The State of Western Australia v JXK [No 3]
[2023] WASC 23
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JXK [No 3] [2023] WASC 23
CORAM: LUNDBERG J
HEARD: 20 DECEMBER 2022 & 6 FEBRUARY 2023
DELIVERED : 10 FEBRUARY 2023
FILE NO/S: SO 2 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JXK
Respondent
Catchwords:
Criminal law - High risk serious offender - First review - Whether respondent is a high risk serious offender - Whether the continuing detention order should be affirmed or supervision order made - Availability of accommodation suitable for the Respondent - Supervision order made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order rescinded and supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | B D Meertens |
| Respondent | : | S F Rafferty |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Seamus Rafferty & Associates |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 39
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Hart [No 3] [2010] WASC 253
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Teague [No 4] [2013] WASC 420
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Wesley [No 2] [2015] WASC 168
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Director of Public Prosecutions for Western Australia v Stephenson [2015] WASC 496
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
Garlett v The State of Western Australia [2022] HCA 30
Hone v The State of Western Australia [2007] WASCA 283
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Minister for Home Affairs v Benbrika (2021) 95 ALJR 166; 388 ALR 1
R v Hall (1988) 36 A Crim R 368
The State of Western Australia v ACG [2022] WASC 427
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Jonsson [No 3] [2019] WASC 463
The State of Western Australia v Kyles [No 5] [2020] WASC 265
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Narrier [No 2] [2022] WASC 49
The State of Western Australia v Newland [No 3] [2022] WASC 43
The State of Western Australia v Patrick [No 4] [2020] WASC 48
The State of Western Australia v Tomasovich [No 2] [2022] WASC 402
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330
Vella v Commissioner of Police (NSW) (2019) 269 CLR 219
Table of Contents
A. Overview and Summary
B. Procedural History
C. Accommodation Availability
Background
Hearing on 20 October 2022
Hearing on 20 December 2022
Ruling on evidence
Comment
A further development
D. Factual background
E. Statutory framework and relevant principles
F. Evidence on the Review Application
Introduction
Dr Mark Hall - Consultant Forensic Psychiatrist
Dr Kathryn Riordan - Senior Forensic & Clinical Psychologist
Dr Ben Bannister - Forensic Psychologist
Ms Aimee Goode - Team Leader with COMU
G. Disposition
High risk serious offender
Substantial compliance with standard conditions of a supervision order
Should a Supervision Order be made or the CDO affirmed?
Commencement date and duration of the Supervision Order
H. Suppression Orders
I. Conclusion
ANNEXURE A
LUNDBERG J:
A. Overview and Summary
On 10 January 2022, the State of Western Australia applied for an order that the Respondent's detention under the continuing detention order (CDO) made by the court on 20 June 2021 be reviewed as soon as practicable after 10 June 2022 (Review Application). The Review Application was made pursuant to s 64(2)(a) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). This is the first of the periodic reviews required by virtue of s 64(2) of the HRSO Act.
The Respondent's circumstances, so far as the HRSO Act is concerned, have been the subject of two earlier decisions of this court. These reasons should be read together with those earlier decisions, although as I have now made orders to suppress the name of the Respondent, I will only refer to those earlier decisions in general terms.
First, I refer to the decision of the court in [redacted].[1] As explained in that decision, his Honour was satisfied at that time that there were reasonable grounds for believing that a court might, under s 7(1) of the DangerousSexual Offenders Act 2006 (WA) (DSO Act), find the Respondent to be a serious danger to the community. Interim detention orders were made for the Respondent to be detained in custody until further order.
[1] I have made suppression orders in respect of this matter. Accordingly, the references to the earlier decisions will be redacted.
Second, I refer to the decision of the court in [redacted]. As explained in that decision, the court was satisfied at that time that the Respondent was a high risk serious offender and should be made subject to a CDO pursuant to s 48(1)(a) of the HRSO Act.
At least initially, the State's position on the present Review Application was that the Respondent remained a high risk serious offender (HRSO) and sought an outcome that the court affirm the CDO pursuant to s 68(1)(b)(i) of the HRSO Act. That is, the State submitted that there had been no material change in the Respondent's circumstances since the court's review in June 2021. I refer in this regard to the State's Outline of Submissions dated 8 July 2022 at [2] and [156] - [160] (State's Submissions).
At the hearing of the Review Application before me on 20 December 2022, the State maintained the Respondent was a HRSO, however, the State's position as to whether a supervision order should be made pursuant to s 68(1)(b)(ii) of the HRSO Act (Supervision Order) had changed significantly. Specifically, the State submitted through counsel that it was not positively seeking an order that I affirm the CDO made by the court pursuant to s 68(1)(b)(i) of the HRSO Act (indeed, it did not oppose the rescission of the CDO) and it did not oppose the making of a Supervision Order.[2] The change in the State's position arose from a change in the availability of suitable accommodation for the Respondent upon release and from the fresh opinions of the Respondent's supervising health practitioners.
[2] ts 300.
At the hearing, counsel for the Respondent conceded that the Respondent was capable of being characterised as a HRSO pursuant to the HRSO Act.[3] However, counsel for the Respondent pressed for orders that I rescind the CDO made by the court and make a Supervision Order.
[3] ts 298.
The Court was therefore faced with the position, at the hearing, that no party before it was actively seeking to have the CDO made by the court affirmed, the State was not opposing the making of Supervision Order, and the Respondent was positively seeking that a Supervision Order be made. Nonetheless, given the statutory framework, I am required to determine whether I am so satisfied of the matters under the HRSO Act.
In particular, I am required to address the following key issues in the context of this Review Application:
1.Whether the Respondent is a HRSO as that term is defined in s 7(1) of the HRSO Act, having regard to the factors in s 7(3) of the HRSO Act. If the answer to this question is 'no', I am obliged to rescind the CDO and no question of the making of a 'restriction order' for the purposes of the HRSO Act arises.
2.If the Respondent is a HRSO, the next question is whether I am satisfied on the balance of probabilities that the Respondent will substantially comply with the standard conditions of a Supervision Order In the event I am not so satisfied, I must affirm the CDO.
3.If I am satisfied the Respondent will substantially comply with the standard conditions of a Supervision Order, it remains to consider whether I should either affirm the CDO or rescind the CDO and make a Supervision Order (and in the latter case, also consider the appropriate conditions which should be imposed as part of that Supervision Order).
For the reasons which follow, I am satisfied the Respondent remains a HRSO for the purposes of the HRSO Act. I am also satisfied on the balance of probabilities that the Respondent will substantially comply with the standard conditions of a Supervision Order and that those conditions will ensure the community is adequately protected from the risk the respondent will commit further serious offences.
I therefore propose to rescind the CDO and make a Supervision Order for a period of 7 years, subject to the conditions set out in Annexure A to these reasons.
B. Procedural History
In February 2020, the State first applied for orders under the DSO Act. The State contended that the Respondent was a serious danger to the community and sought an order that he be detained in custody for an indefinite term or, if released, be made subject to a supervision order under the DSO Act. [4]
[4] On 26 August 2020, the DSO Act was repealed, and the HRSO Act came into effect. Under the transitional provisions of the HRSO Act, the State's application was taken to have been made under s 35(1) of the HRSO Act: HRSO Act s 124.
The hearing of the State's application came on for final hearing before the court on 31 March 2021 (Initial Hearing). On 10 June 2021, the court found the respondent was a HRSO and should be made subject to a CDO pursuant to s 48(1)(a) of the HRSO Act.[5]
[5] [redacted].
As I have already noted, on 10 January 2022, the State applied for a review of the CDO pursuant to s 64 of the HRSO Act. The course of the Review Application is summarised in the table below:
Date
Event / Court Hearing
10 Jan 2022 Review Application filed by the State. 17 Jun 2022 Orders made by consent to adjourn the Hearing from 1 July 2022 to 15 July 2022. The adjournment was required because the Respondent was in isolation due to COVID-19 and it was not possible for all reports required for the review to be completed in time. 15 Jul 2022 Hearing of the Review Application. This Hearing was adjourned on the application of the Respondent to 20 October 2022, with a directions hearing listed for 20 September 2022. 20 Sep 2022 Directions hearing. 20 Oct 2022 Hearing of the Review Application before Archer J. This Hearing was adjourned on the application of the Respondent to 20 December 2022. 20 Dec 2022 Hearing of the Review Application before Lundberg J. 6 Feb 2023 Resumed hearing of the Review Application before Lundberg J.
The HRSO Act requires that the first periodic review be undertaken as soon as practicable after the end of the period of 1 year commencing when the offender is first in custody on a day on which the offender would not have been in custody had the CDO not been made.[6] That is, in effect, as soon as practicable after 10 June 2022. The additional delay in this case has arisen because of the COVID-19 circumstances referred to above and the two adjournments of the Review Application.
[6] HRSO Act s 64(2)(a).
As to the adjournments of the Review Application, which were made on the application of the Respondent, it is appropriate I explain the background thereto. The adjournments were principally sought for two reasons: (1) because of the unavailability of suitable accommodation for the Respondent, in the event it was considered appropriate that he be made subject to a Supervision Order and (2) because the therapist with whom the Respondent had a established a therapeutic relationship had resigned.
As to the accommodation issue, given its overall significance, I have explained the background to that issue in section C below.
