The State of Western Australia v CF - [2021] WASC 20

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CF [2021] WASC 20
CORAM:   FIANNACA J
HEARD:   5 MARCH, 15 & 30 APRIL 2020
DELIVERED          :   15 JANUARY 2021
PUBLISHED           :   25 JANUARY 2021
FILE NO/S:   SO 7 of 2019
(Formerly DSO 7 of 2019)

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
CF
Accused

Catchwords:

Dangerous sexual offender - High risk serious offender - Division 2 hearing - Continuing detention order - Enactment of High Risk Serious Offenders Act 2020 (WA)

Legislation:

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

Result:

Continuing detention order granted

Category: B

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Accused	:	Ms S Oliver

Solicitors:

Applicant	:	State Solicitors Office from 23 December 2020, Director of Public Prosecutions (WA) until 23 December 2020
Accused	:	S Oliver Barrister & Solicitor

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

Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Liberato v The Queen (1985) 159 CLR 507
The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; (2008) 198 A Crim R 149
The State of Western Australia v Atkinson [No 2] [2020] WASC 379
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Lewis [No 2] [2020] WASC 377
The State of Western Australia v Narrier [No 5] [2019] WASC 17
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v Rao [2019] WASC 93
The State of Western Australia v ZSJ [2020] WASC 330

FIANNACA J:

The application and its history

Background

The respondent has a history of sexual offending against female children under the age of 13 years. At various times from age 11 to age 22, in Western Australia, he committed a large number of sexual offences against mainly prepubescent girls who were known to him.
The first sexual offence occurred sometime between December 2005 and 2007, when the respondent was between 11 and 13 years of age. He allegedly indecently dealt with his half-sister, BP, who was between 6 and 8 years of age at the time. The respondent was given a caution in respect of that incident, in 2007, so no conviction was recorded in respect of the offending. However, the respondent has admitted sexually interfering with BP in a number of ways, which I will discuss later.
The respondent next committed sexual offences between July 2009 and February 2010, when he was 15 years old. He committed the offences against the younger sisters of one of his friends: ARF, who was 7 or 8 years old, and ZF, who was 6 years old. The respondent was dealt with for those offences in 2012.
In the meantime, the respondent committed his next sexual offence in October 2010, when he was in foster care. He was 16 years old. He indecently dealt with CS, a 5-year-old girl who was living in the same foster care home as him. The respondent was charged with one count of indecently dealing with a child under 13, arising from that incident. He pleaded guilty to that charge and was sentenced in the Children's Court on 7 December 2010. He was released on a 3 month youth conditional release order (YCRO).
In 2011, the respondent, aged 17, committed a sexual offence against a 4-year-old child, MM, while at his neighbour's house.
On 27 July 2012, the respondent was convicted in the Children's Court, after trial, of two offences arising from his sexual abuse of ARF and ZF between July 2009 and February 2010 and one offence arising from his sexual abuse of MM in 2011. He was convicted of sexual penetration of a child under the age of 13 years in relation to ARF and indecently dealing with a child under the age of 13 years in relation to ZF. He was also convicted of indecently dealing with a child under 13 years in relation to MM. On 30 August 2012, the respondent was sentenced to 18 months' imprisonment conditionally suspended for 24 months for the offence against ARF, 9 months' imprisonment conditionally suspended for 24 months for the offence against ZF, and 6 months' imprisonment conditionally suspended for 24 months for the offence against MM, all orders to run concurrently.
One of the conditions of the conditional suspended imprisonment order (CSIO) in each case required the respondent to attend counselling. In March 2013, the respondent failed to attend a scheduled psychological counselling session and consequently was charged with three counts of breaching a CSIO.[1] He was convicted of those offences on 28 June 2013 and fined $50 for each offence. The court substituted a period of suspension of 18 months commencing 28 June 2013 in respect of each CSIO.
[1] Being one count for each CSIO imposed on 30 August 2012, although the breaching conduct was the same in each case.
As a convicted sex offender, the respondent had reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act). On 27 September 2013, he was convicted of two counts of failing to comply with his reporting obligations under the CPOR Act as a result of his failure to notify the relevant persons of his new address and new mobile phone number. He was fined $1,500 on each count.
On 2 December 2013, the respondent was convicted of a further three counts of breaching a CSIO after he again failed to attend a scheduled psychological counselling session and returned two positive tests for illicit substances in August 2013. He was fined $200 on each count. The court substituted a period of suspension of 16 months commencing 2 December 2013 in respect of each CSIO.
In March 2014, the respondent was charged again with one count of failing to comply with reporting obligations under the CPOR Act due to a failure to notify the relevant persons of his new mobile phone number. He was fined $500 in the Children's Court on 20 June 2014.
On 25 August 2014, the respondent was convicted of a further three counts of breaching a CSIO. The respondent had breached the CSIOs by re-offending (the March 2014 offence of failing to report as required by the CPOR Act), further positive tests for illicit substances and failing to attend a telecommunications course. On this occasion, because of the respondent's continued non-compliance, the President of the Children's Court cancelled the CSIOs which had been imposed (by way of substitution of the suspension period) on 2 December 2013, and ordered that the respondent serve 12 months' imprisonment for the offence against ARF, 6 months' imprisonment for the offence against ZF and 4 months' imprisonment for the offence against MM, to commence on 25 August 2014 and to be served concurrently. No further orders were made in relation to the breaches.
Although it was not known at the time the respondent was dealt with in the Children's Court on 25 August 2014, he had committed a sexual offence between 3 August 2013 and 5 August 2014 while he was subject to the CSIOs. The respondent was 19 or 20 years of age and in an intimate relationship at the time. The offence was committed against his partner's sister, who was aged 4 or 5 years. The respondent asked the girl to touch his penis, but she refused. They were interrupted by the girl's mother coming into the room. The respondent was subsequently charged and convicted of that offence in December 2017.
Although the respondent was eligible for release on parole for the sentence of 12 months' imprisonment imposed on 25 August 2014, he was denied parole because of his poor response to prior supervision and the fact that he had unmet treatment needs.[2]
[2] Exhibit 1, Book of Materials (BOM) 17. See also the Adult Community Corrections Parole Assessment, dated 21 January 2015, at BOM 469 ‑ 474.
After he was released from prison, the respondent committed a further sexual offence, this time against his partner's 13-year-old sister. That offence occurred between 5 August 2016 and 1 November 2016, when he was 22 years old.
The respondent was subsequently charged with one count of encouraging a child under the age of 13 years to engage in sexual behaviour in respect of the offending against the younger child and one count of sexually penetrating a child of or over the age of 13 years but under the age of 16 years in respect of the offence against the older child. He pleaded guilty and was sentenced for those offences in the District Court on 15 December 2017.
The respondent was sentenced to 12 months' imprisonment for the offence against the younger child and 3 years' imprisonment for the offence against the 13-year-old, to be served concurrently, resulting in a total effective sentence of 3 years' imprisonment. The sentence was backdated to commence on 29 December 2016, to reflect the time the respondent had spent in custody on remand for the offences.
Again, the respondent was made eligible for parole, but on 16 May 2018, parole was denied at the respondent's request.
That sentence was due to expire on 28 December 2019.

Commencement of the proceedings under the Dangerous Sexual Offenders Act 2006

On 31 July 2019, when the respondent was in custody in the final year of the sentence imposed on 15 December 2017, the Director of Public Prosecutions for Western Australia (DPP) made an application in the name of the State of Western Australia (the applicant)[3] for an order under Division 2 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) that ‑
(a)the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order); and
(b)alternatively, he be subject to conditions when not in custody (a supervision order).
[3] On 23 December 2020, the State Solicitor's Office took over carriage of the matter from the DPP.
The application was filed pursuant to s 8 of the DSO Act, which provided that such an application may be filed in relation to a person, referred to as 'the offender', who, at the time the application was filed, was under a custodial sentence for a serious sexual offence[4] or had been under a custodial sentence for a serious sexual offence and, since being discharged from that sentence, had been under a custodial sentence for another offence or other offences. The two offences for which the respondent was serving the terms of imprisonment imposed on 15 December 2017 were serious sexual offences for the purposes of the DSO Act. In accordance with s 8 of the DSO Act, the application was filed within the last 12 months of the total sentence imposed on that date.
[4] 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 for which the respondent was serving a custodial sentence were sexual penetration of a child of or over the age of 13 years, but under the age of 16 years and encouraging a child under the age of 13 years to engage in sexual behaviour, both of which were serious sexual offences for the purposes of the Evidence Act.
The application was made on the basis that the respondent is a serious danger to the community, in that there is an unacceptable risk that, if one of those orders is not made, the respondent will commit a serious sexual offence,[5] in particular, an offence of the kind he has previously committed against female children.[6]

Preliminary hearing

[5] Section 7 and s 17 of the DSO Act.

[6] See footnote 4. The offences of which the respondent has been convicted included sexual penetration of a child under the age of 13 years, sexual penetration of a child over the age of 13 years, but under the age of 16 years, and indecently dealing with a child under the age of 13 years, all of which were serious sexual offences for the purposes of the Evidence Act.

In accordance with s 14 of the DSO Act, the application was for an order to fix a date for the hearing of the present application for a Division 2 order, and for consequential orders under s 14, including an order requiring the respondent to be examined by experts, including at least one psychiatrist, for the preparation of reports for the hearing. Such an application requires the court to be satisfied, at a preliminary hearing, that there are reasonable grounds for believing that a court might find that the respondent is a serious danger to the community.
On 17 September 2019, Jenkins J heard the Division 1 application and determined that there were reasonable grounds for believing that the court might, under s 7(1) of the Act, find that the respondent is a serious danger to the community. Jenkins J also ordered, pursuant to s 14(2)(b) of the DSO Act, that the respondent be detained in custody until the conclusion of the application.

