The State of Western Australia v Griffiths [No 2] - [2016] WASC 411

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- GRIFFITHS [No 2] [2016] WASC 411

CORAM: MARTINO J

HEARD: 21 OCTOBER & 16 DECEMBER 2016

DELIVERED : 20 DECEMBER 2016

FILE NO/S: DSO 5 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
KENNETH JAMES GRIFFITHS
Respondent

Catchwords:

Criminal law and procedure - Dangerous sexual offender - Review hearing

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA)

Result:

Continuing detention order rescinded
Supervision order made

Category: B

Representation:

Counsel:

Applicant: Ms S Markham
Respondent: Ms M R Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers

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

Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393

MARTINO J: This is the first review of an order made by on 20 October 2015 Hall J pursuant to s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) that Mr Griffiths be detained in custody for an indefinite term for control, care and treatment: Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393. The review is pursuant to an application made on 11 March 2016 by the Director of Public Prosecutions (DPP) under s 29 of the Act.
I have decided that Mr Griffiths remains a serious danger to the community, that suitable accommodation is available for him to be released to and that Mr Griffiths is suitable to be released into the community under a supervision order for a period of five years. I have therefore decided to cancel the continuing detention order and make a supervision order.
On a review of a continuous detention order the court must rescind the order if it does not find the person subject to the order remains a serious danger to the community: s 33(1)(a). If the court finds that the person remains a serious danger to the community the court must either affirm the continuing detention order or, with effect from a date not earlier than 21 days after the day on which the review is concluded, rescind the continuing detention order and make a supervision order in relation to the person: s 33(1)(b). In making a decision under s 33(1)(b), the paramount consideration is the need to ensure adequate protection of the community: s 33(3).
Until the Act was amended by the Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA) (the amending Act) s 33 did not provide that if the court decided to rescind a continuing detention order and made a supervision order it was required to do so with effect from a date not earlier than 21 days after the day on which the review was concluded. The amending Act was not in force at the time the DPP's review application was made on 11 March 2016. Counsel for Mr Griffiths submitted that as the amendment made to s 33 could have an effect on a person's liberty it was a substantive and not procedural provision and should not be interpreted as applying to this application because to do so would give retrospective operation to the amending Act. However Mr Griffiths did not have a right to be released on a supervision order at the time of the review application, so it does not seem to me that interpreting s 33(1)(b) as amended by the amending Act as applying to this application gives the amending Act retrospective application. Counsel for Mr Griffiths did not press her submission and it was not subject to any detailed legal argument. I proceed on the basis that I am to apply s 33(1)(b) as amended by the amending Act.
Section 7(1) provides that before making a finding that a person is a serious danger to the community the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. Serious sexual offence is defined in s 3 as meaning a serious sexual offence as defined in s 106A of the Evidence Act 1906 (WA), an offence of conspiracy or incitement to commit such an offence or an offence of the law of the Commonwealth or another State or Territory that is prescribed to correspond to an offence as defined in s 106A of the Evidence Act or conspiracy or incitement to commit such an offence. Section 7(2) provides that the DPP has the onus of satisfying the court as described in s 7(1) and the court must be satisfied to a high degree of probability by acceptable and cogent evidence. In deciding whether to find that a person is a serious danger to the community the court must have regard to the matters set out in s 7(3), namely:
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(e)any efforts by the person to address the cause or causes of the person’s offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person’s participation in any rehabilitation program has had a positive effect on the person; and
(g)the person’s antecedents and criminal record; and
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.

