The State of Western Australia v CA
[2020] WASC 164
•15 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CA [2020] WASC 164
CORAM: FIANNACA J
HEARD: 7 & 8 MAY 2020
DELIVERED : 8 MAY 2020
PUBLISHED : 15 MAY 2020
FILE NO/S: DSO 5 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CA
Respondent
Catchwords:
Dangerous sexual offender - Division 1 hearing - Whether an undertaking or an interim supervision order is appropriate - Release on interim supervision order where respondent has been granted parole
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Orders made
Application granted for Division 2 hearing
Interim Supervision Order
Category: B
Representation:
Counsel:
| Applicant | : | Ms F Clare |
| Respondent | : | Mr P G Giudice |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | George Giudice Law Chambers |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Dodd [2015] WASC 249
Director of Public Prosecutions (WA) v Free [2010] WASC 255
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
The Director of Public Prosecutions (WA) v Allen [2006] WASC 160
The State of Wesern Australia v A [2018] WASC 250
The State of Western Australia v Jonsson [2019] WASC 463
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Narkle [2019] WASC 404
FIANNACA J:
The application and its outcome
This is a preliminary hearing of an application filed by the State for orders under s 14 and s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) in respect of the respondent, who is serving a term of imprisonment for a number of sexual offences and two other offences related to the sexual offending. The application was filed on 15 April 2020. It was heard by me on 7 May 2020.
On 8 May 2020, I gave my decision that there were reasonable grounds for believing that the court might find that the respondent is a serious danger to the community, and I fixed 31 August 2020 as the date for the hearing of the application for an order under div 2 of the Act. I also made further orders under s 14, which were settled after discussion with counsel.
Further, I decided that, from 18 May 2020, when the respondent is to be released from custody on a parole order, the respondent is to be subject to an interim supervision order until the determination of the application for a div 2 order.
At the time I gave my decision and made the orders, I gave brief reasons with detailed reasons to follow. These are my detailed reasons.
The nature of the application and the statutory framework
Introduction
The ultimate objective of an application under s 14 and s 17 of the Act is a finding by the court at a div 2 hearing that the respondent is a serious danger to the community, and the making of either a continuing detention order or a supervision order. By s 7 of the Act, to find that the respondent is a serious danger to the community, the court will need to be satisfied to a high degree of probability, on acceptable and cogent evidence, that there is an unacceptable risk that, if the respondent is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. The court is required to make that determination having regard to the considerations set out in s 7(3).
The application was filed pursuant to s 8 of the Act, which provides, in subsection (1), that such an application may be filed in relation to a person -
(a)who is under a custodial sentence for a serious sexual offence; or
(b)who has been under a custodial sentence for a serious sexual offence and who, at all times since being discharged from that sentence, has been under a custodial sentence for another offence or other offences.
'Serious sexual offence' is defined in s 3 the Act and includes a serious sexual offence as defined in s 106A of the Evidence Act 1906 (WA). It is sufficient for present purposes to say that the definition in s 106A of the Evidence Act includes the sexual offences for which the respondent is serving terms of imprisonment. I will identify those offences shortly.
Section 8(3) of the Act provides that, if the respondent is in custody, the application cannot be filed unless there is a possibility that he might be released from custody within the period of one year after the application is made.
The sentences of imprisonment served by the respondent
The respondent is serving a term of 10 years' imprisonment, imposed in the District Court of Western Australia on 8 March 2013, for a number of offences of which he was convicted after trial. The sentence was backdated to commence on 19 May 2012.
All of the offences were committed on 3 April 2011 against a woman, Ms L, who was living with the respondent, but who was not in an intimate relationship with him. The offences consist of one count of unlawfully detaining Ms L (count 1), one count of making a threat to unlawfully kill Ms L (count 2), four counts of sexual penetration without consent (counts 3, 4, 5 and 6) and one count of aggravated sexual penetration without consent (count 7), the circumstance of aggravation being that the respondent did an act which was likely to seriously and substantially degrade Ms L. Each of the five sexual offences is a serious sexual offence for the purposes of the Act.
The offending consisted of violent and degrading sexual acts, committed by the respondent while he was intoxicated with alcohol and in circumstances in which he was jealous of Ms L's relationship with another man and angry that she had refused his requests for sex. The details of the offending and Ms L's evidence are set out in [suppressed] [6] ‑ [26], which was an appeal by the respondent against the convictions and sentence. The appeals were dismissed.
It is not necessary to set out the individual sentences, but I note that the respondent was sentenced to 1 months' imprisonment for counts 1 and 2, being offences that are not serious sexual offences, and he was ordered to serve those sentences concurrently with each other, but cumulatively upon the sentences for counts 3 and 7, resulting in the aggregate of 10 years. The point is that, whether the respondent served the term of 12 months for counts 1 and 2 at the start of the sentence, or is to serve them at the end of the sentence, there would appear to be no doubt that he is currently under a custodial term for a serious sexual offence.
As I noted earlier, the additional criterion that must be met before an application can be brought under s 8 of the Act is that there must be a possibility that the respondent might be released from custody within the period of one year after the application is made (s 8(3) of the Act).
When he was sentenced, the respondent was made eligible for parole. The Prisoners Review Board has granted him parole. The parole release date is 18 May 2020. In the absence of any order or other event to prevent his release, he will be released from custody on that date. It follows that the criterion in s 8(3) is met.
The application is properly before the court
Therefore, the application has been made within the time frame in s 8 and is properly before the court as a preliminary hearing under div 1 of the Act.
Issues to be determined
By s 11 of the Act, the main purpose of the preliminary hearing is to decide whether the court is satisfied there are reasonable grounds for believing that the court might find, under s 7(1), that the respondent is a serious danger to the community.
The law and principles applicable to making an order under s 14 of the Act are as set out in the decisions of McKechnie J in Director of Public Prosecutions (WA) v Free[2010] WASC 255 [10] to [13] and Simmonds J in Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [34] to [42] and have been adopted in subsequent cases.
The test is concerned only with the possibility of a finding being made under s 7(1). The test is satisfied if there is evidence which is capable of being accepted by the court and which could form a reasonable basis for a finding under s 7, bearing in mind that, before such a finding can be made, the court at a div 2 hearing would need to be satisfied to a high degree of probability.
I also take into account what was said by Quinlan CJ in The State of Western Australia v Narkle [2019] WASC 404 [5], [173] and [174] concerning the relevance in proceedings under the Act of a parole order or a post‑sentence supervision order (PSSO), when either of those orders has been granted to a respondent prior to the conclusion of an application under the Act. In assessing the question under s 7(1) of the Act of whether or not there is an unacceptable risk that the person would commit a serious sexual offence if not subject to an order under the Act, the court at a div 2 hearing must have regard to the fact that the person will be on, or is on, a parole order or a PSSO for the period set by that order. In other words, the court must assess what impact, if any, the supervision of the respondent and the obligations upon him under the parole order or PSSO will have on the risk that the respondent will commit a serious sexual offence, in particular whether the risk would be substantially mitigated as a result of that order.
Orders to be made on a preliminary hearing if the test is met
Section 14(1) of the Act provides that, if I am satisfied there are reasonable grounds for believing that the court might find, under s 7(1), that the respondent is a serious danger to the community, then, subject to an exception that is not relevant in this case, a day must be fixed for the hearing of the application for a div 2 order. Section 14(2) provides that, in those circumstances, I must make an order that the respondent undergo examination by two qualified experts, one of whom is to be a psychiatrist, for the purposes of preparing reports to be used on the hearing of the application. On the application of one or both of the parties, I may also order that a person or body named by the court prepare a report on questions or topics set out in the order. Ordinarily, the reports that will be prepared and relied upon by the applicant at a div 2 hearing will include a treatment progress report and a community supervision assessment report. It is not usual to order the preparation of those reports, but an order is ordinarily made for the service of such reports.
If there is a prospect that the offender might be released from custody before the application is finally decided, I can make an interim detention order for a period stated in the order. Alternatively, it is open to the court to make an interim supervision order if the provisions of s 27A of the Act apply. The term 'interim supervision order' is used only in the heading of s 27A and is not defined in the Act. However, 'supervision order' is defined in s 3 of the Act to include an order under s 27A(5), which I will set out shortly.
Section 27A of the Act
Section 27A(2) stipulates the circumstances in which s 27A applies, as follows:
(2)This section applies if -
(a)proceedings on an application made under section 8(1) or (4A), 19 or 22 are pending (the pending proceedings); and
(b)the person to whom the pending proceedings relate is not in custody; and
(c)the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under this section.
Subsection (3) is concerned with the situation in which the person is subject to a supervision order which may expire before the pending proceedings are finally determined, in which case the court can order the continuation of the supervision order. Subsection (4) is concerned with the situation in which the person has been subject to a supervision order which has expired, in which case the court can order the reinstatement of the supervision order. Neither of those situations applies in this case.
Subsection (5) provides:
In any other case, the court may at any time in the pending proceedings order that, with effect from a specified date and until the pending proceedings are finally determined or until another specified date, the offender is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
The requirement that the court's consideration of appropriate conditions is subject to s 18 emphasises that the order made under s 27A(5) is a supervision order (albeit for an interim period), because s 18(1) sets out standard conditions that the court must include if it makes a supervision order in a div 2 proceeding.
As I have indicated, the respondent in these proceedings is currently in custody, but is expected to be released from custody, on parole, on 18 May 2020. The question arises whether s 27A(2)(b) precludes the application of s 27A, and therefore the availability of an interim supervision order, to the respondent, because he is in custody at the time I am making orders under s 14.
