The State of Western Australia v D'ROZARIO - [2020] WASC 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- D'ROZARIO [2020] WASC 187
CORAM:   FIANNACA J
HEARD:   24 JANUARY & 28 FEBRUARY 2020
DELIVERED          :   29 MAY 2020
PUBLISHED           :   29 MAY 2020
FILE NO/S:   DSO 1 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAUL ANTHONY D'ROZARIO
Accused

Catchwords:

Dangerous sexual offender - Division 1 hearing - Application for a division 2 hearing - Undertaking

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Orders made
Application granted for Division 2 hearing

Category: B

Representation:

Counsel:

Applicant	:	Mr B Meertens
Accused	:	Ms M Barone SC

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Accused	:

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

Director of Public Prosecution (WA) v Dodd [2015] WASC 249
Director of Public Prosecution (WA) v Free [2010] WASC 255
DPP (WA) v GTR [2008] WASCA 187
DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v Latimer [2006] WASC 235

FIANNACA J:

The application and its outcome

This is a preliminary hearing of an application filed by the State for orders under s 14 and s 17 of the Dangerous Sexual Offenders Act 2006 (WA) ('the Act') in respect of the respondent, who, at the time the application was made, was a sentenced prisoner serving a term of imprisonment for serious sexual offences. That term was to conclude on 5 March 2020. The application was filed by the Office of the Director of Public Prosecutions for Western Australia (the DPP) on 8 January 2020. It was heard by me on 24 January 2020.
At the conclusion of the hearing on 24 January 2020, I gave my decision that there were reasonable grounds for believing that the court might find that the respondent is a serious danger to the community, and I fixed 4 and 5 June 2020 as the dates for the hearing of the application for an order under div 2 of the Act (div 2 hearing). I also made further orders under s 14, which were settled after discussion with counsel. I adjourned until 28 February 2020 an application by the State that the respondent be detained in custody from the conclusion of the term of imprisonment he was serving until the determination of the div 2 proceedings. I ordered a report to be prepared by the Department of Justice to assess the suitability of the respondent for release on an undertaking pending the div 2 hearing. Under such an undertaking, which would be required if I did not make an interim detention order, the respondent would be subject to conditions similar to those of a supervision order under the Act. It was necessary for the suitability of the respondent's proposed residence to be assessed as well.
On 28 February 2020, having regard to the assessment report that had been prepared, the applicant did not oppose the release of the respondent on an undertaking which would require him to be subject to supervision, would place significant restrictions on his activities and would allow for the monitoring of his movements. However, the applicant did not abandon the application for an interim detention order. For reasons I will explain later, it was necessary for the application to remain on foot and be adjourned, with the applicant having liberty to bring the application back before the court in the event of a breach by the respondent of the undertaking.
Having regard to all the circumstances, I was satisfied it was appropriate to release the respondent on such an undertaking. Accordingly, I made an order that the respondent be released upon entering into an undertaking, the terms of which had been substantially agreed before 28 February 2020. I adjourned the application for an interim detention order, with liberty to apply.
At the conclusion of proceedings on 24 January 2020 I gave brief reasons for my decision under s 14 of the Act and said I would endeavour to publish detailed reasons when the matter was next before the court, on 28 February 2020. Regrettably, I was not in a position to do so on that day.
The following are my reasons for my decision pursuant to s 14 of the Act and my subsequent decision to release the respondent on an undertaking.

The nature of the application and the statutory framework

Introduction

The ultimate objective of an application under s 14 and s 17 of the Act is a finding by the court at a div 2 hearing that the respondent is a serious danger to the community, followed by the making of either a continuing detention order or a supervision order under the Act. Under s 7 of the Act, to find that the respondent is a serious danger to the community, the court must be satisfied to a high degree of probability, on acceptable and cogent evidence, that there is an unacceptable risk that if the respondent is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. The court is required to make that determination having regard to the considerations set out in s 7(3).
The application was filed pursuant to s 8 of the Act, which provides in sub-section (1) that such an application may be filed in relation to a person -
(a)who is under a custodial sentence for a serious sexual offence; or
(b)who has been under a custodial sentence for a serious sexual offence and who, at all times since being discharged from that sentence, has been under a custodial sentence for another offence or other offences.
'Serious sexual offence' is defined under s 3 of the Act. It is sufficient for present purposes to say this definition includes sexual offences for which the respondent has served and is serving terms of imprisonment, which I will identify shortly.
Where the respondent is in custody, the application cannot be filed unless there is a possibility that he might be released from custody within the period of one year after the application is made.

The sentences of imprisonment served by the respondent

It is necessary to set out the relevant sentences of imprisonment that the respondent is currently serving, and has previously served.
The respondent is serving a total effective term of 5 years' imprisonment imposed by Wager DCJ in the District Court on 6 March 2015. The total effective sentence was imposed for offences charged under the Criminal Code (WA) (the Code), as follows:
(i)4 counts of sexual penetration of a child over the age of 13 and under 16, contrary to s 321(2) of the Code – 3 years' imprisonment on each count, the sentences to be served concurrently with each other;
(ii)1 count of using an electronic communication with intent to procure a person under 16 years to engage in sexual activity, contrary to s 204B(2)(a)(i) of the Code – 1 year's imprisonment (cumulative); and
(iii)1 count of possession of child exploitation material, contrary to s 220 of the Code – 1 year's imprisonment (cumulative).
On the same date, Wager DCJ also sentenced the respondent for 11 charges of failing to comply with reporting obligations under s 63(1) the Community Protection (Offender Reporting) Act 2004 (WA) (the CP(OR) Act) whilst on parole for offences committed in 2006, in respect of which he had been sentenced in the District Court to a term of imprisonment on 27 May 2007. Six of the breaches of the reporting obligations involved unsupervised contact with underage girls. The respondent had filed a notice under s 32 of the Sentencing Act 1995 (WA) requesting that those pending charges be dealt with by the District Court. The respondent was sentenced to 6 months' imprisonment to be served concurrently in relation to each of the 11 charges.
Wager DCJ made an order that the respondent be eligible for parole. By s 93 of the Sentencing Act the respondent was eligible to be released on parole when he had served 2 years less than the term of 5 years' imprisonment imposed by her Honour. He was not released on parole.
The sentence of 5 years' imprisonment commenced on 6 March 2015. It follows that, at the time of the preliminary hearing, the respondent was still serving a sentence for a serious sexual offence and came within s 8(1)(a) of the Act. His sentence expired on 5 March 2020, and, in the absence of any intervening event that would require him to remain in custody beyond that date, he was to be released on that date.

The application is properly before the court

The application was made within the time frame in s 8 and was properly before the court as a preliminary hearing under div 1 of the Act. That is, the application was made within one year of the respondent's release date.

Issues to be determined

By s 11 of the Act, the main purpose of the preliminary hearing is to decide whether the court is satisfied there are reasonable grounds for believing that the court might find, under s 7(1), that the respondent is a serious danger to the community.
The law and principles applicable to making an order under s 14 of the Act are as set out in the decisions of McKechnie J in Director of Public Prosecution (WA) v Free [2010] WASC 255 [10] to [13] and Simmonds J in Director of Public Prosecution (WA) v Dodd [2015] WASC 249 [34] to [42] and have been adopted in subsequent cases.
The test is concerned only with the possibility of a finding being made under s 7(1). The test is satisfied if there is evidence which is capable of being accepted by the court and which could form a reasonable basis for a finding under s 7, bearing in mind that, before such a finding can be made, the court at a div 2 hearing would need to be satisfied to a high degree of probability.
Determination of the question whether there is an unacceptable risk that the respondent would commit a serious sexual offence if not subject to a div 2 order will require the balancing of a number of considerations, including 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 (either detention, without the respondent having committed an unpunished offence, or being required to be subject to what might be an onerous supervision order).[1]

Orders to be made on a preliminary hearing if the test is met

[1] DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] – [65] (Wheeler JA); DPP (WA) v GTR [2008] WASCA 187 [27] and [34] (Steytler P and Buss JA).

