The State of Western Australia v Hoskin
[2023] WASC 355
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HOSKIN [2023] WASC 355
CORAM: STRK J
HEARD: 18 SEPTEMBER 2023
DELIVERED : 18 SEPTEMBER 2023
FILE NO/S: SO 9 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JASON JAMES PAUL HOSKIN
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for belief that restriction order might be made - Whether interim supervision order is desirable - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Orders pursuant to s 46(2) made
Interim supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | DS McDonnell |
| Respondent | : | DJ McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | David McKenzie |
Case(s) referred to in decision(s):
State of Western Australia v CJC [2023] WASC 52
The State of Western Australia v Haji-Noor [2023] WASC 145
The State of Western Australia v Hansen [2022] WASC 391
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v PAS [No 2] [2021] WASC 59
The State of Western Australia v Winder [2021] WASC 65
STRK J:
Introduction
On 16 August 2023, the State of Western Australia applied for a restriction order in respect of Jason James Paul Hoskin under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
On 23 September 2022, the respondent was convicted on his own pleas of guilty to 21 charges of distributing child exploitation material contrary to s 219 of the Criminal Code (WA), and 2 charges of failing to comply with reporting obligations contrary to s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA). The respondent was sentenced by Whitby DCJ (as her Honour then was) to a total effective sentence of 3 years' imprisonment, backdated to 25 September 2020. The respondent was made eligible for parole, but parole was refused.[1]
[1] Affidavit of FM Allen affirmed 16 August 2023, Annexure G, page 77; Annexure C, page 25.
The offence of distributing child exploitation material is a 'serious offence' within the meaning of the HRSO Act.[2] The respondent's sentence will expire on 25 September 2023. Accordingly, the respondent is a serious offender under custodial sentence, as that phrase is defined in s 3 of the HRSO Act.
[2] HRSO Act s 3, s 5 and sch 1 div 1, sub-div 3 item 7.
The preliminary hearing of the application pursuant to the HRSO Act comes before me today. The main purpose of the preliminary hearing is for a decision to be made as to whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act.[3] If I am so satisfied, the State seeks an order pursuant to s 46(2)(a) of the HRSO Act that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application.
[3] HRSO Act s 46(1).
The State also submits that an interim supervision order ought be made in respect of the respondent pursuant to s 58 of the HRSO Act, to continue until the restriction order application is finally determined.
At the hearing of the application, counsel for the respondent did not make submissions in opposition to the court finding that there exist reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the HRSO Act. The threshold question was conceded on behalf of the respondent, given what was described as the low bar to be met.[4]
[4] ts 6 (18 September 2023).
In all of the circumstances, I am satisfied that the requirements of s 46 of the HRSO Act are met. I am also satisfied that it is desirable for the protection of the community that an interim supervision order be imposed pending the final determination of the restriction order application. My reasons for so concluding are as follows.
Applicable legal principles
Pursuant to s 46 of the HRSO Act the main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the court 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, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[5]
[5] HRSO Act s 7(1).
The nature of the test to be applied under s 46(1) of the HRSO Act is well‑established.[6] A determination that a person is a 'high risk serious offender' requires proof to a high degree of probability. However, at a preliminary hearing stage, the threshold test is lower. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible, and belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
[6] See, for example, The State of Western Australia v Hansen [2022] WASC 391 [10]; The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21]; The State of Western Australia v Winder [2021] WASC 65 [16].
The evidence
In support of its application, the State relied upon the affidavit of Fleur Marie Allen, a solicitor employed by the State Solicitor’s Officem affirmed on 16 August 2023. Ms Allen's affidavit contained details of the respondent's criminal history dating back to 2007, transcripts of sentencing hearings for previous serious and relevant offending of the respondent, as well as numerous reports, including reports prepared by Community Corrections, a parole assessment report, program completion reports, a pre‑sentence report, psychological reports, psychiatric reports and a neuropsychiatric report. The most recent reports were prepared in 2022.
I also received two affidavits from Cassie McNally, a member of the Community Offender Monitoring Unit of the Department of Justice. Ms McNally's affidavits were affirmed on 23 August 2023 and 11 September 2023, respectively, by which Ms McNally deposed to the respondent's proposed accommodation if released, which I describe below.
Beyond these affidavits and the book of materials for the preliminary hearing filed on behalf of the State, no additional materials were provided by the State or on behalf of the respondent at the preliminary hearing.
Offending history
At the time of the index offences (described at [2] above), the respondent was a reportable offender under the Community Protection (Offender Reporting) Act.
As to the index offending, between October 2015 and March 2017, the respondent engaged in a total of 837 individual chats with different chat hosts in which he sent various messages containing highly graphic descriptions of sexual abuse to children. The respondent was remanded in custody in relation to other offending on 10 July 2017 and was released on 1 May 2020. After his release and between May 2020 and July 2020, the respondent engaged in a total of 723 individual chats with different chat hosts in which he sent various messages containing highly graphic descriptions of sexual abuse, mutilation and killing of children.
The respondent's current term of three years imprisonment marks the fourth separate term of imprisonment that he has served for child exploitation material related offences.
The respondent has been convicted of a number of other offences which are 'serious' within the meaning of the HRSO Act, and offences which are related, but are not 'serious' within the meaning of the HRSO Act.
On 25 July 2006, the respondent used his student identity to access a computer at the Central TAFE library. While on the computer the respondent visited 204 internet sites, six of which were found to contain material deemed as 'child pornography'. The respondent saved some images which constituted child pornography to a drive allocated to him.
At a search of the respondent's residence on 15 August 2006, police found a number of storage devices containing approximately 2000 images of girls between the ages of 8 and 13 displayed in sexual poses or performing sexual acts.
