The State of Western Australia v Dick [No 2] - [2024] WASC 444

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DICK [No 2] [2024] WASC 444
CORAM:   WHITBY J
HEARD:   16 SEPTEMBER & 5 NOVEMBER 2024
DELIVERED          :   27 NOVEMBER 2024
FILE NO/S:   SO 1 of 2009
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JAMES FLAVELL DICK
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Restriction order application - Whether restriction order should be made - Whether continuing detention order or supervision order appropriate - Supervision order made

Legislation:

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

Result:

Restriction order made
Supervision order for term of 3 years made

Category: B

Representation:

Counsel:

Applicant	:	T Hollaway
Respondent	:	F Veltman

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Frances Veltman

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

Chief Executive Officer of Department of Corrective Services v Dick [No 6] [2016] WASC 323
Dick v Director of Public Prosecutions (WA) [No 4] [2012] WASC 333
Director of Public Prosecutions (WA) v Dick [No 2] [2010] WASC 288
Director of Public Prosecutions (WA) v Dick [No 3] [2011] WASC 323
Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Garlett v The State of Western Australia [2022] HCA 30
The State of Western Australia v Dick [2009] WASC 275
The State of Western Australia v Dick [2022] WASC 286
The State of Western Australia v Dick [2024] WASC 88
The State of Western Australia v UJG [No 2] [2023] WASC 77

WHITBY J:

Introduction

On 18 September 2009, the respondent was declared a dangerous sexual offender under the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The respondent was made subject to a continuing detention order (CDO) by McKechnie J.[1]
[1] The State of Western Australia v Dick [2009] WASC 275.
The CDO was affirmed after three annual reviews - in 2010[2], 2011[3] and 2012[4]. On 1 October 2013, on the respondent's fourth annual review, Hall J (as his Honour then was) rescinded the CDO and ordered that the respondent be released on a supervision order (2013 SO).[5] The 2013 SO was for a period of 10 years. The 2013 SO was amended by Fiannaca J on 15 September 2016[6] and further amended by Curthoys J on 31 August 2022 after a contravention application.[7] Curthoys J also extended the 2013 SO by 7 months. As a result, the 2013 SO was due to expire on 30 April 2024.
[2] Director of Public Prosecutions (WA) v Dick [No 2] [2010] WASC 288.
[3] Director of Public Prosecutions (WA) v Dick [No 3] [2011] WASC 323.
[4] Dick v Director of Public Prosecutions (WA) [No 4] [2012] WASC 333.
[5] Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357.
[6] Chief Executive Officer of Department of Corrective Services v Dick [No 6] [2016] WASC 323.
[7] The State of Western Australia v Dick [2022] WASC 286.
In 2020 the DSO Act was repealed upon the commencement of the (HRSO Act). Pursuant to s 125 of the HRSO Act, an order made under the DSO Act continues in effect and is taken to have been made under the corresponding provision of the HRSO Act.
On 12 January 2024, the State of Western Australia (State) applied for a further restriction order pursuant to s 36 of the HRSO Act (application). The State seeks a supervision order which predominately mirrors the 2013 SO.
On 22 March 2024, the application was before Quinlan CJ for a preliminary hearing. His Honour was satisfied that there were reasonable grounds for believing that the court might find that the respondent remains a high risk serious offender.[8] On 8 April 2024, Quinlan CJ imposed an interim supervision order (ISO).
[8] The State of Western Australia v Dick [2024] WASC 88.

Background

The respondent's index offending that initiated the original application under the DSO Act was serious sexual offences against two victims, a girl and a boy, committed between 1990 and 1993. The respondent later re-offended against the same victims in 1998. He was in a familial relationship with each of the victims. The respondent served two periods of imprisonment in respect of his offending: from 9 February 1994 to 10 March 1995 and from 3 March 1999 to 18 February 2009.
The respondent has not been charged with any serious offence since his release on the 2013 SO. He has, however, been convicted of 14 counts of contravening a requirement of the 2013 SO and ISO and two counts of failing to comply with reporting obligations for which he received fines and a suspended imprisonment order.[9] His last conviction was in September 2024. He has two further charges for breaching the ISO in October 2024 relating to possession of non-indecent images of children on his mobile phone.
[9] Exhibit 1.1, pages 1 - 3.
On 21 December 2021, the State made an application pursuant to s 53 and s 55 of the HRSO Act for an order that the respondent be detained in custody while contravention proceedings were pending.
On 22 December 2021, Strk J made an interim detention order pursuant to s 53(2)(b) of the HRSO Act.[10] On 31 August 2022, Curthoys J, upon hearing the contravention proceeding, amended the 2013 SO, as his Honour was satisfied that re-releasing the respondent on an amended supervision order would adequately protect the community.[11]
[10] ts 22 December 2021, pages 27 - 28.
[11] The State of Western Australia v Dick [2022] WASC 286 [83].
The State filed this application on 12 January 2024. The state seeks the following orders:
(1)A restriction order, namely a supervision order, to be imposed under Section 48 of the High Risk Serious Offenders Act 2020 in relation to the Respondent.
(2)Orders pursuant to section 46(2)(a), (b) and (d) of the High Risk Serious Offenders Act 2020.
(3)An order that, with effect from the date of such order, the supervision order made by Hall J on 1 October 2013 and thereafter amended by Fiannaca J on 15 September 2016 and then amended again by Curthoys J on 31 August 2022 is to continue until the pending proceedings are finally determined or until another specified date.