Mr Griffiths offending and personal background

Mr Griffiths' offending and his personal background were described by Hall J in Director of Public Prosecutions (WA) v Griffiths [26] ‑ [35]. Mr Griffiths was born in 1966 in Wyndham. He is the oldest of five children. His early years were spent in Kununurra until the family moved to a community on their traditional land. He was raised according to traditions of the community and spent time with his father fishing, hunting and undertaking cultural activities. He was educated in Kununurra and Broome. During Year 9 he left school in Broome to return home. He attended college in Port Hedland and studied mechanics for a year. He has done station work, worked on a mine and worked in community development.
Mr Griffiths has had three significant long term relationships. He is the father of seven children from those relationships.
Mr Griffiths commenced drinking alcohol in his late teens. He has admitted that he becomes aggressive when under the influence of alcohol. His problematic drinking is long standing, although there have been periods of up to six months when he has abstained from drinking alcohol.
Mr Griffiths' first serious sexual offence was committed on 22 December 1997 when he committed the offence of sexual penetration of a woman without her consent in the circumstance of aggravation that he did bodily harm to the victim. The next serious sexual offence that he committed was the sexual penetration of the anus of a six‑year‑old boy with his finger on 29 October 2003. The third and most recent serious sexual offence that he committed was indecent dealing with a 12‑year‑old girl on 21 August 2012. He was also convicted of unlawfully detaining that girl.
Hall J found that Mr Griffiths was a serious danger to the community and that there were no conditions that could be imposed that would adequately reduce the risk that he would commit further sexual offences if he were released into the community on a supervision order. His Honour said that: 'But for the lack of suitable accommodation the respondent's suitability for release on a supervision order would have been high'. – Director of Public Prosecutions (WA) v Griffiths [105]. Hall J concluded that Mr Griffiths was suitable for release into the community on a supervision order, but only if that release could be to a place where appropriate conditions of release could be effective. At the time of the hearing before Hall J no such place had been found [109].

Evidence on this review

The hearing of this review took place on 21 October 2016 and on 16 December 2016. At the hearing on 21 October 2016 the DPP tendered a book of materials which contained records of the Department of Corrective Services concerning Mr Griffiths, a Department of Corrective Services Individual Management Plan dated 26 May 2016, a psychiatric report by Dr Mark Hall dated 7 October 2016, a treatment progress report by Dr Krystle Borg, Senior Clinical and Forensic Psychologist, dated 23 September 2016 and a Department of Corrective Services Community Supervision Assessment dated 12 October 2016. Counsel for Mr Griffiths tendered a Department of Corrective Services Programme Completion Report dated 21 August 2015.
The records of the Department of Corrective Services show that in the periods covered by them Mr Griffiths had not been charged with any offence, has not been recorded as having been involved in any incidents and has returned negative substance use test results. He is a hard worker and he abides by rules. He has not been subject to any disciplinary convictions or loss of privileges during his current sentence.
The DPP called Dr Hall and Dr Borg as witnesses on the hearing of the application on 21 October 2016.
At the hearing on 16 December 2016 the DPP tendered an updated treatment progress report by Dr Borg dated 21 November 2016, recalled Dr Borg and called Ms Jane Henshall who is a Senior Community Corrections Officer with the Department of Corrective Services and was one of the persons who endorsed the Community Supervision Assessment dated 12 October 2016. Counsel for the DPP also tendered a desk top accommodation analysis prepared by WA Police on accommodation in the Perth metropolitan area. Counsel for Mr Griffiths tendered two tables of planned responses for dealing with stressful situations that had been prepared by Mr Griffiths with his psychologist.

