The State of Western Australia v Decke [No 6] - [2024] WASC 339

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DECKE [No 6] [2024] WASC 339
CORAM:   ARCHER J
HEARD:   10 SEPTEMBER 2024
DELIVERED          :   20 SEPTEMBER 2024
FILE NO/S:   SO 36 of 2009
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BRIAN JOHN DECKE
Respondent

Catchwords:

Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Review of a continuing detention order - Turns on its own facts

Legislation:

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

Result:

Continuing detention order affirmed

Category: B

Representation:

Counsel:

Applicant	:	D S McDonnell
Respondent	:	D J McKenzie

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	David McKenzie Legal Pty Ltd

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

Director of Public Prosecutions (WA) v Coffin [2014] WASC 305
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393, 25
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Director of Public Prosecutions for Western Australia v Decke [No 2] [2017] WASC 119
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Garlett v Western Australia v Garlett [2022] HCA 30
Italiano v The State of Western Australia [2009] WASCA 116
Kim v Witton (1995) 59 FCR 258
The State of Western Australia v A [2018] WASC 250
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Decke [No 3] [2018] WASC 421
The State of Western Australia v Decke [No 4] [2020] WASC 263
The State of Western Australia v Decke [No 5] [2022] WASC 248
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
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
Western Australia v ACJ [2021] WASC 219

ARCHER J:

Overview

The respondent was convicted of 14 sexual offences between 1982 and 2007. In 2007 he was convicted of the last of these offences and received a sentence of 2 years and 5 months' imprisonment.
On 26 May 2009, before the respondent's sentence expired, the State of Western Australia applied for orders under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The State contended that the respondent was a serious danger to the community and sought that he be made subject to a supervision order when he was released from custody. The application was heard by Hall J[1] in August 2009.
[1] As his Honour then was.
On 29 October 2009, Hall J delivered his reasons.[2] His Honour found that the respondent was a serious danger to the community (which the respondent had conceded at the hearing), but that the community could be adequately protected by releasing the respondent on a supervision order.
[2] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312.
In 2015, the respondent was charged with contravening the supervision order and with other offences, including the possession of child exploitation material. On 8 June 2016, the respondent was sentenced to 6 months and 1 day's imprisonment in relation to the latter offence. On 4 November 2016, the respondent was sentenced to a total effective term of 14 months' imprisonment in relation to the contraventions of the supervision order. The offending conduct had occurred between February 2014 and April 2015.
On 8 November 2016, the State applied for the respondent to be detained in custody or, in the alternative, for the supervision order imposed by Hall J to be amended to adequately protect the community. The application was heard by Fiannaca J in March 2017. His Honour delivered his reasons on 28 April 2017, rescinding the supervision order and making the respondent subject to a continuing detention order.[3]
[3] Director of Public Prosecutions for Western Australia v Decke [No 2] [2017] WASC 119.
The continuing detention order has since been reviewed three times.
On 2 July 2018, on the first review, Fiannaca J affirmed the continuing detention order.[4]
[4] The State of Western Australia v Decke [No 3] [2018] WASC 421.
On 2 July 2020, on the second review, I affirmed the continuing detention order.[5]
[5] The State of Western Australia v Decke [No 4] [2020] WASC 263.
The third review occurred on 5 August 2022. In the interim, the DSO Act had been repealed (on 26 August 2020) and replaced by relevant parts of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). From that time, the respondent was subject to the HRSO Act. On the third review, Allanson J again affirmed the continuing detention order.[6]
[6] The State of Western Australia v Decke [No 5] [2022] WASC 248.
On 28 February 2024, the State applied for the fourth review of the continuing detention order. I heard this review on 10 September 2024.
Later, I will set out the legislative framework. For the moment, it is sufficient to note the following.
The first issue on a review application is whether the respondent is a high risk serious offender. If I find that he is, I will be required by the HRSO Act to affirm the continuing detention order or make a supervision order.
The second issue is whether the respondent has satisfied me on the balance of probabilities that he would substantially comply with the standard conditions. If I am not satisfied of this, I will be required to affirm the continuing detention order. If I am satisfied of this, the third issue arises.
The third issue is whether the respondent should be released on a supervision order or whether I should affirm the continuing detention order.
The respondent concedes that he is a high risk serious offender. I am satisfied that he would substantially comply with the standard conditions. However, there is no suitable accommodation available to him. Given that, it is not appropriate that he be released on a supervision order. Accordingly, I will affirm the continuing detention order.