Materials

At the hearing, the State tendered a book of materials comprising of three volumes - volumes 1 and 2 dated 25 July 2024 and volume 3 dated 10 September 2024. They are exhibits 1.1 - 1.3.
Exhibits 1.1 and 1.2 contain background material. That material includes the respondent's criminal record, chronology of offending, medical records, transcript and records relating to the respondent's previous offences and criminal hearings and material relating to contravention proceedings.
Exhibit 1.3 was prepared for the purposes of the application. It includes:
(1) psychological report of Dr Tara Yewers dated 12 August 2024;
(2)psychiatric report of Dr Peter Wynn Owen dated 3 September 2024;
(3)proposed treatment options report of Ms Emma Cashmore dated 4 September 2024; and
(4)community supervision assessment endorsed by Ms Chloe Jones dated 9 September 2024.
The State also tendered the following documents in support of the application:
(1)prosecution notices, statement of material facts and transcript from the Magistrates Court;[12]
(2)journal article entitled 'Estimating lifetime and residual risk for individuals who remain sexual offense free in the community: practical applications';[13] and
(3)email from Ms Aimee Goode to the State dated 30 October 2024 in relation to Ms [redacted].[14]
[12] Exhibits 2, 3 and 6.
[13] Exhibit 4.
[14] Exhibit 5.
The State also relies on the affidavit of Daniel Sean McDonnell affirmed 12 January 2024 (McDonnell Affidavit) and written submissions filed 11 September 2024.
The State called Dr Wynn Owen, Dr Yewers and Ms Jones to give oral evidence at the hearing of the application.
The respondent called Ms [redacted] and Ms [redacted] to give evidence.

Statutory framework and legal principles applicable to the application

The objects of the HRSO Act are to provide for:
(1)the detention in custody or the supervision of a high risk serious offender (HRSO) to ensure adequate protection of the community and of victims of serious offences; and
(2)continuing control, care or treatment of a HRSO.[15]
[15] HRSO Act s 8.
A HRSO is defined in s 7(1) of the HRSO Act as:
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.
A 'serious offence' is defined by s 5 of the HRSO Act which relevantly provides:
5.Term used: serious offence
(1)An offence is a serious offence if -
(a)it is specified in Schedule 1 Division 1; or
(b)it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division.
(2)An offence is a serious offence if -
(a)it was an offence under a written law that has been repealed; and
(b)the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).
(3)An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2).
Relevant to the respondent's offending history, serious offences include the following offences:
(1)aggravated sexual assault contrary to now repealed s 324E of the Criminal Code (WA) (Code);
(2)indecent dealings contrary to the now repealed s 324C of the Code;
(3)sexual penetration of a child by defacto contrary to s 329(2) of the Code;
(4)indecent dealing of a child by defacto contrary to s 329(4) of the Code;
(5)attempted sexual penetration without consent contrary to s 325 and s 552 of the Code;
(6)sexual penetration of a child under 16 years contrary to the now repealed s 324E of the Code; and
(7)indecent dealing of a child under 16 years contrary to s 321(4) of the Code.
Section 36 of the HRSO Act provides that the State may apply to the Supreme Court for a restriction order in relation to an offender who is subject to a supervision order that is to expire within 1 year.
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[16]
[16] Garlett v The State of Western Australia [2022] HCA 30 [55] - [56].
The State has the onus of satisfying the court that the respondent is a HRSO in accordance with s 7(1).[17] In considering whether it is satisfied that a person is a HRSO, the court must have regard to the matters set out in s 7(3) of the HRSO Act. The matters are as follows:
[17] HRSO Act s 7(2).
(1)any report prepared under s 74 of the HRSO Act for the hearing of the application, and the extent to which the offender cooperated in the examination required by that section (s 7(3)(a));
(2)any other medical, psychiatric, psychological, or other assessment relating to the offender (s 7(3)(b));
(3)information indicating whether or not the offender has a propensity to commit serious offences in the future (s 7(3)(c));
(4)whether or not there is any pattern of offending behaviour by the offender (s 7(3)(d));
(5)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 program (s 7(3)(e));
(6)whether or not the offender's participation in any rehabilitation program has had a positive effect on the offender (s 7(3)(f));
(7)the offender's antecedents and criminal record (s 7(3)(g));
(8)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence (s 7(3)(h));
(9)the need to protect members of the community from that risk (s 7(3)(i)); and
(10)any other relevant matter (s 7(3)(j)).
Further, the court must disregard the possibility that the respondent might be temporarily prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[18]
[18] HRSO Act s 7(4).
The words 'high degree of probability' import more than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt but are otherwise not capable of further definition.[19] The court is required to identify what it is that constitutes the risk and what makes it unacceptable, and then consider whether or not those factors have been proved to the requisite standard by acceptable and cogent evidence.[20]
[19] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).
[20] Director of Public Prosecutions (WA) v GTR [34].
A restriction order means a continuing detention order or a supervision order.[21] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[22] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.[23] The standard conditions of a supervision order include the requirement that the offender not commit a serious offence during the period of the order.[24]
[21] HRSO Act s 3.
[22] HRSO Act s 3 s 26(1).
[23] HRSO Act s 3 s 27(1).
[24] HRSO Act s 30(2)(f).

Issues to be determined

As a threshold issue, the application must meet the requirements of s 36 of the HRSO Act. The application does meet those requirements in the respondent's case because:
(1)on 12 January 2024 (that is the date the application was made), the respondent was subject to the 2013 SO; and
(2)the 2013 SO was due to expire on 30 April 2024, that is within 12 months of the date of the application.
Those threshold requirements having been satisfied, the issues I must decide on the application are:
(1)is the respondent a HRSO, within the meaning of s 7 of the HRSO Act?; and, if so
(2)should the court make an order that the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order or CDO)[25] or that he be released into the community subject to conditions that the court considers appropriate (supervision order or SO)?[26]
[25] HRSO Act s 26.
[26] HRSO Act s 27.
In order to determine these issues, I will consider the matters specified in s 7(3) of the HRSO Act.

Offending history of the respondent, propensity to commit serious offences in the future and patterns of offending - s 7(3)(c), (d) and (g)

