining abstinent from illicit substances would not be difficult to achieve.[44]
[44] Exhibit 2, book of materials vol 2, page 337 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024, par 37).
Dr Wojnarowska recorded at paragraph 64 of the report she prepared for this hearing that the respondent did not use illicit substances while in the community most recently; that he had managed over two years in the community abiding by the supervision order conditions that had been imposed; and that his ability to cope with boredom and loneliness had collapsed after he was unable to see his partner regularly, which resulted in a rapid re‑emergence of maladaptive behaviours. Dr Wojnarowska also opined that the respondent's recent engagement with peer support work and reported satisfaction from helping others was a positive sign of the respondent developing mature ways to deal with every day stressors, which may protect him from relapsing into drug use and offending.[45]

Criminal record

[45] Exhibit 2, book of materials vol 2, page 341 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024, par 64); see also ts 457 (29 February 2024).

The respondent has an extensive criminal history. Included in the materials tendered on behalf of the State was a criminal history report which recorded the respondent's first offence date as being 9 February 1999. For the purpose of this review hearing, the State prepared a chronology of serious and other relevant offending dated 7 November 2023 and I had regard to the same.[46]

Serious sexual offending and serious sexually motivated offending

[46] Exhibit 1, book of materials vol 1, pages 8 - 11.

The facts of the respondent's prior sexual offending involving children were set out in detail most recently by Derrick J in The State of Western Australia v Brown [No 10] at [197] to [216]. I had regard to the same as if reproduced here in full. In The State of Western Australia v Brown [No 11] at [66] to [70], Derrick J summarised the respondent's criminal history with respect to sexual offending, which summary I reproduce below:
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.
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.

Recent behaviour while subject to the continuing detention order

Dr Wojnarowska recorded that the respondent had no adverse reports regarding his behaviour or level of engagement with staff and peers. The respondent reportedly has followed directions, presented as agreeable, has built a rapport with, and is respected, by his peers.[47]
[47] Exhibit 2, book of materials vol 2, page 336 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024, pars 30 - 31).
As noted above at [64], the respondent had not returned any positive urinalysis test during his period of detention since January 2020.

Responses to supervision

The respondent has convictions for offences of contravening the conditions of supervision orders to which he has been subject.

2013 contravention offences

In April 2013 the respondent was convicted of offences of contravening the conditions of the supervision order made by McKechnie J in August 2012. 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 Community Corrections Officer and the police; two offences of failing to attend counselling appointments; one offence of consuming alcohol; and one offence of consuming cannabis. McKechnie J sentenced the respondent to a total of seven months' imprisonment for the offences (sentences of seven months' imprisonment being imposed for each of the offences of having contact with a child and failing to report the contact).[48] 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.[49]
[48] Director of Public Prosecutions for Western Australia v Brown[No 6] [12], [54] - [59].
[49] Director of Public Prosecutions for Western Australia v Brown [No 6] [115] - [116], and [107], as noted by Derrick J in The State of Western Australia v Brown [No 11] [50].

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 with whom he was in a relationship. The two boys were aged three years and 18 months and the girl was aged three years. The contacts occurred while the respondent was in the company of that partner. 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.[50]

2016 & 2017 contravention offences

[50] Director of Public Prosecutions for Western Australia v Brown [No 6] [12], [55]-[56], [113], as summarised by Derrick J in The State of Western Australia v Brown [No 11] [51].

After being released again on a supervision order in October 2015, on various dates in 2016 the respondent was convicted in the Magistrates Court of five offences of contravening the supervision order to which he was subject. The respondent committed the offences during the period February 2016 to July 2016.[51]
[51] The State of Western Australia v Brown [No 9] [16] - [25], as noted by Derrick J in The State of Western Australia v Brown [No 11] [56].
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.

2020 contravention offences

The supervision order to which the respondent had been subject, made by Martino J in October 2015, which in December 2017 was amended by Corboy J, included condition 42 that provided the respondent was not to have contact with any child under the age of 16 years unless the contact was authorised in advance by a Community Corrections Officer, and such authorised contact was to be supervised at all times by an adult approved in advance by a Community Corrections Officer; and condition 44 that provided the respondent was required to give details of any contact with a child under the age of 16 years to a Community Corrections Officer and to the police on the next occasion that he reported to that person or agency.
The respondent pleaded guilty to, and was convicted of, five charged offences: 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 Community Corrections Officer (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 Community Corrections Officer of contact that he had had with children under the age of 16 on the next occasion that he reported to his Community Corrections Officer (PE 4007/2020 and PE 5195/2020).
In sentencing the respondent for the contravention offences, Derrick J stated in detail the facts of the offences as found following the trial of issues. His Honour's statement of the facts of the contravention offences was as follows:[52]
[52] 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.
In his Honour's reasons for decision in the contravention proceedings, as to the status of the respondent's anti-libidinal treatment, his Honour recorded as follows:[53]
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.
[53] The State of Western Australia v Brown [No 11] [284].
The respondent became eligible for parole on 23 July 2021 with respect to his sentence for contravention offences. On 8 July 2021, he requested that he not be released on parole, and accordingly parole was denied.[54]
[54] The State of Western Australia v Brown [No 11] [21].
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.[55]
[55] The State of Western Australia v Brown [No 11] [22].

