The State of Western Australia v Byron [No 6]
[2019] WASC 29
•15 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BYRON [No 6] [2019] WASC 29
CORAM: DERRICK J
HEARD: 5 FEBRUARY 2019
DELIVERED : 15 FEBRUARY 2019
FILE NO/S: DSO 5 of 2007
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
NEVIL BADEN BYRON
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for Division 2 order - Whether offender a serious danger to the community - Whether a continuing detention order or supervision order appropriate
Legislation:
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)
Evidence Act 1906 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Ms K J Farley SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Chief Executive Officer, Department of Corrective Services v Byron [No 5] [2014] WASC 339
Director of Public Prosecutions (WA) v Byron [No 3] [2010] WASC 156
Director of Public Prosecutions (WA) v Byron [No 4] [2011] WASC 199
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 Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Byron [2007] WASC 171
The State of Western Australia v Byron [No 2] [2008] WASC 175
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Newland [2018] WASC 344
DERRICK J:
Introduction
In 2007 the State of Western Australia (the State) applied pursuant to s 8(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) for an order under s 14 of the Act and for a Division 2 order under s 17(1) of the Act to be made in relation to the respondent.
On 31 July 2007 Blaxell J allowed the application. He declared the respondent a dangerous sexual offender and made a continuing detention order in respect of him.[1]
[1] The State of Western Australia v Byron [2007] WASC 171.
On 8 August 2008 McKechnie J conducted the first annual review of the respondent's detention. His Honour found that the respondent remained a serious danger to the community but that the community would be adequately protected if the respondent was released on a supervision order containing 26 conditions, including a condition (condition 13) that the respondent 'undertake continual biological treatment for paraphilias (sexual deviancy)'. His Honour therefore rescinded the continuing detention order and made a supervision order in relation to the respondent pursuant to s 33 of the Act.[2]
[2] The State of Western Australia v Byron [No 2] [2008] WASC 175.
After McKechnie J made his decision rescinding the continuing detention order the respondent was not prepared to undergo anti‑libidinal treatment in accordance with condition 13 of the supervision order made by his Honour. The respondent was not prepared to do so due to health concerns. The respondent was therefore not released on the supervision order and remained in custody.
On 6 October 2009, 19 March 2010 and 12 May 2010 McKechnie J conducted the second annual review of the respondent's continuing detention. On 25 June 2010 McKechnie J found that the respondent remained a serious danger to the community and that as the respondent was declining to take anti‑libidinal medication there was no point in continuing the supervision order.[3] However, his Honour also considered that reimposing a continuing detention order did not appear to be possible under s 33 of the Act.[4] His Honour therefore ordered that the supervision order that he had made at the first annual review should continue.[5] His Honour ordered that the respondent could be released on a supervision order containing the same conditions as he had pronounced at the time of the first review.[6]
[3] Director of Public Prosecutions (WA) v Byron [No 3] [2010] WASC 156 [23].
[4] Director of Public Prosecutions (WA) v Byron [No 3] [23].
[5] Director of Public Prosecutions (WA) v Byron [No 3] [23].
[6] Director of Public Prosecutions (WA) v Byron [No 3] [23].
By the time of McKechnie J's decision on the second annual review the respondent had been in prison for over 15 years for his offences.
On 26 October 2010 the respondent had a lengthy discussion with Dr Cherelle Fitzclarence, Senior Medical Officer, Prison Health Services. During the discussion Dr Fitzclarence spoke to the respondent about the drug Androcur and explained some of its side effects to the respondent. At the time Androcur was not licensed in Australia for use directly as an anti‑libidinal medication.
In February 2011 the respondent commenced a course of Androcur while still in custody. Although the respondent stated that he did not wish to take the medication, he indicated that he was under the impression that the court had directed that he had to take the medication if he was ever to be considered for release.
On 6 May 2011 the respondent was diagnosed with diabetes. He also had other medical conditions including chronic obstructive airway disease, high blood pressure, obesity and high cholesterol which Androcur would or could exacerbate. Nonetheless, at the insistence of the respondent and apparently against her better judgment, Dr Fitzclarence agreed to allow the respondent to continue using Androcur on a very low dose given that it was having an appropriate effect on his testosterone level.
In May 2011 the Director of Public Prosecutions for Western Australia (the DPP) filed an application for a 'review' seeking an order that the supervision order be recalled on the basis that there were new circumstances which made the recalling of the order appropriate. The DPP submitted that the respondent was taking the anti‑libidinal treatment involuntarily and that the medication was potentially a significant risk to his health.
On 30 June 2011 McKechnie J heard the application for the review. During the hearing of the application Dr Fitzclarence gave evidence that the respondent's continuation on the medication Androcur under a supervision order was possible as the respondent's hormone levels could be monitored and if they rose appropriate action could be taken.
On 16 August 2011 McKechnie J delivered his decision on the application for the review. His Honour dismissed the application.[7] His Honour found that the respondent was not undertaking the course of Androcur involuntarily, but rather that he was participating in taking the medication having weighed the medical risks against the possibility of becoming an acceptable risk to be considered suitable for supervision within the community.[8] His Honour decided that subject to satisfactory resolution of the issue of a medical practitioner to prescribe and monitor the Androcur treatment, he was prepared to release the respondent on a supervision order for a period of seven years from the date of the order.[9] The date of the order is 15 August 2011 even though McKechnie J delivered his decision on the 'review' on 16 August 2011. Condition 9 of the supervision order required the respondent to 'undertake continual biological and anti‑libidinal treatment for paraphilias'.
[7] Director of Public Prosecutions (WA) v Byron [No 4] [2011] WASC 199.
[8] Director of Public Prosecutions (WA) v Byron [No 4] [19].
[9] Director of Public Prosecutions (WA) v Byron [No 4] [25].
In accordance with his Honour's decision the respondent was released from custody subject to the supervision order.
In 2014 the Chief Executive Officer (the CEO) of the Department of Corrective Services filed an application to amend the supervision order made by McKechnie J on 16 August 2011. The application was made on the basis that the respondent was not able to comply with condition 9 of the supervision order. In the three years since the respondent had commenced taking the Androcur medication he had developed a number of side effects including gynaecomastia and osteoporosis. Dr Adam Brett, consultant psychiatrist, had examined the respondent and recommended that the medication be reduced by half for a month and then be ceased altogether.
On 16 September 2014 McKechnie J heard the CEO's application. On the same date his Honour found that there would be no increased risk to the community if the application for the amendment to the supervision order was granted. Consequently, his Honour amended condition 9 of the supervision order by removing the prohibition on the respondent ceasing to take Androcur.[10]
[10] Chief Executive Officer, Department of Corrective Services v Byron [No 5] [2014] WASC 339.
The supervision order was due to expire on 16 January 2019.[11]
[11] The explanation for the supervision order expiring on a date more than seven years after the date on which the order was made by McKechnie J is that the respondent was sentenced to a term of imprisonment during the term of the order for an offence of contravening the order: Act, s 24(2).
Given that the supervision order was due to expire on 16 January 2019, on 9 September 2018 the State applied, in accordance with s 8(4A) of the Act, for an order under s 14 of the Act and for a Division 2 order under s 17(1) of the Act to be made in relation to the respondent.
On 31 October 2018 Hall J heard the application under s 14 of the Act. On the same date his Honour decided that there were reasonable grounds for believing that the court might, under s 17(1) of the Act, find that the respondent is a serious danger to the community.[12] His Honour therefore made orders for the hearing of the application for the Division 2 order. His Honour also ordered, pursuant to s 27A(3) of the Act, that the supervision order made by McKechnie J on 16 August 2011, as amended on 16 September 2014, continue until the State's application for the Division 2 order had been finally determined.
[12] ts 9, 31 October 2018.
On 5 February 2019 the State's application for the Division 2 order (the application) was heard before me.
On the hearing of the application the State submitted that I should find that the respondent remains a serious danger to the community and that he should continue to be subjected to a further period on a supervision order.
The respondent did not formally concede that he remains a serious danger to the community although, as his counsel put it, 'she had explained to him that it may well be open to [the court] to find in accordance with the Act that there is a need for a further supervision order'.[13] The focus of the submissions made on behalf of the respondent, which were advanced on the premise that I would find that the respondent was a serious danger to the community and that he should be released on a new supervision order, related to the term of any supervision order to be imposed and the conditions thereof.
[13] ts 90, 5 February 2019.
For the reasons set out below I have decided that the respondent is a serious danger to the community within the meaning of s 17(1) of the Act and to order pursuant to s 17(1)(b) of the Act that he should be released into the community but made subject to a 4 year supervision order with conditions.
The evidence
The State relies on the following evidence in support of the application:
1.One volume of material comprised in essence of information relating to the respondent's past offending and performance while on the supervision order, historical psychological and other reports prepared in relation to the respondent for use in the above referred to earlier proceedings under the Act, and reports prepared in relation to the respondent specifically for the application;
2.An addendum report prepared by one of the experts who had prepared a report in relation to the respondent specifically for the application;
3.Various Records obtained from the Department of Corrective Services' Community Based Information System (CBIS) for the period 27 September 2016 to 30 September 2016; and
4.The oral testimony of a number of witnesses.
