The State of Western Australia v Dragon [No 2]
[2022] WASC 189
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DRAGON [No 2] [2022] WASC 189
CORAM: STRK J
HEARD: 24 MAY 2022
DELIVERED : 31 MAY 2022
FILE NO/S: SO 12 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BRADLEY PEN DRAGON
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application for restriction order - Whether a risk that the respondent will commit a serious offence is unacceptable - Whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the respondent will commit a serious offence - Whether the risk of committing further serious offences can be managed on a supervision order or whether a continuing detention order is necessary - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
High Risk Serious Offenders Regulations 2020 (WA)
Result:
Restriction order made
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | B Meertens |
| Respondent | : | K Farley SC |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid WA |
Case(s) referred to in decision(s):
Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Dragon v State of Western Australia [2008] WASCA 252
Dragon v The State of Western Australia [2019] WASCA 84
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v Dragon [2012] WASCSR 206
The State of Western Australia v Dragon [2021] WASC 425
The State of Western Australia v D'Rosario (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 MAM [2022] WASC 100
The State of Western Australia v Narrier (No 2) [2022] WASC 49
The State of Western Australia v Nelson [2021] WASC 460
The State of Western Australia v Patrick [No 4] [2020] WASC 48
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217
STRK J:
Introduction
On 18 October 2021, the State of Western Australia applied for a restriction order under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) in relation to the respondent. The State contends that it is necessary to make a restriction order under the HRSO Act in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
The respondent's offending history includes an offence against s 474.19 of the Criminal Code 1995 (Cth),[1] being the offence of accessing child pornography material using a carriage service. This is a 'serious offence' for the purpose of the HRSO Act as it is an offence against the law of the Commonwealth of a sexual nature; the penalty for the offence specified by the law of the Commonwealth is or includes imprisonment for seven years or more; and the offence has been prescribed to be a serious offence.[2] This offence is referred to in these reasons as the 'index offence', in that it was the offence for which the respondent was serving a sentence of imprisonment at the time the State's application was commenced, and which provided the foundation for the application. The respondent has additional convictions which are 'serious offences' for the purpose of the HRSO Act. They are discussed later in these reasons.
[1] As was in force immediately before 21 September 2019.
[2] HRSO Act s 5(5), read with High Risk Serious Offenders Regulations 2020 (WA) reg 4, item 4.
The respondent's sentence for his most recent conviction expired on 17 December 2021, and he has been detained in custody pending the final determination of this application pursuant to s 46(2)(c)(i) of the HRSO Act.
On 29 November 2021, after a preliminary hearing of the application pursuant to s 46(1) of the HRSO Act, Quinlan CJ found that there were reasonable grounds for believing that a court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act: The State of Western Australia v Dragon [2021] WASC 425. An interim detention order was made pursuant to s 46(2)(c)(i), together with programming orders under s 46(2)(a) and s 74, requiring the respondent to undergo examinations by two qualified experts, a psychiatrist, Dr Peter Wynn Owen, and a psychologist, Ms Julie Hasson, for the purpose of preparing reports. The court must have regard to such reports in determining the State's application by operation of s 7(3)(a) of the HRSO Act.
The hearing of the restriction order application was originally scheduled to commence on 5 May 2022. However, one week prior to the hearing, the State advised that only one report had been received, being that of Ms Hasson. After a directions hearing on 3 May 2022, the hearing of the restriction order application was vacated.
At the hearing of the State's application on 24 May 2022, the respondent did not oppose the court finding that he is a high risk serious offender.[3] For the reasons that follow, I am satisfied that it is necessary to make a restriction order to ensure adequate protection of the community against the unacceptable risk that the respondent will commit a serious offence. It is appropriate that the respondent be subject to supervision for 10 years, and required to comply with over 60 conditions which shall be imposed to guard against the risk that the respondent poses to the community. Subject to hearing from the parties as to the form of the orders, I propose to make a supervision order in the terms set out at sch A to these reasons.
[3] ts 84 - 85, 182 (24 May 2022); see also the respondent's submissions, pars 2(k) and 5.
Statutory framework and legal principles
The objects of the HRSO Act as outlined in s 8 are:
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.
Section 7(1) of the HRSO Act provides that an offender is a 'high risk serious offender' if the court dealing with an application under the HRSO 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 to ensure adequate protection of the community against the unacceptable risk that the person will commit a serious offence. The State has the onus of satisfying the court that an offender is a high risk serious offender.[4]
[4] HRSO Act s 7(2).
In the HRSO Act, a 'restriction order' means a continuing detention order or a supervision order.[5] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions in accordance with s 30 of the HRSO Act.
[5] HRSO Act s 3.
A 'serious offence' is an offence that is specified in sch 1 div 1 of the HRSO Act, or is specified in sch 1 div 2 and is committed in circumstances indicated in relation to that offence in div 2.[6] Schedule 1 comprises a list of serious violent and sexual offences, the majority of which attract a maximum penalty of imprisonment of seven years or more.
[6] HRSO Act s 3, s 5(1) and s 5(2).
The court, in considering whether it is satisfied of the matters in s 7(1), must have regard to the following matters listed in s 7(3) of the HRSO Act:
(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; and
(j)any other relevant matter.
The matters set out in pars (h) and (i) above are conclusions or findings based on s 7(3)(a) ‑ (g) and (j) of the HRSO Act.
In considering whether it is satisfied as required by s 7(1), the court must disregard the possibility that the respondent might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[7]
[7] HRSO Act s 7(4).
Section 48(1) of the HRSO Act provides that if the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must make in relation to the offender a continuing detention order, or a supervision order (except as provided in s 29). In deciding whether to make a detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[8]
[8] HRSO Act s 48(2).
The powers conferred by the HRSO Act, like the now‑repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO 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.[9] This requires the court to choose the order that is the least invasive or destructive of the offender's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[10] The requirement in s 48(2) of the HRSO Act does not exclude other considerations.[11]
[9] HRSO Act s 48(2).
[10] The State of Western Australia v Latimer [2006] WASC 235 [49] (Murray J). See also the respondent's submissions, par 6.
[11] The State of Western Australia v ACJ [2021] WASC 219 [32].
The HRSO Act, like the DSO Act, does not require that there be no risk of reoffending; rather, the issue is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[12] The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[13]
[12] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (Beech J), citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57].
[13] The State of Western Australia v ACJ [32], citing Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
Section 29 of the HRSO Act limits a court's power to make a 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.
Two evaluative judgments
Section 7(1) of the HRSO Act was considered by Corboy J in The State of Western Australia v Garlett [2021] WASC 387. His Honour preferred an interpretation of the section (read with s 48) that requires that the court assess two separate matters.[14] First, whether a risk that an offender will commit a serious offence is unacceptable; and secondly, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.
[14] See also The State of Western Australia v D'Rosario (No 3) [2021] WASC 412 [18] ‑ [22]; and The State of Western Australia v Narrier (No 2) [2022] WASC 49; The State of Western Australia v Nelson [2021] WASC 460 [12] ‑ [15]; The State of Western Australia v MAM [2022] WASC 100 [18].
That is, s 7(1) involves two evaluative judgments, and 'necessity' and 'adequacy' involve evaluative assessments.
The word 'unacceptable' might carry a meaning similar to that suggested by French CJ in Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, that is, a risk that is not trivial or transient.[15] Further, the factors identified by Wheeler JA in Director of Public Prosecutions (WA) v Williams, and Buss JA in Italiano v The State of Western Australia [2009] WASCA 116, and the balancing exercise to which their Honours referred, would be most relevant to the determination of whether it was necessary to make a restriction order to adequately protect the community.[16]
[15] The State of Western Australia v Garlett [136(b)], [126].
[16] The State of Western Australia v Garlett [136(b)].
I have applied Corboy J's preferred construction of s 7(1). In so doing, I took into account the factors identified by Wheeler JA, and applied the balancing exercise to which Wheeler JA and Buss JA referred. I adopt the passages reproduced in the reasons of Corboy J in The State of Western Australia v Garlett at [128] to [132], as if reproduced here in full.
I have proceeded on the basis that these separate matters need to be demonstrated 'by acceptable and cogent evidence and to a high degree of probability'.[17] The expression 'high degree of probability' connotes a standard that is more than the civil standard but less than the criminal standard of proof.[18]
[17] HRSO Act s 7(1). See also HRSO Act s 82(2).
[18] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28].
The effect of this distinction, as Corboy J observed in The State of Western Australia v Garlett, is to make clear the possibility that the court might find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has found that the risk of future offending was unacceptable.[19] As to such possibility, Quinlan CJ observed:[20]
While no doubt such a situation would be rare, it is possible to envisage circumstances in which that might be the case. For example, 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').
[19] The State of Western Australia v Garlett [136(d)], as noted by Quinlan CJ in The State of Western Australia v D'Rosario (No 3) [21].
[20] The State of Western Australia v D'Rosario (No 3) [21].
