The State of Western Australia v C [No 2] - [2021] WASC 490

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- C [No 2] [2021] WASC 490
CORAM:   CORBOY J
HEARD:   17 NOVEMBER 2021
DELIVERED          :   2 DECEMBER 2021
PUBLISHED           :   16 NOVEMBER 2022
FILE NO/S:   SO 12 of 2008
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

C
Respondent

Catchwords:

High Risk Serial Offenders Act 2020 - Application for a supervision order on expiry of previous order - Whether respondent remains a high risk serial offender - Whether a supervision order should be made - Duration of the supervision order

Legislation:

High Risk Serial Offenders Act 2020 (WA), s 5, s 7, s 27 & s 48

Result:

Supervision order made

Category: B

Representation:

Counsel:

Applicant	:	B D Meertens
Respondent	:	K J Farley SC

Solicitors:

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

Case(s) referred to in decision(s):

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; 35 WAR 297
Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Rao [2019] WASC 93

CORBOY J:

The application, the proceedings and the outcome

The application

In November 2008, McKechnie J held that the respondent was a serious danger to the community pursuant to s 7 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). However, his Honour concluded that the community could be adequately protected by the respondent being released on a supervision order. The term of the order was 10 years (the Supervision Order).
The respondent was subsequently convicted of offences committed prior to the Supervision Order. The respondent was sentenced to a term of imprisonment but was released to the community in September 2012, subject to the Supervision Order (the order was suspended during the time the respondent was in custody).
On 29 April 2021, the State applied under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) for a restriction order in respect of the respondent. The Supervision Order was to have expired on 10 May 2021. On 4 May 2021, the order was extended to 22 May 2021 pursuant to s 58(3) of the HRSO Act.

The proceedings

The preliminary hearing of the State's application was held on 21 May 2021. The Chief Justice made orders pursuant to s 46(2) of the HRSO Act at the hearing. His Honour also made an interim supervision order until final determination of the application.
The final hearing of the application was held on 17 November 2021. A book of materials (volumes 1 and 2),[1] the respondent's criminal history[2] and an email dated 16 November 2021 from the State Solicitors Office to my associate[3] were received as exhibits. The email summarised a conferral between Dr Gosia Wojnarowska (a forensic and child adolescent psychiatrist) and Ms Julie Hasson (a forensic psychologist) that occurred shortly prior to the final hearing.
[1] Exh 1.
[2] Exh 1.1.
[3] Exh 2.
Dr Wojnarowska, Ms Hasson and Ms Alexandra Maynard (a senior Community Corrections officer) gave oral evidence.
I reserved my decision at the hearing. Judgment on the application was delivered on 2 December 2021. I provided the parties with draft reasons at that time, reserving the right to settle the draft prior to publication.

Outcome

I found that the respondent is a high risk serious offender within the meaning and for the purpose of s 7(1) of the HRSO Act. The State amended its application at the final hearing to only seek a supervision order should the respondent be found to be a high risk serious offender. That amendment was appropriate on the evidence presented in the application. I made a supervision order. I heard from the parties on the terms of the order.

A preliminary observation

As the Chief Justice observed at the preliminary hearing, the State's application presented some novel issues. His Honour's observation reflected the significant progress the respondent has made towards her rehabilitation, especially when the extent and nature of her sexual offending is considered. It should be immediately acknowledged that the respondent has recently made important gains from counselling and has demonstrated a willingness to establish a pro-social lifestyle consciously directed to minimising the risk of offending. Those matters are reflected in comments made later about the respondent's supervision under the order that was made.
The respondent was diagnosed with gender dysphoria in 2019 and now identifies as female. The respondent's gender identification is to be respected. Generally, she has been referred to according to her gender identification even if the relevant events occurred before her transition. However, it would be confusing to describe the respondent's offending using the female pronoun.
The respondent's diagnosis of gender dysphoria is obviously a very significant event for the respondent. As will be explained, an assessment of the effects of her transition is central to the issues to be determined on the State's application. Much of the material presented in the final hearing comprised psychiatric, psychological and other reviews undertaken when the respondent identified as male. It is necessary to keep the timing of the respondent's diagnosis and transition in mind in the reasons that follow.

The book of materials

The book of materials (exh 1) contained the following reports:
(a)Psychological report by Ms Helen Fowler dated 1 December 1999. Ms Fowler is a psychologist who at the time of the report was contracted to the Sex Offender Treatment Unit of the Ministry of Justice (SOTU). The report was prepared for the respondent's sentencing in the District Court in December 1999.
(b)Pre-parole report by Ms Michelle Hicks dated 7 December 2000. Ms Hicks was a provisionally registered psychologist at the time of the report. She was attached to SOTU.
(c)Psychological report by Ms Claire Lynn dated about May 2002. Ms Lynn is a forensic psychologist who was contracted to the Department of Justice.
(d)Treatment completion report dated 15 July 2005 for the respondent's participation in the Intensive Sex Offender Treatment Program (ISOTP).
(e)Treatment completion report dated 12 May 2006 for the respondent's participation in ISOTP.
(f)Reports by Dr Gosia Wojnarowska dated 4 September 2008 and 31 August 2021. Dr Wojnarowska is currently employed as the Medical Co-director, Community Adult Mental Health for the North Metropolitan Mental Health Services and is a consultant to the Department of Justice, Corrective Services.
(g)Report by Dr Adam Brett dated 10 September 2008. Dr Brett is a consultant forensic psychiatrist.
(h)Report by Dr Peter Wynn Owen dated 3 September 2018 and 22 September 2019. Dr Wynn Owen is a consultant forensic psychiatrist.
(i)Report by Ms Joanne Collyer dated 8 June 2020. Ms Collyer is a senior counselling psychologist with the Forensic Psychological Service, Department of Justice, Corrective Services.
(j)Report by Ms Chantelle Place dated 12 September 2017. Ms Place was at the time of the report a senior forensic psychologist with the Forensic Psychological Service, Department of Justice, Corrective Services.
(k)Reports by Ms Sarah Ballantyne dated 22 September 2018 and 18 August 2021. Ms Ballantyne is also a senior counselling psychologist with the Forensic Psychological Service, Department of Justice, Corrective Services.
(l)Report by Ms Hasson dated 19 August 2021.
(m)Community assessment report by Ms Maynard dated 8 September 2021.
The book of materials also included:
(a)the respondent's criminal and traffic record;
(b)a chronology prepared by the State Solicitor's Office;
(c)the judgment of McKechnie J delivered in 2008 in which his Honour gave reasons for making the Supervision Order;
(d)statements of material facts and witness statements, interview transcripts and transcripts of sentencing hearings and sentencing remarks in respect of the offences committed by the respondent;
(e)a research paper and an academic article;[4]
(f)various Department of Justice management reports and medical progress notes for the respondent.
[4] Hanson RK and Morton-Bougon KE, 'The Characteristics of Persistent Sexual Offenders: A Meta-Analysis of Recidivism Studies', (2005) Journal of Consulting and Clinical Psychology (73) 6, 362 and Sahota KK, 'Transgender sex offenders: gender dysphoria and sexual offending' (2020) Journal of Criminological Research, Policy and Practice 6, 372.

The respondent's history of offending (s 7(3)(g) HRSO Act)

The respondent was first convicted of an offence in September 1997 - indecent assault. He was fined $3000 for the offence.
In December 1999, the respondent was convicted of three counts of indecent dealing with a child under the age of 13 years. He was sentenced to a total effective sentence of 2 years imprisonment.
In June 2002, the respondent was convicted of four counts of indecently dealing with a lineal relative under the age of 16 years, one count of sexual penetration with a lineal relative under the age of 16 years, one count of indecently recording a lineal relative under the age of 16 years and one count of inciting sexual behaviour by a relative under the age of 16 years. The respondent's daughter was the victim of the offending. The offences occurred when she was aged between 6 and 8 years. The respondent was sentenced to a total effective sentence of 8 years imprisonment.
The respondent was further convicted of two counts of indecently dealing with a child under the age of 13 years in October 2002. The total effective sentence imposed was 11 months and 15 days imprisonment, cumulative on the sentence imposed in June 2002.
In June 2009, the respondent was convicted of one count of possessing child pornography and sentenced to 12 months imprisonment. The offence was committed on 17 September 2008.
In September 2012, the respondent was convicted of three counts of conspiring to commit an offence contrary to s 50BA of the Crimes Act 2014 (Cth). That section makes it an offence to engage in sexual intercourse outside Australia with a person under the age of 16 years. The conspiracy to offend was not realised. Rather, the respondent conspired with another to commit the offence by preparing to travel overseas for the purpose of engaging in sexual activity with children. The conspiracy came to an end in February 2008, when police executed a search warrant (although the respondent was not charged until March 2011).
The conspiracy was initiated and maintained while the respondent was in custody. He was alleged to have agreed with two other prisoners to travel to Thailand for the purpose of having sex with young children and to have made arrangements for that purpose. The respondent was sentenced to a total effective sentence of 2 years and 7 months imprisonment, with a requirement that 18 months be served in custody before the respondent should be released for a period of four years on a recognizance in the sum of $5000.
Finally, in April 2014 the respondent was convicted of one count of indecent dealing with a child under the age of 14 years. That offence occurred between 1 October 1988 and 21 March 1990. The respondent was sentenced to a term of imprisonment of 12 months suspended for 18 months, commencing on 22 April 2014.
The respondent has not been convicted of any offence committed after September 2008.