Propensity to commit serious offences in the future - s 7(3)(c)

The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law, that is, to have an inclination or tendency to do something.[56] In Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 at [178], in the context of an application made under the Dangerous Sexual Offenders Act, Murray AJA stated that:
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[56] The State of Western Australia v Bellamy [2013] WASC 467 [70] (Simmonds J) citing Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226.
The respondent has committed a number of very serious sexual offences against young female children, although the last was committed many years ago. The more recent contravention offences include conduct with a sexual intention, that is, with the intention of performing a sexual act against, or in the presence of, young female children. The respondent has an established propensity to commit such offences.

Whether or not there is any pattern of offending behaviour - s 7(3)(d)

'Pattern', as it pertains to behaviour, is defined in the Macquarie online dictionary as a recurrent way of acting by an individual or group towards a given object or in a given situation.
I considered there to be a clear pattern to the respondent's offending behaviour, in that the respondent's conduct revealed that he had repeatedly sought out young girls, making repeated attempts to engage with them, seeking to persuade them to follow him into a secluded area (if necessary by force), and then engaging them in sexual acts.

Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(e) and s 7(3)(f)

I considered whether the respondent had made efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs, and whether or not such participation had had a positive effect.
After being incarcerated around 1999, the respondent engaged in a range of treatment programs, including an intensive sex offender treatment program in 2004 and 2005, and again in 2006 and 2007.[57] When the respondent was made subject to a continuing detention order in 2010 under the Dangerous Sexual Offenders Act, he commenced treatment with Dr Tamala Caple and attended 13 individual counselling sessions. In about 2011 he commenced treatment with counselling psychologist David Summerton.[58]
[57] Exhibit 2, book of materials vol 2, page 290 (Psychological intervention report prepared by D Summerton dated 26 October 2020, par 8).
[58] Exhibit 2, book of materials vol 2, pages 288 and 290 (Psychological intervention report prepared by D Summerton dated 26 October 2020, pars 2 and 8).
In a report prepared by Mr Summerton dated 26 October 2020, he reported that from September 2011 the respondent attended 37 counselling sessions prior to his release in August 2012; attended 21 sessions while subject to a supervision order under the Dangerous Sexual Offenders Act prior to return to prison in March 2013; attended a further 65 sessions while in prison and leading up to his re‑release in October 2015; attended a further 29 sessions while in the community before again being returned to prison in August 2016; attended a further 19 sessions before he was again released subject to a supervision order; and attended 26 sessions while in the community prior to his return to prison in January 2020.
Mr Summerton recorded that the respondent had attended 197 sessions over an approximate eight year period. Although counselling was officially terminated in April 2019, the respondent had attended a further four sessions at his request and subsequently as a result of referral by his Senior Community Corrections Officer.[59]
[59] Exhibit 2, book of materials vol 2, page 288 (Psychological intervention report prepared by D Summerton dated 26 October 2020, par 2).
In his report prepared in October 2020, Mr Summerton expressed the view that the respondent had made limited treatment gains through his participation in programs or by individual counselling. Among other things, he observed that the upshot of the respondent's insistent denial of any current deviant interest when the topic was broached, either in counselling or in supervision, was that meaningful intervention was not possible.[60]
[60] Exhibit 2, book of materials vol 2, page 292 (Psychological intervention report prepared by D Summerton dated 26 October 2020, par 14).
While I accepted that the respondent had made some effort to address the cause or causes of his offending behaviour, including by participating in individual counselling and rehabilitation programs, his propensity to commit serious offences as against young females had not been subdued or controlled by successful treatment.

Finally, I was cognisant that in the opinion of Dr Wojnarowska, the respondent's unwillingness to accept his interest in young female children did not (of itself) increase his risk of offending.[124] I accepted the same for the purposes of this analysis.

The consequences to the respondent of making a finding that an unacceptable risk exists

[124] ts 463 - 464, 475 (29 February 2024).