As Corboy J observed in The State of Western Australia v Garlett, s 7(1) recognises that the need to ensure adequate protection for the community should form part of the court's determination of whether the offender is a high risk serious offender (the first step in making a restriction order) and not merely the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).[21]
[21] The State of Western Australia v Garlett [136(d)], cited with approval by Quinlan CJ in The State of Western Australia v D'Rosario (No 3) [22].
Evidence
At the hearing of this application, I received into evidence a book of materials in three volumes. The first was dated 15 March 2022 and the second and third were both dated 3 May 2022.[22]
[22] Exhibits 1, 2 and 3, respectively.
The first volume contained a copy of the respondent's criminal record in Western Australia, New South Wales and Queensland; a summary of offences committed by the respondent in Thailand; a chronology of offending by the respondent in the period 2007 to 2017 prepared by the State Solicitor's Office; various Department of Justice prison records; documents which concern the respondent's offending history for offences defined as 'serious offences' under the HRSO Act; documents which concern the respondent's offending history for offences not defined as 'serious offences' under the HRSO Act, but that the State contended were relevant proceedings for the purpose of the State's application; and post-sentence reports and documents.
The second volume contained an updated report of the respondent's criminal record in Western Australia; a post sentence supervision order made on 17 November 2021 and associated report dated 9 November 2021; various Department of Justice prison records; copies of Thailand court documents; and documents which concern the respondent's offending history which were omitted from the first volume of the book of materials. The final document of the second volume, being the transcript of the respondent's interview with Ms Hasson undertaken for the purpose of preparing a report under s 74 of the HRSO Act, was not tendered.[23]
[23] ts 88 - 89 (24 May 2022).
The third volume contained various reports prepared for the purpose of the restriction order hearing. A number of the documents incorporated in the third volume were not tendered. They were the transcript of the respondent's interview with Dr Wynn Owen undertaken for the purpose of preparing a report under s 74 of the HRSO Act; and various historical post-sentence reports and documents created between 2007 and 2012, as the documents were duplicates of reports tendered within volume 1.[24]
[24] ts 90 - 91 (24 May 2022).
The State called four witnesses who gave evidence and were cross‑examined. They were as follows:
(a)Dr Wynn Owen, a consultant forensic psychiatrist and author of the psychiatric report dated 1 May 2022;
(b)Ms Hasson, a consultant forensic psychologist and author of the psychological report dated 7 April 2022;
(c)Ms Cashmore, a senior community corrections officer within the Community Offender Monitoring Unit of the Department of Justice. Ms Cashmore was the author of and one of three signatories to the community supervision assessment dated 27 April 2022 and updated community supervision assessment dated 17 May 2022; and
(d)Ms Collyer, a senior counselling psychologist employed by the Department of Justice and author of the proposed management plan dated 2 May 2022.
In addition to the book of materials, the State tendered into evidence:
(a)a parole refusal notice dated 7 December 2020;
(b)an email communication from Dr Wynn Owen to Mr Meertens, counsel for the State, sent on 11 May 2022; and
(c)the updated community supervision assessment report prepared by Ms Cashmore dated 17 May 2022.[25]
[25] Exhibits 4 - 6, respectively.
Counsel for the State also relied upon the written outline of submissions filed on 16 May 2022.
No objection was taken to the evidence sought to be tendered on behalf of the State. Counsel for the respondent instead submitted that the court should be cognisant of the weight to be given to some of the documents, such as prison incident reports and records of offences committed by the respondent as a juvenile.[26]
[26] ts 87 - 88 (24 May 2022).
The respondent elected not to give evidence.[27] Counsel for the respondent relied upon the written outline of submissions filed on 19 May 2022.
[27] ts 169 (24 May 2022).
During the course of her evidence, Ms Cashmore referred to a document of the Department of Justice that she understood had been provided to Dr Wynn Owen and Ms Hasson before the preparation of their reports.[28] She explained that the document listed conditions that might be included in a suppression order, which was used as a basis for Ms Cashmore's discussion with the experts as to the conditions which might be appropriate for the respondent, and the formulation of the proposed supervision order conditions set out in the community supervision assessment. The undisclosed document had not been included in the book of materials and the State was not able to produce the same before the conclusion of the sitting day. Indeed, there was no disclosure by the State of any of the documents by which the State's witnesses were engaged or instructed. An indication of the documents provided to the witnesses concerning the respondent could only be discerned from the summary of sources relied upon by the witnesses listed in their respective reports.
[28] ts 156 - 157 (24 May 2022).
At the conclusion of the hearing, I ordered that the undisclosed document in the possession of the Department of Justice be produced to the applicant's representative and provided to the court and respondent by 4pm on 25 May 2022. Orders were also made programming the filing of any written submissions by the parties regarding the document.
On 25 May 2022, a document titled 'All of the Adult and child and violent conditions', was produced to the court by the Department of Justice.[29] No party elected to make submissions in relation to the same, nor objected to its tender.
[29] Exhibit 7.
Antecedents and criminal history - s 7(3)(g)
I now turn to the matters relevant to determining whether or not the respondent is a high risk serious offender pursuant to s 7 of the HRSO Act.
In deciding whether a person is a high risk serious offender, the court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.[30]
[30] As observed recently by McGrath J in The State of Western Australia v Nelson [33].
The criminal record and antecedents are relevant in and of themselves, but are also relevant to whether the person has a propensity to commit serious offences in the future. The criminal record and antecedents are also relevant as to whether there is any pattern of offending behaviour.[31] It is therefore convenient to first consider the respondent's criminal record and antecedents as required by s 7(3)(g).
Childhood and personal life
[31] Again, as observed by McGrath J in The State of Western Australia v Nelson [34], referring to the HRSO Act s 7(3)(c) and s 7(3)(d).
The respondent is a 62-year-old man. He was born and raised predominantly in New South Wales and moved to Queensland at age 15. His biological father never played a role in his life, and he was raised by his mother and stepfather. The respondent reported to Ms Hasson that he had had a good attachment to his mother and shared a solid bond with his stepfather who treated him as his own. When he was approximately nine years of age, the respondent's mother and stepfather separated. His stepfather remarried three times and had two sons, whom the respondent refers to as his half-brothers. Both of his parents are now deceased, and the respondent is estranged from all family.
The respondent reported to Ms Hasson that he was often bored at school and as such he frequently presented a challenge to teachers, impairing his relationships with them.[32] The respondent reported that he was expelled from school by the time he was 14.
[32] Exhibit 3, page 1108 (Ms Hasson's report, par 9).
The respondent is single and has no children. He reported to Ms Hasson that he has had one significant intimate relationship of 18 months' duration when he was 17.[33] The respondent reported to Dr Wynn Owen that his one significant intimate relationship occurred when he was eight and was with a classmate.[34] The respondent reported to both Dr Wynn Owen and Ms Hasson that he was sexually assaulted by a police officer when he was 10 years old.[35]
[33] Exhibit 3, page 1108 (Ms Hasson's report, par 11).
[34] Exhibit 3, page 1179 (Dr Wynn Owen's report, par 87).
[35] Exhibit 3, page 1179 (Dr Wynn Owen's report, par 89); and Exhibit 3, page 1110 (Ms Hasson's report, par 18).
The respondent has lived outside of Western Australia for much of his life and has spent extensive time in prison. He has no friends or acquaintances within the community from whom he can obtain support. This appears to be a recurring theme in the respondent's life, recorded in historic psychological reports prepared for the purposes of the respondent's prior court hearings.[36]
[36] See, for example, Exhibit 1, page 196 (Ms Lynn's Addendum to Pre-Sentence Report dated 18 December 2007).
The respondent has convictions in both Queensland and New South Wales dating back to 1974, most of which relate to stealing and burglary and for which the respondent was sentenced to terms of juvenile detention, and to terms of imprisonment as an adult in 1979 and 1982.[37] There are no convictions of a sexual nature in those jurisdictions.
Employment and education
[37] Exhibit 1, pages 5 ‑ 15 (New South Wales Criminal History); Exhibit 1, page 16 (Queensland Criminal History); and The State of Western Australia v Dragon [2012] WASCSR 206 [13] - [14].
In terms of employment, the respondent reported to Ms Hasson that he has had difficulty in maintaining employment for periods longer than six months as he often became bored.[38] Since returning to Western Australia in 2008, he struggled to gain and/or maintain employment, which he attributed to 'negative media attention and government oversight of his freedom'.[39] During his current term of imprisonment, the respondent has been employed and it is reported that he is a reliable worker who requires minimal supervision.[40] The respondent does not have employment to commence upon his release and will be reliant on Centrelink payments.[41]
[38] Exhibit 3, page 1108 (Ms Hasson's report, par 8).
[39] Exhibit 3, page 1108 (Ms Hasson's report, par 10).
[40] Exhibit 1, page 61 (Individual Management Plan).
[41] Exhibit 3, page 1150 (Community Supervision Assessment); and Exhibit 3, page 1185 (Dr Wynn Owen's report, par 121).
