The State of Western Australia v James-Ind - [2019] WASC 176

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JAMES-IND [2019] WASC 176
CORAM:   MCGRATH J
HEARD:   30 APRIL 2019 & 1 MAY 2019
DELIVERED          :   13 MAY 2019
FILE NO/S:   DSO 5 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ROBERT ALAN JAMES-IND
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Division 2 orders - Whether a serious danger to the community - Whether a continuing detention order or supervision order should be made - Duration and conditions of supervision order - Substantial compliance with standard conditions - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7(1), s 17, s 18(1), s 18(2)
Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA), s 16
Evidence Act 1906 (WA), s 106A

Result:

Supervision order made

Category: B

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	Ms M R Barone SC & Mr D C Jones

Solicitors:

Applicant	:	The State of Western Australia
Respondent	:	Legal Aid Commission (WA)

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

Attorney‑General's Reference (No 1 of 2004) (Tas) [2005] TASSC 10; (2005) 152 A Crim R 146
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 Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
The State of Western Australia v Latimer [2006] WASC 235

MCGRATH J:

The State of Western Australia makes an application for an order in respect of Mr James‑Ind under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act).[1] The State contends that Mr James‑Ind is a serious danger to the community and that he should be detained in custody for an indefinite term for control, care or treatment, or alternatively, should he be released then he be subject to a supervision order under the Act.
[1] Application by the State of Western Australia dated 8 October 2018.
A previous application was made by the State of Western Australia under s 14 of the Act.[2] On 28 August and 30 August 2017 Jenkins J heard the Division 1 application and determined that there were reasonable grounds for believing that the court might, under s 7(1) of the Act, find that Mr James-Ind is a serious danger to the community. On 20 December 2017, Corboy J heard the application for the Division 2 order under the Act. After two full days of hearing, the State of Western Australia realised that the application was made prematurely due to the earliest release date of Mr James‑Ind being wrongly calculated. Therefore, the State discontinued the proceedings.
[2] Application by the State of Western Australia dated 10 August 2017.
On 10 October 2018, the State filed the present application. On 10 December 2018, Jenkins J heard the Division 1 application and determined that there were reasonable grounds for believing that the court might, under s 7(1) of the Act, find that Mr James‑Ind is a serious danger to the community. Her Honour also ordered that Mr James‑Ind be detained in custody until the conclusion of the application.
On 30 April and 1 May 2019, the application for the Division 2 order under the Act was heard before me. I have determined that Mr James‑Ind is a serious danger to the community. I have determined that Mr James‑Ind should be released into the community but made subject to a five-year supervision order with 45 conditions pursuant to s 17(1)(b) of the Act.
In these reasons, I will consider the following:
(1)The legal principles.
(2)The evidence received at the hearing.
(3)The factors under s 7 of the Act.
(4)Assessment and conclusion.

The legal principles

The applicant applies for an order under Division 2 of the Act. Section 17 of the Act provides:
17. Division 2 orders
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
(2)Subject to subsection (3), in deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
(3)A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.
(4) The onus of proof as the matter described in subsection (3) is on the offender.
The State may make an application under the Act where a person is under a sentence of imprisonment for a serious sexual offence. At the time this application was made Mr James‑Ind was serving a term of imprisonment for serious sexual offences.
Section 7(1) of the Act states that before the court can find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person is not subject to a continuing detention order or a supervision order, the person will commit a serious sexual offence. If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the Act, it necessarily follows that the person concerned is a serious danger to the community.[3]
[3] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66], [68] (Wheeler JA); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21] (Steytler P & Buss JA).
A serious sexual offence is defined by s 3 of the Act to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA). That means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is seven years' imprisonment or more. Mr James‑Ind has committed offences that come within this category. Mr James‑Ind has also committed a number of offences that are not characterised as serious sexual offences. Offences of other types may be relevant in assessing the risk of serious sexual offending being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious sexual offending.[4]
[4] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].
Section 7(2) of the Act provides that the State has the onus of satisfying the court that a person is a serious danger to the community. The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.[5] This does not necessarily mean that the risk must be at some high percentage of probability; a risk may be less than 50% yet still be unacceptable. However, the court must identify what it is that constitutes the risk and what makes it unacceptable and then consider whether or not those factors have been proved to the requisite standard, that being to a high degree of probability, furnished by acceptable and cogent evidence.[6]
[5] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).
[6] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [34] (Steytler P & Buss JA).
A finding that there is an unacceptable risk involves a balancing exercise requiring the court to have regard to, among other things, the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for Mr James‑Ind if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[7]
[7] Italiano v The State of Western Australia [2009] WASCA 116 [46].
An unacceptable risk in the context of s 7(1) of the Act is therefore a risk which is unacceptable having regard to a variety of considerations. These may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of finding that an unacceptable risk exists. I am required to consider whether, having regard to the likelihood of Mr James‑Ind offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding the fact that Mr James-Ind has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[8]
[8] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] (Wheeler JA).
Section 7(3) of the Act sets out a number of matters that the court must have regard to in considering whether a person is a serious danger to the community. Those matters are:
(3)In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record; and
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
I note that s 7(3)(j) of the Act provides that the list of matters to be considered by the court is not limited by those otherwise delineated in the subsection.
While s 7(3)(g) of the Act provides that the court must have regard to the offender's criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior criminal record would depend on the nature of the offences committed, the number of offences, and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.
If a court determines an offender is a serious danger to the community then the court is required to either make an indefinite detention order or a supervision order.[9]
[9] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [68]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [51] (Steytler P & Buss JA).
In considering and making a determination between those two alternatives the paramount consideration is the need to ensure the adequate protection of the community.[10]
[10] Dangerous Sexual Offenders Act 2006 (WA) s 17(2).
However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[11]
[11] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
Given the more onerous nature of a continuing detention order, the scheme of the Act requires that the court do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection to the community.[12]
[12] The State of Western Australia v Latimer [2006] WASC 235 [24]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [15].
Section 17(3) of the Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The onus of proof is on the respondent offender pursuant to s 17(4) of the Act.
Section 17 of the Act was amended by s 16 of the Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA). The amendments commenced on 29 March 2018. Previously, s 17(3) provided that 'a court hearing an application under s 8(4A) must not make an order under subsection (1)(a).' Section 17(3) of the Act was repealed and the present s 17(3) was enacted. Section 17(4) was also enacted by the amending Act.
The application was signed on 8 October 2018 and the Division 1 order was made on 10 December 2018. As I have observed, the amendments to s 17 of the Act commenced on 29 March 2018. Accordingly, s 17(3) and s 17(4) applied to this application.[13]
[13] See: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ); Attorney‑General's Reference (No 1 of 2004)(Tas) [2005] TASSC 10; (2005) 152 A Crim R 146.
The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.[14]
[14] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].
The term 'standard conditions', in relation to a supervision order, is defined by s 3 of the Act as meaning a condition under s 18(1) that must be included in the order. Section 18(1) of the Act provides seven conditions that must be included in any court ordered supervision order. Therefore, Mr James‑Ind must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order. The seven standard conditions set out in s 18(1) of the Act require that the person:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the person’s current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the person’s name, place of residence, or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order; and
(g)be subject to electronic monitoring under section 19A.
I now turn to the matters relevant to determining whether or not Mr James‑Ind is a serious danger to the community pursuant to s 7 of the Act. I will do so by considering the evidence in the context of the factors under s 7 of the Act.