Background

Declared to be a dangerous sexual offender and released on a supervision order

In Fiannaca J's reasons on the first review, his Honour set out what led to the respondent being found to be a serious danger to the community:[7]
[7] Decke [No 3] [11] ‑ [15].
The respondent committed a number of sexual offences, mainly against female children, from July 1982, when he was 31 years old, until January 2005, when he was 53. The most serious of his offences involved:
(1)indecently dealing with a nine‑year‑old girl he was babysitting in 1982;
(2)an indecent assault on a young woman in a public place in July 1996. He accosted the young woman while he was naked from his waist down. When she tried to ignore him, he grabbed her around the neck from behind and dragged her backwards until she was able to break away;
(3)indecently dealing with a child who was a lineal relative, being his five‑year‑old granddaughter, in January 2005. He was staying at his son's house. His granddaughter had gone into the lounge room with her sister to watch television and was lying on the lounge suite when the respondent placed his hand inside the leg opening of her underwear. He pulled his hand out when he was disturbed by his son coming into the room.
From 1987 until 2002, the respondent was convicted of numerous offences of wilful exposure which consisted generally of exposing himself to female children or young women and masturbating in their presence.
For the indecent assault in July 1996 and the offence of indecently dealing with a child who was a lineal relative in January 2005, the respondent was sentenced to terms of imprisonment. For the last of those offences he was sentenced to 2 years and 5 months' imprisonment on 1 March 2007.
The respondent served the full sentence. He was not released on parole because he had not completed an ISOTP. That was due to the unavailability of a program to the respondent, largely as a result of timing. He had been assessed as requiring treatment under such a program before he could be released. It was in the context that the respondent had not completed such a treatment program and was likely to be released into the community without the benefit of supervision that the Director of Public Prosecutions for Western Australia (DPP) made an application under the DSO Act. The application was for a continuing detention order or a supervision order under Div 2 of the DSO Act, on the basis that the respondent was a serious danger to the community, in that there was an unacceptable risk the respondent would commit a serious sexual offence if he was not subject to one of those orders.
On 29 October 2009, Hall J found that the respondent was a serious danger to the community. On the evidence before him, his Honour was satisfied that the community could be adequately protected, at that stage, by releasing the respondent on a supervision order for a period of 10 years, subject to 42 conditions formulated to ensure adequate monitoring of the respondent, control of his behaviour and continuing treatment intended to reduce his risk of sexual offending in the future.

Contravention of supervision order

Five years after being released on the supervision order, the respondent contravened it on a number of occasions in 2014 and 2015. Fiannaca J said that the contraventions of particular relevance to the respondent's risk of committing a serious sexual offence (under the DSO Act) were:[8]
(1)having contact with a child under the age of 17 years and failing to report the contact to his Community Corrections Officer (CCO);
(2)failing to comply with lawful directions preventing him from entering certain areas;
(3)failing to comply with a lawful direction requiring him to return to or remain at his residence and charge the transmitter of the GPS device he was required to carry, if it was indicating a low battery;
(4)collecting images of children (which were found on his iPad and his mobile telephone). Some images were from a festival event. Others were of children in school uniforms, taken from the respondent's home and from a nearby 'Men's Shed';
(5)committing an offence under s 557K(6) of the Criminal Code (WA), in that, being a child sex offender, without reasonable excuse he was in or near a public place where children are regularly present;
(6)committing an offence contrary to s 203 of the Criminal Code (doing an indecent act in public), by taking photographs up the skirts of two unsuspecting women on a train; and
(7)conducting computer searches of children.
[8] Decke [No 3] [17].
Fiannaca J described what happened in relation to the breaches:[9]
The respondent was charged under s 40A of the DSO Act in respect of the contraventions. At various times he was also charged with other offences arising from the contravening conduct, including offences under s 557K and s 203 of the Criminal Code. The last of the contraventions involved possession on an electronic storage device of 15 images of children, 13 of them amounting to child exploitation material, showing children in a demeaning and offensive context. Two of them showed children in a sexual context. In respect of the 13 images, he was charged with an offence under s 220 of the Criminal Code of being in possession of child exploitation material. He was convicted of that offence after a trial by jury in the District Court and sentenced on 8 June 2016 to 6 months and 1 day's imprisonment.
On 4 November 2016, he was sentenced in the Perth Magistrates Court to a total effective sentence of 14 months' imprisonment for two of the s 40A offences and four counts of failing to comply with his reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA), contrary to s 63(1) of that Act.

The supervision order is revoked

[9] Decke [No 3] [18] ‑ [19].