Before the enactment of s 27A, if a court decided at a preliminary hearing that the requirements of s 14(1) were met and set a date for a div 2 hearing, and the respondent was entitled to be released because he had completed his sentence or was granted parole, the court did not have the option of releasing the person on an interim supervision order pending the determination of the application for a div 2 order. The court had the discretion to make an interim detention order, but there were cases in which the court was of the view that if the respondent complied with certain conditions within the community, the community would be adequately protected against the putative risk, pending the determination of the div 2 application. In such cases, it is appropriate that the exercise of discretion whether to make an interim detention order should be informed by the principle applicable in a div 2 hearing when determining whether a detention order or supervision order should be made, that is, that the court should choose the option that is least invasive or destructive of the offender's right to be at liberty, while ensuring adequate protection of the community.[1]
[1] The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Decke [2009] WASC 312.
Consequently, in cases at the preliminary hearing stage where the court considered the community could be adequately protected by such means, the court adopted a solution that was not provided for in the Act, but which was a 'common sense approach [that] ensured that public resources are not wasted and a respondent's liberty has not been unnecessarily removed where the risk which the respondent to a div 2 application poses can be adequately managed in the community, rather than in a prison'.[2] The approach required the respondent to enter into an undertaking to the court to comply with conditions that were the same as or similar to a supervision order. A breach of such an undertaking would constitute a contempt of court, but it was recognised that such a sanction would be a cumbersome way in which to enforce the undertaking.[3] The approach that was considered to be more convenient was to adjourn the State's application for an interim detention order, subject to the respondent entering into the undertaking. The proceedings therefore remained adjourned, notwithstanding that other orders had been made for a div 2 hearing, with a view to the application being relisted if the respondent breached the undertaking. The court would then be able to exercise the discretion to make a detention order if satisfied that such an order was then necessary for the protection of the community, in light of the breach.
[2] Unpublished reasons of Jenkins J in Director of Public Prosecutions (WA) v Wesley (DSO 4 of 2014) delivered 15 May 2014, p 6.
[3] The Director of Public Prosecutions (WA) v Allen [2006] WASC 160 [58] ‑ [61].
The unsatisfactory nature of such an approach, which was necessary because of a deficiency in the Act in failing to provide for the alternative of an interim supervision order, was the subject of judicial comment in a number of cases where the court was dealing with applications under s 8 at the preliminary hearing stage.
It was against that background that s 27A was introduced by the Dangerous Sexual Offenders Legislation Amendment Act 2017 (No 21 of 2017), which commenced on 29 March 2018. The second reading speeches and the explanatory memorandum for the bill indicated that the main mischief that was being addressed was the gap that could arise when a person was already on a supervision order that was due to expire soon and the State applied for a further supervision order. That issue had also been the subject of judicial comment and was addressed by subsections (3) and (4) of s 27A.[4] In relation to subsection (5), the second reading speeches and explanatory memorandum simply stated the effect of the proposed provision without explaining the issue it was intended to overcome, which had been identified in previous cases.
[4] The history and an analysis of the effect of s 27A is contained in The State of Western Australia v Jonsson [2019] WASC 463 [111] – [140] (Archer J).
Nevertheless, it is tolerably clear that the provision was intended to provide the court with the option of making an interim supervision order when there are reasonable grounds for believing the court might find the respondent to be a serious danger to the community, but considers that the community can be adequately protected on an interim basis by ordering that the respondent be subject to a number of strict conditions which will constrain his activities and allow for monitoring and management of his risk within the community.
Obviously, if the respondent has already been released from custody when the preliminary hearing is conducted, the provisions of s 27A(2) would apply and an order could be made under s 27A(5). However, prima facie, s 27A(2) would appear not to apply to a respondent who is still in custody when the preliminary hearing is determined, but will be released from custody in the very near future. Both parties in these proceedings submitted that is the effect of s 27A(2), so that an order could not be made under subsection (5) at this stage. On that view, the application for the interim detention order (which is one of the orders sought by the applicant) would need to be adjourned until the day the respondent is released from custody, and an interim supervision order could be made on that day. It would be odd, in my opinion, for a court to have to wait until the respondent is released from custody before making such an order, when it is known that he will be released from custody within a short period of time. It is consistent with the State's obligations under the Act and as a model litigant to bring any application under s 8 in a timely manner (as it did in this case), and it is desirable for a decision to be made under s 14 well before a respondent is released from custody.
Therefore, I would be inclined to construe s 27A(2) to include the situation in which the respondent will not be in custody on a specified future date before the application for the div 2 order is heard, being the 'specified date' referred to in subsection (5). While there may be a degree of contrivance in such a construction, in my view it does not do violence to the language of the section.[5] Arguably the construction is consistent with the power in subsection (5) to order that the person be subject to conditions 'with effect from a specified date'. However, it is not necessary to express a concluded view about that issue. That is because it is open for the court to make an order that does not take effect until the occurrence of an event at a future date, so that, at the time the order comes into effect, the requirement of s 27A(2) will be met. That said, it would be desirable for the issue be clarified by legislative amendment.
[5] Cp The State of Western Australia v Jonsson [140].
Another issue that requires consideration is whether, in determining if an interim supervision order should be made, the court needs to be satisfied that the respondent will substantially comply with the standard conditions of a supervision order, as is required by s 17(3) before a supervision order can be made in the context of a div 2 hearing.
Section 17(3) provides:
A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.
Section 17(4) provides that the onus of proof as to that matter is on the offender (i.e. the respondent).
An order under s 17(1)(b) is an:
… order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
It is one of the orders that comes within the definition of 'supervision order' in s 3 of the Act.
Section 3 of the Act provides that:
standard condition, in relation to a supervision order, means a condition which under section 18(1) must be included in the order.
Section 27A(5) provides that the court may order that the 'offender is to be subject to stated conditions that the court, subject to s 18, considers appropriate' (emphasis added). In my opinion, the natural meaning of that text is that the standard conditions under s 18 must be included in an interim supervision order.
However, as for the need for the court to be satisfied that the respondent will substantially comply with those conditions, s 17(3) refers to an order under subsection (1)(b) of that section, rather than to a 'supervision order', so that it does not, in its terms, apply to an order made under s 27A(5). The same is the case under s 23(1B) and s 33(4) of the Act, which are in the same terms as s 17(3), but relate respectively to the extension or amendment of a supervision order under s 23(1) or (1A) (in proceedings for the contravention of a supervision order) and the making of a supervision order under s 33 (upon the review of a continuing detention order).
A similar issue arises in respect of s 17(2), s 23(2) and s 33(2) of the Act. Those provisions stipulate that the paramount consideration in deciding between a continuing detention order and a supervision order under those sections is the need to ensure the adequate protection of the community. The provisions are not applicable, in their terms, to the decision at the preliminary hearing stage whether to make an interim detention order or an interim supervision order.
It is difficult to see why the requirements under s 17(2) and (3), s 23(1B) and (2), and s 33(2) and (3) should not apply when deciding whether to make an interim supervision order at the preliminary hearing stage of an application for a div 2 order, notwithstanding the fact that the determination at that stage concerns only the possibility that the respondent might be found to be a serious danger to the community. If there are reasonable grounds for believing that the possibility exists, it is reasonable to assume that the putative risk to the community would require measures to be put in place to protect the community, particularly given that one of the objects of the Act is 'to ensure the adequate protection of the community'.[6] While the Act does provide such measures, in the form of an interim detention order and an interim supervision order, there is an absence of statutory guidance, of the kind found in s 17(2) and (3), when the court is called upon to exercise the discretion under s 14(2)(b) and s 27A(5).
[6] Section 4(a) of the Act.
However, as I indicated in Director of Public Prosecutions for Western Australia v Hart,[7] even prior to the enactment of s 17(3) and s 33(3), the court had regarded it necessary to consider the likelihood of an offender complying with the standard conditions (and any other conditions) to be imposed if a supervision order is made.[8] I considered that it was consistent with the general principles outlined by Wheeler JA in Director of Public Prosecutions (WA) v Williams[9] that, even in the absence of a provision such as s 17(3), before making a supervision order, the court would need to be satisfied positively that the respondent would comply with the conditions of such an order, at least to a substantial extent.[10] Although that was in the context of substantive hearings, in which the paramount consideration provision applied, I am of the view that the reasoning applies equally at the stage of a preliminary hearing.
[7] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4.
[8] Hart [25] - [28], referring to The State of Wesern Australia v A [2018] WASC 250 (Corboy J) and Director of Public Prosecutions (WA) v Yates [No 4] [2017] WASC 250 (Martin CJ).
[9] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [86].
[10] Hart [28].
I acknowledge, however, that there is an aspect of the 'substantial compliance' requirement in s 17, s 23 and s 33 that is inapt in proceedings under s 14 of the Act. Each of those sections places the onus as to the matter of substantial compliance upon the respondent. That is in a context in which the respondent has been found to be a serious danger to the community. That is not the case at the preliminary hearing stage, and it would be inconsistent with the onus that lies on the applicant at a div 2 hearing in respect of that threshold question[11] to place any onus upon the respondent. That is so, notwithstanding the existence of reasonable grounds to believe such a finding might be made.
[11] Section 7(2) of the Act.
In any event, as I will explain in due course, I am satisfied on the balance of probabilities that the respondent will substantially comply with the conditions of an interim supervision order that I consider to be appropriate.
Before turning to the merits of the application, I note that there is a further matter that may require legislative reform. A consequence of making an interim supervision order is that, if the respondent contravenes any of the conditions of the order, the procedures under div 4 of the Act for bringing a respondent back before the court in the event of a contravention of a supervision order would apply.[12] The Act does not provide any specific procedure for dealing with a person who is brought back before the court for a contravention of an interim supervision order. The procedures and orders that may be made, as set out in div 4, are apt for the situation in which a person has contravened a supervision order made at the conclusion of a div 2 hearing, or after a periodic review of a continuing detention order, but in many respects are not directly applicable to or apt to deal with a contravention of an interim supervision order. For instance, the orders that may be made under s 23 are of a final, rather than interim, nature, and the provisions of s 24, which place the onus on the respondent to show that he would substantially comply with a supervision order, are problematic for the reasons I identified at [45] above.
