The State of Western Australia v Hoskin [No 2]
[2024] WASC 104
•28 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HOSKIN [No 2] [2024] WASC 104
CORAM: STRK J
HEARD: 21 MARCH 2024
DELIVERED : 27 MARCH 2024
PUBLISHED : 28 MARCH 2024
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) - Application for a restriction order - Whether the risk that the respondent will commit a serious offence is unacceptable - Whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the respondent will commit a serious offence - Whether the risk of reoffending may be adequately managed in the community by the imposition of a supervision order - Appropriate duration of any supervision order - Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
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):
Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 52 CLR 38
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v D'Rosario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Hoskin [2023] WASC 355
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v MAM [2022] WASC 100
The State of Western Australia v Narrier [No 2] [2022] WASC 49
The State of Western Australia v Nelson [2021] WASC 460
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188
Table of Contents
Introduction
Statutory framework and legal principles
Evidence
Antecedents and criminal history - s 7(3)(g)
Propensity to commit serious offences in the future - s 7(3)(c)
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - ss 7(3)(e) and 7(3)(f)
Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)
Psychological and other assessments - s 7(3)(b)
Any other relevant matter - s 7(3)(j)
Analysis and findings
Conclusion
Sch A – Supervision order conditions
STRK J:
Introduction
On 16 August 2023, the State of Western Australia applied for a restriction order under s 48 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) in relation to the respondent. It was the State's position that it was necessary to make a restriction order under the HRSO Act in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
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 two 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 three years' imprisonment, backdated to 25 September 2020. The respondent was made eligible for parole, but parole was refused.[1]
[1] Exhibit B, pages 619 - 620 (ts 30 - 31 (23 September 2022)).
The offence of distributing child exploitation material is a 'serious offence' within the meaning of the HRSO Act.[2] The respondent's sentence came to an end on 25 September 2023, immediately prior to which the respondent was 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 application was listed for a preliminary hearing on 18 September 2023, at which it was established that there were reasonable grounds for then believing that a later court might find the respondent to be a high risk serious offender within the meaning of the HRSO Act. For the reasons then delivered, the respondent was made the subject of an interim supervision order pursuant to s 58(5) of the HRSO Act pending the final determination of the application: The State of Western Australia v Hoskin [2023] WASC 355. Programming orders were also made under s 46(2)(a) and s 74 of the HRSO Act requiring the respondent to undergo examinations by two qualified experts, a psychiatrist, Dr Mark William Hall, and a psychologist, Dr Benjamin Peter Bannister. Such orders were made to facilitate the preparation of reports to be used at the hearing of the restriction order application in circumstances where the court must have regard to such reports in determining the State's application by operation of s 7(3)(a) of the HRSO Act.
At the hearing of the restriction order application, the State maintained that the respondent was a high risk serious offender within the meaning of the HRSO Act, and noted that if the court were to so find, then the State sought that the court make a supervision order under s 48(1)(b) of the HRSO Act.[3]
[3] State's submissions pars 1, 109, 124 and 127. See also ts 16 - 17 (21 March 2024).
The respondent was represented by counsel at the hearing of the restriction order application. It was accepted on behalf of the respondent that it was open for the court to find him to be a high risk serious offender, and the making of a restriction order was not opposed. Counsel for the respondent further noted that if the court were to find the respondent to be a high risk serious offender, then the appropriate outcome would be the making of a supervision order under s 48(1)(b) of the HRSO Act, and not a continuing detention order.[4]
[4] ts 19 - 20, 53 (21 March 2024).
For the reasons that follow, I was satisfied that it was necessary to make a restriction order to ensure adequate protection of the community against the unacceptable risk that the respondent would commit a serious offence. It was appropriate that the respondent be subject to supervision for five years, and required to comply with conditions in addition to those required by the HRSO Act, imposed so as to guard against the risk that the respondent posed to the community. A supervision order will be made in the terms set out at sch A to these reasons.
Statutory framework and legal principles
The objects of the HRSO Act as outlined in s 8 are:
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.
Section 7(1) of the HRSO Act provides that an offender is a 'high risk serious offender' if the court dealing with an application under the HRSO Act finds that it is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order to ensure adequate protection of the community against the unacceptable risk that the person will commit a serious offence. The State has the onus of satisfying the court that an offender is a high risk serious offender.[5]
[5] HRSO Act s 7(2).
In the HRSO Act, a 'restriction order' means a continuing detention order or a supervision order.[6] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. A supervision order is an order that the offender, when not in custody, is to be subject to conditions in accordance with s 30 of the HRSO Act.
[6] HRSO Act s 3.
A 'serious offence' is an offence that is specified in sch 1 div 1 of the HRSO Act, or is specified in sch 1 div 2 and is committed in circumstances indicated in relation to that offence in div 2.[7] Schedule 1 comprises a list of serious violent and sexual offences, the majority of which attract a maximum penalty of imprisonment of seven years or more.
[7] HRSO Act s 3, s 5(1) and s 5(2).
The court, in considering whether it is satisfied of the matters in s 7(1), must have regard to the following matters listed in s 7(3) of the HRSO Act:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
The matters set out in pars (h) and (i) above are conclusions or findings based on s 7(3)(a) ‑ (g) and (j) of the HRSO Act.
In considering whether it is satisfied as required by s 7(1), the court must disregard the possibility that the respondent might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[8]
[8] HRSO Act s 7(4).
Section 48(1) of the HRSO Act provides that if the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must make in relation to the offender a continuing detention order, or a supervision order (except as provided in s 29). In deciding whether to make a detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[9]
[9] HRSO Act s 48(2).
The powers conferred by the HRSO Act, like the now‑repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[10] This requires the court to choose the order that is the least invasive or destructive of the offender's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[11] The requirement in s 48(2) of the HRSO Act does not exclude other considerations.[12]
[10] HRSO Act s 48(2).
[11] The State of Western Australia v Latimer [2006] WASC 235 [49] (Murray J).
[12] The State of Western Australia v ACJ [2021] WASC 219 [32].
The HRSO Act, like the DSO Act, does not require that there be no risk of reoffending; rather, the issue is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[13] The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[14]
[13] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (Beech J), citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57].
[14] The State of Western Australia v ACJ [32], citing Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
Section 29 of the HRSO Act limits a court's power to make a supervision order by providing as follows:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
Two evaluative judgments
Section 7(1) of the HRSO Act was considered by Corboy J in The State of Western Australia v Garlett [2021] WASC 387. His Honour preferred an interpretation of the section (read with s 48) that requires that the court assess two separate matters.[15] First, whether a risk that an offender will commit a serious offence is unacceptable; and secondly, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.
[15] See also The State of Western Australia v D'Rosario [No 3] [2021] WASC 412 [18] ‑ [22]; and The State of Western Australia v Narrier [No 2] [2022] WASC 49; The State of Western Australia v Nelson [2021] WASC 460 [12] ‑ [15]; The State of Western Australia v MAM [2022] WASC 100 [18].
That is, s 7(1) involves two evaluative judgments, and 'necessity' and 'adequacy' involve evaluative assessments.
The word 'unacceptable' might carry a meaning similar to that suggested by French CJ in Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 52 CLR 38, that is, a risk that is not trivial or transient.[16] Further, the factors identified by Wheeler JA in Director of Public Prosecutions (WA) v Williams, and Buss JA in Italiano v The State of Western Australia [2009] WASCA 116, and the balancing exercise to which their Honours referred, would be most relevant to the determination of whether it was necessary to make a restriction order to adequately protect the community.[17]
[16] The State of Western Australia v Garlett [136(b)], [126].
[17] The State of Western Australia v Garlett [136(b)].
I have applied Corboy J's preferred construction of s 7(1). In so doing, I have taken into account the factors identified by Wheeler JA, and applied the balancing exercise to which Wheeler JA and Buss JA referred. I adopted the passages reproduced in the reasons of Corboy J in The State of Western Australia v Garlett at [128] to [132], as if reproduced here in full.
