The State of Western Australia v GBT [No 4]
[2022] WASC 392
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GBT [No 4] [2022] WASC 392
CORAM: FIANNACA J
HEARD: 11 NOVEMBER 2022
DELIVERED : 21 NOVEMBER 2022
FILE NO/S: SO 1 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
GBT
Respondent
Catchwords:
High risk serious offender - First periodic review - Whether respondent remains a high risk serious offender - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if respondent released on a supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order rescinded
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr A G Elliott |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Anthony Elliott |
Cases referred to in decision:
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; (2007) 35 WAR 297
Garlett v The State of Western Australia [2022] HCA 30
GBT v The State of Western Australia [2019] WASCA 40
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v GBT [2017] WASC 337
The State of Western Australia v GBT [No 2] [2019] WASC 231
The State of Western Australia v GBT [No 3] [2020] WASC 423
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330
Table of Contents
The application and its history
Nature of the proceedings
Background
Statutory framework and legal principles
Evidence in the proceedings
Findings made by Martino J in 2017
Overview
The respondent's sexual offending
Other background information
ISOTP
Evidence in respect of risk assessment
Findings made by Corboy J in 2020
Current review
Structure of the balance of these reasons
Ms Ballantyne's reports
Dr Riordan's report for the first review
Respondent's circumstances since first review
Evidence of Ms Joanne Collyer
Presentation of the respondent
Treatment history
The respondent's account of treatment progress
Ms Collyer's opinions
Assignment of a psychologist
Evidence of Dr Peter Wynn Owen
Presentation at interview
Attitudes to past offending
Current sexual thinking
Respondent's plan for release
Diagnosis
The respondent's health and libido
Risk of sexual reoffending
Static-99R
RSVP
Dr Wynn Owen's opinions
Availability of counselling
Accommodation
Community Supervision Assessment
Monitoring
Contact with children
Supervision of internet access
Alcohol and substance use
Curfew
Interagency liaison and risk management
Conclusions
Findings in respect of the evidence generally
Is the respondent a high risk serious offender?
Will a supervision order provide adequate protection of the community?
Duration of supervision order
Commencement date
Suppression order
Orders
Annexure
FIANNACA J:
The application and its history
Nature of the proceedings
The respondent is subject to continuing detention pursuant to a continuing detention order (CDO) that has effect under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), although the order was originally made by Martino J, on 24 November 2017, under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).[1] The CDO requires that the respondent be detained for an indefinite term for control, care or treatment.[2] Part 5 of the HRSO Act provides for the periodic review of an offender's detention under a CDO. This is the second review of the respondent's continuing detention.
Background
[1] The State of Western Australia v GBT [2017] WASC 337 (GBT).
[2] HRSO Act s 26(1).
From January 1991 to September 2003, the respondent committed numerous sexual offences at various times against 10 female children aged from six years to 16 years. He was convicted of such offending on four separate occasions. On 30 November 2007, he was sentenced to a total term of 10 years and 4 months' imprisonment, backdated to 15 August 2007, for 28 such offences, which had occurred from January 1991 to January 2001. He had previously served terms of imprisonment imposed in August 2005 for sexual offences which he had committed in 2002 and 2003.
Although the respondent was made eligible for release on parole, when sentenced on 30 November 2007, he was denied release on parole in November 2015.
On 21 June 2017, prior to the respondent's completion of his sentence imposed on 30 November 2007, the applicant applied for orders under s 14 and s 17(1) of the DSO Act in relation to the respondent, on the basis that he was a serious danger to the community, as defined in s 7 of the DSO Act, in that there was an unacceptable risk that if he were not subject to a CDO or a supervision order he would commit a serious sexual offence. It is sufficient to note that all of the offences of which the respondent had been convicted were serious sexual offences.
On 24 November 2017, Martino J found that the respondent was a serious danger to the community. Having made that finding, his Honour was required, under s 17 of the DSO Act, to make either a CDO or a supervision order, being an order that, while in the community, the respondent be subject to stated conditions that the court considered to be appropriate (the paramount consideration being ensuring the adequate protection of the community). His Honour determined that, at that stage, a supervision order would not provide adequate protection of the community. Accordingly, his Honour made the CDO. The respondent appealed against his Honour's decision.
The first review of the respondent's continuing detention was to take place on 13 December 2018. However, the review was adjourned, pending the determination of the respondent's appeal. The appeal was dismissed on 28 February 2019.[3]
[3] GBT v The State of Western Australia [2019] WASCA 40.
In the meantime, the respondent had been in custody on remand, since 14 December 2017 (the date after the completion of the sentence imposed on 30 November 2007), for two new charges, which were historical sexual offences against a child under the age of 13 years, committed in 2001. On 6 May 2019, the respondent was sentenced to a further 21 months' imprisonment in respect of those sexual offences, backdated to 14 December 2017. The end date of that sentence was 14 September 2019.
After the appeal against the decision of Martino J was dismissed, the first review of the respondent's continuing detention was listed for 22 July 2019. However, at a hearing on 21 June 2019, I held that, as a result of the respondent's sentence imposed on 6 May 2019, the first review of the respondent's continuing detention was to take place as soon as practicable after the end of a period of one year commencing on 14 September 2019.[4]
[4] The State of Western Australia v GBT [No 2] [2019] WASC 231.
The HRSO Act came into force, in relevant respects, on 26 August 2020,[5] at which time the DSO Act was repealed.[6] Pursuant to s 125 of the HRSO Act, the CDO made by Martino J under the DSO Act continues in effect and is taken to have been made under the HRSO Act. The effect of that transitional provision is that the finding by Martino J that the respondent was a serious danger to the community is to be regarded as a finding that the respondent is a high risk serious offender for the purposes of the HRSO Act. As the CDO is to be taken to have been made under the HRSO Act, the respondent's continuing detention is subject to periodic review under pt 5 of that Act.
[5] HRSO Act Compilation Table.
[6] HRSO Act s 123.
The review process recognises that the circumstances underpinning a CDO may change. Section 68 of the HRSO Act requires the Court to consider first whether the offender remains a high risk serious offender. If the Court does not find that the offender remains a high risk serious offender, it must rescind the CDO.[7] If the Court finds that the offender remains a high risk serious offender, the Court must then decide whether to affirm the CDO or rescind the CDO and make a supervision order.[8] That will depend on whether a supervision order will provide adequate protection of the community.[9] Changes in an offender's behaviour, insights and attitudes, among other things, and/or improvements in management options, may mean that a supervision order is capable of providing adequate protection of the community, where previously it was not.
[7] HRSO Act s 68(1)(a).
[8] HRSO Act s 68(1)(b).
[9] HRSO Act s 68(2).
The first review of the respondent's continuing detention was conducted by Corboy J on 21 September 2020. His Honour found that the respondent remained a high risk serious offender.[10] For reasons set out below,[11] his Honour affirmed the CDO.
[10] The State of Western Australia v GBT [No 3] [2020] WASC 423 (GBT [No 3]).
[11] [82] below.
The respondent appealed against Corboy J's decision, but subsequently discontinued that appeal.
This is the second review of the respondent's detention under the CDO. The State made the application for the review, pursuant to s 64 of the HRSO Act, on 29 March 2022.
The hearing of the application proceeded on 11 October 2022. As will appear below, the evidence at that hearing supported the conclusion that the respondent remains a high risk serious offender, which was conceded by the respondent, but also supported the conclusion that his circumstances had changed and, if suitable accommodation were available to the respondent in the community, his risk could be adequately managed in the community on a supervision order, provided he also received psychological counselling. At that stage, there was no suitable accommodation available. However, there were prospects that accommodation would become available for the respondent. Therefore, at the conclusion of the hearing, upon application by the respondent,[12] I adjourned the hearing to 7 November 2022 for the Court to be provided with evidence of any developments in respect of accommodation, which would affect the determination of the review.
[12] ts 300 - 301.
At the resumed hearing on 7 November 2022, further evidence was adduced, which satisfied me that suitable accommodation would be available to the respondent within a period of seven to 14 days and would be held for him pending his release, in the event that I was to make a supervision order, provided that order came into effect within 21 days of the date it was made. I adjourned until 11 November 2022 to give my decision.
In the meantime, by email to the Court on 9 November 2022, the applicant provided an update from the accommodation provider that the relevant property would be vacated on 14 November 2022, and that it was being reserved for the respondent until 28 November 2022. The email also contained further information from the Department of Justice that, if a supervision order was to be made, the earliest date on which it would be practically feasible for such an order to come into effect would be 28 November 2022.
