The State of Western Australia v GBT - [2017] WASC 337

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- GBT [2017] WASC 337

CORAM: MARTINO J

HEARD: 15 NOVEMBER 2017

DELIVERED : 24 NOVEMBER 2017

FILE NO/S: DSO 1 of 2017

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
GBT
Respondent

Catchwords:

Criminal Law - Dangerous Sexual Offenders Act 2006 (WA) - Application for div 2 orders - Whether respondent a serious danger to the community - Whether to make indefinite detention order or supervision order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Respondent ordered to be detained in custody for an indefinite term for control care and treatment

Category: B

Representation:

Counsel:

Applicant: Mr B Meertens
Respondent: Mr T F Percy QC

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)

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

Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235

MARTINO J: In 2007 the respondent was convicted after trial of 28 sexual offences against children. On 30 November 2007 he was sentenced to a total of 10 years and 4 months imprisonment for those offences, with the sentences deemed to having commenced being served on 18 August 2007. He was made eligible for parole. The Prisoners Review Board has not released him on parole.
On 21 June 2017 the applicant applied for orders under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) in relation to the respondent. That application was heard by Jenkins J. On 5 September 2017 her Honour held that she was satisfied that there were reasonable grounds for believing that the court might, under s 7(1) of the DSO, find that the respondent is a serious danger to the community and fixed 15 November 2017 for the hearing of the application for a div 2 order. Her Honour ordered that the respondent be examined by two qualified experts, Dr Peter Wynn Owen psychiatrist and Ms Chantelle Place psychologist, and that he be detained in custody until the determination of the application.
The evidence on the hearing of the application for a div 2 order comprised two volumes of materials relating to the respondent, including the report of Dr Wynn Owen dated 26 October 2017, the report of Ms Place dated 25 October 2017, a proposed Dangerous Sex Offender Management Plan dated 30 October 2017 prepared by Ms Joanne Collyer, Senior Counselling Psychologist and a Community Supervision Assessment report dated 31 October 2017 by Ms Lisa Rathmann, Senior Community Corrections Officer. Dr Wynn Owen, Ms Place, Ms Rathmann and Ms Collyer supplemented their reports with oral evidence. The respondent did not give or adduce any evidence.
I have found that the respondent is a serious danger to the community. I have decided to order that the respondent be detained in custody for an indefinite term for control, care or treatment. While he is detained in custody the respondent should receive individual psychological treatment to address his deviant sexual interest in children. These are the reasons for my conclusions.

The respondent's history of offending

The respondent has old summary convictions for offending, including traffic offences, three offences of driving under the influence of alcohol and two offences of hindering police.

Offences in the period January 1991 to January 2001

In the period from January 1991 to January 2001 the respondent committed 28 offences against seven children, one of whom was his daughter L. These are the offences for which the respondent was sentenced on 30 November 2007.
The offences occurred at the respondent's home when his wife was absent and the respondent had the care of his two daughters. Friends of his daughters visited the family home.

Offences committed against the respondent's daughter L

The respondent committed eight offences of indecently dealing with his daughter L in the period from 1991 to 1999. L was six years old at the commencement of the period and 15 years old at the end of the period.
The first offence occurred when the respondent was playing a game of chasey with L and her friend B. The indecent dealing involved pulling L's knickers down and smacking her on the bottom repeatedly. L could feel the respondent's erect penis on her vagina as this occurred.
In the second and third offences against L the respondent told her to lie on her stomach on a bed. The respondent lay on top of her and slid up and down so that his erect penis came into contact with the bottom of her vagina.
The fourth offence against L occurred after a game of chasey involving L and B who had been hiding in a cubby house outside. According to the rules of the game set by the respondent this was not permitted. When the respondent found the girls, he took L to his bedroom and lay on her, rubbing his penis on the outside of her vagina.
The fifth offence against L involved L and her friend N. L and her friend had been playing with dolls. The respondent entered the room and began tickling the girls. This was followed by a game of chasey. When the respondent caught L he pulled her pants down and smacked her on the bottom. As he did so he touched her on the bottom of her vagina.
The sixth offence against L occurred when she was 14 years old. It involved L and her friend LF. They had been playing chasey with the respondent and when he caught the girls he sat astride L with his penis in close proximity to her face and tapped with his fingers on her chest.
The respondent committed the seventh offence against L when she was 15 years old. It involved L and her friend K. They were in L's bedroom when the respondent entered the room and began tickling L. He then lay on top of her and rubbed his penis on her vaginal area.
The eighth offence against L consisted of exposing his penis to her when she was sitting in the family lounge room.

Offences committed against B

B was a friend of the respondent's daughter L. The respondent committed seven indecent dealing offences against B in the period from 1991 to 1992. B was six years old at the time of the first offence and seven years old at the time of the seventh offence.
The first offence against B occurred after the game of chasey which preceded the first offence against L. The respondent sat B on his lap and smacked her on the bottom repeatedly. B could feel the respondent's penis make contact with her vagina on the outside of her underpants.
The second, third, fourth, fifth and sixth offences against B consisted of the respondent lying on top of B and rubbing his erect penis on her back. The respondent ejaculated on B's back in two of those offences.
The seventh offence against B occurred after the game of chasey which preceded the fourth offence against L. The respondent took B to his bedroom, rolled her onto her stomach on the bed and rubbed his erect penis on her lower back.

Offence committed against R

R was a friend of the respondent's daughter L. The respondent committed an indecent dealing offence against R when she was ten years old. After a game of chasey, the respondent positioned R over his lap, bringing his penis in contact with her genital area as he smacked her on the bottom.

Offence committed against LF

The offence committed against LF was preceded by the game of chasey that preceded the sixth offence against L. LF was 14 years old. The respondent sat astride LF with his penis in close proximity to her face and tapped with his fingers on her chest.

Offence committed against RA

RA was a friend of the respondent's daughter L who stayed at the respondent’s home overnight. The respondent indecently dealt with RA by kissing her on the lips. She was 16 years old at the time.

Offence committed against N

N was a friend of the respondent’s daughter L who stayed at the respondent's home overnight. The respondent caught N while playing a game of chasey. He then indecently dealt with her by pushing her onto his daughter D's bed, on her back, lying on top of her and rubbing his penis on her vagina. N was then 14 years old.

