The State of Western Australia v Bunwarrie [No 3]
[2023] WASC 329
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BUNWARRIE [No 3] [2023] WASC 329
CORAM: FIANNACA J
HEARD: 3 APRIL & 29 MAY 2023
DELIVERED : 28 AUGUST 2023
FILE NO/S: SO 14 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
LENNOX JUNIOR BUNWARRIE
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application for restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Turns on own facts - Continuing detention order made
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Code (WA)
Dangerous Sexual Offences Act 2004 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr D McDonnell |
| Respondent | : | Ms K Turtley-Chappel |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Geoffrey Miller Chambers |
Cases referred to in decision:
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Garlett v The State of Western Australia [2022] HCA 30
The State of Western Australia v AB [No 3] [2022] WASC 126
The State of Western Australia v Bunwarrie [2022] WASC 348
The State of Western Australia v CF [2021] WASC 20
The State of Western Australia v Corbett [No 8] [2021] WASC 171
The State of Western Australia v Dragon [No 2] [2022] WASC 189
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 Latimer [2006] WASC 235
The State of Western Australia v Lewis [No 3] [2022] WASC 148
The State of Western Australia v MAM [2022] WASC 100
The State of Western Australia v Narrier [No 2] [2022] WASC 49
The State of Western Australia v Nelson [2021] WASC 460
The State of Western Australia v PAS [No 3] [2021] WASC 117
The State of Western Australia v Sandwell [2022] WASC 206
The State of Western Australia v Stephenson [2023] WASC 316
The State of Western Australia v ZSJ [2020] WASC 330
Table of Contents
The application and its history
The application
Background
The making of the application
Procedural history
Statutory framework and legal principles
The issues in this application
Evidence
Consideration of the matters under s 7(3) of the HRSO Act
Respondent's antecedents
(i) Family background and developmental history
(ii) Education and employment
(iii) Sexual development
(iv) Relationships
(v) Substance use
(vi) Medical history
The respondent's criminal offending
Juvenile offending
Adult offending
Offences that constitute serious offences under the HRSO Act
(i) Sexual penetration without consent - 2007
(ii) Sexual penetration of child over 13 years and under 16 years of age - 2010
(iii) Indecently dealing with child under the age of 13 years - 2020
Other convictions - not 'serious offences' under the HRSO Act
Recent antecedents - the respondent's prison behaviour
History of compliance with community based supervision
Propensity and pattern of offending
Rehabilitation programmes and efforts to address causes of offending
Psychiatric and psychological evidence in respect of risk
Proposed HRSO Treatment Options Report of Ms Thatcher
Assessment of risk by Dr Wynn Owen
The respondent's distorted attitudes
Characteristics of respondent's sexual offending
The respondent's accounts of past offending
Respondent's current sexual thinking and function
Plans for the Future
Mental state examination
Risk assessment
Summary, opinion and recommendation
Assessment of risk by Dr Yewers
Family background and attitudes
Plans for the future
Risk assessment
Summary and recommendations
Evidence of Ms Serrano (CSA report)
Current programmatic intervention
Plans for the future
Behaviours to be managed
Post-sentence supervision order
Need for protection of the community from risk of further serious offences - s 7(3)(i) HRSO Act
The parties' submissions
Conclusion - Whether the respondent is a high risk serious offender?
Conclusion - CDO or supervision order
Recommendations
Order
FIANNACA J:
The application and its history
The application
This is an application by the State of Western Australia, under s 35 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act), for a restriction order in relation to the respondent, who, at the time of the application, was a serious offender under custodial sentence. The HRSO Act provides for two forms of restriction order. The first is a continuing detention order (CDO), being an order that the respondent be detained in custody indefinitely.[1] The second is a supervision order, being an order that the respondent be subject to conditions when not in custody.[2] The application need not (and does not) specify which form of restriction order is sought,[3] although, at the hearing, the State submitted that the court should make a CDO.[4]
[1] HRSO Act s 3 and s 26(1).
[2] HRSO Act s 3 and s 27(1).
[3] HRSO Act s 35(4).
[4] ts 49.
Before the court can make a restriction order, it must be satisfied that the respondent is a high risk serious offender.[5] This requires the court to be satisfied that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence, as defined in the HRSO Act.[6]
[5] HRSO Act s 48(1).
[6] HRSO Act s 7(1).
The application has been made against the following background.
Background
The respondent has a history of violent and sexual offending in Western Australia. The history of the respondent's relevant offending was summarised by Derrick J in his decision on the preliminary hearing of this application.[7] That summary is respectfully adopted below.
[7] The State of Western Australia v Bunwarrie [2022] WASC 348 (Bunwarrie) [20] - [22].
The respondent has a very lengthy criminal record which includes convictions for sexual offences, violent offences committed against his partner, property related offences, drug related offences, breach of bail offences, offences of failing to comply with police orders, and offences involving the breaching of court imposed sanctions, such as intensive supervision orders and suspended imprisonment orders, by noncompliance and reoffending. Further, the respondent has a number of convictions over a number of years for failing to comply with his reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA). He became a reportable offender under that Act as a result of his convictions for sexual offences. In relation to the offences of failing to comply, he was fined or sentenced to suspended terms of imprisonment.
The only significant gaps in the respondent's offending have occurred during his terms of imprisonment.
The respondent's criminal record includes convictions for three 'serious offences' within the meaning of the HRSO Act, specifically sexual penetration without consent, contrary to s 325 of the Criminal Code, sexual penetration of a child between the ages of 13 and 16 years, contrary to s 321(2) of the Criminal Code, and an offence of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code. The latter is the 'index offence' for the purposes of these proceedings, in that it is the serious offence for which the respondent was under custodial sentence at the time the application was made by the State.
The making of the application
The application was brought by the State on 21 September 2022. The effect of s 35(1) and (3) of the HRSO Act is that the State may apply to the Supreme Court for a restriction order in relation to a serious offender under custodial sentence, if the serious offender is not under restriction (that is, he is not subject to a restriction order or an interim supervision order[8]) and there is a possibility that the offender might be released from custody within the period of one year after the application is made. That was the case at the time the application was made, as the respondent's sentence was due to end on 10 November 2022.
[8] HRSO Act s 3.
In accordance with s 43 of the HRSO Act, a day was then fixed for the matter to come before the court for a preliminary hearing under s 46.[9]
Procedural history
[9] HRSO Act s 43(1).
On 21 October 2022, at the preliminary hearing, Derrick J found that there were reasonable grounds for believing that the court might find the respondent to be a high risk serious offender, in accordance with s 7 of the HRSO Act.[10] Accordingly, his Honour made orders under s 46(2) fixing a day for the hearing of the restriction order application and programming the application for a hearing, including orders that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with s 74 of the HRSO Act to be used on the hearing of the restriction order application.
[10] Bunwarrie [70].
The question that remained for consideration by Derrick J was whether his Honour should make an interim detention order, pursuant to s 46(2)(c)(i) of the HRSO Act, an interim supervision order pursuant to s 58(5) of the HRSO Act, or no further order. The preliminary finding by Derrick J, that a court might find the respondent to be a high risk serious offender, meant that the court needed to consider how the community should be protected against the putative unacceptable risk that the respondent would commit a serious offence. The State's application at that stage was for an interim detention order. As the respondent had no accommodation available at the time, the respondent sought an adjournment of that application, which was not opposed by the State.[11] Derrick J adjourned the hearing until 2 November 2022.
[11] ts 7 - 8, 21 October 2022.
At the hearing on 2 November 2022, the State, mindful of the need for the court to adopt the least restrictive option capable of ensuring adequate protection of the community, submitted that, as suitable accommodation had since been secured for the respondent, the State no longer sought an interim detention order; instead, it sought an interim supervision order.[12] Counsel for the State noted that the concession was made 'not without some reluctance'.[13]
[12] ts 30 - 31, 2 November 2022.
[13] ts 32 - 33, 2 November 2022.
Notwithstanding the State's position, and the availability of accommodation, Derrick J concluded that it was necessary to make an interim detention order, pursuant to s 46(2)(c)(i) of the HRSO Act, pending the final determination of the application. That conclusion was based on his Honour's view that it was more than likely that the respondent would be found to be a high risk serious offender; the well above average risk that the respondent would commit further opportunistic and impulsive serious sexual offences; the significant harm that would likely be caused to the victim of any serious sexual offence committed by the respondent; the respondent's past poor performance whilst subject to supervision in the community; the respondent's poor behaviour in prison; and the respondent's significant outstanding treatment needs, most notably, those related to alcohol and cannabis use, hostility towards females, and his sense of entitlement with respect to females.[14]
[14] Ex tempore decision of Derrick J, ts 44 - 45, 2 November 2022.
The respondent has been subject to an interim detention order since that time. I will discuss a further aspect of the procedural history later in these reasons, when dealing with the respondent's mental health, as it explains a further delay in the hearing of the restriction order application.
Statutory framework and legal principles
In The State of Western Australia v Stephenson [2023] WASC 316, at [52] - [76], I outlined and expressed my views about the interpretation of the relevant statutory framework and the principles that apply in its application. While I adopt what I said there, I have set out the outline and views below for convenience.
The application is to be dealt with under s 48 of the HRSO Act, which reads:
(1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must —
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 7 of the HRSO Act provides:
(1)An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
(2)The State has the onus of satisfying the court as required by subsection (1).
'Serious offence' is defined in s 5 of the HRSO Act. Relevantly, for present purposes, by s 5(1), an offence is a 'serious offence' if it is specified in sch 1 div 1 of the HRSO Act. It is sufficient to note that the offences of which the respondent has been convicted under s 325, s 321(2) and s 320(4) of the Criminal Code, to which I referred in [7] above, are all serious offences specified in sch 1.
In The State of Western Australia v ZSJ,[15] I concluded, having regard to the relationship the provisions of the HRSO Act bear to the provisions of the Dangerous Sexual Offences Act 2004 (WA) (repealed) (DSO Act) (the previous legislation dealing with high risk offenders, specifically serious sexual offenders, which the HRSO Act replaced), that the concepts and criteria with which the court is concerned in determining an application under the HRSO Act are substantially the same under both statutes, and, therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non‑sexual offences.[16]
[15] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ) [30] - [63].
[16] ZSJ [30] - [63].
That general approach has been adopted by other judges in subsequent cases, although, as Corboy J identified in The State of Western Australia v Garlett,[17] there is arguably a difference in the way the criteria in s 7(1) of the HRSO Act are to be applied, when compared with the criteria for finding a person to be a serious danger to the community under s 7 of the DSO Act.[18] The difference turns on whether the element of necessity for a restriction order in s 7(1) is additional to the element of unacceptable risk. It is sufficient to note
that a number of cases since Garlett have been decided on the basis that there is such a difference,[19] although it has been observed that its practical effect may be limited.[20] There have been other cases since Garlett in which the approach I had taken in ZSJ has been maintained, essentially regarding s 7(1) of the HRSO Act as operating in the same way as s 7 of the DSO Act, when read with s 17 of the DSO Act, as interpreted in cases such as Director of Public Prosecutions (WA) v Williams (Williams).[21] In Williams, Wheeler JA had said in respect of s 7 of the DSO Act that:[22]
… the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. (emphasis added)
[17] The State of Western Australia v Garlett [2021] WASC 387 (Garlett).