Section 14(1) provides that, if I am satisfied that there are reasonable grounds for believing that the court might find, under s 7(1), that the respondent is a serious danger to the community, then, subject to an exception that is not relevant in this case, a day must be fixed for the hearing of the application for a div 2 order and I must make an order under s 14(2) that the respondent undergo examination by two qualified experts, one of whom is to be a psychiatrist, for the purposes of preparing reports to be used on the hearing of the application. On the application of one or both of the parties, I may also order that a person or body named by the court prepare a report on questions or topics set out in the order. If there is a prospect that the offender might be released from custody before the application is finally decided, I can make an order that the respondent be detained in custody for a period stated in the order (referred to as an interim detention order),[2] or I can release the respondent on an interim supervision order if he is not in custody at the time the order is made.[3]
[2] Section 14(2)(b)(i) of the Act.
[3] Section 27A(5) of the Act.
As I said earlier, the orders sought by the applicant at the time the application was made included an interim detention order, but ultimately it did not oppose the release of the respondent on an undertaking. The release, which was to occur when the respondent completed his sentence, was to be on an undertaking, rather than on an interim supervision order, because, at the time the order was made, the respondent was still in custody.
In The State of Western Australia v CA [2020] WASC 164, a decision handed down after I gave my decision in this case, I referred to the history of the use of an undertaking to enable a respondent in div 2 proceedings to be released into the community at the conclusion of a sentence of imprisonment, rather than be subject to an interim detention order, pending a div 2 hearing.[4] It is not necessary to repeat what I said there, but I note the following key points. In CA I referred to the fact that an undertaking was an unsatisfactory form of conditional release when the court was not inclined to make an interim detention. I noted that s 27A of the Act (empowering the court to make an interim supervision order) appears to have been enacted in part to overcome the absence of a statutory alternative to an interim detention order in a case such as the present.[5] I expressed the view that an interim supervision order could be made in respect of a respondent who is in custody but is due to be released in the near future, and that the requirement in s 27A that the respondent 'is not in custody', which conditions the application of s 27A, would be met if the order is made to come into effect only when the respondent is released from custody, although I noted that legislative clarification was desirable.[6]
[4] The State of Western Australia v CA [2020] WASC 164 [27] – [29] (CA).
[5] CA [30] – [32].
[6] CA [33].
Although I adhere to the views I expressed in CA, the issues I discussed in that decision were not raised in the present application. As both parties considered that an undertaking was the appropriate means by which the respondent could be released into the community subject to conditions, pending the div 2 hearing, I proceeded accordingly. I did so on the following basis, which senior counsel for the respondent accepted (and in some respects advocated) to be correct propositions.
First, consistently with the objects of the Act in s 4, in determining whether to release a respondent on an undertaking, the adequate protection of the community is the paramount consideration. However, the exercise of discretion must be informed also by the fact that the powers under the Act to remove or restrict the liberty of a respondent are of an extraordinary kind and are not intended to be punitive. It is to be noted that at a div 2 hearing, if the respondent is found to be a serious danger to the community, the court will be required to make the order that is 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.[7] Further, in the context of a preliminary hearing, the exercise of discretion should be informed by the fact that, while the court is satisfied the possibility exists that the respondent will be found to be a serious danger to the community, such a finding has not yet been made.
[7] The State of Western Australia v Latimer [2006] WASC 235 (Murray J) [18], [19], [22] and [49].
Secondly, the respondent does not bear any onus at the preliminary hearing stage to satisfy the court that he would be able to meet some requisite standard of behaviour on an undertaking before the court would decide not to impose an interim detention order.[8] However, the question of whether the respondent is likely to comply with the conditions of an undertaking in similar terms to a supervision order is plainly a relevant consideration in determining whether he should be released on such an undertaking. If the court is not satisfied the respondent would comply in a manner that would ensure the adequate protection of the community, an undertaking would not be appropriate.
[8] Ts 15, 24/1/2020 (submission of Ms Barone SC).
One of the difficulties with an undertaking, as I explained in CA, is that there is no statutory mechanism for enforcement or sanction in the event of a contravention. Although a contravention would constitute a contempt of court, the means that has previously been adopted to bring a respondent back before the court in the event of a contravention has been to adjourn the application to the extent that it seeks an interim detention order. That was the course adopted in this case.

Evidence in these proceedings

The application is supported by an affidavit of Mr Meertens, a lawyer employed by the DPP, who also appeared as counsel for the State at the hearing, sworn on 10 January 2020 ('Mr Meertens' affidavit'). Annexed to Mr Meertens' affidavit are a number of materials relevant to the respondent's criminal history, including:
(1)a chronology prepared by the DPP of the respondent's offending;
(2)the indictments, prosecution notices and statements of material facts in respect of the sexual offences and other related offences with which he was charged;
(3) the transcript of the proceedings in the District Court in 2007, for 6 counts of using electronic communications with intent to procure a person he believed to be under the age of 13 years to engage in sexual activity, one count of using such communications to expose a person he believed to be under the age of 13 years to indecent material, and one count possession of child pornography;
(4)the transcript of the proceedings in the District Court in 2015, when the respondent was convicted and sentenced in respect of the offences referred to at [12] and [13] above; and
(5)the various pre‑sentence reports and psychological reports that were relied on in those proceedings.
The materials also include a Treatment Assessment Report dated 30 April 2015, which was prepared to assess the treatment that was required by the respondent to deal with the factors that had contributed to his offending, and an Intensive Sex Offender Treatment Program (ISOTP) completion report dated 28 March 2017 in respect of the respondent's participation in the programme that had been recommended as a result of the assessment in 2015.
Also annexed to Mr Meertens' affidavit is a Parole Review Report created on 8 December 2017.
The last document annexed to the affidavit is a psychological report of Ms Wendy Wager, a counselling & clinical psychologist contracted to the Department of Justice, which is dated 23 July 2018. The report was prepared to provide an assessment to the Prisoners Review Board in respect of the respondent's then current risk of reoffending, the gains he had made in treatment, any outstanding treatment needs, and recommendations for risk management, if the respondent was released on parole.
In addition to the materials annexed to the affidavit, the applicant also tendered a number of documents which speak to the decisions made by the Prisoners Review Board in respect of whether the respondent should be released on parole and whether a post-sentence supervision order should be made. They consist of a Department of Justice, Corrective Services document headed 'History of Board Secretariat Decision Slips', which sets out the Board's decisions and its reasons in respect of both the 2007 sentence and the 2015 sentence, reports prepared for the Board's most recent consideration of parole and the post‑sentence supervision order (dated 19 December 2018 and 19 January 2020 respectively) and an Individual Management Plan created 18 February 2018 in respect of the respondent's further management in custody, after he was denied release on parole on that date.
Further, the applicant tendered Psychological Intervention completion reports prepared by the respondent's treating psychologist, Dr Sarah George, in respect of counselling he received between November 2018 and May 2019. I also received a bundle of 'Progress Notes', being notes in respect of the respondent's medical attendances and treatment while serving his sentence from 6 March 2015 until 6 January 2020.

Finally, although the applicant initially submitted that the court should make an interim detention order, it tendered an Undertaking Assessment prepared by officers with the Department of Justice Community Offender Monitoring Unit (COMU), dated 24 February 2020, which included proposed conditions for an undertaking if the court determined that release of the respondent on an undertaking was appropriate.

The application is not contested

Senior counsel for the respondent submitted there were matters that might be thought to detract from the conclusion that the threshold requirement in s 14 of the Act was met in this case. In particular she noted that the assessments of the respondent's risk were somewhat dated. She also submitted that, as the nature of the respondent's past offending is relevant to the question of whether a court might find there is an unacceptable risk that the respondent would commit a serious sexual offence if not subject to a div 2 order, it might be thought that some of that offending would not give rise to an unacceptable risk. It is not necessary to expand on counsel's arguments in respect of those matters, as ultimately the respondent did not submit that it was not open for me to find, on the materials produced in these proceedings, that there are reasonable grounds for believing a court might find the respondent poses an unacceptable risk of committing a serious sexual offence. In effect, the threshold issue was not contested.
Nevertheless, it is necessary for me to make my own assessment of the threshold question on the materials produced in these proceedings and to provide reasons. In doing so, it will be necessary to outline the respondent's history of offending and the assessments that have been made of his risk of committing a serious sexual offence in the future in sufficient detail to identify the nature and extent of his risk. Those matters inform both the threshold question and the question of whether the respondent should be detained or released on an undertaking pending a div 2 hearing. I have approached my assessment by reference to the following considerations under s 7(3):
(1)The respondent's antecedents and criminal record;
(2)The nature of the respondent's offending and what that says about his propensity for committing a serious sexual offence;
(3)The psychological reports previously prepared in respect of the respondent, in particular the findings and opinions of Ms Wager in her report of 23 July 2018 and Dr George's psychological intervention completion reports from January and May 2019;
(4)The outcome of the respondent's participation in the ISOTP; and
(5)The parole and post‑sentence supervision assessments made in respect of the respondent.

Background

Section 7(3)(g) of the Act requires the court to have regard to the respondent's antecedents and criminal record. Information in respect of his background is set out in detail in the various psychological and pre-sentence reports that have been prepared since 2007, as well as in the sentencing transcripts. The following summary is sufficient for present purposes.
The respondent is 35 years old. He is the oldest of three children. He has two sisters. His background was summed up by her Honour Judge Sweeney SC, when the respondent appeared before her on 29 May 2007, at the age of 22, by the description that he had been 'living a very ordinary, if somewhat sheltered, life.'[9] At that time he was single and living with his parents.
[9] Mr Meertens' affidavit, Annexure L, p 198.
The respondent was born in Australia and was brought up in a close family by parents who had immigrated to Australia from Burma and had traditional values. Wager DCJ noted, when sentencing the respondent on 6 March 2015, that his parents had been protective of him as a child and had wanted him to focus on his education, which had resulted in him being isolated,[10] which is consistent with the finding of Sweeney DCJ that the respondent had led a 'somewhat sheltered life'. He was expected to help his parents and other relatives with activities where they needed assistance with the English language.
[10] Mr Meertens' affidavit, Annexure G, p 85.
Growing up, particularly in his teens it would seem, the respondent struggled with low self-esteem stemming from being overweight and suffering premature hair loss. He had an age appropriate relationship for a few years from the age of 16, but he did not tell his parents about that relationship, possibly to avoid potential parental disapproval. After that relationship ended due to disagreements about his girlfriend wanting to frequent nightclubs when she turned 18, the respondent was in another relationship for a year, which appears to have been difficult because he did not trust that girlfriend.
When sentencing the respondent on 6 March 2015, Wager DCJ noted that the respondent was in an age‑appropriate relationship in his late teens, but once that relationship ended, he 'gravitated towards underage girls because [he] felt more confident with them'.[11] I note that the respondent's first girlfriend was two years younger than him.[12] What is clear from the psychological assessments is that, although the respondent appears to attribute his attraction to underage girls to the fact that he has low self‑esteem and felt more confident with them, there is evidence that he has a deviant sexual interest in such girls. I will say more about that when dealing with his offending.
[11] Mr Meertens' affidavit, Annexure G, p 85.
[12] Mr Meertens' affidavit, Annexure O, p 220.
The respondent did well at school and subsequently completed TAFE and university studies in business, commerce and human resources. He was employed for periods after completing his studies. When he came to be sentenced in 2015, he said that his last period of employment was as a sales manager between 2009 and 2013, and that he had been unemployed since November 2013, although he claimed that was due to a desire to prioritise his reporting obligations, arising from his convictions in 2007, and the uncertainty of his future in relation to the then pending charges.[13]
[13] Mr Meertens' affidavit, Annexure Q, p 232 (Pre-sentence report, 1 December 2014).
The respondent has never had issues with substance use. I note that his results from urinalysis testing for alcohol and illicit drugs while he served his most recent term of imprisonment were consistently negative.
The respondent's criminal record is entirely related to his sexual offending and his failure to comply with reporting obligations arising from his convictions for sexual offences.
From May 2006 to August 2006, the respondent committed offences involving the use of the internet to procure a person he believed to be a child under the age of 13 years to engage in sexual activity and exposing that person to indecent material. The person with whom he was communicating was actually a police officer in a covert operation. On 29 May 2007 the respondent was sentenced to a total of 27 months' imprisonment, backdated to 9 May 2007, with eligibility for parole. He was released on parole on 22 June 2008, with a sentence expiry date of 8 August 2009. By May 2009, while still on parole, the respondent was again using the internet for unlawful purposes, this time to procure a person who was actually a girl under the age of 16 years to engage in sexual activity. He went on to commit a number of sexual offences consisting of physical sexual acts with a girl under the age of 16 years from June to July 2010. He also committed a number of contraventions of his reporting obligations arising from the earlier convictions. He was sentenced for one of those offences in the Magistrates Court on 19 November 2013 and was placed on an Intensive Supervision Order for 12 months. He was sentenced for the other offences on 6 March 2015 at the same time he was sentenced for the offences on indictment referred to at [12] above.