The factors under s 7 of the Act

History of offending and antecedents - s 7(3)(c), s 7(3)(d) and s 7(3)(g)

In deciding whether a person is a serious danger to the community 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 serious danger to the community within the meaning of the Act (whether they be serious sexual offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.
The criminal record and antecedents are relevant in and of themselves, but are also relevant to whether the person has a propensity to commit serious sexual offences in the future.[15] The criminal record and antecedents are also relevant as to whether there is any pattern of offending behaviour.[16]

Antecedents

[15] Dangerous Sexual Offenders Act 2006 (WA) s 7(3)(c).

[16] Dangerous Sexual Offenders Act 2006 (WA) s 7(3)(d).

Mr James-Ind is 47 years of age having been born on 2 July 1971. He is the eldest of three children born to his parents. Mr James‑Ind reported that his childhood was marked by a father who was aggressive and violent and was frequently absent. His father committed suicide when Mr James‑Ind was 21 years of age.
Mr James‑Ind described his school experience as being marked by unhappiness due to prolonged bullying from both male and female students.[17] Mr James‑Ind has reported that as a child he was subject to an extended period of sexual abuse by an adult male in the local Boys' Brigade.[18]
[17] Exhibit 1, Report of Ms Hasson dated 6 March 2019, page 968.
[18] Exhibit 1, Statement of Respondent dated 7 March 2005, pages 884 ‑ 895.
After completing his secondary education at 15 years of age Mr James‑Ind was employed in various semi‑skilled and unskilled positions including labouring and delivery driving.
Mr James‑Ind has no relationship with his two brothers, being without contact for decades. However, he does maintain contact with his mother and step‑father, both of whom reside in another State.
At the age of 19 years Mr James‑Ind commenced his first serious relationship. At the age of 22 years he married another woman which lasted for 12 months. From that marriage Mr James‑Ind and his partner had one son. After the end of that relationship Mr James‑Ind had further relationships with other women. Regrettably, Mr James‑Ind has no relationship with his son who is now 23 years of age.[19]
[19] Exhibit 1, Report of Ms Hasson dated 6 March 2019, page 939.
Mr James‑Ind does not have any history of issues with illicit drugs or alcohol. Consequently, there is no contention by the State that illicit drugs or alcohol contributed to his offending.[20]

Relevant criminal history

[20] State's Submissions, page 22.

Mr James‑Ind's sexual offending involves offences committed against multiple female victims in both Victoria and Western Australia. The offending is summarised in a chronology of offending which was received in evidence.[21]
[21] Exhibit 1, Chronology, pages 7 ‑ 9.
Between 1988 and 2002, Mr James‑Ind's criminal record includes in excess of 20 convictions for indecently assaulting women, two convictions for rape and one conviction for attempted rape.[22] The most significant offending occurred in 2003 in Victoria against two adult females in separate incidents on the same date and in 2004 in Western Australia against one adult female. Prior to outlining the 2003 and 2004 offending I will outline the nature of the previous convictions between 1989 and 2003.
[22] Exhibit 1, Victorian and Western Australian Criminal Records, pages 1 ‑ 6.

Mr James‑Ind was first convicted of an offence of indecent assault in 1988 when he was 17 years of age.[23] As an adult he continued to offend. The earlier convictions, from 1989 to 2003 were characterised by him following adult females in and around shopping centres and then touching the victim on the vagina. On other occasions he would ride past an adult woman on a bike and touch the victim on the breast or buttocks. In 1990, Mr James‑Ind entered a neighbour's house, at night, and watched the adult female in bed asleep before touching her leg. He then fled.[24]
[23] Exhibit 1, Charge and Antecedent Form 0194616/88, pages 148 ‑ 149.
[24] Exhibit 1, Summary and Result of Charge, pages 167 ‑ 168.
In 1994, Mr James‑Ind was convicted of two counts of rape and one count of attempted rape. The offending involved Mr James‑Ind following a 19‑year‑old female to her vehicle mid‑afternoon. He grabbed her and digitally penetrated her vagina. Later that same date, Mr James‑Ind approached a 14‑year‑old female and after forcing her to the ground he attempted to digitally penetrate her vagina. For that offending, Mr James‑Ind was sentenced to 2 years 6 months' imprisonment.
In 1995, Mr James‑Ind was convicted in Victoria for 11 offences of indecent assault. The offences, for which the facts are known, involved the accused approaching women at random in the street and grabbing at the victim's vagina or breasts. For that offending, Mr James‑Ind received a 24 month term of imprisonment.[25]
[25] Exhibit 1, Victorian Criminal Record and Chronology of Offending, pages 2 - 9.
In 1998, Mr James‑Ind's offending escalated to include acts of burglary. In 1998, Mr James‑Ind entered the house of a 42‑year‑old female and stole her underwear from a bedroom.[26] Subsequently, he turned the gas and water off before returning, purporting to have been sent to repair the systems. He left upon the victim's mother returning.

