The State of Western Australia v DAL [No 3]
[2017] WASC 260
•31 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DAL [No 3] [2017] WASC 260
CORAM: ARCHER J
HEARD: 18 JULY & 24 AUGUST 2017
DELIVERED : 24 AUGUST 2017
PUBLISHED : 31 AUGUST 2017
FILE NO/S: DSO 2 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DAL
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Review - Whether supervision order should be made or detention order should be continued - Whether conditions of supervision order ensure adequate protection of the community
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Release on supervision subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr B D Meertens & Ms S Markham
Respondent: Ms M R Barone
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v DAL [2015] WASC 210
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Narkle [No 5] [2017] WASC 46
The State of Western Australia v West [2013] WASC 14
Contents
Introduction
The respondent's offending
The decision of Mitchell J - continuing detention order
The decision of Beech J - the first review
The evidence on this review
Psychiatrist - Dr Wojnarowska
Dr Wojnarowska's report
Dr Wojnarowska's oral evidence at the hearing
Psychologist ‑ Ms Wilson‑Brown
Ms Wilson‑Brown's report
Ms Wilson‑Brown's oral evidence at the hearing
Community supervision assessment
Ms Rathmann's report
Ms Rathmann's oral evidence at the hearing
Legal principles
Serious danger
Value of expert reports
Options if serious danger
Objects of the review requirement
The issue
Continuing detention or conditional supervision order
Attitude of the State
Concerns of Beech J
Fully accepting of paedophilic tendencies
No more work can usefully be done
The significance of the respondent's own fearsSincerity
Risk if supervision order
Unaddressed concern - accommodation
Conclusion ‑ whether the risk can be adequately managed in the community
Conditions opposed
Conditions for the benefit of a victim
Length of order
Orders
Recommendation
ARCHER J:
Introduction
This is the second review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) by Mitchell J on 11 June 2015.[1]
[1] Director of Public Prosecutions (WA) v DAL [2015] WASC 210.
On a review, the questions are:
(1)whether the person remains a serious danger to the community;
(2)if so, whether the person should be released into the community under a supervision order on conditions, or whether the detention order should remain in operation.
The first question is not in issue; the respondent accepts that he remains a serious danger to the community. The issue is whether he should be released under a supervision order.
After the conclusion of the hearing of this matter, I was satisfied that the respondent should be released under a supervision order. I made orders rescinding the continuing detention order, and ordered that the respondent be the subject of a supervision order for a period of eight years, on the conditions contained in the annexure to these reasons. These are my reasons for decision.
The respondent's offending
I adopt the summary of the respondent's offending and his convictions set out in the reasons of Beech J in the first review:[2]
[2] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [6] ‑ [16].
DAL was convicted of unlawful carnal knowledge of a girl under 13 years in July 1975 when he was 25 years old.
The respondent sexually offended against his daughter, LML, from 1979 to 1986, beginning when LML was 6 years old. The offending began with touching of the breasts and vagina, progressing to penile penetration when she was 10 years old.
He was convicted on his pleas of guilty of sexually penetrating LML and was sentenced in 1987 to a total effective sentence of 6 years.
The respondent was in custody from 1986 until 1989 when he was granted a work release order and then parole.
He commenced offending against his nephew, RJL, in the car on the way home from prison. The offending escalated to various forms of penetration and continued until the respondent went back to prison in October 1991. As will be seen, when he was released from prison, he resumed his offending.
In mid‑1990, the respondent commenced offending against RGH, who was 11 years old and the younger brother of a member of a children's football team that the respondent coached.
The respondent was convicted of two counts of unlawfully indecently dealing with a child (RGH) under the age of 13 years on 30 October 1991. He was sentenced to a total effective sentence of 3 years' imprisonment.
The respondent was released from prison during 1993 on a work release order and was granted parole in November 1993.
Shortly after release from prison in June 1993, the respondent recommenced offending with RJL, his nephew. His sexual abuse of RJL continued regularly until January 2000.
In November 2003, the respondent was convicted on his own plea of guilty of a number of offences of child abuse and sexual penetration of a child (RJL) between July 1989 and January 2000. He was sentenced to a total effective sentence of 12 years' imprisonment, backdated to June 2003, with no eligibility for parole.
The respondent was in custody from June 2003 until 2015 when the continuing detention order was made.
The decision of Mitchell J - continuing detention order
In the first review, Beech J also summarised the reasons of Mitchell J for making the continuing detention order. I adopt that summary.[3]
[3] DAL [No 2] [17] ‑ [19].
In particular, Mitchell J found:
(1)the propensity of the respondent to sexually abuse children was very high, and he had little insight into his tendencies;
(2)the respondent's previous releases from custody have been followed by sexual offending against children within a very short period of time;
(3)the respondent has previously manipulated treatment program facilitators;
(4)the risks posed by the respondent cannot be adequately managed at either of the two places where it is proposed that he might live; and
(5)it would be undesirable to release the respondent before proposed risk management measures have been applied and there has been an opportunity to reliably gauge their effect.
The decision of Beech J - the first review
In the first review, the respondent did not dispute that he remained a serious danger to the community. Beech J found that the community would not be adequately protected if the respondent were released on a supervision order, and declined to rescind the continuing detention order.[4]
[4] DAL [No 2] [62].
In assessing whether a supervision order could adequately protect the community from the risk of further offending, Beech J noted the following:
(1)Any future re‑offending by the respondent is likely to be in a similar manner to his previous offences, which have been predominantly within his family and have involved a period of grooming. The risk to the community does not lie in the prospect of a single instance of contact with a child resulting in the commission of a sexual offence at that point. Rather, the risk of re‑offending lies in the respondent finding a means of developing a relationship with a child, after which he then commits a sexual offence against that child.[5]
(2)The respondent would be subject to GPS (Global Positioning System) monitoring, conditions preventing him from having contact with children, restrictions as to his movements, place of residence and employment, strict supervision, on‑going counselling, and a condition which enables community corrections or police officers to speak with anyone associating with the respondent and to disclose to them confidential information, including his offending history.[6]
(3)In order for the respondent to develop a relationship with a child, he would need to breach the conditions of his supervision order on a number of occasions. That would increase the likelihood that any such breaches would be detected before any sexual offence was committed.[7]
[5] DAL [No 2] [39].
[6] DAL [No 2] [40], [42].
[7] DAL [No 2] [41].
Therefore, Beech J concluded that there were several layers of protection against re‑offending.[8] However, Beech J was not satisfied that the proposed conditions would adequately protect the community, for the following reasons:[9]
(1)Although the respondent had considerably greater insight into his paedophilic tendencies than was the case in June 2015, he was still not able or willing to accept the full extent of his paedophilic tendencies.
(2)His treating psychologist considered that there were several areas where continued work would maximise his chances of successfully navigating any future release into the community. In this respect, Beech J noted that the respondent's counselling for paedophilia had been for a relatively short period compared to his history of offending.
(3)The respondent described himself as being nervous about the prospect of being around children when released and said that 'he could not guarantee that he would never re‑offend against children in the future'. Beech J considered that further counselling was necessary before it could confidently be concluded that the conditions of a supervision order would ensure the community was adequately protected.
(4)The respondent had a history of successfully creating what were shown to be dramatically over‑optimistic assessments of his ongoing risk of re‑offending. This caused Beech J to be concerned as to whether all the gains reported in counselling were genuine, rather than an attempt to create a favourable impression in order to secure release. Beech J also accepted Dr Wojnarowska's evidence that, if the respondent became involved in grooming a child, he may become 'very secretive, and not forthcoming with information, especially to people he is engaged with, such as his psychologist, community corrections officers ...'. These would be 'very soft signs, and not easily detectible'. As a result, Beech J was concerned that, if the respondent began to have contact with a child, he may become secretive and deceptive, and may succeed in deceiving those around him, as he had previously done. These considerations diminished the likelihood that a breach of the conditions of a supervision order would be detected before any further offence was committed.
(5)Dr Wojnarowska considered that the risk that the respondent will commit a further serious sexual offence was still very high. Beech J noted that Dr Wojnarowska did not express any opinion in her report or in her oral evidence as to the extent of the risk if he were subject to a supervision order with conditions. Beech J said that the absence of such an opinion tended to invite caution before concluding that the proposed conditions would ensure adequate protection of the community.
