The State of Western Australia v Dunne [No 2]
[2022] WASC 111
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DUNNE [No 2] [2022] WASC 111
CORAM: ALLANSON J
HEARD: 28 MARCH 2022
DELIVERED : 7 APRIL 2022
FILE NO/S: SO 1 of 2013
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PETER LEWIS DUNNE
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Where respondent made subject to supervision order in 2013 - Where State applies for further restriction order - Where respondent has substantially complied with order - Whether restriction order necessary to ensure adequate protection of the community - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | D McDonnell |
| Respondent | : | D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | David McKenzie Legal Pty Ltd |
Case(s) referred to in decision(s):
Director of Public Prosecutions for Western Australia v Dunne [2013] WASC 359
Palmer v Dolman [2005] NSWCA 361
ALLANSON J:
Introduction
On 27 September 2013, Jenkins J ordered that the respondent be made subject to a supervision order pursuant to s 37 of the Dangerous Sexual Offenders Act 2006 (WA). The order was for a period of eight years.
On the repeal of the Dangerous Sexual Offenders Act, the supervision order continues in effect and is taken to have been made under the corresponding provisions of the High Risk Serious Offenders Act 2020 (WA).
On 18 August 2021 the State of Western Australia applied for a restriction order in respect of the respondent under the High Risk Serious Offenders Act. By s 36, such an application may be made in relation to an offender[1] who is subject to a supervision order that is to expire within one year.
[1] The Act uses the term offender, even though the proceedings are not in relation to an offence.
Where the application is brought under s 36, the State must specify whether it seeks a continuing detention order or a supervision order.[2] In accordance with s 36(2), the State has specified that it seeks a supervision order.
[2] Section 35(2); compare s 35(4) and s 35(2).
The provisions of the Act relating to an application for a restriction order otherwise apply without modification. The Act does not limit the discretion of the court or modify the requirements of s 29 that the respondent must prove that he will substantially comply with the standard conditions of the order.
On 22 October 2021, Quinlan CJ made orders pursuant to s 46 for the hearing of this application, including that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with s 74 to be used for the hearing.
The respondent is currently subject to an interim supervision order pending the decision on the State's application.
Unless stated otherwise, references in these reasons to provisions of legislation are to the High Risk Serious Offenders Act.
The s 7 factors
The court is required to have regard to the following factors set out in s 7(3):
(a) any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b) any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c) information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d) whether or not there is any pattern of offending behaviour by the offender;
(e) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g) the offender's antecedents and criminal record;
(h) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i) the need to protect members of the community from that risk;
(j) any other relevant matter.
The evidence
The State tendered a book of materials, including the reports prepared pursuant to s 74, and other material admissible by reason of s 84(5). The State separately tendered the prosecution notices and statement of material facts for two offences of contravening the supervision order, committed in February 2022, to which the respondent has now pleaded guilty.
In the circumstances of this case, where the respondent has been in the community under supervision for eight years, the two reports prepared under s 74 are particularly relevant in relating the other evidence to the respondent's present position.
The State called the authors of the s 74 reports, Dr Peter Wynn Owen and Dr Tara Yewers. The State also called Ms Jodi Nicholls, the Community Corrections Officer who has been directly responsible for the supervision of the respondent since September 2020.
The respondent's antecedents
Personal antecedents
The respondent is 58 years old. Justice Jenkins summarised his background in her decision on the first application in 2013.[3] I will not repeat what her Honour said, but would add the following.
[3] See Director of Public Prosecutions for Western Australia v Dunne [2013] WASC 359 [13] ‑ [17].
First, the respondent now lives with his mother. She is 89 years old, and he has been her carer for some years. He now also has some contact with one of his siblings, but that contact is not likely to continue should his mother die. The respondent is not employed but receives a disability support pension and funding through the National Disability Insurance Agency.
Second, the respondent was on anti-libidinal medication (Androcur) from 2013. Test results suggested that the respondent's testosterone levels had not been effectively suppressed since 2014.[4] He remained on that treatment, however, until tests in 2019 disclosed that he had a bone density consistent with a diagnosis of osteoporosis, with the associated risk as 'an absolute contraindication' to continuing that treatment.[5] The treatment was ended in March 2020.
[4] Book of Materials 736.
[5] Book of Materials 720.
The respondent continues to take anti-anxiety medication at a dose that often has anti‑libidinal effects.[6] He continues to report a decreased libido, after the cessation of Androcur.