The court has also been provided with a submission made by one of the respondent's victims (the victim submission). The victim submission has been provided pursuant to s 17A(3) of the Act.
At the commencement of the hearing of the application I decided, pursuant to s 17A(6) of the Act, that a copy of the victim submission should be made available to the State and to the respondent's legal representatives, but not the respondent.
The relevant statutory provisions and applicable legal principles
Section 17 of the Act provides as follows:
17.Division 2 orders
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
(2)Subject to subsection (3), 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.
(3)A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.
(4)The onus of proof as to the matter described in subsection (3) is on the offender.
The term 'offender' used in s 17(1) is defined in s 8(1) of the Act as a person in relation to whom an application for an order under s 14 and for a Division 2 order is made.
Section 7(1) of the Act provides:
Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
The references in s 7(1) to a 'continuing detention order' and to a 'supervision order' are references to an order made under s 17(1)(a) and an order made under s 17(1)(b) respectively.[14]
[14] Act, s 3.
As to the term 'serious sexual offence' used in s 7(1) (and also in s 8(1)), s 3 of the Act relevantly provides that 'serious sexual offence' has the meaning given to the term in s 106A of the Evidence Act 1906 (WA). Section 106A provides that the term 'serious sexual offence' means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years imprisonment or more, or an offence under a repealed section of the Criminal Code (the Code) if the acts or omissions that constituted an offence under that section are substantially the same as the acts or omissions that constitute an offence (the new offence) under a section or Chapter of the Code mentioned in pt B of sch 7 and the maximum penalty that may be imposed for the new offence is 7 years or more.
If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1), it necessarily follows that the person is a serious danger to the community.[15]
[15] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66], [68]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21]; The State of Western Australia v Newland [2018] WASC 344 [12].
In determining if there is the relevant unacceptable risk the court must perform a balancing exercise. On the one hand the court is required to have regard to, among other things, the nature of the risk (namely, the commission of a serious sexual offence with serious consequences for the victim) and the likelihood of the risk coming to fruition. On the other hand, the court is required to have regard to the serious consequences for the person if a continuing detention order or a supervision order is made.[16] In short, the court is required to consider whether the risk of the person committing a serious sexual offence is so unacceptable that, notwithstanding that the person has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[17]
[16] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [12].
[17] Director of Public Prosecutions (WA) v Williams [63].
Section 7(2) of the Act provides:
The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied ‑
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
In other words, before the court can find that the person is a serious danger to the community, the court must be satisfied by acceptable and cogent evidence and to a high degree of probability that there is an unacceptable risk that if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[18] This does not necessarily mean that the risk must be at some high percentage of probability, a risk may be less than 50% yet still be unacceptable. However, the court must identify what it is that constitutes 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.[19]
[18] Director of Public Prosecutions (WA) v GTR [28].
[19] Director of Public Prosecutions (WA) v GTR [28]; The State of Western Australia v Newland [15].
Section 7(3) of the Act provides as follows:
In deciding whether to find that a person is a serious danger to the community, the court must have regard to ‑
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record; and
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
Although s 7(3)(g) of the Act provides that a court must have regard to the person's criminal record in deciding whether the person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future if he were not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they have been committed. Nonetheless, past behaviour is often a good indicator of future conduct.
As is apparent from the terms of s 17(1) of the Act, if the court finds that the offender is a serious danger to the community, the court must then make a continuing detention order or a supervision order.[20] Further, and as s 17(2) of the Act specifies, the paramount consideration for the court, in deciding whether to make a continuing detention order or a supervision order, is to be the need to ensure adequate protection of the community. However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[21] The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.[22]
[20] Director of Public Prosecutions (WA) v Williams [68]; Director of Public Prosecutions (WA) v GTR [51].
[21] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21].
[22] The State of Western Australia v Latimer [2006] WASC 235 [24]; Director of Public Prosecutions (WA) v Decke [15]; The State of Western Australia v Newland [22].
With respect to s 17(3) of the Act the term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition under s 18(1) that must be included in the order. Section 18(1) of the Act specifies seven conditions that must be included in any supervision order.
For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable, the attainment of the general object of the supervision order and the Act, namely the adequate protection of the community by management and mitigation of the risk that the offender will commit a serious sexual offence.[23]
[23] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].
Section 17A(7) of the Act provides, so far as is relevant, that in considering the application the court can have regard to the victim submission.
Is the respondent a serious danger to the community?
I turn to deal with the question whether the respondent is a serious danger to the community within the meaning of s 17(1) by reference to the factors specified in s 7(3).
Factors specified in s 7(3)
Antecedents and criminal record - s 7(3)(g)
Antecedents
The respondent was born on 31 August 1949. He is therefore now 69 years old.
The respondent's childhood and early adult years were for present purposes sufficiently summarised by Blaxell J in The State of Western Australia v Byron[24] in the following terms:
The respondent was born in Western Australia and grew up in a country town. He experienced a difficult childhood as a result of health problems due to a premature birth, physical mistreatment by his father who drank alcohol excessively, and rejection by the other members of his family. After his father died his mother fell ill and he was placed in an orphanage at 10 years of age. Subsequently, his mother remarried and he returned to her care. He claims that during this period he was mistreated by his step‑father and also sexually abused by two of his brothers.
The respondent never formed any lasting friendships, and did not perform well at school. He left both school and home at the age of 14 years, and thereafter worked in a variety of occupations while travelling extensively within Western Australia and inter‑State. He married at the age of 21 years but his relationship with his wife lasted only three months. It does not appear that he has ever developed any other significant relationships.
[24] The State of Western Australia v Byron [16] ‑ [17].
The respondent's parents are deceased. He is estranged from his siblings and extended family.
The respondent has two children born to different mothers neither of which was the woman to whom he was briefly married. He has no contact with either of his children.
The respondent has been diagnosed with several health issues including hypertension, osteoporosis, diabetes (non‑insulin dependent, Type II), elevated cholesterol levels and chronic obstructive pulmonary disease. He is prescribed medication to treat or manage these conditions. He is compliant with his prescribed medication regime.
The respondent has no history of serious mental illness.
The respondent has been diagnosed with paedophilia. He is prescribed Fluoexetine, a Selective Serotonin Reuptake Inhibitor antidepressant medication that impacts on his libido. His use of this medication is monitored through contact with his general practitioner.
Criminal history
The respondent has a long record of convictions for offences of a sexual nature.
The respondent's relevant offending commenced in 1970 when he was 21 years old and continued until he was imprisoned for multiple child sexual offences in 1995. In total the respondent has been convicted of 37 offences. The offences were committed against 10 children, both male and female. With one exception the children were aged between 3 and 16 years. One of the children was older than 16 years.
The respondent's offending was for present purposes sufficiently summarised by Blaxell J in The State of Western Australia v Byron[25] in the following terms:
[25] The State of Western Australia v Byron [5] ‑ [14].
The respondent's first offence in 1970 occurred while he was sweeping out shearer's quarters and a 3‑year‑old girl came into the room. He put her on a bed, touched or penetrated her vagina with his finger, and then inserted two (dead) burnt matches into her vagina. He was convicted of indecent dealing with a female under 16 years of age and sentenced to 2 months imprisonment.
In 1974 the respondent was placed on 3 years probation after being convicted of an offence of aggravated assault. This offence occurred at a beach after the respondent had shown a 10‑year‑boy and an 8‑year‑old girl some pictures of nude women. He then took the girl into some nearby sand dunes and touched her vagina through her shorts.
In 1977 the respondent was convicted in South Australia of indecent behaviour, but no details of this conviction are available.
In 1978 (when the respondent was 29 years of age) he was convicted in Queensland of wilful unlawful exposure. This incident occurred at the Ipswich State High School when the respondent entered the swimming pool area and exposed himself to female students during their swimming lessons.
In 1980, the respondent was convicted in Queensland of two offences of aggravated assault of a female under 16 years of age. These offences occurred while the respondent was with a group of children involved in swimming activities. He placed his hand inside an 11‑year‑old girl's swimming costume and touched her vagina.
In 1991 when the respondent was 42 years of age, he was convicted in Western Australia of wilful exposure. While drinking at a hotel he exposed his penis to two girls aged 11 and 12 years who were playing in the foyer area. The respondent was fined $250 for this offence.
In February 1995, the respondent appeared in the District Court and was sentenced to a total of 15 months imprisonment for four offences of indecently dealing with a child under 13 years and two similar offences committed on a child under 16 years of age. These offences were representative of a course of conduct over a period of three years during which the respondent sexually molested his two young nieces.
During the same period, the respondent committed 24 further offences of indecent dealing with or sexual penetration of five other young victims who were either his nieces or his nephews. The respondent was convicted of these offences in the Supreme Court and on 31 May 1995 was sentenced to a total of 16 years 10 months imprisonment and made eligible for parole.
These last offences involved a significant escalation in the seriousness of the respondent's offending. In this regard, there were acts of digital penetration and attempted penile penetration of one of his nieces over a two year period when she was between 10 and 12 years of age. The respondent made threats to that particular victim that he would kill her and her whole family if she disclosed what had occurred. The respondent also made similar threats to a second victim, (a 15‑year‑old niece) after subjecting her to attempted sexual penetration and two acts of sexual penetration.