The respondent has limited formal education. As noted above, he did not complete high school. The respondent reported that he has undertaken and/or completed studies to degree level in managerial psychology and forms of economics.[42] At his interview with Dr Wynn Owen, the respondent reported having attended university to commence studies for approximately five months, however Dr Wynn Owen questioned the veracity of the respondent's report in this regard.[43]
Alcohol and substance abuse
[42] Exhibit 3, page 1179 (Dr Wynn Owen's report, par 82).
[43] ts 120 - 121 (24 May 2022).
While the respondent admitted to trying cannabis, LSD and heroin in his youth,[44] the respondent does not have a history of substance abuse, nor was substance abuse a factor in his past offending.[45]
Criminal record - serious offences and other relevant offences
[44] Exhibit 3, page 1078 (Ms Lynn's Addendum to Pre-Sentence Report dated 18 December 2007); and Exhibit 3, page 1111 (Ms Hasson's report, par 24).
[45] Exhibit 3, page 1177 (Dr Wynn Owen's report, par 73); Exhibit 3, page 1127 (Ms Hasson's report, par 116); ts 114 - 115, 134 (24 May 2022).
The respondent has spent approximately 31 years of his life incarcerated for various criminal offences. For the purpose of the hearing of the restriction order application, the State prepared a chronology of the respondent's offending committed within Western Australia which falls within the meaning of a serious offence under the HRSO Act, and other offences committed within Western Australia that the State submitted were relevant offences. The chronology included the date and nature of each offence; a high level summary of the material facts for each offence; the date of outcome; and the sentence imposed. I understood that the respondent took no issue with the State's characterisation of the offences as 'serious offences', nor with the accuracy of the facts summarised in the chronology.[46]
[46] ts 87 (24 May 2022).
The State also submitted that the offences for which the respondent was convicted as a juvenile and as a young adult in New South Wales and Queensland were relevant offences.[47] In this regard I note that in 1974 the respondent was dealt with at the age of 14 by the Children's Court in New South Wales and given probation for many counts of burglary and stealing. He was committed to a boys' training school. The respondent was first sentenced to imprisonment in 1979 when convicted of a large number of stealing offences and a burglary offence. Later that same year the District Court of New South Wales sentenced the respondent to a total of five and a half years' imprisonment with a non-parole period to expire in 1982 for offences of burglary and stealing motor vehicles. Upon the respondent's release from prison he went to Queensland where in September 1982 he was convicted of stealing and unlawful use of a motor vehicle. He received prison terms for those offences.
[47] ts 177 (24 May 2022).
The respondent admitted his criminal history.[48]
Serious offences
Offences in Thailand
[48] Respondent's submissions, pars 2(a), 2(j).
I understand that after the respondent's release from prison in Queensland, he travelled extensively in the South Pacific and Asia regions. He then travelled to Thailand.[49]
[49] The State of Western Australia v Dragon [2012] WASCSR 206 [15].
On 30 December 1994, the respondent was sentenced to two and a half years' imprisonment for possession of pornography and possession of an offensive weapon. On 3 June 1996, he was sentenced to one year imprisonment, which was reduced to eight months after a successful appeal, for possession of pornography. These convictions concerned possession of pornography which involved child exploitation materials. Therefore, they are 'serious offences' for the purpose of the HRSO Act as the respondent's acts would have constituted serious offences if they had occurred in Western Australia (namely, possession of child exploitation materials contrary to s 220 of the Criminal Code (WA), which is identified as a serious offence in item 5 of sch 1 div 1 subdiv 3 of the HRSO Act).[50]
[50] HRSO Act s 5(4), s 5(1)(a).
On 16 June 1997, the respondent was sentenced to 35 years' imprisonment for having sexual intercourse with girls under 15 years of age on four occasions, and committing indecent acts on children under 15 years of age on four occasions. This sentence was reduced to 18 years as a result of a series of sentence adjustments and Royal amnesties, and the respondent was released from prison on 30 June 2006.[51]
[51] Exhibit 1, page 17 (summary of offending in Thailand).
These offences are also 'serious offences' for the purpose of the HRSO Act as the respondent's acts would have constituted serious offences if they had occurred in Western Australia. As the age of the children was not stated in the Thailand court documents, the respondent's acts were either a sexual offence against a child under 13 (s 320 of the Criminal Code (WA)), or a sexual offence against a child of or over 13 and under 16 (s 321 of the Criminal Code (WA)), which are identified as serious offences in items 16 and 17 of sch 1 div 1 subdiv 3 of the HRSO Act.[52]
Possession of child pornography
[52] HRSO Act s 5(4), s 5(1)(a).
On 31 May 2007, the respondent attended a cinema complex and had in his possession a computer thumb drive containing child exploitation material. Following the film, cleaning staff located the thumb drive left behind by the respondent and upon examination, cinema staff notified police and the thumb drive was seized. The thumb drive was analysed by police and found to contain a total of 818 child abuse images. On 7 June 2007, the respondent returned to the cinema to retrieve his thumb drive at which time he was arrested by police and a search of his residence resulted in the seizure of several compact discs containing 11 child abuse images.[53] The respondent was charged with possession of child pornography and sentenced to 12 months' imprisonment, conditionally suspended for 12 months.[54]
[53] Exhibit 1, pages 177 - 179 (statement of material facts).
[54] Exhibit 2, pages 440 - 450 (transcript of proceedings in the District Court on 15 January 2008).
On 5 February 2008, the respondent attended an internet cafe where he browsed pornographic websites. A member of the public, who saw the respondent looking at the images contacted police and upon their arrival to the cafe, police witnessed pornographic images on the respondent's computer screen. A thumb drive belonging to the respondent was seized and analysis of the contents revealed approximately 60 images depicting female children aged between six months and 14 years of age.[55] Of the 60 images, six were the subject of the indictment.[56] The respondent was convicted of the offence of possession of child pornography and ultimately sentenced to a total of 15 months' imprisonment.[57]
[55] Exhibit 1, pages 203 - 204 (statement of material facts).
[56] Exhibit 2, pages 465 - 466 (transcript of District Court proceedings on 27 May 2008); and Exhibit 2, page 478 (the ruling on the 61 images).
[57] Exhibit 2, pages 451 - 477 (transcript of proceedings in the District Court on 27 May 2008); and Dragon v State of Western Australia [2008] WASCA 252, reproduced in Exhibit 2, pages 485 - 509.
On 27 August 2010, the respondent was convicted of eight counts of being in possession of child pornography in the form of digital images stored on several storage devices.[58] The respondent was sentenced to a total of 34 months' imprisonment.[59]
[58] Exhibit 1, pages 205 - 206 (District Court indictment 931 of 2010).
[59] Exhibit 2, pages 514 - 539 (transcript of proceedings in the District Court on 27 August 2010).
The convictions described in [56] and [57] were convictions for possession of child pornography contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), now a repealed provision. The respondent's acts that constituted an offence under the repealed provision would now constitute an offence under s 220 of the Criminal Code (WA), the offence of being in possession of child exploitation materials. By operation of s 5(2) of the HRSO Act, an offence under the now repealed s 60(4) constitutes a 'serious offences' for the purpose of the HRSO Act as the respondent's acts that constituted an offence under the repealed provision would constitute a serious offence specified in sch 1 div 1 (namely, possession of child exploitation materials contrary to s 220 of the Criminal Code (WA)).
Dr Wynn Owen noted that the respondent expressed no victim empathy or remorse in relation to these offences.[60]
Assault with intent to rob
[60] Exhibit 3, page 1175 (Dr Wynn Owen's report, par 58).
On 8 August 2012, the respondent committed an aggravated armed assault with intent to rob.[61] The circumstances of the offence were that the respondent was in Mount Lawley, near the Mercy Hospital. The victim was walking to her car, which was parked in a carpark on the roadside. The victim unlocked the vehicle and placed her 11-month-old baby into a child seat in the centre of the back seat, she then placed a pram in the boot before getting into the driver's seat and preparing to drive away. At that point, the respondent opened the rear passenger door and climbed in. He reached over the baby seat and placed an arm around the driver's seat headrest and the victim's throat to restrain her. The respondent was holding a knife. The victim fought back and managed to wrench the knife from the respondent and throw it away. The respondent ran from the scene. As a consequence of the assault, the victim received cuts to her fingers. The respondent pled guilty and was sentenced to five years' imprisonment.[62]
[61] The State of Western Australia v Dragon [2012] WASCSR 206, reproduced in Exhibit 1, pages 251 - 258; see also Exhibit 1, page 223 (Supreme Court indictment 193 of 2012).
[62] Exhibit 1, pages 231 - 250 (transcript of proceedings in the Supreme Court on 11 December 2012).
Item 35 of sch 1 div 1 subdiv 3 of the HRSO Act specifies that assault with intent to rob (s 393 of the Criminal Code (WA)) is a 'serious offence' for the purpose of the HRSO Act.[63]
[63] HRSO Act s 5(1)(a).
Dr Wynn Owen discussed this offending with the respondent during their interview and noted that the respondent stated that at the time of the offence he was desperate. He had no money and had unstable accommodation.[64] The respondent expressed remorse and victim empathy in relation to this offence.[65]
Accessing child pornography material using a carriage service – index offending
[64] Exhibit 3, page 1170 (Dr Wynn Owen's report, par 41).