As to the therapist issue, I observe that the change in therapist was unconnected with any conduct on the part of the Respondent. The therapist with whom the Respondent had developed a therapeutic relationship (Dr Kathryn Riordan) had left the employment of the Department. As a result, a new therapist was assigned to the Respondent (Mr Summerton). Necessarily, some time is needed for an offender to develop a relationship with their assigned therapist. As recently as October 2022, it was asserted by counsel for the State that the Respondent was still in the process of building a rapport with Mr Summerton, the new treating psychologist.[7]
[7] ts 264.
C. Accommodation Availability
Background
The means by which accommodation is made available for persons such as the Respondent is the responsibility of the Community Offender Monitoring Unit (COMU), a unit within Corrective Services. This forms part of the Department of Justice. COMU coordinates the HRSO supported accommodation program. This program is managed by an external organisation, Uniting WA, which also provides services described as 'Specialist Re-entry Services' for the HRSO program.[8]
[8] Community Supervision Assessment report dated 7 July 2022 (Exhibit D, pg 1440); oral evidence of Ms Aimee Goode, a representative with COMU, at ts 367 - 368; and letter from Uniting WA dated 18 November 2022 (Exhibit J).
The unavailability of accommodation was of undoubted significance to the Review Application. In general terms, the unavailability of any such accommodation would leave the court with little, if any, discretion to consider making a Supervision Order. This is because, without an appropriate housing option, the weight of the medical evidence is that the Respondent is not suitable for release into the community. This would work a serious injustice to the Respondent for a number of obvious reasons, not least of which is that a final determination on this Review Application to affirm the CDO would lead to a lengthy delay before the further periodic review required by s 64(2)(b) of the HRSO Act, during which time the Respondent would need to remain in custody.
This delay would be at least 12 months, which is the minimum time before a further review could be initiated by the Respondent himself and, even in that scenario, an offender initiated review application is only permitted with the leave of the court in 'exceptional circumstances'.[9] If leave for an offender initiated review is not granted, the minimum time for a further review is 2 years.[10]
[9] HRSO Act s 65(1) and s 65(2).
[10] HRSO Act s 64(2)(b).
At the hearing on 15 July 2022, the presiding Judge described the circumstance created by the unavailability of suitable accommodation as 'deeply unsatisfactory' and 'frustrating'.[11] Counsel for the Respondent at that hearing, in support of the adjournment application, contended that the State was 'entirely fettering' the court's discretion on the Review Application,[12] given it was fundamentally the responsibility of the State to determine whether such accommodation could be made available for a particular offender. It is difficult to argue against that proposition, with respect.
Hearing on 20 October 2022
[11] ts 221 - 222.
[12] ts 223.
The accommodation issue attracted further scrutiny at the listed hearing of the Review Application on 20 October 2022 before Archer J.
At that hearing, once again, no suitable accommodation was available for the Respondent. Oral evidence was led at the hearing from Ms Aimee Goode, a representative with COMU, to clarify the housing availability question. It was submitted on behalf of the Respondent that the combined effect of the unavailability of suitable accommodation and the need for further time to allow the Respondent to build a therapeutic relationship with Mr Summerton necessitated an adjournment. Counsel for the Respondent sought the adjournment by reference to the interests of justice and by reason of matters of prejudice to the Respondent. More fundamentally, given the unavailability of accommodation and the State's control of that issue, counsel for the Respondent submitted that a decision by the court on the Review Application, in the circumstances which then obtained, would involve this court acting in a manner inconsistent with the traditional justice process and lacking decisional independence.
On the argument developed by counsel for the Respondent, these matters gave rise to similar institutional integrity and validity questions as were agitated in Garlett v The State of Western Australia [2022] HCA 30. Specifically, counsel for the Respondent contended that it attracted the principle established in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.[13] In short, the principle is that, by reason of the integrated system of courts postulated by the provisions of Chapter III of the Constitution, State legislation which purports to confer upon a State Supreme Court a function which substantially impairs the institutional integrity of such a court in its role as a repository of federal jurisdiction is repugnant to or incompatible with that role and is therefore invalid.[14]
[13] Further developed in later cases such as Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Vella v Commissioner of Police (NSW) (2019) 269 CLR 219, and Minister for Home Affairs v Benbrika (2021) 95 ALJR 166; 388 ALR 1.
[14] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 103.
Counsel for the respondent made the following submission (after referring to Edelman J's reasons for decision in Garlett v The State of Western Australia at [244]-[245]):
It's staggering that that is what the…state is inviting you to do today by pressing on you to proceed. They are asking for you to act unjudicially. They are asking for you to act without discretion. They say it's there in the Act, but the practical effect by virtue of the concession that was made you can't release him if he doesn't have a house leads to the irresistible conclusion that in all of the circumstances, your Honour, if you were to proceed today, it would run contrary to Kable.[15]
[15] ts 281.
Nonetheless, the State pressed for a final determination of the Review Application.
After summarising the respective positions of the parties and the issues in dispute, Archer J delivered brief ex tempore reasons for granting the adjournment.[16]
[16] ts 281 - 288.
Her Honour noted that the Respondent was seventh in the waitlist for a house under the HRSO supported accommodation program, and only six houses were available in total. The total number of houses had not changed over time. There were also three people ahead of the Respondent in the waitlist who were due to have their detention reviewed in November 2022.
Her Honour observed that, through no fault of his own, the Respondent had lost the therapist with whom he had established a therapeutic relationship and, again through no fault of his own, there are not enough houses available for people who the court may consider suitable to be released and who need HRSO supported accommodation.
Her Honour then described the options available to the Respondent in those circumstances. If he proceeded with the Review Application before her Honour, the only outcome, given the absence of accommodation, would be for the court to affirm the CDO. In this regard, the State's position was that the Respondent could not safely be released in the absence of accommodation, and the expert evidence was to the same effect.
The alternative was for the Respondent to seek an adjournment in the hope that when the matter returned to the court, there would be a house available, and that by that time, the Respondent would have established a positive therapeutic relationship with Mr Summerton. In that event, her Honour noted the judge would be able to evaluate all of the material and make an informed decision about whether or not it was safe to release the Respondent into the community and assess the issues required under the HRSO Act, rather than basing a decision on the fact there was simply no accommodation available. This alternative was described by her Honour as the least unsatisfactory from the Respondent's perspective, and caused no prejudice to the State, and accordingly acceded to the adjournment application.
Her Honour indicated there was some reason to be hopeful that by the time the matter next came before the court, there would be accommodation for the Respondent and the Respondent would have established a therapeutic relationship with his new counsellor.
Hearing on 20 December 2022
So it was that the Review Application was adjourned. The hopefulness expressed by Archer J in her reasons proved prophetic as the evidentiary position had developed somewhat when the matter returned for hearing before me in late December.
The manner in which an accommodation option emerged which was suitable for the Respondent, shortly before the hearing on 20 December 2022, after some months during which the State indicated in clear terms that no accommodation could be made available, was an issue which caused some consternation with counsel for the Respondent. With respect, that was not surprising and entirely understandable.
It was also an issue which counsel for the Respondent wished to explore with Ms Goode, through cross-examination. I ruled during the hearing that questions directed to seeking an explanation from Ms Goode as to why an accommodation option was found for the Respondent in the period between October 2022 and the hearing before me on 20 December 2022 were not relevant and would not be allowed. However, I also ruled as being relevant and proper, questions directed at eliciting evidence which explained the impact that the availability of housing had had on the Respondent, as to his emotional position, his degree of concurrence and his agreement to participate in the housing programs offered by COMU and Uniting WA.
A summary of the oral submissions made by counsel on these matters and my ruling on the evidence during the course of the hearing is set out below.
Ruling on evidence
During the course of the hearing on 20 December 2022, counsel for the Respondent sought to question Ms Aimee Goode, the Team Leader within COMU, as to the reasons why an accommodation option had 'suddenly become available in circumstances where it was made very clear [at the earlier hearing before Archer J] that it was highly unlikely that a house would become available'.[17]
[17] ts 379.
Counsel for the State objected to this line of questioning on the grounds of relevance. Oral submissions were made by the parties on the objection.[18]
[18] ts 379 - 391.
The position of the Respondent was that the issue sought to be raised by the question was relevant and proper. Counsel indicated that the accommodation availability issue attracted broad public policy considerations. Counsel noted that, at the hearing in October 2022 before Archer J, he had indicated that he was intending to subpoena certain representatives of State Government, including Directors-General and the relevant Minister, to explore the accommodation availability issue before the court. At that hearing, counsel for the Respondent also broadcast his intention to raise a Kable point at the next hearing, as I have noted above.[19]
[19] ts 387 - 388.
Counsel for the Respondent submitted that the accommodation availability issue had implications not just for the Respondent's matter, but for other review applications under the HRSO Act which come before this court. Counsel submitted that these recent developments demonstrated that when the State is put in a position where a litigant is prepared to take steps to obtain a 'fair hearing' (such as by proposing to elicit evidence through senior Government officers by way of subpoenas), the State will act and will do something.[20]
[20] ts 388.