I must consider the respondent's antecedents and criminal record including all prior offences to the extent that such offences are relevant to the question of whether the person is a HRSO within the meaning of the HRSO Act (whether they are serious offences or not). I must also have regard to the context in which the past offences were committed.[27]
[27] The State of Western Australia v UJG [No 2] [2023] WASC 77 [35].
The respondent's criminal record and antecedents are not only relevant in and of themselves, but are also relevant to whether the respondent has a propensity to commit serious offences in the future, and whether there is any pattern of offending behaviour.[28]
[28] HRSO Act s 7(3)(c) -(d); The State of Western Australia v UJG [No 2] [36].
I set out the respondent's relevant offending history, including convictions for contravening the 2013 SO and the ISO, in chronological order.
On 9 February 1994, the respondent was convicted of one count of aggravated sexual assault and five counts of indecent dealing. The respondent sexually offended against his [redacted] while she was aged 6 to 9 years old. The victim was showing the respondent a gymnastics pose. While the victim was in a bend-back position, the respondent pulled down the victim's pants and licked her vagina. On further occasions, the respondent rubbed the victim's vagina with his fingers and made the victim touch his exposed penis. The respondent received a sentence of 4 years imprisonment.
On 6 December 2001, the respondent was convicted of five counts of sexual penetration of a child by defacto and three counts of indecent dealing with a child by defacto. The respondent sexually offended against his [redacted] (the same victim of his previous offending). The respondent went into the victim's bedroom which she shared with other children. The respondent penetrated the victim's vagina with his finger for several minutes multiple times and licked the victim's vagina. He also fondled the victim's breasts whilst masturbating.
On 20 December 2001, the respondent was convicted of two counts of sexual penetration of a child under 16 years, one count of attempted sexual penetration without consent and one count of indecent dealing with a child under 16 years. The respondent sexually offended against the [redacted], when the victim was aged 13 years old and again when the victim was 20 years old. When the victim was 13 years old, the respondent placed his penis into the victim's mouth and anus. The respondent also masturbated in the victim's presence. Further, when the victim was 20 years old, the respondent attempted to penetrate the victim's anus with his penis.
For the convictions on 6 December 2001 and 20 December 2001, the respondent received a total effective sentence of 12 years imprisonment.
On 2 October 2015, the respondent was convicted of one count of contravening a requirement of the 2013 SO. The respondent was found to be in possession of images of children. The respondent received a fine of $2,000.
On 28 May 2016, the respondent was convicted of one count of contravening a requirement of the 2013 SO. The respondent did not have his handheld GPS device for 12 minutes. The respondent received a fine of $800.
On 9 May 2017, the respondent was convicted of one count of contravening a requirement of the 2013 SO. The respondent did not have his handheld GPS device for 8 minutes. The respondent received a fine of $600.
On 17 January 2018, the respondent was convicted of one count of contravening a requirement of the 2013 SO. The respondent did not have his handheld GPS device for 7 minutes. The respondent received a fine of $800.
On 13 April 2018, the respondent was convicted of two counts of contravening a requirement of the 2013 SO. The respondent did not have his handheld GPS device for 8 minutes and failed to respond to the alert. The respondent received a global fine of $1,200.
On 22 May 2018, the respondent was convicted of one count of contravening a requirement of the 2013 SO. The respondent did not have his handheld GPS device for 17 minutes. The respondent received a fine of $500.
On 4 February 2019, the respondent was convicted of one count of contravening a requirement of the 2013 SO and one count of failing to comply with respondent's obligations. The respondent failed to declare a registered vehicle and failed to report the vehicle has been transferred into his name. The respondent received a global fine of $500.
On 26 August 2021, the respondent was convicted of two counts of contravening a requirement of the 2013 SO. The respondent deleted Facebook messages between himself and his daughter and son, including images. The respondent received 6 months' imprisonment suspended for 8 months.

On 9 October 2023, the respondent was convicted of one count of contravening a requirement of the 2013 SO. The respondent failed to attend, contrary to a notice served on him. The respondent received a fine of $700.
On 5 December 2023, the respondent was convicted of one count of contravening a requirement of the 2013 SO. The police conducted a search of the respondent's premises and found a hidden security camera in his son's room. The respondent said he was trying to set it up in his son's room to prevent medication being stolen. The respondent received a fine of $1,000.
On 11 April 2024, the respondent was convicted of one count of contravening a requirement of the ISO. The police conducted a search of the respondent's bedroom and located two folders which contained images of children. The respondent received a fine of $300.
On 30 May 2024, the respondent was convicted of one count of contravening a requirement of the ISO. The police conducted a search of the respondent's bedroom and located two magazines which contained six images of children. The respondent received a fine of $400.
On 13 September 2024, the respondent was convicted of three counts of contravening a requirement of the ISO. The respondent failed to project his movements to a residential address or to receive approval to attend a residential address. The respondent received a global fine of $500.
The respondent has been charged with two further breaches of the ISO which are alleged to have occurred on 22 October 2024. The statement of material facts alleges that:[29]
On 22 October 2024 the [respondent] attended the East Perth Adult Community Corrections Office as per his supervision. His mobile device was reviewed by his …CCO which revealed that on the 16 October 2024 the accused accessed a website titled 'Harlow & Co Kids' which is a online store for baby clothes, accessories and other products.
Depicted all over the website are images of children and babies appearing to be between new-born age and approximately 2 years old.
Further identified was a message chat on Facebook Messenger between the accused and '[redacted]' (sic).
On 21 October 2024 at 12.15am the accused sent [redacted] (sic) a video of two babies eating food. Both children identified in the appear to be no older than 2 years old and appear to only be wearing pants or a nappy.
Further in the chat [redacted] (sic) can be seen to be telling the accused to delete the video. The accused stated he wasn't thinking and thought the video was funny.
[29] Exhibit 6.2.
I am satisfied that the respondent's criminal history indicates that he has a propensity to commit sexual offences against children who are known to him in a familial setting. The respondent has the propensity to commit these sexual offences in the context of him gaining the trust of the adult who is responsible for the care of the child.
The respondent's pattern of offending is that he grooms both the adult and the child in order to commit serious sexual offences against the child. In 2009, McKechnie J found that there was a clear pattern of offending behaviour by the respondent - the respondent engages in behaviour within a familial setting and commits offences against children within that setting.[30]
[30] The State of Western Australia v Dick [2009] WASC 275 [30].