Proposed accommodation - Community Supervision Assessment

The Department of Corrective Services investigated the suitability of accommodation for Mr Griffiths in the Kimberley if a supervision order were made. To give Mr Griffiths an opportunity to re‑engage with his family and to canvass possible accommodation options in the Kimberley Mr Griffiths was transferred to West Kimberley Regional Prison in July 2016. Mr Griffiths did not make any attempts to contact family or associates by telephone and he did not receive any social visits.
To assist in developing Mr Griffiths' relationship with his family Ms Darrel Klause, a Senior Community Corrections Officer in the Kimberley made contact with Mr Griffiths' son on 29 July 2016 to canvass the possibility of organising video link visits with family members. Mr Griffiths' son expressed interest in making contact with his father, but failed to engage with the Department of Corrective Services staff. Mr Griffiths' son expressed willingness to assist his father with accommodation on release from prison, but failed to keep an appointment to review the accommodation. On 19 September 2016 Ms Krause visited Mr Griffiths' son's residence which is a two bedroom unit in a complex of six units. Mr Griffiths' son and Mr Griffiths' son's partner were present. They do not have children. The adolescent girl who previously lived with them no longer does so, however young, pre‑teen male relatives and their friends attend their home to watch television and to have meals. Two teenage children live in a unit in the complex, a toddler and two pre‑pubescent children live in another unit and an infant in another unit.
For cultural reasons Mr Griffiths cannot have contact with his son's partner. When Mr Griffiths' son is required to be away from the unit for work or other obligations his partner would be required to leave the unit, leaving Mr Griffiths to live there alone. At the end of the visit Mr Griffiths' son and his son's partner did not commit to permitting Mr Griffiths living with them. They requested time before making a decision. As at 6 October 2016 they had not provided their consent for him to do so.
Even if Mr Griffiths' son and his son's partner had consented to Mr Griffiths living with them it was clear from the circumstances to which I have referred that the proposed accommodation was not suitable. Children live near the unit and children visit the unit. When Mr Griffiths' son is away Mr Griffiths would be staying in that unit alone.
The Department of Corrective Services investigated a residence in another town in the Kimberley, but it was not available to Mr Griffiths.
There was no other suitable accommodation identified in the Kimberley.
By the time of the hearing on 21 October 2016 Mr Griffiths was engaging with Uniting Care West under the DSO Supported Accommodation Programme to investigate the possibility of finding suitable accommodation in the Perth metropolitan area. A residential unit has been identified and is available.
The proposed residence is a residence familiar to the Department of Corrective Services. It was the subject of the WA Police desktop analysis. Ms Henshall gave evidence that with appropriate conditions imposed under a supervision order the residence is a place at which Mr Griffiths can reside and be monitored. Ms Henshall has discussed the proposed conditions of a supervision order with Mr Griffiths as has his psychologist.
Mr Griffiths has a nephew who lives in Perth. That nephew is on parole for aggravated armed robbery and his record includes offences associated with the use of alcohol. The nephew lives with his partner, their two children, his partner's mother and two other children.
The Department of Corrective Services has made contact with Mr Griffiths' nephew and partner. Mr Griffiths' nephew was open about his parole status and the condition that he not consume alcohol. He was able to identify plans to be involved with Mr Griffiths without children being present and said that he would support Mr Griffiths in abstaining from alcohol.
I am satisfied from the evidence, particularly the desktop analysis and the evidence of Ms Henshall, that if Mr Griffiths is released on a supervision order under appropriate conditions including electronic monitoring that the proposed residence is suitable.

