The State of Western Australia v Dal [No 4] - [2022] WASC 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DAL [No 4] [2022] WASC 235
CORAM:   ARCHER J
HEARD:   19 JULY 2022
DELIVERED          :   26 JULY 2022
PUBLISHED           :   26 JULY 2022
FILE NO/S:   SO 2 of 2015
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DAL
Respondent

Catchwords:

High risk serious offender - Contravention of supervision order - Whether the conditions should be amended

Legislation:

High Risk Serious Offenders Act 2020 (WA), s 29, 55

Result:

Application to amend granted

Category: B

Representation:

Counsel:

Applicant	:	B Meertens
Respondent	:	K Pearson

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Max Crispe Barristers & Solicitors

Cases referred to in decision:

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
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Kim v Witton (1995) 59 FCR 258
The State of Western Australia v A [2018] WASC 250
The State of Western Australia v Atkinson [No 2] [2020] WASC 379
The State of Western Australia v DAL [No 3] [2017] WASC 260
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Misko [No 6] [2018] WASC 389
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v ZSJ [2020] WASC 330

ARCHER J:

Introduction

In August 2017, I rescinded a continuing detention order made by Mitchell J[1] and ordered that the respondent be subject to a continuing supervision order (Supervision Order).[2]
[1] As his Honour then was.
[2] The State of Western Australia v DAL [No 3] [2017] WASC 260.
On 9 September 2021, the State of Western Australia applied to have the Supervision Order amended, alleging that the respondent had contravened its conditions.
On 28 January 2022, Quinlan CJ ordered that the State's application be heard on 19 July 2022. His Honour also ordered that a psychiatrist, Dr Wojnarowska, provide a report.

Background facts

The respondent's offences

I adopt the summary of the respondent's offending and his convictions set out in the reasons of Beech J[3] in the first review:[4]
[3] As his Honour then was.
[4] 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 supervision order

On 11 June 2015, Mitchell J[5] ordered that the respondent remain in custody subject to a continuing detention order.[6] At the first annual review, Beech J[7] declined to rescind the continuing detention order on the basis that the respondent remained a serious danger to the community.[8]
[5] As his Honour then was.
[6] Director of Public Prosecutions (WA) v DAL [2015] WASC 210.
[7] As his Honour then was.
[8] DAL [No 2].
The second review of the continuing detention order came before me on 18 July and 24 August 2017. On 24 August 2017, I made orders that the respondent be released from custody subject to the Supervision Order.
The Supervision Order took effect on 14 September 2017 for a period of 8 years. It contains 47 conditions with which the respondent has to comply during the period of the order.