(6)There were two issues in relation to the proposed accommodation. First, the GPS signal was intermittent in the area. Secondly, the proposed residence was close to schools, shops and parks. While there were proposed exclusion zones, children might regularly walk to and from schools and parks and, in doing so, might well use streets outside the exclusion zone but very close to the proposed residence. That would provide opportunity for interaction, possibly regular, between the respondent and a child in circumstances that might not be readily detected.
[8] DAL [No 2] [43].
[9] DAL [No 2] [48] ‑ [61].
For these reasons, Beech J did not consider that release on a supervision order would ensure adequate protection of the community, and declined to rescind the continuing detention order.
The evidence on this review
The State tendered, by consent, a book of materials which included an updated report from psychiatrist Dr Wojnarowska, a treatment progress report by psychologist Ms Wilson‑Brown, and a community service assessment by Ms Rathmann of the Department of Corrective Services.[10] Those three witnesses gave oral evidence in chief and were cross‑examined.
[10] Exhibit 1.
The respondent elected not to give or adduce any evidence on the review.
Psychiatrist - Dr Wojnarowska
As Beech J said,[11] Dr Wojnarowska is a psychiatrist with considerable experience and training in relation to the assessment and treatment of dangerous sex offenders.
Dr Wojnarowska's report
[11] DAL [No 2] [22].
Dr Wojnarowska's updated report was dated 11 July 2017. For this report, Dr Wojnarowska, among other things, interviewed the respondent for two hours on 10 June 2017.[12] Dr Wojnarowska found the respondent to be sincere in his answers to her. She said he seemed to be forthcoming with information and displayed a good insight, high levels of guilt and shame and empathy towards the victims.[13]
[12] Exhibit 1, report of Dr Wojnarowska [2].
[13] Exhibit 1, report of Dr Wojnarowska [8.2].
Dr Wojnarowska also spoke with Ms Rankin, the respondent's treating psychologist.[14] Dr Wojnarowska reported that Ms Rankin confirmed the respondent's views on his progress and said that he has consolidated on the gains which he achieved last year, namely his increased level of insight, his readiness to engage with others, and his open style of communication with her and with his partner.[15]
[14] Exhibit 1, report of Dr Wojnarowska [2].
[15] Exhibit 1, report of Dr Wojnarowska [11.1].
In assessing the risk that the respondent would commit sexual violence in the future, Dr Wojnarowska used the Risk Sexual Violence Protocol (RSVP). She noted that many of the factors had not changed since her last assessment in 2016. She set out in her report her analysis of each of the factors that are raised under the RSVP.[16]
[16] Exhibit 1, report of Dr Wojnarowska [14.2] ‑ [14.28].
In particular, Dr Wojnarowska noted the following:
(1)The factor 'Problems with Self Awareness' relates to the person's insight into the factors and processes that place them at risk of sexual violence. The respondent has made progress in this area. He is now comfortable with discussing his negative thoughts, feelings and occasional deviant sexual fantasies in his therapy. He is well aware of how his own experience of sexual abuse had influenced his deviant behaviours in the past.[17]
(2)The factor 'Problems with Stress and Coping' reflects an individual's resilience and ability to adjust to stressors or external events. Re‑offending may follow a failure to manage major life events, including more trivial events. Difficulties in managing stress are associated with the risk of general violence. However, this is a dynamic factor that can be addressed through therapy. The respondent has recently demonstrated that he could cope well under high stress. After the first review last year when his continuing detention order was not rescinded, he returned to prison without any major changes in his mental state or attitude towards treatment. He has never threatened violence towards himself or others when faced with adversity. He has maintained compliance with his medications and psychological counselling, and he has managed to progress to and adapt well at Karnet prison.[18]
(3)In relation to the factor 'Problems with Intimate Relationships', the respondent's current relationship continues despite both parties being disappointed with the outcome of the first review. The respondent's partner is also prepared to make allowances for the conditions of a supervision order, should he be released. For example, she will not permit her niece's children to enter her house when the respondent is there. The quality of this relationship can only be tested once the respondent is released, but it appears that it has been a supportive one with no signs of volatility or hostility even when under stress.[19]
[17] Exhibit 1, report of Dr Wojnarowska [14.15].
[18] Exhibit 1, report of Dr Wojnarowska [14.16].
[19] Exhibit 1, report of Dr Wojnarowska [14.23].
Dr Wojnarowska reported that a number of factors are particularly relevant in assessing the likelihood that the respondent would be willing and able to comply with conditions if released into the community. These include that the respondent:
(1)is able to accept personal responsibility for his offending and displayed genuine empathy and remorse for his past behaviour;[20]
(2)has consistently demonstrated, since he started his individual therapy, that he did not condone his past offending and has developed an understanding of the damaging effect of his behaviour on his victims. He does not support any type of violence and his behaviour in the prison over the last 12 years confirms that;[21]
(3)has consistently engaged with the treatments offered to him. He has demonstrated that he has made gains and is motivated to continue with the proposed management, which reflects positively on his manageability in the community;[22]
(4)has demonstrated pro‑social attitudes and preparedness to obey the prison's rule. He has been trusted to do a job in the administration office and at the front gate of the prison. He has also disclosed to his psychologist his deviant fantasies when he experienced them in the past.[23]
[20] Exhibit 1, report of Dr Wojnarowska [14.13].
[21] Exhibit 1, report of Dr Wojnarowska [14.14].
[22] Exhibit 1, report of Dr Wojnarowska [14.27].
[23] Exhibit 1, report of Dr Wojnarowska [14.28].
In concluding her report, Dr Wojnarowska wrote:[24]
[The respondent] does not suffer from a major mental illness; he does not display a major personality disorder and does not have a history of substance use. [The respondent] continues to pose a high risk of sexual reoffending if not subject to a continuing detention order or supervision order due to his deviant sexual interest in children.
My opinion regarding his manageability in the community on the supervision order (SO) has not changed since my last assessment of him and I remain supportive of this option. I do believe that his risk status has not changed in the past 12 months since I assessed him and I am of the opinion that he will co-operate with the orders.
In summary, if the Court rescinds [the respondent's] CDO, he would require to continue offence-specific psychological treatment augmented with treatment with antidepressant medications. His compliance can be measured by the levels of the medication (its active ingredient) in blood test. The conditions of [the respondent's] supervision have been outlined in [the report of] Ms Rathmann, his CCO and I concur with these. My support of the Geraldton accommodation versus Perth one has been explained earlier in this report.
Dr Wojnarowska's oral evidence at the hearing
[24] Exhibit 1, report of Dr Wojnarowska [19].
Dr Wojnarowska agreed with counsel for the respondent that there were two robust predictors of the risk of re‑offending - sexual deviance and psychopathy.[25]
[25] ts 188 ‑ 189.
Dr Wojnarowska said that, because the respondent is a paedophile, he is at high risk of re‑offending if not detained or subject to a supervision order. Dr Wojnarowska said that, if he was released, his case management should be at the highest level. This was because he had a true paedophilic interest in children that is not likely to disappear with age. Accordingly, he would be of high risk of re‑offending if there were not continuous psychological input.[26]
[26] ts 186 ‑ 187.
Dr Wojnarowska agreed that, while the respondent was a high risk because he is a paedophile, he would be of even higher risk if he was also psychopathic. The combination of sexual deviance and psychopathy presents the highest risk of re‑offending.
Dr Wojnarowska said she did not need to administer a formal test to measure psychopathy, as the respondent did not display any signs of psychopathy. She was taken through each of the facets of the formal test which measures psychopathy, and she explained why the respondent did not exhibit various indicators, including none of the indicators of a pathological liar.[27]
[27] ts 181 ‑ 182, ts 188 ‑ 194.
Dr Wojnarowska also said the fact that the respondent does not have any major mental illness bears upon both risk and manageability.[28]
[28] ts 201.
Dr Wojnarowska said the respondent did fully acknowledge the extent of his paedophilic tendencies.[29]
[29] This is discussed later in the discussion of the concerns of Beech J.
Dr Wojnarowska repeated that the nature of the respondent's sexual interest, and the fact that it will be lifelong, was what made him a high risk. However, Dr Wojnarowska said the respondent's high risk of re‑offending was 'very manageable'.[30]
[30] ts 195.
