The State of Western Australia v Coffin [No 5] - [2021] WASC 360

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- COFFIN [No 5] [2021] WASC 360
CORAM:   ARCHER J
HEARD:   14 OCTOBER 2021
DELIVERED          :   14 OCTOBER 2021
PUBLISHED           :   2 NOVEMBER 2021
FILE NO/S:   SO 1 of 2014
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
FABIAN ALEC COFFIN
Respondent

Catchwords:

High risk serious offender - Whether the continuing detention order should be affirmed or a supervision order made

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Continuing detention order affirmed

Category: B

Representation:

Counsel:

Applicant	:	C J Thatcher SC
Respondent	:	T Hager

Solicitors:

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

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

Director of Public Prosecutions (WA) v Coffin [2014] WASC 305
Director of Public Prosecutions (WA) v Coffin [No 2] [2015] WASC 436
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Coffin [No 3] [2017] WASC 233
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Italiano v The State of Western Australia [2009] WASCA 116
Kim v Witton (1995) 59 FCR 258
The State of Western Australia v A [2018] WASC 250
The State of Western Australia v ACW [No 2] [2020] WASC 480
The State of Western Australia v Coffin [No 4] [2019] WASC 342
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Decke [No 4] [2020] WASC 263
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Misko [No 6] [2018] WASC 389
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v ZSJ [2020] WASC 330

Table of Contents

Introduction

Evidence

Legal principles

Statutory framework

Objects of the review requirement

The court's powers

High risk serious offender – unacceptable risk

Precondition to a supervision order – compliance with standard conditions

'Substantially comply' with the standard conditions
Factors relevant to the assessment

Detention or supervision?

Issues

High risk serious offender?

Antecedents and criminal record - s 7(3)(g) factor

Reports - s 7(3)(a) and (b) factors

Dr Wynn Owen
Dr Riordan
Ms Hill

Propensity - s 7(3)(c) factor

Pattern - s 7(3)(d) factor

Addressing causes and rehabilitation (historical) - s 7(3)(e) and (f) factors

Risk and need to protect - s 7(3)(h) and (i) factors

Other factors - s 7(3)(j) factor

Dishonesty about matters that are relevant to risk
Unwilling or unable to control behaviour
Past response to supervision
Some positive factors

Conclusion

Would he substantially comply with the standard conditions?

Detention or supervision?

Accommodation

Management issues

Conclusion

ARCHER J:

Introduction

Between 1990 and 2002, the respondent committed a series of serious sexual offences. He was convicted of some of the offences in 1997 and served a period of imprisonment. After being released, and while on parole, he committed further offences for which he was charged in 2001. While on bail, he committed further offences. The respondent was sentenced to imprisonment, and has been in custody since 20 August 2002.
The respondent was eligible for parole in 2009 but the Prisoners Review Board declined to release him. His maximum term of imprisonment was due to expire on 15 February 2014. Before it expired, the Director of Public Prosecutions applied for an order that he be detained for an indefinite term, under s 17(1)(a) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).
On 5 September 2014, Hall J made that order.[1]
[1] Director of Public Prosecutions (WA) v Coffin [2014] WASC 305.
The DSO Act was repealed when the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) commenced. However, the HRSO Act fully preserves the provisions of the DSO Act. Any order made under the DSO Act is taken to have been made under the corresponding provision of the HRSO Act.[2]
[2] HRSO Act, s 125.
Since Hall J imposed the continuing detention order, there have been three reviews. On each occasion, the continuing detention order was affirmed. On the last occasion, Vaughan J[3] said:[4]
I, like Fiannaca J on the second review, was not satisfied that Mr Coffin would be able to control his impulsivity and regulate his behaviour. The effectiveness of a supervision order - even one on the stringent conditions suggested by Mr Jarvie - would in large part depend on Mr Coffin's capacity for self-regulation. … Mr Coffin has not been able to self-regulate in a prison setting and has not been able to do so knowing that failure will be detrimental to his prospects on this review. It continued to be the case, as it was before Fiannaca J, that Mr Coffin is prepared to act without consideration for, or irrespective of, the consequences of his actions. Indeed, … Mr Coffin has deteriorated in this respect since the 2017 review. Mr Coffin's obvious insight that his actions are self-destructive is insufficient. Mr Coffin needs to move beyond an understanding of what he should be doing (and appreciation that his actions are to his detriment) and instead put his understanding into effect.
[3] As his Honour then was.
[4] The State of Western Australia v Coffin [No 4] [2019] WASC 342 [111].
On 15 June 2021, the State of Western Australia applied for the fourth review of a continuing detention order made in relation to the respondent. The application was made under s 64 of the HRSO Act.
Under s 64, the first question is whether the respondent is a high risk serious offender. If he is, I must decide whether he should be released on a supervision order or whether I should affirm the continuing detention order.
The State submits that the respondent remains a high risk serious offender and that the continuing detention order should be affirmed.
The respondent does not dispute that he remains a high risk serious offender and acknowledges that there are obstacles to his release.
After hearing the evidence and closing submissions, I indicated that I would affirm the continuing detention order and publish detailed reasons later. These are those reasons.

Evidence

The State tendered, by consent, two volumes of material[5] that contained historical material relating to the respondent's prior offending, his conduct and treatment in prison, and reports prepared for the purposes of this hearing. The reports included:
1.a psychiatric report by a psychiatrist, Dr Wynn Owen;
2.a treatment progress report by a senior forensic psychologist, Dr Riordan; and
3.a community supervision assessment report from a senior community corrections officer (CCO), Ms Hill.
[5] Book of Materials, Exhibit A (BOM).
Dr Wynn Owen, Dr Riordan, and Ms Hill gave oral evidence in the hearing. The respondent did not give evidence.
The respondent did not challenge the credibility or reliability of any of the witnesses, and did not challenge the expertise of the experts.
Dr Wynn Owen and Dr Riordan are highly qualified. Each of the witnesses gave their evidence in a measured and frank manner, giving reasons where appropriate. I accept their evidence.

Legal principles[6]

Statutory framework

[6] This section reproduces, or draws from, what I have written in earlier decisions, such as The State of Western Australia v ACW [No 2] [2020] WASC 480 and The State of Western Australia v Decke [No 4] [2020] WASC 263.

The HRSO Act operates in substantially the same way as the DSO Act. For this reason, the principles established by the case law decided under the DSO Act apply to the HRSO Act.[7]
[7] The State of Western Australia v ZSJ [2020] WASC 330 [5], [30] ‑ [31] (see also [32] ‑ [63]) and The State of Western Australia v Narrier [No 6] [2020] WASC 349 [4], [29] ‑ [30].
Under s 64 of the HRSO Act, the State may seek a review of an offender's detention under a continuing detention order.

Objects of the review requirement

In The State of Western Australia v Corbett [No 5], Hall J said (citations omitted):[8]
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for a past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community, then the continuing need for detention must be considered … It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community ...
…
The risk of reoffending may change over time. It may be affected by age, health, or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed by a supervision order. There is also the possibility that the risk may increase because of a failure of treatment or a relapse into deviant thinking.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, a mere welfare check: they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community ...
[8] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [8], [10] ‑ [13].
With respect, I agree. However, I do not consider that the fact that the review process is intended to allow for the possibility of a change of circumstances means that the respondent must demonstrate a change of circumstance. Nor do I consider this was what Hall J intended to convey. The State did not suggest otherwise.
In my view, the question as to whether the respondent is a high risk serious offender, and whether the continuing detention order should be affirmed, is entirely a matter for the judge hearing the review application to determine. While the judge will no doubt give weight to the views expressed by other judges in previous reviews and on the original application, the judge himself or herself must decide whether the respondent is a high risk serious offender, and whether the continuing detention order should be affirmed.

The court's powers

Section 68 of the HRSO Act provides:
68.Review of detention under continuing detention order
(1)On a review under section 66 of an offender's detention -
(a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b)if the court finds that the offender remains a high risk serious offender it must -
(i)affirm the continuing detention order; or
(ii)subject to section 29, rescind the continuing detention order and make a supervision order.
(2)In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure adequate protection of the community.
Accordingly, the first question I must answer is whether the respondent is a high risk serious offender.