The respondent's propensity for sexual offending and pattern of offending

Section 7(3)(c) of the Act requires consideration of information indicating whether or not the respondent has a propensity to commit serious sexual offences in the future. Section 7(3)(d) requires consideration of whether or not the respondent has demonstrated any pattern of offending.
As I have already indicated, the respondent has been convicted of two series of sexual offences. Further, he has been convicted of offences of contravening his reporting obligations under the CP(OR) Act. While the latter offences are not probative of a propensity to commit serious sexual offences, they are relevant to the issue of whether there is a pattern to his sexual offending and to the issue of whether his risk of committing a serious sexual offence can be managed in the community if the respondent were subject to supervision and strict obligations.

2006 offences

The first series of offences was committed between May and August of 2006. The offences were:
(i)6 counts of using an electronic communication with intent to procure a person under 13 years to engage in sexual activity, contrary to s 204B(2)(a)(i) of the Code;
(ii)1 count of using an electronic communication with intent to expose a person under the age of 13 years to indecent material, contrary to s 204B(2)(a)(ii) of the Code; and
(iii)1 count of possession of child exploitation material, contrary to s 220 of the Code.
The facts of the offending were that the respondent established a friendship over an internet chat line with a person he believed to be a 12‑year‑old girl, but who was a police officer posing as that girl. Of course, the respondent was not aware that he was dealing with a police officer. I will refer to the respondent's communications as being with the girl he believed the person to be. On an occasion in May 2006 and on two occasions in June 2006, while chatting with the girl online, the respondent encouraged the girl to masturbate and told her how to do that. On the last of those occasions he also sent her an image of his penis. On two occasions in July 2006 and on one occasion in August 2006, while chatting with the girl online, the respondent again encouraged the girl to masturbate, giving her instructions and, in the last conversation, told her that he would like to perform oral sex upon her.
The conversations the respondent had with the child persona were set out in detail by Sweeney DCJ in her sentencing remarks at pages 63 to 69.[14] It is not necessary to set out all of the details for the purposes of these reasons, but it is appropriate to note the following key findings made by her Honour.
[14] Mr Meertens' affidavit, Annexure L, pp 190 – 196 (sentencing transcript 29/5/07).
The respondent was aware, from the first conversation, that the child was 12 years of age and was in year 8 of school. He confirmed her age in the second conversation. It was the respondent who instigated sexual discussions. When the child appeared unsure or anxious, or made it clear she was not interested in the respondent's attention, or expressed disgust at his sexual suggestions, the respondent was persistent, attempting to normalise sexual behaviour for her and telling her that the fact she was 12 years old did not mean that she could not be 'turned on'. The respondent, who was 21, initially told the child persona his true age, but later pretended to be 13 years old.
Although the factual summary referred to masturbation, the respondent in fact instructed the girl on a number of occasions to digitally penetrate herself. He sent her the picture of his naked penis on the basis that it would turn her on and make her want to penetrate herself. The sending of the image was the subject of the count of using the communication with the intention of exposing a child to indecent material. In another conversation, the respondent told the child persona that he wished to have sexual intercourse with her and ejaculate inside her.
The overall import of the communications, which continued over a period of about three months, was captured in the following summary by Sweeney DCJ:[15]
In all, this was a series of contacts all instigated by you, except the last, in which in graphic language you instruct Chloe on how to digitally penetrate herself and express a desire to do that to her, for her to kiss you, for you to perform oral sex on her and have intercourse with her and have her perform oral sex on you.
You send her an image of your penis. In a most manipulative way, you try to persuade her that it is normal for her to digitally penetrate herself, as opposed to simply masturbate; that her friends will think her cool if she experiences kissing and that you love her. All of this was calculated to instruct a young girl to have sexual experiences that from her response she very plainly had no interest in at that stage of her development.
[15] Mr Meertens' affidavit, Annexure L, pp 196 – 197.
The respondent arranged to meet the child persona at a train station on 9 August 2006. In sentencing the respondent, Sweeney DCJ found that the respondent arranged the meeting with the intention of engaging in some form of sexual activity.[16] The respondent attended the train station in the afternoon, as agreed, and was arrested by police.
[16] Mr Meertens' affidavit, Annexure L, p 189.
Given the findings made by Sweeney DCJ, it would be open for the court to find, as the applicant submits, that if it had not been for the police investigation into the respondent’s activities at that time, which led to his arrest, the respondent may have made contact with an actual child, eventually, and carried out his intentions to engage in sexual activity with an underage teenage girl. It is also open to conclude, as the applicant further submits, that the respondent's inclination to do so was demonstrated by his subsequent offending against the victim KMB in 2010.
After the respondent's arrest in 2006, police seized his computer and found stored on its hard drive a pornographic video, the title of which made it very clear that it was child exploitation material involving a child, possibly as young as eight years old. The video depicted a young girl performing fellatio on an adult male. Sweeney DCJ was of the view that the child in the video could be anywhere from 11 to 13 years of age.[17] The respondent's possession of the video was the subject of the charge of possession of child exploitation material.
[17] Mr Meertens' affidavit, Annexure L, p 190.
The next course of conduct that is relevant to the respondent's propensity and pattern of offending occurred after he was released on parole in respect of the sentence imposed by Sweeney DCJ on 27 May 2007. As I noted earlier, he was released in June 2008.

The contraventions of reporting conditions and sexual offending from 2009 to 2013 - overview

As a result of the respondent's conviction of the offences referred to subparagraphs (i) and (iii) of [46] above, the respondent became a reportable offender under the CP(OR) Act. His obligations included the need for him to notify the Sex Offender Management Squad (SOMS) of any unsupervised contact he had with persons under the age of 18 years within 24 hours of the third contact with that person. The obligations also required him to provide SOMS, within seven days of using or setting up an internet account, or activating or deactivating an internet account, or using or setting up a phone number, with information about such activity, including any username or password for the internet accounts and the phone number.
Following his release on parole, the respondent failed to comply with his reporting obligations under the CP(OR) Act on 12 occasions, seven of which involved unsupervised contact with girls. Apart from one contravention involving unsupervised contact with a child, which I will deal with in the next paragraph, the fact that the respondent had had unsupervised contact with females under the age of 18 years and had failed to report it, and the fact he had failed to provide information about his internet accounts and phone number were discovered when the police executed a search warrant at his home on 31 July 2013 and seized several electronic devices, including mobile phones and laptop computers, which were then examined and analysed. However, his contact with female children continued until November 2013.
On 8 April 2013, police were informed that the respondent had been contacting a 12‑year‑old girl since 20 March 2013. On that date, he had sent the girl a 'friend' request on Facebook. From that date until 4 April 2013, when the girl blocked him on Facebook, the respondent had approximately eight conversations with her on Facebook Messenger. During those conversations, the respondent was told by the girl that she was 12 years old. The respondent offered her money in return for a massage and requested that they meet in person. He asked for her phone number and made several references to how she would be treated if she was his girlfriend. He also made comments which the girl perceived to be sexual or indecent in nature. The respondent did not report his contact with that girl to SOMS. He was interviewed about the matter on 31 July 2013. He admitted communicating with the girl and not notifying SOMS, and claimed that he did not know that talking to someone online was unsupervised contact.[18]
[18] Mr Meertens' affidavit, [76] – [81], p 12.
The respondent was charged separately in respect of that contravention of his reporting obligation. He pleaded guilty to the offence and was sentenced in the Perth Magistrates Court on 19 November 2013 when he was placed on an Intensive Supervision Order for 12 months.
The respondent was not interviewed about the contraventions discovered on 31 July 2013, when his electronic devices were seized, until 28 February 2014. However, the respondent was arrested on 9 December 2013 in respect of other offending that was discovered upon the examination and analysis of those electronic devices. The contents of those devices revealed sexual offending by the respondent against girls under the age of 16 years in 2009 and 2010 and led police to interview a number of girls with whom the respondent had engaged in sexual acts or conversations.