On 14 August 2007, the respondent was convicted on his own pleas of guilty to one charge of using a carriage service to access 'child pornography' under the Criminal Code (Cth),[7] and one charge of possession of 'child pornography' contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA). On 22 February 2007, while the respondent was on bail and before he was sentenced for those offences, police arrested the respondent at an internet café and found him to be in possession of a hard drive containing 272 images of 'child pornography'. A subsequent search of the respondent's residence resulted in the finding of compact discs containing 339 images of 'child pornography'. In each case the children were between the ages of 3 and 12 years, and in some cases were shown engaging in penetrative sexual behaviour.[8] The respondent was charged with, and pleaded guilty to, two offences under s 60(4) of the Classification (Publications Films and Computer Games) Enforcement Act.[9]
[7] The offence of access child pornography contrary to s 474.19 of the Criminal Code (Cth) is a serious offence within the meaning of the HRSO Act pursuant to the High Risk Serious Offenders Regulations 2020 (WA) reg 4.
[8] Affidavit of FM Allen affirmed 16 August 2023, Annexure K, pages 86 - 87.
[9] Affidavit of FM Allen affirmed 16 August 2023, Annexure J, page 84.
The respondent was also sentenced for four offences of using a carriage service in such a way that reasonable persons would regard as being offensive, contrary to s 16BA of the Crimes Act 1914 (Cth). The respondent sent messages to women chosen at random, asking if they liked child pornography.[10] These are not serious offences within the meaning of the HRSO Act.
[10] Affidavit of FM Allen affirmed 16 August 2023, Annexure L, page 89.
As to the Commonwealth charges, the respondent was sentenced to 18 months' imprisonment on each count to be served concurrently. A recognisance order was made in the amount of $1,000. As to the State charges, the respondent was sentenced to a term of 12 months' imprisonment to be served cumulatively on the Commonwealth sentence.[11]
[11] Affidavit of FM Allen affirmed 16 August 2023, Annexures H - L, pages 81 - 90.
On 4 October 2011, the respondent was convicted and fined for failing to report the purchase of a new mobile telephone within the time required by his reporting obligations under the Community Protection (Offender Reporting) Act.[12] On 21 February 2012, the respondent was again fined for a breach of the reporting obligations for failing to properly inform authorities of a new email address.[13]
[12] Affidavit of FM Allen affirmed 16 August 2023, Annexures V - W, pages 205 - 208.
[13] Affidavit of FM Allen affirmed 16 August 2023, Annexures X - Y, pages 209 - 212.
On 8 March 2013, the respondent pleaded guilty to 13 charges, that between 1 April 2010 and 1 April 2012, he indecently recorded a child under the age of 13 years. On each occasion, the respondent in a public place used a mobile telephone to film up the skirt of a female child aged between 3 and 10 years of age. On one occasion, he filmed for 10 minutes.[14]
[14] Affidavit of FM Allen affirmed 16 August 2023, Annexures M - N, pages 91 - 101.
The respondent also pleaded guilty to having possession of 79 images of child exploitation material on 28 April 2012, including three category 4 images;[15] and to 7 charges of failing to comply with his reporting obligations under the Community Protection (Offender Reporting) Act by failing to report email addresses he had created.[16]
[15] Affidavit of FM Allen affirmed 16 August 2023, Annexure N, page 102.
[16] Affidavit of FM Allen affirmed 16 August 2023, Annexure O, pages 106 - 113.
On 8 March 2013, the respondent was sentenced to 20 months' imprisonment with eligibility for parole, backdated to 28 April 2012.
On 7 August 2014, the respondent was convicted and fined for breaching his reporting obligations under the Community Protection (Offender Reporting) Act for failing to attend a required appointment.[17]
[17] Affidavit of FM Allen affirmed 16 August 2023, Annexures Z - AA, pages 213 - 216.
On 10 June 2016, the respondent was arrested in possession of 30 images of child exploitation material, including five category 4 images. The respondent pleaded guilty on 8 September 2017 and was sentenced to a term of two years' imprisonment with eligibility for parole.[18]
[18] Affidavit of FM Allen affirmed 16 August 2023, Annexure P - R, pages 128 - 158.
On 11 July 2017, the respondent was arrested for possession of approximately 1200 images of child exploitation material, including 61 category 3 images, and 151 category 4 images, and 1 category 4 video. On 2 November 2018, the respondent was sentenced on the basis that he had primarily searched for category 1 materials but would look at category 3 and 4 material if it was presented to him.[19] He was ordered to serve 18 months' imprisonment concurrently.[20]
Personal circumstances and background
[19] Affidavit of FM Allen affirmed 16 August 2023, Annexure U, page 196.
[20] Affidavit of FM Allen affirmed 16 August 2023, Annexure U, page 204.
The respondent is 44 years old. He is the only child of his parents, who separated when he was two or three. He has had limited contact with his father since. His mother remarried and had two more children, a half‑brother who was born with cerebral palsy and has high care needs, and a half‑sister. The respondent has reported a history of emotional and physical abuse perpetrated by his stepfather against his mother and him. His stepfather died as a result of a motor vehicle accident when the respondent was 12 years old.[21]
[21] Affidavit of FM Allen affirmed 16 August 2023, Annexure AD, page 231.
The respondent reported he had never been close to his mother as she was distracted by the needs of his half‑brother. In 2012, his half‑sister reported that the relationship between the appellant and his mother was 'destructive' and that she has 'judgemental attitudes' towards him.[22]
[22] Affidavit of FM Allen affirmed 16 August 2023, Annexure AD, page 232.