Relevant personal history - s 7(g)

The respondent is now 64 years of age. He was born in North Fremantle and is the second youngest of seven children.[31] The respondent's father died when the respondent was 12 years old. The respondent says that his father's death nearly 'destroyed' him. The respondent was not close to his mother. The respondent describes his childhood as difficult and unhappy and that he was bullied by his siblings.[32]
[31] Exhibit 1.3, page 1237, [15].
[32] Exhibit 1.3, page 1251, [20].
The respondent reported that he was exposed to sexualised behaviour at an early age (between 5 and 7 years old). He says that he was propositioned by a man when he was 11 years old and was sexually assaulted by three men when he was 16 years old.[33]
[33] Exhibit 1.3, page 1239 [19].
The respondent described his schooling as largely unremarkable. He left school after completing year 10.[34] The respondent had a consistent work history until his late 20s, working predominantly as a store person. The respondent ceased working in 1989 following a serious motor bike accident and has not been employed since that time.[35]
[34] Exhibit 1.3, page 1252, [24] - [25].
[35] Exhibit 1.3, page 1252 [26].
The respondent has biological and stepchildren with three different partners.[36] Ms [redacted] is one of the respondent's children.
[36] Exhibit 1.3, page 1238, [18].
The respondent is currently receiving a disability support pension and a carers allowance for supporting his friend, Eric.[37] In 2016, the respondent married his third wife, Lovely. Lovely currently resides in the Philippines.
[37] Exhibit 1.3, page 1252 [26].
Ms [redacted] gave evidence that she has been in telephone contact with the respondent and that her and the respondent had just started having face to face contact which was the first contact that they had had since she was a child.[38] Ms [redacted] said that face to face contact is facilitated by her giving the respondent a date and a time and the respondent then getting permission from his CCO to meet with her.[39] The respondent does not have any contact with her children, his grandchildren.
[38] ts 161.
[39] ts 162.

Reports and assessments - s 7(3)(a), (b), (c), (d), (e), (f), (h) and (j)

Evidence of Dr Peter Wynn Owen (Forensic Psychiatrist)

Dr Wynn Owen is a qualified expert within the meaning of the HRSO Act.[40] Dr Wynn Owen interviewed the respondent on 30 August 2024 and prepared a report dated 3 September 2024.[41]
[40] HRSO Act s 3; Exhibit 1.3, page 1228.
[41] Exhibit 1.3, pages 1288 - 1248.
Dr Wynn Owen is a medical practitioner registered with the Medical Board of Australia as a generalist and a medical specialist (Psychiatrist). He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and an accredited member of the RANZCP Faculty of Forensic Psychiatry. Dr Wynn Owen, as a consultant forensic psychiatrist, has regularly provided numerous reports and expert testimony in courts for more than 20 years.[42]
[42] Exhibit 1.3, page 1228.
Dr Wynn Owen diagnosed the respondent with paedophilia non-exclusive type - meaning that is the respondent is attracted to children and adults.[43]
[43] Exhibit 1.3, page 1243.
Dr Wynn Owen undertook an assessment of the respondent's risk of reoffending using the Static-99R, Risk for Sexual Violence Protocol (RSVP) and Hare Psychopathy Checklist, Revised (PCL-R) assessment tools.

Static-99R

Static-99R is an actuarial tool that is intended to position offenders in terms of their relative degree of risk of sexual recidivism.[44]
[44] Exhibit 1.3, page 1243 [40].
Under the Static-99R tool, the respondent's score placed in the 'Average Risk' range.[45] According to Dr Wynn Owen high risk offenders with the same score as the respondent on release from detention had a 14% likelihood of committing a new sexual offence within 5 years and a 22.9% risk of committing a sexual offence within 10 years (as compared to the likelihood of an adult male with no history of sexual offending committing a sexual offence being less than 1%).[46]

RSVP

[45] Exhibit 1.3, page 1243 [40].

[46] Exhibit 1.3, page 1243 [40].

The RSVP is a clinical judgment framework that requires consideration of a number of separate factors or domains. Using the RSVP tool, Dr Wynn Owen found the following risk factors for the respondent to be present:[47]
[47] Exhibit 1.3, pages 1244 - 1246 [41] - [54].
(1)chronicity of sexual violence;
(2)diversity of sexual violence;
(3)psychological coercion;
(4)extreme minimisation or denial of sexual violence;
(5)problems with self-awareness;
(6)problems resulting from child abuse;
(7)sexual deviance;
(8)psychopathic personality disorder;
(9)problems with intimate relationships;
(10)problems with non-intimate relationships;
(11)problems with planning (historically present);
(12)problems with treatment; and
(13)problems with supervision;

PCL-R

Under the PCL-R tool, the respondent's score was in the high 20s. While the respondent's score did not meet the threshold score of 30 required for a finding of psychopathic disorder, according to Dr Wynn Owen, the respondent's score has been shown to be significantly associated with an increased likelihood of general and sexual violence.[48]

Risk scenario, imminence and frequency

[48] Exhibit 1.3, page 1245 [49].

Dr Wynn Owen is of the opinion that the respondent's most likely risk scenario is that the respondent 'would form a relationship with a woman who is the carer/parent/grandparent of children and, after a period of grooming the child from a position of trust he would commit a contact sexual offence such as sexual penetration'.[49]
[49] Exhibit 1.3, page 1246 [55].
Dr Wynn Owen is of the opinion that the imminence of reoffending will be related to the respondent's access to children. The respondent is much more likely to offend if he has access to children who regard him as a trusted adult.[50]
[50] Exhibit 1.3, page 1246 [57].
Further, Dr Wynn Owen reported the frequency of offending by the respondent, once commenced, is likely to be high and related to the frequency of contact.[51]

Dr Wynn Owen's opinion

[51] Exhibit 1.3, page 1246 [58].

Dr Wynn Owen's opinion is that the respondent, if not subject to a restriction order, presents a moderate risk of committing a serious offence.[52]

Recommendations

[52] Exhibit 1.3, page 1247 [60].

Dr Wynn Owen recommends that should the respondent be subject to a supervision order, the conditions should be less restrictive to enable demonstration of a greater degree of self-management of risk[53] and should be for a maximum of three years.[54]

Dr Wynn Owen's oral evidence

[53] Exhibit 1.3, page 1247 [61].

[54] Exhibit 1.3, page 1248 [61].