In addition to the prosecutions arising from the respondent's contraventions of the conditions of the supervision order, the State sought an order under s 23 of the DSO Act. Under s 23, if a court was satisfied that a person had contravened a condition of a supervision order, it could, among other things, rescind the supervision order and make a continuing detention order.
The State's application was heard by Fiannaca J in Decke [No 2]. His Honour assessed the contraventions in terms of whether, and to what extent, they indicated an increase in the risk that the respondent would commit a serious sexual offence.[10] His Honour found that the later contraventions 'constituted warning flags that the respondent's risk of committing a serious sexual offence was increasing'.[11]
[10] Decke [No 3] [20].
[11] Decke [No 3] [23].
His Honour concluded, among other things:[12]
The respondent has outstanding treatment needs.
…
I am satisfied that the respondent's risk that he will commit a serious sexual offence has become unacceptable within the community under the current supervision order. Further, I do not consider that the proposed amendments and additions to the supervision order would provide adequate protection of the community against that risk at this stage. That is essentially because of the respondent's lack of honesty and reliability and his resistance to supervision in recent years.
[12] Decke [No 2] [141] ‑ [142].
Accordingly, his Honour rescinded the supervision order and made a continuing detention order.

The first review

Under the DSO Act (and under the HRSO Act), a continuing detention order had to be reviewed by the court. The first review had to occur as soon as practicable after the end of a period of one year commencing on the first day on which the person was in custody solely on the basis of the continuing detention order.[13] Fiannaca J conducted the first review. His Honour affirmed the continuing detention order.[14] His Honour considered that, at that time, a supervision order would be inadequate to protect the community.[15] His Honour was also not satisfied that the respondent would substantially comply with the standard conditions of a supervision order. In addition, his Honour considered that there continued to be a significant risk that the respondent would fail to comply with other conditions that are designed to manage risk.[16]

The second review

[13] DSO Act, s 29(2)(a).

[14] Decke [No 3] [173].

[15] Decke [No 3] [167] ‑ [171].

[16] Decke [No 3] [172].

I heard the second review on 2 July 2020 and affirmed the continuing detention order on 10 July 2020.
In my reasons, I explained why I was not satisfied that the respondent would substantially comply with the standard conditions of a supervision order.[17]
[17] Decke [No 4] [87] ‑ [94].
I also set out my concerns that the risk posed by the respondent could not be adequately managed in the community.[18] Among my concerns was that the respondent displayed ongoing anti‑authoritarian attitudes and a level of defiance. Ultimately, I was left in doubt as to whether the conditions of a supervision order would adequately protect the community.[19]

The third review

[18] Decke [No 4] [95] ‑ [98].

[19] Decke [No 4] [99] ‑ [102].

Allanson J heard the third review of the respondent's continuing detention order (which was by that point subject to the HRSO Act) on 26 July 2022 and published reasons on 5 August 2022. His Honour concluded that the respondent remained a high risk serious offender, but that the risk could be appropriately managed by a supervision order, if the right conditions were in place. However, as there was no suitable accommodation available to the respondent if he was released under a supervision order, his Honour was unable to be satisfied that the risk could be managed in the community.[20] Accordingly, his Honour was required to (and did) affirm the continuing detention order.
[20] Decke [No 5] [66] ‑ [72].

The evidence

The State relied on two volumes of material that contained relevant information,[21] including the two reports prepared for this hearing. The two reports were:
(1)a report by psychiatrist Dr Peter Wynn Owen; and
(2)a Community Supervision Assessment report from Katrina Czechowski, a Senior Community Corrections Officer. Until 4 September 2024, Ms Czechowski worked in the Community Offender Monitoring Unit of the Department of Justice. She was the respondent's supervising officer from 11 June 2023 to 4 September 2024.
[21] The State tendered two volumes of a 'Book of Materials' filed 12 July 2024 and 4 September 2024 (BOM), but did not seek to have items 13 and 14 admitted into evidence.
Both of these report writers gave oral evidence in the hearing, as did Aimee Goode, a team leader with the Community Offender Monitoring Unit. Their evidence was not challenged, and I accept it. The respondent did not give, or adduce, evidence.
A letter was also provided from Dr Sarah Barbas, a Senior Clinical and Forensic Psychologist with the Department of Justice's Forensic Psychological Assessment Team. Dr Barbas explained that the respondent has not engaged in any form of treatment since the third review in 2022. A referral for psychological intervention was declined in May 2024 because the respondent had only made limited treatment gains in the past and was unlikely to gain from further treatment. As a result, a Treatment Progress Report was not prepared for the Court.[22] Neither party wished to ask Dr Barbas questions in the hearing, so she was not called to give oral evidence.[23]

Legal principles[24]

Statutory framework

[22] BOM Volume 2 pages 294 ‑ 295.

[23] ts 171.

[24] This section reproduces, or draws from, what I have written in earlier decisions.