The respondent's personal history as at the time of the Supervision Order (s 7(3)(g) HRSO Act)

The respondent's personal history was set out in various reports forming part of exh 1. There was no issue raised in the hearing about the accuracy of information about the respondent's personal circumstances provided by the reports (although there was some apparent inconsistencies in the detail recorded against various reports).
The respondent's personal history up to the time when the Supervision Order was made can be summarised as follows:
(1)The respondent was born in December 1965. She was born in Papua New Guinea and came to Australia with her family when she was five years old. She was one of seven children to her parents. There was a significant age difference between herself and her next youngest sibling.
(2)Both of the respondent's parents worked long hours. Consequently, the respondent was cared for after school by neighbours. There are references in the reports to the respondent feeling isolated during her childhood and adolescence.
(3)The respondent was sexually abused by a neighbour while she was still in primary school. There are some differences in the reports about the period over which the abuse occurred. The abuse is referred to in the first pre-sentence and psychological reports provided to a court for the purpose of sentencing the respondent - reports dated 29 November 1999 and 1 December 1999.[5] The abuse, as reported by the respondent, was persistent and included acts of penetration. She also reported suppressing memories of the abuse for a time. It appears that isolation and loneliness made the respondent vulnerable to the abuse. Dr Wojnarowska noted in her report of September 2008 that the respondent stated she had felt frightened and in pain but had also enjoyed the attention she received from the perpetrator.[6]
(4)The respondent left school in year 11. She admits fantasising about prepubescent females by that time.[7]
(5)The respondent completed a course at TAFE and then joined the Royal Australian Air Force, working as an avionics technician. She left the Air Force in 1994 and worked in a civilian capacity at a base. She then enrolled in media studies and was a full-time student when first sentenced to prison in December 1999.
(6)The respondent met and married her first wife when she was 18. The respondent's wife was 25 years old and they had two children from the relationship. The marriage survived the respondent's first conviction for a sex offence but broke down after she admitted sexually abusing their daughter.
(7)The respondent again married in about 2002. Her second wife was aged 17 years at the time they met; the respondent was aged 36 years. The marriage lasted about two years. In her report dated 4 September 2008, Dr Wojnarowska described the respondent's marriages in the following terms:[8]
[The respondent] has never been in a mature, equal and fulfilling relationship with another person. His first relationship was an extension of his relationship with the mother and fulfilled his need to be a son, rather than a husband. His second wife, in contrary, substituted a female child that he never stopped fantasising about. Both relationships were pathological in the sense that they developed on the basis of [the respondent's] inadequacies and deviant sexual fantasies.
(8)At the time of the Supervision Order, the respondent was operating a business making canvas goods.
[5] Exh 1, pages 98 – 106.
[6] Exh 1, page 317.
[7] In the psychological report prepared by Ms Fowler in 1999, the respondent stated that she became sexually interested in children when he was about 25 years: exh 1, page 104. That (together with other matters the respondent reported to Ms Fowler) was inconsistent with admissions later made by the respondent – see, for example, the respondent's self-reporting when undertaking the first ISOTP; the respondent reported sexual preoccupation, experimentation and deviant patterns of behaviour dating back to her childhood.
[8] Exh 1, page 319.
As noted above, the respondent was convicted and sentenced by McKechnie J in September 2012 for conspiring to commit offences against s 50BA of the Crimes Act. She was sentenced to a term of imprisonment and the Supervision Order was suspended while the respondent was in custody. The respondent was released to the community in September 2012 (the sentence was backdated on account of time spent in custody following arrest). She was released subject to the Supervision Order and the recognizance release order made by McKechnie J. She was subsequently sentenced to a suspended imprisonment order for the offence dealt with by Bowden DCJ in April 2014.

The respondent's personal history after release to the community in 2012 (s 7(3)(g) HRSO Act)

Ms Hasson's report referred to a relationship the respondent formed with a mature aged woman following his release on the Supervision Order in 2008. The relationship survived the respondent being sentenced to a further term of imprisonment in 2012 but ended sometime after 2014. The respondent has more recently formed a platonic relationship with another transgender female who provides support and companionship.
The respondent voluntarily commenced a trial of antilibidinal medication in 2004. She ceased the medication but resumed on being released to the community pursuant to the Supervision Order. She was reviewed by Dr Wynn Owen in September 2018. That review followed a recommendation from the respondent's general practitioner that antilibidinal medication (cyproterone/Procur) be ceased due to its side effects.
The respondent reported that antilibidinal treatment resulted in a significant reduction in sexual fantasies and pre-occupation as the production of testosterone was suppressed. The respondent was concerned at the time of the 2018 review by Dr Wynn Owen about the consequences of ceasing medication. Nevertheless, Dr Wynn Owen recommended the respondent cease using cyproterone/Procur and that a trial of a serotonin specific reuptake inhibitor (SSRI) antidepressant medication be commenced. According to Dr Wynn Owen, there was some evidence that SSRI medications could suppress libido.
The respondent was living in private accommodation at this time; she was unemployed but undertaking a TAFE course. She reported being socially isolated and suffering from depression. In her report, Ms Place referred to the respondent suffering a workplace injury in 2015 that had resulted in a loss of employment.
The respondent was again reviewed by Dr Wynn Owen in September 2019. By that time, the respondent had been diagnosed with gender dysphoria and was contemplating commencing anti-testosterone treatment prior to gender reassignment surgery. The respondent reported feeling 'more psychologically well and confident' than for a very long time.[9]
[9] Exh 1, page 358.
Ms Collyer's report, written in June 2020, noted that the respondent had by that time established contact with members of the transgender community. Her social life had expanded as a result. However, Ms Collyer also noted the respondent's treating psychologist, Ms Ballantyne, considered that the respondent still lacked social supports. The respondent had engaged a private psychologist to assist with issues around her gender transition and with mental health problems such as anxiety and depression. She had also established contact with her former second wife. The respondent reported that her accommodation and financial position were secure.
The reports received for the purpose of the preliminary and final hearings of the State's application indicated that the respondent was currently in receipt of a New Enterprise Incentive Support payment which provided financial assistance and business mentoring (to be transferred to Jobseeker). The support payment was for a business that the respondent had commenced selling jewellery online. The business operated subject to conditions imposed by the Risk Management Team, Corrective Services (RMT).

The respondent has maintained SSRI medication pursuant to the recommendation made by Dr Wynn Owen. Ms Maynard reported that the respondent was also taking anti-androgen medication for the purpose of assisting in her gender transition.