Offences committed against K

The respondent committed nine offences against K, who was a friend of the respondent’s daughter L. The offences occurred when K was 14 or 15 years of age.
The first offence against K occurred when the respondent's wife and L went to a fast food restaurant to get a takeaway evening meal. The respondent and K were alone in the house. The respondent took K to his bedroom, removed his clothes and pulled her pants down. She asked him to stop and described feeling scared. He penetrated her vagina with his penis until he ejaculated. She described the penetration being painful and bleeding from the vagina afterwards.
The second offence against K occurred when K was staying at the respondent's home overnight. The respondent walked into the bathroom when K and L were showering together. The respondent indecently dealt with K by opening the shower curtain and squeezing K's vagina. The third offence occurred when K got out of the shower, whilst L was still showering. K went to L's bedroom to get changed. While she was there naked, the respondent walked in, pushed her back onto L's bed, removed his shorts and penetrated her vagina with his penis. She asked him to stop. He stopped when L turned off the shower.
The fourth offence against K was an offence of intentionally showing offensive material to a child under the age of 16 years. The respondent took K and L to a video store to select a video. He told them to pick a pornographic video, which they did. They returned to the house where the respondent and the two girls watched the video. The fifth offence against K occurred after the video was played. The respondent began the chasey game with K. When he caught her he rubbed his penis with her hand on the outside of his pants. The sixth offence against K occurred later that evening. The respondent entered the room where K and L were sleeping and proceeded to have sexual intercourse with K by penetrating her vagina with his penis. She asked him to stop and felt scared.
The seventh offence against K occurred when L was in hospital. The respondent collected K from her home to take her to visit L. On the way, the respondent stopped at his home on the pretext of having a shower. K was watching television, waiting for him. The respondent emerged from the shower naked and pushed K onto the lounge room floor. He penetrated her vagina with his penis and ejaculated. The penetration hurt and made her bleed. She was screaming and asking him to stop. He ignored her.
In the eighth offence against K the respondent walked into the bathroom when K was in the shower alone at the respondent's home. The respondent inserted his fingers into K's vagina.
In the ninth offence against K the respondent walked into L's bedroom when K was getting changed. The respondent asked K to lie on the bed. She refused. The respondent forced her onto the bed and penetrated her vagina with his penis until he ejaculated. She was 15 years old at the time. The penetration hurt her.

Offences committed on 11 August 2002

On 11 August 2002 the respondent committed five offences against S, a girl who was nine years old. Those offences were two offences of indecent dealing with a child under the age of 13, an offence of showing offensive material to a child under the age of 16, an offence of attempting to procure a child under the age of 16 years to do an indecent act and an offence of attempting to procure a child under the age of 16 years to engage in sexual behaviour.
At the time the respondent was living alone in a block of units, having moved in to that unit very recently, following disclosure to the respondent's wife of the respondent's sexual offending against a child at their home. S lived with her father in the same set of units.
On Sunday 11 August 2002 at around 10 am S went to the front door of the respondent's unit. She had been friends with the previous tenants of the unit.
The respondent offered S a chocolate biscuit and invited her into his unit, which she entered. Inside the respondent's unit the respondent tickled S on the outside of her clothing, smacked her softly on the bottom about ten times and played a game of chasey with her.
The first indecent dealing offence occurred when the respondent took a yellow Post‑it note and placed it inside S' underpants against her vagina. S removed the Post‑it note and placed it against the respondent's T‑shirt.
The second indecent dealing offence occurred when the respondent lifted S' T‑shirt and placed the Post‑it note between S' breasts. The respondent's hand touched S' breasts and remained there for about five seconds.
The offence of showing offensive material to a child under the age of 16 years occurred when the respondent showed S a pornographic magazine which contained pictures of naked men and women having sex, including oral sex, sexual penetration and ejaculation. The respondent described to S what each of the pictures meant.
The respondent committed the offence of attempting to procure a child under the age of 16 years to do an indecent act and the offence of attempting to procure a child under the age of 16 years to engage in sexual behaviour occurred when the respondent was showing S the pornographic magazine. He pointed to a picture of a couple touching each other's genitals and said to S that if she did that he would give her $5. S refused. The respondent then pointed to a picture of a man ejaculating into the mouth of a woman. He said to the S that if she did that he would give her $10. S refused and asked to leave. The respondent offered S another chocolate biscuit and asked her not to tell anyone about the book. S went home and told her father what had occurred. She was crying.
The respondent pleaded guilty to these offences on 12 May 2003. In his plea in mitigation the respondent's lawyer said that the offending was linked to a relapse by the respondent to the consumption of alcohol. He submitted that there was no suggestion that anything inappropriate had taken place with the respondent's daughters that the offending was out of character for the respondent.
The respondent had been referred by his lawyer to clinical and forensic psychologist Bruce Beaton. Mr Beaton conducted six sessions with the respondent and prepared a report dated 3 March 2003 in which he said that the respondent took responsibility for his offences and displayed genuine remorse and victim empathy. The respondent told Mr Beaton that he attributed the offences against S to his being intoxicated, feeling lonely and depressed as a result of his recent marriage breakdown and being sexually abused as a child. Mr Beaton expressed the opinions that alcohol intoxication and circumstantial factors were the most significant factors that contributed to the offences and that the respondent was very unlikely to reoffend.
After the entry of his guilty plea the respondent saw Ms Maggie Woodhead, a counsellor. Ms Woodhead prepared a report dated 9 July 2003. Ms Woodhead reported that the respondent demonstrated remorse and victim empathy. She said that factors that appear likely to have contributed to his offending were his being hungover and so not thinking clearly, his feeling sorry for himself, his feeling appreciative of S' friendliness, his becoming aware that he was laughing in S' company and wanting S to stay so that he could hold on to positive feelings. Ms Woodhouse agreed with Mr Beaton's opinion that the respondent was a very low risk of reoffending.
The respondent was sentenced for these offences on 15 July 2003. The sentencing judge accepted that the respondent was remorseful and that the offending had occurred at a time when the respondent was lonely and depressed and had relapsed to alcohol use. The sentencing judge referred to psychological evidence that the respondent's risk of reoffending was said to be low. The respondent was sentenced to two years imprisonment suspended for two years. The sentencing judge did not order the respondent to undergo counselling. He was satisfied that the respondent would engage in treatment voluntarily.