The contraventions

The respondent has been convicted of seven offences of contravening a condition of the Supervision Order contrary to s 80(1) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The respondent has pleaded guilty to these seven charges in the Magistrates Court.
The conditions that the respondent contravened were conditions 4, 12, 45 and 47. They provide as follows:
4.Be under the supervision of a [Community Corrections Officer (CCO)], which includes, complying with any reasonable direction of the officer (including a direction for the purposes of s 19A or s 19B).
12.Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
45.Not conduct computer searches for, nor collect in either electronic or permanent form, images of children, whether indecent or not.
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.
On 4 February 2021, the respondent was arrested and charged with the first two of the offences.[9] On 17 June 2021, the respondent pleaded guilty to those charges and was fined $1000.[10] The respondent had spent approximately 134 days in custody between the two dates.[11]
[9] Document titled Particulars of Contravention Allegations contained in the Book of Materials (BOM) pages 232 - 232 [7] - [8] and [14] - [15].
[10] BOM pages 232 - 233 [9] and [16].
[11] Affidavit of Brent Douglas Meertens filed 9 September 2021 (Meertens September Affidavit) [22].
The first contravention was alleged to have occurred between August 2020 and February 2021. The respondent conducted numerous internet searches on his phone using search terms such as 'Cute boys in Speedos'. This resulted in multiple images of young children being saved within the internet search history of the phone.[12] This was in breach of condition 45.[13] None of the images were indecent.[14]
[12] BOM page 232 [5] - [6].
[13] BOM page 232 [10].
[14] ts 371.
The second contravention was alleged to have occurred on 28 November 2020. On that date, the respondent arranged for 10 adult persons to attend his residence for a 'Christmas get-together'. The respondent did not seek prior approval from his CCO for the event to occur, contrary to a Written Lawful Instruction he had been given.[15] This was in breach of condition 4.[16]
[15] BOM page 233 [12] - [13].
[16] BOM page 233 [17].
On 30 November 2021, the respondent was arrested and charged with the third, fourth and fifth offences.[17] On 25 January 2022, the respondent pleaded guilty to those charges and was fined $2000.[18]
[17] BOM pages 233 - 235 [21] - [22], [27] and [32].
[18] BOM pages 234 - 235 [23], [28] and [33].
The third and fourth contraventions occurred on 24 November 2021 when the respondent's mobile phone was checked at an appointment with his CCO.
Located in the phone's browser search history were pages containing two images of young children accessed by the respondent.[19] This was the third contravention. In Dr Wojnarowska's opinion, neither of the images was indecent.[20]
[19] BOM page 233 [20].
[20] ts 371.
The browser search history of the phone also showed a search for William Tyrrell's foster parents. William Tyrell is a young child reported as a missing person. The respondent admitted accessing the page that contained an image of William Tyrell dressed in a Spiderman costume.[21] This was the fourth contravention. The image was, plainly, not indecent.
[21] BOM page 234 [25] - [26].
Both of these contraventions were in breach of conditions 4, 12 and 45.[22]
[22] BOM page 234 [24] and [29].
The fifth contravention occurred on 30 November 2021 when police were conducting a compliance check at the respondent's home address. The police discovered two publications (a pet care guide and a local newspaper) containing images of young children.[23] This was in breach of conditions 4, 12 and 45.[24] None of the images were indecent.[25]
[23] BOM page 234 [30].
[24] BOM page 235 [34].
[25] ts 371.
On 22 March 2022, the respondent was arrested and charged with the last two of the seven offences.[26] On 26 April 2022, the respondent pleaded guilty to those charges and was sentenced to a term of imprisonment of 6 months and one day, suspended for 12 months.[27]
[26] BOM pages 235 - 236 [39] - [41] and [45].
[27] BOM pages 235 - 236 [42] and [46].
The sixth and seventh contraventions occurred on 22 March 2022 when the Community Offender Monitoring Unit (COMU) was conducting a check of the respondent's mobile phone. Evidence was found that the respondent had deleted data from his mobile phone.[28]
[28] BOM pages 235 - 236 [36] and [44].
The deleted messages included multiple messages between the respondent's handset and an adult male friend. The respondent had also deleted text messages between his handset and an adult female friend. The messages were deleted between 28 February and 22 March 2022 and the respondent did not provide a reasonable excuse to his CCO as to why he had deleted them.[29] This was the sixth contravention.
[29] BOM page 235 [36] - [38].
The deleted data also included multiple non-indecent images of the respondent's dog.[30] This was the seventh contravention.
[30] BOM page 236 [44].
Both of these contraventions were in breach of condition 47.[31]
[31] BOM page 236 [43] and [47].
The respondent has also failed to comply with conditions of the Supervision Order on other occasions, in relation to which no charges were brought by the police.[32] In Dr Wojnarowska's opinion, these un-charged contraventions do not suggest an escalation or increased risk of reoffending.[33]
[32] Meertens September Affidavit [24].
[33] BOM page 478 [69].
On 14 July 2022, the respondent was charged with another contravention of the Supervision Order. This charge related to the respondent having numerous household items, such as handyman and community magazines, with non-indecent images and depictions of children. It would appear that the majority of the items had been in the respondent's possession for some time. The State does not allege that the respondent deliberately sourced the items for any sexual purpose. Rather, the State says the respondent appears to lack diligence in compliance with the supervision order by not checking for images of children in the materials that he brought into his home.[34] Dr Wojnarowska said that this contravention did not cause her to change her assessment of the respondent's risk level.[35]
[34] Email from State Solicitors Office 15 July 2022 1.25pm.
[35] ts 371 - 372.
The respondent was given bail in relation to this latest contravention, but the charge has not yet been dealt with.