The Division 2 hearing

The Division 2 application was heard by me on 5 March 2020, 15 April 2020 and 30 April 2020 (the Division 2 hearing). I will set out below the evidence and arguments presented at the Division 2 hearing. It is sufficient to note at this stage that the respondent argued that the application should be dismissed on the basis that the respondent is not a serious danger to the community. In the alternative, the respondent submitted that he should be subject to a supervision order, as the court can be satisfied that the respondent would substantially comply with such an order, which would ensure that the community is adequately protected against any risk that the respondent would commit a serious sexual offence.
At the conclusion of the hearing, I reserved my decision. Regrettably, I was not able to give a decision before changes were made to the legislative scheme governing the application. As will appear below, the application now comes to be dealt with under the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act). The changes effected by the enactment of that statute (which repealed the DSO Act) do not substantially affect the issues to be determined or the manner in which I must approach the application. The evidence presented and the submissions made at the hearing of this application can be readily related to the consideration of the issues under the HRSO Act. In those circumstances, I did not consider it necessary to invite further submissions, and neither party applied to adduce further evidence or to make further submissions.
Nevertheless, it is necessary to outline the statutory scheme that now governs the application.

Enactment of the HRSO Act

On 9 July 2020, the HRSO Act received the Royal Assent, as a result of which pt 1 of the HRSO Act came into effect.[7] Other parts of the HRSO Act that are relevant to these proceedings came into force on 26 August 2020 (commencement day)[8] by virtue of proclamation pursuant to s 2(1)(c) of the HRSO Act.[9] Upon commencement of those parts of the HRSO Act, the DSO Act was repealed.[10]
[7] HRSO Act, s 2(1)(a) and compilation table.
[8] The term 'commencement day' has relevance for the purposes of s 124, and is defined in s 122 to mean 'the day on which this section comes into operation', which, by virtue of s 2(1)(c) and the proclamation referred to below, was 26 August 2020.
[9] High Risk Serious Offenders Act 2020 Commencement Proclamation 2020, cl 2 (SL2020/131; Western Australia, Government Gazette, 14 August 2020, page 2619).
[10] HRSO Act s 123.
However, by s 124(1) of the HRSO Act, as the application made under the DSO Act in these proceedings had not been finally determined by commencement day, the application and these proceedings continue and may be determined under the HRSO Act, and for the purposes of determining the application under the HRSO Act, the application is taken to have been made under the corresponding provision of the HRSO Act. By s 124(2), the application may be continued by the DPP. Further, by s 125, if an order made or direction given under the DSO Act is in effect on commencement day, it continues in effect and is taken to have been made or given under the corresponding provision of the HRSO Act.
The overall effect of the HRSO Act is to widen the scope of the regime that previously applied in respect of persons who came within the description 'dangerous sexual offenders' in the title of the DSO Act, so that the regime also applies to other offenders considered to be 'high risk serious offenders', being persons in respect of whom the court is satisfied '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'.[11] A 'restriction order' is a continuing detention order (CDO) or a supervision order, both of which are defined in similar terms as in the DSO Act.[12] The widening of the previous regime is achieved by the definition of 'serious offence'.[13] In addition to offences that previously came within the definition of 'serious sexual offence' under the DSO Act, parliament has determined that there are numerous other offences (most of which involve violence or some other particular danger to the community) from which the community requires protection by the making of a restriction order if there is an unacceptable risk the offender will commit such an offence.
[11] HRSO Act s 7(1).
[12] HRSO Act s 3 (definition of 'restriction order'), s 26 ('detention order') and s 27 ('supervision order').
[13] HRSO Act s 3, s 5 and sch 1.
For the purposes of these proceedings, however, it is sufficient to note that the HRSO Act operates largely as the DSO Act did in respect of serious sexual offences. Whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether he is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same. I will deal with those matters in more detail below.

Interim detention order

As discussed above, on 17 September 2019, at the conclusion of the Division 1 hearing, Jenkins J made an interim detention order in respect of the respondent, as the respondent's sentence was due to expire on 28 December 2019.
The respondent has remained in custody since then on that basis.

Statutory framework and relevant principles

It is necessary at this stage to provide a more detailed outline of the statutory framework and relevant legal principles that govern the application.
In The State of Western Australia v ZSJ[14] I made a comparative examination of the statutory framework under the DSO Act and the HRSO Act, and concluded that the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. I reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes. I was also of the opinion that the construction is confirmed by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General.[15] Of particular significance for present purposes is that the HRSO Act was intended to 'fully preserve' the provisions in the DSO Act that applied in respect of persons to whom that statute was directed, referred to as 'dangerous sexual offenders'.[16]
[14] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ).
[15] ZSJ [30]; Interpretation Act 1984 (WA), s 19(1)(a) and s 19(2)(f); Western Australia, Parliamentary Debates, Legislative Assembly, 26 June 2019, (Hansard) 4675b ‑ 4677a (Mr J R Quigley, Attorney General).
[16] Hansard, 4675.

A number of cases have been decided under the HRSO Act since ZSF, including at least two cases involving the substantive hearing of applications for restriction orders and one case involving a review of a continuing detention order.[17] The statutory construction and approach to the legal principles adopted in those cases is consistent with the views I adopted in ZSF. Therefore, I adhere to the views I reached in that case that the concepts and criteria in both statutes are substantially the same and that, consequently, 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.
[17] The State of Western Australia v Narrier [No 6] [2020] WASC 349 (Derrick J); The State of Western Australia v Lewis [No 2] [2020] WASC 377 (McGrath J); and The State of Western Australia v Atkinson [No 2] [2020] WASC 379 (McGrath J).
For convenience, I will outline again the statutory framework and legal principles I discussed in ZSF,[18] relating them to the circumstances of this case.
[18] ZSF [30] ‑ [63].
Pursuant to s 8, the objects of the HRSO Act are:
(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.
An application of the kind brought in these proceedings pursuant to s 8 of the DSO Act would now be made pursuant to s 35 of the HRSO Act. Whereas previously the application was for a Division 2 order under the DSO Act (being a continuing detention order or a supervision order made under s 17(1)(b)),[19] the application would now be for a restriction order, which is defined under s 3 of the HRSO Act to mean a continuing detention order or a supervision order.
[19] DSO Act s 3.
The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 respectively of the HRSO Act in similar terms to those used in the DSO Act. 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, as will appear from the reference to s 17 below.
As these proceedings were conducted under Division 2 of the DSO Act, it is necessary to consider the manner in which the court was required to deal with a Division 2 hearing, which was set out in s 17 of the DSO Act. Section 17 provided:
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
(2)Subject to subsection (3), in deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
(3)A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.
(4)The onus of proof as to the matter described in subsection (3) is on the offender.
As I noted earlier, s 17(1)(a) and (b) gave content to the terms 'continuing detention order' and 'supervision order', by virtue of s 3 of the DSO Act.
Section 7(1) of the DSO Act provided:
(1)Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2)The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied - (a) by acceptable and cogent evidence; and (b) to a high degree of probability.
A finding of 'serious danger' depended, therefore, on the existence of an 'unacceptable risk' that 'the person would commit a serious sexual offence' if the person were 'not subject to a continuing detention order or a supervision order'. If the court was satisfied in the manner provided in s 7(2) that there was an unacceptable risk of the kind described in s 7(1) of the DSO Act, it necessarily followed that the person concerned was a serious danger to the community.[20]
[20] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [66] (Wheeler JA); The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; (2008) 198 A Crim R 149 (GTR) [21] (Steytler P & Buss JA).
The provision in the HRSO Act that corresponds to s 17 of the DSO Act is s 48, which provides:
(1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
As I indicated in ZSF, the significant differences between s 48 of the HRSO Act and s 17 of the DSO Act are:
(1)the reference to 'high risk serious offender' instead of 'serious danger to the community';
(2)the content of what is meant by 'continuing detention order' and 'supervision order' in s 48 is to be found in separate provisions, namely s 26 and s 27 respectively of the HRSO Act;
(3)the condition concerning the commencement date of a supervision order in s 17 of the DSO Act is not reproduced in s 48 of the HRSO Act, but is replicated in amended form in s 27 of that Act; and
(4)the requirements of s 17(3) and (4) of the DSO Act are not reproduced in s 48 of the HRSO Act, but are replicated in s 29 of that Act.
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).
In my opinion, although the formulation of that provision differs from s 7 of the DSO Act, when one has regard to the language, context and overall structure of the relevant provisions in each statute, the matters about which the court must be satisfied are essentially the same. In particular, when dealing with the risk posed by a sexual offender, s 7 of the HRSO Act does not contain any criterion necessary to find a respondent to be a high risk serious offender that was absent in the DSO Act for the purposes of determining whether a respondent was a serious danger to the community. Again, that construction is confirmed by the second reading speech in respect of the relevant bill, in which the Attorney General said, when referring to the term 'high‑risk offender', that the bill was 'not intended to change the test under the [DSO Act] for whether the court makes a continuing detention order or a supervision order.'[21]
[21] Hansard, 4675.
The matters about which the court must be satisfied under s 7(1) of the HRSO Act are that:
(a)it is necessary to make a restriction order in relation to the offender;
(b)the necessity for the order stems from the need to ensure adequate protection of the community; and
(c)what the community must be protected against is the 'unacceptable risk' that the offender will commit a serious offence.
A finding that it is necessary to make a restriction order to ensure adequate protection of the community against 'an unacceptable risk that the offender will commit a serious offence' necessarily entails a finding that, if the offender were not subject to a restriction order, there would be an unacceptable risk he would commit a serious offence, which was the formulation in s 7 of the DSO Act. Similarly, while the latter provision did not speak of a need for the court to be satisfied that a continuing detention order or a supervision order was necessary, the findings required under s 7 of the DSO Act, when read with s 17 of the DSO Act, necessarily entailed a finding that a continuing detention order or a supervision order was necessary to adequately protect the community against an unacceptable risk that the person would commit a serious sexual offence.
That construction is supported by what was said by Wheeler JA in Williams in respect of what was meant by 'unacceptable risk' under the DSO Act, which, in my opinion, applies to the concept of 'unacceptable risk' under the HRSO Act. Her Honour said (emphasis added):[22]
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.
[22] Williams [63] - [65] (Wheeler JA).
The question of what was meant by 'unacceptable risk' under the DSO Act was considered further in GTR, where Steytler P and Buss JA said that 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).[23] In my opinion, those principles apply equally to the concept of 'unacceptable risk' as it relates to a 'serious offence' under the HRSO Act.
[23] GTR [27] (Steytler P & Buss JA).
It can be seen also that s 7 of the HRSO Act stipulates the same evidentiary requirement, standard of satisfaction and onus of proof as were stipulated in s 7(2) of the DSO Act. The need for the court to be satisfied '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.[24] 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.[25]
[24] GTR [28] (Steytler P & Buss JA).
[25] 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. Those matters are, in relevant respects, identical to the matters previously set out in s 7(3) of the DSO Act. The matters in s 7(3) of the HRSO Act are:
(a)any report prepared under s 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by the section;[26]
(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.
[26] The DSO Act, s 7(3)(a) referred to 'any report a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person'.
As s 7(3)(j) of the HRSO Act implies, the list of matters to be considered by the court is not closed. There is also clearly overlap between a number of the matters in the list, and some of the matters inform others.
It has previously been noted in respect of the corresponding provision of the DSO Act that, while s 7(3)(g) provides that the court must have regard to any criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean there is an unacceptable risk that the person would commit a serious sexual offence (now a serious offence) in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they have occurred. However, past behaviour is often a good indicator of future conduct. Further, offences other than serious offences may be relevant in assessing the risk of the respondent committing a serious offence in the future, because they may demonstrate behaviour which has the real potential to lead to serious offending.
Once a court has concluded that an offender is a high risk serious offender, it must make either a detention order (being an order that the respondent be detained in custody for an indefinite term for control, care, or treatment)[27] or a supervision order (being an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30 of the HRSO Act).[28] In deciding between those two options, the paramount consideration is the need to ensure adequate protection of the community.[29] 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 is detention and, therefore, the protection of the community will always favour such an order.[30]
[27] HRSO Act s 26(1).
[28] HRSO Act s 27(1).
[29] HRSO Act s 48(2).
[30] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
In my opinion, the following principles established in respect of the DSO Act apply equally to the HRSO Act. The court should choose the option which is least invasive or destructive of the respondent's right to be at liberty. At the same time it must ensure an adequate degree of protection of the community.[31] Therefore, if the court is not satisfied that a supervision order is capable of providing adequate protection of the community (having regard to the possible conditions which might be imposed, as identified in the evidence), it must make a continuing detention order.[32]
[31] The State of Western Australia v Latimer [2006] WASC 235 [49].
[32] Which includes if the court is left in doubt that a supervision order will provide adequate protection:
Williams [86] (Wheeler JA, Le Miere AJA agreeing).
Further, the requirements of s 17(3) and (4) of the DSO Act, set out above, are now reproduced in s 29 of the HRSO Act, which provides relevantly:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the HRSO Act to mean a condition that under s 30(2) of the HRSO Act must be included in the order. Under the DSO Act the standard conditions were specified in relevantly identical terms in s 18(1). The conditions specified in s 30(2) are 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);[33] 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;[34] and
(g)be subject to electronic monitoring under section 31.
[33] DSO Act s 18(1)(d) referred to 'section 19A or 19B', which correspond to s 31 and s 32 of the HRSO Act.
[34] DSO Act s 18(1)(f) referred to 'a sexual offence as defined in the Evidence Act 1906 section 36A', which included offences additional to those coming within the meaning of 'serious sexual offence'.
Therefore, the effect of s 29(1) and (2) (as was the case with s 17(3) and (4) of the DSO Act) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order.
In respect of the equivalent provisions of the DSO Act, I expressed my views as to what is meant by 'substantially comply with' in Director of Public Prosecutions (WA) v Hart.[35] Those views apply to s 29(1) of the HRSO Act. Accordingly, the words of that provision should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order.[36] 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.[37]
[35] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
[36] Hart [52].
[37] Hart [52]; The State of Western Australia v Narrier [No 5] [2019] WASC 17 [113].