The respondent reported that at school he was an average student but was socially isolated and frequently bullied due to his physical appearance. The respondent left school after completing year 10. He attempted various jobs, but has not held any more than one week at a time. The respondent commenced courses at TAFE, but has yet to complete a course, citing that he was unable to do so as a result of his self‑diagnosed Chronic Fatigue Syndrome. He was last employed at the age of 26,[23] and has been a welfare recipient for most of his adult life. Prior to his current term of imprisonment, I understand that the respondent received a Disability Support Pension given his psychiatric condition.[24]
[23] Affidavit of FM Allen affirmed 16 August 2023, Annexure AD, page 232.
[24] Affidavit of FM Allen affirmed 16 August 2023, Annexure AI, page 287 par 24.
When the respondent was 15 and 17, he had relationships with a female around his age, each lasting approximately 5 to 6 months. He claimed to have been intimate with each partner. The respondent described making numerous further attempts at intimate relationships with women of his own age until the age of 24, but reported that he was unsuccessful and felt rejected by them. His next and last reported sexual interaction was with a sex worker when he was 24 years old.[25]
[25] Affidavit of FM Allen affirmed 16 August 2023, Annexure G, page 263.
The respondent was able to live independently for a short period before returning to live with his mother. Dr Wojnarowska records in her report dated 21 April 2017 that he continued to do so in between periods of incarceration until mental health services deemed it to be too dangerous for his mother, having regard to occasions on which the respondent was violent towards her. Dr Wojnarowska also records that the respondent admitted that he would not be able to care for himself as 'my room was so dirty that there were mice crawling around'.[26]
[26] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 255 par 7.3.
The respondent described some substance misuse in his late teens but limited use of alcohol or illicit substance has been recorded as an adult.[27]
[27] Affidavit of FM Allen affirmed 16 August 2023, Annexure AD, page 233, Annexure AE, page 245 par 22.
At the age of 37, the respondent was diagnosed with schizophrenia; however, he does not accept the diagnosis.[28] He has reported previous use of antipsychotic depot injection but he believed the medication had no benefits and he experienced problems with sexual function which bothered him. In 2012, he claimed to suffer from Chronic Fatigue Syndrome, but reported that obtaining diagnosis had been challenging. He said he felt 'unwell and depleted' most of the time.[29]
[28] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 255, Annexure AG, page 264.
[29] Affidavit of FM Allen affirmed 16 August 2023, Annexure AD, page 233.
The respondent has been admitted to psychiatric hospitals on multiple occasions. Those occasions were usually precipitated by him committing violent acts against his mother which required police attendance and resulted in involuntary admission. The respondent told a psychiatrist (Dr Wojnarowska) in 2017 that he believed that hitting his mother would make him feel better, referring to his stomach pains.[30]
Reports and assessments
[30] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 255.
It is unnecessary for me to summarise all of the reports annexed to Ms Allen's affidavit. It is sufficient to say that they are all consistent with later reports, although the later reports show a greater understanding of the respondent's particular issues.
Report of Dr Gosia Wojnarowska dated 21 April 2017
The first psychiatric report of the respondent was written by Dr Wojnarowska and dated 21 April 2017. Dr Wojnarowska diagnosed the respondent with paedophilic disorder and schizophrenia and opined that the respondent's schizophrenia was not causative of his offending, though reported that his symptoms were a major barrier in his ability to communicate and co‑habit with others, to gain employment or be involved in meaningful activities.[31]
[31] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 257 pars 14.4 ‑ 14.5.
The respondent told Dr Wojnarowska that he did not think viewing child pornography was bad as he was not directly involved with the victims, although he had learned in treatment that they were coerced into being involved. When explaining to Dr Wojnarowska his viewing of child pornography upon his release from prison in 2009, the respondent reported that he was bored as he could not find work and was sexually frustrated, not being able to form any intimate relationships.[32]
[32] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 253 par 6.3.
The respondent admitted he had been violent towards his mother while experiencing delusions regarding her. He said that her presence stressed him and watching child pornography relaxed him. He said 'making pornography was even better' (referring to his surreptitiously filming and photographing children).[33]
[33] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 253 par 6.4.
Dr Wojnarowska reported that the respondent found child pornography to fulfill the respondent's perceived void in his life. The respondent admitted to fantasising about children outside of the time he viewed children online.[34]
[34] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 254 par 6.5.
Dr Wojnarowska described the respondent's attitude toward his offending as follows:[35]
In summary, [the respondent's] current attitude towards his offending suggests that he acknowledges that sexual offending against children is legally and morally wrong: 'it could cause them (the children) to act out sex before they are ready'. However, his reoffending history demonstrates that the time he spent in prison has not served as a deterrent for him; furthermore, he is lacking insight into the seriousness of his offending and presents with indifferent attitudes towards his situation. The risk of re-offence factors, for example, his majority interpersonal deficits, have not been addressed in the past treatments for the reasons related to the presence of a major mental illness rather than any therapist(s) fault.
[35] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 254 par 6.6.
Dr Wojnarowska reported that the respondent claimed that closing his eyes helped with stomach pains, which she considered to be 'bizarre somatic delusions'. She also said that he described 'reflex hallucinations', namely hearing cars while eating or drinking. However, he had no evidence of formal thought disorder.[36]
[36] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, pages 256 - 257 par 13.1.
The respondent's history of sexual offending and his admissions to experiencing deviant sexual arousal to images of female children caused Dr Wojnarowska to place him in the diagnostic category of paedophilia, exclusive type, attracted to females. He also had, in her view, a well‑established diagnosis of schizophrenia, characterised by positive symptoms of 'bizarre delusions and reflex hallucinations' and negative symptoms such as lack of motivation and blunted affect, the latter of which was described as 'detachment' in 2013.[37]
[37] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 257 pars 14.2 ‑ 14.3.
