The State of Western Australia v CA [No 2]
[2021] WASC 491
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CA [No 2] [2021] WASC 491
CORAM: FIANNACA J
HEARD: 31 AUGUST & 3 SEPTEMBER 2020, 7 JULY, 16 AUGUST & 16 SEPTEMBER 2021
DELIVERED : 15 OCTOBER 2021
PUBLISHED : 10 FEBRUARY 2023
FILE NO: SO 5 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CA
Respondent
Catchwords:
High risk serious offender – Whether the respondent is a high risk serious offender – Whether the risk of committing further serious offences can be managed on a supervision order or whether a continuing detention order is necessary
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order granted
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr P G Giudice |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | George Giudice Law Chambers |
Cases referred to in decision:
Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services [2019] WASCA 102
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Goldsmith v The Law Complaints Officer [2021] WASC 69
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v CF [2021] WASC 20
The State of Western Australia v Corbett [No 8] [2021] WASC 171
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v MBW [No 7] [2020] WASC 404
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v PAS [No 3] [2021] WASC 117
The State of Western Australia v Pindan [No 5] [2021] WASC 72
The State of Western Australia v Ryan [2021] WASC 38
The State of Western Australia v Ward [No 2] [2020] WASC 480
The State of Western Australia v ZSJ [2020] WASC 330
Table of Contents
The application and its history
Background
Commencement of the proceedings under the Dangerous Sexual Offenders Act 2006
Preliminary hearing
ISO
Enactment of the HRSO Act
Hearing on 31 August 2020 and 3 September 2020
Contravention of ISO
Further hearings
Reasons to be read in conjunction with CA
Statutory framework and legal principles
Evidence in these proceedings
Consideration of matters under s 7(3) of the HRSO Act
Respondent's antecedents
Personal antecedents
Education and employment
Sexual development and intimate relationships
Offending history
Substance use
Medical history
Conduct in prison
Personal circumstances since the hearing of the restriction order application
Propensity to commit a serious offence and pattern of offending
Rehabilitation programmes and other efforts to address causes of offending
Group programmes
Stopping Family Violence Program (2014)
Pathways Program (2015)
The ISOTP
Experts' opinions in these proceedings
Dr Wojnarowska
Ms Hasson
Dr Poli
Conclusions in relation to group treatment programmes
Individual counselling
Counselling with Mr Roberts
Subsequent individual counselling with Ms Hamlett‑Waller
Ms Hamlett‑Waller's account of treatment progress
Respondent's account of treatment progress
Conclusions in relation to programmes and efforts to address causes of offending
Psychiatric and psychological evidence
Methodology
The respondent's account of his personal history
Presentation and mental state examination
The respondent's account of his current sexual thinking
Diagnosis of psychiatric disorder or psychopathy
Static‑99R
RSVP
Sexual violence history
Psychological adjustment
Mental disorder
Social adjustment
Manageability
Risk scenarios
Imminence of risk of offending
Conclusions as to level of risk
Whether the respondent's risk can be managed in the community
Recommendations
Individual counselling
Abstinence from alcohol
Medication
Other conditions of proposed supervision order
Protective factors
Duration of proposed supervision order
Parole Order
Proposed Management Plan
Past treatment history
Experience on ISO
Outstanding treatment needs ‑ STABLE 2007
Future treatment options
Updated Treatment Progress Report of 19 August 2021
The respondent's presentation when interviewed by Dr Riordan
Future treatment goals and recommendations
Community Supervision Assessment
Prior supervision and conduct in custody
Performance on ISO
First instance of non‑compliance
Second instance of non‑compliance
Third instance of non‑compliance
Fourth instance of non‑compliance
Fifth instance of non‑compliance
First Contravention
Second Contravention
Accommodation
Ability to participate in water related activities
Proposed supervision order
Amendment to ISO
Applicant's submissions
The applicant is a high risk offender
The appropriate restriction order
Will the respondent substantially comply?
Proposed supervision order
Respondent's submissions
Restriction order not required
Can the Parole Order be considered?
Is the Parole Order sufficient to protect the community?
The appropriate restriction order
Proposed supervision order
Conclusions
The respondent is a high risk serious offender
CDO or Supervision Order
Commencement date
Orders
Anonymisation and suppression order
Annexure
FIANNACA J:
The application and its history
This is an application that comes to be dealt with under the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) for orders that the respondent be detained in custody indefinitely, or that he be subject to conditions when not in custody, on the basis that he is a high risk serious offender.
The application was heard on 31 August 2020, 3 September 2020 and 16 September 2021. The reasons for the delay between the last two dates are explained below. On 15 October 2021, I gave my decision, finding that the respondent is a high risk serious offender. I made a supervision order in respect of the respondent for a period of four years commencing on 15 October 2021.
At the time of making the supervision order on 15 October 2021, I was required, by s 28 of the HRSO Act, to give detailed reasons for the order. I indicated at the time of making the order that I would publish full reasons later, but I gave detailed oral reasons, which substantially stated or summarised the contents of [5] ‑ [26], [119] ‑ [140], [141] ‑ [142], [176] ‑ [178] (including a reference to individual treatment, which is dealt with earlier in the reasons below), [181] ‑ [187], [238] ‑ [247], [375] ‑ [386] and [397] ‑ [420] below.
These are my full reasons for my decision given on 15 October 2021.
Background
The respondent has a history of violent and sexual offending.
On 11 December 2007, having been convicted after a trial by jury, the respondent was sentenced to a total effective term of 2 years' imprisonment for offences of aggravated grievous bodily harm and aggravated assault occasioning bodily harm, committed on 29 December 2004 against his then girlfriend, Ms A.
On 24 July 2009, he was sentenced to a total effective term of 12 months' imprisonment for two counts of aggravated indecent assault, having pleaded guilty to the offences. They were committed on 2 June 2007 against a 21‑year‑old female, Ms C, the circumstance of aggravation being that the respondent was in company with a co‑offender. The offences were committed while the respondent was on bail for the offences committed in December 2004.
On 23 November 2012, having been convicted after a trial by jury of one count of aggravated sexual penetration without consent, four counts of sexual penetration without consent, one count of deprivation of liberty and one count of making a threat to kill, injure, endanger or harm another person, the respondent was sentenced to a total effective term of 10 years' imprisonment, with parole eligibility. The offences were committed on 3 April 2011 against Ms L, who was living with the respondent, but was not in an intimate relationship with him at the time, although, previously, she had been sexually intimate with him on two occasions.
Commencement of the proceedings under the Dangerous Sexual Offenders Act 2006
On 15 April 2020, while the respondent was serving the term of 10 years' imprisonment, and within the last year of the non‑parole period of the sentence, the State of Western Australia (the applicant), represented by the Director of Public Prosecutions for Western Australia, made an application under s 8(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) for orders under s 14 and s 17 of the DSO Act in respect of the respondent. Although the particular order sought under s 17 was not specified in the application (as allowed by s 8(2A)), the orders that could be made under that section ultimately were that:
(a)the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order, henceforth 'CDO'); or
(b)the respondent be subject to conditions when not in custody (a supervision order).
The application was made on the basis that the respondent was, at that time, a serious danger to the community, in that there was an unacceptable risk that, if one of those orders was not made, the respondent would commit a serious sexual offence.[1]
Preliminary hearing
[1] Sections 7 and 17 of the DSO Act. It is sufficient at this stage to note that, by s 3 of the DSO Act, a 'serious sexual offence' was an offence which came within the meaning of 'serious sexual offence' in s 106A of the Evidence Act 1906 (WA), which referred to offences mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more. The offences of which the respondent had been convicted included aggravated indecent assault (s 324 of the Criminal Code), sexual penetration without consent (s 325 of the Criminal Code) and aggravated sexual penetration without consent (s 326 of the Criminal Code), all of which were serious sexual offences for the purposes of the Evidence Act.
Pursuant to s 11 and s 14 of the DSO Act, a preliminary hearing of the application was held before me on 7 May 2020 to determine if there were reasonable grounds for believing that the court might find that the respondent was a serious danger to the community, and, if so, to make orders for the matter to proceed to a substantive hearing of the application under div 2 of the DSO Act.[2] The ultimate objective of an application under s 14 and s 17 of the DSO Act was 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 CDO or a supervision order.
[2] DSO Act s 11.
At the time of the preliminary hearing, the Prisoners Review Board (PRB) had made a parole order for the release of the applicant on parole on 18 May 2020.
