The State of Western Australia v Jonsson [No 3]
[2019] WASC 463
•20 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JONSSON [No 3] [2019] WASC 463
CORAM: ARCHER J
HEARD: 26 NOVEMBER 2019, further submissions 6 DECEMBER 2019
DELIVERED : 20 DECEMBER 2019
FILE NO/S: DSO 1 of 2011
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
STEPHEN MICHAEL JONSSON
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for further supervision order - Date of the commencement of further supervision order - Inconsistency between s 8(4A) and s 17(1)(b) - Scope of power to make interim orders under s 27A
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Interim supervision order and further supervision order made
Category: A
Representation:
Counsel:
| Applicant | : | B D Meertens |
| Respondent | : | F R Veltman |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | F R Veltman |
Case(s) referred to in decision(s):
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
BMW Australia Ltd v Brewster [2019] HCA 45
Brisbane City Council v Amos [2019] HCA 27; (2019) 372 ALR 366
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions v Jonsson [2012] WASC 439
Hoffman v Chief of Army [2004] FCAFC 148; (2004) 137 FCR 520
Italiano v The State of Western Australia [2009] WASCA 116
Mohammadi v Bethune [2018] WASCA 98
Prisoners Review Board v Freeman [No 2] [2010] WASCA 167
Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 60 ALR
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Narkle [No 4] [2017] WASC 3
The State of Western Australia v West [2013] WASC 14
ARCHER J:
Introduction
The respondent has been subject to a supervision order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) since 2014 (the original supervision order). The original supervision order expired on 5 August 2019. Before it expired, the Director of Public Prosecutions for Western Australia (DPP) applied in the name of the State of Western Australia for a further supervision order, under s 8(4A) and s 17(1)(b) of the DSO Act.
On 1 August 2019, after a preliminary hearing, Jenkins J determined that there were reasonable grounds for believing that the court might, under s 7(1) of the DSO Act, find that the respondent is a serious danger to the community. Her Honour fixed a date for the hearing of the application for a further supervision order, and ordered that the respondent be examined by a psychiatrist, Dr Gosia Wojnarowska, and a psychologist, Ms Julie Hasson, for the purpose of preparing the reports required by s 37 of the DSO Act.
Her Honour ordered that the original supervision order continue until the State's application had been finally determined, under s 27A(3) of the DSO Act.
At the hearing of the application for a further supervision order, the DPP submitted that the further supervision order should be for a period of five years and that it should contain the conditions in attachment 1.
The respondent consented to a further supervision order being made for five years on those conditions.
I am satisfied that the respondent should continue to be subject to a supervision order. However, there is an inconsistency between s 8(4A) and s 17(1)(b) of the DSO Act. Therefore, I will make a short‑term supervision order for a period of 21 days on the conditions set out in attachment 1. I will then make a further supervision order, to take effect after 21 days, for five years on the same conditions. This will ensure there is no gap in the supervision of the respondent.
These are my reasons for making these orders.
The evidence
The State relies on a volume of material that contains relevant information, including the respondent's criminal history, previous reports and decisions, and the reports prepared for this hearing. There were four reports prepared for this hearing:
1.pursuant to Jenkins J's orders, a report by each of Dr Wojnarowska and Ms Hasson;
2.a proposed management plan from a forensic psychologist engaged by the Department of Justice, Dr Kathryn Riordan; and
3.a Community Supervision Assessment report from an officer from the Department of Corrective Services, Kimberley Comery. Ms Comery has been the respondent's Community Corrections Officer (CCO), within the Community Offender Monitoring Unit (COMU) since 3 January 2019.
Each of these report writers gave oral evidence in the hearing. The respondent did not give evidence.
Legal principles
By s 17 of the DSO Act, a court hearing an application for an order under s 17 must first determine whether the offender is a serious danger to the community. If that determination is made, the court must do one of two things:
a.make an order that the offender be detained in custody for an indefinite term for control, care, or treatment (continuing detention order[1]); or
b.make an order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to s 18, considers appropriate (supervision order[2]).
Serious danger - unacceptable risk
[1] Defined in 3 of the DSO Act to mean an order made under s 17(1)(a).
[2] Defined in 3 of the DSO Act to include an order made under s 17(1)(b).
By s 7(1) of the DSO Act, before a court may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a 'serious sexual offence'.[3] If the court is satisfied of this, it will necessarily follow that a person is a serious danger to the community.[4]
[3] A 'serious sexual offence' is defined very broadly, but relevantly includes sexual offences under chapter XXXI of the Criminal Code (WA) for which the maximum penalty is 7 years' imprisonment or more. This includes indecent dealing with a child.
[4] Director of Public Prosecutions (WA) vGTR [2008] WASCA 187; (2008) 38 WAR 307 [21].
Determining whether there is an unacceptable risk requires a balancing exercise. On the one hand, the court is required to have regard to, among other things, the nature of the risk (being the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising. On the other hand, the court is required to have regard to the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made.[5]
[5] Italiano v The State of Western Australia [2009] WASCA 116 [46] (Buss JA).
The court must then decide whether the risk of the person committing a serious sexual offence is so unacceptable that, notwithstanding that the person has already been punished for the offences he or she has committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.[6]
[6] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63], and expressly approved in GTR.
The DPP bears the onus of satisfying the court 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.[7]
[7] Section 7(2) of the DSO Act.
The court must be satisfied by acceptable and cogent evidence and to a 'high degree of probability'.[8] The expression 'high degree of probability' sets a higher standard than the standard of the balance of probabilities but a lesser standard than the standard of beyond reasonable doubt.[9] However, this does not mean that the risk must be greater than 50%. The court must identify 'what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence'.[10]
[8] Section 7(2) of the DSO Act.
[9] GTR [28].
[10] GTR [34].
In deciding whether to find a person is a serious danger to the community, the court must have regard to each of the matters specified in s 7(3) of the DSO Act:
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record;[11] and
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
Detention or supervision?
[11] As to which, see Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [19].
As noted earlier, if the court finds that the respondent is a serious danger to the community, the court must make a continuing detention order or a supervision order.
In deciding between them, the paramount consideration is the need to ensure adequate protection of the community.[12] However, this does not mean that there is a pre‑disposition to making a continuing detention order.[13] It 'cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order'.[14] Nor does it mean that other considerations are excluded.[15]
[12] Section 33(3) of the DSO Act.
[13] The State of Western Australia v West [2013] WASC 14 [52].
