The State of Western Australia v JBP
[2024] WASC 366
•17 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JBP [2024] WASC 366
CORAM: FIANNACA J
HEARD: 30 APRIL 2024
DELIVERED : 10 OCTOBER 2024
PUBLISHED : 17 OCTOBER 2024
FILE NO/S: [REDACTED]
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JBP
Respondent
Catchwords:
Criminal Law - High risk serious offender - Application for restriction order - Whether the respondent is a high risk serious offender - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make restriction order to ensure adequate protection of community - Whether community can be adequately protected by imposition of supervision order - Whether the respondent will substantially comply with standard conditions of a supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision Order made
Representation:
Counsel:
| Applicant | : | Ms T Hollaway |
| Respondent | : | Ms A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid WA |
Cases referred to in decision:
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Griffiths [2015] WASC 393
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Garlett v Western Australia [2022] HCA 30; (2022) 298 A Crim R 510; (2022) 96 ALJR 888; (2022) 404 ALR 182
The State of Western Australia v [JBP] [redacted]
The State of Western Australia v ACJ [2021] WASC 219
The State of Western Australia v CF [2021] WASC 20
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Corbett [No 8] [2021] WASC 171
The State of Western Australia v Dragon [No 2] [2022] WASC 189
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v PAS [No 3] [2021] WASC 117
The State of Western Australia v Quartermaine [No 2] [2021] WASC 267
The State of Western Australia v Slater [No 3] [2023] WASC 22
The State of Western Australia v ZSJ [2020] WASC 330
Table of Contents
The application and its history
Statutory framework and legal principles
The issues in this application
Evidence
Consideration of the matters under s 7(3) of the Act
The respondent's general antecedents
Family background and developmental history
Education and employment
Substance abuse
Sexual development
Relationships
Medical history
The respondent's criminal history
2005 to 2006 - indecently dealing with a child in circumstances of aggravation (count 2)
2007 - indecently dealing with a child and indecently recording a child in circumstances of aggravation (counts 6 - 10)
2007 - attempting to indecently record a child (count 5)
2010 - aggravated home burglary and indecent assault (counts 11 - 13)
2010 - indecently recording a child (count 14)
2011 - aggravated burglary, deprivation of liberty, indecent assault, aggravated sexual penetration without consent and sexual penetration without consent (counts 15 - 19)
Impact on victims
Reports prepared for the respondent's sentencing in 2012
Rehabilitation programmes and efforts to address causes of offending
2001 - Community based sex offender treatment program
2015 - Pathways programme
2016 - Think First Program
2017 - Intensive sex offender treatment program
Other reports
Propensity and pattern of offending
Respondent's behaviour in prison
Psychiatric and psychological evidence in respect of risk
Dr Wojnarowska
Interview with the respondent
Diagnosis
Risk assessment
Static-99R
PCL-R
RSVP
Opinion based on the risk assessment
Risk scenarios
Treatment
Dr Wojnarowska's conclusions
Dr George
Interview with the respondent
Dr George's analysis of the respondent's offending
Dr George's analysis of the respondent's treatment gains and release plans
Risk assessment
Static-99R
VRS-SO
Overall risk assessment
Risk scenario
Dr George's conclusions and recommendations
Treatment options
Community Supervision Assessment report
Proposed accommodation
CCTV cameras
Proposed supervision order
Findings
Is the respondent a high risk serious offender?
Continuing detention order or supervision order
Duration of order
Commencement date
Conclusion
Annexure
FIANNACA J:
The application and its history
This is an application by the State of Western Australia (the applicant), under s 36 of the High Risk Serious Offenders Act 2020 (WA) (the Act), for a restriction order in relation to the respondent, who, at the time of the application, was a serious offender under custodial sentence, as defined in the Act.[1] He was serving, and approaching the end of, a sentence of imprisonment of 11 years' and 9 months' that was imposed on 13 November 2012 in relation to 16 offences, 11 of which were serious offences within the meaning of the Act. In essence, over a period of six years from 2005 to 2011, the respondent committed sexual offences against female children ranging in ages from seven years to 17 years, and against an adult female who was 37 years of age. As Quinlan CJ noted in his decision on the preliminary hearing in respect of this matter:[2]
The pattern of [the respondent's] offending is instructive, as indeed is an earlier series of offences dating from 2001. [The respondent's] pattern of offending over time suggests an escalation of offending, commencing with behaviour that was once euphemistically described as that of a 'Peeping Tom', to indecent offences against unwitting victims (usually children that he knew), ultimately escalating to degrading and violent offending against strangers in their homes.
[1] The Act, s 3, which defines 'serious offender under custodial sentence' to mean, inter alia, 'a person … who is under a custodial sentence for a serious offence', which is defined in s 5 and, by reference to sch 1 of the Act, includes the offences of which the respondent was convicted that are identified as such later in these reasons.
[2] The State of Western Australia v [JBP] [redacted] (JBP) [20].
Against that background, and having regard to other matters outlined below, the applicant brought the application on the basis that the court can be satisfied that the respondent is a high risk serious offender, as defined in s 7 of the Act, in that there is an unacceptable risk that he will commit a serious offence, and that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against that risk. Such an application may be brought in respect of a serious offender who is under custodial sentence, who is not a serious offender under restriction under the Act, and at a time when there is a possibility that the offender may be released from custody within one year after the application is made.[3] The application satisfied those criteria.
[3] The Act, s 35(1) and (3).
The Act provides that the court hearing such an application must make a restriction order if it finds that the respondent is a high risk serious offender.[4] There are two forms of restriction order. The first is a continuing detention order (CDO), being an order that the respondent be detained in custody for an indefinite term for control, care or treatment.[5]The second is a supervision order, being an order that the respondent be subject to conditions when not in custody.[6] The application must specify which form of restriction order is sought,[7] although that does not preclude the applicant from specifying the form of order in the alternative. The application in this case, dated 25 August 2023, did not specify the restriction order sought, either individually or in the alternative. The respondent's position at the hearing was that, if suitable accommodation was available to the respondent in the community, then the appropriate restriction order would be a supervision order. However, the applicant was not able to concede that the accommodation proposed by the respondent was suitable. Therefore, the application may be properly regarded as being for a CDO or a supervision order in the alternative.
[4] The Act, s 48.
[5] The Act, s 3 and s 26(1).
[6] The Act, s 3 and s 27(1).
[7] The Act, s 36(2).
At a preliminary hearing of the application on 29 September 2023, under s 46 of the Act, Quinlan CJ was satisfied that there were reasonable grounds for believing that the court might, in accordance with s 7, find that the offender is a high risk serious offender. Therefore, his Honour made orders in accordance with s 46(2), which included fixing 30 April 2024 as the date for the hearing of the application, and requiring the respondent to undergo examination by a psychiatrist and a qualified psychologist for the purpose of those experts preparing reports in accordance with s 74 of the Act to be used on the hearing of the application.[8]
[8] JBP [4].
The applicant had also sought an order under s 46(2)(c)(i) of the Act that the respondent be detained in custody until the conclusion of the hearing and judgment on the application (an interim detention order), or alternatively an order under s 58(2)(a) and s 58(5) of the Act that, with effect from the date of such order, the respondent be released subject to conditions in s 30(2) of the Act and such other conditions as the court considered appropriate (an interim supervision order). At the preliminary hearing, the applicant submitted that an interim detention order was necessary at that stage because the respondent did not have suitable accommodation available in the community, but acknowledged that it would be open to make an interim supervision order if suitable accommodation was available.[9] Quinlan CJ determined that he should adjourn the preliminary hearing to 23 October 2023 for further evidence to be obtained in respect of the availability of accommodation, and that he should make an order that the respondent be detained in custody until that date. His Honour said:[10]
Consistent with the submissions of both counsel, my provisional view is that, in the absence of evidence that [the respondent] will be able to reside in accommodation that provides sufficient protection to the community, an interim supervision order would not be appropriate as it would not provide adequate protection to the community. Again, on a provisional basis, the evidence supports the conclusion that [the respondent] may well be a significant risk to the community, particularly if he is confronted with stressful situations that lead him both to substance abuse and to acting on his sexual predilections. Unstable and unsuitable accommodation could well give rise to such a stressful situation.
It is however a significant matter to deprive a person of their liberty beyond their sentence and in circumstances in which a restriction order application has not been determined. It is very much in the interests of the community, in the long term, if [the respondent] is able to be released on supervision with appropriate controls, supervision and accommodation.
For these reasons I adjourned the preliminary hearing to 26 October 2023 and made an order that [the respondent] be detained in custody until that date pursuant to s 46(2)(c)(i) of the Act. He will still, of course, be a sentenced prisoner until that time. Nevertheless, limiting the interim detention order to that date will enable [the respondent] and the relevant authorities to investigate whether suitable alternative accommodation arrangements can be made for his release into the community after his sentence is completed.
[9] JBP [57].
[10] JBP [58] - [60].