I gave my decision on the preliminary hearing on 8 May 2020.[3] I decided there were reasonable grounds for believing that the court might find that the respondent was 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 DSO Act. I ordered that the respondent undergo examinations by two qualified experts, namely Dr Gosia Wojnarowska, a consultant forensic psychiatrist, and Ms Julie Hasson, a consultant forensic psychologist, for the purposes of preparing reports in relation to the respondent's risk at that stage, as required by s 37 of the DSO Act, to be used at the div 2 hearing. Further, I decided that, from 18 May 2020, when the respondent was to be released from custody on the parole order, he was to be subject to an interim supervision order (ISO) under s 27A the DSO Act until the determination of the application for an order under div 2 of the DSO Act.
ISO
[3] The State of Western Australia v CA [2020] WASC 164 (CA).
An ISO could be made under s 27A of the DSO Act where an application made under s 8(1) of the DSO Act was pending and the person to whom the proceedings related would be released from custody before the application was determined, in which case the court could make an 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 s 18, considers appropriate.'[4] The reference to s 18 had the effect of requiring that an ISO incorporate the 'standard conditions' which, under that section, had to be included in a supervision order.[5]
[4] DSO Act s 27A(5).
[5] DSO Act s 3 (definition of 'standard condition').
In CA, at [183] to [192], I gave reasons why I had concluded that the respondent should be subject to an ISO. It is not necessary to repeat all of those reasons here, but it is appropriate to outline some key points. First, having found that there were reasonable grounds for believing that the court might find that the respondent was a serious danger to the community, it was appropriate to place constraints on the respondent's liberty, to ensure adequate protection of the community against that putative risk. The options were an interim detention order under s 14(2)(b) of the DSO Act[6] or an ISO.
[6] Being an 'order that the offender be detained in custody for the period stated in the order'.
I accepted that, in light of the respondent's history, it was necessary for the court to take a cautious approach in determining whether he was likely to substantially comply with the standard conditions of an ISO.[7] That history included the respondent sexually offending while on bail in 2007 and absconding during his trial in 2012 in respect of the 2011 offences. However, I noted that the respondent was significantly older and, generally, had demonstrated an increased level of maturity and insight.[8] A considerable period of time had transpired since he committed, and was tried for, the relevant offences.[9] Although he had expressed objections initially to some of the proposed conditions of the ISO, I was prepared to accept that, on the materials filed in the preliminary hearing, those objections did not reflect a resistance by the respondent that would be likely to result in non‑compliance with the conditions.[10] I considered the respondent's circumstances to be different from those that existed in 2007 and 2012. I was of the view, on the materials then available, that the respondent had made gains in the rehabilitation programmes he had undertaken while in custody, including accepting responsibility and gaining insight into his offending behaviour.[11] Although he had outstanding treatment needs, they related to consolidation of the gains he had made, so as to achieve lasting change.[12]
[7] CA [186].
[8] CA [186].
[9] CA [185].
[10] CA [186].
[11] CA [183], [185] and [187].
[12] CA [183].
The fact that the respondent had been granted parole was also a relevant factor, as it would be expected that it would provide him with incentive to comply with the conditions of an ISO, to avoid returning to prison and to improve his prospects of being released on a supervision order in the event the court were to find at the div 2 hearing that he was a serious danger to the community.[13]
[13] CA [188].
The conditions of the ISO[14] had been agreed after discussion with counsel and largely reflected the conditions that were likely to be imposed if the respondent were found to be a serious danger to the community. They placed significant restrictions on his activities in the community, as well as obligations, including obligations to participate in further counselling and to refrain from alcohol and illicit drug use, as substance use had been a factor in his offending.
[14] See CA, 'Attachment 1'.
Given the subsequent developments concerning the respondent's conduct while on the ISO, which will be discussed later in these reasons, it is apt to reproduce here the following conclusions in CA that underpinned my decision to make an ISO:[15]
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.
…
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.
[15] CA [189], [191] and [192].
The respondent was released from custody and was subject to the ISO from 18 May 2020.
Enactment of the HRSO Act
On 26 August 2020, the HRSO Act came into force and the DSO Act was repealed. In effect, the HRSO Act replaced the DSO Act and served the same purpose as the DSO Act in respect of sexual offenders, while extending the availability of restriction orders to offenders who pose an unacceptable risk of committing a serious offence, as defined in the HRSO Act, if not subject to a restriction order, referred to as 'high risk serious offenders'.[16]
[16] HRSO Act s 7.
The objects of the HRSO Act are:[17]
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.
[17] HRSO Act s 8.
Section 7 of the HRSO Act provides:
(1)An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
(2)The State has the onus of satisfying the court as required by subsection (1).
A 'restriction order' is a CDO or a supervision order, both of which are defined in terms that are similar to the meaning given to those types of order in the DSO Act.[18]
[18] HRSO Act s 3 (definition of 'restriction order'), s 26 ('continuing detention order') and s 27 ('supervision order'). In The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ), I explained that, in the DSO Act, the meaning was to be ascertained from s 3 (the definitions section), which referred in respect of each term to the later provisions that authorised the making of the orders (in particular s 17(1)(a) and (b)). The description of the orders in those later provisions gave content to the meaning of those terms.
By s 124(1) of the HRSO Act, as this application was made under the DSO Act and had not been determined prior to the commencement of the HRSO Act, this application and these proceedings continue and may be determined under the HRSO Act. For the purposes of determining this application, it is taken to have been made under the corresponding provision of the HRSO Act. Further, pursuant to s 125 of the HRSO Act, any order made or direction given under the DSO Act continues in effect and is taken to have been made or given under the corresponding provision of the HRSO Act. Under the HRSO Act, an ISO can be made pursuant to s 58. Finally, the order made at the preliminary hearing requiring the respondent to be examined by a psychiatrist and a qualified psychologist, and for the preparation of reports, is taken to have been made under s 46(2) of the HRSO Act, and the examinations and reports are taken to have occurred and been prepared pursuant to s 73 and s 74 of the HRSO Act.
The effect of the provisions of the HRSO Act, to which I have referred, is that:
(a)the ISO made in respect of the respondent on 8 May 2020 continues in effect and is taken to have been made under the HRSO Act;
(b)the application dated 15 April 2020 is treated as having been made pursuant to s 35 of the HRSO Act (a 'restriction order application'); and
(c)this application must be determined under the provisions of the HRSO Act.
Hearing on 31 August 2020 and 3 September 2020
Accordingly, the hearing of the application, as a restriction order application, proceeded before me on 31 August 2020 and 3 September 2020. As I explain below, the question now in these proceedings is whether I am satisfied the respondent is a high risk serious offender, and, if so, which restriction order is appropriate to ensure adequate protection of the community.
At the hearing on 31 August 2020, documentary materials were tendered, and witnesses gave oral evidence as outlined below. The parties subsequently filed written submissions, and I heard further oral submissions from counsel on 3 September 2020. At the conclusion of that hearing, I reserved my decision and I ordered that the ISO continue with the same conditions as had been imposed previously, with a minor amendment to condition 8, relating to the pre‑approval of the locations where the respondent could engage in employment (which I will discuss further below). The respondent also remained subject to the parole order until 18 May 2022.
Between the respondent's release on 18 May 2020 and the hearing of the restriction order application on 31 August 2020, the respondent did not breach the ISO or the parole order in any substantial way. There were three minor instances of non‑compliance with the ISO that I will deal with below.
Regrettably, I was not able to give my decision in the restriction order application in a timely manner. However, a consequence of the delay was that the respondent had the opportunity to demonstrate, over an extended period, his ability to comply with the conditions of a supervision order and the capacity of such a supervision order to provide adequate protection of the community if I find that the respondent is a high risk serious offender.
On 23 December 2020, the State Solicitor's Office (SSO) took carriage of this matter from the Director of Public Prosecutions.
Contravention of ISO
On 1 July 2021, the court was notified by the SSO that the respondent had been arrested and charged with an offence under s 80(1) of the HRSO Act. This was in fact the respondent's second contravention of his ISO in respect of which he was charged; henceforth I will refer to it as 'the second contravention offence'. The facts of the second contravention offence are set out below at [328] to [340]. Following his arrest on 30 June 2021, the respondent appeared in the Magistrates Court and pleaded guilty. His sentencing was adjourned, and he was remanded in custody.
After appearing in the Magistrates Court on 1 July 2021, the respondent took an overdose of prescribed medication and became unwell. He was admitted to hospital that day. He was discharged from hospital on 3 July 2021.
The respondent's parole was suspended by the PRB on 2 July 2021, because of the charge brought against him on 1 July 2021 for the second contravention offence. The suspension was cancelled on 9 July 2021, but the respondent remained in custody on remand, pending sentencing for the second contravention offence. His parole was again suspended on 6 August 2021, while he remained in custody. That suspension was cancelled on 2 September 2021, with a release date set for 6 September 2021, meaning the respondent could again be released on parole. However, the respondent remained in custody on remand for a further period pending sentencing for the second contravention offence.