The HRSO Act operates in substantially the same way as the DSO Act. For this reason, the principles established by the case law decided under the DSO Act apply to the HRSO Act.[25]
[25] The State of Western Australia v ZSJ [2020] WASC 330 [5], [30] ‑ [31] (see also [32] ‑ [63]) and The State of Western Australia v Narrier [No 6] [2020] WASC 349 [4], [29] ‑ [30].
Under s 64 of the HRSO Act, the State may seek a review of an offender's detention under a continuing detention order.

Objects of the review requirement

In The State of Western Australia v Corbett [No 5], Hall J said (citations omitted):[26]
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for a past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community, then the continuing need for detention must be considered … It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community ...
…
The risk of reoffending may change over time. It may be affected by age, health, or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed by a supervision order. There is also the possibility that the risk may increase because of a failure of treatment or a relapse into deviant thinking.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, a mere welfare check: they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community ...
[26] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [8], [10] ‑ [13].

With respect, I agree. However, I do not consider that the fact that the review process is intended to allow for the possibility of a change of circumstances means that the respondent must demonstrate a change of circumstances. Nor do I consider this was what Hall J intended to convey.
In my view, the question as to whether the respondent is a high risk serious offender, and whether the continuing detention order should be affirmed, is entirely a matter for the judge hearing the review application to determine. While the judge will no doubt give weight to the views expressed by other judges in any previous reviews and on the original application, the judge himself or herself must decide whether the respondent is a high risk serious offender, and whether the continuing detention order should be affirmed.

The court's powers

Section 68 of the HRSO Act provides:
68.Review of detention under continuing detention order
(1)On a review under section 66 of an offender's detention -
(a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b)if the court finds that the offender remains a high risk serious offender it must -
(i)affirm the continuing detention order; or
(ii)subject to section 29, rescind the continuing detention order and make a supervision order.
(2)In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure adequate protection of the community.
Accordingly, the first question I must answer is whether the respondent is a high risk serious offender. The respondent concedes that he is.[27] Nevertheless, I must be satisfied of that on the evidence.

High risk serious offender - necessary to make restriction order

[27] ts 173.

Section 7(1) of the HRSO Act provides:
7.Term used: high risk serious offender
(1)An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
With one qualification, this raises materially the same considerations as applied under the DSO Act in determining whether a person was a 'serious danger to the community'.[28]
[28] ZSJ [42] - [47].
The qualification is that s 7(1) of the HRSO Act expressly requires that the court be satisfied that 'it is necessary to make a restriction order' before an offender can be found to be a 'high risk serious offender', whereas s 7 of the DSO Act did not.[29] By expressly requiring this, s 7(1) of the HRSO Act makes it clear that an offender who presents an unacceptable risk will not be a 'high risk serious offender' unless it is necessary to make a restriction order to adequately protect the community. In TheState of Western Australia v D'Rozario [No 3],[30] Quinlan CJ gave the following example of when it might not be necessary:
… it may be that, in the circumstances of a particular case, other external restraints on an offender (such as a post‑sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').
[29] See the discussion in The State of Western Australia v Garlett [2021] WASC 387.
[30] TheState of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21].
Determining whether a restriction order is necessary requires a balancing exercise.
On the one hand, the court is required to have regard to, among other things, the risk the offender would commit a serious offence (with serious consequences for the victim) if the offender was not made the subject of a restriction order and the likelihood of the risk materialising. On the other hand, the court is required to have regard to the serious consequences for the offender (either detention, without having committed an unpunished offence, or being subject to an onerous supervision order) if an order is made.[31]
[31] In relation to the regime under the DSO Act, see Italiano v The State of Western Australia [2009] WASCA 116 [46] (Buss JA, as his Honour then was).
The court must then decide whether the risk of the offender committing a serious offence is so unacceptable that, notwithstanding that the offender has already been punished for the offences he or she has committed, it is necessary that he or she be subject to further control or detention to ensure the adequate protection of the community.[32]
[32] In relation to the regime under the DSO Act, see Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] (Wheeler JA), and expressly approved by Steytler P and Buss JA, as his Honour then was, in Director of Public Prosecutions (WA) vGTR [2008] WASCA 187; (2008) 38 WAR 307 [26].
The State bears the onus of satisfying the court that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the respondent would commit a serious offence.[33] It must do this by acceptable and cogent evidence and to a high degree of probability.[34]
[33] HRSO Act, s 7(2). And, in relation to the equivalent provision in the DSO Act, see Director of Public Prosecutions (WA) vPindan [No 3] [2017] WASC 107 [41] and [43].
[34] HRSO Act, s 7(1).
The expression 'high degree of probability' sets a higher standard than the standard of the balance of probabilities, but a lesser standard than the standard of beyond reasonable doubt.[35] However, this does not mean that the risk must be greater than 50%. The court must identify 'what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence'.[36]
[35] In relation to the equivalent provision in the DSO Act, see GTR [28] (Steytler P and Buss JA, as his Honour then was).
[36] In relation to the equivalent provision in the DSO Act, see GTR [34] (Steytler P and Buss JA, as his Honour then was).
A 'serious offence' is defined in s 5 of the HRSO Act.
In deciding whether to find a person is a high risk serious offender, the court must have regard to each of the matters specified in s 7(3) of the HRSO Act:
(3)In considering whether it is satisfied as required by subsection (1), the court must have regard to the following -
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
Section 7(3) of the HRSO Act is relevantly identical to s 7(3) of the DSO Act.