[14] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
[15] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Williams [13].
The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender, but rather for the ultimate purpose of protecting the community.[16] The court should choose the order that is the 'least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[17]
[16] GTR [97].
[17] West [52(j)], citing The State of Western Australia v Latimer [2006] WASC 235; and Decke. See also Griffiths [22].
In Director of Public Prosecutions (WA) v DAL [No 2],[18] Beech J[19] summarised the principles to be applied in considering whether a supervision order would adequately protect the community:
1.The use of the word 'adequate' indicates that a qualitative assessment is required.
2.In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be imposed so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his or her care and treatment.
3.The DSO Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the DSO Act applies would ever be released.
4.The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
5.If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, then, because the paramount consideration is the need to ensure the adequate protection of the community, the court must make a detention order.
Precondition to a supervision order - compliance with standard conditions
[18] DAL [No 2] [33], citing Williams [57], [86]; Griffiths [20], [103], [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16]. Although Beech J was conducting a review of a DSO order under s 33 of the DSO Act, rather than an application under s 17, the principles apply equally.
[19] As his Honour then was.
There are standard conditions which must be imposed in every supervision order. These are specified in s 18(1) of the DSO Act.[20] A court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions. The onus of proving this is on the offender.[21]
[20] See the definition of 'standard condition' in s 3 of the DSO Act.
[21] Section 17(3) and (4) of the DSO Act.
The respondent
The respondent's history was summarised by McKechnie J as follows:[22]
[The respondent] is a 48‑year‑old man [now 55] born in New South Wales, one of five male children. He never had a loving relationship with his siblings or parents and was subject to physical abuse by his father when he was young. Between the age of 1 and 2 he accidentally hit his head possibly by slipping on a wet floor.
He had prominent behavioural problems from an early age and was placed in an institution at the age of 10 where he remained for the following 19 years. At the age of 29 he joined his parents in Albany for a short time but his relationship with them broke down. He has been a client of Disability Services Commission (DSC), its predecessors or Eastern States equivalents, since the age of three and has a mild intellectual impairment. He has no psychiatric condition but is assessed by Dr Febbo and Dr Wojnarowska as fulfilling the criteria for a diagnosis of paedophilia.
He has always required substantial involvement by DSC. Psychological testing in 1995 found his verbal IQ to be 56, his performance to be 79 and his overall IQ as 66. In some areas he functions relatively well. He has a significant phonetic language articulation defect. He has no appropriate relationships with individuals of his own age either intimate or non‑intimate.
Criminal offending pre DSO orders
[22] Director of Public Prosecutions v Jonsson [2012] WASC 439 [4] ‑ [6].
In April 2004, the respondent indecently dealt with a child under the age of 13 by rubbing her vagina (First Sexual Offence). The facts were as follows:[23]
The complainant in this matter was seven years old and the offender was 39 years old at the time of the offence. The complainant and the offender are known to each other, as the offender was previously befriended by the complainant's father.
In April 2004 the offender was invited for dinner at the complainant's father's residence ... On this occasion, the complainant and her three siblings were visiting their father for the evening. At the conclusion of dinner he was told to catch a taxi home. He repeatedly asked if he could stay overnight, a request that was eventually agreed to by the complainant's father.
Later in the evening the complainant's father showed the offender to the rear spare room whilst the complainant slept in the games room with her three siblings and her father. Whilst everyone was asleep, the offender entered the games room and picked up the complainant. He carried her back to the rear bedroom and laid her on the bed. He lay down next to the complainant, who was still sleeping, and he commenced to stroke her hair prior to placing his hand under her underpants and rubbing her vagina with his hand. The complainant began to wake up, and on seeing the offender, she stated she needed a drink. She stood up from the bed and left the room.
[23] Exhibit D page 10.
The police were not informed of this offence at the time, and the respondent was not convicted of it until 2008.
In November 2006, the respondent again indecently dealt with a girl under the age of 13 years by touching her vagina (Second Sexual Offence). He pleaded guilty and was convicted in September 2007. This was the first conviction on his criminal record.
The facts were as follows:[24]
The offender … is a 42‑year‑old male who suffers from an intellectual disability. He resides by himself, in his own home. However, he requires the care of a person from the disability services to visit him each day to assist him with daily tasks. The complainant is an 11‑year‑old female. She resides with her mother, father and siblings ... The offender is a friend of the victim's family. He regularly visits the family for meals and regularly spends a night at that address.
On Monday 27 November 2006 the offender went to the [victim's] house and spent the evening with the victim and her family, after staying over dinner. The victim's parents allowed the offender to sleep the night in their home as it was too late for him to catch a train home. At about 12.30 am on Tuesday 28 November 2006, the victim was asleep in her bedroom. She was lying in her bed, wearing pyjamas.
The offender has entered the victim's bedroom, he has rubbed his hand on the victim's stomach and on her legs, causing her to wake from her sleep. The offender has then placed his hand between the complainant's legs and rubbed her vagina. This incident lasted for five to 10 seconds and his hand remained on the outside of the victim's pyjamas. The offender removed his hand from in between the complainant's legs and moved forward to the complainant's face and quickly kissed her on the cheek.
The complainant pushed the offender away with her hands and immediately walked out of her bedroom. She went to her older sister's bedroom and informed her of the incident and as a result the victim told her parents and the victim's father drove the offender home. On 12 December 2006 the offender participated in a video record of interview with detectives. A support person from disability services was present during that interview.
The offender readily admitted entering the complainant's bedroom, touching her down there and then kissing her on the cheek. He stated he did not know why he behaved in the manner and was aware that his actions were wrong.
[24] Exhibit C page 6.
The respondent was placed on an Intensive Supervision Order (ISO) on 15 June 2007 for two years for this offence.
On 21 March 2008, the respondent committed an assault occasioning bodily harm and thereby breached the ISO. The victim, who also has an intellectual disability, was the respondent's housemate.[25]
[25] Exhibit D page 12.
By the time the respondent came to be dealt with for the bodily harm offence and breach of the ISO, on 2 September 2008, he had also been charged with the indecent dealing offence he had committed in April 2004. He pleaded guilty to the indecent dealing offence and it was dealt with at the same time as the breach of the ISO. The sentencing judge extended the original ISO and placed the offender on a further ISO for 12 months, noting that the respondent had spent time in custody. The same day in the Magistrates Court, the respondent was placed on a community based order for 12 months for the bodily harm offence.
