The State of Western Australia v Lewis [No 2] - [2020] WASC 377

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- LEWIS [No 2] [2020] WASC 377
CORAM:   MCGRATH J
HEARD:   21 JULY 2020 & 5 OCTOBER 2020
DELIVERED          :   21 OCTOBER 2020
FILE NO/S:   DSO 8 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JONATHON NEAL LEWIS
Respondent

Catchwords:

Criminal law – High risk serious offender – Whether a continuing detention order or supervision order should be made – Duration and conditions of supervision order – Substantial compliance with standard conditions – Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 14, s 17
High Risk Serious Offenders Act 2020 (WA), s 3, s 5, s 7, s 27, s 29, s 30, s 35, s 124, s 125

Result:

Supervision order made

Category: B

Representation:

Counsel:

Applicant	:	Mr M T Ritter SC
Respondent	:	Mr B G Illari

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Illari B G Barrister & Solicitor

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

Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 198 A Crim R 149
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Lewis [2019] WASC 429
The State of Western Australia v Narrier [No 6] WASC 349

MCGRATH J:

Mr Lewis was serving a term of imprisonment for sexual offences that he committed against children in 2017.
On 1 October 2019, the State of Western Australia applied for an order in respect of Mr Lewis under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).[1] The State contends in that application that Mr Lewis is a serious danger to the community and that he should be detained in custody for an indefinite term for control, care or treatment, or alternatively, should he be released, he should be subject to a supervision order under the DSO Act.
[1] Application by the State of Western Australia dated 20 September 2019.
On 20 November 2019, I heard the div 1 hearing and determined that there were reasonable grounds for believing that the court might, under s 7(1) of the DSO Act, find that Mr Lewis is a serious danger to the community.[2] I also ordered that Mr Lewis be detained in custody until the conclusion of the application.
[2] The State of Western Australia v Lewis [2019] WASC 429.
On 21 July 2020 and 5 October 2020, I heard the application for the div 2 order under the DSO Act. At the hearing on 21 July 2020, the State case was presented. However, given that no accommodation was available should Mr Lewis be released, the matter was adjourned to permit time to locate suitable accommodation. Accordingly, Mr Lewis remained in custody while suitable accommodation was located. On 5 October 2020, the hearing was resumed.
On 9 July 2020 pt 1 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) commenced and subsequently on 26 August 2020 other parts of the HRSO Act commenced. For reasons that I outline below the application is determined under the HRSO Act.
I have determined that it is necessary that Mr Lewis be subject to a restriction order to ensure the adequate protection of the community against the unacceptable risk that he will commit a serious offence. I have further determined that a supervision order under s 27 of the HRSO Act will provide adequate protection of the community.
In these reasons, I will consider the following:
1.The evidence received at the hearing.
2.The relevant legal principles.
3.The factors under s 7 of the HRSO Act.
4.Assessment and conclusion.

Evidence

The State's evidence comprised the oral testimony of four witnesses, namely Dr Wojnarowska,[3] Consultant Psychiatrist; Dr Riordan,[4] Senior Forensic and Clinical Psychologist; Ms Hasson,[5] Forensic Psychologist; and Ms McGeown,[6] Senior Community Corrections Officer; and a Book of Materials[7] and a Supplementary Book of Materials[8] that comprised documentary material including reports.
[3] ts 29 ‑ 38 (21/07/2020).
[4] ts 38 ‑ 44 (21/07/2020).
[5] ts 44 ‑ 59 (21/07/2020).
[6] ts 59 ‑ 65 (21/07/2020).
[7] Exhibit 1 Book of Materials.
[8] Exhibit 2 Supplementary Book of Materials.