The respondent also committed numerous acts of indecent dealing on three of his nephews aged between 6 years and 16 years. Yet again, he threatened at least one of those victims. By then the respondent was fairly brazen with his offending and on one occasion he molested the 6‑year‑old while seated next to him at a table notwithstanding that other members of the family were present.
The respondent was not released to parole in respect of the sentences imposed on 31 May 1995. His sentence on those offences expired on 5 March 2007.
The significant majority of the respondent's offences are 'serious sexual offences' within the meaning of s 7(1) of the Act.
In addition to his history of sexual offending, the respondent has been convicted of 18 offences of contravening his supervision order contrary to s 40A of the Act. The contravention offences were committed over a five year period between 2012 and 2017.
The details of the respondent's 18 offences of contravening the supervision order can be summarised as follows:
1.On 5 October 2012 the respondent was convicted of one offence of contravening the supervision order by having contact with two male children (no other adult being present at the time of the contact). He was sentenced to a 6 month conditional release order;
2.On 1 October 2013 the respondent was convicted of nine offences of contravening the supervision order arising out of him having had contact with the male child of an associate on a number of occasions over the period December 2012 to March 2013 (while in the presence of other adults). The nine offences included offences of failing to diarise the contact with the child and failing to report the contact with the child. He was fined $2,000 for the offences;
3.On 30 January 2015 the respondent was convicted of two offences of contravening the supervision order as a result of having been under the influence of alcohol and having been found in possession of alcohol. He was sentenced to 7 months imprisonment suspended for 12 months and fined $600;
4.On 2 October 2015 the respondent was convicted of three offences of contravening the supervision order arising out of him having had contact on the one occasion with two children, one male and one female (while in the presence of other adults). The three offences comprised one offence of having contact with the child, one offence of failing to report the contact to his community corrections officer (CCO) and one offence of failing to report the contact to the police. He was sentenced to an 8 month intensive supervision order and fined $200;
5.On 16 November 2016 the respondent was convicted of one offence of contravening the supervision order by failing to attend for supervision on 22 September 2016 as directed. He was fined $1,500;
6.On 30 December 2016 the respondent was convicted of one offence of contravening the supervision order by not being in range of his personal carried unit (PCU) for a period of 13 ½ minutes. He was sentenced to 9 months imprisonment with the commencement date being backdated to 29 December 2016; and
7.On 1 August 2017, after being released on parole on 15 May 2017, the respondent was convicted of one offence of contravening the supervision order by not being in range of his PCU for a period of nine minutes. He was fined $500 for the offence.
Following the respondent's conviction for contravening the order on 1 August 2017 his parole was suspended and he was returned to custody. On 21 August 2017 the suspension of the respondent's parole was lifted and he was released from custody. He completed his parole on 28 September 2017.
In addition to his 18 offences of contravening the supervision order, the respondent has during the period December 2011 to October 2018 been involved in 15 incidents of non‑compliance with the supervision order. These incidents of non‑compliance did not result in any charges being laid. They were dealt with by way of verbal and written warnings being issued to the respondent.
The details of the respondent's 15 incidents of non‑compliance with his supervision order can be summarised as follows:
1.Contact with a convicted sex offender on two occasions (December 2011 and December 2013);
2.Failing to comply with an increase in his anti‑libidinal medication (January 2012);
3.Contact on one occasion with the children of a male neighbour (June 2012), on another occasion with the female child of a female associate while in the presence of the female associate (May 2013) and on a further occasion with the female child of an egg farm owner (July 2013);
4.Entering an exclusion zone on two occasions (November 2013 and October 2018);
5.Failing to maintain a daily diary of activities on one occasion (January 2015);
6.Spending the night at a new property without prior approval on one occasion (September 2016); and
7.Not being in the range of his PCU on five occasions (three times in December 2016 and twice in July 2017.
On 21 August 2017 the respondent's GPS monitoring system was changed to a one piece tracking device. Since that time there have been no further contraventions similar to his prior contraventions of not being in range of his PCU.
As is apparent from my above summary of the respondent's contravention offences and other incidents of non‑compliance, 12 of the respondent's contravention offences and three of the incidents of non‑compliance related to the respondent having contact with children.
Current situation
The respondent continues to live in accommodation provided by the Department of Community Housing which he secured on 21 August 2017.
The respondent has community supports who he has met through three senior citizens' associations. He regularly attends the premises of these associations to play bingo. He also engages in social outings and fishing with members (male and female) of the associations. He has made friends with a number of similar aged persons from the associations to whom he has disclosed his past offending.
The respondent has expressed a desire to obtain accommodation by the ocean if he is not subject to a further order. He has also expressed a desire to travel.
Psychiatric reports prepared as required by s 37 of the Act and the extent to which the person cooperated when examined by the psychiatrist - s 7(3)(a)
In accordance with the orders made by Hall J on 31 October 2018, the respondent has, pursuant to s 37(1)(a) of the Act, been examined and assessed by a qualified expert, namely Dr Peter Wynn Owen, consultant forensic psychiatrist. Dr Wynn Owen was provided with all relevant material and has prepared a report pursuant to s 37(1)(b) of the Act. Dr Wynn Owen also gave supplementary oral evidence at the hearing of the application.
Report
Dr Wynn Owen's report is dated 23 January 2019. The report reveals the following.
Dr Wynn Owen saw and interviewed the respondent on 18 December 2018 and 21 December 2018.
When questioned by Dr Wynn Owen the respondent was uncomfortable discussing his past offending. He initially accepted that the offences of which he had been convicted had occurred in the circumstances described in the relevant material. When he was questioned further he maintained that his exposure/loitering type offences were probably a result of misinterpretation and that he had entered pleas of guilty to speed up the process and move on. In relation to the offences of which he was convicted in 1995 the respondent asserted that he knew that his nieces were sexually active, that they were being sexually abused by their father and that they were sexually suggestive towards him and had led him on. He strongly denied having made any threats to any of his nieces. He asserted that the offences against his nephews were their misinterpretations of non‑intentional physical contact.
The respondent denied any current or past sexual interest in children, male or female.
Prior to being specifically asked the respondent did not express any remorse for his offences or victim empathy.
The respondent informed Dr Wynn Owen that he has no sexual fantasies or thoughts. He also stated that he has no interest in forming a relationship and that he believes that a relationship would in any event never develop if he discloses his offending as required by the supervision order.
According to Dr Wynn Owen the respondent regards himself as a benign community spirited man who has been an unwitting victim of his family's past treatment of him and of circumstance. Dr Wynn Owen considers that the respondent essentially sees himself as a good man who has been hard done by.
In Dr Wynn Owen's view the respondent has continued to demonstrate anti‑authoritarian attitudes as evidenced by his breaches of the supervision order, and a pattern of untruthfulness and lying to avoid the negative consequences of his actions. In Dr Wynn Owen's view the respondent's past behaviour indicates problems with interpersonal function (inability to form and/or sustain intimate and non‑intimate relationships), poor emotional regulation, use of pathological coping mechanisms (for example alcohol use), disregard for others (sexual offending), and a lack of empathy. Dr Wynn Owen considers that overall the respondent presents as having a personality disorder with a combination of anti‑social and avoidant traits. He considers that some positive changes in the respondent's interpersonal function and emotional regulation have occurred through therapy and the effluxion of time.
With respect to the respondent's breaches of the supervision order, Dr Wynn Owen considers that two of the breaches, which involved contact with children without adults being present and which occurred in 2012 and 2013, must be regarded as having been potentially very high risk situations for sexual reoffending. He considers that a further seven breaches by the respondent of the supervision order which involved the respondent having contact with children who were in the company of other adults, must be regarded as high risk situations, albeit not as high risk as unsupervised contact, through the respondent having the opportunity to commence a grooming process.
The respondent informed Dr Wynn Owen that he did not intend to change his current pattern of activities and behaviour if he is released from the constraints of the supervision order. He stated that he plans to continue to attend senior citizens group related functions including bingo and to maintain the friendships that he has established. He stated that he is intending to continue to live in the same area.
The respondent stated to Dr Wynn Owen that he might have an occasional drink of alcohol (once or twice a year). He accepted that alcohol put him at risk of 'doing something foolish' but did not relate foolishness to sexual offending.
The respondent expressed the opinion to Dr Wynn Owen that his life would be 'easier' if he was not constrained by the supervision order. However, he did not appear to Dr Wynn Owen to view the order as having been particularly protective of the community or himself. He acknowledged that contact with children in the future would be a risk situation for him and that he would avoid such contact. However, he was unable to explain why contact with children would be a risk situation.
According to Dr Wynn Owen overall the respondent did not articulate a clear understanding of his risk situations for reoffending or any detailed strategies for avoiding risk. He did, however, demonstrate some awareness that he should not have unsupervised contact with children and that he should not drink alcohol. The respondent did not appear to correlate his mood (in particular suffering from stress, negative mood states and a low mood) with loneliness and isolation.
Dr Wynn Owen diagnosed the respondent's disorders to be paedophilia and a personality disorder with anti‑social and avoidant traits.
In assessing the respondent's risk of committing further sexual offences Dr Wynn Owen made use of two well recognised risk assessment tools, the STATIC‑99R (2016 revision) and the Risk for Sexual Violence Protocol (Hart, Kropp and Laws, 2003) (RSVP).