[65] Exhibit 3, page 1170 (Dr Wynn Owen's report, par 43).
The respondent was released from prison on 6 August 2017 and moved to a backpackers' accommodation.[66] Two days after his release, the respondent attended a different backpackers' location that had internet access, where he spent approximately 4.5 hours on the internet. During that time, he accessed child pornography material depicting children between the ages of 2 and 16 years. On 12 August 2017, the respondent returned to the same location and spent approximately six hours on the internet. The material accessed included over 700 images of child pornography. The respondent was convicted of two counts of using a carriage service to access child pornography material contrary to s 474.19 of the Criminal Code (Cth) and was sentenced to a total effective term of four years and four months imprisonment, backdated to 17 August 2017.[67]
[66] Exhibit 1, pages 260 - 261 (amended statement of material facts).
[67] Exhibit 1, pages 263 - 306 (transcript of proceedings in the District Court on 31 January 2019). The respondent's appeal against sentence was unsuccessful: Dragon v The State of Western Australia [2019] WASCA 84.
These were 'serious offences' for the purpose of the HRSO Act as the respondent was convicted of offences against the law of the Commonwealth of a sexual nature with a penalty of seven years or more, and which was prescribed to be a serious offence.[68]
[68] HRSO Act s 5(5), read with High Risk Serious Offenders Regulations 2020 (WA) reg 4, item 4.
As to the respondent's attitude, Dr Wynn Owen noted that the respondent stated in interview that he could not control his urge to seek child images; and expressed no remorse or victim empathy in relation to this offending.[69] Dr Wynn Owen further recorded that the respondent stated that 'looking and searching' was the appeal, not sexual arousal to the images themselves, and that the respondent appeared to minimise his offending behaviour.[70]
Other relevant offences
[69] Exhibit 3, page 1170 (Dr Wynn Owen's report, par 39).
[70] Exhibit 3, page 1170 (Dr Wynn Owen's report, par 38).
The respondent has three convictions for possession of weapons. First, on 15 May 2009, the respondent was searched by police and had in his possession a black plastic replica pistol.[71] The respondent was sentenced to a fine of $300 and the weapon was ordered to be destroyed. Secondly, on 9 June 2009, while attending a courthouse, the accused had in his possession a foldout knife and a black plastic replica pistol.[72] The respondent was sentenced to a fine of $400 and the weapons were ordered to be destroyed. Thirdly, on 6 July 2012, the respondent was at an internet cafe and got into a fight with another patron (who was known to the respondent). As the respondent was leaving the building, the patron followed the respondent and took hold of his shoulder. The respondent took out a pocketknife with the blade drawn and pointed it in the direction of the patron.[73] The respondent was sentenced to two months' imprisonment.
[71] Exhibit 1, pages 321 - 322 (statement of material facts).
[72] Exhibit 1, pages 314 - 316 (statement of material facts).
[73] Exhibit 1, pages 325 - 327 (statement of material facts).
The State contends that these offences are 'relevant proceedings' for the purposes of s 84(5) of the HRSO Act. The State also submitted that the offences for which the respondent was convicted as a juvenile and as a young adult in New South Wales and Queensland offences are 'relevant proceedings' for the purposes of s 84(5) of the HRSO Act.
At the hearing of the application, counsel for the respondent confirmed that the respondent took no issue with the State's characterisation of these other offences as 'relevant' for the purposes of s 84(5) of the HRSO Act, save as to weight.[74] This concession was correctly made, and I consider that these proceedings are relevant to the restriction order application, albeit I place less weight on the juvenile offending.
Prison behaviour
[74] ts 185 (24 May 2022).
In his current term of imprisonment, the respondent has incurred two prison charges.[75] The details of these two charges are as follows. First, on 9 April 2020, the respondent committed an act of misconduct by being in possession of two makeshift tools. For this charge, the respondent was given a loss of gratuities for 12 days (suspended for 60 days). The second charge arose on 10 October 2019, when the respondent assaulted another prisoner. The respondent was punished by a loss of gratuities for 14 days. According to prison records, in addition to the two formal charges, the respondent was involved in five incidents, the most serious of which involved the respondent behaving in a threatening manner to another prisoner on 23 August 2019.[76]
[75] Exhibit 1, page 22 (Charge History - Prisoner).
[76] Exhibit 1, pages 32 ‑ 34 (Department of Justice records relating to incident occurring on 23 August 2019); and Exhibit 3, page 1145 (Community Supervision Assessment).
Counsel on behalf of the respondent submitted that the respondent's charges during his current term of imprisonment are not relevant to the disposition of this application.[77] I consider that none of the charges or incidents ought to weigh heavily in the balance in the determination of the restriction order application. However, I am satisfied that the reports of these incidents are sufficiently cogent to be borne in the balance, and reveal that while in prison the respondent has engaged in some acts of violence.
[77] Respondent's submissions, par 2(l).
In terms of his general behaviour in prison, the Department of Justice prison reports also record that the respondent 'follows block rules and regulations, seems to be functioning well in the prison environment and maintains his cell and personal hygiene to an acceptable standard'.[78] I have also borne this positive report of prison behaviour in the balance.
[78] Exhibit 1, page 61 (Individual Management Plan).
According to Departmental records, during a previous term of imprisonment, the respondent was found to be in possession of documents on his computer including clip art images of young girls posing, a list of phone numbers for sex workers and a list of over 130 pornography sites, including some relating to children. Further, he had a list of counties with comments next to them such as 'no police ‑ anything goes here'. It was reported that he had been found in possession of other sexually inappropriate material including images of children, drug paraphernalia and weapons.[79]
[79] Exhibit 2, pages 392 (Ms Webster's Post Sentence Supervision Order Report dated 9 November 2021).
Counsel on behalf of the State submitted that these incidents were relevant to the disposition of the restriction order hearing.[80] It was the respondent's submission that these incidents were of marginal relevance, if at all, due to the length of time since they occurred.[81] The State did not produce evidence as to the particulars of these incidents. In the absence of further evidence, I did not consider the records of the incidents to be sufficiently acceptable or cogent and I do not weigh these incidents in the balance.
Responses to supervision
[80] State's submissions, pars 187 - 188.
[81] Respondent's submissions, par 2(l).
The respondent's previous response to supervision has been poor, which was acknowledged on behalf of the respondent.[82] On 15 January 2008, the respondent became subject to a conditional suspended imprisonment order, which was shortly thereafter cancelled, as the respondent reoffended by accessing child exploitation materials at an internet cafe on 5 February 2008.
[82] Respondent's submissions, par 8; ts 85, 182 (24 May 2022).
I understand the respondent to be a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA) as part of the Australian National Child Offender Registry (ANCOR) in relation to his offences committed in Thailand. The respondent's serious offences since that time were committed while he was subject to the obligations under that Act.
The respondent's poor response to supervision in the past is a matter which weighs against the court being satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order, if made.
Propensity to commit serious offences in the future - s 7(3)(c)
The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law, that is, to have an inclination or tendency to do something.[83] In Director of Public Prosecutions (WA) v GTR [178], in the context of an application made under the DSO Act, Murray AJA stated that:
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[83] The State of Western Australia v Bellamy [2013] WASC 467 [70].
The State submitted that the respondent has a propensity to commit serious offences in the future. In support of the same, the State referred to the respondent's 13 convictions of serious offences relating to possession of child exploitation material, and/or the use of the internet to access child pornography.[84] As to the nature of the respondent's offending, the State acknowledged that one of the respondent's convictions was for aggravated armed assault with intent to rob, which is not of a similar nature to most of his serious offending. Further, the State did not make reference to the respondent's convictions for serious offences in Thailand in support of the submission of the respondent's propensity.
[84] State's submissions, par 129.
The State submitted that the respondent has a sexual interest in children and an arousal pattern in response to the use of child exploitation material. The State referenced the statements that the respondent made to psychologists and others who have assessed him, having expressed strong beliefs supportive of sexual contact with children, and his attempts to impress this conduct as normal and positive behaviour. The State submitted that the respondent tended to also minimise, justify and fail to acknowledge wrongdoing in relation to his sexual offending.
It was the State's position that the respondent's offending history indicates that he has a tendency to commit serious offences, relating to possession of child exploitation materials or viewing such material on the internet, as well as serious sexual 'contact' offences against children. This tendency is an identifiable characteristic of the respondent which appears to be in his make up or personality, for which he is unapologetic and lacks remorse. The State submitted that, accordingly, the respondent satisfies the definition of 'propensity' as described by Murray AJA.
Counsel for the respondent did not expressly address the matter of the respondent's propensity to commit serious offences in the future. However, as to the character of his offending, counsel noted that the respondent's Australian convictions concerned access to child exploitation materials, not sexual 'contact' offences. Further, the respondent's 2012 conviction for assault with intent to rob, while serious, was the only conviction of a violent nature since the respondent was a young adult. While this distinction was noted, no attempt was made on behalf of the respondent to minimalise or excuse what was accepted to be 'deplorable behaviour' on his part.[85]
Disposition
[85] ts 86 (24 May 2022).