I have proceeded on the basis that these separate matters need to be demonstrated 'by acceptable and cogent evidence and to a high degree of probability'.[18] The expression 'high degree of probability' connotes a standard that is more than the civil standard but less than the criminal standard of proof.[19]
[18] HRSO Act s 7(1). See also HRSO Act s 82(2).
[19] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28].
The effect of this distinction, as Corboy J observed in The State of Western Australia v Garlett, is to make clear the possibility that the court might find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has found that the risk of future offending was unacceptable.[20] As to such possibility, Quinlan CJ observed:[21]
While no doubt such a situation would be rare, it is possible to envisage circumstances in which that might be the case. For example, it may be that, in the circumstances of a particular case, other external restraints on an offender (such as a post-sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').
[20] The State of Western Australia v Garlett [136(d)], as noted by Quinlan CJ in The State of Western Australia v D'Rosario [No 3] [21].
[21] The State of Western Australia v D'Rosario [No 3] [21].
As Corboy J observed in The State of Western Australia v Garlett, s 7(1) recognises that the need to ensure adequate protection for the community should form part of the court's determination of whether the offender is a high risk serious offender (the first step in making a restriction order), and not merely the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).[22]
[22] The State of Western Australia v Garlett [136(d)], cited with approval by Quinlan CJ in The State of Western Australia v D'Rosario [No 3] [22].
Evidence
At the hearing of this application, I received into evidence a book of materials in three volumes. The first and second were dated 30 October 2023 and the third was dated 7 March 2024.[23]
[23] Exhibits A ‑ C, respectively.
The first volume contained a copy of the respondent's criminal record in Western Australia and a sentence summary report dated 24 October 2023; a chronology of the respondent's offending in the period 2006 to 2020 prepared by the State Solicitor's Office; various Department of Justice prison records including medical records; the interim supervision order made on 18 September 2023; the reasons for decision delivered on 18 September 2023 at the conclusion of the preliminary hearing: The State of Western Australia v Hoskin; documents which concern the respondent's offending history for offences defined as 'serious offences' under the HRSO Act; and documents which concern the respondent's offending history for relevant offences not defined as 'serious offences' under the HRSO Act.
The second volume contained additional documents which concern the respondent's offending history for offences defined as 'serious offences' under the HRSO Act; documents which concern the respondent's offending history for relevant offences not defined as 'serious offences' under the HRSO Act; and various post‑sentence reports and materials.
The third volume contained the reports and assessments prepared for this hearing; a schedule of child exploitation material prepared by the Office of the Director of Public Prosecutions dated 13 March 2022; and further Department of Justice medical progress notes for the period 30 April 2012 to 1 May 2020, accessed on 23 January 2024.
In addition to the book of materials (in three volumes), without objection the State tendered into evidence a draft occupational therapy functional capacity report prepared by Ms Josephine Elkington dated 15 February 2024, as the draft report was referenced several times in the tendered book of materials.[24]
[24] ts 19 (21 March 2024); exhibit D.
The State called the following four witnesses who were cross‑examined:
(a)Dr Bannister, a consultant forensic psychologist and author of the psychiatric report dated 21 February 2024;
(b)Emma Francis Cashmore, a senior community corrections officer within the Community Offender Monitoring Unit of the Department of Justice and author of the proposed treatment options report dated 23 February 2024;
(c)Dr Hall, a consultant forensic psychologist and author of the psychological report dated 19 February 2024; and
(d)Roxanne Stockton, a senior community corrections officer within the Community Offender Monitoring Unit and author of the community supervision assessment dated 7 March 2024.
At the conclusion of the preliminary hearing, among other things, it was ordered that at the hearing of the restriction order application, the reports provided by the experts (Dr Bannister and Dr Hall) would stand as their evidence in chief and no further evidence in chief may be adduced without the leave of the court.[25] At the restriction order hearing, the State sought leave for further evidence in chief to be lead for clarification purposes, which application was not opposed by the respondent and was granted.[26]
[25] Order 8 of the orders made on 18 September 2023.
[26] ts 17, 20 (21 March 2024).
The respondent elected not to give evidence and no documents were tendered into evidence on behalf of the respondent. The findings therefore were grounded upon the documentary evidence, including the reports received, and the evidence and cross‑examination of the State's witnesses.
Antecedents and criminal history - s 7(3)(g)
I now turn to the matters relevant to determining whether or not the respondent is a high risk serious offender pursuant to s 7 of the HRSO Act. In deciding whether a person is a high risk serious offender, the court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.[27]
[27] As observed by McGrath J in The State of Western Australia v Nelson [33].
The antecedents and criminal record are relevant in and of themselves but are also relevant to whether the person has a propensity to commit serious offences in the future. They are also relevant as to whether there is any pattern of offending behaviour.[28] It was therefore convenient to consider first the respondent's antecedents and criminal record as required by s 7(3)(g).
Childhood and personal life
[28] Again, as observed by McGrath J in The State of Western Australia v Nelson [34], referring to the HRSO Act s 7(3)(c) and s 7(3)(d).
The respondent reported that he was the only child of his parents' union. The respondent's father was from a Māori background and his mother was Australian Malaysian. They separated when he was about three years old.
The respondent denied that his father was ever abusive to him or his mother but acknowledged that his father was very self‑focused and as a result, the respondent has had irregular contact with his father. The respondent described their current relationship as 'not that close', having last had contact in 2020.[29]
[29] Exhibit C, page 849, par 8 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
The respondent reported that when he was about six years old, his mother began a relationship with his step‑father and they had two children together. The respondent explained that he was 'pretty close' with his younger half‑sister aged 37 and his half‑brother aged 35. The respondent reported that his step‑father was sometimes physically abusive towards both him and his mother. The respondent acknowledged he experienced some relief when his step‑father was killed in a road traffic accident.
The respondent reported that his mother began to drink in excess after his step‑father's death. She was reportedly increasingly emotionally unavailable, judgmental and critical of him. The respondent's half‑brother has cerebral palsy, which the respondent said led to the respondent receiving comparatively greater attention from their mother. The respondent reported that his relationship with his mother was 'ok at the moment'.[30]
[30] Exhibit C, page 849, par 10 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
The respondent's report to Dr Bannister concerning his family was consistent with that given to Dr Hall. Dr Bannister further noted that there had been times when the respondent had been violent towards his mother, resulting in a total of three admissions to psychiatric hospitals. Dr Bannister opined that these seem to have coincided with symptoms of psychosis.[31]
Employment and education
[31] Exhibit C, page 867, par 88 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
The respondent reported to Dr Bannister that he attended three primary schools and one high school until year 11, where he left prior to exams as he felt he was not able to cope with them. He subsequently attended TAFE to study business and environment for approximately six months, then electrical engineering which he felt was 'out of his league'. The respondent continued to study various additional courses but left each one after a few weeks or months without completing any.[32]
[32] Exhibit C, page 850, pars 11 - 12 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
The respondent's report to Dr Hall was largely consistent with that given to Dr Bannister in this regard. The respondent further reported to Dr Hall that the engagement with TAFE occurred when he was between the ages of 20 and 23. From the age of 24, the respondent reported that he repeatedly enrolled in courses at Central TAFE but did so primarily to try and meet Asian women. Moreover, the respondent reported that he had rejected offers of employment citing plans to return to TAFE in the near future, and reportedly left TAFE courses citing a desire to gain employment.[33]
[33] Exhibit C, page 830, pars 41 ‑ 42 (Dr MW Hall's psychiatric report dated 21 February 2024).
The respondent reported to Dr Bannister that he later attempted to engage in several other courses but was stymied due to suffering from self‑diagnosed chronic fatigue syndrome.[34]
[34] Exhibit C, page 850, par 12 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
The respondent confirmed he had not worked other than three short‑term roles: at a laundromat when he was 17 years old; at a grocery outlet when he was 26 years old; and as a store person when he was 27 years old. The respondent was in each of those roles for less than two weeks due to his feelings of anxiety or his struggle with the requirements of the roles.[35] The respondent further reported to Dr Hall that the 'force' prevented him from gaining employment after the age of 19.[36]
[35] Exhibit C, page 850, par 12 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
[36] Exhibit C, page 830, par 40 (Dr MW Hall's psychiatric report dated 21 February 2024).