At the adjourned hearing on 11 November 2022, I received the additional information as further evidence. At the conclusion of the hearing, I indicated that I would rescind the CDO and make a supervision order, but would not make those orders until after 14 November 2022, when it was expected the property would become available to the respondent. Accordingly, I deferred the delivery of my decision until the following week, as soon as practicable after 14 November 2022, and said I would give detailed reasons.
For the reasons that follow, I am satisfied that the respondent remains a high risk serious offender, but that the adequate protection of the community against the risk that he would commit a serious offence can now be ensured, if the respondent is released, by ordering that he be subject to a supervision order containing the standard conditions provided by the HRSO Act and further conditions proposed by the applicant, as set out in the Annexure to these reasons. Accordingly, the appropriate orders are to rescind the CDO and to make a supervision order in the terms contained in the Annexure.
Statutory framework and legal principles
Before turning to the evidence in these proceedings, it is convenient to outline the statutory framework and the relevant legal principles in more detail.
In relation to procedural matters, it is sufficient to note that, under s 66 of the HRSO Act, as soon as practicable after an application is made under s 64, a court is required to give directions for the hearing of the application (which occurred in this case), and the application must be heard, and the review must be carried out, as soon as it is practicable to do so in accordance with any directions given by the Court.[13] The Court may adjourn the hearing of the application, and the carrying out of the review where good cause is shown.[14] As I outlined above, there were good reasons for the adjournment of the application in this case.
[13] HRSO Act s 66(1) and (2).
[14] HRSO Act s 66(3).
Section 67 of the HRSO Act provides that, unless the Court otherwise orders, the chief executive officer (CEO) of the relevant Department (being the Department of Justice) must engage one or more qualified experts to prepare reports in accordance with s 74 to be used on the review.
Section 74 of the HRSO Act provides that a qualified expert who has been engaged to provide a report must examine the subject and prepare an independent report, which must indicate -
(a)the reporter's assessment of the level of the risk that, without a restriction order, the subject will commit a serious offence; and
(b)the reasons for the reporter's assessment.
Section 68 of the HRSO Act provides:
Review of detention under continuing detention order
(1)On a review under section 66 of an offender's detention -
(a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b)if the court finds that the offender remains a high risk serious offender it must –
(i)affirm the continuing detention order; or
(ii)subject to section 29, rescind the continuing detention order and make a supervision order.
(2)In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure the adequate protection of the community.
As I noted above, the structure of the provision requires the Court to determine first whether the respondent remains a high risk serious offender.
The definition of the term 'high risk serious offender' is contained in s 7(1) of the HRSO Act, which 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.
Section 7(2) provides that the State has the onus of satisfying the Court as required by subsection (1).
Section 7(3) sets out a number of matters to which the Court must have regard in determining whether a person is a high risk serious offender. They include any report prepared under s 74 of the HRSO Act.
'Serious offence' is defined in s 5 of the HRSO Act. It is sufficient to note at this stage that all of the serious sexual offences committed by the respondent in the past (which I will identify later in these reasons) and those he may commit in the future, with which the proceedings under the HRSO Act have been concerned, are serious offences for the purposes of the HRSO Act.
It is apt to note that the provisions of s 68 are identical to the provisions of s 33 of the repealed DSO Act, save that s 68 refers to 'high risk serious offender' rather than 'serious danger to the community'.
In The State of Western Australia v ZSJ[15] I concluded, having regard to the relationship the provisions of the HRSO Act bear to the provisions of the DSO Act, that the concepts and criteria with which the Court is concerned in determining an application under the HRSO Act are substantially the same under both statutes, and, therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non-sexual offences.[16] Although that case was concerned with a restriction order hearing under s 48 of the HRSO Act, the reasoning applies equally to a review under s 68.
[15] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ) [30] - [63].
[16] ZSJ [30] - [63].
That general approach has been adopted by other judges in subsequent cases, although, as Corboy J identified in The State of Western Australia v Garlett,[17] there is arguably a difference in the way the criteria in s 7(1) of the HRSO Act are to be applied, when compared with the criteria for finding a person to be a serious danger to the community under s 7 of the DSO Act.[18] It is not necessary to discuss that difference here. It turns on whether the element of necessity for a restriction order in s 7(1) is additional to the element of unacceptable risk. As I will explain in due course, I am satisfied that, if they are to be regarded as separate elements, both elements have been established in this case.
[17] The State of Western Australia v Garlett [2021] WASC 387 (Garlett).
[18] I note that the definitional issue identified by Corboy J in Garlett was not considered by the High Court in Garlett v The State of Western Australia [2022] HCA 30.
I note that nothing in the High Court's recent decision in Garlett v The State of Western Australia, which considered the constitutional validity of aspects of the HRSO Act, is inconsistent with adopting the jurisprudence established in respect of the DSO Act when construing and applying the HRSO Act. In fact, it is implicit from the majority judgment that such jurisprudence remains relevant.[19]
[19] See for instance Garlett v The State of Western Australia [55] (footnote 68); [103], [104], [106].
In Director of Public Prosecutions (WA) v Pindan [No 3],[20] I considered the issue of whether, on a review of continuing detention under the DSO Act, the Court was bound by findings in previous proceedings that had resulted in the CDO or the affirmation of the CDO, and the general approach to be taken on a review.[21] In my opinion, the conclusions I arrived at, having regard to the authorities, are relevant to review proceedings under the HRSO Act. Adapting those conclusions to the context of the HRSO, they may be summarised as follows:
(1)On a review under s 68 of the HRSO Act, the Court is required to decide, in accordance with s 7 of the Act, whether it is satisfied to a high degree of probability that the respondent remains a high risk serious offender. This requires a consideration of all the matters in s 7(3) on the evidence available at the time of the review.
(2)If the Court is not satisfied that the respondent remains a high risk serious offender, it must rescind the CDO.
(3)If the Court is satisfied that the respondent remains a high risk serious offender, it must determine whether the community could be adequately protected by the release of the respondent on a supervision order, being an order that the offender, when not in custody, is to be subject to stated conditions that the Court considers appropriate, in accordance with s 30 of the HRSO.[22] If the Court is left in doubt that the community could be adequately protected in that way, it must affirm the CDO.[23]
(4)While the previous decision that the respondent was a high risk serious offender must be assumed to be correct, and provides a point of departure for consideration of the first issue, it does not follow that the Court on the annual review must find that the respondent is a high risk serious offender if it finds there has been no change in his circumstances. The Court is still required to be satisfied in accordance with s 7(1) of the HRSO Act that the respondent is a high risk serious offender at the time of the review. The onus remains on the State under s 7(2) to satisfy the Court accordingly.
(5)The task of determining the appropriate order for the adequate protection of the community is not constrained by the findings made in previous proceedings in respect of that issue, but those findings will be relevant as part of the background against which the current assessment is to be made.
(6)The materials to which the Court will have regard, and the previous findings on which it will rely, will depend on the manner in which the proceedings are conducted by the parties. Previous findings will usually provide the context for consideration of more recent developments in the respondent's circumstances. To use the terminology adopted in previous cases, they will provide the point of departure or baseline for the assessment of such developments.
(7)The doctrine of issue estoppel may apply to some findings of fact made in previous proceedings, so that the parties will be bound by those findings.
(8)If there is no challenge to a previous finding that is relevant to the determination of the issues on the annual review, the Court should proceed on the basis that the finding was correct and give it weight in the current proceedings accordingly, unless there is evidence that in the Court's assessment requires reconsideration of the finding. Such evidence may be in respect of facts that existed at the time of a previous decision, but which were not part of the evidence available at that time and have become known since then
[20] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 (Pindan [No 3]).
[21] Pindan [No 3] [33] - [57].
[22] HRSO Act s 27(1).
[23] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [86].
I note in respect of the first point that a finding under s 68(1)(b) that an offender 'remains a high risk serious offender', that is, a finding that it remains 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, necessarily entails a finding that if the offender is not subject to a restriction order the community will not be adequately protected against an unacceptable risk that he will commit a serious offence.[24]
[24] The State of Western Australia v West [No 6] [2019] WASC 427 (West) [21]; ZSJ [44].
If the Court finds that the respondent remains a high risk serious offender, then, in deciding whether to affirm the CDO or release the respondent on a supervision order, the Court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community, which is the paramount consideration under s 68(2) of the HRSO Act.[25]
[25] The State of Western Australia v Latimer [2006] WASC 235; Williams [79].
However, the discretion under s 68(1)(b)(ii) (set out above) to make a supervision order is subject to s 29 of the HRSO Act, which provides:
Limitation on power to make or amend supervision order
(1) A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2) The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the HRSO Act to mean a condition that under s 30(2) of the HRSO Act must be included in the order. Section 30(2) of the HRSO Act specifies seven conditions that must be included in any supervision order. Those conditions are set out in the supervision order in the Annexure to these reasons. They include a condition that the respondent will not commit a serious offence during the period of the supervision order.