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.[38] 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.[39] The same may be said of a respondent's engagement with supervision.
[38] Hart [50].
[39] Hart [50].
An obvious factor that is relevant to the assessment of whether a respondent will substantially comply is his history of compliance and non‑compliance with any previous court order. In this case, that will require consideration of the respondent's breaches of the CSIO imposed on 30 August 2012. Although that order was not the same as a supervision order under the HRSO Act, the respondent's failure to comply with the CSIO by failing to attend counselling sessions, failing to comply with his reporting conditions under the CPOR Act and returning positive urinalysis tests, may inform the question whether he has the capacity or willingness to comply with the conditions of a supervision order.
In my opinion, the following observations of Wheeler JA in Williams in respect of the DSO Act also apply in the context of the HRSO Act:[40]
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.
[40] Williams [86].
These proceedings were commenced on the basis that there was an unacceptable risk that the respondent would commit a serious sexual offence (as defined in the DSO Act)[41] if he were not subject to a continuing detention order or a supervision order. The question now is whether there is an unacceptable risk the respondent would commit a serious offence as defined in the HRSO Act. For the purposes of these proceedings, it is sufficient to say that, by s 3 and s 5(1) of the HRSO Act, a serious offence is an offence that is specified in Schedule 1 of that Act. Offences that were serious sexual offences under the DSO Act, and which are relevant to these proceedings, come within the definition in that they are now set out specifically in Division 1 of Schedule 1 of the HRSO Act, being 'offences that are serious offences in all circumstances'. In particular, the respondent's risk is alleged to relate to the types of offences he committed in the past, being offences of sexually penetrating and indecently dealing with girls under the age of 13 years and sexually penetrating a child of or over the age of 13 years, but under the age of 16 years. All of those offences were contrary to either s 320 or s 321 of The Criminal Code (WA), and are serious offences specified in Schedule 1 of the HRSO Act.
[41] See footnote 3 above.
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 the respondent not commit a serious offence during the period of the order (s 30(2)(f)). Although the respondent's risk is alleged to be in respect of sexual offending against children, and the application was brought on that basis, 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 Schedule 1. It is not an issue that requires further consideration in this case, as there is no suggestion the respondent might commit some other kind of serious offence.
Finally, in the event that a supervision order is made, s 27 of the HRSO Act picks up the requirements previously stated in s 17 of the DSO Act in terms of the commencement and duration of such an order as follows:
(2)A supervision order has effect in accordance with its terms -
(a)from a date stated in the order; and
(b)for a period stated in the order.
(3)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.

The evidence in these proceedings

The evidence adduced by the applicant in these proceedings consisted of a Book of Materials (BOM), which was tendered by the applicant without objection, some additional exhibits tendered at the hearing and oral evidence given by:
(1)Dr Peter Wynn Owen, the court appointed consultant forensic psychiatrist who examined the respondent for these proceedings;
(2)Ms Julie Hasson, a forensic psychologist who also examined the respondent for these proceedings;
(3)Dr Dylan Galloghly, Senior Clinical and Forensic Psychologist with the Forensic Psychological Services of the Department of Justice, who prepared a report titled Proposed Dangerous Sexual 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
(4)Mr Kyle Jarvie, a senior community corrections officer (SCCO), with the Community Offender Monitoring Unit (COMU) who prepared a Community Supervision Assessment Report.
The BOM, which comprises 762 pages, includes the reports of each of the witnesses and comprehensive materials concerning:
(1)the respondent's antecedents, including his criminal record, chronology of offending prepared by the DPP and information from the Department of Corrective Services about the respondent's behaviour in prison;
(2)the offence allegedly committed against BP between 2005 and 2007, including the statement of material facts and an incident report;
(3)the offence committed against CS in 2010, including the statement of material facts, transcript of the respondent's police interview and reports prepared for sentencing;
(4)the offences against ARF, ZF and MM for which the respondent was sentenced in the Children's Court on 30 August 2012, including transcripts of child witness interviews, transcript of the respondent's police interview, the statement of material facts, transcript of the sentencing and reports relied upon by the court in sentencing;
(5)the breach charges in 2013 and 2014, including the statements of facts, transcripts of relevant hearings and reports prepared in relation to the breaches;
(6)the 'index offences'[42] for which the respondent was sentenced on 15 December 2017, including transcripts of child witness interviews, transcript of his police interview, the statement of material facts, transcript of the sentencing and reports relied upon by the court in sentencing;
(7)a Treatment Progress Report prepared by Ms Ballantyne, the psychologist who has been providing counselling to the respondent in custody; and
(8)a Victim-Offender Mediation Unit Report.
[42] Referred to as such, because they are the offences for which he was serving the term of imprisonment at the time of the application and which provided the foundation for the application.
The respondent also gave evidence at the hearing.

Approach to consideration of the evidence and the issues

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). The matters in paragraphs (e) and (f), concerning the respondent's efforts at rehabilitation and the effect of his participation in any rehabilitation programs, would be expected to have a bearing on the findings in the reports and assessments referred to in paragraphs (a) and (b), but those findings and assessments may also have a bearing on the court's consideration of the efficacy of the respondent's efforts at rehabilitation and his participation in any rehabilitation programmes.
It is convenient to start with the respondent's antecedents, including his criminal history, in particular the offending that is most relevant to the assessment of his risk of committing a serious offence.

