The State of Western Australia v Kyles [No 5]
[2020] WASC 265
•14 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- KYLES [No 5] [2020] WASC 265
CORAM: FIANNACA J
HEARD: 9 APRIL 2019
DELIVERED : 14 JULY 2020
FILE NO/S: DSO 4 of 2011
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DENIS GEORGE KYLES
Respondent
Catchwords:
Dangerous sexual offender - Division 2 hearing - Application for further supervision order - Terms of future supervision order - Date of commencement of further supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Further supervision order granted
Category: B
Representation:
Counsel:
| Applicant | : | B Meertens |
| Respondent | : | D J McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | David McKenzie |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v GTR [2007] WASC 318
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 Kyles [2011] WASC 131
Director of Public Prosecutions (WA) v Kyles [No 2] [2012] WASC 187
Director of Public Prosecutions (WA) v Kyles [No 3] [2013] WASC 242
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
Prisoners Review Board v Freeman [No 2] [2010] WASCA 167
The State of Western Australia v Jonsson [No 3] [2019] WASC 463
The State of Western Australia v Kyles [2018] WASC 86
The State of Western Australia v Narkle [No 5] [2017] WASC 46
FIANNACA J:
Introduction
From 7 December 1992 until 18 May 2011, the respondent served a number of terms of imprisonment for numerous sexual offences committed against children. Prior to his completion of the last term of imprisonment, the Director of Public Prosecutions for Western Australia (DPP) applied under the Dangerous Sexual Offenders Act 2006 (WA) (the Act) for an order that the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order), or that he be subject to conditions if released from custody (a supervision order), on the basis that he was a serious danger to the community.
On 16 May 2011, after a hearing under div 2 of the Act, Commissioner Sleight found that the respondent was a serious danger to the community and made a continuing detention order, which took effect at the conclusion of the respondent's sentence.[1]
[1] Director of Public Prosecutions (WA) v Kyles[2011] WASC 131 (Kyles).
On 24 May 2012, Hall J conducted the first annual review of the continuing detention order, pursuant to s 29 and s 33 of the Act. His Honour determined that the respondent remained a serious danger to the community and declined to rescind the continuing detention order, as his Honour determined that such an order was necessary to ensure the adequate protection of the community at that time.[2]
[2] Director of Public Prosecutions (WA) v Kyles [No 2][2012] WASC 187 (Kyles [No 2]).
On 5 June 2013, Jenkins J conducted the second annual review of the continuing detention order. On 6 June 2013, her Honour rescinded the continuing detention order and made a supervision order for a term of 5 years (the supervision order) pursuant to s 17(1)(b) and s 33(1)(b)(ii) of the Act.[3] Although the respondent remained a serious danger to the community in the absence of an order under the Act, her Honour was satisfied that, if the respondent were released, the adequate protection of the community could be achieved by making him subject to the supervision order, which consisted of 41 stringent conditions.[4] Having regard to the opinions of the consultant psychiatrist who gave evidence in those proceedings, Dr Mark Hall, and the officers of the Public Protection Unit of the Department of Corrective Services who had assessed the respondent's case, the DPP had not argued against the making of the supervision order.[5]
[3] Director of Public Prosecutions (WA) v Kyles [No 3][2013] WASC 242 (Kyles [No 3]).
[4] Kyles [No 3] [32] - [48].
[5] Kyles [No 3] [48], point number (2).
The supervision order would have expired on 5 June 2018. However, on 7 February 2018, the applicant made an application pursuant to s 8(4A) of the Act for orders under s 14 of the Act and for a further supervision order under s 17(1)(b) to take effect on the expiry of the supervision order.
The orders sought under s 14 were for a date to be set for the hearing of the application for the further supervision order (the div 2 hearing)[6] and consequential orders to obtain information for the div 2 hearing, including an order that that the respondent undergo examination by two qualified experts named by the court, at least one of whom had to be a psychiatrist.
[6] A supervision order is a 'Division 2 order', as that term is defined in the Act, so that an application for such an order is a div 2 hearing. See [13] – [14] below.
Section 14 provides for a preliminary hearing for the court to determine whether there are reasonable grounds for believing that the court might find, under s 7(1) of the Act, that the respondent is a serious danger to the community. Such a finding is necessary before a supervision order can be made under s 17(1). If the court at the preliminary hearing determines there are reasonable grounds for believing such a finding might be made, it must make the consequential orders to which I have referred.
Under s 7(1), before a court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence, which is defined in s 3 of the Act. It is sufficient to say that a number of the offences of which the respondent was convicted were serious sexual offences under the Act.
The preliminary hearing in this case was conducted by Derrick J on 21 March 2018. His Honour was satisfied, on the evidence presented at that hearing, that the test under s 14 was met.[7] It was necessary, therefore, for a date to be set for the div 2 hearing and for consequential orders to be made in respect of expert reports. However, at the time of the preliminary hearing, the respondent was facing four new charges of sexual offences alleged to have been committed in late 1989 and early 1990. Those charges had been brought in April 2017 and in July or August 2017. They were to proceed to trial.
[7] The State of Western Australia v Kyles [2018] WASC 86 [64] (The State of WA v Kyles).
Derrick J accepted the applicant's submission, which was supported by the respondent, that the court should not set a date for the div 2 hearing until after the respondent's trial on the new charges.[8] It followed that the making of the consequential orders would also be delayed. Pursuant to s 14A(2A), his Honour deferred fixing a date for the hearing of the application and adjourned the hearing to a date before the expiration of the supervision order for the State to apply for an interim supervision order pursuant to s 27A(3) of the Act; that provision was due to come into operation on 29 March 2018.[9]
[8] The State of WA v Kyles [65] ‑ [67].
[9] The State of WA v Kyles [65] ‑ [67].
On 6 April 2018, Derrick J made an order pursuant to s 27A(3) of the Act that the supervision order made on 6 June 2013 continue until the pending proceedings under s 8(4A) are finally determined. That order has continued to be in effect.
Following a trial in the District Court on 2 and 3 December 2018, the respondent was acquitted of the outstanding charges. Following that acquittal, the present application was listed for a div 2 hearing on 9 April 2019. On that date the hearing was conducted before me.
For the reasons that follow, I am satisfied that the respondent remains a serious danger to the community and that it is appropriate to make a further supervision order.
The law applicable to this application
Section 8(4A) of the Act provides:
If ‑
(a)an offender is subject to a supervision order (the current order); and
(b)the current order is to expire within one year,
the DPP may file with the Supreme Court an application for orders under section 14 and for a Division 2 order in relation to the offender, the Division 2 order to take effect on the expiry of the current order.
'Division 2 order' is defined in s 3 of the Act to mean either a continuing detention order made under s 17(1)(a) or a supervision order made under s 17(1)(b) of the Act.[10] More specifically, s 17 provides:
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
[10] Section 17 is in Division 2 of the Act.
The reference to 'offender' in s 8(4A) of the Act is curious. Section 3 provides that 'offender' has the meaning given to that term in s 8(1). Section 8(1) in effect defines 'offender' to mean a person:
(a)who is under a custodial sentence for a serious sexual offence; or
(b)who has been under a custodial sentence for a serious sexual offence and who, at all times since being discharged from that sentence, has been under a custodial sentence for another offence or other offences.
A person who is subject to a supervision order does not come within that definition, which, from its context, is intended to apply to a person who is in custody and in respect of whom an application for a div 2 order is made for the first time. The definition is concerned with a person who is subject to a custodial sentence at the time the application is made and has been subject to a continuous period of custody that includes a custodial sentence for a serious sexual offence. Elsewhere in the Act, a person who is subject to a supervision order is referred to as 'the person who is subject to the order' or 'person subject to the order'.[11] In s 41 and s 42 that term is used in contradistinction to 'offender' in the phrase 'the offender or person subject to the order'. Further, all of the provisions concerning the conditions of a supervision order refer to 'person' rather than 'offender'.[12] However, s 17(1)(b), under which a supervision order is made, refers to 'the offender, when not in custody' being subject to stated conditions. In addition, 'offender' is used in s 27A(5) to refer to a person who is not in custody and to whom pending proceedings under s 8(1) or s (4A) relate, in the context of provisions for the making of interim supervision orders.
[11] See s 19(2), s 20(1)(a), s 41(2), s 41(3) and s 42(2). See also s 27A, where the reference to 'offender' in s (5) appears to be in a context other than where the person the subject of pending proceedings is or has been subject to a supervision order.
[12] Sections 18 ‑ 19C of the Act.
The obvious purpose of s 8(4A), confirmed by the second reading speech in Parliament in respect of the Dangerous Sexual Offenders Legislation Amendment Bill 2015, which introduced the provision, is to enable the continued protection of the community from the unacceptable risk that may continue to exist at the expiration of a supervision order, that the person who is subject to the order would commit a serious sexual offence, if not subject to a continuing detention order or a supervision order.[13] Having regard to that context, the word 'offender' must be taken to refer to a person who is subject to a supervision order who was an 'offender', as defined in s 8(1) at the time the original application was made for a Division 2 order.
[13] Hansard, 17 May 2016, Legislative Assembly, p3070c-3072a, second reading of Dangerous Sexual Offenders Legislation Amendment Bill 2015, where the Minister for Police stated that the bill 'amends the DSO act and related legislation to improve the ability of authorities to manage, and so to adequately protect the community from, known dangerous sexual offenders'. The Minister went on to say, '… there will be new powers to allow the court to make a subsequent supervision order on the expiry of a supervision order.' See also the Explanatory Memorandum for the bill, which contained a similar preamble and stated that the proposed s 8(4A) and s 8(4) 'allow the court to make a further supervision order which is to take effect on the expiry of a supervision order. This will in effect mean that a new application can be brought to have the effect of extending the duration of a supervision order.'
On that basis, s 8(4A) applied to the respondent. That was not in issue at the hearing of the application. Further, both of the conditions specified in pars (a) and (b) of s 8(4A) were met when the application was made on 7 February 2018.