Dr Wojnarowska expanded on the reasons set out in her report as to why the respondent was particularly manageable. These included:
(1)the respondent has insight into his sexual deviance, and understands what the early warning signs might be;[31]
(2)the respondent understands that he must always think about his risk of re‑offending;[32]
(3)the respondent has high levels of guilt, shame and empathy, making him more likely to avoid offending, to report something that is in breach, and to divert his attention to try to seek intimacy in an appropriate way;[33]
(4)the respondent has received counselling focused on rehearsing strategies to avoid re‑offending, and he has developed those strategies;[34]
(5)the respondent demonstrated, in his reaction to the outcome of the first review, strength and ability to cope with a major stressor in a mature way, without blaming others, giving up, or having a major mental breakdown. Instead, he continued to engage with therapy. Further, after a short break at his partner's request, their relationship survived intact.[35] Dr Wojnarowska acknowledged the respondent had been receiving anti‑depressants at the time, which would have assisted him. However, she said that, even with medications, it still would have required good self‑control to maintain a positive outlook.[36]
[31] ts 203 ‑ 204.
[32] ts 205.
[33] ts 205 ‑ 206
[34] ts 204 ‑ 205.
[35] ts 208.
[36] ts 232, ts 234.
Dr Wojnarowska identified the advances that the respondent had made since the last review, including that he consolidated gains he had made, rehearsed his risk management strategies, and further improved his ability to recognise negative situations.[37] Dr Wojnarowska agreed with the gains identified in Ms Wilson‑Brown's report.[38] Dr Wojnarowska also agreed that the respondent's self‑management was very well advanced.[39]
[37] ts 210.
[38] ts 210 ‑ 211.
[39] ts 212.
Dr Wojnarowska confirmed her opinion remained that, if the respondent were to re‑offend, it is likely to be in a similar manner to his previous offences, which were predominantly intrafamiliar, associated with a period of grooming. She said the important part of his re‑offending would be to establish a relationship with the future victim. She said the respondent's offending was more about having a relationship with a child, rather than high sexual needs, so he would need to be involved in extensive grooming.[40]
[40] ts 174.
She said it was highly unlikely that he would commit an offence against a child he did not have an established relationship with. She said it was highly unlikely he would commit an opportunistic offence; it was highly unlikely he would snatch a child and commit an offence. She said it was highly unlikely he would offend against a child with whom he had only had one or two very short contacts. She said the risk of sexual contact would only arise after the respondent had formed a relationship with a child that was sufficiently enduring to allow him to develop deep feelings for the child.[41]
[41] ts 217.
In relation to a child he might see at a bus stop, Dr Wojnarowska said it would need to go much further than just saying 'hello, how are you' on a daily basis. He would need to feel that the child needed him. Dr Wojnarowska also said that, if a child missed a bus and asked for his help, she would not expect the respondent to offend against the child at this first opportunity. Indeed, she would expect him not to engage with the child at all.[42] Dr Wojnarowska noted that the respondent appears to be highly motivated not to hurt another person and is also highly motivated not to ever return to prison. She said these were two very strong deterrents that are important to note in his risk of re‑offending.[43]
[42] ts 218 ‑ 219.
[43] ts 218.
Dr Wojnarowska said the respondent's supportive relationship with his partner was a protective factor. She said this would be so regardless of whether that relationship became a sexual relationship. She explained this is because the respondent's offending is not driven by sexual desire, but by a desire for emotional intimacy. She accepted that the termination of the relationship with his partner would be a risk factor, and said this is why it is vital that the respondent have other supports in place. She noted that the respondent has known his partner for a long time, since before he was incarcerated, and their relationship had survived the set back of the outcome of the first review. His partner has had some counselling herself to address her own sexual abuse, but which also focused on protective behaviours she could implement in her relationship with the respondent.[44]
[44] ts 167 ‑ 168, 187, 201 ‑ 203.
Dr Wojnarowska's opinion was that, if the respondent was released under the proposed conditions, and if he commenced a relationship with a child, the relationship would be detected before it got to the point of sexual offending.
As to the respondent's proposal to live in Geraldton in his partner's home, Dr Wojnarowska considered that the negatives associated with that (including the proximity concerns referred to and the need for the respondent to switch counsellors[45]) are outweighed by the positives.[46]
[45] Discussed later.
[46] ts 219, 237 ‑ 238.
As to the length of a supervision order, Dr Wojnarowska said that any such order should be for eight years. This was because people with paedophilia maintain paedophilic interest for quite significant lengths of time and 70 or 80‑year‑old people may still offend against children. As noted earlier, Dr Wojnarowska said the respondent's offending is not driven by sexual desire, but by a desire for intimacy. Accordingly, his interest in children was not directly related to libido. It was more about the psychological identification with children. She explained that the respondent uses his contact with children as a way of meeting his need for intimacy, which did not have to be sexual. However, his intimacy with a child becomes sexual because this is the way in which intimacy occurred with him in his own childhood.[47]
[47] ts 168, 186 ‑ 187, 197 ‑ 198, 222 ‑ 223.
Dr Wojnarowska agreed that, in suggesting a supervision order of eight years, she had not taken into account the recently introduced right of the DPP to make an application for a further supervision order to take effect on the expiry of an existing order.[48] She said that, if she factored that in, she would revise her answer of the appropriate time period for a supervision order to five years.[49]
[48] s 8(4A) of the DSO Act.
[49] ts 224.
Dr Wojnarowska said that, although the respondent is not driven to offend by his sex drive, there is still value in the use of selective serotonin re‑uptake inhibitors (SSRI). This is for two reasons. First, SSRI reduce the likelihood that the respondent will have sexual thoughts and fantasies. Secondly, the SSRI will assist with his mood, and low mood is a risk factor for re‑offending.[50]
Psychologist ‑ Ms Wilson‑Brown
[50] ts 198 ‑ 201.
Ms Wilson‑Brown is a senior counselling psychologist. Among other things, she interviewed the respondent for just over two hours, and she interviewed and consulted with his treating psychologist Ms Rankin. Ms Wilson‑Brown also reviewed various documents, including the counselling case notes.
Ms Wilson‑Brown's report
In summarising the respondent's treatment history, Ms Wilson‑Brown noted:
(1)Prior to being declared a dangerous sexual offender (DSO), the respondent completed two Intensive Sex Offender Treatment Programs (ISOTP) in 1992 and 2010. The respondent's participation in both programs was described as positive, with gains in his knowledge of high‑risk situations and his offending cycle, and with a greater acceptance of responsibility for his past behaviour. However, it was noted that the respondent re‑offended shortly after his release from prison in 1993. He admitted to facilitators of the 2010 program that he had 'fooled' the facilitators of the 1992 program by providing them with answers he anticipated they were looking for. It was also reported that the respondent had failed to adequately disclose his ongoing paedophilic fantasies and urges to the facilitators of the 2010 program.[51]
(2)Prior to the first review , the respondent participated in 30 sessions with Ms Rankin, a psychologist with the Forensic Psychological Service (FPS). Treatment gains were made, but outstanding treatment needs were reported.[52]
[51] Exhibit 1, report of Ms Wilson‑Brown [4].
[52] Exhibit 1, report of Ms Wilson‑Brown [5].
Ms Wilson‑Brown reported that the respondent has participated in 18 individual counselling sessions with Ms Rankin since the first review.[53] Ms Wilson‑Brown's report summarised what she had been told by Ms Rankin about those sessions. Among other things, she noted:
(1)Ms Rankin described the respondent as engaging well in counselling. She considered him to be an active participant who was responsive to feedback, raised relevant issues for discussion and undertook work in his own time that he then discussed in subsequent sessions. Ms Rankin stated that, following the outcome of the first review, the respondent was angry and disheartened with the judgment and he initially questioned the utility of continuing to participate in counselling. However, Ms Rankin stated that, once he had the opportunity to vent his frustrations, he was easily re‑directed to continue engaging in counselling. She also commented that his experience of anger was appropriate and manageable given the context and his expectations of release prior to the first review.[54]
(2)The respondent has a good understanding of what his risk factors are and how to manage them. The respondent required help only with generating scenarios, and he had developed an internalised understanding of how to manage his high risk situations, as demonstrated by his ability to independently consider his actions and outcomes.[55]
(3)Ms Rankin disagreed with concerns raised during the first review regarding the respondent's limited confidence in his ability to manage situations that create a risk of re‑offending. She described the respondent as having a realistic perception of his ability to manage high risk situations in the community. She further indicated that she would be concerned if he had attempted to provide a guarantee in regards to his risk of re‑offending, as this could have suggested an attempt at impression management.[56]
(4)Ms Rankin said she did not observe any evidence of impression management by the respondent in sessions throughout the past year. She considered it unlikely that he had been providing false information during counselling, particularly as they have now been working together therapeutically for two years. However, she did note that, given his history of impression management in therapeutic contexts, his predisposition to impression management should always remain a factor to be monitored.[57]
(5)Ms Rankin surmised that it is doubtful whether further counselling in prison would be of therapeutic value given his limited opportunity to utilise risk management strategies in real life situations.