Offences - Victoria offending

[26] Exhibit 1, Leap Offender Charge Summary, pages 348 ‑ 356.

In 2003, in Victoria, Mr James‑Ind was convicted of five counts, namely one count of indecent assault, one count of recklessly causing injury, two counts of sexual penetration and one count of attempted sexual penetration.[27] Mr James‑Ind approached a 47‑year‑old female who was walking along a street. Mr James‑Ind threatened the victim with a knife. He then indecently assaulted the victim by touching her breast, then digitally penetrated her vagina twice and attempted to penetrate her with his penis. He fled when a passer‑by approached.
[27] Exhibit 1, Indictment, pages 396 ‑ 397.
On 21 August 2003, the court sentenced Mr James‑Ind for that offending and also for a further unrelated count of robbery committed on a separate occasion. The court imposed a term of imprisonment of 12 years with a non‑parole period of 9 years' imprisonment.[28] The sentencing Judge observed that between 1991 and 1993 Mr James‑Ind had 19 prior convictions for indecent assault, one prior conviction for attempted rape and one prior conviction for robbery.[29]

Offences - WA offending

[28] Exhibit 1, Transcript of sentencing dated 21 August 2003, pages 484 ‑ 500.

[29] Exhibit 1, Transcript of sentencing dated 21 August 2003, page 487.

On 14 December 2001, whilst visiting Western Australia, Mr James‑Ind committed offences against two unrelated young women in separate incidents but on the same date.
The first victim, a 23‑year‑old female, was approached at 8.00 am by Mr James‑Ind outside a shopping centre. He grabbed the victim from behind and threatened her with a knife. Despite his hand partially covering her mouth the victim managed to scream and struggle. At that time Mr James‑Ind struck the victim across the face and used derogatory language. He fled due to the continued screaming and struggling by the victim. Mr James‑Ind pleaded guilty to one count of assaulting the victim with intent to facilitate the commission of the crime.[30]
[30] Exhibit 1, Transcript of proceedings dated 2 December 2004, page 550.
A short time later, at 9.00 am and at another location, Mr James‑Ind grabbed another adult female as she walked along the street. Mr James‑Ind held a knife in front of the victim's face threatening to 'cut her' if she screamed. Mr James‑Ind digitally penetrated the victim's vagina whilst making derogatory comments of a sexual nature. He then indecently assaulted the victim by touching her breasts and further digitally penetrated her vagina on two occasions. He further touched the victim’s breasts before putting his tongue and then penis in her mouth. He then sexually penetrated the victim by inserting his penis in her mouth.
Following the sexual assault, Mr James‑Ind robbed the victim, at which time he read the victim's identification cards. He then told the victim that she must not report the offence for three hours and that he now knew where she lived.
Mr James‑Ind was convicted upon pleading guilty to one count of aggravated indecent assault, one count of deprivation of liberty, one count of armed robbery and six counts of aggravated sexual penetration.[31]
[31] Exhibit 1, Transcript of proceedings dated 2 December 2004, pages 550 ‑ 552.
On 20 December 2004, the court imposed a term of 6 years' imprisonment. Therefore, the total effective sentence to be served, including the terms of imprisonment imposed in Victoria, was 18 years' imprisonment.[32]

Other offending

[32] Exhibit 1, Sentencing remarks, pages 568 ‑ 582.

Mr James‑Ind has a history of other offending in Victoria which comprises of convictions for property offences including theft, burglary and stealing a motor vehicle. He has also been convicted of breach and assault offences.[33]

Propensity to commit serious sexual offences in the future - s 7(3)(c)

[33] Exhibit 1, Victorian Criminal Record, pages 2 ‑ 6.

The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR Murray AJA stated that:[34]
[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.
[34] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178] (Murray AJA).
Mr James‑Ind has committed serious sexual offences against women. There are no other offences on Mr James‑Ind's criminal record that indicate any tendency toward sexual offending. Whilst the victims were of different ages, there are some similarities. The convictions permit the inference to be made that Mr James‑Ind has a tendency to commit serious sexual offences against women.

Whether or not there is any pattern of offending behaviour - s 7(3)(d)

Certainly, the convictions demonstrate a pattern of offending against women and not males. As I have observed, there does not appear to be any obvious pattern in respect of the age of the victims.
The offending ordinarily is characterised by Mr James‑Ind approaching adult women, not known to him, in public places and then either indecently assaulting or sexually penetrating the victim.

Efforts to address offending behaviour - s 7(3)(e) & s 7(3)(f); whether or not the participation in any rehabilitation program has had a positive effect