Section 8(4B) provides that the application must specify which of the Division 2 orders is sought. As stated earlier, the applicant seeks a further supervision order.
As the application under s 8(4A) is for a Division 2 order, the provisions of div 2 of the Act apply. Those provisions concern:
(1)the making of the order (s 17);
(2)the conditions of a supervision order (s 18);
(3)electronic monitoring (s 19A);
(4)the inclusion of a curfew requirement (s 19B); and
(5)the enforcement of electronic monitoring and a curfew requirement (s 19C).
The effect of s 8(4A) in combination with s 14 and s 17 of the Act is that an application for a further supervision order comes to be dealt with in the same manner as an application in the first instance for a Division 2 order under s 8(1).[14] In that regard, I respectfully adopt what was said by Jenkins J in Narkle [No 5] concerning the effect of the statutory provisions and the principles that are applicable on an application under s 8(4A), although at the time that case was decided, the subsection provided only for an application for a further supervision order under s 17(1)(b), rather than for 'a Division 2 order' (the particular order to be specified in the application), as is now the case. In my opinion, the amendments which effected that change, which came into effect on 29 March 2018,[15] do not affect the application of the general principles discussed by Jenkins J in Narkle [No 5]. There are, however, issues that arise from the amendments that I will refer to below.
[14] The State of Western Australia v Narkle [No 5] [2017] WASC 46 [8] ‑ [24] (Narkle [No 5]).
[15] Dangerous Sexual Offenders Legislation Amendment Act 2017 (No 21 of 2017).
In accordance with the provisions of s 17(1) (set out in [15] above), before a supervision order can be made under that section, the court must be satisfied that the offender is a serious danger to the community. As the applicant acknowledged in these proceedings, it cannot be assumed on an application under s 8(4A) that, because the respondent has previously been found to be a serious danger to the community, he remains a serious danger to the community when the application comes to be determined. That issue must be decided afresh, on the evidence available at the div 2 hearing. However, in my opinion, as will appear below, the fact that such a finding was made previously and the foundations for that finding are part of the respondent's antecedents, which are a relevant consideration in determining whether the respondent is a serious danger to the community.
Prior to the amendments effected by the Dangerous Sexual Offenders Legislation Amendment Act 2017, the previous s 17(3) provided that 'a court hearing an application for a further supervision order under s 8(4A) must not make an order under subsection (1)(a)' (ie, a continuing detention order). That was in the context that s 8(4A) provided that an application under that provision was only for a further supervision order, which was the context that applied in Narkle [No 5]. Subsection (3) of s 17 was deleted by the amending legislation and new subsections (3) and (4), which apply in these proceedings, were inserted as follows:
(3)A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.
(4)The onus of proof as to the matter described in subsection (3) is on the offender.
On the face of it, the deletion of the previous s 17(3) might suggest that the prohibition in that subsection preventing the court from making a continuing detention order, when the application is for a further supervision order, no longer applied. That would beg the question why the applicant is required by s 8(4B) to specify which order is sought. Although the second reading speech in respect of the bill that introduced the amendments did not comment on the deletion of the previous s 17(3),[16] the Explanatory Memorandum for the bill explained that the subsection was deleted 'as a consequence of the amendments proposed in clause 14', which amended s 8(4A) and introduced subsection (4B). In other words, it appears to have been intended that the requirement that the DPP specify which of the Division 2 orders it is seeking would obviate the need to prohibit the court from making a continuing detention order when a supervision order is sought, presumably on the basis that the court would be confined as to the order it could make by the DPP's particularisation. Whether that is achieved by s 8(4B) may be debatable, but it is not necessary to consider that issue further in the context of this case.
[16] Hansard, 14 September 2017, Legislative Council, p4072b-4073a, second reading of Dangerous Sexual Offenders Legislation Amendment Bill 2017.
However, a matter that potentially does create a problem, in the context of an application under s 8(4A) for a further supervision order, is the requirement under the new s 17(3) that a court must be satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order, before it can make such an order. If the court cannot make a Division 2 order other than the one specified by the DPP in the application, the requirement under s 17(3) theoretically leaves open the possibility that, in a case where the DPP applies for a further supervision order, the court may be satisfied the respondent is a serious danger to the community, yet not be satisfied the respondent would substantially comply with the standard conditions of a supervision order, leaving no means by which to protect the community against the danger. Such a situation may never arise in practice, as the existence of any evidence that would suggest the respondent would not substantially comply with the standard conditions of a supervision order, notwithstanding that he has been on a supervision order, is likely to result in the DPP applying for a continuing detention order. However, the potential anomalous consequence of the interaction of the new provisions, which I have identified, is logically open. It appears to be an unintended consequence that may have been overlooked. Ultimately, it does not affect the outcome of these proceedings, because the evidence supports the conclusion that the respondent will substantially comply with the standard conditions of a supervision order, if such an order is otherwise appropriate. In that regard, I have applied the principles that I consider to be applicable in determining whether a respondent will substantially comply with the standard conditions of a supervision order, as discussed by me in Director of Public Prosecutions (WA) v Hart.[17]
[17] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
Section 10 of the Act relevantly provides that an application under s 8(4A) may proceed and a further supervision order may be made even if, while the application is pending, the respondent ceases to be subject to the original supervision order. That would have been the case in this matter, but for the fact that an interim supervision order was made under s 27A. It is sufficient for present purposes to note that s 27A empowers the court to make an interim supervision order, the effect of which is to extend an existing supervision order when a person who has been subject to such an order would be in the community without being subject to conditions pending the determination of an application under s 8(4A). There is a question as to whether s 27A was also intended to overcome another anomalous effect of the then current statutory provisions identified by Jenkins J in Narkle [No 5],[18] whereby any new supervision order was to take effect on the expiry of the 'current order' (s 8(4A)), but, at least on one construction, could not take effect until 'a stated date not earlier than 21 days after the date the order is made' (s 17(1)(b) ‑ see [15] above). I will deal with that question of construction later in the context of determining the commencement date of the supervision order. However, if the construction adopted in Narkle [No 5] is correct, an interim supervision order ensures that a person who has been found to be a serious danger to the community in proceedings under s 8(4A) and s 17, is not in the community without supervision and monitoring for the period before the new supervision order comes into effect.
[18] Narkle [No 5] [15] - [16].
The requirement under s 17(1) that the court must find the respondent to be a serious danger to the community, before a further supervision order can be made, engages the provisions of s 7 of the Act.
In accordance with s 7(1) of the Act, a finding that the respondent is a serious danger to the community will follow necessarily in the circumstances of this case if the court is satisfied that there is an unacceptable risk that, if the respondent were not subject to a supervision order, he would commit a serious sexual offence.[19]
[19] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [66] (Wheeler JA, Owen JA agreeing); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (GTR) [14] ‑ [25] (Steytler P & Buss JA), [94] and [97] (Murray AJA).
The applicant has the onus of satisfying the court of the matters in s 7(1), and the court must be satisfied (a) by acceptable and cogent evidence, and (b) to a high degree of probability.[20]
[20] Section 7(2) of the Act.
The standard of proof to a 'high degree of probability' is higher than the civil standard, being proof on the balance of probabilities, but lower than the criminal standard, being proof beyond reasonable doubt.[21]
[21] GTR [28] ‑ [34] (Steytler P & Buss JA).
Section 4A of the Act provides relevantly that a person commits a serious sexual offence if the person does an act that constitutes a serious sexual offence.
The term 'serious sexual offence' is defined in s 3 of the Act, relevantly to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (Evidence Act). Section 106A of the Evidence Act, read with pt B of sch 7 of the same act and the Criminal Code (WA) (Criminal Code), provides that serious sexual offences are any of the offences contained in ch XXXI of the Criminal Code, the penalty for which is 7 years' imprisonment or more. Chapter XXXI of the Criminal Code is headed 'Sexual Offences' and contains the majority of offences of a sexual nature. Relevantly for present purposes, the offences contained in ch XXXI which would fall within the definition of a 'serious sexual offence' include all sexual offences against children under the age of 13 years and all sexual offences by a person over the age of 18 years against a child between the ages of 13 and 16 years.
Section 7(3) of the Act provides that in deciding whether to find that the respondent is a serious danger to the community, I must have regard to the following matters:
(a)any report that a psychiatrist prepares as required by s 37 for the hearing of the application, and the extent to which the person cooperated when the psychiatrist examined the person;
(b)any other medical, psychiatric, psychological, or other assessment relating to the person;
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d)whether or not there is any pattern of offending behaviour on the part of the person;
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(g)the person's antecedents and criminal record;
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
In an application under s 8(4A), the considerations in pars (c) ‑ (g) of s 7(3) will be informed in part by the evidence and findings made in past proceedings against the respondent under the Act, in particular the proceedings that resulted in the respondent being released subject to the original supervision order. Although the assessment of whether the respondent is a serious danger to the community must be made having regard to the evidence concerning the respondent's risk at the time the application is heard, the assessment of that risk may depend on whether there have been changes in the respondent's personal circumstances and attitudes, and the extent of any such changes, since he was placed on the original supervision order.
In Williams[22] Wheeler JA (Le Miere AJA agreeing) considered what was meant in s 7(1) by the words 'unacceptable risk'. In a passage that was subsequently approved in GTR,[23] her Honour said:[24]
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
[22] Williams [63] - [68].
[23] GTR [26] ‑ [27] (Steytler P & Buss JA), [126] ‑ [129] (Murray AJA).
[24] Williams [63].
Issues and the structure of these reasons
Having regard to the relevant statutory provisions and the principles I have outlined, the issues I must determine are as follows:
(1)Is the respondent a serious danger to the community, in that there is an unacceptable risk that, if he were not subject to a further supervision order, he would commit a serious sexual offence?
(2)If so, what are the appropriate conditions and length of a further supervision order?