[53] Exhibit 1, report of Ms Wilson‑Brown [8].
[54] Exhibit 1, report of Ms Wilson‑Brown [8].
[55] Exhibit 1, report of Ms Wilson‑Brown [10].
[56] Exhibit 1, report of Ms Wilson‑Brown [16].
[57] Exhibit 1, report of Ms Wilson‑Brown [17].
Ms Wilson‑Brown's report then set out what she saw to be the 'future intervention issues',[58] including the following:
[58] Exhibit 1, report of Ms Wilson‑Brown [39] ‑ [51].
(1)The respondent has continued to engage in individual counselling as an active participant and has continued to work through treatment goals. He appears to have a productive therapeutic relationship with Ms Rankin in which he feels secure in addressing a variety of issues. Ms Rankin has described some positive gains in identified treatment goals, which were also evidenced during Ms Wilson‑Brown's assessment. Specifically, treatment gains have been observed in:
•the respondent's continued development of his risk management plan, which includes further consideration of high risk situations;
•a more comprehensive understanding of his emotion management strategies, with demonstrated evidence of applying these skills in his custodial placement; and
•further consideration of issues that may arise in his relationship which may impact on his coping or support network.
(2)The respondent's risk management plan was further developed to expand on how he would manage high risk situations with children, low mood and other situational stressors. This plan has also been expanded to include external and internal support processes, which is an improvement since he was last assessed. Incorporating emotion management into his risk management plan has been effective. If released, his risk management plan should be refined according to his new environment.
(3)The introduction of a mood diary also appears to have assisted the respondent in labelling his feelings and then choosing an appropriate strategy to manage his mood. He has also further developed his repertoire of coping strategies to manage negative emotional states, which was demonstrated both in counselling throughout the year and during Ms Wilson‑Brown's assessment.
(4)The respondent's anticipated response as to how he and his partner will manage if their relationship does not proceed was unrealistic. Specifically, his expectation that they will remain living together as friends and that his partner will continue to be an emotional support for him oversimplifies the complexities of this arrangement. Similarly, his reliance on avoidance of a resolution to resolve disagreements may also be problematic. He would likely require on‑going support in counselling to develop more practical strategies to manage these situations as they arise.
(5)During Ms Wilson‑Brown's assessment, the respondent showed he had accepted the intrinsic value of his grooming behaviour; that is, he understood how finding comfort in developing emotional connections or 'relationships' with children contributed to his willingness to create opportunities for interactions and, eventually, sexual activity with his victims. He also accepted that he is a paedophile and has accepted the enduring nature of this paraphilia. The respondent displayed an understanding that, while he may not be thinking about or having a sexual interest in children currently, this interest may arise in the future, and he needs to continually monitor and recognise the warning signs.
(6)The respondent's strategies to manage his deviant fantasies, should they occur, were appropriate and comprehensive. However, although the respondent has discussed his previous deviant thoughts with his current psychologist, his willingness to disclose his deviant thoughts to his partner is untested and is questionable, given he has not yet discussed his own intentions for a sexual relationship with her. In addition, while he was not concerned that he would be returned to prison if he disclosed deviant thoughts to his Senior Community Corrections Officer (SCCO), the increased scrutiny from his SCCO in the context of a community supervision order may be dissuading. Nonetheless, his acceptance of his deviant sexual interest as enduring has likely assisted in his understanding of the need to monitor his deviant fantasies and suggests that he has the capacity to respond appropriately should these fantasises re‑emerge. These skills are yet to be tested outside the custodial environment. Therefore, given the relationship between his deviant sexual fantasies and his offending, it is considered imperative that the respondent's sexual interest, fantasies and arousal be continually monitored in counselling to ensure that he maintains his understanding of his management strategies and applies them when required.
(7)Despite his progress on a number of identified treatment goals, on‑going counselling would be required.
Ms Wilson‑Brown's report then set out her conclusions,[59] including the following:
(1)The respondent continues to positively engage with Ms Rankin for individual counselling. Numerous treatment gains were noted during Ms Wilson‑Brown's assessment (as noted earlier).
(2)On‑going treatment considerations include: continuing to develop his skills in intimate relationships; refining his risk management strategies when in the community; increasing his independence in developing his personal and professional support network; and continuing to monitor the respondent's sexual interest, fantasies and arousal to ensure he maintains his understanding of his management strategies and applies them when required. These treatment needs would best be met through ongoing intervention with a Forensic Psychological Services or Adult Community Psychological Services psychologist.
Ms Wilson‑Brown's oral evidence at the hearing
[59] Exhibit 1, report of Ms Wilson‑Brown [52] ‑ [53].
In her evidence, Ms Wilson‑Brown provided details of the team‑based approach to DSOs. The approach ensures that each member of the team is apprised of all relevant information, and increases the chance that any problems or inconsistencies will be picked up. It also allows for the input of numerous people with varying backgrounds and skills, including psychologists involved with other offenders, as there is usually a series of meetings about various offenders held consecutively.[60] The treating psychologist can, if necessary, cross‑validate information from what others know, from the offender's diary, and from the GPS tracking results.
[60] ts 253 ‑ 254.
Ms Wilson‑Brown also expanded upon the comment in her report that the respondent's response as to how he and his partner would manage if their relationship does not proceed was unrealistic. She said she thought that any concern arising from that would be limited, because the respondent understands that the relationship may not proceed, it was not something that he is very rigidly focused on, and he is not pinning all of his hopes for happiness on it occurring. However, it does mean that more work needs to be done to assist him to manage disagreements in relationships. Ms Wilson‑Brown said she had advised Ms Rankin of the need for further work to be done in this area .[61]
Community supervision assessment
Ms Rathmann's report
[61] ts 258.
The community supervision assessment report prepared by Ms Rathmann, SCCO, indicates that there is only one viable accommodation option that is viable. This is the home of the respondent's partner. The respondent explained that their relationship is currently a friendship, and he hoped it may progress into a romantic relationship upon release. According to Ms Rathmann, the respondent understood that this progression may not eventuate, and he presented with realistic expectations for the future.[62]
[62] Exhibit 1, report of Ms Rathmann, page 2.
Ms Rathmann noted that the same address was initially nominated as a release address during the first review. At that time, the GPS signal in the area was intermittent and therefore compromised the capacity to monitor the respondent via GPS tracking at that address. Ms Rathmann reported that changes in telecommunication technology have occurred since the first review. The GPS signal was recently tested on two occasions at the address and surrounding areas, and it was successful on both occasions.[63]
[63] Exhibit 1, report of Ms Rathmann, page 2. See also ts 266 ‑ 267.
Ms Rathmann has had contact with the respondent's partner on three occasions since the last review, and a visit was also conducted at the proposed address by a SCCO based at the Geraldton Adult Community Corrections Centre on 10 April 2017. Ms Rathmann reported that, on all occasions, the respondent's partner expressed her ongoing support for the respondent.[64]
[64] Exhibit 1, report of Ms Rathmann, page 2.
Ms Rathmann reported that the respondent's partner demonstrated an awareness of the respondent's offending. The respondent's partner told Ms Rathmann that her children and grandchildren do not reside in Western Australia. She advised she has a niece with two female children aged 14 and 18 years, who occasionally visit her home. However, she said she would not permit them to enter the house if the respondent were at home. The respondent's partner also has several pictures of her children displayed at her property, but agreed she would remove the pictures if required.[65]
[65] Exhibit 1, report of Ms Rathmann, page 2.
In relation to the suitability of the proposed residence, Ms Rathmann's report included the following observations:[66]
(1)A primary school is located 400 m from the proposed residence, and two further primary schools and a camp school are located just over 2 km from the property. Local community areas, including a family orientated caravan park, a sporting complex, several parks and large areas of public space, bushland and farmland, are also located within 2 km of the property.
(2)Nearby, there are parks and public spaces which are used by groups of unsupervised juveniles for anti‑social activities involving drinking or drugs. There are also concerns about families with vulnerable children residing in the vicinity.
(3)The Department for Child Protection and Family Support (CPFS) does not support the respondent's release to the proposed residence due to the proximity to the primary school and CPFS involvement with children known to reside in the vicinity.