At the hearing of the application, Dr Wynn Owen gave evidence that the respondent categorically denies his offending and that is unlikely to change in the future as he has maintained his innocence for some time.[55]
[55] ts 104.
Dr Wynn Owen gave evidence that the respondent's refusal to accept that he had offended has a serious impact upon his risk to commit further serious offences.[56]
[56] ts 105.
Dr Wynn Owen gave evidence that the respondent had applied for two rental properties - one directly behind a school and one with a children's playground directly across the road and in view of the house. Dr Wynn Owen is of the opinion that this demonstrates the respondent's lack of self-awareness and lack of willingness to contemplate that he has ever been, or ever will be, at risk of sexual offending.[57]
[57] ts 108.
Dr Wynn Owen gave evidence that any conditions relating to contact that the respondent could have with his adult daughter [redacted] very much depended upon the wishes of Ms [redacted].[58]
[58] ts 108.
Dr Wynn Owen gave evidence that, in his opinion, it would be appropriate under a new SO to waive diary and projection conditions and to rely only on GPS monitoring and self-reporting.[59]
[59] ts 109.
Dr Wynn Owen gave evidence that he would be very concerned about the respondent having unsupervised access to his grandchildren because:[60]
(1)the respondent has not acknowledged his paedophilia;
(2)the respondent's acknowledgement of his 1992 offending is extremely limited - he does not acknowledge the long period over which that offending occurred or any subsequent sexual offending;
(3)the respondent demonstrates a lack of self-awareness in relation to placing himself in high-risk situations; and
(4)his unacknowledged deviance is a great concern and the risk of future offending does not rely on the respondent having a high libido.
[60] ts 109.
In relation to the respondent's diagnosed narcolepsy and his use of dexamphetamine to manage symptoms, Dr Wynn Owen gave evidence that the medication could increase arousal and therefore, is likely to increase his risk of sexual offending.[61]
[61] ts 110.
Dr Wynn Owen gave evidence that the respondent's risk of future offending had, in his opinion, reduced from high to moderate because, over the term of the 2013 SO, the respondent has not committed a serious sexual offence. Dr Wynn Owen still has ongoing concerns about the respondent's risk of reoffending given that the respondent has not responded to treatment and has strong antisocial and narcissistic personality elements.[62]
[62] ts 110.
Dr Wynn Owen gave evidence that, in his view, a supervision order that had reduced conditions would enable the respondent to demonstrate that he can self-manage to a greater extent than he is currently without putting the community at greater risk.[63]

Evidence of Dr Tara Yewers (Counselling Psychologist)

[63] ts 111.

Dr Yewers is a counselling psychologist who holds a doctorate in philosophy (psychology) and master of psychology (counselling). Dr Yewers has 20 years' experience as a psychologist.[64] Dr Yewers interviewed the respondent on 4 July 2024 and 18 July 2024, for a total of 5 hours and 25 minutes.[65]
[64] Exhibit 1.3, page 1250 [4].
[65] Exhibit 1.3, page 1248 [7].
Dr Yewers reported that the respondent presented as uncongenial and impassive, and provided clipped responses, which eased somewhat as the interviews progressed. Dr Yewers reported that the respondent's narrative was long-winded, tangential, and rambling. The respondent also had several outbursts of indignation that were short-lived, as well as instances of professing his innocence when he became surly and combative, requiring some time to regain his composure.[66]
[66] Exhibit 1.3, page 1251 [18].
Dr Yewers reported that the respondent admitted some of the 1994 sexual offences, but denied any sexual penetration occurred. When questioned about the impact that his offending had on the victim, the respondent stated, 'nothing because she was being abused after I left' and spoke disparagingly of her.[67]
[67] Exhibit 1.3, page 1265 [78] - [79].
Dr Yewers reported that the respondent denied all of the 2001 sexual offences.[68]
[68] Exhibit 1.3, page 1266 [82], [86].
At the interview, Dr Yewers asked the respondent about his view of the ISO. The respondent stated that he finds the conditions of the ISO frustrating and that they do not manage his risk because 'if I wanted to go do something, I would'. He stated that he is frustrated due to differing interpretations of his conditions between himself and Community Offender Monitoring Unit (COMU) staff.[69]
[69] Exhibit 1.3, page 1275 [119].
Dr Yewers reported that the respondent described a positive working relationship with his current Community Corrections Officer (CCO), who has overseen both the 2013 SO and ISO since February 2024. He stated his CCO is 'honest and straightforward' and 'hasn't stabbed me in the back' as other CCOs purportedly have. Further, the respondent declared that 'I expect her to be honest with me and so far she's the only one who has', adding that her honesty makes her job easier because he does not need to challenge her.[70]
[70] Exhibit 1.3, page 1251 [120].
Dr Yewers assessed the respondent's risk of recidivism using the PCL‑R, Static-99R and Violence Risk Scale - Sexual Offence Version (VRS‑SO) tools.

PCL-R

Dr Yewers scored the respondent 27 using the PCL-R tool, indicating that the respondent falls in the 'medium' range for psychopathy.[71]

Static-99R

[71] Exhibit 1.3, page 1280 [140].

The respondent scored 5 on the Static-99R - he had positive ratings on the items related to prior sex offences, prior sentencing dates, unrelated victims, and male victims. This placed the respondent in the 'Risk Level Iva category', indicating 'Above Average Risk' for sexual reoffending. High risk/needs sexual offenders with the same score have a predicted sexual recidivism rate between 18.0% and 24.8% over a five-year period.[72]

VRS-SO

[72] Exhibit 1.3, page 1282 [144].

The VRS-SO is a fourth-generation sexual violence risk assessment tool designed to integrate risk, need, responsivity and treatment change factors relevant to sexual offenders. It contains both static and dynamic factors and is used to assess offenders' levels of risk, identify treatment targets linked to sexual offending and to evaluate an offender's readiness for change.[73]
[73] Exhibit 1.3, page 1282 - 1283 [146].
The respondent's score based on the VRS-SO was 39 out of a possible 51, indicating that his recidivism falls in the 'Risk Level IVb (Well Above Average Risk)'.[74]

Risk scenarios

[74] Exhibit 1.3, page 1288 [166].

Dr Yewers is of the opinion that the main risk scenario for the respondent involves sexual assault against persons known to him. The victim may be male or female and could be a child, adolescent, or (unconsenting) adult. Such offences could range from fondling/touching to penetration.[75]

Dr Yewers' opinion

[75] Exhibit 1.3, page 1288 - 1289 [170] - [171].

Overall, in Dr Yewers opinion, the respondent's risk of committing a serious offence as outline in the HRSO Act is assessed as being in the 'High' range if not subject to a restriction order.[76]

Dr Yewers' recommendations

[76] Exhibit 1.3, page 1289 [174].