Respondent's antecedents

Social history

The summary of the respondent's history, which follows, is collated from various materials in the BOM, including pre-sentence and psychological reports prepared for criminal proceedings, reports from various programmes in which the respondent has participated (which will be outlined later in these reasons), and the reports prepared for these proceedings, in particular the reports of Dr Wynn Owen and Ms Hasson. Much of it relies on what the respondent has said over time, but some aspects of the history are confirmed by, or drawn from, collateral evidence referred to by the authors of the various reports, including information from members of the respondent's family and the records of the Department for Child Protection, which intervened to place the respondent in foster care as a child. The respondent has been inconsistent from time to time about some of the details of his history. As will emerge later, aspects of his personality, together with my own assessment of his evidence in these proceedings, give cause to question the reliability of some of the information he has provided about his childhood.
The respondent is 26 years old. He is the only child from his parents' relationship.
The respondent's parents separated soon after he was born. It appears it was a short-lived relationship and the respondent's father left when the respondent was about 2 or 3 months old.[43] The respondent has said that he knows nothing about his father other than his father's name and that, according to the respondent's mother, he was a violent man and the relationship ended due to his violence towards her.[44] The respondent told Dr Wynn Owen that 'apparently [his father] visited when [the respondent] was 2 or 3', but he has no recollection of it.[45] The respondent has had no contact with his father since that time. He indicated to the author of the Community and Youth Justice (CYJ) Court Report in 2011 that 'not knowing his father or his father's personal circumstances has deeply affected his own sense of identity'.[46]
[43] BOM 738 (Dr Wynn Owen's report, 18.12.2019, page 12).
[44] BOM 685 (Ms Hasson's report, 25.11.2019, [2]) and 277 (Community and Youth Justice Court Report, 1.12.2011, page 2).
[45] BOM 738 (Dr Wynn Owen's report, 18.12.2019, page 12).
[46] BOM 277.
The respondent's accounts of his early childhood indicate that he had a happy start to life despite the absence of his father. He was raised in his first few years by his mother and his maternal grandparents, with whom he has always enjoyed a close relationship. He has said that his earliest memories are happy, particularly spending time with his grandfather, whom the respondent has described as the most important and positive male figure in his life.[47]
[47] BOM 685 (Ms Hasson's report, 25.11.2019, [2]) and 738 (Dr Wynn Owen's report, 18.12.2019, page 12).
The respondent's mother started a new relationship when the respondent was around 2 years old. The respondent has indicated that, for the first few years, he was happy in that home environment and he had a good relationship with his stepfather, Mr P. However, he has said that his life changed dramatically after the birth of his half-sister, BP, when he was 5 years old. He told Ms Hasson that he felt cast aside by Mr P and his family.[48] More generally, he has said that BP was treated as a favourite. Despite that, he has said that he bonded well with BP. The respondent has also said that his mother made a special effort to spend time with him.[49]
[48] BOM 686.
[49] BOM 686 (Ms Hasson's report, 25.11.2019, [4]).
The respondent told Dr Wynn Owen that he was 'increasingly subject to physical abuse [by Mr P] and exposed by [Mr P] to physical and sexual abuse by others'.[50] It is not clear whether the respondent was referring to a period when his mother was still living with Mr P, or to a later period after his mother had left. The fact that he described being exposed by Mr P to abuse by others would suggest it was the later period. What is apparent from other accounts given by the respondent is that Mr P was also physically violent towards the respondent's mother. The respondent told Ms Hasson that his mother left Mr P soon after BP was born, taking both the respondent and BP to live with her at a friend's house. That experience was unsettling and apparently traumatic for the respondent and BP, in part because of the apparently dysfunctional character of the woman with whom they were living.[51]
[50] BOM 738.
[51] BOM 686 (Ms Hasson's report, 25.11.2019, [5]).
The respondent's mother subsequently returned with the children to live with Mr P. However, according to the respondent's account to Ms Hasson, his mother had an affair with another man, taking the respondent with her when she would go to that man's home. The respondent would sleep over, sharing a bed with the man's daughter.[52] The respondent told Ms Hasson that he and the girl would 'act out' what they had seen the respondent's mother doing with the man.[53] Apart from what the respondent has said about his sexual conduct with his half-sister, BP, these appear to be the earliest sexual experiences described by the respondent. He described them as 'exploratory and mutual'.[54]
[52] BOM 686 (Ms Hasson's report, 25.11.2019, [5]).
[53] BOM 686 (Ms Hasson's report, 25.11.2019, [5]). The respondent also told Ms Roxanne Buktenica, a clinical psychologist who prepared a psychological report for the court in December 2010 (BOM 349-353), that 'he had witnessed his mother and her partner engaged in sexual behaviours on numerous occasions': BOM 351.
[54] BOM 686 (Ms Hasson's report, 25.11.2019, [5]).
The respondent's mother and Mr P separated in 2002, when the respondent was about 8 years old.[55] The respondent's mother left the home, and the respondent and BP were left in the care of Mr P. The respondent has said that, after his mother left, he was locked in his room and beaten regularly by Mr P, who drank heavily and smoked cannabis daily.[56] The respondent has said he had no contact with his mother and grandparents for a long time, as a result of a decision by Mr P to prevent such contact.[57]
[55] The CYJ Court Report in December 2011 (being much closer to the childhood events) confirms the separation was in 2002 (see BOM 277), although the respondent told Ms Hasson he was 6 or 7, which would have placed the event in 2001 (see BOM 686, [6]).
[56] BOM 277 (CYJ Court Report, 1.12.2011 page 2) and 686 (Ms Hasson's report, 25.11.2019, [6]).
[57] BOM 686 (Ms Hasson's report, 25.11.2019, [7]). See also BOM 298 (Pyschological Pre-Sentence Report of Bart Wszola, Registered Psychologist, 26.12.2012 (Mr Wszola's report), page 2).
The respondent continued to live with his stepfather until 2006 when he went back to live with his mother. The records of the Department of Child Protection (DCP) do not indicate why the respondent returned to his mother in 2006. As I have outlined, the respondent has said he was treated poorly by Mr P. However, it is also the case that the respondent was alleged to have been sexually abusing his half-sister, BP, during 2006, as will appear below, and Mr P appears to have reported the conduct to the police on 27 February 2007, a short time after the respondent returned to his mother.[58] Comments made by the respondent's counsel at the sentencing hearing on 30 August 2012 indicated that, whatever vestige of a relationship there may have been between the respondent and Mr P, it was broken as a result of the sexual incidents involving BP.[59]
[58] BOM 108 (Agreed Statement of Material Facts complainant BP) and 109 (Incident Report).
[59] BOM 311.
The respondent's mother had remarried in 2004 and was living with her husband, Mr E, when the respondent returned to live with her late in 2006. The respondent has said that Mr E was physically abusive towards both him and his mother. In 2007, at the age of 13, and within 12 months of returning to live with his mother, the respondent sought the assistance of DCP to find alternative accommodation. A court order was made in December 2007 placing the respondent in the care of DCP until the age of 18 years. According to enquiries made by DCP at the time, it seemed that 'abandonment' was a key contributing factor to the respondent's call for assistance.[60] The respondent's former DCP officer confirmed that the respondent had been living in an unhealthy home environment, and that both neglect and physical abuse had been 'substantiated' by DCP.[61] However, I note that when interviewed by the psychologist, Mr Wszola, in August 2012, for the purposes of a pre‑sentence report for proceedings in the Children's Court on 30 August 2012, the respondent said that Mr E had not been physically abusive; rather, he had been verbally and emotionally abusive towards the respondent.[62]
[60] BOM 278 (CYJ Court Report, 1.12.2011, page 3).
[61] BOM 278 (CYJ Court Report, 1.12.2011 page 3).
[62] BOM 299.
The respondent has said that his poor relationship with Mr E contributed to the fact that he frequently ran away and refused to come home.[63] I deal below with other contextual matters that should be taken into account when considering the respondent's account of his relationship with Mr E.
[63] BOM 687 (Ms Hasson's report, 25.11.2019, [8]).
While in the care of DCP, from December 2007, the respondent was placed in a number of hostels and foster homes. He described to Ms Hasson a history of physical abuse and assault while in care which prompted him to run away from various placements and to live a transient and unstable lifestyle for a year or so.[64] During that time, the respondent was exposed to drugs, alcohol and casual sex. Despite the instability and exposure to potential harm, the respondent spoke of the period with fondness, when interviewed by Ms Hasson, appearing to have relished the freedom and the fact that he was able to get away with a great deal of criminal and antisocial activity, without real consequences.[65] His criminal record shows that he was charged with a number of offences during that period, including criminal damage offences, home burglary, stealing, stealing a motor vehicle and assaulting public officers, for which he received no punishment or was placed on a Youth Community Based Order.[66]
[64] BOM 687 (Ms Hasson's report, 25.11.2019, [9]).
[65] BOM 687 (Ms Hasson's report, 25.11.2019, [9]).
[66] BOM 6 - 7.
In 2009, the respondent was returned to the care of his mother and Mr E, as there were no more suitable placements available through DCP. By that time, his mother was in ill health and had been confined to a wheelchair. Despite parenting programs, counselling and support being sought (and, it would seem, provided) to assist the respondent's mother to care for him, neither she nor Mr E were able to provide the care and support he required, and the respondent left home, with the support of DCP, after 18 months (in July 2010), when he was 16 years old.