[12] Section 21(1) refers to a person 'who is subject to a supervision order'. 'Supervision order' is defined in s 3 to include an order under s 27A(5).
No doubt, any contravention of an interim supervision order would be dealt with in the context in which the order has been made. Given that the purpose of an interim supervision order is to ensure adequate protection of the community against a putative risk (until the court determines whether the respondent is a serious danger to the community), the issue for the court would be whether, despite the contravention, an interim supervision order, in its current terms or amended, would ensure adequate protection of the community against the putative risk for the time remaining until the div 2 hearing, or whether it has become necessary to make an interim detention order to ensure that protection. While that may be the obvious approach, it would be desirable for the Act to clarify the manner in which a respondent is to be dealt with if he contravenes an interim supervision order pending the div 2 hearing.
Evidence in these proceedings
The application is supported by two affidavits of Ms Clare, a lawyer employed by the office of the Director of Public Prosecutions for Western Australia (the DPP), who also appeared as counsel for the State at the hearing. Attached to the Ms Clare's first affidavit, affirmed 15 April 2020, are a number of materials relevant to the respondent's criminal history, his past sentencing hearings, including court transcripts and psychological and pre‑sentence reports relied upon in those proceedings, and completion reports in respect of programmes completed by the respondent during his current term of imprisonment. Those programmes were a Stopping Family Violence Program (report dated 31 December 2014), a Pathways Program (report dated 20 March 2015), and an Intensive Sex Offenders Treatment Program (ISOTP) (report dated 6 November 2018). The materials also include the Parole Assessment Report dated 30 March 2020 and the Parole Order dated 15 April 2020.
Ms Clare's second affidavit, affirmed 6 May 2020, attached materials relevant to the respondent's bail application in 2011 in respect of the charges for which he is now serving the term of imprisonment, and emails from the Department of Justice Community Offender Monitoring Unit (COMU) outlining the assessment that has been made of the premises where it was proposed the respondent would reside if he were released on an interim supervision order. The documents in respect of the bail application consisted of an affidavit sworn by the respondent on 26 July 2011, a letter from his father, KA, and a letter from KA's then partner. They were intended to address matters arising from affidavits filed on behalf of the respondent, which I will discuss below.
Although the applicant's submission was that, if a date is fixed for a div 2 hearing, the respondent should be subject to an interim detention order, it filed a proposed interim supervision order with conditions that the applicant submits are the minimum conditions required to adequately protect the community if the court does not make an interim detention order.[13]
[13] The interim supervision order was initially in the form of an undertaking, in accordance with previous practice, as discussed above, but the conditions remained the same, apart from some minor amendments when it was reformulated as a supervision order.
The respondent filed two affidavits, being from KA and KA's current partner, both dated 1 May 2020. In essence they outline the fact that the respondent will be provided with accommodation if he is released on an interim supervision order, and the support and supervision he will be provided.
The application is conceded
The respondent concedes that there are reasonable grounds for believing that the court might find, under s 7(1), that the respondent is a serious danger to the community. The concession is properly made, having regard to the materials.
In those circumstances, it is not necessary for me to canvass in detail the respondent's history of offending and the assessments that have been made of his risk of committing a serious sexual offence in the future. It is necessary, however, to provide some reasons why I consider the concession is properly made. I will do so by reference to three key considerations under s 7(3), namely the nature of the respondent's offending and what that says about his propensity for committing a serious sexual offence, the psychological assessments of the respondent when he was sentenced in 2007 and 2013, and the outcome of his participation in treatment programmes in prison, which also informs what will be necessary to protect the community pending the div 2 hearing.
The respondent's propensity for sexual offending
The sexual offending in 2011
The facts of the offending which resulted in the current term of imprisonment may be summarised as follows.[14]
[14] The summary is based largely on the evidence of Ms L at the trial, as outlined by the trial judge, Deane QC DCJ, when sentencing the respondent on 8 March 2013. I have been assisted by the summary in Ms Clare's affidavit of 15 April 2020.
The offences occurred on the night of 2 April 2011. The respondent was 27 years old. He and the victim, Ms L, had formed a friendship. They had been sexually intimate on two occasions prior to 2 April 2011, but, despite the respondent's persistent advances, and although she was staying at the respondent's home, Ms L did not consider herself to be in a sexual or romantic relationship with him, and made it known to him that she did not want such a relationship. Over a number of weeks, the respondent had exhibited jealous behaviour towards Ms L, in particular because of her friendship with another male with whom she engaged in a sporting activity. The respondent's anger towards Ms L because of her refusal to be in a sexual relationship with him, and his jealousy, culminated on the night of 2 April 2011.
That night the respondent and Ms L went to a friend's party. The respondent had become intoxicated before going to the party, and he continued to drink at the party. They argued at the party and, on the way home, the respondent was acting in an angry and aggressive manner. When they arrived at the respondent's house, Ms L tried to leave by the back door, but it was locked and the respondent pushed her away from the door, causing her to fall to the ground. Although Ms L was crying, the respondent told her she was not going anywhere and that she had to do what he wanted. He took her mobile telephone, so she could not call for help. Ms L pleaded with the respondent on several occasions during the night to let her leave, and on occasion tried to leave, but he did not permit her to do so. That conduct was the subject of count 1 on the indictment, the offence of deprivation of liberty.
At one point, the respondent obtained a knife, pointed it close to Ms L's face, while she was on the ground, crying, and told her that if she tried to leave he would kill her. That was the subject of count 2, the offence of making a threat to unlawfully kill Ms L. He repeated the threat during the course of the night.
Ms L told the respondent she did not want to have sex with him. Nevertheless, he physically forced her into the bedroom and made threats to compel her to remove her clothing. He told her he was going to have sex with her, and there was nothing she could do about it. He then forced himself on Ms L and had sex with her, using lubricant, despite the fact that she was screaming for help, and scratching his back, chest and arms. The respondent's sexual penetration of Ms L without her consent at that time was the subject of count 3 in the indictment. During the commission of that offence, the respondent grabbed Ms L's throat until she started having difficulty breathing and passed out. When she regained consciousness, he was still holding her throat and having sexual intercourse with her, telling her to be quiet.
The respondent then made the victim shower, pushing her into the bathroom when she refused. He instructed her to wash her body and hair, and cleaned under her fingernails in an effort to remove evidence, saying he was not going to gaol for what had happened. He then took soap and washed the inside of Ms L's vagina, saying he had to get rid of everything. That act of penetration without Ms L's consent was the subject of count 4.
After the shower, despite Ms L saying again that she did not want to have sex with the respondent, and trying to escape from the bedroom, he pushed her onto the bed and told her she had no choice. He then removed her clothes and had sexual intercourse with her again without her consent, which was the subject of count 5. When she began to scream, he grabbed her around the throat. He then had sexual intercourse with Ms L a third time without her consent, again using lubricant. That was count 6.
Finally, the respondent again had sexual intercourse with the victim, despite the fact that she was screaming for help. He put a pillow over her face to quieten her, making it difficult for her to breath. He eventually ejaculated inside her. He then removed some semen from her vagina, and rubbed it on her face and breasts, asking her if it tasted nice. That act of sexual intercourse, with the accompanying act of degradation and humiliation, was the subject of count 7, the aggravated sexual penetration without consent.
Ms L eventually left the house through the back door and ran in the direction of the local hospital.
The respondent's trial in respect of those offences originally proceeded in May 2012. The respondent absconded after Ms L had given evidence, and the trial had to be aborted. He was eventually located in South Australia and extradited to face trial again in this state.
In sentencing the respondent, Deane QC DCJ referred to the psychological report prepared for the proceedings (see below) and noted:[15]
Based on you now having accrued convictions for serious offending against three different females, it is apparent that there is some evidence of poor attitude on your part towards women and attitudes of entitlement and objectification, especially in the case of sexual offending.
[15] Affidavit of Ms Clare dated 15 April 2020, p 235, Annexure L.
Her Honour considered the gravity of the offending to be extremely serious, describing the offences as 'bad examples of violent sexual offending against a vulnerable and terrified young woman'.[16] Her Honour noted that the offending had been persistent over a number of hours, and that it involved an abuse of trust that Ms L had placed in the respondent as her host and provider of her accommodation. That abuse of trust was exacerbated by the fact that Ms L was a foreign national who was vulnerable because she did not have an extensive network of family and friends in this country.
[16] Affidavit of Ms Clare dated 15 April 2020, p 235, Annexure L.
Deane QC DCJ summarised the respondent's behaviour by saying:[17]
You treated her as an object of sexual gratification and you behaved in a completely calculating and cold-hearted manner towards her.
[17] Affidavit of Ms Clare dated 15 April 2020, p 236, Annexure L.
Her Honour found that the respondent had exhibited no remorse for his offending.
Other offences
In addition to the offences for which the respondent is serving the current term of imprisonment, the respondent has been convicted on two prior occasions of offences that are relevant to whether he has a propensity to commit serious sexual offences and a pattern of offending.
The facts in respect of those matters can be stated briefly.
Offences committed in December 2004
On 29 December 2004, when the respondent was 21 years old, he committed offences of aggravated grievous bodily harm and aggravated assault occasioning bodily harm against his then girlfriend. Although the offences were not sexual offences, they were committed in circumstances in which the respondent became angry because his partner refused to have sex with him. As the applicant submitted, they demonstrate the respondent's propensity for extreme violence towards women when he is refused sex.