Restriction orders

The HRSO Act replaced the DSO Act. The DSO Act applied to persons who were found to be a serious danger to the community. Consequently, the primary issue to be determined on an application under the DSO Act was whether the court was satisfied that there was an unacceptable risk that, if a person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: s 7(1) of the Act. The court was required to have regard to the matters specified in s 7(3) in making that determination. The court was further required by s 17 to make either a continuing detention order or a supervision order if the court was satisfied that a person was a serious danger to the community. The paramount consideration in deciding which order to make was the need to ensure adequate protection of the community.
Section 5 of the HRSO Act defines the term 'serious offence' to include an offence specified in sch 1 to the Act. The respondent has been convicted of offences that are specified as a serious offence in sch 1 (all the offences committed against the Criminal Code (WA) except for the offence of having stored images of child pornography in his possession). The respondent has also been convicted of conspiring to commit an offence contrary to s 50BA of the Crimes Act. Those offences were also serious offences by virtue of s 5(3) and (4) of the HRSO Act.
Section 7(1) of the HRSO Act states:
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
The State carries the onus of satisfying the court that the respondent is a high risk serious offender. The court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof.[10]
[10] Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA).
The determination of whether an offender is a high risk serious offender must be made having regard to the matters stated in s 7(3) of the HRSO Act:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
Section 7(1) is differently worded to the equivalent section of the DSO Act. I compared the two sections in The State of Western Australia v Garlett.[11] In particular, I observed that:[12]
It is arguable that the words 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce a further evaluative element over and above an evaluation of whether the risk of an offender committing a serious offence is unacceptable.
Accordingly, I suggested that s 7(1) of the HRSO Act required the court to make an evaluative judgment about two matters: first, whether there was an unacceptable risk that the offender will commit a serious offence and second, whether it was necessary to make a restriction order to ensure adequate protection of the community.
[11] The State of Western Australia v Garlett [2021] WASC 387.
[12] The State of Western Australia v Garlett [135].
The Chief Justice accepted that proposition in The State of Western Australia v D'Rozario [No 3].[13] However, as his Honour observed:[14]
To some extent the additional evaluative element referred to by his Honour might be thought to have been inherent in s 7(1) of the DSO Act in the phrase 'if the person were not subject to a continuing detention order or a supervision order'. That is, the evaluative element under the DSO Act of an 'unacceptable risk' had embedded within it consideration of the effect that a restriction order would have on the risk posed by the offender. As I said in The State of Western Australia v Rao:
It is important to recognise that the finding that a person is a 'serious danger to the community' is an assessment made as to the person's risk of committing a serious sexual offence if they are not subject to a continuing detention order or a supervision order. That is, a finding that a person is a serious danger to the community is to be made upon the assumption that the person is not subject to a continuing detention order or supervision order.
There is therefore an essential interrelationship between s 7 and s 17 of the Act. As the assessment of whether a person is a 'serious danger to the community' is made upon the assumption that there is no detention or supervision of the offender, it follows, as a matter of the purpose of the Act as a whole, that an order made under s 17 (either detention or supervision) is intended to remove or ameliorate the risk that the person will commit a serious sexual offence, so that there is no longer an 'unacceptable risk' of that occurring. In other words, the purpose of the Act as a whole is that, as a consequence of the detention or supervision order, the person will no longer be 'a serious danger to the community'.
Under the HRSO Act, rather than embed the ameliorating effect of a potential restriction order within the evaluation of the 'unacceptable risk' (as was the case in the DSO Act), the 'unacceptable risk' and the effect of a putative restriction order are kept conceptually distinct.
The effect of this distinction, as Corboy J observed in Garlett, is to make clear the possibility that the Court might find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has found that the risk of future offending was unacceptable. While no doubt such a situation would be rare, it is possible to envisage circumstances in which that might be the case. For example, it may be that, in the circumstances of a particular case, other external restraints on an offender (such as a post‑sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').
As Corboy J recognised in Garlett, the current form of s 7(1) recognises that the need to ensure adequate protection for the community should form part of the Court's determination of whether the offender is a high risk serious offender (the first step in making a restriction order) and not merely the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).
[13] The State of Western Australia v D'Rozario [No 3] [2021] WASC 412.
[14] The State of Western Australia v D'Rozario [No 3] [22].
Three further matters may be noted about his Honour's observations. First, the change in the wording of s 7(1) leaves open the question of whether the expression 'unacceptable risk' carries the same meaning in the HRSO Act as it did in the DSO Act. The expression is not defined in either Act. However, the authorities on s 7(1) of the DSO Act established that the words 'unacceptable risk' had much work to do in the application of the Act. For example, in Director of Public Prosecutions for Western Australia v Williams, Wheeler JA stated:[15]
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
[15] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; 35 WAR 297 [63]. See also, for example, Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA). It may be that insufficient attention was paid in a number of cases to the significance of the words 'if the person was not subject to a continuing detention order or a supervision order' – see the reference above to The State of Western Australia v Rao [2019] WASC 93 (Quinlan CJ).
Second, his Honour's comments concerning the significance of the words 'if the person were not subject to a continuing detention order or a supervision order' appearing in s 7(1) of the DSO Act accord with what was said by Wheeler JA in Director of Public Prosecutions for Western Australia v Williams about the proper interpretation of the expression 'unacceptable risk'. Her Honour stated:[16]
There are four reasons for considering that the meaning outlined above is what Parliament intended by the expression 'unacceptable risk'. The first is that s 7(1) expressly refers to the risk as a risk which exists 'if the person were not subject to [either] a continuing detention order or a supervision order'. That is, Parliament has expressly adverted to the consequences of making a finding, in referring to the type of risk to be guarded against. Second, s 7(2) places upon the DPP the onus of satisfying the court of the matters described in s 7(1) by acceptable and cogent evidence and 'to a high degree of probability'… Third, s 7(3) sets out a variety of matters to which the court must have regard in determining the related question of whether a person is a serious danger to the community. The list includes factors which suggest that there is some need to balance the interests of the offender against those of the public, or at least that it is permissible for a court to have regard to such matters. Section 7(3)(i), for example, refers to the need to protect members of the community from 'that risk' (suggesting that the public may not need protection from every risk) while s 7(3)(j) refers broadly to 'any other relevant matter'.
[16] Director of Public Prosecutions (WA) v Williams [64].
Third, s 7(1) of the HRSO Act does not require the court to assess the risk of offending if a restriction order is not made. However, s 7(1)(h) requires the court to have regard to the risk that the offender would commit a serious offence if the offender were not subject to a restriction order (the equivalent provision in the DSO Act was in identical terms notwithstanding the wording of s 7(1) in that Act).
It is not necessary to further resolve these issues for the purpose of determining the application. As with s 17 of the DSO Act, s 48 of the HRSO Act requires the court to make either a continuing detention order or a supervision order on finding that an offender is a high risk serious offender. Section 7(1) of the HRSO Act picks up the notion that the court must balance, among other things, the consequences of finding that an offender is a high risk serious offender, either in determining whether the risk of an offender committing a serious offence is unacceptable or in deciding whether it is satisfied that it is necessary to make a restriction order to ensure adequate protection of the community.

Psychiatric and psychological reports (s 7(3)(a) and (b) HRSO Act)

The respondent's self-reporting and awareness

A feature of some of the reports contained in exh 1 was the willingness of the respondent to frankly acknowledge the extent of her past offending, including admissions to numerous uncharged sexual acts against children. The admissions appear to have been most readily and completely made from about the time that the respondent first participated in ISOTP (2005; although, see the comments below about the circumstances in which the respondent committed the conspiracy offences for which she was convicted in 2012 - the conspiracy commenced around or shortly after the respondent participated in ISOTP in 2005 and 2006).
It appears that the respondent was conflicted in her mind about her offending from an early time. For example, she denied the first allegation of indecent assault when interviewed by police in March 1997. On the other hand, she accepted she may have indecently dealt with the daughters of a friend when interviewed about further allegations in August 1999. The respondent appeared slightly confused in that interview, stating that she had been living in a daze as her wife was seeking a divorce. However, she consistently accepted that the allegations made against her might have been true.[17]
[17] Exh 1, pages 72 - 97.
There was also reference in the first ISOTP completion report (dated July 2005) to the respondent denying in a pre-sentence report two of the offences against his daughter for which he was convicted in 2002 - the two most serious offences. However, the completion report also noted that:[18]
[the respondent's] stance regarding those incidents [had] since changed. His admissions during the current treatment program were extremely detailed, he acknowledged his culpability and details of the above mentioned offences, and those referenced providing additional information regarding the extent of his sexually deviant behaviour
[18] Exh 1, page 165.
Similarly, the respondent admitted to Ms Fowler (who prepared a psychological report for the purpose of the respondent's sentencing for the offences committed in 1999) that she had sexually assaulted the victims. She also admitted the assault that was the subject of the charge made in 1997. In addition, the respondent informed Ms Fowler about the sexual abuse to which she was subjected as a child and admitted to a preoccupation with sex. She also admitted to the author of her pre-sentence report that she had a 'problem'.[19]
[19] See exh 1, pages 98 - 101.
Against that, the report of 7 December 2000 by Ms Hicks and Ms Zuin referred to a 'lack of understanding and awareness of relapse prevention strategies … evident in discussions with [the respondent] during [her] assessment interview' and that '[g]iven the deficits in [her] insight and … ongoing issues, [her] outstanding treatment needs were assessed as requiring an intensive approach'.[20]
[20] Exh 1, page 131 - 32. The respondent had, however, by this time disclosed uncharged sexual offending against his daughter.
The completion report for the respondent's participation in her first ISOTP stated that she held distorted views about the nature and effect of her offending at the commencement of the program - views that were described in the report as 'child sexual abuse supportive beliefs'.[21] However, the report later stated:[22]
During the course of treatment [the respondent] exhibited an ability to understand that his sexual abuse of children was probably not a benign or positive experience for his victims. He was able to articulate that his child abuse supportive beliefs may have been employed as justification for his ongoing offending behaviour in the past. Despite evidence of some progress in this domain it is difficult to ascertain whether [the respondent] has been successful in making pervasive changes regarding beliefs that child sexual abuse is not necessarily harmful, and that these altered beliefs will reduce the likelihood of him committing future sexual offences against children is difficult to ascertain.
[21] Exh 1, page 167.
[22] Exh 1, page 168.
Those observations acquired a particular significance given the respondent's subsequent conviction for conspiracy. However, there has been no apparent attempt by the respondent to blame her victims or excuse the nature and seriousness of her offending since her conviction in 2012.
The respondent's admissions about the nature and extent of her offending have been made in sentencing hearings as well as for the purpose of psychiatric assessments and psychological interventions. In particular, the respondent has admitted to numerous instances of inappropriate sexual acts against young girls, including her daughter. Ms Hasson's report contained a detailed account of the respondent's admitted offending and uncharged acts and behaviours that underpinned the diagnoses of a sexually deviant disorder made by Dr Wynn Owen and Dr Wojnarowska.[23]
[23] See exh 1, page 471.
Consistent with those admissions, the respondent has also frankly acknowledged a long history of sexual fantasising about children going back to her adolescence. It might be said that the respondent's admissions merely reflected an acknowledged pre-occupation with sex. However, the admissions as recorded in sentencing hearings and psychiatric and psychological reports have been generally unequivocal - at least, since about 2005/2006.
The respondent's acceptance of her disorder is further demonstrated by actions such as voluntarily commencing anti-libidinal medication in 2004 and persisting with the medication for a period of approximately 10 years between 2008 and 2018. The respondent then complied with Dr Wynn Owen's recommendation to commence treatment with SSRI medication. Moreover, the respondent reported changes in her libido following cessation of anti-libidinal medication. The self-reporting was protective of an increase in risk following changes in the respondent's medication regime.