I must also consider if the respondent has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs. Further, whether or not the participation in any rehabilitation program has had a positive effect.
Mr James‑Ind's history of treatment interventions and programs is outlined by both Dr Wynn Owen[35] and Ms Hasson.[36] Mr James‑Ind has a history of participation in both individual and group‑based intervention treatment commencing at 17 years of age.[37]
[35] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, pages 942 ‑ 947.
[36] Exhibit 1, Report of Ms Hasson dated 6 March 2019, pages 977 ‑ 983.
[37] Exhibit 1, Report of Ms Hasson dated 6 March 2019, page 977.
In 1996, Mr James‑Ind completed a sex offender treatment program at the Wimmera Treatment Unit in Ararat Prison. At the conclusion of the treatment Mr James‑Ind was assessed as being engaged in the program but that he remained at high risk of reoffending until he addressed his own abuse issues.[38] Between 1998 and 2000, whilst incarcerated, Mr James‑Ind participated in a number of programs related to sexual offending. Following parole in 2000, Mr James‑Ind attended Forensicare for treatment by a psychologist for a period of 12 months.[39]
[38] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 944.
[39] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 944.
Since being incarcerated in Western Australia Mr James‑Ind has participated in the Intensive Sex Offender Treatment Program (ISOTP) and the Violent Offender Treatment Program (VOTP). The program facilitators in the ISOTP considered that Mr James‑Ind appeared committed to working hard with his treatment, that he accepted responsibility for his offending and that he did not engage in victim blaming or justification for his offending.[40] Mr James‑Ind expressed his concerns about his past escalating violence. The program facilitators stated that Mr James‑Ind was working through issues associated with his own abuse. Based on information provided by Mr James‑Ind the facilitators considered that his decisions to sexually reoffend were related to his mistrust of others, social isolation and the 'bottling up of emotions.'[41]
[40] Exhibit 1, Report of Ms Hasson dated 6 March 2019, page 979.
[41] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 945.
In respect of the VOTP, the program facilitators considered that at the completion of the treatment Mr James‑Ind had outstanding treatment needs concerning the level of sexual violence used in his offending.[42] The facilitators concluded that despite the progress made in the modules, Mr James‑Ind still had outstanding treatment needs.
[42] Exhibit 1, Report of Dr Bannister dated 28 February 2019, page 959.
Between May 2016 and March 2017, Mr James‑Ind participated in 12 counselling sessions with Anglicare as a provider of Royal Commission Support Services. A further five sessions were conducted with another counsellor between April and September 2017. It was reported that Mr James‑Ind had displayed improved capacity to identify and discuss his own abuse as a child.[43]
[43] Exhibit 1, Report of Ms Hasson dated 6 March 2019, page 980.
Between 1 February 2018 and 17 September 2018, Mr James‑Ind engaged in regular individual counselling with Ms Ballantyne, Senior Counselling Psychologist. A report was provided by Ms Ballantyne dated 17 September 2018.[44] The intervention included psychological counselling to address his early childhood experiences, attachment style and personality and traumatic events. Ms Ballantyne states that Mr James‑Ind indicated a willingness to engage with the individual intervention and did so.[45] Whilst Mr James‑Ind did express fluctuations in his motivation for successful re-integration to the community 'he consistently presented for and engaged well with each appointment for intervention.'[46] He completed all 'homework' tasks and followed up with additional information when necessary.
[44] Exhibit 1, Report of Ms Ballantyne dated 17 September 2018, pages 896 - 902.
[45] Exhibit 1, Report of Ms Ballantyne dated 17 September 2018, page 897.
[46] Exhibit 1, Report of Ms Ballantyne dated 17 September 2018, page 897.
Mr James‑Ind has, over many years, engaged positively with treatment interventions and programs. Whilst Mr James‑Ind's participation in treatment intervention has been positive he still has outstanding treatment needs. I will consider these issues now.

Psychiatric reports and extent to which Mr James-Ind cooperated with psychiatric examinations - s 7(3)(a)

Dr Wynn Owen

Dr Wynn Owen produced three reports, under s 37 of the Act, dated 4 December 2017[47], 6 March 2019[48] and 29 April 2019[49] respectively, and also gave oral testimony at the hearing of the application.[50] Further, Dr Wynn Owen in 2018 gave oral testimony at the hearing in respect of the discontinued application.[51] In my view, it is evident from the reports and the evidence of Dr Wynn Owen that Mr James‑Ind cooperated when he was examined.
[47] Exhibit 1, Report of Dr Wynn Owen dated 4 December 2017, pages 645 ‑ 677.
[48] Exhibit 1, Report of Dr Wynn Owen dated 3 March 2019, pages 927 ‑ 956.
[49] Exhibit 3, Addendum Report of Dr Wynn Owen dated 29 April 2019.
[50] ts 93 (30 April 2019).
[51] Exhibit 1, transcript of Dr Wynn Owen dated 20 December 2017, pages 704 ‑ 808.
Dr Wynn Owen used the diagnostic tool DSM‑V to determine the psychiatric diagnosis for Mr James‑Ind. The DSM‑V professional diagnostic tool is an internationally recognised diagnostic system of the American Psychiatric Association. The DSM‑V is a comprehensive and highly detailed classification system for psychiatric disorders based on clinical description rather than presumed causation.
Using the DSM‑V, Dr Wynn Owen stated that whilst Mr James‑Ind's described symptoms do not completely match DSM‑V operational criteria for PTSD he did diagnose that Mr James-Ind has PTSD as a consequence of his experience of childhood sexual abuse.[52] Further, although anxiety disorder may be a differential diagnosis, it is more likely that Mr James‑Ind's societal anxiety relates to personality factors rather than reflecting an anxiety disorder.[53]
[52] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 949.
[53] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 949.
Dr Wynn Owen stated that Mr James‑Ind does not currently suffer from a major depressive disorder but he does describe periods of depressed mood in the past which could be characterised as dysphoria or major depression.[54] Dr Wynn Owen stated that Mr James‑Ind demonstrated a number of traits which reflect an avoidant and antisocial personality style, feelings of inadequacy and having concerns about criticism or rejection in social situations.
[54] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 949.
Dr Wynn Owen used actuarial instruments and structured professional judgment tools to assess risk. Dr Wynn Owen used the STATIC‑99R, which is an actuarial tool designed to assess the long‑term potential for sexual recidivism amongst adult male sex offenders. The STATIC-99R score of Mr James‑Ind is the IVb or well above risk range. In routine samples with the same score, the five‑year sexual recidivism rate is between 30.5% and 40% (i.e. 35%). Accordingly, out of 100 sexual offenders with the same risk score as Mr James‑Ind, between 30 and 40 would be charged or convicted of a new sexual offence after 5 years in the community.[55]
[55] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 950.
Dr Wynn Owen also utilised the Hare Psychopathy Checklist‑Revised (PCL‑R), which assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The PCL‑R score is recognised as a useful indicator of likely future recidivism for general, violent and, to a lesser degree, sexual offending. The score obtained from this test can be an important component of other risk assessment tools including structured clinical guides. The Risk for Sexual Violence Protocol (RSVP) is such a guide and requires consideration of a comprehensive range of risk factors for sexual offending, with emphasis given to the manageability of the risk of future sexual violence.
Dr Wynn Owen determined that Mr James‑Ind does not have a psychopathic personality disorder, as his score on the PCL‑R does not meet the threshold for psychopathy. However, his PCL‑R facet and factor scores indicated shallow emotions, some social deviance and a lack of empathy and remorse.[56]
[56] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 952.
The assessment review utilising the RSVP identified a number of historical and dynamic factors that are known to increase the likelihood of future sexual offending including chronicity, diversity and escalation of sexual violence, attitudes that support or condone sexual violence, lack of self‑awareness, stress or coping, problems resulting from child abuse and problems with non-intimate relationships.[57] Dr Wynn Owen also identified problems with supervision which is evidenced by the offending whilst on parole and on a Community Based Order.[58]
[57] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, pages 950 ‑ 953.
[58] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 953.
Dr Wynn Owen stated that the likely risk scenario included an offence of sexual penetration with threats to harm and use of a weapon to a stranger female victim, with the risk of an increased level of violence that leads to serious injury or death of the victim.[59]
[59] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 953.
Dr Wynn Owen expressed the opinion that from the previous pattern of offending it is most likely that once a new offence occurs there will be a cluster of offences.[60]
[60] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 953.
Dr Wynn Owen expressed the opinion that Mr James‑Ind presents a high risk of future serious sexual offending if released without being subject to a detention order or a community supervision order.[61]
[61] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 955.
In his supplementary report dated 29 April 2019 Dr Wynn Owen stated:[62]
Mr James‑Ind demonstrated a good understanding of the supports available to him and, having been given additional information about the proposed accommodation, believes that he will be able to manage the transition out of prison. He realistically expects that he may become anxious at times and has a number of strategies, which seem appropriate, to deal with anxiety arising in this context and demonstrates an awareness of the possibility that a number of stressors may occur simultaneously. He also has a small but established support network in addition to the professional supports that would be made available to him. The effectiveness of these strategies and supports obviously cannot be tested and confirmed unless Mr James-Ind is in the community.
[62] Exhibit 3, Addendum report of Dr Wynn Owen dated 29 April 2019, page 5.
In his testimony Dr Wynn Owen stated that, in his opinion, the risk of future offending could be managed in the community pursuant to a supervision order under the Act.[63]
[63] ts 116 (30 April 2019).
In respect of future treatment, Dr Wynn Owen recommended that Mr James‑Ind continue counselling to improve his understanding of his offending and thereby, reduce the risk of re‑offending. Further, there should be ongoing management of his PTSD including non‑pharmacological treatments alongside medication.[64]
[64] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 955.
I found Dr Wynn Owen's evidence both cogent and reliable and therefore accept his evidence.