[18] I note that the definitional issue identified by Corboy J in Garlett was not considered by the High Court in Garlett v The State of Western Australia [2022] HCA 30.
[19] See, for instance, The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 (Quinlan CJ) (D'Rozario); The State of Western Australia v Nelson [2021] WASC 460 (McGrath J) [15]; The State of Western Australia v Narrier [No 2] [2022] WASC 49 (Hill J); The State of Western Australia v MAM [2022] WASC 100 (Strk J); The State of Western Australia v AB[No 3] [2022] WASC 126 (Strk J); The State of Western Australia v Dragon [No 2] [2022] WASC 189 (Strk J).
[20] D'Rozario [21].
[21] Director of Public Prosecutions (WA) v Williams[2007] WASCA 206; (2007) 35 WAR 297. See also, The State of Western Australia v Sandwell [2022] WASC 206 (Smith J); The State of Western Australia v Lewis [No 3] [2022] WASC 148 (Archer J).
[22] Williams [63].
In my opinion, that elucidation of the meaning given to the concept of 'unacceptable risk' under the DSO Act included the element of necessity for the making of a restriction order.
It is not necessary to examine further the relative merits of the approach I discussed in ZSJ and the arguable interpretation of s 7 of the HRSO Act identified by Corboy J in Garlett. As I will explain in due course, I am satisfied that, if there are two separate elements of which the court must be satisfied under s 7, both elements have been established in this case. I will approach the matter on the basis that I must determine first whether there is an unacceptable risk that the offender will commit a serious offence in the future, and, if such a risk is found, I must then determine whether it is necessary to make a restriction order to ensure adequate protection of the community against that unacceptable risk. The first step requires the court to determine whether, in the absence of any measures that would provide protection of the community against the risk that a respondent would commit a serious offence in the future, that risk is unacceptable. That evaluation requires the balancing of various considerations, which I will discuss below. The second step requires the court to determine whether a restriction order is necessary to provide adequate protection of the community against the unacceptable risk that has been found to exist. That requires consideration of whether there are measures, other than a restriction order, that would provide adequate protection of the community against the unacceptable risk. If there are, the risk could no longer sensibly be regarded as 'unacceptable'.
More generally, however, I remain of the view that the concepts and criteria with which the court is concerned in determining an application under s 48 of the HRSO Act are substantially the same as under s 17 of the DSO Act, and, therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act. I note that nothing in the High Court's recent decision in Garlett v The State of Western Australia, which considered the constitutional validity of aspects of the HRSO Act, is inconsistent with that approach when construing and applying the HRSO Act. In fact, it is implicit from the majority judgment that such jurisprudence remains relevant.[23]
[23] See for instance Garlett v The State of Western Australia [55] (footnote 68); [103], [104], [106].
Having regard to the structure of s 7(1) of the HRSO Act, before the court can find the respondent to be a high risk serious offender, it must be satisfied to a high degree of probability, by acceptable and cogent evidence, of both matters to be determined in the two-step evaluative process, namely:
(1)that there is an unacceptable risk that the offender will commit a serious offence; and
(2)that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against that risk.
The State bears the onus of satisfying the court that it is necessary to make a restriction order.[24]
[24] HRSO Act s 7(1) and s 7(2).
The need for the court to be satisfied 'to a high degree of probability' is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt; it is otherwise incapable of further definition.[25] The test does not mean necessarily that the risk, or the necessity for making a restriction order, must be at some high percentage of probability. As was previously noted in respect of 'unacceptable risk' under the DSO Act, a risk may be less than 50%, yet still be unacceptable. However, the court must identify what it is that is alleged to constitute the risk and makes it unacceptable, and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[26] The same approach must be taken in respect of the necessity for making a restriction order to ensure adequate protection of the community.
[25] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (GTR) [28] (Steytler P & Buss JA).
[26] GTR [34] (Steytler P & Buss JA).
In GTR, Steytler P and Buss JA explained that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[27]
[27] GTR [27] (Steytler P & Buss JA).
In considering whether it is satisfied that the offender is a high risk serious offender, the court must have regard to each of the matters specified in s 7(3) of the HRSO Act. Those matters are:
(a)any report prepared under s 74 of the HRSO Act for the hearing of the application and the extent to which the respondent cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological or other assessment relating to the respondent;
(c)information to indicate whether or not the respondent has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the respondent;
(e)any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he had participated in any rehabilitation programme;
(f)whether or not the respondent's participation in any rehabilitation programme has had a positive effect on him;
(g)the respondent's antecedents and criminal record;
(h)the risk that, if he were not subject to a restriction order, the respondent would commit a serious offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
There is overlap between some of the matters specified and the evidence relating to the various matters, which I will discuss below.
Where, as in the respondent's case, the offender has committed offences other than serious offences, those other offences may be relevant as part of the offender's antecedents and criminal record, as well as shedding light on the offender's risk of committing a serious offence, because the other offences may be connected to behaviour which has the real potential to lead to serious offending.[28]
[28] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].
The court must disregard the possibility that the offender may be temporarily prevented from committing a serious offence by various specified measures affecting his liberty, including imprisonment.[29]
[29] HRSO Act s 7(4).
If the court finds that the respondent is a high risk serious offender, it must make a restriction order. The issue then is whether a supervision order or a CDO is the appropriate outcome. In deciding between those two options, the paramount consideration is the need to ensure the adequate protection of the community.[30]
[30] HRSO Act s 48(2).
The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2).[31] As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[32]
[31] The State of Western Australia v Latimer [2006] WASC 235 [49].
[32] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
However, the proviso in s 48(1)(b), referring to s 29, means that the court cannot make a supervision order, and therefore must make a CDO, unless it is satisfied, on the balance of probabilities, that a respondent will substantially comply with the standard conditions of a supervision order.[33] The respondent has the onus of proving that he will substantially comply.[34]
[33] HRSO Act s 29(1).
[34] HRSO Act s 29(2).
The standard conditions referred to in s 29 are those specified in s 30(2) of the HRSO Act, which in the DSO Act were specified in relevantly identical terms in s 18(1).[35] A supervision order must contain conditions that the person who is subject to the order will:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least two days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32 [of the HRSO Act]);[36] and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order;[37] and
(g)be subject to electronic monitoring under s 31 [of the HRSO Act].
[35] HRSO Act s 3 (definitions) and s 30(2).
[36] DSO Act s 18(1)(d) referred to 'section 19A or 19B', which correspond to s 31 and s 32 of the HRSO Act.
[37] DSO Act s 18(1)(f) referred to 'a sexual offence as defined in the Evidence Act 1906 section 36A', which included offences that were not within the meaning of 'serious sexual offence' in the DSO Act. Some of the offences referred to in s 36A of the Evidence Act are not included in the definition of 'serious offence' in the HRSO Act.
Therefore, the effect of s 29(1) and (2) of the HRSO Act (as was the case with s 17(3) and (4) of the DSO Act) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order.
The words 'will substantially comply with' in s 29(2) are identical to those that appeared in provisions of the DSO Act and bear the same meaning. In effect, that phrase means that the court must be satisfied that the respondent will comply with the standard conditions in a manner, and to an extent, that is consistent with, and will enable the attainment of, the general objects of a supervision order and of the legislation.[38]
[38] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52]; The State of Western Australia v CF [2021] WASC 20 [61] - [62]; The State of Western Australia v PAS [No 3] [2021] WASC 117 [17]; The State of Western Australia v Corbett [No 8] [2021] WASC 171 [48].
Obviously, substantial compliance with the condition that the respondent will not commit a serious offence during the period of the order should be sufficient to ensure adequate protection of the community. However, the probability that a respondent will substantially comply with that condition will almost invariably depend on the likelihood of the respondent complying with other conditions of a supervision order, additional to the standard conditions. Section 30(5) of the HRSO Act provides that a supervision order may include such other conditions as the court considers appropriate to ensure adequate protection of the community, for rehabilitation, care or treatment of the offender, and to ensure the adequate protection of victims.
Ultimately, even apart from the respondent's onus of satisfying the court that he will substantially comply with the standard conditions of a supervision order, if the court is not satisfied (which includes if it is left in doubt) that conditional release of the respondent under a supervision order will ensure an adequate degree of protection of the community, it must make a CDO.[39]
[39] Williams [86] (Wheeler JA, Le Miere AJA agreeing).
Proceedings under the HRSO Act are taken to be criminal proceedings for all purposes. This does not require that anything be proved to a higher standard than is required by s 7(1) of the HRSO Act.[40]
[40] HRSO Act s 82.
The issues in this application
Having regard to the analysis of the statutory framework and legal principles above, the first issue to be determined in these proceedings is whether the respondent is a high risk serious offender. In other words:
(1)Is there an unacceptable risk that he would commit a serious offence in the future, in the absence of any measures that would provide protection of the community against that risk?
(2)Is a restriction order necessary to provide adequate protection of the community against that unacceptable risk?
If both of those questions are answered in the affirmative, the next issue is whether the appropriate order to ensure adequate protection of the community is a CDO or release into the community on a supervision order.
The applicant's case is that the court can be satisfied to the requisite standard that the respondent is a high risk serious offender, and that, having regard to all the circumstances, a CDO is the appropriate restriction order.
Evidence
In an application for a restriction order, the court must hear any admissible evidence called by the State and, if he elects to give or call evidence, any admissible evidence given by or on behalf of the respondent.[41] The rules of evidence apply but are modified to permit the court to receive in evidence any one or more of the following:[42]
(a)any document relevant to the antecedents or criminal record of the offender;
(b)anything relevant contained in the official transcript of any relevant proceedings against the offender;
(c)any relevant material that was tendered to the court or that informed the court in relevant proceedings against the offender; and
(d)any relevant material of the kind mentioned in s 7(3) of the HRSO Act relating to the offender.
[41] HRSO Act s 84(3).
[42] HRSO Act s 84(4) and s 84(5).
The evidence adduced by the applicant in these proceedings consisted of a Book of Materials (BOM) prepared for the restriction order application, comprising three volumes,[43] which was tendered by the applicant without objection, and oral evidence given from:
(1)Dr Peter Wynn Owen, a consultant forensic psychiatrist, who was one of the experts nominated in the orders under s 46(2) of the HRSO Act to prepare a report in respect of the respondent's risk of committing a serious offence. He prepared a report dated 23 March 2023;
(2)Dr Tara Yewers, a counselling psychologist, who was the other expert nominated to prepare a report in respect of the respondent's risk of committing a serious offence. She prepared a report dated 20 February 2023;
(3)Ms Valerie Thatcher, a High Risk Serious Offender Planning Manager with the Department of Justice, who prepared a Proposed High Risk Serious Offender Treatment Options Report dated 27 March 2023 in respect of the respondent;
(4)Ms Gabriela Serrano, a Senior Community Corrections Officer (SCCO) with the Department of Justice, who prepared a Community Supervision Assessment (CSA) report dated 28 March 2023 in respect of the respondent.