Early reports

Ms Fowler stated in her report of December 1999 that:
(a)the respondent appeared to have a 'pleasure-deficient personality style' and was in need of ongoing psychotherapy;
(b)she was concerned that the respondent lacked full understanding of the need for counselling to 'investigate … the extensive nature of his personality and sexuality problems';
(c)she was also concerned about the risk of the respondent offending and thought that the respondent would benefit from 'some form of mandatory supervision'.[24]
[24] Exh 1, pages 102 - 106.
Reference has already been made to the report by Ms Hicks and Ms Zuin in December 2000. They considered that the respondent presented as a 'medium high' risk of future offending based on static actuarial factors.[25] They also considered that the respondent would benefit from community based supervision on release from custody.
[25] Exh 1, page 132.
The completion reports for the respondent's involvement in ISOTP in 2005 and 2006 are considered later in the section dealing with the respondent's participation in treatment programs.

Dr Wojnarowska

Dr Wojnarowska first reviewed the respondent in August 2008. The review was undertaken for the purpose of the div 2 DSO Act hearing held before McKechnie J in November 2008.
Dr Wojnarowksa concluded that the respondent met the criteria for paedophilia as evidenced by her pervasive pattern of offending. In Dr Wojnarowska's opinion, the respondent's sexual deviance was not caused by childhood sexual abuse but the abuse significantly influenced her precocious sexual development and increased her levels of sexual preoccupation. The respondent's upbringing further enhanced personality traits, including diminished ability to empathise and callousness. Feelings of inadequacy and low self-esteem were self-reinforcing factors in the respondent's offending.
Dr Wojnarowska assessed the respondent's risk of reoffending as unacceptably high if a supervision order was not made given the diagnosis of paedophilia.
Dr Wojnarowska again assessed the respondent in August 2021 for the purpose of the final hearing of the State's application (the report was prepared under s 74 of the HRSO Act). There was no change in Dr Wojnarowska's diagnostic opinion – the respondent continued to meet the criteria for paedophilia.
The instruments used by Dr Wojnarowska to assess the respondent's risk of reoffending included the Risk for Sexual Violence Protocol (RSVP). By reference to that instrument, Dr Wojnarowska concluded in her report:[26]
Taking into consideration my clinical assessment and the application of RSVP I am of the opinion that some of the previously high-risk factors have been to some extent mitigated for example her social situation has improved and [the respondent] feels more accepted by society and her transgender community. She has at least two people in her social network who encourage her compliance, however, her capacity for a long-term intimate relationship is still questionable. Her mental state has been stable recently and there is no evidence that she has been sexually preoccupied or used sex as a coping mechanism. The main risk factor however which is a deviant sexual preference for children is, in my opinion, still relevant and therefore her overall risk of reoffending in a sexual manner remains high.
In my opinion if she were to be taken off the order, her risk of sexual reoffending may escalate as it appears that the current structure that is provided by SCCO and police is relevant to her offence free functioning.
[26] Exh 1, page 509.
In her oral evidence, Dr Wojnarowska explained that paedophilia was regarded as a disorder belonging to a category of sexual deviance. It is perceived to be a lifelong condition, although the intensity and the expression of the disorder will fluctuate depending on a person's circumstances, their mental state and, in the case of the respondent, possibly the levels of her testosterone. That was because the expression of the condition can be suppressed with anti-libidinal treatment.[27]
[27] ts 26.
At the time of Dr Wojnarowska's report, the respondent was taking testosterone suppressing medications and using estrogen patches. Dr Wojnarowska explained that there are significant time constraints on the use of those hormone treatments due to their effect on bone density and liver function. However, Dr Wojnarowska was unable to estimate the period over which the respondent could undertake hormone therapy before being advised to cease. She would expect the level of anti-androgen medication to be reduced if the respondent underwent surgery.[28]
[28] ts 27 - 28.
As stated in the passage from her report reproduced above, Dr Wojnarowska considered that the risk of the respondent reoffending in a 'sexual manner' remained high, principally because of the respondent's diagnosis of paedophilia and the nature of that disorder. Dr Wojnarowska also noted that the respondent had been provided with contact and support throughout the term of the Supervision Order. She considered that removal of those supports would potentially increase risk, as would cessation of the respondent's anti-androgen treatment. Further, if the respondent underwent surgery '[t]he fact that someone does not have a male genitalia does not equal the disappearance of paedophilic interest.'[29]
[29] ts 27.
As will be explained, Ms Hasson assessed the risk of the respondent offending as 'above average' based on the application of various risk assessment instruments. However, Ms Hasson also considered that application of the instruments overestimated the respondent's risk. That was based on what Ms Hasson described as a 'structured professional judgment'.[30]
[30] ts 47 - 48.
Dr Wojnarowska and Ms Hasson conferred prior to the hearing but neither subsequently amended their views about the respondent's risk of offending. Dr Wojnarowska was asked about Ms Hasson's conclusions on the question of risk. She stated that, in her opinion, a clinical assessment was 'never as valid as the combination of the instruments that are specifically recommended for risk assessment of … sex offenders'.[31] Further, Dr Wojnarowska saw no reason to doubt the results of the instruments she had utilised and on which she had based her clinical impressions.[32] Moreover, she agreed with the statement in the report of Ms Hasson that:
[The respondent] is assessed as being a high risk of sexual reoffending if she ceases hormone treatment or changes her mind about transitioning. In such a circumstance, the possibility of her engaging in offending behaviour described in the scenarios above is considered likely.[33]
[31] ts 31.
[32] ts 32.
[33] ts 33.
Dr Wojnarowska considered that it was unlikely the respondent would de-transition but was concerned about the possibility of anti-androgen treatment being ceased in the future when determining the risk of the respondent's disorder again being expressed in her thoughts, emotions and behaviour.
In cross examination, Dr Wojnarowska agreed that the respondent was keen to continue with her hormone treatment; that the respondent accepted it assisted in managing her risk of further offending; and that she had a 'very great fear of reoffending' and its consequences.[34] They were protective risk factors. It was also possible that the respondent could replace hormone treatment with SSRI medication (it should be noted that, according to Ms Maynard, the respondent has been on SSRI medication as well as anti-androgen treatment). However, Dr Wojnarowska considered that SSRI medication was less effective than testosterone treatment in suppressing libido. Dr Wojnarowska also confirmed that surgery to remove the testes would lower the level of the respondent's testosterone. It would not be necessary in that event for the respondent to maintain anti-testosterone medication at pre-surgery levels.[35]
[34] ts 37.
[35] ts 38.
Dr Wojnarowska agreed that psychological intervention had been very successful for the respondent and ongoing intervention could be adequately provided by a private practitioner. The respondent had made treatment gains which Dr Wojnarowska regarded as being 'very unusual' for sex offenders. The respondent was better able to implement risk management strategies, including managing the triggers for offending.[36] She was developing a social network that would assist in maintaining a pro-social lifestyle.
[36] ts 38 - 39.
However, Dr Wojnaroska remained concerned by the presence of risk factors in addition to a future change in the respondent's medication regime or decision to transition:
(a)the respondent was 'still just in her fifties and is still, as a biological male, I would expect that she still has at least average sexual needs';
(b)the withdrawal of the support structure provided by the Supervision Order could escalate risk as the respondent had received other forms of support in addition to psychological counselling so that 'it's a matter of weighing how – how important this new community [alternative supports put in place by the respondent] has become and how she will be able to manage a big chunk of her life being cut off, should the order be discontinued' and 'I would just say that I am concerned that … the risk factor will not be negated if all current supports … in place are…taken away. And monitoring of her mental state'.[37]
[37] ts 40 - 41.
Dr Wojnarowska stated in answer to a question I posed about the term of any supervision order that might be made:
So I was hoping that five years of - of an order that provides a structure and the transition to living without any orders will be sufficient, and during that time the less the restrictions are placed on [the respondent] the better, in terms of the risk…[t]aking into consideration the fact that there will be, we understand, the surgery, the surgery is likely to be not earlier than next year. Then there will be a period of adjustment of the body and mind to what has occurred. This is a major surgery, not technically major but in terms of outcomes. So there is the period of adjustment. In conjunction, should then the GPS was removed and - and she was placed on - in a really - in a less restrictive environment, in my view this will all take some time. And I also take into consideration the fact that [the respondent] is still relatively young. She is in her fifties. We do know that among the sex offenders when you compare, for example, rapists and paedophiles, paedophiles are the ones that continue to be at high risk even with advancing age.[38]
[38] ts 44.
In answer to a follow up question by Ms Farley SC, Dr Wojnarowska stated that, in her opinion, the safest course was to 'wean' the respondent 'off supervision' rather than ceasing entirely so that the time period of any order did not make much difference. Rather, it was preferable that the support provided by a supervision order did not immediately cease.[39]

Dr Brett

[39] ts 44 - 45.

Dr Brett provided a risk assessment for the purpose of the div 2 DSO Act hearing conducted by McKechnie J in November 2008. Dr Brett considered that the respondent was in a high risk group for reoffending and was potentially a serious danger to the community. He considered that the respondent had paedophilia and voyeurism disorders. There was a stable pattern of deviant sexual arousal with a self-reported history of fantasies and preoccupation with children. Ms Collyer's report summarised a number of risk factors identified by Dr Brett and Dr Wojnarowska in their reports for the purpose of the div 2 hearing.[40]

Ms Place

[40] Exh 1, pages 388 - 389.