The respondent's STATIC‑99 score was six. This is in the Level IVb or above average risk range. In routine samples with the same score as the respondent the five year sexual recidivism rate is on average 20.5%. That is, out of 100 sexual offenders with the same risk score as the respondent, 20 would be convicted of a new sexual offence after five years in the community.
The respondent has spent a total of seven years in the community under supervision but with the potential opportunity to offend and has not committed a sexual offence. Research undertaken in 2017 by the authors of STATIC‑99 has clearly shown that the risk of reoffending declines with time spent in the community without reoffending. For the respondent this could indicate that the respondent's likelihood of reoffending based on static risk factors is now level III or average, and that the risk will continue to decline with offence free time. However, the research did not take into account supervision (whether individuals were supervised following release and/or the type of the intensity of supervision), and it is clear that supervision and monitoring plays an important role in risk mitigation. The importance of supervision to risk management varies between individuals.
The RSVP identifies in the case of the respondent a number of historical and dynamic risk factors known to increase the likelihood of future sexual offending. The historical static factors relating to victim selection, chronicity and severity of sexual violence are not changeable and continue to contribute to the risk of future offending albeit moderated by age. The dynamic risk factors present in the respondent's case include factors which are associated with an increase in risk of future sexual offending and which, if addressed effectively in treatment, can contribute to reduced risk of future offending. The dynamic risk factors identified by the RSVP as being present in the respondent's case are as follows:
1.Problems with self‑awareness;
2.Problems with stress or coping;
3.Problems resulting from child abuse;
4.Problems with substance use;
5.Problems with intimate relationships; and
6.Problems with non‑intimate relationships.
In Dr Wynn Owen's view the respondent's most significant dynamic risks for future sexual offending are firstly loneliness and isolation and the associated negative effect thereof, and secondly alcohol use.
In relation to manageability the RSVP identifies the following risks in the respondent to be taken into account in management planning:
1.Problems with planning;
2.Problems with supervision; and
3.Problems with treatment.
Using the RSVP Dr Wynn Owen identified three risk scenarios for the respondent.
The first risk scenario is that the respondent will engage in opportunistic indecent dealing with, or sexual penetration of, a female child to whom he offers friendship and inducement in the context of him feeling rejected by adults he has approached for intimacy and relating this to his childhood experiences. The respondent's motivation for engaging in this conduct will be in part sexual deviance and in part to meet unmet emotional and non‑sexual intimacy needs.
The second risk scenario is that the respondent will engage in the type of conduct referred to in the first risk scenario but accompanied by a level of physical coercion that will result in significant harm to the victim.
The third risk scenario is that the respondent will engage in opportunistic offending against a physically vulnerable (elderly or physically incapacitated) adult female.
Ultimately, on the basis of a structured clinical judgment assessment format, which involved the use of the STATIC‑99R and the RSVP (including a review of the Hare Psychopathy Checklist - Revised: 2nd Edition) as well as a detailed clinical psychiatric assessment, Dr Wynn Owen's opinion is that the respondent currently presents an average to above average risk of further serious sexual offending (between 10% and 20% likelihood of serious sexual offending within five years of release) if he is not subject to a supervision order. In Dr Wynn Owen's opinion this risk will reduce with age and with time spent in the community without reoffending. However, he considers that the respondent's apparent reliance to date on the external risk management offered by the supervision order indicates that the putative risk reduction that is suggested by reoffending risk research is, in the respondent's case, likely to be moderated by his external locus of control.
In Dr Wynn Owen's opinion the respondent's history of offending indicates paedophilia and an ongoing sexual attraction to children, with a probable preference for female victims. He considers that it is likely that the respondent's ongoing contact offending was not exclusively sexually motivated but was also motivated by a need for human connection and warmth that he could not achieve with adults.
In Dr Wynn Owen's view, although the respondent has while under the supervision order not committed a sexual offence, he has placed himself in high risk situations on a number of occasions. Dr Wynn Owen considers that the supervision order and its conditions appear to have played a very significant part in the respondent's self‑management.
At interview the respondent related much of his self‑management behaviour to the supervision order and avoiding the consequence of imprisonment. It is therefore, in Dr Wynn Owen's view, difficult to pre‑empt how removal of the constraint provided by the supervision order will affect the respondent's future risk of offending.
In Dr Wynn Owen's assessment the respondent continues to take a victim stance in relation to his current circumstances and to hold some anti‑authoritarian attitudes which may make him more likely to take a chance (drinking, contact with children) if he is not supervised. However, the respondent has established a number of ongoing pro‑social friendships which enable him to meet some intimacy needs appropriately and which he has indicated he intends to maintain.
If the respondent continues to be subjected to a supervision order Dr Wynn Owen recommends the reinstatement of counselling to assist with, and monitor, the respondent's response to being placed on a further order. He considers that any supervision order should be used to emphasise and assist the management of the respondent's most significant dynamic risks, namely alcohol use and loneliness/isolation.
Oral evidence
In his oral evidence, Dr Wynn Owen maintained the views and opinions expressed in his report. He also gave the following supplementary evidence.
As a result of his psychiatric examination of the respondent he found that the respondent met the criteria for paraphilia being paedophilia with a preference for female children but not an exclusive one. He also found that the respondent demonstrated overt personality traits in the areas of anti‑sociality and avoidance. He diagnosed a personality disorder.
Paedophilia is a part of one's personality. It is a sexual preference and a way of thinking rather than a clinical disorder. It is something which is usually a lifelong occurrence. As the sexuality of a person with paedophilia develops their particular sexual deviance emerges and it remains. It is highly unlikely that a person who has paedophilia would ever cease to have the condition. The paedophilic urges can, however, be managed. There are probably many people who have a paedophilic inclination which is kept entirely in their mind. However, it does not go away.
When he undertook the risk assessment of the respondent he found that the presence of a sexual deviance was a risk factor. Offenders who have sexual deviance tend to be more likely than others to re‑offend. Paedophile offenders are one of the groups that have a slightly higher likelihood than generalist sex offenders of offending again in the future.
He first undertook an assessment of the respondent in 2007 when the State applied for a Division 2 order to be made in relation to the respondent. The respondent's STATIC‑99R score obtained during his most recent assessment of the respondent is slightly lower than the score obtained in 2007.
His finding is that in the case of the respondent the supervision has played a very significant role in managing his risk of re‑offending. The respondent's references to not being able to do things because of the consequences for him of doing so appears to be a constant over the period that the respondent has been on the supervision order. Accordingly, he believes that there has been very little change, if any, in the respondent's overall thinking about his offending, his understanding of his risk, his risk scenario and his ability to manage. The respondent's self‑awareness has not improved. He believes that the most significant factor in managing the respondent's risk has been the supervision order.
In relation to the issue of self‑awareness the respondent appears to continue to demonstrate a lack of self‑awareness. The respondent has consistently denied that he has any paedophilic thoughts or fantasies. This is potentially a concern. The respondent is not aware of his emotional state. He is not aware of his responses to his environment. He therefore cannot sense when certain situations and emotional states might lead him to be more likely to offend. These issues are really quite significant. In fact, self‑awareness is regarded by some as one of the most significant dynamic risk factors for future offending.
The contact which the respondent had with children in the absence of adults in contravention of the supervision order occurred very early in his period of supervision. The concern is that if the respondent is unaware of what drives him to offend and then places himself at risk, he may potentially offend opportunistically without planning. This is particularly if he is also unaware of his emotional state or his sense of loneliness and isolation. His concern is that on the occasions that the respondent had contact with children in the absence of an adult, he was placing himself in a very high risk situation in an unnecessary way.
Even in the situations where the respondent had contact with children when there were adults present, he still placed himself in a very high risk situation. This goes back to and highlights the respondent's lack of self‑awareness and lack of understanding of what the supervision was 'all about' and why the particular condition preventing contact with children was included in the supervision order.
So far as his formulation of risk scenarios are concerned, he still believes that the most likely scenario for the respondent is an opportunistic offence that involves some form of indecent or sexual dealing with a child who he happens to come into contact with. This would be, in effect, a repetition of his previous offences.
He assessed the respondent as being at an average to above average risk of committing a serious sexual offence if not subject to a supervision order because it is not really possible in terms of a risk assessment to pin point that risk and have a particular numerical score on an ordinal scale. Therefore he assesses the risk as average to above average because he thinks that this is the most likely band within which the respondent sits.
The risk is likely to reduce over time. In the case of some offenders, however, the risk does not reduce. It is the paedophile offenders who are more likely to re‑offend later in life, much more so than 'say a rapist offender'.
In terms of the respondent's dynamic risks, the most significant factors in his view are a return to the use of alcohol, and the development of loneliness, isolation and lack of intimacy without him recognising the emotional toll that this takes and then looking for an outlet to manage the emotional toll. He does not believe that the respondent's offences are purely sexual. He thinks there are other drivers including a wish and a need for intimacy and contact.
He thinks that there are other significant factors present. One is obviously sexual deviance which is a very significant factor. The other is an ongoing and active libido. While the respondent does not acknowledge having an active libido in his comments to others, his descriptions of children and people suggest that his 'sexual function - sexual fantasy and libido are active'. In this regard he refers in particular to the comments made in October last year to the community corrections officer describing young girls that he saw on a train as 'nice pieces'. This is of great concern.