Counsel for the Respondent reiterated the broader public policy considerations which were exposed by the proposed line of questioning. Counsel observed that it was not right that the discretion of Judges in this court should be fettered by the fact that preconditions for the making of supervision orders cannot be satisfied (that is, because there is no provision for additional accommodation). Counsel noted that the evidence adduced at the hearing in October 2022 was to the effect that, during the currency of the DSO Act, there were six houses available as part of the accommodation program. Since the introduction of the HRSO Act, which counsel noted had a broader reach than the DSO legislation, there were still only six houses available. Counsel's submission was that no additional resources had been deployed by the State to address this issue.
Counsel for the Respondent also observed that the State had opened its case at the hearing on 20 December 2022 by referring to the new accommodation option for the Respondent as a 'special arrangement'. Counsel for the Respondent indicated that the formulation of the State's opening meant the manner in which the accommodation had became available was relevant and he was entitled to ask questions of Ms Goode to address and explore this matter. The opening address made by the State was in part as follows:[21]
The house that is on offer to the respondent is not under the supported accommodation program. Reading the update CSA report, it's a house which Uniting WA is leasing from the Department of Communities under some contract and they are making a special arrangement or entering into – they're prepared to enter into a special arrangement with the respondent so that he can take up occupation in that house.
[21] ts 309.
Counsel for the Respondent then indicated he was hesitant to use the word 'special', but again stated that the Respondent was being treated in a different way to some of the other offenders who were waiting for houses.[22]
[22] ts 309.
Counsel for the State indicated that the recent developments regarding the availability of accommodation had taken him by surprise.[23] Be that as it may, counsel for the State maintained that the proposed line of questioning was irrelevant and he expressly rejected any adverse inference (from the Respondent) to the effect that the State had 'something to hide'.
[23] ts 390.
Counsel for the State contended that the Respondent's own submissions, insofar as they pointed to the purported relevance of the accommodation issue to other cases before this court, demonstrated that the proposed line of questioning was irrelevant.
The State urged me to focus only on those circumstances relevant to the Review Application filed by the State which was presently before the court. That required an examination of matters specific to the Respondent. In this regard, it was submitted that the true issue of relevance was whether accommodation was in fact available, so that this court could consider that as part of the exercise of the discretion to decide whether a Supervision Order ought to be made. As the State had confirmed that accommodation was available, an inquiry into the reasons for the change in the availability of that accommodation was not to the point.[24]
[24] ts 381 and 389 - 390.
To reiterate the issue at hand - the proposed question from counsel for the Respondent to Ms Goode sought to elicit the reasons as to why a house was found for the Respondent in the period between October 2022 and the hearing of the Review Application in December 2022.
The question was directed at understanding the reasons that sit behind the change in position of the State during the course of that period, and has, as its catalyst, the course of the hearing in October 2022 before Archer J, in which the issue of accommodation loomed quite large. The objection put by the State to the proposed question was based on the lack of relevance.
I accepted that it was relevant to the hearing of the Review Application to recognise there was an impact on the Respondent during the period from at least 20 October 2022 (and perhaps before that) arising from the absence of available accommodation. To some degree, this fact has a tendency to explain the manner in which the Respondent has interacted with representatives from Uniting WA (and others) who were assisting him with his potential accommodation needs. Indeed, Ms Goode testified on this issue before the question which was the subject of the objection arose.[25]
[25] ts 379.
The stated purpose of the proposed question was said to be a broader public interest issue, together with the possibility that this issue might expose lines of reasoning and inquiry for other cases. With respect, those matters point in favour of a ruling against allowing the question. The fundamental basis of the objection is relevance, and the fundamental question is whether the issue is relevant to the case at hand. In my view, any evidence adduced through the line of questioning proposed by the Respondent is not likely to assist me in considering the issues arising on the Review Application under s 68 of the HRSO Act, namely determining whether the Respondent remains a HRSO and, if I do so find, to decide whether or not I should affirm the CDO, or rescind the CDO and make a Supervision Order (and as part of that overall exercise, the need to consider the protection of the community).
The change in position between October and December, any change in government policy or action which may be involved, and the machinations that might sit behind all of this, would not assist me in the task I have on this Review Application under s 68 of the HRSO Act, concerning the particular position of this Respondent.[26]
[26] ts 383 and 392.
I was of course conscious of the submissions made on behalf of the Respondent that counsel for the State opened its case with a reference to the accommodation being made available through a 'special arrangement'. Counsel for the Respondent submitted that the use of this language had effectively opened up the issue and he was entitled to explore it through cross-examination. In my view, the mere fact a subject matter has been mentioned in opening does not demand a conclusion that it is relevant. That remains a determination to be made by the court having regard to the scope of the issues which properly arise on the particular application under the HRSO Act.
My view was that the proposed line of inquiry was not relevant for the purposes of the Review Application. I accordingly disallowed the question.
There was obviously a change in circumstances following the hearing before Archer J in October concerning the availability of accommodation suitable for the Respondent. Counsel for the Respondent made an assertion on the transcript to explain the catalyst for the change,[27] but I do not regard that as evidence of the issue and I therefore disregard it. In any event, and more fundamentally, as I said during the course of the hearing, the function of this court on a Review Application is not to engage in some form of Commission of Inquiry to examine the conduct of the COMU or the Department generally in this regard.
Comment
[27] ts 386.
That said, there are three matters which are pertinent to this court's task under the HRSO Act on which I should comment.
First, the new accommodation arrangements appear to have been made for the Respondent in the final days before the hearing on 20 December 2022. This was late in the proceedings. This development, together with the updated evidence from the treating health practitioners, led to a very late and significant change in the State's position on the Review Application. Since at least July 2022, the State had maintained a position that the CDO made by the court should be affirmed. As I have already noted in these reasons, that position was abandoned. Somewhat surprisingly, the court was first informed of the State's non-opposition to rescission of the CDO at the commencement of the hearing on 20 December 2022. The court ought to be promptly informed of such significant changes in a parties' position, where that is possible.
Second, the availability of accommodation under the HRSO supported accommodation program is not a matter which the Respondent can control. Further, as the court has seen in this case, it may even have a tendency to drive an emotional response from the offender, and potentially cause an offender to 'lose hope'. These consequential impacts of the non-availability of accommodation may themselves, therefore, detrimentally impact the court's assessment of the offender's suitability for release into the community. That is obviously unsatisfactory.
Finally, the possibility that the court's discretion on this Review Application, to consider whether to rescind a CDO and make a Supervision Order, may have been substantially fettered had these new accommodation arrangements not been made for the Respondent, naturally causes me real concern.
A further development
In the period following the hearing before me on 20 December 2022, there was a further development with the accommodation issue which had not been apparent during the hearing itself. Specifically, information came to the attention of representatives within COMU that suggested the residential accommodation identified for the Respondent may not be suitable for him given the close proximity of a family with young children.
This development led to further enquiries being made by COMU to identify alternative housing options for the Respondent. In order to ensure the matter progressed to finality in an orderly manner, I then ordered that the State file and serve an affidavit deposing to the availability of accommodation for the Respondent should a Supervision Order be made, together with any supporting submissions. The matter was re-listed for further hearing on 6 February 2023 as to the accommodation issue only.
At the hearing on 6 February 2023, the affidavit of Ms Goode affirmed on 27 January 2023 was formally tendered by the State, without objection.[28] The affidavit detailed the steps taken by COMU to identify a suitable new residence for the Respondent. Within that affidavit, Ms Goode affirmed that:
1.COMU had identified an alternative and suitable residential house in which the Respondent could reside if a Supervision Order was made by the court;
2.the new residence is leased privately by Uniting WA and falls under the private rental stream of the HRSO Supported Accommodation Program;
3.the new residence was considered by Dr Hall to be suitable for the Respondent from a medical perspective; and
4.the Respondent had agreed to reside at the new residence, in the event a Supervision Order was made.
[28] Exhibit P.
On the basis of the material contained in the affidavit of Ms Goode, I am satisfied the new residence would be suitable for the Respondent.
D. Factual background
The Respondent's background, antecedents and history of sexual offending are set out in the previous decision of the court in which the CDO was ordered: [redacted].A summary of the Respondent's offending is as follows.
1.The Respondent’s first conviction of a serious sexual offence was in 1982. At that time, he was convicted of aggravated assault of a sexual nature on a female child under the age of 17 years and was sentenced to two years' detention in a juvenile detention facility.
2.Between 1986 and 1995, the Respondent committed numerous further offences in Queensland; none of which were of a sexual nature. He was sentenced to his first term of imprisonment in 1986 and received further sentences of imprisonment in 1988, 1990 and 1994.
3.The Respondent arrived in Perth in early 1995. In May 1995, he committed a series of serious offences against an elderly woman, who lived alone. These offences included stealing; unlawful detention; sexual penetration of a person over 60 years of age without her consent by penetrating her vagina and anus with his penis and then doing bodily harm to the victim; sexual penetration of the victim without her consent by penetrating her vagina and anus with a wooden object and then doing bodily harm to her; unlawful and indecent assault and then doing bodily harm to the victim; and stealing. The factual circumstances of these offences are set out in the court’s earlier reasons at [redacted].
4.The Respondent was sentenced to a total sentence of 18 years' imprisonment, backdated to May 1995, and was made eligible for parole. He did not apply for parole and was released from custody at the conclusion of his sentence in 2007.