The effect of s 29(1) and s 29(2) of the HRSO Act is that, before the Court can make a supervision order in relation to a respondent, he must satisfy the Court on the balance of probabilities that he will substantially comply with the standard conditions set out in s 30(2).
In respect of the equivalent provisions of the repealed DSO Act,[26] I expressed views in Director of Public Prosecutions (WA) v Hart[27] as to what is meant by 'substantially comply with'. Those views apply to s 29(1) of the HRSO Act. Accordingly, the words of that provision should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order.[28] In essence, I must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious offence.[29]
[26] DSO Act s 33(4) and s 33(5).
[27] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
[28] Hart [52].
[29] Hart [52]; The State of Western Australia vNarrier [No 6] [2020] WASC 349 (Narrier) [113].
As I identified in Hart, some matters that will be of relevance are (a) the respondent's attitude to the conditions of the supervision order; (b) his capacity to comply with the conditions; and (c) what measures there are in place to ensure he would substantially comply.[30]
[30] Hart [50].
In determining whether to affirm the CDO or make a supervision order, the following principles established by authorities under both the repealed DSO Act and the HRSO Act are relevant.
Detention under the HRSO Act is not punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. As Hall J noted in Director of Public Prosecutions (WA) v Unwin [No 3],[31] it is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future. Further, the purposes of continuing detention include treatment and care of the offender in a secure environment. The objective of treatment is to reduce risk. If the offender's circumstances change, or if there is a change in external circumstances, such that the offender's risk of reoffending reduces, it may be that the adequate protection of the community against the risk, although it is still unacceptable in the absence of any restrictive measures, can be achieved by the making of a supervision order.
[31] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [15].
The level of risk posed by the respondent, and whether the community can be protected adequately against the risk under a supervision order, must be assessed by having regard, not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external measures and obligations that can be put in place under a supervision order to mitigate the risk. The external measures include the available means to monitor, supervise and treat the respondent.
All of the factors to which I have referred affect both the question of whether the respondent will substantially comply with the standard conditions of a supervision order[32] and the overall efficacy of the supervision order in ensuring adequate protection of the community. Gains made by the respondent in treatment and his behaviour while in custody will inform the assessment of the personal factors. The availability of new technology or resources in the community will be relevant to the assessment of external factors.
[32] Garlett v The State of Western Australia [103].
The review process is intended to ensure that detention only continues where necessary.
Evidence in the proceedings
The evidence in these proceedings included a book of materials (BOM) in six volumes,[33] other documentary exhibits tendered during the hearing, and the oral evidence of three witnesses, Dr Peter Wynn Owen, a consultant forensic psychiatrist, Ms Joanne Collyer, a senior counselling psychologist with the Forensic Psychological Assessment Team within the Department of Justice, and Ms Jodii Nichols, a Senior Community Corrections Officer (SCCO) with the Community Offender Monitoring Unit (COMU), which is part of the Department of Justice. Dr Wynn Owen had also given evidence in the proceedings before Martino J in 2017 and at the first review hearing before Corboy J in 2020.
[33] The BOM was tendered as Exhibits 1 - 6.
The reports prepared by Dr Wynn Owen, Ms Collyer and Ms Nichols were included in the BOM.
The other documentary exhibits tendered during the hearing included:
(1)Emails from the State Solicitor's Office to the Court (copied to the respondent's lawyers) providing updates during the course of the proceedings and after the last hearing date in relation to:
(a)the availability of accommodation for the respondent;
(b)the availability of psychological counselling for the respondent; and
(c)a proposed supervision condition that would restrict the respondent's ability to have contact with children.[34]
(2)The Operating Policy and Procedure - Commissioner of Corrective Services, which was said to be relevant to the prioritisation of provision of psychological intervention to prisoners, including persons subject to continuing detention under the HRSO Act.[35]
[34] Exhibits 7, 8, 9 and 11.
[35] Exhibit 10.
I will refer to those items more specifically below, when dealing with relevant evidence contained within them.
The respondent elected not to give or adduce any evidence at the hearing.
Having regard to the principles outlined at [33(4) - (8)] above, these reasons should be read in conjunction with the decisions in GBT and GBT [No 3]. I will not refer to the respondent's history or the evidence in those proceedings in detail, but, for context, it is appropriate for me to provide a summary of the findings in those decisions.
Findings made by Martino J in 2017
Overview
It is appropriate to commence with the findings made by Martino J in 2017.
The respondent's appeal against his Honour's decision was on the ground that one of the experts, on whose report his Honour relied, was not a 'qualified expert' for the purposes of the DSO Act, and that, therefore, his Honour lacked power to make the CDO. While the Court of Appeal accepted that the relevant psychologist was not a 'qualified expert', it did not accept that Martino J lacked power to make the order.[36] Consequently, the appeal was dismissed. The appeal did not involve a challenge to the factual findings made by Martino J in relation to the respondent's history or his risk of committing a serious sexual offence. Nor was there such a challenge in these proceedings, except to the extent that the respondent has continued to deny certain offending, which I will discuss below. In general terms, the findings made by Martino J, together with the findings made by Corboy J at the first review, were relied upon, in essence, as a point of departure for identifying changes in the respondent's circumstances that inform the question of whether his risk has reduced or can be adequately managed in the community.
[36] GBT v The State of Western Australia [1] - [3].
Martino J set out in detail the respondent's relevant offending history[37] and summarised the respondent's other antecedents, including the fact that, while serving the term of imprisonment imposed in 2007, the respondent had participated in the Intensive Sex Offender Treatment Program (ISOTP) in 2012.[38]
The respondent's sexual offending
[37] GBT [6] - [44].
[38] GBT [46] - [65].
In summary, in the period from January 1991 to January 2001, the respondent committed 28 offences against seven children, one of whom was his daughter, L. All of the others were L's friends.
The offending against L, being eight offences of indecently dealing with her, started when she was six years old and ended when she was 15 years old. The offending included the respondent indecently touching L on her bottom and vagina, rubbing his penis against her vagina, exposing his penis to her, and placing his penis near her face. He facilitated the offending by engaging L and her friends in games or entering her room and tickling her.
The other girls were at various ages when the respondent offended against them, ranging from six years to 16 years. The offending included smacking some of the girls on the bottom, rubbing his erect penis against their vaginas, both on the outside of the girls' underwear and against their bare genitals, or against other parts of their bodies, including near their faces, and kissing one of them on her lips. Against one of the girls, the respondent sexually penetrated her vagina with his penis on five occasions, in some cases to the point of ejaculation. He also penetrated her vagina with his fingers on one occasion. The victim was 14 or 15 years old at the time. The penile penetration caused her pain, and she bled on the first occasion. She was frightened, and on one occasion she screamed, but the respondent ignored her. The offending against the various girls occurred in his residence, more particularly in his bedroom, in L's room and in the shower.
On 11 August 2002, the respondent committed five offences against a 9-year-old girl after enticing her into his unit with the offer of a chocolate biscuit. The girl had gone to his door because she had been friends with the previous tenants. The offences, which occurred in his unit, involved indecently dealing with the child, showing her offensive material, which included images of a sexual act between adults, attempting to procure her to do an indecent act, and attempting to procure her to engage in sexual behaviour, which would have involved him ejaculating into her mouth. In attempting to procure the child to do an indecent act and engage in sexual behaviour, the respondent offered her money. The child refused and asked to leave, eventually going home and reporting the incident in a distressed state.
Martino J referred to treatment the respondent received from a forensic psychologist in 2003, after being referred by his lawyer and before pleading guilty to the 2002 offences in May 2003.[39] The psychologist reported that the respondent took responsibility for the offences and displayed genuine remorse and victim empathy. The respondent had attributed the offending to being intoxicated, feeling lonely and depressed as a result of his recent marriage breakdown and being sexually abused as a child. Martino J noted that the respondent subsequently saw a counsellor, who reported that the respondent demonstrated remorse and victim empathy. His Honour referred to the fact that, at that stage, the respondent had been regarded as a low risk of reoffending.[40] The earlier offending had not yet come to light.
[39] GBT [39] - [40]
[40] GBT [41].
On 15 July 2003, the respondent was sentenced to a suspended term of imprisonment for the 2002 offences.
As Martino J outlined, the respondent then committed an offence of indecently dealing with a child under the age of 13 years in September 2003. The offence was committed against a 10-year-old girl who was friendly with the respondent's sister and lived next door. The respondent was living with his mother and sister. While the girl was visiting the respondent's house, he asked her to rub his penis for $10, and then exposed his penis. At the time of the offending, the respondent was subject to the suspended term of imprisonment imposed on 15 July 2003.