Psychiatric evidence

Dr Hall had prepared reports on Mr Griffiths dated 17 August 2015 and 7 October 2015 for the purposes of the application heard by Hall J in 2015. For the purposes of the review Dr Hall interviewed Mr Griffiths on 14 September 2016 at Casuarina Prison.
During the interview in 2016 Mr Griffiths was initially focused on residing with his son in the Kimberley. Following considerable discussion with Dr Hall Mr Griffiths was able to appreciate that the location of his son's house would mean that it would be hard to ensure the safety of children.
As the interview progressed, Mr Griffiths said that he believed that he would be able to live in Perth, even though it would be out of his country. He told Dr Hall that Outcare would be able to assist him with accommodation and that he would have some support from his nephew who lives in Perth.
Mr Griffiths told Dr Hall that boredom was a risk factor for his alcohol consumption, that he also needed to stay away from 'drink outlets and drink friends' and that if his friends were drunk he would walk away and return when they were sober. He said that he had plenty of friends who did not drink, but apart from his parents and children he struggled to name any. Mr Griffiths also told Dr Hall that the stress of his responsibilities as the eldest son in the family had been a trigger for drinking and that in the future he would make sure that he delegated responsibilities to other family members.
Mr Griffiths said that he had attended some Alcoholics Anonymous (AA) meetings in prison, but had not continued to do so as he did not feel that they were getting him anywhere. He said that he would resume going to AA meetings if released from custody. In late 2015 Mr Griffiths commenced taking naltrexone to help reduce cravings for alcohol when released. He has continued to take the medication.
In 2015 Mr Griffiths completed a sex offender treatment programme. During the assessment by Dr Hall on 10 July 2015 Mr Griffiths had said that he had experienced unwanted and intrusive sexual thoughts, some of which involved children, since his early 20s. On 20 July 2015 he commenced taking fluoxetine to reduce the intrusive and inappropriate sexual thoughts and urges. The dose has been adjusted over time and Mr Griffiths has continued to take the medication.
When being interviewed by Dr Hall on 14 September 2016 Mr Griffiths denied that he had ever had any child orientated sexual thoughts. Dr Hall explored this area with Mr Griffiths. Mr Griffiths acknowledged that previously when he saw a young girl he would 'get stuck on the idea of having sex with her' and that he would see her as being older to justify it. Mr Griffiths said that the thoughts of young girls were not intrusive, unexpected or unwanted, but were thoughts that were prompted by visual stimuli, either in person or in print or television.
Mr Griffiths told Dr Hall that whereas he previously saw females as sex objects he now sees them as on the same level as him. He said that if his partner did not want to have sex he would not push it on her but would do other activities. He said that if he saw an attractive woman he would challenge thoughts about wanting to have sex with her. Mr Griffiths said that he was not really thinking of sex, that he had not had a sexual thought in the past six months. Mr Griffiths attributed his lack of libido to the prescription of fluoxetine and said that prior to going on the treatment he would masturbate every week. On further enquiry by Dr Hall Mr Griffiths said that he had masturbated weekly until about one year before treatment when his libido had dropped off anyway. Dr Hall reminded Mr Griffiths that in 2015 he had told him that he had experienced a drop in libido for some three years before going onto fluoxetine. Mr Griffiths said that one year was more accurate and that in 2015 he could not process the question properly as he was too busy trying not to say the wrong words and that 'now I just come out free'.
In Dr Hall's opinion cognitive distortions of the kind described by Mr Griffiths of seeing a young girl as an adult to justify deviant sexual arousal do not typically shift with medication alone, but require long-term intensive psychological therapy or group programmes. In Dr Hall's opinion Mr Griffiths' description of his improvements had a somewhat scripted quality. These matters added to Dr Hall's ongoing doubts about Mr Griffiths' level of genuine self‑awareness, despite glowing reports from sex offender treatment programmes in the past.
In 2015 Dr Hall said that he diagnosed Mr Griffiths as having paraphilic disorder not otherwise specified, rather than paedophilia. In his report of 17 August 2015 he said that paraphilic disorders are generally considered to have a basis in the dysregulation of serotonergic pathways and that in that way they share common ground with anxiety disorders including obsessive – compulsive disorder. Following his assessment of Mr Griffiths on 14 September 2016 Dr Hall said that the discrepancy between his description of symptoms consistent with paraphilia during the previous assessment and his symptoms described to Dr Hall in 2016 was of some concern. The reasons for the discrepancy may be that Mr Griffiths has become less willing to discuss his symptoms or that he has reverted to a stance of denial. Another possibility is that Mr Griffiths' symptoms were never of a paraphilic nature and the discrepancy arises because he is better able to explain them now. In Dr Hall's opinion this possibility is at odds with Mr Griffiths' claim that his inappropriate sexual thoughts have remitted as a result of taking fluoxetine, which is a selective serotonin reuptake inhibitor. Improvement due to such medication would support the hypothesis of the presence of paraphilia. Further, in Dr Hall's opinion, Mr Griffiths' description that he needs to avoid groups of men who are drunk in the community to some extent normalises leering at female children in that context and may draw attention away from the important elements that his sexual attraction was based on deviant sexual arousal, not association with drunken men.

It is Dr Hall's opinion that Mr Griffiths remains a high risk of committing a serious sexual offence if not subject to either a continuing detention or supervision order. The core contributing factors to that assessment remain unchanged and are, in summary, his history of repeated and varied sexual offending despite participation in previous sex offender treatment programmes in which he was considered to have made good gains, his sexual interest in children, most likely stemming from his paraphilic disorder, his attitudes that support sexual violence, including sexual objectification of females and male sexual entitlement, his limited self‑awareness and his history of alcohol abuse and dependence which has been strongly linked to his offending.
In 2015 Dr Hall considered that the risk of Mr Griffiths re‑offending could be appropriately managed in the community, as long as he was subject to close supervision. He continues to hold that opinion. He regards Mr Griffiths as a person who will comply with the requirements of the order. He has been compliant with treatment and with programmes in prison.
In his oral evidence Dr Hall said that Mr Griffiths had maintained the gains that he had achieved through therapy at the time of the hearings before Hall J and so he had essentially remained static relative to those gains. He has not deteriorated. He has adhered to his prescribed treatment.
Dr Hall's evidence was that until recently Mr Griffiths had not given a lot of thought to living in the Perth metropolitan area. After Dr Hall's discussion with him Mr Griffiths was able to acknowledge and accept that if he is to be released to a supervision order to reside in the metropolitan area he would need to do so on the basis that the entire order may have to be served in Perth.
Dr Hall confirmed that it remains his opinion that Mr Griffiths' risk factors are amenable to intervention and that the risks should be manageable if he is appropriately monitored and supported in the community.
Dr Hall assessed Mr Griffiths as being intelligent and compliant. In his opinion Mr Griffiths will have made significant progress after being on a supervision order for three to five years.