[43] Exhibit 1.
Volume 1 of the BOM contained materials from the Department of Justice, including a copy of the respondent's criminal record, a chronology of the respondent's offending prepared by the applicant, prison records, substance use test results, medical records and medical reports. It also contained transcript and other materials from the proceedings in respect of the respondent's previous convictions for serious offences, and from the preliminary hearing in respect of this application.
Volume 2 of the BOM contained transcript and other materials from the proceedings in respect of the respondent's previous convictions for relevant offences not defined as 'serious offences' under the HRSO Act.
Volume 3 of the BOM contained the reports of the witnesses who gave oral evidence.
The respondent did not give or adduce evidence at the hearing. However, following closure of the State's case, a neuropsychological assessment report, by Dr Brenton Maxwell, was tendered as an exhibit by consent.[44]
[44] Exhibit 2.
Consideration of the matters under s 7(3) of the HRSO Act
As I noted earlier, the matters listed in s 7(3) of the HRSO Act, to which the court must have regard, overlap. The matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed by the information and findings in respect of all the other matters listed in s 7(3). Consideration of the questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning the respondent's efforts at rehabilitation and the effect of his participation in rehabilitation programmes.
It is convenient to start with the respondent's antecedents, including his criminal history, in particular the offending that is most relevant to the assessment of his risk of serious reoffending.
Respondent's antecedents
The following summary of the respondent's antecedents and history is collated from various materials in the BOM, including pre‑sentence, psychological and psychiatric reports prepared for the proceedings in respect of the respondent's previous serious offences, reports from programmes in which the respondent has engaged, and the reports prepared for these proceedings, in particular the reports of Dr Wynn Owen, Dr Yewers, Ms Thatcher, Ms Serrano and Dr Maxwell.
(i) Family background and developmental history
At the time of the restriction order hearing, the respondent was 34 years old.
The respondent was born in Port Hedland. He spent most of his childhood living in the Warralong Community, which is 160 km south‑east of Port Hedland. He has also spent time living in the Broome region and in Perth.
The respondent is the eldest of his parents' three male children and was initially raised by his grandmother, because of his parents' dysfunctional lives, which included heavy drinking, chronic domestic violence, and his mother's frequent and long-term imprisonment.[45] The respondent told Dr Yewers that he recalled that the violence perpetrated by his father towards his mother was significant and that she sometimes required hospital treatment as a result.[46] He said that he witnessed the violence, and it left him frightened and worried for his mother's well‑being.[47] Yet, as will appear below, his attitude towards violence against women suggests that the concerns and empathy he has said he had as a child did not endure.
[45] BOM 289, 645 [22].
[46] BOM 645 [22].
[47] BOM 645 [22].
The respondent has said that his parents separated when he was about 5 or 7 years old.[48] He believed this was due to his father's heavy drinking, infidelity and violence towards his mother.[49]
[48] BOM 645 [22] (to Dr Yewers), 622 [49] (to Dr Wynn Owen) respectively.
[49] BOM 622 [49].
After his parents separated, the respondent lived with his father. Dr Wynn Owen considered that the respondent idolised his father, and that the glorified image of his father continues as a long-term entrenched belief held by him.[50] Dr Wynn Owen noted that the respondent mentioned, on a number of occasions during his assessment, that he takes pride in 'walking in [his] father's footsteps', implying that this included behaviours such as excessive drinking, interpersonal violence and womanising.[51] Those comments made by the respondent to Dr Wynn Owen in 2023, are consistent with those he made during a psychological interview in 2011, where he also spoke of 'following in his father's footsteps with respect to violence against women', and that he appeared to do so with pride.[52] He said to Dr Yewers that he was 'following in his father's footsteps' and that he has violence in him.[53] Dr Yewers reported that the respondent 'noted that the alcohol fuelled behaviour and violence modelled by his father has been influential in driving his own attitudes endorsing alcohol abuse and violence.'[54]
[50] ts 58.
[51] BOM 623 [50].
[52] BOM 355.
[53] BOM 647 [33].
[54] BOM 645 [22].
The respondent said that his father 'only chose' him out of his siblings, and that he was happy to be raised by his father, notwithstanding the fact that he described his father as a strict disciplinarian who would 'whip [him] with [a] hose if [he] did the wrong thing'.[55] The respondent told Dr Wynn Owen that his father would assault women, and was a jealous man, and at times, would assault men who had come near his partner.[56] His account to Dr Yewers was similar, stating that his father would also be violent to other relatives and to him.[57]
[55] BOM 623 [50].
[56] BOM 623 [50].
[57] BOM 645 [22].
The respondent lived with his father until his father died in a car accident which he caused himself, having driven intoxicated. The respondent, who was also in the car at the time, was left with significant head injuries, which I will refer to later in these reasons.[58] The respondent has been inconsistent about his age at the time of the accident, stating at different times that he was 8, 12 and 14 years of age.[59] However, his medical history records that his head injuries from the motor vehicle accident occurred in 1995, when the respondent was 7 years of age.[60] Following the death of his father, the respondent returned to live with his grandmother.[61]
(ii) Education and employment
[58] BOM 289.
[59] BOM 354, 291, and 406 respectively.
[60] BOM 143.
[61] BOM 354.
The respondent attended school in Warralong, until he left at 15 years of age. He told Dr Wynn Owen that he enjoyed school, but had difficulty reading and writing English,[62] which is his second language.[63]
[62] BOM 623 [54].
[63] BOM 639 [192].
After leaving school, the respondent was employed in the local community through the Community and Development Employment Program (CDEP), between the ages of 16 and 19 years. The respondent has not had employment since that time.[64]
(iii) Sexual development
[64] BOM 623 [56], 648 [39].
Dr Wynn Owen described the respondent's outline of his early sexual development as 'rambling'. However, the experiences he discussed provide insight into how some sexual behaviours were normalised among the respondent's immediate friends and his community group. Dr Wynn Owen summarised the respondent's account overall as revealing 'early exposure to adult sexual activity and early sexualised behaviour with peers and older children'.[65] His account to Dr Yewers was similar, although some aspects of that account were inconsistent with what he told Dr Wynn Owen. Given the significance of the respondent's sexual history to his risk assessment, it is necessary to consider his accounts in more detail.
[65] BOM 623 - 624 [57].
The respondent said that he and his peer group were often left unsupervised when their parents were drinking alcohol, and it was at those times that the sexual activity tended to occur.[66] Through that peer group of young and older children, he was exposed to, and engaged in, sexual activity, including sexual violence, from a very young age. He told Dr Wynn Owen these things occurred from when he was as young as 6 or 7 years of age.[67] He told Dr Yewers that his first sexual activity was around the age of 11 years.[68] He told Dr Wynn Owen that his first time having sex involved a girl who was left distraught by the encounter and that, when he was 'caught touching girls', his father would punish him.[69]
[66] BOM 646 [27], 623 [57].
[67] BOM 623 [57].
[68] BOM 646 [27].
[69] BOM 623 [57].
The respondent told Dr Wynn Owen that some of the girls were 'raped to show them how to behave'.[70] He said that, as a teenager, he had sexual relations with numerous women, who were of his age and older, some of whom were intoxicated, and that he assaulted a number of those sexual partners. Dr Wynn Owen noted that it was unclear whether the respondent was referring to non-consensual sex, physical violence, or both.[71] This was one of the contexts in which he said he 'followed in [his] father's footsteps', in that he was 'drinking and fighting most of the time, assaulting girls'.[72]
[70] BOM 623 [57].
[71] BOM 624 [57].
[72] BOM 624 [57].
Dr Wynn Owen noted that the respondent's self-reporting and information from past assessments suggest that, from puberty onwards, the respondent developed and has maintained a high sex drive and sexual preoccupation, with associated frequent masturbation and multiple short-term relationships without intimacy to meet his sexual needs.[73]
(iv) Relationships
[73] BOM 628 [109], 629 [126].
The respondent reported to Dr Wynn Owen that, prior to the age of 19, all of his relationships were short‑term sexual relationships. However, at the age of 19, he had a relationship for several months with a partner who became pregnant to him. Around that time, the respondent was imprisoned. Since then, he has had no contact with his son or the mother.[74]
[74] BOM 624 [57].
The respondent said that, as an adult, he has had longer relationships, but they have been characterised by mutual substance abuse and violence between him and his partners.[75] The respondent was with his most recent partner for about five years. He was convicted on three occasions of assaulting her, which resulted in him serving terms of imprisonment for two of those five years. The respondent was also convicted of assaulting a previous partner in 2010.[76]
(v) Substance use
[75] BOM 624 [57].
[76] BOM 624 [57].
The respondent reported that he started to use alcohol and cannabis with friends around the age of 13. He told Dr Wynn Owen that once he left school at 15,[77] he commenced a pattern of binge drinking. He said that prior to being imprisoned in 2018 and 2020, he engaged in daily alcohol use of at least one carton of beer and one bottle of spirits.[78] This shift to daily drinking represented an escalation of the binge drinking the respondent reported to a psychologist in 2011, when he only described drinking heavily 'every pay day', which involved the respondent getting together with other young men and buying several cartons of beer. The respondent had also admitted to that psychologist that he smoked 'ganga' (that is, cannabis) every day, and that he enjoyed it.[79]
[77] The respondent also reported to a psychologist in 2007 that he left school at 17 years of age (BOM 289).
[78] BOM 622 [44].
[79] BOM 356.
I note that the respondent's account to Dr Yewers concerning his drinking suggested a capacity to abstain from alcohol, saying that he had 'settled into a pattern of abstaining from alcohol when he was in his community (which was dry), and drinking heavily when he was in "town" where he would sometimes remain for months.'[80] However, Dr Yewers noted that other reports had documented a consistent history of the respondent previously describing a pattern of binge drinking, 'whereby he and his friends would travel to South Hedland to purchase and drink alcohol after they were paid, spending their time drinking, talking, walking around, meeting girls and, if lucky, having sex before finding a ride back to the community'.[81] Dr Yewers further noted that it has previously been reported that the respondent's only periods of abstinence from alcohol have been while he has been in custody.[82]
[80] BOM 648 - 649 [40].
[81] BOM 648 [40].
[82] BOM 649 [42].
In relation to the respondent's insight into his problem with alcohol and its impact on his behaviour, Dr Yewers reported (footnote omitted):[83]
Mr Bunwarrie acknowledged problems that have resulted from his alcohol consumption, including criminal behaviour, fighting, assaulting girlfriends, stealing food and alcohol, and driving while intoxicated. He elaborated that he is more aggressive when intoxicated, and prone to fighting. Mr Bunwarrie reported to a previous assessor that violence in his relationship usually occurred after he consumed alcohol. In the current assessment, he indicated a pattern whereby he would use alcohol and cannabis after an argument with his partner to calm himself, and then later, when intoxicated, behave violently towards his partner.
[83] BOM 649 [41].
The respondent reported to Dr Wynn Owen that he had never experienced withdrawal seizures, or delirium tremens, when ceasing the use of alcohol. However, Dr Wynn Owen noted that prison medical records indicated that the respondent has experienced withdrawal symptoms upon his arrival in prison. Dr Wynn Owen considered this indicative of physiological alcohol dependence.[84]
[84] BOM 622 [45].