5.In 2009, the Respondent committed a series of offences in a rural town against a five year old child. The offences were sexual penetration of a child under 13 years by inserting his finger into her vagina; sexual penetration of a child under 13 years by performing cunnilingus on her; indecent recording of a child under 13 years by photographing her genitals; and being in possession of child pornography in the form of data on a mobile telephone. The factual circumstances of these offences are set out in the court’s earlier reasons at [redacted].
6.In January 2010, the respondent pleaded guilty to the above charges and was sentenced to 11 years' imprisonment, backdated to 6 May 2009. The Respondent was not made eligible for parole. Prior to the expiration of this sentence, as earlier noted, the Respondent was detained on an interim detention order under the DSO Act until the CDO was made by the court in June 2021
E. Statutory framework and relevant principles
The principles that apply to a review of a CDO are well known. They have been set out in several decisions of this court and were recently summarised by Hall J in The State of Western Australia v Newland [No 3] [2022] WASC 43.
On a review of a CDO under the HRSO Act, the court has to consider, first, whether the person remains a high risk serious offender and, second, if so, whether the CDO should be affirmed or whether it should be rescinded and a supervision order made.[29]
[29] HRSO Act s 68.
Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if 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 offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
A 'restriction order' under s 7(1) of the HRSO Act means either a CDO or a Supervision Order.[30]
[30] HRSO Act s 3(1).
A 'serious offence' is an offence specified in sch 1 div 1 of the HRSO Act, or in sch 1 div 2 and committed in the circumstances set out in div 2 relation to that offence.[31] In relation to sexual offences, the offences set out in sch 1 div 1 include all offences formerly defined as 'serious sexual offences' under the DSO Act.
[31] HRSO Act s 3, s 5(1) and s 5(2).
Section 7(1) of the HRSO Act was analysed by Corboy J in The State of Western Australia v Garlett [2021] WASC 387. Corboy J held that the preferred interpretation of the section requires the court to undertake two separate evaluative assessments.
First, the court must be satisfied that a risk that an offender will commit a serious offence is unacceptable.
Second, the court must be satisfied that it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.[32]
[32] The State of Western Australia v Garlett [2021] WASC 387 [135] ‑ [138]. See also The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [19] ‑ [21]; and The State of Western Australia v Narrier [No 2] [2022] WASC 49 [23].
The State bears the onus of satisfying the court that an offender is a high risk serious offender.[33] The court has to be satisfied of these matters, pursuant to s 7(1) of the HRSO Act, by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt. It is otherwise incapable of further definition.[34]
[33] HRSO Act s 7(2).
[34] Director of Public Prosecutions (WA) v GTR[2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).
An 'unacceptable risk' is a risk that is not trivial or transient.[35]
[35] The State of Western Australia v Garlett [2021] WASC 387 [136(b)].
The court is required to undertake a balancing exercise, taking into account the matters listed in s 7(3) of the HRSO Act. In doing so, the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[36] It requires the court to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for the offender if an order is made under the HRSO Act.
[36] HRSO Act s 7(4).
If the court is satisfied that the offender is a high risk serious offender, the remaining issue is whether it is appropriate to order a CDO or a Supervision Order.[37] A court cannot make a Supervision Order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order.[38] The standard conditions are those contained in s 30(2) of the HRSO Act and include reporting, supervision and electronic monitoring. The onus is on the respondent to satisfy the court that he will substantially comply with the standard conditions.[39]
[37] HRSO Act s 68(1)(b).
[38] HRSO Act s 29(1).
[39] HRSO Act s 29(2).
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment, but rather for the ultimate purpose of protecting the community. The protective purpose of the HRSO Act was recently affirmed by the High Court in Garlett.[40] This requires the court to 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.[41] In doing so, the court's function is not to reduce this risk to zero.[42]
[40] Garlett v The State of Western Australia [2022] HCA 30 [45], [55] - [56] (Kiefel CJ, Keane and Steward JJ), but see the analysis of Edelman J on this issue at [247] - [255], describing continuing detention orders under the HRSO Act as 'protective punishment'.
[41] The State of Western Australia v Latimer [2006] WASC 235 [49].
[42] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].
The protective purpose of the HRSO Act is to be achieved not only by continuing to exercise control over the person the subject of an order, but also by providing care and treatment for the offender in the hope that the risk to the community will be reduced.[43]
[43] HRSO Act s 8(b). See also The State of Western Australia v Tomasovich [No 2] [2022] WASC 402 [38] (Curthoys J).
The HRSO Act mandates periodic reviews of a CDO.[44] This allows for the possibility of a change of circumstances. However, it does not follow from this that in conducting a review, the court is bound by the factual findings made at the previous hearing. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community.[45]
[44] HRSO Act s 64.
[45] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [51].
The risk of offending may be affected by age, health and the successful completion of treatment. If the offender is found to no longer be a HRSO, the CDO must be rescinded.[46]
[46] HRSO Act s 68(1)(a)
If the offender remains a HRSO, the court does not have a predisposition to affirm the CDO. In deciding whether to affirm the CDO or rescind the CDO and make a Supervision Order, the paramount consideration is the need to ensure adequate protection to the community.[47]
[47] HRSO Act s 68(2).
The level of risk posed by the respondent, and whether the community can be adequately protected against the risk under a Supervision Order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external constraints and obligations that can be put in place under a supervision order to mitigate the risk.
Whether the protection that can be afforded by a Supervision Order will be 'adequate' is a qualitative assessment. It is necessary to have regard to the nature of the risk, the likelihood of the risk being realised and the likely affect that the proposed Supervision Order could have in reducing or obviating that risk.[48]
[48] Director of Public Prosecutions (WA) v GTR [26] ‑ [27] (Steytler P & Buss JA) and Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] - [65] (Wheeler JA)
Gains made by an offender in treatment and their behaviour while in custody will inform the assessment of the personal factors. Behavioural changes or improvements in management options may make a supervision order a viable possibility.[49] The availability of new technology or resources in the community is also relevant to the assessment of external factors. If the risk changes or resources improve, the need for the continuing detention of an offender may dissipate and continuing detention may become unjust.[50]
[49] The State of Western Australia v Newland [No 3] [2022] WASC 43 [23]. See also Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] - [18].
[50] Director of Public Prosecutions (WA) v Unwin [No 3] [18], cited with approval by Fiannaca J in Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158 [18].
F. Evidence on the Review Application
Introduction
At the hearing of the Review Application on 20 December 2022, the State tendered a book of materials (Book of Materials) comprising four volumes - three dated 23 May 2022 and the fourth dated 7 July 2022, comprising 1,454 pages. I received those volumes as Exhibits A to D.
The first three volumes of the Book of Materials (Exhibits A, B and C) consisted of background material which had been prepared for the purposes of earlier applications. The material included the Respondent's criminal record, Department of Justice prison records, medical reports, transcripts and records relating to the Respondent's previous offences and criminal hearings, and an autobiography prepared by the Respondent (as requested by the Court in its reasons for decision in June 2021).
The fourth volume (Exhibit D) included material specifically prepared for this Review Application. In addition, at the hearing before me, counsel for the State tendered a number of additional documents, without objection from the Respondent (Exhibits E to O).
Of the primary reports which were tendered by the State, I refer to the following in particular:
1.An Intervention Treatment Progress Report was prepared by Dr Kathryn Riordan dated 23 May 2022.[51] Dr Riordan is a senior forensic and clinical psychologist with the Forensic Psychological Assessment Team of the Department of Justice. Dr Riordan was the Respondent's treating psychologist until the end of June 2022.
2.A Treatment Progress Report was prepared by Dr Ben Bannister dated 31 May 2022.[52] Dr Bannister is a forensic psychologist with the Forensic Psychological Assessment Team of the Department of Justice.
3.A Psychiatric Report was prepared by Dr Mark Hall dated 5 July 2022.[53] Dr Hall is a consultant forensic psychiatrist and medical practitioner with over 25 years' experience.
4.A Community Supervision Assessment was prepared by Ms Emma Cashmore dated 7 July 2022.[54] Ms Cashmore is a Senior Community Corrections Officer with the COMU, within the Department of Justice. Updated Community Supervision Assessments were subsequently prepared by Ms Aimee Goode, dated 14 October 2022 and 19 December 2022.[55] Ms Goode is a Team Leader with COMU. I note that Ms Goode co-authored the initial report dated 7 July 2022.
[51] Exhibit D, pg 1407 - 1416.
[52] Exhibit D, pg 1415 - 1419.
[53] Exhibit D, pg 1420 - 1437.
[54] Exhibit D, pg 1438 - 1454.
[55] Exhibits E and N.
At the hearing of the Review Application, oral evidence was given by Dr Mark Hall, Dr Ben Bannister and Ms Aimee Goode. The Respondent did not challenge the credibility or reliability of any of the witnesses and did not challenge the expertise of the experts. Each of the witnesses gave their evidence in a measured and frank manner, giving reasons where appropriate. I accept their evidence.
The respondent elected not to give or call any evidence.
As I have earlier noted, I also received into evidence the affidavit of Ms Goode at the resumed hearing on 6 February 2023. That evidence within that affidavit was confined to the suitability of accommodation for the Respondent. I have summarised that evidence at [62] of these reasons.
I propose to summarise the primary evidence below, focusing on the aspects which are most relevant for the purposes of determining the Review Application itself.