In 2009, a child protection prohibition order was made.[26]
[26] Exhibit A pages 126 and 133.
On 5 September 2010 the respondent detained a young girl with intent to cause a detriment to her (Third Sexual Offence). The facts were as follows:[27]
On Sunday, 5 September 2010 at about 1 pm, the complainant, an eight‑year‑old female, was at Glendalough Train Station in company with her mother. The complainant and her mother were returning home after having attended a church service. The mother attempted to purchase a ticket at the ticket dispenser on the lower level on the train station only to find the dispensing machine out of order.
The accused attempted to engage in conversation with the mother and complainant, however, was dismissed. The mother then told her daughter that they would try the machine on the upper concourse. The complainant went ahead of her mother and ran up the escalator. The complainant's mother called her daughter and said she was going to the toilet and she was to wait at the top of the escalator for her.
The mother went into the public toilet and whilst inside the toilet, she heard a loud scream and a voice calling out, 'Mum'. The mother recognised the voice as her daughter's and that she sounded a lot closer than being at the top of the escalator.
The mother exited the female toilet and opened the door of the male public toilet adjacent. When she opened the door, she saw her daughter inside the male toilet and an adult male standing behind her daughter. The complainant ran to her mother and they both left the immediate area. Police were called and the complainant's mother pointed out the offender to attending police.
The offender was apprehended walking west along Scarborough Beach Road. At the time of offending, the offender was subject to a prohibition order made by the District Court of Western Australia prohibiting the offender from, without reasonable excuse, associating or having contact with any child unless the relevant parent or guardian of that child is present and able to view the child at all times.
[27] Exhibit A page 191.
On 10 February 2011, the respondent was sentenced for this offence and for breaching the child protection prohibition order. He was sentenced to a term of 14 months' imprisonment with parole eligibility.
In addition to these convictions, concerns were raised in 2003 and 2005 in relation to the respondent's conduct towards a child. No charges were laid.[28]
[28] Exhibit A page 446.
In 2008 and 2009, the respondent himself claimed to have acted inappropriately towards children. He retracted his 2008 claim shortly after making it, and it appears he had just wanted to return to prison. No evidence was found to support the 2009 claim.[29] I have disregarded these self‑reports.
DSO proceedings
[29] Exhibit A pages 446 ‑ 447.
The respondent completed his sentence in relation to the Third Sexual Offence on 4 November 2011. The DPP sought a declaration that the respondent was a dangerous sexual offender. McKechnie J made interim orders detaining the respondent in custody until a final hearing could be held. On 19 November 2012, McKechnie J declared the respondent to be a dangerous sexual offender and made a continuing detention order.
The respondent's first review was adjourned several times while suitable accommodation was sought. Ultimately, the continuing detention order was rescinded by McKechnie J on 1 August 2014 and his Honour made a supervision order for a period of five years.
The supervision order was subject to 45 conditions, including that the respondent remain under the supervision of a particular agency's employee as directed by a CCO at all times and that he be subject to a curfew. The agency is a private agency that supports people with disabilities (Agency).
Performance on supervision
The respondent is managed under a multi‑disciplinary, systemic team approach aimed primarily at risk management and compliance with the requirements of his supervision order.
The respondent is subject to a high degree of supervision and support in his current living arrangements. He lives alone in supported accommodation managed by the Agency. Disability support workers employed by the Agency supervise him in his home from 9.00 am to 6.00 pm each day.
The respondent is left alone between the hours of 6.00 pm and 9.00 am. During most of that time, from 7.00 pm to 6.00 am, he is subject to a curfew.
The respondent's level of compliance with his conditions has been high.
He has a single conviction for contravening a requirement of the original supervision order. The conviction was recorded in December 2014, not long after the original supervision order had been made. The respondent had breached the supervision order by refusing to attend supervision. This was part of a general deterioration in his behaviour at that time, which led to him spending time in Graylands Hospital.[30] The respondent was fined $200.
[30] Exhibit A page 475.
On one occasion in 2015, the respondent failed to attend supervision. It was ultimately discovered that this was not the respondent's fault but was rather the result of his carer's failure to facilitate the appointment.
In 2016, there was an occasion when the respondent failed to keep his Global Positioning System (GPS) handheld device on his person. As a result, his location was not tracked for 17 minutes when he left home with a carer to attend an art class. The respondent was warned for this, but his equipment was changed to a single piece of GPS equipment so that he was no longer required to carry a handheld device.
Also in 2016, there was an alleged incident where he was said to have touched the bottom of an adult woman. The DPP said that, on the available evidence, it was unlikely that this happened. Accordingly, the DPP did not rely on the alleged incident.[31] I have therefore disregarded this allegation.
[31] ts 290.
In 2017, the respondent assaulted another Agency client on a bus, when they were going on an organised excursion. No charges were laid. The DPP did not rely on this incident. It appears that the victim was an adult and the assault was not sexual.[32] Dr Wojnarowska said this incident did not have any bearing on the respondent's risk of sexual offending.[33] I have therefore disregarded it.
[32] ts 290 ‑ 291.
[33] ts 311.
Current application
As noted in the introduction, the original supervision order was due to expire on 5 August 2019. The DPP brought an application for a further supervision order. Jenkins J ordered that the original supervision order continue until the DPP's application had been finally determined, and listed the application for hearing on 26 November 2019.
Serious danger
The respondent conceded through his counsel that there is an unacceptable risk that, if he were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. Nevertheless, I am required to determine whether I am so satisfied, in accordance with the legal framework, and having regard to the s 7(3) factors.
Expert reports - s 7(3)(a) and (b) factors
Dr Wojnarowska
Dr Gosia Wojnarowska is a forensic consultant psychiatrist with considerable experience in this area. She interviewed the respondent and prepared a report for the 2014 review. Pursuant to Jenkins J's orders, Dr Wojnarowska again interviewed the respondent and prepared a report for these proceedings.
In her most recent report, Dr Wojnarowska discussed the characteristics of the respondent's offending. She noted that the Third Sexual Offence showed he was prepared to offend against strangers, and it was an escalation of his previous offences.
Dr Wojnarowska wrote that her diagnostic opinion had not changed since her last assessment. It remained, relevantly:
1.paraphilia, paedophilia subtype, sexual attraction to females;
2.cognitive impairment - mild; and
3.phonological speech impairment.