Sexual offences in 2009

In late 2008 or early 2009, the respondent made contact with a 15‑year‑old girl, MNT, on MSN Messenger. It appears the link to MNT was provided to the respondent by his sister. The respondent and MNT exchanged phone numbers and then talked on the telephone and chatted online regularly from May to October 2009. During that period, the respondent and MNT engaged in what was described by the sentencing judge as 'phone and text sex', initiated by the respondent when he knew that MNT was still 15.[19] In September 2009 he sent her a text wishing her a happy 16^th birthday. The sexually explicit conversations included the respondent telling MNT the sexual things he wanted to do to her, encouraging her to tell him the things that she wanted to do to him, describing vaginal/penile sexual intercourse, telling the victim he was masturbating and indicating that he was having an orgasm, and instructing or encouraging MNT to masturbate.
[19] Mr Meertens' affidavit, Annexure G, p 78 (sentencing transcript 6/3/15).
That conduct was the subject of the charge of using an electronic communication with intent to procure a person under the age of 16 years to engage in sexual activity, which was count one on the indictment dated 3 December 2014, in respect of which he was sentenced on 6 March 2015 by Wager DCJ.
The respondent met with MNT once during the period from May to October 2009, but there was no sexual incident.

Sexual offences in 2010

The next four charges on the indictment dated 3 December 2014 related to sexual offences committed against another 15‑year‑old girl, KMB. It appears that her brother was a friend of the respondent's sister.[20] The respondent sent KMB a Facebook request in 2010 when she was 15 and he was aged 25 years. KMB told police that she was a virgin at that time. Wager DCJ considered that there was no reason to dispute KMB's assertion, but in any event was satisfied that she was sexually inexperienced at the time the respondent engaged with her.[21]
[20] Mr Meertens' affidavit, Annexure G, p 80.
[21] Mr Meertens' affidavit, Annexure G, p 79.

The respondent communicated with KMB on the telephone and over Facebook for a few months prior to meeting with her.
On 12 June 2010, the respondent picked KMB up from a shopping centre, by arrangement, and, after driving around for a short time, took her to a motel, where KMB agreed to share a room with him for the night. The pair had dinner and watched television before engaging in sexual activity. The respondent kissed KMB on the lips and inserted his tongue into her mouth. He then removed her clothing, although he remained fully clothed. He then penetrated KMB's vagina with his fingers, which caused her pain. He then performed oral sex on her for a period of time. The respondent stopped when KMB asked him to stop. The acts of penetration, including the oral sex, constituted counts 2 and 3 on the indictment of 3 December 2014.
The following day, the respondent drove KMB to a street near her home, and she walked home. The respondent then continued to have sexual contact with KMB by telephone and text and in person, including sexual acts of a similar nature when the respondent and KMB were in his vehicle about two to three times per week for a number of months.[22]
[22] Mr Meertens' affidavit, Annexure G, p 79.
On 24 July 2010, the respondent again picked KMB up from a shopping centre and took her to the same motel where they had stayed in June 2010. Again they spent the night together at the motel and engaged in sexual acts. Again, the respondent kissed KMB, inserting his tongue into her mouth, undressed her and used his fingers to penetrate her vagina. He then performed oral sex on her, stopping when she asked him to do so. The acts of penetration that occurred on that occasion, including the oral sex, constituted counts 4 and 5 on the indictment of 3 December 2014.
The following day, the respondent dropped KMB off at a street near her home.
Between June and August 2010, the respondent requested KMB to send him photos of herself naked. That conduct was the subject of count 6 on the indictment. KMB sent the respondent images of herself in varying degrees of undress, exposing her breasts and vagina, with the images often showing her face. One such photo was located on the respondent's laptop during the search of 31 July 2013. KMB confirmed to the police that she was 15 at the time the photo was taken. She said that the respondent had threatened to post the photographs on the Internet when she tried to end the relationship in late August or early September 2010. When he came to be sentenced, the respondent disputed that he had made that threat. Wager DCJ did not make any finding in that regard, but said that she accepted KMB may have experienced some concerns and regret about her conduct at the time that the contact ended between her and the respondent after four to five months.[23]
[23] Mr Meertens' affidavit, Annexure G, pp 80 – 81.
In sentencing the respondent, Wager DCJ noted that neither of the complaints (i.e. in respect of MNT and KMB) came to light until the police investigated as a result of the search, but both complainants spoke of embarrassment and shame and a desire to put that part of their life behind them. Her Honour was of the view that, regardless of how the matters had come to light, they were very serious offences, and it was no mitigation that they had come to light as a result of the police search of his electronic devices.[24]
[24] Mr Meertens' affidavit, Annexure G, pp 80 and 84.
Her Honour noted, from the respondent's sentencing submissions, that he justified the relationship with KMB on the basis that she was nearly 16. However, her Honour pointed out that the respondent was keen to be in a relationship with KMB when she was 15, and he proceeded to have that relationship, even though he was 10 years older than her. Similarly, her Honour dealt with the respondent's claim that he felt the offending was not so serious because he was able to please KMB sexually, rather than have her please him, by pointing out that, at the age of 15, KMB was emotionally immature and any sexual contact involving penetration was clearly inappropriate. Her Honour considered that the respondent's submissions amounted to an attempt to minimise his offending behaviour, which was a matter of concern in respect of his risk of future sexual offending.[25]
[25] Mr Meertens' affidavit, Annexure G, pp 86 – 87.
More generally, Wager DCJ said:[26]
So the course of conduct that I'm sentencing you for is very serious indeed. You're an adult and you deliberately contacted and groomed girls who were under 16 who you identified by their school attendance and through mutual contacts and you groomed and encouraged them to be sexually or intimately communicating with you.
…
You assert that the relationships were equal and that you were attempting to sexually please rather than abuse. However, I hope that you now recognise that this is distorted thinking because you are meeting your needs to be involved in a relationship that did not challenge you rather than addressing the girls' needs to reach maturity without being the victims of sexual corruption.

Additional evidence of propensity and pattern of offending

Videos on respondent's mobile telephone

[26] Mr Meertens' affidavit, Annexure G, p 84.

To the extent that the respondent continues to rely on the submission that the girls with whom he engaged in sexual acts or sexually explicit conversations were nearly 16 years of age, the submission involves distorted thinking, as was observed by Wager DCJ, and is evidence of his failure to recognise or accept his sexual deviance, namely his sexual interest in teenage girls who have not reached the legal age of consent.
At the sentencing hearing on 6 March 2015, the prosecutor referred to evidence that demonstrated the respondent's awareness that what he was doing was unlawful and morally wrong, and his inability or unwillingness to control his paedophilic urges because of the pleasure he derived from the wrongful sexual behaviour.
The prosecutor referred to two videos that were downloaded from the respondent's mobile telephone, being videos that the respondent made of himself masturbating into girls' underwear.[27] Although the prosecutor did not say in submissions whether there was information as to when the videos were created, she referred to statements made by the respondent during the videos, which included a reference to RC. RC was a girl with whom the respondent was in contact between 2009 and 2011, when she was aged 14 to 16 years.[28] His communications with her constituted one of the offences of contravening his reporting obligations. It follows that the video was made during or around the period when the respondent offended against MNT and KMB.
[27] Mr Meertens' affidavit, Annexure G, p 74.
[28] Mr Meertens' affidavit, [47] – [49], p 8.
Two of the names the respondent mentioned on the videos appear to be of girls who are additional to those I have mentioned and the other girls with whom he communicated in the incidents that were the subject of the charges of contravening his reporting conditions.
As the prosecutor submitted, statements made by the respondent during the videos demonstrated that he was sexually aroused by the age of the girls whose underwear he was using to masturbate. The statements of significance were:[29]
(i)'Oh, KL(?), your 15‑year‑old pussy's on me.'
(ii)'RC's only 15 years old. This is so illegal, but it's so fucking good.'
(iii)I've now had TG(?), KL and RC's knickers all on my cock and these girls are only 15 years old. Oh, this is so good.'
[29] Mr Meertens' affidavit, Annexure G, p 74.
As the prosecutor also submitted at the sentencing hearing, the videos demonstrated that the respondent sought contact with the girls 'because he was sexually interested in those girls, not because he was looking for a loving and caring relationship'.[30]

The contraventions of reporting conditions

[30] Mr Meertens' affidavit, Annexure G, p 75.

As I mentioned earlier, while the respondent's contraventions of his reporting conditions do not go to establish a propensity to commit serious sexual offences, an issue to which they are relevant is whether there is a pattern to his sexual offending.
I have already referred to the contact the respondent had with a 12‑year‑old girl in April 2013. I now turn to the other contraventions.
From sometime in 2009 until November 2013, the respondent had regular contact with six female children and did not report it to SOMS. The children were aged from 14 to 16 years. As with MNT, in each case the initial contact was by social networking websites and telephone, and it appears the respondent would cultivate the relationship over a period of time by those means before, in some cases, meeting with the girls. He maintained contact with each of the girls for periods of up to two years. With some of the girls the contact was continuous and involved regularly going to dinner, shopping and going to other places. In two instances, where the girls were 16 years of age, the respondent encouraged the girls to engage in sexual activity with him over the telephone or by text message. He also requested them to send him photos of themselves naked. One girl did, the other did not. He sent one of the girls a video of himself masturbating and several images of his penis. He met with each of them once, although there is no indication that any sexual activity took place on those occasions.
When police interviewed the respondent about what they had found, he made no comment. He was charged under the CP(OR) Act in respect of some of the girls who were identified.
While there is no allegation of unlawful sexual activity in the course of the contraventions of the respondent's reporting obligations, the contraventions tend to confirm that the respondent's method in grooming girls, which was evident with MNT and KMB, was entrenched and his pursuit of sexual gratification by adopting that method was prolific. While the girls with whom he engaged in sexual interaction were 16, there was still an element of grooming, which he has also used with underage girls. The contraventions are also relevant to the question of whether the respondent would comply with supervision requirements.