The respondent has a significant history of offending against children and was diagnosed by Dr Wynn Owen with Paedophilic Disorder, non-exclusive type (that is, he is sexually attracted to both male and female children). The evidence also reveals that the respondent has a long held strong belief that sexual contact with children is a positive experience for the child, and sexual contact with children is as a natural behaviour.[86]
[86] Exhibit 1, page 371 (Program Completion Report dated 8 August 2016); Exhibit 3, pages 1118, 1126 and 1137 (Ms Hasson's report, pars 66, 109 and 182); Exhibit 3, pages 1188 - 1189 (Dr Wynn Owen's report, pars 150 - 151); ts 97 (24 May 2022).
The convictions and diagnosis readily permit the inference to be made that the respondent has a tendency to commit sexual offences against children, particularly young females, both by accessing child exploitation material and by 'contact' offending.
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
The State submitted that a 'pattern', as it pertains to behaviour, is a recurrent way of acting by an individual or group towards a given object or in a given situation.[87]
[87] State's submissions, par 133.
The State noted that the respondent has convictions within Western Australia for having accessed child pornography on a computer in an internet cafe or backpackers hostel on three occasions. Counsel for the State submitted that there is a pattern to the respondent's offending, which is a recurrent way of accessing child exploitation material, either in private or public places. The State further relied upon the offences committed in Thailand, and submitted that these offences demonstrate a recurrent way of acting towards children. That is, engaging in sexual acts with children.
At the hearing of the application the respondent did not seek to challenge the characterisation of his prior offending, which included his convictions in Thailand.[88] Counsel accepted that the respondent's behaviour pattern was to use computers to access pornography/child exploitation materials, which had occurred on three occasions. While acknowledging the seriousness of the respondent's convictions in Thailand, counsel for the respondent submitted that his criminal record did not reveal a pattern of sexual offending (that is, 'contact' offending) against children.
Disposition
[88] Respondent's submissions, par 2(h).
I understood it to be common ground that the respondent's criminal history reveals a pattern of offending by accessing child exploitation material.
While the respondent has not been convicted of having committed a sexual offence against a child under 13 (s 320 of the Criminal Code (WA)), or a sexual offence against a child of or over 13 and under 16 (s 321 of the Criminal Code (WA)) in Western Australia, he was convicted and imprisoned in Thailand for having sexual intercourse with girls under 15 years of age on four occasions, and committing indecent acts on children under 15 years of age on four occasions. Albeit not recent, this conduct reveals a pattern of sexual offending against children.
With respect to the respondent's violent offending, counsel for the parties accepted that the respondent's aggravated armed assault with intent to rob appeared to be a 'one-off' offence and consequently, it cannot be said that there is a pattern of offending for like offences.[89] I am of the same opinion, and do not consider that the respondent's history reveals a pattern of violent offending behaviour.
Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - ss 7(3)(e) and 7(3)(f)
[89] State's submissions, par 138; and the respondent's submissions, par 2(h).
I must consider if the respondent has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs, and whether or not such participation has had a positive effect. The respondent has participated in two rehabilitation programs while incarcerated, with very little positive effect.
While in prison in 2008, the respondent declined to participate in the Sex Offender Treatment Program. In the program participation waiver, the respondent claimed that the length of the program at the late stage of his sentence would 'negate [his] eligibility for parole and so would cause undue suffering that the sentencing judge did not intend'.[90]
[90] Exhibit 1, page 330 (Clinical Intervention Program Participation Waiver dated 18 July 2008).
Between 15 September and 10 December 2014, the respondent engaged in and completed the Think First Cognitive Skills Program, having attended 29 of the 30 sessions. The completion report recorded that the respondent 'was able to grasp the majority of the concepts, however his application in terms of offence related issues was limited as he tended to discuss most of the concepts in a more general sense'.[91]
[91] Exhibit 1, pages 349 (Completion Report - Think First Cognitive Skills Program).
On 9 March 2015, the respondent commenced the Intensive Sex Offender Treatment Program. Among other things, the completion report recorded that:[92]
(a)the respondent's 'readiness and motivation to engage was questionable' and his level of engagement was suggestive of being in the 'pre-contemplative stage of change';
(b)the respondent presented as hostile and oppositional and appeared to use the program to express his grievances with the Australian government and society which he seemed fixated on;
(c)during the program, the respondent frequently expressed strong beliefs supportive of sexual contact with children/offending attempting to impress this as providing a positive experience and portraying this as a natural behaviour;
(d)throughout treatment, the respondent showed lack of insight into his deviant sexual behaviour, lacked motivation for change and presented with problematic personality disorder/structure; and
(e)at the conclusion of the program, the respondent continued to present with significant outstanding treatment needs.
[92] Exhibit 1, page 371 (Program Completion Report dated 8 August 2016).
During his most current period of incarceration, the respondent has not completed any programs to address his risk of reoffending.
In his report, Dr Wynn Owen observed that the respondent has fixed attitudes supporting child sexual abuse and had been 'rejecting of treatment'.[93] However, in cross-examination, Dr Wynn Owen accepted that the programs undertaken by the respondent to date have been group based, and in his expert opinion, the respondent is not a suitable candidate for group therapy.[94]
[93] Exhibit 3, page 1196 (Dr Wynn Owen's report, par 181).
[94] ts 117 (24 May 2022).
Dr Wynn Owen opined that the type of therapeutic intervention likely to assist the respondent was an individual 'psychotherapeutic approach over the long term' which 'addresses facets of his personality'.[95] Dr Wynn Owen explained that occasionally a prisoner will be offered individual intervention, but he believed access to such intervention to be rare and accepted that it had not been offered to the respondent.[96]
[95] ts 118 (24 May 2022).
[96] ts 117, 118 (24 May 2022).
In Ms Hasson's opinion, numerous treatment needs of the respondent remain outstanding. Ms Hasson opined that the respondent requires assistance to manage his deviant sexual interests, persecutory belief system, emotional regulation, distress tolerance, coping, problem solving, conflict resolution, and communication skills including assertiveness and the expression and inhibition of angry and aggressive impulses.[97]
[97] Exhibit 3, page 1139 (Ms Hasson's report, par 195).
As to the treatment that the respondent had received whilst incarcerated, Ms Hasson also expressed the view that the respondent was 'not suitable for a group based program'.[98] She opined that the only treatment option for the respondent was long term individual treatment, preferably from an experienced practitioner, either a forensic psychologist or a practitioner with extensive forensic experience.[99]
[98] ts 135 (24 May 2022); Exhibit 3, page 1136 (Ms Hasson's report, par 178).
[99] ts 135, 137 (24 May 2022).
I accept that the respondent has many significant outstanding treatment needs, particularly in relation to his deviant sexual interests. While the respondent made some effort to address his offending behaviour by engaging in two group programs while incarcerated, they were group programs not suited to addressing his offending behaviour.
Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)
Dr Wynn Owen and Ms Hasson each examined the respondent and prepared independent reports as required by s 74(1) of the HRSO Act.
Section 74(2) of the HRSO Act required that the reports prepared by Dr Wynn Owen and Ms Hasson indicate their respective assessment of the level of risk that, without a restriction order, the respondent will commit a serious offence; and the reasons for their assessment.
Section 74(3) of the HRSO Act required Dr Wynn Owen and Ms Hasson to have regard to any medical, psychiatric, prison or other relevant report or information relating to the respondent that is in the possession of the chief executive officer of the Department of Justice, or to which the chief executive officer has, or may be given, access, in preparing their reports.
I summarise below the evidence of each of the independent experts, which evidence I weighed in the balance as required by s 7(3)(a) of the HRSO Act.
Dr Wynn Owen's report and evidence
Dr Wynn Owen is a medical practitioner registered with the Medical Board of Western Australia as a specialist (forensic psychiatrist). His statement of qualifications is set out in his report.[100] He is qualified to give the opinions expressed in his report and in the course of his evidence.
[100] Exhibit 3, pages 1162 - 1163 (Dr Wynn Owen's report, par 2).
For the purposes of this proceeding, Dr Wynn Owen interviewed the respondent in person. He also spoke with Ms Cashmore. The documents to which Dr Wynn Owen had regard are identified at par 7 of his report.
As to the extent to which the respondent cooperated with the examination, Dr Wynn Owen recorded that he was cooperative with the interview process.[101]
History of offending and attitudes towards past serious offending
[101] Exhibit 3, page 1186 (Dr Wynn Owen's report, par 132).
Dr Wynn Owen provided a summary of the respondent's serious offences and relevant offences which is consistent with the summary of the same at [51] - [65] above.
Dr Wynn Owen recorded in his report the respondent's current description and attitudes towards his past offending within Western Australia.[102] Save for the offence committed on 8 August 2012 of aggravated armed assault with intent to rob, the respondent expressed no remorse or victim empathy in relation to his offending.