I note that it was during the period the respondent was living again with his mother and Mr E, when the respondent was 15 years old, that he committed the sexual offences against ARF and ZF, who were his friend's sisters. It is also apparent that, after he left home in July 2010, the respondent was again in foster care, as the offence against CS in October 2010 occurred when he and CS were in the same foster home.
The respondent returned to his mother's home periodically. I note that the respondent committed the offence against MM on 21 June 2011, while he was living in Pinjarra with his mother. MM lived next door.[67]
[67] See the Statement of Material Facts (BOM 241) and the transcript of the respondent's electronic record of interview on 23 June 2011 (at BOM 244).
It is also apparent from the submissions made by the respondent's counsel at his sentencing on 30 August 2012 that the respondent had been living from time to time with his mother and Mr E before he came to be sentenced (noting that he was in custody on remand for a period of time), and that they were still willing to have him back in their home, although counsel acknowledged there were conflicts that may have made that difficult. Those conflicts, as described by the respondent's counsel at the time and referred to subsequently by the sentencing judge,[68] appear to have related to the respondent's mother and Mr E wanting to set rules and boundaries to ensure the respondent met his responsibilities in the home and did not get into trouble when he went out. Counsel acknowledged that they had justifiable concerns 'to try to limit [his] freedom, to try to limit where he's going, to want to know where he's going', to which the respondent was resistant.[69] This is the context I referred to earlier, which should be taken into account when considering what the respondent has said about his relationship with Mr E.
[68] BOM 311-313, 329.
[69] BOM 312.
While the respondent had previously described being abused by Mr E, and again, in the context of interviews for these proceedings, has referred to Mr E being 'psychologically and emotionally abusive',[70] the picture emerging from his counsel's sentencing submissions in August 2012 is of a conflict to which the respondent contributed by contrarian behaviour, stemming from a perceived curtailment of his freedom. This needs to be considered in the context of the respondent's apparent fondness for the antisocial life he had when 'bouncing' between foster placements.[71] That is not to say that Mr E's demands or responses may not have been excessive at times, or that they did not involve a degree of psychological abuse. However, when interviewed for the purpose of these proceedings, the respondent told Ms Hasson that he feels indifferent to Mr E and that both he and Mr E were 'alpha males', which made the home environment unhealthy, as they both wanted to be in control, resulting in a 'combative and conflictual' relationship, with the respondent's mother 'stuck in the middle'.[72] It seems to me that the dysfunction in the respondent's relationship with Mr E was, to some extent, a symptom of the respondent's dysfunctional development to that point in time and affected by the respondent's personality traits.
[70] BOM 687 (Ms Hasson's report, 25.11.2019, [11]).
[71] BOM 687 (Ms Hasson's report, 25.11.2019, [9]).
[72] BOM 687 (Ms Hasson's report, 25.11.2019, [11]).
The relationship between the respondent's mother and Mr E ended when the respondent was in his late teens. The respondent then lived with his mother for a short time with some elderly people until they were evicted because the house was demolished.[73]
[73] BOM 687 (Ms Hasson's report, 25.11.2019, [11]).
The respondent then moved in with CR (his girlfriend at the time) and her mother. It appears that the period during which he was with CR was again marked by transience and instability, with frequent moves, until they eventually settled in a house in the metropolitan area. They were living there at the time the respondent was arrested for his most recent offending.
In summary, despite the absence of his natural father, the respondent's early years were happy. However, from about the age of 5, he endured neglect, trauma and dysfunctional living environments for significant parts of his life until his late teens. His middle teens were characterised by instability. He lacked a good male role model, but he generally maintained a good relationship with his mother. The respondent has continued to describe his mother in positive terms and he has maintained that she has always been supportive of him.[74] However, his account to Ms Hasson suggests that his mother's affair with a man when the respondent was still of a tender age exposed him to sexual behaviour that led him to 'acting out' sexually with another child. I deal in more detail below with the evidence concerning the respondent's sexual development. The respondent has also been clear in his perception that his mother made poor choices in her relationships and that even since separating from Mr E, she has been in a 'series of bad relationships'.[75]

Education and employment

[74] BOM 687 (Ms Hasson's report, 25.11.2019, [11]).

[75] BOM 687 (Ms Hasson's report, 25.11.2019, [11]).

The respondent described to Ms Hasson 'an unhappy, disrupted and unstable school experience' that included behavioural problems, including fighting with other children and causing damage while in primary school.[76] These issues appear to have stemmed from difficulties with emotional regulation. They resulted in regular punishment both at school and at home. The respondent never felt settled in high school, because he attended a number of different high schools due to his changing foster placements. He told Ms Hasson that he truanted more and became more violent in high school. The only positive thing he mentioned to Ms Hasson about his schooling was that he had one primary school teacher who was kind to him. On the other hand, in his interview with Dr Wynn Owen, while the respondent referred to the fights (saying they started at pre-primary), getting into trouble and causing damage by 'smashing all the windows in the classroom' when he was 5 or 6, he also said that he was 'one of the smartest in the school'.[77] Dr Wynn Owen noted that both the respondent's behavioural problems at school and his academic potential were supported by information in the historical materials.[78] A Youth Education Advisor in 2012 stated that the respondent 'was a bright student' and that the records indicated that the respondent had 'a history of achieving above average grades despite a number of suspensions and other absences from school.'[79]
[76] BOM 688, [13].
[77] BOM 739.
[78] BOM 739.
[79] BOM 739.
It is not clear when the respondent's behavioural problems started, relative to the birth of BP. On his own account, he had had a relatively happy life until BP was born, when he was 5. However, he has said he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) around the time he was in pre-primary, and that he was treated with dexamphetamine until he was in Year 5 (which would be when he was 10 years old).[80] In January 2015, the respondent told the author of the parole assessment report that his mother had removed him from the medication regime because she was concerned about the long term effects of the medication on him.[81]
[80] BOM 736 (Dr Wynn Owen's report, 18.12.2019, page 10).
[81] BOM 472 (Adult Community Corrections Parole Assessment, 21.1.2015, page 4).
The respondent attended high school until Year 10, leaving school when he left his mother's care. He subsequently completed a three-month 'Weld for Life' welding and metal fabrication course between September and December 2010. He told Ms Hasson it was the first time he enjoyed what he was studying and he successfully completed the course.[82]
[82] BOM 688, [15].
The respondent told Dr Wynn Owen he has no history of paid employment of more than a week's duration, saying he had tried looking for work, but 'could never really hold work'.[83] On the other hand, he told Ms Hasson that, after completing the welding course, he worked for three months with a company making false ceilings, and at later times he also worked a few days in another labouring job, and then briefly in a timber mill in Pinjarra.[84] However, as Ms Hasson noted, unemployment has been an ongoing issue for the respondent, and there have been periods when he has supported himself through crime.

Substance use

[83] BOM 740.

[84] BOM 688, [16].

The respondent has a history of alcohol and substance abuse beginning in childhood. He has consistently said that he mainly used alcohol and cannabis, but otherwise has not been consistent in the history he has given. He told Ms Hasson that he was introduced to those substances by peers in the foster system.[85] He told Dr Wynn Owen that he was first given alcohol by his stepfather and friends of his stepfather when he was about 10. He said that his intoxication at that time was 'associated with sexual abuse by adult males'.[86] He told Dr Wynn Owen that he continued drinking alcohol when he was in foster placements and he was regularly intoxicated, which was associated with a range of antisocial behaviours, including fighting, stealing, criminal damage and motor vehicle offences.
[85] BOM 688, [17].
[86] BOM 734.
From 24 March 2015 to 11 June 2015, the respondent completed the Pathways Program while serving the sentence imposed on him in 2014 (after his breaches of the CSIOs imposed in 2012). The programme provides treatment to individuals who have a history of offending behaviour and substance use problems.[87] It was noted in the Pathways Program completion report (dated 10 August 2015), that the respondent had said he 'couldn't control his drinking' around the time of the sexual offences for which he was imprisoned, being the offence committed on CS in 2010.[88] It was also noted in that report that the respondent had admitted the offending when interviewed for the Parole Assessment report (having previously denied the offending), but had claimed he could not remember the offences, as he was under the influence of alcohol and drugs.[89]
[87] BOM 475.
[88] BOM 476.
[89] BOM 476.
The Parole Assessment report (dated 21 January 2015) indicated that the respondent had been inconsistent in what he had said about that offending. While he admitted committing the offence, 'having come around to [accepting] it during [his] imprisonment', he claimed he did not remember the offence or why he did it, yet asserted that not all of the Statement of Material Facts was correct. It was reported that he refused to explain what he believed to be correct, asserting that he was 'drunk' at the time of the offending.[90] He also said that, at the time of the offending, he was experiencing a lot of stress, due to personal issues in his life regarding his immediate and extended family, and he had turned to excessive alcohol and cannabis use to cope with the stress.[91]
[90] BOM 469.
[91] BOM 469.
Dr Wynn Owen noted that the respondent had previously reported using cannabis regularly from his early teens and that it remained his favoured drug before he was imprisoned for the most recent sexual offending. The respondent had also previously said he would like to continue using the drug. When interviewed by Dr Wynn Owen, the respondent said he would not use cannabis or alcohol if that were a condition of any order, but he 'would return to social use if it were not'.[92]
[92] BOM 734.
Ms Hasson noted that previous psychological reports (for sentencing hearings) had suggested that the respondent had only used alcohol and cannabis, but during Ms Hasson's interview with the respondent, he had said that he was a 'polydrug' user, 'taking whatever he was given for free as he "didn't care" what he took'.[93] He believed that one of the substances he had used was crystal methylamphetamine.[94] I note that the respondent had told Mr Wszola in August 2012 that he had used methylamphetamine for a brief period, but he was relying on what his friends had told him, because he could not remember.[95]
[93] BOM 688.
[94] BOM 688.
[95] BOM 300.
The respondent claimed to Ms Hasson that he had lessened his use of alcohol because of gastrointestinal health issues, and he no longer considered alcohol use to be an issue for him.[96] He had made a similar claim to Mr Wszola in August 2012, that he 'did not drink to get drunk' anymore because of 'bad stomach acids'.[97]

Sexual development and intimate relationships

[96] BOM 688.