(4)GPS tracking, including the use of exclusion zones, can be utilised to monitor any attendance at high risk areas in proximity to the proposed address. In particular, a zone prohibiting travel in proximity to the primary school would be imposed, given its proximity to the proposed address.
(5)There is a school bus stop outside the residence. The respondent's partner said that children rarely use this stop; however, given its proximity to the school, there may be a high traffic of primary school children walking past the residence. It is noted that the proposed address is gated, which would reduce the likelihood of children walking through to the front of the property.
[66] Exhibit 1, report of Ms Rathmann, page 3.
If the respondent resided with his partner, she would be his primary support. Ms Rathmann reported that his partner had said that some people in her friendship network had refused to interact with the respondent, but others are willing to befriend him.[67]
[67] Exhibit 1, report of Ms Rathmann, page 3.
In relation to the particular conditions that should be included, Ms Rathmann's report included the following observations:[68]
(1)The continued use of antidepressant medication was supported by both Dr Wojnarowska and Ms Wilson‑Brown. The respondent would be required to engage with a local General Practitioner (GP) to receive ongoing prescriptions. He would need to sign a consent to enable the Department of Corrective Services (DCS) to liaise with the GP to confirm ongoing prescriptions and compliance. Ongoing monitoring and managing of his medication is recommended.
(2)It is recommended that a daily diary be undertaken by the respondent to identify all movements, activities and interactions, which would be cross‑checked with his GPS movements. Dr Wojnarowska and Ms Wilson‑Brown were supportive of such a condition.
(3)Dr Wojnarowska was also supportive of the imposition of a curfew requirement. While she conceded his offending is not related to night periods specifically, she believed a curfew would more readily allow DCS to monitor his movements. She also agreed it would provide stability and structure when first released, given his lengthy period of incarceration in a structured environment.
[68] Exhibit 1, report of Ms Rathmann, page 6.
Ms Rathmann's report included the following conclusions:[69]
(1)Since the last review, the respondent has engaged well with his SCCO and FPS psychologist, and he has displayed positive behaviour in prison.
(2)The respondent has proposed to reside with his partner. Concerns have been raised by CPFS in relation to this accommodation due to its proximity to a primary school and CPFS involvement with vulnerable children in the area. Due to changes to telecommunications technology since the last review, GPS tracking is now available in the area and could be utilised to monitor the respondent's movements, as well as restrict movements into high risk areas. As indicated above, there are limitations in respect to GPS tracking, as it does not indicate who the respondent is with or what he is doing. As a result, a daily diary of movements is also recommended for the respondent. This would be cross‑checked with GPS. However, there are limitations with the diary too, as it relies on the respondent's self‑report in terms of who he is with and what he is doing.
(3)If released to Geraldton, the respondent would have the support of his partner. A referral to the Geraldton Resource Centre for reintegration assistance has also been completed.
(4)The respondent does not currently have any alternative accommodation options.
Ms Rathmann's oral evidence at the hearing
[69] Exhibit 1, report of Ms Rathmann, pages 6 ‑ 7.
In her oral evidence, Ms Rathmann said the work hours of the respondent's partner did not cause her or her department any concern.[70]
[70] ts 267.
Ms Rathmann said the respondent's partner presented as quite protective. Ms Rathmann thought that she had been quite blunt and honest in her interactions with Ms Rathmann. Ms Rathmann believed she would be quite a good support for the respondent.[71]
[71] ts 268.
Ms Rathmann explained how the GPS tracking worked and how it was monitored. The central monitoring station is manned 24 hours a day. An exclusion zone is a zone that is put around a particular area. If somebody subject to GPS tracking were to enter an exclusion zone, the monitoring station would be alerted of that, and would take action. The offender would also receive an alert telling them to leave the area immediately. An exclusion zone is typically set by reference to streets. In relation to a school, it would encompass any ovals or park areas surrounding, or adjacent to, the school. Typically, exclusion zones are created for all areas that have been identified as high risk by the police and CPFS.[72] Ms Rathmann also said that the initial exclusion zones are not set in stone: more can be added as needed, depending on changes in circumstances.[73]
[72] ts 271 ‑ 272. See also ts 278.
[73] ts 280.
In relation to the bus stop near the proposed residence, Ms Rathmann confirmed that this was not a public transport stop, it was a school bus stop, and it was just a post, not a sheltered bus stop.[74] The bus stop can be seen from the proposed residence, but it is not actually directly in front of it.[75]
[74] ts 283.
[75] ts 286 ‑ 287.
Ms Rathmann said the respondent's partner stated that children rarely use that bus stop. Ms Rathmann said this information had not been independently verified, but she had no reason to doubt it. She said that, irrespective of the respondent's partner's statement, they would be monitoring the situation quite closely. She said they would monitor it by picking the times at which they would book home visits, by observations of the house in drive‑bys, and by talking to the respondent's partner.[76]
[76] ts 272, 283.
Ms Rathmann also confirmed the police conduct both overt and covert surveillance of people who are under dangerous sex offender orders, and the information is fed back to the team. Ms Rathmann confirmed that, if there were concerns that the respondent was repeatedly striking up conversations with somebody at the bus stop, covert surveillance could be used to confirm whether that was happening.[77]
[77] ts 282.
Ms Rathmann further confirmed that, although the GPS tracking was not accurate within inches, it allowed the department to tell if the respondent was outside or inside the residence. If the GPS showed that the respondent was on the footpath and it happened to be always at times when children would be travelling to and from school, that would be actioned.[78]
[78] ts 286 ‑ 287.
Ms Rathmann said the proposed property was gated and fenced, so this would act as a barrier.[79]
[79] ts 272.
Ms Rathmann also gave evidence that, if a supervision order were made, the respondent would be transported to Geraldton within the prison system, by being transferred to the prison in Geraldton.[80]
[80] ts 274.
Ms Rathmann confirmed that, if a supervision order was made, the respondent would be subject to the obligations under the Community Protection (Offender Reporting) Act 2004 (WA), in addition to the terms of the supervision order.
Ms Rathmann also explained the reasons behind several of the conditions set out in the proposed supervision order.[81]
[81] ts 275 ‑ 276.
Legal principles
Section 33 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) provides:
(1)On a review of a person's detention under section 31 -
(a)if the court does not find that the person remains a serious danger to the community it must rescind the continuing detention order; or
(b)if the court finds that the person remains a serious danger to the community it must -
(i)affirm the continuing detention order; or
(ii)with effect from a date specified by the court, but not earlier than 21 days after the day on which the review is concluded, rescind the continuing detention order and make a supervision order in relation to the person.
…
(3)In making a decision under subsection (1)(b), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 7 of the DSO Act informs the approach to be taken in evaluating whether a person is a serious danger to the community. It provides:
(1)Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2)The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied -
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
(3)In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(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; and
(g)the person's antecedents and criminal record; and
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
(4)In considering whether it is satisfied as required in subsection (1), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.
Serious danger
In The State of Western Australia v West [2013] WASC 14 [52], Corboy J helpfully set out the principles that have been established in relation to s 7 of the DSO Act (I have added some additional comments in the footnotes):
(a)Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA)[82] (s 3 of the DSO Act).
[82] That relevantly means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more (or an offence of attempting to commit such an offence).
(b)The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34][83]for a further elaboration on what the expression means in its application).
[83]In Director of Public Prosecutions (WA) vGTR [2008] WASCA 187; (2008) 38 WAR 307 [34], the court said 'there is no requirement, for an order to be made under s 17(1) of the Western Australian Act, that the court must be satisfied that there is more than a 50% prospect that, absent a continuing detention order or a supervision order, the offender will commit a serious sexual offence. However, it seems to us, from the plain meaning of the language used, that the Parliament requires that the court must be satisfied to a high degree of probability (being more than the civil standard but less than the criminal standard) that there is an unacceptable risk of the kind mentioned in s 7(1). The court must therefore identify what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence'.
(c)In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d)It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].[84]
(e)The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).
(f)In a passage that was expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63] ‑ [64]:
'In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.'
(g)The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h)The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].
[84] See also Martin CJ in Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [6], who noted that the two different expressions in the DSO Act ('an unacceptable risk that … the person would commit a serious sexual offence' and 'serious danger to the community') have been given precisely the same meaning and that this construction of the DSO Act has been endorsed by decisions of the Court of Appeal of this State.
In addition to these principles, I adopt the following observations of Hall J in Director of Public Prosecutions (WA) v Griffiths:[85]
[85] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393.