Conclusion in relation to propensity and pattern of offending

On the basis of the preceding outline of the respondent's offending history and the findings that were made during sentencing of the respondent, both in 2007 and 2015, there are reasonable grounds for believing that a court might find that the respondent has a sexual attraction to girls under the age of 16 years and has demonstrated a propensity (or inclination) to commit serious sexual offences against such girls.
Although the respondent's offending in 2006 was in respect of a child persona he believed to be 12 years old, his most recent offending was against girls who were over 13 years of age, but under 16 years. However, his contact with a 12‑year‑old girl in April 2013, and the indications of the early stages of grooming of that girl, before she took the initiative of ending the contact, suggests that his interest was continuing at that stage in girls in their very early teens. That he should seek to befriend a 12‑year‑old and proceed as he did, in light of his history of offending in 2006 and the sentence that was imposed on him in 2007, suggests a complete lack of restraint and a propensity to return to earlier deviant behaviour.
In any event, even in respect of the girls who were over 13 years of age, the respondent appears to have specifically targeted girls who were not yet 16. As Wager DCJ observed, apart from the flagrant breaking of the law, the respondent's offending involved the corruption of children who lacked the maturity to make considered decisions about their involvement in sexual behaviour, particularly given the disparity between the ages of the respondent and the complainants. Further, the potential for psychological harm, if not physical harm (albeit unintended), in such circumstances can be significant, and was apparent in the embarrassment and shame felt by the complainants.
The respondent's pattern of offending involves the use of electronic devices initially to make contact with and then groom the victims with a view to have them engage in sexual activity, initially over the phone or by social media, and ultimately by physical contact. The grooming also involves taking the girls to dinner and shopping. While it is the case that, when he has met up with the girls with whom he has had contact online, it has not always resulted in sexual activity, it would be open to the court to find that the respondent has followed a particular pattern, as I have outlined, in acting on his propensity to engage in sexual acts with girls under the age of 16 years.

Psychological reports – prior to the respondent's sentencing in 2015

Section 7(3)(a) and (b) require the court at a div 2 hearing to have regard to any report prepared by a psychiatrist as required by s 37 of the Act, and 'any other medical, psychiatric, psychological, or other assessment' relating to the respondent. There is no report available pursuant to s 37 at this stage, as such reports are obtained after a preliminary hearing. However, there are a number of psychological reports that were prepared in respect of the proceedings in the District Court in 2007 and 2015, and more recently for the purposes of the Prisoners Review Board's consideration of whether the respondent should be released on parole. As I noted earlier, there are also reports that have been prepared by the psychologist who has been providing counselling to the respondent while he has been serving his recent sentence. I will deal first with the reports prior to the respondent's sentencing in 2015. I will deal with the more recent reports after considering the outcomes of the ISOTP.

Report of Mr Summerton - 2007

Mr Summerton is a psychologist who prepared a psychological report dated 5 May 2007 for the sentencing proceedings in 2007. There are three significant matters in his report for present purposes. The first matter is the psychometric testing, which was used to assess the presence of clinically significant psychopathology, the respondent's general personality traits and the presence of deviant interests and behaviours.[31] The second matter is the assessment of the respondent's risk of sexual reoffending. The third matter is what the respondent said about his sexual interests.
[31] Mr Meertens' affidavit, Annexure O, p 221.
Mr Summerton found no evidence of psychological disturbance other than moderate anxiety, which Mr Summerton thought was probably related to the respondent's then current circumstances. The results of the psychometric testing showed that the respondent tended to portray himself in a very positive light. There was significant evidence of compulsive tendencies. Mr Summerton suggested that such individuals are characterised by conformity and self‑restraint. However, it is apparent from the respondent's subsequent conduct that such a description is not apt in respect of his attitude to sexual offending against underage girls and his compliance with legally imposed obligations.
Mr Summerton noted that persons in the respondent's personality profile appear passive and compliant outwardly, but that often masks anger and other oppositional attitudes. On clinical assessment, Mr Summerton considered that the central issues contributing to such a conflict in the respondent appeared to relate to control imposed on him by his parents and in a more indirect manner by his church.
The respondent 'essentially denied any sexual interest in children'.[32] He had difficulty explaining to Mr Summerton his motivation for committing the offences, and was preoccupied with portraying the behaviour as being very out of character for him. He consistently acknowledged the inappropriateness of his behaviour and described it as a big mistake.[33] That was similar to what he said to the author of the pre‑sentence report that was prepared for the same proceedings. Mr Summerton said that there was evidence of a pronounced level of shame, although it seems that was related in large part to having to deal with his parents about the matter.[34]
[32] Mr Meertens' affidavit, Annexure O, p 222.
[33] Mr Meertens' affidavit, Annexure O, p 217.
[34] Mr Meertens' affidavit, Annexure O, p 217.
In relation to the sexual nature of his conversations with the child persona, the respondent told Mr Summerton that the he had similar conversations with his ex‑partner, and gave the impression, disturbingly, that he viewed the child persona as a substitute in that regard.[35] In respect of the child pornography, the respondent indicated that he had downloaded the movie with other non‑pornographic material and that, when he opened it and realised that it was inappropriate, he immediately closed it. However, as Mr Summerton noted, the name of the movie would have alerted him to the inappropriate nature of the material before opening the file.[36]
[35] Mr Meertens' affidavit, Annexure O, p 217.
[36] Mr Meertens' affidavit, Annexure O, p 218.
I note that, when questioned by the author of the pre‑sentence report that was prepared for the 2007 sentencing, the respondent could not explain why he had sent the photo of his penis to the child persona. He denied having intentions to engage in sexual activity with underage girls and that he did not have sexual fantasies involving underage girls.[37] Of course, those claims were not consistent with the respondent's subsequent offending.
[37] Mr Meertens' affidavit, Annexure O, p 214.
The respondent presented himself to Mr Summerton as 'essentially being asexual'. However, he also claimed that his sexual interests related to women close to his own age,[38] which suggests he was not 'asexual'. Neither of those claims by the respondent was consistent with his subsequent behaviour.
[38] Mr Meertens' affidavit, Annexure O, p 223.
Mr Summerton used the Static‑99 risk assessment instrument to assess the respondent's risk of sexual reoffending. As Mr Summerton explained, the instrument, at that time, combined 10 static (unchanging) risk factors that have been shown to be associated with increased risk of reoffend. The respondent's score placed him in the 'medium high risk category' with a 3 in 10 chance of sexually reoffending within a five year period. Mr Summerton thought the assessment possibly overestimated the risk, because the offences were the first offences of any kind committed by the respondent.[39] As the respondent's subsequent offending demonstrated, the assessment may have in fact underestimated his risk of sexual reoffending against underage girls.
[39] Mr Meertens' affidavit, Annexure O, p 224.
Despite his denial of deviant sexual interest, the respondent expressed a willingness to engage in treatment, although Mr Summerton considered that position to be based on achieving a favourable outcome as opposed to reflecting his view of his actual needs.[40]

Reports of Ms Fowler

[40] Mr Meertens' affidavit, Annexure O, p 224.

Ms Fowler is a clinical psychologist who delivered psychological counselling to the respondent on a private basis after he was referred to her by his lawyer.[41] She prepared two psychological treatment reports. The first, dated 1 November 2013, was prepared for the sentencing of the respondent in the Perth Magistrates Court on 19 November 2013. The second, dated 25 February 2015, was prepared for the respondent sentencing in the District Court on 6 March 2015.

2013 report

[41] Mr Meertens' affidavit, Annexure R, p 235 (Ms Fowler's report, 25/2/15).

At the time Ms Fowler prepared her first report, she had seen the respondent on five occasions for counselling from 24 September 2013 to 29 October 2013. At that stage the respondent had been convicted of only the 2006 offences and was facing court in respect of a contravention of his reporting obligation by engaging in communication with a 12‑year‑old girl. Ms Fowler was not aware of the sexual offending that had been committed by the respondent in 2009 and 2010. It is necessary to have regard to that context, when considering that Ms Fowler was of the view that she had insufficient evidence to support the conclusion that the respondent met the criteria for any paraphilia, including paedophilia. However, on the basis of the facts of the respondent's prior offences and of the offence for which he was appearing in court, as well as a review of the respondent's 'chat logs', Ms Fowler was of the view that the respondent does have a sexual interest in underage females. That conclusion was reached notwithstanding the respondent's continued claim that he did not have a sexual interest in underage females, because he was motivated to engage in sexual relationships with adult females.