[97] BOM 300.

The respondent has given varying accounts over the years about his sexualisation as a child and his first sexual experiences. There have been some consistent threads, but some significant events have not been recounted to all authors of reports who have questioned the respondent about his sexual development. Some omissions and differences in details might be due to the vagaries of memory, but others are more difficult to explain.
It would appear that the respondent's first exposure to sexual material was in early childhood, possibly as early as the age of 6, when he would look at his stepfather's (Mr P's) pornographic magazines and DVDs, which the respondent has said were left in plain sight around the house. He told Ms Hasson he was fascinated by the materials, but that if Mr P caught him looking at them, he would get a 'hiding'.[98]
[98] BOM 689.
The respondent told Mr Wszola in August 2012 that he 'needed someone to try out what he saw in the magazines', and that, as a consequence, he commenced touching his half-sister, BP, 'inappropriately' and got her to give him oral sex.[99] However, he said that BP was about 5 or 6 years of age at the time, which would make the respondent 10 or 11. The respondent expressed a great deal of shame and regret in respect of those actions.
[99] BOM 299 ‑ 300.
If the respondent's estimation of BP's age is correct in relation to the sexual acts described in the preceding paragraph, then they are not the earliest sexual experiences described by him. As I noted earlier,[100] the respondent told Ms Hasson about 'acting out', with a girl about his age, the sexual behaviour they observed between the respondent's mother and the man with whom she was having an affair (the girl's father). As this occurred after BP was born and while the respondent's mother was still in a relationship with Mr P, it must have been when the respondent was 6 to 8 years of age. As I noted earlier, the respondent described the activity as mutual and exploratory.
[100] See [79] above.
It appears the respondent made no mention of the experiences with that girl when he was interviewed by Dr Wynn Owen. Instead, he told Dr Wynn Owen that he and BP were 'introduced to doing things by a guy across the road', when he (the respondent) was 7.[101] On that account, the respondent's sexual conduct with BP was not the result of the respondent wanting to try out what he had seen in his stepfather's magazines, but something he was procured to do by a neighbour. The respondent told Dr Wynn Owen that he used to do the same thing with other girls at school,[102] although it is not clear whether he was referring to the same timeframe or a later time.
[101] BOM 740.
[102] BOM 740.
The respondent's account to Ms Hasson of the events concerning the neighbour appears to have been more detailed. He said the neighbour was an 'older teen' who had sexually abused him and had coerced him through threats and intimidation to engage in sexual activity with BP, which the neighbour would watch. The respondent said BP was 2 or 3 years old when this happened, so he would have been 7 or 8. Again, the respondent expressed shame and regret for his behaviour in respect of BP.[103]
[103] BOM 689, [21].
The respondent also told Ms Hasson that when he was living with his stepfather, a friend of his stepfather tried to fondle him. He said he felt uncomfortable about it, but when he spoke up about it, he was not believed by his stepfather and he was beaten up by the perpetrator. He also told Ms Hasson that during the same period, he was 'raped in the family home' by an unknown assailant, and that, as a result of that incident, he learned to fight back. Finally, he told Ms Hasson about an incident in which two males attempted to sexually assault him when he was in foster care, but he managed to fend them off. He said that, as a consequence of the experiences he had when he was living with his stepfather, he had a lot of anger and would lash out with minimal provocation.[104]
[104] BOM 689 ‑ 690, [21].
It is apparent then that the respondent appreciates from personal experience the significant harm sexual abuse or attempted sexual abuse can have on a child. However, as will appear below, his perception of whether sexual conduct by an adult with a child constitutes sexual abuse appears to depend on whether his own experience was pleasurable.[105]
[105] See [113] below.
The respondent has said that he commenced puberty at a very early age, experiencing his first erection at the age of 8 years. He told Ms Hasson that no one discussed sexual matters with him, and he acquired sexual knowledge experientially.[106]
[106] BOM 690, [22].
The respondent has said that the first time he had sexual intercourse (which I have understood to refer to penile penetration of the vagina) was with an older girl (around 17 or 18 years old). He told Dr Wynn Owen that this occurred when he was aged 12.[107] That was also what he said to Ms Buktenica in December 2010.[108] In August 2017, he told Ms Cinzia Zuin, the psychologist who prepared a psychological report for the respondent's sentencing in December 2017, that he was 13 at the time of that sexual experience.[109] During his counselling with Ms Sarah Ballantyne, the Senior Counselling Psychologist who has been treating the respondent during his most recent term of imprisonment, the respondent said he was 12 or 13 when he first had 'consensual' sexual intercourse.[110] However, he told Ms Hasson that it was when he was aged 9.[111] That was also what he said to Mr Wszola in August 2012.[112] He told Mr Wszola it was on his first night in a DCP hostel.[113]
[107] BOM 740.
[108] BOM 351.
[109] BOM 624, [8].
[110] BOM 668 (Psychological Intervention Completion Report of Ms Ballantyne, 29.10.2019, [23]). Ms Ballantyne noted that she addressed with the respondent the fact that it was not possible to consent to sexual activity at that age. The respondent indicated that he understood that intellectually, but he maintained it was the first time he had reached orgasm and he had received positive appraisal and reinforcement of his 'performance' from his partner.
[111] BOM 690, [22].
[112] BOM 300.
[113] BOM 300.
In relation to that first experience of sexual intercourse, and in the context of the respondent having told Ms Hasson it was when he was 9 years old, Ms Hasson reported that the respondent accepted that 'in hindsight this experience is likely to be categorised by others as sexual abuse', but he told her that 'the memory does not sit uncomfortably', and he continued to view the experience as pleasurable.[114] It appears then that, while some of the respondent's experiences of sexual abuse as a child have given him an understanding of the harm such abuse can cause to victims, he continues to have a distorted view about the appropriateness of such abuse in circumstances which he found to be pleasurable.
[114] BOM 690, [22].
When interviewed by Ms Hasson, the respondent described himself as sexually promiscuous during his teenage years, stating that he had numerous sexual partners, all of a casual nature.[115] He told Dr Wynn Owen that he thinks he has 'always been addicted to sex' and that he had a series of short relationships with same age peers whom he encountered while in DCP care.[116] Similarly, the respondent told Dr Galloghly that the environment in the DCP system was 'highly sexualised' between the children, and that adults were also involved.[117] He told Ms Hasson he never took precautions against sexually transmitted illnesses, and that he engaged in sex frequently because it made him feel good and girls praised him for his prowess, which enhanced his reputation within his peer group and increased his self‑esteem, coming from a position of having always been told he was 'good at nothing'.[118] Similarly, he told Dr Wynn Owen that sex was the one thing he had always been told he was good at.[119]
[115] BOM 690, [23].
[116] BOM 740.
[117] ts 227.
[118] BOM 690, [23].
[119] BOM 740.