Dr Yewers recommends that, should the court make a supervision order, a period of five years would be sufficient. She also recommended that any conditions imposed by the court should take into account the following areas:[77]
(1)the respondent is unlikely to make progress towards addressing his criminogenic needs via psychological treatment;
(2)external monitoring and management of the respondent's risk is essential due to his lack of insight, poor treatment response, inconsistent self-report, and periodic combativeness in supervision; and
(3) the respondent lacks social connections and should be supported in building social and emotional supports.

Dr Yewers' oral evidence

[77] Exhibit 1.3, page 1289 [174].

At the hearing of the application, Dr Yewers gave evidence that the respondent has indicated he is not sexually attracted to children which means that he is at risk of having unsupervised access to his grandchildren in the future.[78]
[78] ts 131.
Further, in Dr Yewers' opinion, given that the respondent does not believe he is at risk of sexually offending against children, he sees no need to develop plans to self-manage that risk.[79]
[79] ts 133.
Dr Yewers gave evidence that given the respondent's lack of insight into his risk, he presents with a high risk of future serious offending.[80]

Any other medical, psychiatric, psychological, or other assessment relating to the respondent - s 7(3)(b)

Evidence of Emma Cashmore (HRSO Planning Manager)

[80] ts 134.

Ms Emma Cashmore is a HRSO Planning Manager for the Department of Justice and produced a report dated 4 September 2024 which summarises the respondent's treatment options available through the Department of Justice.[81]
[81] Exhibit 1.3, pages 1224 - 1227.
Ms Cashmore reported, whilst there are differing expert opinion's regarding the respondent's risk level, there appears to be a consensus around the futility of further criminogenic intervention.[82]
[82] Exhibit 1.3, page 1227 [11].
Ms Cashmore reported should a risk concern arise, the respondent's CCO can re-refer the respondent to the Forensic Psychological Intervention Team (FPIT) for a re-assessment.[83]

Evidence of Chloe Jones (Senior CCO)

[83] Exhibit 1.3, page 1227 [12].

Ms Jones is the respondent's current CCO and produced a report dated 9 September 2024 which summarises the respondent's order performance, behaviours to be managed and strategies to manage offending behaviours.[84]
[84] Exhibit 1.3, pages 1291 - 1306.
Ms Jones has had contact with the respondent during his scheduled supervision sessions since February 2024. Ms Jones reported the respondent's presentation within supervision sessions has been previously documented as aggressive and hostile. Whilst he has displayed some hostility and combative nature since she commenced as his CCO, the behaviours have been directed towards the 2013 SO/ISO terms as a whole, as opposed to any individuals.[85]
[85] Exhibit 1.3, page 1292.

Ms Jones reported the respondent displays an unwillingness to recognise risk related scenarios and undertake appropriate risk analysis largely linked to his belief he is not a risk to children in the community. The report provided a number of examples, including applying for rental accommodation directly behind a school or opposite a playground, and not recognising the difference in risk relevant locations such as the Aquarium of WA (AQWA) compared with a shopping centre.[86]
[86] Exhibit 1.3, page 1293.
Ms Jones' report concludes with 45 proposed conditions of a supervision order should the court consider the respondent suitable for one.[87]
[87] Exhibit 1.3, pages 1302 - 1306.
At the hearing, Ms Jones gave evidence that the respondent is unwilling to recognise risk-related scenarios or to undertake appropriate risk analysis because he believes he is not a risk to children.[88]
[88] ts 147.
Ms Jones gave evidence that she has concerns about the respondent's relationship with Ms [redacted]. These concerns relate to Ms [redacted] vulnerabilities and having access to her grandchildren.[89]
[89] ts 147.

Rehabilitation of the respondent - s 7(3)(e) and (f)

The respondent has completed group programs and has engaged in individual psychological counselling aimed at addressing his outstanding criminogenic treatment needs.
In Dr Wynn Owen's opinion, despite engaging in these programs and engaging in individual counselling, the respondent's categorical denial of the majority of his past offending presents a significant barrier to his treatment gains.[90]

The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence - s 7(3)(h)

[90] Exhibit 1.3, page 1247 [59]

I accept the evidence of both Dr Wynn Owen and Dr Yewers that the respondent presents a moderate to high risk of committing a future serious offence (within the meaning of the HRSO Act) if not subject to a restriction order.

The need to protect members of the community from that risk - s 7(3)(i)

Dr Wynn Owen is of the opinion that the respondent's most likely risk scenario is that the respondent would commit a serious sexual offence against a child in the context of forming a relationship with a woman who has the care of children.[91] Dr Wynn Owen reported that the likelihood of psychological harm to victims of such offending is very high with lifelong adverse psychological consequences.[92]
[91] Exhibit 1.3, page 1246 [55].
[92] Exhibit 1.3 page 1246 [56]
Dr Yewers is of the opinion that the respondent is at risk of future offending by sexually assaulting persons known to him and that such offences could range from fondling/touching to penetration.[93]
[93] Exhibit 1.3, pages 1288 - 1289 [170] - [171].
In these circumstances, there is a clear need to protect members of the community from the risk of the respondent offending in that way.

Any other relevant matter - s 7(3)(j)

The State and the respondent did not identify any other relevant matter.

Assessment and conclusion

Is the respondent a HRSO?

In order to determine whether the respondent is a HRSO, I must be satisfied that it is necessary to make a restriction order against him in order to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence.
The court is required to be satisfied of two things - firstly, the risk that the respondent will commit a serious offence is unacceptable and secondly, that it is necessary to make a restriction order.
I am satisfied that the risk that the respondent will commit a serious offence is unacceptable. The respondent has a pattern of offending by committing serious sexual offences against both male and female children who are known to him through family connections. There is cogent evidence from Dr Wynn Owen and Dr Yewers to the effect that the respondent is at moderate to high risk of offending in the future by committing a serious sexual offence against a child who he has met through forming a relationship with a carer of that child. The harm caused to victims of such offending would be severe and represents an unacceptable risk.
I am also satisfied to a high degree of probability, on the basis of acceptable and cogent evidence, that it is necessary to make a restriction order to ensure adequate protection of the community from the unacceptable risk that the respondent will commit a serious offence. In particular, having regard to the offending history of the respondent, his conduct whilst on the 2013 SO and the ISO, the evidence of Dr Wynn Owen and Dr Yewers in relation to his moderate to high risk of reoffending, the likelihood that the respondent will seriously reoffend in the future is such that the community could not be adequately protected unless a restriction order is made.
I therefore, declare the respondent a HRSO.