Offence committed in September 2003

On 17 August 2005 the respondent was sentenced, following conviction at a trial, for an offence of indecently dealing with a child under the age of 13 years by exposing his penis. The victim was a girl aged 10, E. E was friendly with the respondent's sister and lived in the next house. At the time the respondent was living with his mother and his sister. On an occasion when E was at the house at which the respondent was living the respondent asked E to rub his penis for $10 and exposed his penis to her. E refused.
The sentencing judge found that this offence occurred in September 2003, when the respondent was subject to the suspended term of imprisonment that the respondent had been sentenced to on 15 July 2003. The sentencing judge noted that despite the need for counselling having been raised at the sentencing hearing on 15 July 2003 the respondent had been unable to afford counselling. The respondent was sentenced to eight months imprisonment for the offence of indecent dealing with E and was ordered to serve 16 months of the sentence imposed on 15 July 2003. The sentences were ordered to be served concurrently.

Pending charge

On 9 June 2017 the respondent was charged with indecent dealing with a child under 13 years. The offence is alleged to have been committed between January and February 2001. He has entered a plea of not guilty to that charge. On 1 November 2017 he appeared in the Perth Magistrates Court. The prosecution was adjourned to 10 January 2018.

The respondent's childhood

The respondent was born in 1952. His parents had three children, the respondent being the second child. He has an older brother and a younger sister who has an intellectual disability and speech defects.
The respondent's father was a merchant seaman who was often away from home. When he was at home the respondent's father consumed alcohol to excess and was verbally abusive to the respondent, making him feel like a fool. The respondent's mother was the main disciplinarian in the family and would often use a strap for that purpose.
The respondent's father spent a lot of his income on alcohol and the family's finances were limited. When he was seven years old the respondent's mother began working, initially as a barmaid and later as a labourer. His older brother was 10 years old at the time and cared for the respondent and his sister and provided them with meals. The respondent has described his mother as unaffectionate and his brother as a bully who often hit him and belittled him in front of others.
The respondent was close to his sister, but often felt embarrassed for her.
When he was nine years old a male friend of the respondent's brother sexually abused the respondent in front of other boys. The respondent continues to feel the effects of that abuse, which has contributed to his low self‑esteem.

The respondent's employment history

The respondent left school after completing what is now year 10. He then completed a wood machining apprenticeship. After completing his apprenticeship he travelled to Darwin where he worked for 18 months.
The respondent then returned to Perth. He found work soon after his return to Perth. He has not had any significant periods of unemployment when he has not been in prison.

The respondent's marriage

The respondent's ex‑wife is approximately ten years younger than him. They met when the respondent was aged in his early 30s. They dated for some months. His ex‑wife became pregnant and they separated for a period. They married in 1984, after the birth of their first child. They have two daughters.

The respondent has described his marriage as being an unhappy one. His ex‑wife initiated their separation in 2002 after one of the victims he had sexually abused at their home made a complaint.

The respondent's health

The respondent has mild asthma, for which he has not needed to use medication for some time. He has no current respiratory problems.
The respondent is hepatitis C positive.He has been advised that he contracted the virus through getting a tattoo when he was aged 23 or 24 years. He was diagnosed in his 30s when giving blood. He has received interferon therapy. He does not have active hepatitis.
The respondent has type II diabetes mellitus, which was diagnosed in 2014. He manages his blood sugar with daily oral medication, diet and exercise.
The respondent has hypertension and hypercholesterolemia which are treated by appropriate medication.

The respondent's prison behaviour

The respondent is regarded as a polite and friendly prisoner. He has not been charged with any prison offences. There is only one instance of misconduct. On 18 January 2016 the respondent made a telephone call to his daughter D during which they arranged a conference call with the respondent's daughter L. That conference call occurred on 19 January 2016 and in it the respondent spoke briefly to his granddaughter who is a child.
The respondent claimed that he did not know that conference calls were not permitted in prison nor that the restrictions on him having contact with children prohibited telephone contact with children. He was issued with a verbal warning.

The respondent's participation in the Intensive Sex Offender Treatment Program

While in custody the respondent participated in the Intensive Sex Offender Treatment Program (ISOTP) from 25 June 2012 to 18 December 2012. A report on his participation in the ISOTP dated 14 February 2013 was prepared by Mr Todd Ellery and Ms Bernadette Wilson, Senior Programs Officers.
The ISOTP is a 321 hour treatment program which targets evidence based criminogenic needs of sexual offenders in a group format. The ISOTP in which the respondent participated was reduced to 195 hours due to having a reduced number of participants (seven instead of 12).
In the ISOTP the respondent continued to deny committing offences against one victim, stating that she might have been abused by someone else. In the summary and recommendations section of the report this victim was identified as being his daughter.
The respondent completed the ISOTP. He identified the core beliefs relevant to his decision to offend sexually as being low self‑esteem, poor communication skills, a fear or interacting with females his own age and a feeling that the world was not fair. He identified the immediate factors salient to his decision to offend sexually as being distorted views on child sexuality, a lack of intimacy in his life, unmet needs for control and his distorted perception of the children's consent.
Mr Ellery and Ms Wilson reported that the respondent met all program objectives, made some treatment gains, was observed to gain greater understanding of the factors underlying his offending and demonstrated greater acceptance of responsibility for his behaviour. They reported that he had no outstanding treatment needs within a custodial setting. They also said that the respondent would continue to benefit from ongoing relapse prevention counselling and ongoing psychological counselling to build upon the gains made within the program, particularly in the areas of self‑esteem, coping and communication styles and challenging unhelpful thinking styles.
Mr Ellery and Ms Wilson reported that the respondent's Static‑99 rating placed him in the medium to high risk category.

