The State of Western Australia v C - [2021] WASC 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- C [2021] WASC 160
CORAM:   QUINLAN CJ
HEARD:   21 MAY 2021
DELIVERED          :   21 MAY 2021
PUBLISHED           :   21 MAY 2021
FILE NO/S:   SO 12 of 2008
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

C
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim supervision order is desirable – Turns on own facts

Legislation:

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

Result:

Orders made pursuant to s 46(2)
Interim supervision order to continue

Category: B

Representation:

Counsel:

Applicant	:	T W McPhee
Respondent	:	A D Sullivan

Solicitors:

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

Cases referred to in decision:

The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously on 21 May 2021 and has been edited for publication.)

Introduction

On 29 April 2021, the State of Western Australia applied for a restriction order in respect of the respondent (C) under the High Risk Serious Offenders Act 2020 (WA) (the Act).
The respondent has been subject to a supervision order made by McKechnie J under the Dangerous Sexual Offenders Act 2006 (WA) since 11 November 2008. The supervision order, which was of 10 years duration, was suspended for a period of time while C served a term of imprisonment for offences committed prior to the making of the supervision order. The supervision order was therefore due to expire on 10 May 2021. On 4 May 2021, Derrick J extended the order, under s 58(3) of the Act until tomorrow, pending today's hearing.
The present application is a new application to declare C a high risk serious offender under the Act and to impose a restriction order under that Act. The preliminary hearing of the application is before me today.
Counsel advised that C was currently in hospital, but was content for me to deal with the matter today. The orders were largely uncontentious and may be made in the respondent's absence.[1]
[1] s 83 and s 86 of the Act.
The application presents somewhat novel issues in the application of the Act. While not having offended for well over a decade, C has a long history of sexual offending against children and has a long entrenched deviant sexual interest in children. In 2008, McKechnie J described C's condition of paedophilia as chronic. At that time his Honour said:
Triggers may be reduced, opportunities for interaction may be lessened, anti‑libidinal medication may have an effect, but nothing except decrepitude (and perhaps not even that) is likely to alter the entrenched paedophilia displayed by the respondent. That is not to make a moral judgment. It is a finding of fact.
All of C's previous offending occurred when C was living, and identifying, as a man. In 2019, C was diagnosed with gender dysphoria and had since undergone transition to live, and identify, as a woman. I will, for that reason, refer to C using female pronouns, as is her preference.
According to the most recent psychological report, C has found her transition psychologically and socially helpful. There is also reason to think, based on the limited expert evidence available, that C's transition may bring about a reduction in her risk of offending.
Nevertheless, the academic literature provided in evidence before me is to the effect that little is known about the impact of gender transition on future recidivism. For the reasons that follow, in C's case I am satisfied that there are reasonable grounds for believing that the Court might find that she is a high risk serious offender within the meaning of the Act.
I will therefore make orders that:
(a)C undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application; and
(b)C continue to be subject to an interim supervision order under the Act until these proceedings are finally determined.
These are my reasons.

The law

The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the Court might find that C is a high risk serious offender within the meaning of that Act.[2]
[2] See s 46(1) of the Act.
A 'high risk serious offender' is a person in relation to whom the Court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order to ensure adequate protection from the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act, relevantly, includes indecent dealing with a child.
While the definition of 'high risk serious offender' sets a relatively high bar for the imposition of a restriction order (in the sense of requiring proof to a high degree of probability), s 46(1) of the Act sets a low threshold for the purposes of a preliminary hearing. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[3]
[3] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The evidence