Medical and psychiatric history
[102] Exhibit 3, pages 1170 - 1175 (Dr Wynn Owen's report, pars 36 - 58).
Dr Wynn Owen provided a comprehensive summary of the respondent's medical and psychiatric history.[103] The account of the respondent's psychiatric history reveals that he had been diagnosed with a Cluster B Personality Disorder, and psychopathic traits; and that the respondent had self-reported and sought medical intervention on several occasions.
[103] Exhibit 3, pages 1175 - 1177 (Dr Wynn Owen's report, pars 59 - 71).
Dr Wynn Owen recorded that in 2014, the respondent asked to see the psychiatrist and is reported to have been 'seeking a specialist opinion on whether his offending is due to mental illness'. On assessment by the psychiatrist no mental illness was diagnosed and no psychiatric follow up was planned.[104] Following a further self-referral seeking 'an in depth assessment', the respondent was advised that long term counselling may help. Dr Wynn Owen noted that the psychiatrist had recorded 'No acute mental disorder detected. Underlying problems of personality structure, coping, sexual preferences'.[105] The respondent again self referred in 2019, 2020 and 2022. On the last occasion, the respondent was not assessed as being acutely unwell or at risk, and therefore did not meet the criteria for psychiatric review at that time.[106]
History of alcohol and other substance use
[104] Exhibit 3, page 1176 (Dr Wynn Owen's report, par 64).
[105] Exhibit 3, page 1176 (Dr Wynn Owen's report, par 66).
[106] Exhibit 3, page 1177 (Dr Wynn Owen's report, par 71).
Dr Wynn Owen noted that the respondent does not have a history of substance abuse, and that illicit substances were not a factor in his past offending.[107]
Personal, social and occupational history
[107] Exhibit 3, page 1177 (Dr Wynn Owen's report, par 73).
Dr Wynn Owen summarised the respondent's personal and family history, school/educational history, occupational history and sexual development. The summary was substantively consistent with the evidence outlined at [41] - [46] above.
Prison behaviour and function
Dr Wynn Owen summarised the respondent's prison behaviour. The summary was consistent with the evidence summarised at [69] and [71] ‑ [72] above.
Psychological assessments
Dr Wynn Owen drew the court's attention to psychological assessments undertaken for the purposes of previous court hearings and sentencing. The summary of the reports was consistent with the evidence discussed at [204] ‑ [208] below.
Treatment programs
Dr Wynn Owen summarised the respondent's past treatment programs. The summary was consistent with the evidence outlined at [90] ‑ [93] above.
Plans for release
The respondent reported to Dr Wynn Owen that if released he planned to spend his time alone at home. Dr Wynn Owen recorded that the respondent was 'clear that his preference was to be in a remote location with minimal contact with anyone, but he realised that this was unlikely'.[108] The respondent also reported that he did not intend to seek employment.
[108] Exhibit 3, page 1185 (Dr Wynn Owen's report, par 120).
The respondent told Dr Wynn Owen that he intended to avoid the internet because he may be tempted to browse child images and said that he would understand and be compliant with a condition that restricted and/or prohibited internet access.[109] Dr Wynn Owen noted that other than internet access, the respondent did not articulate any plans to manage risk or identify high risk situations, but indicated that he would comply with order conditions.[110]
[109] Exhibit 3, page 1185 (Dr Wynn Owen's report, par 123).
[110] Exhibit 3, page 1185 (Dr Wynn Owen's report, pars 124 and 125).
In his report, Dr Wynn Owen noted that at the time of their interview, the respondent did not have confirmed accommodation. In his evidence, Dr Wynn Owen did not comment about the appropriateness of proposed accommodation. He did however state that 'unless that is assisted and managed in some way that provides stable accommodation and supports, etcetera, the stress will be too much for him to manage'.[111]
Anti-libidinal therapy
[111] ts 102 (24 March 2022).
Dr Wynn Owen reported that the respondent has indicators of a sexual preoccupation and a high libido, and recommended that he undergo anti‑libidinal therapy.[112] He explained that this medication would act as a chemical hormonal agent, with the effect of artificially reducing the respondent's level of testosterone.[113]
[112] Exhibit 3, pages 1185 - 1186 and 1197 (Dr Wynn Owen's report, pars 128 and 187(ii)).
[113] ts 105 (24 May 2022).
Dr Wynn Owen gave evidence to the effect that anti-libidinal medication would reduce the respondent's libido and deviant sexual thinking, and reduce his intrusive thoughts and sexual preoccupation. In combination, this would assist the respondent to engage with and focus on his psychological treatment.[114] Put another way, anti-libidinal therapy would be an adjunct to psychological intervention therapy.[115] Dr Wynn Owen's evidence was that in combination, these therapies would put the respondent in the trajectory of likely treatment effectiveness.
[114] ts 105 (24 May 2022).
[115] ts 113 (24 May 2022).
Dr Wynn Owen recorded that during the interview, the respondent raised the matter of treatment, but stated that he was 'seeking a memory wiping treatment', or a therapy similar to treatment used in the past to 'treat' homosexuality. While initially opposed to hormonal anti‑libidinal therapy, the respondent indicated that if the treatment were recommended, he would try it.[116] In his evidence, Dr Wynn Owen also noted that the respondent had felt that it was a good idea to undergo anti-libidinal treatment 'just to get it off the books'.[117] I understood this to mean that while the respondent was not optimistic as to effectiveness, he was not opposed to undergoing the treatment.
[116] Exhibit 3, page 1186 (Dr Wynn Owen's report, par 129 - 130).
[117] ts 105 (24 May 2022).
Dr Wynn Owen also noted the respondent's proposal to undergo physical castration, reported in the updated community supervision assessment. Dr Wynn Owen reported that he was not aware of anywhere in Western Australia or Australia where such treatment would be offered.[118]
Psychiatric diagnosis
[118] ts 105 - 106 (24 May 2022).
Dr Wynn Owen used a diagnostic classification system, DSM‑V,[119] and diagnosed the respondent with paedophilic disorder (non-exclusive type), and antisocial personality disorder (with additional narcissistic and schizoid personality traits).[120]
[119] Diagnostic and Statistical Manual of Mental Disorders, 5th edition.
[120] Exhibit 3, pages 1186 - 1187 (Dr Wynn Owen's report, pars 133 - 136).
Dr Wynn Owen explained that he had undertaken an evaluation of the respondent using the Psychopathy Checklist - Revised (PCL-R), a tool which determines whether a subject fits the construct of psychopathy. Dr Wynn Owen attributed a score of 29 to the respondent, which is within the range which indicates prototypical psychopathy. He further explained that the presence of psychopathy is significantly associated with an elevated risk of future sexual and violent offending if that individual has, like the respondent, committed such offences in the past.[121] Further, Dr Wynn Owen explained that psychopathy is associated with very poor treatment response, often in the face of apparent compliance; and is a very significant factor in terms of the respondent's risk of both future sexual offending and future violent offending.[122]
Risk assessment
[121] ts 100 (24 May 2022); Exhibit 3, page 1191 (Dr Wynn Owen's report, par 157).
[122] ts 100 (24 May 2022).
Dr Wynn Owen accepted that reoffending risk cannot be accurately predicted, but opined that the most reliable indicator of future behaviour is past behaviour, particularly if there is an established and enduring pattern of that behaviour. As to future risk, Dr Wynn Owen stated that future risk is:[123]
… modified by a range of factors including life experience, social and interpersonal context, personality, cognitive capacity and mental state, the opportunity given to address risk and the individual s response to this and the presence and impact of a range of dynamic variables. A Structured Professional Judgement (SPJ) approach to risk assessment, which has been demonstrated to be more a more accurate method of consideration of risk, takes into account static and historical risk factors using a combination of actuarial tools, structured assessment guides and clinical assessment. This approach has been demonstrated to be significantly more accurate than using one of static or combined static/dynamic risk tool.
Static-99R
[123] Exhibit 3, page 1187 (Dr Wynn Owen's report, par 138); ts 95 (24 May 2022).
The respondent was evaluated by Dr Wynn Owen using the Static‑99R (2016 Revision, updated 2021 recidivism estimates), which is an actuarial tool. Dr Wynn Owen explained that use of the Static‑99R actuarial tool is intended to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information found to correlate with sexual recidivism in adult male sex offenders. The tool is concerned with historic rather than dynamic factors.[124] Dr Wynn Owen explained in his report that the Static‑99R has moderate accuracy in ranking offenders according to their relative risk for sexual recidivism and is widely accepted by the scientific community.
[124] Exhibit 3, page 1187 (Dr Wynn Owen's report, par 140).
The respondent's Static-99R score was Level IVb, or the 'well above average risk' range. Dr Wynn Owen explained offenders released with the same score as the respondent, using the data from the 'high risk high needs' cohort, had an average five year sexual recidivism rate of 25.7%, with a range of between 21.5% and 30.3%. At 10 years, the predicted recidivism rate is 37.3%, and at 20 years is 44.5%.[125]
[125] Exhibit 3, page 1187 (Dr Wynn Owen's report, par 141); ts 96 (24 May 2022).