In Dr Wojnarowska's view, the risk of the respondent reoffending in a similar manner and possibly escalating to contact offending was substantial.[38] Dr Wojnarowska recommended an urgent medication review, including use of an antidepressant.[39]
Report of Ms Tanina Oliveri dated 21 February 2022
[38] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 258 par 15.1.
[39] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 258 pars 15.1 ‑ 15.3.
Ms Oliveri prepared a psychological report for the purposes of the respondent's sentencing in 2022. The respondent had his eyes closed or partially closed initially, but as the interview progressed his eyes remained open, but he appeared oblivious to that. Ms Oliveri reported that the respondent's presentation was consistent with earlier interviews.[40]
[40] Affidavit of FM Allen affirmed 16 August 2023, Annexure AG, page 261 par 1.
The respondent admitted to Ms Oliveri that he had developed an attraction to pre‑pubescent males aged between 5 and 8 years old since he was 35 years old. He also described a significant sexual interest in 'daring, unconventional, crude' acts; and acknowledged that he used internet cafés to access online child exploitation material, in order to avoid detection.[41]
[41] Affidavit of FM Allen affirmed 16 August 2023, Annexure AG, pages 262 - 263 par 7.
Ms Oliveri considered that the respondent lacked insight and self‑awareness in relation to his mental health issues, describing onset later than his comments suggested. She opined that while he did not accept his diagnosis of paranoid schizophrenia, he was cognisant of some paranoid thinking and admitted some auditory hallucinations. The respondent also indicated that he would use oral medication if required, but not depot injections. Ms Oliveri reported that the respondent accepted his diagnosis of paedophilia.[42]
[42] Affidavit of FM Allen affirmed 16 August 2023, Annexure AG, page 264 pars 10 - 11.
Ms Oliveri reported that she administered, and the respondent completed, the MCMI-III, a measure of personality factors including the presence of clinically concerning features and mental health symptoms. Ms Oliveri noted the tool was used with caution as there were no norms for the respondent's cultural group. Ms Oliveri noted that those who respond in a manner similar to the respondent display depressive, schizoid, passive‑aggressive, antisocial, paranoid, avoidant and aggressive personality traits; among other things, exhibit a depressive personality style; have social and emotional skill deficits; often feel mistreated, unsupported and misunderstood; and can also be avoidant of admitting and addressing their problems.[43]
[43] Affidavit of FM Allen affirmed 16 August 2023, Annexure AG, pages 264 - 265 par 13.
In her report, under the heading 'Psychological Formulation of Offending', Ms Oliveri opined as follows:[44]
[The respondent] described childhood difficulties due to parental separation; an absent biological father; a distracted mother; an abusive stepfather and mother; a disabled half-brother with high needs; the death of his stepfather; and peer victimisation. A very poor attachment history is evident and he likely felt repeatedly neglected, rejected, mistreated and abandoned. He appears to have struggled long-term with depression, anxiety, OCD, poor self-esteem and self‑consciousness. Additionally, emotional, social and interpersonal skill deficits are evident, and he has likely used food, self‑stimulation/masturbation and ejaculation from a young age as negative coping mechanisms. He has been unsuccessful in establishing and sustaining intimate relationships and friendships. He did not complete all of his schooling and he did not persist with other courses. He also has a very poor employment history and few positive pursuits. He has also been diagnosed with a major psychotic disorder, but he does not accept the diagnosis. It seems that in the context of deficient emotional and social skills, peer and female rejection, self‑consciousness, poor self-esteem and anxiety, he has developed a sexual attraction to children, likely as he viewed them as less threatening and more physically appealing. His use of CEM and child‑based sexual fantasises combined with masturbation and ejaculation strengthened and reinforced his sexual attraction to and interest in children. He also has a number of sexual fetishes, an interest in some unconventional sexual acts and other sexual deviant interests. Sexual preoccupation is evident as are cognitive distortions supporting and maintaining his sexual offending. The current offences are further evidence of his enduring Paedophilia and sexual problems, and his inability to make positive changes to his life, as well as his attempts to evade detection. Many of his difficulties and psychological issues manifest as physical symptoms and he focuses on these rather than addressing his psychological and psychiatric issues.
[44] Affidavit of FM Allen affirmed 16 August 2023, Annexure AG, page 266 par 16.
Ms Oliveri assessed the respondent as being in the 'well above average risk' category, using the STATIC‑99R actuarial tool[45] (which I understood to be an actuarial tool intended to position offenders in terms of their relative degree of risk of sexual recidivism based on commonly available demographic and criminal history information found to correlate with sexual recidivism in adult male sex offenders). Applying a structured professional judgment approach, the Risk for Sexual Violence Protocol (RSVP), Ms Oliveri considered that the respondent remained a very significant concern of further sexual offending.[46]
[45] Affidavit of FM Allen affirmed 16 August 2023, Annexure AG, pages 266 - 267 par 17.
[46] Affidavit of FM Allen affirmed 16 August 2023, Annexure AG, page 267 par 18.
As to recommendations for treatment and management, Ms Oliveri opined as follows:[47]
[The respondent] remains a very significant concern for further sexual offending and a long-term and enduring sexual interest in and attraction to children remains evident. Additionally, he has major mental health issues, but he lacks insight and self-awareness. He requires further sex offender treatment and treatment for his mental health issues, but his prior poor treatment responsivity and compliance are noted. After sentencing, he will be assessed for his suitability for departmental treatment programs. He is likely to require a combination of group‑based treatment, individual counselling and prescribed medication. On his release to the community, he will continue to need strict supervision and monitoring to reduce his risk of further sexual offences and to ensure compliance with recommended medication. He will also need assistance to improve his social and interpersonal skills and to better structure his daily routine.