In support of its application, the State relies upon the affidavit of Thomas William McPhee sworn on 29 April 2021 which contains C's criminal history and several psychiatric and psychological reports.
The evidence reveals that C has a long history of sexual offending against children dating back to 1989.
In 1999, C was convicted of three counts of indecent dealing with a child under the age of 13. These offences occurred in 1999 and involved two children aged 9 and 11. C was a friend of the victims' mother, and the offences occurred at the victims' home when C was visiting. C was sentenced to 2 years imprisonment.
In 2002, C was convicted of four counts of indecently dealing with a lineal relative under the age of 16, one count of sexual penetration with a lineal relative under the age of 16, one count of indecently recording a lineal relative under the age of 16 and one count of inciting sexual behaviour by a lineal relative under the age of 16. These offences took place between 1995 and 1998 when the victim was six to nine years of age. The victim was C's daughter. C was sentenced to 8 years imprisonment.
C was also convicted in 2002 of two counts of indecently dealing with a child under the age of 13 years. The offences occurred in 2001 and the victim was a 7‑year‑old girl. The offences took place in a pop‑up caravan parked out the front of C's house, and the victim was a child who lived on the same street. C was sentenced to serve 11 months and 15 days imprisonment, cumulatively on the 8‑year sentence for the offences in relation to her daughter.
In 2009, C was convicted of one count of possession of child pornography. The offence occurred in 2008. C was sentenced to 12 months imprisonment.
In 2012, C was convicted of three counts of conspiring to engage in sexual intercourse with children outside of Australia. These offences occurred between 2006 and 2008, and C was sentenced to a term of 2 years and 7 months imprisonment.
In 2014, C was convicted of one count of indecent dealing with a child under the age of 14. This offence occurred between November 1989 and March 1990 and the victim was a child between the age of 12 and 13 who had attended a café of which C was the proprietor. The victim was the daughter of a friend of C. C was sentenced to 12 months imprisonment suspended for a period of 18 months.
There are a number of reports annexed to Mr McPhee's affidavit, in the form of psychological reports and psychiatric reports. For the purposes of these reasons I need only refer to the three most recent.
C was reviewed in 2018 by Dr Peter Wynn Owen, consultant forensic psychiatrist. The purpose of that review was to offer recommendations for anti‑libidinal treatment. C had been on such medication for many years but her general practitioner had recommended it cease for health reasons.
Dr Wynn Owen reported at the time:
[C] has a range of static risk factors indicating increased risk of future offending such as the chronicity and diversity of his offending and use of psychological coercion (grooming). The dynamic factors, amenable to risk mitigation strategies, include sexual deviance, psychological and social adjustment.
His sexual deviance is apparently currently managed effectively with the assistance of anti‑libidinal medication. His social isolation and limited stress tolerance continue to put him at risk.
The facts that [C] has self‑awareness and appears to fully disclose his thinking and that he is regarded by his forensic psychologist as a reliable self‑reporter, are positive in relation to risk and manageability.
It is also positive that [C] has not committed a sexual offence since his release in 2012. I note from review of his prison receival and discharge dates and court history that his past reoffending has occurred within a considerably shorter time after release.
Following that report, C ceased taking the anti‑libidinal medication, Procur.
Dr Wynn Owen provided a further report the following year, dated 22 September 2019:
At interview [C] reported that since stopping Procur he has had a return of normal (for his age) physiological sexual function, he experiences morning erections and arousal to sexual stimuli (although stating he had not become aroused to children or had fantasies about sexual contact with children).
Dr Wynn Owen also discussed C's then incipient gender transition.
As to C's risk Dr Wynn Owen said:
RISK ASSESSMENT
STATIC‑99R (2016 revision)
[C]'s Static‑99R score is unchanged and in the 'Well Above Average' category, offenders in this risk category, when first released, have a 20.5% likelihood of committing a new sexual offence within 5 years of release. As [C] has now spent 8 years in the community without committing a new offence his likelihood of reoffending has (according to research completed by the authors of Static‑99R) reduced and will now be in the 'Above Average Risk' category (11 ‑ 15% likelihood), noting that offenders with the same score as [C] move into the 'Average Risk' category (3 ‑ 8% likelihood) after 9 years offence free in the community.
Risk for Sexual Violence Protocol (Hart, Kropp and Laws, 2003) structured clinical judgement framework
As previously reported in 2018 I note the comprehensive reviews using this instrument undertaken by psychiatric and psychologist assessors for DSO purposes. They are very consistent between raters and identify as key issues relating to reoffending risk; sexual deviance (paedophilia), problems with stress or coping and problems with intimate and non‑intimate relationships. There are no changes to the RSVP since [C] was last assessed in 2018 although I note that he attended his first social function for many years (a transgender group meeting) a few days before this assessment interview.
The dynamic factor sexual deviance has always been present as a significant risk and is still current, [C]'s paedophilic sexual preference remains. [C] has remained well engaged in therapy to address his risks and currently has a good awareness of risk scenarios and is engaging in ongoing risk management. As the goal of anti‑libidinal therapy is as an adjunct to psychological intervention the most important outcome of treatment is development of independent risk awareness and risk management, [C] demonstrates these therapeutic gains at interview.
Dr Wynn Owen concluded:
[C]'s relatively recent disclosure of a sexual preference for males and his very recent decision to change gender do not seem to have occurred in the context of overt psychological distress or acute or longer term mental illness. It is my opinion that if he proceeds with and completes his current plan there will be no adverse effect on him reoffending risk and the risk is likely to reduce. It is possible to speculate on the underlying drivers to his decision but not to know them, however, it is likely to be the result of a number of conscious and unconscious processes each with a different level of contribution to the end decision. Of most significance is the possibility that [C] has already had a recurrence of intrusive paedophilic fantasy and arousal and is hoping that testosterone suppression will manage this, and for some reason he is unable or unwilling to disclose this to the supervising team. [C] denies this at interview and his self‑report has been regarded as reliable in relation to paedophilia, although I would expect that with a return of physiological sexual function he would have had a return of thoughts relating to his longstanding and well‑established sexual preference for children. This possible scenario will not be an issue unless [C] decides against proceeding with his current plan for gender reassignment, or delays commencement of anti‑libidinal therapy, in which case it will require further exploration.
The most recent report is a psychological report dated 8 June 2020 by Ms Joanne Collyer. The report was created as a Dangerous Sexual Offender End of Order report.
Ms Collyer reported that since C was placed on a supervision order in 2008, she has received nine years of counselling with a gap of 18 months whilst she was in custody and three months whilst one of her psychologists was on leave.
Regarding C's performance on the previous supervision order and future treatment needs, Ms Collyer reports as follows:
Over the course of the DSOSO [C] generally demonstrated understanding of risk management and displayed appropriate engagement with treatment and case management. It would appear the focus for the remainder of her order would beneficially focus on factors that mitigate [C]'s offending, namely, reduction of libido, improved social supports and healthy adult relationships and communication (inclusive of professional supports to assist with any mood fluctuations), increased sense of self and problem solving. It is noted that this is largely a continuation of what is currently occurring. In addition, continued conversations around how she will self‑manage risk in light of her position as a woman and potential access to areas she may not have had as a man. Continued compliance checks to consolidate the information regarding her commitment to transition and absence of child exploitation material
Ms Collyer said in her conclusion:
[C] has remained offence free on a DSOSO order for nine years and demonstrated good engagement with no identified pattern of behaviours indicative of offence concern. Based on this she currently presents as an average risk of sexual recidivism.
Post order, [C] is likely to continue engagement with professional supports as they are her primary source of support. There is limited evidence to suggest she may suddenly increase her propensity to socialise beyond the current restricted circles. History does not suggest this is a strong motivation. However, she will likely marginally build on the current community supports as these are offering her an outlet and point of ventilation.
[C] will have ongoing reporting obligations to the Sex Offender Monitoring Unit (police). This would include mandatory reporting regarding a decision to revert to male gender (given she is currently legally an identified woman). This would necessarily inhibit any hasty decisions in this regard. Should she cease antiandrogen medication, [C] has demonstrated an open communication style that suggests she is likely to consult with her treating physician if she has concerns. It remains unknown how [C] would manage any emergence of libido in regard to deviant thinking over an extended period.
[C]'s fear and aversion to a return prison sentence combined with her relief at the absence of intrusive deviant thoughts would appear motivational factors for ongoing libido suppression with the use of antiandrogen medications. [C] appears less confident to manage this issue in the absence of medication, suggesting she is likely to remain on some form of libido supressing medication for the foreseeable future.
A continued focus on supporting [C] in her gender transition inclusive of further developing social supports and identifying any mental health needs would appear a beneficial way to encourage mitigation of risk and encouraging a model of improved self‑esteem and pro‑social living.