Dr Mark Hall - Consultant Forensic Psychiatrist
Dr Hall previously interviewed and assessed the Respondent for the purposes of the Initial Hearing. For the purpose of Review Application, Dr Hall interviewed the respondent on 24 June 2022, and prepared the Psychiatric Report dated 5 July 2022 which forms part of Exhibit D.[56] I will summarise the opinions expressed in this report first, then deal with the updated opinions which Dr Hall gave in oral evidence at the hearing itself.
[56] Dr Hall had also prepared a report for the purposes of an earlier application before the court. That report is dated 11 August 2020 (Exhibit C, pg 1289 - 1331).
Dr Hall is a medical practitioner registered with the Medical Board of Australia. He received a Bachelor of Medicine and Bachelor of Surgery (MBBS) from the University of Western Australia in 1995. He was made a Fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) in February 2005. Dr Hall has prepared numerous comprehensive psychiatric reports pursuant to the provisions of the DSO Act and the HRSO Act.
In his most recent report, Dr Hall confirmed his previous diagnosis of a severe personality disorder with predominantly antisocial and narcissistic traits (psychopathic personality disorder) and a history of alcohol abuse which is currently in remission because the respondent is in custody.
Dr Hall expressed the opinion that during the interview, the Respondent exaggerated his perceived mistreatment, misfortune and deprivation and maintained a victim stance. By way of example, he noted that the Respondent believed that if he was not released to a community supervision order, 'the system is broken'. That said, Dr Hall expressed the view that in his current interview, the Respondent was not as angry and preoccupied with his legal status. The Respondent appeared to have accepted that he was subject to the HRSO Act and participated in the interview without being overborne by anger or hostility. During the interview, the Respondent stated that he was pleased he had been able to develop a relationship with his treating psychologist and spoke about Dr Riordan in positive terms.
Dr Hall undertook an assessment of the respondent's risk of serious reoffending using the Static-99R and PCL-R assessment tools. Neither of these assessments had changed since the reports prepared for the Initial Hearing. This was primarily because these assessment tools are based on historical factors and the increase in the Respondent's age is not such that it impacts his score.
Dr Hall also assessed the Respondent's risk of serious offending using the RSVP (Risk of Sexual Violence Protocol) assessment tool. Some of these factors are historical, or static risk factors, which have not changed since Dr Hall's initial assessment of the Respondent. The remaining factors are dynamic risk factors which can change over time and are amenable to intervention. These include psychological adjustment, mental disorder, social adjustment, and manageability.
Dr Hall's report identified that there had been positive changes in respect of three of these factors (being problems with self-awareness, problems with substance abuse and problems with planning), negative changes in respect of two factors (problems resulting from child abuse and problems with supervision) and that there had been no change in respect of the remaining eight factors (problems with stress and coping, psychopathic personality disorder, violent or suicidal ideation, problems with intimate relationships, problems with non-intimate relationships, problems with employment, nonsexual criminality, and problems with treatment).
Specifically, Dr Hall expressed the opinion that the Respondent showed much greater awareness of the role of alcohol in his offending and the need to abstain from consuming alcohol. He also considered that the Respondent appeared to have slightly more realistic appraisal of his needs, namely abstaining from alcohol, psychosocial support and some meaningful activity, as well as ongoing treatment with a psychologist.
In relation to psychological adjustment, Dr Hall expressed the opinion that the Respondent's ability to cope with frustration appeared to have improved although his pain from a leg injury is being inadequately managed and is likely to be a significant stressor going forward. He also expressed the opinion that video gaming had the potential to reinforce the Respondent's avoidant coping style.
In respect of the factor of problems resulting from child abuse, Dr Hall expressed the opinion that there had been a negative change due to the disclosure by the Respondent of considerably more childhood sexual abuse which is yet to be addressed.
As to manageability, Dr Hall expressed the opinion that notwithstanding the demonstration of the Respondent's ability to form a relationship with his treating psychologist, this relationship was in its infancy and at that stage, he could not be confident that the Respondent was being honest and engaging earnestly in therapy. Regrettably, this therapeutic relationship has been terminated due to the resignation of his treating psychologist. As a consequence, Dr Hall expressed the opinion that it was likely that the Respondent would enter into any relationship with a new treating psychologist with a significant degree of mistrust and apprehension which is likely to increase the time it will take to achieve therapeutic engagement. In addition, Dr Hall expressed concern about the Respondent's stated intention to expand his relationships through online video gaming. Dr Hall expressed the opinion that the potential exists for the Respondent to access and groom potential victims through in-game communications while gaming online which may prove difficult to monitor.
In his report, Dr Hall concluded that the Respondent's risk of committing a serious offence of a sexual nature in the future remains high if he is not subject to a CDO or Supervision Order. He noted that the Respondent's psychological treatment needed to be directed at supporting healthy and adaptive coping mechanisms as well as understanding his sexuality including his deviant sexual interests (although there was no formal diagnosis of paraphilia). This would enable the Respondent to understand what places him at risk of reoffending sexually.
Dr Hall concluded that the Respondent's progress in terms of the establishment of a therapeutic relationship with Dr Riordan as well as greater insight into the need for him to abstain from alcohol could support an argument that the Respondent's risk of committing a serious offence could be managed in the community if suitable accommodation was available. However, given that Dr Riordan has resigned and the process of building a therapeutic relationship with a treating psychologist must start again, Dr Hall's conclusion was that the risk posed by the Respondent would be difficult to manage in the community at that time.
I turn now to the opinions expressed by Dr Hall at the hearing on 20 December 2022. Dr Hall reiterated his assessment of the Respondent which appears in his report dated 5 July 2022, namely that he considered the Respondent had exhibited a greater awareness of the role of alcohol in his offending and the need to engage in therapy with a psychologist.[57] Dr Hall was of the view that the Respondent was candid and open in relation to his prison conduct between the two assessments that he had made of him, and candid and open in relation to his impressions of the therapeutic relationship that he had developed at that stage with Dr Riordan. Dr Hall was of the view the Respondent was making good headway in terms of generating a therapeutic relationship.[58]
[57] ts 326 and 332.
[58] ts 326 and 332.
Dr Hall expressed the opinion in his evidence that the two most important relevant factors to the risk of sexual reoffending were: (1) a psychopathy or a psychopathic personality disorder, and (2) a deviant sexual interest.[59]
[59] ts 326 - 327.
Dr Hall testified as to the application of the Psychopathy Checklist, which is a tool used to assess whether a person has a psychopathic personality disorder.[60] Dr Hall found that the Respondent's overall score and profile was consistent with the presence of a psychopathy or a psychopathic personality disorder. The significance of a psychopathic personality disorder to the risk of serious sexual offending, according to Dr Hall, was that it has the potential to provide the appetite to offend because inherent to the disorder for males is a desire and a gratification that comes from ascendency over others and control and domination. So, the disorder can provide an appetite to offend.
[60] ts 327.
Dr Hall further opined that if the appetite was being driven by something else, such as a deviant sexual interest or a paraphilia such as paedophilia, then the psychopathy can serve to facilitate the offending by way of making the offender unresponsive and insensitive to any distress or harm or feelings of guilt.
As to the possible presence of a deviant sexual interest (also described as a paraphilia), Dr Hall was not satisfied he was in a position to formally diagnose the Respondent with any paraphilia (such as, for example, paedophilia). There was insufficient evidence for Dr Hall to be absolutely confident of such a diagnosis.[61]
[61] ts 328 - 329.
Dr Hall described the Respondent's overall risk of re-offending in the absence of a restriction order as high.[62] With the ending of the therapeutic relationship between the Respondent and Dr Riordan, Dr Hall had previously held the view that it would be difficult for the Respondent to be managed in the community on a Supervision Order.[63] However, with the development of a relationship between the Respondent and Mr Summerton over the past few months, through several therapy sessions, Dr Hall's opinion in this regard had changed. He believed this issue had now been satisfactorily addressed. Dr Hall's assessment was that the Respondent was approaching the therapeutic sessions in an earnest and sincere manner, moving in a positive direction, consistent with Dr Hall's impression of the Respondent's approach under the supervision of Dr Riordan.[64] Dr Hall was also cognisant of Mr Summerton's depth of expertise and experience as a psychologist and a therapeutic counsellor.[65] Through his evidence, Dr Hall impressed on the court the importance of this therapeutic relationship with Mr Summerton being maintained in the future.[66]
[62] ts 335.
[63] ts 335 - 336.
[64] ts 336, 340 and 342.
[65] ts 336 - 337.
[66] ts 342 and 347-348.
Under cross-examination, Dr Hall accepted, without equivocation, the proposition from counsel for the Respondent that the Respondent objectively meets the criteria to be characterised as a HRSO.[67] As to whether the Respondent had demonstrated changes since the Initial Hearing, Dr Hall dealt with those matters under cross-examination in a forthright and direct manner:[68]
But your opinion, as it stands today, is that the risk that [the Respondent] poses can be adequately ameliorated or managed by him being placed on a supervision order within the community. Is that correct? ---Yes.
Would you agree that the significant changes, amongst some, since you gave evidence before her Honour Justice Hill, I think, back in 2020 or 2021, has been that insight into the impact that alcohol consumption had on his prior offending behaviour?---That's certainly, yes, one of the gains for sure. Yes.
And you've seen the transcript of the sentencing before his Honour Judge Wisbey back in 1997, I think it was, in relation to the offending against the 83 year old lady in 1995?---Yes
And you would agree with me that alcohol was a significant or had a significant impact on the offending at that time?---Yes.