If the respondent is placed on a further supervision order, his recommendation is for the reinstatement of one on one psychological counselling for the first three to six months to assist with and monitor the respondent's response. He believes that if a further supervision order is imposed on the respondent this will cause the respondent considerable stress. While the respondent is aware that the imposition of a further supervision order is a possible outcome, such an outcome will be distressing for him.
He believes that it will be worthwhile for the respondent to touch base with his clinical psychologist, at least initially, just to help him through the process because the potential increased stress may also increase the respondent's level of risk.
He is not envisaging the reinstatement of long term counselling to address criminogenic needs. He agrees with the views of others that the progress that has been made by the respondent is probably as much progress as can be made. He does not believe that there is any purpose in the respondent returning to general individual psychological counselling unless something is identified in the initial short period of contact following the making of any further supervision order that suggests that the respondent is willing to start addressing specific needs or issues.
The respondent's formation of friendships within one of the senior's groups with which he is involved and which have been sustained over a period of years despite his disclosures of his offending are potentially important, protective and positive. They are a positive that has come out of the respondent's period of time under supervision.
Since the respondent's contraventions of the order relating to alcohol, he has not committed any such further breach. He believes that the respondent has taken very seriously this aspect of the supervision order.
When the respondent told him that he did not want to drink because it would lead to foolishness, his exploration with the respondent of the concept of foolishness resulted in the respondent asserting that he did not want to be convicted of drink driving because this would reduce his mobility. The respondent did not associate or relate his drinking of alcohol to sexual offending or his risk of sexual offending. The respondent certainly did not have an understanding as to why he would drink; that is, whether it was because he had emotional needs or because he was in distress or under stress. The respondent told him that he would probably only drink a couple of times a year, and that he would probably not go to the pub but that he was not really sure.
Taking into account the respondent's age but also recognising that he believes that age has not made a significant difference to the respondent's risk of re‑offending, he would say that any supervision order should be for between three and five years, probably three years. This would take him to the age of 74 or 75 by which time his physical state may have deteriorated. The respondent has a number of chronic physical illnesses and 'there have been changes' which are natural in terms of his libido that affect the prominence or the intrusiveness of any sexually deviant thinking.
He thinks that it is appropriate to continue to have a condition that the respondent is not to possess, purchase, consume or use alcohol.
It is the position that his opinion in relation to the respondent has not changed significantly since he first assessed the respondent in 2007, although he does acknowledge a number of positive factors and subtle changes when he went through the RSVP and some of the domains.
He has seen the proposed supervision order conditions attached to the Community Supervision Assessment Report prepared by Mr Timothy Snow. He has had some discussion with Mr Snow about the proposed conditions.
As to his diagnoses of paedophilia in the case of the respondent, there are a number of diagnostic systems used internationally. The most common are the 'ICD' and the Diagnostic and Statistical Manual of the American Psychiatric Association, edition 5 (DSM). The DSM outlines that for a diagnosis of paedophilia to be made there needs to be either acknowledged thinking or fantasy, or if not acknowledged, behaviours which demonstrate an interest in children that extend for at least a period of six months. Accordingly, the respondent's behaviour from the age of 21 to when he was imprisoned for his offences in 1995 is indicative of him having paedophilia. The consistency of the type of offending and the nature of the victims of that offending, even if the respondent did not himself acknowledge the existence of fantasies or sexual thoughts, supports the diagnosis of paedophilia.
It is possible that there are child sexual offenders who may not be paedophiles.
He does agree that the respondent's planning has improved over the period of the supervision order. His breaches have become less frequent. The specific breaches relating to contact with children seem to have reduced dramatically, the last contact with children being in 2015.
His finding is that the respondent's conscious reliance on an external framework and his apparent limited response to therapy suggests that it is really the external structure and constraint of the supervision order that has been significant in the management of his risk.
He thinks the number of conditions of any supervision order is important to the respondent. He thinks that the extent to which conditions can be tailored they should be specific to the risk presented by the individual but should also take into account the way the person responds to having supervision.
Any other medical, psychiatric, psychological or other assessment relating to the person - s 7(3)(b)
I have already referred to the fact that the evidence relied upon by the State includes historical psychological, psychiatric and other reports prepared in relation to the respondent. I have, of course, had regard to these historical reports. However, it is not, in order to explain the reasons for my decision on the application, necessary for me to make detailed express reference to the content of these various reports (beyond the extent to which I do so below in dealing with the factors specified in s 7(3)(e), s 7(3)(f) and s 7(3)(j)). Rather, it is sufficient for me to refer to the additional reports that have been prepared in relation to the respondent specifically for the purposes of the application.
Psychological risk assessment - Ms Hasson
Pursuant to the orders made by Hall J on 31 October 2018, the respondent has, pursuant to s 37(1)(a) of the Act, been examined and assessed by qualified expert Ms Julie Hasson, forensic psychologist. Ms Hasson was provided with all relevant material and has prepared two reports pursuant to s 37(1)(b) of the Act, the first dated 27 December 2018 and the second, an addendum report, dated 30 January 2019. Ms Hasson also gave supplementary oral evidence at the hearing of the application.
Reports
Ms Hasson's reports reveal the following.
Ms Hasson saw and interviewed the respondent on 17 December 2018. She also spoke to him during a follow up phone call on 27 December 2018.
During the assessment process the respondent was polite and cooperative and his mood was positive, although he acknowledged feeling a little anxious about the Division 2 process. A good level of rapport was established. He answered all questions spontaneously and with a reasonable quantity and quality of information.
The respondent stated to Ms Hasson that he enjoys a beer when playing bingo, pool or darts or when he is in the company of others. However, when Ms Hasson questioned the respondent about this statement given that alcohol use is in contravention of the supervision order, the respondent denied making the statement.
The respondent accepts that as part of the supervision order conditions he is unable to consume alcohol. However, he expressed a view that there are times when he would really like a beer. He indicated that when he is no longer on a supervision order he envisages a time when he will be able to drink socially. He expressed the opinion that he would be able to control the amount that he drinks.
The respondent stated to Ms Hasson that he was attracted to adult females. He denied a sexual interest in children and does not consider himself to be a paedophile. He describes his current level of sexual drive as minimal due to the effects of the prescribed Fluoxetine (SSRI) medication. He stated that he rarely experiences sexual arousal or interest. Despite these assertions the respondent on several occasions during his interview acknowledged talking to teenage girls in his everyday activities such as at the shops if they are serving him. The respondent claimed that there was nothing he could do if a teenager or child sat next to him on a bus or train stating that if he got off the bus he would be late for his appointment. He also expressed the view that it was none of his business how old somebody is and that you can 'just look at them though it can be blinking deceiving'. The respondent added that he 'saw one yesterday who looked 14 but could be 13'.
It appears to Ms Hasson that the respondent goes out of his way to converse with teenage girls. In Ms Hasson's view it is concerning that the respondent seems to pay attention to children despite claims of not being interested in them. She considers that the respondent's comments also indicate some objectification and de‑personalisation of children or others which is concerning and may be linked to an internal process of overcoming internal inhibitions not to offend.
The respondent spoke generally about his offending during his interviews with Ms Hasson. However, he tended to avoid specifics and offered limited insight into his understanding of his past behaviours. Ms Hasson's attempts to cause the respondent to elaborate were unsuccessful. In Ms Hasson's view it would be beneficial for the respondent to be able to explain how and why his offending occurred by being able to describe the early warning signs, triggers or more proximal antecedents of his offending.
The respondent denied to Ms Hasson offending against male children.
The respondent stated to Ms Hasson several times that in order to avoid offending in the future he must not get into 'the doldrums'. He stressed the importance of relationships with adults stating that he believed that one of the reasons he had offended in the past was because he 'had difficulty with grown ups' and the adults had 'not listened' and had 'pushed' him 'aside'. In Ms Hasson's view there was some evidence that the respondent continues to deflect blame onto others for his adverse life experiences rather than being able to see how he may have contributed to his own difficulties.
When Ms Hasson prompted the respondent for more specific information about his offending the respondent stated that many instances were motivated by anger and resentment. He offered the explanation that 'they can do whatever they want but I'm not allowed to do what I want'. He did not clearly explain the relevance to such thinking of offending against children. The respondent also stated that children listen to you, that they do not give direct answers and that offending 'was the easiest way to go' as he was prevented from forming adult attachments, mostly by his mother and other family members. The respondent acknowledged that he believed that children would not reject him. The respondent also acknowledged that he had never had thoughts of offending sexually against an adult. He commented that not reflecting, thinking about others or perspective taking were features of his offending.
The respondent described to Ms Hasson the protective factors that keep him from offending in the future to include keeping a journal or diary and spending time doing things that he enjoys such as fishing, jig saw puzzles, looking after his cats and watching television. The respondent indicated that communicating and spending time with similar aged peers and supports is vital to him. He informed Ms Hasson that he enjoys going on outings, chatting with friends and the camaraderie of banter and teasing that his current friendship group offers. He identified letting go of past hurt and being able to manage anger as risk moderators.
The respondent expressed a positive attitude towards the individual treatment that he had engaged in with Mr Summerton. He considers himself to be a much happier person since addressing childhood and family of origin issues. He acknowledged better coping and emotional regulation skills and improved self‑confidence, self‑esteem and social competence.