High risk serious offender – unacceptable risk

Section 7(1) of the HRSO Act provides:
7.Term used: high risk serious offender
(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.
This raises materially the same considerations as applied under the DSO Act in determining whether a person was a 'serious danger to the community'.[9]
[9] ZSJ [42] ‑ [47].
Determining whether a restriction order is necessary requires a balancing exercise.
On the one hand, the court is required to have regard to, among other things, the risk the offender would commit a serious offence (with serious consequences for the victim) if the offender was not made the subject of a restriction order and the likelihood of the risk materialising. On the other hand, the court is required to have regard to the serious consequences for the offender (either detention, without having committed an unpunished offence, or being subject to an onerous supervision order) if an order is made.[10]
[10] In relation to the regime under the DSO Act, see Italiano v The State of Western Australia [2009] WASCA 116 [46] (Buss JA, as his Honour then was).
The court must then decide whether the risk of the offender committing a serious offence is so unacceptable that, notwithstanding that the offender has already been punished for the offences he or she has committed, it is necessary that he or she is subject to further control or detention to ensure the adequate protection of the community.[11]
[11] In relation to the regime under DSO Act, see Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63], and expressly approved by Steytler P and Buss JA (as his Honour then was) in Director of Public Prosecutions (WA) vGTR [2008] WASCA 187; (2008) 38 WAR 307.
The State bears the onus of satisfying the court that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the respondent would commit a serious offence.[12] It must do this by acceptable and cogent evidence and to a high degree of probability.[13]
[12] HRSO Act, s 7(2). And, in relation to the equivalent provision in the DSO Act, see Director of Public Prosecutions (WA) vPindan [No 3] [2017] WASC 107 [41], [43].
[13] HRSO Act, s 7(1).
The expression 'high degree of probability' sets a higher standard than the standard of the balance of probabilities, but a lesser standard than the standard of beyond reasonable doubt.[14] However, this does not mean that the risk must be greater than 50%. The court must identify 'what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence'.[15]
[14] In relation to the equivalent provision in the DSO Act, see GTR [28].
[15] In relation to the equivalent provision in the DSO Act, see GTR [34].
A 'serious offence' is defined in s 5 of the HRSO Act.
In deciding whether to find a person is a high risk serious offender, the court must have regard to each of the matters specified in s 7(3) of the HRSO Act. These are:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
Section 7(3) of the HRSO Act is relevantly identical to s 7(3) of the DSO Act.

Precondition to a supervision order – compliance with standard conditions

If I find that the respondent is a high risk serious offender, I must make a continuing detention order or a supervision order.
Due to s 29 of the HRSO Act, I will only have a choice if the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions.
Section 29 of the HRSO Act states:
29.Limitation on power to make or amend supervision order
(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.
(3)This section does not apply to the making of an interim supervision order.
Section 23(1B) and (1C) of the DSO Act were in similar terms to s 29(1) and (2) of the HRSO Act.
There are seven standard conditions for a supervision order. They are set out in s 30(2) of the HRSO Act:[16]
[16] See the definition of 'standard condition' in s 3 of the HRSO Act.
30.Conditions of supervision order
…
(2)A supervision order in relation to an offender must require that the offender -
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
The effect of s 29 is that I must affirm the continuing detention order unless the respondent satisfies me, on the balance of probabilities, that he will substantially comply with these standard conditions.

'Substantially comply' with the standard conditions

The meaning of the phrase 'substantially comply' was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[17] in relation to s 23(1B) of the DSO Act. His Honour's observations, which I gratefully adopt, apply equally to s 29(1)[18] of the HRSO Act.
(1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.
(2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.
(3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.
(4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.
(5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.
(6)The court 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 sexual offence.
(7)Factors that are relevant to that assessment would include the respondent's history of compliance and non‑compliance and the factors set out at [50] above.
[17] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
[18] Which is in relevantly identical terms.
A critical point made by Fiannaca J, as set out in (6) of the extract, is that the court 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.

Factors relevant to the assessment

In (7) of the extract, Fiannaca J identified the factors that are relevant to the assessment of whether the respondent will substantially comply with the standard conditions. His Honour said that they would include the respondent's history of compliance and non‑compliance and the factors he had set out in his judgment in paragraph 50.
In paragraph 50, Fiannaca J identified, in effect, the following factors:[19]
[19] The first four factors his Honour drew from Kim v Witton (1995) 59 FCR 258. The next four factors were from The State of Western Australia v A [2018] WASC 250 [123]. The last factor was from The State of Western Australia v Misko [No 6] [2018] WASC 389 [196].
(1)the offender's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);
(2)his capacity to comply with the conditions;
(3)what measures there are in place to ensure he would substantially comply;
(4)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 DSO Act;
(5)the respondent's motivation to remain offence free and in the community;
(6)any willing participation in a sex offender treatment program;
(7)abstinence from drugs;
(8)conduct while in prison; and
(9)demonstrated gains in treatment, self‑management and life skills.

Detention or supervision?

If the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions, I must then decide whether to make a supervision order or a continuing detention order.
In deciding between these options, the paramount consideration is the need to ensure adequate protection of the community.[20] However, 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'.[21] Nor does it mean that other considerations are excluded.[22]
[20] HRSO Act, s 68(2).
[21] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14]. See also The State of Western Australia v West [2013] WASC 14 [52].
[22] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Williams [57].
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on an offender, but rather for the ultimate purpose of protecting the community.[23] The court should choose the order that is the 'least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[24]
[23] See, in relation to the DSO Act, GTR [97].
[24] West [52(j)], citing The State of Western Australia v Latimer [2006] WASC 235; and Decke. See also Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [22].
In Director of Public Prosecutions (WA) v DAL [No 2],[25] Beech J[26] summarised the principles to be applied in considering whether a supervision order would adequately protect the community, in relation to relevantly identical provisions in the now repealed DSO Act. Putting his Honour's observations in list form, and omitting citations, his Honour said:
1.The use of the word 'adequate' indicates that a qualitative assessment is required.
2.In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his [or her] care and treatment.
3.The [DSO] Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO] Act applies would ever be released.
4.The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
5.If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[25] DAL [No 2] [33], citing Williams [57], [86]; Griffiths [20], [103], [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].
[26] As his Honour then was.
In Coffin, Hall J noted:[27]
The existence of unmet treatment needs will not always act as an impediment to release on a supervision order, it will depend upon the nature of those treatment needs and the extent to which they will have the effect of reducing risk. At present the risk of reoffending is high and the possible risk scenarios suggest that conditions would be unlikely to be effective in preventing that risk from being realised. The fact that the respondent's offending has occurred impulsively and that this is a reflection of his personality type means that it is more difficult to guard against the risk unless his ability to address the risk factors is enhanced. This is unlikely to be achieved without, at the very least, extensive individual counselling.
[27] Coffin [93].

Issues

The issues are:
(1)Is the offender a high risk serious offender?
(2)If so, has he proved on the balance of probabilities that he will substantially comply with the standard conditions?
(3)If so, should I affirm the continuing detention order or make a supervision order?

High risk serious offender?

The respondent conceded through his counsel that he was a high risk serious offender.[28] Nevertheless, I am required to determine whether I am so satisfied, in accordance with the legal framework, and having regard to the s 7(3) factors.

Antecedents and criminal record - s 7(3)(g) factor

[28] ts 731.