The State's application

The State's application was filed on 9 September 2021. The State sought that the Supervision Order be amended under s 55(1)(b)[36] of the HRSO Act. It noted that the following additional conditions had been suggested by COMU:[37]
[36] The State's application was alternatively for an order under s 55(2)(b), but as the respondent pleaded guilty to the contraventions, the alternative is not required.
[37] Meertens September Affidavit [33].
(a)not to allow any person, other than a CCO or WA Police, access to any computer, telecommunications and/or electronic device referred to in Condition 46, without prior approval of the CCO [not a condition of the Supervision Order];
(b)not to allow any person with whom disclosure of his offences has not been confirmed by WA Police or a CCO onto his place of residence unless approved by a CCO [not a condition of the Supervision Order];
(c)enable device locking or password access to his computer, telecommunications and/or electronic devices to a CCO or WA Police Officer [on demand] [currently the subject of Condition 20];
(d)not to provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in Condition 46, or any online accounts, to any person other than a CCO or WA Police Officer [not a condition of the SO];
(e)an amendment to current Condition 20 to include a condition that, if someone seeks access to any of the respondent's devices, for example, for technical advice, approval be sought in advance from a CCO;
(f)an amendment to current Condition 42 to require the respondent to report at his next contact with a CCO, the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by him with any person [[the State's] emphasis];
(g)an amendment to current Condition 45 to allow for the respondent to possess images depicting a child or children on items such as household items, on the approval of a CCO; and
(h)an amendment of current Condition 46 to extend the condition to devices possessed or used by the respondent, whether it can be connected to the internet or not.
I will refer to these eight proposed additional conditions as the 'Proposed Additional Conditions'.
On 18 July 2022, the State provided a minute of proposed amendments to the Supervision Order (Minute) reflecting the Proposed Additional Conditions. The Minute also included other amendments to further enhance the management of the respondent, update the references to the legislative provisions to the HRSO, reflect factual situational changes and to modernise the wording.
The respondent does not oppose the Supervision Order being amended in terms of the Minute.[38]

Relevant law in contravention proceedings[39]

[38] ts 384.

[39] This section reproduces or draws upon what I have written in earlier decisions.

The provisions under the HRSO Act in relation to contravention proceedings are materially the same as the provisions under the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). For this reason, the principles established by the authorities in relation to the DSO Act may be applied to the HRSO Act.[40]
[40] And see The State of Western Australia v ZSJ [2020] WASC 330 [30] - [31]; The State of Western Australia v Narrier [No 6] [2020] WASC 349 [29] ‑ [30]; The State of Western Australia v Atkinson[No 2] [2020] WASC 379 [10] - [11].
Section 53 of the HRSO Act relevantly provides that, if an offender is charged with contravening a requirement of their supervision order, the State may apply to the court for an order under s 55. Section 22 of the DSO Act was in similar terms.

Section 55 of the HRSO Act provides:
55.Court to make orders in certain cases
(1)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order -
(i)amending the conditions of the supervision order; or
(ii)amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order.
(3)In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 23(1), (1A) and (2) of the DSO Act were in similar terms.
The respondent pleaded guilty to contravening his Supervision Order. Therefore, the question for me is whether I should make an order under s 55(1)(a), (b) or (c). The State seeks an order under s 55(1)(b).
Section 29 of the HRSO Act states:
29.Limitation on power to make or amend supervision order
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
Section 23(1B) and (1C) of the DSO Act were in similar terms to s 29(1) and (2) of the HRSO Act.
There are seven standard conditions for a supervision order. They are set out in s 30(2) of the HRSO Act:
30.Conditions of supervision order
…
(2)A supervision order in relation to an offender must require that the offender -
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence[41] during the period of the order; and
[41] Defined in s 5 of the HRSO Act.
(g)be subject to electronic monitoring under section 31.
(3)A supervision order in relation to an offender may require the offender not to make public any statement, information or opinion relating directly or indirectly to any victim of a serious offence committed by the offender.
(4)When considering whether to impose a requirement under subsection (3) the court must have regard to -
(a)the gravity and nature of the offender's offences; and
(b)the likely impact on the victims of the offender providing or making available any statement, information or opinion; and
(c)the public interest generally.
(5)A supervision order may contain any other terms that the court thinks appropriate -
(a)to ensure adequate protection of the community; or
(b)for the rehabilitation, care or treatment of the offender subject to the order; or
(c)to ensure adequate protection of victims of serious offences committed by the offender subject to the order.
(6)Without limiting subsection (5), a supervision order may provide that -
(a)for the period specified in the order the offender is subject to a curfew under section 32; and
(b)the photograph and locality of the offender must not be published under the Community Protection (Offender Reporting) Act2004 section 85G.