Ms Stockton reported that the respondent was not presently employed and was not searching for employment. The respondent informed Ms Stockton on several occasions that he was attempting to apply for a disability support pension through Centrelink, but had experienced barriers in receiving medical confirmation of his inability to work. On 16 January 2024, Mr Hoskin informed Ms Stockton that he had successfully submitted a disability support pension application. At the hearing of the restriction order application, Ms Stockton's evidence was that she believed the application was still pending.[37]
Alcohol and substance abuse
[37] ts 42 (21 March 2024).
Alcohol and substance abuse did not appear linked to the respondent's offending.
The respondent reported to Dr Bannister that he used cannabis for about 12 months from the age of 15 but ceased his use when he found that it exacerbated his low mood and reduced his self‑confidence. The respondent reportedly also tried MDMA around the same age but believed it had no effect on him. The respondent reportedly consumed alcohol to intoxication every one to two weeks between the age of 15 to 27 years but significantly reduced his intake around that time due to experiencing chronic fatigue syndrome. The respondent reported that his alcohol intake prior to his most recent period of incarceration was approximately once a month and that he has not engaged in drug use.[38]
[38] Exhibit C, page 851, par 17 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
The respondent reported to Dr Hall that he currently drinks three to four standard drinks per week.[39]
Relationships
[39] Exhibit C, page 829, par 35 (Dr MW Hall's psychiatric report dated 21 February 2024).
The respondent has had no enduring relationships and is not presently in a relationship.[40] The respondent reported that he had brief relationships with girls of a similar age when he was aged 15 to 17, and he reported that he became strictly interested in Asian women from the age of 24.[41]
[40] Exhibit C, page 831, par 46 (Dr MW Hall's psychiatric report dated 21 February 2024).
[41] Exhibit C, pages 830 - 831, pars 44 - 45 (Dr MW Hall's psychiatric report dated 21 February 2024).
Dr Hall summarised the respondent's familial relationships as including a mother who he gets along with; a brother with cerebral palsy; and a half‑sister who visits a couple of times a week and provides emotional support.[42] The respondent reportedly has always gotten along well with his half‑siblings.
Other support networks
[42] Exhibit C, page 831, par 49 (Dr MW Hall's psychiatric report dated 21 February 2024).
As to other support networks, Ms Stockton recorded in her report that the respondent had engaged with the National Disability Insurance Scheme (NDIS) in relation to his autism spectrum disorder and his schizophrenia diagnosis. The respondent also continued to be engaged with Specialist Support Coordinator, Mr Keiley, at My Voice My Choice, and occupational therapist, Ms Elkington, at Concentric Rehabilitation Centre.[43]
[43] Exhibit C, page 882 (Ms R Stockton's community supervision assessment dated 7 March 2024).
Ms Stockton further recorded that the respondent continued to be engaged with Prevail Care, which provides about 12 to 15 hours per week of community support to the respondent, assisting him with daily activities and community engagement. She further recorded that on 14 January 2024, Mr Keiley had advised that he and the respondent had discussed the suitability of speech therapy in the context of social skills and social interactions, rather than to address difficulties with enunciation or aphasia; and that the respondent had agreed to be referred to a speech therapist at Concentric Rehabilitation Centre to improve his social skills and self‑esteem.[44]
Criminal record - serious offences and other relevant offences
[44] Exhibit C, page 882 (Ms R Stockton's community supervision assessment dated 7 March 2024).
For the purpose of the hearing the State prepared a chronology of the respondent's offending which falls within the meaning of a serious offence under the HRSO Act, and other offences the State submitted were relevant offences.[45] The chronology included the date and nature of each offence; a high level summary of the material facts for each offence; the date of outcome; and the sentence imposed. I had regard to the same.
[45] Exhibit A, pages 11 - 21 (Chronology prepared by the State's Solicitor's Office).
In determining the application, I also had regard to the primary documents reproduced in the book of materials concerning the respondent's offending.
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 was recorded in The State of Western Australia v Hoskin at [15] and [16], 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 last term of imprisonment, served for three years, marked the fourth separate term of imprisonment that he had served for child exploitation material related offences.
The respondent has also 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.
The respondent's offending history was further summarised at [18] to [29] of my reasons for decision following the preliminary hearing. There I recorded that 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 eight 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), 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 three and 12 years, and in some cases were shown engaging in penetrative sexual behaviour. 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.
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. These are not serious offences within the meaning of the HRSO Act.
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 charges sentence.
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. 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.
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 three and 10 years of age. On one occasion, he filmed for 10 minutes.
The respondent also pleaded guilty to having possession of 79 images of child exploitation material on 28 April 2012, including three category 4 images; and to seven 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.
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.
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.
On 11 July 2017, the respondent was arrested for possession of approximately 1200 images of child exploitation material, including 61 category 3 images, 151 category 4 images, and one 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. He was ordered to serve 18 months' imprisonment concurrently.
Responses to supervision
At the hearing of the restriction order application, counsel for the State acknowledged, and counsel for the respondent sought to emphasise, that the respondent had performed well on the interim supervision order.[46] The extent to which there had been issues, it was reported that they had been relatively minor. The respondent failed to attend some appointments and had received two written warnings about his non‑compliance.[47] The respondent reportedly described his current experience of being on the interim supervision order as being 'a bit tough to begin with' and somewhat daunting, but that he was comfortable with the restrictions imposed.[48]
[46] ts 18, 49 (21 March 2024).
[47] Exhibit C, page 857, par 44 (Dr BP Bannister's psychological risk assessment dated 19 February 2024); ts 40 (21 March 2024).
[48] Exhibit C, pages 857 and 869, pars 45 and 96 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
Before this recent period of supervision, Dr Bannister recorded that the respondent completed one period of community supervision from 27 October 2008 to 23 January 2009 without breach.[49]
[49] Exhibit C, page 857, par 44 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
That said, the most recent offences of the respondent were committed while subject to conditions pursuant to the Community Protection (Offender Reporting) Act. Further, he has various convictions for failing to report. As noted above, 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; 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; and on 28 April 2012 the respondent pleaded to charges which included seven 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.
Propensity to commit serious offences in the future - s 7(3)(c)
The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law, that is, to have an inclination or tendency to do something.[50] In Director of Public Prosecutions (WA) v GTR at [178], in the context of an application made under the DSO Act, Murray AJA stated that:
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[50] The State of Western Australia v Bellamy [2013] WASC 467 [70].
As was noted on behalf of the State, the respondent has 41 convictions for serious offences, all of which relate to child exploitation material or indecently recording a child under the age of 13. His offending has continued over many years. I accepted the State's submission that the convictions demonstrate that he has an inclination and/or disposition to commit such offences; and that he has exhibited an increased sexual deviance over time, including developing a sexual interest in male children.[51]
[51] State's submissions pars 74 - 75.
As noted above, the respondent's last term of imprisonment, served for three years, marked the fourth separate term of imprisonment that he had served for child exploitation material related offences. The repetition and nature of the offences, and the fact that he has continued to offend despite being convicted and serving terms of imprisonment for earlier offences, demonstrated that the respondent has a propensity to commit serious sexual offences in the future.
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
As noted on behalf of the State, 'pattern', as it pertains to behaviour, is defined in the Macquarie Dictionary as a recurrent way of acting by an individual or group towards a given object or in a given situation.
As was noted on behalf of the State, the respondent has engaged in sexual offending behaviour consistently since 2006, and his most serious offending commenced less than two weeks after he was released from prison, on 1 May 2020, for similar offences.[52] It is clear from the circumstances of the offences that there has been a pattern to the respondent's offending behaviour.
Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - ss 7(3)(e) and 7(3)(f)
[52] State's submissions par 77.
I was required to consider if the respondent had made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs, and whether or not such participation has had a positive effect.
The respondent's engagement in treatment programs has been inconsistent, and the respondent's attitudes and moral beliefs did not change meaningfully by having participated in the same.
The respondent has completed two treatment programs. First, the Medium Sex Offender Treatment program from 3 June 2008 to 10 September 2008; and secondly, the Individual Sex Offender program from 12 January 2009 to 23 January 2009.