The requirement to have regard to the respondent's antecedents and criminal record means the court must have regard to 'all prior offences, whether they be [serious offences] or not, to the extent that such offences are relevant to the question of whether there is an unacceptable risk that the person would commit a [serious offence] in the future. It also requires consideration of the person's personal history, including the context in which past offences were committed'.[29]
[29] Hall J in relation to serious sexual offences under the DSO regime, in Coffin [28].
The respondent's personal history was summarised by Hall J as follows:[30]
The respondent was born in Paraburdoo on 13 January 1973. He is the second youngest in a family of five siblings. His parents separated when he was five years of age, at which time he moved with his mother to Onslow. His maternal uncle and grandmother then played significant roles during his childhood.
The respondent attended primary school in Onslow until the age of ten. At that time his mother married a man of European descent. He initially rejected his step-father but over the years their relationship improved. He did not adjust to life in Adelaide and was relieved when the family decided to return to Western Australia during his high school years. At around this time he began regularly drinking alcohol and getting into trouble with the police. He has also reported being the victim of sexual abuse as a teenager, though the details of [this] are unclear.
The respondent's sexual development was largely normal. His first sexual experience with a girl of a similar age occurred when he was 15 years old. He had several short term sexual relationships before entering into his only long term relationship when he was 19. That relationship lasted for approximately 14 years with periods of separation. The respondent described this relationship as volatile with violence perpetrated by both he and his partner. They both used drugs and alcohol and there were high levels of sexual jealousy. They have five children together, though one of them died in a motor vehicle accident. The surviving children are aged between 11 and 21.
[30] Coffin [30] - [32].
In Director of Public Prosecutions for Western Australia v Coffin [No 4],[31] Vaughan J added:
Mr Coffin's indigenous culture and heritage has an overwhelming importance to his sense of self. That is all the more so as an elder and (more recently) a grandfather. Mr Coffin's cultural understandings, and whether he feels equipped to meet the demands of his cultural role, were canvassed extensively in the evidence before me. It is thus necessary that I acknowledge and refer to Mr Coffin's personal history as an Aboriginal man originating in the Paraburdoo area who has undertaken traditional cultural rituals and rites of passage.
[31] Coffin [No 4] [55].
The respondent's history of sexual offending was summarised by Vaughan J in Coffin [No 4]:[32]
(1)An assault on 21 November 1990 of a 16 year old female that resulted in seven charges of aggravated sexual penetration, two charges of aggravated indecent assault, one charge of indecent assault and one charge of unlawful detention to which Mr Coffin pleaded guilty. Mr Coffin was 17 at the time. The victim was unknown to Mr Coffin.
(2)Offences between December 1995 and March 1996. The victim was a girl who was aged 11 to 12 who babysat Mr Coffin's children. Mr Coffin pleaded guilty to one charge of indecent dealing with a child and six charges of sexually penetrating a child. There was no allegation of force or coercion. Mr Coffin was between 22 and 23 at the time.
(3)An indecent assault involving an 18 year old female in October 2000. The victim was the sister of Mr Coffin's partner. Mr Coffin and the victim were staying in the same house.
(4)An offence of indecent dealing with a child, aged 13, who was asleep. Mr Coffin was staying at the same house as the child. The offence occurred on 6 January 2001.
(5)A series of offences in July 2002 (at a time when Mr Coffin was on bail for the 2000 and 2001 offences). There were six separate victims being children aged between 10 and 13. One was male; the others female. On 19 July 2002 Mr Coffin indecently dealt with a child who was staying in the same house as him. On 31 July 2002 Mr Coffin gained entry to a house. He performed sexual offences against a boy and two girls who had been sleeping. Afterwards Mr Coffin went to another house (next door to the housing where he was living). There Mr Coffin indecently dealt with two girls, both aged 13, who had been sleeping. Arising out of these events Mr Coffin was charged with six counts of indecently dealing with a child and one count of attempting to sexually penetrate a child.
All of the offending occurred in towns in the Pilbara region of Western Australia where Mr Coffin was living. A number of the offences occurred at a time when Mr Coffin was affected by alcohol
[32] Coffin [No 4] [13] - [14]. And see Coffin [34] - [44].
In Coffin,[33] Hall J said:
It is clear from this history that at least between the years 2000 to 2002 the respondent engaged in a series of serious sexual offences against children. Those offences involved seeking to obtain sexual gratification by indecently dealing with children who were sleeping. The offences involved persistent conduct and appear to have all been related to alcohol use. These offences were not characterised by violence, although the attempted oral penetration of the boy was accompanied by force. The earlier offending in 1990 and in 1995 to 1996 was different. The 1990 offences involved an older victim and at a time when the respondent was himself a juvenile. Those offences were also accompanied by significant use of force and involved multiple acts of penetration. The 1995/1996 offences involved a child of similar age to the victims of the later offences but were different in that they involved a sexual relationship with a child rather than opportunistic acts. It is difficult to draw a pattern of behaviour from the whole of the offending conduct, however it is apparent that it shows that the respondent has displayed a sexual attraction to older children and has been prepared to take significant risks in order to gratify that attraction
[33] Coffin [44].
In Director of Public Prosecutions for Western Australia v Coffin [No 3],[34] Fiannaca J identified the following additional factors:
[34] Director of Public Prosecutions for Western Australia v Coffin [No 3] [2017] WASC 233 [22] - [23].
1.The ages of the children against whom the respondent offended ranged from 10 to 16 years, but the majority were between 11 and 13 years old.
2All of the victims were female, except for one, a 12-year-old boy who was the first victim in the last series of offences, committed on 31 July 2002.
3.The first offence, when the respondent was a juvenile, occurred in a public place at night time, when the victim was walking home from work.
4.The other offences, other than the last group of offences, occurred in homes where the respondent was residing with his partner, and the victim was either also living in that home or was visiting.
5.The victim of the offences in 1995/1996 was the babysitter of the respondent's children.
6.The last group of offences occurred at two houses where he was not residing, but where it appears he was known to the occupants.
At the first house he gained entry through a lounge room window after removing a flyscreen. He committed sexual offences against the boy and two girls who were sleeping in that room. At the second house, which was next door to where he was residing, he entered the house and went to a bedroom where two 13-year-old girls were sleeping. He indecently dealt with both girls.
For the offences in 1995/1996, the respondent received a total effective sentence of 6 years' imprisonment on 10 June 1997. Obviously the offences from October 2000 onwards occurred after he was released from prison in respect of that sentence. He was then sentenced to a total effective sentence 6 years' imprisonment on 15 October 2002 for the 2000 and 2001 offences. On 9 June 2003, he received a further total effective sentence of 6 years' imprisonment for the offences that occurred in 1990, cumulative on the sentence he was already serving.
Except for the simple indecent assaults, all of the offences are 'serious offences' under the HRSO Act.[35]

Reports - s 7(3)(a) and (b) factors

[35] See the definition in s 5.

In Director of Public Prosecutions (WA) v GTR, Steytler P and Buss JA[36] said:[37]
Although there is no doubt, under the [DSO Act], that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in the light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.
[36] As his Honour then was.
[37] GTR [62].
Each of the reports in this case was comprehensive. Where opinions were expressed, the foundation and reasoning were properly exposed. The witnesses gave oral evidence in a demonstrably objective fashion. I accept the evidence and opinions of the report writers.

Dr Wynn Owen

Dr Wynn Owen is a consultant forensic psychiatrist with considerable experience in this area. He interviewed the respondent twice and prepared a report. He also gave oral evidence.
Dr Wynn Owen said that the respondent's principal diagnoses are:[38]
Paedophilia, non-exclusive type
Substance Use Disorder (polysubstance abuse)
Antisocial Personality Disorder
[38] BOM page 363.
Dr Wynn Owen used two actuarial tools to assess the respondent's risk of future sexual offending, the Static-99R and the PCL-R. He said:[39]
[39] BOM pages 364 - 366.
The 2 actuarial tools used, the Static-99R and the PCL-R, have not been extensively validated in [I]ndigenous Australian offenders however research information available (including a small study by Allen et al, University of Western Australia, in 2013) indicates that the Static-99 may underestimate the risk of future sexual offending. The core historical behaviour indicators in the Static 99 and the PCL-R have been researched in a range of non-Australian indigenous populations and have been found to have the same predicative validity in indigenous and non-indigenous groups suggesting that the results of both tools can helpfully inform risk likelihood estimates for [I]ndigenous Australian, if other individual factors that may have a bearing on historical offending and lifestyle are also taken into account.
STATIC-99R
Mr. Coffin's Static-99R score has not changed over the last 2 years. It is in the Level IVb or 'Well above average risk' range. In the 'High Risk/High Needs' (HR/HN) cohort offenders with the same score as Mr Coffin on release had a 36.3% (28.80-44.5%) likelihood of committing a further sexual offence within 5 years of release and a 48.5% likelihood within 10 years.
PCL-R
Mr Coffin does not meet the threshold for a diagnosis of psychopathic personality disorder.
As previously reported Mr Coffin's scores on the PCL-R indicate a moderate level of psychopathy. He scored relatively highly on Factor 2 (Lifestyle and Antisocial) evidencing features of impulsivity, irresponsibility, antisocial and criminal behaviours and a chronically unstable lifestyle.
Risk for Sexual Violence Protocol (Hart, Kropp and Laws, 2003)
Risk factor review and update
Mr Coffin's offending (victim selection, type of offence, frequency and duration of offending) demonstrates the static historical risk factors of chronicity of sexual violence, and diversity of sexual violence.
…
Dynamic Factors
Personality, sexual deviance and substance abuse are the most significant dynamic factors contributing to Mr Coffin's future risk of sexual violence.
Although antisocial personality disorder is not as significant a risk as psychopathy it is still a variable that increases the likelihood of future general criminality and sexual offending.
Mr Coffin's ongoing substance abuse is perpetuated by problems with stress and coping. He has evidenced continuing problems with stress and coping in his prison behaviour and function during the period under review. Not only through resorting to substance use as a pathological method of coping but also through using aggressive and violent behaviours to deal with issues. …Underlying motivation aside this does demonstrate that Mr Coffin can self-regulate when he wishes to.
Mr Coffin reports that his sexually deviant thinking has reduced since last assessed. He states that he realises that children should not be objects of sexual fantasy and that he should modify his behaviour and impulses towards children. These are cognitive distortions that Mr Coffin was directed to address in the 2019 judgement. I note that when recently interviewed by psychologist Dr Riordan (Treatment Progress Report 2021) Mr Coffin admitted to ongoing sexual thoughts about adolescent girls, which he claimed to be managing. I note also that he did not disclose this sexual thinking to either Ms Williams or Dr Galloghly.