The respondent had suggested in treatment that his offences occurred at times when he was feeling bored, flat and stressed. When challenged about that explanation by Ms Fowler, the respondent acknowledged that people often feel that way but do not engage in online sexual conversations with underage females as a response.
Ms Fowler expressed the view that it was reasonable to conclude that the respondent's comments online to his victim, which included discussion about massage and the statement that he felt 'bored and horny', combined with his history of offending (as known at that time), raised the concern that the respondent's offending at that stage 'placed him at the beginning of the continuum of offending behaviour that could lead to contact sexual offending'.[42] Of course, we know now that the respondent had already engaged in contact sexual offending.
[42] Mr Meertens' affidavit, Annexure P, p 228.
Ms Fowler also expressed the opinion that the fact the respondent had engaged in the conduct constituting the offence for which he was been sentenced, after he had served a term of imprisonment for similar offending, raised concerns that 'even under supervision his ability to inhibit his behaviour of seeking contact with under-aged females is compromised'.[43] Ms Fowler identified the respondent's need for further individual forensic psychological treatment, focus specifically on increasing his insight, and his ability to communicate any insight he may already have, as to his motivation to interact in a sexual manner with underage girls in the 'virtual' world.[44] She also noted that the respondent's 'risk of possible contact offending will also need to be addressed given he sought to meet his underage victims in the "real" world'.[45]

2015 report

[43] Mr Meertens' affidavit, Annexure O, p 228.

[44] Mr Meertens' affidavit, Annexure O, p 228.

[45] Mr Meertens' affidavit, Annexure O, p 228.

In her second report, Ms Fowler said that, after the respondent was placed on the community‑based order (i.e. the Intensive Supervision Order), he remained engaged in treatment. Subsequent to being charged with the offences for which the respondent was to be sentenced on 6 March 2015, he attended counselling on six occasions, from 9 January 2014 to 1 October 2014, although four of those sessions were in January and February 2014.[46]
[46] Mr Meertens' affidavit, Annexure R, p 236.
Ms Fowler explained that the respondent 'initially experienced considerable difficulty acknowledging his sexual interest in underage females, despite the nature of his partner past and current offending'. It appeared that the difficulty arose from his concern that he would be labelled a paedophile and a 'difficulty integrating his perceptions of his sense of self with his sexual interest in underage females'.[47] Ms Fowler considered that the respondent's psychological defensiveness regarding his sexual offending was very strong and it took some time for her to build rapport with him and for the respondent to 'feel able to acknowledge his sexual interest and motivation to engage with underage females'.[48] The significant level of psychological defensiveness made treatment gains slow initially, but as rapport grew and the respondent 'appeared to become more comfortable in the therapeutic process, he was noted to offer more relevant and informative information that enables gains and insights to be made in identified the motivation for his offending behaviour'.[49]
[47] Mr Meertens' affidavit, Annexure R, p 236.
[48] Mr Meertens' affidavit, Annexure R, p 236 – 237.
[49] Mr Meertens' affidavit, Annexure R, p 237.
Ms Fowler said that the respondent 'currently reports being in a relationship with a 21 year old flight attendant … [who] he met through his sister'.[50] The reference to it being 'current' information suggests it was around the time the report was prepared, which was 25 February 2015. The respondent said they had known each other for two years and had dated over the previous eight months, which would suggest the dating commenced around June 2014.
[50] Mr Meertens' affidavit, Annexure R, p 238.
Ms Fowler noted that the literature on treating online and contact sexual offenders indicates that it is important to identify what motivates the individual's behaviour and to also identify the internal and external factors that assist to initiate and then maintain the offending.[51] The respondent's treatment needs were identified by Ms Fowler as including cognitive distortions, lack of victim awareness, poor sexual self‑regulation, his poor ability to identify, label and express emotions, poor emotional coping strategies, his social isolation and poor communication skills.
[51] Mr Meertens' affidavit, Annexure R, p 238.
The respondent's cognitive distortions were labelled by Ms Fowler as: 'children as sexual beings (adultification); nature of harm; and dangerous world (children are seen as safe)'.[52] Ms Fowler stated that the cognitive distortions enabled the respondent open 'to justify his offending behaviour as he held the belief that underage females are emotionally mature and therefore able to integrate sex and sexuality into the physical and psychological world as an adult female'.[53] The respondent's distortion, therefore, allowed him to believe he was causing them 'no harm'.[54] The respondent told Ms Fowler that he found younger females more accepting of him and that allowed him to feel more psychologically 'powerful', thereby 'reducing his fears and sense of inadequacy in his adult world'.[55]
[52] Mr Meertens' affidavit, Annexure R, p 239.
[53] Mr Meertens' affidavit, Annexure R, p 239.
[54] Mr Meertens' affidavit, Annexure R, p 239.
[55] Mr Meertens' affidavit, Annexure R, p 239.
Ms Fowler was of the view that the respondent's description of his online sexual behaviour indicated a lack of self‑regulation. Treatment had included the respondent developing an understanding of his sexually compulsive behaviour and how his poor self-regulation enabled him to interact sexually with underage females online.[56] The respondent claimed to use sexual talk and behaviour 'to avoid and distract from his low mood, social needs [and] sexual needs and to achieve a sense of feeling wanted and important'.[57]
[56] Mr Meertens' affidavit, Annexure R, p 239.
[57] Mr Meertens' affidavit, Annexure R, p 239.
I note, however, that such explanations by the respondent need to be considered in the context that he was continuing to maintain that underage females were not his primary sexual preference. It is difficult to accept that that was the case when he was committing the offences in 2009 and 2010 and continuing to engage online with teenage girls until 2013, and in light of the video referred to at [76] ‑ [78] above.
On the other hand, I note that, in sentencing the respondent, Wager DCJ accepted, on the basis of Ms Fowler's reports, that the respondent 'did not have the insight on [his] release to understand [his] cognitive distortions, lack of victim awareness, poor sexual self-regulation and poor ability to identify, label and express his emotions'.[58]
[58] Mr Meertens' affidavit, Annexure G, p 85.
In any event, Ms Fowler considered that the respondent had made some positive treatment gains in his ability to discuss his sexual offending behaviour in a meaningful manner. She was of the view however that the respondent required further forensic psychological treatment, and there was a need to focus on the respondent developing non‑intimate relationships and social interests and activities with adults outside his immediate family network.[59] Ms Fowler also considered that it would be beneficial for the respondent to complete a cognitive behavioural skills program, which would teach in general problem‑solving, relaxation and emotional management skills.
[59] Mr Meertens' affidavit, Annexure R, p 240.
Ms Fowler was of the opinion that it was unhelpful of the respondent to rely 'overly' on his intimate relationship with his then current girlfriend has a primary risk management strategy. She was of the view that it remained a treatment need for the respondent to further develop self‑regulation skills, including sexual self-regulation skills to reduce his risk of recidivism. She was of the view that if problems emerged in the respondent's intimate relationship, or the relationship completely broke down, that would be a high risk factor for the respondent to reoffend.[60]
[60] Mr Meertens' affidavit, Annexure R, p 240.
Ms Fowler was of the view that the respondent was suitable for participation in a group sex offender treatment programme, as he had become less defensive about discussing his sexual offending.

The Intensive Sex Offender Treatment Program

Section 7(3) of the Act requires the court to have regard to:
(e)any efforts by the person to address the cause or causes of the person’s offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person’s participation in any rehabilitation program has had a positive effect on the person …
The respondent engaged in the ISOTP from 29 June 2016 until 1 March 2017.
In the assessment stage, the respondent told the facilitators of the programme that his choice of young victims was 'due to his feelings of loneliness and inadequacy around same age peers'. He believed that due to their young age and lack of life experience, he could 'impress, groom, plan and then control them'. He said that when he successfully engaged in those behaviours, his ego and self‑esteem became inflated and his emotional connection with the victims overruled the 'legality around their age' and the power differential.[61]
[61] Mr Meertens' affidavit, Annexure T, p 250.
It is open to conclude that the respondent's explanation for his behaviour revealed either distorted thinking about the causes of his offending or, at the very least, an incomplete acknowledgement of those causes. It ignored the obvious issue of his sexual attraction to girls under the age of 16 years, indeed in their early teens, which was evident in his offending both online and physically from 2009 to 2013 and in his behaviour and comments in the video to which I have referred.
During the programme the respondent addressed what was perceived to be a deficit in his sexual knowledge 'probably stemming from his traditional upbringing'.[62] However, to the extent that this suggests the respondent lacked appreciation of the wrongfulness or seriousness of his behaviour, I note that such a proposition appears to have been rejected by Sweeney DCJ when she sentenced the respondent in 2007. Her Honour said:[63]
Finally, I do not accept you are an immature man who does not understand the implications of your offending. You may well be immature but your comments to the authors of the reports to me indicated you chose to deny the disturbing facts which highlight the implications of your offending.
I consider your denial of being sexually interested in children, your claim to have believed her to be older, though how much older is never mentioned, your claim that you never would have met up with her except that she instigated and arranged, your claim that you have no interest in articles of child pornography such as the one found in your possession all indicate that you can identify the key issues which make this serious offending and deny all of them.
[62] Mr Meertens' affidavit, Annexure T, p 251.
[63] Mr Meertens' affidavit, Annexure L, p 201.
Similarly, in describing the factors that led to his 'offending style', the respondent failed to acknowledge his sexual interest in underage girls. He referred to 'the combination of poor body image around same age potential partners, loneliness, isolation, and the strong yearning for a serious relationship'.[64] On my assessment of the findings made by Wager DCJ, the respondent's claim that he was yearning for a serious relationship was rejected, given the number of girls or young women with whom the respondent was communicating when he was purportedly in a relationship with KMB.[65]
[64] Mr Meertens' affidavit, Annexure T, p 252.
[65] Mr Meertens' affidavit, Annexure G, p 84.
In any event, the ISOTP completion report states that the respondent developed understanding of the factors that underpinned his offending, such as his self‑esteem being dependent upon his capabilities and performance, as well as his respected role within his family. Further, he began to appreciate that his striving for approval and recognition, as well as power and control in his interpersonal relationships had resulted in him feeling negative emotions, which he sought to escape through his internet activities.
At the time the respondent took part in the ISOTP, he indicated that he was in a long‑term relationship with an age-appropriate partner, although she was some years younger than him. He said that they engaged in active sexual behaviours over the phone. The facilitators noted that, while those acts were legal, he was brought to the respondent's attention that his behaviours were similar to his previous offending and could be deemed as 'offence paralleling'.[66] The respondent became defensive and justified his behaviour by stating that he and his partner were in a legal and consensual relationship. The facilitators noted that, upon investigation of prisoner phone calls, it was considered that conversations of that type were not common behaviour within the prison setting. The report notes that, while the respondent acknowledged the facilitators' concerns, he declined to abstain from his phone call activities.[67]
[66] Mr Meertens' affidavit, Annexure T, p 251.
[67] Mr Meertens' affidavit, Annexure T, p 251.
The summary and recommendations section of the report stated:[68]
[The respondent] completed the [ISOTP] on the 1st March 2017… Identified treatment needs considered were in the area of emotional and behavioural self-regulation and relationships. These included poor coping and problem-solving by becoming isolated, suppressing emotions, reliance on the Internet for socialising, and dating younger females, whilst placing unrealistic expectations with rigid timelines on himself when compared to his family and friends.
[The respondent] recognised how poor communication skills, emotional loneliness and insecure attachment led to his offending behaviour and it is noted to be a considerable treatment gain. He was resolute in his intention to maintain regular appointments with his counsellor/psychologist for support in these areas.
[68] Mr Meertens' affidavit, Annexure T, p 253.
The respondent was said to have developed a detailed self-management plan in which he identified warning signs for risk factors and strategies to avoid them or deal with them. He asserted his determination to avoid social media and socialising on the internet as well as an intention to develop pro‑social hobbies and interests and pursuing further investments.[69]
[69] Mr Meertens' affidavit, Annexure T, p 252.