At the time of the proceedings before Martino J, the respondent had a pending charge against him of indecently dealing with a child under the age of 13 years, alleged to have been committed between January and February 2001.[41]
Other background information
[41] GBT [45].
The evidence before Martino J established that the respondent's childhood was marked by a lack of affection from his parents and bullying. He was also subjected to sexual abuse, in the presence of other boys, by a friend of his older brother. The combination of those circumstances left the respondent with low self-esteem.
The respondent had had regular employment after leaving school.
The respondent was previously married, and he has two daughters from that relationship. He described the marriage as 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 had a number of health issues which were being managed.
The respondent's behaviour in prison had been regarded favourably.
ISOTP
Martino J summarised the evidence in respect of the respondent's participation in the ISOTP as follows:[42]
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.
[The programme facilitators] 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.
Evidence in respect of risk assessment
[42] GBT [62] - [65].
The experts who prepared reports and gave evidence in respect of the respondent's risk of sexual reoffending were Dr Wynn Owen and Ms Chantelle Place, a psychologist.
In relation to Dr Wynn Owen's evidence, the following summary suffices to identify matters of particular relevance to the current assessment:[43]
[43] GBT [68] - [106].
(1)The respondent admitted all the offending for which she had been convicted, except the offences of sexual penetration of K.
(2)He told Dr Wynn Owen that when he committed the offences he was aroused and seeking sexual contact. He claimed that, at the time of the offending, he believed that the girls may be getting enjoyment from the contact, and he thought that belief was reinforced by the fact that the girls had returned to his house.
(3)He indicated to Dr Wynn Owen an awareness of the harmful impact of his offending on his victims, including their distress at the time and the potential lifelong impact on their ability to relate to others and form trusting relationships with men. He expressed remorse.
(4)Despite that awareness, the respondent did not articulate an understanding of the relationship between an adult and child, 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.
(5)Dr Wynn Owen diagnosed the respondent with having a paedophilic disorder and a cluster B personality disorder with antisocial and avoidant traits.
(6)Upon undertaking an assessment using the Static-99R actuarial instrument, Dr Wynn Owen assessed the respondent as being at an above average risk of being charged or convicted of another sexual offence.
(7)Using the Risk for Sexual Violence Protocol (RSVP) structured clinical framework, Dr Wynn Owen identified a number of historical and dynamic risk factors contributing to the respondent's risk of future sexual offending.
(8)The historical factors under the RSVP were chronicity, diversity and escalation of sexual violence, and coercion and psychological coercion in sexual violence. Coercion was evident in the fact that the respondent had persisted in offending against K, despite the fact that she had asked him to stop, had screamed in pain and had bled. He was also bigger and stronger than the girls. Psychological coercion was manifested in grooming, breach of trust, abuse of authority and enticement.
(9)The dynamic risk factors under the RSVP were extreme minimisation or denial of sexual violence (in that he continued to deny all of the offences of sexual penetration of which he had been convicted), attitudes that support or condone sexual violence (probably present, based on his protracted offending during which he justified his offending to himself, and his continued offending after one of the victims had disclosed the offending to the respondent's wife and while he was on a suspended sentence). Other dynamic risk factors identified by Dr Wynn Owen were problems with self-awareness, problems with stress or coping, some problems resulting from the respondent's abuse as a child, problems with both intimate and non-intimate relationships, problems with planning, problems with treatment, and problems with supervision. The problems with treatment were manifested in part by the fact that the respondent had reoffended after intervention with counsellors, showing he had not benefitted from the intervention. Problems with supervision were manifested by his offending while subject to a suspended sentence.
(10) Dr Wynn Owen found that the risk factor of Sexual Deviance was present in the form of paedophilia, which made it more likely that the respondent would sexually offend in the future.
(11)Dr Wynn Owen was of the view that the respondent did not have a psychopathic personality disorder, but he did meet the criteria for dissocial personality disorder, as he had three of the operational criteria for that disorder, namely:
(i)callous unconcern for the feelings of others, gross and persistent attitude of irresponsibility and disregard for social norms, rules and obligations;
(ii)incapacity to experience guilt and to profit from experience; and
(iii)marked proneness to offer plausible rationalisations for the behaviour which has brought him into conflict with society.
(12) Despite the fact that the respondent had completed the ISOTP, it was Dr Wynn Owen's opinion that the respondent presented a significant risk of serious sexual reoffending if not subject to continuing detention or a supervision order.
(13)Dr Wynn Owen made recommendations in respect of the future management of the respondent's risk, including that he receive counselling to address a number of the risk factors earlier identified.
(14)Dr Wynn Owen met with the respondent the day before the hearing to discuss with him a possible trial of anti-libidinal medication. The respondent would not agree to hormonal treatment, but said he would consider selected serotonin uptake inhibitor (SSRI) treatment if given more information about side effects.
(15)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 (SOMS).
In relation to Ms Place's evidence, the following summary suffices to identify matters of particular relevance to the current assessment:[44]
[44] GBT [107] - [123].
(1)As with Dr Wynn Owen, when interviewed by Ms Place, the respondent denied the sexual penetration offences against K. However, he also denied some matters of detail of his offending more generally, and denied the offence against N.
(2)Despite those denials, Ms Place was of the opinion that 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.
(3)However, the denials and the fact that the respondent attributed reasons for dishonesty to his daughter and K, indicated that the respondent continued to endorse a range of cognitive distortions. Apart from denial and minimisation, the cognitive distortions included externalisation of responsibility.
(4)The respondent demonstrated no insight into his risk of future sexual offending and was unable to identify his risk factors or high risk situations. He did not consider himself to be at risk of future sexual offending. Ms Place was of the view that, without knowledge of his risk factors and high risk situations he would be unable to implement strategies to manage these appropriately.
(5)Like Dr Wynn Owen, Ms Place considered that the respondent met the diagnostic criteria for paedophilic disorder.
(6)Ms Place also used Static-99R for risk assessment, but used the STABLE-2007 assessment instrument to measure criminogenic needs, identifying the following among the areas of concern: 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.
(7)The respondent's scores from the two assessments placed him at a level where individuals are considered to be a well above average risk of sexual reoffending.
(8)In terms of conditions, in the event the respondent were released on a supervision order, Ms Place did not support a curfew, because his offending had occurred at home, so that it was not obvious how a curfew would reduce risk, and a curfew might impair the respondent's ability to engage in appropriate adult activities with new adult friendships.
(9)Ms Place was of the view that the ISOTP facilitators 'misdiagnosed' the respondent in saying that he had no further treatment needs. Ms Place considered the respondent had outstanding treatment needs. She recommended that he receive psychological treatment. She considered that the respondent's deviant sexual interest was one of the most significant outstanding treatment needs and it was one of the most significant predictors of sexual recidivism. It was her view that, ideally, treatment should commence while the respondent was in custody. However, if it was to commence in the community, upon release subject to a supervision order, the initial focus would be on reintegration into the community and the development of coping skills and other skills to deal with problems in the community.
(10)As the respondent lacked internal risk management strategies, it was preferable that they be worked on while he remained in custody, so that reducing the risk of reoffending would not depend solely on external management by the Department of Justice.
(11)Ms Place agreed that the proposed management plan and conditions for the release of the respondent into the community, as identified at that time, would reduce the respondent's risk to the community. She did not propose any other conditions.
Ms Collyer also prepared a report and gave evidence at the hearing, which was directed at proposing a management plan (particularly in terms of treatment) to manage the respondent's risk, rather than assessing risk. Nevertheless, it was necessary for her to identify criminogenic factors and treatment needs for that purpose, and she reviewed the respondent using the Violence Risk Scale: Sexual Offender Version (VRS-SO). In summary, the following matters emerged from Ms Collyer's evidence:
(1)The respondent told Ms Collyer that since participating in the ISOTP he had reflected significantly on his own life experiences and on his offending behaviour, and he had developed increased awareness of his responsibility for the offending behaviour. As a result, he acknowledged his attraction to children, including a need to divert fantasy toward adult females, he acknowledged his offending against his daughter, L, and that his daughter's friends had shown signs they did not want his advances, and he understood the need to develop healthy adult relationships.
(2)After administering the VRS-SO, Ms Collyer was of the opinion that sexual deviance was 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.
(3)Importantly, as his Honour noted:[45]
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.
…
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.