In relation to factors relevant to treatment, Dr Wynn Owen said:[40]
…Overall Mr Coffin's treatment progress is limited, his antisocial behaviour and use of aggression to achieve his ends has continued, he has used drugs to cope with being in prison and he has not acknowledged sexual deviance in interactions with treating psychologists….
[40] BOM page 367.
In relation to factors relevant to monitoring and supervision, Dr Wynn Owen said:[41]
Mr Coffin continues to evidence the problem of poor planning through his behaviours during the period under review, a number of which were behaviours he was directed to address in the 2019 DSO judgement and was being supported to avoid in counselling.
…Mr Coffin has a history of the risk factor problems with supervision. He has committed serious offences while subject to release conditions….
[41] BOM page 367.
Dr Wynn Owen summarised his findings as follows:[42]
Summary
…Sexual deviance and antisocial personality are the factors most relevant to his risk of offending, substance abuse and intoxication being associated with disinhibition leading to increased likelihood that Mr Coffin will be unable to manage his sexual deviance.
Over the 2 years since his last review of detention Mr Coffin has demonstrated ongoing antisocial behaviours in prison, ongoing and recent substance abuse in prison, and as recently as June 2021 had indicated that he did [not[43]] need any further psychological intervention to assist future management of risk. He externalised blame for his behaviours on the prison environment and dealing with loss. He also now acknowledges ongoing sexual attraction to young females.
It is my opinion, based on my clinical findings and Static-99R, and RSVP risk assessment tools, that Mr Coffin currently presents a high risk of committing a serious offence if not subject to a HRSO Restriction Order.
[42] BOM page 369.
[43] ts 680.
In his oral evidence, Dr Wynn Owen said that the essential drivers to Mr Coffin's risk of committing serious offences in the future are his personality, his sexual deviance and his substance abuse, which would tend to lead to some degree of disinhibition and problems managing the underlying drives.[44]
[44] ts 681 - 682.
Dr Wynn Owen noted that Mr Coffin appeared to have managed much better when he was in Albany prison, compared to his behaviour in Hakea.[45]
[45] ts 682, 692.
Dr Wynn Owen also said that the respondent's attitude to the SSRI has improved.[46]

Dr Riordan

[46] ts 698. SSRI is a serotonin specific reuptake inhibitor. It is a treatment used, in this context, to reduce the ability to achieve an erection, reduce the ability to ejaculate, and, ideally, reduce libido.

Dr Riordan is a senior forensic and clinical psychologist, employed by the Department of Justice.
Dr Riordan summarised the respondent's background, his offending behaviour and his treatment history. In relation to his behaviour in prison, she said:[47]
Review of the Incidents and Charges that Mr Coffin has been involved in during the review period indicates that he had been involved in 10 incidents and occurrences. He has accrued 2 prison charges for the use of insulting language and damaging property. These incidents have occurred across both Casuarina and Hakea Prisons. Chronologically, Mr Coffin stated that he was implicated in the possession of drug paraphernalia in Casuarina Prison. He explained that this incident occurred in the context of him attempting to secure Subutex from another prisoner in a different unit. He allegedly threw a syringe over the fence. Later, he admitted to ingesting substances that were intended for another prisoner, which resulted in a physical altercation between the prisoners and an enduring threat to the safety of Mr Coffin; a misconduct incident was documented. [A] second syringe was found in Mr Coffin's cell later that same month. In Hakea Prison, three incidents of misconduct were documented during January and February of 2021. These incidents related to threats to staff, physical altercations with other prisoners and damage to property. The details of the second charge are largely consistent with the recount offered by Mr Coffin. That is, he damaged the cell window following a verbal altercation with a prison officer, he was also preferred for the charge of insulting/threatening language. Consistent with Mr Coffin's self‑reports, he was not involved in any incident or charge while held in ARP or RRP.
Most recently, since June 2021, Mr Coffin has been involved in an incident of possession of drug paraphernalia, refusing to supply a urine sample and providing a positive urine sample for the use of Buprenorphine (Subutex).
[47] BOM pages 348 - 349.
Dr Riordan discussed the efforts that had been made to obtain a cultural mentor for the respondent. She said:[48]
Mr Coffin stated that he had proposed a cultural mentor to both his CCO and treating psychologist, Ms Williams. He stated that the man he proposed was his grandmother's younger brother (who he identified as his grandfather). Mr Coffin stated that this man was deemed unsuitable as his health precluded him from travelling to Perth. Mr Coffin stated that another cultural mentor had been proposed by his then CCO, however that the man proposed had been through cultural Lore after Mr Coffin. He therefore explained that he deemed him to be unsuitable to offer cultural guidance and mentorship to him. Perusal of case management notes indicates that several options for an appropriate cultural mentor were considered by Community Corrections in consultation with both Mr Coffin and Mr Coffin's mother, Ms Butcher. The Yinhawangka Aboriginal Corporation were also contacted to ascertain whether an appropriate mentor could be identified and/or appointed, however this was also unsuccessful.
[48] BOM page 349.
Later, she wrote:[49]
Mr Coffin continues to assert that he places great importance on the cultural and social role of being a grandfather and possibly a community elder. The latter role, that of an elder, appeared less certain during this assessment when compared to the last. That is, during this assessment, Mr Coffin expressed doubt as to his place in family, culture, and community. This is in direct contrast to the last assessment whereby he spoke about being expected to occupy a significant leadership role within this community based upon his strong connection to the spirit world. This attenuated view of his cultural role and importance in community was the most significant shift noted during this assessment. Whilst unclear, it may be that by being housed at RRP with direct contact with family and countrymen, he has developed a more realistic appreciation of his place within the wider family and kinship system. Cultural consultancy would be required to verify this observation. Additionally, he appeared to have developed a greater appreciation of the impact that his offending behaviour may continue to have in whether he will be accepted back into the community. Again I reiterate that although cultural factors may not be direct criminogenic factors, they are nonetheless risk relevant as his connection to and understanding of himself and his place in culture provides the context within which his offence supportive beliefs, attitudes and behaviour have previously formed and therefore may be maintained or challenged should he be released on a Community Supervision Order. As I have previously opined, a strong connection to culture with guidance from an appropriate elder from his community has the potential to be a protective factor, should Mr Coffin choose to engage. Unfortunately, an appropriate cultural mentor was not able to be sourced during the review period and Mr Coffin undermined his ability to return to country by placement at RRP through his ongoing illicit drug use and poor prison conduct.
[49] BOM page 351.
Dr Riordan set out her opinions as follows:[50]
Mr Coffin has a well-established propensity for externalising responsibility and apportioning blame to factors, situations, and circumstances outside of himself when he is not able to achieve identified goals. This is again evident with respect to achieving the outcomes or goals as outlined in the previous Annual Review. Specifically, Mr Coffin apportioned blame to his placement in Hakea Prison for his relapse into substance use and return to aggressive and intimidatory behaviour. This is despite the fact that such behaviour was evident during his placement in Casuarina Prison (November 2019) and was the basis upon which he was placed in ARP. He demonstrated the capacity to abstain from illicit substance use and adhere to behavioural expectations of the prison while housed in ARP. However, once he achieved his goal of being housed in RRP and was returned to a metropolitan prison, his behaviour quickly deteriorated, thereby undermining his ability to return to his desired placement, i.e. RRP. This repeated pattern of self-sabotage was discussed with Mr Coffin who surmised that his tendency towards self-sabotage was likely driven by a mixture of anti-authoritarian beliefs and attitudes and anxiety about being released into the community. Ultimately, he stated that he would not be detained indefinitely. As such, he adopted the view that it may be that the passage of time alone will eventually result in his release.
With respect to treatment, Mr Coffin maintained the view that he should be a passive recipient of treatment, rather than an active participant in the process of change. During the review period, Mr Coffin appeared to use intervention sessions in an instrumental manner. That is, he was motivated to engage primarily for the purpose of securing recommendation or endorsement for a transfer to RRP. When questioned as to his motivation to engage in ongoing intervention, Mr Coffin expressed ambivalence. He stated that he knew what he needed to change, that he understood his past sexual offending was not representative of who he was as a person now and therefore saw little value in further psychological intervention.
Mr Coffin's outstanding criminogenic treatment needs remain unchanged from the last review. There is little evidence to support any substantial or observable shift in his cognitive distortions, offence supportive beliefs, deviant sexual interest, impulsivity, reliance on substance use to self-regulate and cope, nor has there been a shift in his use of intimidatory behaviour within the prison context. Mr Coffin's interactional style with prisoners and staff continues to suggest that he maintains attitudes and beliefs that are supportive of the use of power and dominance to have his needs met and define his place in the social fabric of the prison. Mr Coffin again asserted that he has been able to challenge and ultimately change his deviant sexual interest in children. There is no way of objectively assessing this. He again expressed the view that sexual attraction to children was not what a man does, however later admitted an ongoing sexual attraction to and deviant sexual interest in adolescent girls.
[50] BOM page 350.
Dr Riordan noted:[51]
… Mr Coffin has engaged in a substantial amount of treatment over time drawing upon various modalities to motivate change. He has possessed insight and awareness into the factors that underpin his offending behaviour for a substantial period. He is yet to demonstrate any meaningful and sustained behaviour change or capacity to self-manage risk relevant factors. This remains the case despite the offer of incentives such as placement on country and connection to family. In relation to addressing his cultural needs, I again reiterate that it would be of benefit for Mr Coffin to be housed on country at RRP with access to elders from his community who may be able to assist in resolving or helping him to understand his place in culture and community, in addition to developing insight into some of the cultural based phenomena he experiences. As has been evident during the review period, facilitating any form of cultural mentor or intervention is difficult when Mr Coffin is housed in metropolitan prisons.
[51] BOM page 351.
In her oral evidence, Dr Riordan explained that individual therapy seeks to do three essential things. First, raising insight and awareness. Second, skill development. Third, the application of that skill.[52] There is no doubt that the respondent has insight. He has developed some skills, but needs more assistance in this area. It will then be up to him to apply those skills.
[52] ts 704.
Dr Riordan also confirmed that the respondent's behaviour had improved since the last review, particularly when he was in Albany and Roebourne prison.[53] She also said that the respondent appears to be better able to manage his deviant sexual interests.[54]

