The State of Western Australia v Jonsson [No 4] - [2024] WASC 493

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JONSSON [No 4] [2024] WASC 493
CORAM:   FORRESTER J
HEARD:   29 NOVEMBER 2024
DELIVERED          :   29 NOVEMBER 2024
FILE NO/S:   SO 1 of 2011
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

STEPHEN MICHAEL JONSSON
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 - Where respondent declared to be a dangerous sexual offender under the Dangerous Sexual Offenders Act 2006 (WA) (repealed) - Where supervision order set to expire - Further application for restriction order - Preliminary hearing - Whether reasonable grounds for belief that offender might be declared a high risk serious offender - Whether interim supervision order should be ordered to continue - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)

Result:

Interim supervision order to continue

Category: B

Representation:

Counsel:

Applicant	:	Mr D McDonnell
Respondent	:	Mr R Wilson

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Mr R Wilson

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

Director of Public Prosecutions (WA) v Jonsson [2012] WASC 439
Director of Public Prosecutions (WA) v Jonsson [No 2] [2014] WASC 275
The State of Western Australia v Jonsson [No 3] [2019] WASC 463
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

FORRESTER J:

(This judgment was delivered extemporaneously on 29 November 2024 and has been edited from the transcript).

Introduction:

On 19 November 2012, McKechnie J declared the respondent to be a dangerous sexual offender under the repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) and ordered that he be detained for care, control or treatment.[1]
[1] Director of Public Prosecutions (WA) v Jonsson [2012] WASC 439.
On 1 August 2014, McKechnie J released the respondent subject to a supervision order for a term of 5 years, effective from 6 August 2014.[2]
[2] Director of Public Prosecutions (WA) v Jonsson[No 2] [2014] WASC 275.
On 20 December 2019, Archer J ordered that Mr Jonsson be subject to a further supervision order for 5 years, from 10 January 2020.[3]
[3] The State of Western Australia v Jonsson [No 3] [2019] WASC 463.
Accordingly, the respondent's supervision order will expire on 9 January 2025.
On 6 November 2024, the State of Western Australia applied for a further restriction order in respect of the respondent under the High Risk Serious Offenders Act 2020 (WA) (Act).
This is the preliminary hearing in respect of the State's application. The main purpose of a preliminary hearing is for the court to decide whether there are reasonable grounds to believe that the court might find that the respondent is a high risk serious offender within the meaning of the Act.[4]
[4] High Risk Serious Offenders Act 2020 (WA) s 46(1) (Act).
In my view, there are reasonable grounds for such a belief. Accordingly, I order that the matter be listed for final hearing, appropriate reports to be prepared, and that the supervision order made by Archer J on 20 December 2019 continue until the pending proceedings are finally determined.
These are my reasons for doing so.

Legal principles

The State's application was made pursuant to s 36 of the Act, for a restriction order to be imposed in relation to the respondent under s 48 of the Act.
The respondent is a serious offender under restriction, as that phrase is defined in s 3 of the Act.
As noted above, pursuant to s 46(1) of the Act, the primary purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that Mr Jonsson is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the person in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[5]
[5] Act s 7(1).
A 'serious offence' within the meaning of the Act includes offences of indecent dealing with a child under 13 years.[6]
[6] Act s 3, sch 1 div 1 sub div 3 item 16.
A determination that a person is a 'high risk serious offender' requires proof to a high degree of probability. However, at the preliminary hearing stage, the threshold test is lower. At a preliminary hearing, a judge does not need to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. For there to be 'reasonable grounds' for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[7]
[7] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The evidence

In support of the application, the State relied upon an affidavit of Tse Chee Loo affirmed 6 November 2024, containing the respondent's criminal history and several reports and assessments in relation to him.
I have considered all of the evidence and need not set it out in detail. Relevant features of it include the following.

Serious offences

The offences which render the respondent liable to be dealt with under the Act (index offences) are three offences of indecently dealing with a child under 13 years. The offences were committed in 2004, 2006 and 2010. I respectfully adopt the summary of the respondent's criminal history as described by McKechnie J in Director of Public Prosecutions v Jonsson.[8]
[8] Jonsson [7] - [19].
Various reports refer to other allegations of sexual offending against children or admissions made by the respondent to inappropriate touching or conduct on his part, for which the respondent was not charged.

Other criminal history

On 12 December 2014, the respondent was convicted of one charge of contravening a requirement of a supervision order contrary to the DSO Act. The respondent was directed by his Community Corrections Officer to attend a supervision meeting. The respondent's carer was present when the direction was given. The respondent failed to attend the meeting and said he refused to follow the conditions in his supervision order. He was given an extension to comply but failed to do so and for that offence he was fined $200.

Personal circumstances and background

The respondent's circumstance and background were summarised by McKechnie J as follows:[9]
[The respondent] is a 48-year-old man [now 59] 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.

Reports

[9] Jonsson [4] - [6].