Dr Wojnarowska conducted a risk assessment using a variety of tools, including a tool specifically designed for intellectually disabled offenders (Armadillo). She noted in her report that sexual deviance, particularly paedophilia, is one of the most important risk factors for reoffending. She said the 'risk scenario' was that, if the respondent is not supervised, he is likely to seek contact with children. She said he may not go through the process of grooming and may just approach an unsupervised child on the street and entice them to follow him to a secluded area. She said that, given time and opportunity, he may even sexually penetrate the child.
In her oral evidence, Dr Wojnarowska said that a stranger attack was a less likely risk scenario than the scenario of the respondent befriending a family with children.[34]
[34] ts 306.
Dr Wojnarowska also noted that the respondent had expressed anxiety and doubt about his ability to continue to live a law abiding life if the conditions of the supervision order were removed.[35] Dr Wojnarowska reported that the respondent told her that he did not understand the order that he was under or what her role in the assessment was. However, he had told her that if the court stopped the order 'I would still look at the kids, I am scared that if my bracelet is removed, that something bad may happen'.[36]
[35] Exhibit A page 431.
[36] Exhibit A page 423.
Dr Wojnarowska said:[37]
[The respondent's] overall score of his risk of re-offending is moderate on all actuarial instruments and clinical guidelines that have been used. This is consistent with my current clinical assessment and is supported by collateral information.
[37] Exhibit A page 436.
However, Dr Wojnarowska said that 'his risk of reoffending would elevate from moderate to high if the order was to be rescinded and all the conditions ceased. He would then be likely to resort to committing an offence in order to restore his preferred level of supervision'.[38]
[38] Exhibit A pages 436 ‑ 437.
In her oral evidence, Dr Wojnarowska said that the respondent did not want to talk about his offences, but that he accepted responsibility for them. Dr Wojnarowska said that she believed he still had sexual thoughts in relation to children. She said that, while the respondent was very motivated not to reoffend, he did not believe he could manage not to reoffend without support.[39]
[39] ts 301, 306 and 308.
Dr Wojnarowska supported the continuation of the supervision order.[40]
[40] ts 310.
I accept Dr Wojnarowska's evidence.
Ms Hasson
Ms Hasson is a forensic psychologist. She interviewed the respondent twice and prepared a report for these proceedings.
Like Dr Wojnarowska, Ms Hasson assessed the respondent's risk of reoffending using various tools. She concluded that he posed an above‑average risk of reoffending if not subject to a supervision order.[41]
[41] Exhibit A page 457. See also ts 314 ‑ 315.
Also like Dr Wojnarowska, Ms Hasson considered that, if the respondent was not supervised, the most likely risk scenario was that he would befriend people with children and that, over time, he might engage in sexually inappropriate behaviour towards the children.[42]
[42] ts 322, 324.
Ms Hasson supported the continuation of the supervision order.[43]
[43] Implicit in her report and in ts 319 and 326 ‑ 327.
I accept Ms Hasson's evidence.
Other reports
I have also had regard to the two other reports I received. They were not directed to the assessment required by s 7, of whether there is an unacceptable risk that the respondent would reoffend if not subject to an order. However, both reports were useful and I refer to relevant parts of those reports in subsequent sections.
Propensity - s 7(3)(c) factor
The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. It means[44]
that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.'
[44] GTR [178]. See also Griffiths [66].
Dr Wojnarowska noted that sexual deviance, particularly paedophilia, is one of the two most important risk factors for reoffending. The other is psychopathy, which is not present in the respondent's case.[45]
[45] ts 305. See also Ms Hasson at ts 319.
I am satisfied that the respondent continues to have a propensity to commit serious sexual offences in the future.
Pattern - s 7(3)(d) factor
There is no particular pattern in the respondent's offending, other than each offence being a sexual offence against a girl under 12.
Addressing causes and rehabilitation - s 7(3)(e) and (f) factors
It is apparent that little has been achieved in attempting to address the causes of the respondent's offending.[46] This is no doubt contributed to by the respondent's intellectual disability.
Antecedents - s 7(3)(g) factor
[46] See, for example, ts 321.
I set out the respondent's history and criminal record earlier.
Risk and need to protect - s 7(3)(h) and (i) factors
Dr Wojnarowska assessed the respondent's risk of reoffending as moderate. However, Dr Wojnarowska said that 'his risk of reoffending would elevate from moderate to high if the order was to be rescinded and all the conditions ceased'. Ms Hasson concluded that he posed an above‑average risk of reoffending if not subject to a supervision order.
There is an obvious need to protect the community from this risk. The types of offences the respondent may commit are likely to cause significant harm.
Other factors - s 7(3)(j) factor
An issue has arisen as to whether the funding available to provide the level of care and supervision that the respondent currently receives will be maintained. Currently, the funding comes from the Disability Service Commission. However, in the near future, the funding will depend on the National Disability Insurance Scheme (NDIS). The level of funding that will be granted remains uncertain.[47]
[47] Exhibit A page 470.
Any decrease in the level of supervision has the potential to increase the risk. I will say more about the funding issue shortly.
Conclusion
Having considered all of the s 7 factors, I am satisfied that there is an unacceptable risk that, if the respondent were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. It necessarily follows that I find that he is a serious danger to the community.
Supervision order?
Having found that the respondent is a serious danger to the community, the next issue is whether I should make a continuing detention order or a supervision order.
There is no suggestion that, if appropriate conditions are imposed, a supervision order would not adequately protect the community. The respondent has been on a supervision order for five years, without committing any sexual offences and with a high level of compliance with his conditions. None of the experts were of the view that a supervision order would not adequately protect the community. The DPP did not submit that a supervision order would not adequately protect the community. On the contrary, the DPP submitted that I should make a supervision order.
I am also satisfied that the respondent would substantially comply with the standard conditions of the order. He has done so for five years.
Potential reduction in funding
I earlier referred to the potential reduction in funding. I am satisfied that it is appropriate, indeed obligatory, to have regard to this potential in evaluating whether a supervision order should be made.[48]
[48] See Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 [101] ‑ [124].
I am satisfied that it is still appropriate to make a further supervision order.
The DPP did not submit that the respondent should not now be released on a supervision order, even taking into account the potential reduction in funding. This is because if decreased funding increased concerns about risk, there are two options available to the authorities.
First, if it caused a CCO to reasonably suspect that the respondent was likely to contravene a condition of the supervision order, the officer could seek an arrest warrant against the respondent, under s 21 of the DSO Act. The DPP could then apply, under s 22, for orders under s 23 of the DSO Act (which includes continuing detention orders) and for an order that the respondent be detained in custody until final orders under s 23 were made. The effect of this regime is such that the authorities could ensure that the respondent was brought back to court before any changes were made to the level of his supervision that might impact on the risk of reoffending.