Further hearings
In the meantime, as a result of the court receiving the information concerning the respondent being charged in respect of the contravention offence and being remanded in custody, the delivery of judgment in this matter was adjourned and there were further hearings in respect of the restriction order application. There were directions hearings on 7 July 2021 and 16 August 2021. I made orders for further materials to be filed with the court to enable consideration of the impact the respondent's contravention of the ISO and other developments in his circumstances have had on his level of risk, if any, and the adequacy of a supervision order to manage that risk.
On 16 September 2021, I conducted a further hearing to receive submissions in respect of those issues. Additional documentary materials were tendered, but no witnesses were called to give oral evidence. I was satisfied, having regard to the materials tendered, that it was not necessary to hear oral evidence. At the conclusion of that hearing, I reserved my decision again, although I indicated that, in light of all the information now available, the outcome would likely be that I would find the respondent to be a high risk serious offender, and would make an order that he be subject to a supervision order. In the meantime, the respondent was to remain subject to the ISO when not in custody. At that stage, the respondent was still in custody on remand in respect of the sentencing proceedings for the second contravention offence. He was sentenced on 20 September 2021 in the Magistrates Court, which imposed a fine. He was thereafter released from custody and remained subject to both the parole order and the ISO until I gave my decision in the application on 15 October 2021.
The reasons that follow deal with the evidence at the original hearing of the restriction order application and the evidence at the subsequent hearing on 16 September 2021, and my findings on all of the evidence presented in these proceedings.
Reasons to be read in conjunction with CA
These reasons are to be read in conjunction with my reasons in CA, as it has been convenient to adopt, without repeating, the parts of those reasons that dealt in detail with matters such as the respondent's offending and his participation in treatment programmes to address the factors contributing to his offending.
Statutory framework and legal principles
As I explained in ZSJ, although its scope is wider, the HRSO Act operates largely as the DSO Act did in respect of serious sexual offences, in that the concepts and criteria in the DSO Act were substantially the same as those in the HRSO Act in determining an application of this kind.[19] Therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non‑sexual offences.[20] I adopt my outline of the relevant legal principles set out in ZSJ at [30] ‑ [63].[21]
[19] ZSJ [5], [35] - [63]. See also The State of Western Australia v CF [2021] WASC 20 (CF) [30], [35]; The State of Western Australia v Narrier [No 6] [2020] WASC 349 (Narrier [No 6]) [4], [29] - [30]; The State of Western Australia v MBW [No 7] [2020] WASC 404 (MBW [No 7]) [29] - [30]; The State of Western Australia v Ward [No 2] [2020] WASC 480 (Ward [No 2]) [6]; and The State of Western Australia v Pindan [No 5] [2021] WASC 72 (Pindan [No 5]) [25]; The State of Western Australia v PAS [No 3] [2021] WASC 117 [11] - [20] (PAS [No 3]).
[20] CF [35]; ZSJ [31].
[21] ZSJ [30] - [63]. See also The State of Western Australia v ACJ [2021] WASC 219 (ACJ) [19] - [41]. I note that these reasons were prepared before the decision in The State of Western Australia v Garlett [2021] WASC 387, in which Corboy J considered that, arguably, there is a difference in the way the criteria in s 7(1) of the HRSO Act are to be applied, when compared with the criteria for finding a person to be a serious danger to the community under s 7 of the DSO Act. The argument is that the element of necessity for a restriction order in s 7(1) of the HRSO Act is additional to the element of unacceptable risk, whereas that was not considered to be the case under s 7 of the DSO Act. A number of decisions (including decisions I have given) have adopted that view. The difference in approach would not have affected the outcome of this application, but I note that the application was decided on the basis set out in the body of these reasons, which does not have regard to that difference.
The following are the key aspects of the statutory framework and legal principles for the purposes of this application.
The court must first determine whether the respondent is a high risk serious offender. If it finds that he is, then it must make either a supervision order or a CDO (each of which is a restriction order).[22]
[22] HRSO Act s 48; The State of Western Australia v Ryan [2021] WASC 38 [4].
Section 7 of the HRSO Act (set out above, at [23]) defines the circumstances in which a person is said to be a high risk serious offender, by reference to a finding by the court that it is satisfied of certain matters by acceptable and cogent evidence and to a high degree of probability.[23] The matters about which the court must be satisfied under s 7(1) of the HRSO Act are that:
(1) it is necessary to make a restriction order in relation to the offender;
(2) the necessity for the order stems from the need to ensure adequate protection of the community; and
(3) what the community must be protected against is the 'unacceptable risk' that the offender will commit a serious offence.
[23] HRSO Act s 7(1).
The State has the onus of satisfying the court of those matters.[24]
[24] HRSO Act s 7(2).
The standard to which the court must be satisfied, namely 'to a high degree of probability', is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.[25] This does not necessarily mean that the risk must be at some high percentage of probability. A risk may be less than 50%, yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable, and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[26]
[25] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 (GTR) [28] (Steytler P & Buss JA).
[26] GTR [34] (Steytler P & Buss JA).
Section 7(3) of the HRSO Act sets out a number of matters that the court must have regard to in considering whether a person is a high risk serious offender, being:
(a)any report prepared under s 74 of the HRSO Act for the hearing of the application, and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
This list is not closed and the matters overlap. The Court must also disregard the possibility that the offender may be temporarily prevented from committing a serious offence by imprisonment, remand in custody or the imposition of bail conditions.[27]
[27] HRSO Act s 7(4).
Pursuant to s 3 and s 5(1) of the HRSO Act, a serious offence is an offence that is specified in sch 1 of the HRSO Act. It includes all of the offences that were defined as 'serious sexual offences' under the DSO Act. For present purposes, it also includes the offence of grievous bodily harm (s 297 of the Criminal Code).
The meaning of 'unacceptable risk' was elucidated by Wheeler JA in Director of Public Prosecutions (WA) v Williams for the purposes of the DSO Act, in terms that are applicable to the HRSO Act:[28]
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. (emphasis added)
[28] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [63] ‑ [65]; ACJ [27].
As was also explained in GTR, the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[29]
[29] GTR [27] (Steytler P & Buss JA).
If the court decides an offender is a high risk serious offender, it must decide whether a CDO or a supervision order is the appropriate outcome.[30] In making that decision, the paramount consideration is the need to ensure adequate protection of the community.[31] As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[32] The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community.[33]
[30] HRSO Act s 48(1).
[31] HRSO Act s 48(2).
[32] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
[33] The State of Western Australia v Latimer [2006] WASC 235 [49].
However, by s 29(1) of the HRSO Act, the court cannot make a supervision order, and therefore must make a CDO, unless it is satisfied, on the balance of probabilities, that a respondent will substantially comply with the 'standard conditions' of a supervision order. The respondent has the onus of proving that he will substantially comply.[34] The standard conditions of a supervision order are those that, under s 30(2) of the HRSO Act, must be included in the order,[35] namely that the offender:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
[34] HRSO Act s 29(2).
[35] HRSO Act s 3.
I note that one of the standard conditions that must be included in a supervision order, and with which the court must be satisfied the respondent would substantially comply, is that he not commit a serious offence during the period of the order (s 30(2)(f)). Although the application was brought initially on the basis that the respondent's risk was in respect of sexual offending, the effect of s 30(2)(f) is to require the court to be satisfied on the balance of probabilities that the respondent will not commit a serious offence of any kind specified in sch 1 of the HRSO Act.
In Director of Public Prosecutions (WA) v Hart,[36] I expressed views, which have been adopted in subsequent cases, as to the meaning of 'substantially comply with' in the equivalent provisions of the DSO Act. That interpretation applies to s 29(1) of the HRSO Act.[37] In essence, I must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious offence.
[36] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
[37] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [48] (Corbett [No 8]); PAS [No 3] [17]; CF [61].
As I identified in Hart, some matters that will be of relevance are:
(a)the respondent's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);
(b)his capacity to comply with the conditions;
(c)what measures there are in place to ensure he would substantially comply; and
(d)the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the HRSO Act.
In particular, where engagement in counselling is to be a condition of the supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk. The same may be said of engagement in supervision with the Community Corrections Officer (CCO) allocated to the respondent.[38]
[38] Corbett [No 8] [519].
Even where the court is satisfied that the respondent will substantially comply with the standard conditions of a supervision order, the court must make a CDO if it is not satisfied (which includes if it is simply left in doubt) that conditional release under a supervision order will ensure an adequate degree of protection of the community.[39]
[39] Williams [86] (Wheeler JA, Le Miere AJA agreeing).
In summary there are two matters that I must decide:
(1) Is the respondent a high risk serious offender?
(2) If so, is the appropriate order a CDO or release into the community on a supervision order?