However, the hearing listed for 26 October 2023 was vacated on 20 October 2023 upon application of the parties by consent because more time was required to find suitable accommodation, and subsequent re‑listings of the preliminary hearing were also vacated by consent for the same reason. The order that the respondent be detained in custody was extended on each occasion until 11 December 2023, when an interim detention order was made until judgment on the application to be heard on 30 April 2024.
Prior to the hearing of the application, the applicant filed written submissions in which it submitted that the court should make a CDO in respect of the respondent. That submission was made on the basis that the proposed accommodation was not suitable to ensure adequate protection of the community if the respondent were released on a supervision order. However, the applicant also filed a proposed supervision order in the event that the court finds the respondent to be a high risk serious offender, but concludes that the community can be adequately protected if he is subject to a supervision order while residing at the proposed accommodation. The applicant indicated in the written submissions that it would not oppose the making of a supervision order if alternative, suitable, accommodation is found for the respondent.
The hearing of the application proceeded before me on 30 April 2024. It was conceded on behalf of the respondent that the court could be satisfied to the requisite standard that he is a high risk serious offender. It was submitted on his behalf that, having regard to the evidence at the hearing, a supervision order is the appropriate restriction order, and that the respondent should be released to accommodation proposed by him. As I noted above, the applicant agreed that a supervision order would be appropriate if the court is satisfied that the proposed accommodation is suitable, but it was not able to concede that the accommodation is suitable.
At the conclusion of the hearing, I reserved my decision. I made an order that the parties file an amended proposed supervision order to deal with a matter that arose during the hearing. For reasons I will give below, I also made an order prohibiting the publication to any person not involved in these proceedings in an official way of the name, address, image or any other particular which would enable the identification of the respondent, until further order.
Statutory framework and legal principles
The application is to be dealt with under s 48 of the Act, which reads:
(1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must —
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(2)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.
Section 7 of the Act provides:
(1)An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
(2)The State has the onus of satisfying the court as required by subsection (1).
Proceedings under the Act are taken to be criminal proceedings for all purposes. However, this does not require that anything be proved to a higher standard than is required by s 7(1) of the Act.[11]
[11] The Act, s 82.
'Serious offence' is defined in s 5 of the Act. Relevantly, for present purposes, by s 5(1), an offence is a 'serious offence' if it is specified in sch 1 div 1 of the Act. It is sufficient to note that deprivation of liberty, sexual penetration without consent and indecently recording a child are serious offences as defined by the Act.
In The State of Western Australia v ZSJ,[12] I concluded that the concepts and criteria with which the court is concerned in determining an application under the Act are substantially the same as they were under the Dangerous Sexual Offenders Act 2006 (repealed) (DSO Act), which the Act replaced. I did so, having regard to the relationship the provisions of the Act bear to the provisions of the DSO Act. I was of the view, therefore, that the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the Act, with appropriate adaptation in cases involving non-sexual offences.[13] That approach has been applied generally in cases under the Act.
[12] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ) [30] - [63].
[13] ZSJ [30] - [63].
However, the wording of s 7 of the Act differs from s 7 of the DSO Act, which provided that 'the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence'. In The State of Western Australia v Garlett,[14] at [135], Corboy J identified an arguable interpretation of s 7 of the Act that differs from s 7 of the DSO Act, and which, in effect, involves two evaluative steps: (1) an evaluation of whether there is an unacceptable risk that the respondent will commit a serious offence; and (2) if so, an evaluation of whether it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against that unacceptable risk.[15] As has been indicated in some decisions since then, the second evaluative step appears to have been regarded as part of the evaluation of unacceptable risk under s 7 of the DSO Act, when read with s 17 of the DSO Act, as interpreted in cases such as Director of Public Prosecutions (WA) v Williams[16] (Williams), in which Wheeler JA said in respect of s 7 of the DSO Act that:[17]
… the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. (emphasis added)
[14] The State of Western Australia v Garlett [2021] WASC 387.
[15] The State of Western Australia v Garlett [135] (Corboy J); Garlett v Western Australia [2022] HCA 30; (2022) 298 A Crim R 510; (2022) 96 ALJR 888; (2022) 404 ALR 182 [73] (Kiefel CJ, Keane & Steward JJ), [220], [225] - [228] (Edelman J); The State of Western Australia v D'Rozario[No 3] [2021] WASC 412 (D'Rozario [No 3]) [21] (Quinlan CJ).
[16] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297.
[17] Williams [66].
However, the two-step evaluation referred to by Corboy J allows for the possibility that, although there exists an unacceptable risk that the offender would commit a serious offence, the court might find that it is not necessary to make a restriction order to adequately protect the community.[18] As Quinlan CJ pointed out in D'Rozario[No 3], while such a situation would be rare, an example might be where the court was of the view that, in the particular circumstances, a post-sentence supervision order or some other external constraint 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').[19] The two-step evaluative process has been adopted in this court since Corboy J's decision in The State of Western Australia v Garlett, and, in my opinion, although it was not referred to as an issue of interpretation by the High Court in Garlett v Western Australia,[20] it appears to have been endorsed as the correct approach by the reasons of the plurality and Edelman J in that case.
[18] D'Rozario [No 3] [21].
[19] D'Rozario [21].
[20] Garlett v Western Australia [73] (Kiefel CJ, Keane & Steward JJ), [220], [225] - [228] (Edelman J).
In Garlett v Western Australia, Kiefel CJ, Keane and Steward JJ (who were in the majority in the outcome) recognised the two distinct evaluative steps in the following passage:[21]
Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the Court's judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is 'necessary' to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. The Court must consider whether a restriction order is necessary to ensure adequate protection of the community.
[21] Garlett v Western Australia [73].
In the same case, Edelman J (who was also in the majority in the outcome) set out what his Honour considered to be the proper interpretation of the provisions of the Act, noting there were several stages in the assessment the court has to make before finding that a person is a high risk serious offender. In discussing the third stage of that assessment, his Honour indicated that, while the requirements of 'unacceptable risk' and the necessity to make a restriction order are closely associated and are both concerned with whether an identified risk to the community can be tolerated,[22] they are separate requirements that require separate evaluation. His Honour said:[23]
The requirements that the risk be 'unacceptable' and that the restriction order be 'necessary' to ensure 'adequate' protection of the community direct attention to whether the identified risk to the community can be tolerated. That assessment must be made in light of the whole of the burden which would be placed upon the liberty of the offender by the making of a restriction order, including any standard supervision order conditions.
Section 7 thus requires balancing, on the one hand, the level of the risk identified at the second stage (that is, the probability of the commission of the specified serious offence) together with the magnitude of the harm associated with that risk with, on the other hand, the burden that would be placed upon the liberty of the offender by a restriction order for an offence that they have not committed. …
Even if the balancing process favoured the making of a restriction order, it might still be unnecessary to make such an order if, for example, the Court were able to make orders under other legislation, such as post-sentence supervision orders under the Sentence Administration Act. Such orders might reduce an unacceptable risk to an acceptable one.
[22] Garlett v Western Australia [220].
[23] Garlett v Western Australia [226] - [228].
In accordance with the proper approach to s 7(1) of the Act discussed above, before I can find the respondent to be a high risk serious offender, I must determine first whether there is an unacceptable risk that the offender will commit a serious offence in the future, and, if such a risk is found, I must then determine whether it is necessary to make a restriction order to ensure adequate protection of the community against that unacceptable risk. I must be satisfied of both matters to a high degree of probability, by acceptable and cogent evidence.
The first step requires the court to determine whether, in the absence of any measures that would provide protection of the community against the risk that a respondent would commit a serious offence in the future, that risk is unacceptable. That evaluation requires the balancing of various considerations, which I will discuss below. The second step requires the court to determine whether a restriction order is necessary to provide adequate protection of the community against the unacceptable risk that has been found to exist. That requires consideration of whether there are measures, other than a restriction order, that would provide adequate protection of the community against the unacceptable risk. If there are, the risk could no longer sensibly be regarded as 'unacceptable'.
The State bears the onus of satisfying the court that it is necessary to make a restriction order.[24]
[24] The Act, s 7(1) and 7(2).
The cases decided under the Act support the view that the concepts and criteria with which the court is concerned in determining an application under s 48 of the Act are otherwise substantially the same as under s 17 of the DSO Act, and, therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the Act. In my view, the analysis of the Act in Garlett v Western Australia, particularly in the judgment of the plurality, is consistent with that approach.[25]
[25] See, for instance, Garlett v Western Australia [55] (footnote 68); [103], [104], [106].
The need for the court to be satisfied 'to a high degree of probability' is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt; it is otherwise incapable of further definition.[26] The test does not mean necessarily that the risk or the necessity for making a restriction order must be at some high percentage of probability. As was previously noted in respect of 'unacceptable risk' under the DSO Act, a risk may be less than 50%, yet still be unacceptable. However, the court must identify what it is that is alleged to constitute the risk and makes it unacceptable, and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[27] The same approach must be taken in respect of the necessity for making a restriction order to ensure adequate protection of the community.
[26] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [28] (Steytler P & Buss JA) (GTR).