The evidence of Dr Wynn Owen

Dr Wynn Owen wrote his report dated 26 October 2017 after conducting three interviews with the respondent.
The respondent admitted all of the offending for which he has been convicted, except the offences of sexual penetration of K.
The respondent informed Dr Wynn Owen that when he committed the offences he was aroused and seeking sexual contact. He said that he believed at the time girls may be getting enjoyment from the contact and that this belief was reinforced because they returned to the house.
The respondent also acknowledged that his actions and behaviour against S in 2002 were designed to allow him to have sexual contact with her.
The respondent told Dr Wynn Owen that K must have fabricated the offences he committed against her as a way of contriving to end the sexual abuse she was suffering from her father.
The respondent informed Dr Wynn Owen that he is now aware of the harm he has caused his victims through offending, their likely distress at the time and the effects on their ability to relate to and trust others and to form trusting relationships with men. He said that he realises that these effects can be lifelong and said that he is very sorry.
In Dr Wynn Owen's opinion the respondent did not articulate an understanding of the adult – child relationship in terms of their relative responsibility, the child's ability to make decisions or the likely impact on a child of a request made or implied by an adult.
Dr Wynn Owen diagnosed the respondent as having a paedophilic disorder and a cluster B personality disorder with antisocial and avoidant traits. A paedophiliac disorder is a personality disorder. It is not a treatable illness.
Dr Wynn Owen undertook a Static‑99 R risk assessment. The respondent's total score placed him in Risk level IVa, indicating an above average risk of being charged or convicted of another sexual offence.
Dr Wynn Owen also undertook a review using the Risk for Sexual Violence Protocol structured clinical framework.
He found the risk factor chronicity of sexual violence to be present. The respondent continued to offend against his daughter and her friends over a 10 year period then, following the breakdown of his marriage due to his wife becoming aware of his behaviour, he offended against S within 2 days of leaving home and then he offended against E while under a suspended sentence for sexual offending. The risk factor chronicity of sexual violence is one of the factors most reliably associated with recidivistic sexual violence.
Dr Wynn Owen also found the risk factor diversity of sexual violence to be present. Diversity in this context means acts which vary in their nature and in victim selection. The respondent has offended against prepubescent and adolescent girls, a lineal relative and strangers. Offenders who commit multiple types of sex offence are at an increased risk of future sexual violence.
In Dr Wynn Owen's opinion the respondent's offending also demonstrates the risk factor escalation of sexual violence, escalating from sexual contact through clothing in the guise of play to forced sexual penetration. While evidence does not support this risk factor being associated with an increased risk of future sexual violence it does provide an indication of the nature and severity of future offending should it occur.
Dr Wynn Owen also found the risk factor physical coercion in sexual violence to be present. During his sexual penetration offences K asked the respondent to stop, screamed in pain and indicated that she was hurt and bleeding, however he persisted in offending. The respondent was physically much larger and stronger than the girls he abused. This risk factor is not correlated with recidivistic sexual violence but may be a marker for underlying attitudes supporting or condoning sexual violence.
In Dr Wynn Owen's opinion the risk factor psychological coercion in sexual violence was present in the form of grooming, breach of trust, abuse of authority and enticement. While there is limited evidence demonstrating a link between psychological coercion and future risk of sexual offending in Dr Wynn Owen's opinion it should be considered carefully as a risk management concern.
Dr Wynn Owen found the risk factor extreme minimisation or denial of sexual violence to be present. The respondent denies all sexual penetration offences for which he has been convicted. In the past he has initially denied other offending, subsequently admitting to the offending but with minimisation. There is not strong evidence to support an association between denial or minimisation and recidivist sexual offending but it is an indicator of lack of empathy or remorse and can also indicate attitudes that condone or support sexual violence.
Dr Wynn Owen found the risk factor of attitudes that support or condone sexual violence was probably present on the basis of the respondent's protracted offending during which time he justified the behaviour to himself, his continuation of the behaviour after becoming aware that one of his victims had disclosed to his wife and his further continuation of offending while under a suspended sentence for sexual offences against a child.
While the respondent does not acknowledge paedophilia Dr Wynn Owen consider that it is present. It is commonly associated with cognitive distortions relating to the acceptability of adult child sexual contact.
The risk factor of problems with self‑awareness is present in Dr Wynn Owen's opinion. Effective self‑awareness enables individuals to better understand and manage their limitations. Failure to perceive one's own risk is an important dynamic factor in risk of future sexual offending.
In Dr Wynn Owen's opinion the risk factor of problems with stress or coping is present. This reflects the extent to which an individual's psychological adjustment is unstable or susceptible to external events and occurrences. This was evidenced in the respondent's binge drinking after the separation from his wife following the disclosure of his sexual offending against his daughter and her friends. He then offended against S. Family and public awareness of the respondent's offending and paedophilia has remained a significant and persistent stressor.
The respondent has some problems resulting from his child abuse when he was sexually abused on one occasion by a teenage male at nine years of age, although there is not clear evidence that he has suffered serious problems from this abuse so the risk factor is possibly present in Dr Wynn Owen's opinion. Evidence indicates that child abuse is a factor associated with criminality, non‑sexual violence and sexual violence.
Sexual Deviance is a risk factor that is present in the form of paedophilia. While not all individuals with sexual deviance will commit sexually violent crimes those who have done so are more likely to sexually offend in the future.
In Dr Wynn Owen's opinion the respondent does not have a psychopathic personality disorder, but he does meet the criteria for dyssocial personality disorder, as he has three of the operational criteria for that disorder, namely:
(1)callous unconcern for the feelings of others, gross and persistent attitude of irresponsibility and disregard for social norms, rules and obligations;
(2)incapacity to experience guilt and to profit from experience; and
(3)marked proneness to offer plausible rationalisations for the behaviour which has brought him into conflict with society.
The respondent does not have a major mental illness, in Dr Wynn Owen's opinion.
In Dr Wynn Owen's opinion the respondent does not have an alcohol use disorder. He has three old convictions for driving under the influence of alcohol, but he has not experienced symptoms of psychological dependence. He has demonstrated excellent control of his alcohol intake through his married years. His employment record is excellent. While he personally attributes some of his offending behaviours to alcohol the pattern of his use suggests that this is not a significant factor in Dr Wynn Owen's opinion. At times of extreme stress he has used intoxication as a coping strategy. The risk factor is partially present and alcohol use should be addressed as part of any therapeutic intervention.
The risk factor of problems with intimate relationships is present in Dr Wynn Owen's opinion. The respondent reported poor communication with his wife throughout their relationship. For the last ten years of the relationship the respondent obtained intimacy and sexual satisfaction from children rather than his wife. In describing the two significant relationships prior to his marriage the respondent described relationships lacking intimacy or attachment.
The risk factor of problems with non‑intimate relationships is also present. After the end of his marriage the respondent did not form any adult friendships of note, nor did he maintain many friendships from his pre‑married days. A lack of positive prosocial relationships is one of the most common features associated with recidivism in sex offenders according to Hanson and Harris, the authors of the Static‑99R.
The risk factor of problems with planning is present. The respondent offended within two days of being forced to leave the family home following disclosure of his sexual offending by a victim. Having been convicted of the offences against S the respondent reoffended against E.
The risk factor of problems with treatment is present. Dr Wynn Owen found this to be present both in an absence of treatment prior to the protracted historical offending and then an inability to benefit from the intervention of counsellors, and reoffending. Dr Wynn Owen noted that while the respondent said that he was unable to afford treatment after the convictions for offending against S the respondent was gainfully employed and living rent free at his mother's house.
The risk factor of problems with supervision is present. This is evidenced by offending while on a suspended sentence.
The Static‑99 estimates that offenders with the same score as the respondent have an 11% likelihood of reoffending within five years of release (including supervised release). In Dr Wynn Owen's opinion the presence in the respondent's case of dynamic risk factors outside the Static‑99 including sexual deviance (paedophilia), intimacy problems, problems with stress, problems with coping, social isolation and outstanding treatment needs suggest that the Static‑99 estimate is a minimum estimate of that risk.
In his report Dr Wynn Owen said at page 39:
Individuals who have completed a Sex Offender Treatment Program are less likely to reoffend in future however it is questionable as to whether [the respondent] has completed a program as he was only offered 60% of the full program, it is not apparent how this affected content however as these programs also rely on the quality and duration of the peer interaction I do not regard the 2012 Bunbury ISOTP as having been completed.
However in cross‑examination Dr Wynn Owen gave evidence that since writing his report he had received some further information about the content of the ISOTP and the effect of the reduced number of participants. Dr Wynn Owen no longer holds the view that because the ISOTP which the respondent undertook consisted of a reduced number of hours it follows that the program was not completed.
It is Dr Wynn Owen's opinion that the respondent presents a significant risk of serious sexual reoffending if not subject to continuing detention or a supervision order.
Dr Wynn Owen recommends that if a continuing detention order is made that the respondent receive counselling to address areas of personal awareness including acknowledgement and management of paedophilic drive, age appropriate socialisation and prosocial behaviour, interpersonal skills and development of understanding of and capacity to fulfil intimacy needs. He also recommends further release planning to address the viability of the respondent's financial situation, planned contacts including family contacts and proposed time use and participation in a program to address and enhance his understanding of alcohol misuse and to consolidate his current plans for abstinence.
If a supervision order is made Dr Wynn Owen recommends, in addition to the counselling recommended if a detention order is made, that conditions be imposed that the respondent have no unsupervised access to children 16 years or under, that the respondent participates in a Maintenance Sexual Offender Treatment Program. Dr Wynn Owen also recommends that the respondent reside away from schools, playgrounds and places and/or routes where children regularly congregate or pass and that he be required to disclose his sexual offending history to parties in any ongoing relationship, sexual or social and any relationship where access to children is a possibility.
Dr Wynn Owen saw the respondent on 14 November 2017, the day before the hearing of the application for a div 2 order. The purpose of the meeting was to discuss a possible trial of anti‑libidinal medication. The respondent informed Dr Wynn Owen that he would not agree to hormonal anti‑libidinal treatment on risk grounds associated with his diabetes and hepatitis C. However the respondent would consider selected serotonin uptake inhibitor (SSRI) treatment if given more information about side effects. This information will be provided to him.
It is Dr Wynn Owen's opinion that there are very few side effects to SSRI treatment. Dr Wynn Owen is not convinced of the effectiveness of SSRI in lowering libido. Dr Wynn Owen considers the respondent's libido to be quite high. Dr Wynn Owen does not know of any evidence that SSRI treatment reduces the risk of sexual offending.
In his evidence in chief Dr Wynn Owen gave evidence that it would be preferable for the respondent to commence therapeutic intervention while he is in prison so that relationships and clinical rapport are established.
In cross examination Dr Wynn Owen gave evidence that the proposed management plan and supervision of the respondent in the community would significantly reduce the risk of the respondent reoffending. He would be closely managed by the Department of Justice, forensic psychological services and the police Sexual Offender Management Squad.