Evidence in these proceedings
In an application for a restriction order, the court must hear admissible evidence called by the State and, if the respondent elects to give or call evidence, the court must hear that evidence.[40] The ordinary rules of evidence apply, but are modified to permit the court to receive in evidence:
(a) any document relevant to the antecedents or criminal record of the respondent;
(b) anything relevant contained in the official transcript of any relevant proceeding against the respondent;
(c) any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the respondent; and
(d)any relevant material of the kind mentioned in s 7(3) relating to the respondent.[41]
[40] HRSO Act s 84(3).
[41] HRSO Act s 84(4) and (5).
The evidence adduced by the applicant at the hearings conducted on 31 August 2020 and 3 September 2020 consisted of a Book of Materials (BOM),[42] which was tendered by the applicant without objection, a written lawful instruction dated 23 July 2020, which was issued to the respondent by his CCO while he was subject to the ISO, together with a chart showing the region where he was residing,[43] and oral evidence given by:
(a)Dr Wojnarowska, the court‑appointed psychiatrist who examined the respondent for these proceedings;
(b)Ms Hasson, the court‑appointed qualified psychologist who also examined the respondent for these proceedings;
(c)Dr Lynley Poli, Senior Forensic Psychologist with Forensic Psychological Services in the Department of Justice, who prepared a report titled 'Proposed Dangerous Sex Offender Management Plan' in respect of the respondent, reviewing his treatment to date and assessing his outstanding treatment needs and how they may be met; and
(d)Ms Kylie Mayfield, a Senior Community Corrections Officer (SCCO), with the Community Offender Monitoring Unit (COMU), who prepared a 'Community Supervision Assessment Report', in respect of the respondent.
[42] Exhibit 1.
[43] Exhibit 2.
The BOM, which is comprised of two volumes, includes the reports of each of the witnesses and comprehensive materials concerning:
(a) the respondent's antecedents, including his criminal record, information from the Department of Corrective Services about the respondent's behaviour in prison, individual management plans, medical status reports and progress notes from custody;
(b)the offence committed against Ms A, including transcript of the respondent's police interview, transcript from the trial and sentencing, a psychological report, and a pre‑sentence report;
(c)the offence committed against Ms C, including statements from the respondent, his co‑accused and Ms C, the Sexual Assault Resource Centre record for Ms C, the police statement of material facts, transcript from the respondent's police interview, sentencing transcript, and two bail assessment reports;
(d)the offence committed against Ms L, including transcript of the respondent's police interview, transcript from the trial and sentencing, a psychological report, a pre‑sentence report and the judgment of the Court of Appeal in the respondent's appeal against his conviction and sentence; and
(e)post‑sentence reports prepared with respect to the respondent after he was sentenced in November 2012, including treatment programme reports, and reports prepared as part of his parole assessment.
The respondent did not give evidence at the hearing.
At the hearing on 16 September 2021, the following further documents were tendered by the respondent:
(a)an affidavit of Mr P G Giudice, solicitor and counsel for the respondent, sworn 15 July 2021, attaching a letter from the respondent's father, dated 6 July 2021, and a letter from the manager of the respondent's employer that were provided to the PRB;[44]
(b)medical records from his local regional hospital following the respondent's admission to that hospital on 1 July 2021;[45] and
(c)medical records from another hospital in the Perth region following the respondent's admission to that hospital on 2 July 2021.[46]
[44] Exhibit 5.
[45] Exhibit 6.
[46] Exhibit 6.
At that hearing, the applicant tendered a supplementary BOM which comprised of:[47]
(a)a discharge summary, dated 3 July 2021, from the hospital in the Perth region;
(b)prison medical records in relation to the respondent, dated 30 July 2021, for the period 3 July 2021 to 29 July 2021;
(c)an updated criminal history for the respondent, dated 9 August 2021;
(d)the statement of material facts and prosecution notice relating to charge for the second contravention offence);
(e)an updated 'Community Supervision Assessment' prepared by Ms Mayfield and Ms Sarah Doughty, Team Leader, at the Community Corrections Centre in the town where the respondent was residing, dated 9 August 2021; and
(f)an updated Treatment Progress Report prepared by Dr Kathryn Riordan, Senior Forensic and Clinical Psychologist with Forensic Psychological Services, dated 19 August 2021.
[47] Exhibit 3.
The applicant also tendered an email sent to the court on 9 September 2021 containing information from Ms Aimee Goode, from COMU, in relation to the decision of the PRB to cancel its previous decision to suspend the respondent's parole.[48]
[48] Exhibit 4.
Consideration of matters under s 7(3) of the HRSO Act
As I noted earlier, the matters listed in s 7(3) of the HRSO Act, to which the court must have regard, overlap. The matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed, in turn, by the information and findings in respect of all of the other matters listed in s 7(3). Consideration of the questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning efforts at rehabilitation and the effect of participation in rehabilitation programmes.
It is convenient to start with the respondent's antecedents, including his criminal history, as they inform consideration of the other relevant factors under s 7(3) of the HRSO Act.
The summary of the respondent's antecedents, which follows, is collated from various materials in the BOM, including pre‑sentence, psychological and psychiatric reports prepared for criminal proceedings, reports from sex offender treatment programmes in which the respondent has engaged, and the reports prepared for these proceedings, in particular the reports of Dr Wojnarowska and Ms Hasson. Some of the respondent's antecedents were also discussed in my summaries of the prior psychological reports in respect of the respondent in CA at [86] ‑ [103].
Respondent's antecedents
Personal antecedents
The respondent is the eldest of three children.
The respondent has described his behaviour as a child as 'challenging', having been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and prescribed medication for the disorder in his early childhood, and having displayed poor coping, including acting out aggressively when angry and frustrated, and breaking things as a reaction to adverse outcomes and to get his way.[49]
[49] BOM 332 (Psychological Report for Court, 30/10/2007, prepared for the respondent's sentencing in December 2007); BOM 1219 [3] ‑ [4] (Ms Hasson's report, 11/8/2020); BOM 1255 [55] (Dr Wojnarowska's report, 21/8/2020, referring to a report from the respondent's treating psychologist).
The respondent told Dr Wojnarowska that he witnessed a particularly traumatic violent event within his family when he was around 7 or 8 years old,[50] but there is no suggestion in the evidence that the event affected his development or his behaviour as an adult.
[50] BOM 1257 [65].
The most significant event in the respondent's childhood was his mother's death in 1995, when the respondent was 12 years old. His mother died unexpectedly, due to complications with a routine medical procedure. The respondent told a psychologist in 2007 that his mood and behaviour deteriorated from that point onwards, and that he was shocked and then depressed for many years after the event.[51] He told Dr Poli (when interviewed for these proceedings) that he struggled to accept the loss of his mother and 'put up a wall and tried to block it out'.[52] Similarly, he told Ms Hasson that he felt devastated by the loss and 'shut down' emotionally, 'not caring anymore' and anger being the only emotion he could manage.[53] He described his mother as a 'warm and affectionate woman who met the family's needs for nurturance and protection'.[54]
[51] BOM 332.
[52] BOM 1203 [6].
[53] BOM 1220 [5].
[54] BOM 1219 [2].
The respondent told Ms Hasson that, after his mother's death, homelife changed dramatically. Although the extended family rallied around the respondent, his father and siblings, and although nannies were employed to look after the children, none of them were able to overcome the loss resulting from his mother's death.[55] It is also noted that the respondent has had very little contact with his maternal grandparents since his mother's death.
[55] BOM 1220 [6].
Dr Wojnarowska was of the opinion that the death of the respondent's mother, while not a causal factor in the respondent's offending, is a contributing factor that caused him to deviate from the normal trajectory of emotional development.[56] Ms Hasson considered that the respondent's mother's death, while having had an impact on his earlier offending, was no longer a 'primary' risk factor, but rather an underlying unresolved issue, and he would benefit from further treatment dealing with the issue.[57]
[56] ts 92.
[57] ts 122.
The respondent's father did not establish a relationship with another partner until many years later, so the respondent grew up without any female role model.
Despite telling other authors that his childhood was challenging and beset by poor emotional coping, as I noted above, the respondent told Dr Wojnarowska that it was a good childhood, apart from the loss of his mother.[58] The respondent's description of his childhood in that way may reflect a normalisation of experiences that might otherwise be regarded as harsh. For instance, as I noted in CA, during the respondent's participation in the Stopping Family Violence Program in 2014, he said 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.[59]
[58] BOM 1257 [66].
[59] CA [107]; BOM 1102.
The respondent again used the word 'challenging' to describe his teenage years, when speaking to Ms Hasson. He said he struggled with underlying anger and engaged in poor behaviour at school, as well as truanting regularly.[60]
[60] BOM 1220 [8].