As observed on behalf of the State, during the Medium Sex Offender Treatment program, the respondent generally appeared disinterested and disengaged, only contributing when prompted to do so. He failed to develop a realistic and achievable relapse prevention plan. He expressed that such a plan would not be of assistance to him as imprisonment alone had strongly deterred him from reoffending. The respondent was considered by program facilitators to have an elevated risk of reoffending compared to a previously reported medium‑low risk.[53]
[53] State's submissions par 79, referencing exhibit B, pages 639 - 644 (Sex Offender Treatment Completion Report dated 8 October 2008).
Further, upon completion of the Individual Sex Offender program in 2009, the respondent was considered to be at high risk of reoffending, despite having been positive and willing to participate in the sessions. When asked about his perspective on his offending behaviour, the respondent said that he had the same feelings of fascination and attraction to prepubescent girls. Overall, it was considered that the respondent required significantly more counselling before his risk of reoffending would be reduced.[54]
[54] State's submissions par 80, referencing exhibit B, pages 645 - 650 (Offender Services Treatment Completion Report dated 25 February 2009).
I also noted that Dr Hall has expressed the opinion that the respondent's schizophrenia is undertreated,[55] which is discussed further below at [155], [175] [192] and [240].
[55] Exhibit C, page 843, par 116 (Dr MW Hall's psychiatric report dated 21 February 2024). See also ts 32 (21 March 2024).
While subject to the interim supervision order, the respondent's engagement in 'one on one' therapeutic intervention has been more promising. The respondent has met with his treating psychologist, Mr David Summerton, on approximately nine occasions in total; seven occasions as of the date of Ms Cashmore's report (23 February 2024) and a further three occasions since then.[56] Ms Cashmore gave evidence that she believed another session was scheduled to take place for 20 March 2024 but was not able to confirm the same.[57] The court was also informed that Mr Summerton, a senior psychologist in the Department of Corrective Services, had reported that the respondent appeared to present with the capacity for insight into his offending behaviour; the respondent's difficulties with forming appropriate relationships, deviant sexual interests and most recent sexual offending have been the primary focus of counselling sessions; at this time, treatment gains had not yet been achieved.[58] It was also reported that the respondent was being candid in his weekly sessions with Mr Summerton, and was reasonably insightful in that he was able to reconsider long‑held beliefs about himself and his views of the world.[59]
[56] Exhibit C, page 882, par 12 (Ms EF Cashmore's treatments options report dated 23 February 2024); ts 29 (21 March 2024).
[57] ts 29 (21 March 2024).
[58] Exhibit C, page 879 (Ms R Stockton's community supervision assessment dated 7 March 2024).
[59] Exhibit C, page 837, par 81 (Dr MW Hall's psychiatric report dated 21 February 2024).
Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)
Dr Bannister and Dr Hall each examined the respondent and prepared independent reports as required by s 74(1) of the HRSO Act.
Section 74(2) of the HRSO Act required that the reports prepared by Dr Bannister and Dr Hall indicate their respective assessment of the level of risk that, without a restriction order, the respondent will commit a serious offence; and the reasons for their assessment. Section 74(3) of the HRSO Act required Dr Bannister and Dr Hall to have regard to any medical, psychiatric, prison or other relevant report or information relating to the respondent that is in the possession of the Chief Executive Officer of the Department of Justice, or to which the chief executive officer has, or may be given, access, in preparing their reports.
I summarise below the evidence of each of the independent experts, which evidence I weighed in the balance as required by s 7(3)(a) of the HRSO Act.
Dr Bannister's psychological risk assessment and evidence
Dr Bannister is a consultant forensic psychologist registered with the Australian Health Practitioner Regulation Agency. He has over 22 years' experience in areas of offender management, reintegration and rehabilitation, and application of forensic psychology at a senior level. He has extensive experience preparing forensic risk of recidivism assessments for complex and high risk violent and sexual offenders; and has extensive experience and has received specialised training in the administration of a range of personality and diagnostic psychometric instruments and sexual and violence recidivism risk assessment tools. His qualifications are set out in his report,[60] and I was satisfied that he was qualified to make an assessment of the level of the risk that, without a restriction order, the respondent will commit a serious offence.
[60] Exhibit C, page 847, par 2 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
Dr Bannister recorded in his report that he interviewed the respondent on 21 December 2023 in person. The total duration of the interview was two hours. Sources of information for the preparation of his assessment also included his ongoing consultations with Ms Stockton; two interviews with Mr Summerton; volumes 1 and 2 of the book of materials for the restriction order hearing; and Ms Elkington's draft occupational therapy functional capacity assessment report dated 15 February 2024.
As to the extent to which the respondent cooperated with the examination, Dr Bannister recorded in his report that he impressed as a polite and softly spoken man who engaged in the assessment well. He was responsive to queries put to him, he asked clarifying questions when he felt it necessary, he was forthright, and his behaviour suggested no attempts to impression manage. At the restriction order hearing it was Dr Bannister's evidence that the respondent appeared honest and frank in his engagement, even with respect to matters that 'would paint him in a negative light'.[61]
[61] ts 20 - 21 (21 March 2024).
Dr Bannister summarised the respondent's personal history at pars 8 to 10 of his report, which informed the description at [36] to [40] above. He also summarised the respondent's education and employment history at pars 11 to 12 of his report, which informed the description at [41] to [45] above.
Dr Bannister summarised the respondent's offending history from pars 29 to 43 of his report; the respondent's account of his own offending history at pars 47 to 49 of his report; and the respondent's response to supervision at pars 44 to 46 of his report.
Sexual development, sexual interests and current sexual thinking
While the respondent reported that he had not been sexually abused as a child, Dr Bannister recorded in his report that the respondent's mother previously reported that she suspected that he may have been, as another child relative was an alleged sexual abuse victim.
Dr Bannister further recorded that the respondent had confirmed that he had not had any relationship since those in his teens, and one sexual encounter with a prostitute when he was 24 years old. While he had attempted to establish relationships with similarly aged women, he was often rejected.
Dr Bannister also recorded that the respondent first accessed child exploitation material at the age of 23 years, and reported that he found watching it 'daunting' but comforting. The respondent reported that his current sexual interest was in Asian women and prepubescent females aged between six and 11 years of age. He also acknowledged that from the age of 35, he had developed a sexual interest in prepubescent males between five and eight years of age. The respondent maintained that this was 'an occasional interest' rather than a particular focus of his sexual attraction, and explained that he only promoted this interest while engaged in internet chat with others with the aim of being provocative.[62] As was noted by Dr Bannister at the hearing of the application, the degree of genuine interest held by the respondent in male children was unclear.[63]
[62] Exhibit C, page 851, par 14 (Dr BP Bannister's psychological risk assessment dated 19 February 2024); and also ts 21 (21 March 2024).
[63] ts 21 (21 March 2024).
The respondent confirmed that he currently identified as heterosexual. Further, he reported to Dr Bannister that his libido was currently 'low to average', being affected negatively by the medications he was taking. Dr Bannister further recorded that the respondent had stated that he did not currently find it difficult to control the frequency of his sexual thoughts, and he had estimated that he experienced such thoughts about two to three times per day for about two to five minutes at a time.[64]
Physical health, mental health and psychological functioning
[64] Exhibit C, page 851, pars 15 ‑ 16 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
Dr Bannister summarised the respondent's perspective of his own physical health, mental health and psychological functioning from pars 18 to 28 of his report. Among other things, the respondent reported that he struggled to cope with any physical exertion and attributed this to chronic fatigue syndrome (which he had self‑diagnosed). The respondent reported experiencing high levels of anxiety in social settings, indicating that he used food, masturbation, the internet and live sex cams or chatrooms to self-soothe, distract and escape from negative feelings and problems in his life.