Ms Hill

[53] ts 705.

[54] ts 706.

Ms Hill is the respondent's CCO.
Ms Hill dealt with the respondent's progress since the last hearing. In relation to obtaining cultural supports and mentoring, she said:[55]
… whilst a number of options were considered there were ultimately barriers which prevented progress in this domain. One of the factors identified with two of the options explored was their apprehension to work with individuals with an offence history such as Mr Coffins' (sexual offending). Additionally, two individuals whom offer individual mentoring were considered, however Mr Coffin's decline in behaviour and subsequent placement in Albany Regional Prison prevented this from progressing. Mr Coffin identified an individual whom he perceived to be a positive influence and could provide cultural support, however, follow up occurred and he was deemed inappropriate due to his own offending history.
[55] BOM page 373.
Ms Hill set out some of the concerning conduct of the respondent while in Hakea prison. This included an implement for smoking cannabis being located in the respondent's cell, which he initially admitted was his, and his refusal to provide a urine sample for testing the next day.[56]
[56] BOM pages 374 - 375.
In her oral evidence, Ms Hill explained the logistical constraints on which prisons the respondent could be housed in. As he is a protected prisoner, several prisons are unavailable to him. In addition, until recently, he was assessed as a high security prisoner. This also made some prisons unavailable to him.[57]
[57] ts 715 - 716, 721 - 723.
Ms Hill discussed the respondent's accommodation options (or lack thereof).[58] The first option was to live with his mother and step‑father in Paraburdoo. Unfortunately, due to its remoteness, this is not a realistic option.[59] The second option was to live in the metropolitan area in a house provided by Uniting WA. Unfortunately, there is not a house currently available. The respondent is currently fourth on the waitlist.[60]

Propensity - s 7(3)(c) factor

[58] See BOM pages 375 - 380 and ts 716 - 717, 726 - 727.

[59] See BOM pages 375 - 378, the affidavit of Martyn James Clancy-Lowe sworn on 13 October 2021 (Exhibit B) and ts 687.

[60] BOM page 379. See also ts 718 - 719, 723 - 724.

The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. It means:[61]
that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.
[61] GTR [178]. See also Griffiths [66].
In Coffin,[62] Hall J said:
There can be little doubt that the respondent has exhibited a propensity for committing serious sexual offences against children. While the respondent's pattern of offending cannot be said to be continuous, consideration must be given to his long periods of incarceration. What remains apparent is that serious sexual offending has occurred over a 12 year period and has persisted despite punishment and treatment.
Although the most recent offences are now sometime in the past, the respondent has admitted to continuing attraction to, and fantasies about, female children. It was suggested on his behalf that his frankness in regards to these matters was a positive rather than negative sign. Whilst it may be positive in indicating his willingness to be honest and to engage in a constructive way with future treatment, it is negative in that it indicates that the risk of reoffending remains a very real one.
[62] Coffin [86] - [87].
The respondent now states that he no longer has an attraction to female children. However, he admits an ongoing sexual attraction to, and deviant sexual interest in, adolescent females.
The respondent has an extensive history of serious sexual offending against children. I am satisfied that he has a propensity to commit serious sexual offences against children.

Pattern - s 7(3)(d) factor

In Coffin,[63] Hall J said:
There is a pattern of offending behaviour, at least as regards the offending that occurred in 2000 and 2002. In those cases, the respondent targeted young children in their homes whilst they were sleeping. With one exception, all of the children were girls and of a similar age, between 10 and 13. Whilst none of this offending led to actual penetration there was an attempted act of penetration and in each case the activity ceased because the victims woke and resisted what was occurring.
The earlier offending, both in 1990 and 1995 - 1996, was different. The 1990 offence was a violent sexual assault that occurred in daytime. The victim in that case was significantly older than the children in the later offences. The respondent was, himself, a juvenile at the time. Other than the fact that alcohol appears to have been involved, it is difficult to draw any useful comparison between the 1990 offence and the later offences.
The 1995 - 1996 offences were also different. They involved an ongoing unlawful sexual relationship with an 11-year-old girl. Unlike the later offences, these offences were not opportunistic, rather they occurred over a significant period of time and involved the corruption of a child who was well-known to the respondent. In this case the offending progressed to acts of penetration, though there is no suggestion that force or threats were utilised. Other than confirming that the respondent has a longstanding sexual interest in female children it is difficult to draw any other useful comparisons between this offence and the later offences. It does, however, support an inference that in seeking sexual gratification from children he will not necessarily stop at touching.
[63] Coffin [88] - [90].
With respect, I agree. While there is no single pattern in the respondent's offending, his more recent offending was against children sleeping in their own homes.