The respondent has described having a strained relationship with his father at times. However, he now has a better relationship with his father, who has been supportive of the respondent throughout these proceedings. In his interview with Dr Wojnarowska, the respondent spoke highly of his father and described him as 'rock solid'.[61]
Education and employment
[61] BOM 1257 [64].
As I noted above, the respondent was diagnosed with ADHD when he was a child and was prescribed medication.[62] In his early schooling, he experienced problems with concentration and obtained average grades.[63]
[62] BOM 1203 [5].
[63] BOM 333.
The respondent's medication affected his appetite, which appears to have affected his physical growth. This led to the respondent being teased at school over his size and stature. There is some evidence also that, later, he was teased over the loss of his mother.[64] It appears he dealt with the bullying at times by fighting, and, on one occasion, was suspended from school for that reason.[65] By year 9, his academic performance was affected by truancy and cannabis use.[66] Around year 11, he stopped taking the ADHD medication.[67] He left school mid‑way through year 12, as he had 'had enough'.[68]
[64] BOM 333, 1221 [11].
[65] BOM 1203 [7].
[66] BOM 333.
[67] BOM 333, 1221 [11].
[68] BOM 333.
After leaving school, the respondent experienced a period where he led a 'directionless' lifestyle.[69] He was able to find work from time to time, but his employment history has been described as sporadic.[70] He told Ms Hasson that he was prone to changing jobs frequently, and there were several occasions when he 'impulsively quit work for various reasons including some that, with hindsight, were clearly self‑defeating'.[71] Nevertheless, the respondent has worked for varying lengths of time in various forms of employment, including as a deckhand on fishing vessels, as a worker in a crayfish processing factory, as a labourer, as a worker on the railways and as a reception worker. The latter, described by him as his longest period of employment, for two years, was while he was in prison.[72] He was working on a mine as a concreter, on a fly‑in, fly‑out basis, at the time of his arrest for the offending in 2011.
[69] BOM 333.
[70] BOM 1221 [12].
[71] BOM 1221 [12] (syntax amended for clarity).
[72] BOM 1221 [12].
After his release on the ISO, the respondent was working for his father's bobcat and truck hire company.[73]
Sexual development and intimate relationships
[73] BOM 1221 [12].
The respondent has said that his first sexual encounter consisted of sexual abuse when he was around 14 years old by a similarly aged male relative. The respondent first engaged in sexual intercourse when he was 17 or 18 years old. [74] He told Dr Wojnarowska that he has had limited interest in pornography and that, in general, he has never been overly preoccupied with sex.[75] However, he also told Dr Wojnarowska that he has had many casual sexual liaisons, which gave Dr Wojnarowska the impression that the respondent has had 'limited success with relationships'.[76] She noted:[77]
Underlying reasons for this could also be underpinning the current offences, especially if issues around self‑esteem and inadequacy are featured.
[74] BOM 1224 [21] ‑ [23]; ts 118; BOM 1258 [68].
[75] BOM 1258 [68].
[76] BOM 1258 [68].
[77] BOM 1258 [68].
Otherwise, there is no other significant or unusual factor to note in the respondent's sexual development.
The respondent reported that his first serious relationship commenced when he was 18 years old.[78] That relationship ended when he became aware that his girlfriend was unfaithful to him.[79]
[78] BOM 1222 [15].
[79] BOM 1222 [15].
The respondent's next serious relationship was with Ms A when he was 21 years old.[80] He told Ms Hasson that the relationship was 'toxic', describing how mutual, increasing drug use throughout the relationship caused increasing arguments, mutual physical aggression and stress.[81] The respondent described being in a heightened emotional state after the termination of a pregnancy during that relationship,[82] which culminated in his offending against Ms A (set out below).
[80] BOM 1222 [16].
[81] BOM 1222 [16].
[82] BOM 1222 [17].
When the respondent was 25 years old, he had another serious relationship with a woman who was in Australia from overseas, but that relationship ended when she returned overseas at the end of her visa.[83] Ms Hasson considered that relationship to have been the respondent's most significant relationship. The respondent was emotionally attached to that partner and her departure had a considerable impact on him.[84]
[83] BOM 1223 [19].
[84] BOM 1223 [19].
The respondent's most recent 'relationship' was when he was 27 years old with Ms L, the victim of his offending in 2011. As I noted in CA, Ms L was living with the respondent, but did not consider herself to be in an intimate relationship with him, despite the respondent's desire for such a relationship.[85] The respondent, on the other hand, has claimed to have been in an exclusive relationship with Ms L at that time.[86]
[85] CA [56]; BOM 1229 [45]
[86] BOM 1223 [20].
During his interview with Dr Poli, the respondent, upon reflection, described his relationship history in extremely negative terms, indicating that substance use had had a destructive impact on his behaviour.[87] He recognised he was 'not the best person' in relationships.[88]
Offending history
[87] BOM 1204 [11].
[88] BOM 1204 [11].
The respondent's relevant offending is summarised in CA at [55] to [77]. I adopt that summary.
In brief, the respondent has been convicted of the following serious offences:
(1)in relation to an incident against Ms A in 2004, one count of aggravated grievous bodily harm;
(2)in relation to an incident against Ms C in 2007, two counts of aggravated indecent assault; and
(3)in relation to an incident against Ms L in 2011, one count of aggravated sexual penetration without consent, one count of deprivation of liberty and four counts of sexual penetration without consent.
He was also convicted of aggravated assault occasioning bodily harm in respect of Ms A, and threatening to kill, injure, endanger or harm another person in respect of Ms L. Although they are not serious offences for the purposes of the HRSO Act, they are relevant to whether the respondent has a propensity to commit serious offences and to his pattern of offending, because they were associated with the commission of serious offences.
Key aspects of the offending were as follows.
In relation to the offending in 2004, Ms A was the respondent's partner and the offences occurred in their home. He became angry and violent towards her when she refused to have sex with him. He had consumed a large amount of alcohol. The violence included pushing Ms A into a wall and strangling her to the point that she almost passed out. She suffered a bloodied nose from that initial attack. Subsequently, when Ms A again refused to have sex with him, the respondent threw a knife at her, which lodged in her head causing grievous bodily harm, of a life‑threatening nature.
In relation to the offences in 2007, the respondent indecently assaulted a young woman, Ms C, who had accepted a lift with him and his male friend. Ms C was intoxicated and vulnerable. The respondent and his co‑offender indecently assaulted her in an isolated car park while she was passed out.
In relation to the offending in 2011, Ms L was a foreign national who was in Australia on a visa and was staying at the respondent's home. They had been sexually intimate on two occasions, but she had resisted the respondent's further persistent advances and did not consider herself to be in a sexual or romantic relationship with him. He became jealous towards her. On the night of the offending, the respondent became angry and aggressive towards Ms L after they had been to a party. He was intoxicated. He locked Ms L in his house and refused to let her leave, physically restraining her when she attempted to escape, and ignoring the fact that she was distressed and crying. At one stage he held a knife close to her face and threatened to kill her if she tried to leave. He then sexually penetrated Ms L without her consent on five occasions, four times in the bedroom and once in the shower. The bedroom incidents involved sexual intercourse while Ms L was screaming for help. On two occasions, the respondent grabbed Ms L by the throat. On the first occasion, he did so until she had difficulty breathing and passed out. On another occasion he put a pillow over her face to stifle her screams, making it difficult for her to breath. The last act of sexual penetration included an act of degradation and humiliation.
The judge who sentenced the respondent for the 2011 offences, Deane QC DCJ, noted that it was not only a humiliating experience for Ms L, but an 'utterly terrifying experience', and that her terror and distress were evident to a witness who saw Ms L fleeing from the scene, and to a police officer who dealt with Ms L shortly after.[89] Her Honour accepted that Ms L genuinely believed she was going to die. The offending involved a gross breach of trust and had a devastating impact on Ms L's life. Her Honour had regard to the fact that Ms L was very vulnerable as a foreign national in Australia on a visa, as she did not have an extensive network of family and friends.
[89] BOM 1079.
Apart from the serious offences, the respondent was also convicted of a common assault in 2005, for which he received a modest fine.
The respondent has no other significant offending history that is relevant to this application.
Ms Hasson noted that, during her interview with the respondent, he acknowledged his offending and displayed some insight, victim empathy and awareness of the consequences of his actions.[90]
Substance use
[90] BOM 1230 -1231 [53] - [56].