Legal principles

High Risk Serious Offenders Act 2020 (WA)

On 9 July 2020 pt 1 of the HRSO Act commenced. Further parts of the HRSO legislation that are relevant to this application came into force on 26 August 2020. Upon commencement of those parts of the HRSO Act, the DSO Act was repealed.
By s 124(1) of the HRSO Act, as the application made under the DSO Act had not been determined prior to the commencement of the HRSO Act, the application and these proceedings continue and may be determined under the HRSO Act. For the purposes of determining the application under the HRSO Act, the application is taken to have been made under the corresponding provision of the HRSO Act. Pursuant to s 125 of the HRSO Act, any order made or direction given under the DSO Act continues in effect and is taken to have been made or given under the corresponding provision of the HRSO Act.
I agree with the observations of Fiannaca J in The State of Western Australia v ZSJ[9] regarding the construction of the HRSO Act. In particular, the HRSO Act operates largely as the DSO Act did in respect of serious sexual offences. Previously the issue to be determined was whether the respondent was a 'serious danger to the community'. The question now is whether the respondent is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.
[9] The State of Western Australia v ZSJ [2020] WASC 330.
Fiannaca J also expressed the view that given that the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in considering and applying the HRSO Act, with appropriate adaptation in cases involving non‑sexual offences. Derrick J in The State of Western Australia v Narrier [No 6][10] expressed the view that the case law decided under the DSO Act in relation to applications for review of continuing detention orders and supervision orders remains relevant to the determination of such applications under the provisions of the HRSO Act. I respectfully agree with the views expressed by Fiannaca J and Derrick J. Accordingly, I will refer to cases which have been concerned with the DSO Act when determining this application which is now a proceeding under the HRSO Act.
[10] The State of Western Australia v Narrier [No 6] WASC 349.
Pursuant to s 35 of the HRSO Act the State may make an application under the HRSO Act where a person is a serious offender under custodial sentence. The term 'serious offender under custodial sentence' is defined in s 3:
serious offender under custodial sentence means a person –
(a)who is under a custodial sentence for a serious offence; or
(b)who –
(i)is under a custodial sentence for an offence or offences other than a serious offence; and
(ii)has been under that sentence at all times since being discharged from a custodial sentence for a serious offence;
At the time this application was made Mr Lewis was serving a term of imprisonment for a 'serious offence' as defined by s 3 and s 5 of the HRSO Act.
A serious offence is defined by s 5 of the HRSO Act which relevantly provides:
5.Term used: serious offence
(1)An offence is a serious offence if –
(a)it is specified in Schedule 1 Division 1; or
(b)it is specified in Schedule 1 Division 2, and is committed in the circumstances indicated in relation to that offence in that Division.
(2)An offence is a serious offence if –
(a)it was an offence under a written law that has been repealed; and
(b)the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).
(3)An offence is a serious offence if it is an offence of conspiracy, attempt or incitement to commit an offence that is a serious offence under subsection (1) or (2).
Mr Lewis has committed offences that come within this category. Mr Lewis has also committed a number of offences that are not characterised as a serious offence. Offences of other types may be relevant in assessing the risk of serious sexual offending being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious sexual offending.[11]
[11] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].
Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if the court is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the HRSO Act, it necessarily follows that the person concerned is a high risk serious offender.[12]
[12] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66], [68] (Wheeler JA); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21] (Steytler P & Buss JA).
Section 7(2) of the HRSO Act provides that the State has the onus of satisfying the court that a person is a high risk serious offender. The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.[13] This does not necessarily mean that the risk must be at some high percentage of probability; a risk may be less than 50% yet still be unacceptable. However, the court must identify what it is that constitutes the risk and what makes it unacceptable, and then consider whether or not those factors have been proved to the requisite standard, that being to a high degree of probability, furnished by acceptable and cogent evidence.[14]
[13] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).
[14] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [34] (Steytler P & Buss JA).
A finding that there is an unacceptable risk involves a balancing exercise requiring the court to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for Mr Lewis if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[15]
[15] Italiano v The State of Western Australia [2009] WASCA 116 [46].
An unacceptable risk in the context of s 7(1) of the HRSO Act is therefore a risk which is unacceptable having regard to a variety of considerations. These may include the likelihood of the person offending, the type of serious offence which the person is likely to commit (if that can be predicted) and the consequences of finding that an unacceptable risk exists. I am required to consider, having regard to the likelihood of Mr Lewis offending and the offence likely to be committed, whether the risk of that offending is so unacceptable that, notwithstanding the fact that Mr Lewis has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[16]
[16] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] (Wheeler JA).
Section 7(3) of the HRSO Act sets out a number of matters that the court must have regard to in considering whether a person is a high risk serious offender:
(3)In considering whether it is satisfied as required by subsection (1), the court must have regard to the following –
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
I note that s 7(3)(j) of the HRSO Act provides that the list of matters to be considered by the court is not limited by those otherwise delineated in the subsection.
While s 7(3)(g) of the HRSO Act provides that the court must have regard to the offender's criminal record in deciding whether a person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious offence in the future. The relevance of a prior criminal record would depend on the nature of the offences committed, the number of offences, and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.
If a court determines that an offender is a high risk serious offender then the court is required to make a restriction order.[17]
[17] High Risk Serious Offenders Act 2020 (WA) s 48.
The term 'restriction order' is defined in s 3 of the HRSO Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 respectively in similar terms to those that were used in the DSO Act.
Section 26 provides:
(1)In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.
(2)A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.
Section 27 provides:
(1)In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.
(2)A supervision order has effect in accordance with its terms –
(a)from a date stated in the order; and
(b)for a period stated in the order.
(3)The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
In making a determination between those two alternatives the paramount consideration is the need to ensure the adequate protection of the community.[18]
[18] High Risk Serious Offenders Act 2020 (WA) s 48(2).
However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[19]
[19] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
Given the more onerous nature of a continuing detention order, the scheme of the HRSO Act requires that the court do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection to the community.[20]
[20] The State of Western Australia v Latimer [2006] WASC 235 [24]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [15].
Section 29 of the HRSO Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The onus of proof in relation to this is on the offender.[21]
[21] High Risk Serious Offenders Act 2020 (WA) s 29(2).
The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious offence.[22]
[22] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52].
The term 'standard condition', in relation to a supervision order, is defined by s 3 of the HRSO Act as meaning a condition under s 30(2) of the HRSO Act that must be included in the order. Section 30(2) of the HRSO Act provides seven conditions that must be included in any court‑ordered supervision order. Therefore, Mr Lewis must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order. The seven standard conditions require that the person:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
I now turn to the matters relevant to determining whether or not Mr Lewis is a high risk serious offender pursuant to s 7 of the HRSO Act. I will do so by considering the evidence in the context of the factors under s 7 of the HRSO Act.