As to his mental health, Dr Bannister recorded that the respondent had stated that he was currently administered with paliperidone (depot anti‑psychotic injection) once a month in addition to a 20mg daily dose of fluoxetine (an anti‑depressant). The respondent also acknowledged to Dr Bannister that he had experienced periods of depressive mood and low self‑esteem from the age of 16, and anxiety from the age of 17 or 18. The respondent reported that he had been diagnosed with obsessive‑compulsive disorder at the age of 21; and had been prescribed an anti‑depressant around the age of 27 or 28, but had ceased its use as he viewed the medication to have been of no benefit. The respondent also reported that he had been diagnosed with paedophilic disorder.
The respondent reported that he had been diagnosed with paranoid schizophrenia in 2017 and prescribed antipsychotic medication. The respondent expressed the view that this medication was not effective and he experienced problems with maintaining an erection and ejaculating. Dr Bannister noted that the respondent has accepted his schizophrenia diagnosis after being somewhat resistant to it. The respondent explained that he became 'more logical' when he was on depot anti‑psychotic medication.
Dr Bannister reported that the respondent had been administered the Millon Clinical Multi‑axial Inventory, 3rd edition (MCMI‑III), in April 2017 and in February 2022. Dr Bannister described this as a self‑report questionnaire used to assess personality traits and emotional adjustment, and screen for the presence of psychological and clinical issues. At par 22 of his report, Dr Bannister described the traits of the respondent's personality profile in the following terms:
The resultant personality profile was consistent with people who preferred to be alone, who experience inability to engage in meaningful relationships and whose limited capacity to understand others can result in them being vulnerable to manipulation. People with a similar profile tend to be socially withdrawn, often hyper-alert to potential threats and have a pessimistic and hopeless outlook. Additionally, such people often feel mistreated, unsupported, and misunderstood, which can lead to anger, resentment, passive-aggressive and aggressive behaviour. Furthermore, people with [the respondent's] profile can frequently be paranoid and suspicious of others and interpersonally avoidant, the latter as a self-protective mechanism because their past experiences have led them to expect mistreatment and rejection.
Dr Bannister also reported that the respondent was assessed by a neuropsychologist in September 2022 to determine if he had autism spectrum disorder. Dr Bannister reported that from a cognitive perspective, the respondent presented with average overall intelligence, as well as average attentional control, attention span, working memory, processing speed, crystallised verbal knowledge, and core executive functioning. However, the respondent demonstrated a relative weakness in abstract verbal reasoning which Dr Bannister noted was commonly found in individuals with autism spectrum disorder. Dr Bannister reported that the neuropsychologist assessed the respondent to have autism spectrum disorder, specifically in the mild to moderate range in terms of impact on his functioning.
Dr Bannister also recorded that in light of the diagnosis of autism spectrum disorder (level 2), it had been recommended the respondent be registered with the NDIS, and provided with autism‑specific social and emotional supports. A NDIS plan was subsequently established, which commenced on 22 June 2023 and is due for a review on 21 June 2024.
Offence specific treatment
Dr Bannister summarised the respondent's participation in treatment consequential to his offending at pars 50 to 57 of his report.
Among other things, Dr Bannister noted that since September 2023, the respondent had engaged in individual psychological treatment with Mr Summerton. Dr Bannister recorded that Mr Summerton characterised the respondent as being 'very responsive' to treatment, which had resulted in a rapid transition from simple rapport building to an active focus on criminogenic need. Dr Bannister also recorded that Mr Summerton had relayed that the respondent was open to alternative explanations for opinions he had held for many years, and that the respondent displayed some degree of empathy and insight. Mr Summerton had confirmed that in his opinion, the respondent had significant outstanding treatment needs that needed to be addressed.
Dr Bannister further recorded the respondent's account of his treatment history at pars 58 to 59 of his report. Among other things, the respondent had reported to Dr Bannister that as a result of engaging in the Medium Sex Offender Treatment program, he had realised that accessing child exploitation material prompted creators of such material to make more and therefore further victimise children. Moreover, the respondent noted that he thought that he could use assistance with goal setting, motivational issues and improving his insight into his past behaviour; that isolation and improving his support network were relevant concerns for him; and that the most effective strategies for him to avoid offending in the future were engaging in treatment, acting in accordance with his commitment to not reoffend, and meeting his supervision obligations.
Nature of the respondent's offending
Dr Bannister proffered the following opinion at par 60 of his report as to the nature or genesis of the respondent's offending:
60. [The respondent's] experience of his childhood caregivers was characterised by an absent biological father (precipitating feelings of neglect, abandonment and rejection), a mother who was somewhat emotionally unavailable (in part due to the demands of caring for [the respondent's] high care needs half-brother), and an abusive stepfather. This experience likely resulted in negative impacts to [the respondent's] ability to form secure attachments. His concurrent development of various mental health and neurological disorders further complicated his view of the world and himself, likely serving to alienate and isolate him from society and societal norms. The resultant deficits in emotional, social and interpersonal skills likely steered him towards maladaptive coping mechanisms such as a sexual interest in a victim group perceived to be non-threatening and non-judgmental. This interest has persisted as [the respondent has] engaged in cognitive distortions to minimize the moral and legal wrongness of his behaviour, and as he has not been successful in establishing and sustaining intimate relationships and friendships to meet his needs in a prosocial way.
Risk assessment
Dr Bannister assessed the level of risk that, without a restriction order, the respondent will commit a serious offence. He opined that if the respondent was not made the subject of a restriction order, he was at high risk of reoffending in a serious manner as defined by the HRSO Act.
Dr Bannister used two tools to assess the respondent. First, the Hare Psychopathy Checklist - Revised (PCL‑R),[65] which he explained is a tool to assess the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The tool is a 20‑item scale which uses both historical and dynamic data for the assessment of psychopathy in research, clinical and forensic settings.
[65] As referenced by Dr Bannister at footnote 3 to his report: Hare, R.D. (2003) Psychopathy Checklist - Revised 2nd Edition, Toronto: Multihealth Systems Inc.
The second tool used by Dr Bannister was the Violence Risk Scale: Sex Offender Version (VRS:SO),[66] which he explained is a structured clinical judgment tool designed to assess risk and predict sexual recidivism, to measure and link treatment changes to sexual recidivism, and to inform the delivery of sexual offender treatment. The tool comprises of seven static (historical) and 17 dynamic (changeable) factors that have been empirically or conceptually linked to sexual recidivism.
Results - PCL-R
[66] As referenced by Dr Bannister at footnote 5 to his report: Wong, S., Olver, M. E., Nicholaichuk, T. P., & Gordon, A. (2003). The Violence Risk Scale-Sexual Offender version (VRS–SO). Saskatoon, Saskatchewan, Canada: Regional Psychiatric Centre and University of Saskatchewan.
Dr Bannister reported that when the respondent was assessed by reference to the PCL-R, the respondent did not meet the clinical cut‑off score for psychopathy, scoring in the low range on the PCL‑R.
Results - VRS:SO
At pars 73 to 81 of his report, Dr Bannister explained that the seven static (historical) factors are important predictors of recidivism, but noted that they are historical in nature and remain unchanged regardless of treatment intervention.
As to the static factors the respondent scored 14 out of a possible 21, which placed him in the percentile range of 89.4 (meaning that his static score was more than the score of 89.4% of the original normative sample).
At pars 82 to 100 of his report, Dr Bannister described the 17 dynamic risk factors that are important risk predictors, and he assessed the respondent against the same variables.
As to the dynamic risk factors the respondent scored 31 out of a possible 51, which placed him in the percentile range of 84.3 (meaning his dynamic score was more than the score of 84.3% of the original normative sample).
The respondent scored a combined (static and dynamic risk variable) score of 45 out of a possible 72. Dr Bannister noted that this placed the respondent in the approximately 88th percentile (meaning he scored higher than 88.1% of the normative sample, which placed him in the high-risk category of sexual reoffending as defined by the VRS‑SO).
Dr Bannister also expressed the view that using the VRS‑SO normative sample, five and 10 year estimates of risk could be assigned to the respondent. Dr Bannister's analysis in this regard was as follows:[67]
19.9% of sexual offenders in the normative sample with [the respondent's] score sexually reoffended within five years of release to the community. With a 95% confidence interval, this suggests [the respondent] will have a 16.3% to 24% chance of sexually reoffending within five years if he is not subject to an Order. 30.4% of sexual offenders in the normative sample with [the respondent's] score sexually reoffended within ten years of release to the community. With a 95% confidence interval, this suggests [the respondent] will have a 26.4% to 34.7% chance of sexually reoffending within ten years if he is not subject to an Order.