Report of Dr Nicholas Ho dated 22 May 2022
[47] Affidavit of FM Allen affirmed 16 August 2023, Annexure AG, page 267 par 20.
Dr Ho is a Consultant Psychiatrist who assessed the respondent for the purposes of his sentencing in 2022.
The respondent told Dr Ho that he had justified to himself that his most recent offending was not illegal, as he was 'only talking about it' and that no authority had told him his behaviour was illegal.[48] He stated that now he knew the consequences of such behaviour, he had more chance of not offending, noting that he had been able to refrain from possessing child exploitation material.[49] However, he acknowledged he had difficulty complying with his reporting obligations, due to the number of things to keep track of.[50]
[48] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, page 270 par 4.2.
[49] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, page 271 par 4.7.
[50] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, page 271 par 4.8.
The respondent said that antipsychotic medication (which he no longer took),[51] reduced his sexual function but that he fantasised 2 to 3 times a week for 5 to 10 minutes at a time about young girls.[52]
[51] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, page 274 par 7.5.
[52] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, page 273 par 6.8.
Dr Ho recounted the respondent's psychiatric history, noting that from the age of 21 he has been noted to have excessive handwashing and checking behaviours. The respondent has previously reported delusional beliefs relating to his mother, including believing he needed to beat her to death or he would get stomach cancer. He was admitted to Swan District Hospital in 2015 following an assault on his mother. He reported being unable to open his eyes to prevent soreness of his eyes and stomach, expressed a belief that he was growing horns out of his head and that he had been cursed. He said he believed he would store energy while awake by putting his hand to his face, expressed ideas of reference, and described a 'cosmic universal force' interfering with his day to day life.[53]
[53] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, page 274 par 8.5.
In 2016, the respondent was again admitted to hospital after an assault on his mother, showing disorganised behaviour and speech. He reported auditory hallucinations. He was discharged on a community treatment order. In 2021, he asked to cease his medication.[54]
[54] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, pages 274 - 275 pars 8.7 ‑ 8.9.
Dr Ho reported that the respondent continued to express a delusional belief that external forces had adversely impacted his life and made him unsuccessful with women, a career, and his poor physique. He reported low levels of energy, stomach pain and an inability to keep his eyes open, claiming that he suffers from Chronic Fatigue Syndrome. He continued to believe that four years earlier he had had to punch his mother in the face to stop himself getting cancer.[55]
[55] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, pages 275 - 276 pars 9.1 ‑ 10.1.
Dr Ho considered the respondent's primary diagnosis to be paedophilic disorder, with a secondary diagnosis of schizophrenia, which he described as 'currently stable'.[56]
[56] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, page 277 pars 14.3 ‑ 14.4.
Dr Ho also assessed the respondent using the RSVP and the STATIC‑99R instruments.[57] Dr Ho's opinion included the following:[58]
16.6 [The respondent's] offending behaviour is not as a result of his major mental illness, namely schizophrenia. His offending behaviour is related to his paedophilic disorder rather than a menta illness. There was no evidence of hallucinations or delusional beliefs driving the offending behaviour. He has been partially deterred by previous custodial terms and indicates that he is able to weigh up whether to engage in a wrongful behaviour based directly on the severity of the consequence. He has continued to engage in sexual offending behaviour on a repeated basis over many years.
16.7[The respondent's] risk of reoffending is considered high. [The respondent] is sexually preoccupied and frustrated, he has felt thwart in his attempt to form sexual relationships with age‑appropriate females and consequently developed increasing sexual interests in young children, there is increasing sexual deviance over time with development of sexual interest in boys, reduced sexual interest in non-deviant targets. He has poor impulse control, limited means to self-soothe, has little motivation to engage in treatment and change, lacks an understanding of how his behaviour is wrongful, and indicates that the amount of time he will abstain from such behaviour is dependent on the severity of the consequence.
[57] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, pages 278 - 280 pars 15.2 - 15.5.
[58] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, page 281.
Dr Ho recommended that the respondent be assessed for the Sex Offender Treatment Program and undergo a formal structured assessment for Autism Spectrum Disorder. He also considered that the respondent would benefit from a trial of selective serotonin reuptake inhibitor (SSRI) medication.[59]
Neuropsychological report of Dr Brenton Maxwell dated 14 September 2022
[59] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, pages 281 - 282 pars 17.1 ‑ 17.4.
Dr Maxwell was asked to assess the respondent for the purpose of sentence with respect to the index offences. Dr Maxwell recorded that a neuropsychological with a query around the presence of Autism Spectrum Disorder had been requested of him.[60] It is apparent that Dr Maxwell had access to previous reports in relation to the respondent.[61]
[60] Affidavit of FM Allen affirmed 16 August 2023, Annexure AI, page 284 par 2.
[61] Affidavit of FM Allen affirmed 16 August 2023, Annexure AI, page 285 par 9.
Dr Maxwell found that the respondent's general level of intellectual functioning fell predominantly within the average range, although he performed in a manner mildly weaker than peers on a measure of abstract verbal reasoning.[62]
[62] Affidavit of FM Allen affirmed 16 August 2023, Annexure AI, page 291 par 52.
Dr Maxwell opined that the respondent's attention span was average and his working memory capacity was high average; he had an intact capacity to focus and he demonstrated an average speed of information processing; he was slower than peers when required to read words quickly; he had no apparent difficulties with his perceptual abilities; his basis receptive and expressive language abilities appeared adequate, although relative weaknesses were apparent; and his core executive functions were intact, with no significant impairments suggested.[63]
[63] Affidavit of FM Allen affirmed 16 August 2023, Annexure AI, pages 291 - 292 pars 54 ‑ 61.