[27] GTR [34] (Steytler P & Buss JA).
In GTR, Steytler P and Buss JA explained that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender 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).[28]
[28] GTR [28] (Steytler P & Buss JA).
In considering whether it is satisfied that the offender is a high risk serious offender, the court must have regard to each of the matters specified in s 7(3) of the Act. Those matters are:
(a)any report prepared under s 74 of the Act for the hearing of the application and the extent to which the respondent cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the respondent;
(c)information to indicate whether or not the respondent has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the respondent;
(e)any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he had participated in any rehabilitation programme;
(f)whether or not the respondent's participation in any rehabilitation programme has had a positive effect on him;
(g)the respondent's antecedents and criminal record;
(h)the risk that, if he were not subject to a restriction order, the respondent would commit a serious offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
There is overlap between some of the matters specified and the evidence relating to the various matters, which I will discuss below.
Where, as in the respondent's case, the offender has committed offences other than serious offences, those other offences may be relevant as part of the offender's antecedents and criminal record, as well as shedding light on the offender's risk of committing a serious offence, because the other offences may be connected to behaviour which has the real potential to lead to serious offending.[29]
[29] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].
The court must disregard the possibility that the offender may be temporarily prevented from committing a serious offence by various specified measures affecting his liberty, including imprisonment.[30]
[30] The Act, s 7(4).
If the court finds that the respondent is a high risk serious offender, it must make a restriction order. The issue then is whether a supervision order, or a CDO, is the appropriate outcome. In deciding between those two options, the paramount consideration is the need to ensure the adequate protection of the community.[31]
[31] The Act, s 48(2).
The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2).[32] As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, 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.[33]
[32] The State of Western Australia v Latimer [2006] WASC 235 [49]; Garlett v Western Australia [106].
[33] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; Garlett v Western Australia [106].
However, the proviso in s 48(1)(b), referring to s 29, means that the court cannot make a supervision order, and therefore must make a CDO, unless it is satisfied, on the balance of probabilities, that a respondent will substantially comply with the standard conditions of a supervision order.[34] The respondent has the onus of proving that he will substantially comply.[35]
[34] The Act, s 29(1).
[35] The Act, s 29(2).
The standard conditions referred to in s 29 are those specified in s 30(2) of the Act, which in the DSO Act were specified in relevantly identical terms in s 18(1).[36] A supervision order must contain conditions that the person who is subject to the order will:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address;
(b)report to, and receive visits from, a community corrections officer as directed by the court;
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens;
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32 [of the Act]);[37]
(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 serious offence during the period of the order;[38] and
(g)be subject to electronic monitoring under s 31 [of the Act].
[36] The Act, s 3 (definitions) and s 30(2).
[37] DSO Act, s 18(1)(d) referred to 'section 19A or 19B', which correspond to s 31 and s 32 of the Act.
[38] DSO Act, s 18(1)(f) referred to 'a sexual offence as defined in the Evidence Act 1906 section 36A', which included offences that were not within the meaning of 'serious sexual offence' in the DSO Act. Some of the offences referred to in s 36A of the Evidence Act are not included in the definition of 'serious offence' in the Act.
Therefore, the effect of s 29(1) and (2) of the Act (as was the case with s 17(3) and (4) of the DSO Act) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order.
The words 'will substantially comply with' in s 29(2) are identical to those that appeared in provisions of the DSO Act and bear the same meaning. In effect, that phrase means that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general objects of a supervision order and of the legislation.[39] This requires consideration of all of the circumstances, both personal to him and external, which will affect him. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro-social support available to him.[40] Section 30(5) of the Act provides that a supervision order may include other conditions as the court considers appropriate to ensure adequate protection of the community, for rehabilitation, care or treatment of the offender and to ensure the adequate protection of victims.
[39] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52]; The State of Western Australia v CF [2021] WASC 20; The State of Western Australia v PAS [No 3] [2021] WASC 117 [17]; The State of Western Australia v Corbett [No 8] [2021] WASC 171 [48]; The State of Western Australia v PAS [No 3] [17];
[40] Garlett v Western Australia [103] - [104], approving the statement to that effect in The State of Western Australia v ACJ [2021] WASC 219 at [416], and the correlative understanding of the relationship between s 29 and s 30(2)(f) of the Act underpinning the making of supervision orders by this Court in numerous cases cited at [104].
Obviously, substantial compliance with the condition that the respondent will not commit a serious offence during the period of the order should be sufficient to ensure adequate protection of the community. However, the probability that a respondent will substantially comply with that condition will almost invariably depend on the likelihood of the respondent complying with other conditions of a supervision order, additional to the standard conditions, and the restraints upon his conduct imposed by those other conditions.[41]
[41] Garlett v Western Australia [103].
As Hall J noted in Director of Public Prosecutions for Western Australia v Griffiths,[42] in respect of the DSO Act, the Act does not require that there be no risk of reoffending before a respondent can be released subject to a supervision order; rather, '[the] requirement is that any risk be reduced to a reasonably acceptable level'. That reflects the statutory language of 'adequate protection of the community' (emphasis added).
[42] Director of Public Prosecutions for Western Australia v Griffiths [2015] WASC 393 [103].
In the assessment of whether the conditions of a supervision order would achieve such protection, the availability of suitable accommodation is an important consideration. As Hall J observed in The State of Western Australia v Corbett:[43]
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending.
[43] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80] (Corbett).
In that case, his Honour concluded that the absence of suitable accommodation made it impossible to be satisfied that the supervision order was a viable option at the time of deciding the case.[44]
[44] Corbett [80].
Ultimately, even apart from the respondent's onus of satisfying the court that he will substantially comply with the standard conditions of a supervision order, if the court is not satisfied (which includes if it is left in doubt) that conditional release of the respondent subject to a supervision order will ensure an adequate degree of protection of the community, it must make a CDO.[45]
[45] Williams [86] (Wheeler JA, Le Miere AJA agreeing).
If a supervision order is made, it will necessarily involve curtailment of the respondent's liberty for the purposes of mitigating his risk of committing a serious offence. Such curtailment must be no greater than is necessary adequately to protect the community from the demonstrated unacceptable risk of harm to the community.[46] That limitation will inform the assessment of whether proposed conditions are appropriate to be included in the supervision order.
[46] Garlett v Western Australia [55], referring to The State of Western Australia v Latimer [49]; The State of Western Australia v ACJ [2021] WASC 219 [32]; The State of Western Australia v Quartermaine [No 2] [2021] WASC 267 [14]; The State of Western Australia v Dragon [No 2] [2022] WASC 189 [15].
The issues in this application
Having regard to the analysis of the statutory framework and legal principles above, the first issue to be determined in these proceedings is whether the respondent is a high risk serious offender, in other words:
(1)Is there an unacceptable risk that he would commit a serious offence in the future, in the absence of any measures that would provide protection of the community against that risk?
(2)Is a restriction order necessary to provide adequate protection of the community against that unacceptable risk?
If both of those questions are answered in the affirmative, the next issue is whether the appropriate order to ensure adequate protection of the community is a CDO or release into the community on a supervision order.
I referred to the positions taken by the applicant and the respondent at [8] above. Although the respondent conceded that it was open to the court to find that he is a high risk serious offender, it is necessary for me to be satisfied to the requisite standard, on the evidence presented at the hearing, that the criteria in s 7 of the Act are met.
Evidence
In an application for a restriction order, the court must hear any admissible evidence called by the State and, if he elects to give or call evidence, any admissible evidence given by, or on behalf of, the respondent.[47] The rules of evidence apply but are modified to permit the court to receive in evidence any one or more of the following:[48]
(a)any document relevant to the antecedents or criminal record of the offender;
(b)anything relevant contained in the official transcript of any relevant proceedings against the offender;
(c)any relevant material that was tendered to the court or that informed the court in relevant proceedings against the offender; and
(d)any relevant material of the kind mentioned in s 7(3) of the Act relating to the offender.
[47] The Act, s 84(3).
[48] The Act, s 84(4) and (5).
The evidence adduced by the applicant in these proceedings consisted of a Book of Materials (BOM) in three volumes prepared for the restriction order application,[49] which was tendered by the applicant without objection, and oral evidence given by:
(1)Dr Gosia Wojnarowska, a consultant forensic psychiatrist, who was one of the experts who prepared a report in respect of the respondent's risk of committing a serious offence;
(2)Dr Sarah George, a consultant counselling psychologist, who was the other expert who prepared a report in respect of that risk;
(3)Mr Luke Carmichael, a High Risk Serious Offender (HRSO) Planning Manager within the Department of Justice, who prepared a report in respect of the treatment options delivered and available to the respondent through the Department of Justice; and
(4)Ms Julie Dabala, a Senior Community Corrections Officer (SCCO) with the Department of Justice, who prepared a Community Supervision Assessment report in respect of the respondent.
[49] Exhibit 1.