[67] Exhibit C, page 871, par 103 (Dr BP Bannister's psychological risk assessment dated 19 February 2024).
Dr Bannister also noted that several treatment targets remained for the respondent, and at par 104 of his report opined as follows:
Specifically, [the respondent] continues to have criminogenic needs in the areas of sexual deviance, sexual compulsivity, and intimacy deficits. The risk assessment for the current assessment also identified issues related to cognitive distortions, emotional management, a lack of comprehensive and detailed relapse prevention plans (or indeed specific strategies to avoid or appropriately manage risk factors within such situations) and impulsivity. It is important to note that there were a number of risk-relevant areas identified by the VRS-SO in which [the respondent] was in a pre-contemplative stage of change, which indicates that he did not appear to acknowledge some areas as a particular issue relevant to him.
Risk scenarios
At pars 105 to 109 of his report, Dr Bannister described the respondent's most likely risks upon release as follows:
The most likely risk scenario for [the respondent] is a breach of the conditions of a Community Supervision Order. This may be brought about due to his underestimation of the seriousness of the obligations inherent in an imposed Order. Specifically, his [autism spectrum disorder] means that he may be more likely to engage in behaviours that are egocentric and consequently fail to naturally consider the outcomes of those behaviours (such as those that constitute a breach of conditions). The most serious risk scenario would involve [the respondent] offending against identifiable victims, brought about by his sexual deviancy and sexual compulsivity overriding his self-regulation skills.
It is not possible to predict the likelihood of [the respondent] committing a serious offence, specifically as defined by the [HRSO Act] with absolute accuracy. There are several reasons for this.
Firstly, risk assessment tools used to provide legal decision-makers with estimates of a person's recidivism do so by comparing their score on the tool to the normative sample used by the developers of that tool in order to validate it. If the normative sample of a tool does not provide information on recidivism for specific offences, such as those outlined as 'serious' by the [HRSO Act], then the capacity for that tool to accurately predict risk of committing such crimes accurately is compromised. However, many such tools (such as the VRS-SO) allow for an estimate to be given relating to sexual recidivism, because that is what was assessed in the validation of the normative sample.
Secondly, the concept of risk of recidivism is dynamic, contextual and individualistic. It can change depending on situational or psychological influences. This means that the concept of risk prediction using structured professional judgment lends itself more readily to broad appraisals of likelihood, rather than specific determinations of particular actions.
Thirdly, all generally accepted empirically validated structured risk assessment tools have a moderate degree of predicative validity. This means that even when they are used as intended by the developers, they are still not able to predict with absolute accuracy. However, it is important to note that a moderate degree of predictive validity is statistically robust. It is therefore worth emphasising that the reason risk scenarios are able to be produced and presented as being accurate enough for legitimate consideration are because they typically rely on the empirically validated concept of past behaviour being a very good predictor of future behaviour. Using these scenarios as a basis, the most serious corresponds to some offences in Schedule 1 of the [HRSO Act]. Therefore, it is appropriate to suggest that [the respondent's] overall assessed risk could translate to a scenario whereby he commits an offence or offences deemed serious under the [HRSO Act]; in short, that the level of risk of [the respondent] committing a future serious offence if not subject to a restriction order reflects his current assessed risk, which is high.
Recidivism - risk assessment
At par 110 of his report Dr Bannister recorded that overall, in his opinion, the respondent currently poses a high risk of serious offending if not subject to a restriction order under the HRSO Act, in the form of a continuing detention order or a supervision order.
Among other things, Dr Bannister also recorded that in his opinion, the respondent presents with a range of outstanding treatment needs, including sexual deviance, sexual compulsivity, intimacy deficits, cognitive distortions, emotional management, a lack of specific strategies to avoid or appropriately manage risk factors, and impulsivity.
Recommendations
At par 113 of his report, Dr Bannister opined that the key factors in ameliorating the respondent's risk going forward will be to encourage him to establish and maintain prosocial relationships, keep him meaningfully engaged in daily activity, and have him continue criminogenic treatment. He will also require ongoing psychiatric care to ensure his schizophrenia continues to be well‑managed. Dr Bannister emphasised that the respondent is likely to find establishing and maintaining prosocial relationships (especially intimate relationships) potentially quite challenging due to his autism spectrum disorder, however the ultimate goal will be for the respondent to meet his intimacy and social needs in a pro‑social way.
At the conclusion of Dr Bannister's report, he set out a number of recommendations which included conditions that he suggested the court consider imposing should the respondent be made subject to a supervision order. The suggested conditions were that the respondent should be restricted in his internet use specifically in relation to searching for, collecting, accessing, or possessing images of children or documentation relating to child exploitation material, as well as restrictions placed on his capacity to conceal such activity where possible; the devices he has in his possession to access the internet should be regularly monitored; and he should also be restricted from having any unsupervised contact with someone under the age of 18 years.
In the course of his evidence, Dr Bannister also recommended that the respondent continue weekly psychological treatment.[68]
[68] ts 22, 23 - 24 (21 March 2024).
In a telephone discussion with Ms Stockton on 13 February 2024, Dr Bannister had indicated that prohibiting all access to the internet was not his recommended risk management strategy, whereas continued prohibition of the respondent' use of social media use was supported.[69] In the course of his evidence, Dr Bannister explained his reasoning in the following terms:[70]
Essentially, it's about striking a balance between allowing [the respondent] to use the internet for prosocial reasons, so things like looking for employment or other sort of meaningful activity, using it to establish and develop prosocial networks. Balancing that, of course, against restricting his use so that he doesn't access dirty material. Ultimately, I suppose, it's possible for him to do those prosocial things without the use of the internet and I would also say above all else, that it comes down to the degree to which there's confidence that that can be monitored. So if there's perhaps any concerns that his monitoring – or the monitoring of his internet use is not something that can be effective enough or proactive enough to reduce or mitigate his risk, then I would be in favour of, … a complete restriction.
[69] Exhibit C, page 887 (Ms R Stockton's community supervision assessment dated 7 March 2024).
[70] ts 22 - 23 (21 March 2024).
He further expressed the opinion, in agreement with that expressed by Dr Hall, that after a period of demonstrated self‑management, the respondent might be allowed access to the internet provided that his use was able to be monitored after the event.[71]
[71] ts 25 (21 March 2024).
Further, Dr Bannister recommended in his report that the respondent's supervising Community Corrections Officer ensure they take into account the respondent's autism spectrum disorder and psychosis when making decisions about his compliance and behaviour on any supervision order. He noted that clear directions would assist the respondent to be aware of his obligations.
Dr Bannister noted that the respondent may also take some time to consolidate and internalise the skills required to successfully self‑manage his risk, particularly as self-regulation (especially sexual self‑regulation) had been an identified issue for him to this point.
As to the appropriate duration of a supervision order (should one be imposed), Dr Bannister opined that an order of at least five years would provide an opportunity to determine to what degree he is able to self‑regulate, without being of a length that may cause him to become discouraged. That said, Dr Bannister further opined that it was entirely possible that the respondent may take less time to demonstrate, within the confines of a strict supervision order, that he can successfully self‑manage his risk, or he may in fact take longer. This will largely depend on his motivation, his insight, and his response to treatment.
Dr Hall's psychiatric report and evidence
Dr Hall is a consultant forensic psychiatrist and a fully registered medical practitioner. His qualifications were disclosed in his report at par 6, and I was satisfied that he was qualified to make an assessment of the level of the risk that, without a restriction order, the respondent will commit a serious offence.
For the purposes of this proceeding, Dr Hall recorded in his report that he had interviewed the respondent in person on four occasions, on 18 January 2024; 19 January 2024; 22 January 2024 and 23 January 2024. He also spoke with a Senior Community Corrections Officer from the Community Offender Monitoring Unit on 19 February 2024; Dr Rachael Griffiths, a consultant psychiatrist with the Community Forensic Mental Health Service, on 19 February 2024; and Mr Summerton on 20 February 2024. The documents to which Dr Hall had regard were identified at par 7 of his report.