The evidence of Ms C Place

Like Dr Wynn Owen Ms Place had conducted three interviews with the respondent before she prepared her report.
The respondent denied some matters of detail in his offending and the number of offences against some of the victims. He denied placing his penis in contact with his daughter L, other than on one occasion when he was angry, and said that when smacking her he placed her over his knee, not his lap, to avoid her body contacting his penis. He denied the offence against N.
He denied ever sexually penetrating K and said that she had chosen the pornographic video they watched, without any encouragement from him. He admitted to engaging in some 'inappropriate and disgusting' sexual behaviour with K but denied the majority of his offences against her. He suggested that K made up the allegations because her father was sexually abusing her at the time. He also told Ms Place that K was motivated to make the accusations in order to obtain criminal injuries compensation.
In Ms Place's opinion the respondent demonstrated some insight into his sexual offending by identifying that his experience of negative emotions and his lack of ability to manage them appropriately, combined with his emotional identification with children, contributed to his offending behaviour. He also maintained that there had been gains in his understanding of consent and challenging his beliefs regarding children as sexual beings.
However the respondent continued to endorse a range of cognitive distortions. He denied committing a large number of his offences, particularly against his daughter L and against K and he attributed reasons for dishonesty to them.
The respondent demonstrated no insight into his risk of future sexual offending and was unable to identify his risk factors or high risk situations. Without knowledge of his risk factors and high risk situations he will be unable to implement strategies to manage these appropriately.