Volume 1 of the BOM contained materials provided by the Department of Justice, including a copy of the respondent's criminal record, a chronology of the respondent's offending prepared by the applicant, prison records, substance use test results, custodial medical records and medical reports, and individual management plans in respect of the respondent. It also contained the judgment and other materials from the proceedings in respect of the preliminary hearing in this matter.
Volume 2 of the BOM contained material in relation to the respondent's criminal offending, including statements of material facts, prosecution notices, psychological reports, psychiatric reports and pre-sentence reports prepared for sentencing hearings, and a transcript and judgment in relation to the respondent's most recent offending. Volume 2 also contained post-sentence reports and materials such as program completion reports, a victim mediation report, parole assessment reports and a post sentence supervision order and report.
Volume 3 of the BOM contained the reports of the witnesses who gave oral evidence.
The applicant also adduced affidavits from:
(1) Ms Dabala, sworn 17 November 2023 and 8 December 2023, the first of which outlined the efforts that had been made to find suitable accommodation for the respondent, and the second of which outlined the enquiries made to determine the suitability of the accommodation proposed by the respondent, and the information obtained.
(2)Mr Martyn James Clancy-Lowe, sworn 26 April 2024, Executive Manager of the Sex Offender Registry, Western Australia Police Force, which provided information in respect of the occupants of the proposed accommodation and concerns raised by the local police in respect of that accommodation.
The respondent adduced an affidavit of Ms Antoinette Fedele, counsel for the respondent, sworn 29 April 2024, which addressed the issues that had been raised in the affidavits of Ms Dabala and Mr Clancy‑Lowe, and in the applicant's submissions, in respect of the suitability of the proposed accommodation for the respondent's residence if he were to be released on a supervision order.
I note that the bulk of Volume 1 of the BOM consists of medical records and medical reports in respect of the respondent. I am required to have regard to that significant body of material by reason of s 7(3) of the Act. However, while the respondent's medical conditions have some relevance to the assessment of his risk of committing serious offences in the future, most of that significant body of material, the contents of which in many instances would require some explanation from a medical expert if they are to be understood, could not be said to be relevant to the assessments I need to make in accordance with the Act. It is noteworthy that the parties' submissions placed no reliance on those materials. Although the rules of evidence are modified pursuant to s 84 of the Act, the provision still specifically requires that materials to which the court has regard must be relevant. Moreover, the court must be satisfied of relevant matters under the Act by acceptable and cogent evidence. An aspect of cogency is relevance. The fact that there was no objection to the tender of the large volume of medical documents does not mean that they have any persuasive value, having regard to the issues in the hearing. This issue concerning the lack of cogency of a large part of the materials included in books of materials has been raised in previous cases.[50]
[50] See, for example, The State of Western Australia v Slater[No 3] [2023] WASC 22 [10] (Forrester J), although in that case her Honour was also concerned with the acceptability of some of the information in the materials.
I would respectfully note that, to the extent that a respondent's medical conditions may be relevant in a particular case, the court would be better assisted by a report summarising the respondent's medical history from a medical practitioner who has had overall care of the respondent's health (or from more than one medical practitioner, where necessary). In this case, it seems to me that the significant aspects of the respondent's medical history and his current conditions could have been dealt with in relatively short compass. If medical records are necessary to provide the foundation for any matters stated in such a report (and it should not be assumed they will be, if there is no issue taken by the respondent with the contents of the report), it is incumbent upon the parties to identify what parts of those records are relevant, and the issue or issues to which they relate.
It follows from what I have said that I will not refer to any materials that are not relevant to the issues I must determine.
Consideration of the matters under s 7(3) of the Act
As I noted earlier, the matters listed in s 7(3) of the Act, to which the court must have regard, overlap. The matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed by the information and findings in respect of all the other matters listed in s 7(3). Consideration of the questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning the respondent's efforts at rehabilitation and the effect of his participation in rehabilitation programmes.
It is convenient to start with the respondent's antecedents, including his criminal history, in particular the offending that is most relevant to the assessment of his risk of serious reoffending.
The respondent's general antecedents
The respondent's antecedents may be gleaned from various materials in the BOM, including pre-sentence, psychological and psychiatric reports prepared for proceedings in respect of the respondent's previous serious offences, reports from programmes in which the respondent has engaged, and the reports prepared for these proceedings, in particular the reports of Dr Wojnarowska and Dr George. The descriptions of the respondent's personal history in those materials have depended largely on his own accounts to interviewers. There have been some inconsistencies in his accounts, but both Dr Wojnarowska and Dr George noted that the personal history the respondent provided to each of them was in keeping with what has been documented in various reports previously.[51] The following summary relies substantially on the reports of Dr Wojnarowska and Dr George, which, in my view, provide sufficient context for present purposes.
Family background and developmental history[52]
[51] BOM Vol 3, pp 707, 723.
[52] BOM Vol 3, pp 707 - 709, 723 - 724.
The respondent was born and raised in regional Western Australia. Having lived initially in the State's southwest, his family moved to a town in the Pilbara when he was four years old. He lived there with his family until he was 18 years old. He is one of three children from his parents' relationship. He has an older brother and a younger sister.
The respondent has said that, generally, he had an unhappy childhood, feeling rejected by his family and peers from a young age. Dr George noted that this was consistent with previous accounts he had given to psychologists and a psychiatrist who had prepared reports for sentencing proceedings in 2001 and 2012, and with the account he gave during a rehabilitation programme in 2015.
The respondent has said that he was born with a large birthmark on his face, which 'put [his] mother off'.[53] He has described himself as 'the black sheep of the family', and claimed that his parents showed preference for his siblings, especially his brother, who was a high achiever. He has said that he always felt inferior to his siblings, who seemingly have lived successful lives. He had an eye defect that required surgery and the wearing of an eye patch when he was four or five years old. He has said that the operation caused financial strain and consequent strain on his parents' relationship.[54] However, he has also said that, despite the family dynamics, his parents were always supportive of him, and he felt loved.[55] While that is difficult to reconcile with the earlier statements, it is consistent with the fact that he identified his parents and siblings as current supports.[56] Nevertheless, I accept that his childhood was marked by insecurity about his self-worth, low self-confidence and consequent unhappiness because of the family dynamics.
[53] BOM Vol 3, p 707 [53].
[54] BOM Vol 3, p 723 [9].
[55] BOM Vol 3, p 707 [54].
[56] BOM Vol 3, p 707 [52].
Those feelings were exacerbated by his experiences outside his family environment. He has said he felt self-conscious about his appearance as a result of the eye patch and having to wear glasses, and that he was bullied at school. He has said that, although he would become angry, he avoided conflict, relying instead on his brother to defend him. However, Dr George noted that the respondent told a psychologist in 2012 that he was 'always arguing and fighting in high school'.[57]
[57] BOM Vol 3, p 724 [11].
In any event, confirmation that the respondent had difficulties as a child was provided by his mother, who described him as a 'sensitive and fearful child who had difficulties coping from a young age'.[58]
[58] BOM Vol 3, p 723 [10].
The respondent has said he did not have friends at school,[59] but the more accurate description appears to be that he gravitated towards other children who were also rejected by the mainstream population of school children, which was confirmed by his parents.[60] He has described being the 'class clown' to gain acceptance by his peers, but that was unsuccessful.[61] He has also said that, working in his parents' service station from a young age, he had to display a public face of confidence and control, and he has speculated that this contributed to his 'tendency to keep his difficulties inside and to have trouble asking for help'.[62]
Education and employment[63]
[59] BOM Vol 3, p 724 [11].
[60] BOM Vol 3, p 724 [12].
[61] BOM Vol 3, pp 707 [55], 724 [12].
[62] BOM Vol 3, p 724 [14].
[63] BOM Vol 3, pp 707 - 708, 724 - 725.
The respondent had difficulties concentrating in school and struggled academically. He has said he repeated Year 8 'due to emotional immaturity and poor academic progress', and this resulted in him losing friendships he had developed and being bullied again.[64] He left high school at the age of 17 with a poor academic record and did not engage in any further education. He has attributed his poor record to boredom and the repetitiveness of school.[65]
[64] BOM Vol 3, p 707 [56].
[65] BOM Vol 3, p 724 [15].
After leaving high school, the respondent initially worked at his parents' service station for two years, then worked as a tyre fitter until he was 25 years old, initially for a period when his family moved back to the south-west of the state, and then for a short period after he returned to the Pilbara when he was about 25 years old. He eventually found work with a large mining company for about four years. He then worked for another mining company until he was dismissed in his thirties for returning positive drug tests and stealing a laptop. The respondent told Dr Wojnarowska that there were many issues that he was facing at work, and that he felt targeted by his bosses, which he said led to him illegally recording conversations without the consent of the other parties.[66] I will refer below to the circumstances in which he came to be using illicit drugs.
[66] BOM Vol 3, p 708 [59].
After being dismissed from his employment in the Pilbara, the respondent returned to his hometown in the south-west, where he again worked as a tyre fitter for a short time before meeting his ex-wife. His wife then trained him to work in her business as a dog groomer, which he took over when she fell pregnant. He then operated that business for about seven and a half years, during which time it seems his wife looked after their children and their home. He has said he left that business because his customers had access to drugs, and he subsequently checked himself into rehabilitation.[67] It may be inferred that he was obtaining drugs from his customers, although the circumstances are not explained.