The first issue requires consideration of the matters in s 7(3) of the Act. I intend to deal with those matters in chronological order, commencing with (i) the respondent's background, in particular his sexual offending, followed by (ii) the findings in the previous decisions in respect of his risk, (iii) his conduct while subject to the supervision order, (iv) the evidence in respect of developments in his circumstances since he was released on the supervision order and (v) the opinions expressed in respect of his current risk in the present proceedings.
The determination of the second issue will be informed by the most recent psychiatric, psychological and other assessments.
It is convenient to deal with some of the matters in s 7(3) under separate headings, but a number of the matters overlap and will be dealt with as part of the background and the previous findings. That history, which encompasses the respondent's antecedents and criminal history (s 7(3)(g)) and includes prior psychiatric and psychological assessments (s 7(3)(b)), necessarily deals with matters in s 7(3)(c) ‑ (g), being the respondent's propensity to commit serious sexual offences, his pattern of offending, the treatment and rehabilitation he has undergone, and his antecedents and criminal history.
Evidence in these proceedings
The evidence in the hearing consisted of a book of materials tendered by the applicant without objection and the oral evidence of two consultant forensic psychiatrists, Dr Peter Wynn Owen and Dr Gosia Wojnarowska, and a senior community corrections officer (SCCO) with the Community Offender Monitoring Unit of the Department of Justice (COMU), Ms Kimberley Comery, who has been the respondent's community corrections officer (CCO) providing supervision while he has been in the community subject to the supervision order.
The book of materials includes:
(a)the respondent's criminal record;
(b)the previous decisions of the court under the Act, to which I have referred above;
(c)materials in respect of the prosecution of the respondent for sexual offences on three indictments in 2003, including the statements of complainants, a transcript of a video record of interview conducted with the respondent in October 2002, reports prepared for sentencing proceedings in 2003, and transcripts of the sentencing proceedings;
(d)the psychiatric and psychological reports prepared for the proceedings under the Act in 2011, 2012 and 2013, including a psychiatric report of Dr Wojnarowska dated 27 April 2011 and a report concerning the respondent's completion of an Intensive Sex Offender Treatment Program dated 18 June 2012;
(e)materials concerning contraventions by the respondent of conditions of the supervision order in 2016 and 2017;
(f)a psychological update report by Dr Tara Yewers dated 26 June 2017, which deals with the respondent's psychological developments since he was released on the supervision order;
(g)a report dated 2 October 2017 of SCCO, Ms Aletheia Yun, in respect of the respondent's performance, in terms of his conduct generally whilst in the community and his compliance with the conditions of the supervision order;
(h)materials concerning the proceedings in the District Court in December 2018 for the new charges in respect of which the respondent was acquitted after trial;
(i)a community supervision assessment report dated 28 March 2019, prepared by Ms Comery; and
(j)psychiatric reports prepared by Dr Wynn Owen and Dr Wojnarowska for these proceedings, dated 2 April 2019 and 30 March 2019 respectively.
Background
The respondent's background and the views of various experts who provided reports and gave evidence about him before he was released on a supervision order by Jenkins J on 6 June 2013 are set out in the decisions of Commissioner Sleight in Kyles, Hall J in Kyles [No 2] and Jenkins J in Kyles [No 3]. It was not in dispute in these proceedings that those decisions accurately reflect the respondent's background and the opinions of others which formed the foundations for the finding that he was a serious danger to the community and the orders that were made in each of those decisions. Consequently, I will take into account the factual matters and opinions referred to in those decisions, and the findings made by each of the judges, as part of the respondent's antecedents and as material that informs the considerations in s 7(3)(c) ‑ s 7(3)(f) of the Act. It is necessary to have regard to those previous decisions to understand the reasons that follow. I do not intend to repeat all that was said in those decisions, but for convenience I will summarise salient aspects. As Commissioner Sleight did in Kyles, I will start with the respondent's history of sexual offending.
History of sexual offending
The respondent was born in October 1951 and is now 68 years of age. He started committing sexual offences when he was 18 years of age. His offending history was summarised by Commissioner Sleight in Kyles.[25] Over a period of more than 20 years from 1970, when he was 18 years of age, the respondent committed numerous serious sexual offences against a total of 12 victims, being girls and boys ranging from 3 to 15 years of age. The victims included [suppressed]. The offences were mainly in the nature of indecent dealings and sexual penetrations of the victims.
[25] DPP v Kyles [7].
In Kyles, Commissioner Sleight summarised the offending by reference to the charges in respect of which the respondent was convicted and sentenced. His Honour did so in the chronological order of the convictions, rather than the offences. His Honour suppressed certain details of the offending so as to protect the identity of the victims. For the purpose of these proceedings, I have had access to, and taken into account, an un‑redacted version of his Honour's reasons, and it is to that version that I refer below. However, so as to maintain the protection of the identity of the victims, references in these reasons which may identify them will also be suppressed.
The respondent was convicted and sentenced in respect of sexual offences on ten occasions, the last being in the District Court on 18 July 2003. Some of the later convictions related to historical offences, in the sense that they had occurred well before other offences for which he had already been convicted and sentenced. It is also apparent from the summary and the respondent's criminal record that he committed a number of sexual offences while on probation after having been convicted of earlier sexual offences against children, and that he continued to commit serious sexual offences against children after he had served a sentence of 9 months' imprisonment in 1986 for sexual offending that occurred in 1985 and 1986 (see [47(10)] below).
The following outline, adapted from the reasons of Commissioner Sleight in Kyles, places the respondent's offending in chronological order. I have noted where the sexual offending occurred while the respondent was on probation or after he had served a term of imprisonment. The outline focuses on the sexual acts, rather than the statutory descriptions of the offences constituted by those acts, some of which (as well as the statutory penalties) changed over time. The offending consisted of the following conduct:
(1)The respondent committed his first sexual offence on 5 February 1970, when he picked up a 10‑year‑old boy in a motor vehicle, drove the vehicle to a remote location and there, in the back seat of the car, placed his penis between the boy's legs. The respondent was convicted of this offence in the Children's Court on 25 February 1970 and was placed on 3 years' probation.
(2)Between 13 July 1972 and 20 July 1972, when the respondent was 20 and was on probation for the first offence, he masturbated and then anally penetrated a 12‑year‑old boy. [Suppressed]. He was convicted of those offences in the District Court in May 1997 on an indictment that also charged later offences.
(3)Also in 1972, again while he was on probation for the first offence, the respondent committed an offence in which he penetrated the anus of a 15‑year‑old boy with his penis. He was convicted of that offence in February 2003.
(4)Between 1 January 1973 and 31 December 1973, when he was 21 or 22, the respondent sexually offended against a 10‑year‑old girl, [suppressed], by penetrating her vagina with his penis on two occasions on consecutive days. He was convicted of those offences in November 1995.
(5)In August 1980, when he was 28, the respondent engaged in sexual touching of a 6‑year‑old boy, a 7‑year‑old girl and a 3‑year‑old girl, on the same occasion. He was convicted of those offences on 12 September 1980 and was sentenced to 2 years' probation.
(6)Between 1979 and 1982 the respondent persistently offended against [suppressed] who was aged between 5 and 8 years of age, by engaging in acts of penile-anal penetration, digital penetration and fellatio. It would appear that at least some of the offences were committed while he was on probation for the offences committed in August 1980. He was convicted in February 2003 of 13 sexual offences arising from the sexual abuse of [suppressed].
(7)On two separate dates in 1982 the respondent offended against a 9‑year‑old boy [suppressed]. On both occasions the respondent penetrated the boy's anus with his penis. He was convicted of that offending in August 2002.
(8)Between 1982 and 1985 the respondent persistently offended against [suppressed] who was aged between 6 and 8 years. In relation to that offending, he was convicted in February 2003 of ten sexual offences arising from four separate incidents, which included penile-vaginal penetration on each occasion.
(9)Also between 1982 and 1985 the respondent offended against [suppressed], when she was aged between 4 and 7 years. The offending included penile-vaginal penetration and making the child and her brother [suppressed] engage in sexual acts with one another and with the respondent at the same time. The respondent was convicted of those offences in July 2003.
(10)In the period between 1 September 1985 and 11 February 1986, the respondent committed five offences of indecently dealing with a child under the age of 14 years. The victims were [suppressed], both of whom were 9 years old. The indecent dealing included acts of oral sex. The respondent was convicted of that offending on 18 February 1986, and was sentenced to 9 months' imprisonment. It was the first sentence of imprisonment for his sexual offending.
(11)Between 1 November 1985 and 31 December 1985, the respondent committed a number of acts of indecently dealing with [suppressed], who was aged 7 at the time. He was convicted in the Children's Court[26] in May 1987 of five counts of indecently dealing with a child under the age of 16 years and was placed on probation for 18 months.
(12)The next two sexual offences occurred some months apart in 1990 and were committed against a 9‑year‑old girl [suppressed]. The offending consisted of digital penetration and the touching of the girl's vagina. That same year the respondent offended against an 11‑year‑old boy by touching the boy's buttocks or penis on three separate occasions. The offending that year and all of the respondent's subsequent sexual offending occurred after he had served the sentence of imprisonment of 9 months in 1986 and after completing a period of probation in 1987 and 1988. He was convicted of the 1990 offending on 27 May 1997.
(13)Between 1 December 1991 and 6 May 1992, the respondent committed a number of acts of sexual penetration of a 9‑year‑old girl who was [suppressed] and indecently dealt with an 8‑year‑old girl [suppressed]. The sexual penetrations were committed over a period of time. On 7 December 1992, the respondent was convicted in the Supreme Court of ten counts of sexual penetration of a child under the age of 16 years and one count of indecently dealing with a child under the age of 13 years in respect of that offending. He was sentenced to a term of imprisonment of 9 years and 2 months.
[26] Although the respondent was an adult, the matter was dealt with in the Children's Court because the victim was a child, in accordance with procedure at the time.