Continuing detention order or supervision order?

Having found that the respondent is a HRSO and that it is necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence, I must decide whether to make a continuing detention order or a supervision order.
In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure the adequate protection of the community.[94]
[94] HRSO Act s 48(2).
The court should impose the order which is least invasive or destructive to the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection to the community.[95]
[95] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [21].
A supervision order, under s 48(1)(b) of the HRSO Act, is least invasive or destructive of the respondent's right to be at liberty. I must, therefore, consider whether the release of the respondent on a supervision order ensures an adequate degree of protection to the community.
I also cannot make a supervision order unless I am satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of such an order.[96]
[96] HRSO Act s 29(1).
The respondent has the onus of proving, on the balance of probabilities, that he will substantially comply with the standard conditions.[97]
[97] HRSO Act s 29(2).
In order to be satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of a supervision order, I must be satisfied that the respondent will comply with the standard conditions so as to ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[98]
[98] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].
In Hart,[99] Fiannaca J considered the construction of the phrase 'substantially comply with', as it appeared in s 23(1B) of the DSO Act (now repealed).. His Honour determined that those words should be given their ordinary meaning consistent with the purposes of the legislation and the general conditions of a supervision order, the overall objectives of which are to adequately protect the community and mitigate the unacceptable risk that the offender will commit a serious sexual offence. As these words are identical to the words of the HRSO Act (and are contained within an identical section of the HRSO Act), this construction is equally applicable to s 29(1) and s 29(2) of the HRSO Act.
[99] Hart [52].
Counsel for the State submits that the risk to the community of the respondent committing a serious offence and the protection of the community can be ensured by the respondent's release on a supervision order.[100]

Will a supervision order provide adequate protection for the community?

[100] Applicant's outline of written submissions [129].

Adequate protection for the community does not require that there is no risk of the respondent reoffending, rather it requires that any risk is reduced to a reasonably acceptable level.[101]
[101] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [103].
I am satisfied that adequate protection of the community can be achieved if the respondent is made subject to a supervision order. Since being subject to the 2013 SO and the ISO, the respondent has not committed any serious offences. The breaches of the 2013 SO and the ISO have resulted in the imposition of fines.
The 2013 SO has achieved, in my view, the objective of the supervision order, that is to ensure the adequate protection of the community and the victims of the respondent's serious offences.

Has the respondent satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions set out in the HRSO Act?

Whilst the respondent has breached the 2013 SO and ISO on a number of occasions, the breaches did not lead to serious offending.
I am satisfied that the respondent has demonstrated substantial compliance with the 2013 SO and the ISO and that he will substantially comply with the standard conditions of a new supervision order.

Supervision order conditions

The State provided proposed conditions of a supervision order which are less onerous than the 2013 SO (as amended).
Counsel for the respondent submitted that a number of the proposed conditions were still unnecessarily onerous and were not required to ensure adequate protection of the community and the victims of his previous serious offending. I will consider each of these contested conditions in turn.
The State accepted that, given the evidence of the experts, proposed condition no 10 could be amended to:
Upon commencement of, or change of, paid or unpaid employment or volunteer work, to advise your CCO at the next appointment.

I am satisfied that the amendment to condition no 10 is appropriate.
The state proposed the following condition no 21:
In relation to your daughter, Ms [redacted], you must adhere to the following conditions:
a.You are not permitted to have contact with Ms [redacted] in the form of in person, text/written, video, email contact, unless authorised by a CCO.
b.You are to project your plans to have contact with Ms [redacted] to your CCO at least 2 business days in advance for approval and for contact to be made with Ms [redacted] to assess the contact plans.
c.You are to immediately withdraw from any means of contact with Ms [redacted] should she advise of her unwillingness to continue contact or if given a direction by the [CCO] to terminate contact with Ms [redacted] in any means.
d.To have no direct contact or indirect contact with Ms [redacted] biological children and/or any other children in her care under the age of 18 by any means, unless approved in advance by a CCO.
Dr Wynn Owen gave evidence that this condition was appropriate unless otherwise instructed by Ms [redacted]. Dr Wynn Owen said that he would be concerned if the terms of condition 21 (a) and (b) were not imposed because, given the nature of the parental relationship and the history, Ms [redacted] would be susceptible to manipulation by her father to enable that contact.[102]
[102] ts 111.
Ms [redacted] gave evidence that she was aware that if she reported to the CCO that she no longer wanted contact with her father that the CCO could put things in place so that contact no longer occurred. Ms [redacted] said 'as long as I raise my voice, something will happen'.[103] Ms [redacted] said that she wanted the ability to always do that in the future.[104] In response to a question from the State as to whether she may be manipulated by the respondent for access to her children, Ms [redacted] said 'I won't be manipulated by anyone'.[105]
[103] ts 163.
[104] ts 163.
[105] ts 162.
I consider that it is appropriate to impose proposed condition 21 (c) and (d) but not 21 (a) and (b). I am satisfied, based upon the evidence of Ms [redacted], that she and her children are adequately protected by the imposition of conditions 21(c) and (d) and that Ms [redacted] is aware and willing to communicate with a CCO if she wants contact with her father to cease at any time. It is still however, appropriate to have a condition in place which restricts the respondent's contact with Ms [redacted] children or any children in her care without the prior approval of a CCO.
The State proposed the following condition 26:
Not to attend any residential address without the prior approval of a CCO
The State submitted that, given the respondent has demonstrated an inability to appropriately report, this condition is necessary. The respondent submitted that this is unnecessarily onerous.
Dr Wynn Owen gave evidence that it was appropriate for the respondent to report his attendance at any residential address to his CCO at his next appointment.[106] However, Dr Yewers gave evidence that she still considered that the respondent should obtain prior approval from his CCO to attend at a residential address. It was Dr Yewers' opinion that it would be appropriate for the respondent to seek prior approval to attend a residential address and then, over time, if he proves himself, the condition could be amended to report his attendance after the fact.[107]
[106] ts 112.
[107] ts 137.
The respondent has not committed a serious sexual offence for over 26 years. I consider that it is now appropriate for this condition to be amended to provide that the respondent is only required to report attendance at a residence at his next appointment with his CCO, rather than seek approval of the CCO prior to attendance.
The State accepts that proposed conditions 30 to 32, which provide that the respondent must not consume alcohol unless authorised in advance by a CCO and must submit to urinalysis as directed, are not required in the respondent's circumstances. I agree.
The State proposed condition no 38 is in the following terms:
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.
Counsel for the respondent raised the issue that some electronic devices, such a fridge, was capable of storing digital data, which may lead the respondent to inadvertently breach such condition. To address these concerns, I consider the following amended condition, which the state proposed, is appropriate:
Advise a CCO or Police Officer of every computer, camera, telecommunication and/or surveillance device, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
It is appropriate that proposed condition 40, which requires device locking or password protection of electronic devices, has the words 'or anyone with the approval of a CCO' added those persons to whom a password may be provided.
The State proposed the following condition no 43:
Not access the internet for, nor collect or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not. Possession of non-indecent images of your immediate family, may be authorised by a CCO. Immediate family means pictures of yourself, your siblings, your parents and your spouse only.
At the conclusion of the hearing of the application, the State proposed that this condition be amended to refer to only indecent images and include a requirement that the respondent not conduct internet searches for the terms 'baby, infant, child, children or toddler'.
Counsel for the respondent submitted that the latest charges for breaches of the ISO on 16 October 2024 have resulted in significant hardship to the respondent even though they are not breaches which are of a serious nature and would not result in a supervision order being revoked.
Dr Wynn Owen's opinion was that the respondent should be permitted to have possession of non-indecent images of children.[108]
[108] ts 128
In my view, given the significant length of time that the respondent has not committed a serious offence, it is appropriate to lessen the conditions imposed in a supervision order. I am satisfied that this condition should not be included in the supervision order at all. If the respondent were to access or be in possession of indecent images of children, this would constitute a serious offence and be in breach of the standard conditions of the supervision order. A separate condition prohibiting possession of non-indecent images is not required.
Finally, in relation to proposed condition no 46, the State accepts that this condition is not required. I agree - conditions no 45 and no 47 are sufficient to address the medications and mental health of the respondent.