Precondition to a supervision order - compliance with standard conditions

If I find that the respondent is a high risk serious offender, I must affirm the continuing detention order or make a supervision order.
Due to s 29 of the HRSO Act, I will only have a choice if the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions.
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:[37]
[37] See the definition of 'standard condition' in s 3 of the HRSO Act.
30.Conditions of supervision order
…
(2)A supervision order in relation to an offender must require that the offender -
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
(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 affirm the 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[38] in relation to the provisions of the DSO Act. Under the DSO Act, the relevant risk was that the respondent would commit a serious sexual offence. Under the HRSO Act, the relevant risk is that the respondent will commit a serious offence. Nevertheless, 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.
[38] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
In the above extract at (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;[39]
(2)given the onerous nature of supervision orders, missteps are to be expected;[40] and
(3)the frequency or regularity of contraventions might inform the question of whether the person will substantially comply.[41]
[39] Hart [21].
[40] Hart [51].
[41] Hart [36].
A critical point made by Fiannaca J, as set out in (6) of the extract, is that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious offence.
In Western Australia v ACJ,[42] Fiannaca J said:
The question of whether the respondent will substantially comply with the standard conditions of the supervision order requires consideration of all of the circumstances, both personal to him and external, which will affect him. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro‑social support available to him.

Factors relevant to the assessment

[42] Western Australia v ACJ [2021] WASC 219 [416], endorsed by the High Court in Garlett v Western Australia v Garlett [2022] HCA 30 [103].

In (7) of the extract, Fiannaca J identified the factors that are relevant to the assessment of whether the respondent will substantially comply with the standard conditions. His Honour said that they would include the respondent's history of compliance and non‑compliance and the nine factors he had set out in his judgment in [50].[43]
[43] Although Fiannaca J was dealing with the DSO Act, the factors are equally relevant under the HRSO Act. The first four of the nine factors (numbers 2 ‑ 5 on the list) his Honour drew from Kim v Witton (1995) 59 FCR 258. The next four of the nine factors (numbers 6 ‑ 9) were from The State of Western Australia v A [2018] WASC 250 [123]. The last of the nine factors (number 10) was from The State of Western Australia v Misko [No 6] [2018] WASC 389 [196].
Putting those factors in list form, they are as follows:
(1)the offender's history of non‑compliance;
(2)the offender's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);
(3)his capacity to comply with the conditions;
(4)what measures there are in place to ensure he would substantially comply;
(5)the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the HRSO Act;
(6)the respondent's motivation to remain offence free and in the community;
(7)any willing participation in a sex offender treatment program;
(8)abstinence from drugs;
(9)conduct while in prison; and
(10)demonstrated gains in treatment, self‑management, and life skills.

Detention or supervision?

If the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions, I must then decide whether to make a supervision order or affirm the continuing detention order.
In deciding between these options, the paramount consideration is the need to ensure adequate protection of the community.[44] 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'.[45] Nor does it mean that other considerations are excluded.[46]
[44] HRSO Act, s 48(2).
[45] Decke [14]. See also The State of Western Australia v West [2013] WASC 14 [52].
[46] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Williams [57].
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on an offender, but rather for the ultimate purpose of protecting the community.[47] 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'.[48]
[47] See, in relation to the DSO Act, GTR [97] (Murray AJA).
[48] 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],[49] Beech J[50] summarised the principles to be applied in considering whether a supervision order would adequately protect the community, in relation to relevantly identical provisions in the now repealed DSO Act. Putting his Honour's observations in list form, and omitting citations, his Honour said:
1.The use of the word 'adequate' indicates that a qualitative assessment is required.
2.In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his [or her] care and treatment.
3.The [DSO Act] does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released.
4.The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
5.If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[49] DAL [No 2] [33], citing Williams [57] and [86]; Griffiths [20], [103] and [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].
[50] As his Honour then was.

Is the respondent a high risk serious offender?

The first issue is whether I am satisfied that there is an unacceptable risk that, if the respondent were not subject to a continuing detention order or a supervision order, he would commit a serious offence. This requires a consideration of the s 7(3) factors.