The respondent submitted that the evidence of the expert witnesses was to the effect that two things are needed to mitigate the respondent's risk of reoffending: continuing treatment by way of individual counselling and supervision.[620] The respondent further submitted that both of those requirements can be met if a PSSO is made.[621]
[620] ts 399.
[621] ts 399.
With respect, I consider the respondent's characterisation of the evidence of the expert witnesses to be an unreasonable simplification, having regard to the evidence and analysis I have set out above. Nevertheless, I have considered the submission in respect of the possible imposition by the Prisoners Review Board of a PSSO. As a general proposition, I accept that if other measures (including a PSSO) would adequately mitigate an offender's risk of committing a further serious offence for the period that the risk is likely to exist, and there is evidence that such measures will be in place, then that would affect the determination of whether it is necessary to make a restriction order to ensure adequate protection of the community against what would otherwise be an unacceptable risk.
The first issue to be determined is whether a PSSO could be imposed at this stage. It will be recalled that the Prisoners Review Board considered the issue and declined to make an order before the respondent's sentence (imposed on 15 December 2017) expired.
Section 74D of the Sentence Administration Act under which a PSSO may be made was amended after the respondent made oral submissions and filed further written submissions.[622]
[622] High Risk Serious Offenders Act 2020 Pt. 9 Div. 4 (No 29 of 2020) (the Amending Act), s 108 (commenced 20 August 2020).
Section 74D of the Sentence Administration Act now provides:
74D. Board may make PSSO
(1) Before the end of a prisoner's term, the Board must consider whether a post‑sentence supervision order should be made in respect of the prisoner.
(2) Subsection (1) applies whether or not the prisoner is subject to an early release order.
(3) Subject to subsection (5), the Board must make a PSSO in respect of the prisoner if it considers that the order is necessary for the prevention of harm to the community from further offending by the prisoner.
(4)In considering under subsection (3) whether a PSSO is necessary, the Board must have regard to —
(a)the PSSO considerations relating to the prisoner; and
(b)the report made by the CEO under section 74C; and
(c)any other information about the prisoner brought to its attention.
(5) The Board must not make a PSSO in respect of a serious offender under restriction.
By s 74A, 'prisoner' means (relevantly for present purposes) a person who is serving a fixed term for a serious offence. Section 74A also provides that 'serious offence' has the meaning given in s 5 of the HRSO Act. Consequently, s 74D applied to the respondent, as the term he was serving when this application was commenced was a 'serious offence', as discussed earlier in these reasons. I note that s 74A previously defined 'prisoner' to mean a person serving a fixed term for a serious violent offence. It is sufficient to say that the definition of 'serious violent offence' included the sexual offences for which the respondent was sentenced on 15 December 2017.
Subsection (5) of s 74D was added by the amending legislation. By s 74A, 'serious offender under restriction' has the meaning given in s 3 of the HRSO Act, which provides that the term means 'a person who is subject to a restriction order or an interim supervision order'.
Section 74E of the Sentence Administration Act provides:
74E. Nature of PSSO
(1) A PSSO is an order that the person specified in the order (the supervised offender) must during the PSSO period comply with -
(a) the standard obligations in section 74F; and
(b) any of the additional requirements in section 74G that are specified in the PSSO.
(2) Subject to section 74K(2), the PSSO period is a period of not less than 6 months and not more than 2 years, as the Board specifies in the order, beginning on -
(a) if the supervised offender is not released on parole — the day on which the offender is released after serving the offender's term; or
(b) if the supervised offender is released on parole — the day after the day on which the offender's term ends.
The provisions of s 74E were in similar terms before the amendments made by the Amending Act.[623]
[623] Section 74E was amended by s 109 of the Amending Act.
An apparent obstacle to the respondent's argument is that the consideration by the Prisoners Review Board of a PSSO must occur before the end of a prisoner's term: s 74D(1). The respondent argued that this requirement may be taken to be for the purposes of procedural fairness, but did not preclude consideration and the making of a PSSO after a prisoner's term has expired. The respondent submitted that the period of a PSSO may commence some time after the end of the relevant term that provides the foundation for the making of the PSSO, because the day the prisoner is released after serving that term (see s 74E(2)(a)) may be delayed if the prisoner is serving a cumulative term for an offence other than a serious offence. While that may be so, the respondent did not explain how detention pursuant to an interim detention order could be equated to a cumulative term for another offence.
The respondent submitted that there is nothing to prevent the Prisoners Review Board from reconsidering whether a PSSO should be made after a term has expired, when consideration was first given while the prisoner was still serving the sentence.
On its face, s 74D only stipulates when consideration is to be given to a PSSO, not when it can be made. Nevertheless, having regard to the whole of the statutory scheme relating to PSSOs, I am of the opinion that there are difficulties with the respondent's argument in the context of a prisoner whose sentence has expired and is being held on an interim detention order. Consideration would need to be given to the impact of s 74D(5), which prevents the making of a PSSO if a restriction order has been made. However, having regard to the final conclusions I have reached about the merits of the respondent's argument, it is not necessary to resolve the question of whether a PSSO could be made in this case. It must be noted, however, that, in circumstances where the Prisoners Review Board has not yet decided to make a PSSO, the respondent's argument involves an invitation to the court to determine the issues in the application on a speculative basis. In my opinion, such an approach is not consistent with the paramount consideration of ensuring the adequate protection of the community.
The respondent relied on the fact that, under the PSSO statutory scheme, a number of conditions can be imposed if a PSSO is made. Section 74F contains standard conditions which require reporting, notifying change of address and complying with lawful directions of a supervision officer.[624] There are additional conditions that can be imposed under s 74G that include a residential condition, prohibition of contact with victims, the wearing and installation of a GPS monitoring device, a condition prohibiting the respondent from leaving Western Australia and requirements that facilitate the offender's rehabilitation (which would include counselling). Under s 74H, a CCO is assigned to supervise the offender for the duration of the PSSO.[625]
[624] ts 400.
[625] ts 400.
The respondent submitted that the conditions that could be included as part of a PSSO, as outlined, could cover the things that are required, as identified by the experts, to mitigate the respondent's risk. That is particularly so, the respondent submitted, when the effect of a PSSO is combined with the other protective measures in the community referred to earlier.[626]
[626] ts 401.
In my opinion, the respondent's submission as to the efficacy of a PSSO, alone or in combination with other measures, cannot be accepted. The conditions that could be imposed as part of a PSSO do not span the breadth of conditions that would be necessary to deal with the level of risk identified by the experts in this case. The experts considered that the proposed conditions of a supervision order were appropriate in the event the court decided to release the respondent on such an order. Section 74D(5) of the Sentence Administration Act appears to contemplate that, while a PSSO is intended to provide protection of the community against reoffending by serious offenders after they are released from prison, it may not be capable of providing adequate protection in some cases where a restriction order under the HRSO Act will be necessary.
Another important consideration is that a PSSO cannot extend beyond 2 years. Where the offender's risk of reoffending is assessed to be such that supervision and other protective measures (beyond reporting obligations under the CPOR Act and violence restraining orders) will be necessary for a period of at least 5 years (as identified by the experts in this case, whose evidence I accept), a PSSO will not be sufficient. There is no basis for concluding in this case that the respondent's risk will have reduced to an acceptable level within 2 years. The contrary is true.
Finally, under s 74L of the Sentence Administration Act, if an offender breaches a PSSO without reasonable excuse, he commits an offence and is liable to a maximum term of imprisonment of 3 years. There is no mechanism for bringing the offender back before the court for further consideration of whether a restriction order may be necessary at that stage to adequately protect the community against the offender's risk of reoffending. That is in contrast to the statutory scheme for review and in respect of breaches of a supervision order under the HRSO Act. The determination of whether the respondent is a high risk serious offender requires consideration of the extent to which he will require supervision and monitoring in the future.

CDO or Supervision Order

The respondent submitted that, if I find he is a high risk serious offender, the evidence does not establish that his risk can only be managed by the making of a CDO. The respondent submitted that the evidence establishes he needs supervision and counselling, both of which are available in the community.[627] It was submitted that there is no evidence that the respondent could not be managed adequately in the community.[628]
[627] ts 403.
[628] ts 404.
The respondent submitted that the court could be satisfied on the balance of probabilities that the respondent would not commit a serious offence because of the conditions that would be in place under a supervision order.[629]
[629] ts 408.
The respondent submitted that his outstanding treatment needs, as identified by the experts, are not a basis for imposing a CDO, as the treatment needs can be dealt with in further counselling with Ms Ballantyne in the community if the respondent is subject to a supervision order.

Whether the respondent will substantially comply

The respondent submitted that the evidence establishes on the balance of probabilities that the respondent would substantially comply with the terms of a supervision order if one was imposed.[630]
[630] ts 402.
The respondent submitted that it is the combination of his engagement in counselling with Ms Ballantyne and in his interviews with the authors of the reports prepared for these proceedings, his positive treatment gains reported by Ms Ballantyne, his positive conduct in prison and his oral evidence that demonstrate his ability to meaningfully engage in counselling and comply with supervision and direction.[631] It was noted that the respondent could not have known early in his prison sentence that he was going to be subject to these proceedings, so his positive engagement in treatment and his good behaviour in prison provide independent evidence of his ability to substantially comply with the standard conditions of a supervision order.[632]
[631] ts 386.
[632] ts 386.
The respondent submitted that the requirements of a supervision order are designed to allow for monitoring of whether the respondent is providing accurate information to his supervisor and others. Those in authority do not rely only on the respondent's self-reporting.[633] As I pointed out earlier, there are limits to the cross-checking that can be done. It was clear from the evidence of both Dr Wynn Owen and Ms Hasson that reliable self-reporting will be a critical aspect of effective supervision and treatment, and that is affected by the respondent's level of insight and resistance to the notion that he presents a risk of reoffending.

Conditions of proposed supervision order

[633] ts 385.

The respondent did not take issue with the draft supervision order prepared by the applicant, save for the conditions relating to medication, which were removed.[634]
[634] ts 409.

Conclusions

The respondent is a high risk serious offender

Having considered carefully all of the evidence to which I have referred that bears on the factors in s 7(3) of the HRSO Act, and finding that evidence to be cogent and acceptable, I am satisfied to a high degree of probability that the respondent currently presents an unacceptable risk to the community that he would commit a serious offence, being a serious sexual offence against prepubescent and underage adolescent female children, and that it is necessary to make a restriction order to ensure adequate protection of the community against that risk.
I have evaluated the evidence and drawn conclusions about specific issues that bear on this determination in the course of these reasons.
In summary, I am satisfied on the basis of the evidence of Dr Wynn Owen and Ms Hasson that the respondent poses a high risk of committing a serious sexual offence against such children if he is not subject to a restriction order. For reasons I outlined earlier, I do not consider that the respondent's age at the time he committed the index offences and the earlier sexual offences diminishes the weight I should give to the assessments of risk made by Dr Wynn Owen and Ms Hasson. Also for reasons I outlined earlier, I accept the diagnosis of paedophilia made by Dr Wynn Owen. That elevates the respondent's risk and supports the conclusion that without a restriction order the community cannot be adequately protected against that risk. Given the level of risk and the potential harm to victims, the risk is unacceptable.
Apart from the assessments of Dr Wynn Owen and Ms Hasson, and the factors they took into account in arriving at those assessments, I have had regard to a number of deficits in the respondent's presentation, insight and awareness, which I outline in the next section below. In addition, the respondent's inability to empathise with his victims, irrespective of his denial of most of his offending, means that he is lacking a protective factor that might reduce his risk. That is particularly so when combined with the fact that the respondent appears still to have a distorted view that some sexual activity with children may not be sexual abuse if it is pleasurable for them.[635] While such distorted thinking persists, the respondent's risk will be elevated. It is an issue he must address in further treatment.
[635] See [110] and [113] above, referring to what the respondent said to Ms Hasson (BOM 690).
Even if it were possible for the respondent to be placed on a PSSO at this stage, that would not render the respondent's risk of reoffending acceptable. Such an order would not provide adequate protection for its duration, for the reasons I have given. Further, the duration of such an order would fall well short of the period for which the community would require protection, which, based on the evidence of both Dr Wynn Owen and Ms Hasson would be for at least five years. Finally, for the reasons I give below, I am not satisfied that the respondent's risk could be sufficiently mitigated in the community at this time so as to ensure adequate protection of the community.
The respondent has engaged positively in treatment and has made some gains. That has been taken into account by Dr Wynn Owen and Ms Hasson in assessing the respondent's risk. Continuing treatment within the community will contribute to the mitigation of risk, but given the level of risk, it will not be sufficient to ensure adequate protection of the community if the respondent were to be released at this time.
Having found that the respondent is a high risk serious offender, it is necessary to determine which restriction order to make to ensure the adequate protection of the community.