The respondent remained a sentenced prisoner from the time he was sentenced in December 1992 until the original application was made under the Act in 2011, a period of more than 18 years. That was as a result of additional complaints being made after December 1992 in respect of earlier offending, as outlined above, and charges being laid which resulted in convictions and further sentences of imprisonment being imposed. In summary:
(1)On 15 November 1995 the respondent was sentenced in the Supreme Court at Bunbury, in respect of the offending in 1973, to a term of imprisonment of 4 years and 6 months concurrent with existing sentences;
(2)On 27 May 1997 he was sentenced in the District Court at Bunbury, in respect of the offending that occurred between 13 July 1972 and 20 July 1972 and in 1990, to 6 years' imprisonment cumulative on the 1992 sentence;
(3)On 7 August 2002 he was sentenced for the 1982 offences to 18 months' imprisonment cumulative on the terms he was then serving;
(4)On 20 February 2003 he was sentenced in the District Court, in respect of offences committed in 1972, between 1979 and 1982, and between 1982 and 1985, to 6 years' imprisonment cumulative on terms he was then serving; and
(5)On 18 July 2003 he was sentenced in the District Court, in respect of offences committed between 1982 and 1985, to a total effective term of 5 years' imprisonment cumulative on the terms he was then serving.
Other aspects of the respondent's background
As the respondent's risk of sexual reoffending is being assessed after a significant period of being in the community, subject to a supervision order, the assessment will largely be informed by his conduct while subject to the order and his current circumstances and attitudes. However, as will appear below, those matters continue to be informed, at least to some extent, by the respondent's past. Therefore, I will outline some salient aspects of his background apart from his offending.
The respondent was born in 1951 and was raised in Western Australia. His parents had emigrated from the United Kingdom. He has an older brother. He had an unhappy childhood. He has described both parents as being alcoholics and has said that his father was physically abusive to his wife (the respondent's mother) and to the children (the respondent and his brother) when disciplining them.
The respondent was sexually abused by a male adult stranger when he was 12 years old.
The respondent disliked school, where he says he was singled out for being of small build. He has said he truanted from High School because of anxiety. He left school at the age of 15 years and worked in unskilled labouring jobs. However, he also became involved in coaching children in various sports. It will be recalled he offended against a child he was coaching in 1972.
The respondent married when he was 24, after his partner had become pregnant early in their relationship. They had five children together. The marriage ended in 1985. He had custody of the two oldest children. The other three stayed with their mother. He has said he was hurt when he found out his wife was seeing another man soon after their separation.
Some years later the respondent formed a relationship with a woman who had children. She and the children were living with him when he was imprisoned in 1992. She stopped visiting him soon after he was imprisoned, but her friend, Ms H, remained friends with the respondent. They have maintained that relationship since that time. It is not a sexual relationship.
The respondent has a history of alcohol abuse and dependence, having commenced drinking in early adolescence and drinking to excess by late adolescence. He has previously reported that intoxication with alcohol had the effect of increasing his libido.[27] He had a long period of enforced abstinence during his incarceration from 1992 to 2013.
[27] Report of Dr Wynn Owen, 2 April 2019, page 7: Book of Materials (BoM) page 445.
Findings in previous hearings
2011 - Div 2 proceedings
In the div 2 proceedings conducted in 2011,[28] the respondent's risk of sexual reoffending was assessed by two consultant forensic psychiatrists, Dr Wojnarowska and Dr Hall, both of whom I have mentioned above. Commissioner Sleight relied on their evidence, in the light of all the other material before his Honour, to conclude that the respondent was a serious danger to the community.[29]
[28] See [1] - [2] above.
[29] Kyles [34].
Both psychiatrists found that the respondent met the diagnostic criteria for paedophilia, and diagnosed him with that disorder.[30] Both also diagnosed him with having alcohol dependency. Dr Wojnarowska further diagnosed the respondent as having an antisocial personality disorder. Dr Hall did not go so far as to diagnose such a disorder, but he found that the respondent had antisocial personality traits. Finally, Dr Hall (but not Dr Wojnarowska) diagnosed the respondent as having a social anxiety disorder.
[30] Kyles [9] and [14].
Dr Wojnarowska and Dr Hall differed in their assessment of whether the respondent met the 'cut‑off' score for the presence of psychopathy, based on the Hare Psychopathy Checklist‑Revised (PCL‑R) test. However, it appears that in Dr Wojnarowska's opinion the important consideration was that, whether or not he met the 'cut‑off' for the presence of psychopathy, the respondent's high score, alongside the presence of deviant sexual interests, indicated a high risk of future offending.[31] Dr Wojnarowska had noted that the respondent had not shown concern towards his victims, was not prepared to accept the facts related to the physical consequences of sexual penetration of a child, and demonstrated no insight into the possible psychological damage to a child from such offending.[32]
[31] Kyles [11].
[32] Kyles [10].
Dr Wojnarowska was of the opinion that the respondent posed a very high risk of sexual reoffending if not subject to an order under the Act, and her view was that the only feasible way of protecting the community at that stage was a continuing detention order.[33]
[33] Kyles [11] - [12].
Dr Hall was of the opinion that the respondent posed a high risk of sexual reoffending if not subject to an order. He identified a number of factors that gave rise to that risk, including the respondent's 'history of persistent, diverse and depraved sexual offences against children', the diagnosis of paedophilia, the respondent's non‑participation in sex offender treatment, persistent cognitive distortions that justified sexual activity with children, his vulnerability to alcohol abuse and lack of insight in that regard, and 'his capacity for grooming children and adults, so as to establish relationships that provide trust and proximity to children'.[34]
[34] Kyles [17].
The respondent was considered by the psychiatrists to have significant treatment needs. That had been identified earlier by psychologists who had provided reports in 2002 and 2003. They had noted his limited insight and failure to acknowledge fully his responsibility for his offending and the extent of his problems.[35] That was notwithstanding the fact that he had pleaded guilty on each of the occasions he had been charged. Commissioner Sleight noted that some insight into the respondent's personality traits and his treatment needs was revealed by his background. His alcohol abuse could be explained by the fact that he was raised in a family in which both parents were alcoholics and exposed him to alcohol abuse. His Honour also relied on Dr Wojnarowska's opinion that the development of the respondent's deviant sexual interest in children was undoubtedly influenced by the fact he too was sexually abused as a child.[36]
[35] Kyles [21] - [22].
[36] Kyles [30](iii).
Commissioner Sleight accepted that the respondent had shown a callous disregard for his victims and that, until his sexual deviancy was treated by way of an intensive sexual offender treatment programme, he would continue to have a propensity to commit serious sexual offences in the future.[37]
[37] Kyles [23] - [24].
The respondent's readiness and ability to engage in treatment had been regarded as being questionable.[38] He had resisted intensive group treatment for a long time.[39] Commissioner Sleight noted the respondent's explanation to be that he believed he could not function in a group environment as 'he becomes too tense and nervous in such a situation'. His Honour accepted Dr Hall's view that the respondent 'suffers from a social anxiety disorder which makes it difficult for him to participate in group therapy'.[40]
[38] Kyles [21].
[39] Kyles [21].
[40] Kyles [31].
Both psychiatrists were of the view that the optimum form of treatment was intensive group therapy.[41] They acknowledged that treatment could be provided on an individual basis, but were of the view that it would be less effective. Dr Hall recommended that the respondent be given antidepressant medication and undergo counselling to address his social anxiety disorder, and if sufficient progress was made, his treatment could be 'progressed to group therapy'.[42] A psychologist from the Department of Corrective Services subsequently gave evidence that if an assessment of the respondent confirmed the diagnosis of social anxiety disorder, a programme could be implemented on an individual basis to address that disorder, as recommended by Dr Hall.
[41] Kyles [31].
[42] Kyles [32].
Commissioner Sleight concluded that a continuing detention order was necessary for the following reasons:[43]
I conclude that on the evidence before me that until Mr Kyles has completed an intensive sex offender treatment programme and has made progress in relation to his paedophilic tendencies, it is inappropriate to make a supervision order. Until Mr Kyles receives such treatment, to release him on a supervision order would pose an unacceptable risk to the community. I reach this decision reluctantly as Mr Kyles has spent nearly 20 years in prison.
[43] Kyles [36].
The continuing detention order was made on 16 May 2011.
First review of the continuing detention order - 24 May 2012
By s 29 of the Act, it was necessary for the continuing detention to be reviewed as soon as practicable after the expiry of one year under the order. Upon such a review the court must determine whether the person who is subject to the order remains a serious danger to the community. If so, then (as the legislation was formulated in 2012) the court was required either to expressly decline to rescind the detention order or to rescind the order and make a supervision order if the latter would provide adequate protection of the community.[44] The legislation has at all times provided that, if the court is not satisfied the person remains a serious danger to the community, it must rescind the detention order.
[44] Section 33 of the Act.
When directions were sought by the DPP for the first review, in February 2012, the respondent was enrolled in an intensive sex offender treatment programme, which was to conclude in mid‑July 2012. It appears, therefore, that he had progressed as suggested by Dr Hall. As the programme would not be completed before the first review was required to be conducted, it was agreed between the parties that the review, which was conducted before Hall J, should be conducted on the papers and that no psychiatrist be appointed for the purposes of the review. That agreement was reached on the basis that the DPP would not oppose an application for an exceptional circumstances review under s 30 of the Act, which would leave open the possibility of the respondent applying to the court for a review of his detention after the completion of the treatment programme and prior to the next scheduled hearing.[45]
[45] Kyles [No 2] [4] - [5].
On 24 May 2012, the evidence in the review proceedings before Hall J included a treatment assessment report by Mr David Summerton, a psychologist, and a psychological assessment by Mr Nigel Cameron, a clinical and forensic psychologist.
Hall J summarised the psychological assessment as follows:[46]
Mr Cameron's report concludes that the respondent has shown solid improvement in the previous 12 months. This was reflected in his willingness to participate in a treatment program. However, whilst he had shown increased capacity for understanding treatment concepts, Mr Cameron concluded that the respondent would need considerable guidance and support in making treatment gains and translating them into tangible application in real life. In particular, the respondent was not yet able to identify concrete strategies for identifying risk scenarios or removing himself from them.