[6] Book of Materials 686, 736.
Third, the respondent suffers from a significant cognitive impairment. This affects his ability to grasp complex or abstract concepts. He has limitations in areas of literacy, comprehension, and retention.[7] He told Dr Yewers of his difficulty understanding all of the conditions of his supervision order and that he asked police to read conditions to him for the first two years of the order to ensure he understood and remembered them.
[7] Book of Materials 678.
Fourth, there is now evidence of the respondent's willingness and ability to comply with a supervision order. He has complied with his reporting regime throughout the term of the order and, until his arrest on 7 February 2022, reported on a fortnightly basis. The respondent was described as engaging consistently during those sessions, and demonstrating a willingness to be forthcoming in discussing topics such as his activities, sexual functioning, and social interactions. He has remained subject to electronic monitoring.[8]
[8] Book of Materials 735.
Since 2013, the respondent has completed approximately 86 sessions of individual psychological counselling with three different psychologists. There was no counselling between 21 December 2017 and November 2018, when the respondent requested to recommence psychological intervention and engaged in a further 10 sessions between 6 December 2018 and 3 September 2019. That intervention was ceased 'due to positive progress made, the absence of future intervention targets and [the psychologist] commencing a period of leave'.[9]
[9] Book of Materials 735.
The respondent has been subject to regular and random urinalysis testing and all results have been negative.
The respondent engages in social activities through a social networking organisation for mature gay and bisexual men.
Fifth, between 2013 and October 2019, the respondent was issued with nine warning letters regarding compliance, but no incident was considered sufficient for contravention proceedings to be brought.
Finally, the respondent was arrested on 7 February 2022 on two charges of contravening a requirement of his supervision order relating to the possession of non‑indecent images of children. He was remanded in custody from 7 February 2022. On 3 March 2022, the respondent pleaded guilty and was fined.
Offending history
The respondent has been convicted of offending against three young males. The victims were known to him. Two of them were family members.
The respondent's sexual offending began in 1988. In approximately April or May of 1988, the respondent sexually assaulted a 10‑year‑old male child whom he was babysitting. The offence was not reported to authorities at the time. He was not convicted of this offence until 4 August 2006.
On various dates between August 1994 and September 1997, the respondent sexually offended against another male child, who was 14 years old at the time that the offending commenced. The offending was accompanied on some occasions with threats or by physical abuse.
On 10 March 1998, the respondent pleaded guilty to 112 offences against that victim: 40 counts of indecent dealing, 23 counts of sexual penetration, two counts of threatening to kill, 22 counts of indecent assault and bodily harm, nine counts of sexual penetration and bodily harm, 13 counts of indecent assault, two counts of attempted sexual penetration, and one count of attempted sexual penetration with bodily harm. He was sentenced to imprisonment for 10 years.
In December 2005, after the parole period for his previous sentences had expired, the respondent committed four sexual offences against a 14‑year‑old male with a learning disability.
On 4 August 2006, the respondent was convicted of the offences committed in 2005 and also those committed in 1988. He was sentenced to 7 years and 6 months' imprisonment.
The respondent was refused parole and his sentence was completed on 4 June 2013.
In September 2013, the respondent was placed on a supervision order and subject to extensive restrictions by the conditions of that order. His ability to substantially comply with that order over the following eight years is relevant to whether the respondent should be found to now be a high risk serious offender and be subject to a further restriction order.
The s 74 Reports
Dr Wynn Owen
Dr Wynn Owen is a medical practitioner and a Fellow of the Royal Australian and New Zealand College of Psychiatrists, with experience in forensic psychiatry through work in public and private practice.
Dr Wynn Owen interviewed the respondent at Hakea Prison while he was on remand for the recent contraventions of his supervision order. He had previously reported on the respondent in 2020.
Dr Wynn Owen reported on his risk assessment, conducted by using a combination of actuarial tools (STATIC‑99R), structured assessment guides (the Risk for Sexual Violence Protocol (RSVP)), and clinical assessment.
The STATIC-99R assessment would place the respondent in a well above average risk range. The STATIC‑99R score, by itself, is of limited value in assessing the risk of an individual respondent as it does not differentiate between those with the same score who would be charged or convicted of a new offence and the majority who would not.