Psychological evidence

Prior to the hearing on 21 October 2016 Dr Borg interviewed Mr Griffiths on 12 and 19 September 2016. The assessment contained in the treatment progress report prepared by her dated 23 September 2016 was based on those interviews, on ongoing consultation with Dr Vanessa Rankin, Senior Clinical Psychologist – Forensic Psychological Service and with Ms Henshall and on the contents of Mr Griffiths' file at the Department of Corrective Services, counselling case notes, Total Offender Management Solution (TOMS) and prior professional assessments.
Mr Griffiths completed the Aboriginal Pre‑Release Sex Offender Treatment Programme in 2000, the Intensive Sex Offender Treatment Programme in 2005, the Pathways Programme in 2014 and he had completed the Intensive Sex Offender Treatment Programme a second time in 2015. Mr Griffiths' poor emotion management and coping skills were reportedly addressed during the Intensive Sex Offender Treatment Programme in 2015. According to the facilitators of that programme he demonstrated an improved ability to regulate his emotions, particularly evidenced following the death of his brother and the refusal of his application to attend the funeral. He was observed no longer to blame alcohol for his sexual offending but to recognise his distorted thinking and sexual thoughts of females were more prominent contributors. He developed a risk management plan that was considered to be realistic, however his offending after prior release with similar plans was noted.
Mr Griffiths had attended 14 individual counselling sessions with Ms Rankin since Hall J's decision. Ms Rankin described him as friendly, positive and happy to discuss most issues raised during the sessions. However his engagement in therapy was described as superficial and he reportedly became defensive when exploring certain topics.
Dr Borg found Mr Griffiths to be compliant and polite in her interviews of him. He was somewhat resistant when discussing his sexual offences. Mr Griffiths told Dr Borg that he had a positive therapeutic relationship with Ms Rankin, but had limited recall of the content covered in the sessions. He said that they were discussing the same things over and over and he found it senseless and got sick of it.
He informed Dr Borg that he did not experience sexually intrusive thoughts. When Dr Borg asked about previous sexually intrusive thoughts he denied that this was ever an issue for him. He said that approximately once a fortnight or once a month he has sexual thoughts about his ex‑partners. This contradicted a later statement to Dr Borg that he never thinks about sex.
In Dr Borg's opinion Mr Griffiths' counselling with Ms Rankin appears to have been limited to the date of her report of 23 September 2016. While suitable treatment targets were collaboratively identified in that counselling, no direct intervention had been completed to address those issues. This appeared, in Dr Borg's opinion, to be largely due to Mr Griffiths' unwillingness to engage in treatment, as he believed that he has no treatment needs. Mr Griffiths' engagement in future intervention was dependent on his perception that it is of value to him and his willingness to engage. It was Dr Borg's opinion that to the date of her report of 23 September 2016 Mr Griffths' engagement in counselling with Ms Rankin appears to have been superficial and limited by his belief that he has no treatment needs. As a result there had been limited gains identified by the intervention.
It was also Dr Borg's opinion that Mr Griffiths' denial of sexually intrusive thoughts and sexual preoccupation precluded the ability for him to identify and respond effectively to them in the future. Additionally, his inconsistent self‑reports with regard to his current sexualised thinking and sexual preoccupation impeded the ability accurately to assess the presence of such thoughts.
Mr Griffiths' first serious sexual offence was committed against an adult woman. He appeared to have sound insight into that offence, his use of violence as a response to rejection and his cognitive distortions about the victim's clothing and he accepts responsibility for that offence. However his acceptance of responsibility and insight into his two offences against children was limited. He denies the sexual penetration of the six‑year‑old boy. Despite his history of sexually offending against children he denies any sexual interest in children.
Mr Griffiths appeared to have made some treatment gains, but did not seem to appreciate his risk of re‑offending. Dr Borg noted Mr Griffiths' history of developing sound release plans only to reoffend post release and said that Mr Griffiths' over‑confidence and dismissal of the possibility of him encountering difficulties that may occur may leave him feeling overwhelmed when stressors arise, leading to a reversion to antisocial coping strategies.
Until shortly before the hearing on 21 October 2016 Mr Griffiths was seeking to be released under a supervision order to reside in the Kimberley. He had appreciated shortly before that hearing that there is no suitable accommodation for him in the Kimberley. In her oral evidence at the hearing on 21 October 2016 Dr Borg said that because the proposal that Mr Griffiths live in Perth had only recently been made it was necessary to spend some time on Mr Griffiths' release plan to ensure that he was prepared for living in the metropolitan area and to ensure that he understood clearly the requirement that he have no contact with children.