Assessment

I am satisfied on the basis of the material that there are reasonable grounds to believe that a court might find C to be a high risk serious offender.
As C's history demonstrates, she has a long history of sexual offending against children. Although C has been offence free for many years, the previous offences nevertheless indicate a pattern of offending and an entrenched deviant sexual interest. It is also noteworthy that C's absence from offending over the past years has occurred alongside the support of a supervision order and she has recently began what can only be described as a profound adjustment in her life, which includes new medical intervention.
Whilst C has made positive gains in her treatment, the most recent reports indicate that she still remains at least an average risk of reoffending, and needs to continue with the support and structure she is currently receiving.
The most recent psychiatric report, that of Dr Wynn Owen, precedes C's significant life changes and, I am satisfied, indicates that careful assessment of C's recent progress, including the effects of the medical interventions she is currently undergoing, are necessary before a proper assessment can be made in relation to her ongoing risk to the community.
I will therefore make orders for the hearing of the restriction order application and for C to be examined by a psychiatrist and qualified psychologist for the purposes of preparing the reports to be used in that hearing. The practitioners identified by the State are Dr Wynn Owen and Ms Julie Hasson. I am satisfied that each is an appropriate expert and will so order.
C's counsel submitted at the hearing of the appeal that it may be appropriate to seek a report from one of the psychiatrists that reviewed C at the time that McKechnie J made the original supervision order in 2008. To that end, I will make an order granting the parties liberty to apply, in the event that C's seeks that the orders be varied to make provision for another, or substitute, expert report.

Interim supervision order

In the meantime, the State submits and C accepts that I should continue the interim supervision order pending the determination of the restriction order application.
I am satisfied that is desirable. The structure of the existing supervision order has proved to considerably reduce C's risk of offending and has been a structure that has assisted her psychologically and socially.
It is in C's interests and in the interests of community safety that that supervision and structure continue while these proceedings are pending.
For those reasons, I order that C be subject to an interim supervision order until the completion of the restriction order hearing.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan

21 MAY 2021