In short, the respondent and the victim were at home. After having consumed a large amount of alcohol, the respondent became aggressive towards the victim. He pushed her into a wall and grabbed her by the throat, strangling her to the point that she almost passed out. He punched a hole in the wall. As a result of that initial violence, the victim's nose was bloodied. She went to the bathroom. When she returned, she and the respondent argued over the respondent's desire to have sexual intercourse. The respondent again became violent. He pushed the victim onto the bed and punched her back. He then started waving a knife, and yelling at the victim.
The respondent then threw the knife towards the victim with considerable force. The knife lodged in the victim's head. The knife penetrated her skull and the frontal lobe of her brain by 15 millimetres. The respondent immediately tried to remove the knife from the victim's head, but was not able to do so. He then called the ambulance. The knife was removed in surgery. The medical evidence was that if the knife had not been removed, the victim would probably have died as a result of an infection to her brain. For the knife to be removed, a hole had to be cut in the victim's skull, which necessitated the insertion of a permanent metal plate. She was left with some persistent symptoms.
The respondent admitted throwing the knife, but claimed that the fact it struck the victim and lodged in her head was an accident. He was convicted of the offences after trial by jury in the District Court. The trial judge sentenced the respondent on the basis that he threw the knife in a heightened state of anger, with reckless indifference to the consequences. Given the respondent's age, prior good record (at that time) and some background difficulties (including the death of his mother when he was 12), the judge sentenced the respondent to a total of 2 years' imprisonment, with eligibility for parole.
Offences committed in June 2007
On 2 June 2007, when the respondent was 24 years old and on bail for the offences committed in December 2004, he committed two counts of indecent assault in a circumstance of aggravation, namely, that he was in company with a co‑offender.
In brief, the circumstances of the offending were as follows. The victim, a 21‑year‑old female, was very intoxicated and was walking alone on the side of the road late at night. The respondent and his co‑offender saw her as they were driving down the street. They offered to drive her home. The victim got into the car with them, and passed out. The respondent and his co‑offender decided to take advantage of that situation. The co‑offender drove to an isolated carpark, and both of them indecently assaulted the victim. They removed her jeans and underwear. The respondent kissed the victim on her mouth, face and neck, which was the first count of aggravated indecent assault, and then touched her breasts on the inside of her top, which was the second count. Meanwhile the co‑offender performed cunnilingus on the victim. Although the respondent was not convicted of that offence by his co‑offender, he admitted to police that he had intended to put his hand down the victim's pants, but was beaten to it. While the co‑offender was performing cunnilingus on the victim, she woke up and began to yell and kick out to stop the assault on her. The two offenders stopped and helped the victim put on her pants. They then left the area, leaving the victim lying in the carpark, crying. The victim had no recollection of the incident the next morning, but realised she was missing her bra and underwear, and felt soreness around her neck, chest and vaginal area.
The respondent pleaded guilty to the two offences and was sentenced on 24 July 2009 in the District Court to 12 months' imprisonment.
The sentencing judge, Deane QC DCJ, remarked that the impression the respondent had made on persons who had provided references for him, and on his then current partner, did not tally with his behaviour towards the victim of the offences, in that, contrary to the characteristics attributed to him by his referees, the respondent had shown a complete lack of respect for her, and had not been affectionate or behaved in a way that would make the victim feel safe or secure.
Conclusion regarding propensity and pattern of offending
Two of the matters to which the court must have regard under s 7(3) in deciding whether a person is a serious danger to the community are:
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person …
I am satisfied that the respondent's past offending discloses a propensity to engage in sexual violence of an extreme nature when he is intoxicated and angry because he is jealous and his sexual advances have been rebuffed by a woman who is known to him or with whom he is in a relationship. He has demonstrated a capacity to impose himself on such a woman in a violent manner, with complete disregard for her feelings and the severe adverse emotional impact his behaviour may have on her. Even when his violence against his partner was not sexual in nature, it was triggered by her refusal to have sex with him. A matter of particular concern, and which may properly be regarded as a pattern of offending, has been the respondent's tendency to grab his victims by the throat and strangle them until they have either passed out or nearly passed out.
Further, although the aggravated indecent assaults committed in 2007 were not serious sexual offences for the purposes of the Act, they were also part of a pattern of treating women as sexual objects without regard to the need for consent. Those offences also revealed a variation in his offending, in that they demonstrated a preparedness to take advantage of a woman who was in a vulnerable state.
More generally, it has been a pattern in all of the offending I have outlined that the respondent was heavily intoxicated.
Psychological reports
Section 7(3) of the Act provides that the court must have regard to
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person …
At this stage no reports have been prepared under s 37, as that follows the fixing of a date under s 14 of the Act for a div 2 hearing. However, psychological reports were prepared in respect of the respondent for his sentencing in December 2007 and March 2013.
While the reports are dated and were prepared before the respondent participated in various programmes in prison from 2014 to 2018, they are still relevant to an understanding of the factors that contributed to his sexual offending and which needed to be addressed in treatment. Further, the respondent's history and the assessments that have been made of his personality over time continue to inform the prediction of his risk of committing a serious sexual offence in the future. Section 7(3) of the Act recognise the relevance of historical factors. It also recognises the relevance of rehabilitation programmes undertaken by a respondent.
Psychological report (2007)
A report was prepared by Mr Nigel Cameron, Principal Clinical and Forensic Psychologist, Community Justice Services in the Department of Corrective Services on 16 October 2007. It was prepared for the sentencing of the respondent for the offending in which he assaulted his partner and caused her grievous bodily harm with the knife he threw in her direction.
Mr Cameron noted that the respondent was the eldest of three boys and that the most notable event in his developmental history was the death of his mother in 1995 (when the respondent was 12). The respondent's father indicated that, of the three boys, the respondent was the worst affected by the event. He also indicated that the respondent struggled with underlying anger as a teenager.
Although the respondent had used cannabis in the past, he told Mr Cameron he had ceased using it in 2005. He drank alcohol and reported binge drinking in the context of parties but otherwise having 2 to 3 standard drinks after work on a regular basis. He admitted being intoxicated at the time of the 2004 offences.
The respondent described having had a few girlfriends and impressed as being relatively confident in his interpersonal skills with women.
When tested with the Millon Multiaxial Clinical Inventory (Form III) (MMCI III), which gives an indication of personality traits and clinical issues by asking an array of standardised questions, there were few elevations of note, although the validity scale suggested that a tendency by the respondent to present himself in socially desirable ways may have influenced his responses.
Mr Cameron noted:[18]
In reflecting on this offence, given that the victim was his then partner, it is important to keep domestic violence behavioural patterns in mind. In domestic violence the assault behaviour that comes before the Court is often the pinnacle of a broader and more pervasive pattern of abuse or violence, of dominating a partner via a variety of methods, be they emotional, financial, verbal, sexual or physical.
[18] Affidavit of Ms Clare dated 15 April 2020, p 75, Annexure E.
There was a suggestion that the respondent's rage on the night of the offence may have been related to distress he felt about his partner having had an abortion in the weeks leading up to the offence. However, notwithstanding the fact that the respondent had expressed remorse, had not impressed as having 'pro domestic violence outlooks, and had made positive lifestyle changes since the offending, Mr Cameron noted that:[19]
domestic violence patterns often recur from relationship to relationship, and with such an extreme offence clearly there is a strong indication that [the respondent] needs to be enrolled in a domestic violence treatment program, be it in custody and followed up upon release with community maintenance, or provided in the community.
[19] Affidavit of Ms Clare dated 15 April 2020, p 76, Annexure E.
Moreover, Mr Cameron noted that any future convictions for violence against women, should they occur, may alter the picture presented by the respondent, being of 'a troubled man who played out his hurts and frustrations via displacing rage onto his partner, particularly when caught in a negative cycle of drug use and in the absence of a healthy balance to life'.[20] I also note that, when he was interviewed by Mr Cameron, the respondent was in custody for the offences committed in June 2007. That may not have been apparent to Mr Cameron. In any event, there is no reference to those matters, which at that stage were unproved charges, in Mr Cameron's report.
Psychological Report (2012)
[20] Affidavit of Ms Clare dated 15 April 2020, p 76, Annexure E.
For the sentencing of the respondent in March 2013 for the offences committed in 2011 (which include the serious sexual offences that bring the respondent within the Act), a psychological report, dated 13 December 2012, was prepared by Ms Cinzia Zuin.
Ms Zuin noted that the respondent continued to 'emphatically deny responsibility for his offending behaviour'.[21] However he admitted that he was attracted to Ms L and that he had been angry when a friend had shown interest in her, an apparent reference to the male with whom Ms L shared an interest in a sporting activity. However, he denied that he had been jealous.
[21] Affidavit of Ms Clare dated 15 April 2020, p 242, Annexure M.
The respondent told Ms Zuin that his life had 'spiralled downwards after he was arrested for the sexual offences and he relapsed into heavy drug use'.[22] The respondent referred to previous heavy use of cannabis from the ages of 17 to 22, and experimental use of amphetamines and ecstasy around the age of 20 years.[23] It is not clear whether his reference to a relapse was to cannabis or other drugs or a combination, although I note that the respondent subsequently reported for the purposes of a harm and supervision assessment in prison that he had been spending up to $1,500 per week on amphetamines during the three months prior to his remand in custody.[24] The respondent told Ms Zuin that he absconded during the first trial because he suspected he would be imprisoned and he did not wish to withdraw from drugs in custody.[25]
[22] Affidavit of Ms Clare dated 15 April 2020, p 242, Annexure M.
[23] Affidavit of Ms Clare dated 15 April 2020, p 245 - 246, Annexure M.
[24] Affidavit of Ms Clare dated 15 April 2020, p 286, Annexure R (referred to in the Stopping Family Violence completion report dated 31 December 2014).
[25] Affidavit of Ms Clare dated 15 April 2020, p 242, Annexure M.