In CA, I summarised the information concerning the respondent's illicit substance and alcohol use in the psychological reports previously prepared by Ms Cinzia Zuin in 2012[91] and Mr Nigel Cameron in 2007.[92] I adopt that summary for the purposes of these reasons. I also note that the authors of the Program Completion Report for the Stopping Family Violence Program, which was completed by the respondent in 2014, summarised the respondent's previous substance use as follows:[93]
It appears that historically, substance use has served as a strategy for [the respondent] to cope with uncomfortable and distressing emotions and avoid dealing with issues proactively. This seems particularly relevant during times of relationship disharmony and conflict.
[91] CA [96] - [97].
[92] CA [88].
[93] BOM 1105.
The substances that have had the most deleterious impact on the respondent's behaviour have been alcohol and amphetamines.
Further evidence was given in these proceedings concerning the respondent's substance use.
The respondent told Dr Poli that he commenced using substances, in the absence of alternative strategies, following his mother's death, to 'avoid dealing with emotions and to block things out'.[94] He said that alcohol 'brought out the worst' in him and he was 'reckless, impulsive and aggressive' when intoxicated.[95] According to Dr Poli, the respondent generally identified the detrimental impact of his substance use, stating that he made numerous poor decisions that affected his employment, his family and intimate relationships, and his offending.[96]
[94] BOM 1203 [6].
[95] BOM 1205 [14].
[96] BOM 1205 [14].
The respondent told Dr Wojnarowska that he was never a 'big drinker' but he tended to 'binge drink' when he consumed alcohol. However, he said that he had a significant problem with cannabis use from the age of 14 years to the age of 22 years, resorting to selling personal items to fund his use, but that he stopped smoking cannabis when he gained work in the mining industry.[97] He said that he started experimenting with amphetamines and ecstasy around the age of 20 years, but claimed that he stopped all drug use at the age of 23 years until his minor relapse following his arrest for the offences committed in 2011.[98]
[97] BOM 1259 [73].
[98] BOM 1259 [74].
The description 'minor relapse' suggests a downplaying of the extent of the respondent's use of amphetamines during that period. It is obvious he is referring to the period when he was in the community on bail after his arrest for the 2011 offences, which extended to the period of his first trial for those offences, during which he absconded after Ms L had given evidence, resulting in the trial being aborted and the respondent having to be extradited eventually from South Australia to face trial again.[99] After his arrest in South Australia, the respondent was remanded in custody. That is relevant as a marker in time to explain a comment made in the Stopping Family Violence Program Completion Report in 2014. That report noted that a Harm and Supervision Assessment report dated 15 February 2013 stated that the respondent 'was spending up to $1500 per week on amphetamines during the three months prior to his remand in custody'.[100] That information necessarily came from the respondent.
[99] See CA [64].
[100] BOM 1105.
Ms Hasson also described the respondent's account as indicating 'a significant pattern of alcohol and polysubstance use commencing in his teens.'[101] Ms Hasson was of the view that alcohol misuse, in particular, appears to be a contributory factor in the respondent's violent and aggressive behaviour towards both males and females.[102] However, both alcohol and illicit substances disinhibit the respondent, reducing his ability to control and manage his emotions and thoughts.[103]
[101] BOM 1226 [31].
[102] BOM 1226 [31].
[103] ts 134.
Dr Wojnarowska also noted that alcohol would disinhibit the respondent and increase his sexual drive and, therefore, would 'definitely escalate his risk'.[104]
[104] ts 93.
The respondent has previously participated in substance abuse counselling and has had some success remaining abstinent, although he was unable to remain abstinent without external supports or restrictions upon him.[105] The respondent also undertook the Pathways Program in March 2015, discussed below, in relation to his substance use problems.
[105] BOM 1226 [32].
There is evidence that the respondent has insight into the impact of his alcohol and drug problem on his behaviour. He told Ms Hasson that all of his offending behaviour was committed under the influence of alcohol, cannabis or amphetamines.[106] Ms Hasson noted that the respondent 'recognises that substance abuse is a significant risk factor for him for future violent and sexual offending.'[107] Further, she found that his 'desire to be drug free appears genuine and he is aware of the link between substance abuse and his offending[. However,] it would appear that his quest for abstinence requires ongoing help.'[108]
[106] BOM 1226 [31].
[107] BOM 1225 [33].
[108] BOM 1225 [33].
Similarly, Dr Wojnarowska noted that the respondent understands that he is unable to tolerate alcohol or illicit substances, that it is a problem for him, and that he should remain abstinent for the rest of his life.[109] The respondent told Dr Wojnarowska that he is motivated to remain abstinent.[110]
Medical history
[109] ts 88.
[110] ts 88.
Ms Hasson noted that the respondent has a history of depressed mood since the death of his mother.[111] The respondent was formally diagnosed with depression, stress and anxiety while incarcerated in 2007. He was prescribed antidepressant medication for those issues and sought counselling while in custody.[112]
[111] BOM 1225 [26].
[112] BOM 1225 [27].
I set out below the respondent's medical issues following his second contravention of the ISO and his admission to hospital.[113]
[113] See [331] ‑ [336].
The respondent had previously noted that he was eager to cease taking his antidepressant medication, but he changed his opinion and told Dr Poli he is 'willing and eager' to continue taking the medication.[114] However, as I note below, he ceased taking the medication following his second contravention of the ISO.
[114] ts 145.
There are no other significant medical issues of relevance for the purpose of these proceedings.
Conduct in prison
As I noted in CA, the overall impression from the evidence was that the respondent had behaved well in custody, particularly in recent times relative to the time of his release on the ISO.[115] Since his release on the ISO, the only other period the respondent has spent in custody was after his arrest for the breach of the ISO on 30 June 2021 until his release again on 20 September 2021.
[115] CA [189].
As set out in CA, the respondent returned positive urinalysis results on 12 September 2018 (cannabis), 7 September 2015 (amphetamine) and 7 August 2013 (cannabis).[116] Further, the respondent was found guilty of one charge while in custody, relating to his use of a drug not lawfully issued to him, namely cannabis, on 24 July 2013.[117]
[116] CA [132].
[117] BOM 3.
The respondent also admitted to Ms Hasson that, for a variety of reasons, there were times in prison when he used drugs that were not prescribed to him.[118] He told Ms Hasson that he was aware these were 'old methods of coping'.[119] He said he does not want to be given medication unless it is absolutely necessary.[120]
Personal circumstances since the hearing of the restriction order application
[118] BOM 1226 [34].
[119] BOM 1227 ‑ 1228 [34].
[120] BOM 1227 ‑ 1228 [34].
Since the hearing of the restriction order application in September 2020, when the respondent was again released on the ISO, the respondent has been working for a furniture delivery and removalist business. In an email dated 7 July 2021 (and obtained in the context of the respondent's remand in custody after he was charged with the second contravention offence), the owner and director of that business confirms that the company continues to support the respondent in his desire to return to employment with the company, and that such employment is available.[121] The owner notes that all staff have been informed of the respondent's parole order and the limitations to which the respondent is subject, and that the respondent openly volunteered information about his charges and the time he has spent in prison. The owner characterises the respondent as an exceptional employee who is honest and trustworthy.[122]
[121] Affidavit of P G Giudice sworn 15.07.21, Annexure A.
[122] Affidavit of P G Giudice sworn 15.07.21, Annexure A.
The respondent also continues to assist in his father's business in his spare time. He continues to have the support of his father, and, prior to his arrest for the second contravention offence, was living with his father, his father's partner and their 6‑month‑old child, whom he helps look after.[123]
[123] Affidavit of P G Giudice sworn 15.07.21, Annexure B.
Propensity to commit a serious offence and pattern of offending
Paragraphs (c) and (d) of s 7(3) of the HRSO Act require consideration of whether or not the respondent has a propensity to commit serious offences in the future and whether or not there is any pattern of offending behaviour by the respondent.
In respect of its use in the DSO Act, the word 'propensity' was taken to have its ordinary meaning in the context of the criminal law. Its use in the HRSO Act is in precisely the same context, so the same principles are applicable. What is meant by 'propensity' in this context was encapsulated by Murray AJA in GTR:[124]
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his make up or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[124] GTR [178].
It is now necessary to consider the issue of propensity in the context of the cohort of offences that come within the meaning of 'serious offence' under the HRSO Act, which is wider than the cohort of serious sexual offences that was relevant under the DSO Act at the preliminary hearing of this application. However, in CA I considered the respondent's non‑sexual violent offences (one of which, the offence of aggravated grievous bodily harm, now comes within the meaning of 'serious offence') to be relevant to determining the issue of propensity,[125] so the widening of the cohort of offences that are now relevant under the HRSO Act does not affect the determination of that issue in any significant way, in my opinion. I note that Ms Hasson considered the non‑sexual serious offences to be relevant to understanding some of the triggers for the respondent's anger and violence.[126]
[125] CA [81].
[126] BOM 1227 [36].