Ms Hasson assessed the respondent's risk of committing further offences. She based her assessment on structured clinical judgment involving a detailed forensic psychological assessment, review of all materials and the use of both actuarial and non‑actuarial tools. The actuarial tools used by Ms Hasson were the STATIC‑99R and the Hare Psychopathy Checklist - Revised: 2nd Edition (PCL‑R). The non‑actuarial tool used by Ms Hasson was the RSVP.
The respondent's STATIC-99R score was six which placed him at risk level IVb (well above average) for being charged with, or convicted of, another sexual offence. In 'High Risk/High Need' samples with the same score as the respondent, the five year sexual recidivism rate is 25.7% with the margin of error for this estimate being between 21.5% and 30.3%.
The respondent has been on a supervision order for seven years. It is therefore in Ms Hasson's view, relevant to consider risk estimates over a 10 year period. In 'High Risk/High Need' samples with the same score the 10 year sexual recidivism rate is 37.3% with the margin of error for this estimate being between 30.5% and 44.7%.
The respondent scored 17 on the PCL‑R. The score indicates that the respondent does not fit the construct of psychopathy. This is consistent with previous assessments of the respondent.
Using the RSVP Ms Hasson identified a number of risk factors present in the respondent's case, and three risk scenarios for the respondent.
The first risk scenario is that the respondent will commit an opportunistic sexual offence against a stranger or a prepubescent child (male or female) known to the respondent. In this scenario alcohol use may or may not be present. There may also be some grooming of the child prior to the offence including gift giving, befriending the parents and offering to help the child. The offending at this level may involve non‑coercive sexual touching followed by threats to keep quiet.
The second risk scenario is that the respondent will engage in the coercive sexual assault of a child (prepubescent and adolescent) including attempted or forced sexual penetration. In this scenario threats of harm will be likely. If the child resists then there may be some physical as well as psychological harm to the child.
The third risk scenario is that the respondent will engage in a coercive sexual assault of a child (prepubescent and adolescent) including penetration and possible physical assault or harm as well as a threat to harm the child's family if abuse is disclosed.
In Ms Hasson's view, of the three scenarios identified the first scenario is the most probable as the respondent has engaged in this type of offending on numerous occasions. The second scenario is likely to occur if the respondent repeatedly offends against the same victim depending on the amount of time and contact that he has with the child. The third scenario is the least probable.
In Ms Hasson's view all three scenarios are likely to cause significant psychological harm directly and indirectly to the children and their families.
In Ms Hasson's view if the respondent maintains his current peer supports and relationships, continues to take his medication as prescribed, does not consume alcohol and avoids contact with children 'his offending is not imminent'. However, she considers that if any of these external controls change or if the respondent experiences significant negative affectivity the imminence of risk will become more likely.
Ultimately, based on her use of the STATIC‑99R, PCL‑R and RSVP tools in combination with her forensic psychological assessment of the respondent, Ms Hasson's opinion is that the respondent presents a well above average risk of sexual reoffending within the next five years if he is not subject to a supervision order.
In Ms Hasson's opinion the respondent has a clear cycle of sexual offending. He has offended against prepubescent and post pubescent male and female victims in the context of experiencing negative emotions in order to illicit sexual pleasure and the experience of positive emotions.
During Ms Hasson's assessment of the respondent he demonstrated some, albeit limited, insight into his sexual offending by identifying that his experience of negative emotions and his lack of ability to manage them appropriately, as well as family of origin issues and excessive alcohol use, contributed to his offending behaviour. He was, however, unable to articulate his attitudes, beliefs, thoughts, cognitive distortions or describe victim selection information. Nor was he able to explain why he was more aggressive with some victims than others.
During the assessment process the respondent continued to deny some offences and minimise those that he does acknowledge.
In Ms Hasson's view the respondent tends to over emphasise the influence of alcohol during the commission of his offences. The respondent sees alcohol use as causative rather than contributory. The respondent does not recognise alcohol as a disinhibitor to possible underlying sexual drives and interest in children. He expressed the belief that if he had not been under the influence of alcohol he would not have committed the offences.
In Ms Hasson's view, while alcohol may have played some role in disinhibiting his behaviour, it did not significantly contribute to his offending behaviour because many of the offences involved a level of planning and were maintained by other more significant factors such as emotional identification with children and a willingness to have his sexual needs met by engaging in sex with minors.
The respondent demonstrated some insight into his risk of sexual offending in the future. He was able to identify high risk factors and situations such as drinking alcohol and being around children. He also acknowledged having to avoid places where children frequent or where he has previously committed offences such as the beach. He understands that loneliness and isolation have been relevant factors in his offending.
Although the respondent has adhered to his supervision conditions it is concerning, in Ms Hasson's view, that he stated that he is looking forward to going to the beach, fishing in certain locations (that he is currently excluded from visiting) and having a beer when he is no longer being supervised. In Ms Hasson's view the respondent's behaviour is conforming due to an external locus of control as opposed to him accepting and understanding why it is important for him to avoid such places and situations even when he is no longer subject to supervision and monitoring. In Ms Hasson's view there appears to be an absence of an internal locus of control. The impression she gained is that the respondent seems to have become complacent about his risk.
The respondent has demonstrated some insight into his sexual offending and has maintained some treatment gains particularly in relation to his ability to form non‑intimate relationships and engage in age appropriate hobbies and interests. In Ms Hasson's view the respondent seems to be better able to manage his emotions. The respondent commented that he is no longer as adversely affected by childhood and family of origin issues. Ms Hasson's view is that these are all positive changes. However, she considers that there is concern about the respondent's offence specific knowledge and understanding of his offending behaviour. He demonstrated an inability to describe offence specific thoughts or other immediate precursors to offending such as details about victim choice, offence type or those occasions when offending did not occur.
Ms Hasson considers that the respondent's acknowledgement of regular casual interaction with adolescents and his long history of entrenched sexual offending against children is 'perhaps at odds' with his denial of any deviant sexual interest in children.
In Ms Hasson's view a number of factors have contributed to the respondent's offending. The factors include deviant sexual interests, substance abuse including the use of such as a negative or maladaptive coping mechanism, lowered inhibitions due to substance abuse, emotional regulation difficulties, coping skills deficits, personality features including avoidant, self‑defeating and self‑sabotaging personality traits, engagement in dysfunctional intimate relations, a history of poor attachment, family of origin issues, emotional identification with children, cognitive skills deficits (including poor judgment, impulsivity, decision making errors and a lack of consequential thinking) exposure to destabilisers, and a lack of social and emotional supports. Ms Hasson considers that most of these risk factors have been moderated through intensive individual counselling, supervision and monitoring. Of concern, in Ms Hasson's view, especially in view of the amount of counselling, supervision and monitoring that the respondent has been involved in, is the respondent's focus on all the positive changes while ignoring or being unable to identify proximal risk factors and high risk situations. As a result there is a potential for the respondent to lack appropriate risk management strategies when he may need them most. In her view regular discussion of scenario based risk strategies will assist to keep reminding the respondent to be vigilant.
Ms Hasson recommends that if the respondent is determined to be a dangerous sexual offender and is made the subject of a supervision order, the order should be for at least three years. She further recommends the following:
1.Regular discussion of scenario based risk strategies occur as part of the respondent's supervision and monitoring in order to keep reminding the respondent to be vigilant of his risk factors and to help him increase his internal locus of control;
2.The respondent be required to keep a journal or diary recording his daily movements and contacts, as well as his emotions, thoughts, reflections and insights;
3.The respondent be subject to a Global Positioning System (GPS) device;
4.The respondent not have any form of contact with children under the age of 16; and
5.The respondent abstain from alcohol and subject himself to regular breath testing.
Oral evidence
In her oral evidence Ms Hasson maintained the views and opinions expressed in her report. She also gave the following supplementary evidence.
In making use of the STATIC‑99 risk assessment tool she came up with the same score as Dr Wynn Owen. Even giving the respondent the appropriate risk reduction due to his advancing age, the respondent still scored six which placed him at well above average.
When she looked at the time spent by the respondent in the community, which generally indicates a decrease in risk, and she looked at the way this was calculated in the research, the respondent had many other dynamic risk factors that really did not allow for the full reduction that some other offenders might receive. So overall, her opinion is that the respondent remains a well above average risk. She took into account all the factors that are normally associated with the decline in risk over time spent in the community.
In her opinion the effect of the supervision order on the respondent has been to contain him engaging in, for the most part, high risk behaviour. In the earlier period of supervision the respondent was still doing things that he should not have been doing. However, with the constant supervision and monitoring, and the consequences for him of breaching the conditions of the supervision order, the respondent has managed to moderate his behaviour and cease certain behaviours altogether. Therefore, the supervision and monitoring has been a key to that 'constant presence of mind, constant reminder that there are certain things he just cannot be doing in order to protect himself from offending and to protect the community'.
When she applied the RSVP she did not reach any dramatically or significantly different conclusion to Dr Wynn Owen.
Self‑awareness is a risk factor for the respondent. The respondent is very simplistic when he talks about his risk factors. He is not able to articulate or explain why it is important that he not do what he is prevented from doing. He has no depth of understanding about his risk factors. His thinking is quite concrete. He knows that he must avoid children and must not drink alcohol, but he cannot appreciate why doing these things will be a problem for him.