In the case of the respondent, it is also necessary to have regard to the period of over eight years he has been in the community in which he has not committed any further sexual offence. That period would otherwise be a relevant factor in the STATIC‑99R scoring. Dr Wynn Owen reported, however, that the published research does not allow differentiation between those under high levels of supervision, and those released without constraint.
The assessment using RSVP is more 'personalised'; while it is also directed to factors which have been found to be associated with an elevated risk of future offending, it requires a degree of evaluation or professional judgment. The RSVP assessment also considers factors which are not associated with an increased likelihood of offending, but with the likelihood of escalation in violence, the likelihood of physical and psychological harm to any future victim, and factors which present specific problems for management.
Dr Wynn Owen summarised his assessment in this way:
The respondent is a 58-year-old man who has significant neurodevelopmental cognitive impairment with concomitant areas of impaired functional capacity. Notwithstanding this he has sustained long periods of employment and independent living.
He has long-standing deviant sexual thinking with a particular focus on underage teenaged boys, and victims between the ages of 10 and 16 years. His intellectual impairment, with concrete thinking, poor problem‑solving, limitations to moral understanding and impaired empathy, is a major contributor to his sexual offending which is been perpetuated by inability to control and/or resist ongoing sexually deviant thoughts and behaviours. High sex drive, sexual preoccupation, increased deviant sexual thinking under stress and sex as coping are relevant factors. The respondent's intellectual impairment has limited his capacity to gain from criminogenic intervention.
The respondent currently presents as showing awareness of some high risk situations, having developed some, mainly distraction based, coping strategies and as having demonstrated appropriate help seeking behaviour when under duress. He has not reoffended since release in 2013 however he has not demonstrated, nor been given the opportunity to demonstrate, the capacity to self-manage risk while not under the significant surveillance and constraint of a DSO/HRSO supervision order.
Dr Wynn Owen expressed the opinion that the respondent still presents a high risk of committing a serious sexual offence if not subject to restriction, based on the actuarial factors, and also the presence of ongoing sexually deviant thinking and his intellectual impairment. He further considered that the death of the respondent's mother will be a particularly critical time and elevate the risk of reoffending.
Should there be further offending, it is likely that the victim would be outside the family, due to the imitations on contact with his family and their awareness of the risk. In Dr Wynn Owen's opinion, offending could occur within a short time of supervision ending, and the loss of his mother would be a significant event likely to be associated with an increased risk.
Given the nature of the offending, which has in the past been at the more serious level of conduct, the age of a likely victim, and the possibility of use of force, it is likely a victim would suffer serious harm.
Dr Wynn Owen considered that a period of five to ten years further supervision was required, during which the respondent could progressively self‑manage while still subject to supervision.
Dr Yewers
Dr Tara Yewers is a qualified psychologist with a PhD in psychology and Master of Psychology (Counselling). Until 2018, she was employed as a Senior Counselling Psychologist in the Forensic Psychological Service of the Department of Justice. Since 2018 she has worked in private practice and undertakes forensic psychological assessments on a contract basis.
Dr Yewers interviewed the respondent on 27 January 2022, before he was arrested for the offences of breach of his supervision order.
Dr Yewers specifically addressed the respondent's response to his supervision order. Although, before his recent arrest, he had nine instances of non‑compliance, they were regarded as technical rather than risk related.
There has been some easing of the respondent's conditions of supervision over time, including a decrease in reporting requirements to fortnightly meetings, and relaxation of conditions related to curfew, keeping a diary, and the hours in which he is permitted to visit shopping centres.
Dr Yewers conducted a risk assessment using STATIC‑99R, and also the Violence Risk Scale - Sexual Offending (VRS‑SO), and the Psychopathy Checklist-Revised (PCL‑R). Dr Yewers also reported that the respondent currently falls within the 'well above average risk' score. The bluntness of the actuarial instrument is shown by the fact that the respondent's risk category remains unchanged until he reaches the age of 60 in August 2023, but he will then fall into the 'above average risk' category if he does not offend between now and then.
Dr Yewers also commented on the decrease in risk after eight years of being offence free, but the difficulty of applying that factor to someone who has been subject to close monitoring and restrictions on their freedom.
The VRS-SO has seven historical and 17 dynamic (changeable) variables which are rated to determine the extent that they are associated with an individual's sexual offending. Each of the factors is rated on a four point scale (from 0 to 3), with a rating of three indicating the risk factor is present, significant, and related to sexual recidivism risk. Dr Yewers assessed the respondent by reference only to the dynamic variables, to combine that assessment with historical factors under the STATIC‑99R.