The respondent rated himself as showing more autism symptoms than a control group but slightly below the typical level reported by adults with a diagnosis of Autism Spectrum Disorder.[64]
[64] Affidavit of FM Allen affirmed 16 August 2023, Annexure AI, page 292 par 62.
Assessing the respondent against the DSM 5 diagnostic criteria for Autism Spectrum Disorder, Dr Maxwell expressed the view that a number of criteria were met, but others were not. It was observed that the respondent met all three criteria in the category of persistent deficits in social interaction and communication, and two of the four criteria in the category of restricted, repetitive patterns of behaviour or interests. It was also observed that the results were consistent with the respondent having Autism Spectrum Disorder in the mild to moderate range. In Dr Maxwell's view, this predates but is comorbid with the respondent's diagnoses of paranoid schizophrenia and paedophilic disorder.[65]
[65] Affidavit of FM Allen affirmed 16 August 2023, Annexure AI, pages 292 - 297 pars 64 ‑ 78.
Dr Maxwell recommended that the respondent be registered with the National Disability Insurance Scheme in relation to Autism Spectrum Disorder and schizophrenia, and provided with autism‑specific social and emotional supports.[66] He opined that the respondent may benefit from working with a psychologist on his emotional regulation and coping skills.[67]
Parole Assessment dated October 2022
[66] Affidavit of FM Allen affirmed 16 August 2023, Annexure AI, page 298 pars 81 ‑ 82.
[67] Affidavit of FM Allen affirmed 16 August 2023, Annexure AI, page 298 par 84.
A parole assessment interview of the respondent took place on 10 October 2022 and a parole assessment report was finalised by Adult Community Corrections by the end of that month. While serving his current term of imprisonment, the respondent was not assessed to determine his treatment intervention needs, due to the length of his sentence (which had been backdated). He was not considered suitable for release due to his poor parole plan.[68] The following recommendation was proffered with respect to parole:[69]
[The respondent] is not considered suitable for release on Parole as he presents with a poor Parole Plan. [The respondent's] proposed accommodation was not able to be assessed. He failed to abide by his obligations as a reportable offender. Further he presents with unaddressed offending behaviour and an apprehension to engage in intervention and mental health treatment, which increases his risk of re‑offending in the community. [The respondent] has limited strategies in place to mitigate this risk and lacks insight into his actions noting his use of the internet is a risk factor, his prison review report notes he wants to do an online retail course therefore, [the respondent] presents as a risk to community safety. [The respondent] may benefit from further targeted intervention in custody.
Treatment Programs
[68] Affidavit of FM Allen affirmed 16 August 2023, Annexure AJ, page 306.
[69] Affidavit of FM Allen affirmed 16 August 2023, Annexure AJ, page 306.
The respondent completed the Medium Sex Offender Treatment Program between June and September 2008. He also completed three sessions of the Individual Sex Offender Treatment Program in 2009. In each case, it was recorded that the respondent was detached but appeared to make treatment gains, particularly understanding that children depicted in child exploitation material were coerced into appearing in such images.[70]
Proposed accommodation
[70] Affidavit of FM Allen affirmed 16 August 2023, Annexure AB, Annexure AC.
The State noted that the respondent has the support of his mother and sister,[71] and the respondent's mother has confirmed her willingness for the respondent to reside with her should he be released into the community.[72] The State acknowledged the reports of violent behaviour of the respondent towards his mother and submitted that in any event, the proposed accommodation was suitable.
Post-sentence supervision order
[71] ts 5 (18 September 2023).
[72] Book of materials, pages 50 - 51, affidavit of Cassie McNally affirmed 11 September 2023, pars 4, 9.
The Prisoners Review Board recently considered and made a post‑sentence supervision order pursuant to the Sentence Administration Act 2003 (WA) with respect to the respondent. The Prisoners Review Board's findings were provided to the court on 1 September 2023, with the Board determining that should the respondent be released, the respondent would be placed on a post‑sentence supervision order for the duration of one year for the following reasons:
(a)the respondent has been committing child sexual offences since at least 2007 and has served previous custodial sentences for previous offending, being assessed in various reports as posing a risk of sexual reoffending;
(b)the respondent has unmet treatment needs (in respect of sexual offending) and a period of community supervision will enable work to be undertaken by Adult Community Corrections to address the respondent's outstanding treatment needs and reduce the risk of the respondent committing a serious offence and thereby reducing the risk the respondent poses to the safety of the community. The Prisoners Review Board noted the respondent's diagnosis of paedophilic disorder; and
(c)the respondent had previously responded poorly to community orders, noting that the respondent had breached the Community Protection (Offender Reporting) Act and reoffended while subject to supervision and monitoring from the Serious Offender Management Squad. The Prisoners Review Board concluded that this demonstrated an unwillingness to comply with directions or to cease offending against children.
In addition to the standard obligations of a post‑sentence supervision order (as prescribed in the Sentence Administration Act s 74F), the respondent if released subject to such order would be subject to the following additional requirements (as allowed under s 74G):
1. To comply with the requirements of the Community Protection (Offender Reporting) Act 2004.
2. To have no unsupervised contact with children under 18 years of age.
3. Not to use or be in possession of any illicit drug including cannabis.
4. To comply with mental health treatment as directed by a medical practitioner or a Community Mental Health Team member.
5. To attend programmes and counselling as directed.
6. Not to change address without the prior approval of the Community Corrections Officer.
7. Upon request, permit an Officer from the Serious Offender Management Squad, Western Australia Police to access any computer, telecommunication and/or devices capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and to provide to the Western Australia Police upon request any passwords or any other means use to unlock or access the device.