[46] Kyles [No 2] [8].
Reports from the Department of Corrective Services confirmed that the respondent was continuing to participate in an intensive sex offender treatment programme, with an expected completion date of 1 June 2012. He was doing well, with satisfactory levels of participation, and was genuinely attempting to address his past offending behaviour and to understand himself better.[47]
[47] Kyles [No 2] [9].
His Honour went on to say:[48]
My conclusion, based upon the materials received, is that whilst the respondent is making positive steps to address his behaviour, it is too early to determine whether the benefits flowing from participation in a treatment program will translate into lowering of risk. This is an assessment that can only be made following completion of the treatment program.
[48] Kyles [No 2] [10].
It was conceded on behalf of the respondent that there was no evidentiary basis to support rescinding the continuing detention order at that stage. Hall J found that the respondent remained a serious danger to the community and expressly declined to rescind the detention order.
Second review of detention order - 5 June 2013
The second review of the respondent's detention was conducted by Jenkins J on 5 June 2013. The respondent had completed the intensive sex offender treatment programme (ISOTP) on 1 June 2012, and had subsequently engaged in individual counselling from 2 August 2012.
The ISOTP completion report was generally positive. Jenkins J summarised the findings as follows:[49]
In summary, he met all programme objectives, made some treatment gains, was observed to gain a greater understanding of the factors underlying his offending and demonstrated a greater acceptance of responsibility for his offending behaviour. During the programme the respondent was given the opportunity to develop a self-management plan, which is a plan to develop a balanced lifestyle by setting pro-social goals in a range of areas. Overall, the respondent's self-management plan appeared generally appropriate should he choose to implement it as planned when released into the community.
Persisting risk factors for the respondent were identified as being alone with children, alcohol abuse, emotional management, low self-esteem and relationship problems. It was noted that the respondent had put forward plans and strategies to address these issues and was receptive to receiving professional support in the community if these areas of risk arose in his life. This was a considerable improvement since Commissioner Sleight's decision.
[49] Kyles [No 3] [8] - [9].
While there was evidence before her Honour from a clinical psychologist, Mr Ryan Bell (who had prepared a treatment progress report), that 'those involved in treating [the respondent] noted that he still had limited victim empathy, remained defensive and impressed as being naïve as to the complexities of managing his deviant sexual interests', the respondent had engaged in individual counselling with Mr Summerton to address his ongoing treatment needs.[50]
[50] Kyles [No 3] [11] - [12].
Jenkins J noted the following significant matters in respect of the individual treatment. It had been reported that the respondent had engaged willingly and had generally responded well to treatment. He had shown some insight about risk factors related to his offending. He had spontaneously spoken about the impact that his offending was likely to have had on his victims. He was able to identify several risk scenarios which may precipitate the emergence of deviant thought. He was able to outline a specific and detailed behavioural plan which he would employ to deal with such scenarios. He had spoken openly and honestly about his social anxiety, his concerns related to his release conditions (in the event he were released on a supervision order), his capacity to meet the demands placed on him to meet those conditions and other aspects of life outside of prison.[51]
[51] Kyles [No 3] [13].
Her Honour further noted that the respondent had also demonstrated a great deal of commitment towards identifying his further treatment needs and ensuring that those needs were met. He had indicated an interest in ongoing psychological intervention and was prepared to attend a community based sex offender maintenance programme and a community based substance abuse programme should he be released. Those developments were regarded as a considerable step forward, as historically the respondent had resisted intervention and had approached therapy with reluctance.[52]
[52] Kyles [No 3] [14].
The respondent was re-examined by Dr Hall, who had provided a report and given evidence in the div 2 proceedings. Dr Hall noted that, during the interview, the respondent was able to identify matters that he believed had contributed to his offending. Although the respondent remained averse to the term 'paedophile', he accepted that he satisfied the defining criteria on the basis of his behaviour and acknowledged his sexual attraction to children.[53] He had also identified a number of matters as causes of his offending, namely, his own sexual abuse as a child, loneliness, anger at his ex‑wife and alcoholism.[54] The respondent told Dr Hall that he did not want to drink again and that he realised that it was alcohol that had got him into trouble on prior occasions.[55]
[53] Kyles [No 3] [16].
[54] Kyles [No 3] [17].
[55] Kyles [No 3] [17]
The respondent told Dr Hall he had been prescribed an antidepressant of the selective serotonin reuptake inhibitor class (SSRI medication) for treatment of his social anxiety disorder. While it appears that the SSRI medication had reduced the respondent's anxiety significantly, had enabled him to talk to adults without as much difficulty and had helped stabilise his mood, he had stopped taking the SSRI medication six weeks prior to his interview with Dr Hall because of his concerns over side effects.[56]
[56] Kyles [No 3] [18].
In 2011, Dr Hall had used the STATIC‑99 assessment instrument, which has regard to historical factors and age, in assessing the respondent's risk. He used the revised version, STATIC‑99R, in preparing the report for the second review, and arrived at an updated assessment which placed the respondent in the moderate to high risk category of sexual reoffending, which reflected a reduced risk of re‑offending.[57] That was due to the respondent's advancing age and the updated norms incorporated into the STATIC‑99R. Dr Hall said in evidence in the hearing before Jenkins J that 'it was well documented that the risk of sexual re‑offending reduced significantly after the age of 60 years and continued to decrease as the subject aged'.[58]
[57] Kyles [No 3] [19].
[58] Kyles [No 3] [19].
Dr Hall also applied the Risk for Sexual Violence Protocol (RSVP) instrument, which has regard to a number of dynamic risks relevant to the risk of sexual offending. Having referred to Dr Hall's findings in that regard, Jenkins J said:
Dr Hall concluded by saying that the respondent has made considerable progress in the areas of sex offender treatment, his psychiatric condition and approach to placement in the community. Dr Hall observed that it was pleasing that his commitment to change had been sustained and had resulted in a real reduction in his risk in comparison to the level of risk present when he was first declared a dangerous sexual offender.
Jenkins J then considered the conditions that had been recommended to manage and monitor the respondent's risk in the community under a supervision order. Those recommendations had been made by the Public Protection Unit of the Department of Corrective Services and by Dr Hall.
Addressing the issues to be determined on the review, Jenkins J was satisfied, as to the first issue, that the respondent remained a serious danger to the community. Her Honour said:[59]
Given the respondent's extensive record of serious sexual offending against children, even though it all occurred over 20 years ago, the fact that his steps towards rehabilitation have not been tested by time spent in the community and that he has not remained offence-free in the community for a significant period of time, I am of the same view as Commissioner Sleight and Hall J in this respect.
[59] Kyles [No 3] [46].
However, as to the second issue, her Honour concluded that, having regard to a number of matters listed by her, she was prepared to rescind the continuing detention order and make a supervision order. The basis for the respondent's release is an integral part of the background against which his current risk must be assessed. Accordingly, it is appropriate to set out the matters upon which her Honour relied. Her Honour said:[60]
[60] Kyles [No 3] [48].
The matters that I have relied upon in making this decision are as follows:
(1)The Public Protection Unit of the Department, which is the unit set up by the government to assess dangerous sexual offenders, supports the making of a supervision order.
(2)The Director [ie, the DPP], having regard to the opinion of Dr Hall and the views of the officers of the Department, does not argue against the making of a supervision order.
(3)Dr Hall is of the view that if a supervision order is made with appropriate conditions, the risk of the respondent re-offending can be appropriately dealt with in the community.
(4)Since the respondent was declared a dangerous sexual offender, he has completed the intensive sex offender treatment programme and received a positive report from those who run the programme.
(5)Since completing the intensive sex offender treatment programme, the respondent has had weekly counselling with Mr Summerton and has continued to make treatment gains.
(6)As a result of the programme and the counselling, the respondent has greater insight into the causes of his offending, greater victim empathy, and has a positive plan for his conduct whilst he is in the community. His risk of re-offending has decreased.
(7)In the community, the respondent will be residing with a single man, without children, who does not drink alcohol.
(8)In the community, the respondent will have support from Mr D and his mother, both of whom are long-term friends of the respondent and who are aware of his past offending.
(9)The respondent will also have support from Outreach and his CCO.
(10)The respondent will be required to report to his CCO and the officer in charge of the Police Sex Offender Management Squad and to comply with all obligations imposed on him by them. His supervision by his CCO and the police will ensure close supervision of him whilst he is in the community.
(11)The respondent will not be living with or be in day-to-day contact with children. I note that in respect to his prior offending, apart from perhaps his initial offence in 1970, all the respondent's victims [suppressed]. As Dr Hall has concluded, it is reasonable to assume that the risk of future offending would be with similar victims. Thus, in managing that risk in the community, it is important to ensure that the respondent does not develop or have the opportunity to develop any relationships with adults who have young children; that he does not live with children or in a house that has children visiting it regularly; and that he does not have the opportunity to befriend children. Having regard to all the conditions which are proposed to be included in the supervision order, I am satisfied that none of these situations will occur without it coming to the notice of those who will be supervising the respondent well before there is any opportunity for the respondent to re-offend.
(12)The respondent will be required to continue to have counselling with Mr Summerton and to take SSRI medication in order to decrease his risk of re-offending.
(13)There will be a curfew during the first six months that the respondent is in the community to ensure that he does not go to places at night where he can access alcohol.
(14)The respondent will be subject to electronic monitoring so that he will not be able to go to any place children frequent without the knowledge of the authorities.
(15)The respondent will not be able to consume alcohol and that prohibition will be monitored by appropriate testing. The consumption of alcohol is a significant risk factor.
(16)The respondent will not be able to have unsupervised contact with a child.
(17)The respondent will be required to attend the community-based sex offender maintenance programme in order to reduce his risk of re-offending.