The respondent was rated '3' on only two matters: a clear and long‑standing pattern of interest in underage males, and an item headed 'intimacy deficits' under which an individual's capacity to form and maintain intimate relationships is assessed.
The assessment by reference to the Psychopathy Checklist found that it was not relevant to his offending.
In the summary, Dr Yewers assessed the respondent as having an above average risk of further offending, predominantly due to the unchangeable factors measured by the STATIC‑99R.
Of dynamic factors, the primary risk arises from his continuing sexual interest in underage males. Because that interest is both long‑standing and unlikely to change, even though it has not resulted in any offending conduct for the last eight years, it requires management. While Dr Yewers considered the respondent's risk currently appears to be adequately managed, an increase in his sex drive, or a change in his stable supports, may contribute to a risk situation.
In summary, the evidence of both experts who provided reports under s 74 support findings that there is an above average risk of further offending, should the respondent not be subject to continuing restriction, and that the nature of any further offence would likely involve sexual offending against an underage male. Both reports support a finding that any risk is currently managed adequately. Both experts said that the respondent required a further period of supervision, although they differed as to the length of that period.
The other factors in s 7
Any other medical, psychiatric, psychological or other assessment relating to the respondent
Presentence and psychological reports were prepared for the purpose of sentencing in 1998 and 2006. Section 7 requires the court to have regard to them. They do not add significantly to the reports of Dr Wynn Owen and Dr Yewers, or to my assessment of the respondent's risk of reoffending.
In 2013, the respondent was assessed by two psychiatrists for the purposes of the application under the Dangerous Sexual Offenders Act. The court on that occasion was also provided with a Treatment Options Report of Dr Dylan Galloghly, Clinical and Forensic Psychologist.[10]
[10] Book of Materials 552.
The reports to the court under s 37 of the Dangerous Sexual Offenders Act were prepared by Dr SD Febbo and Dr Bryan Tanney.
Because of the age of the reports and the availability of more current assessments, it is sufficient, for present purposes, to briefly summarise the conclusions of the reporting psychiatrists and the factors identified by them that bear on the present level of risk for further offending by the respondent.
Dr Febbo noted a long period of offending against underage boys, including - in the offences committed between 1994 and 1997 - offending that was 'particularly frequent and persistent'.[11]
[11] Book of Materials 597.
Dr Febbo considered the respondent's sexual deviance to be 'well entrenched, intense, and persistent'. He opined that the respondent's cognitive impairment had limited his ability to obtain benefit from the treatment offered to him to date. The nature and persistence of the offending suggested little capacity for victim empathy.
Dr Tanney's report was largely consistent with Dr Febbo. He noted that the respondent was cooperative to supervision and risk management within the community, but there were clear issues that were modifiable and required management.
The respondent had, by then, undergone treatment in relation to his sexual offending, including intensive group based treatment. Dr Galloghly reported that the respondent had apparently made treatment gains, but may have had difficulty in retaining gains and developing insight.
The respondent was assessed again in 2020, by Dr Wynn Owen and by Catherine Korda, a forensic psychologist with the Department of Justice.
Dr Wynn Owen's assessment in 2020 assumed continuation of the current level of supervision and monitoring. In effect, as the previous years had shown, he considered the respondent's risk of re‑offending is manageable if he is supervised.
Ms Korda identified areas for concern arising from the respondent's continued sexual attraction to teenage boys, and limited relationship history. Ms Korda considered it unlikely that the respondent would make significant gains from further psychological counselling, given the extensive intervention to date, and his intellectual limitations. She said, 'the emphasis should be on assisting him to maintain his existing skills and transition to and manage greater freedom within the community … in preparation for the potential expiration of his Order'.[12]
Information indicating whether or not the respondent has a propensity to commit serious sexual offences in the future
[12] Book of Materials 657.
The respondent has a history of sexual offending against three boys over a period of 17 years. The most recent offences were committed after he had served a term of imprisonment, in which he participated in offender treatment programs, and successfully completed parole.
Even though the respondent has not offended since his release in 2013, Dr Wynn Owen and Dr Yewers both expressed the opinion that the respondent still has a propensity to commit serious sexual offences in the future. The respondent's ability to control his behaviour, without supervision, appears to be limited by his cognitive impairment.