Dr Wynn Owen noted that although the respondent had completed a sex offender treatment programme, he still had outstanding needs in relation to his alcohol dependence, recommending that, in addition to any sex offender treatment programmes in which the respondent may participate, he should also participate in a substance use programme, preferably one that is specific to Indigenous persons, if one is available.[85] Dr Yewers also identified the respondent's alcohol misuse as a criminogenic factor that requires treatment.[86]
(vi) Medical history
Physical health
[85] ts 65.
[86] BOM 672 - 673 [138], [140].
The medical records in the BOM regarding the respondent's physical health confirmed the respondent's heavy use of alcohol and cannabis, and also that he smokes around 10 cigarettes a day.[87] Beyond this, the respondent is relatively healthy for his age, with no health concerns relevant to the issues in this application.
Mental health - neuropsychological assessment
[87] BOM 142 - 143.
As noted above, the respondent was involved in a serious motor vehicle accident when he was 7 years old. He sustained significant head injuries, which is evidenced by scarring to his scalp.[88] The respondent told Dr Wynn Owen that he did not lose consciousness when he sustained his injuries, and that he did not believe the injuries had any lasting adverse effects in relation to his cognitive state or brain function.[89] However, the respondent's medical records reveal that he has been 'prone to short term memory difficulties', due to the closed head injury.[90]
[88] BOM 622 [40].
[89] BOM 622 [40].
[90] BOM 142.
Given the possibility that the respondent may suffer from cognitive deficiencies or issues with brain function, it was recommended by Dr Wynn Owen that the respondent undergo a neuropsychological assessment to identify any cognitive or learning deficits he may have, which may reduce his ability to benefit from treatment intervention or require a specifically tailored approach to treatment.
At the hearing on 3 April 2023, counsel for the respondent applied to adjourn the restriction order hearing so that the respondent could undergo neuropsychological assessment and to provide Dr Wynn Owen and Dr Yewers the opportunity to comment, where relevant, on the results of the neuropsychological report.[91] The adjournment was also sought to allow a further opportunity for suitable accommodation to become available for the respondent.
[91] ts 50 - 53.
In relation to the proposed neuropsychological assessment, it was submitted that the results could have an impact on the court's assessment of a number of matters relevant to the application, such as the respondent's poor history of compliance with supervision in the community, the formulation of more appropriate conditions for the management of the respondent's risk under a supervision order, and the possibility that the respondent would be eligible for accommodation that would otherwise not be available to him. The application was maintained, notwithstanding the potential disadvantage to the respondent in delaying the determination of the restriction order application. It was submitted that the neuropsychological assessment was necessary for the proper determination of the matter, including the proper assessment of the respondent's risk and how it might be managed in the future.[92]
[92] ts 51 - 56.
I was satisfied I should grant the adjournment for the purpose sought. Accordingly, the hearing was adjourned until 29 May 2023 and I ordered, pursuant to s 75 of the HRSO Act, that Dr Brenton Maxwell be engaged to assess the respondent and provide a neuropsychological assessment report by 19 May 2023, or as soon as practicable thereafter. That report was filed with the court by the applicant on 17 May 2023, and received as an exhibit at the hearing on 29 May 2023.[93]
[93] Exhibit 2.
In his report, Dr Maxwell expressly stated that the purpose of the report was limited to outlining the respondent's cognitive profile, identifying any specific deficits and, where relevant, making recommendations regarding his management and treatment. The report did not seek to explain past offending or predict future offending.[94]
[94] Exhibit 2, 2 [4] - [5].
A limitation of the report, identified by Dr Maxwell, was that he had no communication with the respondent's family members, as the respondent withheld consent for such communication to occur. Another limitation was the respondent's limited proficiency in the English language, as his first language is Nyangumarta, from the Port Hedland region, and because he had limited schooling. The first limitation made it difficult for Dr Maxwell to gather reliable evidence of the respondent's functional abilities in the community and identify factors that had likely contributed at an early stage to any neurodevelopmental issues the respondent may have. The consequence of the limitations was that Dr Maxwell was limited in the testing he could apply for the report.[95]
[95] Exhibit 2, 3 [10] - [12].
Notwithstanding the limitations arising from the respondent's limited English and schooling, his test results were not consistent with an intellectual disability. Furthermore, the respondent's test results for attention span, 'working memory capacity', fine motor skills, processing speeds, 'nonverbal, perceptual and visuospatial abilities', verbal and language ability, learning and memory, and executive functioning, were, for the most part, within the 'average' range, although some were 'low average'.[96]
[96] Exhibit 2, 7 - 9, [41] - [59].
Whilst Dr Maxwell noted that the respondent demonstrated impairment in cognitive inhibition, scoring 'extremely low', when the respondent did fail to stop himself from acting on impulse, he self‑corrected almost immediately. The intact nature of the respondent's other 'frontal' abilities, including complex reasoning and attentional control, was viewed as evidence against hypothesising that the respondent has global frontal lobe deficits.[97] Notwithstanding this, Dr Maxwell noted that '[s]ubstance use is likely to further exacerbate [the respondent's] underlying cognitive weakness in executive functioning, particularly inhibition',[98] which, given the respondent's history and attitude towards substance abuse, is concerning.
[97] Exhibit 2, 11, [71].
[98] Exhibit 2, 11, [73] - [74].
When addressing the question of whether any cognitive deficits contributed to the respondent's risk of reoffending, based on his lack of expertise in assessing the risk of recidivism, Dr Maxwell only commented on the significant role that alcohol played in the respondent's offending and its contribution to his risk of reoffending.
In discussing the respondent's weakness in cognitive inhibition, Dr Maxwell observed that the respondent's sexual offending involved forming and executing plans over the course of minutes to hours. When compared to the inhibition observed during testing for the report, measured over the course of seconds, Dr Maxwell was not convinced that the respondent's weakness in cognitive inhibition translated into any inherent or biological inability to control his sexual behaviour in circumstances where he would be required to execute a series of planned behaviours, such as entering a property, isolating a vulnerable individual and removing their clothing.[99]
[99] Exhibit 2, 13 [77.3].
Dr Maxwell's overall conclusion was that the test results did not indicate any significant intellectual deficits or significant cognitive impairment, notwithstanding the specific impairment in cognitive inhibition discussed above. There was no indication that the respondent had any reduced capacity to benefit from treatment or intervention programmes, although, his limited English proficiency may necessitate some additional visual aids or clarification and assistance with reading comprehension when receiving treatment.[100]
[100] Exhibit 2, 12, [77].
In her evidence, Ms Thatcher noted that although specific English literacy classes were not available for the respondent in this regard, she had liaised with the education manager at the prison to which the respondent was expected to be transferred, for inclusion in the Intensive Sex Offender Treatment Program (ISOTP), and that they had indicated they would carry out a literacy assessment prior to the respondent's participation in the ISOTP. That assessment would then be used to assist, guide and inform the programme facilitators as to how they could best respond to the respondent's needs during the delivery of the ISOTP.[101]
[101] ts 99.
The respondent's criminal offending
Juvenile offending
The respondent first came to the attention of the courts at 14 years of age and was convicted of 16 offences prior to turning 18. Those offences include property offences, drug and drinking offences, disorderly conduct offences, and one count of indecent assault, discussed below.
Adult offending
As noted by Derrick J, the respondent has a lengthy criminal record for a variety of offences, with the only significant gaps in the respondent's offending being due to his terms of imprisonment.[102]
Offences that constitute serious offences under the HRSO Act
Sexual penetration without consent - 2007
The offence
[102] Bunwarrie [20] - [21].
The respondent's first serious offence, namely sexual penetration without consent, occurred on 23 February 2007 in Port Hedland, when the respondent was 18 years old. The victim was a 23-year-old woman who was known to the respondent through extended family. The respondent went to the victim's home around 11.30 pm, after he had been drinking. He entered the home and saw the victim lying asleep on a blanket with her 7‑month‑old child in her arms. It appears the victim was heavily asleep due to intoxication. The respondent lay alongside her, pulled her clothing down, and inserted his penis into her vagina, moving it back and forth, whilst she remained asleep. He desisted when he was interrupted by someone who entered the room. Upon seeing that the respondent was having sex with the victim, that person struck the respondent on the head with a garden rake. The respondent fled the area. The victim was woken and told what had happened. She was taken to hospital for an examination.[103]
The respondent's account
[103] BOM 279 - 280, 285 - 286, 295 - 296.
The respondent was arrested the following day and participated in a video interview with police. The prosecutor at the sentencing hearing stated that the respondent made full admissions, stating that he had sex with the victim without her permission.[104] However, the police statement of material facts for the offence included a paragraph added by the Office of the Director of Public Prosecutions which said that the respondent stated the victim was awake when he had sex with her.[105] According to that addendum, the respondent said that he had entered the house looking to have sex with a woman. He stated that he did not ejaculate because he was interrupted. When asked if he thought what he did was right to do and whether he was allowed to, he replied that, 'yes, it is right', and that he was 'allowed'.[106]
[104] BOM 296.
[105] BOM 280.
[106] BOM 280.
During an interview with a psychologist in 2007, the respondent claimed that he and the victim had consensual sex one year earlier, and that the victim would have wanted to have sex with him, which led the psychologist to consider that the respondent believed that the one previous occasion reflected ongoing consent for further sexual relations with him. He also said that he was unaware that his actions were illegal until he was told so by police.[107] I note that the respondent's statements to the psychologist contradict those made by the victim, who said that she had never had sex with the respondent and did not want to.[108]
[107] BOM 288.
[108] BOM 283 [23].
The respondent also stated to the psychologist in 2007 that he was intoxicated at the time of the offending and, as such, was not fully aware of his actions. When questioned about how much alcohol he had consumed, the respondent said he had only consumed five beers over an 11 hour period. However, other information he provided during the interview suggested he may have consumed a far greater quantity of alcohol.[109] Whilst it is unclear what role alcohol played in this offence, the respondent indicated that he did not see alcohol or substance abuse as problematic or a contributing factor to his offending.[110] However, in the plea in mitigation at the sentencing hearing, the respondent's counsel said that one of the respondent's main concerns was his level of alcohol consumption and that he was willing and keen to address that behaviour both in prison and in the community when released.[111]
Sentencing remarks
[109] BOM 288.
[110] BOM 288.
[111] BOM 298.
In sentencing the respondent in the District Court on 23 July 2007, Muller DCJ remarked that the victim must have felt 'absolutely degraded and humiliated when told what had happened'.[112] His Honour said that she was entitled to feel safe and secure while sleeping with her own baby in the house, and that the respondent had taken advantage of her for his own sexual gratification.[113] His Honour took into account the respondent's age, his dysfunctional background and the sorrow he had expressed for the victim. He imposed a sentence of 16 months' imprisonment with parole eligibility, backdated to 26 February 2007 for time spent in custody.
Sexual penetration of child over 13 years and under 16 years of age - 2010
Offence
[112] BOM 299.
[113] BOM 299 - 300.