I will consider later in these reasons the evidence of Dr Wojnarowska and Ms Hasson in relation to the static and dynamic factors that inform the respondent's risk of committing a further serious offence. However, it is convenient at this stage to outline some aspects of their evidence that are relevant to the issues of propensity and pattern of offending.
Dr Wojnarowska identified a pattern of offending, in that the respondent committed most of his offences against a person with whom he was in a relationship, be it a casual relationship or one involving commitment.[127] Further, she noted that the respondent's offending was much more serious against intimate partners than against strangers.[128] In Dr Wojnarowska's opinion, the respondent's offending was driven by his need to be in a satisfying relationship and associated feelings of jealousy and rage.[129] She found that the additional violence that accompanied the offending against intimate partners (i.e. additional to the sexual violence) was a reflection of the respondent's rage and his inability to regulate his anger and frustration.[130] In Dr Wojnarowska's opinion, the respondent's previous offending was not about sexual satisfaction; rather, it was about a desire to humiliate or hurt the victims, using sexual assault to do so.[131] She linked his offending to substance misuse, association with negative peers, poor coping skills, 'adversarial sexual beliefs', antisocial cognitions and emotional dysregulation.[132]
[127] ts 81.
[128] ts 81.
[129] ts 82.
[130] ts 83.
[131] ts 83.
[132] BOM 1265 [125].
Ms Hasson agreed with Dr Wojnarowska that the respondent's offending has occurred when he has been in a heightened emotional state (involving anger, jealousy and anxiety).[133] She also noted there is a link between the respondent's offending and his misuse of illicit substances and alcohol.[134] She was of the opinion that some of the primary 'motivators' for the respondent's offending have been issues with trust (where his partner has been unfaithful, or he has perceived that to be the case) and being in a relationship where his emotional needs have not been met and he has felt hurt and angry.[135] Ms Hasson was of the opinion that the respondent committed the violent offences 'to control and dominate [his victims] and have them submit to what [he is] doing and to gain control over them'.[136] In summary, she described his offending as 'very anger oriented'.
[133] ts 122.
[134] ts 122.
[135] ts 123; BOM 1239 [101].
[136] ts 123.
Ms Hasson did not think that the respondent has issues with women generally, noting that he appears to have maintained 'a lot of good friendships with them and over very long periods of time'.[137] She also referred to the fact that the respondent spoke positively about his father's current partner and his previous long‑term partner.[138] Ms Hasson considered the respondent's offending to be 'situational', in respect of specific women with whom he was in a relationship, when he experienced negative cognitions, as outlined in the preceding paragraph.[139] Nevertheless, as will appear below, in her conclusion concerning the respondent's overall risk of committing a serious offence, Ms Hasson included as a relevant factor the respondent's 'negative or distorted attitudes toward women'.[140]
[137] ts 123.
[138] ts 123.
[139] ts 123.
[140] BOM 1243 [126].
I also note in this context that Ms Hasson did not consider that 'attitudes and beliefs consistent with sexual entitlement' were present when she interviewed the respondent, but they had been present historically, and she believed they should remain a focus of discussion during supervision, monitoring and counselling.
Dr Wojnarowska, who gave evidence before Ms Hasson, expressed similar views in oral evidence to those expressed by Ms Hasson concerning the respondent's general attitude towards women. Dr Wojnarowska said she could not find evidence of the respondent having a poor attitude towards women, and that any poor attitudes had emerged at times when the respondent was intoxicated and enraged. She also said there was 'no evidence in the witnesses' statements, that [she] could recall', or in her reading of the transcripts in the BOM, that suggested the respondent had been possessive, degrading or unreasonable in his relationships.[141] Of course, the only relevant witness with whom the respondent had been in a domestic relationship was Ms A, although he had a relationship with Ms L that had involved some intimacy. It was apparent that Dr Wojnarowska was referring to those victims.
[141] ts 86.
Similarly, Dr Wojnarowska said she did not discern from the witnesses' statements or from her interview with the respondent, particularly in his descriptions of his past relationships, a general sense of entitlement.[142] As I understood Dr Wojnarowska's evidence, while it might be concluded that the respondent demonstrated a sense of entitlement when he offended against Ms A and Ms L, it was in the context of the respondent being intoxicated, jealous and in a rage.[143] She acknowledged that the absence of any descriptions in the statements of Ms A and Ms L to the effect that the respondent 'displayed entitlement' might have been because they had not been asked specific questions about that issue.[144] With respect, that is a reasonable assumption, but conclusions in respect of the respondent's possessiveness and sense of entitlement could be inferred from the witnesses' statements and the evidence at trial, as indeed they were by the trial judge in 2013. Dr Wojnarowska also acknowledged that the respondent's 'calm attitude' toward women during her assessment could be 'very much' a result of treatment gains.[145] However, his presentation in her assessment did not raise concerns in relation to entitlement or distorted views.[146]
[142] ts 87.
[143] ts 87.
[144] ts 87.
[145] ts 87.
[146] ts 87.
With respect, I do not agree with Dr Wojnarowska's assessment that the evidence in the BOM in respect of the offences against Ms A and Ms L did not disclose behaviour by the respondent towards those women that was possessive, degrading or unreasonable, or an attitude of sexual entitlement. As I described in CA, over a number of weeks leading up to the offending against Ms L, the respondent exhibited jealous behaviour towards her, which was consistent with possessiveness. It was not suggested that he was intoxicated during that time, although he was intoxicated at the time of the offending.[147] Further, there was evidence from Ms L of the respondent's persistent advances and his desire to be in a romantic and sexual relationship with her, despite her persistent refusal to be in such a relationship with him.[148] In my opinion, that was an example of the respondent being possessive and unreasonable in a relationship, not just at the time of offending.
[147] CA [56].
[148] CA [56].
In addition, as I will outline below, both during his participation in the Intensive Sex Offender Treatment Program (ISOTP) and during his interview with Dr Poli for the purpose of these proceedings, the respondent acknowledged a history of negative attitudes toward women, including feeling 'entitled', and he acknowledged the contribution of those attitudes to his offending, especially his offending against Ms L.[149] The respondent told Dr Poli that he felt that he was entitled to be able to have sex with Ms L, and that he was angry that she refused.[150] Even before the ISOTP, despite minimising his offending, as I will discuss below, the respondent was able to identify a 'sense of entitlement' and the need for 'immediate gratification' as factors that had contributed to his 'use of abusive practices'.[151] Importantly, although the respondent told Dr Poli that he had learned to challenge his negative attitudes towards women while participating in the ISOTP, he recognised, in effect, that they had been part of his personality, developed in his youth as a result of early negative interactions with women and the loss of his mother as a positive female role model.[152] Consistently with the findings of Dr Wojnarowska and Ms Hasson, Dr Poli concluded that the negative beliefs and attitudes previously held by the respondent were no longer held by him at the time she interviewed him.[153]
[149] ts 150; BOM 1212 [34].
[150] ts 148.
[151] BOM 1103.
[152] BOM 1212 [34].
[153] ts 148.
While I accept the general proposition in the evidence of both Dr Wojnarowska and Ms Hasson that the respondent has not demonstrated a general hostility towards women, I am of the opinion that the following comments made by the sentencing judge, Deane QC DCJ, in 2013, when sentencing the respondent for the 2011 offences, remain apt:[154]
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.
[154] BOM 1077; see CA [65].
As I indicated earlier in these reasons, the condition concerning the respondent providing notice of his employment was amended in the ISO, and is contained in the supervision order in the amended form.
In my opinion, having regard to the whole of the evidence before me, the conditions set out in the Annexure to these reasons are appropriate, and no more than is necessary, to provide adequate protection of the community from the risk that the respondent will commit a serious sexual and/or violent offence. The rationale for some of the conditions was discussed in the context of dealing with the evidence of Dr Wojnarowska and Ms Hasson about those matters. I accept the views expressed by them.
I will refer specifically to only one aspect of the conditions. A number of the conditions relate to the respondent having to make available for inspection to the police or his CCO any electronic device that he may be using or has used, and to provide them with passwords or passcodes to gain access to such devices. Those conditions are directed in part to the respondent accessing pornography, notwithstanding the fact that he has said that he has had only limited access to pornography in the past, and that it is not of importance to him. However, the utility of the conditions concerning electronic devices is not necessarily limited in that way. It might be, for instance, that the respondent is communicating with women by use of electronic devices. The risk scenario in which the respondent becomes frustrated and angry, leading to violence, when his desires or expectations for intimacy are not met in a relationship, could occur, at least to some extent, in the context of communication in electronic form. The conditions are appropriate to allow monitoring of his conduct in that context.