Proposed term of the supervision order

There was a difference in opinion between Dr Wynn Owen and Dr Yewers as to the appropriate term of the supervision order. Dr Wynn Owen was of the opinion that a term of three years was sufficient, however Dr Yewers considered that a term of five years was appropriate.
I am satisfied that an appropriate length of the supervision order is three years. The respondent has been on a supervision order for a over 10 years and it is appropriate that he be reassessed after three years as to whether a further order is necessary.
Accordingly, the respondent will be released into the community subject to the supervision order in the terms attached and marked Annexure A.

Annexure A
Pursuant to section 48(1)(6) of the High Risk Serious Offenders Act 2020 (WA), the Court having found that the respondent is a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act2020 (WA), makes a supervision order in relation to the respondent, for a period of three years, from 4 December 2024, on the following conditions:
YOU, JAMES FLAVELL DICK, must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
1. Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth WA 6000 within 48 hours of the order being issued and advise the officer of your current name and address.

2.  Report to and receive visits from, a CCO as directed by the Court.
3.  Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
4.  Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32).
5.  Not leave, or stay out of the State of Western Australia without the permission of a CCO.
6.  Not commit a serious offence during the period of the Order.
7.  Be subject to electronic monitoring under section 31.
ADDITIONAL CONDITIONS
Residence
8.  Take up residence at [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.

Reporting to the CCO and supervision by the CCO
9. Be under the supervision of a CCO, and comply with lawful orders and directions of a CCO for the duration of the Order, including receiving visits at your residential address or attendance at other locations.
10. Upon commencement of, or change of, paid or unpaid employment or volunteer work, to advise your CCO at the next appointment.
Reporting to WA Police
11. Report to the Officer-in-Charge of the High Risk Serious Offender team 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 High Risk Serious Offender team or his/her delegate.

12. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).

13. If requested, permit Police Officers to enter and search your person, 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 Officers believe to contravene the conditions of the Order.

14. Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020 (WA).

15. 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
16. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.

17. 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 offending.
Restrictions on contact with Victims
18. 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.

19. 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 or violent 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.
20. Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next working day you report to the CCO or Police.
21. In relation to contact with your daughter, Ms [redacted], you must adhere to the following conditions:
a.You are to immediately withdraw from any means of contact with Ms [redacted] should she advise of her unwillingness to continue contact or if given a direction by the CCO to terminate contact with Ms [redacted] in any means.
b.To have no direct or indirect contact with Ms [redacted] biological children and/or any other children in her care under the age of 18 by any means, unless approved in advance by a CCO.

Criminal conduct

22. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments.

23. Not commit an offence under s 202, s 203, s 204, s 557K Criminal Code 1913 (WA) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA).
24. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
25. Not possess, consume or use any prohibited drugs, plants or other substances t which the Misuse of Drugs Act 1981 (WA) 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 (WA), and your use is in accordance with instructions of the prescriber.
Prevention of high-risk situations
26. Report at your next contact with your CCO, attendance of any residential address.
27. 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.

28. Make full disclosure regarding your past offending and the current order to anyone with whom you commence a (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, or to anyone with whom has care of children who you commence an ongoing social association with which disclosure can be confirmed by a CCO or a Police Officer.
29. Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO.
30. 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 us 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 telephone 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
31. 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.

32. 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.
33. Not to form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time, including former victims of your previous offending, without prior CCO approval.
34. Have no contact with, membership of an affiliation with clubs, associations or groups where membership is primarily for children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
35. Advise a CCO or Police Officer of every computer, camera, telecommunication and/or surveillance device, possessed, or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
36. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in Condition 35, without prior approval.
37. 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, telecommunication and/or electronic device referred to in Condition 35, or any online accounts, to any person other than a CCO or Police Officer, or anyone with approval of a CCO.
38. 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 or information, 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), username(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.
39. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data or information 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.
40. Not obtain a passport or attend an international departure point without prior approval from a CCO.
Medications/Mental Health
41. Consult and engage with any medical practitioner, psychiatrist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.

42. Attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
27 NOVEMBER 2024