Addressing causes and rehabilitation (historical) - s 7(3)(e) and (f) factors

In Coffin, Hall J summarised the respondent's efforts to address the causes of his offending behaviour and the effects of the programmes he had undertaken.[64] In particular, his Honour noted:[65]
Whilst in prison between 15 February 1997 and 27 November 1999 the respondent participated in a pre‑release sex offender treatment programme at Greenough Regional Prison. He was considered to have successfully completed that programme. … He was assessed as being at low risk of re‑offending in a sexual manner. His release on parole was supported.
Unfortunately the risk assessment proved to be incorrect. The respondent was released on parole on 27 November 1999. Less than 12 months later he committed the indecent assault on the 18‑year‑old female in 2000. He also committed the 2001 serious sexual offences of indecent dealing with a child during the period of parole. This shows that, even assuming that the pre‑release sex offender treatment programme had been successful, the respondent had a serious relapse. The programme was not effective in achieving lasting and significant change in his behaviour. Clearly his sexual desire for children persisted.
…
Whilst the respondent's willingness to attend and engage with programmes cannot be faulted, there are reasons to doubt whether those programmes have achieved long term, significant and sustainable change. As noted above, the ISOTP completion report stated that he continued to have significant treatment needs in regard to his risk of further sexual offending. His successful completion of the IMMASU programme in 2009 needs to be offset against the fact that whilst in prison he has committed a number of prison offences including possession of pornographic material and possession of drugs. The most recent of these offences include possession of cannabis on 30 June 2010, 23 October 2010, 4 July 2013 and 13 August 2013 and possession of pornographic material on 23 July 2012 and 7 August 2013.
[64] Coffin [46] - [54].
[65] Coffin [46] - [47] and [54].

In Coffin [No 4], Vaughan J said:[66]
There has been acceptance that Mr Coffin has insight into the broad factors that led to his sexual offending. The concern has been expressed, however, that there was awareness as early as 1998 (Mr Coffin first obtaining treatment through having participated in a pre-release sex offender program while imprisoned between 15 February 1997 and 27 November 1999)[67] and it did not translate into behavioural change as Mr Coffin reoffended. It is said that insight alone has relatively limited value if other factors such as substance abuse and high levels of deviant sexual arousal remain unchecked.[68] Fiannaca J, in particular, considered that the effectiveness of a supervision order would depend significantly on Mr Coffin's capacity for self-regulation.
[66] Coffin [No 4] [20].
[67] Coffin [No 3] [24].
[68] Coffin [No 3] [76].
Vaughan J also summarized the progress made by the respondent after Hall J's decision, and the views of the judges who conducted the first and second review - Jenkins J and Fiannaca J respectively.[69]
[69] Coffin [No 4] [21] - [33].
Vaughan J noted:[70]
[70] Coffin [No 4] [17] - [19].
The past decisions of the court have highlighted the following matters of concern in relation to whether there is an unacceptable risk that Mr Coffin would commit a serious sexual offence if not subject to a continuing detention order or a supervision order:
•A sexually deviant interest in female children (ie paedophilia - said to be of a 'non-exclusive type').[71] There were also diagnoses of paraphilia not otherwise specified.[72]
[71] Coffin [63]; Coffin [No 3] [29].
[72] Coffin [33], [44], [46], [47], [57], [61], [63], [69], [72], [74], [75], [79], [84], [87], [90], [91], [100], [101]; Director of Public Prosecutions (WA) vCoffin [No 2] [2015] WASC 436[21], [36], [49], [55], [68], [109], [116], [117], [129]; Coffin [No 3] [8], [24], [29] - [30], [33], [41], [55], [70], [71], [213], [234].
•A high sex drive (although, as at the second review, Mr Coffin had commenced anti-libidinal treatment by way of a selective serotonin reuptake inhibitor (SSRI) known as Sertraline).[73]
[73] Coffin [69], [101]; Coffin [No 2] [109], [120], [130]; Coffin [No 3] [29], [75], [94], [96].
•Cognitive distortions on the part of Mr Coffin. This has manifested itself in at least four ways: (1) a belief that children were capable of an adult understanding of sex and were sexual beings from about the age of 13; (2) a distortion of the circumstances in which he had offended - including that some of the children had been sexually attracted to him; (3) sexual objectification of women in general and adolescent girls in particular; and (4) a belief that female prison staff flirted with him, were promiscuous and intentionally sought to attract sexual attention from prisoners - referred to as being a misinterpretation of cues.[74]
[74] Coffin [62], [84]; Coffin [No 2][45], [48]; Coffin [No 3][8], [39], [82], [84], [86] - [88], [89] - [92], [213], [227], [233], [234], [256], [260].
•Inappropriate beliefs as to consent. For example, the age of consent (associated with the cognitive distortion as to the sexual maturity of adolescent girls) and the ability of an intoxicated woman to provide consent.[75] (However, by the time of his second review Mr Coffin was able to give adequate explanations of what is informed consent and why children do not have the capacity to consent to sexual activity.)[76]
[75] Coffin [No 2][21], [48], [109]; Coffin [No 3] [33], [84] - [85].
[76] Coffin [No 3] [93].
•Impulsivity (especially where manifesting despite an awareness of the steps Mr Coffin ought to take to press his case for release - this demonstrating that the potential adverse consequences of Mr Coffin's actions provide insufficient personal deterrence).[77]
[77] Coffin [49], [66], [76], [93], [102]; Coffin [No 2][30], [34], [36], [61], [109], [117], [119], [127] - [129]; Coffin [No 3][8], [24], [31], [33], [42], [44] - [46], [49], [55], [75], [102], [106], [178], [188], [192], [232], [233], [257], [262].
•An anti-social personality disorder which, among other things, manifested in aggressive and dismissive behaviour including violent behaviour. Mr Coffin's dealings with female prison staff, including officers and nurses, had also been considered problematic. Some of it had been characterised as predatory.[78]
[78] Coffin [63], [79]; Coffin [No 2] [30]; Coffin [No 3][29], [82], [100], [102], [183], [213], [230].
•An entrenched pattern of alcohol use which appears to have been disinhibiting in terms of decisions to engage in sexual behaviour.[79]
•A tendency to respond aggressively when intoxicated.[80]
•Other substance abuse (also identified as a factor that puts Mr Coffin at risk of future sexual offending).[81]
•A need to address Mr Coffin's own experience of sexual abuse.[82]
•Commitment of prison offences - in particular possession of pornographic material and possession of drugs.[83]
•Problems with supervision and a disdain for the constraints imposed on him while in custody.[84]
•A preparedness to be dishonest to avoid potential adverse consequences (a regressive step which manifested itself in the second review before Fiannaca J).[85]
There is, I acknowledge, a danger in focussing selectively on the matters of concern identified in the preceding list. First, the list is no more than a summary. Proper understanding of the matters requires consideration of the primary materials in which there has been a much fuller exposition of the matters of concern. Second, the list fails to refer to the positive steps that Mr Coffin has taken at various times in relation to the matters of concern. (Although, regrettably, in recent times Mr Coffin's efforts have lapsed.) Third, there is significant overlap between many of the matters of concern. For example, the impulsivity issue permeates and informs other matters such as substance abuse, aggressive behaviour, prison offending and problems with supervision.
Accordingly, the identified matters of concern as listed in [the first paragraph] above should be understood as doing no more than serving a single function: they identify and collate the matters mentioned in previous decisions of the court.
[79] Coffin [31], [32], [34], [51], [52], [53], [57], [64], [69], [70], [72], [78], [79], [82], [84], [91], [100]; Coffin [No 2][29], [34], [117], [121], [131]; Coffin [No 3][24], [29], [33], [77], [103] - [104], [213], [217].
[80] Coffin [32], [34], [51]; Coffin [No 2][55], [118]; Coffin [No 3][24], [33], [40], [68], [106], [196], [234].
[81] Coffin [32], [52], [53], [70], [72], [77], [78], [79], [82], [84], [91], [100]; Coffin [No 2][55], [117], [129]; Coffin [No 3][27], [29], [41], [55], [56] - [57], [61], [70], [97] - [98], [103] - [104], [220], [248], [251].
[82] Coffin [52], [69]; Coffin [No 3][24], [29].
[83] Coffin [54]; Coffin [No 2][6] - [7], [30], [47], [109], [117], [119], [127]; Coffin [No 3][27], [37], [44] - [46], [55], [105], [188], [192], [233], [234], [262].
[84] Coffin [77]; Coffin [No 2][50]; Coffin [No 3] [40], [42], [64], [68], [100], [182].
[85] Coffin [No 3] [182], [220], [253].
Vaughan J noted that the respondent had regressed since the second review in two respects:[86]
(1)First, Mr Coffin's illicit substance use has diversified and become more frequent: the materials referred to at least 10 occasions[87] on which Mr Coffin tested positive to prohibited substances.
(2)Second, Mr Coffin's ongoing therapy with a psychologist terminated in May 2019 due to Mr Coffin's drug use.
[86] Coffin [No 4] [56].
[87] Dr Riordan referred to Mr Coffin accumulating 11 substance related charges: Exhibit 1.12 page 236. In this regard the Charge History refers to an additional positive test, namely, for Metformin on 6 December 2017: Exhibit 1.4 page 81.
In her report, Dr Riordan summarised the treatment the respondent had received since the last review.[88] There have been some interruptions in his counselling that were not his fault.[89]
[88] BOM pages 343 - 345.
[89] See BOM pages 343 - 345 and ts 693 - 694, 709, 710 - 711, and 713.
Dr Riordan also summarized the incidents of poor behaviour by the respondent since the last review.[90] The incidents included a physical altercation with another prisoner in Hakea Prison earlier this year. The incident reports for that matter indicated that the respondent had started the fight. Dr Wynn Owen asked the respondent about the fight, and the respondent agreed that he had started it. Dr Wynn Owen said that the respondent said of the other prisoner: '"He was being an asshole" referring to a number of behaviours occurring prior to the incident, going on to say: "I pushed him, he retaliated". Mr Coffin expressed no remorse for this incident'.[91]
[90] As set out earlier.
[91] BOM page 360.
Dr Riordan said that the respondent's outstanding criminogenic treatment needs remain unchanged from the last review. She said:[92]
There is little evidence to support any substantial or observable shift in his cognitive distortions, offence supportive beliefs, deviant sexual interest, impulsivity, reliance on substance use to self-regulate and cope, nor has there been a shift in his use of intimidatory behaviour within the prison context.
…
He is yet to demonstrate any meaningful and sustained behaviour change or capacity to self-manage risk relevant factors.
[92] BOM pages 350 - 351.
Both Dr Wynn Owen and Dr Riordan consider that the respondent needs to engage in therapy on a regular basis over a sustained period. This will assist him to learn how to better manage his deviant thoughts and his impulsivity. It will help him learn how to cope with stress without using drugs.[93] It would also demonstrate his commitment to reducing the risk he will pose when he is ultimately released.