I was cognisant that upon the restriction order being affirmed, serious consequences would be visited upon the respondent.
First, the court could not be assured that the respondent would be afforded the opportunity to participate in treatment to address the cause or causes of his offending behaviour if upon the restriction order being affirmed, the respondent was to remain subject to a continuing detention order.
As noted above, at the hearing of this application it was noted on behalf of the State that the respondent had not participated in any further treatment intervention since the imposition of the continuing detention order in January 2023.[125] This was not a consequence of resistance on the part of the respondent, but as a consequence of a decision made by the Forensic Psychological Intervention Team to proceed in a manner contrary to that which Derrick J had described as being imperative.
[125] Submissions filed on behalf of the State, par 75.
If the respondent was to remain subject to a continuing detention order, and again remain untreated, the inability to demonstrate that he had made an effort to address the cause or causes of his offending behaviour while subject to a continuing detention order might (again) curtail his ability to demonstrate to the requisite standard at the next review that he will substantially comply with the standard conditions of a supervision order.
Secondly, the respondent's desire to be released from detention was clear, however, a supervision order would (at least at the outset) significantly restrict the respondent's ability to interact and engage in the community. While Dr Wojnarowska did not observe suicidal ideation in the respondent, she did record that he had expressed some fears about his risk of committing suicide due to loneliness and a lack of meaningful relationships in the community.[126] Further, if the restriction order were affirmed, the respondent would not readily be able to return to his family in New South Wales.
[126] Exhibit 2, book of materials vol 2, page 344 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024, par 84).
Thirdly, I noted that Ms Dabala reported that the respondent felt anxiety when required to attend appointments with his Community Corrections Officer, his psychologist and the serious offender management squad.[127]
[127] Exhibit 2, book of materials vol 2, page 351 (Community supervision assessment prepared by J Dabala dated 7 February 2024, page 4).
Fourthly, the respondent has reported a desire to gain employment and has performed well in roles within a detention setting. If the restriction order was affirmed and he was released subject to a supervision order, I was also cognisant that the restrictions would likely further curtail the already limited employment opportunities available to the respondent.
In determining whether the risk posed by the respondent remained 'unacceptable', I weighed in the balance the gravity and nature of the risk posed by the respondent and the likelihood of that risk materialising on the one hand, and the serious consequences for the respondent on the other (described above). I did so having regard to the need to ensure adequate protection for the community.
Weighing all of these matters in the balance and the need to ensure adequate protection for the community, I was satisfied to a high degree of probability that the respondent continued to pose a risk that was 'unacceptable'.

If the risk remains unacceptable, is it necessary to affirm the restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence?

The legislative scheme requires that regard be had to the need to protect members of the community from the risk: s 7(3)(i). Again, this called for a conclusion or findings based on the matters listed in s 7(3)(a) ‑ (g) and (j).
I was cognisant that a finding of unacceptable risk was not determinative of a restriction order application, and the court might find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it had found that the risk of future offending was unacceptable.[128]
[128] The State of Western Australia v Garlett [136(d)], as noted by Quinlan CJ in The State of Western Australia v D'Rozario [No 3] [21].
If the restriction order was not affirmed, the respondent would be released and would not be subject to any order, condition or supervision. This was a consequence that weighed heavily in the balance.
Having regard to all matters specified in s 7(3) of the High Risk Serious Offenders Act to which I referred to in these reasons, and notwithstanding that the respondent had already been punished for the offences he had committed, I was satisfied to a high degree of probability that the risk of the respondent committing a serious offence of the type I identified was unacceptable, and that it was necessary to make a continuing detention order or a supervision order in relation to the respondent to ensure adequate protection of the community against the risk. That is, I found that if the respondent did not remain subject to a restriction order, the community would not be adequately protected against the unacceptable risk that he will commit a serious offence. It follows that I found that the respondent remained a high risk serious offender and that it was necessary to affirm the restriction order.

Should the continuing detention order be affirmed or should it be rescinded and a supervision order made?