Although the DPP would need to prove that the respondent was likely to contravene a condition of the supervision order, counsel for the DPP submitted that, if the level of funding was reduced to the point where it impacted on his risk of sexual reoffending, it would not be very difficult for the State to prove this. He also pointed out that the standard of proof for an order under s 23 is the balance of probabilities, not the higher standard that applies to proceedings such as this one.[49]
[49] ts 281 ‑ 282.
Second, the CEO of the Department of Justice may, with the DPP's consent, make an application to the court to amend the conditions of the supervision order under s 19 of the DSO Act. Again, this application could be brought before any changes were made to the level of his supervision.
In addition, counsel for the DPP advised that, if there was any change to the level of funding that would change the level of supervision, the DPP would be notified immediately, and would have sufficient time to bring the respondent back before the court before those changes took effect.[50]
[50] ts 283.
I accept the DPP's submissions.
Further, I note that Dr Wojnarowska was asked what her view of the risk of reoffending would be if there was a reduction in the number of hours that the support workers were able to attend the respondent's house. She said that, if the changes were gradual, the respondent was likely to do well. However, she said that if there were any sudden changes to his current arrangements, this would escalate his risk.[51] Dr Riordan was of the same view.[52] It is highly improbable that any such changes would be sudden.
[51] ts 310.
[52] ts 332.
I am satisfied that the possible changes in the level of funding do not make it inappropriate to make a further supervision order.
What conditions?
In her report, Dr Wojnarowska concluded:[53]
The current supervision arrangements have ensured community safety and in my opinion should not be altered.
I understand that there is a possibility of another tenant moving in to reside with [the respondent]: this would create an added stress for [the respondent] who will require additional support from staff in the initial phase. Any changes to his order during that period of time would be detrimental to his mental state and as such to the safety of the community.
I would therefore recommend that should [the respondent] be made subject to the DSO legislation again, none of the conditions be altered. I propose that the duration of the order be not less than five years.
[53] Exhibit A page 437.
Similarly, Ms Hasson concluded:[54]
Should [the respondent] be determined to be a Dangerous Sexual Offender and be subject to a further Supervision Order, it is recommended that if [the respondent] continues to live alone that he:
•Continues to be subject to a curfew at nighttime when not in the company of [Agency] staff; but that the curfew does not restrict his ability to engage in planned (accompanied) evening activities.
•Exclusion zones continue to apply in and around [the respondent]'s home to reduce the possibility of him befriending children in his neighbourhood.
•[The respondent] be subject to a Global Positioning System (GPS) device.
•Whilst it is acknowledged that the level of oversight provided by [the Agency], the curfew, supervision, monitoring and restrictions may have created an habituation or dependence on others and an external locus of control there is little evidence to suggest that any of these controls could be lessened at this time as [the respondent] has not acquired sufficient skills to self-regulate and self-manage. I note this is also the view of [the Agency] who voiced concern that they did not feel as though they could manage him without the additional supports and protocols in place. It is recognised that [the respondent] would still be a reportable offender post order.
•Attempts should be made to engage [the respondent] in formulating a risk management plan should he ever be in a situation when he is left alone unsupervised in the community. This should incorporate risk scenarios and planned responses.
•The possibility of [the respondent] living with a housemate should be revisited however it is not anticipated that any house mate would be responsible for supervising and monitoring [the respondent]'s whereabouts.
[54] Exhibit A page 459.
In the proposed management plan, Dr Riordan made a number of recommendations as to the training of Agency staff and strategies they might adopt in order to improve the respondent's independence. With one exception, none of her recommendations suggested any relaxation of the current conditions.
The curfew
The exception related to the curfew. In her report, Dr Riordan noted that there had been no opportunity to test how the respondent would behave if the curfew was not in place. She recommended that the curfew be removed or relaxed to enable his behaviour to be tested.[55] In her oral evidence, Dr Riordan clarified that she was suggesting that the duration of the curfew be reduced, not that the curfew condition should be removed. Dr Riordan suggested it could be relaxed so as not to commence until 8.00 pm or 9.00 pm.[56]
[55] Exhibit A page 471.
[56] ts 334.
In her oral evidence, Dr Wojnarowska said she would be reluctant to support any changes to the curfew arrangement in light of the current uncertainties in relation to funding.[57] Ms Hasson did not support any change to the duration of the curfew, but did recommend that there be more flexibility to accommodate when a planned, supervised activity takes longer than the curfew allows.[58]
[57] ts 311.
[58] ts 326.
It is a condition of the existing supervision order that the respondent be subject to a curfew, such that he is to remain at and not leave his approved address as directed by a CCO from time to time, which curfew will not be for more than 12 hours in any 24 hour period.
Pursuant to this condition, the CCO has directed that the respondent be subject to a curfew from 7.00 pm to 6.00 am.[59]
[59] ts 342.
I am not satisfied that adequate protection can be achieved without a curfew. Both Dr Wojnarowska and Ms Hasson consider it should not be removed. Dr Riordan's oral evidence clarified that she was not suggesting that the curfew condition should be removed. Accordingly, I would include a curfew in the conditions of a further supervision order. Whether the CCO chooses to relax the current regime, and under what conditions, is a matter for the CCO. However, I endorse Dr Wojnarowska's views. Any variation should wait until the funding issues have been resolved and the respondent has had time to adjust to a new housemate, should one be given to him. Even then, I would expect that the CCO would impose very strict conditions on any changes to the curfew arrangement, and monitor and evaluate the situation on an ongoing basis.
Urinalysis
In the Community Supervision Assessment report, Ms Comery noted that, pursuant to the existing conditions, the respondent attends urinalysis on a monthly basis. She said he had provided negative results to illicit substances on all occasions. Ms Comery said that she had discussed the condition relating to urinalysis testing with Dr Wojnarowska. She noted that Dr Wojnarowska had said that that condition could be removed. This was because the results of every urinalysis test were negative to any illicit substances, he had no history of substance use and substance use is not considered to be linked to his prior sexual offending. As a result, Ms Comery proposed that the condition be deleted.[60]
[60] Exhibit A pages 475, 479.
In her oral evidence, Dr Wojnarowska confirmed that this was her view.[61] Ms Hasson agreed that the condition should be deleted.[62]
[61] ts 302.