8. Not to access any child pornography online or otherwise.
9. Not to access online social media unless approved by your Community Corrections Officer.
Disposition
Are there reasonable grounds for believing that the court might find that the respondent is a high risk serious offender?
I am satisfied that there are reasonable grounds to believe that a court might find the respondent to be a high risk serious offender. My reasons for so concluding are as follows.
The respondent has a significant history of committing 'serious' offences, within the meaning of the HRSO Act. The evidence adduced on this application shows the respondent's offending behaviour escalating in seriousness progressing from access and possession of child exploitation material, to creation and distribution.
There is some suggestion that the respondent has, on occasion, changed his behaviour to some extent in what he considers to be an attempt to avoid causing actual harm to children. For example, he said he committed the indecent recording offences in such a manner that the children were not aware of what he was doing, and thus they were not harmed.[73] However, the respondent was also accessing child exploitation material online at around the same time, and was convicted of doing so again in 2017.
[73] Affidavit of FM Allen affirmed 16 August 2023, Annexure AD, page 234.
Following his release from his sentence on those offences, the respondent committed the index offences, which involved him writing descriptions of offending against children. Again, he has told interviewing health professionals that he did not believe he was causing harm and he did not realise simply sending messages about child exploitation material was illegal (in contrast to sending child exploitation material).[74]
[74] Affidavit of FM Allen affirmed 16 August 2023, Annexure AH, page 270 par 4.2.
There is evidence that the respondent has an enduring and treatment resistant paedophilic disorder. He has been sexually attracted to pre‑pubescent girls since the age of 16, and has, since the age of 35, developed an attraction to young boys as well. His fantasies extend to unconventional and deviant conduct, and have progressed in seriousness, if the most recent offending is to be a guide. He has not engaged in 'contact' offending, although in 2008 he admitted to once attempting to groom a young girl by showing her a condom,[75] and the indecent recording offences still constituted dealing with children.
[75] Affidavit of FM Allen affirmed 16 August 2023, Annexure AB, page 219.
The respondent has been prepared to engage in deliberately deceptive behaviour in order to avoid detection by authorities, concealing email addresses, creating false identities online, and attending internet cafés in order to access child exploitation material.
The respondent reported his belief that he has Chronic Fatigue Syndrome, but he has never been diagnosed with the same. He has a confirmed diagnosis of schizophrenia, apparently with paranoid traits. He has experienced positive symptoms, such as delusions, hallucinations and persecutory beliefs, and negative symptoms such as blunted affect (which has long been observed, but described as 'detachment'). He previously reported that he dislikes taking medication to treat his schizophrenia, as he said it affected his sexual function. As such, he has declined to take the medication, whether orally or by depot. He is presently medicated via a depot injection and has indicated he will continue to comply.[76]
[76] Book of materials, page 43, post sentence supervision order report dated 4 August 2023.
His schizophrenia is not, in the opinions expressed to date by the psychiatrists who have prepared reports, causative of his offending, but does cause major barriers in the respondent's life, contributing to his poor communication with others, his inability to co‑habit with others and to maintain employment. As such, it increases his social isolation, which appears to be a significant factor in his offending behaviour. It is also reported that the respondent has chronic intimacy issues.
It has been reported that the respondent also has chronic depression, which has in the past been considered to be 'severe' and 'extremely severe' anxiety. It has been considered that he would benefit from a trial of medication to treat these conditions, and he reports he has presently been prescribed an antidepressant.[77]
[77] Book of materials, page 43, post sentence supervision order report dated 4 August 2023.
The respondent has also recently been diagnosed with Autism Spectrum Disorder. Dr Maxwell in September 2022 opined that as a result, his capacity to take the perspective of others is reduced, and he is likely to look at things in a rigid or binary fashion, which may impact his ability to predict the consequences of various actions unless specifically stated.[78]
[78] Affidavit of FM Allen affirmed 16 August 2023, Annexure AI, page 298 par 80.
The respondent has been consistently assessed as being of a 'well above average' or 'high' risk of reoffending in a sexual manner, which the majority of experts consider to be in a like manner to his historical offending. Dr Wojnarowska suggested there was a prospect of escalation to contact offending, but there is limited evidence upon which to make such a finding at this stage.[79]
[79] Affidavit of FM Allen affirmed 16 August 2023, Annexure AF, page 258 par 15.1.
In all of the circumstances, I consider that there are reasonable grounds to believe that the post‑sentence supervision order will not be sufficient to provide adequate protection of the community, given its duration and conditions.
Offences of possessing, producing, accessing or distributing child exploitation material all constitute 'serious offences' within the meaning of the HRSO Act. It is necessary that the community be protected from the commission of such offences. On the basis of his history of persistent, long standing paedophilic disorder and comorbid as yet untreated mental health conditions, his entrenched offending, and his failure to comply with protective orders, I am satisfied that there are reasonable grounds to believe that a court might find that the respondent is a high risk serious offender. I therefore will make orders programming the hearing of the restriction order application, which is to be heard on 21 March 2024.
Should an interim detention order or interim supervision order be imposed?
I note that the State's position is that if the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender, the respondent ought be managed on an interim supervision order pending the restriction order hearing. The State seeks a more stringent order than the post-sentence supervision order, noting that the post‑sentence supervision order does not require the mandatory disclosure of all electronic devices held by the respondent; does not prohibit the deletion of data on electronic devices held by the respondent; does not prohibit the respondent possessing images of children; and does not prohibit access to pornography without the prior approval of a Community Corrections Officer. Counsel for the respondent acknowledged the imposition of an interim supervision order in the form suggested by the State would be more comprehensive in its terms.[80] The respondent did not challenge any of the conditions proposed by the State, or any of the orders sought by the State in its minute of proposed orders.[81]
[80] ts 7 (18 September 2023).