[67] BOM Vol 3, p 725 [17].
He later worked as a tree lopper with his father-in-law for several months before he was arrested for the index offences, being the serious offences for which he was serving the term of imprisonment when the present application was made. He has previously said that, when he was working as a tree lopper, the people he worked with also had access to drugs.[68] Again, the implication being that this had an influence on his drug use.
Substance abuse[69]
[68] BOM Vol 2, p 570.
[69] BOM Vol 3, pp 708, 727 - 728.
The respondent has a history of cannabis and amphetamine use, which he discussed with Dr Wojnarowska and Dr George. Dr George noted that previous reports have also referred to a history of experimentation with ecstasy and hallucinogens as a teenager, which the respondent acknowledged, but was not able to explain other that 'it was there', so he would try it.[70] Also, while the respondent acknowledged using alcohol, he claimed it had not been problematic and he never drank daily.[71] However, Dr George noted that prior reports have referred to the respondent indicating he had consumed large quantities of alcohol in his teenage years and in his twenties, although he had said that he had abstained from binge drinking from his mid-twenties or from when he was 30 years old.[72]
[70] BOM Vol 3, p 727 [29].
[71] BOM Vol 3, p 727 [29].
[72] BOM Vol 3, p 727 [29].
The respondent has said that he first tried cannabis when he was about 11 years old due to boredom in the regional town where he was living and his association with antisocial peers, but he said he used it infrequently because of limited access to the substance. However, in his late teenage years, he was able to acquire the drug more readily, and he was using cannabis daily.
The respondent told Dr Wojnarowska that, when he started working in mining in the Pilbara, he was able to buy his own home and he had a good social life, which included drinking alcohol regularly and smoking a lot of cannabis.[73] He said he stopped using cannabis when the mining company introduced mandatory drug testing, and he started using amphetamines, on someone's advice, as they were eliminated from the body more quickly and were not detectable after a relatively brief period of time.[74] The respondent claimed he was 24 or 25 years of age when he started to use amphetamines, which included methamphetamine. Dr George noted that the respondent had previously said that he started using amphetamines, including intravenously, weekly from the age of 18 years.[75]
[73] BOM Vol 3, p 708 [59].
[74] BOM Vol 3, p 708 [59], 727 [30].
[75] BOM Vol 3, p 727 [30].
In any event, he told Dr Wojnarowska that, when he started using the drug while working in mining, he quickly became addicted and was 'running amuck', injecting the substance on breaks from work.[76] He eventually failed the drug test at work, which, together with the stealing offence, resulted in his dismissal. I note that the respondent's account to Dr George was a little different, in that he said his use of amphetamines was intermittent in the Pilbara, due to its limited availability, but that he was using it daily when he returned to the south-west.[77]
[76] BOM Vol 3, p 708 [59].
[77] BOM Vol 3, p 708 [59].
The respondent has said that he abstained from using amphetamines for several years after he met his wife, but he relapsed after the traumatic birth of his second son, and he was then using the drug regularly. He attributed his relapse to requiring the energy to work and meet his family responsibilities.[78] He told Dr George that he tried to stop using on one or two occasions, but this caused him to sleep for days, and he considered that 'coming down' was disruptive to his work and family responsibilities.[79] He said that he was using the drug intravenously and daily when it was available, until his incarceration.[80] He claimed that he funded his drug use by buying more than he used and selling the extra amount, so that his drug use did not have a financial impact on his family.[81] However, his mother recalled giving the respondent a substantial sum of money to settle a drug debt.[82]
[78] BOM Vol 3, p 727 [31].
[79] BOM Vol 3, p 727 [31].
[80] BOM Vol 3, p 727 [31].
[81] BOM Vol 3, p 727 [32].
[82] BOM Vol 3, p 727 [32].
It is not clear how the respondent's accounts to Dr Wojnarowska and Dr George, in respect of the factors leading to his relapse, fit with his claims, referred to above, that somehow the fact that his dog-grooming customers and his tree-lopping co-workers had access to drugs was a factor in his drug use. It may be that those circumstances simply enabled him to get access to drugs when he relapsed because of the stressors in his life, but it may also be that he is influenced by peer group behaviour.
Although the respondent said he had been using cannabis only occasionally up until his current incarceration, Dr George noted that during a Pathways Program (which addresses substance abuse) in 2015, he had reported heavy use of cannabis during his offending periods.[83]
Sexual development[84]
[83] BOM Vol 3, p 727 [28].
[84] BOM Vol 3, pp 709, 726.
The respondent told Dr Wojnarowska that his interest in 'watching people' started when he was 9 or 10 years old when he was with friends and they could hear someone having sex in the cubicle of a toilet at a sporting club, only to discover that a family member was involved.[85] The respondent claimed this had been a significant event in his life. This may have been the same incident he described to Mr Steve Jobson, a psychologist, in 2012, which he asked not to be noted in the report prepared by Mr Jobson for the respondent's sentencing at that time, despite saying that he had carried the memory for 30 years.[86] However, it is difficult to know what weight to place on the incident, as it was not subsequently referred to in the Program Completion Report from the Intensive Sex Offender Treatment Program, and it appears the respondent did not tell Dr George about it. Further, while he described it as the start of his interest in 'watching people', the respondent did not provide any explanation of how this developed into his voyeuristic behaviour as an adult.
[85] BOM Vol 3, p 709 [66].
[86] BOM Vol 2, p 541.
The respondent told Dr Wojnarowska that he started watching pornography and masturbating at the age of 13 years, and that this would increase at times of heavy substance use. He told Dr George that he first viewed pornography when he was 10 or 11 years, and that it was of consensual sexual intercourse between adults.
The respondent has said that he first had sexual intercourse at the age of 17, and that it was with a female of a similar age. He told Dr George that he would have occasional one-night stands with women he met at the pub, and he estimated having had between 50 to 60 adult female sexual partners and using sex workers on two occasions.[87] He told Dr Wojnarowska that he considered his sexual drive throughout his life to have been moderate, heightened at times of methamphetamine intoxication.[88] Similarly, he told Dr George that, while he was under the influence of amphetamines, his libido increased, his sex drive was high, and he occasionally had difficulty controlling his sexual thoughts.[89]
[87] BOM Vol 3, p 726 [23].
[88] BOM Vol 3, p 709 [64].
[89] BOM Vol 3, p 726 [26].
The respondent has said that his sexual needs were generally met with adult female partners. He has said that he was never unfaithful while in long-term relationships. However, he has also said he found it difficult when sexual intercourse with his wife ceased as a result of her postpartum medical problems following the birth of their second son.
The respondent told Dr George that, at the time of the index offences, he did not have time to watch pornography, because of his work and family commitments. However, Dr George noted that, during an Intensive Sex Offender Program in 2018, the respondent disclosed that he was watching pornography in the lead up to his index offending.[90]
[90] BOM Vol 3, p 726 [25].
During the current assessments, the respondent denied any sexual interest in children, sexual violence, or violence in general. He claimed that, during his periods of sexual offending, he did not really have sexual fantasies, but rather had tended to act immediately upon seeing an appealing stimulus.[91]
Relationships[92]
[91] BOM Vol 3, p 726 [26].
[92] BOM Vol 3, pp 708, 725 - 726.
The respondent has said that he had difficulty finding intimate partners growing up, which he attributed to his physical appearance. He has said he remembered, 'watching the rest of the world be happy, while [he] was on [his] own'.[93]
[93] BOM Vol 3, p 725 [18].
He met his first girlfriend at the age of 14 years. He has said that, between the ages of 17 and 30 years, he had three serious relationships, each lasting two to three years. They ended for a variety of reasons, including partners relocating, jealousy, a perception that he was being 'used', and substance abuse.[94]
[94] BOM Vol 3, p 725 [20].
The respondent met his ex-wife in his early thirties, sometime between 2002 and 2004. Dr George noted that the respondent has been inconsistent in his description of the relationship. During the Intensive Sex Offender Program in 2018 he had spoken about the idyllic nature of the relationship.[95] I note that he also told Dr Woynarowska that the period of time around when he married his ex-wife was happy.[96] However, he described the relationship to Dr George as 'forced', due to his ex-wife falling pregnant with their first child not long after the relationship commenced.[97] The couple married in 2005, after the birth of their first son. They had a second son the following year. His ex-wife's pregnancy with their second son was traumatic, marked by complications, resulting in serious injuries to both mother and child.[98] This left the child with long term disabilities that required frequent visits to the children's hospital. The respondent's ex-wife was also left with serious medical complications. As was noted above, one of the consequences was that sexual intercourse ceased between the respondent and his ex-wife. The substantial medical requirements of the child and the complications suffered by the respondent's ex-wife put a significant strain on the relationship. As I said above, the respondent attributed his relapse into drug use to the difficulties in his life after the birth of his second child.