Parole assessment – 8 December 2017

The respondent first came to be considered for release on parole in respect of the sentence imposed in 2015 in February 2018. A Parole Review Report was prepared for the benefit of the prisoners review Board on 8 December 2017.
The report noted that the respondent had not received any adverse incident reports during his term of imprisonment (for the sentence imposed in 2015). It also noted that he worked in reception at the prison where he was incarcerated and was regarded as a hard‑working individual who was polite and respectful to staff at all times. He was considered to pose no management issues or concerns.
The respondent had been approved to participate in Re-integration Leave (RIL) to visit his mother in the metropolitan area. Conditions applied, including a prohibition on the direct or indirect use of the internet and a prohibition on unsupervised contact with children under the age of 16. The report notes: 'to eliminate the risk of night‑time use of social media/phone/internet (which formed part of his previous offending) – no overnight periods of leave are permitted'.[70] In essence, therefore, he was allowed day leave to visit his mother, but was required to return to the prison at the end of the day. As at the date of the report, the respondent had been on seven RILs, and there had been no issues or concerns noted.
[70] Mr Meertens' affidavit, Annexure U, p 260.
The respondent was assessed as being suitable for release on parole.
I note that after that report was prepared, a document headed Corrective Services Offender Notes, which is among the additional materials received in these proceedings, contains an entry on 7 January 2018 which records that a Corrective Services officer (whose identity is not apparent from the document) listened to telephone calls from the respondent to his partner and ascertained that during the calls both parties 'used constant abuse towards each other but [the respondent] was the main instigator'. When contacted, the respondent's partner did not wish to have her telephone number removed from the respondent's contact list, although she confirmed that they were having relationship issues. Subsequently, on 7 January 2018, the respondent asked to speak with the officer. He told the officer he was aware the officer had spoken with the respondent's 'girlfriend' and he wanted to explain that they were having relationship issues, that he had 'snapped' on the phone and that he wanted to apologise for his actions. He was told he needed to improve his current behaviour on the telephone system.
Despite the favourable Parole Review report, on 12 February 2018 the Prisoners Review Board adjourned consideration of parole and requested a psychological report assessing the respondent's then current risk, and identifying any gains he had made on the ISOTP, any outstanding treatments needs and any recommendations to manage his risk of reoffending.

Ms Wager's report – 23 July 2018[71]

[71] Mr Meertens' affidavit, Annexure V, pp 266 – 275.

Ms Wager is a counselling and clinical psychologist. She prepared a report in response to the request from the Prisoners Review Board.
Ms Wager considered the respondent's history and his treatment on the ISOTP. She referred to his release plans, reporting that the respondent intended to move into an investment property belonging to his parents if granted parole. He said that his partner (who was living with his parents) had moved into the house. He described his relationship with his partner as having been sexually fulfilling before he went into custody, and he stressed his intention to avoid further offending.
Ms Wager administered psychometric testing. She said that the respondent's personality profile obtained by that testing differed from prior results. Ms Wager said:[72]
Significant elevations are congruent with people who have an admirable self-image, can be overly self-insured and have a strong sense of self-worth, despite their self-concept been inconsistent with their life achievements and/or the perception of others. Such people tend to actively seek praise and approval, desiring to be the centre of others attention. They can be intolerant of inactivity and so can engage in impulsive behaviour and emotional responsiveness. Short-sighted hedonism can be a feature and is congruent, to some extent, with [the respondent's] repeated sexual offending.
[72] Mr Meertens' affidavit, Annexure V, p 270.
Ms Wager reported that the respondent appeared to have developed an intellectual framework regarding his sexual offending, as well as having identified strategies to assist him function better in the future. She noted, however, that the respondent's confidence that he will not reoffend is consistent with what he reportedly expressed after his prior imprisonment for sexual offending. Ms Wager said that a high level of confidence 'could cause lack of awareness of high risk situations and resultant failure to take early action to avoid, or extract himself from them'.[73]
[73] Mr Meertens' affidavit, Annexure V, p 271.

In those circumstances, after making the orders referred to at [165] above, I also made orders adjourning the application for an interim detention order to 28 February 2020 and requesting the Department of Justice to prepare a report for that date assessing the respondent's suitability for release on an undertaking on conditions that reflected any proposed supervision order for the div 2 hearing, such assessment to include an assessment of the suitability of the proposed residential address in the event the respondent were to be released on a supervision order.
A report was subsequently prepared in accordance with that request by Mr Jarvie, a Senior Community Corrections Officer with the Community Offender Monitoring Unit. The report, headed 'Undertaking Assessment', is dated 24 February 2020. The report sets out the enquiries made by Mr Jarvie and proposed conditions for a draft undertaking that would be relevant to the respondent's circumstances.
As I noted earlier in these reasons, the applicant did not oppose the release of the respondent on an undertaking at the adjourned hearing, on 28 February 2020. However, it is necessary for me to indicate my reasons why I considered it appropriate to release the respondent on the undertaking.
As I noted earlier, apart from the fact that the conditions of an undertaking would be more extensive than the conditions to which the respondent was subject after he was released from prison in 2008, there were other considerations which militated against the making of an interim detention order, despite the force of the applicant's primary submission. Those considerations were informed by the matters I have discussed in detail in dealing with the preliminary issue and by the Undertaking Assessment.
The first consideration was the fact that the respondent has an adult female partner, Ms B, with whom he intends to live in the community. The evidence suggests that the respondent's relationship with Ms B commenced after the last of his offences. While some doubt has been raised in the psychological reports as to whether she would provide a sufficient protective measure against the respondent reoffending, and indeed there is the possibility that his risk may increase if the relationship were to break down,[98] Ms B's capacity to be a protective measure has not been tested. It would not be expected that she alone would prevent the respondent from relapsing. The potential benefit of her relationship with the respondent, in reducing his risk of reoffending, needs to be considered in the context of the conditions to which he would be subject. A number of the potential conditions were explained to Ms B. She said she intended to take one month's leave to be with the respondent if he was released. She said that no children would be coming to their home. Ms B also said she was prepared to remove the computer from her home, if that was necessary. Ms B indicated that she was open to communication with the respondent's CCO and saw the importance of disclosure, noting that she did not want to go through a situation in which the respondent reoffended and was returned to custody.
[98] See in particular [115] above, where I set out the concerns raised by Ms Fowler.
The second consideration was that there are other supports in the community who may provide a level of protection against a relapse by the respondent into sexual offending. The respondent's sister and his mother were also interviewed for the Undertaking Assessment and indicated they would provide support, albeit it would be limited in his sister's case. Although family support did not prevent the respondent from offending from 2009 to 2013, the context in which it will be relied upon now is different, and will be supplemented by supervision from a CCO. Further, Uniting Care West, which provides support to persons who are released into the community after serving a sentence of imprisonment, had indicated they would continue to provide the respondent with support if he were released into the community.
The third consideration was that from 3 September 2017 until 20 October 2018, the respondent was released into the community on re-integration leave on 36 occasions, each time for a period of 12 hours. His re‑integration leave was cancelled when he was referred to the DPP for consideration of an application under the Act. There is no suggestion that his behaviour while on re‑integration leave raised concerns at any time. The Undertaking Assessment indicates that he undertook activities such as shopping at shopping centres, eating at restaurants, attending family gatherings, attending medical appointments and visiting church and cemeteries. He also assisted his parents to deal with service providers and performed some domestic duties at his parents' home. It would appear that he was able to be trusted to behave lawfully in the community during that period.
The fourth consideration was that, while the respondent's gains in treatment, as I have outlined them, do not preclude the conclusion that he might be found to be a serious danger to the community, they are relevant to the question of whether his risk can be managed in the community, particularly when combined with other protective factors.
Fifthly, as I outlined earlier in these reasons, the respondent's offending followed a pattern that commenced with online contact with girls under the age of 16 years and involved a period of grooming. There has never been any suggestion in the psychological assessments that the respondent poses any significant risk of committing a sexual offence impulsively against a child he may meet in person in the community. The level of monitoring of the respondent's use of electronic devices provided for in the undertaking and the requirement that he be subject to electronic monitoring of his movements within the community, provide significant scope for early intervention if the respondent were to relapse into past behaviours of engaging with children online with a view to procuring sexual activity by those children remotely or by contact offending.
The sixth consideration was that the period during which the respondent would be on an undertaking was relatively short, being a period of about three months. That was relevant in at least two respects. First, it would be expected to reduce the likelihood of the respondent reoffending, given that his pattern of offending in the past involved grooming over a period of time. Secondly, it would be expected that the consequences of contravening the undertaking would be a pressing consideration in the respondent's conduct. Any contravention would not only put him at risk of being detained on an interim basis, but it could also prejudice his case at the div 2 hearing.
As will be seen from the undertaking, which is Annexure 1 to these reasons, the conditions place significant constraints on the respondent's activities and significant obligations on him to disclose information. The respondent's capacity to comply might be questioned, for the reasons initially put forward by the applicant. However, his conduct in prison was considered to be good; he was not considered to be a management issue. Further, some six to seven years have elapsed since the respondent's last series of offending, and there are some indications of increased maturity and changes in his understanding of his offending. In addition, the incentive for the respondent to comply with an undertaking in the relatively short period until the div 2 hearing is strong, for the reasons I have given.
In all the circumstances, I was satisfied that the respondent was likely to comply with the conditions of the proposed undertaking.
Finally, the premises where the respondent intended to reside if released on an undertaking were assessed and there were no issues that would make them inappropriate for that purpose. Any concerns about locations where there might be children could be overcome by the identification by the respondent's CCO of exclusion zones where the respondent could not go. What is necessary is that the respondent does not have unsupervised contact with female children under the age of 16 years. It seems to me there are sufficient measures in the undertaking to adequately reduce the risk of that occurring.