(1)[In relation to s 7(3)(c), the word] 'propensity' is taken to have its ordinary meaning in the context of the criminal law: Director of Public Prosecution (WA) v GTR. At [178] of GTR Murray AJA stated that:
'[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.'[86]
(2)While s 7(3)(g) provides that the court must have regard to the criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.[87]
(3)Offences other than 'serious sexual offences' may be relevant in assessing the risk of serious sexual offending being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious sexual offending.[88]
Value of expert reports
[86] Griffiths [66].
[87] Griffiths [19].
[88] Griffiths [13], citing Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].
In Director of Public Prosecutions for Western Australia v GTR, Steytler P and Buss JA said:[89]
Although there is no doubt, under the Western Australian Act, that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in the light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.
Options if serious danger
[89] GTR [62].
If the court finds that the respondent is a serious danger to the community, the court must affirm the continuing detention order or make a supervision order.[90]
[90] s 33(1)(b) of the DSO Act.
In deciding between them, the paramount consideration is the protection of the community.[91] However, this does not mean that there is a pre‑disposition to making a continuing detention order.[92]
[91] s 33(3) of the DSO Act.
[92] The State of Western Australia v West [2013] WASC 14 [52].
In terms of the proper approach, I adopt the following observations of Beech J in Director of Public Prosecutions (WA) v DAL [No 2]:[93]
(1)In choosing between an indefinite detention order and a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations.
(2)The use of the word 'adequate' indicates that a qualitative assessment is required.
(3)In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be imposed so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his care and treatment.
(4)The DSO Act does not require that there be no risk of re‑offending. Such a requirement could never be met and would mean no person to whom the DSO Act applies would ever be released.
(5)The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
(6)If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, then, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[93] DAL [No 2] [33], citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57], [86]; Griffiths [20], [103], [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].
The court should choose the order that is 'the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[94]
[94] West [52(j)], citing The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Decke [2009] WASC 312. See also Griffiths [22].
It 'cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order'.[95]
[95] Decke [14].
In relation to the suitability of accommodation, as Hall J said in Director of Public Prosecutions (WA) v McGarry [No 9],[96] the issue is not whether the proposed accommodation is the best that can be found, but whether, together with all the conditions that could reasonably be included on a supervision order, it would enable adequate protection of the community from the risk of re‑offending.
Objects of the review requirement
[96] Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306 [65].
In Director of Public Prosecutions (WA) v Unwin [No 3], Hall J said:[97]
The clear intention of the annual[98] review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community then the continuing need for detention must be considered.
It is a significant thing to deprive a person of their liberty, not for something they have done but for something they might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
The risk of reoffending may change over time. It may be affected by age, health and the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
The annual review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Annual reviews are not, therefore, merely a welfare check; they are an exercise of judicial power to confirm, vary or rescind a detention order. Continuing detention should not be ordered unless that is justified by the circumstances existing at the time of the review.
[97] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [19].
[98] The DSO Act has been amended such that now reviews are required to be conducted only every two years.
The issue
The respondent did not dispute on this review that he remains a serious danger to the community. Dr Wojnarowska's evidence supports that view, and I find accordingly.
The issue in this application is whether the respondent could be released into the community on a supervision order with conditions that would adequately protect the community by managing and sufficiently reducing the risk that he would commit further serious sexual offences.
Continuing detention or conditional supervision order
It is clear that the respondent has made significant progress since June 2015,[99] when the continuing detention order was first made, and since July 2016, when the first review was conducted.
[99] DAL [No 2] [37].
Dr Wojnarowska's opinion, which I accept, is that the respondent is likely to comply with the conditions of a supervision order, and that he is highly motivated not to re‑offend. She said that the respondent appears to be highly motivated not to hurt another person and is also highly motivated not to ever return to prison, and that these were two very strong deterrents that are important to note in his risk of re‑offending.
Dr Wojnarowska's opinion is that any future re‑offending by the respondent is likely to be in a similar manner to his previous offences, which were against children with whom he had an established relationship, and involved a period of grooming. I accept that opinion.
The likely manner of any future re‑offending means that the risk of re‑offending can be reduced by the imposition of conditions. As noted by Beech J,[100] the risk would not arise from a single instance of contact with a child and the commission of a sexual offence during that first contact. Rather, the risk of re‑offending lies in the respondent developing a relationship with a child, after which he then commits a sexual offence against that child.
[100] DAL [No 2] [39].
Under the proposed conditions, the respondent would not be permitted to have any contact with a person under 16 years of age. There are also proposed conditions requiring the respondent to:
(1)withdraw from the presence of any child who initiates contact with him;
(2)provide details of any contact with a child under the age of 16 years both to the CCO and to the police on the next occasion he reports to that person or agency;
(3)not form any domestic relationship with a person who has children under the age of 16 years in their care whether full‑time or part‑time;
(4)have no contact with, membership of, or affiliation with, clubs, associations or groups where membership is primarily for children, and to cancel such memberships if directed to do so by a CCO or police officer;
(5)be subject to GPS monitoring and restrictions as to his movements, place of residence and employment; and
(6)keep a daily diary of his movements, activities and associations if and as directed by the CCO, and present it to the CCO or police on request.
As noted by Beech J,[101] in order for the respondent to develop a relationship with a child, he would need to breach the conditions of his supervision order on a number of occasions. That would provide an increased opportunity for detection by the management team of any such breaches before any sexual offence is committed.
[101] DAL [No 2] [41].
The respondent has been willing to disclose deviant thoughts and fantasies to his psychologist. That willingness has not been tested outside the prison environment. However, as noted, the respondent is highly motivated not to re‑offend. In addition, if the respondent did not volunteer information as required, there are several backups in place.
First, as noted by Beech J, those around the respondent would be in a position to monitor his conduct. The respondent's partner is aware of his offending. Further, one of the proposed conditions enables community corrections or police officers to speak with anyone associating with the respondent and to disclose to them confidential information, including his offending history. Accordingly, if the respondent were to become involved in a community club or society, the management group could ensure that the club was aware of the respondent's previous offending, and those at the club would be a further source of information.[102] Beech J said that all of this makes it reasonably probable that a single contact with a child would be detected. The value of that probability is magnified by the fact that multiple contacts would be required before the respondent would develop a relationship with a child, so as to create the circumstances in which there would be a real risk of sexual offending against the child.[103]
[102] DAL [No 2] [42].
[103] DAL [No 2] [46].
Secondly, his daily diary could be checked. Although the diary would be a product of what the respondent was willing to record, its accuracy could be checked against the GPS tracking results and information from his partner and other people in his life.
Attitude of the State
The State submits that the continuing detention order should be affirmed.[104]
[104] Applicant's Outline of Submissions for Review Hearing 18 July 2017 (Applicant's Submissions) [42].
In the State's supplementary submissions, the State submitted that the change in circumstances since the last review was not sufficient to conclude that the risk of re‑offending could be adequately managed in the community.[105]
[105] Applicant's Supplementary Submissions [7].
The State submits, among other things:[106]
(1)the respondent had a history of chronic, persistent, sexual offending against children, the most vulnerable members of our community;
(2)there is reason to be sceptical as to the genuineness of the respondent's engagement with therapy;
(3)the respondent continues to lack sufficient understanding of his enduring attraction to children;
(4)if the respondent has the opportunity to groom a child, the signs of this conduct will be subtle and hard to detect;
(5)the proposed residence is near a school, and children may walk past it;
(6)whether the respondent did have a low libido as a result of his SSRI medication depended on his self‑report, and the respondent's history meant he could not be relied upon to be truthful.
[106] Applicant's Submissions [38] ‑ [40], and Applicant's Supplementary Submissions [49] ‑ [51].
The first and fifth of these propositions are statements of fact.
As will be explained, I reject the second and third propositions.
The fourth proposition follows only if the respondent had an opportunity to groom a child. I do not accept that he will have that opportunity, as I will explain later.
The sixth proposition involves an assertion and an implicit assumption. The assertion is that the respondent may be untruthful. I deal with this later in these reasons. The implicit assumption is that the respondent's libido is relevant to his risk. This is inconsistent with Dr Wojnarowska's evidence, which I accept, that the respondent's offending is related to his need for emotional intimacy, rather than his sex drive.
Prior to the commencement of the hearing, the State properly acknowledged that the written evidence before the court provided positive support for the release of the respondent on a supervision order.[107] Nevertheless, the State submitted that the continuing detention order should be affirmed.[108]
[107] Applicant's Submissions [41].