In Ms Place's opinion the respondent meets the diagnosis for paedophilic disorder, nonexclusive type, sexually attracted to females. Over a period of at least six months he experienced recurrent sexually arousing fantasies, sexual urges with children and he acted on those sexual urges. While the respondent denied being sexually attracted to his victims, with the exception of K who was post‑pubescent, his offences indicate that he was sexually attracted to pre‑pubescent females.
Ms Place scored the respondent on the Static‑99R. She placed him in the above average risk level. Ms Place also scored the respondent on STABLE‑2007 which measures criminogenic needs. The respondent scored 14 out of a possible 26 points which places him in the high density range of criminogenic needs. The areas identified as being of clinically significant concern for the respondent include significant social influences, capacity for relationship stability, emotional identification with children, hostility toward women, general social rejection, lack of concern for others, impulsivity, poor problem solving skills, negative emotionality, sex drive/preoccupation, sex as coping, deviant sexual preference and co-operation with supervision. The area of the most significant clinical concern was deviant sexual preference.
When looking at the scores from these two tests, the respondent was placed in level IVb where individuals are considered to be a well above average risk of sexual reoffending using the standardised risk level framework. On average, individuals in that level are expected to have roughly three to four times the rate of recidivism compared to the average individual convicted of a sexual offence.
While the respondent has demonstrated some insight into his sexual offending and has maintained some treatment gains, it is Ms Place's opinion that he has continued to endorse a range of cognitive distortions including denial, minimisation and externalisation of responsibility. He did not consider himself to be a risk for sexual reoffending in the future, was unable to identify his risk factors and high risk situations, and as a result lacked appropriate risk management strategies. His supports in the community are limited to United Care West and his daughter D.
Ms Place gave oral evidence that she did not support a curfew being imposed under the conditions of a supervision order if such an order were to be made. The respondent's offences occurred at his home so Ms Place did not see how a curfew preventing him from leaving his home environment would reduce the risk of his reoffending. In her opinion a curfew might impair the respondent's ability to engage in appropriate adult activities with new adult friendships, which is a desirable goal.
Ms Place gave oral evidence in chief that whether the respondent is detained in custody or released to the community she recommended that the respondent engage with a treating psychologist to address his unmet treatment needs. Her evidence was that in an ideal world that would begin in custody for a number of reasons. Rapport is very important to the success of any therapeutic relationship. Ms Place considers that to be especially important in the respondent's case because he has demonstrated that his uncomfortableness with his deviant sexual interest can lead to him providing inconsistent information. Building a rapport with his therapist would be key to him being open, fully disclosing his deviant sexual interest and wanting to work on and address it. Ms Place considers that the respondent's deviant sexual interest is one of the most significant outstanding treatment needs and it is one of the most significant predictors of sexual recidivism. Her principal concern about the respondent in terms of his treatment needs is his deviant sexual interest.
However if psychological treatment were to begin when the respondent is released into the community the initial focus of that treatment would be reintegration into the community, coping skills, problem solving skills and addressing daily problems that occur in the community. The respondent's criminogenic needs, in particular his deviant sexual interest 'would be put on the back‑burner for a while' (ts 95). In custody they could be addressed relatively straight away.
At this point the respondent does not have any internal risk management strategies, so if they could be worked on in custody prior to release then reducing the risk of the respondent reoffending would not rely solely on the Department of Justice externally managing the risk. With psychological treatment Ms Place would hope that the respondent will develop some insight and risk management strategies so that he could internally manage his risk to some extent on his release.
In cross examination Ms Place gave evidence that an individual who genuinely desires to address their treatment needs can build a rapport with their treating psychologist within a couple of months.
In Ms Place's opinion the respondent was misdiagnosed by the program officers who reported on the respondent's performance in the ISOTP when they said that the respondent had no treatment needs.
Ms Place agreed that the proposed management plan and conditions for the release of the respondent into the community would reduce the respondent's risk to the community. She does not propose any other conditions.

The evidence of Ms Joanne Collyer

The applicant called Ms Joanne Collyer, Senior Counselling Psychologist and tendered Ms Collyer's report dated 30 October 2017. Ms Collyer had conducted two interviews with the respondent. The respondent acknowledged to Ms Collyer his sexual offending for all but one of his victims.
The respondent identified that the most benefits he gained from the ISOTP in which he participated included skill building in the areas of communication, assertiveness, healthy body/healthy mind attitude, importance of occupation and the problematic nature of drinking, boredom and negative self‑talk.
The respondent said that since participating in the ISOTP he had reflected significantly on his own life experiences and on his offending behaviour. As a consequence, he had developed increased awareness around his responsibility for the offending behaviour. This had resulted in acknowledgement of attraction to children including a need to divert fantasy toward adult females, acknowledgement of the offence against his daughter L, the need to develop healthy adult relationships, most likely through employment and appropriate hobbies and adult relationships and recognition that his daughter's friend had shown signs they did not want his advances.
Ms Collyer reviewed the respondent using the Violence Risk Scale: Sexual Offender Version (VRS‑SO). The VRS‑SO was designed to integrate risk, need responsivity and treatment change factors relevant to sexually violent offenders. Ms Collyer did not use it to comment on the respondent's risk of sexual re‑offending. The VRS‑SO explores three factors: sexual deviancy, criminality and treatment responsivity.
In Ms Collyer's opinion sexual deviance is a core treatment need for the respondent in all five aspects of the factor, namely sexually deviant lifestyle, sexual compulsivity, offence planning, sexual offending cycle and deviant sexual preference. The respondent acknowledged to Ms Collyer his sexual attraction to children, which he had not disclosed in the ISOTP. The respondent reported intrusive sexual fantasies involving children. He acknowledged some ongoing difficulties in diverting from those thoughts. The respondent had not explored this deviancy in the ISOTP and although he had made some rudimentary efforts to overcome the behaviour Ms Collyer considers him to be in the contemplation stage of change.
In considering criminality and antisocial factors Ms Collyer identified two antisocial factors which required ongoing treatment needs: interpersonal aggression and substance abuse.
Ms Collyer identified two main areas in the treatment responsivity factor: cognitive distortion and insight. In Ms Collyer's opinion the respondent lacked insight around the details of his offence cycle behaviour and motivation. His shame reactions and consequent withholding have inhibited his capacity to fully explore this issue in treatment. Ms Collyer considers the respondent to be in the preparation/contemplation stage of change as it is evident he wants to overcome the problematic behaviour and in some instances has made persistent behavioural changes. However the changes are relatively recent and require further exploration and consolidation in Ms Collyer's view.
In Ms Collyer's opinion the respondent now acknowledges a greater responsibility for his offending behaviour and the presence of sexual deviancy in the area of child sexual fantasy than he acknowledged during participation in the ISOTP. Given this, a number of factors pertinent to his offending have not had the opportunity for psychological intervention. The respondent has expressed a willingness to address these problematic behaviours and noted he had attempted to instigate strategies on his own.
Ms Collyer recommends that the respondent undertake individual psychological intervention to address these factors, in particular a focus on sexual deviancy. Ms Collyer considers individual counselling preferable to completing a second ISOTP as this will afford a greater capacity to challenge his tendency to withhold and avoid painful material.
Group and individual treatment options are available in prison if the respondent receives a continuing detention order. Ms Collyer recommends that if a continuing detention order is made the respondent be progressed to a self‑care setting that engages him in activities that enable him to prepare for transition to the community.
If the respondent receives a supervision order it is Ms Collyer's opinion that he would benefit from referral to the Departments psychological services. Individual counselling would enable focus on the factors that need to be addressed. A focus on community reintegration may take precedence in the early stages of counselling. In view of the respondent's limited social supports, engagement with a well‑known service provider would be a critical component of a supervision order.
In her oral evidence Ms Collyer gave evidence that the shortening of the ISOTP in which the respondent took part, which was due to the reduced number of participants, had occurred in other programs. That is because the reduced number of participants means that there is a reduced number of people to tell their stories and there is a reduced number of management plans to be developed.