Having decided that the respondent remained a high risk serious offender, I proceeded on the basis that I was required to either affirm the continuing detention order or, subject to s 29, rescind the continuing detention order and make a supervision order.[129] I was cognisant that if the court finds that an offender remains a high risk serious offender, it is not invested with a residual discretion to decline to make a restriction order.[130]
[129] High Risk Serious Offenders Act s 68(1).
[130] Garlett v The State of Western Australia [72].
In considering whether a supervision order would adequately protect the community, it was necessary to take into account any conditions which could be placed on the respondent by operation of a supervision order so as to ensure adequate protection of the community, the respondent's rehabilitation, care and treatment, and to ensure adequate protection of complainants of offences committed by the respondent.[131] I was also required to be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the order as required under s 29 of the High Risk Serious Offenders Act. This required me to be satisfied that the respondent would comply with the standard conditions in a manner and to an extent that would ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[132] The standard conditions are those contained in s 30(2) of the High Risk Serious Offenders Act and include reporting, supervision and electronic monitoring. The onus was on the respondent to satisfy the court that he would so comply.[133]
[131] High Risk Serious Offenders Act s 30(5).
[132] Director of Public Prosecutions (WA) 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 [2020] WASC 330 [56] ‑ [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] ‑ [111]; and The State of Western Australia v MAM [2022] WASC 100 [165].
[133] High Risk Serious Offenders Act s 29(1) and (2).
As I have noted above, even if the court was satisfied that the respondent would substantially comply with the standard conditions of a supervision order, the court would be required to affirm the continuing detention order if it was not satisfied that conditional release under a supervision order would ensure an adequate degree of protection to the community. That is, in deciding whether to affirm the continuing detention order or to rescind it and make a supervision order, the paramount consideration was the need to ensure adequate protection of the community.[134] Further, I proceeded on the basis that I was required to choose the order that was the least invasive to the respondent's liberty while ensuring an adequate degree of protection for the community.
[134] High Risk Serious Offenders Act s 68(2).
Save for the effluxion of time, the position of the respondent at the determination of the review application was not markedly different from when the contravention proceeding was determined by Derrick J in January 2023.
As Derrick J had observed at [268] of his published reasons, the respondent had been 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, the respondent failed to comply with conditions of the supervision order on seven occasions. Further, the respondent had a significant history of contravening supervision orders (prior to his commission of the contravention offences that led to the contravention proceeding before Derrick J, he had been convicted of 16 offences of contravening a supervision order).
Albeit consistent with the finding of Derrick J, when I independently weighed the evidence led in the course of the review hearing, when I viewed 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 was satisfied on the balance of probabilities that if the respondent was permitted to remain in the community on a supervision order in the form suggested by Ms Dabala, he would substantially comply with the standard conditions specified in s 30(2)(a) - s 30(2)(e) and s 30(2)(g) of the High Risk Serious Offenders Act. That again left the standard condition specified in s 30(2)(f) of the High Risk Serious Offenders Act, and when regard was had to the same, I considered the application to be finely balanced.
As had been the case in January 2023, if released on a supervision order, stable accommodation in the community was again available to the respondent. I accepted that the accommodation available was suitable if not ideal (noting that accommodation for high risk serious offenders is rarely ideal), and the availability of accommodation was a factor that weighed in favour of the imposition of a supervision order.
I had regard to the opinion expressed by Dr Wojnarowska. It was Dr Wojnarowska's evidence that it remained her opinion that the risk of the respondent committing a serious offence could be managed in the community under a supervision order, provided that he receive anti-libidinal treatment and was to engage meaningfully in psychological counselling.[135] Dr Wojnarowska's opinion was well reasoned and her evidence also weighed in favour of the imposition of a supervision order.
[135] ts 447 (29 February 2024).
I weighed in the balance that the respondent had expressed to Dr Wojnarowska the desire not to offend sexually, that Dr Wojnarowska had considered that the respondent appeared genuine in that expression of desire, and that expression was a positive factor.[136]
[136] ts 454 (29 February 2024).
I also weighed in the balance that when last released on a supervision order, and while the respondent had been in a stable, prosocial relationship, the respondent had demonstrated some success in complying with the supervision order that was then in place.
However, when I gave full weight to these matters and took 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 supervision order as proposed by Ms Dabala, I was not satisfied to the requisite standard that if the respondent were released on a supervision order that he would not commit a serious offence, that is, a sexual offence against a young female child, during the period of the order.
Dr Wojnarowska had opined that should the respondent be released to the community, psychological treatment may mitigate to some degree his risk of reoffending as it would provide an additional avenue to monitor the respondent's mental state and provide him with a degree of support.[137] I accepted this to be the case. She also expressed in her report concern that the respondent was not engaged in psychological counselling and had not been prescribed anti-libidinal medications, which elevates his risk of reoffending.[138] I shared this concern. In the course of her evidence, Dr Wojnarowska acknowledged that Mr Summerton had expressed the view that 'there was a level of saturation within the prison environment in relation to treatment',[139] and expressed the view that once released into the community psychological counselling could recommence.[140] I was cognisant of this evidence.
[137] Exhibit 2, book of materials vol 2, page 347 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024 par 104), reproduced at [143] above.
[138] Exhibit 2, book of materials vol 2, page 346 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024 par 100), reproduced at [142] above.
[139] ts 447, 465 (29 February 2024).
[140] ts 447 (29 February 2024).
In his recent period of detention, the respondent was not afforded the opportunity to engage in psychological counselling, nor was he meaningfully assisted in securing the appointments necessary to be assessed as to the appropriateness of commencing anti-libidinal treatment. As a consequence, other than assurances by the respondent, there was no evidence of demonstrated engagement by the respondent in psychological counselling, nor was there evidence of any positive change or self‑reflection on the part of the respondent. Further, there was not sufficient evidence that if the respondent was released on a supervision order in the form proposed, that he would consistently and meaningfully engage in psychological counselling, in conjunction with anti‑libidinal treatment.
In this regard I noted that the respondent had indicated through counsel that he would be willing to recommence anti‑libidinal treatment, and was subsequently assessed by Dr Wynn Owen as a suitable candidate. That said, in the course of his attendance with Dr Wynn Owen, the respondent expressed to Dr Wynn Owen his desire not to take the medication.[141] In circumstances where the respondent did not consent to receiving anti-libidinal treatment via depot injection; had consented to the taking of oral mediation (the taking of which was more difficult to monitor); and had expressed a desire to challenge ongoing prescription of anti‑libidinal medication,[142] little confidence could be taken that anti-libidinal treatment would be recommenced and maintained. It did not appear to be the case that the respondent accepted the potential protective benefit of such treatment in conjunction with therapeutic intervention, and I was concerned that he had no long term intention to consent to taking prescribed anti‑libidinal medication.
[141] See [175] above.
[142] Exhibit 6.
As was recorded by Dr Wojnarowska, themes of loneliness, unresolved issues pertaining to the respondent's childhood and perceived rejection by others in the community had been recurrent in the respondent's post-offence disclosures and were significant risk factors in his future offending.[143] While the proposed supervision conditions focussed on control, there was little evidence of what if any social interaction and supports might be made available to the respondent.
[143] Exhibit 2, book of materials vol 2, page 346 (Psychiatric report prepared by Dr G Wojnarowska dated 22 January 2024 par 100).
Unfortunately, given the respondent's history of offending, outstanding treatment needs, lack of prosocial supports and no evidence of a recent demonstrated engagement by the respondent in psychological counselling, I was not satisfied that a supervision order would provide sufficient protection for the community. In all of the circumstances, I made a continuing detention order.