[108] Applicant's Submissions [42].
The State's position altered slightly after hearing the oral evidence to a submission that it 'does not support' the rescission of the continuing detention order. The State continued to hold 'enduring concerns'. However, the State properly acknowledged that 'the preponderance of the evidence tends to support the respondent's contention that he can be adequately managed on a supervision order despite his high risk of sexual reoffending'.[109]
Concerns of Beech J
[109] Applicant's Supplementary Submissions [56] ‑ [57].
All but one of the concerns expressed by Beech J have been addressed.
Fully accepting of paedophilic tendencies
Beech J found that the respondent was still not able or willing to accept the full extent of his paedophilic tendencies. This was based upon his Honour's concerns that the respondent had said to psychologists that his sexual preference was for adult females, and that his attraction to children arose only in the specific context of emotional stress. Beech J did not accept that the respondent's primary sexual preference was for adult females.[110]
[110] DAL [No 2] [48].
It is possible that the respondent's statements were not properly reflected in the materials before Beech J.[111] In any event, the State does not suggest that this is an issue.[112] The State is concerned about whether the respondent is fully accepting, but not for this reason.
[111] See exhibit 1, report of Ms Wilson‑Brown [15], and see also ts 221.
[112] Applicant's Supplementary Submissions [13] ‑ [15].
In this review, the State submitted that the respondent continues not to fully admit the extent of his paedophilia due to his failure to admit his offence against the brother of a boy he coached on the football team (the Denied Offence).
The State asserts that this was of concern to Dr Wojnarowska.[113] However, with respect, this assertion misunderstands Dr Wojnarowska's evidence.
[113] Applicant's Supplementary Submissions [13] ‑ [14].
Dr Wojnarowska's concern, and her statement that it was one area that she was not sure about, was because she did not know the circumstances of the Denied Offence and whether it involved a different way of engaging with the victim. Given her assessment of the respondent's likely manner of re‑offending as following the pattern of grooming, she said it would be a concern if the Denied Offence had occurred without grooming.[114]
[114] ts 175.
Dr Wojnarowska noted that, while the respondent denied this offence, he had disclosed other offences for which he had never been charged. For that reason, and provided that the Denied Offence did not involve a different type of offending, Dr Wojnarowska considered that the respondent accepted personal responsibility for what he had done and the denial of just one offence would not have major implications on his management in the community.[115]
[115] ts 176 ‑ 177.
Dr Wojnarowska was then informed of the facts of the Denied Offence. She noted that it was a similar type of offending as the offences he had admitted, involving a boy that he had become friendly with.[116] Later in her evidence, Dr Wojnarowska confirmed that denial is not related to a risk of re‑offending, but could be relevant to risk management. Dr Wojnarowska agreed that, even if some concern might arise from his denial of this offence, it would not inform her opinion on risk management, especially given that the Denied Offence fits into the same profile as his other offending.[117]
[116] ts 177 ‑ 179.
[117] ts 216.
Dr Wojnarowska said she held no concern that the respondent has not accepted the full extent of his paedophilic tendencies. She said he understood.[118] Dr Wojnarowska's opinion was supported by the evidence of Ms Wilson‑Brown.[119]
[118] ts 221.
[119] See, for example, exhibit 1, report of Ms Wilson‑Brown [46].
I accept Dr Wojnarowska's opinion. I consider that the respondent does fully accept the full extent of his paedophilic tendencies.
No more work can usefully be done
It is no longer the case that continued work in prison would be beneficial in order to maximise the respondent's chances of successfully navigating any future release into the community.
Ms Wilson‑Brown reported that Ms Rankin doubted that further counselling in prison would be of therapeutic value, given his limited opportunity to utilise risk management strategies in real life situations, with the respondent unlikely to continue to make substantial change in prison.[120] Ms Wilson‑Brown confirmed in her oral evidence that Ms Rankin did not see any further therapeutic value in work that could be done in that custodial environment.[121] Ms Wilson‑Brown further confirmed that future work would be about putting into practice what he had learned.[122]
[120] Exhibit 1, report of Ms Wilson‑Brown [18].
[121] ts 255.
[122] ts 260 ‑ 262.
Dr Wojnarowska said that, in her opinion, the respondent has reached his potential in terms of what can be done in prison.[123] The State has accepted that this appears to be the consensus.[124]
[123] ts 236. See also ts 221 ‑ 222.
[124] Applicant's Supplementary Submissions [17].
I accept these opinions.
The significance of the respondent's own fears
Beech J was concerned that the respondent described himself as being nervous about the prospect of being around children when released, and had said that 'he could not guarantee that he would never reoffend against children in the future'. It appears that counsel did not ask the experts about those comments during the hearing before Beech J. In the hearing before me, both Dr Wojnarowska and Ms Wilson‑Brown were asked.
Dr Wojnarowska said that, in her opinion, the respondent's comments were a cause for reassurance rather than concern.[125] She explained:
So we - we all accept in this field that sexual interest in children so deeply ingrained in one's personality is not going to disappear with age. It's like anyone's sexual preference. So one cannot make a heterosexual person into a homosexual person by incarcerating them and vice versa. So he - he understands that and, therefore, he perceives that his risk is always be there. So he has been quite open with that. He accepts that because of that he needs - he needs to be managed and supervised. So it does suggest a level of maturity, insight and openness and sincerity in - in the assessment of - of his own weaknesses or condition.[126]
[125] ts 180, 205.
[126] ts 180.
Accordingly, if the respondent's relationship with his partner breaks down at some point in the future, the respondent is very likely to have numerous other supports in place by that time.
I accept, of course, that if the respondent's relationship with his partner does break down to the point where she is no longer willing to have him stay in her home, alternative accommodation will need to be found. However, given my view that this would only be likely to occur after the respondent had numerous other supports in place, it can be expected that the authorities would be able to assist him to find a suitable alternative. If that is not possible, the respondent would be returned to custody.
Conclusion on accommodation option
There is no other accommodation option currently available to the respondent. This does not mean, of course, that it should be accepted as appropriate. On the other hand, the issue is not whether the proposed accommodation is the best that can be found. The issue is whether, together with all the conditions that could reasonably be included on a supervision order, it would enable adequate protection of the community from the risk of re‑offending.
In my view, for the reasons set out above, the proposed accommodation should be accepted as appropriate.
Conclusion ‑ whether the risk can be adequately managed in the community
The respondent remains a serious danger to the community. The risk that he will commit a further serious sexual offence, if not subject to a continuing detention order or supervision order, is still high.
The question is whether the proposed conditions would reduce the risk to a reasonably acceptable level that ensures adequate protection of the community. While I have been assisted by the evidence of each of the witnesses, each of whose evidence I accept, it is for me to decide this question.
I am not satisfied that there is no risk of re‑offending if the respondent is released on the proposed conditions. The respondent's history of offending occurred over a very long period of time, involved multiple victims, and includes offending while being driven away from prison after being released from one of his terms of imprisonment. The respondent was willing, and able, to fool the facilitators of the 1992 ISOTP. The respondent's offending was very serious, including sexual intercourse with his daughter when she was 10 years old.
The paramount consideration is the need to ensure the adequate protection of the community. However, this does not require that there be no risk of re‑offending.
In my view, the likely risk scenario is of great significance to the evaluation. As was accepted by Beech J, the risk of re‑offending lies in the respondent developing a relationship with a child, after which he then commits a sexual offence against that child. The proposed conditions would ensure several layers of protection against the possibility that the respondent would be able to have multiple contacts with a child so as to give rise to that risk.
Dr Wojnarowska's opinion was that, before the respondent had sufficient contact with a child to put that child at risk of sexual offending, the contact would be detected under the proposed level of supervision. While I do not share Dr Wojnarowska's complete confidence, I am satisfied that it is highly likely that it would be detected. I also have no doubt that the authorities will apply their best efforts and resources, due to the nature of the respondent's past offending.
I am satisfied the proposed conditions would reduce the risk to a reasonably acceptable level that ensures adequate protection of the community.
Accordingly, on 24 August 2017, I rescinded the continuing detention order made by Mitchell J on 11 June 2015, and ordered that the respondent be the subject of a supervision order.
Conditions opposed
The respondent took issue with only two of the proposed conditions.
The first was proposed condition 4, which would require the respondent to 'be under the supervision of a Community Corrections Officer, which includes, complying with any reasonable direction of the office (including a direction for the purposes of s 19A or 19B)'. Section 19B relates to the imposition of a curfew.