It is necessary to recognise the ability of the respondent to remain offence free since his release, not as a reward for that behaviour but as concrete evidence of his ability to live in the community without offending while supervised. That is, the respondent's propensity to offend can be managed, but the evidence does not support a finding that, at least at present, he can manage it without supervision.
Whether or not there is any pattern of offending behaviour on the part of the respondent
The victims of the respondent's offending were a 10‑year‑old boy, a boy aged 14 years at the time of the first offending (the offences continued over some years), and a boy aged 14.
The victims were all known to the respondent – two family members and one befriended by him. The offences against family members involved the use of the respondent's authority as an older relative.
The offences committed between 1994 and 1997 regularly involved the respondent driving the victim to a secluded place when he was giving the victim a lift to or from work, sport or school.[13]
[13] Book of Materials 515.
In the 2005 offending, there was a degree of planning required to have the victim go to an isolated place, where the abuse occurred.
The sexual acts frequently included penetration and were at the more serious end of the range of offences of their type.
In each case there has been some degree of threats or coercion used by the respondent. In the offending between 1994 and 1997, the respondent used threats and on one occasions a threat with a knife. On other occasions the victim was assaulted, doing bodily harm.
In the most recent offending, the respondent struggled with the victim and forced him to the ground, causing extensive but minor injuries.[14] The victim was able to fight back and the respondent then stopped.
[14] Book of Materials 221.
The respondent's offending is not related to abuse of alcohol or other drugs.
Any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation programme
The respondent cooperated in undertaking courses and underwent counselling while he was imprisoned. He has engaged in substantial psychological counselling while in the community. When he was subject to parole he complied with his parole conditions and did not reoffend. However, he offended after the completion of his parole period. While on his supervision order he has substantially complied for over eight years.
The treatment undertaken by the respondent, together with the supervision to which he has been subject, sufficiently mitigated the respondent's risk of re‑offending that he has not offended during the period of supervision.
It is likely that the medications the respondent was taking contributed to that outcome. His compliance with that medication regime indicates the respondent's desire to address the causes of his offending behaviour.
Whether or not the respondent's participation in any program has had a positive effect on him
At the time of the making of the order in 2013, the trial judge found that the respondent's participation in programs had a positive, but limited, effect on him. It must now be recognised that he has committed no further sexual offences since his release. There are several factors which could have contributed to that outcome. It is not possible to say with any certainty to what extent it is the result of participation in programs, the anti‑libidinal medication and antidepressant medication, or his ability to comply with a supervision regime.
The respondent's antecedents and criminal record
I have detailed the respondent's antecedents and criminal record earlier in these reasons. Until the two recent convictions for breach of his supervision order, none of which is a serious offence under the Act (or would be an offence of any kind but for the conditions of supervision), his criminal record is confined to the sexual offending against the three victims. The most recent offending was approximately 17 years ago.
Despite the large number of convictions, all but five are for offences in relation to one victim over a protracted period, and four of the others were committed in a single incident.
The risk that if the respondent were not subject to a continuing detention order or a supervision order that he would commit a serious sexual offence
The psychiatrist and psychologist who prepared reports pursuant to s 74 each assessed the respondent as presenting an above average level of risk. Dr Wynn Owen, in particular, reported the potential for an increased level of risk should the respondent lose his primary support on the death of his mother.
The respondent's recent convictions for breach of supervision conditions were for possession of pictures of children. Although the pictures were not indecent, the breach must be taken into account together with the respondent's admitted continued interest in prepubescent males.
Although the respondent has participated extensively in treatment programs, including individual consultation, his gains have been limited by his cognitive impairment.
The need to protect members of the community from that risk
Should the respondent reoffend, the victim would most likely be an underage male. There is a risk that offending would include serious offending as defined in the Act, and would continue until it was detected.
Conclusion
Section 7(1) provides:
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
The nature of the findings the court is required to make do not permit direct evidence. The court must infer, from all of the admissible evidence, whether it is satisfied to a high degree of probability that it is necessary to make the restriction order. As in other areas where conclusions are to be drawn from circumstantial evidence, the standard of proof is applied on all of the facts found and at the final stage of the reasoning process.[15]
[15] See, for example, Palmer v Dolman [2005] NSWCA 361 [41].