The respondent also told Ms Zuin that, although he had never been a 'big drinker', he tended towards binge drinking when he did consume alcohol.[26] Ms Zuin also noted that there was some evidence to suggest alcohol was a contributing factor to the 2011 offending.
[26] Affidavit of Ms Clare dated 15 April 2020, p 245, Annexure M.
Ms Zuin administered the MCMI III for the purposes of psychometric testing of the respondent. She reported that the results suggested that the respondent had not been particularly open in disclosing any problems in his life, and he may have been attempting to present in a positive light. Individuals with similar profiles tend to have high attention seeking needs and a desire to avoid disapproval from others. They may present as confident and self-assured when in fact they may be concerned about how they are viewed by others.[27] However, Ms Zuin concluded that the respondent was not experiencing any significant psychopathy that would give cause for concern.
[27] Affidavit of Ms Clare dated 15 April 2020, p 246, Annexure M.
Ms Zuin applied the STATIC 99 risk assessment instrument to estimate the respondent's risk of sexual re‑offending. She explained that STATIC 99 is an internationally recognised risk assessment measure that combines 10 static (unchanging) risk factors that have been shown to be associated with increased risk of re-offence. I note that STATIC 99 has since been revised, but there was no suggestion in these proceedings that the assessment made by Ms Zuin was invalid.
The respondent's score on the STATIC 99 placed him in the 'High risk' category, which suggested that, based on a sample of sex offenders from Canada and the UK upon which the STATIC 99 was developed, the respondent had a 4 in 10 chance of sexual re‑offending within a five year period.[28] The factors that were used to determine that risk were the respondent's prior criminal record in general, his prior convictions for violent offences and sex offences, and the fact that the victim was unrelated to him. His lack of prior significant intimate relationships (i.e. never having lived with an intimate partner for at least two years) was also scored as a factor.[29]
[28] Affidavit of Ms Clare dated 15 April 2020, p 246, Annexure M.
[29] Affidavit of Ms Clare dated 15 April 2020, p 246, Annexure M.
Ms Zuin identified the following factors as contributing to the respondent's sexual offending:[30]
Based on [the respondent] having now accrued convictions for offences against three different women there appears to be some evidence of poor attitudes towards women and attitudes of entitlement and objectification, especially in the case of the sex offences. Issues around power and control are also indicated suggesting that underlying feelings of inadequacy and poor self-worth may be a contributing factor.
[30] Affidavit of Ms Clare dated 15 April 2020, pp 244 and 247, Annexure M.
Ms Zuin considered that the respondent's objectification of women may have evolved as an outcome of having 'numerous casual sexual liaisons' and the fact that, after the death of his mother, he did not have a female role model during his teenage years to prevent the development of poor attitudes during puberty.[31] Ms Zuin did not comment on whether the respondent's father could have fostered the development of appropriate attitudes, or whether he had tried. I note, however, that during the Stopping Family Violence programme, in which the respondent participated subsequently, he reported that he had a 'strict upbringing by his father, where he was disciplined with strappings from a belt for misbehaving', which the respondent described as a 'normal' upbringing.[32]
[31] Affidavit of Ms Clare dated 15 April 2020, p 245, Annexure M.
[32] Affidavit of Ms Clare dated 15 April 2020, p 283, Annexure R.
Ms Zuin commented that the respondent 'does not give the impression of being a predator, however he clearly has issues that warrant intensive treatment'.[33] Given that Ms Zuin referred to the respondent's offending in 2007, when he and his friend gave a lift to the vulnerable victim, it is not clear why she would not regard that conduct as predatory. It may be accepted, however, that his most serious offending was committed against victims with whom he was living.
[33] Affidavit of Ms Clare dated 15 April 2020, p 245, Annexure M.
Participation in rehabilitation programmes
Section 7(3) requires the court to have regard to:
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person …
The respondent has participated in three programmes while he has been a sentenced prisoner since 2013. I will outline the programmes and the respondent's outcomes in chronological order.
Stopping Family Violence Program (2014)
From 2 September 2014 to 23 October 2014, the respondent participated in the Stopping Family Violence Program, which consisted of 28 sessions (totalling 70 hours) and focussed on addressing domestic and family violence in men who have committed an offence of that kind or have a history of such behaviour. The respondent's performance on the programme and its outcome are set out in the Program Completion Report signed on 31 December 2014 and 2 January 2015.[34]
[34] Affidavit of Ms Clare dated 15 April 2020, pp 282 - 289, Annexure R.
As I noted earlier, it was during this programme that the respondent reported that he had a 'strict upbringing by his father, where he was disciplined with strappings from a belt for misbehaving', which the respondent described as a 'normal' upbringing.[35]
[35] Affidavit of Ms Clare dated 15 April 2020, p 283, Annexure R.
In a pre‑group interview, during which the respondent was assessed for participation in the programme, he presented as being keen to participate in the program, but had reservations about discussing his offending in the group because of the nature of his offences.[36] It appears that his concern was in respect of the sexual aspects of his offending, which he believed would put his safety within the prison at risk. The programme facilitators and the clinical supervisor decided that, with the respondent's safety in mind, he would be encouraged to omit the sexual elements when discussing his offending in the group, and any reference to his offending would be in terms of his violence.
[36] Affidavit of Ms Clare dated 15 April 2020, p 283, Annexure R.
Although the respondent reported an increase in his anxiety during the group sessions, he was assessed as having completed the task adequately and having responded well to feedback and questioning from the group.[37] The reception of feedback was in contrast to his previous tendency to reject feedback and occurred despite the respondent's admission that he still did not receive feedback well.[38]
[37] Affidavit of Ms Clare dated 15 April 2020, p 284, Annexure R.
[38] Affidavit of Ms Clare dated 15 April 2020, p 287, Annexure R
The authors of the report were of the opinion that the respondent had some insight into his offending, and acknowledged some negative aspects of his thinking and behaviour that had contributed to his abusive practices.[39] In dealing with his offending in April 2011 (the 'index offending'), the respondent appeared to understand the impact of 'unhelpful thinking' stemming from his growing jealousy and frustration about the victim's friendship with another male.[40] However, it was evident that he continued to retain distortions about the state of his relationship with the victim, and he tended to minimise his offending by referring to it as a 'little mistake'.[41] He also appeared keen to gloss over the seriousness of his behaviour. The report also notes that during the pre-group interview, the respondent had minimised the offence in which he threw a knife at his former partner, providing an explanation that tended to shift blame to the victim, although he acknowledged that his violence was related to his problem with alcohol.
[39] Affidavit of Ms Clare dated 15 April 2020, p 284, Annexure R.
[40] Affidavit of Ms Clare dated 15 April 2020, p 284, Annexure R.
[41] Affidavit of Ms Clare dated 15 April 2020, p 284, Annexure R.
During the programme, on those occasions the respondent minimised the offending of April 2011, he was corrected by the facilitators and reminded about the seriousness of his offending. It appears that when that occurred, the respondent admitted initially denying the events and blaming the victim. The facilitators considered that he took some responsibility for his behaviour, although it was difficult to explore that in‑depth within the group, given the nature of the offences.[42] The respondent expressed remorse and said he felt 'disgusted' by his behaviour, which the facilitators considered to be a shift from his previous stands of denial and limited victim empathy.[43]
[42] Affidavit of Ms Clare dated 15 April 2020, p 284, Annexure R.
[43] Affidavit of Ms Clare dated 15 April 2020, p 285, Annexure R.
The respondent identified strategies for dealing with women and people close to him in a more positive way when confronted with emotionally difficult situations, but it was considered that ongoing work was needed to strengthen his skills and develop further insight, in order to reduce his risk of reoffending.[44] That was particularly so in respect of his emotional awareness, deficits in his approach to relationships and abstinence from substance use.[45] Apart from the need for the respondent to remain abstinent from substance use, the facilitators considered that he 'would benefit from surrounding himself with positive people and forming supportive, prosocial relationships upon his release, in addition to ongoing practice of respectful communication, particularly in the context of intimate relationships'. [46]
[44] Affidavit of Ms Clare dated 15 April 2020, p 285, Annexure R.
[45] Affidavit of Ms Clare dated 15 April 2020, p 286, Annexure R.
[46] Affidavit of Ms Clare dated 15 April 2020, p 287, Annexure R.
The respondent was able to outline a realistic plan to avoid high risk factors and implement management strategies. However, the extent of his gains from the programme was somewhat elusive. The authors of the report summarised the outcomes as follows:[47]
He was a reserved participant who rarely contributed without prompting from facilitators and expressed anxiety around discussing his offending in-depth due to the nature of offending. Therefore it was difficult to gauge the extent of his understanding and integration of program content, other than from his brief comments and information contained in his safety plan.
[47] Affidavit of Ms Clare dated 15 April 2020, p 288, Annexure R.
They went on to say that the respondent was committed to finishing the program and rebuilding his life upon release, but his limited engagement in the group process did not indicate a desire to address his offending in‑depth. The facilitators considered that inclusion of the respondent in future intensive programs alongside participants with similar offending would serve the respondent better in that regard.[48] They said:[49]
Furthermore, whilst he appeared to have a general understanding of the program material and showed increased insight in some areas, his reserved manner in the group prevented him from clearly demonstrating the relevant skills and strategies required. Overall [the respondent] requires further learning and development of management strategies to assist him in reducing his risk of reoffending, particularly with regard to emotional management and conflict resolution in intimate relationships.
[48] Affidavit of Ms Clare dated 15 April 2020, p 288, Annexure R.
[49] Affidavit of Ms Clare dated 15 April 2020, p 288, Annexure R.