Factors under s 7 of the HRSO Act

History of offending and antecedents – s 7(3)(g)

In deciding whether a person is a high risk serious offender the court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.

The criminal record and antecedents are relevant in and of themselves, but are also relevant to whether the person has a propensity to commit serious offences in the future.[23] The criminal record and antecedents are also relevant to whether there is any pattern of offending behaviour.[24]

Antecedents

[23] High Risk Serious Offenders Act 2020 (WA) s 7(3)(c).

[24] High Risk Serious Offenders Act 2020 (WA) s 7(3)(d).

Mr Lewis is 32 years of age having been born on 1 September 1988. There is no evidence that he experienced childhood trauma, neglect or abuse.[25] Mr Lewis has no children and is not in a relationship. Mr Lewis completed his education to Year 12, attending education support classes.[26]
[25] Exhibit 1, Book of Materials, Pre-sentence Report dated 7 May 2018, 381.
[26] Exhibit 1, Book of Materials, Pre-sentence Report dated 7 May 2018, 381.
Mr Lewis has cognitive and attention difficulties.[27] In 2009, Mr Lewis was assessed with the Wechsler Abbreviated Scale of Intelligence (WASI).[28] The WASI assists in identifying cognitive difficulties that may influence a person's capacity to function and work within the community.[29]
[27] Exhibit 1, Book of Materials, Pre-sentence Report dated 7 May 2018, 381.
[28] Exhibit 1, Book of Materials, Psychological Report of Ms Wager dated 19 June 2009, 122.
[29] Exhibit 1, Book of Materials, Psychological Report of Ms Wager dated 19 June 2009, 122.
The Full Scale Intelligence Quotient obtained from the WASI testing suggested that Mr Lewis would rank in the low average range of scores (19th percentile), indicating that 81% of similar aged peers would perform as well as or better than Mr Lewis on the subtests presented.[30] The results on the performance subtests were significantly higher than his score on the verbal subtests.[31]

Relevant criminal history

[30] Exhibit 1, Book of Materials, Psychological Report of Ms Wager dated 19 June 2009, 122.