(4)Ms Collyer recommended individual psychological treatment, rather than participation in a further ISOTP, with a particular focus on sexual deviancy. She also recommended that, if the respondent were to be subject to a CDO, he be progressed to a self-care setting in the prison. If the respondent were to be released on a supervision order, Ms Collyer was of a similar opinion as Ms Place, being that the initial focus of treatment would be on community reintegration.
[45] GBT [128], [130].
The SCCO who prepared a Community Supervision Assessment report and gave evidence before Martino J was Ms Lisa Rathmann. The matter of particular relevance is that accommodation was not available at that time through the Dangerous Sexual Offender Supported Accommodation Program, but there was suitable accommodation available through another well-known accommodation programme in which the service provider made available short term crisis and transitional accommodation for males over the age of 18 years who are homeless or at risk of homelessness, for a period of up to six months.
Ms Rathmann had also proposed conditions to manage the respondent's risk of offending if he were to be released on a supervision order. Martino J noted that those conditions were consistent with the assessments of Dr Wynn Owen, Ms Place and Ms Collyer, apart from the fact that Ms Place did not support a curfew. Ms Rathmann gave evidence that a curfew can provide structure to people who have spent a lengthy period in custody.[46]
[46] GBT [142].
In finding that the respondent was a serious danger to the community, Martino J accepted the evidence of Dr Wynn Owen that the respondent presented a significant risk of serious sexual offending if not subject to a CDO or supervision order. His Honour considered that the respondent's history of sexual offending and his paedophilic disorder were the most significant factors in that assessment. He also considered it significant that the respondent had not acknowledged his paedophilia to Dr Wynn Owen.[47]
[47] GBT [151].
His Honour was satisfied that the respondent's history showed he had a propensity for sexual offending, and that there was a pattern of offending, in that he offended against female children, initiating the offending behaviour by engaging in a pretext of playing games, and the offending escalated in seriousness if he was given the opportunity to do so. His Honour was satisfied that, if the respondent did get that opportunity, it could lead to a violent, non-consensual sexual assault.[48]
[48] GBT [155].
His Honour found that, while the respondent had undertaken the ISOTP, he had not acknowledged his sexual attraction to children during that programme. Although the respondent had acknowledged that sexual interest to Ms Collyer, and had indicated he wished to overcome his offending behaviour, these were areas that required further exploration and consolidation.
Having found that the respondent was a serious danger to the community, his Honour concluded that a supervision order would not ensure adequate protection of the community. It is convenient to set out his Honour's reasons in respect of that issue:[49]
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.
[49] GBT [163] - [169].
It is appropriate to note that his Honour also expressed the following views about the lack of treatment available to the respondent since the ISOTP:[50]
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.
[50] GBT [170] - [171].
For the reasons set out above, Martino J decided to order that the respondent be detained in custody for an indefinite term for control, care or treatment. His Honour noted that, while the respondent continued to be detained in custody, he should receive individual psychological treatment to address his deviant sexual interest in children.[51]
[51] GBT [172].
Findings made by Corboy J in 2020
At the first review of the respondent's continuing detention, on 21 September 2020, conducted under the HRSO Act, Corboy J was satisfied that the respondent remained a high risk serious offender. His Honour concluded that it was necessary at that stage to affirm the CDO. His Honour gave his decision on 30 September 2020, at which time he gave relatively brief oral reasons, with the intention of publishing more detailed reasons in due course. However, as the respondent appealed against his Honour's decision before more detailed reasons were published, his Honour concluded it was no longer appropriate to publish more detailed reasons.[52] Instead, his Honour published the oral reasons he gave at the time he delivered his decision.
[52] GBT [No 3] [6].
It is convenient to reproduce his Honour's findings in full. The evidence at the first review was given by Dr Wynn Owen (in respect of risk assessment), Dr Riordan (in respect of a proposed management plan) and Ms Mandolene (the SCCO responsible for managing the respondent's case).[53] His Honours findings were as follows:[54]
[53] Although his Honour did not specify Ms Mandolene's role or the evidence she gave, it appears from other evidence that she was the SCCO who prepared the Community Supervision Assessment Report for the first review. See [103] below and BOM 1923.
[54] GBT [3] [17] - [31].
I am satisfied that the respondent remains a high risk serious offender. That is, I am satisfied, by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
In making that finding I have considered, as I am obliged to do, the matters referred to in s 7(3) of the HRSO Act. Further, I found the evidence of Dr Wynn Owen, Dr Riordan, and Ms Mandolene to be acceptable and cogent, having regard to the nature of the issue that I am required to determine.
Put very briefly, Dr Wynn Owen has diagnosed the respondent as suffering from a paedophilic disorder, non-exclusive type, with a preference for females and also from a personality disorder with antisocial and avoidant traits.
In my view, both disorders are relevant to the risk of the respondent offending in the future. The diagnosis reflects in part, and explains in part, the respondent's significant history of sexual offending and the nature and repetition of his offending (what the Act sometimes refers to as 'the pattern' of the respondent's offending).
In the opinion of Dr Wynn Owen, the respondent presented a high risk of future serious sexual offending if not subject to a continuing detention or supervision order. That appears in exhibit 1 at page 200.
Dr Wynn Owen acknowledged that the respondent had made some treatment gains, but said in his evidence-in-chief, when questioned by Ms Watson:
So your overall conclusion in terms of [the respondent's] risk if he's not subjected to a restriction order by a continuing detention order or a supervision order, you've confirmed is still a high risk?--- Yes.
Of serious of sexual offending?--- Yes, on the basis of not just the Static, but also the outstanding dynamic factors that are as yet unaddressed. It's early days in terms of acknowledgement of sexual deviance, for example. And that is a significant factor in [the respondent]. And his problems with isolation, stress and coping, relationships, et cetera, are all factors of considerable relevance to this (ts 164).
The reference to 'Static and dynamic factors' in that answer is to actuarial tests that were undertaken by Dr Wynn Owen.
Dr Riordan outlined the history of the respondent's participation in programs designed to address the risk of his reoffending. As I have indicated, Dr Wynn Owen considered that the respondent had made gains from counselling which had reduced the risk of reoffending from when the continuing detention order was made by Martino J in 2017. Dr Riordan gave evidence about the counselling the respondent had received since 2017 and about his response to counselling.
The picture that emerged was, not unsurprisingly, complex. However, I broadly accept the submissions made by Ms Watson in her closing address about the effect of counselling in moderating the risk of the respondent reoffending. The fact that the respondent gave different reports to Dr Riordan, Ms Mandolene and Dr Wynn Owen on whether he still experienced sexual thoughts and fantasies about prepubescent females indicated a concern about the efficacy of his counselling to date and the possible need for further treatment.
Another area of concern was the link drawn by Dr Wynn Owen between the risk of the respondent reoffending and feelings of stress and social isolation that the respondent experiences and may continue to experience more significantly on release to the community. That link was relevant to the question of whether the respondent had discharged the onus of establishing, on the balance of probabilities, that he would comply with the standard conditions of a supervision order, and ultimately, whether I could be satisfied that the community would be adequately protected if a supervision order was made.
There was evidence that the respondent has some financial capacity to obtain private accommodation if he was released to the community. However, no accommodation has as yet been arranged. In my view, the community could not be adequately protected if a supervision order was made on the basis that the respondent would, at some stage, obtain accommodation. That is so even if the accommodation to be obtained was subject to some condition concerning police or Community Corrections approval.
In my view, the Act does not permit a supervision order to be made subject to some condition being satisfactorily fulfilled after the order is made but before an offender is released pursuant to the order. In any event, I consider the nature and causes of the respondent's offending are such that the question of his accommodation in the community is a critical issue in determining whether I could be satisfied, first, on the balance of probabilities, that the respondent would not commit a serious offence during the term of any supervision order that might be made, and second, that the community would be adequately protected if a supervision order was made.
The question of whether or not there is adequate accommodation available for the respondent to remain in the community that would satisfy each of those concerns depends in my view, at least in part, on whether the respondent could access structured accommodation if he was released to the community. By 'structured', I mean accommodation that had a security component, as well as other supervision aspects - accommodation that minimises the possibility of the respondent coming into contact with children, apart from very incidental contact, and which was in a location that reflected the respondent's diagnosis of a paedophilic disorder and a personality disorder.
Accommodation of that kind is not presently available to the respondent. I accept that those requirements present practical difficulties for the respondent in obtaining his release to the community while he is held in custody. That is a matter on which I propose to make some comment in my reasons to be published. However, the Act prescribes that the paramount consideration in determining whether a supervision order should be made is the need to ensure adequate protection of the community.
That consideration must ultimately govern the determination of whether an offender who has been found to remain a high risk serious offender should be released to the community under a supervision order. For those brief reasons, and for reasons to be published which will more fully identify the findings that I have made and the conclusions that I have reached, I will affirm the continuing detention order pursuant to s 68(1)(b) of the HRSO Act.