[62] ts 319.
I accept their evidence, and will not impose a condition requiring urinalysis.
Conditions of the supervision order
Both Dr Wojnarowska and Ms Hasson said that the conditions should be the same as the conditions on the current supervision order, with the exception of the urinalysis condition.[63]
[63] ts 310 and 326 ‑ 327.
I am satisfied that the conditions of the further supervision order should be as they recommend. Those conditions are set out in attachment 1.
Duration of the supervision order
Dr Wojnarowska said that the further supervision order should be for at least five years. She explained:[64]
He's still only a 50 year old man. He - he is as likely to have limited capacity in the next five years to - to adjust. His cognitive functioning is [not] going to improve. The paedophilia will be still there. So, in my view, we are not looking at major changes to [the respondent's] functioning in the next five years.
[64] ts 311.
I accept Dr Wojnarowska's opinion. The order should be for five years.
Commencement date of the further supervision order
It is appropriate that the further supervision order that I make takes effect immediately on the expiry of the existing supervision order, so that there is no gap in the supervision of the respondent. Parliament clearly intended that this would be the case. Section 8(4A) provides (emphasis added):
If ‑
(a)an offender is subject to a supervision order (the current order); and
(b)the current order is to expire within one year,
the DPP may file with the Supreme Court an application for orders under section 14 and for a Division 2 order[65] in relation to the offender, the Division 2 order to take effect on the expiry of the current order.
[65] A 'Division 2 order' is defined in s 3 of the DSO Act to mean 'a continuing detention order; or a supervision order made under s 17(1)(b)'.
However, the position is complicated by s 17(1)(b) of the DSO Act. As noted earlier, s 17 provides that, if a court dealing with an application for a Division 2 order finds that the offender is a serious danger, the court must do one of two things - make a continuing detention order under s 17(1)(a) or make a supervision order under s 17(1)(b). If the court decides to make a supervision order, the court must (emphasis added)
order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
It is necessary to construe each section, in the context of the DSO Act as a whole, to resolve the inconsistency.
Approach to statutory construction
As was recently said by the Court of Appeal in Mohammadi v Bethune,[66] '[s]tatutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'.
[66] Mohammadi v Bethune [2018] WASCA 98 [31]. See also [32] ‑ [36].
In Australian Unity Property Ltd v City of Busselton,[67] the Court of Appeal reiterated the primacy of the legislative text in determining legislative intention. The court emphasised that the meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.
[67] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] ‑ [85].
Section 19(1) of the Interpretation Act 1984 (WA) provides that the court may have regard to extrinsic material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b)to determine the meaning of the provision when ‑
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
The legislative history
Original enactment
Section 8(4A) was not in the DSO Act as originally enacted.
Section 17 was in the original DSO Act, but not in its current terms. In the original enactment, s 17(1)(b) did not include the words 'with effect from a stated date not earlier than 21 days after the date the order is made'. In its original form, it provided that the court may
order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
2016 amendments - insertion of s 8(4A) and amendment to s 17(1(b)
Section 8(4A) was inserted by the Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA). At that time, it provided:
If ‑
(a)an offender is subject to a supervision order (the current order); and
(b)the current order is to expire within one year,
the DPP may file with the Supreme Court an application for orders under section 14 and for a further supervision order under section 17(1)(b) in relation to the offender, the further order to take effect on the expiry of the current order.
Section 8(4A) allowed a court to make a further supervision order which would take effect on the expiry of an existing order. It was intended to allow, in effect, a supervision order to be extended without any interruption in its operation.
That this was the purpose of s 8(4A) is confirmed by the explanatory memorandum. The explanatory memorandum said that s 8(4A) was inserted to 'allow the court to make a further supervision order which is to take effect on the expiry of a supervision order. This will in effect mean that a new application can be brought to have the effect of extending the duration of a supervision order'.[68]
[68] Explanatory Memorandum, Dangerous Sexual Offender Legislation Amendment Bill 2015 (WA), in relation to cl 9 of the Bill.
Further, a fundamental object of the DSO Act is to provide for the detention or supervision of dangerous sexual offenders to ensure adequate protection of the community.[69] It would be contrary to that object if the conditions of a supervision order did not take effect immediately on the expiration of a previous supervision order.
[69] Section 4(a) of the DSO Act.
The Dangerous Sexual Offenders Legislation Amendment Act 2016 also amended s 17(1)(b) to its current form, requiring that the court making a supervision order had to order that it would take effect on a date not earlier than 21 days after the date the order was made. It appears that the purpose was to ensure that the authorities had sufficient time to put the necessary arrangements in place before an offender was released from custody on a supervision order.
The second reading speech confirms that this was the purpose. It was there said that the objective of the new requirement that the release of the dangerous sexual offender under a supervision order must not take effect for at least 21 days was 'to give the authorities responsible for the monitoring and management of the offender sufficient time to put any necessary policing arrangements into place'.[70]
[70] Western Australia, Parliamentary Debates, Legislative Assembly, 17 May 2016, 3070c‑3072a (Ms L M Harvey, Minister for Police).
However, such time is not required where, as here, the offender is already in the community on a supervision order. This appears to have been recognised by the explanatory memorandum which said that s 17(1)(b) was 'proposed to be replaced to include a 21 day deferral of the start of a supervision order, if made on first application under the DSO Act' (emphasis added).[71] Regrettably, the actual amendment to s 17(1)(b) did not express that limitation.
Narkle
[71] Explanatory Memorandum, Dangerous Sexual Offender Legislation Amendment Bill 2015 (WA), in relation to cl 17 of the Bill.
In Narkle [No 5], an application for a further supervision order had been made, under s 8(4A) and s 17(1)(b). By the time of hearing, the respondent's supervision order had expired.[72]
[72] In making preliminary orders, Hall J had ordered that the respondent be detained until the hearing of the application, but that that order would be suspended upon the respondent entering into an undertaking that he would continue to abide by the conditions of the original supervision order after it expired - see The State of Western Australia v Narkle [No 4] [2017] WASC 3.
Jenkins J wrote:[73]
The parties agree that s 8(4A) provides that the application for a further supervision order must be for a further supervision order to commence at the expiry of an original supervision order. That is, the DPP cannot apply for a further supervision order which would commence during the currency of an original supervision order and thereby achieve an amendment to the terms of an original supervision order.
The parties further agree that s 17(1)(b) empowers the court only to make a further supervision order that commences at least 21 days after the further supervision order is made. That is, the court cannot order a further supervision order to commence on an earlier date.