(18)The respondent is now older than 60, and according to Dr Hall, the risk of a person re-offending over this age decreases and continues to decrease as they age.
(19)The supervision order will be for a period of five years, which, according to Dr Hall, is at the outside of the length of a supervision order which is required to ensure that the community is protected.
(20)The supervision order includes all the recommendations of the authors of the reports which I have received for conditions to be included in such a supervision order for the protection of the community.
Her Honour released the respondent on a supervision order containing 41 conditions.[61] The order commenced on the date it was made, 6 June 2013, in accordance with the Act as it was at that time. As I noted earlier (see [15] and [27] above), under the current s 17(1)(b) a supervision order must now be ordered to commence on a stated date not earlier than 21 days after the date the order is made.
[61] The supervision order was annexed to Kyles [No 3].
Developments since respondent was released on a supervision order
The respondent's circumstances since he was released on a supervision order on 6 June 2013 until 21 March 2018 were set out in some detail by Derrick J in The State of WA v Kyles. I am indebted to his Honour for that outline, which accords with my review of the materials. I have drawn substantially from it in the next two sections, supplementing it with additional information available at the time of the hearing before me, and elaborating, where appropriate, upon matters I consider to be of particular significance.
Although for the most part the respondent has complied with the conditions of the supervision order, he has contravened the order on a number of occasions, as will appear below. In respect of some contraventions he was issued with either a written or verbal warning, or no action was taken.[62] However, on three occasions he was charged in respect of the alleged contraventions.[63] On two occasions he was convicted on his pleas of guilty. On the third occasion the charge was dismissed. Nevertheless, it is relevant for context, as I explain in [92] below. Before dealing with the respondent's performance more generally, it is convenient to start with those three matters.
Charges of contravening the supervision order
[62] BoM pp 430 ‑ 431 (Community Supervision Assessment Report).
[63] BoM pp 309 ‑ 372.
Two of the conditions of the supervision order were that the respondent was not to be in possession of or consume alcohol, and that he was to be subject to electronic monitoring (which is a standard condition), which is achieved by the respondent carrying with him a GPS transmitter.
On 14 April 2016 the respondent was charged with an offence of contravening the supervision order by being in possession of and consuming alcohol. Officers from the Sex Offender Management Squad (SOMS) attended his home on the evening of 13 April 2016 and found an empty beer can on the kitchen table. The respondent admitted that he had consumed the full strength beer, which was Emu Export, a short time earlier. The respondent was breathalysed and produced a blood alcohol content reading of 0.02%. The respondent pleaded guilty to the charge on 15 April 2016. He was fined $500 for the offence.
Dr Yewers noted that the respondent's explanation for the offence was that he had been thinking about alcohol for several days before the offence and that he had wanted a drink as a reward for how well he had been doing on the supervision order.[64] She noted that the respondent acknowledged, in retrospect, that such thinking was irrational. However, Dr Yewers also noted that the respondent's 'partner' described the events differently, referring to the respondent coming home from fishing and having a 'shandy' with his friend.[65]
[64] BoM p 416 ([12] of Dr Yewers' report).
[65] BoM p 416 ([12] of Dr Yewers' report). The reference to the respondent's 'partner' is to Ms H, with whom the respondent has had a long relationship, which, as I mentioned at [54] above and will discuss further below, is not a sexual relationship, and is best described as a friendship.
On 28 September 2016 the respondent was charged with an offence of contravening the supervision order by failing to keep his GPS transmitter on his person. He was alleged to have committed the offence on 27 September 2016. On 8 May 2017 the respondent pleaded not guilty to the charge. On the same date, after trial, he was found not guilty of the charge. The essential basis for the Magistrate's not guilty verdict was that the respondent had established on the balance of probabilities the defence of having a reasonable excuse for not having the GPS transmitter in his possession.[66] Although the respondent was acquitted of the charge, the charge was still pending when he committed the next offence. One would have expected him to be particularly alert to the risk of leaving his GPS transmitter behind.
[66] BoM pp 344 ‑ 345 (transcript of proceedings before Magistrate Randazzo, 8.5.2017, pp 23 ‑ 24).
On 8 January 2017 the respondent was charged with a further offence of contravening the supervision order by failing to keep his GPS transmitter on his person. The facts of the offence were that on 8 January 2017 the respondent left his home with a friend for the purpose of going out for a coffee. Before the respondent left his house he contacted the monitoring unit to inform the unit where he was going. While he and his friend were driving to where they were to have their coffee, the respondent realised that he had left his GPS transmitter at his house. The respondent told his friend to turn the car around and return to the house so that he could collect the transmitter. Once back at the house, the respondent collected the transmitter. He and his friend then left the house again to go for coffee. About 20 minutes later, the respondent received a phone call from the monitoring unit inquiring if he had left his transmitter at his home. The respondent said that he had, but that he had then collected the transmitter. The total period of time for which the respondent was without his transmitter was 21 minutes, between 10.36 am and 10.57 am. On 10 January 2017, the respondent pleaded guilty to the charge. He was fined $1,000.
The respondent's performance while subject to the supervision order
Apart from the contraventions in respect of which he was charged, the respondent's performance whilst subject to the supervision order of 3 June 2013 can be ascertained from Dr Yewers' report and the performance report prepared by Ms Yun.
Dr Yewers reported that, over the course of his order, the respondent occasionally experienced problems interacting effectively and appropriately with his supervising officers from the Department of Corrective Services (DCS) and staff from SOMS.[67] Those issues were addressed by the treating psychologist, Mr Summerton, as they arose, in counselling sessions. The respondent identified that 'his issues with particular staff were intensified by his sensitivity to perceived unfair treatment or criticism, proneness to misinterpret or misunderstand and his consequent hostile reaction'.[68] Mr Summerton was of the view that, although the respondent was open to working through the issues in counselling, 'enduring change beyond this context was neither evidenced nor expected'.[69]
[67] BoM p 415 ([8] of Dr Yewers' report).
[68] BoM p 415 ([8] of Dr Yewers' report).
[69] BoM p 415 ([8] of Dr Yewers' report).
There were indications in the earlier stages of the period of supervision that the respondent was 'relatively more predisposed to responding defensively to the restrictions placed on him and/or perceiving them as unfair'.[70] Dr Yewers noted:[71]
This appears to have abated somewhat and, although Mr Kyles reported during the current assessment that he found the extent of the constraints to be overly restricting, he relayed that he needs to 'like it or lump it' and that 'kicking and screaming doesn't do any good'. He further explained that he had benefited from supervision as it 'keeps me in line' and his psychological treatment had facilitated addressing his offending and provided a forum for him to talk through issues.
[70] BoM p 416 ([13] of Dr Yewers' report).
[71] BoM p 416 ([13] of Dr Yewers' report).
At the time the reports were prepared by Dr Yewers and Ms Yun, in June and October 2017 respectively, the respondent was reporting for supervision on a fortnightly basis. His level of engagement was considered to be satisfactory, as he had demonstrated a willingness to disclose information consistently and was responsive during discussions relating to his current life circumstances and relationships in the community. The respondent had denied experiencing issues managing high risk factors. He claimed that he had continued to employ protective strategies such as avoiding alcohol and having a companion with him on outings.
The respondent failed to comply with conditions of the supervision order on seven occasions. I have already referred to the three occasions that were the subject of charges. As I have said, he was found to have a reasonable excuse in respect of one of those occasions. The other four breaches were earlier in time than those that were the subject of charges. The first involved inadvertent telephone contact with a child shortly after his release into the community. The others involved travelling through zones that had been designated by his supervising officer as exclusion zones, and providing a dilute urine sample for urinalysis testing. Those breaches occurred in November 2013, November 2014 and October 2015, so there were significant periods of compliance in between. As for the urinalysis incident, the respondent gave a valid sample the following day, which returned a negative result. It appears to have been accepted that the respondent did not deliberately set out to contravene the order by any of those earlier breaches, and no charges were brought.
At the time of the hearing, the respondent was reporting to SOMS on a monthly basis.
He was subject to random and frequent urinalysis testing for the duration of the supervision order. As at the time of the hearing, his urinalysis results had consistently been negative for illicit substances.[72] There has been no suggestion of a positive result since the hearing.
[72] BoM p 430.
The respondent was also subject to ongoing random and frequent breath tests conducted by SOMS. Apart from the respondent's non-compliance on 13 April 2016, there have been no further adverse reports. As at the time of the hearing, the respondent had been subject to breath testing on 48 occasions since 13 April 2016.
Overall the respondent was considered to have demonstrated satisfactory compliance with his obligations under the supervision order. Although the respondent has contravened the supervision order on several occasions, the majority of those breaches are not considered to be directly related to his risk of sexual reoffending. However, his consumption of alcohol during the term of the supervision order, following a significant period of time during which he had already been subject to the order, raised concerns with respect to his level of insight into his offending and his ability to manage his risk in the community.
Treatment programme and counselling completed while subject to the supervision order
While subject to the supervision order the respondent completed the Sex Offender Maintenance Program (SOMP) and engaged in individual psychological counselling, to consolidate the gains he made in the ISOTP. He completed the SOMP on 27 October 2014 and the individual psychological counselling on 23 October 2015.[73]
[73] BoM pp 414 - 415 ([5] of Dr Yewers' report).
The outcomes of the respondent's participation in the ISOTP, as found by Jenkins J in 2013, are set out in [75] above.