The evidence of Ms Lisa Rathmann

In the Community Supervision Assessment report Ms Lisa Rathmann said that the respondent has been engaging with a service provider from which he proposes to obtain support when released. That service provider has placed the respondent on the Dangerous Sexual Offender Supported Accommodation Program waitlist. Under the program accommodation is available for twelve months. In that period the residents are assisted in securing their own permanent accommodation. At the time of writing her report that service provider did not have accommodation available.
The respondent has also been referred to another well-known accommodation program. That service provider provides short term crisis and transitional accommodation for males over the age of 18 years who are homeless or at risk of homelessness. Residents can be housed in the program for up to six months, with the capacity to extend that period for a short period, for example if rented accommodation is not yet available but will be available within a short period.
That accommodation is available to the respondent. The complex at which the respondent would be housed has a staff member on site between 7 am and 11:30 pm and a security guard after hours. Residents are only permitted to have visitors in a designated courtyard area. While children are allowed to attend that area they do so infrequently. Residents are not permitted to have alcohol or drugs on the site.
The Department for Child Protection and Family Support has no concerns with the respondent living in this accommodation as children are not permitted to reside in the complex.
A referral to the Victim Offender Mediation Unit (VMU) was made on 4 October 2017. At the date of Ms Rathmann's assessment the VMU had not made contact with the respondent's daughter L. Ms Rathmann recommended that if he is released from custody the respondent should have no contact with L, other than in accordance with agreements made through the VMU.
Ms Rathmann gave oral evidence of the police Desktop Analysis relating to the proposed accommodation for the respondent. The proposed accommodation could accommodate the conditions of the respondent's proposed supervision conditions and there are no aspects of the accommodation that make in unsuitable for his accommodation.
Ms Rathmann proposed conditions to manage the respondent's risk of offending if he is released on a supervision order. Those conditions are consistent with the assessments of Dr Wynn Owen, Ms Place and Ms Collyer. The only issue on which there was some disagreement was whether there should be a curfew. Ms Rathmann proposed a curfew. As I have said Ms Place did not support it. In her oral evidence in chief Ms Rathmann's evidence was that a curfew can provide structure to people who have spent a lengthy period in custody.

The DSO Act

The applicant applies for a div 2 order. Section 17(1) and (2) of the DSO Act provide:

(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must —
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.

(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

I can only make an order under s 17(1) if I find that the respondent is a serious danger to the community. Section 7 of the DSO Act deals with that term. It provides:
7.Serious danger to community
(1)Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2)The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied —
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
(3)In deciding whether to find that a person is a serious danger to the community, the court must have regard to —
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record; and
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
(4)In considering whether it is satisfied as required in subsection (1), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.
If I am satisfied that there is an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order he would commit a serious sexual offence then the respondent will necessarily and automatically be a serious danger to the community: Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21].
A finding that there is an unacceptable risk involves a balancing exercise requiring the court, on one hand, to have regard to among other things, the nature of the risk (the commission or a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition and, on the other hand, to have regard to the serious consequences for the respondent if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order): Italiano v The State of Western Australia [2009] WASCA 116 [46].
An unacceptable risk in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of a finding that an unacceptable risk exists. I am required to consider whether, having regard to the likelihood of the respondent offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the respondent has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63].
To find that the respondent is a serious danger to the community I must be satisfied to a high degree of probability (being more than the civil standard but less than the criminal standard) that there is an unacceptable risk of the kind mentioned in s 7(1). I must therefore identify what it is (if anything) that constitutes the risk and makes the risk unacceptable and then consider whether or not that factor, or those factors, have been proved to a high degree of probability by acceptable and cogent evidence: Director of Public Prosecutions (WA) v GTR [34].
If I find that the respondent is a serious danger to the community I must make a continuing detention order or a supervision order: s 17 (1). The paramount consideration in deciding between the two orders is the protection of the community: s 17(2). However it cannot simply be assumed that the protection of the community will always favour a continuing detention order Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]. Having regard to the more onerous nature of a continuing detention order the scheme of the DSO Act requires the court to do no more that is necessary for the continuing, control, care or treatment of the respondent to achieve an adequate degree of protection for the community: The State of Western Australia v Latimer [2006] WASC 235 [24] and Director of Public Prosecutions (WA) v Decke [15]

The s 7(3) matters

In deciding whether to find that the respondent is a serious danger to the community, I must have regard to the matters listed in s 7(3)(a) to (i) as well as any other relevant matter.