Risk and need to protect - s 7(3)(h) and (i) factors

[93] See their reports and ts 682 - 683, 696.

In Coffin, Hall J said:[94]
The respondent's previous sexual offending was of a diverse but serious nature. At its most serious it involved a violent sexual assault. Even accepting that the most likely form of reoffending would be indecent dealing with children, the offences would be nonetheless serious. Such offending in the past has involved considerable efforts to enter the homes of other people at night and to sexually abuse children asleep in their beds. There would be a real risk that if such offending occurred it would not necessarily stop with indecent dealing; it could progress to more serious acts of penetration. Given the likely age and vulnerability of the victims and the circumstances in which such offending would occur it would be likely to cause very considerable fear and psychological harm. There is clearly a need to protect members of the community from the risk that the respondent presents.
…
The nature of the offences that are likely to be committed is a relevant factor to take into account. The risk is that any such offences would involve children and not be limited to children known to the respondent. Offending could occur impulsively and without overt warning signs. It could involve children sleeping in their own homes.
[94] Coffin [94] and [102].
Dr Wynn Owen is of the opinion that the respondent is at high risk of committing a serious offence if not subject to a continuing detention order or community supervision order.
Dr Wynn Owen described the most likely risk scenario as follows:[95]
Risk scenarios and imminence of offending.
…
Mr Coffin is most likely to offend against females between the ages of 11 and 15 years. ...
If he opportunistically offends it is likely to be in the context of intoxication and gaining access to a bedroom where children are sleeping. Grooming may occur if Mr Coffin has unsupervised access to a child who visits his home or with whom he has frequent contact.
…
I note that should any sexual offence occur it will probably result in significant immediate and long term psychological harm.
[95] BOM pages 367 - 368.
I accept the opinions of Dr Wynn Owen. There is an obvious need to protect the community from this risk. The types of offences the respondent may commit are likely to cause significant harm.

Other factors - s 7(3)(j) factor

Dishonesty about matters that are relevant to risk

The respondent lied to Dr Wynn Owen about drug use, falsely claiming he had not used drugs in prison since the last review. The lie was elaborate:[96]
At the first interview Mr Coffin reported that he had not used any drugs in prison since the last review. He indicated that he was proud of this achievement. He reported that this change in behaviour was motivated by release, by concerns for the impact of drug use on his physical health and that drug use was 'a waste of energy, a waste of time'. He also reported that he felt better able to cope with stress saying 'I got skills, I have my own counselling within myself'
[96] BOM page 358.
After the first interview, Dr Wynn Owen was notified by COMU that a prison search of the respondent's cell suggested drug use. At the second interview, the respondent admitted that he had lied in the first interview, and that he had been using the drug Subutex (buprenorphine) regularly since placement at Hakea Prison.[97]
[97] BOM page 358.
In his evidence, Dr Wynn Owen said the lie was significant because it demonstrated that Mr Coffin was trying to falsely present himself as not needing drugs to cope with stress. Dr Wynn Owen said that Mr Coffin's willingness to lie about drug use made him concerned about Mr Coffin's level of disclosure in terms of risk management if he was to be supervised in the community.[98]
[98] ts 683.
Dr Wynn Owen noted that his concerns about Mr Coffin's lack of disclosure extended beyond the lie about drugs. Mr Coffin had also chosen to selectively disclose his sexual fantasies about adolescent females. Dr Wynn Owen said this made him very concerned about how one would monitor Mr Coffin's sexual deviance in the community setting. In addition, Mr Coffin cannot be assisted therapeutically to deal with matters he does not disclose.[99]
[99] ts 683.
I share these concerns.