The respondent has been diagnosed with paraphilia, paedophilia subtype, sexual attraction to females.
In September 2009, the respondent completed a Sex Offending Program, involving six one hour individual counselling sessions. The respondent was cooperative but there were some indications that he might not fully appreciate the wrongfulness of his conduct. He was able to demonstrate an understanding of the impact of his offending on others, but did not express any empathy for his victims. He was also able to demonstrate an awareness of consequential thinking. The facilitator considered that the respondent had treatment needs related to emotional management.[10]
[10] Affidavit of Tse Chee Loo affirmed 6 November 2024, Annexure AD (Loo Affidavit).
Joanne Collyer, Senior Counselling Psychologist, stated in a report dated 3 September 2018 that the respondent had made treatment gains in regard to psychological insight of his sexual offending, but they were limited due to the respondent's expressive language difficulties, mild intellectual impairment and limited motivation and/or ambivalence to address his issues. While the respondent's intellectual impairment created some uncertainty, he was assessed as being in the moderate‑high category using a combination of risk assessment tools.[11]
[11] Loo Affidavit, Annexure AF.
In October 2019, Dr Kathryn Riordan, a Senior Forensic and Clinical Psychologist, expressed some concern that the ongoing supervision of the respondent, and the relatively intensive assistance provided to the respondent by a non‑government agency, might have reduced his ability to live independently and carry out tasks of everyday living which he was once able to perform. Dr Riordan also reported that the respondent had expressed considerable anxiety at the prospect of restrictions upon him, such as GPS monitoring, being relaxed, and that he appeared to regard those measures as security for him. It is noted that the respondent was similarly apprehensive when the prospect of being released from his initial continuing detention order was raised, as he liked the structure and relationships he developed in the custodial setting.[12]
[12] Loo Affidavit, Annexure AG.
Also in 2019, Ms Julie Hasson reported that the impression gained from the respondent's highly regulated and controlled living circumstances was that he had become 'institutionalised' in the community, but that the predictability, routine, familiarity and minimisation of exposure to destabilisers or stressful events combined with firm boundaries that are consistently reinforced have contributed to the respondent's improved emotional and behavioural regulation.[13]
[13] Loo Affidavit, Annexure AH.
The most recent report available was authored by Dr Gosia Wojnarowska and is dated 7 May 2024.[14] Dr Wojnarowska has previously assessed the respondent on at least two occasions.
[14] Loo Affidavit, Annexure AJ.
Dr Wojnarowska opined that the frequency of the respondent's sexually deviant behaviour was dependent on his access to children. He is capable of grooming families to gain access to children, but had also demonstrated a willingness to offend against a stranger in the absence of access to families. He has always offended against prepubescent female children, and in familial settings, targeted the youngest child.
The respondent has complied with the conditions of his most recent supervision order, and has not incurred any contraventions or instances of non-compliance. He has had fortnightly supervision sessions at home with a support worker, in which he has cooperated, although he has continued to be avoidant when discussing topics he finds uncomfortable.
The respondent reported that his life is 'great' where he is residing, he engages in numerous activities including soccer, music, swimming and social events. He enjoys playing Xbox, completing jigsaws and tending to his chickens, fish and vegetable garden. He is supported by five carers who rotate on shifts. He describes those carers as his 'friends'.
The carers support the respondent with his medications, daily living activities, and complying with his reporting conditions. The carers denied observing any behaviour problems in the respondent. One carer did note that the respondent would look at children on the street but also that he would immediately divert his sight when reminded that it was not appropriate.
On questioning by Dr Wojnarowska, the respondent said he did not want the order removed. He said that he liked having the GPS bracelet as it keeps him 'safe' if 'anything happens' referring to suspected child sexual abuse. He stated that if the supervision order was to cease, he would no longer leave his home or his room, he would disengage from all activities in order to protect himself and not become a suspect of sexual crimes.
Dr Wojnarowska's diagnosis remained one of paedophilia, nonexclusive type attracted to female children. The respondent also fulfilled the criteria for mild cognitive impairment and phonological speech impairment.
Dr Wojnarowska assessed the respondent's risk of re‑offending using a number of risk assessment tools. She opined that, if not supervised, the respondent's risk scenarios likely include him seeking contact with an unsupervised child on the street and enticing them to a secluded area. However, he is most likely to befriend a family which has young girls, using his demonstrated capacity to appear 'harmless, funny and helpful'. In either scenario he would commit a sexual offence against the child, with escalation of offending a possibility, given time and opportunity.
Dr Wojnarowska observed that the respondent had thwarted all attempts to address his offending, leaving his offence cycle as largely unknown. He has not addressed emotional regulation deficits and his dominant risk management strategy is one of avoidance and external control. Should his supervision, support and engagement in positive activities diminish or he feels rejected or abandoned in any way his risk of re‑offending might become acute and he may re-offend as a means of returning to a more structured environment such as prison or supervision.
The following risk factors were identified by Dr Wojnarowska: victim selection and offence pathways, emotional coping ability, self-efficacy, relationships, impulsivity, and situational consistency.
Dr Wojnarowska considered the respondent's risk of serious sexual re‑offending to be high if he were not subject to supervision. She described the respondent as a highly institutionalised person who relies heavily on external factors such as the presence of his support workers and GPS bracelet to feel confident in his community, and as a result of his intellectual disability, has struggled to develop risk management strategies of his own.
If there is a change to the respondent being well managed and supported in the community, including if his GPS bracelet is removed, he is likely to decompensate and regress to his previous malfunctioning, isolating himself in his room, experiencing themes of loneliness, unresolved issues pertaining to his childhood and perceived rejection by others in the community which have been recurrent in his post offence disclosures and are significant risk factors in his future offending.

Submissions

The State has submitted that I can be satisfied that there are reasonable grounds for believing that a court might find that the respondent is a high risk serious offender.
So much is conceded on behalf of the respondent.

Disposition

In my view, there are reasonable grounds for believing that a court might find that the respondent is a high risk serious offender. The most recent expert report confirms the diagnosis of paedophilia remains, there is evidence that the respondent continues to exhibit some behaviours associated with that diagnosis, and, importantly, that he relies on external controls and supports to abstain from further offending. The respondent has been assessed as being high risk of serious sexual offending, in the absence of restriction.
In my view, in the interim, the supervision order must continue until the application for restriction is finally determined, and pursuant to s 58(3) of the Act, I order that it do so.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
20 DECEMBER 2024