It was for that reason that the hearing on 21 October 2016 was adjourned to 16 December 2016 and Dr Borg prepared her report dated 26 November 2016.
Dr Borg's report of 26 November 2016 addressed Mr Griffiths' release plans, his psychological preparedness for release in Perth and his understanding of the boundaries and restrictions on his contact with children. The assessment in that report was based on an interview with Mr Griffiths on 17 November 2016, consultation with Ms Rankin, Ms Henshall and with Ms Vanessa Gwerder, Team Leader, Uniting Care West and on perusal of counselling case notes and TOMS.
At the time that Dr Borg prepared her report dated 26 November 2016 Ms Rankin had conducted three more sessions with Mr Griffiths since the hearing on 21 October 2016. Ms Rankin had conducted a further three sessions with him prior to the hearing on 16 December 2016. Ms Rankin noted that Mr Griffiths' engagement in the sessions had markedly improved, which she attributed to his expressed eagerness to address the outstanding treatment areas identified in court in order to enhance his prospects for release.
Mr Griffiths informed Dr Borg that he has found his sessions with Ms Rankin helpful. He said that they have collaboratively developed a 'life plan' for his proposed release to Perth and documented the plan on paper, which Mr Griffiths referred to as his 'bible'. He said that he finds it helpful that he will be able to refer to this document at any time post release. The life plan to which Dr Borg referred were two documents in table format that identified potential stressful situations for Mr Griffiths in Perth and generally and which identified responses to those situations. In Dr Borg's opinion those proposed responses are sound and well thought out.
Mr Griffiths also informed Dr Borg that he had developed more comprehensive release plans in consultation with Ms Gwerder. Uniting Care West has secured accommodation for Mr Griffiths in the Perth metropolitan area. Ms Gwerder confirmed to Dr Borg that Uniting Care West has been meeting with Mr Griffiths and will provide support on his release in relation to transport, public transport training, budgeting, advocacy with organisations such as Centrelink, education and leisure pursuits. Uniting Care West has a monthly men's group within which men's issues are discussed and outings occur. Ms Gwerder informed Dr Borg that Uniting Care West has considered ways to assist Mr Griffiths with his cultural engagement while removed from his traditional land.
Mr Griffiths told Dr Borg that he identified Ms Gwerder, Ms Rankin, family members, members of AA and the Aboriginal Medical Service as his supports. He informed Dr Borg that he anticipated that he would develop friendships with members of his AA group. Dr Borg asked him whether this could pose any difficulties, particularly if the friends relapsed. Mr Griffiths dismissed this as a concern. Mr Griffiths also said that he would develop friends at the Uniting Care West men's group and with work colleagues.
Mr Griffiths was able to identify difficulties that might arise on his release from prison and strategies he could use to deal with those difficulties, including contacting his Community Corrections Officer or Ms Gwender.
He informed Dr Borg that he had developed a greater understanding of the restrictions on his contact with children. He said that he would have no direct contact with children.
Mr Griffiths said that he would like to engage with Ms Rankin on a weekly basis, at least for the first few months of his release. He said that he would engage genuinely in therapy. He denied that he had not done so in custody, saying that he had not anything problematic to discuss.
It is Dr Borg's opinion that Mr Griffiths appears to have engaged more authentically in his sessions with Ms Rankin. While at times he relied on documents to remind him of potential stressors or high risk situations he was able to discuss his release plans largely with ease. Mr Griffiths also appeared to have engaged well with Uniting Care West.
Mr Griffiths appears to have better understanding of his requirement not to contact children should he be released. However he did not appear to be aware of the limitation on in direct contact. In Dr Borg's opinion this will require further attention and explanation to him.
At times Mr Griffiths continued to minimise or dismiss likely distress or upheaval he may experience in response to potential stressors such as rejection or loneliness. His intention to establish friendships with AA group members is a concern due to the possibility of a risk of relapse if a friend relapses along with Mr Griffiths' inability to foresee that difficulty.
In Dr Borg's opinion Mr Griffiths has identified appropriate high risk situations however his focus remains on external risk factors rather than internal contributors. Dr Borg recommends further intervention to assist his identification of emotional distress and ways this can lead to offending, as it has done in the past.
It is Dr Borg's opinion that Mr Griffiths has made gains in identifying the risks of reoffending and the development and application of appropriate strategies to respond to those risks.