The court is required to act on evidence that is 'acceptable and cogent'. I am satisfied that the evidence of the two experts, in the context of the evidence of earlier assessments and what is known of the respondent's offending conduct, is strongly probative of the risk that the respondent would commit further sexual offences if not subject to some supervision. It is not possible to quantify that risk: the percentage risks derived from STATIC‑99R identifies the risk within a group; the more individual assessment from the structured clinical judgments are more persuasive in identifying factors that bear on the risk that this respondent may re‑offend.
Whether the risk is unacceptable, so that it is necessary to make a restriction order to ensure adequate protection of the community, turns also on an assessment of the nature of the risk. The respondent's offending conduct was against vulnerable, underage victims; in relation to the second victim it was persistent; and the offending in relation to two of the victim was accompanied by violence or the threat of violence. It appears that the community may be adequately protected by supervision, and a degree of restriction of the respondent's freedom which is well short of continued detention. I am satisfied that the level of risk, without supervision, is not acceptable.
The respondent has substantially complied with the existing supervision order. Both experts favoured continuing supervision, but with an easing of or greater flexibility in the conditions to better enable the respondent to self‑manage. For example, Dr Wynn Owen said in his evidence at the hearing:
I believe flexibility is important. I think that the people in [the respondent's] situation need to be given the opportunity, if they have already demonstrated the ability to manage a risk at a certain level, to then show that they can risk manage more themselves. Whether it's an order or whether the condition is written such that it is at the senior community correction officer's discretion, it is that degree of flexibility which I think is important, particularly in relation to the management of high risk situations.[16]
[16] ts 100.
Dr Yewers said, in her report:
The broad aim of community supervision should be to promote and reinforce self-management, the graded reduction in monitoring and the strictness of conditions. He should therefore be subject to a routine supervision regime. If possible, conditions such as GPS tracking and the requirement for pre-approval for activities/events should be removed. However, [the respondent] should continue to be prohibited from unsupervised contact with children or any involvement in activities that are primarily targeted at children.[17]
[17] Book of Materials 703.
The respondent has a continued interest in young males, and has other risk factors relating to intimacy deficits and lack of support in the community, other than from his mother and some other elderly relatives. I am satisfied that the strictness of conditions should be reduced so as to promote and reinforce self‑management, but that process should be subject to continued supervision.
Once that finding is made, there are two consequential questions: first, what conditions of supervision should be imposed; and second, for how long should the supervision order continue.
I am satisfied that it is no longer necessary that the respondent be subject to a supervision order with many, generally expressed conditions.
It is a standard condition that must be imposed in any supervision order that the respondent be under the supervision of a Community Corrections Officer and comply with any reasonable direction of the officer. In her evidence at the hearing, Ms Nicholls was asked, in relation to the standard condition that the respondent comply with the reasonable direction of a Community Corrections Officer, how those directions came to be made. She said:
those are made in consultation with the risk management team. So, that comprises sex offender management squad representatives from WA Police; management staff from the Department of Justice; and senior community corrections officers; in addition to forensic psychological services – psychologists.[18]
[18] ts 122.
Directions which are specifically tailored to the respondent and his current living conditions, as he moves towards self‑management, may be more consistent with effective supervision at this time than a list of conditions imposed by the court.
The Act requires that a supervision order contain the standard conditions in s 30. Even within those conditions, there is room for flexibility. For example, while the court must order that the respondent be subject to electronic monitoring under s 31, that section permits monitoring to be suspended by a Community Corrections Officer when that officer is satisfied that it is not necessary.
I am satisfied that the supervision order should contain the standard conditions required by the Act, as set out at page 742 of the Book of Materials, with one amendment: condition 2 should be expressed in this way:
Report to and receive visits from a Community Corrections Officer at first fortnightly and then at places and times directed by the Community Corrections Officer.
Of the other conditions set out in Ms Nicholls report, the following numbered conditions should be included: 8, 14,[19] 16, 19, 29. In my opinion, supervision and directions made pursuant to the standard conditions are otherwise sufficient.
[19] Having regard to the offending in February 2022.
It is difficult to assess for how long the supervision should continue. Dr Yewers suggested two years, Dr Wynn Owen substantially more. I will order a period of three years, on the basis that it should be sufficient for an assessment to be made of the respondent's progress toward self-management. Section 36 of the Act permits a further application for a restriction to be made in the final year of that period if it should be assessed as being too short.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TB
Associate to the Honourable Justice Allanson
7 APRIL 2022
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