The respondent's second serious offence was an offence of sexual penetration of a child over the age of 13 and under the age of 16, which he committed on 11 August 2010 in a remote community in the area of Marble Bar, when the respondent was 21 years old. The victim was a 14-year-old girl. The respondent and the victim were known to each other. Around 3.00 pm that day, the victim was lying on a bed and watching television in the house where she lived with her parents. The respondent entered the house through the open front door. He then entered the victim's bedroom and lay next to her on the bed. He tried to kiss her on the mouth, but she told him she did not want to. The respondent climbed on top of the victim and, with one hand, held her hands down on the bed. The victim struggled but could not move with the weight of the respondent on top of her. With his other hand the respondent penetrated the girl's vagina with his finger. She told him to stop and get off, and she struggled physically. He stopped when he was interrupted by someone who entered the room. At that stage, the victim was crying. The respondent left the house. The victim subsequently reported the incidence to a teacher.[114]
The respondent's account
[114] BOM 361 - 362, ts 9 - 10, District Court, 13 May 2011.
The respondent was apprehended later that day and was interviewed by police the following day. The respondent denied the sexual penetration, although he admitted having touched the victim sexually. He claimed that he only touched her on the bottom with his hand, and only on top of her clothes.[115] He said that the victim then 'just walked out', went to a teacher, and called the police.[116] When challenged with the victim's account of the offending, the respondent continued to deny the offence of sexual penetration.
[115] BOM 341.
[116] BOM 338.
The respondent was interviewed on 4 August 2011 by a psychologist, Ms Cinzia Zuin, for the purposes of a sentencing report for the sentencing hearing. The respondent initially continued to deny the act of digital penetration, but, as his account progressed, he admitted the offence. Ms Zuin formed the impression that the respondent had weighed up his initial stance of denial against an opportunity to reminisce about the sexual contact, and he chose the latter.[117]
[117] BOM 352.
The respondent told Ms Zuin that he had been working at the victim's school and that, when he noticed the victim was not at school, he left to find her for the purpose of having sex with her. The admissions then made by the respondent elevated the seriousness of his offending, beyond the facts stated by the prosecution. For instance, he said that, when he walked into the victim's home and saw her on the bed, he locked the bedroom door.[118] It is unclear whether this was to avoid being interrupted, as he was during his first serious offence, to deny the victim a means of escape, as he did during his third serious offence, or both. In any event, he admitted pinning the victim down when she refused his request for sex. He also admitted that he intended to penetrate the victim with his penis, but could not, due to her struggling, so he resolved to use his finger to penetrate her instead. It is clear from the respondent's comments to Ms Zuin that the only reason he did not continue, and escalate his sexual offending, was because he was interrupted.
[118] BOM 352.
In my opinion, the following account in Ms Zuin's report is important in understanding the respondent's attitudes and cognitive distortions at the time:[119]
Mr Bunwarrie engaged in significant distortion and rationalization for his behaviour, especially when challenged about the victim's age. Mr Bunwarrie stated 'everyone has sex with younger childs up thatta way…the parents don't know what's going on…too busy drinking'. When asked about the victim's distress and the fact that she was underage Mr Bunwarrie appeared to dismiss this, claiming that his mistake was in doing it 'the rough way'. He appeared to lack any insight around informed consent issues, focused instead on his desire to have sex with the victim. His overall attitude was one of sexual entitlement and objectification of females as sexual objects, irrespective of age and compliance. Furthermore, he appeared to normalize sexual contact with children claiming 'everyone does this…I'm not the only one'. Mr Bunwarrie became quite annoyed when challenged by his comment 'I wanted to have sex with that young lady'. When the writer pointed out that the victim was a child and not a young lady he became quite irritated and replied 'whatever'.
[119] BOM 352 - 353.
The respondent also admitted that when he went home and was confronted by his partner about his behaviour, he became very angry with her, making the comment 'she started to piss me off', so he hit her five to six times with his fists. Ms Zuin noted that the respondent was convicted of Unlawfully Assaulted with Circumstances of Aggravation with respect to this assault on his partner on the same day that he sexually offended against the victim. His behaviour towards his partner, in addition to his sexual offence against the 14-year-old victim tends to suggest poor attitudes towards women.[120]
[120] BOM 352 - 353.
The respondent admitted to Ms Zuin that whilst working at the local school prior to his offending, he was looking at the young girls and enjoyed the way the young girls had fun with him.[121] Whilst that admission indicated an interest in younger girls, the respondent also stated: 'I like younger girls ... a bit older ... doesn't matter how old they are ... if they are beautiful I want to have sex.'[122]
Sentencing remarks
[121] BOM 354.
[122] BOM 354.
In sentencing the respondent on 12 August 2011, Bowden DCJ noted that when the respondent had been sentenced for the sexual offence in 2007 the court recommended that he undergo a sex offender's treatment programme, but that, through no fault of his own, he did not undergo that programme. His Honour noted that enquiries revealed that a sex offer treatment programme for Indigenous offenders would be run in April and June 2012. His Honour relied on Ms Zuin's report and on the report of another psychologist, Mr Tanney (which is not in the BOM), both of which recommended that the respondent undergo such a programme. His Honour referred to the traumatic impact such offending has on victims, and noted the respondent's attitudes expressed to both psychologists that he was prepared to satisfy his lust despite knowing the victim did not like it. He said there was a need to protect young children, particularly in Aboriginal and remote communities.
His Honour sentenced the respondent to 3 years' imprisonment, with eligibility for parole, backdated to 11 August 2010.
Indecently dealing with child under the age of 13 years - 2020
The offence
The respondent's third serious offence was an offence of indecent dealing with a child under the age of 13 years, which occurred on 23 January 2020 in South Hedland, when the respondent was 31 years old. The victim was a 7-year-old girl. The respondent, who was intoxicated at the time, followed the victim into a house and took her into a bedroom where he pushed a bed against a wall so she could not escape. When the victim started to scream, the respondent punched her to the face, causing a bruise to her lower right periorbital region. The respondent then took off the victim's pants, lay her on a mattress and used his fingers to touch her bottom and anus, whilst the victim continued to scream. The respondent then let the victim up, moved the bed away from the door and let the victim out of the room, before fleeing on foot.[123]
[123] BOM 416 - 417.
The victim went to her house and immediately told her mother what had happened. Her mother reported the incident to the police. The respondent was subsequently arrested in Perth on 11 March 2020.[124] Because of his intoxicated state, he was not interviewed.
[124] BOM 454 - 455.
The respondent was charged, and subsequently convicted on his pleas of guilty, of the offence of indecent dealing with a child under the age of 13 years, and an offence of assault with intention to facilitate the commission of a crime, relating to the violence inflicted on the child before he indecently dealt with her.
The respondent's account
The respondent was interviewed on 22 December 2020 by a CCO for a pre-sentence report, and it appears he admitted the offence. The report noted that, while the respondent acknowledged the impact the offence would have had on his victim, and expressed feelings of shame for his behaviour, he continued to justify his actions stating that he thought he did it because of the alcohol, and he 'appeared more concerned about the consequences for [him]'.[125] The author of the report considered that the respondent engaged in minimisation of his offending and lacked insight into the consequences of his behaviour for his victim.[126] The respondent said he did not have a particular sexual interest in children and considered his behaviour as opportunistic, arising from excessive alcohol and cannabis consumption.[127]
[125] BOM 448.
[126] BOM 447.
[127] BOM 447.
The author of the report noted that the respondent's initial regret displayed at the beginning of the interview was overshadowed by the fact that he became agitated, demanding that the report look favourable for him.[128] She noted that although the respondent completed the Sex Offender Treatment Program while serving a term of imprisonment in 2012, his current offences indicated that his treatment needs in relation to the offending behaviour remained outstanding.[129]
Sentencing remarks
[128] BOM 448.
[129] BOM 447.
In sentencing the respondent in the District Court on 9 August 2021,[130] Stevenson DCJ referred to the extreme vulnerability of the child victim. He noted that, despite the child being powerless, especially after the respondent had barricaded the door, he still found it necessary to punch her to the head, causing a bruise, because she was screaming. His Honour accepted, however, that the respondent had shown a degree of remorse as at the time of sentencing. His Honour referred to the respondent's history and noted in particular that the respondent needed to deal with his problem with alcohol abuse. His Honour considered that the respondent's age was no longer a mitigating factor. His Honour sentenced the respondent to a total effective sentence of 2 years and 8 months' imprisonment, with eligibility for parole, backdated to 11 March 2020.
Other convictions - not 'serious offences' under the HRSO Act
[130] BOM 459 - 464, 467 - 475.
Whilst not serious offences under the HRSO Act, a number of the respondent's offences provide important context in understanding the respondent's views towards women and his propensity to use violence against female victims. The first relevant offence, an indecent assault, occurred in 2006 when the respondent, then 17 years of age, approached a stranger in a shop, and asked her for 'a quickie'. The respondent was intoxicated.[131] The victim told him to leave. However, the respondent approached her and touched her breast.[132]
[131] BOM 296, ts 3, District Court, 23 July 2007.
[132] BOM 478.
In his interview with Dr Yewers, the respondent divulged that this was not an isolated incident and that, at around the age of 16, there were several occasions when he would walk past females and impulsively grope them by putting his hand on their bottom.[133]
[133] BOM 649 [44].
The second relevant offence is a conviction for trespass in 2008, when the respondent was 18 years old. At the time the respondent had been on parole for only five weeks, having been released from the term of imprisonment for his 2007 sexual offence. The offence is considered relevant because the respondent's motivation for the offence was sexual, as was revealed by the respondent during interviews with psychologists in 2008 and 2011. The respondent revealed that he had been drinking heavily, walked past a house, noticed a 'white woman' through a security door, decided he wanted to have sex with her, and approached the house, asking if he could come inside, trying to open the security door. He asked the woman for a 'date', to which she responded 'no', before calling the police. The respondent went over her backyard fence, planning to make his way into the house and 'try for a second chance'. The woman said 'no'. The respondent left when police arrived. They arrested him shortly after.[134] The respondent explained, during an interview with a psychologist in 2008, that he defined a 'date' as follows: 'go on a date, go home, have sex.'[135]
[134] BOM 353, 507 - 508.
[135] BOM 508.
Ms Zuin, the psychologist who interviewed the respondent in 2011, was of the view that the disclosure by the respondent of the sexual motivation behind his trespass offence was a significant cause for concern, as it suggested the respondent was a far more dangerous sexual predator than suggested by his prior offending and that his offending transgressed boundaries of age and familiarity with victims, providing no clear pattern of victim selection.[136]
[136] BOM 353.
The third relevant offence was an unlawful assault occasioning bodily harm in circumstances of aggravation, which occurred in 2010 shortly after the respondent committed his second serious offence against the 14‑year‑old girl, discussed above. The respondent's then partner found out about the respondent's offending against the young victim on the day it occurred. She confronted him about it. When she was leaving, he pushed her over, grabbed her by the hair, and dragged her to the floor. Whilst she was on the floor, he punched her several times to the face and ears.[137]
[137] BOM 523.