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

The requirement to have regard to the respondent's antecedents and criminal record means the court must have regard to 'all prior offences, whether they be [serious offences] or not, to the extent that such offences are relevant to the question of whether there is an unacceptable risk that the person would commit a [serious offence] in the future. It also requires consideration of the person's personal history, including the context in which past offences were committed'.[51]
[51] Hall J in relation to serious sexual offences under the DSO regime, in Director of Public Prosecutions (WA) v Coffin [2014] WASC 305 [28].
I set out the respondent's history earlier under the heading 'Background'.

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

In Director of Public Prosecutions (WA) v GTR, Steytler P and Buss JA[52] said:[53]
Although there is no doubt, under the [DSO Act], that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in the light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.
[52] As his Honour then was.
[53] GTR [62] (Steytler P and Buss JA, as his Honour then was).

Dr Wynn Owen's report was comprehensive, and I accept his conclusions.

Dr Wynn Owen

Dr Wynn Owen is a forensic consultant psychiatrist with considerable experience in this area. He interviewed the respondent and prepared a report. He had previously interviewed the respondent and prepared reports for the first, second, and third reviews.
Dr Wynn Owen's opinion is that the respondent presents a high risk of serious offending if not detained or released under strict monitoring and supervision.[54]
[54] BOM Volume 2 page 306.
The respondent has been diagnosed with exhibitionism and non‑exclusive paedophilic disorder, as well as antisocial personality disorder.[55]
[55] BOM Volume 2 page 303.
The respondent's score on the STATIC‑99R is unchanged since he was assessed in 2018. It places him in the 'Above Average Risk' category.[56]
[56] BOM Volume 2 pages 303 ‑ 304.
The respondent's most significant risk factors are unacknowledged and unaddressed sexual deviance (paedophilic disorder and exhibitionism) and the presence of antisocial personality disorder.[57]

Ms Czechowski

[57] BOM Volume 2 pages 306 ‑ 307 and ts 179.

I have also had regard to Ms Czechowski's report. It was not directed to the assessment required by s 7, of whether there is an unacceptable risk that the respondent would reoffend if not subject to an order. However, it was useful in the consideration of whether a supervision order should be made, and I refer to relevant parts of that report in subsequent sections.

Propensity and pattern - s 7(3)(c) and s 7(3)(d) factors

The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. It means[58]
that the offender has an inclination or tendency, a disposition to commit [serious 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.
[58] GTR [178]. Although this was said in relation to serious sexual offences under the DSO Act regime, the observation applies equally to a propensity to commit serious offences under the HRSO Act. See also Griffiths [66].
The respondent is a paedophile. He has a long history of sexual offending against children. I am satisfied that the respondent has a propensity to commit serious offences in the future.
There are some common themes in the respondent's offending. These can be described as a pattern of committing indecent acts in public when under stress and a pattern of grooming children to build up to contact sexual offences.

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

The respondent has received significant treatment. However, as noted earlier, he does not appear to have made any significant treatment gains.

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

Dr Wynn Owen is of the opinion that the respondent is at high risk of committing a serious offence if not subject to a continuing detention order or community supervision order. I accept his opinion.
There is an obvious need to protect the community from this risk. The types of offences the respondent may commit are likely to cause harm to children.

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

There are no other factors of relevance.

Conclusion

Having considered all of the s 7 factors, I am satisfied that there is an unacceptable risk that, if the respondent were not subject to a continuing detention order or a supervision order, he would commit a serious offence. It necessarily follows that I find that he is a serious danger to the community.

Would he substantially comply with the standard conditions?

The second issue is whether I am satisfied, on the balance of probabilities, that the offender will 'substantially comply' with the standard conditions. If I am not, I cannot make a supervision order. The onus of proving this is on the offender.[59]
[59] HRSO Act, s 29(2).
In this context, the most relevant of the standard conditions are those set out in s 30(2)(d) and (f) of the HRSO Act. These sub‑paragraphs relevantly impose conditions that the offender comply with any reasonable direction of a community corrections officer and not commit a serious offence during the period of the order.

Would he substantially comply with any reasonable direction of his CCO?