The effect of s 29 is that I must make a continuing detention order unless the respondent satisfies me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.

'Substantially comply' with the standard conditions

The meaning of the phrase 'substantially comply' was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[42] in relation to the provisions of the DSO Act. His Honour's observations, which I gratefully adopt, apply equally to the provisions of the HRSO Act.
(1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.
(2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.
(3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.
(4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.
(5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.
(6)The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
(7)Factors that are relevant to that assessment would include the respondent's history of compliance and non-compliance and the factors set out at [50] above.
[42] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
In the above extract at point 5, his Honour observed that the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order. Elsewhere in the judgment, his Honour made a number of other useful observations in relation to the assessment of prior contraventions, to the following effect:
1.Self-evidently from the statutory scheme, the fact that the respondent has contravened the conditions of a supervision order will not necessarily result in a continuing detention order;[43]
2.Given the onerous nature of supervision orders, missteps are to be expected;[44] and
3.The frequency or regularity of contraventions might inform the question of whether the person will substantially comply.[45]
[43] Hart [21].
[44] Hart [51].
[45] Hart [36].
A critical point made by Fiannaca J, as set out in point 6 of the extract, is that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious offence.

Factors relevant to the assessment

In point 7 of the extract, Fiannaca J identified the factors that are relevant to the assessment of whether the respondent will substantially comply with the standard conditions. His Honour said that they would include the respondent's history of compliance and non-compliance and the factors he had set out in his judgment in paragraph 50.
In paragraph 50, Fiannaca J identified, in effect, the following factors:[46]
[46] The first four factors his Honour drew from Kim v Witton (1995) 59 FCR 258. The next four factors were from The State of Western Australia v A [2018] WASC 250 [123]. The last factor was from The State of Western Australia v Misko [No 6] [2018] WASC 389.
1.the offender's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);
2.his capacity to comply with the conditions;
3.what measures there are in place to ensure he would substantially comply;
4.the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the DSO Act;
5.the respondent's motivation to remain offence free and in the community;
6.any willing participation in a sex offender treatment programme;
7.abstinence from drugs;
8.conduct while in prison; and
9.demonstrated gains in treatment, self‑management and life skills.

Detention or supervision

If the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions, I must then decide whether to rescind the Supervision Order and make a continuing detention order or affirm the Supervision Order, with or without amendment or extension.
In deciding between these options, the paramount consideration is the need to ensure adequate protection of the community.[47] However, it 'cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order'.[48] Nor does it mean that other considerations are excluded.[49]
[47] Section 55(3) of the HRSO Act.
[48] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]. See also The State of Western Australia v West [2013] WASC 14 [52].
[49] DAL [No 2] [33], citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57] (Wheeler JA).
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on an offender, but rather for the ultimate purpose of protecting the community.[50] 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'.[51]
[50] See, in relation to the DSO Act, Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [97] (Murray AJA).
[51] West [52(j)], citing The State of Western Australia v Latimer [2006] WASC 235; and Decke. See also Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [22].
In Director of Public Prosecutions (WA) v DAL [No 2],[52] Beech J[53] summarised the principles to be applied in considering whether a supervision order would adequately protect the community, in relation to relevantly identical provisions in the now repealed DSO Act. Putting his Honour's observations in list form, and omitting citations, his Honour said:
1.The use of the word 'adequate' indicates that a qualitative assessment is required.
2.In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be imposed so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his or her care and treatment.
3.The [DSO Act] does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released.
4.The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
5.If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[52] DAL [No 2] [33], citing Williams [57], [86] (Wheeler JA); Griffiths [20], [103], [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].
[53] As his Honour then was.