The fourth relevant offence was another indecent assault, which occurred in 2014. The respondent approached a 16‑year‑old female at a supermarket and, whilst standing within her personal space, requested her mobile phone number. A store security officer saw that the girl was scared and intimidated, and intervened, escorting the respondent from the store. The respondent later re-entered the supermarket, located the same young girl and approached her, standing in front of her trolley and blocking her path. The victim moved her trolley and tried to walk past the respondent. As she did, the respondent reached out with his hand and touched the victim between the legs in the area of her crotch. He then ran his hand between the victim's legs and over her buttocks. When interviewed in 2014 by an Adult Community Corrections Officer about the offence, the respondent stated that, at the time of the offence, he was 'blind drunk' and 'couldn't see what I was doing'. He also said that he was 'just having fun'.[138]
[138] BOM 581.
The fifth relevant offence was an unlawful assault occasioning bodily harm in circumstances of aggravation, which occurred in 2015. The victim was a woman with whom the respondent was in a relationship. Both the respondent and the victim had been drinking in a park. They began to argue. The respondent punched the victim in the head with a lighter, causing her to suffer a three to four centimetre laceration.[139]
[139] BOM 541.
The sixth relevant offence was unlawful wounding in circumstances of aggravation, which occurred in 2017. It involved the same victim of the fifth relevant offence. She was still in a relationship with the respondent at the time. Again, both the respondent and the victim had been drinking in a park and began to argue. The respondent picked up a long wooden stick and stabbed the victim a number of times to the head and back area, causing lacerations. The respondent stopped stabbing the victim when witnesses physically intervened to protect the victim.[140]
[140] BOM 548.
The seventh relevant offence was an unlawful assault occasioning bodily harm in circumstances of aggravation, which occurred in 2018. It involved another woman who was in a relationship with the respondent. As with the circumstances of previous offending, the respondent and his partner had been drinking and began to argue. The respondent punched the victim several times to the face, causing her to suffer a two centimetre cut to her forehead. The Statement of Material Facts of the offence noted that the argument was related to jealousy, which seemed to be a recurring issue in their relationship.[141]
[141] BOM 555.
The eighth relevant offence was the assault with intent to facilitate the commission of a crime, which was associated with the offence of indecently dealing with a child under the age of 13 years in 2020. As described above, it involved the respondent punching the 7-year-old child in the head to facilitate his offending, as a result of which the child suffered bruising.[142]
[142] BOM 472, ts 26, District Court, 9 August 2021.
Recent antecedents - the respondent's prison behaviour
The respondent's prison records, which cover his most recent period of imprisonment, show that from the beginning of 2019 until the end of 2021, there were 15 negative incidents recorded, five of which resulted in charges. Those 15 incidents include: one incident of testing positive for cannabis; six incidents of abusive or threatening behaviour towards prison officers, or being threatening or insulting to prison officers; three incidents of fighting with other prisoners; one incident of standing over another prisoner; and one incident of disobeying a lawful instruction from a prison officer.[143]
[143] BOM 18 - 21.
Beyond the incidents of fighting, the most relevant incident for consideration in these proceedings is the one that resulted in charges of abusive and threatening behaviour towards a prison officer. The alleged facts, which are taken from the Incident Description Reports from the prison, are as follows. On 30 March 2021, the respondent verbally abused a female prison officer by calling her derogatory names.[144] That abuse was reported to a Senior Officer who interviewed the respondent about the allegations. Whilst being escorted to the interview, the respondent appeared extremely agitated and stated that he does not listen to female instructions,[145] stating 'woman [sic] can't tell us men what we can and can't do'.[146]
[144] BOM 60.
[145] BOM 58.
[146] BOM 60.
During the interview with the Senior Officer, the respondent admitted calling the officer derogatory names, saying that the officer was a woman, so she could not tell the respondent what to do. The Senior Officer then began to explain to the respondent that no female officer should be subjected to that kind of abuse, to which the respondent again stated that the officer was a woman and could not tell a man what to do. When the Senior Officer began to explain to the respondent that he should be respectful to all staff, male and female, the respondent said to the Senior Officer, 'Who do you think you are? You think you are safe in here but you are not on the outside'.[147] This relatively recent incident reflects the respondent's entrenched misogynistic views and hostility towards women. It is also relevant to my consideration of the way the respondent would respond to supervision in the community, and therefore whether he would substantially comply with the standard conditions of a supervision order, which would include that he comply with any reasonable direction of a CCO, who may well be female.
[147] BOM 59.
Since the imposition of the interim detention order, the respondent has not been the subject of any adverse prison behaviour reports.[148]
[148] BOM 678, CSA.
History of compliance with community based supervision
During his term of imprisonment for his 2007 offence of sexual penetration without consent, the respondent became eligible for, and was released on, parole in 2008. One of his parole conditions was that he reside at a particular address. The respondent failed to do so. His parole was cancelled, and he was returned to prison.[149]
[149] BOM 89, History of Board Secretariat Decision Slips, 2.
In the second likely scenario, the respondent may become aroused by some aspect of a female he sees, probably a stranger, leading to the respondent approaching the individual and asking for intimacy, the request being associated with some form of sexual touching of the breast or groin (indecent assault). If rebuffed the respondent is likely to persist until firmly prevented. Dr Wynn Owen considered that an escalation of offending, although less likely, may involve greater physical violence.[230]
[230] BOM 637 [181].
Dr Wynn Owen was of the opinion that, based on the respondent's offending history, reoffending could occur within months of unsupervised release.[231]
[231] BOM 367 [181] - [184].
The respondent's score on the PCL-R did not indicate prototypical psychopathy, but the respondent's scores across affective, antisocial and lifestyle facets were notably elevated, which, when combined with other factors, indicated an overall moderate to high degree of psychopathy and an antisocial lifestyle with little regard for social mores or the impact of behaviours and actions on others. Dr Wynn Owen noted that the construct of psychopathy used in the PCL-R has not been validated in Indigenous Australian offenders.[232]
Summary, opinion and recommendation
[232] BOM 368 [186].
Dr Wynn Owen was of the view that the respondent continues to minimise and justify his past sexual offending and continues to blame alcohol for many of his offences. He was of the view that the respondent also has entrenched attitudes of hostility and sexual entitlement toward women, and he has consistently, over many years, glorified the violent, misogynistic and abusive behaviour of his father, who he considers to be a positive role model, in whose footsteps he is proud to walk. As I outlined above, Dr Wynn Owen considers that considerable specific individual treatment will be required to dislodge those beliefs and attitudes.
Dr Wynn Owen was of the opinion that the respondent has a range of outstanding treatment needs that need to be addressed in respect of his sexual offending, including the potential existence of sexual deviance, high sex drive, issues relating to consent, objectification of women and a sense of sexual entitlement, poor self-awareness and self‑management, and substance abuse. Beyond his sexual offending, the respondent also has treatment needs relating to his violent offending, particularly against intimate partners.[233]
[233] BOM 639 - 640 [196] - [198].
Based on the respondent's history and the results of his formal assessment, Dr Wynn Owen concluded that the respondent represents a high risk of committing a serious sexual offence in the future if he is not subject to a restriction order. He recommended psychological intervention to address the respondent's treatment needs, including consideration for participation in an ISOTP and a programme to address his substance abuse.
Dr Wynn Owen did not consider antilibidinal therapy to be appropriate.[234] However, he considered that the use of Selective Serotonin Reuptake Inhibitor (SSRI) medication could be beneficial in reducing the respondent's libido. He said:[235]
And the stance I take there is this is a very commonly used (indistinct) medication. It has been used in many millions of people across the world. The instance of any form of side-effect are extraordinarily low. But it does have effects on libido, sexual thinking and sexual preoccupation. The effects seem to vary to some extent from person to person. But I think Mr Bunwarrie should be given, voluntarily, the option to consider that because his own comments to me about the frequency of masturbation and sexual thoughts, his past history of sexual behaviours, promiscuity, difficulty controlling his drive suggest to me that he has significant sexual preoccupation and a high sex drive. And that may well be moderated to his benefit by an SSRI.
[234] BOM 640 - 641 [202].
[235] ts 76.
Dr Wynn Owen said that, if the respondent were in the community, such medication could be prescribed by a General Practitioner.[236]
[236] ts 76.
Although Dr Wynn Owen recognised that Indigenous specific programmes were preferable for the respondent, he was of the view that, should such programmes not be available, the respondent would still gain from participation in non-Indigenous focused programmes.[237]
[237] BOM 640 [202].
Given the respondent's array of outstanding treatment needs, Dr Wynn Owen also proposed a forensic psychologist be allocated to the respondent prior to completing any group programme intervention to enable consolidation and reinforcement of treatment gains and the recognition of themes that may cross over into treatment needs that are not covered by sex offender or substance abuse specific programmes. He also recommended that the respondent receive counselling from a treating psychologist, to address a broader range of treatment needs in parallel with group interventions.[238] This would also allow for the development of a relationship of trust and an understanding of how the respondent presents and functions under different circumstances, prior to release, so as to support the identification of high-risk situations and their appropriate management in the event that the respondent is released under supervision.
[238] ts 66.
Dr Wynn Owen commented on the Department's decision to decline to provide the respondent with a forensic psychologist,[239] noting that he found the conclusion that the respondent's needs did not necessitate such treatment as disingenuous.[240] While that is a strong negative assessment, it is indicative of Dr Wynn Owen's level of concern with the Department's failure to progress psychological intervention for the respondent. It is a concern shared by the court. Ultimately, Dr Wynn Owen disagreed with the Department's position, noting that the needs of people like the respondent, are greater than the average and that there is good research suggesting that treatment interventions should be multimodal, and that intensive treatment in terms of both individual and group therapy can be beneficial, even if done together.[241]
[239] ts 72.
[240] ts 66.
[241] ts 72.
In her oral evidence, following Dr Wynn Owen's evidence at the hearing, Ms Thatcher noted that, on the basis of Dr Wynn Owen's recommendations, the respondent could be referred again for consideration for individual treatment to occur in parallel with group intervention, and that she would support that referral.[242] On the final day of the hearing, counsel for the State provided an update in respect of individual psychological counselling, stating that, since Ms Thatcher gave her evidence, the respondent had been referred again to the Forensic Psychological Intervention Team, that the referral had been accepted, and that he had been allocated a clinician.[243] That is commendable, albeit tardy.
[242] ts 97.
[243] ts 133.
If the respondent were to be released into the community under a supervision order, Dr Wynn Owen was of the view that the order should be for between eight and 12 years and that the conditions should reflect specific high risk situations, including substance use, associating with antisocial peers and unsupervised contact with young or vulnerable females. I note that, whilst Dr Wynn Owen considered that the draft supervision order conditions proposed by COMU address the respondent's risk factors to the extent that it is possible to do so, he did not state that the risks would be addressed adequately by such conditions.[244]
Assessment of risk by Dr Yewers
[244] BOM 641 [202].
Dr Yewers conducted two interviews with the respondent, on 2 February 2023 and 9 February 2023. Her approach was similar to Dr Wynn Owen's approach in dealing first with background information, exploring the respondent's accounts of and attitudes to his offending, and then conducting a formal assessment using actuarial and guided structured assessment tools.