Psychological and other assessments – s 7(3)(b)

Ms Hasson, Forensic Psychologist, provided a report[65] and gave evidence at the hearing.[66]
[65] Exhibit 1, Report of Ms Hasson dated 6 March 2019, pages 965 - 992.
[66] ts 129 - 166 (30 April 2019).
Ms Hasson assessed the risk using a Structured Professional Judgment (SPJ) combining actuarial (STATIC-99R & PCL‑R) and non‑actuarial (RSVP) tools, in combination with a psychological assessment and formulation. Ms Hasson determined that the STATIC‑99R score was 9, placing him at risk level IVb (well above average) for being charged or convicted of another sexual offence. Ms Hasson stated that for offenders with a score of 9 the sexual recidivism rate at the five year mark is between 37.8% and 50.1%.[67]
[67] Exhibit 1, Report of Ms Hasson dated 6 March 2019, page 984.

Ms Hasson determined that Mr James‑Ind, whilst presenting with several psychopathic traits, did not meet the threshold for psychopathic personality disorder as assessed by the PCL‑R.[68] However, an examination of facet scores disclosed high scores on Facet 2 (Affective features) and Facet 4 (Antisocial features). These scores are consistent with previous assessments suggesting limited remorse and empathy, failure to accept responsibility, poor behavioural controls, impulsivity, juvenile delinquency and early behavioural problems.[69]
[68] Exhibit 1, Report of Ms Hasson dated 6 March 2019, pages 986 ‑ 987.
[69] Exhibit 1, Report of Ms Hasson dated 6 March 2019, page 988.
Ms Hasson expressed the opinion that Mr James‑Ind has a well above average risk of sexual offending if not subject to a continuing detention order or a supervision order.
Ms Hasson stated that a number of the risk factors have, to some extent, been moderated through participation in programs and individual counselling. However, of concern is Mr James‑Ind's belief that key areas relevant to risk such as his own victimisation, external locus of control, emotional regulation, anger management and self-esteem issues remain unaddressed.[70]
[70] Exhibit 1, Report of Ms Hasson dated 6 March 2019, page 992.
Ms Hasson assessed Mr James‑Ind's risk for sexual offending using the RSVP. The historical and dynamic risk factors present included chronicity and diversity of sexual violence, extreme minimisation or denial of sexual violence, attitudes that support or condone sexual violence, problems with self‑awareness, problems with stress or coping, problems resulting from child abuse, sexual deviance and problems with intimate and non‑intimate relationships.[71]
[71] Exhibit 1, Report of Ms Hasson dated 6 March 2019, pages 984 ‑ 986.
Ms Hasson stated that if a continuing detention order is made, it is recommended that a graduated release plan is developed to facilitate his return to the community with minimal impact on Mr James‑Ind's mental health in order to give him time to address any anxiety and fears.[72] Ms Hasson recommended that, should a supervision order be made, then there should be a focus on developing a detailed relapse prevention plan and addressing areas of outstanding treatment needs through individual counselling.
[72] Exhibit 1, Report of Ms Hasson dated 6 March 2019, page 992.
Ms Hasson stated that Mr James‑Ind 'has good insight into his issues and how he might manage high risk situations however his ability to translate insight into behaviour remains untested'.[73]
[73] Exhibit 1, Report of Ms Hasson dated 6 March 2019, pages 991 ‑ 992.
During her testimony, Ms Hasson stated that, in her opinion, the risk of re‑offending can be managed in the community with a supervision order under the Act.[74] I found that Ms Hasson's evidence was both cogent and reliable. I accept Ms Hasson's evidence.