Among other things, Dr Hall provided a summary of the respondent's sexual offences at pars 8 to 12 of his report; a summary of the respondent's account of his prior sexual offending at pars 13 to 15 of his report; a summary of the respondent's index sexual offence at pars 16 to 18 of his report; a summary of the respondent's account of his index sexual offence at pars 19 to 20 of his report; and a summary of the respondent's prior non‑sexual offences and other anti‑social behaviour at par 21.
Dr Hall summarised the respondent's personal and family history in pars 37 to 39, where among other things he recorded that the respondent adamantly denied any history of childhood sexual abuse. He also described the respondent's social functioning at pars 53 to 56. As to the respondent's history of intimate relationships, they were described at pars 44 to 45 of his report; a history of the respondent's non‑intimate relationships were described at pars 46 to 48; and a summary of the respondent's current supports were described at par 49.
The respondent's employment history was also summarised at pars 40 to 43 of his report, which informed the description at [41] to [44] above.
Psychiatric history
Dr Hall provided a summary of the respondent's psychiatric history at pars 22 to 26 of his report; and a summary of the respondent's account of his psychiatric history at pars 27 to 34 of his report.
Dr Hall recorded that the respondent first had contact with mental health services in early 2016 aged 36 after assaulting his mother, leading to a three‑month admission to Midland Mental Health Unit. A subsequent two‑month admission in late 2016 followed another assault on his mother.
The respondent has been diagnosed with schizophrenia, obsessive‑compulsive disorder, paedophilia disorder and autism spectrum disorder of moderate severity which predated both the schizophrenia and paedophilia. In 2022, the respondent's previously diagnosed obsessive‑compulsive disorder was diagnosed to be a manifestation of the respondent's autism spectrum disorder rather than a separate condition.
History of alcohol and other substance use
Dr Hall recorded that the respondent used cannabis from the ages of 14 to 16, ceasing due to a depressive effect. Dr Hall further recorded that the respondent engaged in weekly binge drinking from age 15, which decreased significantly in his early twenties. Dr Hall recorded that the respondent currently drinks three to four standard drinks per week.
Emotional and behavioural regulation
Dr Hall summarised the respondent's emotional and behavioural regulation at pars 50 to 52 of his report. Among other things, it was recorded that the respondent had described how he coped with stress, which was by retreating to the online environment, including pornography.
Sexual development, behaviour and fantasy
Dr Hall summarised the respondent's development of sexual behaviour and fantasies in pars 57 to 69 of his report.
Among other things, Dr Hall recorded that the respondent first accessed child exploitation material online at the age of 23. The respondent reportedly searched 'young nude girls' at an internet café late in the evening but did not do it again for 'another year or two' as he 'got a bad feeling that [he] could end up in jail, or that people could think I was a paedophile'.
Dr Hall recorded that from the age of 24, the respondent's interest in adult females was exclusively directed toward Asian women because 'their fair skin, youthful appearance low body fat percentage are superior qualities' and 'they always seemed to be laughing together when in groups', which he thought to be a good quality. Dr Hall noted that it was previously documented that the respondent viewed Asian women as a surrogate for prepubescent females due to their body habitus. Dr Hall reported that the respondent had said that was only part of the reason he was attracted to them. Dr Hall further reported that at the age of 26, the respondent reported that he made an appointment with an Asian sex worker and engaged her for anal sex but declined upon arrival at the premises when he was offered a different woman. The respondent recalled thinking that the reason it did not come to fruition was because of the supernatural force that was working against him.
Dr Hall noted it had previously been documented that the respondent had at one stage admitted to a sexual interest in prepubescent boys.
Dr Hall reported that the respondent had acknowledged the depraved nature of some of the material he was communicating to chat hosts but that he had adamantly denied any sexual arousal to fantasies involving mutilation, the killing of children and the killing of adults.
Dr Hall reported the respondent gravitated toward viewing voyeurism pornography and filming up the skirts of young girls around 2020.
Since his release from prison, the respondent reported that he had at times considered masturbating to fantasies of prepubescent girls but had felt 'quite demotivated about it because of the HRSO thing'.
Treatment and progress
Dr Hall drew the court's attention to the respondent's treatment and progress at pars 70 to 78 of his report.
Dr Hall referenced in his report at pars 70 to 78 the records which relate to the respondent's treatment. Dr Hall recorded that the Treatment Completion Report dated 8 October 2008 noted that the respondent had been of the view that naked images of children were not abusive if they were not engaging in any sexual activity; but by the completion of the course, the respondent had understood that by viewing child pornography, he was contributing to the exploitation and violation of children. The report also indicated the respondent's sexual interest continued to be prepubescent females, and the respondent had failed to develop a realistic and achievable relapse prevention plan.
Dr Hall also referred to the psychological report dated 21 February 2022, which noted that the respondent continued to fail to display awareness of the impact of his sexual offending on others; and recorded that the respondent's risk had been evaluated as being in the well above average range. Dr Hall recorded that the following recommendations had been made: that the respondent engage in group and individual sex offender treatments, counselling and medication as required; that the respondent have strict supervision and monitoring on release; that his compliance with treatment be ensured; and that measures be taken to improve his social and personal skills such as better structuring his life and daily routines.
Dr Hall also referred to a neuropsychological assessment dated 14 September 2022, which noted that the respondent's autism spectrum disorder meant he was more likely to engage in behaviours that were self‑serving without the ability to naturally consider the psychological and emotional impact of those behaviours on others. It was also there noted that the respondent would tend to look at things in a rigid or binary fashion, and that this may impact the respondent's ability to predict the consequences for various actions unless those consequences are explicitly stated. The assessment further noted that the respondent may benefit from working with a psychologist on his emotional regulation and understanding of his interpersonal relationships.
Dr Hall noted that a Post‑Sentence Supervision Order Report dated 4 August 2023 had recorded that the respondent was unable to verbalise the impact on children who had been victims of child exploitation.
Dr Hall's evidence was that the respondent would be at risk of succumbing to temptation to engage in offending behaviour if he thought he could get away with it.[93] He further opined that the respondent's past behaviours suggest that without any intervention, he could reoffend within a timeframe of six months to two years.[94]
[93] ts 34 (21 March 2024).
[94] Exhibit C, pages 844, par 121 (Dr MW Hall's psychiatric report dated 21 February 2024); and ts 34 - 35 (21 March 2024).
Taking into account all of the findings above and evidence before the court, I was satisfied to a high degree of probability that it was necessary to make a restriction order to ensure adequate community protection against a risk that the respondent would commit a serious offence. I had formed the view that there were no measures short of a restriction order that would provide the high degree of supervision necessary to manage the respondent's risk of reoffending.
Continuing detention order or supervision order?
Having decided that the respondent was a high risk serious offender, I was required to make either a continuing detention order or a supervision order in relation to him.[95] I proceeded on the basis that I was required to choose the order that was the least invasive to the respondent's liberty while ensuring an adequate degree of protection of the community.
[95] HRSO Act s 48(1), as noted in Woods v Director of Public Prosecutions (WA) [2008] WASCA 188.
In considering whether a supervision order would adequately protect the community, it was necessary that I took into account any conditions which could be placed on a supervision order so as to ensure adequate protection of the community, the respondent's rehabilitation, care and treatment, and to ensure adequate protection of complainants of offences committed by him.[96] I was also required to be satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the order as required under s 29 of the HRSO Act. The onus was on the respondent to satisfy the court that he would so comply.[97]
[96] HRSO Act s 30(5).
[97] HRSO Act s 29(1) and (2).
As was observed on behalf of the State, a powerful consideration when considering whether the court was satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the order as required under s 29 of the HRSO Act, was the respondent's record of compliance with the interim supervision order since September 2023. The report that the respondent was engaging well with Mr Summerton, his treating psychologist, and was engaging well with treatment directed at his outstanding and significant criminogenic treatment needs; had demonstrated that he was comfortable in disclosing his sexual interests in supervision and in counselling; had consented to and was taking depot medication for schizophrenia; had stable accommodation; and continued to receive and positively engaged with support funded by the NDIS, were all matters that allowed the court to be satisfied that the respondent had met his onus.