Evidence

The State tendered, by consent, two books of materials[54] which included reports from psychiatrist Dr Wojnarowska, psychologist Dr Riordan and a report from Ms Serrano of the Department of Corrective Services.
[54] Exhibits 1.1 and 1.2, which I refer to as the 'BOM'.
Dr Wojnarowska, Dr Riordan and Ms Serrano gave oral evidence in the hearing. The respondent did not challenge the credibility or reliability of any of the witnesses, and did not challenge the expertise of the experts. Each of the witnesses gave their evidence in a measured and frank manner, giving reasons where appropriate. I accept their evidence.
The respondent did not give or adduce any evidence in the hearing.

Dr Wojnarowska

Dr Wojnarowska is an experienced psychiatrist. Dr Wojnarowska had previously provided reports for the first and second review hearings. She provided the risk assessment required by s 74 of the HRSO Act in these proceedings, pursuant to Quinlan CJ's orders.
There was no change in Dr Wojnarowska's diagnosis of the respondent. In her report, Dr Wojnarowska stated that the respondent 'fulfils the criteria for a diagnosis of paedophilia, an exclusive type, attracted predominantly towards males.' She did not diagnose the respondent with a personality disorder.[55]
[55] BOM page 473 [39] (emphasis removed).
In her report, Dr Wojnarowska opined that the respondent's risk of reoffending remains high.[56] She was of the opinion that, if not subject to a supervision or detention order, the respondent is at a high risk of re-offending in a sexual manner.[57]
[56] BOM page 478 [70].
[57] BOM page 479 [72].
In her report, Dr Wojnarowska stated that, if the respondent were to reoffend, it is likely to be in a similar manner to his previous offences, which were predominantly intra-familiar, associated with a period of grooming. She identified the likely victim to be a pre-pubescent male with whom the respondent would form a long-term 'relationship'. At those times he is likely to emotionally withdraw from people who are supporting him.[58] Dr Wojnarowska does not think the respondent is likely to abduct a child or to use additional violence in his offending.[59]
[58] BOM pages 478 - 479 [71].
[59] BOM pages 478 - 479 [71].
Dr Wojnarowska was of the opinion that the respondent's risk of sexual reoffending can continue to be managed in the community.[60] Dr Wojnarowska supported the Supervision Order being amended in terms of the Minute.[61]
[60] BOM page 479 [73].
[61] ts 373.
In relation to the respondent's access to internet, Dr Wojnarowska said:[62]
I am of the opinion that [the respondent] would require access to the internet as otherwise the boredom resulting from isolation and inactivity would increase his risk of reoffending.
[62] BOM page 479 [76].
In her oral evidence, Dr Wojnarowska said that she considered that the respondent's risk is well contained within the community context. She said she did not have concerns that he would reoffend in the immediate future.[63] She explained:[64]
DAL has been in the community for a number of years now. He has never - he has got no history of reoffending during that time. The breaches are more related perhaps to him not paying enough attention to what the conditions are, but he has never placed himself or any children at risk. He - he is well adjusted. His mental state is stable. He has stable accommodation, and he has got a prospect of having his long-term friend now living in his proximity. So he has got community supports, and he - he has got purposeful activity that he is engaged in. Therefore, I do not have concerns about - in relation to him reoffending in the immediate future.

Dr Riordan

[63] ts 372.

[64] ts 372.