Unwilling or unable to control behaviour

Vaughan J identified the objectives that he said the respondent ought to be seeking to achieve before the next review:[100]
[100] Coffin [No 4] [116] - [117].
First and foremost, if Mr Coffin is to lay the groundwork for a more positive review of his continued detention when he is next before the court, Mr Coffin must re-engage with his care and treatment while in detention. Mr Coffin must demonstrate - by actions not mere understanding - that he is motivated and ready to leave detention. One key issue is positive demonstration that Mr Coffin will be able to regulate his own behaviour and control his impulsivity so as to be compliant with the stringent conditions of a supervision order of a kind proposed in Mr Jarvie's report. In that regard Mr Coffin must demonstrate readiness for release into the community based on stable and unimpeachable behaviour while in detention. It continues to be the case that Mr Coffin must show that he can manage his impulsivity and remain offence-free in the prison environment in order to present a compelling case for release into the community.
In more specific terms the matters Mr Coffin should seek to achieve are largely unchanged from the time of his 2015 and 2017 reviews. Mr Coffin should:
(1) Stop using and then abstain from using any illicit substances.
(2) Re-commence and continue with regular psychological treatment. The specific content of those sessions will be a matter for the professional judgment of the treating psychologist. However, the evidence before me suggested that it should include consideration of:
(a)Mr Coffin's sexual deviance and sexual thinking;
(b)Mr Coffin's substance use;
(c)cognitive distortions as to Mr Coffin's offending, the sexual maturity of adolescent female children, consent to sexual activity, the objectification of woman and misinterpretation of cues from females;
(d) aggressive and intimidatory behavioural traits - particularly towards authority figures. (In that regard Dr Wynn Owen made mention that it was important that Mr Coffin continue to focus on understanding his own personality and how to manage his anti-social personality traits);
(e) impulsivity; and
(f)coping strategies in dealing with stressors and high risk situations (including the mindfulness approach that had previously been taken).
(3)Not commit a prison offence.
(4)Attempt, with the assistance of his psychological counselling, to understand and recognise (thereby hopefully eliminating) his cognitive distortions. The same goes for Mr Coffin's impulsivity and anti-social personality related behavioural traits. Here, however, the more significant focus must be on the development and implementation of coping strategies that enable Mr Coffin to defuse high risk situations. Personality, while modifiable over time, is the most difficult thing for humans to change.
(5)Re-engage with UCW. (Mr Coffin must re-engage with UCW well in advance of his next review so as to qualify in terns of UCW's six-month requirement.)
Vaughan J said:[101]
I accept that this will not be easy for Mr Coffin. Nor will it be possible for all these things to be achieved overnight. What should be aimed for is steady improvement leading to a period of sustained stability and compliance with these goals in the lead up to the next review.
[101] Coffin [No 4] [118].
Dr Wynn Owen said that, following Vaughan J's review, the respondent was aware of what he needed to do. He said that the respondent understood he had an underlying impulsive personality, and understood he had to demonstrate he could control his impulsivity by controlling his behaviour in prison and not using drugs.[102]
[102] ts 690.
Despite that awareness, the respondent continued to get involved in prison incidents, including starting a fight, and he also used drugs for an extended period.
Dr Wynn Owen said that the respondent's inability to control an urge or impulse is of concern. He explained that if the respondent was to make an impulsive or sudden decision at a time that he had sexually deviant thoughts and was in a situation where he had access to a victim, the risk would be obvious. Dr Wynn Owen pointed out that the respondent's inability to control his behaviour in prison shows that the respondent continues to act impulsively, without using consequential thinking.[103]
[103] ts 684 - 685.
Dr Wynn Owen considered that the respondent probably first used the drug because he was unable to stop himself from doing so. However, Dr Wynn Owen considered that the respondent's continued use was a choice.[104]
[104] ts 691.
I accept these opinions.
In my view, the respondent's inability or unwillingness to control his behaviour and his inability and unwillingness to abstain from drugs are highly concerning.

Past response to supervision

The respondent's response to supervision in the past has been poor. He committed some of the sexual offences while on parole and others while on bail for those offences.
Given all of the other circumstances, I consider this to be a significant risk factor.

Some positive factors

There are, however, some positive factors. First, the respondent is intelligent, and knows what he needs to do. Second, while still not good enough, the respondent's behaviour has improved, particularly when he was in Albany and Roebourne prison.[105] Third, the respondent's attitude to the SSRI has improved.[106] Fourth, the respondent appears to be better able to manage his deviant sexual interests.[107]

Conclusion

[105] ts 705.

[106] ts 698.

[107] ts 706.

Having regard to all of the factors, there are a number of matters of concern. In particular, the respondent continues to demonstrate he is unable or unwilling to control his behaviour, both in terms of his behaviour towards others and by his use of drugs. Second, he has been dishonest about matters that are relevant to his risk.[108]
[108] And see ts 691.

Having considered all of the s 7 factors, I am satisfied to a high degree of probability that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the respondent would commit a serious offence. I therefore find that the respondent is a high risk serious offender.
Therefore, I must affirm the continuing detention order or make a supervision order. Due to s 29 of the HRSO Act, I will only have a choice if the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions.

Would he substantially comply with the standard conditions?

As noted earlier, a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will 'substantially comply' with the standard conditions. The onus of proving this is on the offender.[109]
[109] HRSO Act, s 29.
In this context, the most relevant of the standard conditions is the condition set out in s 30(2)(f) of the HRSO Act. It imposes a condition that the offender not commit a serious offence during the period of the order.
I have had regard to the factors identified by Fiannaca J, outlined earlier.[110] The factors of particular relevance in this case are:
1.my concerns as to his capacity to comply with the conditions, given his inability or unwillingness to control his behaviour and not use drugs;
2.aligned to this, but as separate factors, the respondent's failure to abstain from drugs and his failure to behave properly in prison;
3.'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'.[111] I am concerned as to whether the respondent might commit a serious offence. This would be contrary to the objects of the HRSO Act;
4.his outstanding criminogenic treatment needs, and the lack of evidence to support any substantial or observable shift in the matters that no doubt contributed to each of the above factors - his cognitive distortions, offence supportive beliefs, deviant sexual interest, impulsivity, reliance on substance use to self-regulate and cope, and use of intimidatory behaviour within the prison context.
[110] The factors were set out under the heading 'Precondition to a supervision order - compliance with standard conditions'.
[111] Hart [50].
The respondent knows that, to demonstrate he can safely be released into the community, he needs to behave in prison and not use drugs. He has been unable or unwilling to do either of those things.
Having regard to all of the evidence, I am not satisfied on the balance of probabilities that the respondent would substantially comply with the standard condition not to commit a serious offence.

Detention or supervision?

If the respondent had satisfied me that he would substantially comply with the standard conditions, I would then have needed to decide whether to make a supervision order or affirm the continuing detention order.
Having regard to all of the evidence, I would have been left in doubt as to whether the conditions of a supervision order would have adequately protected the community. I will briefly outline the main issues of concern.

Accommodation

As Hall J has observed:[112]
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that the supervision order is presently a viable option.
[112] Corbett [No 5] [80].
The evidence shows that there are problems with each of the accommodation options proposed by the respondent.

Management issues

The evidence outlined above demonstrates that the respondent has a number of significant treatment needs. He externalizes blame. Much of his offending was impulsive. He has been unable or unwilling to behave properly in prison and not use drugs. He lies about matters that are relevant to risk.
The risk posed by the respondent is that, due to his deviant sexual interest in young females, his impulsivity, and his tendency to use drugs (reducing his inhibitions), he would commit a serious offence against a young female if he was in the community. As such an offence would likely be impulsive and opportunistic, it is unlikely that even onerous supervision conditions would prevent the offence occurring. The risk is increased by the real possibility he would lie to those supervising him about matters relevant to his risk.
Even if there had been suitable accommodation for him, I would have been left in doubt as to whether the conditions of a supervision order would have adequately protected the community.

Conclusion

The respondent is an intelligent man. He knows what he needs to do.[113] He needs to stop using drugs, stop behaving badly in prison, and stop lying about matters that are relevant to his risk. He also needs to meaningfully engage in counselling on a regular basis.
[113] ts 693. See also ts 690.
The respondent needs to do all of these things over a sustained period of time. This is not to say that the respondent is expected to be perfect. No human is capable of perfect behaviour. However, the respondent must demonstrate a sustained ability and willingness to control himself and a willingness to be honest about matters that relate to his risk.
The Department should assist him to demonstrate this so far as is reasonably practical. The evidence showed that Hakea prison is a particularly difficult environment for the respondent. The evidence also showed there had been some interruptions in the respondent's counselling that were not his fault. The respondent has served the terms of imprisonment that a judge believed was proportionate to his culpability. By the time of the next review, he will have been in custody as a non-sentenced detainee for nearly a decade. The respondent's detention under the DSO Act and now the HRSO Act is not punitive. It is detention for 'control, care or treatment'.[114] Given that, it would be most unfortunate if the Department was unable to house him in a prison in which he had a fair opportunity to demonstrate his ability and willingness to control himself. It would be equally unfortunate if the Department was unable to ensure he received the therapy he requires.
[114] HRSO Act, s 26(1).
I should add that, if the Department fails to assist the respondent in the manner I have outlined, this would not be an excuse for the respondent to stop trying to control his behaviour. When the respondent is ultimately released into the community, it will initially be very stressful. The respondent will need to be able to control himself in stressful situations. Showing that he can do that while in prison would be a very positive sign. Failing to do so would be a concern. That said, it is very important that the respondent be given a fair opportunity to demonstrate that he can control himself. He should not be required to demonstrate this under sustained and extreme stress.
For these reasons, I would affirm the continuing detention order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Research Associate to the Honourable Justice Archer
2 NOVEMBER 2021