In completing the SOMP, which is a community‑based programme, the respondent attended 23 sessions over the course of a year. The completion report was not in evidence, the parties being content to rely on Dr Yewers' summary. The respondent was said to have maintained a 'positive future focus' and impressed as 'cognisant of managing his identified risk factors'.[74] It was also reported that, over the course of the programme, the respondent adjusted progressively to living in the community and refrained from engaging in any behaviours that would place him at risk of being returned to custody both in relation to reoffending and compliance with his order requirements.[75] However, that observation needs to be considered in light of the early contraventions referred to at [98] above, and the respondent's early attitude to the supervision order, described at [95] and [96] above. Nevertheless, Dr Yewers noted that the respondent was observed to be 'heedful about remaining abstinent from alcohol, effectively solving problems and managing his emotions, avoiding contact with children and utilising his personal and professional supports'.[76] The respondent was also noted to have become increasingly accepting of the restrictions associated with the supervision order. Of course, those outcomes reflect the respondent's circumstances as at October 2015. They are relevant to provide context for the most recent assessments, but it will be necessary to have regard to his behaviour since then and his presentation during the assessments for these proceedings.
[74] BoM p 414 ([5] of Dr Yewers' report).
[75] BoM pp 414 ‑ 415 ([5] of Dr Yewers' report).
[76] BoM p 415 ([5] of Dr Yewers' report).
The same may be said of the respondent's individual counselling. The respondent attended 87 counselling sessions with Mr Summerton over the period 4 January 2012 to 23 October 2015.[77] Counselling was terminated in June 2015, when the respondent was deemed to have no further treatment needs. However, he attended three further sessions in September and October 2015 following a series of contraventions that prompted concern from COMU about a possible increase in his risk of sexual reoffending. However, as I noted earlier, the contraventions were considered to be unrelated to such risk, and counselling was again terminated.[78]
[77] BoM p 415 ([5] of Dr Yewers' report).
[78] BoM p 415 ([5] of Dr Yewers' report).
Dr Yewers noted that the focus of counselling after the respondent was released from custody was on adjustment to life in the community and implementation of his self‑management plan.[79] I have referred above[80] to the fact that the respondent had issues with his supervising officers and staff from SOMS, and that those issues were addressed in counselling as they arose. I referred to the limitations of gains in that regard, as observed by Mr Summerton. However, Dr Yewers noted that the respondent's overall adjustment was considered by Mr Summerton to be 'largely unproblematic', with the exception of 'early contraventions for having contact with children under his partner's care', which Mr Summerton considered to be a reflection of the respondent not fully appreciating the parameters of the 'no contact' condition of his order.[81] Dr Summerton was of the view that the respondent subsequently became more vigilant about potential contact with children 'across varying contexts' and 'impressed as able to respond appropriately to inadvertent contact with children, as well as implementing measures to avoid areas where contact with children was likely'.[82]
[79] BoM p 415 ([7] of Dr Yewers' report).
[80] [95].
[81] BoM p 415 ([7] of Dr Yewers' report).
[82] BoM p 415 ([7] of Dr Yewers' report).
Having reached that conclusion, her Honour considered the application of s 27A of the Act to enable an interim supervision order to be made in the event that she was not correct in her conclusion.[304] She was satisfied s 27A applied and ultimately made orders to the effect that the new supervision order would commence 21 days after the date of the orders, and that the respondent in that case be subject to the same conditions of the new supervision order for the interim period of 21 days. Her Honour's reasoning was as follows:[305]
Section 27A permits interim supervision orders to be made before final orders are made in proceedings for, relevantly, a further supervision order under s 8(4A). It caters for the three possible scenarios: that a current supervision order may expire before the pending proceedings have been finally determined, that a previous supervision order has expired, and any other case. In each scenario, the court may, at any time in the pending proceedings, make an order that will have the effect of keeping the offender under supervision until the pending proceedings have been finally determined or until another specified date.
On their face, these words are wide enough to permit an order to be made under s 27A that would have effect for a period of 21 days after the pending proceedings have been finally determined. It would be necessary to make such an order before making an order under s 17(1)(b) as, once an order under s 17(1)(b) is made, the proceedings will have been finally determined and the power to make orders under s 27A will no longer be available
[304] Jonsson [No 3] [137].
[305] Jonsson [No 3] [138] ‑ [139].
Her Honour acknowledged that her construction of s 27A (which applies, inter alia, if proceedings under s 8(4A) are pending) had an air of contrivance, but considered it did not do violence to the language of s 27A.[306] In that regard, I note that the Explanatory Memorandum and the second reading speech in respect of the Dangerous Sexual Offenders Legislation Amendment Bill 2017, which introduced s 27A, stated that the new provision would 'also cover the situation that occurred in [Narkle [No 5]]', which was characterised as being 'where a further application against a person under a DSO supervision order is not yet disposed of and the current supervision order is due to expire', in which case it was said that 'an interim supervision order can be sought under this new section 27A'.[307] With respect, that characterisation did not reflect the issue that arose in Narkle [No 5], which I discuss below. That case had reached the point where the application for a further order was 'disposed of', in that a determination was made, and the issue was whether the 21 day mandate applied. Accordingly, I do not consider that the extrinsic materials in respect of s 27A in that regard assist in its construction. However, it is apparent from the materials that the words 'or until another specified date' did allow for the extension of a supervision order beyond the determination of proceedings, which is consistent with the view taken by Archer J.
[306] Jonsson [No 3] [139].
[307] Hansard, 14 September 2017, Legislative Council, p 4072b-4073a, second reading of Dangerous Sexual Offenders Legislation Amendment Bill 2017.
In her discussion of the issue of construction of s 8(4A) and s 17(1)(b) in Jonsson [No 3], Archer J referred to Narkle [No 5].[308] In that case Jenkins J had determined the same issue on the basis of the construction of the relevant provisions that had been agreed upon by the parties.[309] On that construction, the 21 day mandate in s 17(1)(b) applied in the case of a supervision order made on an application under s 8(4A). The words 'to take effect on the expiry of the current order' in s 8(4A) were construed to mean that 'the DPP cannot apply for a further supervision order which would commence during the currency of an original supervision order and thereby achieve an amendment to the terms of an original supervision order'.[310] In that respect, there was not considered to be an inconsistency with the 21 day mandate in s 17(1)(b), although, as both Jenkins J and Archer J noted, that would leave a gap between the making of the further supervision order and its commencement, which was not in the interests of public safety.
[308] State of Western Australia v Narkle [No 5] [2017] WASC 46 (Narkle [No 5]).
[309] Narkle [No 5] [15].
[310] Narkle [No 5] [13].
In Narkle [No 5], although she proceeded on the basis of the agreed construction advanced by the parties, Jenkins J said:[311]
However, that does not mean that I do not think that there are issues with respect to the proper construction of those provisions.
[311] Narkle [No 5] [15].
I agree with the view of Archer J in Jonsson [No 3] that it is apparent Jenkins J did not purport to resolve the proper construction of the provisions in Narkle [No 5].[312] Accordingly, as Archer J noted, she did not need to be satisfied that Jenkins J was plainly wrong before reaching a different view. In light of the manner in which Archer J ultimately dealt with the matter in Jonsson [No 3], I am left in the same position in respect of both decisions, although her Honour did reach a conclusion with detailed reasons in respect of the construction of the provisions.
[312] Jonsson [No 3] [122].
In my opinion, the construction advanced by the parties in Narkle [No 5] indicates that there is a basis on which the provisions of s 8(4A) and s 17(1)(b) can be reconciled, and the wording of s 8(4A) can have work to do in precluding the commencement of a further supervision order before the current supervision order has expired, albeit resulting in an unsatisfactory situation in which a gap may occur. Further, as Jenkins J noted in Narkle [No 5]:[313]
On any analysis of the statutory provisions, it seems odd that a qualification on the commencement date of a further supervision order was inserted in s 8(4A), which does not contain the power to make the further supervision order. It would have been logical to insert the qualification in s 17(1). If it had been inserted there the possibility of a time gap between the expiration of an original supervision order and the commencement of a further supervision order, which cannot come into effect less than 21 days from when it was made, would have been apparent.
[313] Narkle [No 5] [15].
Nevertheless, for the reasons outlined by Archer J in Jonsson [No 3], referring to the history of the legislation, the purpose of the Act and the purpose of the 21 day mandate in s 17(1)(b), I agree with her Honour's conclusion that it could not have been intended by the legislature that the 21 day mandate would apply in the case of a further supervision order, which in the interests of public safety should commence immediately the original order expires. The extrinsic materials to which her Honour referred supports that conclusion. Although, I respectfully agree with Jenkins J that it is odd that a qualification on the commencement date of a further supervision order would be inserted in s 8(4A), which does not contain the power to make the further supervision order, nevertheless the qualification must inform the nature of the order that can be made on an application pursuant to s 8(4A).
While the words 'to take effect on the expiry of the current order' do have the effect of preventing an order being made before that time, they also have the effect, in their ordinary meaning, of mandating that the effect of the order will commence on the expiry of the current order, not at a later time (i.e. not after the expiry). That is the nature of the order for which an application is made under s 8(4A). While it would have been desirable for the issue of when a further supervision is to commence to be dealt with in s 17(1), as indicated by Jenkins J, I respectfully agree with the conclusion reached by Archer J in Jonsson [No 3]that, having regard to the combined context and effect of s 17(1) and s 8(4A), there is a conflict to be resolved, and it is appropriately resolved by not applying the 21 day mandate to an order made on an application under s 8(4A). In my view, while the availability of an interim detention order under s 27A to bridge any gap may overcome the unsatisfactory outcome identified in Narkle [No 5] and Jonsson [No 3], that does not affect the construction of s 8(4A) and s 17(1)(b).
As the materials referred to by Archer J confirm, the 21 day mandate was introduced because, historically, difficulties were encountered in making the appropriate arrangements to move the respondent into approved accommodation and put in place any necessary measures when an order was made without the parties having advance notice of the outcome. Such difficulties do not arise in this case. The respondent will be required to sign the new supervision order, but otherwise he will continue to live in his current accommodation, which has been considered to be suitable for some time, and the current arrangements in terms of his supervision will also continue until there is a need, if any, to change them.