The respondent has previously breached the conditions of a supervision order. Three of those breaches were breaches of the condition that he comply with the lawful directions of his CCO. Two of those three involved the respondent going to an area he was not permitted to enter. There was a dance studio in the area which sometimes had children present.[60]
[60] See Decke [No 2] [45].
In addition, Ms Czechowski said that the respondent had accrued numerous negative notes about hoarding and cleanliness while in prison. He had been belligerent when staff declined his demands. On 26 July 2024, he was issued with a formal prison charge for failing to comply with lawful orders (after continuing to hoard food and other items in his cell).[61]
[61] BOM Volume 2 page 312.
When I reviewed the respondent's detention in 2020, I was not satisfied that the respondent had proved on the balance of probabilities that he would substantially comply with any reasonable direction of his CCO. There has, however, been a significant change in the respondent's attitude since that time.
For the last two years, the respondent has understood that, if he was released on a supervision order, he would have to comply with all of the conditions imposed on him under such an order.[62] Dr Wynn Owen 'got that sincere impression, that he did want to do what he needed to do to stay out'.[63] Further, in Dr Wynn Owen's opinion, the fact that the respondent now says he will comply with all of the conditions, 'rather than just dismissing those conditions as being ridiculous, is quite a step for him'.[64] Dr Wynn Owen expects that the respondent's frankness to those monitoring him will be better than previously as a result.[65]
[62] ts 176, 180, 183 ‑ 184.
[63] ts 183.
[64] ts 182.
[65] ts 195 ‑ 196.
In addition, the respondent is now 73 years old. Dr Wynn Owen said that the respondent definitely has a sense of his own mortality and a wish to be out of prison in this latter part of his life. Dr Wynn Owen said that the respondent understood that any form of breach would result in a high likelihood of re‑imprisonment.[66]
[66] ts 191.
Having had regard to the factors identified by Fiannaca J, outlined earlier,[67] I am satisfied that the respondent would substantially comply with the condition that he comply with the lawful directions of his CCO.

Would he substantially comply with the condition requiring him not to commit a serious offence?

[67] The factors were set out under the heading 'Precondition to a supervision order - compliance with standard conditions'.

In relation to risk scenarios, Dr Wynn Owen said:[68]
[The respondent's] most likely sexual offence is a repeat of his most frequent past offending, exposing himself to child or adult female victims in the context of poor coping and stress management.
In the same context of stress [the respondent] is also at risk of contact sexual offences against female[s] if the opportunity presents. This might occur if he befriends a person who has responsibility for and care of female children. Further to grooming the adult to enable victim access there would be grooming of the child before some form of sexualised contact would occur.
[68] BOM Volume 2 page 306.
Attached to these reasons are the proposed conditions. They are, in the words of Dr Wynn Owen, onerous and extensive.[69] However, the respondent did not contend that they should be modified or that some should be omitted. In my view, if the respondent was released on a supervision order, the proposed conditions would be appropriate.[70]
[69] ts 178.
[70] And see ts 178.
Given the conditions that would be in place if the respondent was released on a supervision order, it is unlikely that the respondent would commit a contact sexual offence.[71] It is harder, however, for external conditions to prevent a spontaneous act of exposure. Dr Wynn Owen said:[72]
[The proposed conditions] will reduce the likelihood [of further offending]. I think they've gone as far as they can in terms of the conditions that can be imposed to recognise the need to prevent unsupervised contact with children. I take her Honour's point about impulsive or spontaneous acts in public as being a concern. But, certainly, in terms of access through third parties, direct access, avoiding places where children congregate, these sort of things, they're all well-managed by the conditions in combination with the GPS exclusion zones and so on.
[71] See ts 185 and 191.
[72] ts 185.
Dr Wynn Owen said that the combination of ongoing face‑to‑face monitoring and structured time under the proposed conditions would assist in reducing the likelihood of offences of exposure.[73] He also noted that the respondent did not commit any offences of exposure when he was released previously on a supervision order, even though he had access to places where there were children.[74] He said that it appeared from this that the respondent was able to manage that behaviour, despite the stress and isolation he was experiencing from having been released into the community after a period of incarceration.[75] Further, Dr Wynn Owen said that some exhibitionists continue to demonstrate that behaviour in the prison environment, but the respondent had not done this, suggesting he did have some capacity to control that behaviour.[76]
[73] ts 192.
[74] ts 192.
[75] ts 194.
[76] ts 181.
When the respondent was previously on a supervision order, he breached it by, among other things, taking photographs up the skirts of two unsuspecting women on a train. Provided the authorities have access to all of the respondent's devices, as they would under the proposed conditions, any such offending would be easily detected. The respondent's change in attitude, discussed above, reduces the risk that the respondent would offend in this way.
Having had regard to the factors identified by Fiannaca J, outlined earlier,[77] I am satisfied that the respondent would substantially comply with the condition that he not commit a serious offence. I am satisfied that the respondent will comply with this condition in a manner and to an extent that will adequately protect the community from the risk that the respondent will commit a serious offence.
[77] The factors were set out under the heading 'Precondition to a supervision order - compliance with standard conditions'.

Should I affirm the detention order or make a supervision order?