Ms Place provided psychological counselling to the respondent between February 2014 and October 2017. She stated in her report of September 2017 that:
(a)The respondent's engagement with counselling was superficial in that she was willing to discuss treatment goals and to use the forum to vent her frustrations but was unwilling to develop or implement strategies to achieve the treatment goals or improve her quality of life. Ms Place also considered that the respondent was content to rely on external management of mental health symptoms (for example, medication) and her risk of reoffending (for example, her case management team) rather than taking personal responsibility and developing internal management strategies.
(b)The respondent had a depressive, avoidant and paranoid personality profile. Her mental state was pessimistic and self-defeatist.
(c)The respondent had become frustrated during 2017, feeling disempowered by her case management team and the conditions of the Supervision Order. Her physical appearance had deteriorated and she expressed some thoughts of suicide but denied any 'concrete' plans.
(d)The respondent had made some gains from counselling but they were not maintained - the respondent 'inevitably returned to [her] baseline'.[41]

Dr Wynn Owen

[41] Exh 1, page 451.

As previously noted, Dr Wynn Owen reviewed the respondent in 2018 and again, in 2019. The primary purpose of those reviews was to assess the risk of the respondent offending in the context of a change in her medication regime following the recommendation that she cease anti-libidinal treatment due to its side effects.
Dr Wynn Owen stated in his reviews that the respondent's likelihood of reoffending within five years was 'well above average' based on the Static-99R risk assessment instrument, indicating a 20.5% likelihood of committing a new sexual offence. Dr Wynn Owen noted that risk level would reduce over time if the respondent continued to remain in the community without committing an offence. The risk of offending was managed by anti-libidinal medication but, in Dr Wynn Owen's opinion, the respondent's sexually deviant thinking would return on cessation of the medication. That would result in an increase in the risk of the respondent offending.
Dr Wynn Owen noted in his review of September 2019 that the respondent had reported a return to normal physiological sexual functioning and arousal to sexual stimuli following cessation of anti-libidinal medication. For example, the respondent had reported an interest in gay pornography. However, she also denied fantasising about children.
The respondent had identified as female by the time of Dr Wynn Owen's second review. He considered there would be no adverse effect on the respondent's risk of reoffending if she proceeded with a planned course of pharmacological treatment to suppress testosterone and to undergo surgical gender reassignment. However, Dr Wynn Owen expected that the respondent would experience thoughts relating to her longstanding and well-established sexual preference for children with a return of physiological sexual functioning.

Ms Ballantyne

Ms Ballantyne assumed responsibility for providing psychological counselling to the respondent after October 2017. Her first report dated 22 September 2018 was an interim progress report made after she had conducted 14 counselling sessions with the respondent. The purpose of the sessions at that time was to assist in a transition to privately provided psychological counselling (the respondent is entitled to funding from the Department of Veteran Affairs). The respondent presented with low mood and a pessimistic outlook. She was frustrated by the conditions of the Supervision Order and lacked a sense of hope. It was at around this time that the side effects of the respondent's anti-libidinal medication were diagnosed.[42] The respondent's treatment goals were altered to reflect changes to her medication regime and her concerns about possible reoccurrence of potentially problematic sexual interests and increased libido.
[42] Exh 1, page 454.
Ms Ballantyne's second report, dated 18 August 2021, contained a detailed account of the process by which the respondent had first identified as a homosexual male and subsequently, as transgender; the steps taken by the respondent to progress her transition; the support she required; and her counselling needs. The report also provided information about the respondent's development of a social network during this period and her dealings with the RMT. Ms Ballantyne noted that the respondent had increased her engagement in community activities and had established a supportive, positive friendship with an individual with whom she enjoyed a range of social activities. The respondent had identified an independently sourced, private clinician to provide psychological counselling and it was anticipated that Ms Ballantyne's therapeutic relationship with the respondent would be terminated regardless of the outcome of the State's application for a restriction order.
Ms Ballantyne noted that the respondent had consistently denied actively experiencing sexually deviant interests during a long period of compliance with anti-libidinal medication. The respondent had maintained those denials after the medication had ceased but while she was engaged in psychological counselling. Ms Ballantyne concluded that:[43]
In the absence of evidence otherwise, this is no longer a dynamic treatment target that can be meaningfully addressed with [the respondent]. Supervision and/or monitoring of the presence of any such concerns can be undertaken with a Senior Community Corrections Officer, in the event that another Restriction Order is imposed pursuant to the HRSOA.

Ms Collyer

[43] Exh 1, page 463.

Ms Collyer provided an end of order report. As the title suggested, the report provided an overview of the respondent's performance under the Supervision Order, including a summary of the psychological and psychiatric opinions that had been obtained about the respondent's risk of offending and her engagement with counselling and other treatment interventions.
Ms Collyer also assessed the risk of the respondent offending using Static-99R. She also evaluated the respondent's risk profile using STABLE-2007R. That tool produces an estimate of stable dynamic risk factors and can be used to assist in case management and in identifying treatment and supervision goals. Ms Collyer's report contained a detailed explanation of the results that were obtained from each of those risk assessment instruments.
Ms Collyer assessed the risk of the respondent offending using Static-99R as 'well above average' risk for 'being charged or convicted of another sexual offence, compared to a routine sample of sex offenders, representing an 18.4 - 22.8% predicted recidivism group (within 5 years of release) due to number [of] prior sex offences, convictions for non-contact offences (related to indecent filming of his daughter), unrelated and male victims'. There were mitigating factors including age at release from custody and the fact that the respondent had lived with a partner for more than two years.[44] Further, Ms Collyer considered that the respondent's risk of offending could be reduced to the 'average risk category' on account of the time she has spent in the community without offending. That represented a '3 - 8% predicted recidivism group'.[45]
[44] Exh 1, pages 396 - 97.
[45] Exh 1, page 399 - 400.
Ms Collyer stated that the STABLE-2007R results indicated that the respondent had a 'moderate level of dynamic risk factors identified'. The primary factor was her diagnosis of paedophilia. A number of secondary factors were also present.[46]
[46] Exh 1, page 399.
Ms Collyer interviewed the respondent for the purpose of the report. Again, the report contained a detailed account of the respondent's response to the Supervision Order and the treatment she had received. Ms Collyer noted the gains that the respondent had made from counselling and in her lifestyle more generally. However, Ms Collyer also noted that:
(a)The respondent was committed to medication to control risk which suggested 'an unwillingness or fear to rely on other methods to manage deviant interest though arguably also indicates commitment to ongoing risk management'. However, 'deviant sexual interest remains a concern for [the respondent] due to chronicity and diversity of her history'.[47]
(b)It was difficult to assess whether other risk management strategies remained adequately protective while the respondent remained on anti-androgen medication.[48]
(c)The respondent was positive about her current case manager; that had not always been the position.[49]
(d)The respondent believed that 'ultimately' the support she had received over the term of the Supervision Order had been 'integral to her remaining in the community and not ending up 'back inside'. The respondent found electronic monitoring intrusive due to the visibility of her ankle bracelet. However, 'basically' she 'indicated a willingness to continue with the various components of the order, voluntarily'.[50]
(e)The respondent had felt 'a lot happier about herself' once she had embraced her gender transition.[51]

Ms Hasson

[47] Exh 1, page 400.

[48] Exh 1, page 400.

[49] Exh 1, page 394.

[50] Exh 1, page 395 - 96.

[51] Exh 1, 394.