Family background and attitudes
I have referred earlier in these reasons to the statements made by the respondent to Dr Yewers concerning his father. It is sufficient to note here that what the respondent said about his father was similar to what he said to Dr Wynn Owen and what he had said in the past, in terms of glorifying his father's antisocial and violent conduct. In relation to male entitlement, he told Dr Yewers that he told 'womans' what to do, and, 'if they didn't listen, that's when they get attacked. If they do as they're told, its okay'.[245]
Plans for the future
[245] BOM 648 [37].
As I noted in respect of Dr Wynn Owen's evidence, Dr Yewers' evidence in respect of what the respondent said concerning future planning needs to be considered in the broader context of Dr Yewers' formal assessment of the respondent.
The respondent told Dr Yewers that he planned to remain in the Perth area if released, and, although he had been referred to the HRSO Supported Accommodation Program, contracted to Uniting WA, at the time of the interview his referral had not been accepted and he was yet to secure any accommodation.[246] In terms of family and support, the respondent explained to Dr Yewers that both of his brothers were in prison and that, although his mother lives in the Perth metropolitan region, and he calls her every few days, he did not intend to contact her if released, as his brothers and mother have alcohol use problems. He said that spending time with them would make him more likely to fight and drink.[247] Dr Yewers noted that, at the time of her report, the respondent had no prosocial family or peer support to assist him if released,[248] and that it is something for which there needs to be preparation whilst the respondent is in custody, so that appropriate supports can be in place at the time of his release.[249]
[246] BOM 660 [93].
[247] BOM 645 [25].
[248] BOM 661 [98].
[249] ts 88.
Regarding abstinence from alcohol, the strategy advanced by the respondent to Dr Yewers seemed limited to declining offers of alcohol and avoiding family and friends who drink. The respondent considered that his shame would stop him from attending places where family and friends may be in attendance, which would help him avoid the temptation to drink. As to his motivation for abstaining, the respondent cited his fear of offending in a similar manner against the 7‑year‑old child.[250] Dr Yewers was of the view that, whilst avoidance is part of a risk management plan, it cannot be the entire plan. In the respondent's case, avoidance is unrealistic, as the respondent is likely to have contact with alcohol and alcohol-affected persons at some stage.[251] Having noted in her report that the respondent acknowledged that he has difficulty saying 'no' when offered alcohol,[252] Dr Yewers said in oral evidence that the respondent needed to develop skills that would help him say 'no'.[253]
[250] BOM 649 [42], 659 [91].
[251] ts 80.
[252] BOM 658 [83].
[253] ts 80.
The respondent also indicated an intention to seek employment if released, relying on employment related courses to help. He acknowledged that his sexual convictions may preclude him from driving trucks on a mine site, as he wanted to do, but he was open to gardening, mechanics, or plumbing work if that was the case. The respondent indicated that outside work hours, he planned to paint or play Xbox games.[254] Consistent with Dr Wynn Owen's opinion, Dr Yewers considered that the respondent demonstrated a limited understanding of the risk factors relevant to his offending and that his self-management plans were underdeveloped.[255]
[254] BOM 660 [92].
[255] BOM 661 [98].
Like Dr Wynn Owen, Dr Yewers was of the view that the respondent would benefit from supported input into the making of his plans for release. Dr Yewers noted that the ISOTP contains a module on risk management planning, which she felt would be a good base for the respondent to build on with the assistance of an individual psychologist, who could help tailor the plan to specifically address what the respondent is likely to face upon release.[256]
Risk assessment
[256] ts 92 - 93.
The risk assessment undertaken by Dr Yewers utilised the Static‑99R, the Violence Risk Scale - Sexual Offender Version (VRS‑SO) and the PCL-R. The VRS-SO serves a similar function to the RSVP. It uses static (historical) and dynamic (changeable) risk predictors (or variables) 'to evaluate the future risk of sexual recidivism, to inform the delivery of sexual offender treatment, and to assess change in risk following treatment and/or over time'.[257] Dr Yewers noted that empirical evidence has demonstrated that the VRS‑SO is predictive of sexual recidivism. There was no challenge to the efficacy of the tool in the context of this case. I am satisfied that I can rely on Dr Yerwers' opinion based on her use of the assessment tools and her clinical judgment.
[257] BOM 664 [106].
The results obtained by Dr Yewers for the Static-99R and PCL-R were consistent with the results obtained by Dr Wynn Owen.[258]
[258] BOM 663 [102], 671 [131] - [133].
Under the VRS‑SO, the respondent's risk of recidivism fell within the 'Well Above Average Risk' category, with a score of 39 out of a possible 51 for dynamic variables predictive of recidivism.[259] Items are scored on a four point scale, from 0 to 3. Items rated as a '3' indicate that the risk factor is present, significant, and related to sexual recidivism risk. Items rated as '2' indicate the presence of the risk factor to a less substantial degree. Items with a 2-point or 3-point rating are considered criminogenic and are intended to be targeted in treatment.[260] Items rated as '0' are unrelated to sexual violence and do not require treatment. Items rated as '1' are less positive than a '0' rating and represent lower risk areas that only require monitoring or low intensity treatment.[261]
[259] BOM 669 [126].
[260] BOM 665 [108].
[261] BOM 665 [108].
The variables in respect of which the respondent was rated '3' were: cognitive distortions; interpersonal aggression; lack of insight; substance abuse; lack of community support; being released into high risk situations (which is related to planning and strategies to manage risk); impulsivity; problems in complying with community supervision; problems in complying with treatment, and intimacy deficits. He was rated '2' for sexual compulsivity, sexual offending cycle, and deviant sexual preference (in that his offending indicates some deviant sexual interest in children and adolescents).
Although Dr Yewers rated the respondent '1' for sexual deviant lifestyle, noting that his lifestyle does not appear to be characterised by activities that contribute to sexual deviancy, she nevertheless considered there was some indication that he may sometimes seek out opportunities to access potential victims by walking around or targeting them when they are alone and/or vulnerable.[262]
[262] BOM 665 - 666 [109].
In relation to sexual compulsivity, Dr Yewers noted that a common feature of his offences has been that he has been sexually aroused and felt compelled to act on it despite lacking consent from his victims.[263]
[263] BOM 666 [110].
Although Dr Yewers rated the variable of 'offence planning' a '1', noting that his offences were largely opportunistic and unplanned, she noted that there had been some planning in respect of the offence in 2007.[264]
[264] BOM 666 [111].
The rating of the variables is largely informed by evidence to which I have already referred, and the presence of the criminogenic factors is readily apparent from that evidence.
In oral evidence, Dr Yewers acknowledged that the dynamic variables can be addressed through treatment.[265] However, she said treatment gains were not guaranteed and depended on the individual receiving treatment and whether those gains could be maintained and tested.[266]
[265] ts 85 - 86.
[266] ts 91 - 92.
Dr Yewers also considered the likely scenarios in which the respondent would commit a sexual offence in the future. She considered that the most likely risk scenario would involve the respondent committing a sexual offence when he is sexually aroused and uses force or violence to gain victim compliance with a victim who may be known to him, or who might also be a stranger, and may be vulnerable due to age, isolation or intoxication. The respondent is likely to behave impulsively and opportunistically, and is unlikely to engage in sophisticated planning or grooming. Being intoxicated would increase the respondent's risk of sexually offending, but intoxication was not necessary for him to offend if he was sexually aroused.[267]
Summary and recommendations
[267] BOM 672 [137].
Combining the results of Static-99R and the VRS-SO, Dr Yewers was of the opinion that the respondent presents a 'well above average risk' of sexual recidivism and that he had received limited treatment, with some of his criminogenic needs, such as alcohol abuse, not being addressed at all. Dr Yewers considered that there were currently no identifiable factors that would substantially moderate the respondent's risk. She also noted that the respondent has a 'high density' of outstanding treatment needs, low insight into his risk, a lack of a comprehensive risk management plan, no concrete actionable plan for reintegration into the community, and no accommodation.[268]
[268] BOM 672 [139].
In light of all the relevant considerations, it was Dr Yewers' opinion that the respondent presents a high risk of committing a future serious offence if he is not subject to a restriction order.[269]
[269] BOM 672 [138] - [139].
If placed on a CDO, Dr Yewers was of the view that various matters would need to be addressed prior to returning the respondent to the community, including: the treatment of his criminogenic needs around sexual offending and alcohol misuse, with consideration of his cultural and literacy needs; the development of an adequate plan to self-manage his risk; and a viable reintegration plan that includes stable accommodation, support and constructive activity.[270] Dr Yewers was of the view that the respondent's criminogenic needs were of a density and elevated to the point where he needed intensive intervention, preferably in a group setting, for both his sexual offending and his alcohol and drug use.[271] Although Dr Yewers did not include a recommendation in her report that the respondent receive both group and individual treatment, she did believe that, ideally, group-based intensive treatment should be followed up by engagement with a psychologist.[272]
[270] BOM 672 - 673 [140].
[271] ts 81.
[272] ts 93.
If the respondent were to be released on a supervision order, Dr Yewers considered a period of five years to be sufficient, recommending that the conditions imposed take into account: the need for intensive intervention, including for the respondent's alcohol use; the crucial role of monitoring and oversight due to the respondent's underdeveloped risk management plans, particularly until any interventions in respect of criminogenic factors can make progress; the need for reintegration support including support to engage in meaningful activity; and his need to establish and develop prosocial supports.[273]
Evidence of Ms Serrano (CSA report)
Current programmatic intervention
[273] BOM 673 [141].
Ms Serrano is an SCCO who was allocated the preparation of the CSA report and attended on the respondent for that purpose. Notwithstanding the issues described above in relation to providing offenders in custody with treatment for sexual offending in the absence of a CDO or a definitive release date, Ms Serrano noted that the respondent had been placed into an ISOTP, which was due to commence on 22 May 2023. Ms Serrano noted that, as at the time of preparing the CSA report, the respondent's referral to the Forensic Psychological Intervention Team had been declined, due to a number of issues, including the view that his treatment needs would be best met by group intervention.[274]
Plans for the future
[274] BOM 681 - 682.
As he had said to the expert witnesses, the respondent told Ms Serrano that he would not be seeking accommodation with family, and he intended to avoid family members in the community due to their alcohol use. The respondent's community supervision plan, which was forwarded to Ms Serrano for her interview with him, was limited and included the plan to isolate himself inside his home upon release.[275] This adds weight to Dr Yewers' concerns regarding the respondent's engagement in meaningful activity.
[275] BOM 682.
During his interview with Ms Serrano, the respondent did not identify any community supports who might be available to him upon release. He did indicate that he had recent engagement with two community support agencies, namely ReSet and Outreach. However, contact with those agencies confirmed, respectively, that he did not have an active file and he had not engaged with them since 2018.[276]
[276] BOM 685.
The respondent has not indicated any plans to commence education or employment upon release. Although English is the respondent's second language, and English literacy has been raised as an issue for him, he denied having any literacy issues. He has said he is willing to find work, but he provided limited information on how he intended to do that, beyond his indication that he needed to get 'tickets' first, and that he may like to do some garden work or carpentry.[277]
[277] BOM 683.