As Archer J observed in Jonsson [No 3], there is an air of contrivance in utilising s 27A to overcome the gap created by s 17(1)(b) if her Honour's construction of s 8(4A) and s 17(1)(b) is incorrect. There may well be instances in which it is necessary to order the continuation of a current supervision order or to make an interim supervision order where it is not possible for the new supervision order to take effect immediately on the expiry of the current order. However, where the further supervision order can commence immediately, it would be a contrivance that could not reasonably have been contemplated by the legislature to defer the commencement and fill the gap by an order under s 27A. I do not consider the construction adopted by Archer J in Jonsson [No 3] to be incorrect. It is the construction I adopt.
By virtue of the order made by Derrick J continuing the effect of the supervision order made by Jenkins J on 6 June 2013, that supervision order will expire when the proceedings under s 8(4A) are finally determined. The proceedings will be finally determined when final orders are made in the proceedings. The further supervision order should come into effect at that time.
Suppression orders
At the time of making orders in respect of the preliminary hearing in these proceedings, Derrick J made a suppression order in the following terms:
There is to be no publication outside of the court of the respondent's name or of any material that could lead to the identification of the street address of the respondent's proposed address, or any street address the respondent resides at for the duration of the supervision order.
That order was in respect of the continuation of the original supervision order and has continued pending the determination of these proceedings.
The applicant submitted that the court should consider making an order extending the suppression order for the duration of any further supervision order. In relation to the respondent's address, it relies on the possibility that there would be publicity of the respondent's address if it were published, and he could be harassed by members of the community who become aware of it and who do not wish to have someone who has been found to be a serious danger to the community to reside in the community or within a particular locality. The possibility is real, as such conduct has occurred in the past. Apart from potential risk to the respondent's safety, such harassment can be counter‑productive to the progress the respondent has made coping in the community, which is a protective factor mitigating his risk of reoffending. Further, the applicant submits that the safety of persons providing support services to the respondent at his address could be put at risk. Finally, if the property is 'compromised' in any of those ways, it would be necessary to find new accommodation, which would be an additional burden. Such accommodation would have to be assessed to be suitable.
As for the respondent's name, apart from the possibility that he may be identified and be subject to harassment on that basis, the applicant referred to the evidence in these proceedings concerning the respondent's fear that his friends will find out about his past and his current status and that those friendships will be jeopardised.
The applicant did not make an application for a suppression order. Rather, it raised the matter to assist the court in light of matters known to be of concern to COMU and which might subvert any further supervision order made in respect of the respondent. There was no evidence in relation to the view taken by COMU about such matters, as Ms Comery had not taken instructions and was not in a position to assist. Nevertheless, the court is familiar with the issues that have arisen in some other cases and the approach ordinarily taken by COMU. The respondent did not make an application for a suppression order, but I understand him to acquiesce in the submission made by the applicant.
The legal principles applicable to the making of a suppression order were concisely stated by Archer J in Jonsson [No 3] in a similar context as the present case as follows (footnotes omitted):[314]
The principles of open justice are well settled. A suppression order should only be made 'if it is really necessary to secure the proper administration of justice in proceedings before it'. Further, there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient'.
[314] Jonsson [No 3] [147], referring to Prisoners Review Board v Freeman [No 2] [2010] WASCA 167 [8].
As a general proposition, I accept that members of the community have a legitimate interest in being aware of the identity and presence of offenders in their community. However, that interest must be balanced against the potential subversion of the viability of a supervision order when such an order is made.
Although there is no evidence in respect of this issue, I am satisfied on the basis of previous experience, of which I take judicial notice, that publication of the address of a person who is subject to a supervision order can lead to the difficulties raised by the applicant. I am satisfied that it is necessary to make a suppression order in respect of the respondent's residential address to secure the proper administration of justice in these proceedings. As I noted earlier, the regime under the Act is not aimed at further punishment. Its object is the protection of the community. The protection of the community under a supervision order is achieved by conditions, which involve extensive monitoring and supervision of the respondent. That protection 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. The availability of suitable accommodation is a critical aspect of enabling a supervision order to work effectively.
The suppression order is not made to save the respondent embarrassment. It is to ensure that accommodation that is currently available to the respondent remains available to him. It is necessary to make a suppression order suppressing the respondent's residential address to protect the viability of the suppression order that I will make.
However, in relation to the suppression order in respect of the respondent's name, while I understand the respondent's concern that his friends may find out about the proceedings, there is no evidence to suggest that is likely to occur. In any event, in the course of these reasons, I have referred to previous decisions in respect of the respondent in which his name was used. It is not in the interests of justice to redact all references to previous decisions, which are important in understanding the respondent's history. The prior decisions are available on the court's database and would be discovered if a search were made of the respondent's name.
I am not satisfied in the circumstances of this case that there is a proper basis for suppressing the respondent's name.
A final matter that flows from my decision not to suppress the respondent's name is that it will be appropriate to suppress details in the published version of these reasons that might identify the victims of a number of the respondent's offences. That was the approach taken by Commissioner Sleight in Kyles. There is no public interest in the publication of those details, and there are good reasons to protect the identities of those persons. As there was reference to some of those persons during the hearing, there will also be an order prohibiting publication of any information that might identify those persons.
Orders
I make the following orders:
1.Upon the coming into effect of the supervision order referred to in Order 2, the supervision order made by the Hon Justice Jenkins on 6 June 2013 is to cease to have effect.
2.From 14 July 2020, for a period of 3 years, the respondent, when not in custody, is to be subject to the conditions of the supervision order annexed to these reasons as Annexure A.
3.There is to be no publication outside of the court of any material that could lead to the identification of the street address or suburb of the respondent's current residential address, or any street address or suburb the respondent resides at for the duration of the supervision order in Order 2.
4.Information in the court's reasons that is capable of identifying any victim of the respondent's offending is to be suppressed.
5.There is to be no publication outside of the court of any material that could lead to the identification of any victim of the respondent's offending.
ANNEXURE A
SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 14 JULY 2020
_______________________________________________________________________
The Court, having found pursuant to section 17(1) of the Dangerous Sexual Offenders Act 2006 that the Respondent is a serious danger to the community, orders that the Respondent be the subject of a supervision order pursuant to section 17(1)(b) of the Dangerous Sexual Offenders Act 2006 for a period of 3 years from 14 July 2020, on the following conditions:
You, DENIS GEORGE KYLES, must:
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address.
Report to and receive visits from a Community Corrections Officer as directed by the court.
Notify a Community Corrections Officer of every change of your name, place of residence or place of employment at least 2 business days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.
Be subject to electronic monitoring under section 19A.
ADDITIONAL CONDITIONS
Residence
Take up residence at [suppressed], and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.
Reporting to a CCO and supervision by a CCO
Report to and receives 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 employment, education, training or volunteer work, or commence a business, without the prior approval of the CCO.
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.
Reporting to WA Police
Report to the Officer-in-Charge of the Sex Offender Management Squad at [suppressed] as directed and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate or authorised person.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order.
Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle pursuant to condition 14.
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you, and all internet user names or identities used by you.
Permit a CCO or WA Police to access upon request any computer or device capable of storing digital data (electronic storage device), for the purpose of ascertaining your computer activities.
Provide to the CCO or WA Police upon request any passwords, or any other means used to unlock or access any computer or electronic storage device, as may be required for the access described in condition 17.
Not delete any data from any computer or electronic storage device in your possession without prior permission from the CCO or WA Police.
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact: is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice, Corrective Services; or is conducted in a manner approved in advance by the CCO, such latter approval being not to be given except with the express consent of the victim.
Unless contact with victims is permitted pursuant to the previous conditions, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to the CCO or Police.
Criminal conduct
Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.
Curfew
Be subject to a curfew, pursuant to section 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Medications/Mental Health
Undergo medical testing or treatment, including anti-depressant medication as directed by the CCO in consultation with any doctor, psychiatrist or endocrinologist.
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, Corrective Services.
Attend for and comply with all testing, including testing directed without notice, as directed by the CCO on the recommendation of any medical practitioner, psychiatrist, or psychologist, for the purpose of monitoring the effect, on you health or the effect on your risk or re-offending, of any medication prescribed or being taken.
Prevention of high-risk situations
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Not possess, purchase, consume or use alcohol.
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 for testing pursuant to condition 37.
Not be on any licensed premises unless permitted or required to do so for the following reasons:
(a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
(b)For a purpose and for a duration approved in advance by a CCO; or
(c)On the order of a CCO or Police Officer.
Provided that the CCO may suspend the operation of this condition in respect of particular licensed premises or licensed premises of a particular kind for such period as the CCO considers appropriate while satisfied that it is not necessary for you to be prohibited from being on such premises for the purpose of ensuring the adequate protection of the community.
Have no contact with any child under the age of 16 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
(`Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
Where any unsupervised contact with a child under the age of 16 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide details of any contact with a child under the age of 16 years both to your CCO and to the Police on the next working day or on the next occasion you report to that person or agency, whichever occurs first.
Not form any domestic, romantic, sexual or otherwise intimate relationship with a person who has children under the age of 16 years in their care either full time or part time, unless approved by the CCO.
Report immediately to your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with a person who has children under the age of 16 years in their care either full time or part time.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO, and present this diary to the CCO or any Police Officer upon request.
Not conduct computer searches for, nor possess or collect in either electronic or permanent form, images of children, whether indecent or not, with the exception of images of your immediate family that are not indecent images.
(The terms `Children' and 'Child' under this condition and the following condition mean: (a) any person under the age of 16 years; and (b) in the absence of positive evidence as to age, any person apparently under the age of 16 years).
Not search for child pornographic images, stories or other articles in the written or typed form with references to child pornography during access to any computer or any other device capable of Internet access.
Whilst in any public place, not be in present possession of any children's toy, game or confectionary capable of constituting an enticement to children, unless such possession is for a legitimate purpose.
Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
Not go onto the grounds of any school for children under the age of 16 years or loiter around such grounds.
(The 'grounds of a school' under this condition includes the verge on the side of the road which is adjacent to the school property. This condition does not limit the power of a CCO to give a direction for the purpose of condition 51).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca22 JULY 2020
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