Dr Wynn Owen also suggested that the respondent's score be compared to the likelihood of an adult male with no history of sexual offending committing a sexual offence during his lifetime, which is less than 1%. He also noted that the future likelihood of any individual who has committed a prior sexual offence committing a new sexual offence within five years is between 5% and 15%. To be considered in context, Dr Wynn Owen explained that the respondent's average five year sexual recidivism rate of 25.7% under the Static-99 tool is considerably higher than an adult male with no history of sexual offending committing a sexual offence during his lifetime, or an individual who has committed a prior sexual offence.[126]
RSVP
[126] Exhibit 3, page 1188 (Dr Wynn Owen's report, par 142); ts 96 (24 May 2022).
The respondent was also evaluated by Dr Wynn Owen using the Risk for Sexual Violence protocol (Hart, Kropp and Laws, 2003) structured clinical judgment framework. Dr Wynn Owen explained that the RSVP is a tool designed to identify static and dynamic risks for future sexual offending; to identify treatment needs; and to target and assist with the development of suitable monitoring and supervision parameters to address identified risk.[127]
[127] Exhibit 3, page 1188 (Dr Wynn Owen's report, par 144); ts 95 (24 May 2022).
In assessing the respondent against the structured clinical judgment framework, Dr Wynn Owen considered static and dynamic risk factors, including the respondent's sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. As part of the psychological assessment, Dr Wynn Owen recorded that a number of risk factors were present in the respondent, including chronicity and diversity of sexual violence; extreme minimisation of sexual violence; attitudes that support or condone sexual violence; problems of self awareness; problems with stress or coping; problems resulting from child abuse; sexual deviance; psychopathic personality disorder; non-sexual criminality; and problems with planning, treatment and supervision.
As to the respondent's attitude to sexual violence, Dr Wynn Owen noted that the respondent:[128]
[has made] statements about such things as believing that what we call paedophilia is, in fact, possibly quite a normal thing, much of the society doesn't agree with laws relating to the restriction of access to pornographic material about children or sexual contact with children, and much like homosexual relationships, this may be something which is legalised in the future. So he has got very firmly entrenched, deeply held attitudes that condone sexual contact with children.
[128] ts 98 (24 May 2022); see also ts 101 (24 May 2022).
As to the risk scenarios presented by the respondent, Dr Wynn Owen opined as follows:[129]
[129] Exhibit 3, pages 1193 - 1194 (Dr Wynn Owen's report, pars 168 - 175); see also ts 101 - 102 (24 May 2022).
168.Nature
169.Repeat: This is the most likely scenario should an offence occur in future. In the ongoing context of persistent attitudes supportive of child abuse and inability/unwillingness to acknowledge sexual deviance [the respondent] will return to internet browsing for child exploitation.
170.Escalates: If [the respondent's] internet browsing for child exploitation material continues unchecked, reinforcing his sexual deviance, he may then escalate to contact or non-contact offending (as he openly acknowledges such sexual offending in the past). This is likely to be opportunistic offending against a stranger child who is isolated if in Australia, contact or non-contact offending could include photographs taken without consent escalating to sexual contact. If [the respondent] were in a country other than Australia offending may be associated with the child sex trade or opportunistic as above. Contact and non‑contact offending, should it occur is likely to parallel his offending in Thailand ie to include photographing naked children opportunistically through to penetrative sexual intercourse with a female child under 15 years, potentially as young as 8, possibly younger.
171.Escalates and changes: Noting that this is the least likely reoffence scenario. [The respondent] has collected many child exploitation images of male children and although he denies ever having any sexual interest in males this collecting behaviour belies his claims. An escalation and change could involve opportunistic sexual contact with or non-contact offending involving a male child.
172.Any contact or in person non-contact offending will have immediate and long term adverse psychological consequences for the victim.
173.Imminence
174.Based on [the respondent's] past pattern of offending in WA he could return to viewing child exploitation material within days of returning to the community and having opportunities for internet access. Depending on supervision and the duration of reinforcement of deviance this could escalate to contact offending.
Violence offending - HCR-20
Dr Wynn Owen evaluated the respondent using the Historical/Clinical and Risk Management 20, version 3 (HCR-20), which he explained is a violence risk assessment structured professional guideline.
Dr Wynn Owen reported that risk factors identified by assessing the respondent using the RSVP are also factors that are associated with an increased risk of violent offending. These risks include a history of problems with antisocial behaviour; relationships; traumatic experiences; and treatment or supervision response.[130]
[130] Exhibit 3, page 1194 (Dr Wynn Owen's report, par 177); ts 96 (24 May 2022).
Dr Wynn Owen noted that the respondent's history of offending and the presence of high level of psychopathy and entrenched antisocial and antiauthoritarian attitudes are significant factors in assessing future violent offending. Dr Wynn Owen noted that the respondent's serious violent offence occurred in a context where he was under chronic stress by reason of him being a sex offender, having to deal with restrictions and reporting requirements, coupled with instability of accommodation, financial constraint and an absence of social network or support. Dr Wynn Owen noted the importance of emotional and practical coping if the respondent is to avoid future crises. Further, in Dr Wynn Owen's opinion, the use of a weapon in the commission of his prior violent offence suggests that a weapon is likely to be involved in any future serious violent offending, and that any future serious violent offending would be opportunistic, with a goal of financial reward.[131]
[131] Exhibit 3, page 1194 (Dr Wynn Owen's report, par 176).
Dr Wynn Owen also opined that the respondent's outstanding treatment needs in relation to violent offending are the same as his needs with respect to sexual offending, other than those relating to his sexual deviance.[132]
Opinion and recommendations
[132] Exhibit 3, pages 1194 - 1195 (Dr Wynn Owen's report, par 177).
On the basis of his review of the materials, clinical assessment and application of risk assessment tools, Dr Wynn Owen opined that the respondent presents a high risk of committing a serious sexual offence, if not subject to some form of supervision on release.[133] He also opined that in his view, the respondent presents a high risk of future sexual offending if not subject to a restriction order.[134]
[133] Exhibit 3, page 1196 (Dr Wynn Owen's report, par 183).
[134] Exhibit 5; ts 103 (24 May 2022).
In his report, Dr Wynn Owen also noted that the respondent presents a moderate risk of future serious violent offending.[135] In this regard, Dr Wynn Owen explained as follows:[136]
I believe he has a moderate risk of committing a violent offence, and there are a number of contextual factors which are of relevance. There is the one instance of a serious offence, which occurred in 2012. He had been released from prison with relatively limited supports. He had experienced being recognised as a sex offender and some degrees of vigilantism. He felt – believed himself to be unsupported by the police and other agencies and was financially struggling. He has apparently made an impulsive and opportunistic decision to commit an offence, which he has been unable to self-manage that. However, there was a financial goal. The goal was, 'This person looks as if they have money. I need money. I'm going to go and do this now.' I believe it would require a repeat of that set of stressors. It's something that has happened once rather than multiple times, and this is why I believe there's only a moderate likelihood of that type of re-offence occurring.
[135] Exhibit 3, page 1196 (Dr Wynn Owen's report, par 183); ts 102 (24 May 2022).
[136] ts 102 (24 May 2022).
Dr Wynn Owen emphasised the respondent's outstanding treatment needs in the areas of sexual deviance, coping, problem‑solving, emotional and behavioural self-management, self‑awareness and interpersonal relationships.[137]
[137] Exhibit 3, page 1196 (Dr Wynn Owen's report, par 184).
When asked by counsel for the State whether the respondent's risk could be adequately managed in the community on a supervision order, Dr Wynn Owen stated:[138]
I believe that the supervision order as outlined will manage that risk to the extent that if high risk behaviours start to present, that they will be captured. And that certain conditions, if breached, it will be very obvious very quickly, such that he will not be able to visit places where he can access the internet, whether that's a café or a library. And if he does, he will be very, very quickly discovered and he will be reassessed, essentially. And that is – that is what the role of an order of this sort is. So I believe that prior to – prior to even committing a serious offence, that the supervision level that has been outlined would capture that risk.
[138] ts 111 (24 May 2022).
Dr Wynn Owen further opined that in his view, the respondent's successful release would 'rely on significant external constraint'.[139]
[139] Exhibit 3, page 1196 (Dr Wynn Owen's report, par 185).
Dr Wynn Owen concluded his report with four recommendations:[140]
(a)The respondent should, as soon as possible, commence individual psychological intervention to address his outstanding treatment needs. The respondent is unlikely to make treatment gains in a group setting, and his personality structure is likely to be a significant barrier to treatment. If the respondent is released to a supervision order, the treatment sessions should initially focus on risk management and recognition of high risk situations as well as seeking to assess the level of stress being experienced by the respondent.
(b)The respondent should be assessed for hormonal anti-libidinal therapy to facilitate psychological intervention, and this treatment should be implemented if there are no medical constraints and the respondent commences psychological intervention.
(c)If the respondent is released to a supervision order, the supervision order conditions should address high risk situations, in particular relating to internet access and unsupervised contact with children.