Conclusion and recommendation

After weighing the submissions of counsel in light of all of the evidence adduced, I was satisfied that the respondent remained a high risk serious offender within the meaning of the High Risk Serious Offenders Act; and that the continuing detention order ought be affirmed pursuant to s 68(1)(b)(i). In the end, after regard was given to all of the evidence, I was left in doubt as to whether a supervision order would adequately protect the community.
The objects of High Risk Serious Offenders Act include to provide for continuing control, care or treatment of high risk serious offences. In January 2023, the respondent was detained in custody for an indefinite term for control, care or treatment. The court's reasons for decision delivered on 13 January 2023 were expressed in clear and unequivocal terms as to what treatment the respondent ought be offered while in custody.
A decision was made by the Department of Justice to not offer to the respondent the opportunity to engage in treatment while subject to the continuing detention order. Officers within the Department of Justice independently considered the evidence before Derrick J, formed a different view to that of the court as to the appropriate care and treatment of the respondent, and acted consistently with their view and not in accordance with his Honour's express recommendations. It was presupposed that no utility would be served by the respondent engaging in the recommended treatment, which did not allow for any positive change or self‑reflection on the part of the respondent.
Derrick J expressed in clear terms the treatment the respondent was to be offered while in custody, which was disregarded. The respondent was not afforded an opportunity to engage in psychological counselling in a meaningful way. It is imperative that this not be repeated.
The respondent should be afforded the opportunity to recommence anti‑libidinal treatment while the respondent is in custody so as to enable adjunct psychological counselling to commence in the year prior to his next review. A psychologist, other than Mr Summerton, ought be assigned to the respondent so that he is given the opportunity to commence engaging in psychological counselling in a meaningful way. The respondent's meaningful participation in counselling prior to the review of his detention, while receiving anti‑libidinal treatment 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.
Again, the situation must not be allowed to continue whereby the opportunity for the respondent to engage in psychological counselling is not provided, or only offered a short time prior to the review hearing. It is again the case that if the opportunity is afforded to the respondent before the next review hearing 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.
Finally, attempts should be made, prior to the next review of the continuing detention order, to identify: community supports (that might lessen loneliness, which has been identified as a recidivism risk factor for the respondent); whether there might be an appropriate employment opportunity for the respondent; and 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.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SE
Associate to the Honourable Justice Strk
11 NOVEMBER 2024