The respondent submitted that the power to impose a curfew should be limited to the first 12 months of the order.
This submission was supported by the evidence of Dr Wojnarowska.[156] However, although Dr Wojnarowska said that a curfew power did not need to be available after the first year, she had earlier said that there was 'a strong possibility' that this was so 'if everything goes well'.[157]
[156] ts 226 ‑ 227.
[157] ts 227. See also ts 231.
Similarly, Ms Rathmann agreed that, based on the evidence in the hearing, she would not be concerned if there was no curfew power after the first 12 months of an order. However, she said this was based on his current circumstances and his current presentation, and if those circumstances were to change after those 12 months, then they would not have access to the curfew powers if they wanted to use it. Ms Rathmann did acknowledge that they could make an application to amend, and they also have the lawful directions power. She agreed that the curfew condition was not necessary to manage movement.[158]
[158] ts 289.
In my view, the power to impose a curfew should not be limited to the first year of the order. It cannot be assumed that everything will go well, or that there will not be hiccups along the way. In my view, the power to impose a curfew throughout the life of the order is necessary to ensure adequate protection of the community.
I also query whether I have the power to limit the CCO's power to impose a curfew. Under s 18 of the DSO Act, if a supervision order is made, it must include a condition in the terms of proposed condition 4. Qualifying the operation of such a condition may be beyond power.
The second objection was to proposed condition 30, which prohibits the use of prohibited drugs or substances. Dr Wojnarowska did not consider there was any need for such a condition, as drug use was not even a small part of his risk profile.[159] Ms Rathmann agreed there is nothing in the respondent's history or presentation of material that suggests that drug use is in any way a risk for him, or connected to his risk of re‑offending.[160]
[159] ts 225.
[160] ts 287.
I accept that drug use is not part of the respondent's risk profile and that there is no need for such a condition to be included.
Conditions for the benefit of a victim
On 16 August 2017, the court received correspondence from the Commissioner for Victims of Crime. The Commissioner foreshadowed that she intended to provide to the court a victim submission, under s 17A(3) of the DSO Act. The Commissioner indicated that the victim preferred that the submission not be made available to the respondent or his legal representative. However, if the court considered it was essential in the interests of fairness and justice that the submission be made available, the victim asked that a redacted version of his submission be provided.
On 18 August 2017, the Commissioner provided the submission, and a redacted form of the submission.
In the submission, the victim said that he would feel most adequately protected by the respondent continuing to be detained. However, if the court decided to make an order that the respondent be released, the victim asked that the respondent be prohibited from being physically present in Midland, Middle Swan, Viveash, Leederville, Mt Helena, Boyanup, Bunbury and Busselton. The victim explained that he lived, worked or had cause to visit each of these locations on a regular basis.
In the hearing on 24 August 2017, I advised the parties that I had received a victim submission in the above terms. Counsel for the respondent advised that the respondent would not oppose the inclusion of conditions excluding the respondent from those areas being added to the conditions of a supervision order. Such conditions will not have any real effect on the respondent, given that he would be required to reside in Geraldton, if he was released.
In those circumstances, I did not consider it essential in the interests of fairness and justice that the submission be made available to the respondent or his counsel, in any form.
To accommodate the victim's request, I added what has become condition 26 of the annexure to these reasons.
Length of order
As noted above, Dr Wojnarowska recommended that any supervision order be of eight years duration. In cross‑examination, Dr Wojnarowska agreed that, in suggesting that time period, she had not taken into account the recently introduced right of the DPP to make an application for a further supervision order to take effect on the expiry of an existing order.[161] She said if she factored that in, she would revise her answer of the appropriate time period to five years.[162]
[161] s 8(4A) of the DSO Act.
[162] ts 224.
In my view, the presence of the DPP's power to seek a further supervision order is an insufficient basis to reduce the length of the supervision order. I am required to assess the appropriate length of the supervision order as at today's date. On the current state of affairs, I consider that eight years is the appropriate period. If I was to set a lower period, and towards its expiry the DPP sought a further order under s 8(4A) of the DSO Act, the DPP would be required to satisfy the requirements that applied to the granting of such an order.[163] It would not be automatically granted. On the other hand, if the respondent considers at some time in the future that, due to the way in which he has been conducting himself under the supervision order, its terms should be relaxed, the respondent has the power to apply to amend the conditions under s 19 of the DSO Act.
[163] See The State of Western Australia vNarkle [No 5] [2017] WASC 46 in which Jenkins J canvassed the issues that were required to be determined before a further supervision order could be made.
The respondent's sexual deviancy is likely to be lifelong. I anticipate that the DPP may well choose to seek a further order when this one is due to expire. In my view, it is necessary and appropriate to secure the protection of the community under this order for a period of eight years.
Orders
For these reasons, I made the following orders at the conclusion of the hearing on 24 August 2017:
(1)the continuing detention order made by Mitchell J on 11 June 2015 be rescinded;
(2)the respondent be the subject of a supervision order for a period of eight years from the date that this order takes effect on the conditions contained in the annexure to these reasons;
(3)these orders are to take effect 21 days from 24 August 2017.
Recommendation
Finally, I strongly recommend the department fund Ms Rankin to go to Geraldton every month for three months so that she can have sessions with the respondent, and to fund any further contacts that Ms Rankin considers necessary, to ensure the respondent's relationship with the new psychologist is working, and to ensure the respondent's risk of re‑offending continues to be well managed.
ANNEXURE
STANDARD CONDITIONS REQUIRED BY THE ACT
1.Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of the person's current name and address.
2.Report to, and receive visits from, a CCO as directed by the court.
3.Notify a CCO of every change of the person's name, place of residence, or place of employment at least 2 business days before the change happens.
4.Be under the supervision of a CCO, which includes, complying with any reasonable direction of the officer (including a direction for the purposes of s 19A or s 19B).
5.Not leave, or stay out of, the State of Western Australia without the permission of a CCO.
6.Not commit a sexual offence as defined in the Evidence Act 1906 s 36A during the period of the Order.
7.Be subject to electronic monitoring under s 19A.
ADDITIONAL CONDITIONS
Residence
8.Take up residence at [suppressed] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.
9.Keep a permanent place of residence approved by a CCO assigned to you.
10.Any overnight stays, defined as between 10.00 pm and 7.00 am at your permanent place of residence by a third party, must be approved in advance by a CCO.
Reporting to a CCO and supervision by a CCO
11.Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this order.
12.Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
13.Not commence or change voluntary, paid employment or education without the prior approval of the CCO.
Attendance at programs or treatment
14.Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
15.Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re‑offending, as directed by a CCO.
Reporting to WA Police
16.Attend at a designated Police Station within 48 hours of your release from custody, and report and receive visits from Police at times and at locations as directed by Police.
17.Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
18.If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order, and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order.
19.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 used by you.
20.Permit a CCO or WA Police to access any computer or 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 PIN or passwords required for such access.
Disclosure/exchange of information
21.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
22.Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with victims
23.Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Corrective Services.
24.Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
25.Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.
26.Not be physically present in Midland, Middle Swan, Viveash, Leederville, Mt Helena, Boyanup, Bunbury and Busselton.
Criminal conduct
27.Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
28.Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA).
29.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Curfew
30.Be subject to a curfew, pursuant to s 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
31.When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
32.When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Medications/mental health
33.Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO and undergo medication treatment, including anti‑depressant medication or anti‑libidinal treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners.
34.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to your CCO.
35.Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO.
Prevention of high-risk situations
36.Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
37.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.
38.Have no contact with any child under the age of 16 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; or
(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 of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication.)
39.Where any unsupervised contact with a child under the age of 16 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.
40.Provide details of any contact with a child under the age of 16 years both to your CCO and to the Police on the next occasion you report to that person or agency.
41.Not form any domestic relationship with a person who has children under the age of 16 years in their care either full‑time or part‑time.
42.Report immediately to your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you.
43.As directed by a CCO, make full disclosure regarding your past offending and the current order 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.
44.Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
45.Not conduct computer searches for, nor collect in either electronic or permanent form, images of children, whether indecent or not.
46.To advise a Community Corrections Officer of every device used by you to access the internet and the location of that device.
47.With respect to any computer in your possession that is connected to the internet or has been used by you to access the internet, not to delete or otherwise remove or disguise any search histories or logs capable of identifying your activities on that computer, without the approval in advance of a CCO or Police Officer.
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