Proposed DSO Management Plan – Dr Bannister

[74] ts 159 (30 April 2019).

Dr Bannister, Forensic Psychologist, provided a DSO Management Plan dated 28 February 2019.[75] Dr Bannister used the STABLE‑2007 to identify outstanding treatment targets that warrant either further intervention or the development of risk management strategies.[76] The areas identified under the STABLE‑2007 as potential treatment targets were significant social influences, intimacy deficits, general self-regulation, sexual self-regulation and co‑operation with supervision.[77]
[75] Exhibit 1, Report of Dr Bannister dated 28 February 2019, pages 957 ‑ 964.
[76] Exhibit 1, Report of Dr Bannister dated 28 February 2019, pages 960 ‑ 963.
[77] Exhibit 1, Report of Dr Bannister dated 28 February 2019, pages 961 ‑ 963.
Dr Bannister stated that Mr James‑Ind has a number of outstanding treatment needs and, specifically, may need encouragement to build pro‑social support networks.[78]
[78] Exhibit 1, Report of Dr Bannister dated 28 February 2019, pages 963 ‑ 964.
Dr Bannister stated that Mr James‑Ind appears to have responded well to his most recent period of treatment with his psychologist, Ms Ballantyne. Further, that Mr James‑Ind is considered a sound candidate for individual treatment given that he is motivated and psychologically minded.[79] If a supervision order was made, it is recommended that a re‑socialisation program be implemented to assist the transition to the community.[80] In addition, he will require treatment relating to stress management and developing pro‑social coping strategies and improving his assertiveness and problem solving.[81]

The risk that a serious sexual offence will be committed if a continuing detention or supervision order is not made - s 7(3)(h)

[79] Exhibit 1, Report of Dr Bannister dated 28 February 2019, page 964.

[80] Exhibit 1, Report of Dr Bannister dated 28 February 2019, page 964.

[81] Exhibit 1, Report of Dr Bannister dated 28 February 2019, pages 963 ‑ 964.

The psychiatric and psychological evidence supports the finding that Mr James‑Ind is at a high risk of committing further serious sexual offences. This assessment of risk takes into account his ongoing treatment needs. Mr James‑Ind has undertaken a number of treatment programs. However, it is clear that there is the risk that a serious sexual offence may be committed if a continuing detention or supervision order is not made.

The need to protect members of the community from that risk - s 7(3)(i)

Both Dr Wynn Owen and Ms Hasson stated that in the event that Mr James‑Ind reoffended in the future it would involve a violent sexual assault upon a female.[82] Dr Wynn Owen stated that the imminence of any offending will be related to coping with release, stressors in the community, the degree of any resentment and dynamic factors such as symptoms of depression or anxiety.[83]
[82] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, page 953; Report of Ms Hasson dated 6 March 2019, pages 989 ‑ 990.
[83] Exhibit 1, Report of Dr Wynn Owen, page 953.
There is a need to protect the community from this risk.

Any other relevant matter ‑ s 7(3)(j) ‑ Community Supervision Assessment

Mr Jarvie, Senior Community Corrections Officer with the Community Offender Monitoring Unit of the Department of Corrective Services, provided a Community Supervision Assessment Report dated 20 March 2019[84] and gave oral evidence at the hearing.[85] The matters addressed included whether Mr James‑Ind has a community support network, accommodation and employment prospects.
[84] Exhibit 1, Community Supervision Assessment Report dated 20 March 2019, pages 993 ‑ 1004; Exhibit 4, Updated Community Supervision Assessment Report dated 23 April 2019.
[85] ts 167 ‑ 186 (30 April 2019).
The proposed accommodation is accepted by the State as being satisfactory. I agree that the proposed accommodation is suitable.
In respect of community support, the Karnet Prison chaplain has indicated that she would be able to provide some support in the community. Mr James‑Ind will be arranging for his parents to visit from interstate should he be released.
In respect of the strategies to manage the behaviour of Mr James‑Ind, a supervision order with conditions was outlined by Mr Jarvie. The draft supervision order, which comprises 45 conditions, is produced as Annexure One. The conditions include assessing and monitoring Mr James‑Ind's mental health and requiring compulsory treatment from practitioners. Further, if released on a supervision order Mr James‑Ind must be subject to GPS monitoring and must identify to the Community Corrections Officer (CCO) any new friendships and relationships to ensure that appropriate inquiries about the persons may occur. In addition, conditions will prevent Mr James‑Ind from entering into vehicles with females or attending residential addresses where females reside unless approved by the CCO.

Assessment and conclusion

Serious danger to the community

I am satisfied to a high degree of probability that there is an unacceptable risk that if Mr James‑Ind was not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. I am satisfied that, without continuing detention or a supervision order there is a significant likelihood that Mr James‑Ind will offend in the manner that he has in the past. Both Dr Wynn Owen and Ms Hasson gave cogent and reliable evidence that supports this finding.
Therefore, I find that Mr James‑Ind is a serious danger to the community, within the meaning of the Act.