A serious danger to the community

I am satisfied by the oral evidence of Dr Hall and Dr Borg and the evidence contained in their reports, Mr Griffiths' record of offending, his participation in treatment and programmes and the progress that Mr Griffiths has made under that therapy that Mr Griffiths remains a serious danger to the community. I am satisfied to a high degree of probability by that evidence that there is an unacceptable risk that, if not subject to a continuous detention order or a supervision order, Mr Griffiths would commit a serious sexual offence.
As a result of the treatment and programmes in which Mr Griffiths has participated he had made progress towards rehabilitation at the time of the hearings before Hall J in 2015. Mr Griffiths has continued to engage in treatment and programmes. At the time of the hearing on 21 October 2016 he had maintained the progress that he had achieved. Since that hearing he has actively engaged in further therapy and has an improved understanding of the risks of reoffending and developed appropriate strategies to deal with those risks. That is to his credit. However I am satisfied to a high degree of probability that there remains an unacceptable risk of Mr Griffiths committing a serious sexual offence if he is placed under stress unless he is subject to a continuous detention order or a supervision order.

Whether to affirm the continuing detention order or to make a supervision order

Having decided that Mr Griffiths remains a serious danger to the community it is necessary for me either to affirm the continuing detention order or to rescind the continuing detention order and make a supervision order. In making that decision the paramount consideration is the need to ensure adequate protection of the community.
Dr Hall regards Mr Griffiths as a person who will comply with the requirements of an order. He has noted his compliance with treatment and with programmes in prison. In 2015 Dr Hall considered that the risk of Mr Griffiths re‑offending could be appropriately managed in the community, as long as he was subject to close supervision. He continues to hold that opinion.
In Dr Hall's opinion Mr Griffiths is intelligent and compliant and he will have made significant further progress after being on a supervision order for three to five years.
The evidence of Dr Borg satisfies me that Mr Griffiths has made further progress towards rehabilitation since the hearing on 21 October 2016. He has actively participated in therapy and as a consequence developed greater insight. He has, with Ms Rankin, developed more comprehensive plans for release into the community. He has identified some possible stressors and devised appropriate solutions to manage those situations. I am satisfied that Mr Griffiths does intend to utilise the supports available to him in the community under a supervision order.
I am satisfied that the proposed residence is a suitable residence to which Mr Griffiths can reside under a supervision order. I am also satisfied that the conditions proposed in the supervision order attached to these reasons should result the risks of offending being reduced and also ensure that if circumstances exist which increase the risk of Mr Griffiths offending those circumstances will come to the attention of the Department of Corrective Services and to WA Police who will be able to take appropriate action, including an application to the court if necessary.
For these reasons although I am satisfied that Mr Griffiths remains a serious danger to the community and bearing in mind that the paramount consideration is the need to ensure adequate protection of the community I have decided with effect from 11 January 2017 to rescind the continuing detention order and to make a supervision order for a period of five years containing the conditions attached to these reasons.

IN THE SUPREME COURT OF WESTERN AUSTRALIA

DSO 5 of 2015

IN THE MATTER of the Dangerous Sexual Offenders Act 2006

DIRECTOR OF PUBLIC PROSECUTIONS
FOR WESTERN AUSTRALIA Applicant

-and-

KENNETH JAMES GRIFFITHS Respondent

_____________________________________________________________________

SUPERVISION ORDER MADE BY
THE HON JUSTICE MARTINO ON 20 DECEMBER 2016

_____________________________________________________________________

Upon an application pursuant to section 29 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) for a review of a continuing detention order made on 20 October 2015 in respect of the Respondent and the Court having found pursuant to section 33 and section 7 of the Act that the Respondent remains a serious danger to the community, the Court orders that with effect from 11 January 2017:

The continuing detention order made on 20 October 2015 in respect of the Respondent be rescinded.
The Respondent be the subject of a supervision order pursuant to section 33(1)(b) of the Act, for a period of five years from the date of this order, on the following conditions.