Finally, the authors of the report noted that the respondent was booked to participate the Pathways Program, the Sex Offending Intensive program (both of which he went on to complete), and the Think First (Sex Offender) Program and were of the view that he would benefit from those programmes. They also considered that the respondent's safety plan for reducing his risk of reoffending would be strengthened by regular counselling, to provide him with the additional support he required.[50]
Pathways Program (2015)
[50] Affidavit of Ms Clare dated 15 April 2020, p 288, Annexure R.
The respondent attended the Pathways Program, which comprised 50 sessions totalling 100 hours, from 18 December 2014 to 12 March 2015. It is a group programme that provides treatment to individuals who have a history of offending behaviour and substance use problems. Participants may also receive individual sessions.
The respondent's performance on the programme and its outcome are described in the Program Completion Report, which was signed on 20 March 2015 and 13 April 2015.[51] It is sufficient to provide a brief summary.
[51] Affidavit of Ms Clare dated 15 April 2020, pp 275 - 281, Annexure Q.
The respondent attended all programme sessions and was reported as having been an active participant throughout. At the commencement he expressed motivation for change, and he was considered to have been forthcoming and cooperative with facilitators and engaged in the content of the programme. The respondent is said to have grasped concepts quickly and reflected on examples from his own offending. He showed an understanding of the controlled drugs had over his life and expressed 'a focus on thinking through the consequences of his actions'.[52]
[52] Affidavit of Ms Clare dated 15 April 2020, p 280, Annexure Q.
The respondent developed a risk management plan that identified goals and strategies for his future, which included relocating to distance himself from past negative peer associations, gaining full‑time employment and focusing on been a positive prosocial member of his family.[53] The facilitators considered that the respondent would benefit from ongoing support, and recommended urinalysis testing and other measures both in prison and in the community, once released, to assist the respondent.
The ISOTP (2018)
[53] Affidavit of Ms Clare dated 15 April 2020, p 280, Annexure Q.
The respondent completed the ISOTP in prison from 5 February 2018 to 11 September 2018. The programme targets 'high risk and high need male offenders, where participants focus intensively on their sex offending behaviour [and] victim issues, identify offence pathways and develop detailed self-management plan is to assist them to reduce [sexual] reoffending'.[54] The respondent's performance on the programme and its outcome are described in the Program Completion Report, which was signed on 6 November 2018.
[54] Affidavit of Ms Clare dated 15 April 2020, p 266, Annexure P.
The respondent presented as willing to contribute and participate in group activities and discussions. However, the report notes that, throughout the program, the respondent tended to present himself to facilitators in a favourable manner requiring constant affirmation.[55] Despite that presentation, the facilitators considered that the respondent showed insight into his offending, accepted responsibility and was willing to address his offending behaviour. He was observed to develop positive and respectful relationships with both programme facilitators and participants. On the other hand, it was also observed that he 'still struggled to maintain healthy boundaries with peer groups' within the prison, and in September 2018 he was charged with using a drug that was not lawfully issued to him. It is not suggest, however, that such conduct affected his performance on the programme. In fact, he was considered to have made treatment gains.[56]
[55] Affidavit of Ms Clare dated 15 April 2020, p 269, Annexure P.
[56] Affidavit of Ms Clare dated 15 April 2020, pp 271 - 273, Annexure P.
The respondent is said to have recognised that he had developed a number of negative thoughts and beliefs that were linked to his relationships and offending. He also acknowledged engaging in predominantly avoidant coping throughout his life. Feelings of inadequacy and low self‑worth, which had been identified by Ms Zuin as relevant factors, were also recognised by the respondent in exploring his past. The facilitators were of the opinion that the respondent demonstrated improved skills in identifying and expressing his emotions.
More specifically, the respondent explored the emotional instability in his life, particularly his lack of healthy intimate relationships. He was considered to be open in discussing his offending behaviour, recognising that it was the result of distorted views of women and a lack of relationship skills, combined with drug use.[57] The report states:[58]
He related these distorted views as being influential in his offending behaviour as he pursued a relationship with the victim due to her attractiveness and was unwilling or unable to terminate the relationship when it became problematic. He identified elements of fantasising and sexual entitlement which were thwarted with hyper-sexuality due to his methamphetamine use. He further elaborated that the decision to offend was influenced by punishment of the victim from her perceived 'mind games' and desire for sexual gratification from his fantasising and perceived sexual entitlement.
[57] Affidavit of Ms Clare dated 15 April 2020, p 272, Annexure P.
[58] Affidavit of Ms Clare dated 15 April 2020, p 272, Annexure P.
Accordingly, it was considered that the respondent had gained a greater understanding of the factors underlying his offending. In addition, he demonstrated acceptance of responsibility for his behaviour, and came to recognise the importance of seeking professional supports to help him with problematic issues.[59]
[59] Affidavit of Ms Clare dated 15 April 2020, p 273, Annexure P.
Further, the respondent was able to display some acknowledgement of the impact of his sexual offending by describing the psychological consequences for his victim.[60]
[60] Affidavit of Ms Clare dated 15 April 2020, p 271, Annexure P.
However, the authors of the report considered that the respondent would benefit from further support and counselling. They summed up his situation and what is further required as follows:[61]
Towards the end of the program, he developed a Self-Management Plan to assist him to lead a balanced lifestyle by setting pro‑social goals, including engaging professional support, obtaining employment with the family business, pursuing outdoor recreational activities, saving money and travelling around Western Australia. He understands what he values in life, recognises the impact of his offending and has goals and plans in place to help him use his risk of reoffending future. As with all changes in behaviour, continued rehearsal of new skills is required in order for these skills to be generalised and for lasting change to be effected. Therefore it is considered that [the respondent] would benefit from further support and self-funded counselling in the areas of cognitions/beliefs, relationship skills and self‑regulation.
[61] Affidavit of Ms Clare dated 15 April 2020, pp 273 - 274, Annexure P.
The reference to what the respondent values in life alludes, at least in part, to statements made by him during the programme, which are referred to in the report, about the length of the term of imprisonment and his commitment to avoiding returning to prison, once released.
Conclusions from the treatment programmes
The respondent has demonstrated a willingness to rehabilitate. The evidence suggests that the lengthy term of imprisonment he has served will have a deterrent effect upon him once he is released. It is also apparent that he has made treatment gains and has some insight into the impact of his offending on his victims and what he needs to do to avoid committing a serious sexual offence in the future. However, it is also apparent that he has outstanding treatment needs, at the very least in terms of being able to put into practice what he has learnt from the programmes. As will appear in the next section, the potential for the respondent to relapse into alcohol or drug use is real, and that has been a significant factor in his offending. Moreover, his risk of sexual reoffending has not been assessed since he took part in the ISOTP.
The Parole Assessment Report
The most recent report attached to Ms Clare's affidavit is the Parole Assessment Report, dated 30 March 2020.[62] That report was prepared by an acting Senior Community Corrections Officer (SCCO). It must be recognised that the purpose of the report is to assist the Prisoner Review Board to decide whether the respondent should be granted parole. While it addresses the issue of risk to the community, it is not in the context of the questions to be determined under the Act. Furthermore, the SCCO's recommendation is not informed by any recent assessment by a psychiatrist or psychologist of the respondent's risk of committing a serious sexual offence. Nevertheless, it is relevant as an assessment of the respondent's risk generally.
[62] Affidavit of Ms Clare dated 15 April 2020, pp 290 - 296, Annexure S.
The respondent was interviewed by the SCCO on 31 March 2020. The SCCO noted that the respondent expressed remorse for the offences committed in 2011 and insight into his offending and the impact it had on the victim's life. The respondent acknowledged his previous denial and lack of remorse and expressed his regret in pleading not guilty and the victim having to relive the offences during the trial. He said that his change in attitude was the result of attending the ISOTP.[63]
[63] Affidavit of Ms Clare dated 15 April 2020, p 290, Annexure S.
The respondent was able to describe the skills and techniques he had gained during his engagement in programmes. He said that, through learning about victim empathy and talking about his offending, he had been able to accept responsibility for his behaviour and had gained an understanding of the impact his offending has had on the victim.[64] The respondent indicated that, if he were to be released on parole, he would be willing to attend and engage in counselling and programmes as required. However, the SCCO states that, currently, there is no community‑based intensive sex offender programme in the regional town, where the respondent would be located.
[64] Affidavit of Ms Clare dated 15 April 2020, p 293, Annexure S
The report notes that the respondent has undergone regular urinalysis testing while he has been in custody. He returned positive results on 12 September 2018[65] (cannabis), 7 September 2015 (amphetamines) and 7 August 2013 (cannabis). It is noteworthy that the results in 2015 and 2018 were after the respondent had completed the Pathways Program. Further, the result in September 2018 was the day after he had completed the ISOTP. As the applicant submitted, those results raise concerns about whether the applicant has consolidated in his thinking and behaviours the things he learnt during the programmes.
[65] The date was incorrectly stated in the Parole Assessment Report as being 12 September 2019. It was corrected by the respondent during the hearing. He indicated that in September 2019 he was in a different prison and was not tested there. The correction was accepted by the applicant.
Apart from those positive urinalysis results and the prison offence of using a drug not lawfully issued to him, to which I referred earlier, the respondent was said to conduct himself in a positive manner while working and has not been considered to be a management concern.
The respondent presented with a parole plan described by the SCCO as being 'solid'. He proposed to live with his father, from whom he also has employment available in a bobcat business. The accommodation was assessed to be suitable for the purposes of release on parole, although a concern was raised regarding the respondent's potential access to the firearms that are lawfully in his father's possession. That concern would be addressed by a condition of parole.
On the basis of the respondent's behaviour in prison, the programmes he has undertaken while in prison, the family support he has in the community, the fact that he has previously displayed a satisfactory response when he had been subject to two terms of community supervision, and the fact that he has a 'solid' parole plan, the SCCO assessed the respondent as being a suitable candidate for release on parole.