Continuing detention order or supervision order

I must now decide whether Mr James‑Ind should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order.
In determining that question, s 17(2) of the Act requires me to apply, as the paramount consideration, the need to ensure adequate protection of the community.
In addition, pursuant to s 17(3) of the Act, I cannot make a supervision order unless I am satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the order.
In considering whether a supervision order will adequately protect the community it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of Mr James‑Ind and his care and treatment.[86]
[86] Dangerous Sexual Offenders Act2006 (WA) s 18(2).
The court must choose the order that is least invasive of Mr James‑Ind's liberty while ensuring an adequate degree of protection. Further, I must also be satisfied on the balance of probabilities that Mr James‑Ind will substantially comply with the standard conditions of the order under s 18(1) of the Act. The onus is on Mr James‑Ind to satisfy the court that he will so comply.
The evidence of both Dr Wynn Owen and Ms Hasson supports the conclusion that Mr James‑Ind's risk of re‑offending may be managed in the community with appropriate supervision and treatment. Dr Wynn Owen stated that, in his opinion, with appropriate conditions the risk may be managed in the community. Ms Hasson agreed that the risk may be managed in the community.
I consider that this is a case where the protection of the community may be properly managed and satisfactorily advanced by a supervision order rather that a continuing detention order. Further, I am satisfied on the balance of probabilities that Mr James‑Ind will substantially comply with the standard conditions of a supervision order as defined under s 18(1) of the Act.
In my view, there are conditions that may be imposed under a supervision order that will manage the risk Mr James‑Ind currently presents, or reduce the risk to an acceptable level. The conditions that are to be imposed are attached as Annexure One. They are extensive and serve to manage or reduce the risk in the community.
The State submitted that the risk could only be managed by continuing detention. I will consider the main concerns of the State. The main concern raised by the State was the doubts expressed by Mr James‑Ind concerning his readiness to be released into the community and that, therefore, he is unable to discharge the onus of proof to satisfy the court that he will substantially comply with a supervision order.
The State’s concern arises from Mr James‑Ind's meetings with Dr Wynn Owen, Ms Hasson and Mr Jarvie. Both Dr Wynn Owen[87] and Ms Hasson[88] stated that Mr James‑Ind expressed his preference for a staged release from incarceration. Mr Jarvie, in his first report, stated that Mr James‑Ind had expressed his preference for staged released due to his anxiety and that he may become overwhelmed in a community setting.[89]
[87] Exhibit 1, Report of Dr Wynn Owen dated 6 March 2019, pages 947 ‑ 948.
[88] Exhibit 1, Report of Ms Hasson dated 6 March 2019, page 991.
[89] Exhibit 1, Community Supervision Assessment report of Mr Jarvie dated 20 March 2019, page 996.
Prior to the hearing both experts and Mr Jarvie had further meetings with Mr James‑Ind to discuss the accommodation and to seek clarification, in light of the accommodation becoming available, as to whether he maintains his preference for a staged release.
Both experts received clarification from Mr James‑Ind regarding that preference and outlined their assessment in their respective reports. Dr Wynn Owen stated that Mr James‑Ind clarified that his previous statement regarding a staged release was made when he believed accommodation would not be available. Dr Wynn Owen concluded that the self‑reporting by Mr James‑Ind in respect of managing his anxiety and utilising a staged release did not affect his finding that the risk could be managed in the community with a supervision order.[90] Dr Wynn Owen accepted the veracity of Mr James‑Ind's self‑reporting.
[90] ts 118 ‑ 119 (30 April 2019).
Ms Hasson gave evidence that the statements by Mr James‑Ind concerning his preference for staged release highlighted the need to ensure that 'everybody is on the same page' and that communications are clear concerning his treatment and preferences.[91] Ms Hasson gave evidence that the fact that Mr James‑Ind had previously expressed a preference for staged release did not undermine or cause her to change her finding that the risk could be managed in the community.[92]
[91] ts 152 (30 April 2019).
[92] ts 152 (30 April 2019).
The State also raised concerns that Mr James‑Ind stated to the experts and Mr Jarvie that he considered that the initial reports did not accurately record what he was saying concerning staged release, or that the State had 'twisted his words'. Underlying the State's concern is the suggested inference that Mr James‑Ind is being deceptive. As I have observed, Dr Wynn Owen stated that he did not doubt the veracity of Mr James‑Ind's self‑reporting. Mr James‑Ind's contradictory reports concerning a preference for a staged release was put to Ms Hasson. Ms Hasson was asked the question 'so the lesson to be taken from it is about how to best communicate with Mr James‑Ind. Correct?' to which Ms Hasson replied 'Yes'.[93] I accept that evidence.
[93] ts 152 (30 April 2019).
The State submits that Mr James‑Ind should be detained for the reason that the risk presented by Mr James‑Ind cannot be adequately managed by the conditions of a supervision order.
The State submits that I cannot be satisfied on the balance of probabilities that Mr James‑Ind will not commit a sexual offence, within the meaning of s 36A of the Evidence Act. That definition is broader than the definition of a 'serious sexual offence' in the Act. It includes any offence against Chapter XXXI of the Criminal Code, including indecent assault.
I am satisfied that the risk of Mr James‑Ind re‑offending can be managed in the community by the imposition of a supervision order.
In respect of the terms of the supervision order, Mr James‑Ind contended that a number of the conditions were not necessary. Mr James‑Ind submitted that proposed condition 39 which provides that he is not to enter any residential address in which a female resides or is known to reside unless authorised in advance by a CCO is unnecessarily restrictive. I disagree. The condition allows permission to be obtained from a CCO which is most reasonable. Mr James‑Ind contended that proposed conditions 18, 19 and 20 which permit a CCO or WA police officer to examine his electronic devices is unnecessarily restrictive. I disagree. Personal electronic devices are a primary means of communication and are used to maintain relationships with persons. The conditions permit the authorities to check, if necessary, that Mr James‑Ind is accurately self‑reporting regarding the matters specified in the supervision order.
Mr James‑Ind contends that the proposed condition 35 is overly onerous in that it could be applied to require him to provide each and every one of his proposed movements to the CCO for approval. Proposed condition 35 is in the following terms:
Provide a verbal or written account of your projected movements to your CCO and obtain prior approval of your projected movements, as and when directed by your CCO, with the exception of the following circumstances:
(a)to obtain urgent medical or dental treatment for yourself;
(b)for the purpose of averting or minimising a serious risk of death or injury to the respondent or another person;
(c)to obey an order issued under a written law (such as a summons) requiring the your presence elsewhere; or
(d)at the direction of a CCO or Police Officer.
The purpose of that condition and the manner in which it would be enforced was explained by Mr Jarvie during his testimony. Mr Jarvie stated that the purpose was to direct a general discussion regarding Mr James‑Ind's plans and that 'a step by step' report was not required. Rather, the condition is proposed as a means to ensure that Mr James‑Ind's time has structure to avoid heightened anxiety.[94] However, that is not what the condition states. The proposed condition 35 gives the CCO total control of the entire movements of Mr James‑Ind without any restriction in respect to the power.
[94] ts 176 (30 April 2019).
Pursuant to s 18 (2) of the Act, the court may impose any term that is appropriate to ensure the adequate protection of the community, or for the rehabilitation or care or treatment of the person, or to ensure adequate protection of any victims. Proposed condition 35 is not appropriate nor necessary.
Mr James‑Ind will be subject to limitations on his movements and relationships in the community under various specific conditions of the supervision order. Further, pursuant to proposed condition 4, Mr James‑Ind must comply with any reasonable direction of the CCO. That condition gives the CCO the authority to make any direction necessary but so long as that direction is reasonable. Proposed condition 35 does not include any requirement of reasonableness.
Therefore, proposed condition 35 will be amended by deleting the requirement that approval from the CCO must be given in respect to all the planned movements of Mr James‑Ind. However, Mr James‑Ind will be required, by the terms of the amended proposed condition 35 to provide to the CCO a verbal written outline of his planned movements when required to do so by his CCO. If the CCO forms the view that the planned movement is not appropriate then the CCO may give a direction pursuant to condition 4. The exercise of that power must, though, be reasonable.