CONDITIONS

YOU (THE RESPONDENT) must:

Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of the person’s current name and address.

Report to and receive visits from, a Community Corrections Officer as directed by the Court.
Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 working days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B of the Act.
Not leave, or stay out of the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a sexual offence as defined in the Evidence Act 1906 section 36A of the Act during the period of the Order.
Be subject to electronic monitoring under section 19A of the Act.

Residence

Take up residence at [suppressed], and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.

Not leave or remain out of the State of Western Australia without the permission of a Manager of the Department of Corrective Services and, if so permitted, abide by all conditions of such permission whilst absent from the state;

Reporting to the CCO and supervision by the CCO

Report to a CCO at your nominated release address, within normal business hours on the day of release from custody under this order.

Be subject to electronic monitoring under section 19A of the Act.

Be under the supervision of a CCO, and comply with the lawful orders and any reasonable direction of the CCO, including directions for the purposes of sections 19A and 19B of the Act.

Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of you.

Notify the CCO of any change of your name at least 2 working days before the change is due to happen.

Not commence or change employment without the prior approval of the CCO.

Attendance at programmes 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 sexual re-offending, as directed by a CCO.

Reporting to WA Police

Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS), Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of SOMS or his/her delegate.

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

If requested, give police officers permission to enter and search your residence for the purpose of monitoring your compliance with your obligations under this order, and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order.
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.
Permit a CCO or WA Police to access any computer or device capable of storing digital data, for the purpose of ascertaining your computer activities, and provide to the CCO or WA Police upon request any passwords required for such access.

Disclosure/Exchange of Information

Agree to the exchange of information between persons and agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.

Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Corrective Services.

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 victim at all times.

Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.

Criminal conduct

Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A.

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

Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA).

Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.

Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis.

Curfew

Be subject to a curfew pursuant to s19B of the Act, 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 curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your 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 request their assistance to comply with your obligations by alerting you to any attempts to contact you by persons monitoring your compliance with the curfew.

Medications/Mental Health

Undergo medical testing or treatment, including anti-depressant medication, anti-libidinal treatment or medication prescribed to treat alcohol abuse or dependence, as directed by the CCO in consultation with a medical practitioner or medical practitioners.

Comply fully with any treatment prescribed pursuant to condition 36 of the Act.

Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease undergoing pharmaceutical anti-libidinal and/or anti-depressant medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.

Comply with all testing to monitor your compliance with medical treatment and anti-libidinal treatment as directed by a CCO.

Prevention of high-risk situations

Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Not be in possession of, use or be under the influence of alcohol.
Not go to 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 the purpose, and for the duration, approved in advance by a CCO;

(c) On the order of a CCO or Police Officer.

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.

To provide a valid sample for testing pursuant to condition 43 unless there is a reasonable excuse for the sample provided not being valid.
Not remain in the presence of females who you know to be affected by alcohol, or reasonably ought to know to be affected by alcohol, unless the identity of such person is approved in advance by the CCO.

Not remain in the presence of females who you know to be affected by illicit substances, or reasonably ought to know to be affected by illicit substances.
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.
Have no contact with any child under the age of 16 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).

Where any unsupervised contact with a child under the age of 16 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 details of any contact with a child under the age of 16 years both to your CCO and to the Police on the next occasion you report to that person or agency.

Report immediately to your CCO the formation of any friendship, or domestic, romantic, or sexual or otherwise intimate relationship by you.

Not form any domestic relationship with a person who has children under the age of 16 years in their care either full time or part time.

Make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship if directed to do so by a CCO or a Police Officer, which disclosure can be confirmed by a CCO or a Police Officer.

Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.

THE HON JUSTICE MARTINO

I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I contravene it.

Signed by the Respondent _____________________________

Kenneth James Griffiths

In the presence of:   _____________________________
Name and address:  _____________________________
  _____________________________

Date: _____________________________