I will determine this application on the basis of the agreed construction of the relevant provisions. However, that does not mean that I do not think that there are issues with respect to the proper construction of those provisions. On any analysis of the statutory provisions, it seems odd that a qualification on the commencement date of a further supervision order was inserted in s 8(4A), which does not contain the power to make the further supervision order. It would have been logical to insert the qualification in s 17(1). If it had been inserted there the possibility of a time gap between the expiration of an original supervision order and the commencement of a further supervision order, which cannot come into effect less than 21 days from when it was made, would have been apparent.
It is not in the interests of public safety for there to be a 21 day period between the making of a further supervision order and its commencement, in circumstances such as exist in this case, where the original supervision order has expired. Yet, that is the mandatory effect of the Act s 17(1)(b). This court cannot alter the unambiguous meaning of the text of the Act. It is up to the legislature to change the law.
[73] Narkle [No 5] [13] ‑ [16].
Jenkins J was clearly of the view that the court had no option other than to make an order that would not commence for 21 days. However, it is apparent that her Honour did not purport to resolve the proper construction of the provisions. I therefore do not consider that I would need to be satisfied that her Honour was plainly wrong before reaching a different view.
2017 amendments - minor amendment to s 8(4A) and insertion of s 27A
Section 8(4A) was amended by the Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA) to its current form. The explanatory memorandum said that the amendment was made to permit the DPP to seek the full range of orders under Division 2, rather than only a further supervision order.
The Dangerous Sexual Offenders Legislation Amendment Act 2017 also inserted s 27A of the DSO Act. The explanatory memorandum said that the amendment would, among other things, 'cover the situation that occurred in State of Western Australia v Narkle [No 5] [2017] WASC 46; that is, where a further application against a person under a DSO supervision order is not yet disposed of and the current supervision order is due to expire, an interim supervision order can be sought under this new section 27A'.[74]
[74] Explanatory Memorandum, Dangerous Sexual Offender Legislation Amendment Bill 2017 (WA), in relation to cl 22 of the Bill.
Section 27A, titled 'Interim supervision orders' provides:
(1)In this section -
specified means specified by the court in an order made under this section.
(2)This section applies if ‑
(a)proceedings on an application made under section 8(1) or (4A), 19 or 22 are pending (the pending proceedings); and
(b)the person to whom the pending proceedings relate is not in custody; and
(c)the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under this section.
(3)If the person is subject to a supervision order which may otherwise expire before the pending proceedings are finally determined, the court may at any time in the pending proceedings order that the supervision order is to continue until the pending proceedings are finally determined or until another specified date.
(4)If the person has been subject to a supervision order which has expired, the court may at any time in the pending proceedings order that the supervision order is to be reinstated with effect from a specified date and is to continue until the pending proceedings are finally determined or until another specified date.
(5)In any other case, the court may at any time in the pending proceedings order that, with effect from a specified date and until the pending proceedings are finally determined or until another specified date, the offender is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
The purpose of s 27A was to give the court broad powers to make interim supervision orders to, among other things, ensure that there was no gap between the expiration of one supervision order and the commencement of another. I will say more about s 27A later.
Analysis
The inconsistency between s 8(4A) and s 17(1)(b)
Where a court decides to make a further supervision order in relation to a dangerous sexual offender who is already the subject of a supervision order, there is a conflict between s 8(4A) and s 17(1)(b). By s 8(4A), the order is to take effect on the expiry of the current order. However, by s 17(1)(b), the court must order that the new supervision order is not to take effect for at least 21 days. I will refer to this as the '21 day mandate'.
In my view, the inconsistency may be resolved by the maxim generalia specialibus non derogant.[75] The maxim is a general language convention[76] which may be translated as 'the general cannot detract from the specific'. It only applies 'where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation'.[77] If the maxim is applied, the general provision is construed as not applying to the subject matter of the specific provision to the extent of the inconsistency.
[75] See Pearce DC, Statutory Interpretation in Australia (9th ed, 2019) [4.51] ‑ [4.52] and Hoffman v Chief of Army [2004] FCAFC 148; (2004) 137 FCR 520 [8] ‑ [15] (Black CJ, Wilcox & Gyles JJ) and [215] (Lindgren J). See also BMW Australia Ltd v Brewster [2019] HCA 45 [206] (Edelman J).
[76] See Brisbane City Council v Amos [2019] HCA 27; (2019) 372 ALR 366 [36].
[77] Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 60 ALR 652, 657.
In the present case, the maxim would involve construing s 17(1)(b) such that the 21 day mandate did not apply to applications for further supervision orders under s 8(4A). My reasons for concluding that the maxim applies in this case are as follows.
First, there is an inconsistency between s 8(4A) and s 17(1)(b). They cannot be reconciled as a matter of ordinary interpretation. It is not possible to give them both full meaning.
Second, if s 17(1)(b) is not construed in this way, the words in s 8(4A) 'the Division 2 order to take effect on the expiry of the current order' would have no work to do when a further supervision order was made.
Third, s 17(1)(b) can be characterised as a general provision relating to supervision orders, while s 8(4A) can be seen as providing for the specific situation where a further supervision order is sought.
Fourth, not only are the two provisions contained in the same statute, the same amending statute introduced s 8(4A) and amended s 17(1)(b) to include the 21 day mandate. Parliament cannot have intended that the amendment to s 17(1)(b) would deprive the phrase 'the further order to take effect on the expiry of the current order'[78] in s 8(4A) of any effect.
[78] As it was originally enacted in this amending statute.
That this was not Parliament's intention is further supported by the purpose of the 21 day mandate in s 17(1)(b) and the purpose of the DSO Act as a whole.
The purpose of the 21 day mandate was to give the authorities time to put the necessary arrangements in place before an offender was released from custody on a supervision order. No time is needed when the offender is already on a supervision order.
The purpose of the DSO Act as a whole is to protect the community. This purpose is met by giving effect to the words in s 8(4A), so that there is no gap in the supervision of a dangerous sexual offender.
Section 27A
However, in case my construction is wrong, I have considered whether s 27A is sufficiently broad to permit an order to be made to ensure that there is no gap in supervision. I am satisfied that it is.
Section 27A permits interim supervision orders to be made before final orders are made in proceedings for, relevantly, a further supervision order under s 8(4A). It caters for the three possible scenarios: that a current supervision order may expire before the pending proceedings have been finally determined, that a previous supervision order has expired, and any other case. In each scenario, the court may, at any time in the pending proceedings, make an order that will have the effect of keeping the offender under supervision until the pending proceedings have been finally determined or until another specified date.