And, indeed, in relation to the 2009 offending that he was sentenced by his [sic] Honour Judge Yeats for in 2010 in relation to the child, alcohol had a significant interplay there as well; correct?---Correct.
And is that a - you've been dealing with him now for a couple of years. Is that a significant development, that level of understanding about the harm that alcohol will have on him should he choose to consume alcohol?---Yes, taken in context, yes, he's not someone that displays insight but when you look at the context and where he has come from, it's a significant development, yes.
[67] ts 345.
[68] ts 345 - 346.
Dr Hall agreed it was significant that the Respondent understood the impact which alcohol had on him, and its role as a risk factor. Dr Hall agreed it was significant the Respondent had stated he has no desire to consume alcohol should he be released into the community and, in any event, this is an issue that could be monitored by COMU during the currency of a Supervision Order.[69]
[69] ts 346.
Dr Hall was cross-examined as to his diagnosis of psychopathy concerning the Respondent. In substance, Dr Hall's evidence was that the Respondent's psychopathy underpinned the prior offending behaviour, particularly of a sexual nature, to a significant degree.[70] He described the Respondent's sexual appetite as the motivating factor, with the psychopathy being a facilitating factor, and the use of alcohol being a destabilising factor. The use of alcohol can dismantle whatever consequential thinking or other inhibitions the Respondent might have had.[71] Accordingly, in Dr Hall's opinion, if you remove the third factor, namely the use of alcohol, the risk of re-offending significantly decreases.
[70] ts 347.
[71] ts 347.
Counsel for the Respondent concluded his cross-examination of Dr Hall by putting to him two broad propositions. Given Dr Hall's experience in this area, I have no reason to believe that Dr Hall was in any doubt about the import of these propositions. The transcript records the following interchange:[72]
Since you have that evidence, would you agree that [the Respondent] has made a number of significant advancements as far as his attitude is concerned, particularly towards things like alcohol and engaging meaningfully in therapeutic intervention?---Yes, I - it's a matter of degree, but I would agree with that.
And that, combined with the fact that a house is now available for him, no doubt, underpinned to a significant degree your opinion that he can be adequately managed on a supervision order within the community?---Yes.
[72] ts 349.
Dr Hall also made some relevant observations about the severe pain which the Respondent had developed in his lower left limb, which is documented in some of the medical records. He described this as being chronic regional pain syndrome, being physiological in origin. Treatment of this issue needs to be managed closely, according to Dr Hall, given the possibility it could cause the Respondent stress and impact his risk of re-offending.[73]
[73] ts 333 - 334.
Dr Hall also testified as to certain matters relevant to particular conditions of a Supervision Order, should the court consider it appropriate for such an order to be made. For example, he opined on matters connected to the Respondent's use of public transport, the proximity of his accommodation to schools, the importance of urinalysis, and access to online gaming.[74]
Dr Kathryn Riordan - Senior Forensic & Clinical Psychologist
[74] ts 339 - 344 and 348 - 349.
Dr Riordan was the Respondent's treating psychologist until the end of June 2022. Dr Riordan did not give evidence at the hearing.
Dr Riordan is a registered Psychologist with the Australian Health Practitioners Regulation Agency Board of Psychologists, with areas of practice endorsement in Forensic and Clinical Psychology. Dr Riordan has completed a Doctor of Philosophy and Professional Doctorate in Clinical and Forensic Psychology at Edith Cowan University, with an undergraduate psychology degree from the same institution. Dr Riordan has been employed with the Department of Corrective Services for over 11 years. Dr Riordan is a member and secretary of the Australian Psychological Society and the Australian and New Zealand Association of Psychiatry, Psychology and Law.
In her report, Dr Riordan stated that between November 2020 and 16 May 2022, the Respondent has attended 19 individual sessions with her. There have been two disruptions to these sessions over this period; first, as a result of the COVID-19 pandemic and second, due to the sessions being suspend by Dr Riordan between 9 September 2021 and 11 January 2022 'due to difficulties with the Respondent's treatment readiness and motivation to engage in the therapeutic process'.[75]
[75] Exhibit D, p 1407.
Dr Riordan expressed the opinion that during her early sessions with the Respondent, he expressed disagreement with some of the identified areas of treatment need outlined in the expert reports submitted as part of the Initial Hearing and provided various justifications or alternate perspectives as to why he did not require intervention in these areas.[76] Following the resumption of sessions in January 2022, the Respondent identified he required assistance in the areas of intimacy issues, trust and abandonment issues, and social supports.[77]
[76] Exhibit D, p 1407.
[77] Exhibit D, p 1407 - 1408.
Dr Riordan opined that the Respondent's approach to the sessions with her had evolved over time. Initially, he adopted a combative and defensive stance. His attempts at impression management settled over the course of the sessions, although the Respondent continued to attempt to dominate the sessions. During his second session with Dr Riordan, the respondent directed sexually inappropriate comments to her. When Dr Riordan established firm boundaries in relation to the sessions, the Respondent engaged in what Dr Riordan described as acts of 'overt grooming', and made attempts to ingratiate himself to Dr Riordan and the therapeutic process. After sessions resumed in January 2022, the Respondent approached the sessions in a more open-minded and receptive manner. Dr Riordan reported that he demonstrated moments of 'authenticity, interspersed with continued attempts at impression management'.[78]
[78] Exhibit D, p 1409.
The sessions with the Respondent initially focused on developing an accurate and agreed-upon chronology of his life. Dr Riordan reported that the Respondent experienced a strong aversive reaction to this process and displayed a preference to 'adopt a persona that is defined by anything but his actual lived experience'.[79]
[79] Exhibit D, p 1410.
When the respondent's sessions resumed on 11 January 2022, initially the Respondent was hostile to Dr Riordan. He blamed Dr Riordan for the break in sessions which he considered did not give him an opportunity to demonstrate he had achieved treatment gains. He expressed the view that he felt abandoned and that the lack of treatment meant that the likelihood of him being detained indefinitely had increased.[80]
[80] Exhibit D, p 1410
The respondent's sessions with Dr Riordan focused on exploring his current level of sexual preoccupations and deviant sexual interest (again noting there has been no formal diagnosis of paraphilia), exploring his use of and reliance on gaming, and his development of insight and self-awareness.[81]
[81] Exhibit D, p 1410 - 1412.
Dr Riordan reported that the intervention with the Respondent has progressed slowly and that minimal treatment gains had been made. Given his personality structure, Dr Riordan expressed the opinion that the limited progress that had been made was not surprising.[82]
[82] Exhibit D, p 1413.
Dr Riordan expressed the view that the sessions should continue to be offered on a fortnightly basis (whether the Respondent is in prison or in the community) and that the goals for intervention have not changed since the Initial Hearing.[83]
Dr Ben Bannister - Forensic Psychologist
[83] Exhibit D, p 1413.
Dr Bannister is a registered Psychologist with the Australian Health Practitioners Regulation as a Doctor of Forensic Psychology. He has over 22 years' experience in the Department of Justice including in the areas of offender management, reintegration and rehabilitation and application of forensic psychology at a senior level.
Dr Bannister's treatment progress report set out the Respondent's progress since the Respondent was made the subject of a detention order and summarised the Respondent's own account of his treatment progress. Dr Bannister's summary and conclusion, as at May 2022, was as follows:[84]
Despite participating in treatment since November 2020, [the Respondent] has only appeared to meaningfully engage in the counselling sessions since January this year. Prior to that time, he presented as combative, defensive, avoidant, obfuscatory, and lacking in motivation. This was not unexpected behaviour in light of his previously identified personality structure and psychopathic traits. He does not appear to have made any observable gains at this point. As previously noted, a robust therapeutic relationship between [the Respondent] and Dr Riordan will need to be established, in conjunction with [the Respondent's] continued commitment to meaningfully engage, before he can reasonably be expected to make meaningful and authentic treatment gains.
Due to the limited amount of time that [the Respondent] has been genuinely engaged in sessions with Dr Riordan, the treatment remains in its preliminary stages, and there continues to be a range of outstanding criminogenic needs. These include: addressing the role of alcohol and drug use in his offending, intimacy deficits, emotion management (particularly frustration tolerance), improving coping skills, problem solving, sexual deviancy and pre-occupation, re-socialisation issues, social/interpersonal skills, and cognitive distortions. It is possible that in the event [the Respondent] chooses to consistently and meaningfully engage in treatment with his treating clinician, his insight could improve, and potentially build his capacity to successfully self-manage.
[84] Exhibit D, p 1415.
Dr Bannister recommended in this report that the Respondent continue to engage in treatment, ideally with Dr Riordan, in the hope of continuing and strengthening the therapeutic relationship to maximise treatment gains.[85]
[85] Exhibit D, p 1419.
Dr Bannister gave oral evidence at the hearing on 20 December 2022. He testified that he had prepared his report (which forms part of Exhibit D) at a time at which Dr Riordan was the Respondent's treating counsellor.[86] He emphasised that the observations in his report were made many months before the hearing. Dr Bannister explained that the Respondent had undertaken five treatment sessions with his new counsellor, Mr Summerton, which Dr Bannister considered was sufficient to develop a preliminary therapeutic relationship. Dr Bannister further explained that this relationship was dynamic in nature and would continue to develop over time, including if the Respondent was released into the community under a Supervision Order.[87]
[86] ts 358.