Dr Riordan is an experienced forensic psychologist. She provided a treatment progress report in relation to the respondent. The purpose of the report was to 'provide an assessment of any potential treatment gains made by [the respondent], to explore any potential barriers to service provision and to identify areas of outstanding treatment need.'[65]
[65] BOM pages 481 - 482 [2].
Dr Riordan summarised the respondent's treatment history, including his counselling with psychologists Ms Rankin and Mr Summerton.[66] She said with respect to his engagement in treatment:[67]
[The respondent] has consistently engaged well and even enthusiastically in the individual intervention sessions offered across both the community and custodial setting and across treating clinicians. He has been afforded the opportunity of long-term individual intervention that has been undertaken across contexts with the same clinician. The longevity of this intervention has assisted [the respondent] to transition from the prison to the community context and positively predisposed him to engaging with psychological support. However, concern has also been raised about the potential for [the respondent] to develop dependency on such relationships, rather than independence and the promotion of self-management. Given the longevity of his involvement in treatment with Ms Rankin, it is unsurprising that [the respondent] is well versed in the distal factors that have contributed to his involvement in sexual offences against children, this insight developed several decades ago and has been sustained this over time. His understanding of the proximal situational and contextual factors that contributed to his offending behaviour, and therefore relevant dynamic risk factors that require management, impressed as less well developed. While he did appear to have an intellectual understanding of some factors that have facilitated or enabled his past sexual offending behaviour (e.g., boredom, seeking emotional comfort from children) his knowledge appears to have been of limited value or application more recently to assist with risk management as evidenced by the contraventions for which he was convicted.
[66] BOM pages 482 - 488 [5] - [11], [13] - [18] and [20] - [24]. See also the report of Mr Summerton at BOM page 462.
[67] BOM page 494 [45].
In her report, Dr Riordan also summarised the respondent's account of his own progress and of the contraventions.[68]
[68] BOM pages 489 - 493 [26] - [42].
Dr Riordan concluded:[69]
[The respondent] has a range of enduring outstanding treatment needs, the likes of which have been largely unresponsive to psychological intervention. As such, supervision and monitoring should be prioritised over individual psychological intervention, which should only be form [sic] part of any Restriction Order should [the respondent] experience a decline in mental health.

Ms Serrano

[69] BOM page 496 [52].

Ms Serrano is a Senior Community Corrections Officer based within the COMU. The respondent is one of the high risk serious offenders assigned to Ms Serrano for case management.[70] Ms Serrano provided a performance report. Her report addressed the respondent's response to supervision and the appropriate conditions for the Supervision Order.[71]
[70] Affidavit of Gabriela Alexandra Serrano filed 16 December 2021 [1] and [4].
[71] BOM page 499.
In her report, Ms Serrano comprehensively outlines the occasions when the respondent did not comply with the Supervision Order. These incidents varied in degrees of seriousness, with COMU's responses ranging from no further action to the charges under s 80(1) of the HRSO Act.[72]
[72] BOM page 499 - 505.
Ms Serrano says that the respondent 'has generally been compliant with the supervision requirements.' She says that '[o]verall he has reported for supervision as directed and has generally engaged appropriately during these appointments.'[73]
[73] BOM page 505.
Ms Serrano set out the Proposed Additional Conditions to the Supervision Order. The Proposed Additional Conditions mirror previous written lawful instructions given to the respondent following the first two charges. She said that these written lawful instructions
which allowed for checking of [the respondent's] phone, required disclosure of certain relationships, prohibited the deletion of phone messages and placed further restriction on [the respondent's] accessing of child images online appears to have assisted in identifying [the respondent's] ongoing deviant sexual interests and high risk behaviours.[74]
[74] BOM page 523.
Ms Serrano supported the Supervision Order being amended in terms of the Minute.[75]
[75] ts 383.

Evaluation

Substantially comply?

As noted earlier, the effect of the legislative framework is that I must make a continuing detention order unless the respondent satisfies me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
As pointed out by Fiannaca J in Hart, 'substantially comply' does not mean complete compliance, with no room for any accidental breach or minor missteps. It means comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious offence.[76]
[76] Hart [52].
I am satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of a supervision order.
The respondent has been in the community under the Supervision Order for nearly five years. The only standard condition with which he has not strictly complied is the condition requiring him to comply with any reasonable direction. However, I consider that he has, and he will continue to, substantially comply with that condition, within the meaning of that expression. Ms Serrano said he 'has generally been compliant with the supervision requirements.'
Of most importance, he has not committed a serious offence in this period of supervision. Further, Dr Wojnarowska said she did not have concerns that he would reoffend in the immediate future and gave cogent reasons for that view.[77]
[77] ts 372.
I accept her evidence.

Should he be released on the same conditions, additional conditions or detained?

Being satisfied that the respondent would substantially comply with the standard conditions, I must then decide whether to rescind the Supervision Order and make a continuing detention order or affirm the Supervision Order, with or without amendment or extension.
In deciding between a continuing detention order and a supervision order, the paramount consideration is the need to ensure adequate protection of the community. 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'.[78]
[78] West [52(j)].
The State's application seeks that the respondent be re-released on the Supervision Order, but with the amendments set out in the Minute. Counsel for the State submitted that the respondent's risk of serious reoffending can be adequately managed in the community if the Supervision Order is amended. This submission was appropriate (and proper) having regard to the evidence.