When she interviewed the respondent he told her that alcohol is something he would like to consume in the future. He specifically mentioned that when he was playing darts or when he was socialising with friends he would like to drink alcohol. He did not make any comment about wanting to have contact with children in the future. He did not suggest that that was something he wanted to do. He seems to understand that he cannot have contact with children.
The type of offending that she identifies in the first of the risk scenarios referred to in her report is very similar to the respondent's past offending. The offending would be opportunistic and not involve any detailed planning. It would more be just the result of a lack of focus, a lack of concentration and a lack of awareness when he is in contact with a child. It may or may not occur in conjunction with the consumption of alcohol.
Although it would depend on the child, one would assume that the psychological harm for the child in the second and third of the scenarios that she identifies would be far more serious than for the child in scenario one. However, if a child is touched in any way inappropriately this is still likely to cause psychological harm to the child.
When the respondent was released to parole in May 2017 he was offered the opportunity to re‑engage in psychological counselling. However he declined the opportunity as he did not see the need for such counselling.
Whether or not the person's participation in any rehabilitation program has had a positive effect on the person - s 7(3)(f)
As is apparent from what I have said above in dealing with the matter specified in s 7(3)(e), the respondent's participation in the SOTP and in long term individual counselling with Mr Summerton has had some positive effects on him. In particular, the treatment and counselling engaged in by the respondent has resulted in the respondent gaining a limited understanding of the factors underlying his offending, improving his functioning in relationships and, most notably, improving his commitment to self‑regulate his behaviour regarding contact with children.
The risk that if the person were not subject to a continuing detention order or a supervision order the person would commit a serious sexual offence - s 7(3)(h)
The respondent is a diagnosed paedophile. As I have already indicated, I am satisfied on the basis of the evidence to which I have referred that he continues to have a deviant sexual interest in children, particularly female children. A number of his breaches of the supervision order have involved contact with children, although I acknowledge that the last of this type of breach occurred in 2015. He appears to be more than willing to casually engage with female children on a regular basis and to pay attention to them despite his claims of not being sexually interested in them.
The respondent's insight into his sexual offending is limited. He lacks self‑awareness and is a very concrete thinker. Although he has demonstrated an ability to identify his main risk factors (drinking alcohol, being around children, loneliness and isolation) he does not have any real appreciation of why these factors do give rise to a risk of him reoffending. He does not have any depth of understanding of the link between the factors and his risk. Consistently with this lack of understanding he has expressed an intention to return to consuming alcohol, albeit on an occasional basis, if he is not subject to a supervision order.
The clear consensus of opinion among the experts is that the respondent's conduct, particularly in more recent times, in avoiding putting himself in situations that give rise to an increased risk of him offending is not the result of any real acceptance or understanding by him of the need for him to do so, but rather the result of an understanding by him that if he does not comply with the conditions of the supervision order he will suffer adverse consequences. In other words, the consensus of opinion is that the monitoring and supervision provided by the respondent's supervision order has played a very important role in managing the risk of him committing further sexual offences.
The respondent has been assessed by Dr Wynn Owen as presenting an average to above average risk of sexual reoffending if not subject to a supervision order. He has been assessed by Ms Hasson as presenting a well above average risk of sexual reoffending if not subject to a supervision order.
In light of the above matters I am satisfied that if the respondent is not subject to a continuing detention order or a supervision order there is, to use the terminology of the experts, at least an above average risk that he will commit a serious sexual offence against a female child, and a lower but still substantial risk that he will commit a serious sexual offence against a male child.
The need to protect members of the community from the risk - s 7(3)(i)
I have, in dealing with the matter specified in s 7(3)(b), referred to Dr Wynn Owen's evidence and Ms Hasson's evidence as to the risk scenarios relevant to the respondent. It can be safely assumed that offending of the nature specified in the first and most likely of the scenarios identified by each of Dr Wynn Owen and Ms Hasson would likely cause considerable fear and psychological harm to the child, and that offending of the nature specified in the second and third scenarios identified by each of Dr Wynn Owen and Ms Hasson would, in addition to significant psychological harm, likely cause physical harm to the child. There is therefore an obvious need to protect members of the community from the type of offences that the respondent is at risk of committing.
Any other relevant matter - s 7(3)(j)
There are no other matters of relevance in addition to those to which I have already referred that need to be taken into account.
Decision
The respondent has a significant criminal record consisting of serious sexual offences committed against young male and female children. He has an ongoing sexual interest in children, particularly female children, despite his assertions to the contrary. He has undergone programmatic intervention and counselling over the years which has resulted in him making gains in some areas. Although he is able to identify his major risk factors, his insight into, and understanding of, the factors underlying his offending remains relatively limited and relatively superficial. He remains, in the absence of a continuing detention order or supervision order, at an above average risk of committing serious sexual offences against female children and a lower, albeit still substantial, risk of committing serious sexual offences against male children. His further involvement in counselling and treatment is unlikely to have any significant beneficial impact on his risk of reoffending.
On the basis of all of the material before me and taking into account the matters to which I have referred, and findings I have made, in dealing with the factors listed in s 7(3) of the Act, I am satisfied to a high degree of probability that there is an unacceptable risk that if the respondent is not subjected to a continuing detention order or a supervision order he would commit a serious sexual offence. Accordingly, I find that the respondent is a serious danger to the community within the meaning of s 17(1).
Continuing detention order or supervision order?
The question which remains for my determination is whether the respondent should be detained pursuant to a continuing detention order, or whether he should be permitted to remain in the community under a supervision order. In deciding this question I must choose the order that is least invasive of the respondent's liberty while ensuring an adequate degree of protection of the community, adequate protection of the community being the paramount consideration.[27]
[27] Act, s 33(3).
In considering if a supervision order will adequately protect the community I must take into account any conditions that can be placed on the supervision order.
I am also, in considering if a supervision order will adequately protect the community, able to have regard to the victim submission.[28]
[28] Act, s 17A(2)(a), s 17A(7).
I cannot choose to place the respondent on a supervision order unless I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order as defined under s 18(1) of the Act.
The State submits that given that the respondent has been on a supervision order for seven years and has not, during this time, committed any sexual offences, it is open to me to be satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order in a manner, and to an extent, that is consistent with, and will enable, the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence. The State further submits that the risk presented by the respondent will be able to be adequately managed by the conditions of a supervision order. Not surprisingly the respondent, although he does not concede that he is a serious danger to the community, does not suggest that any risk that he does pose cannot adequately be managed by the conditions of a supervision order.
The State initially proposed a supervision order that contained all of the 40 conditions recommended by Mr Snow, with some amendments to two of the conditions, as well as five additional conditions. A copy of the supervision order conditions initially proposed by the State, with the amendments and additional conditions highlighted in red for ease of identification, are set out in Annexure 1. However, by the end of the hearing of the application, and in light of oral evidence given by Dr Wynn Owen, Ms Hasson and Mr Snow to which it is not necessary for me to refer, the State conceded that four of the five additional suggested conditions (conditions 12, 14, 16 and 26 in Annexure 1) were unnecessary because they did not add substantially to, or increase the protection to the community provided by, obligations imposed on the respondent by the conditions recommended by Mr Snow, and that the proposed amendment to condition 33 in Annexure 1 was in any event not appropriate in the circumstances of the respondent's case. The net result is that the State ultimately sought the making of a supervision order which contained the conditions proposed by Mr Snow, subject to the incorporation of the amendment shown in condition 33 in Annexure 1 and the addition of a condition in the terms of condition 45 in Annexure 1.
Bearing in mind the evidence given by Dr Wynn Owen, Ms Hasson and Dr Bannister as to the stress that is likely to be caused to the respondent by being subjected to a further supervision order, and the potential short term consequences in relation to risk that may result from such stress, it is, in my view, important that any supervision order imposed on the respondent does not, by the inclusion of unnecessary or superfluous conditions, appear to impose obligations on the respondent that are additional to the obligations that are in truth imposed and that are actually required to ensure the adequate protection of the community. This being the case it is my opinion that the State's above referred to concession in relation to conditions 12, 14, 16 and 26 in Annexure 1 was appropriately made. Condition 12 adds nothing of substance to the obligation imposed by condition 11. Condition 14 adds nothing of substance to condition 13. To the extent that it might be said that there is a distinction to be drawn between an obligation to 'undergo' medical testing and treatment on the one hand and an obligation to 'comply fully' with medical testing and treatment on the other, the issue can be dealt with by inserting the words 'and comply fully with' after the word 'undergo' in condition 13. Condition 16 adds nothing of substance to condition 15. Condition 26 is, bearing in mind that the respondent's victims are now all adults and therefore more than likely to report any concerning or troublesome contact with the respondent, unnecessary in light of condition 24.
I note that it was submitted on behalf of the respondent that the proposed amendment incorporated in condition 33 in Annexure 1, that is, the amendment authorising the respondent to possess, purchase, consume or use alcohol if approved in advance by his CCO, should be included in any supervision order. I do not accept this submission. In light of the significance of the respondent's consumption of alcohol to his risk of reoffending, I do not consider that the respondent, if he is to be released on a supervision order, should at this point in time be permitted to consume alcohol in any circumstances. I note that this was also the view expressed by Mr Snow.