On their face, these words are wide enough to permit an order to be made under s 27A that would have effect for a period of 21 days after the pending proceedings have been finally determined. It would be necessary to make such an order before making an order under s 17(1)(b) as, once an order under s 17(1)(b) is made, the proceedings will have been finally determined and the power to make orders under s 27A will no longer be available.
I acknowledge that this construction has an air of contrivance. It would permit the court to make an order in pending proceedings that will have effect after the pending proceedings have been completed in order to avoid the effect of the 21 day mandate. However, it does not do violence to the language of s 27A and promotes its purpose, and the purpose of the Act as a whole.[79]
Conclusion
[79] See s 18 of the Interpretation Act 1984 (WA).
In case I am wrong about the construction of s 8(4A) and s 17(1)(b), I will, before making an order under s 17(1)(b), make an order under s 27A(5) that the respondent be subject to the conditions set out in attachment 1, with effect from today, for a period of 21 days.
Suppression order
The respondent's address
In 2011, a suppression order was made, prohibiting the publication in any form of the media of any particulars that may identify the respondent or his address.
In 2014, a suppression order was made in respect of any addresses at which the respondent may be accommodated in the future.
In these proceedings, the respondent sought that his address (house number, street name and suburb) continue to be suppressed. The DPP did not oppose the suppression of the house number and street name, and did not 'vigorously' oppose the suppression of the suburb.
The COMU supported the suppression of his address.[80] Ms Comery said that it supported the suppression for the protection and safety of the respondent and the Agency employees that attend his home.[81]
[80] ts 344.
[81] ts 344.
Ms Comery also gave evidence that the respondent's residence is rented though a private organisation. She said that it was extremely difficult to find private properties that could be rented on behalf of dangerous sexual offenders. She said that, if the respondent's address was not suppressed, the property could be 'compromised'. She said that vigilantism, or fear of vigilantism, could lead to the property being deemed unsafe for the respondent and his carers, and for any other dangerous sexual offenders.[82]
[82] ts 345 ‑ 347.
The principles of open justice are well settled. A suppression order should only be made 'if it is really necessary to secure the proper administration of justice in proceedings before it'.[83] Further, 'there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient'.[84]
[83]
[84]
I am satisfied on the material before me that it is necessary to make a suppression order to secure the proper administration of justice in these proceedings. The DSO regime is not aimed at further punishment. It is aimed at the protection of the community. If someone can be acceptably managed in the community, it is not in the interests of justice that they be kept in custody simply because accommodation cannot be found. The suppression order is not made to save the respondent embarrassment. It is to ensure that accommodation that is currently available to the respondent remains available to him. It is necessary to make a suppression order to protect the viability of the supervision order that I will make.
I accept that members of the community have a legitimate interest in being aware of the identity and presence of offenders in their community. However, the protection of the community is achieved by the conditions of the supervision order, which involve extensive monitoring and supervision of the respondent.
For these reasons, I am satisfied that it is necessary to make an order prohibiting publication of the respondent's address, being the house number, street name and suburb.
The name of the Agency
The DPP sought that the name of the Agency, and any subsequent agency that may be responsible for the respondent's support, be suppressed.
The COMU supports the DPP's application[85] and the respondent did not oppose it.
[85] ts 347 ‑ 348.
Ms Comery gave evidence that, if the Agency name was not suppressed, it could lead to the Agency refusing to work with the respondent for fear of their reputation being tarnished. She also said that it could lead to the Agency being refused entry to particular venues, on the basis that it has sexual offenders as clients.[86]
[86] ts 347 ‑ 348.
I am satisfied on the material before me that it is necessary to make an order prohibiting publication of the name of the Agency, and any subsequent agency that may be responsible for the respondent's support. If these details are not suppressed, it may be difficult to find an agency willing to support the respondent. The viability of the supervision order I will make depends upon there being an agency willing to support him.
Orders
I order that the respondent be subject to the conditions set out in attachment 1, with effect from today, for a period of 21 days.
I further order that, with effect from 21 days and for a period of five years, the respondent, when not in custody, is to be subject to the conditions outlined in attachment 1.
I order that there be no publication of the respondent's address, being the house number, street name and suburb, and no publication of the name of the Agency, and any subsequent agency that may be responsible for his support.
ATTACHMENT 1
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address.
Report to and receive visits from, a Community Corrections Officer as directed by the court.
Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).
Not leave or stay out of the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.
Be subject to electronic monitoring under section 19A.
ADDITIONAL CONDITIONS
Residence
Take up residence at [address suppressed] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.
Reporting to a CCO and supervision by a CCO
Report to a CCO as directed on the day of an Order being imposed.
Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO.
Remain under the supervision of an Agency, or any other subsequent service provider, employee as directed by a CCO at all times as directed by the CCO (which includes for the purposes of section 19A and section 19B of the Dangerous Sexual Offenders Act 2006).
Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual reoffending, as directed by a CCO.
Reporting to WA Police
Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your Order being imposed and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate.
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 or 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 Officer believes to contravene the conditions of this order.
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the Dangerous Sexual Offenders Act.
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice; or is conducted in a manner approved in advance by the CCO, such latter approval being not to be given except with the express consent of the victim.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture and must avert your gaze from such victim at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to the CCO or Police.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K of the Criminal Code1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not possess, or 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 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Medications/Mental Health
Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO and engage with and obey all instructions of the treating practitioner with regard to treatment and medication.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of reoffending and compliance with treatment to the Department of Justice.
Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO.
Prevention of high-risk situations
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
a.the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
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 interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide details of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.
Report to your CCO on the next occasion you report to that person or agency the formation of any domestic, romantic, sexual or otherwise intimate relationship by you with a person who has children under the age of 18 years in their care either full time or part time.
Not conduct computer searches for, nor collect or possess in either electronic or permanent form, images of children, whether indecent or not, with the exception of images of your immediate family that are not indecent images. Possession of such images depicting a child or children may be authorised by a CCO.
Whilst in any public place, not be in present possession of any children's toy, game or confectionary capable of constituting an enticement to children, unless such possession is for a legitimate purpose.
Not form any domestic relationship with a person who has a child or children under the age of 18 years in their care either full time or part time.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Archer20 DECEMBER 2019
10
16
1