During her interview with the respondent, Ms Serrano informed him that it was unlikely that accommodation would become available through the HRSO Supported Accommodation Program by the time of his restriction order hearing, due to the waitlist. However, he was also advised that appropriate engagement with the programme would eventually lead to an offer of accommodation. Ms Serrano was of the view that the only realistic accommodation option for the respondent was supported accommodation.[278]
[278] ts 105.
The respondent commented that returning to Port Hedland, where accommodation may be available, was an option, but he would face retribution for his offending which, as he described it, could see him 'kill' someone in 'self-defence'.[279] Notwithstanding these comments, the respondent made it clear to Dr Wynn Owen that he was concerned about the risk of tribal punishment if he returned to the North-West and that he would definitely be remaining in the metropolitan area.[280]
[279] BOM 682.
[280] ts 59, 68 - 69.
A further issue with the respondent residing in Port Hedland, is that the Victim-Offender Mediation Unit has advised that the victims of the respondent are believed to be in the Port Hedland area, which may pose a difficulty in implementing exclusion zones to prevent the respondent from coming into contact with his victims, if he were to be released on a supervision order in Port Hedland.[281]
[281] BOM 687.
A thorough review of alternative accommodation options in the CSA indicate that there are currently no viable accommodation options for the respondent apart from such accommodation as may become available in the future through the HRSO Supported Accommodation Program.[282]
Behaviours to be managed
[282] BOM 684 - 685.
Ms Serrano gave evidence about proposed conditions for a supervision order in the event that the court considered it appropriate to make such an order. The conditions had been formulated to address specific risk factors identified by the expert witnesses. It is not necessary to discuss Ms Serrano's evidence in detail, because it is apparent from the expert evidence and my own analysis of the respondent's history, that, at this time, no reasonable conditions would ensure adequate protection of the community.
Post-sentence supervision order
I note finally that on 12 October 2022, the Prisoners Review Board made a post-sentence supervision order (PSSO) under pt 5A of the Sentence Administration Act 2003 (WA) in respect of the respondent, which would have come into operation on 10 November 2022 and expired on 9 November 2024. The making of such an order is understandable as a minimum measure to mitigate the respondent's risk in the absence of some other form of restriction, notably a restriction order under the HRSO Act. The reasons given for the PSSO, which are stated within the body of the order, include factors that have been discussed above, including outstanding treatments needs and a lack of sufficient protective strategies.
The conditions of the PSSO are not as extensive as the proposed conditions for a supervision order, and would not provide the same degree of protection of the community.
Need for protection of the community from risk of further serious offences - s 7(3)(i) HRSO Act
As I said in outlining the statutory provisions and relevant principles, ensuring adequate protection of the community is not the only factor the court must take into account in determining whether an offender is a high risk serious offender, but it is identified in several places within the HRSO Act as the paramount consideration.
There is a clear need to protect women and girls in the respondent's community, wherever that might be at any particular time, from the risk that he would commit a sexual offence against them. Such offending is likely to involve a degree of violence and/or the exploitation of a vulnerability of the victim, and is likely to result in significant enduring trauma. The respondent's likely scenario for committing a further sexual offence is likely to have serious consequences for his victim and the community more generally, as the damage to victims can affect their communities. The need to ensure that the respondent has changed his view of women, violence and sexual entitlement, is key in determining whether his risk can be managed adequately to protect the community.
The parties' submissions
The applicant's submission was that the evidence established that the respondent poses an unacceptable risk of committing a serious offence if he is not subject to a restriction order, and that, at this stage, the only appropriate order is a CDO, as, even putting to one side the unavailability of suitable accommodation, the respondent's outstanding treatments needs are too significant to enable his risk to be managed in the community pursuant to a supervision order, so as to ensure adequate protection of the community.
It is not necessary to canvass the submissions of the parties in detail, because ultimately, Ms Turtley-Chappel, counsel for the respondent properly conceded that the court can be satisfied on the evidence presented that the respondent presents a high risk of committing a sexual offence if he is not subject to a restriction order, and that, having regard to his treatment needs identified by the experts and the lack of accommodation, the making of a supervision order is not a realistic option. Ms Turtley-Chappel submitted that the court could not be satisfied that the respondent is a high risk serious offender on the basis of the non-sexual violent offending alone, but she acknowledged that the latter offending, and particularly the respondent's use of violence in committing the sexual offences, is a relevant consideration in determining the seriousness of the risk that the respondent would commit a serious offence in the future if not subject to a restriction order.
Conclusion - Whether the respondent is a high risk serious offender?
The evidence presented at the hearing is acceptable and cogent. The opinions expressed by Dr Wynn Owen and Dr Yewers were persuasive. Having regard to all of the evidence I have set out above, I am satisfied to a high degree of probability on the basis of that evidence and having regard to the respondent's antecedents that the respondent poses a high risk of committing a serious sexual offence against a woman or a child if he is not subject to measures to adequately mitigate that risk. I am satisfied that the risk is unacceptable, in particular having regard to the harm that would be caused to a potential victim. I am also satisfied to a high degree of probability that there are no measures short of a restriction order that would provide adequate protection of the community. For reasons I have given, the PSSO made by the Prisoners Review Board would not ensure an adequate degree of protection. Therefore, I am satisfied that a restriction order is necessary to ensure adequate protection of the community against the unacceptable risk that the respondent will commit a serious offence. I have reached those conclusions for the following reasons:
(1)The respondent has demonstrated a propensity to commit serious sexual offences as I outlined above, and there is some pattern to his offending that indicates that he is likely to commit a sexual offence against a vulnerable victim, potentially even a very young prepubescent child, and is likely to use force and even violence involving striking the victim to overcome resistance.
(2)A factor that increases the respondent's risk of committing such an offence is his abuse of alcohol, which leads to intoxication and inhibition. He has been diagnosed with an alcohol use disorder, and he has not addressed this problem adequately. His strategies for avoiding alcohol are rudimentary and unrealistic. He needs to address this issue in further treatment, and must formulate realistic strategies for avoiding a relapse into alcohol use.
(3)The respondent has a high sexual drive and is prone to act compulsively, and without regard for the rights of women or girls, to satisfy his sexual drive, by imposing himself on a vulnerable victim.
(4)Prior treatment has not mitigated the respondent's risk, because he continues to demonstrate a lack of meaningful insight or empathy for his victims.
(5)The respondent has continued to exhibit attitudes that put him at higher risk of committing a serious sexual offence. Those attitudes include the minimisation and justification of his past sexual offending, his entrenched attitudes of hostility and sexual entitlement toward women, his consistent glorification of his father's violent and misogynistic behaviour, and his pride in following that example. His attitudes no doubt had their origins in his dysfunctional upbringing, and his exposure to violence and sexual abuse of women, which was sad and at times traumatic, but which appears to have inured him to those things. However, whatever the origins, the enduring nature of the respondent's cognitive distortions means that his risk of committing a serious sexual offence is likely to persist unless he can come to appreciate the wrongfulness of his beliefs and attitudes, and that they are not culturally acceptable within his Indigenous community or the broader community.
(6)The respondent has been diagnosed as having an antisocial personality disorder, and, although he does not meet the criteria for psychopathy, he has been found to exhibit a number of psychopathic traits. When combined with the other factors, it is another factor tending to elevate the respondent's risk of committing a serious offence.
(7)The respondent does not have supports within the community. It is unfortunate that the type of support one would normally turn to, namely family, is problematic for him, because of the risk of relapse into alcohol use and violence, which he recognises.
(8)I accept the assessment of Dr Wynn Owen and Dr Yewers that the respondent poses a high risk of committing a serious offence if he is not subject to a restriction order. Further, the risk of reoffending would be relatively imminent upon release, given that he has previously committed a serious sexual offence within three months of release from prison. The risk is unacceptable, for the reasons I have stated above.
Conclusion - CDO or supervision order
Having determined that the respondent is a high risk serious offender, it is necessary to determine which restriction order the court should make.
The unavailability of suitable accommodation to which the respondent could be released is determinative, because stable accommodation in an environment where supervision and monitoring can be carried out effectively, is necessary in order for a supervision order to provide adequate protection of the community. However, even if suitable accommodation had been available, I am satisfied that a supervision order would not provide adequate protection of the community at this stage. That is because the respondent's outstanding treatment needs are too significant.
The efficacy of a supervision order depends on the offender having a reasonable degree of internal resources to mitigate his risk in conjunction with the external constraints, supervision and treatment within the community. The respondent has been found to lack adequate planning or strategies to manage his risk. These are things he needs to work on with a view to demonstrating in due course that he has appropriate insight into his risk factors and skills and strategies to avoid and deal with high risk situations.
Moreover, I am not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order. That is due in part to the respondent's history of poor compliance when subject to supervision or community orders. It is also due to his demonstrated hostility to women in authority during his most recent period of custody, and also to authority more generally, when he is not happy with attempts to change his attitudes or beliefs. I have significant doubt that the respondent would comply with directions if he considered them unreasonable or unnecessary. The respondent's apparent lack of appreciation of the restrictions, limitations and conditions that he may be subject to on a supervision order leaves me with no confidence that he would have the capacity at this time to comply.
Further, I am not satisfied on the balance of probabilities at this time that the respondent would comply with the condition that he is not to commit a serious offence, for the reasons I have given in determining that the respondent is a high risk serious offender.
For all of those reasons, I have come to the conclusion that the only appropriate order at this stage to ensure adequate protection of the community is a CDO.
Recommendations
In outlining the experts' evidence, I set out in detail their recommendations. In the course of my reasons above I have also set out matters the respondent needs to do to reduce his risk in due course. The respondent has already demonstrated a preparedness to engage in treatment. However, he has done so in the past, yet treatment was not previously successful, as I have explained. An issue has been raised about deficits in his learning, despite the findings on neuropsychological testing not revealing any significant cognitive deficits. The recommendations that have been made by the experts indicate that learning difficulties must be taken into account in providing the respondent with treatment, whether in a group programme or in individual treatment. The evidence from Ms Thatcher and Ms Serrano indicated that the experts' recommendations will be taken into account in formulating the appropriate form of delivery of course material or individual treatment to the respondent. It is to be hoped that the respondent's motivation to engage in treatment perseveres and that he is better able to assimilate the things he learns on this occasion. That ought to have started with the ISOTP.
The only matters I need specify by way of recommendations are that:
(1)the respondent be given the opportunity to engage in a group programme for sexual offenders (which should have already occurred, by way of the ISOTP);
(2)the respondent be given the opportunity to engage in a group programme to deal with substance use, in particular to address his problem with alcohol abuse;
(3)the respondent be provided with individual psychological treatment;
(4)the respondent be considered for a course of SSRI medication, and be encouraged to undergo such treatment, if it is considered suitable in his case, as the potential reduction of his sexual drive and sexual thinking would go some way to reducing his risk of committing a serious offence; and
(5)if the respondent does undergo SSRI treatment, that appropriate monitoring of the efficacy of the medication take place, whether through a medical officer or the respondent's treating psychologist.
Order
I make an order that the respondent be detained in custody for an indefinite term for control, care, or treatment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Fiannaca
28 AUGUST 2023
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