[95] BOM Vol 2, p 630.
[96] BOM Vol 3, p 708 [60].
[97] BOM Vol 3, p 725 [21].
[98] BOM Vol 3, pp 708 [61] - [62], 725 [21].
The respondent's relationship with his ex-wife lasted nine years. He has previously said that they separated for a period, but got back together.[99] They finally separated while he was in prison for his current offences. He has claimed that he tended to be 'approval seeking' and submissive during conflict in his relationship, including taking on additional work around the house, which led to resentment on his part.[100] He has also said that he felt as though he was being micromanaged in the marriage.
Medical history[101]
[99] BOM Vol 2, p 568.
[100] BOM Vol 3, p 726 [22].
[101] BOM Vol 3, pp 703, 728 - 730.
The respondent's medical history was summarised briefly by Dr Wojnarowska and Dr George. Apart from a diagnosis of hypertension, and a history of vitamin D deficiency, the respondent's main medical issues have been a diagnosis of colorectal cancer and a diagnosis of type 2 diabetes.
He was diagnosed with Stage 3 rectal cancer in March 2021, and subsequently underwent chemotherapy and radiotherapy treatment. He also underwent surgery in September 2021 for a bowel resection, and in 2023 to reverse the loop ileostomy (for the stoma bag), which was in place after the initial surgery. It appears there were some complications during his treatment, including becoming ill and having to be hospitalised as a result of the chemotherapy. However, the medical reports indicate that he has recovered well, despite an initial poor prognosis. When asked about his recovery, the respondent confirmed that he had recovered well, but said he still requires a substantial amount of ongoing medication to manage his medical conditions.
The respondent's diabetes has been well managed previously with insulin injections. The injections are no longer required.
The respondent has a history of mental health issues, including depression, anxiety and longstanding low self-esteem and oversensitivity. In 2012, he was assessed by a psychiatrist to have a major depressive disorder, as well as being dependent on substances. The respondent has previously used substances as a maladaptive coping mechanism to deal with his major depressive disorder.
In 2021, the respondent sought assistance from the Prison Counselling Service as he was suffering from a low mood due to being denied parole, having his security rating increased as a result of his classification as a person to whom the Act applied, and medical difficulties.
The respondent's criminal history
The respondent's history of offending is set out in his criminal record and the 'Chronology of serious and other relevant offences' (the Chronology) in Volume 1 of the BOM.[102] It was also summarised by Quinlan CJ in JBP.[103] As his Honour noted, it is a significant and lengthy criminal history, dating from 1988. It includes offences of aggravated burglary; aggravated sexual penetration without consent; sexual penetration without consent; deprivation of liberty; indecent assault; indecently dealing with a child; indecently recording a child; stealing; unlawful use of an optical surveillance device; being on premises without lawful excuse; numerous prohibited drug offences; and numerous traffic offences.
[102] BOM Vol 1, pp 1 - 11.
[103] JBP [16] - [36].
The offending of which he was convicted from 1989 to 2001 included traffic offences, stealing, drug offences, disorderly conduct and unlawfully being on premises. From 2001 he began to commit offences that were sexually motivated.
On 24 July 2001, when he was 31 years old, the respondent was convicted of three offences that involved him recording private activity, the first being an activity to which he was not a party. That offence, the unlawful use of an optical surveillance device, occurred between 1 January 2000 and 18 February 2001. The respondent went to numerous residential addresses in the Pilbara town where he was living, for the purpose of visually recording women in their homes during the night time. He used a video camera to record two women in their homes 'during the hours of darkness' by somehow recording through 'closed blinds' on their windows.[104] One of the women was in her underwear, and the other was naked. The offences came to light when police located the camera and videotape during a search of the respondent's vehicle pursuant to a search warrant in February 2001.[105] They found that the 'record' light on the camera had been covered. They also found that a compact disc carry case located in the respondent's shed had been modified to hide the camera.[106]
[104] BOM Vol 1, p 11; Vol 2, p 606 (Apprehension Information sheet in respect of his arrest for the offence).
[105] BOM Vol 2, p 606.
[106] BOM Vol 2, p 606.
The other two offences of which the respondent was convicted on 24 July 2001, being offences of unlawfully visually recording a private activity to which he was a party, occurred on separate days in February 2001 and involved the respondent using his video camera (in one instance, concealed inside a bag) to record, without the knowledge of the other parties, conversations he had with two girls in the home of one of the girls, to which he had been invited, and with a woman whom he stopped near her vehicle in a shopping centre carpark. He had parked his car next to the woman's car, and he engaged her in conversation about work and family while his camera recorded in his car.
As Quinlan CJ noted in JBP, with the benefit of hindsight, the offending involving the video recording of the women through the windows of their homes may have been a harbinger of the paraphilia that was later suggested by Dr Sam Febbo in a psychiatric report prepared for the respondent's sentencing in 2012,[107] and which has now been diagnosed in the context of the assessments for these proceedings, as will appear below.
[107] BOM Vol 2, p 560.
As Quinlan CJ also noted (referred to at [1] above), the respondent's pattern of offending over time suggests an escalation of offending, commencing with the voyeuristic offending of which he was convicted in 2001, progressing to indecent offences against victims who were caught unawares (usually children he knew), and ultimately escalating to the most serious sexual offending against strangers in their homes.
The respondent was sentenced for all of the later offending on 13 November 2012 in the District Court of Western Australia. His Honour Goetze DCJ sentenced the respondent to a total effective sentence of 11 years and 9 months' imprisonment for 16 offences, 11 of which were serious offences within the meaning of the Act, namely:
(1)five counts of indecently dealing with a child, contrary to s 320 and s 321 of the Criminal Code;
(2)two counts of indecently recording a child, contrary to s 321 of the Criminal Code;
(3)one count of attempting to indecently record a child, contrary to s 321 of the Criminal Code;
(4)one count of deprivation of liberty, contrary to s 333 of the Criminal Code;
(5)one count of sexual penetration without consent, contrary to s 325 of the Criminal Code; and
(6)one count of aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code.
An appeal by the respondent against the sentence was dismissed by the Court of Appeal.[108]
[108] BOM Vol 2, pp 581 - 597. Given the non-publication order I have made in these proceedings, I have not included the citation.
The respondent had been charged on indictment with 19 counts, but on 29 August 2012, after negotiations with the State, he entered pleas of guilty to the 16 counts referred to above, and the State discontinued three counts.[109] I note that the BOM includes police statements of material facts that relate to all of the alleged offences with which the respondent had been charged. To the extent that the statements of material facts relate to alleged offences of which the respondent was not convicted, I have disregarded them.
[109] BOM Vol 2, p 584. (Judgment of Buss JA in the Court of Appeal decision in the respondent's appeal against the sentence imposed by Goetze DCJ.)
The BOM does not include transcript of the facts read to the court. It is apparent from the sentencing judge's remarks that an amended statement of material facts was read.[110] The BOM does not include the amended statement of material facts. Obviously, where the sentencing judge incorporates, without restating in full, the facts stated by the prosecutor, as occurred in this case,[111] the transcript of what the prosecutor said, or the amended statement of material facts itself, should be included in the book of materials, if available. However, as there was no objection on the respondent's behalf to the contents of the BOM, I have relied on the statements of material facts in respect of the offences of which the respondent was convicted to the extent that they go beyond the facts stated by the sentencing judge and those outlined in the judgment of the Court of Appeal.[112]
[110] BOM Vol 2, p 566.
[111] BOM Vol 2, p 566.
[112] BOM Vol 2, pp 566 - 567, 570 - 573, 585 - 588.
In the outline of the facts that follows, I have respectfully adopted Quinlan CJ's summary of those offences, together with additional facts referred to in the judgment of the Court of Appeal, which, in my view, sufficiently reflects the information in the statements of material facts.[113]
2005 to 2006 - indecently dealing with a child in circumstances of aggravation (count 2)
[113] JBP [24] - [36]; BOM Vol 2, pp 581 - 597.
Between 17 February 2005 and 16 February 2006, the respondent and his then wife babysat the 7-year-old victim, CLT. The respondent and his wife were friends with the victim's mother, and they regularly babysat the victim. The respondent, his wife, and the victim were playing videogames on a mattress in the respondent's loungeroom. At some stage, the respondent's wife fell asleep. The respondent and the victim continued to play the videogame. The respondent leaned across the victim and placed his hand down her top and rubbed her breasts. The respondent then removed his hand from the victim's top and placed it down the front of the victim's shorts. He then rubbed the victim's vagina on the outside of her underwear. The victim tried to pull away, but the respondent pulled her towards him and gestured for her to be quiet by placing his finger to her lips. He removed his hand from the victim's shorts and a short time later his wife awoke. The appellant and his wife then went to sleep in the master bedroom, leaving the victim to sleep on the mattress in the lounge room.
The indecent dealing was in circumstances of aggravation because the child was under the respondent's care, supervision or authority at the time of the offending.