The order affirming the continuing detention order will be made today, so the time for the next review will run from today. The order will not await publication of my more detailed reasons and I will make sure that that date is notified to Community Corrections.
It is apparent that the two significant issues that led his Honour to conclude that the CDO should be affirmed were:
(1)his Honour's assessment that the respondent gave different accounts to Dr Riordan, Ms Mandolene and Dr Wynn Owen in respect of whether he still experienced sexual thoughts and fantasies about prepubescent females, which, in his Honour's view, indicated a concern about the efficacy of the respondent's counselling to date and the possible need for further treatment; and
(2)the lack of suitable accommodation to which the respondent could be released on a supervision order, which precluded the making of a supervision order in any event.
Current review
Structure of the balance of these reasons
The first question to be determined in these proceedings is whether the respondent remains a high risk serious offender. That requires consideration of the matters listed in s 7(3) of the HRSO Act. There is no real issue in these proceedings that the respondent remains a high risk serious offender, and it will be apparent from my finding in that regard that I have considered all of the matters listed in s 7(3).
Further, the matters to which the Court must have regard under s 7(3) overlap. For instance, the matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed, in turn, by the information and findings in respect of all of the other matters listed in s 7(3), including the reports of experts and other reports. Consideration of the questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning efforts at rehabilitation and the effect of participation in rehabilitation programmes.
As will become apparent later in these reasons, a significant matter in determining whether the respondent's risk can be adequately managed under a supervision order is his progress, in terms of the therapeutic gains he has made, since the CDO was made in 2018. It is convenient, therefore, to commence with the reports of his treating psychologist during the time he has been subject to the CDO. Two of those reports were in evidence before Corboy J at the first review, but it is appropriate to consider those reports to put in context the opinions expressed by Dr Wynn Owen and Ms Collyer in the present proceedings. In a similar context, I will then consider the opinions expressed by Dr Riordan in her report for the first review, before turning to the respondent's progress since the first review, as reported by Ms Collyer. I will then consider Dr Wynn Owen's assessment.
Ms Ballantyne's reports
Ms Ballantyne, a Senior Counselling Psychologist with the Forensic Psychological Service (as it then was) with the Department of Justice, was assigned to provide psychological intervention to the respondent. I note that it is appropriate that the treating psychologist is not called in proceedings of this kind, so as to avoid the therapeutic relationship being compromised. That is so, even if the relationship has ceased and another psychologist has been engaged. In earlier times, the reports of a treating psychologist would be provided to the psychologist who prepared a treatment progress report for the Court, but would not be tendered in proceedings under the DSO Act. In my opinion, it has been of significant assistance to have Ms Ballantyne's reports in evidence, as they have provided a more direct insight into the respondent's progress during treatment. There is no suggestion that this has adversely affected the respondent's preparedness to engage in counselling.
In her Individual Intervention Progress Report of 3 September 2018, Ms Ballantyne reported that the respondent had participated in individual counselling between February and August 2018, and that, 'broadly speaking' the intervention 'served to expand upon and explore in greater depth some of the gains made by [the respondent] during his previous participation in [the ISOTP], with particular attention to the nature and possible continuation of sexually deviant interests experienced by [the respondent]'.[55] Ms Ballantyne noted that the respondent's legal matters affected 'his physical and psychological availability to meaningfully attend to counselling while his circumstances remain unclear', and it was in that context that intervention continued, and was ultimately suspended in mid-August 2018.[56] However, she reported that, despite those distractions, the respondent exhibited increasing awareness of the difficulties he had experienced with the establishment of long-term, meaningful interpersonal relationships with both male and female peers.[57] Ms Ballantyne said:[58]
He described an emotionally impoverished family environment, with few opportunities to observe his parents or other adult role models in supportive, equitable intimate partnerships. He has continued to acknowledge and practice assertive communication in the awareness that adopting a "victim" stance contributed to [the respondent's] social and emotional isolation in the past, his seeking to have social, sexual and inclusion needs met inappropriately with those underage girls to whom he had access. His descriptions of the circumstances involving the offences he committed most recently, after his final separation from his (then) wife occurred in similar circumstances but were not afforded as much explicit attention during this period of intervention as might occur as a future focus for discussion in continuing counselling.
[55] BOM 1884, Ms Ballantyne's report, 3/9/2018 [29].
[56] BOM 1884, Ms Ballantyne's report, 3/9/2018 [30].
[57] BOM 1884, Ms Ballantyne's report, 3/9/2018 [31].
[58] BOM 1884, Ms Ballantyne's report, 3/9/2018 [31].
Ms Ballantyne reported that the respondent's possible future engagement with psychological services would be subject to assessment, and would depend on his legal status.[59]
[59] BOM 1884, Ms Ballantyne's report, 3/9/2018 [33].
In a further Individual Intervention Progress Report dated 30 July 2020, Ms Ballantyne reported that, after the intervention that had occurred from February to August 2018, she had conducted one further session with the respondent in mid-July 2019, at which time it was agreed that re-engagement with counselling would occur at his request closer to the date of his first annual review.[60] The respondent sought to do so in late November 2019. Since that time, he had engaged in 11 counselling sessions from 21 November 2019 to 11 June 2020. There had been breaks during that period due to COVID-19, operational reasons and staff leave, but those disruptions were not considered to have had a negative impact on the progress or content of intervention.[61] Ms Ballantyne reported:[62]
The primary concerns and recommendations of expert witnesses at his initial hearing for [the DSO Act] related to [the respondent's] minimisation and justification of aspects of his offending behaviour and the barrier this posed to him accepting his potential for a return to such behaviour, or developing adequate future risk and self-management plans in that regard. Those concerns were evident and addressed in intervention occurring as a consequence of the [CDO] and subsequently suspended for reasons outlined in the earlier treatment progress report. During the current period of additional intervention, [the respondent] has presented with greater acceptance of his legal circumstances and the restrictions likely to be placed on him if a Community Supervision Order (sic) is granted at his upcoming Annual Review.
[The respondent] has appeared more prepared to accept, discuss and actively attempt to address, plan or consider possible future scenarios relevant for his continuing self-management, risk mitigation and compliance with the conditions of any future community supervision order. In this regard, he has impressed as better prepared, willing and able to accept and co-operate with necessary means for managing his risk in a community setting than at the commencement of counselling.
The consolidation and ongoing attention to other psychological risk factors of relevance for [the respondent's] future self-management is unlikely to occur while his capacity to practice strategies is severely restricted by his continuing detention. In this respect, should [the respondent] remain in custody the provision of ongoing individual intervention would be suspended until closer to his next review at which time re-engagement with a view to support and further scenario planning dependent upon his personal circumstances at that time would occur.
If [the respondent] is released to community supervision, individual intervention will continue with attention in the first instance to his adjustment to the range of circumstances, context, relationships and other matters arising on his initial release from custody.
[60] BOM 1890, Ms Ballantyne's report, 30/7/2020 [3].
[61] BOM 1890, Ms Ballantyne's report, 30/7/2020 [3].
[62] BOM 1890, Ms Ballantyne's report, 30/7/2020 [17] - [20].
In her End of Treatment Report dated 5 May 2022, Ms Ballantyne reported that the respondent's treatment was suspended in June 2020 in advance of the first review of his continuing detention. The respondent had been informed that the provision of psychological treatment would be reassessed or resumed depending on the outcome of that review.[63] The respondent was subsequently seen by Ms Ballantyne on one occasion after Corboy J's decision in the first review and the subsequent appeal against that decision. That was on 15 April 2021. It was not anticipated that further psychological intervention would occur while the respondent was pursuing an appeal, but a face-to-face meeting was arranged to discuss the respondent's interim circumstances, his progress and any intention for continuing psychological contact if or when appropriate. The respondent indicated that he had not been anticipating further psychological contact, based on discussions prior to the first review, from which he had the impression that further 'meaningful treatment' would require his circumstances to change, which he understood to mean release into the community.[64]
[63] BOM 1892, Ms Ballantyne's report, 5/5/2022, p 1.
[64] BOM 1893, Ms Ballantyne's report, 5/5/2022, p 2.
Ms Ballantyne noted that, after Corboy J handed down his decision, the most relevant matter regarding the respondent's progress and future targets for criminogenic intervention was his Honour's finding that the respondent had given conflicting accounts to the three witnesses called at the first review about his sexually inappropriate thoughts and fantasies, and that this gave rise to a concern about the efficacy of the respondent's counselling to date and the possible need for further treatment.[65] Ms Ballantyne did not express any view about that issue. Nor had she arranged to discuss that issue with the respondent.