I note that the SCCO was aware that the Dangerous Sexual Offenders Review Committee (DSORC) had determined to refer the respondent to the DPP for consideration of an application under the Act.
Decision of the Prisoners Review Board
The Prisoner's Review Board decided that, if the respondent gives the undertaking set out in the Parole Order made by the Board, which sets out the obligations and requirements with which the respondent must comply while on parole, he is to be released on parole subject to the Parole Order on 18 May 2020.
The Board states in the order that it has given paramount consideration to the safety of the community and has decided that the respondent's release 'would present an acceptable risk to the safety of the community' due to:
(1)the respondent's successful completion of the three programmes I have outlined;
(2)the respondent's parole plan, which includes confirmed suitable accommodation, confirmed employment and support from pro‑social family; and
(3)the fact that the conditions of parole will further reduce the risk to the safety of the community.
The conditions in the Parole Order include prohibitions on the commission of any offence, the use or possession of any illicit drug, the consumption of alcohol, entering licensed premises (with certain exceptions), and having contact with the victim (of the 2011 offences) and her immediate family. The conditions also require him to comply with any Violence Restraining Order, attend for random urinalysis testing for illicit substances and to provide valid samples, submit to random breath testing, attend programmes and counselling as directed and engage in employment, training or job seeking for the duration of the order. He is prevented from changing address or leaving the State without permission. He is also prohibited from applying for, acquiring or holding a licence to possess a firearm. Although there is no indication that the respondent had previously used a firearm in any offending, the concern in relation to possession of a firearm is understandable, given his demonstrated propensity for violence. It has heightened relevance because his father has licensed firearms in his possession.
In discussing the legal principles, I noted the need for the court to have regard to the existence of a parole order and the impact, if any, the supervision of the respondent and the obligations upon him under such and parole will have on the risk that the respondent will commit a serious sexual offence, in particular whether the risk would be substantially mitigated as a result of that order. I also take into account the fact that the Prisoner Review Board decided to make the Parole Order in the knowledge that the respondent's case had been referred to the DPP for consideration of an application under the Act. However, the question at this stage is whether there are reasonable grounds to believe that the court might find that there is an unacceptable risk that the respondent would commit a serious sexual offence if he is not subject to a continuing detention order or a supervision order under the Act. I am satisfied that there are reasonable grounds for such a belief, given the nature of the respondent's previous offending, particularly in 2004 and 2011,[66] the potential significant harm to a victim if he did reoffend, and the respondent's outstanding treatment needs, despite the gains he made in the programmes he undertook.
[66] Notwithstanding the fact that the offending in 2004 was not sexual, it was driven by a rejection of the respondent's sexual advances.
There can be no doubt that the level of risk the respondent posed when he was imprisoned in 2013 was unacceptable if he were not detained or subject to a supervision order. It would be open for the court to conclude from the ISOTP completion report that it could not yet be said that the respondent has achieved lasting changes in his beliefs, attitudes and behaviour so as to sufficiently mitigate his risk of committing a serious sexual offence to a point where it is no longer unacceptable if he is not detained or subject to a supervision order. It is the court's experience that such a supervision order would almost inevitably contain significantly more restrictions and obligations on the respondent to address directly his risk of sexual reoffending than have been included in the Parole Order. Whether the court at a div 2 hearing in fact determines that the respondent is a serious danger to the community will, no doubt, depend on updated psychiatric and psychological assessments of the respondent by practitioners who are experienced in risk assessment for the purposes of proceedings under the Act. The impact of the Parole Order on the respondent's risk will be a matter for the court to assess at a div 2 hearing in light of all of the evidence, including the updated assessments.
The respondent further submits that he has employment and social support available to him in the community from his father and his father's partner. The respondent noted the concern raised by the applicant in respect of the ability of the respondent's father to ensure the respondent complies with the conditions of a supervision order, but submitted that what KA says in his affidavit is much stronger than what he said in his letter of support for the respondent when the latter applied for bail in 2011, and KA has the benefit of the history since then. KA is now aware of the respondent's offending in light of the convictions, and he appears to have greater understanding of the respondent's risk factors.
The respondent also submits that his offending was against adult women, and the serious sexual offending was against a woman with whom he had developed a friendship. The conditions of the interim supervision order would require and tell his CCO about any woman with whom he forms a relationship, and he must meet the CCO to tell any such woman about his offending. In the respondent's submission, that arrangement will provide an added element of protection against the risk that he would commit a sexual offence.
In relation to the respondent's drug use while serving the recent term of imprisonment, it is submitted on his behalf that while he obviously had 'slipped up' in custody, he knows that the consequences will be much more significant for him if he uses drugs in the community while subject to a supervision order. Having achieved release on parole, the respondent does not want to return to prison.
The respondent submits that his conduct in breaching bail by absconding in 2012 should not be regarded as an indication of whether he will comply with the conditions of a supervision order, including the requirement to remain in Western Australia. Since 2012 the respondent has completed the treatment programmes and has demonstrated an acceptance of responsibility for his offending and a commitment to rehabilitation. He is also considerably older and has good support in the community. The respondent submits, therefore, that his circumstances now are different from his circumstances in 2012.
Conclusions
Having considered the submissions made by the applicant and respondent, I have come to the view that it is appropriate in all the circumstances to make an interim supervision order.
The evidence in these proceedings supports the conclusion that the respondent made progress in the programmes he undertook. Although he continues to have outstanding treatment needs, the evidence does not indicate that those needs are such that they must be met in custody. It is apparent from the Parole Assessment Report and the decision of the Prisoners Review Board that the author of the report and the Board consider that suitable treatment can be provided to the respondent in the community. The outcomes from the programmes he undertook suggest that the outstanding needs relate to consolidation of the gains he made, so as to achieve lasting change. Whether or not such change is achieved remains to be seen. The respondent will be under an obligation to undertake such counselling and programmes as directed by his CCO, both under the Parole Order and the proposed interim supervision order.
I accept the applicant's submission that KA ultimately failed as a surety to ensure the respondent attended court for the conclusion of his trial. He was not able to prevent the respondent from absconding to another State. In addition, he has admitted being aware of the respondent using drugs while living with him on bail, yet he did not report that matter to the police. However, it appears that was on an occasion prior to the 2011 offending, and it would not have been known if KA had not been frank with Ms Mayfield about that matter. His candour ought to be regarded as a positive matter that tends to confirm his resolve to ensure the respondent remains drug-free and does not engage in anti-social behaviour, and his preparedness to report any transgression by the respondent. The contents of KA's affidavit and what he said to Ms Mayfield suggest that he is better informed this time, his vigilance will be more acute and he will have measures in place to assist the respondent to comply with the conditions of an interim supervision order.
The evidence supports the conclusion that the respondent will have supports within the community that will assist him to be compliant. A considerable period of time has transpired since he committed the offences and since his trial for the index offences. The respondent's evidence in that trial remains a matter that should be taken into account in assessing his risk of committing a serious sexual offence, but it does not preclude an assessment that, over a period of some seven years in prison, he has reformed by accepting responsibility and gaining insight into his offending behaviour. Although there have been some missteps in respect of drug use by the respondent while he has been in custody, they must be considered in the context that the Pathways Program was completed relatively early in his incarceration and for the vast majority of the respondent's incarceration, he appears to have been abstinent. In any event, the risk of relapse into drug or alcohol use will be monitored by regular testing and managed by exclusion zones that would prevent the respondent going near drinking establishments or alcohol outlets.
I accept that the respondent's conduct in committing sexual offences while he was on bail in 2007 and in absconding during his trial in 2012 are matters that require the court to take a cautious approach in determining whether he is likely to substantially comply with the standard conditions of an interim supervision order. However, the respondent is significantly older and, generally, has demonstrated an increased level of maturity and insight. The reservation in that regard stems from his objections initially to some of the proposed conditions. However, I am prepared to accept that those objections do not reflect a resistance to the conditions that is likely to result in non-compliance.
Additionally, the respondent's circumstances now are quite different from those that existed in 2007 and 2012. First, he was not under the kind of supervision and monitoring that will be in place under a Parole Order and an interim supervision order. In particular, he was not subject to electronic monitoring.Secondly, the respondent has participated in three rehabilitation programmes that have addressed his various criminogenic factors, and he was considered to have been genuinely engaged and to have made treatment gains. If past failures are to preclude recognition of positive outcomes from rehabilitation programmes, there would be little incentive for an offender to reform.
Further, the respondent has achieved a positive outcome in respect of parole, and it would be expected that he has a great deal of incentive to comply with the conditions of an interim supervision order to avoid returning to prison and to improve his prospects of being released on a supervision order in the event the court finds at the div 2 hearing that he is a serious danger to the community.
Overall, the impression from the evidence in these proceedings is that the respondent has behaved well while in custody, particularly in more recent times, and is likely to comply with conditions imposed by the court. He has undertaken employment in prison and is keen to undertake employment with his father once he is released. That will provide a protective measure against reoffending, in addition to the social support of his father and the constraints and monitoring that will be in place under a supervision order.
The conditions of the interim supervision order, as set out in the annexure to these reasons, were agreed after discussion with counsel at the hearing. There are some exceptions to the conditions that limit the contact the respondent can have with women. The exceptions relate to BL and another woman who is a family friend. All of the conditions are appropriate to mitigate the risk that he will commit a serious sexual offence.
I am satisfied that the very significant constraints that will be placed on the respondent's liberty and the activities in which he can engage, and the very substantial obligations that will be placed upon him by the conditions of the proposed interim supervision order, will sufficiently mitigate the putative risk that he poses of committing a serious sexual offence as to make it appropriate to release him subject to such an order.