2007 - indecently dealing with a child and indecently recording a child in circumstances of aggravation (counts 6 - 10)
Between 24 and 25 August 2007, the 13-year-old victim, TJC, who was a neighbour of the respondent, was asleep on a mattress in the respondent's lounge room. She was often at his place to play with his children.
During the night, while the victim was asleep, the respondent approached her, pulled down her pyjama top and bra and touched her breast. As she continued to sleep, the respondent masturbated, with his penis close to the victim's face, and held his erect penis against her lips. He then pulled down the victim's pyjama top and bra again and touched her breast. All of that conduct was the subject of four counts of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, in circumstances of aggravation, in that the child was under his care, supervision or authority at the time of the offending.
The respondent used a video camera to record all of this offending. This was the subject of a count of indecently recording a child of or over the age of 13 years and under the age of 16 years in the same circumstances of aggravation.
On 31 January 2012, when the respondent was arrested, his home and motor vehicle were searched. Three video cassettes were found hidden in the bodywork of his motor vehicle. The footage taken by the respondent of his indecently dealing with the victim was on one of those cassettes. The victim was able to be identified in the footage.
2007 - attempting to indecently record a child (count 5)
Between October and December 2007, the same 13-year-old victim was staying at the respondent's house with others. During the evening, she went to have a shower. Shortly after, the respondent went into the rear yard to hang clothing on a washing line. He positioned his mobile phone in a gap between the outside of the bathroom window and the wall in an attempt to record the victim in the shower. The victim undressed and started to shower before noticing the respondent's phone. She yelled out and covered herself with the shower curtain. The respondent removed the phone from the window ledge. The victim later told the respondent's wife what had occurred.
2010 - aggravated home burglary and indecent assault (counts 11 - 13)
On 21 November 2010, at approximately 4.20 am, the 17-year-old victim, MJR, was at her boyfriend's house. She was not known to the respondent. The victim was slightly intoxicated, having consumed alcohol earlier that night. She lay on a bed fully clothed.
During the night, the respondent entered the house through an unlocked carport/kitchen door. Once inside, he took a pair of scissors and cut the victim's outer clothing as she slept, exposing various parts of her body. The respondent rubbed the victim's exposed vagina with his hand. The victim awoke after hearing a loud bang. The respondent then ran from the house. He was chased by victim's boyfriend, who was unable to catch him.
The subsequent police investigation included a forensic examination of the scissors. Cellular material recovered from the scissors matched the appellant's DNA profile.
The respondent had recorded the offending using the victim's mobile phone. The victim noticed the videos on her phone some months later, and gave her phone to the police. The videos taken by the respondent included a depiction of his hand rubbing the victim's vagina.
2010 - indecently recording a child (count 14)
Between 22 and 24 November 2010, around midnight, the respondent entered the grounds of the home of the 14-year-old victim, TFA, who was not known to him. The respondent used a video camera to film the victim through her bedroom window, without her knowledge, for about 14 minutes. The victim was changing from her school uniform into her nightwear and was filmed by the respondent while she was in her underwear. The victim noticed that a person (the respondent) was looking at her through the window. The respondent then left the area on foot. The victim's mother called the police.
The video footage taken by the respondent was found on one of the video cassettes located during the search of the respondent's vehicle on 31 January 2012, when the respondent was arrested. The victim was able to be identified in the footage.
2011 - aggravated burglary, deprivation of liberty, indecent assault, aggravated sexual penetration without consent and sexual penetration without consent (counts 15 - 19)
On 27 September 2011, between 3.00 am and 4.00 am, the respondent entered the home of the 37-year-old victim, MT, through an unsecured rear sliding door. The victim was not known to the respondent.
After entering the residence, the respondent found the victim asleep in her bedroom. He placed his hand over her mouth. The victim woke up and started to resist the respondent. He wrapped his hands around the victim's throat and asked her to relax. She stopped resisting. The respondent loosened his grip. He then used the victim's dressing gown cord to tie the victim's hands together and to the top of the bed.
The respondent removed a doona that was covering the victim, exposing her naked body. He then used a cardigan to tie her left leg to the base of the bed. The respondent placed the victim's underwear over her face and head, following which he positioned himself between her legs and rubbed her breasts, stomach and body. He then placed his hand between the victim's legs, rubbed the outside of her vagina and penetrated her vagina with his fingers. While doing that, he used his mobile telephone to record and take photographs of the victim. Those actions were the basis of the circumstance of aggravation in this offence of sexual penetration without consent, namely that the respondent did an act which was likely to seriously and substantially degrade or humiliate the victim.
The respondent then removed a vibrator from one of the bedside draws. He used the vibrator to rub the outside of the victim's vagina, before penetrating the victim's vagina with it twice.
Impact on victims
The impact on victims of offending of the kind engaged in by the respondent over time is a significant consideration in determining whether a risk of reoffending is unacceptable. The sentencing judge referred to the victim impact statements of the victims of the respondent's offending, and to statements in the authorities about the understanding that the courts now have of the long term effects of sexual offending upon children, in particular the loss of confidence and self-esteem, loss of trust, difficulties in forming relationships, and doubts and fears in relation to parenting their own children.[114]
[114] BOM Vol 2, p 573.
In respect of the prohibition on the use of alcohol, Dr George was asked specifically whether she would exclude alcohol from the prohibition. She said she would not. While that was not explored further, it may be readily understood that alcohol use can be a gateway to illicit substance use. Further, given the respondent's sexual deviance, any impairment of his disinhibitions must be regarded as creating a risk that he would act on the deviant tendencies.
Findings
Is the respondent a high risk serious offender?
The respondent concedes that he is a high risk serious offender. Notwithstanding his concession, it is necessary that I be satisfied to the required standard that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
In coming to my conclusions, I have had regard to all of the factors under s 7(3)(a) - (j) of the Act. I am satisfied that the evidence I have set out above in respect of each of those factors is cogent and acceptable, except where I have indicated otherwise. In particular, I am satisfied that the evidence of Dr Wojnarowska and Dr George was cogent, and I accept their opinions as outlined above, except where I have indicated reservations, for instance in relation to Dr Wojnarowska's opinion about the issue of denial and minimisation.
I am satisfied to a high degree of probability that the respondent presents a high risk of committing a serious sexual offence, if he is not subject to some form of restriction. I am satisfied that he has a propensity to commit sexual offences, as I explained above, and that the propensity has not been sufficiently mitigated by the treatment he has received in programmes and counselling. It is clear from all the reports and the evidence of the experts under s 74 of the Act that the respondent has outstanding treatment needs. The most significant risk factors are his sexual deviance and illicit drug use, in particular his use of methamphetamine, which creates a risk that his sexual offending would become violent. While the respondent has some insight into his offending, I am not satisfied that it is at a level where he could rely on internal resources or resolve to avoid reoffending. The fact is that he has not been tested in the community, where potential stressors, of the kind that led him to methamphetamine use in the past, may bear upon him. In that regard, while his abstinence from illicit drug use in prison is a positive step, it remains to be seen whether his resolve to remain abstinent can be maintained in the community.
Importantly, the respondent has been reluctant to address his sexual deviance, as he is resistant to the diagnosis and to the idea of exploring sexual factors in his offending, rather than believing that the causes were confined to stress, distress, the use of methamphetamine and a lack of sexual intimacy in his relationship with his wife. As I have said above, his offending that disclosed the sexual deviance commenced before any suggestion of his relationship with his wife deteriorating, and, as Dr Wojnarowska noted, there is no evidence that he was intoxicated by methamphetamine during the earlier offending, including the offending against children in his home. While he has some insight into his offending, it is something that will require a significant amount of further work in counselling.
The respondent still has a libido. There is no suggestion that his illness or the treatment he received, or his diabetes, have suppressed his sexual thinking or sexual drive in a way that would mitigate his risk to any significant degree.
As I am satisfied that the respondent presents a high risk of committing a serious sexual offence, and as the consequences of such offending would be devastating for his victims, with the potential for long term harm, I am satisfied that the risk is unacceptable.
The next question is whether it is necessary to make a restriction order.
Having regard to my findings in respect of the respondent's propensity to commit serious sexual offences and the pattern of his offending, and accepting, as I do, the opinions of Dr Wojnarowska and Dr George that the respondent's risk of committing a serious offence is high if he is not subject to a restriction order, I am satisfied that a restriction order is necessary. I do not consider that the PSSO would provide adequate protection of the community, as it does not have the level of restrictions and obligations necessary to mitigate his risk of committing a serious sexual offence. That follows from the opinions of Dr Wojnarowska and Dr George, which I accept, that all of the conditions of the proposed supervision order are necessary to mitigate and manage the respondent's various risk factors. Furthermore, I am satisfied by their evidence, and on my own assessment of the respondent's history, that the duration of the PSSO would not be sufficient to ensure the respondent has received the necessary treatment and has implemented risk management strategies to a point where the risk has been reduced to an acceptable level, and he might be expected to self-manage any remaining risk.
In my opinion, the evidence compels the conclusion that a restriction order is necessary, notwithstanding the obvious significant consequences for the respondent.