(d)If the respondent is released to a supervision order, the duration should be 8 - 10 years.
[140] Exhibit 3, pages 1196 - 1197 (Dr Wynn Owen's report, par 187).
In the course of the directions hearing on 3 May 2022, counsel on behalf of the respondent sought orders to suppress the respondent's identity, and any proposed address of the respondent should he be released on a supervision order.[223] The State did not oppose the grant of an interim suppression order, reserving the right to be heard in relation to any final order at the substantive hearing of the application.
[223] ts 71 - 72 (3 May 2022).
At the substantive hearing, counsel confirmed that the respondent still pressed for use of a pseudonym and suppression of his proposed address.[224] Reference was made to the notoriety and publicity which followed hearings concerning the respondent, particularly upon his return from Thailand.[225] Following previous releases from prison, the respondent encountered problems when recognised, particularly from vigilantes, which added to his stress.[226] That stress was a contributing factor to some of the respondent's serious offending.
[224] ts 188 (24 May 2022).
[225] ts 71 - 72 (3 May 2022).
[226] ts 188 (24 May 2022).
While the State did not oppose the respondent's requested use of a pseudonym and suppression of his proposed address, the State's position was not determinative of the matter.
In determining the application, I was mindful of the principle of open justice. Judicial hearings should take place in open court, with no restriction on reporting. Of course, there are circumstances which justify open justice being curtailed. For example, pseudonym orders and orders to prohibit the publication of an address may be necessary to secure the proper administration of justice. Individual considerations affecting the person seeking the order ought be balanced against the principal rule of open justice in determining whether the administration of justice warrants the making of a pseudonym or suppression order. Circumstances where suppression, closed court and pseudonym orders are made to prevent prejudice to the administration of justice include where there is a pending jury trial which may be prejudiced by publication of past offences, or where it is desirable to protect the safety of persons who are to be litigants or witnesses in a proceeding. Embarrassment or distress alone will generally not suffice.
On balance, I am not satisfied that a pseudonym order is appropriate in the circumstances of this proceeding. There are no pending charges involving the respondent.[227] Secondly, the pseudonym order was not promoted by the Community Offending Monitoring Unit. It had no position regarding the respondent's identity being anonymised. I understood this to mean that from the perspective of the Community Offending Monitoring Unit, suppression of the respondent's identity is not necessary to enable them to fulfil their supervision function. Thirdly, while there I acknowledge that the respondent may suffer stress from the publication of his name or image following publication of these reasons, I am not satisfied that this would be to such an extent so as to sacrifice the public interest in adhering to an open system of justice.
[227] ts 71 (3 May 2022).
As to the proposed address of the respondent, the standard practice of the Community Offending Monitoring Unit is to request suppression of the proposed address of the respondent if he were to be released on a supervision order.[228] The effect of Ms Cashmore's evidence was that suppression of the respondent's proposed address is necessary to protect officers of the Community Offending Monitoring Unit, the owner of the location prepared to rent that location to the respondent, and the respondent himself from vigilante action.[229]
[228] Exhibit 6 (Updated Community Supervision Assessment, page 2).
[229] ts 152 (24 May 2022).
While mindful of the principle of open justice, in this case I consider that the administration of justice requires that the respondent's proposed address be suppressed. This is to avoid a circumstance in which the efficacy of the court's order may be compromised, and the safety of third parties who are charged with monitoring and treating the respondent may be compromised. I therefore propose to make a suppression order only to the extent that it prohibits publication of the respondent's proposed address.
Conclusion and recommendation
For these reasons, I am 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 respondent to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence. Having regard to all of the evidence and to my findings, I am satisfied that the respondent is a high risk serious offender under the HRSO Act. Further, I have determined that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of ten years. Accordingly, I propose to make a supervision order in the terms set out at sch A to these reasons.
Finally, as to the treatment of the respondent, I make the following observations.
Under the supervision order, the respondent will be subject to additional conditions which require him to attend treatment as directed. As to the form of treatment, the experts were largely consistent in their views as to the treatment needs of the respondent, and the potential for the respondent to positively respond to treatment and address his offending behaviour. The respondent requires long term individual psychotherapeutic intervention from an experienced psychiatrist or forensic psychologist. The respondent would benefit from participating in weekly therapeutic sessions, of a 90 to 180 minute duration.
Dr Wynn Owen opined that an anti-libidinal medication would reduce the respondent's libido and deviant sexual thinking, as well as reduce his intrusive thoughts and sexual preoccupation, all of which would assist his engagement with and focus on his treatment.[230] He considered that anti-libidinal therapy as an adjunct to intervention therapy would improve the likelihood of treatment being effective.
[230] ts 105 (24 May 2022).
To date, the respondent has not had treatment capable of addressing his treatment needs. Within the bounds of the resources available, the evaluation and treatment of the respondent should be afforded priority.
SCHEDULE A
STANDARD CONDITIONS REQUIRED BY THE HIGH RISK SERIOUS OFFENDERS ACT 2020 (WA)
1.Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth Western Australia 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 Community Corrections Officer as directed by the Court.
3.Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least two business days before the change happens.
4.Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a 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 Community Corrections Officer.
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 [suppressed] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.
Reporting to a CCO and supervision by a CCO
9.Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order.
10.Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
11.Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO.
12.Should your pre-approved employment require you to work at different locations, you are required to notify your CCO of any change of location where you are working, during working hours on the day you are working at the new location, or as otherwise directed by your CCO.
Attendance at programs or treatment
13.Consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
14.Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO.
15.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.
Reporting to WA Police
16.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.
17.Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).
18.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 believes to contravene the conditions of the Order.
19.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.
20.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. Further authorise police officers from the Western Australia Police Force (WA Police Force) to access any cloud-based platforms or services associated with the devices you use, and examine the internet accounts at any time for the purposes of monitoring your online behaviour (absent any investigation for any offence).
Disclosure/Exchange of Information
21.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
22.Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate to disclose to them confidential information including your offending history.
Restrictions on contact with Victims
23.Have no contact, directly or indirectly, with the victims of your sexual and violent 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.
24.Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual 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 victims at all times.
25.Report to the CCO and WA Police any direct or indirect contact with the victims of your offending on the next working day you report to the CCO or Police.
Criminal conduct
26.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.
27.Not commit an offence under s 202, s 203, s 204, s 557 of the Criminal Code 1913 (WA) or s 17(1) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA).
28.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
Curfew
29.Be subject to a curfew, pursuant to s 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave you approved address as directed by a CCO from time to time.
30.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.
31.When subject to a curfew under this Order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Medications/Mental Health
32.Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO or undergo medication treatment, including antidepressant medication or anti-libidinal treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners.
33.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Justice.
34.Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease undergoing pharmaceutical anti-libidinal and or anti-depressant medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.
35.Comply with all testing to monitor your compliance with medical treatment and hormonal anti-libidinal treatment as directed by a CCO.
Prevention of high-risk situations
36.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.
37.Not to leave [suppressed] other than in accordance with your projected movements as approved in accordance with condition 36, except:
(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.
38.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 Officers upon request.
39.Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO.
40.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).
41.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.
42.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.
43.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.
44.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.
45.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.
46.Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
47.Not to attend concerts, events or venues frequented by children under 18 years, without prior approval of a CCO.
48.Not to remain in any child focussed area (such as the children's section of any Department store) where children congregate, unless you have a reasonable excuse.
49.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.
50.Not have in your possession, custody or control any computer, telecommunication and/or electronic device capable of storing digital data or information, or being connected to the internet, unless such possession, custody or control is approved in advance by the CCO.
51.Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, in your possession, custody or control, or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
52.Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 51, without prior approval.
53.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, or any online accounts, to any person other than a CCO or Police Officer.
54.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 any 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.
55.Not to access pornographic materials, including online pornographic materials. ‘Pornographic materials’ in this condition means printed or visual or any medium of material that contains the explicit description or display of sexual organs or activity.
56.Not access the internet on any computer, telecommunication or other device capable of internet access, unless such access is approved and supervised at all times by a person approved in advance by a CCO, as directed by a CCO.
57.Not enter or remain at any location where internet services are provided to the public, including, but not limited to, any internet cafe, public library or backpacker hostel, without the approval in advance of the CCO.
58.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 such images depicting a child or children on items such as on household items or your immediate family may be authorised by a CCO. Immediate family means pictures of yourself, your siblings, your parents, and your spouse only.
59.Not access the internet for, nor collect or be in possession of any document, paper, or any other medium used for displaying words, either in the written or printed form that describes sexual activity with a child and/or children.
60.Not to access Facebook, lnstagram, Tik Tok, Snapchat and other online social media or application software program, unless approved in advance by a CCO.
61.Not to conduct any search by a computer or other electronic means using a search term that incorporates the word/s "child", "children", "kid", "kids", "boy", "boys", "girl", "girls", "adolescent", "adolescents", "manga", "anime", "underage", "incest", "preteen", "abused".
62.Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to the Honourable Justice Strk
31 MAY 2022
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