The State made no submission that the court should not be satisfied, on the balance of probabilities that the respondent would substantially comply with the standard conditions of the order.[98] Weighing all of these matters in the balance, I was satisfied on the balance of probabilities as required by the HRSO Act.
[98] State’s submissions par 123; ts 49 (21 March 2024).
The conditions proposed were stringent and extensive. They were tailored so as to address the respondent's risk factors. They were drafted so as to enable those responsible for his supervision and management to detect at an early stage signs of the respondent disengaging from therapeutic counselling, or experiencing mood shifts that may lead him to offending. The conditions would also enable those responsible for his supervision and management to facilitate his integration into the community, and reduce the level of supervision if self‑regulation were established and maintained for an appropriate period.
Duration of the order
The supervision period needed to be long enough to allow the respondent's treatment needs to be addressed. Dr Bannister expressed the opinion that an order of at least five years would provide an opportunity to determine to what degree the respondent was able to successfully self‑manage his risk, without being of a length that may cause him to become discouraged.[99] While acknowledging the difficulty of expressing an opinion as to likely recidivism, Dr Bannister gave evidence to the effect that there is some research that suggests that the longer a person can be in the community without reoffending, then the risk of reoffending reduces.[100]
[99] Exhibit C, pages 873 - 874, par 116 (Dr B Bannister's psychological risk assessment 19 February 2024).
[100] ts 26 (21 March 2024).
It was Dr Hall's evidence that given the respondent's conditions, he considered that it would be very difficult for the respondent to achieve the level of capacity for self‑management that would be ideal before five years of working intensively with his therapist.[101]
[101] ts 35 (21 March 2024).
In light of all of the evidence, including the opinions expressed by two qualified experts, I was satisfied that it would take some considerable time for the respondent to achieve the level of capacity for self‑management that would reduce the risk posed by him. In these circumstances I considered the appropriate duration for the order to be five years.
Conclusion
For the reasons set out above, I was satisfied, by acceptable and cogent evidence and to a high degree of probability, that it was necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence. Having regard to all of the evidence and to my findings, I was satisfied that the respondent is a high risk serious offender under the HRSO Act. Further, I have determined that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of five years. Accordingly, I made a supervision order in the terms set out at sch A to these reasons, which had effect from the date of the order (and not 21 days thereafter, upon the suggestion of counsel for the State).[102]
[102] ts 49 (21 March 2024).
On the application of the State, the address of the respondent was suppressed and the order reproduced at sch A to these reasons was redacted so as to conceal the same.
As is noted above, Dr Hall's recommendation and comments regarding the respondent's psychiatric condition (including that his schizophrenia is 'undertreated') have been forwarded to consultant psychiatrist Dr Griffiths. In circumstances where the respondent's schizophrenia was said to, among other things, contribute to the impairment of the respondent's reasoning and contextual awareness, it is important that Dr Hall's recommendation be the subject of further consideration and, as appropriate, action.
Finally, I adopt Dr Bannister's recommendation that those responsible for the respondent's supervision and management ensure that they take into account the respondent's autism spectrum disorder and psychosis when making decisions about his compliance and behaviour on the supervision order. Directions will need to be given with clarity and precision.
Sch A – Supervision order conditions
STANDARD CONDITIONS REQUIRED BY THE HIGH RISK SERIOUS OFFENDERS ACT
Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, Western Australia within 48 hours of the order being issued and advise the officer of your 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 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 31 or 32);
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
Take up residence at [address redacted] 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;
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved address within normal business hours on the day of commencement of this order;
Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO;
Attendance at programs or treatment
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Justice;
To engage with mental health services and to obey the instructions of the treating psychiatrist with regard to treatment and medication;
To satisfy any therapeutic conditions and requirements of any National Disability Insurance Scheme (NDIS) provider that is providing you with any services and/or accommodation, as directed by the CCO;
Medications/Mental Health
Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the CCO or undergo medication treatment, including anti-depressant medication or anti-libidinal treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners;
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 medical treatment 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;
Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;
Reporting to WA Police
Report to the Officer-in-Charge of the Serious Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, PERTH WA 6000, or their delegate at a nominated Police station within 48 hours of your release from detention and thereafter report to and receive visits from Police at times and locations as directed by the Officer‑in‑Charge of SOMS or their delegate;
If requested, permit Police Officers to enter and search your residence and/or vehicle and/or search your person for the purpose of monitoring your compliance with your obligations under this order and allow seizure of any such items that the Police Officer believes to contravene the conditions of the order;
Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle;
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, and where appropriate, agree to the exchange of confidential information;
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 offending history;
Restrictions on contact with Victims
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
a.the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or
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 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
Provide the name, address, location and any details known by you, of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency;
Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
Report at your next contact with your CCO and Police any association or relationship by you with a person who has a child, or children under the age of 18 years in their care either full time or part time;
Not to form any domestic relationship with a person who has a child, or children under the age of 18 years in their care either full time or part time, without prior approval of a CCO;
Criminal conduct
Not commit any other criminal offence where:
a.the maximum penalty for which includes imprisonment; and
b.which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under s 202, s 203, s 204, s 557K of the Criminal Code 1913 (WA) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;
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 commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Prevention of high-risk situations
Maintain a daily diary of your movements, activities and associations, if and as directed by the CCO, and present this diary to the CCO and Police upon request;
Report at your next contact with your CCO, the new formation of any ongoing social association (of more than 2 contacts by any means), friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person;
When and as directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 2 contacts by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
Subject to Condition 37, not access the internet on any computer, telecommunication or other electronic device capable of internet access unless such access is supervised at all times by a person approved in advance by a CCO and/or for a purpose approved in advance by a CCO;
If he or she is satisfied, following assessment by your risk management team, that it is appropriate to do so and the risks can be properly managed, your CCO may permit you to possess one smartphone for unsupervised access of the internet. You are required to provide the IMEI Number, the SIM card number, the telephone number, any password or PIN required to gain access to such device, and the name of the network provider of that device to the officer in charge of the High Risk Serious Offender Team of the WA Police within 48 hours of obtaining that device;
Not to be in possession of any pornographic material, in either hard‑copy or digital form, or access or view pornography on the internet, unless approved by a CCO; Pornographic materials means printed or visual or any medium of material that contains the explicit description or display of sexual organs or activity; does not include chests, breasts or nipples or backsides with clothing covering the anus;
Not to access online social media (websites or applications) unless approved in advance by a CCO. Due to the progressive development of social media, you are to enquire with your CCO if a website or application is considered social media and this will be defined for you, therefore you will not inadvertently contravene this condition if you are enquiring with your CCO and access the public component of any website or application; you must however not progress to gain a login (temporarily or otherwise) unless you have explicit CCO approval to do so;
Not to enter any internet cafe or use any publicly available computer without prior approval of a CCO;
Not conduct computer searches for, nor collect or access, or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not; with the exception of images of yourself or immediate family that are not indecent images, if and only if approved in advance by a CCO. Possession of such images depicting a child or children on items such as on household items or items in your household that are not explicitly yours, may be authorised by a CCO. You are directed to review and remove any items that you have in your property within 48 hours of your release to this Order and then your compliance will be confirmed by your CCO and or WA Police;
Not access the internet for, nor collect or be in possession of any document, paper, or any other medium used for displaying words, either in the written or printed form, that describes sexual activity with a child and/or children;
Within 48 hours of the making of this order, advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device, alternatively within 48 hours of obtaining every such computer, telecommunication and/or electronic device;
Enable device locking or password access of your computer, telecommunication and/or electronic devices; Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device, or any online accounts, to any person other than a CCO or Police Officer;
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO;
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police;
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 screen name(s), user name(s), and email addresses; and
You must not assault, threaten, insult or use abusive language to a member of the departmental staff or an agent providing a service on behalf of the Department of Justice.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KO
Associate to the Judge
28 MARCH 2024
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