The evidence which established that the respondent's risk of serious reoffending can be adequately managed in the community included Dr Wojnarowska's expert opinion that it could be.[79] Dr Wojnarowska supported the Supervision Order being amended in terms of the Minute.[80] The unit responsible for managing him in the community, represented by Ms Serrano, supported the Supervision Order being amended in the terms proposed.[81]
[79] BOM page 479 [73].
[80] ts 373.
[81] ts 383.
I am satisfied that the community will be adequately protected by a supervision order amended in the terms proposed.
Accordingly, I will affirm the Supervision Order, and will amend the Supervision Order in the terms set out in the Minute. Attached to these reasons are the amended conditions of the Supervision Order.

Annexure A

STANDARD CONDITIONS REQUIRED BY THE ACT

Report to a Community Corrections Officer (CCO) at the [address redacted] by 10 AM on 22 July 2022 ~~place and within the time stated in the order~~ and advise the officer of ~~the person's~~ your current name and address.
Report to and receive visits from, a CCO as directed by the court.

Notify a CCO of every change of ~~the person's~~ your name, place of residence, or place of employment at least 2 business days before the change happens.

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~~ section 31 or section 32).

Not leave, or stay out of, the State of Western Australia without the permission of a CCO.

Not commit a ~~sexual offence as defined in the Evidence Act 1906 s 36A~~ serious offence during the period of the order.
Be subject to electronic monitoring under section ~~19A~~ 31.

ADDITIONAL CONDITIONS

Residence

Take up residence at [address redacted] 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.
Keep a permanent place of residence approved by a CCO assigned to you.
Any overnight stays, defined as between 10.00 p.m. and 7.00 a.m. 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

If and as directed by your CCO, report to a CCO at your nominated release address within normal business hours immediately following the hearing on 19 July 2022. ~~on the day of release from custody under this order.~~
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
Not commence or change voluntary, paid employment or education without the prior approval of the CCO.

Attendance at programs or treatment

Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
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

If and as directed by your CCO or Police, report to [redacted], ~~your release from custody~~, and report to and receive visits from Police at times and at locations as directed by Police.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).
If requested, permit Police Officers to enter and search your residence and/or vehicle 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. You must remain at your premises and/or vehicle when any search is conducted.
When requested, advise Police or a CCO of the names of all of your internet service providers, all mobile or landline telephone services used by you and all ~~internet~~ screen names, user names or identities and email addresses 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.

Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device.

Disclosure/Exchange of Information

Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow 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

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 Service~~ Justice.
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.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.
Not be physically present in [redacted].

Criminal conduct

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.
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) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021.
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

Curfew

Be subject to a curfew, pursuant to s 19B) of the Dangerous Sexual Offenders Act 2006 section 32 of the High Risk Serious Offenders Act 2020 (WA), such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or ~~curtilage~~ front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to 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

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.
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.
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

Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
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.
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
(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.)
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.
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.
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.
Report ~~immediately~~ at your next contact with a ~~to your~~ CCO the formation of any friendship (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Not allow any person with whom disclosure of your offences has not been confirmed by WA Police or a CCO onto your place of residence unless approved by a CCO.
45. Have no contact with, membership of an 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.
46. Not conduct computer searches for, nor collect or access, or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not. Possession of such images depicting a child or children on items such as on household items, may be authorised by a CCO.
47. To advise a CCO of every device used by you to access the internet and the location of that device.
48. With respect to any computer, telephone and electronic storage devices, in your possession, whether or not the device is capable of connecting to the internet, ~~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 data including, but not limited to, calls, Short Message Service (SMS) texts, search histories or logs capable of identifying your activities on your telephone and electronic storage devices ~~that computer~~, without the approval in advance of a CCO or Police Officer.

49.You must not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device in your possession or which is used by you, whether or not it is capable of being connected to the internet without the express prior approval of a CCO. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KH
Associate to the Honourable Justice Archer
26 JULY 2022