Continuing detention order or supervision order

Consistent with the principles I have identified, I should make the restriction order that is least invasive or destructive of the respondent's right to be at liberty. However, the order must be such as to ensure an adequate degree of protection of the community.
Further, before I can make a supervision order, I must be satisfied, on the balance of probabilities, that the respondent would substantially comply with the standard conditions of a supervision order and that the totality of the conditions would provide adequate protection of the community against the risk that the respondent would commit a serious offence. The respondent bears the onus of establishing that he would substantially comply with the standard conditions.
There is no doubt that the proposed conditions for a supervision order, if I were to consider it appropriate to release the respondent on such an order, would impose significant restrictions on the respondent's movements and his capacity to have access to prepubescent or underage adolescent girls. They would also allow for monitoring of the respondent's activities to some extent. GPS monitoring does not tell the authorities what the respondent is doing. Inspection of his electronic devices would only reveal his electronic communications and online searches. Although a condition allowing for such inspection would be appropriate as a cautious approach, there is no suggestion that his offending in the past has been preceded by activity on electronic devices that might have indicated his inclination to sexually offend against a child.
As restrictive as a supervision order would be, its efficacy would depend to a significant extent on the respondent honestly and reliably reporting (whether in person or by way of a diary) his activities, his psychological state (including any distorted thinking) and circumstances in his life that may increase his risk of reoffending. It would also rely on him honestly disclosing his past to any person with whom he was forming a relationship or friendship who had female children, so that protective measures could be taken. As both Dr Wynn Owen and Ms Hasson noted, the reliability of self-report for the purposes of supervision and monitoring of the respondent's conduct would be of critical importance.
The respondent has demonstrated a capacity to mislead and fabricate explanations. I am left with considerable doubt about his reliability in reporting his emotions, any distorted thinking and any circumstances in his life that may put him at risk of reoffending. Given my assessment of the respondent's credibility and reliability as a witness, I do not give significant weight to his assertions that he would avoid situations that would put him at risk. I accept that the respondent has been open with Ms Ballantyne after developing trust, but as Dr Wynn Owen pointed out, confronted with the need to engage with new persons for the purposes of supervision or monitoring, he would need to undertake the same process of building trust, and it cannot be assumed that he would engage to the same extent. I am left in doubt at this stage as to whether the respondent's experience in counselling with Ms Ballantyne is a reliable predictor of the way in which he would engage with supervision in the community, particularly given that he does not accept he poses a risk of reoffending.

While the respondent has taken positive steps in therapeutic counselling, his treatment is in its early stages and, in my opinion, it is necessary for him to demonstrate consistently for a longer period that he will remain engaged in treatment and will continue to make gains. In my opinion, there are outstanding treatment needs and, until they are addressed, the conditions of a supervision order would not be sufficient to ensure the adequate protection of the community.
Apart from the concerns I have identified in respect of the respondent's honesty and reliability, it is necessary for him to address, in treatment, the following significant deficits:
(1)The respondent lacks adequate insight into his risk of reoffending. As at the time of the hearing, he did not accept that he was at risk of committing a further sexual offence. He appears to consider insight to be an appreciation of what he needs to do to avoid children, and thus avoid the risk of being accused of a sexual offence. That falls well short of the awareness he needs about his past behaviours and his current risk factors to ensure he can navigate circumstances in the community in a manner that will enable him to avoid reoffending.
(2)The respondent has not engaged in scenario planning. That may be because Ms Ballantyne had not reached a point in treatment where that was an appropriate focus. However, that tends to underscore that treatment is still at a relatively early stage. I am satisfied on the basis of the evidence of Dr Wynn Owen that the respondent must develop greater awareness and strategies that extend beyond a simplistic plan to avoid, or remove himself from the presence of, children. As Dr Wynn Owen said, scenario planning is absolutely essential to the respondent's level of risk and managing that risk. In my opinion, that is particularly so in the respondent's case because he has an inflated, over-confident view of his ability to avoid risk. It is a view that does not correlate with his limited insight and awareness.
(3)The respondent lacks adequate insight into his risk of returning to using alcohol and cannabis, and the impact such use may have on his risk of sexual offending. He needs to demonstrate a commitment to avoiding such use while he is assessed to be at risk of sexual offending, and a capacity to do so if he were in the community.
(4)Impulsivity and difficulties with problem solving have been identified as issues relevant to the respondent's risk of reoffending, but were not addressed specifically in the counselling provided by Ms Ballantyne so far.[636] She said in her report that they may be addressed in the future.
(5)The respondent has demonstrated distorted thinking about the impact of sexual acts committed against children. In particular, he has expressed ambivalence about whether it amounts to sexual abuse.
[636] See [227] above.
I do not overlook the fact that the last matter is known because the respondent was open about it in his interview with Ms Hasson, so there might be an expectation that he would discuss such matters in therapy. In fact it is related to a broader matter, which has been raised in therapy, namely the respondent's inability to empathise with his victims, which Ms Ballantyne said extended to the respondent minimising the seriousness of their experiences and apportioning blame to a variety of other individuals and 'systems'.[637] Although Ms Ballantyne was of the opinion, in her report, that there may be little scope for treatment gains in relation to offence-specific issues such as this 'at the present time',[638] I consider the distorted thinking and lack of empathy, to which I have referred, to be important matters that elevate the respondent's risk, because he is lacking the deterrent impact of a proper appreciation that all such conduct is sexual abuse and likely to be deleterious to the child. In my opinion, it is an issue that needs to be addressed further in therapy before the respondent is released, with a view to the respondent gaining better insight that would act as a protective factor against reoffending. Whether he makes any meaningful gain in that regard, remains to be seen.
[637] BOM 668, [26].
[638] BOM 669, [26].
Future treatment should also address the issues of inappropriate sexual interests, desires and behaviours, which Ms Hasson was of the view should be the primary concern of relevance for future intervention and management. This is related to the first point in [591] above, but more specifically would assisting the respondent to explore his sexuality and his sexual interests and working toward managing inappropriate thoughts, desires and behaviours.[639]
[639] See [278] above.
The respondent should also give consideration to undergoing SSRI treatment, to reduce his preoccupation with sexual activity. It is not something that he can be obliged to undertake, and if he were to decline, that would not mean that his risk in the community could not be adequately mitigated under a supervision order at some future time. However, as I explained earlier, it is apparent that sexual preoccupation continues to be a risk factor for the respondent, and SSRI treatment is likely to mitigate risk in that regard.
The respondent should also be assessed to determine whether he suffers from PTSD or an anxiety disorder and, if so, a treatment and management plan should be developed and implemented to deal with any such disorder. The respondent's counselling should also address his childhood abuse, which has been identified by both Dr Wynn Owen and Ms Hasson as a risk factor affecting a number of other areas of risk, including his emotional regulation and his distorted thinking about child sex abuse.
In deciding whether I am satisfied that the respondent would substantially comply with the standard conditions of a supervision order, I have taken into account the respondent's conduct while in custody during his most recent term of imprisonment. It has been assessed positively and the respondent has been industrious and ready to undertake courses that will better prepare him for release into the community. However, while his compliance and application to work and study may be indicative of growing maturity and the receding of antisocial personality traits, the positive developments must be considered in the context of a very structured and regulated prison environment.
The respondent has expressed a desire to continue with treatment and I accept that he is sincere in that regard. He has suggested that the areas in which he needs treatment are to do with his own childhood trauma and its ongoing impact on his life. As I have indicated, in my opinion there are other areas more directly related to his risk of serious reoffending that need to be addressed. However, given his engagement in therapy with Ms Ballantyne, it is reasonable to expect that he will continue to respond positively to individual treatment.
The respondent should be given an opportunity to participate in the Sex Offender Deniers Program, even if Ms Ballantyne has covered much of the ground explored in that programme, and continues to do so. Again, it is reasonable to expect, with his improved approach to treatment, that the respondent would participate in a meaningful way in such a group programme.
There is reason to be optimistic, in light of the respondent's expressed desire to continue with treatment, and given his improved approach, that by undergoing the combined treatment, but at least a continuation of the individual treatment, he will develop sufficient skills and insight into his offending as to be able to be safely managed in the community at the conclusion of the first year of his detention. I have identified the areas in respect of which the respondent requires further treatment. Ultimately they involve the development of insight, self-awareness and preparedness to deal with risk-laden situations in more than a superficial manner.
In the absence of such further treatment and evidence that it has been effective in addressing the issues I have identified, I am unable to be satisfied that the community can be adequately protected by imposing a supervision order. In particular, I am not satisfied, on the balance of probabilities, that, if released on a supervision order, the respondent will not commit a further serious offence.
For these reasons, I have decided that I must make an order that the respondent be detained in custody for an indefinite term for control, care or treatment. While he is detained he should receive the further treatment that he requires.

Anonymisation and suppression order

To protect the privacy of the victims of the respondent's offending, in particular his half-sister, the name of the respondent and the victims have been anonymised in these reasons.
For the same reasons, as the respondent was referred to by name in the proceedings, I will make an order prohibiting publication of the respondent's name.

Order

I order that the respondent be detained in custody for an indefinite term for control, care or treatment.
I set Monday, 17 January 2022, as the date for the first review of the respondent's detention.
I make an order prohibiting the publication of the respondent's name.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Associate to the Honourable Justice Fiannaca
25 JANUARY 2021