Orders

For the reasons I have given, I made the following orders on 24 January 2020:
1.The application for a Division 2 order pursuant to section 17(1) of the Dangerous Sexual Offenders Act 2006 be heard on 4 and 5 June 2020.
2.The respondent undergo examinations by two qualified experts, namely Dr PWO, psychiatrist, and Dr MH, psychiatrist, for the purposes of preparing the reports as required by section 37 of the Dangerous Sexual Offenders Act 2006 that are to be used on the hearing of the application for the Division 2 order.
3.The experts are not to include in their reports information or opinions about the respondent based on a communication with a third person unless details of that communication sufficient to identify the person with whom the communication was held, its date and a summary of its content is included in the expert's report.
4.The reports of the experts be provided to the applicant at least 14 days prior to the Division 2 hearing.
5.Any report authored by the Department of Justice, including any Treatment Progress Report, be provided to the applicant at least 14 days prior to the date of the Division 2 hearing.
6.The two experts named in order 2 liaise with the Department of Justice as to a management plan (if appropriate) for the respondent to be supervised in the community.
7.Pursuant to section 122 of the Criminal Investigation Act 2006 the two experts, and any expert engaged by the respondent, may be supplied with and may view any audiovisual recordings of interviews with the respondent, or transcripts of the same, for the purpose of preparing their reports.
On 28 February 2020, I made the following orders:
1.The Respondent be released at the conclusion of his current sentence subject to the conditions of the undertaking set out in the Schedule to this order, until 4 June 2020.
2.The application for an interim detention order is adjourned sine die.
3.There be liberty to the parties to apply generally.
The Schedule is Annexure 1 to these reasons.

Annexure 1 - Schedule to order made on 28 February 2020
UNDERTAKING
You, [PDD], hereby undertake to the court that you will abide by the following conditions until the final determination of the application for orders under sections 14 and 17(1) of the Dangerous Sexual Offenders Act 2006 in relation to you, or until further order of the court. You must:

Residence

1)Take up residence at [address stated] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer ('CCO') assigned to you.
2)Not leave or remain out of the State of Western Australia.

Reporting to CCO and supervision by CCO

3)Report to a CCO at your nominated address on the day of release from custody under this undertaking.
4)Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO.
5)Report to and receive visits from the CCO at times and at places as directed by the CCO, such arrangements to have regard to any employment commitments.
6)Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.
7)Be subject to electronic monitoring on the same terms as set out in section 19A of the Dangerous Sexual Offenders Act 2006.

Reporting to WA Police

8)Report to the Officer-in-Charge of the Sex Offenders Management Squad ("SOMS") Headquarters at the [address stated] within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of SOMS or his/her delegate.
9)Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
10)If requested, permit Police Officers to enter and search your residence and/or vehicle, or your person for the purpose of monitoring your compliance with your obligations under this undertaking and allow the seizure of any such material that the Police Officer believes to contravene the conditions of this undertaking.
11)Remain at your premises and/or vehicle when Police Officers conduct a search under the Dangerous Sexual Offenders Act 2006.
12)When requested, advise police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities and passwords used by you.

Disclosure / Exchange of information between agencies

13)Agree to the exchange of information between persons and agencies involved in your supervision, including otherwise confidential information. This does not include any medical practitioner, psychologist, psychiatrist or counsellor that you may see of your own volition for the purposes of defending application DSO 1 of 2020.
14)Allow the CCO, or other persons or agencies approved by the CCO, to (i) interview any associates or potential associates and (ii) disclose to them your offending history including otherwise confidential information.

Restrictions on contact with victims or with family of victims

15)Have no contact, directly or indirectly, with the victims of any of your sexual offences, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice, or in a manner approved of in advance by the CCO.
16)Unless contact with the victims is permitted pursuant to the previous condition, to immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of the victim), without engaging in conversation with the victim whether by word or gesture, and to avert your gaze from such a victim at all times.
17)Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to that person or agency.
18)Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.

Criminal conduct

19)Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A.
20)Not commit any offence contrary to s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K of the Criminal Code 1913 (WA).
21)Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves violence, threats of violence, or the possession of weapons or offensive instruments.
22)Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.

Curfew

23)Be subject to a curfew on the same terms as set out in section 19B of the Dangerous Sexual Offenders Act 2006.
24)When subject to the curfew under this undertaking, present yourself for inspection at the front door or curtilage of the approved address, or speak on the telephone to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
25)When subject to the curfew under this undertaking, to ensure that all those people present in the residence who may answer the telephone or door are aware as to your obligations, and to request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring compliance with the curfew.

Medications/Mental Health

26)Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO.
27)Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level or risk of re-offending and compliance with treatment to the Department of Justice.

Prevention of high-risk situations

28)Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
a.the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
b.the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction and another adult is present.

('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
29)Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
30)Provide details of any contact with a child under the age of 18 years to both your CCO and the police upon the next occasion you report to that person or agency.
31)On the next occasion you report to your CCO, report the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship.
32)Not form any domestic relationship with a person who has a child or children under the age of 18 years in their care either full time or part time.
33)As directed by a CCO, make full disclosure regarding your past offending and this undertaking to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
34)Have no contact with, membership or affiliation with clubs, associations or groups where membership is primarily for children and to cease/cancel such membership if directed to do so by a CCO or Police Officer.
35)Not to associate with any person known to you to have committed any sexual offence, unless such association is authorised in advance by the CCO.
36)Not possess, or consume, or use, or purchase alcohol unless approved in advance by a CCO.
37)Not possess, or consume, or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.
38)Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such person to an appropriate location for such testing to take place.
39)Provide a valid sample for testing pursuant to condition 38.
40)Not access the internet on any computer, mobile phone or other device capable of internet access unless such access is supervised at all times by a person approved in advance by a CCO and for a purpose approved in advance by a CCO.
41)With respect to any computer or other device that is connected or capable of connecting to the internet in your possession or that has been used by you to access the internet, not delete or otherwise remove and/or disguise, or cause to be removed and/or disguised, any search histories or logs capable of identifying your activities on that device, without the approval in advance by a CCO or police officer.

42)Permit a CCO or WA Police at any location as nominated by them to access any computer or other device capable of storing digital data, for the purpose of ascertaining your computer activities, and provide to the CCO or WA Police upon request any usernames and/or passwords or any other device locking means required for such access.
43)With respect to any computer or other electronic device that is connected or capable of connecting to the internet, enable pin or password protection of that device and not provide any pin or passwords or any other device locking means required for such access to anyone other than Police or a CCO.
44)Not join, access, register or use any social media applications, programs or services without the prior approval of a CCO.
45)Not to share or access any electronic device of another person or organisation that is capable of accessing the internet, unless such access is approved in advance by the CCO.
46)Not conduct computer searches for, access data containing, nor collect or possess in either electronic or permanent form, images of children, whether indecent or not.
47)Not be in present possession of any children’s toy, game, or confectionary capable of constituting an enticement to children, unless such possession is for a legitimate purpose.
48)Not to approach, under any circumstances other than serious emergency, within a radius of 100 metres of the external boundary of any school, child care centre, or park where children may be present.
49)Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and Police Officer upon request.

DSOA processes and return to court

50)Make yourself available to a CCO or to the court-appointed experts for any consultation required of you in relation to the preparation of reports or other evidence to be given to the court at the hearing.
51)Surrender yourself to the Supreme Court at Perth in person for the final hearing of the application in this matter on 4 and 5 June 2020 or such other date as you shall be advised by the Court that your attendance is required.

I have received a copy of this UNDERTAKING.
I have had explained to me and understand the effect of this undertaking and what may happen if I breach it

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
YO
Research Orderly to the Hon Justice Fiannaca
29 MAY 2020