On balance, I am satisfied that the respondent would comply with the standard conditions as well as the other conditions of the proposed interim supervision order. The consequences of non‑compliance are well known to the respondent in light of what was said during the course of the proceedings, and he will understand that if he breaches any of the conditions, he can expect to be brought back before the court and would then be subject to an interim detention order pending the div 2 hearing.
Non-publication
Upon the application of the applicant, supported by the respondent, I have concluded that it is appropriate to make non‑publication orders in respect of the address and town where the respondent will be residing and the names of the respondent and his father, or any information that may lead to their names becoming known to the public, except that the Commissioner of Police is able to comply with pt 5A of the Community Protection (Offender Reporting) Act 2004 (WA) if an obligation arises under that Act in respect of the respondent.
The need for such an order arises from past occurrences in which hostile or otherwise inappropriate conduct on the part of some members of the public, who were aware of the address or the identity of the person who had been released on a supervision order under the Act, has resulted in the operation of the order and the reintegration and rehabilitation of the person subject to the order being adversely affected. The use of such orders where appropriate has been mandated by the legislature in the Act. It is proper for the court to protect the integrity of such orders and the safety of persons subject to them by the measures proposed by the applicant and respondent in this case.
Orders
Accordingly, on 8 May 2020 I made the following orders:
1.The application for a Division 2 order pursuant to section 17(1) of the Dangerous Sexual Offenders Act 2006 be heard on 31 August 2020.
2.The respondent undergo examinations by two qualified experts, namely Dr W, psychiatrist, and JH, psychologist, for the purposes of preparing the reports as required by section 37 of the Dangerous Sexual Offenders Act 2006 that are to be used on the hearing of the application for the Division 2 order.
3.The experts named in order 2 are not to include in their reports information or opinions about the respondent based on a communication with a third person unless details of that communication sufficient to identify the person with whom the communication was held, its date and a summary of its content is included in the expert's report.
4.The reports of the experts be provided to the applicant at least 21 days prior to the Division 2 hearing.
5.Any report authored by the Department of Justice, including any Treatment Progress Report, be provided to the applicant at least 21 days prior to the date of the Division 2 hearing.
6.The experts named in order 2 liaise with the Department of Justice as to a management plan (if appropriate) for the respondent to be supervised in the community.
7.Pursuant to section 122 of the Criminal Investigation Act 2006, the experts named in order 2 may be supplied with and may view any audiovisual recordings of interviews with the respondent, or transcripts of the same, for the purpose of preparing their reports.
8.The respondent be released on an interim supervision order as per attachment 1, pursuant to section 27A(5) of the Dangerous Sexual Offenders Act 2006.
9.Order 8 is to take effect on 18 May 2020 or such later date upon which the respondent is released.
10.The publication of the address, including the suburb and town of the property, at which the respondent will be residing when released – according to his grant of parole and interim supervision order – is prohibited.
11.The publication of the names of the respondent and Mr KA, or any information that may lead to their names becoming known to the public, is prohibited, other than publication by the Commissioner of Police pursuant to part 5A of the Community Protection (Offender Reporting) Act 2004 (WA).
12.There be liberty to the parties to apply generally.
Attachment 1
IN THE SUPREME COURT OF WESTERN AUSTRALIA
DSO 5 of 2020
IN THE MATTER of Sections 8, 14 and 17(1) of the Dangerous Sexual Offenders Act 2006
THE STATE OF WESTERN AUSTRALIA Applicant
-and-
CA Respondent
_________________________________________________________________________
INTERIM SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA ON 18 MAY 2020
_________________________________________________________________________
The Court, being satisfied that there are reasonable grounds for believing that the Court might, under s 7(1) of the Dangerous Sexual Offenders Act 2006 (the Act), find that the Respondent is a serious danger to the community, and having made orders under sections 14(1) and 14(2) of the Act, orders that the Respondent be the subject of an interim supervision order pursuant to s 27A of the Act, from 18 May 2020 until the final determination of the application for orders under section 14 and 17(1) of the Act or until further order of the Court, on the following conditions.
You, CA, must:
Residence
(1)Take up residence at [address] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer ('CCO') assigned to you.
(2)Not leave or remain out of the State of Western Australia.
(3)Not to leave [suppressed] without first seeking and obtaining approval in advance by your CCO.
Reporting to CCO and supervision by CCO
(4)Report to a CCO at your nominated address on the day of release from custody under this undertaking.
(5)Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO, including attending programmes and counselling as directed by the CCO.
(6)Report to and receive visits from the CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments.
(7)Notify the CCO of any change of your name at least 2 days before the change is due to happen.
(8)Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO. Should your pre‑approved employment require you to work at different locations, you are required to seek permission from the CCO in advance in regards to each proposed job location, the period of the advance notice to be agreed with the CCO.
(9)Be subject to electronic monitoring on the same terms as set out in section 19A of the Dangerous Sexual Offenders Act 2006.
Reporting to WA Police
(10)Report to the Officer‑in‑Charge of the [suppressed] Detectives Office situated at [suppressed] within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of [suppressed] Detectives Office or his/her delegate.
(11)If requested, permit Police Officers to enter and search your residence and/or vehicle, and/or your person for the purpose of monitoring your compliance with your obligations under this undertaking and allow the seizure of any such items that the Police Officer believes to contravene the conditions of this undertaking.
(12)Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the Dangerous Sexual Offenders Act 2006.
(13)When requested, advise police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities and passwords used by you.
Disclosure / Exchange of information between agencies
(14)Agree to the exchange of information between persons and agencies involved in your supervision, including otherwise confidential information. This does not include any medical practitioner, psychologist, psychiatrist or counsellor that you may see of your own volition for the purposes of defending application DSO 5 of 2020.
(15)Allow the CCO, or other persons or agencies approved by the CCO, to (i) interview any associates or potential associates and (ii) disclose to them your offending history including otherwise confidential information.
Restrictions on contact with victims or with family of victims
(16)Have no contact, directly or indirectly, with the victims of any of your sexual offences, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Justice.
(17)Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of the victim), without engaging in conversation with the victim whether by word or gesture, and to avert your gaze from such a victim at all times.
(18)Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to that person or agency.
(19)Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.
Criminal conduct
(20)Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A.
(21)Not commit any offence contrary to s 202, s 203 or s 204 of the Criminal Code 1913 (WA).
(22)Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves violence, threats of violence, or the possession of weapons or offensive instruments.
(23)Not possess or consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the prescriber.
(24)Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Curfew
(25)Be subject to a curfew on the same terms as set out in section 19B of the Dangerous Sexual Offenders Act2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
(26)When subject to the curfew under this undertaking, present yourself for inspection at the front door or curtilage of the approved address, or speak on the telephone to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
(27)When subject to the curfew under this undertaking, to ensure that all those people present in the residence who may answer the telephone or door are aware as to your obligations, and to request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring compliance with the curfew.
Attendance at programs or treatment/Medications/Mental Health
(28)Attend, consult and engage with any medical practitioner, psychologist, psychiatrist, counsellor or support service as directed by the supervising CCO.
(29)Comply fully with all treatment prescribed pursuant to condition 28, including mental health treatment.
(30)Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO.
(31)Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level or risk of re‑offending and compliance with treatment to the Department of Justice. This does not include any medical practitioner, psychologist, psychiatrist or counsellor that you may see of your own volition for the purposes of defending application DSO 5 of 2020.
Prevention of high-risk situations
(32)On the next occasion you report to your CCO, report the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person.
(33)Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and Police Officer upon request.
(34)As directed by a CCO, make full disclosure regarding your past offending and this undertaking to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
(35)Not to associate with any person known to you to have committed any sexual offence, unless such association is authorized in advance by the CCO.
(36)Not possess, or consume, or purchase, or use alcohol unless approved in advance by a CCO. Not go or remain at any licensed premises unless permitted or required to do so for the following reasons:
(a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
(b)For a purpose, and for a duration, approved in advance by a CCO;
(c)On the order of a CCO or Police Officer.
(37)Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such person to an appropriate location for such testing to take place.
(38)Provide a valid sample for testing pursuant to condition 37.
(39)Not to remain in the presence of any person who you know, or ought to know, to be affected by a prohibited drug;
(40)Not to remain in the presence of any female, other than BL, who you know, or ought to know, to be affected by alcohol, unless the identity of that person is approved in advance by a CCO.
(41)Not to remain in any place where prohibited drugs are being consumed, or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place.
(42)With the exception of public transport, not enter in or on any vehicle where a female, other than BL, is present, unless the identity of such person is approved in advance by a CCO.
(43)Not enter any residential address in which a female, other than BL, resides or is known to reside, unless authorised in advance by the CCO.
(44)Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO. If you are in any other residential address and a female enters, you must remove yourself from that residential address immediately and must inform your CCO and police at your next scheduled meeting.
(45)Not be in possession of any pornographic material, in either hardcopy or digital form, or access or view pornography on the internet, unless approved in advance by a CCO.
(46)Advise a CCO of every computer, telecommunication and/or electronic device (which includes apparatus such as Smart TVs) capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
(47)Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 46, without prior approval of the CCO;
(48)Where possible, enable device locking or password access of your computer, telecommunication and/or electronic devices; Not provide or disclose passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 46, or any online accounts, to any person other than a CCO or Police Officer;
(49)Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO;
(50)Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police;
DSOA processes and return to court
(51)Make yourself available to a CCO or to the court-appointed experts for any consultation required of you in relation to the preparation of reports or other evidence to be given to the court at the hearing.
(52)Surrender yourself to the Supreme Court at Perth in person for the final hearing of the application in this matter on [date] or such other date as you are advised by the Court that your attendance is required.
____________________________________
THE HON JUSTICE FIANNACA
I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I contravene it.
Signed by the Respondent _____________________________
CA
In the presence of: _______________________________
Name and address: _______________________________
_______________________________
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca18 MAY 2020
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