Ms Hasson provided a report pursuant to s 74 of the HRSO Act.
The respondent reported to Ms Hasson that she had experienced a 'floodgate return of sexual thoughts' and physiological arousal after ceasing anti-libidinal medication in 2018.[52] Her interest was directed to gay pornography and she denied any deviant sexual thinking about children. This preceded the respondent transitioning from male to female.
[52] Exh 1, page 470.
Ms Hasson noted that the respondent was considering surgery but it was expensive. The respondent had indicated that surgery was not a priority. However, she was prepared to consider an orchiectomy as a means to living as a woman and reducing her libido to protect against any concerns of future sexual offending in the event that she did not pursue gender reassignment surgery or experienced a return of sexual arousal and drive associated with hormonal changes.
As for the assessment of the respondent's risk of offending, Ms Hasson noted that:
Review of the book of materials as well as interview with [the respondent] reveals a history of some impairment in emotional and behavioural regulation. Previous psychological assessments for Court have indicated that [the respondent] has an avoidant personality style with prominent anxiety, an isolated lifestyle yet with a significant need for acceptance and involvement with others however is held back by fears of rejection and humiliation. Individuals with similar personalities often meet emotional needs through fantasy.[53]
[53] Exh 1, page 472.
Ms Hasson also noted comments to that effect by Dr Wojnarowska and Ms Place. However, Ms Hasson considered that there had been a positive shift in the respondent's motivation to engage in community based activities and to develop personal relationships in the past two years. Further, the respondent had independently engaged with community based psychological services and sought support from her treating doctor, as well as from a departmental psychologist and community justice staff. At the time of Ms Hasson's assessment, the respondent was 'positive and future focused'.[54]
[54] Exh 1, page 473.
Ms Hasson's report contained a detailed review of the respondent's history of offending, participation in treatment programs while in custody, engagement with psychological counselling and performance while subject to the Supervision Order. Ms Hasson also undertook a risk assessment using Static-99R, RSVP, and PCL-R. She identified three risk scenarios and concluded in relation to those scenarios that:[55]
If [the respondent] remains on hormone treatment and has low testosterone levels then the imminence of her reoffending is low. Should [the respondent] cease treatment her risk will increase as her libido and testosterone levels rise. This is likely to take a few months. If deviant interests and fantasies return then [the respondent's] imminence of risk will also become prominent
…
[the respondent] is assessed as being a high risk of sexual reoffending if she ceases hormone treatment or changes her mind about transitioning. In such a circumstance the possibility of her engaging in an offending behaviour described in the scenarios above is considered likely. Research however suggest that regret and de-transition, though possible, is rare.
[55] Exh 1, page 493.
Ms Hasson also considered that:
(a)The respondent had addressed most of her risk factors through engagement in nearly 10 years of individual counselling, in addition to the considerable supervision, support and monitoring received under the Supervision Order. The respondent had performed well on the Supervision Order and there had been no indication that she had engaged in 'offence paralleling behaviours or sexually concerning behaviours' throughout the time she was subject to the order.[56]
(b)The various risk assessment instruments all indicated that the respondent presented as an above average risk of serious reoffending. The most significant risk factor was the respondent's diagnosis of paedophilia. Testosterone suppression had managed her deviant sexual interest and drives for the past decade. Her recent transition to living as a female did not negate her deviant sexual preference. However, her current medications had the benefit of reducing her testosterone and libido. There had not been a return of deviant sexual interests and fantasies during this process.
(c)It was likely that the risk assessment tools overestimated the respondent's risk and it was more likely that she was at average risk of sexually re-offending in the future.
[56] Exh 1, page 494.
In her oral evidence, Ms Hasson explained why she thought the risk assessment instruments may have over-estimated the risk of the respondent offending:
(a)The Static-99R instrument does not consider all factors relevant to risk but focuses on static factors. Those factors will not have changed over time for the respondent.[57]
(b)RSVP also incorporates some historical factors. However, the protocol also includes dynamic factors relating to stress, coping, relationships and problem solving.
(c)It was necessary to take into account a 'structured professional judgment' given the static factors involved in the risk assessment instruments. In Ms Hasson's opinion, the respondent had no outstanding treatment needs in relation to the dynamic risk factors referred to in the RSVP. Consequently, the structured professional judgment undertaken by Ms Hasson took into account the changes in some of the respondent's risk factors that, in her opinion, had occurred over time.[58]
[57] Dr Wojnarowska agreed with that proposition. She explained that the Static-99R score would only change with the respondent's age: ts 35 - 36.
[58] ts 47 - 49.
Ms Hasson agreed that the respondent's risk of offending would be high if she ceased anti-androgen treatment and transitioning to a female. Ms Hasson added that there were other strategies, such as returning to other forms of medication, if the respondent did not cope and once again experienced intrusive thoughts of sexual deviance or sexual preoccupation.[59]
[59] ts 51.
Ms Hasson stated she was aware that the respondent had lost her son, who was overseas, and her pet dog 'within a very short time frame' during 2020 (it was apparent from other reports that the respondent had for a long time relied on her dog as a source of companionship and support). Ms Hasson stated that she understood from speaking to the respondent's community corrections officer and Ms Ballantyne that the respondent had coped 'really well' with those losses:[60]
The indications are that she coped and managed really well, she expressed herself appropriately, she didn't decompensate, she didn't engage in any maladaptive coping behaviours. There was no relapse back into looking at any pornography or over sexual behaviours. She didn't use illicit substances, she didn't fall into alcoholism. She coped and functioned quite well.
[60] ts 52.
Ms Hasson considered that the respondent had been proactive in seeking help and raising issues and had demonstrated a capacity to obtain assistance if required. In Ms Hasson's opinion, there was not much more that the respondent could do to lower risk - '[s]he can only continue to manage her risk, and just maintain the treatment gains….and be vigilant.'[61] Ms Hasson made two further points in that context:
(a)Paedophilia was a lifelong disorder so the issue was the respondent's capacity to manage any impulses that might emerge.
(b)There was no indication of an imminent risk. The risk of the respondent reoffending would only emerge over time if, for example, she ceased medication. The respondent was fearful that sexual thoughts about children might return and it was to be expected she would seek help to manage those thoughts if they reoccurred. That was especially given the treatment gains that the respondent had made in the last few years.
[61] ts 54.

Propensity and the pattern of offending (s 7(3)(c) and (3)(d) HRSO Act)

There is an obvious pattern to the respondent's offending. Her offending involved young female victims. The offending had been pervasive, compulsive and habitual. On her own admission, the respondent committed sexual acts against young female victims whenever the opportunity presented. The offending included offences against her daughter.
The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR, Murray AJA stated that:[62]
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristics of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.
[62] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178].
It was not in issue that the respondent has a sexually deviant disorder of paedophilia. It was also not in issue that the disorder is lifelong. The disorder has been expressed in the form of a sexual interest in prepubescent females and the commission of numerous charged and uncharged sexual acts against young victims.[63] The disorder has caused the respondent to sexually fantasise about young females and to be preoccupied with sex. The pervasive and intrusive nature of the fantasies and pre-occupation with sex at one time in the respondent's life was described in the following passage from Ms Hasson's report:[64]
[The respondent] acknowledged a long history of sexual preoccupation and high sexual drive that was only reduced through the use of antilibidinal medication. [The respondent] reported that … the frequency of her sexual thoughts were distressing and interfered with everyday tasks of daily living as much of her day was spent fantasising about children. [The respondent] disclosed that her sexual thoughts and sexual interest in children peaked during her second marriage …, reaching a point where she believes that she “would have progressed to snatching a child” if she had not been arrested and charged. [The respondent] commented that her “sexual thoughts were too noisy” and “now I know why I went on medication”.
[63] It is to be noted that the Sex Offender Treatment Completion Report dated May 2006 stated that the respondent had also sexually abused his son: exh 1, page 175. Ms Collyer's report also refers to some evidence of sexual diversity in the material presented for the purpose of the div 2 DSO Act hearing before McKechnie J in November 2008: exh 1, page 388.
[64] Exh 1, page 471.

Efforts to address the causes of offending (s 7(3)(e) HRSO Act)

The steps taken by the respondent to manage the causes and risk of her offending have been substantially outlined above.
The sex offender treatment program completion report dated 12 May 2006 stated that the respondent had participated in a number of therapeutic programs after being sentenced to lengthy terms of imprisonment in 2002.[65] The programs included the ISOTP in which the respondent participated in September 2005 and again, in late 2005/early 2006. Some aspects of the program completion reports have already been noted.
[65] The programs are listed in exh 1, page 174.
The completion report for the second ISOTP recorded that the respondent reported a belief that he (as the respondent identified at that time) was homosexual. The respondent continued to also report sexual fantasies relating to prepubescent females as well as adult males. The authors of the report (Mr Matthew Bowen, a senior clinical and intervention officer, and Dr Wojnarowska) considered that the respondent's reports supported the idea that she viewed sexual activities as the primary focus of her interactions with others; that is, she had a strong tendency to objectify others regardless of age or gender.[66] There were other aspects of the respondent's self-reporting in the treatment programs that supported this view.
[66] Exh 1, page 175.
The risk of the respondent's offending was assessed as part of the programs using Static-99. The respondent's scores in the second program suggested that the respondent was in a 'medium-high' risk category of reoffending. Mr Bowen and Dr Wojnarowska explained that, 'based on a sample of sex offenders from Canada and the UK upon which the Static 99 was developed, this suggests that [the respondent has a 3 in 10 chance of sexual re-offending within a 5 year period.'[67]
[67] Exh 1, page 177.
The respondent was assessed as having ongoing treatment needs in three of the four domains of the Structured Risk Assessment that was used for the purpose of assessing her during ISOTP: sexual interests, socio-affective functioning and self-management. Mr Bowen and Dr Wojnarowska considered that the respondent had acknowledged her ongoing treatment requirements and the need for 'ongoing vigilance in managing … risk.' They recommended that the respondent continue with anti-androgen medication.[68]
[68] Exh 1, page 179.

The effect of the respondent's participation in rehabilitation programs (s 7(3)(f) HRSO Act)

The completion reports for the respondent's participation in ISOTP suggested that the respondent had made positive gains from the programs. However, the respondent was convicted of the conspiracy offences during a period ending in February 2008. In sentencing the respondent for those offences, McKechnie J found that the respondent had engaged in the conspiracy while in custody - that is, prior to her release in February 2008. Further, the respondent had met one of her alleged co-conspirators while participating in ISOTP and the conspiracy had commenced while the respondent was in Casuarina Prison and continued when she and her alleged co-conspirators were subsequently transferred to Karnet Prison Farm. Accordingly, the respondent entered into the conspiracy either while participating in one of the ISOTPs or shortly after completing the second program.
Ms Ballantyne and Ms Collyer identified in their reports a number of gains that the respondent had made from counselling. It was accepted by Dr Wojnarowska and Ms Hasson that the respondent had benefited from psychological counselling during the term of the Supervision Order. It was apparent from Ms Place's report, and the first report made by Ms Ballantyne, that the benefit derived by the respondent from counselling largely occurred in the last few years when Ms Ballantyne was her counsellor and after the respondent had first identified as a homosexual male and subsequently as female.