Conclusion

For the above reasons, I have determined that Mr James‑Ind is a serious danger to the community within the meaning of the Act. Further, I have determined that the risk of re-offending may be adequately managed in the community with the imposition of a supervision order for a period of 5 years. The terms of the supervision order are stated in Annexure One.

ANNEXURE ONE
SUPERVISION ORDER MADE BY THE HONOURABLE JUSTICE MCGRATH ON 13 MAY 2019
The Court, having found pursuant to section 7 and section 17 of the Dangerous Sexual Offenders Act 2006 that the Respondent is a serious danger to the community, orders that the Respondent be the subject of a supervision order pursuant to section 17(1)(b) of the Dangerous Sexual Offenders Act 2006, for a period of 5 years from 4 June 2019, being a date not earlier than 22 days from the date this order is made, on the following conditions:

You, ROBERT ALAN JAMES-IND, must:

STANDARD CONDITIONS REQUIRED BY THE ACT

Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of your current name and address.
Report to, and receive visits from, a CCO as directed by the court.

Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.

Be under the supervision of a CCO, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).

Not leave, or stay out of the State of Western Australia without the permission of a CCO.

Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.
Be subject to electronic monitoring under section 19A.

ADDITIONAL CONDITIONS

Residence

Take up residence at [redacted address] and spend each night at that address or at a different address only if such different address is approved in advance by a 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 release from custody under this order.
Report to and receive visits from a CCO at times and at places as directed by the CCO, and comply with the lawful orders and directions of a CCO.

Not commence or change employment, volunteer work, education or training without the prior approval of the CCO.

Attendance at programs or treatment

Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO.

Reporting to WA Police

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

If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such material 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 under the provisions of this order.
Upon request, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you, and all internet user names or identities used by you.
Upon request, permit a CCO or WA Police to access any computer or electronic storage device, at any location nominated by the CCO or WA Police, for the purpose of ascertaining your computer activities.
Permit a CCO or WA Police to access any computer, telephone, or device capable of storing digital data, for the purpose of ascertaining your computer related activities, and provide the CCO or police any passwords, or any other means used to unlock or access the device.
Not provide passwords used to access any device referred to in condition 19 or any online accounts to any person other than a CCO or Police Officer and not allow any person other than a CCO or Police Officer to access any device referred to in condition 19.
With respect to any computer or telephone in your possession that is connected to the internet or has been used by you to access the internet, not delete or otherwise remove or disguise any search histories or logs capable of identifying your activities on that computer, without the approval in advance of a CCO or Police Officer.

Disclosure/Exchange of Information

Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.

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

Restrictions on contact with Victims

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

Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.

Criminal conduct

Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A.
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.

Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218,
s 219, s 220 or s 557K of the Criminal Code1913 (WA).

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

Curfew

Be subject to a curfew, pursuant to section 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.

When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.

When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.

Medications/Mental Health

To engage with mental health services for and to obey the instructions of the treating psychiatrist with regard to treatment and medication.

Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Justice.

Prevention of high-risk situations

Provide a verbal or written account of your projected movements to your CCO, as and when directed by your CCO, with the exception of the following circumstances:
a.   to obtain urgent medical or dental treatment for yourself;
b.  for the purpose of averting or minimising a serious risk of death or injury to the respondent or another person;
c.   to obey an order issued under a written law (such as a summons) requiring the your presence elsewhere; or
d.  at the direction of a CCO or Police Officer.
Maintain a daily diary of your movements, activities and associations as directed by the CCO, and present this diary to the CCO or any Police Officer upon request.
Not allow any female to enter or ride in or on any vehicle under your control unless the identity of such person is approved in advance by the CCO.
With the exception of public transport, not enter in or on any vehicle where a female is present, unless the identity of such person is approved in advance by a CCO.
Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO.
Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO.
Report any unsolicited interaction with females at your residential address to the CCO and the Sex Offender Management Squad at your next scheduled appointment.
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 enter the premises of, or access the services of, escort agencies or sex workers, unless pre-approved by your CCO.
Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

________________________________

THE HON JUSTICE McGRATH

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

Signed by the Respondent _____________________________

Robert Alan James-Ind

In the presence of: ______________________________
Name and address: _______________________________

_______________________________

Date: _____________________________

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DH
Research Associate/Orderly to the Honourable Justice McGrath
22 MAY 2019