Therefore, I am satisfied that the respondent is a high risk serious offender.
Continuing detention order or supervision order
After careful consideration of the evidence before me, I have formed the view that a supervision order would provide adequate protection of the community. In arriving at that conclusion, I have taken into account the opinions of Dr Wojnarowska and Dr George above, which I accept. In my view the reasons for their conclusions are sound.
The supervision order in the Annexure provides a high level of supervision and monitoring of the respondent, while also ensuring he will receive the treatment that should reduce his risk in the future to an acceptable level without restrictions. The conditions address the respondent's risk factors in a way that, if he were to engage in behaviour that in the past has been a precursor to his offending, it should be detected at an early stage. If the respondent breaches the conditions in a significant way, it would be expected that he would be brought back before the court. However, I am satisfied that it is unlikely he would do so, at least at this stage. I am satisfied that his conduct in prison is a basis for concluding that he will do his best to comply. I am also satisfied on the basis of statements he has made that he is determined to avoid a return to prison, so it may be expected that he will comply strictly with the conditions, cooperate with supervision and engage meaningfully with counselling.
While the respondent's resistance to some aspects of treatment, and his discreditable display of aggression in the interviews with Dr Wojnarowska and Dr George in the early stages does give rise to some reservations about his capacity to deal with intensive supervision and monitoring, on balance I consider that he appreciates the importance of tempering his attitude. The fact that on each occasion he has apologised suggests a degree of insight in that regard.
Therefore, I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order in the Annexure, and with the other conditions of that order. In that regard, I consider that the external constraints on his behaviour, and the supports he will have, including from his parents, who are prosocial and intent on assisting the respondent to lead a law-abiding life and not reoffend, contribute to the likelihood that he will substantially comply with the standard conditions.
As I noted early in these reasons, the applicant did not take issue with the appropriateness of a supervision order, provided there was suitable accommodation. The applicant was not in a position to concede that the home of the respondent's parents would be suitable, for the reasons raised by Ms Dabala. Having considered carefully all of the evidence I have discussed in detail above in relation to the proposed accommodation, I am satisfied that the proposed accommodation is suitable and would contribute to the mitigation of the respondent's risk because of the support he will have. It is to be hoped that he will rebuild relationships with his family in a way that will continue to provide him with support in his rehabilitation in the long term.
I am satisfied that all of the conditions in the Annexure are appropriate and necessary to provide adequate protection of the community. I do not consider that they restrict the respondent's liberty, or place obligations upon him, any more than is necessary.
Duration of order
Under s 36 of the Act, the State may apply for a restriction order in relation to an offender who is subject to a supervision order that is to expire within one year. There is provision, therefore, for the State to apply for a further supervision order if, approaching the end of the supervision order I make, there is evidence that the respondent's risk is still at a level where there is a need for a further period of restriction, in order to provide adequate protection of the community.
I have come to the conclusion that, at this stage, the appropriate duration of the period for which the respondent should be subject to the supervision order is five years, being the period that both experts indicted would be appropriate. I accept the period is appropriate for the reasons they gave. The respondent's circumstances can be reviewed by the authorities in the final year of that period to determine whether a further order is necessary.
Commencement date
Section 27(3) of the Act provides that the date from which a supervision order has effect must not be earlier than 21 days after the date the order is made, unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
The applicant has submitted that the order not commence until 28 days after the order is made. That is to allow sufficient time, as estimated by the authorities, to put in place all necessary measures to ensure supervision and monitoring can be effective from the start. I am satisfied that is the appropriate period.
Conclusion
For the reasons I have given, I find that the respondent is a high risk serious offender within the meaning of the Act.
I make a supervision order in respect of the respondent in the terms set out in the Annexure.
The supervision order is to commence on 7 November 2024.
The interim detention order made by Quinlan CJ will continue in effect until the respondent has signed the supervision order to indicate his acceptance of the conditions, at which time he may be released.
The suppression orders made by me on 30 April 2024 remain in force.
Annexure
IN THE SUPREME COURT OF WESTERN AUSTRALIA
SO 10 of 2023
IN THE MATTER of the High Risk Serious Offenders Act 2020
THE STATE OF WESTERN AUSTRALIA Applicant
-and-
JBP Respondent
________________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 10 OCTOBER 2024 _________________________________________________________________________
Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 5 years from 7 November 2024, being a date that is not earlier than 21 days from the date this Order is made, on the following conditions:
You, JBP must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer (CCO) at [suppressed], within 48 hours of being released subject to 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, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32);
Not leave, or stay out of the State of Western Australia without the permission of a CCO;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
Take up residence at [suppressed] and spend each night at that address or, if a different address is approved in advance by a CCO assigned to you, at such different address;
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order;
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO, including times and locations when you must report to them;
Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of a CCO;
Disclose to a CCO the name and details of any paid or unpaid employment, education, training or volunteer work in which you are seeking approval to be issued by the CCO to commence;
Attendance at programs or treatment
Consult, engage, attend all appointments as directed and receive visits from, any medical practitioner, psychiatrist, psychologist, counsellor, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO;
Reporting to WA Police
Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 or the location in WA of Police that they subsequently direct you to attend, 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 High Risk Serious Offender team or his/her delegate at an alternate location of Police;
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
If requested, permit Police Officers to enter and search your residence and/or vehicle, and/or search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believe to contravene the conditions of the Order;
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020;
When requested, advise 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;
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 offending 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 or violent 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 victims at all times;
Report to a CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next working day following the contact;
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under s202, s203, s204, s557k Criminal Code 1913 (WA) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber;
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
When subject to a curfew under this Order, 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;
Prevention of high-risk situations
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, with the exception of your mother, [suppressed] and your sister, [suppressed];
Report at your next contact with a CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;
As directed by a CCO, make full or part disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by a CCO;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by a CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
Provide a valid sample pursuant to Condition 37;
Not purchase, or possess, or consume or use alcohol;
Not go, enter any part of your body inside, or remain at any licensed premises unless permitted or required to do so for the following reasons:
a) For the purpose of averting or minimising a serious risk of death or injury to yourself or another person
b) For a purpose, and duration approved in advance by a CCO;
c) On the order of a CCO or Police Officer;
Not remain in the presence of any person who is affected by alcohol or prohibited substances, or you ought to know is affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by a CCO;
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence;
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless;
a) The contact is authorised in advance by a CCO and such contact is supervised at all times by an adult approved in advance by a CCO;
b) The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
'Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication.
Withdraw immediately from the presence of the child 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.
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 a CCO and to the Police on the next occasion you report to that person or agency;
Not form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time, without prior CCO approval;
Have no contact with, membership of, or affiliation with clubs, associations or groups where membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
Not purchase or install, or cause or allow another to, purchase or install, any closed circuit television camera system or device at, or view any footage captured from, your proposed address without the prior permission of a CCO and Police.
Except as provided in Condition 48, advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of capturing audio and/or visual footage and/or storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 49, without prior approval of a CCO or WA Police;
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 referred to in condition 49, or any online accounts, to any person other than a CCO or Police Officer;
Upon request, permit a CCO or police officers from WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable capturing audio and/or visual footage and/or of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to a CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO;
Authorise police officers from WA Police to access any cloud-based platforms or services associated with the devices you use, and examine the internet accounts at any time for the purposes of monitoring your online behaviour (absent any investigation for any offence).
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, recordings 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;
Not be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article;
Not attend concerts, events or venues frequented by children under 18 years, without prior approval of a CCO;
Report any unsolicited interaction with females at your residential address to the CCO and the WA Police at your next scheduled appointment;
Not access online pornography. 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;
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 WA Police upon request;
Not access the internet for, nor collect or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not. Possession of such images depicting a child or children on items such as on household items or your immediate family, may be authorised by a CCO. Immediate family means pictures of yourself, your siblings, your parents and your partner only. You are directed to remove items in your prison property within 48 hours of the commencement of this Order from your possession, compliance will be checked by the WA Police and/or your CCO;
Not conduct any search by a computer or other electronic means using a search term that incorporates the word/s "child", "children", "kid", "kids", "boy", "boys", "girl", "girls", "adolescent" or "adolescents"; and
Not attend a park where that park contains children's play equipment, unless approved in advance by your CCO.
_______________________________
THE HON JUSTICE FIANNACA
I have received a copy of this Order. I have had it explained to me and understand the effect of this Order and what may happen if I contravene it.
I authorise police officers from the Western Australia Police (WA Police) to access any cloud-based platforms or services associated with the devices I use, and examine the internet accounts at any time for the purposes of monitoring my online behaviour (absent any investigation for any offence). I understand and acknowledge WA Police will use passwords or tokens located within my devises to access any could-based platforms and services and that a password may not be required. By authorising that I understand and acknowledge a Police Officer from the WA Police may change the password(s) to these accounts so I will no longer have access for as long as is required for legitimate evidentiary or law enforcement purposes only.
Signed by the Respondent _________________________________
JBP
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.
LD
Associate to the Hon Justice Fiannaca
17 OCTOBER 2024
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