I must now decide whether to make a supervision order or affirm the continuing detention order. I must affirm the continuing detention order unless I am satisfied that the conditions of a supervision order would adequately protect the community.
As Hall J has observed:[78]
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that the supervision order is presently a viable option.
[78] Corbett [No 5] [80].
The only realistic accommodation option for the respondent is through the Uniting WA Supported Accommodation Program. There is currently no property available for him, and there is a long waiting list. The respondent is currently seventh on the list.[79]
[79] BOM Volume 2 pages 313 ‑ 314.
As there is no suitable accommodation available to him at the moment, I cannot be satisfied that the conditions of a supervision order would adequately protect the community. Accordingly, I must affirm the continuing detention order.
I should, however, record that, had there been suitable accommodation, I may well have been satisfied that the conditions of a supervision order would adequately protect the community. This is largely due to the change in the respondent's attitude outlined earlier.
By s 64(2)(b) of the HRSO Act, the next review of the respondent's detention will not occur for at least two years from today. However, s 65 of the HRSO Act permits an offender to seek leave to apply for a review after one year. Before granting leave, the court must be satisfied that there are exceptional circumstances that relate to the offender.[80]
[80] HRSO Act, s 65(2).
If accommodation becomes available to the respondent, I consider that the court could be satisfied that there were exceptional circumstances in the context of this case. The respondent is now 73 years of age, and would be at least 74 by the time of any such application. He is unable to be released today because there is no suitable accommodation available to him.
Of course, if an application for leave is made and granted, it would be necessary to consider the position at the time of the review to ensure that there had been no negative developments in the interim. I also consider that an update on the respondent's management of his hoarding issue should be provided.

PROPOSED SUPERVISION ORDER CONDITIONS

STANDARD CONDITIONS REQUIRED BY THE ACT

Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, Level 1, 30 Moore Street East Perth within 48 hours (business hours) of commencement of the Order and advised the officer of 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 your name, place of residence, or place of employment at least business 2 days before the change happens;
Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31;

ADDITIONAL CONDITIONS

Residence

Take up residence at [address to be confirmed] 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;

Reporting to a CCO and supervision by a CCO

Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this order;
Be under the supervision of a CCO, report to and receive visits from a CCO at times and places as directed by the CCO, and comply with the lawful orders and directions of a CCO;
Not commence or change paid or unpaid employment, education, training or volunteer work 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

Report to the Officer‑in‑Charge of the Serious Offender Management Squad (SOMS) at the Hatch Building 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of the Serious Offender Management Squad or his/her delegate;
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
If requested, permit Police Officers to enter and search your residence and/or vehicle, and/or your person 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;
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020;
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 screen name(s), user name(s), and email addresses;

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 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;
Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring;

Criminal conduct

Not commit any 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 557K Criminal Code 1913 (WA) and 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;

Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.

Curfew

Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, 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 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;

Prevention of high-risk situations

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;
Provide a verbal or written account of your projected daily movements to your CCO and obtain prior approval of your projected movements, as and when directed by your CCO; with the exception of the following circumstances;
a)To obtain urgent medical or dental treatment for yourself;
b)For the purpose of averting or minimising a serious risk of death or injury to the respondent or another person;
c)To obey an order issued under a written law (such as a summons) requiring your presence elsewhere;
d)at the direction of a CCO or Police Officer.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present;
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum 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 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
Provide the name, address, location and any details known by you, of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency;
Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;
Report at your next contact with your CCO and Police any association or relationship by you with a person who has a child, or children under the age of 18 years in their care either full time or part time;
Not form any domestic relationship with a person who has a child, or children under the age of 18 years in their care either full time or part time, without prior approval of a CCO;
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (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;
Attend for, and submit to, urinalysis or other testing for prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
To provide a valid sample for testing pursuant to condition 41;
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; with the exception of images of your immediate family that are not indecent images, if approved in advance by a CCO. Possession of such images depicting a child or children on items such as on household items, may be authorised by a CCO;
Whilst in any public place or in view of a public place, not be in possession of any animate or inanimate item capable of constituting an enticement to children, unless such possession is for legitimate purpose and approved in advance by a CCO;
Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
Not to attend concerts, events or venues, inclusive of churches and places of worship frequented by children under 18 years, without the prior approval of CCO;
Not enter in or on any vehicle (including taxis), with the exception of public transport, where any other person is present in or on that vehicle, unless the person is approved in advance by the CCO;
Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 48, without prior approval;
Enable device locking or password access of your computer, telecommunication and/or electronic devices, Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 48, or any online accounts, to any person other than a CCO or Police Officer;
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; this includes providing all screen name(s), user name(s), and email addresses. 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;
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police; and
You must not assault, threaten, insult or use abusive language to a member of the departmental staff or an agent providing a service on behalf of the Department of Justice.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ADR
Associate to the Honourable Justice Archer
20 SEPTEMBER 2024