The use that will be made of those conditions to require the respondent to make his electronic devices available for inspection, will depend on assessments made by those who are supervising him. It may be that, over time, it becomes apparent that they are not required to be enforced to the same extent as they might in the early stages of the supervision order. It is nevertheless appropriate, for the respondent's benefit, that I indicate the reasons why I think those conditions are appropriate, as I have done.
Finally, in relation to the conditions of the supervision order, I reiterate the expectation that those responsible for the supervision of the respondent will accommodate, as much as possible, within the parameters of the supervision order, his desire to participate in recreational activities such as snorkelling and swimming, for reasons I explained above.
In terms of the duration of the supervision order, I have had regard to the differing views of Dr Wojnarowska and Ms Hasson set out above. While Ms Hasson was of the view that three years would be sufficient to give the respondent an opportunity to make changes and establish a relationship, she did not disagree that he may need up to five years to make sufficient treatment gains to mitigate his risk to a level where a restriction order may no longer be necessary, as was Dr Wojnarowska's opinion. I have also taken into account the evidence of the experts that, statistically, an offender's risk of sexual offending is halved every five years that the offender remains offence‑free in the community.[527]
[527] ts 107.
I have also taken into account the period that the respondent has been subject to the ISO, which was ostensibly in very similar terms to the supervision order annexed to these reasons, and the fact that he has participated in counselling over a substantial part of that period. I agree with the parties that the recommended duration of the supervision order should be reduced to reflect the fact that he has already been subject to a supervision order, albeit on an interim basis, during that period.
At the time I gave my decision, on 15 October 2021, I concluded that the appropriate reduction was one year, being the approximate period between the conclusion of the hearing in 2020 and the date on which the order would be made.
Commencement date
Section 27(3) of the HRSO Act provides that the date from which a supervision order has effect must not be earlier than 21 days after the date the order is made, unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
As the respondent has been subject to an ISO that is largely in the same terms or to the same effect as the supervision order I intend to make, I am satisfied that it is practically feasible for the supervision order to commence on the day the order is made.
Orders
Accordingly, on 15 October 2021, I made the following orders:
(1)I rescind the ISO effective upon coming into operation of the following order.
(2)The respondent is to be subject to a supervision order in the terms set out in the Annexure to these reasons for a period of four years commencing on 15 October 2021.
Anonymisation and suppression order
I also conclude, as I previously concluded in CA, that it is appropriate to make a non‑publication order 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, previously under the DSO 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 HRSO 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.
References to persons and places that might result in identification of the respondent and his location have been anonymised in these reasons on the same basis.
Annexure
_______________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 15 OCTOBER 2021
_______________________________________________________________________
Pursuant to section 48(1)(a) of the High Risk Serious Offenders Act 2020 (WA) (High Risk Serious Offenders Act), having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act, the Court orders that the Respondent be subject to a supervision order for a period of 4 years from 15 October 2021, on the following conditions:
You, [REDACTED], must:
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer (CCO) at the [REDACTED] Community Corrections Centre by 4.00pm, on Monday 18 October 2021 and advise the officer of your current name and address.
Report to and receive visits from a CCO assigned to you (your CCO) in accordance with this Order.
Notify your CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of your CCO, which includes complying with any reasonable direction of the officer, including a direction for the purposes of section 31 or 32 of the High Risk Serious Offenders Act.
Not leave or stay out of the State of Western Australia without the permission of your CCO.
Not commit a serious offence as defined in the High Risk Serious Offenders Act (serious offence) during the period of the Order.
Be subject to electronic monitoring under section 31 of the High Risk Serious Offenders Act.
ADDITIONAL CONDITIONS
Residence
Take up residence at [REDACTED] and spend each night at that address or at a different address only if such different address is approved in advance by your CCO.
Not to leave [REDACTED] without first seeking and obtaining approval in advance from your CCO.
Reporting to a CCO and supervision by a CCO
Be under the supervision of your CCO, report to and receive visits from your CCO at times and places as directed by your CCO, and comply with the lawful orders and directions of your CCO.
Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of your CCO. Should your pre‑approved employment require you to work at different locations, you are required to notify your CCO of any change of location where you are working, during working hours on the day you are working at the new location, or as otherwise directed by your CCO.
Treatment programmes and mental health
Consult and engage with any psychiatrist, psychologist, counselling service or medical practitioner as directed by your CCO to address issues arising from your past offending and your risk of committing a serious offence, including issues in respect of your mental health.
Comply with the requirements of all programmes designed to address your past offending behaviour and your risk of committing a serious offence, as directed by your CCO.
Comply fully with all treatment prescribed by any psychiatrist, psychologist or medical practitioner consulted by you pursuant to condition 12, including mental health treatment, EXCEPT that you are not required to take Selective Serotonin Reuptake Inhibitor medication or other antilibidinal/anti‑testosterone medication unless you consent to do so.
Permit any psychiatrist, psychologist, counsellor or medical practitioner to disclose to the Department of Justice any details of psychiatric, psychological or medical treatment and any opinions relating to your level of risk of committing a serious offence and your compliance with treatment.
Reporting to WA Police
Report to the Officer‑in‑Charge of the [REDACTED] Detectives Office situated at [REDACTED] by 4.00pm on Monday, 18 October 2021 and thereafter report to and receive visits from Police Officers at times and at locations as directed by the Officer‑in‑Charge of [REDACTED] Detectives Office or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).
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 order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of this order.
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act.
When requested, advise WA 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 used by you.
Disclosure/exchange of information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow your CCO, WA Police, or other person or agencies approved by your CCO, to interview any of your associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with victims
Have no contact, directly or indirectly, with the victims of any of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to condition 23, 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 any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Report to your CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997 (WA).
Criminal conduct
Not commit any offence contrary to section 202, section 203 or section 204 of the Criminal Code 1913 (WA).
Not commit any criminal offence, the maximum penalty for which includes imprisonment, and which involves violence, threats of violence, or the possession of weapons or offensive instruments.
Not possess, consume, or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to cannabis, unless the drug has been prescribed for you by a person duly authorized under the Medicines and Poisons Act 2014 (WA) and your use is in accordance with the instructions of the prescriber.
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
Curfew
Be subject to a curfew on the same terms as set out in section 32 of the High Risk Serious Offenders Act, such that you are to remain at and not leave your approved address as directed by your CCO from time to time.
When subject to the curfew under this order, 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.
When subject to the curfew under this order, 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.
Prevention of high‑risk situations
On the next occasion you report to your CCO, report any relationship you have formed with any person if the relationship is a friendship or a relationship of a domestic, romantic, sexual or otherwise intimate nature.
Maintain a daily diary of your movements, activities and associations as directed by your CCO and present the diary to your CCO and/or to a Police Officer upon request.
As directed by your CCO, make full disclosure regarding your past offending and this order to anyone with whom you commence a friendship or a relationship of a domestic, romantic, sexual or otherwise intimate nature, which disclosure can be confirmed by your CCO or a Police Officer.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by your CCO.
Not possess, consume, purchase, or use alcohol, unless approved in advance by your CCO.
Not go to 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 your CCO; or
(c) On the order of your CCO or a Police Officer.
Attend for and submit to urinalysis or other testing for alcohol or prohibited drugs as directed by your CCO or by a Police Officer, including accompanying such person to an appropriate location for such testing to take place.
Provide a valid sample for testing pursuant to condition 40.
Not remain in the presence of any person who you know or ought to know to be affected by a prohibited drug.
Not remain in the presence of any female who you know or ought to know to be affected by alcohol, unless the identity of that person is approved in advance by your CCO.
Not 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.
With the exception of public transport, not enter in or go on any vehicle with any female (other than [REDACTED]) or where any female (other than [REDACTED]) is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by your CCO.
Not enter or remain in any residential address in which a female (other than [REDACTED]) resides or is known to reside, unless authorised in advance by your CCO or as a consequence of your employment, provided that, if the purpose for entering the residence is as a consequence of your employment, you may enter and remain in the residence ONLY IF [REDACTED] or a work colleague is also present.
Not permit any female (other than [REDACTED]) to enter any residential address in which you reside, unless the identity of such person is approved in advance by your CCO. If you are in any other residential address and a female enters, you must remove yourself from that residential address immediately and you must inform your CCO and a Police Officer at your next scheduled meeting.
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 your CCO.
Advise your 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.
Not allow any person other than your CCO or a Police Officer access to any computer, telecommunication and/or electronic device referred to in condition 49, without prior approval of your CCO.
Enable device locking or password access of your computer, telecommunication and/or electronic devices; not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 49 or any online accounts, to any person other than your CCO or a Police Officer.
Upon request, permit your CCO or a Police Officer 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 your CCO or a Police Officer 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 your CCO.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by your CCO or a Police Officer.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Associate to the Honourable Justice Fiannaca
10 FEBRUARY 2023
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