[65] BOM 1893, Ms Ballantyne's report, 5/5/2022, p 2.
Ms Ballantyne reiterated that the plan had been to reassess the respondent's readiness to engage in further psychological intervention some months before the current review. However, the respondent had not sought to re-engage with the psychological service, and Ms Ballantyne was no longer able to initiate follow-up contact.[66] As will appear below, Ms Ballantyne subsequently left the Department of Justice. In her report, Ms Ballantyne indicated that another psychologist from the Forensic Psychological Intervention Team (FPIT) would need to be allocated to provide counselling to the respondent, whether in custody or in the community.
[66] BOM 1893, Ms Ballantyne's report, 5/5/2022, p 2.
Dr Riordan's report for the first review
In her report of 21 August 2020, Dr Riordan noted that the respondent had engaged in a range of forms of treatment since 2003, and the identified treatment goals had been consistent, in both group-based and individual intervention, repeatedly targeting deficits in the respondent's social and emotional skills (particularly in the use of assertive communication), issues with self-esteem and self-efficacy, the need to increase his self-management and coping skills (rather than relying on the use of illicit substances), his enduring deviant sexual interest in children and associated beliefs and attitudes that are supportive of offending.[67] Dr Riordan observed that treatment completion reports had generally produced positive opinions with respect to the respondent's treatment gains, but that the conclusions of the facilitators of the ISOTP, that the respondent did not have outstanding treatment needs, had been considered subsequently to be incorrect, noting Ms Place's opinions referred to above.
[67] BOM 1659, Dr Riordan's report, 21/8/2020 [25].
Dr Riordan noted that the respondent's 'self-reflection' of the progress he had made during intervention sessions had not changed appreciably over time, referring to 'an increased ability to identify and manage emotional states, engage in more assertive communication and increased awareness of the impact of his offending behaviour on the victims of his offences'.[68] Dr Riordan said:[69]
Overall, [the respondent] tended to highlight general self-management skills (e.g. engaging in exercise and other healthy lifestyle factors, establishing vocational and recreational interests) as his primary source of risk management strategy, demonstrating to some extent, reliance on external constraints to manage his behaviour. His tendency to default back to highlighting practical routine based lifestyle factors is likely to be a function of his concrete thinking style, and long term incarceration, the likes of which significantly minimises his exposure to potential high risk or ambiguous situations which would necessitate the use of internal risk management strategies.
[68] BOM 1659, Dr Riordan's report, 21/8/2020 [26].
[69] BOM 1659, Dr Riordan's report, 21/8/2020 [26].
The respondent had demonstrated increased self-awareness in relation to his psychological functioning and factors that have contributed to his sexual offending. However, Dr Riordan observed that while self-awareness was an important dynamic risk factor with respect to managing potential high risk situations, it is of 'limited utility in the absence of motivation to enact the strategies developed to manage high risk situations'.[70] So, while Ms Ballantyne had drawn upon the use of scenario planning to increase both the respondent's awareness of the potential high risk situations he may encounter in the community and appropriate ways to manage such situations, his motivation and ability to employ such strategies in a broader context, such as within the community, remained largely untested.[71]
[70] BOM 1659, Dr Riordan's report, 21/8/2020 [26].
[71] BOM 1659 -1660, Dr Riordan's report, 21/8/2020 [26].
Dr Riordan discussed the respondent's internal risk management strategies, as described by him, including 'internal thought stopping strategies and drawing upon self-talk' when he noticed himself to be interested in or aroused by an underage character on television.[72] He had also attempted to 'completely abstain from all sexual thoughts, fantasy and masturbation, seemingly in a misguided attempt to cure his deviant sexual interest through self-imposed punishment', but had recognised during counselling that 'forced abstinence paradoxically increased his sexual interest'.[73] He told Dr Riordan that he had been able to reinstate strategies to have his sexual needs met in what he described as an age appropriate manner. Dr Riordan noted that there is no objective way to test whether such strategies are being put to use by the respondent to manage any deviant sexual interest. The treating psychologist and the risk management team are reliant on the respondent's self-reporting in that regard.[74] Those observations applied equally to the respondent's claim that he did not draw upon images or depictions of children to induce sexual arousal or facilitate masturbation.[75]
[72] BOM 1660, Dr Riordan's report, 21/8/2020 [27].
[73] BOM 1660, Dr Riordan's report, 21/8/2020 [27].
[74] BOM 1660, Dr Riordan's report, 21/8/2020 [27].
[75] BOM 1660, Dr Riordan's report, 21/8/2020 [27].
Dr Riordan was of the view that, in relation to treatment gains made in other areas of intervention, such as interpersonal relationships and communication style, the respondent appeared to overestimate his application of the skills he had learned and the potential gains he had made.[76] Collateral information obtained by Dr Riordan suggested the respondent had yet to become proficient in changing his interpersonal style so that it was observable to others.[77]
[76] BOM 1660, Dr Riordan's report, 21/8/2020 [28].
[77] BOM 1660, Dr Riordan's report, 21/8/2020 [28].
In relation to the development of an intimate relationship with a partner, Dr Riordan noted that the respondent presented with strongly held misogynistic beliefs and attitudes with respect to the role of women in intimate relationships and sexual behaviour, which may present as a barrier to the development of an age-appropriate intimate relationship with a partner. However, there was no evidence that he was outwardly hostile towards women, and he appeared to respond well to women in positions of authority, so it seemed that the problematic beliefs and attitudes were less likely to be a barrier to a supervisory or therapeutic relationship.[78]
[78] BOM 1660, Dr Riordan's report, 21/8/2020 [29].
With respect to the respondent's self-management skills, including his ability to regulate his emotional states, it appeared to Dr Riordan that he had developed a sound ability to recognise 'aversive emotional states' and to employ strategies to moderate the influence of those emotional states on his state of wellbeing.[79] By way of example, Dr Riordan referred to the fact the respondent demonstrated 'sound awareness of the benefit of drawing upon avenues of informal and formal supports to assist coping, in addition to drawing upon routine exercise to regulate mood states'.[80] She also noted that the respondent had remained abstinent from alcohol and illicit substances for a significant period of time, although his abstinence remained to be tested in the community. Finally, Dr Riordan noted that the respondent appeared to be both accepting of and willing to comply with any requirements to which he may be subject, including restrictions that may be placed on his interactions with his grandchildren. Ms Ballantyne had indicated that this was a significant shift for the respondent.[81]
[79] BOM 1661, Dr Riordan's report, 21/8/2020 [30].
[80] BOM 1661, Dr Riordan's report, 21/8/2020 [30].
[81] BOM 1661, Dr Riordan's report, 21/8/2020 [30].
In conclusion, Dr Riordan reported:[82]
[The respondent] has engaged in a substantial amount of treatment to date. The most recent period of individual intervention has focussed on the areas of interpersonal relationships; sexual interest and behaviour, emotional regulation and future self-management planning. Overall, [the respondent] appears to have engaged adequately in the intervention to date, demonstrating variable treatment gains across the targeted areas. It is clear that [the respondent] has further developed insight, awareness and acceptance of the factors that have contributed to his offending behaviour and the proposed conditions attached to any Community Supervision Order (sic), which has assisted with the development of future self-management planning. He does however appear to overestimate the extent to which he is able to effectively apply some of the strategies that he has learnt, particularly in the realm of interpersonal relationships, assertive communication and conflict resolution. Further development of these skills are likely to occur when exposed to and interacting with more diverse settings and situations. It is difficult to objectively assess the effectiveness of [the respondent's] self-reported internal risk management strategies and these remain untested in the community setting. It is encouraging however that [the respondent] remains willing to engage in the monitoring and development of relevant internal risk management strategies that can be used to compliment external constraints on his behaviour as part of an overall risk management plan.
[82] BOM 1661, Dr Riordan's report, 21/8/2020 [31].
As I indicated earlier, I am satisfied that the conditions are reasonable and do not go beyond what is necessary to ensure adequate of the community.
Finally, the respondent now has available to him suitable accommodation as discussed above. While there remained some uncertainty at the conclusion of the last hearing day as to when the respondent would be assigned a psychologist for counselling in the community, I am satisfied that it will occur in sufficient time for the respondent to commence counselling soon after his release, potentially in the first week. That is the Court's expectation. I am satisfied that the supervision and monitoring conditions will provide a significant degree of mitigation of risk until treatment recommences. Although not in a therapeutic setting, the supervision process allows the respondent's CCO to explore issues with him that may need to be addressed to assist him to deal with stress or coping in the early stages of the supervision period. I do not consider that the lack of certainty as to when counselling will commence is an obstacle to making a supervision order.