[81] ts 7 (18 September 2023).
As I have indicated, the respondent previously failed to comply with his obligations under the Community Protection (Offender Reporting) Act. At times he has claimed difficulty complying; at others, he has wilfully sought to circumvent his obligations. While the respondent committed offences on bail (albeit in 2007), he has successfully completed a period of parole between October 2008 and January 2009,[82] although he did receive two written warnings for non‑compliance.
[82] Affidavit of FM Allen affirmed 16 August 2023, Annexure AJ, page 303.
The post‑sentence supervision order report dated 4 August 2023 indicates that the respondent has overall demonstrated positive prison conduct, apart from one minor incident in December 2022 which has no relevance for present purposes. The respondent is presently taking medication for both his schizophrenia and his depression and has indicated he intends to continue to do so.[83] He appears to be registered in the National Disability Insurance Scheme, and I am informed by counsel for the State that some funding will be available to him upon release, equating to about 12 hours of support per week.[84] I weighed the same in the balance.
[83] Book of materials, page 43, post sentence supervision order report dated 4 August 2023.
[84] ts 5 (18 September 2023).
The respondent is due for release on 24 September 2023. He has informed a Community Corrections Officer that it might be 'a long time' before he reoffends, due to the consequences such as 'an invasion of privacy' by law enforcement and the prospect of another charge.[85]
[85] Book of materials, page 43,post sentence supervision order report dated 4 August 2023.
I note that no employment is presently contemplated. Despite previous issues with his mother, the respondent proposes to reside with her if he is released. The respondent's mother resides with the respondent's half‑brother, who has a disability.[86] As noted above, the respondent's mother has confirmed her willingness to provide accommodation to the respondent. Upon his release, it is proposed that the respondent would reside with his mother and half‑brother (for whom his mother is carer). The respondent's mother recently spoke with Ms McNally. Ms McNally deposed that the respondent's mother had some knowledge of the respondent's offending and believed that he had been convicted of possessing child exploitation material.[87]
[86] Book of materials, page 32, affidavit of Cassie McNally affirmed 23 August 2023, par 6.
[87] Book of materials, page 50, affidavit of Cassie McNally affirmed 11 September 2023, par 8.
I have weighed in the balance the suitability of the accommodation proposed and the position of the State and the respondent with respect to the same.
Upon his release, if the court were to impose neither an interim supervision order or an interim detention order, the respondent would be subject to the post‑sentence supervision order.
However, I am cognisant that if the respondent is made subject to an interim supervision order until the determination of the restriction order application pursuant to s 58(5) of the HRSO Act, the post‑sentence supervision order would be cancelled by operation of s 4J of the Sentence Administration Act.
In my view, the post‑sentence supervision order conditions are insufficient to properly manage the respondent's risk at this stage. The Prisoners Review Board do not impose as a condition GPS monitoring. I accept that an interim supervision order will enable the respondent's online activity, and treatment to be managed in a more comprehensive way, and to ensure that he reintegrates into the community in a measured and sustainable manner.
To this end, I propose to add an additional condition to the effect that the respondent must not enter any internet café or use any publicly available computer. Inclusion of the same is not opposed by the State or the respondent.[88]
[88] ts 7 (18 September 2023).
Further, I am also cognisant that if the respondent was to commit a 'serious offence' (or any other criminal offence that carries a maximum penalty of imprisonment) while subject to a supervision order, that would amount to contravention of that order. The respondent may then be liable to be brought back before this court for orders to be made under s 55 of the HRSO Act, including orders rescinding the supervision order and making a continuing detention order.[89]
[89] The State of Western Australia v PAS [No 2] [2021] WASC 59; The State of Western Australia v Haji-Noor [2023] WASC 145 [64].
Having weighed in the balance all of the above, in the State of Western Australia v CJC [2023] WASC 52, Quinlan CJ noted that several judges of the court have been prepared to conclude that an order can be made pursuant to s 58 even if the offender is in custody at the time the order is made, provided that the order takes effect on a date when the offender will be released. I am prepared to adopt that approach.
In light of the evidence before me, I am satisfied that to ensure adequate protection of the community it is desirable to make an order under s 58(5) of the HRSO Act. The respondent should be released on an interim supervision order pending the hearing of the restriction order application on 21 March 2024. Based on the evidence before me, and having regard to the position that has been taken by the State, I am satisfied that the risk that the respondent may commit a serious offence will be adequately managed by his compliance with the terms of an interim supervision order. I have also decided to make an interim supervision order because I am of the view that the prospects that a supervision order might ultimately be made are sufficiently high that it would be inappropriate to make an order that he be detained pending that determination. However, in my view the post‑sentence supervision order would not have provided adequate protection for the community, particularly as it does not require the respondent to be subject to electronic monitoring. In my view, it is important that Corrective Services is able to monitor the respondent's movements to ensure that he is complying with the other conditions of the interim supervision order.
Information as to whether the respondent is eligible to receive support via the National Disability Insurance Scheme may be relevant at the restriction order hearing. The court therefore also requests of the Department of Justice that a report be prepared in which the respondent's status and availability of support via the National Disability Insurance Scheme is disclosed.
Finally, I note that for the safety of those with whom the respondent is intended to reside, it is imperative that the respondent be promptly referred to a psychiatrist for treatment, and that his compliance with treatment conditions to which he will be subject is carefully monitored, particularly that the respondent obeys the instructions of the treating psychiatrist with regard to treatment and medication; that he undertakes any medication regime in accordance with a medical practitioner’s direction; and that he complies with all testing to monitor his compliance with that treatment as directed by a Community Corrections Officer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LP
Associate to the Honourable Justice Strk
18 SEPTEMBER 2023
2
6
0