The respondent's antecedents and criminal record - s 7(3)(g) HRSO Act

The respondent's criminal record and personal history have been summarised earlier. The only matter to add is that the respondent has not been convicted of any offence other than the sex offences to which reference has already been made.

Other matters - the respondent's performance under the Supervision Order (s 7(3)(j) HRSO Act)

Ms Maynard's report contains a detailed account of the respondent's performance under the Supervision Order. Ms Maynard was called by the State to give evidence in the final hearing of the application. There was no challenge to her account of the respondent's performance during the order. In summary, Ms Maynard reported that:
(a)The respondent had been compliant with her reporting regime throughout the term of the Supervision Order. Her level of engagement had generally been consistent and was largely positive.
(b)There had been issues concerning the respondent's reaction to restrictions imposed by the RMT. For example, the respondent had reacted with frustration and agitation when prevented by the RMT from pursuing some business ideas which were thought to be problematic because of the risk of direct or indirect contact with children.
(c)The respondent had not been charged with contravening the requirements of the Supervision Order. However, she had received written warnings for failure to comply with some conditions - the warnings were summarised in Ms Maynard's report.[69]
(d)The respondent had completed approximately 175 sessions of individual psychological counselling since the Supervision Order was made in 2008. She ceased anti-libidinal medication in 2018 and has taken SSRI medication since that time.
[69] Exh 1, page 518 - 519.
Ms Maynard also reported that:
(a)The respondent has stable accommodation - she has been in her current accommodation since 2013.
(b)The respondent had limited social support for much of the term of the Supervision Order. Her mental health fluctuated prior to 2019 and she had become isolated in the community. Her involvement in the community increased after she identified as transgender and commenced engaging with a transgender support group. However, there had been a concern about the respondent not removing herself from an event organised by the group at which a child was present. The concern extended to the respondent's explanation for why she did not leave the event.

The risk of offending and the need to protect the community (s 7(3)(h) and (i) HRSO Act)

It is convenient to draw a distinction between the evidence relevant to the matters specified in s 7(3)(h) and (i) and the findings to be made under s 7(1) of the HRSO Act. Accordingly, the findings that have been made about the risk of the respondent offending; whether that risk is unacceptable; and whether it is necessary to make a restriction order to ensure the community is adequately protected, are stated and explained in the next section.
The evidence relevant to the risk of the respondent offending if a restriction order is not made, and the need to protect the community from that risk, has already been summarised. There was much common ground between the opinions expressed between Dr Wojanarowska and Ms Hasson. Understandably, the parties focused on the difference in their risk assessments - Dr Wojnarowska assessed the respondent's risk of offending as 'high', while Ms Hasson concluded that the respondent's risk of offending was 'above average' and that the application of risk assessment instruments may have overstated the level of the respondent's risk. The differences in the opinions expressed by Dr Wojnarowska and Ms Hasson are considered in the next section.
In relation to the matters specified in s 7(3)(h) and (i), it is necessary only to repeat that there was no issue that the respondent has a lifelong sexually deviant disorder of paedophilia; that she had extensively and repeatedly offended until at least September 2008 (charged and uncharged acts); and that risk factors remain. The respondent has previously acknowledged the risk of offending, including when she ceased anti-libidinal medication in 2018. The real issues to be determined are whether that risk is unacceptable and if so, whether it is necessary to make a supervision order to ensure that the community is adequately protected.

Findings on s 7(1) HRSO Act

The nature of the findings required to be made

There was no challenge to the accuracy of the information contained in the book of materials (exh 1). Accordingly, the matters stated in the narrative above, and which were taken from exh 1, were not in issue and it is not necessary to make express findings about those matters. They provide the factual basis for the findings that have been made for the purpose of s 7(1) of the HRSO Act. I consider that the evidence presented by the State was acceptable and cogent.
Section 7(1) requires the court to first decide whether the evidence establishes that there is, in fact, a risk of offending in the future. In my view, that was clearly established. It is an inference readily drawn from the evidence summarised above about each of the matters specified in s 7(3).

The court must then determine whether that risk is 'unacceptable' for the purpose of s 7(1). That does not require the court to make an ordinary finding of fact (a binary determination about whether the fact is or is not established to the requisite standard of proof) nor does it entail the exercise of a judicial discretion. Rather, the court is required to make an evaluative and prospective judgment, weighing and balancing the matters specified in s 7(3). The judgment is purposive - that is, the judgment is to be made having regard to the purpose of s 7(1), read with the objects of the HRSO Act and the scheme of the Act as a whole.
If the risk of offending is found to be unacceptable, the court must then determine whether it is satisfied that it is necessary to make a restriction order to ensure the community is adequately protected against that risk. Again, the court is required to make an evaluative judgment about the necessity for a restriction order to adequately protect the community. The court must be satisfied to a high degree of probability. The effect of that requirement is that the court must be satisfied to a high degree of probability about each of the matters on which a finding is required by s 7(1).

Some relevant matters

The respondent has not been charged with an offence allegedly committed after September 2008. There is no evidence that she has committed, or is suspected of having committed, any sexual offence for which she had not been charged since that time. The risk of the respondent offending while in the community under the Supervision Order has been successfully managed for ten years.
There are several possible reasons for why the respondent's risk of offending has been managed during the Supervision Order, including:
(a)the effect of anti-libidinal medication, in particular by suppressing the respondent's testosterone levels;
(b)gains made by the respondent through counselling;
(c)the respondent acquiring insight into the nature and effect of her offending;
(d)the resolution of issues concerning the true nature of the respondent's sexuality;
(e)the respondent attaining a more settled, socially rich and less introspective lifestyle;
(f)the respondent's fear of further incarceration.
It is not necessary to fully disentangle those reasons; I accept that the most likely explanation for the respondent not offending during the term of the Supervision Order lies in a combination of factors. However, two points need to be made.
First, I accept that anti-libidinal medication was effective in curtailing the respondent's preoccupation with sex and sublimating her propensity to sexually fantasise about prepubescent females. In my view, the use of testosterone suppression medication has been the most significant factor in managing the risk of the respondent offending. I make that finding having regard to:
(a)The respondent's self-reporting - she reported that the medication had suppressed sexual fantasies and preoccupation. However, the respondent also reported to Dr Wynn Owen that she had returned to 'normal physiological sexual functioning and arousal to sexual stimuli' on ceasing the medication. The respondent told Ms Hasson that she had experienced a 'floodgate return of sexual thoughts' and physiological arousal when her anti-libidinal medication was stopped. The respondent emphasised the effects of medication in suppressing deviant thoughts in her interview with Ms Collyer. The respondent's reliance on anti-libidinal medication to manage intrusive deviant thoughts emerges strongly from all the evidence adduced in the application.
(b)The reports of Dr Wynn Owen concerning the effects of altering the respondent's medication regime.
(c)The reports and oral evidence of Dr Wojnarowska and Ms Hasson - in particular, their assessments of the risk of offending should the respondent cease testosterone suppressing medication.
Second, there were significant differences between Ms Place's report (September 2017) and Ms Ballantyne's second report (August 2021) about the respondent's presentation in, and engagement with, counselling. The differences in the reports raised issues concerning the nature, durability and source of the gains identified by Ms Ballantyne. Given the views expressed by Ms Place (that any benefit apparently derived by the respondent from counselling was ephemeral), the gains noted by Ms Ballantyne represent a significant break in the pattern of the respondent's response to counselling. That is also apparent from the matters noted by Ms Ballantyne in her intervention progress report of September 2018 about the respondent's then presentation and attitudes. It appears from that report that the gains to which Ms Ballantyne referred in her second report date from some time after September 2018. It is to be inferred that the subsequent change noted by Ms Ballantyne largely coincided with the respondent's decisions about her sexuality and the resulting improvements in her lifestyle.
The respondent's decisions about her sexuality and lifestyle are obviously profound. However, those decisions have only been made in the last two years and the respondent has yet to decide whether she wishes to further progress her transition and if so, in what ways. It is not easy to determine how effective the respondent's counselling will be in managing the risk of her offending in the future having regard to a number of matters: the nature of the respondent's lifelong disorder; the intensity with which it has been expressed in the past; the fact that the respondent had apparently benefitted from counselling and treatment previously but still lapsed into offending (2005 and 2006 ISOTP and the conspiracy offences); the matters noted by Ms Place; the role played by anti-libidinal medication in managing the expression of the respondent's disorder and the relationship between her transition and the risk of offending as explained by Dr Wojnarowska and Ms Hasson.