[87] ts 360.
Dr Bannister was present in court during the evidence given by Dr Hall. He was asked in cross-examination whether he disagreed with Dr Hall's assessment of the Respondent and indicated he did not, although he qualified this by making it clear it was not his role to assess risk as such.[88]
Ms Aimee Goode - Team Leader with COMU
[88] ts 362.
Ms Goode explained in her oral evidence that the contents of the Community Supervision Assessment report dated 7 July 2022 and the Updated Community Supervision Assessment report dated 14 October 2022 has been largely superseded by the Updated Community Supervision Assessment report dated 19 December 2022.[89] As Ms Goode explained, the accommodation options for persons such as the Respondent are arranged through the HRSO supported accommodation program. This program is managed by an external organisation, Uniting WA. In correspondence from Uniting WA, this program is referred to as the Specialist Re-entry Services - High Risk Serious Offender program.[90]
[89] ts 364 and Exhibit D, p 1438, Exhibit F and Exhibit N.
[90] ts 367 - 368 and Exhibit J.
As explained in Ms Goode's report, prepared in December 2022, an accommodation option had become available at that time which would suit the Respondent's needs, if he was released into the community. It appears that property had been allocated by Uniting WA for the purposes of the Transitional Accommodation Support Service - Intellectual Impairment (or TASS II) program for men leaving prison with an intellectual impairment and receiving reintegration support from Uniting WA. Accordingly, it would not ordinarily have been made available for a person such as the Respondent.[91] As a result, it was put to me by counsel for the State at the hearing on 20 December 2022 that there was a time imperative associated with the allocation of the house for the Respondent (in the sense that it could not be held for the Respondent indefinitely), which meant that my decision on this Review Application would be required prior to late January 2023 (at the latest). I accepted the force of this position and indicated to the parties I would deliver my judgment on the Review Application on 12 January 2023.
[91] Exhibit K.
As matters transpired, the initial accommodation option identified by COMU proved to be unsuitable for the Respondent, following further enquiries. Ultimately, as I have explained at [60] - [62] above, an alternative and suitable residence was identified by COMU in January 2023.
According to Ms Goode, and as appears from Exhibit J, there had been a suggestion from Uniting WA that the Respondent has not been actively engaging with them in relation to the Specialist Re-entry Services - High Risk Serious Offender program operated by Uniting WA. Correspondence from Uniting WA indicated that the Respondent had not attended (or not engaged) for several planned visits.[92] Whilst Uniting WA had, through its correspondence, insisted on heightened engagement from the Respondent in order for the Respondent to remain on the program, I understood Ms Goode's evidence to be that COMU was somewhat more sanguine on this issue. That is, Ms Goode's view was that while improved engagement is expected, it is quite difficult to expect the Respondent to improve his engagement when he does not yet know the outcome of his court hearing.[93] Further, Uniting WA would need to engage with COMU before making any decision in this regard, and Ms Goode's view was that the Respondent should remain within the program.[94]
[92] ts 369 and Exhibit J.
[93] ts 369.
[94] ts 370.
Ms Goode gave evidence that the initial house identified by Uniting WA in December 2022 could serve as an entry accommodation for the Respondent, and after a period of time, other housing options may become available which could be assessed by COMU. It may or may not then be appropriate for the Respondent to be transferred to another residence, which would be directed by his assigned Community Corrections Officer. I take this to also be the case in relation to the alternative residence identified by COMU in January 2023. The modification of the identified residence is dealt with and facilitated by the standard conditions which could be made as part of a Supervision Order.[95]
[95] ts 370 - 371.
G. Disposition
High risk serious offender
The State has made written and oral submissions in support of the contention that the Respondent is, and remains, a HRSO.[96] The Respondent has conceded through his counsel that he is a HRSO.[97]
[96] State's Submissions [30] - [117] and [120] - [124], and ts 404 - 406.
[97] ts 300.
I must nonetheless satisfy myself on this issue, in accordance with the legal framework and having regard to the factors identified in s 7(3) of the HRSO Act, namely:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
As is apparent from s 7(3)(j), the list of matters to be considered by the court is not closed.
As explained below, and also having regard to the submissions made by the State on this issue, I am satisfied on the evidence that the respondent remains a HRSO.
First, I find that there remains an unacceptable risk that the Respondent will commit a serious offence. As was the case at the time of the court's initial order, there is presently no doubt that the Respondent remains a serious danger of committing further serious sexual offences. The level of his risk of serious offending has not changed nor reduced since the initial hearing.
Dr Hall expressed the opinion during the hearing that the Respondent currently presents a high risk of future serious sexual offending in the absence of a restriction order. When rescored using the Static-99R risk assessment, the Respondent's total score has not reduced. There is no change to the respondent's psychiatric diagnosis. The Respondent has been diagnosed with a psychopathic personality disorder, although Dr Hall could not be satisfied he was in a position to formally diagnose the existence of a paraphilia.
As I have noted when detailing the evidence, Dr Hall also assessed the respondent's risk of serious offending using the RSVP assessment tool, which addresses static and dynamic factors. The dynamic factors are those that can change over time and are amenable to intervention. These relate to psychological adjustment, mental disorder, social adjustment, and manageability. Dr Hall noted there had been some positive change in three of the factors, as well as negative changes in two factors, and no change in the balance (see [99] above).
I have had regard to the Respondent's background, antecedents and criminal history, as is summarised in the court's reasons and appears in the materials in Exhibit A.[98] I have provided a short summary in section D of these reasons. It remains the case that based on the Respondent's history of offending, the risk is that he will commit a serious sexual offence. The nature of the risk is a serious one and the class of his potential victims is very wide. There is no fixed pattern to the Respondent's offending.[99] Any offending will lead to immediate victim trauma, probably long term psychological harm and possibly physical harm.
[98] HRSO Act s 7(3(g).
[99] With respect, I agree with the findings of the court in this regard, at [119] and [120] of its reasons on the Initial Hearing. Those findings were based in part of Dr Hall's opinion.
The expert evidence regarding the nature and degree of the risk was not challenged. I accept the opinions of the experts, particularly that of Dr Hall, although I recognise that I am not bound to accept and act upon those opinions.[100] In light of all of the evidence, which I found to be acceptable and cogent, I was satisfied to a high degree of probability that there remains an unacceptable risk that the Respondent will commit a serious offence.
[100] As explained in Hone v The State of Western Australia [2007] WASCA 283 [124] (Miller JA, with whom Steytler P and Wheeler JA agreed), referring to R v Hall (1988) 36 A Crim R 368, 370 - 371 (Roden J).
Second, I am satisfied on the evidence that it remains necessary to make a restriction order to ensure adequate community protection against a risk that the Respondent will commit a serious offence.
In making this finding, I had regard to the reference made to the Community Protection (Offender Reporting) Act in Ms Cashmore's report. I accept that that the Respondent is a reportable offender subject to that Act.
Having regard to all of the evidence, the particular views of Dr Hall on the duration of a Supervision Order, and the comprehensive and onerous conditions which I propose to impose as part of that regime I propose to order that the Supervision Order operate for 7 years to allow for an adequate period for the Respondent to be assessed while in the community and for his rehabilitation over this period to occur in a structured and supported environment.
H. Suppression Orders
I raised with both counsel at the hearing on 20 December 2022 whether there was a need for suppression orders to be made by the court as to: (1) the name of the Respondent and (2) the address at which it was proposed he would reside.[116]
[116] ts 427 - 428.
As to the relevant principles, it is established that a suppression order should only be made if it is really necessary to secure the proper administration of justice in proceedings before it. 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. As a general proposition, it should be accepted that members of the community have a legitimate interest in being aware of the identity and presence of offenders in their community. However, that interest must be balanced against the potential subversion of the viability of a supervision order when such an order is made. I refer, in support of these principles, to the observations of Archer J in The State of Western Australia v Jonsson [No 3] [2019] WASC 463 [105] ‑ [136].
As to the position of the State, by the terms of the Updated Community Supervision Assessment report dated 19 December 2022 (Exhibit N), the State had earlier raised the need to consider the suppression of the residential address at which the Respondent would reside (assuming a Supervision Order was ultimately made). It was asserted by Ms Goode, the author of that report, that there was a need to suppress the address to avoid undue exposure, and to avoid vigilante action as against the Respondent and as against staff from the Department who may attend at the premises.
The State, through counsel, noted that the reasons which are commonly advanced for suppressing a residential address include to prevent the possibility of vigilante action against a respondent if the address becomes public. Further, such an order may be made to enhance the possibility of the respondent's rehabilitation, which is not only in his best interests, but in the interest of the community.[117] A further reason is to ensure that the accommodation which is available to the respondent remains available to him. By way of explanation of this third example, the State submitted that, in the event the address becomes public, it may reduce the ability of the police and COMU staff to continue to adequately manage a respondent's risk at that address. A respondent's safety and any staff from COMU who attend the address may be adversely impacted, and the property may become 'compromised'. The result may be that the property can no longer be utilised as the respondent's accommodation, with the need for COMU to relocate him.