For the above reasons, I am satisfied that, at this time, the community can be adequately protected if the respondent is subject to a supervision order. Accordingly, I should rescind the CDO and make a supervision order.
Duration of supervision order
Dr Wynn Owen considered that a period of five years would be necessary to enable the benefits of psychological counselling to take effect, with the goal of reducing the respondent's risk of sexual reoffending to an acceptable level without restrictions.[235]
[235] ts 265. See [182] above.
Under s 36 of the HRSO Act, the State may apply for a restriction order in relation to an offender who is subject to a supervision order that is to expire within one year. There is provision, therefore, for the State to apply for a further supervision order if, approaching the end of the supervision order I make, there is evidence that the respondent's risk is still at a level where there is a need for a further period of restriction, in order to provide adequate protection of the community.
I am satisfied, on the evidence of Dr Wynn Owen that the timeframe for supervision to adequately protect the community should be at least five years. I am satisfied that is the appropriate period for which the respondent should be subject to the supervision order, and the respondent's circumstances can be reviewed by the authorities in the final year of that period to determine whether a further order is necessary.
Commencement date
Section 27(3) of the HRSO Act provides that the date from which a supervision order has effect must not be earlier than 21 days after the date the order is made, unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
Having regard to the evidence I have outlined, I am satisfied that it is practically feasible for the supervision order to have effect from 28 November 2022.
Suppression order
Although I have not mentioned the address where the respondent will be residing, I am satisfied that a suppression order is appropriate with respect to the address should it become known.
There have been incidents in the past in which persons dissatisfied with the release of an offender on a supervision order have attended that offender's residence in an inappropriate and intimidating manner and have harassed the offender or persons who are supervising or monitoring the offender. Such conduct has the potential to compromise the effectiveness of a supervision order to adequately ensure protection of the community from the offender's risk of serious reoffending. For instance, the conduct may interfere with the work of persons whose responsibility it is to supervise and monitor the offender, with the consequence that the effectiveness of their roles is reduced. It might cause an offender to decompensate as a result of stress from the harassment or from knowing that his accommodation is compromised, which could result in an increase in the offender's risk of committing a serious offence. It can have the consequence of making even more difficult the task of finding residential properties for use by persons released on supervision orders.
To the extent that persons in the vicinity of the relevant accommodation need to be informed of the respondent's circumstances, that can be addressed by COMU and WA Police. Otherwise, there is no pressing public interest in the community being aware of where the respondent is residing. The adequate protection of the community is ensured by the comprehensive conditions of the supervision order. To the extent that there is a public interest in the information being available, it is outweighed, in my opinion, by the need to ensure the orderly implementation of the supervision order as a step in the administration of the HRSO Act, which is concerned with protection of the community, not punishment of offenders who have already served the sentence imposed on them for their offending.
Accordingly, I will make a suppression order in respect of the address of the respondent's residence.
For the same reasons, I have decided that it is appropriate to anonymise the respondent's identity in these reasons, as was done in GBT.
Orders
Accordingly, I order that:
(1)The CDO made by Martino J on 24 November 2021 is to be taken to be rescinded from 28 November 2022.
(2)From 28 November 2022, when not in custody, the respondent is to be subject to conditions in the terms of the Supervision Order annexed to these reasons.
(3)The Supervision Order is to have effect for a period of five years from 28 November 2022.
(4)There is to be no publication of the address, including the suburb, to which the respondent will be released to reside. This order does not apply to communication by any representative of a party to these proceedings for the purpose of conducting the case or providing advice in respect of the case or by any person who is responsible for supervising the respondent if the communication is necessary for that purpose.
(5)Until further order, no person shall publish or cause to be published in any newspaper other publication, or broadcast or cause to be broadcast by radio or television, or by any other electronic means a report of these proceedings containing the name of the respondent who is concerned in these proceedings.
Annexure
_________________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 21 NOVEMBER 2022
_________________________________________________________________________
Pursuant to section 68(1)(b)(ii) of the High Risk Serious Offenders Act 2020, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (HRSO Act), the Court makes a supervision order in relation to the Respondent (this Order), for a period of 5 years from 28 November 2022, on the following conditions:
You, GBT, must:
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth Western Australia within 48 hours of the Order being made and advise the officer of your current name and address.
Report to, and receive visits from, a CCO as set out in this Order.
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a CCO, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32).
Not leave, or stay out of the State of Western Australia without the permission of a CCO.
Not commit a serious offence during the period of the Order.
Be subject to electronic monitoring under section 31.
ADDITIONAL CONDITIONS
Residence
Take up residence at [REDACTED] and spend each night at that address, unless a different address is approved in advance by a CCO assigned to you, in which case you are to reside at and spend each night at the address approved in advance by the CCO.
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order unless they otherwise direct.
Be under the supervision of a CCO, report to and receive visits from a CCO at times and at places as directed by the CCO, and comply with the lawful orders and directions of a CCO.
Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO.
Reporting to WA Police
Report to the Officer-in-Charge of the Serious Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from a police officer or police officers from WA Police Force (Police Officer/Police Officers) at times and at locations as directed by the Officer-in-Charge of the Serious Offender Management Squad or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your residence and/or vehicle, and search your person, for the purpose of monitoring your compliance with your obligations under this Order, and allow the seizure of any such items that the Police Officers believe to contravene the conditions of this Order.
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020.
When requested, advise a Police Officer of the names of all of your internet service providers, all mobile or landline telephone services used by you and all screen name(s), user name(s), and email addresses. Further, you must authorise Police Officers to access any cloudbased platforms or services associated with the devices you use, and examine your internet accounts at any time for the purposes of monitoring your online behaviour (in the absence of any investigation for any offence).
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, Police Officers, or other person or agencies approved by the CCO, to interview any of your associates or potential associates and, where appropriate, to disclose to them confidential information, including your offending history.
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your sexual and violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and you must avert your gaze from such victims at all times.
In relation to contact with [REDACTED], you may only have mail (physical written or typed letters) contact, unless given a direction by the CCO that you may have contact by other means, or unless alternative contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice.
Report to the CCO and a Police Officer any direct or indirect contact with the victims of your offending on the next working day you report to the CCO or a Police Officer.
Criminal conduct
Not commit any criminal offence for which the maximum penalty includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s202, s203, s204, s557K of the Criminal Code (WA), or s17(1) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021.
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring you compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware of your obligations, and you must request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Prevention of high-risk situations
Report, at your next contact with your CCO, the formation of any social association (with whom you have had contact more than once by any means), and any domestic, romantic, sexual or otherwise intimate relationship you have with any person.
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (with whom you have had contact more than once by any means), or a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place.
Provide a valid sample for analysis or testing pursuant to Condition 35.
Not purchase, possess, consume or use alcohol.
Not go to, enter any part of your body inside, or remain at any licensed premises unless permitted or required to do so for the following reasons:
(a)For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person.
(b)For a purpose, and duration approved in advance by a CCO or Police Officer.
(c)On the order of a CCO or Police Officer.
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence.
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)The contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO, except that you may have contact with your two grandsons, [REDACTED] and [REDACTED], without the need for a CCO to appoint a supervisor, provided that you seek approval from a CCO and such approval is granted prior to such contact;
(b)The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch, and whether in person, in writing, by telephone or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication)
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide to your CCO and to a Police Officer, on the next occasion you report to such officer, the name, address, location and any details known by you of any child under the age of 18 years with whom you have had contact.
Not form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time, including former victims of your previous offending, without prior approval from a CCO.
Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 45, without prior approval.
Enable device locking or password access of your computer, telecommunication and/or electronic devices, and not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 45, or any online accounts, to any person other than a CCO or Police Officer.
Upon request, permit a CCO or a Police Officer, at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data or information, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or Police Officer upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data or information including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or a Police Officer.
Not access or be in possession of any pornographic material, in either hardcopy or digital form, unless authorised in advance by a CCO. 'Pornographic materials' means materials in printed or visual form, or in any other form of medium, that contains the explicit description or display of sexual organs or activity, but does not include chests, or breasts or nipples or backsides with clothing covering the anus.
Not enter the premises of, or access the services of, escort agencies or sex workers unless prior approval is obtained by you from a CCO.
Maintain a daily diary of your movements, activities and associations, if and as directed by a CCO, and present this diary to the CCO and Police Officers upon request.
Whilst in any public place or in view of a public place, not be in possession of any animate or inanimate item capable of constituting an enticement to children, unless such possession is for a legitimate purpose and approved in advance by a CCO.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Associate to the Honourable Justice Fiannaca
21 NOVEMBER 2022
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