The opinions of Dr Wojnarowska and Ms Hasson

The State submitted that the opinion of Dr Wojnarowska (that the risk of the respondent offending was high) should be accepted for the following reasons:
(a)Dr Wojnarowska's diagnosis of paedophilia was central to her risk assessment. She did not consider that the respondent's transition was a completely protective factor. The main risk factor was the respondent's deviant sexual interests in female children. Gender reassignment surgery or surgery to remove the respondent's testes would not necessarily resolve that risk.
(b)Dr Wojnarowska considered the risk of the respondent offending would escalate if she ceased anti-androgen medication. That was possible given the side effects of the medication. Ms Hasson agreed that the risk of offending would be high if the respondent ceased hormone treatment or changed her mind about transitioning. Ms Hasson downplayed that risk by reference to research suggesting that regret and detransition were rare. Dr Wojnarowska accepted that detransitioning was rare but considered that it was possible (as did Ms Hasson).
(c)Dr Wojnarowska had the advantage of having previously reviewed the respondent for proceedings under the DSO Act (and she also reviewed the respondent's performance in ISOTP in 2006). She was in a better position than Ms Hasson to assess whether there had been significant changes over time in the respondent's risk of offending and contributing risk factors.
The respondent emphasised Ms Hasson's risk assessment and the reasons for that assessment - in particular, the gains the respondent had made from counselling as identified by Ms Ballantyne; the benefits derived by the respondent from her transitioning; and the fact that the respondent had successfully completed the term of the Supervision Order without offending.
There were four significant differences between the opinions expressed by Dr Wojnarowska and Ms Hasson:
(a)Dr Wojnarowska considered that clinical assessment was not as valid for risk assessment as the combination of instruments that are specifically recommended for that purpose. Ms Hasson, on the other hand, considered it appropriate to undertake what she referred to as a 'structured professional judgment' in determining the respondent's risk of offending.
(b)Dr Wojnarowska and Ms Hasson considered that the risk of the respondent offending was high if she ceased anti-androgen medication or did not complete her gender transition. In Dr Wojnarowska's opinion, those possibilities were sufficiently prospective and concerning that the respondent's medication regime and progress in transitioning should be monitored into the future under a supervision order. In Ms Hasson's opinion, the community would be adequately protected without the respondent being placed under a supervision order. She considered that the respondent was motivated to manage her risk and would report any re-emergence of deviant thought patterns so that protective steps could be taken.
(c)Dr Wojnarowska considered that the structure provided by the Supervision Order had been an important factor in managing the respondent's risk over time. It was not in the respondent's interests, or those of the community, for the structure and supports provided by the order to be immediately withdrawn.
(d)Ms Hasson gave more weight in assessing risk to the respondent's gains from counselling as reported by Ms Ballantyne than did Dr Wojnarowska.

Findings

I have concluded that the risk of the respondent offending is unacceptable. The nature of the risk is such that I am satisfied that it is necessary to make a supervision order to ensure the community is adequately protected. I am satisfied about those matters to a high degree of probability having regard to the matters specified in s 7(3). In particular:
(a)The respondent has been diagnosed by Dr Wynn Owen and Dr Wojnarowska with a sexually deviant disorder of paedophilia. Ms Hasson accepted that diagnosis. It is common ground that the disorder is lifelong.
(b)The respondent has experienced deviant sexual fantasies about young females and a consuming sexual preoccupation for long periods in her life. On the respondent's admissions, the expression of her disorder has in the past been so intense as to dominate her life. The respondent has demonstrated a propensity in the past to act on those fantasies by compulsively and repeatedly sexually assaulting young females. Her victims were not strangers to her, but her offending was opportunistic.
(c)As Ms Hasson emphasised, an assessment of risk using actuarial instruments does not capture the effect of changes in the respondent's life and the benefits she may have derived from those changes and from counselling. However, the respondent's primary risk factor is her paedophilia disorder. That is a lifelong disorder and accordingly, the results of risk assessments using Static-99R should be given significant weight. That is consistent with the opinion of Dr Wojnarowska.
(d)It was apparent from the evidence of Ms Hasson that there was not much substantive difference between an assessment of 'above average' risk and 'high' risk using Static-99R. The respondent's risk was assessed as 'medium-high' using Static-99R at the time of her participation in ISOTP. That was also the assessment made by Ms Hicks and Ms Zuin in 2000. The second ISOTP completion report stated that research suggested that this category carried a 3 in 10 chance of offending within five years. Dr Wynn Owen assessed the respondent's risk as 'well above average' using Static-99R, indicating a 20.5% risk of committing a sexual offence within five years. However, that risk was to be adjusted to allow for the time the respondent had spent in the community without committing an offence. Ms Collyer also assessed the risk of the respondent offending as 'well above average' using Static-99R before adjusting the risk category to 'average' to account for the time the respondent has spent offence free in the community.
(e)In my view, the risk of offending, as assessed by Static-99R, is of concern whether it was categorised as 'average', 'above average', 'medium-high' or 'high' when considered against the nature of the risk - that is, the risk that the respondent will commit very serious sexual offences against young females should her disorder manifest itself again.
(f)The application of STABLE-2007 indicated the presence of moderate stable dynamic risk factors. The respondent has made progress in managing some secondary risk factors but Ms Collyer's report indicated that there were ongoing concerns with risk management. The respondent's personal history (the detachment from her parents, the abuse to which she was subjected as a child, the long period of obsession with sexual fantasies and offending behaviour) and her personality profile add to the complexity of the respondent's psychological, emotional and treatment needs. The relationship between the respondent's personality traits and her risk of offending was noted by Dr Wojnarowska (including in the ISOTP completion report of May 2006). It was also apparent from the various psychological reports contained in exh 1. The respondent is aware of the need for ongoing counselling but those matters add to the uncertainty surrounding her capacity for adequately managing her risk without a supervision order at this time.
(g)The nature and persistence of the respondent's disorder means that it can only be managed. Dr Wynn Owen, Dr Wojnarowska and Ms Hasson noted that manifestations of the disorder could re-emerge.
(h)The use of anti-libidinal medication was a significant factor in managing the respondent's risk across much of the term of the Supervision Order. There has been a change in the respondent's medication regime since late 2018 but it is apparent that her current regime is a protective factor. Dr Wynn Owen, DrWojnarowska and Ms Hasson considered that the respondent's risk of offending would be heightened by changes in her medication regime. I accept Dr Wojnarowska's evidence that it may be necessary to change the respondent's medication in the future. Her evidence on that point was not challenged; rather, Ms Hasson thought that the possible re-emergence of deviant thought patterns could be managed by the respondent.
(i)The gains made by the respondent from counselling reported by Ms Ballantyne are recent. There is a significant difference in the counselling reports for the respondent before and after her decision to transition to female. I consider that adequate protection of the community requires that the respondent continue to be supervised for a period to ensure that the gains she has made are consolidated and that she can successfully self-manage the risk of offending given the nature of her risk factors. In my view, more time is required to determine whether Ms Hasson is right in concluding that the respondent can manage her risk of offending without a supervision order so that the community is adequately protected.
(j)The respondent has yet to make decisions about her transition that may be significant for the level of risk. Again, I consider that adequate protection of the community requires that the respondent continue to be supervised for a period to ascertain the effects of those decisions on her physiological, psychological and emotional states and concomitant risk of offending. That is consistent with the opinions expressed by Dr Wojnarowska. I have accepted her opinion that the respondent's primary risk is her paedophilia disorder. Her evidence that the disorder is not 'resolved' by the respondent's decision to transition was not challenged. That highlights that more time is required to assess the effects of decisions that the respondent has already made about her sexuality and decisions she might make in the future.
(k)The respondent has 'lived with' the conditions imposed by the Supervision Order for over ten years. The conditions have provided a structure for the respondent even if she has, at times, found the constraints frustrating. I accept Dr Wojnarowska's concerns about the effects of suddenly withdrawing the support and structure provided by a supervision order given the magnitude of the changes that the respondent has recently experienced in her life and the nature of her risk factors. Significantly, Dr Wojnarowska's concerns were echoed by the respondent in her interviews with Ms Collyer.

The terms of the supervision order

Ms Maynard's report contained recommendations and comments about the conditions on which a supervision order might be imposed.[70] They were made after consultation with Dr Wojnarowska and Ms Hasson. Neither the State nor the respondent disputed what was proposed by Ms Maynard should an order be made.
[70] Exh 1, pages 520 – 528.
Generally, I agreed with the conditions proposed by Ms Maynard. However, I gave the parties an opportunity to make further submissions about the conditions on which the supervision order was to be made. I was concerned to ensure that the conditions do not have a counter-productive effect - that is, the conditions protect against the risk of offending in a way that, as much as possible, promotes the steps taken by the respondent to manage her risk.
I considered that, at least for the present, the principle protective risk factor for the respondent is testosterone suppressing treatment. However, the respondent's decision to transition had resulted in positive changes in her psychological state and personal and social circumstances that are also protective. Those changes have contributed to the gains made in counselling that were identified by Ms Ballantyne. It is in the community's interests that the respondent be permitted to build upon and consolidate the benefits derived from her recent life decisions; that the gains made by the respondent are reinforced by how the order was administered. There was force in Dr Wojnarowska's observation that one management objective should be to 'wean' the respondent off some of the conditions that will be imposed.
It will be apparent that the respondent's risk profile may change during the term of the supervision order despite the lifelong nature of her disorder. That is because the level of risk may be affected by decisions about the respondent's medication and transitioning (in particular, whether she elects to have surgery). The management of the supervision order will need to be sensitive to any decision made about those matters - in recognising either an increase or a decrease in risk.
After hearing from the parties, I made a supervision order for a period of four years commencing on 15 December 2021. I imposed 43 conditions on the order. Those conditions were intended to ameliorate the risk of the respondent offending. I considered that the conditions provided adequate protection to the community.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HT
Associate to the Honourable Justice Corboy
16 NOVEMBER 2022