[117] The State drew my attention to Director of Public Prosecutions (WA) v Hart [No 3] [2010] WASC 253 [21]-[22] (McKechnie J) and Director of Public Prosecutions (WA) v Teague [No 4] [2013] WASC 420 [27] (McKechnie J). The State noted that, in those cases, McKechnie J was not prepared to suppress the suburb in which the accommodation was situated
The State submitted that it is necessary to make a suppression order in relation to the street address and the suburb to protect the viability of any supervision order which the court may make.
As to the anonymisation of the Respondent's name, the State submitted that anonymisation is sometimes sought to protect the victim of the respondent's offending, particularly in cases in which sexual offences are committed against a child who is a relative. The State drew my attention to the transcript of the sentencing proceedings in the District Court on 18 January 2010 (Exhibit C, pages 1191 and 1193) in this regard. The child complainant was not related to the Respondent, but the Respondent was known to her and her family. The offences were committed against her in a small country town and the offending attracted a certain amount of publicity and notoriety. The trauma suffered by the complainant was described as 'extensive' and that it would likely result in a relocation to another residence. The State could not say whether relocation in fact occurred, but submitted that there were grounds upon which the anonymisation of the Respondent's name could be justified in the interests of protecting the complainant from being reminded of the offending, and further traumatising her.
Counsel for the Respondent submitted that the name of the Respondent should be anonymised and I understood the Respondent acquiesced in the proposed suppression order concerning the residential address. Indeed, at the conclusion of the hearing on 6 February 2023, counsel for the Respondent reminded me that suppression orders should be made in this regard.
In my view, it is necessary for the proper administration of justice, and to ensure the viability of the Supervision Order that I will make, that the full address of the proposed residence be suppressed. It is not difficult to see how the publication of the address could lead to the outcomes and scenarios identified by the State in its submissions. Those outcomes should be avoided for obvious reasons, but also because, as I have earlier emphasised, there are limited accommodation options for persons such as the Respondent and the order is necessary to ensure that the accommodation which is currently available to him, remains so available.
Undoubtedly, members of the community have a legitimate interest in being aware of the identity and presence of offenders in their community. The community's interests are adequately protected in the present case through the imposition of stringent conditions on the Supervision Order, by which the Respondent will be closely monitored and supervised. In addition, as observed by Fiannaca J in The State of Western Australia v Kyles [No 5] [2020] WASC 265 [362], the protection is the community is also achieved by the rehabilitation of an offender in the community while subject to such an order, which significantly mitigates the risk that he will commit a further sexual offence.
For similar reasons, it is my view that it is necessary for the proper administration of justice, and to ensure the viability of the Supervision Order that I will make, that the name of the Respondent be suppressed and his name be anonymised. The State referred to the justification of protecting one of the complainants from being reminded of the offending and further traumatising her. The submissions made by the State were quite general in this regard and do not provide a strong basis for the proposed order.
I would prefer to rest my conclusion on the same basis as the suppression of the residential address, namely the possible loss of the accommodation as an option for the Respondent. I consider it is at least reasonably possible that disclosure of the Respondent's name could invite scrutiny as to his whereabouts and jeopardise the availability of the residence which has been made available for him. The loss of that accommodation as an option, and indeed the loss of future accommodation options, would detrimentally impact the viability of the Supervision Order I propose to make, and the prospects for the Respondent's rehabilitation.
Accordingly, on 6 February 2023, immediately following the resumed hearing, I made suppression orders as to the name of the Respondent and as to the location of the two residential accommodation options which had been identified by COMU. The orders were in the following terms:
1.Until further order, there is to be no publication outside of the court of any material that could lead to the identification of the name of the Respondent to these proceedings.
2.Until further order, there is to be no publication outside of the court of any material that could lead to the identification of the two residential addresses proposed by the Community Offender Monitoring Unit as accommodation for the Respondent in the event a Supervision Order is made (including the unit number, house number, street name and suburb of those two locations).
Conclusion
At the hearing of the Review Application, the State contended (and the Respondent conceded) that the Respondent remained a HRSO. I am satisfied that the Respondent remains a HRSO, as that term is defined in the HRSO Act.
As to whether the CDO made by the court at the Initial Hearing should be affirmed, or whether the CDO should be rescinded and a Supervision Order made in respect of the Respondent, both the State and the Respondent adopted similar positions, as a matter of substance. The State did not oppose the rescission of the CDO and did not oppose the making of a Supervision Order. The Respondent sought orders that I rescind the CDO and make a Supervision Order.
On the evidence before the court, I am satisfied the CDO should be rescinded and a Supervision Order ought be made pursuant to s 68(1)(b)(ii) of the HRSO Act.
I therefore propose to order that the CDO be rescinded and a Supervision Order be made pursuant to s 68(1)(b)(ii) of the HRSO Act, for a period of 7 years from 27 February 2023, on the standard conditions and the additional conditions which are detailed in Annexure A to these reasons.
ANNEXURE A
SUPERVISION ORDER - CONDITIONS
Pursuant to section 68(1)(b)(ii) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), the Court, having found that the Respondent remains a high risk serious offender within the meaning of section 7(1) of the HRSO Act, makes a supervision order in relation to the Respondent, for a period of 7 years from 27 February 2023, being a date earlier than 21 days from the date this Order is made but being a date on which the Court is satisfied that the implementation of this order is practically feasible, on the following conditions:
You, THE RESPONDENT, must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, Western Australia within 48 hours of the Order being issued and advise the officer of your current name and address.
Report to, and receive visits from, a CCO as directed by the court.
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a CCO, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32 of the HRSO Act).
Not leave, nor stay out of, the State of Western Australia without the permission of a CCO.
Not commit a serious offence during the period of the Order.
Be subject to electronic monitoring under section 31 of the HRSO Act.
ADDITIONAL CONDITIONS
Residence
Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order.
Be under the supervision of a CCO, report to and receive visits from a CCO at times and places as directed by the CCO, and comply with the lawful orders and directions of a CCO.
Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO.R
Attendance at programs or treatment
Consult and engage with any medical practitioner, 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 re-offending, as directed by a CCO.
Reporting to WA Police
Report to the Officer-in-Charge of the Serious Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Serious Offender Management Squad or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).
If requested, permit Police Officers to enter and search your person, residence and/or vehicle and remain at your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order.
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 and violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual or violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your offending (including sexual offending) (if applicable) on the next working day you report to the CCO or Police.
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under section 202 (obscene act in public), section 203 (indecent act in public), section 204 (indecent act with intent to offend), or section 557K (offences by child sex offender) of the Criminal Code 1913 (WA), or section 17(1) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) 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 (WA), and your use is in accordance with the instructions of the prescriber.
Curfew
Be subject to a curfew, pursuant to section 32 of the HRSO Act, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or front door 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
Undergo medical treatment, including anti-depressant medication or anti-libidinal treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners.
Comply fully with any treatment prescribed pursuant to Condition 29 and comply with all testing to monitor your compliance with medical treatment and/or anti-libidinal treatment as directed by a CCO.
Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by a CCO.
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.
Prevention of high-risk situations
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and Police Officers upon request.
Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO.
Not possess, or consume, or purchase, or use alcohol or any alcoholic substance.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.
Provide a valid sample pursuant to Condition 36.
Not to go inside (or enter any part of your body inside) any licensed premises, or remain at any licensed premises, unless permitted or required to do so for the following reasons:
(a)for the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;
(b) for a purpose, and for a duration, approved in advance by a CCO;
(c) on the order of a CCO or Police Officer.
With the exception of public transport, not to enter in or on any vehicle, including taxis and rideshare vehicles such as but not limited exclusively to Uber, where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by the CCO.
Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO.
Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO. If you are in any other residential address and a female enters, you must remove yourself from that residential address immediately and must inform your CCO and Police at your next scheduled meeting.
Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person.
Not to form any domestic relationship with a person who has children, or children under the age of 18 years in their care either full time or part time, without prior CCO approval.
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Note:The term 'contact' for the purposes of Conditions 45, 46, 47 and 48 means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication)
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide the name, address, location and any details known by you, of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.
Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
Whilst in any public place or in view of a public place, not be in possession of any animate or inanimate item capable of constituting an enticement to children, unless such possession is for legitimate purpose and approved in advance by a CCO.
Not to attend concerts, events or venues frequented by children under the age of 18 years, without prior approval of a CCO.
Not to be in possession of any pornographic material, in either hard-copy or digital form, or access or view pornography on the internet. The term 'pornographic materials' means printed or visual or any medium of material that contains the explicit description or display of sexual organs or activity.
Not to access Facebook, lnstagram, Tik Tok, Snapchat and other online social media or application software program (referred to as an 'app'), unless approved in advance by a CCO.
Not to possess or use, within your home or other residence, business or any other location, any equipment (such as headphones, microphones or webcams) capable of transmitting or receiving audio and/or video communication via the internet with other online players through your gaming console or via any other electronic means, unless approved in advance by your CCO.
53A.Not to engage in any online gaming via any console or platform unless approved in advance by a CCO and in accordance with the written instructions issued by a CCO.
Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in Condition 54, without prior approval.
Enable device locking or password access of your computer, telecommunication and/or electronic devices. Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in Condition 54, or any online accounts, to any person other than a CCO or Police Officer.
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities. Provide to the CCO or WA Police upon request any internet service providers, all mobile or landline telephone services used by you and all passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IHN
Associate to the Honourable Justice Lundberg
9 FEBRUARY 2023
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