The psychiatric, psychological and other assessment evidence and information indicating whether or not the respondent has a propensity to commit serious sexual offences in the future – s 7(3)(a), (b) and (c)

Dr Wynn Owen and Ms Place both found that the respondent has a paedophilic disorder. I accept that evidence. It is clearly demonstrated by the respondent's long history of sexual offending against many children.
I also accept the evidence of Dr Wynn Owen that the respondent presents a significant risk of serious sexual offending if not subject to continuing detention or a supervision order. That opinion was based upon the clinical assessment of Dr Wynn Owen, including the Static‑99 and the risk factors he identified under the Risk for Sexual Violence Protocol structured clinical framework. The factors that in my view are particularly significant in accepting that evidence are the respondent's history of sexual offending and his paedophiliac disorder. It is also significant that the respondent did not acknowledge his paedophiliac disorder to Dr Wynn Owen.
I also accept Ms Place's evidence that the tests administered by her place the respondent in the well above average risk of sexual reoffending. Again it is my view that it is significant that the respondent demonstrated no insight into his risk of future sexual offending and was unable to identify risk factors.
I accept the evidence of Ms Collyer that the respondent acknowledged to her his sexual attraction to children. The respondent did not acknowledge this attraction when he has received counselling or participated in the ISOTP.
I also accept Ms Collyer's opinion that the respondent is in the preparation/contemplation stage of change as it is evident he wants to overcome the problematic behaviour and in some instances has made persistent behavioural changes. However, as Ms Collyer has said, the changes are relatively recent and require further exploration and consolidation.

Whether or not there is any pattern to the respondent's offending behaviour – s 7(3)(d)

There is a clear pattern to the respondent’s offending. He offends against female children. He initiates the offending behaviour by engaging in a pretext of playing games. His offending escalates in seriousness if he is given the opportunity to do so. If he does get that opportunity it can lead to violent, non-consensual sexual assault.

Any efforts by the respondent to address the cause or causes of his offending behaviour, including participation in programs and whether or not the respondent's participation in any program has had a positive effect on him – s 7(3)(e) and (f)

In 2003 the respondent received counselling from Ms Woodhead. He did not complete that counselling. He did not tell Ms Woodhead of his offending from 1991 to 2001. He reoffended in September 2003. Ms Woodhead's counselling had no positive effect on the respondent.
The respondent has undertaken the ISOTP. I conclude from the evidence of Ms Collyer that the reduction in hours of that ISOTP was due to the reduced number of participants and that the reduction in hours did not reduce the content of the program provided to the respondent. The respondent did not acknowledge his sexual attraction to children in that program.
The respondent acknowledged his sexual interest in children to Ms Collyer and he wishes to overcome his offending behaviour. These areas require further exploration and consolidation.

The respondent's antecedents and criminal record – s 7(3)(g)

The respondent has a criminal record of committing sexual offences against children which conduct has occurred over many years.

The risk that if not subject to a continuing detention order or a supervision order the respondent would commit a serious offence and the need to protect members of the community from that risk – s 7(3)(h) and(i)

I find, in accordance with the evidence to which I have referred, particularly that of Dr Wynn Owen and Ms Place, the history of the respondent's offending and the pattern of that offending, the fact that the respondent has only recently acknowledged his sexual interest in children and Ms Collyer's opinion that the respondent is in the preparation/contemplation stage of change and has made some persistent behavioural changes but the changes are relatively recent and require further exploration and consolidation that there is a high risk that if the respondent were to be released without a continuing detention order or a supervision order the respondent would commit a serious offence against children. There is a clear need to protect members of the community from that risk.

Conclusion as to whether the respondent is a serious danger to the community

For the reasons that I have expressed in considering the factors to which regard is to be had under s 7(3) of the DSO Act I am satisfied to a high degree of probability that there is an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order he would commit serious sexual offences. I find that he is a serious danger to the community.

Whether to make a continuing detention order or a supervision order

As I have found that the respondent is a serious danger to the community I must make a continuing detention order or a supervision order. Counsel for the applicant submits that I should make a continuing detention order. Counsel for the respondent submits that if I conclude that the respondent is a serious danger to the community then I should make a supervision order. He points to the evidence that all of the witnesses consider that the conditions proposed for the respondent’s release are appropriate to manage his risk of reoffending.
The paramount consideration in deciding between the two orders is the protection of the community. However I cannot simply assume that the protection of the community favours a continuing detention order. I should do no more that is necessary for the continuing, control, care or treatment of the respondent to achieve an adequate degree of protection for the community
In considering this question, I have considered the management plan prepared by Ms Collyer. I have also considered the Community Supervision Assessment prepared by Ms Rathmann. The management plan and the conditions imposed while the respondent is released into the community are appropriate, including the curfew which will provide structure to the respondent after his release from a lengthy term of imprisonment.
However if the respondent is released under a supervision order the protection of the community will rely solely on external controls to manage the risk of the respondent reoffending. The respondent has not developed internal strategies to manage that risk.
The respondent has an unmet treatment need in the area of his deviant sexual interest in children. This deviant sexual interest is one of the most significant predictors of sexual recidivism. The respondent does not have any internal risk management strategies. As a consequence if the respondent were to be released into the community under a supervision order the risk of the respondent reoffending would rely solely on external controls, until those treatment needs are addressed.
The respondent can receive psychological treatment in prison under a continuing detention order. If the respondent actively participates in that psychological treatment he can build a rapport with the treatment provider and develop some insight and risk management strategies which will assist him to manage his risk on his release.
If the respondent is released under a supervision order then the initial treatment will not address the respondent's deviant sexual interest. The treatment will address coping skills, problem solving skills and addressing daily problems that occur in the community. If that release takes place before the respondent’s deviant sexual interest is addressed in treatment the protection of the community will rely solely on external factors because the respondent does not have any internal risk management strategies.
In my view the protection of the community requires that the respondent undergoes that psychological treatment to address his deviant sexual interest in children. Once he has undergone that treatment and has developed appropriate risk management strategies his release into the community under a supervision order may be appropriate.
It is unsatisfactory that further treatment was not provided to the respondent after ISOTP in 2012. He has never refused to participate in sex offender treatment. However no treatment was offered after the ISOTP in which he was misdiagnosed as having no treatment needs.
In 2015 a parole assessment took place. The authors of the parole assessment did not recommend parole. The authors noted that there had not been a psychological assessment of the respondent since 2007. If a psychological assessment had been completed following that parole assessment it is likely that the respondent's treatment needs would have been identified and that treatment could have commenced while he was serving his sentence. If further treatment had been offered to respondent it is likely that he would have undertaken it and he may have developed strategies to reduce the risk of reoffending. However that did not happen and the respondent has not developed those strategies.
I have decided to order that the respondent be detained in custody for an indefinite term for control, care or treatment. While he is detained in custody the respondent should receive individual psychological treatment to address his deviant sexual interest in children.