In the victim submission the victim states that she feels that she would be most adequately protected by the respondent remaining on a supervision order. She explains that she feels this way because she is aware that the respondent has not complied with all of the conditions of his supervision order and therefore believes that the risk of his reoffending will increase if the monitoring provided by a supervision order is removed. She expresses concern that if the monitoring of the respondent provided by the supervision order is removed the result may be that other children are hurt. She requests that if the respondent is released on a supervision order that two specified conditions be included in the order to ensure her adequate protection. The requested two conditions are reflected in the supervision order proposed by the State.
The 41 conditions which the State seeks to have imposed on the respondent as part of any supervision order are extensive and stringent. They directly address the respondent's risk factors as disclosed by the evidence to which I have referred.
The respondent has now been on a supervision order for the past seven years. His performance while on the order has obviously been a long way short of ideal. However, he has not committed a sexual offence during the term of the supervision order and has, almost without exception, complied with the other specified standard obligations. Moreover, his last contravention of the supervision order constituted by having contact with children occurred in 2015. Further, his contraventions arising from not being in range of his PCU have ceased since he was transferred to a one piece tracking device. In short, his performance on his supervision order has shown a definite improvement over time. In addition, none of Dr Wynn Owen, Ms Hasson, Dr Bannister or Mr Snow expressed the view that the respondent will not, or is unlikely to, substantially comply with the standard conditions of a supervision order if he is placed on such an order. In these circumstances I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order in a manner, and to an extent, that is consistent with, and will enable, the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
I am also, on the basis of the expert evidence before me to which I have referred (none of which suggests that the respondent cannot appropriately be released on a supervision order), and taking into account the victim submission and the respondent's performance while on his current supervision order, satisfied that the need to ensure the adequate protection of the community is properly and satisfactorily met by releasing the respondent on a supervision order that is subject to the 41 conditions proposed by the State. I am satisfied that the conditions are sufficiently extensive and stringent to enable the adequate management of the risk that the respondent currently presents to the community.
The question which remains is the term for which the respondent should be required to be subject to a supervision order.
The State submits that the term of the supervision order should be at the upper end of the range of three to five years suggested by Dr Wynn Owen. In essence, the State's contention is that the term of the order should be for five years.
On behalf of the respondent it is pointed out that the respondent is now 69 years old, that his degree of compliance with his current supervision order has shown a definite improvement over time, and that the placing of him on a new order will inevitably put him under stress. It is submitted that the respondent needs 'some light at the end of the tunnel' and to be able to see that 'the matter is moving forward'. It is submitted that in these circumstances the term of the supervision order should be as short as possible.
I think that there is some merit in the submissions made on behalf of the respondent. In my view, and in light of the evidence given by Dr Wynn Owen and Ms Hasson, I have decided that the term of the new supervision order should be four years.
Conclusion
For the reasons that I have given I have determined that the respondent should be subject to a supervision order for a period of four years pursuant to s 17(1)(b) of the Act. The terms of the supervision order are set out in Annexure 2.
ANNEXURE 1
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address.
Report to, and receive visits from, a Community Corrections Officer as directed by the court.
Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.
Be subject to electronic monitoring under section 19A.
ADDITIONAL CONDITIONS
Residence
Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer ('CCO') assigned to you.
Reporting to a CCO and supervision by a CCO
Report to and receive visits from a CCO at times and places as directed by the CCO, and comply with the lawful orders and directions of a CCO.
Not commence or change employment, education, training or volunteer work without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any medical practitioner, psychiatrist, psychologist, programs mentor, support service, support person and/or accommodation provider nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re‑offending, as directed by a CCO.
Undergo medical testing or treatment, including anti‑depressant medication and anti‑libidinal treatment, as directed by a CCO in consultation with a medical practitioner or medical practitioners.
Comply fully with any treatment prescribed pursuant to condition 13.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Justice.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect, that you have, or intend to, cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment.
Attend for and comply with all testing, including testing directed without notice, as directed by the CCO on the recommendation of any medical practitioner, psychiatrist, or psychologist, for the purpose of monitoring the effect, on your health or on your risk of re‑offending, of any medication prescribed or being taken and to comply with all testing to monitor your compliance with that treatment as directed by a CCO.
Reporting to WA Police
Report to the Officer‑in‑Charge of the Sex Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, Perth WA 6000 as directed and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of the Sex Offender Management Squad or his/her delegate or authorised person.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order.
Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle.
Disclosure/exchange of information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with victims
Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Justice, or conducted in a manner approved in advance by the CCO, such latter approval being not to be given except with the express consent of the victim.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring.
Criminal conduct
Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.
Prevention of high‑risk situations
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO, and present this diary to the CCO or any Police Officer upon request.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Not possess, purchase, consume or use alcohol unless approved in advance by the CCO.
Not go to, enter or remain at any licensed premises unless permitted or required to do so for the following reasons:
(a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
(b)For a purpose, and for a duration, approved in advance by a CCO;
(c)On the order of a CCO or Police Officer.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place.
To provide a valid sample for the testing described in condition 35.
Have no contact with any child under the age of 17 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
Where any unsupervised contact with a child under the age of 17 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide details of any contact with a child under the age of 17 years both to your CCO and to the Police on the next occasion you report to that person or agency.
Not form any domestic, romantic, sexual or otherwise intimate relationship with a person who has children under the age of 17 years in their care either full time or part time, unless approved by the CCO.
Report immediately to your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with a person.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Whilst in any public place, not be in possession of any children's toy, game or confectionery capable of constituting an enticement to children, unless such possession is for a legitimate purpose.
Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by the CCO or police officer.
Inform the CCO of any contact with, or membership of, any club, association or group, and upon direction by the CCO or a Police Officer, cease such membership or contact.
ANNEXURE 2
SUPERVISION ORDER MADE BY THE HON JUSTICE DERRICK
ON FEBRUARY 2019
The Court, having found pursuant to section 17(1) of the Dangerous Sexual Offenders Act 2006 that the respondent is a serious danger to the community, orders that the respondent be the subject of a supervision order pursuant to section 17(1)(b) of the Dangerous Sexual Offenders Act 2006 for a period of 4 years, these orders to take effect immediately, on the following conditions:
You, NEVIL BADEN BYRON, must:
Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address.
Report to, and receive visits from, a Community Corrections Officer as directed by the court.
Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.
Be subject to electronic monitoring under section 19A.
ADDITIONAL CONDITIONS
Residence
Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer ('CCO') assigned to you.
Reporting to a CCO and supervision by a CCO
Report to and receive visits from a CCO at times and places as directed by the CCO, and comply with the lawful orders and directions of a CCO.
Not commence or change employment, education, training or volunteer work without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any medical practitioner, psychiatrist, psychologist, programs mentor, support service, support person and/or accommodation provider nominated by a CCO, as directed by a CCO.
Undergo and comply fully with medical testing or treatment, including anti‑depressant medication and anti‑libidinal treatment, as directed by a CCO in consultation with a medical practitioner or medical practitioners.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Justice.
Attend for and comply with all testing, including testing directed without notice, as directed by the CCO on the recommendation of any medical practitioner, psychiatrist, or psychologist, for the purpose of monitoring the effect, on your health or on your risk of re‑offending, of any medication prescribed or being taken and to comply with all testing to monitor your compliance with that treatment as directed by a CCO.
Reporting to WA Police
Report to the Officer‑in‑Charge of the Sex Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, Perth WA 6000 as directed and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of the Sex Offender Management Squad or his/her delegate or authorised person.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order.
Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle.
Disclosure/exchange of information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with victims
Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Justice, or conducted in a manner approved in advance by the CCO, such latter approval being not to be given except with the express consent of the victim.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Criminal conduct
Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.
Prevention of high‑risk situations
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO, and present this diary to the CCO or any Police Officer upon request.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Not possess, purchase, consume or use alcohol.
Not go to, enter or remain at any licensed premises unless permitted or required to do so for the following reasons:
(a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
(b)For a purpose, and for a duration, approved in advance by a CCO;
(c)On the order of a CCO or Police Officer.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place.
To provide a valid sample for the testing described in condition 31.
Have no contact with any child under the age of 17 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
Where any unsupervised contact with a child under the age of 17 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide details of any contact with a child under the age of 17 years both to your CCO and to the Police on the next occasion you report to that person or agency.
Not form any domestic, romantic, sexual or otherwise intimate relationship with a person who has children under the age of 17 years in their care either full time or part time, unless approved by the CCO.
Report immediately to your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with a person.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Whilst in any public place, not be in possession of any children's toy, game or confectionery capable of constituting an enticement to children, unless such possession is for a legitimate purpose.
Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by the CCO or police officer.
Inform the CCO of any contact with, or membership of, any club, association or group, and upon direction by the CCO or a Police Officer, cease such membership or contact.
__________________________
THE HON JUSTICE DERRICK
I have received a copy of this order. I have had explained to me and understand the effect of this order and what may happen if I contravene it.
Signed by the respondent: _____________________
Nevil Baden Byron
In the presence of: _____________________
Name and address: _____________________
_____________________
Date: _____________________
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick15 FEBRUARY 2019
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