[31] Exhibit 1, Book of Materials, Psychological Report of Ms Wager dated 19 June 2009, 122.

Mr Lewis has a criminal history that relevantly comprises sexual offending.[32] Mr Lewis' sexual offending involves offences committed against multiple female child victims. The offending is summarised in a chronology of offending which was received in evidence.
[32] Exhibit 1, Book of Materials, Western Australian Criminal Record, 1 ‑ 2.
I will now provide a summary of Mr Lewis' relevant offending.

2005 offending – attempted sexual penetration of a child under 13 years of age

In January 2005, Mr Lewis committed the offence of attempted sexual penetration of a child under 13 years of age contrary to s 320(2) of the Criminal Code (WA).[33] On 6 July 2009, Mr Lewis was sentenced in the Children's Court for that offending.[34] At the time of the offending, Mr Lewis was 16 years of age and the victim was a 12‑year‑old girl.[35]
[33] Exhibit 1, Book of Materials, Prosecution Notice dated 16 April 2009, 114.
[34] Exhibit 1, Book of Materials, Sentencing Transcript of 6 July 2009, 128 ‑ 143.
[35] Exhibit 1, Book of Materials, Sentencing Transcript of 6 July 2009, 129.
The offending involved Mr Lewis entering his sister's bedroom in the middle of the night, approaching the victim, who was sleeping over, and then lifting her nightie, pulling off her underwear and laying on top of her, holding her down with his body weight.[36] Mr Lewis then attempted to penetrate the victim's vagina with his penis but was unable to do so. Mr Lewis was disturbed by a noise causing him to leave the bedroom. The victim was distraught following the offending.[37]
[36] Exhibit 1, Book of Materials, Sentencing Transcript of 6 July 2009, 130.
[37] Exhibit 1, Book of Materials, Sentencing Transcript of 6 July 2009, 130.
His Honour Judge O'Neal imposed an 18 month term of imprisonment, conditionally suspended for 2 years with reporting and program requirements.[38]
[38] Exhibit 1, Book of Materials, Sentencing Remarks of 6 July 2009, 142.
The offence is a serious offence under the HRSO Act.

2010 offending – sexually penetrated a child over 13 years of age and under 16 years of age

On 13 March 2010, Mr Lewis committed the offence of sexually penetrating a child over 13 years of age and under 16 years of age contrary to s 321(2) of the Criminal Code.[39]
[39] Exhibit 1, Book of Materials, Indictment dated 10 September 2010, 216.
The offending involved Mr Lewis and the victim contacting each other by text messages. Mr Lewis arranged to meet the victim at a location later that evening. Mr Lewis left his family residence late at night to meet the victim, who Mr Lewis was aware was a 14‑year‑old girl. At the time of the meeting Mr Lewis had sexual intercourse with the victim by penetrating her vagina with his penis.
The sentencing judge found that there was no force or coercion used by Mr Lewis.[40] Mr Lewis was sentenced to an immediate term of 18 months' imprisonment for the offence and 18 months' imprisonment for breaching the conditionally suspended imprisonment order imposed by O'Neal DCJ for the 2005 offending.[41] The terms of imprisonment were ordered to be served concurrently. Therefore, the total effective sentence was 18 months' imprisonment.
[40] Exhibit 1, Book of Materials, Sentencing Remarks of 8 October 2010, 238.
[41] Exhibit 1, Book of Materials, Sentencing Remarks of 8 October 2010, 241.
The offence is a serious offence under the HRSO Act.

Index offending – 2017 offending

On 18 June 2018, Mr Lewis was convicted of the following:
1.one count that on a date unknown between 31 March 2017 and 31 May 2017, with intent to commit a crime, he showed offensive material to a child under the age of 16 years contrary to s 204A(2) of the Criminal Code;
2.one count that on a date unknown between 31 March 2017 and 31 May 2017, he procured a child over 13 years of age and under 16 years of age to do an indecent act contrary to s 321(5) of the Criminal Code;
3.one count that on a date unknown between 31 March 2017 and 31 May 2017, he involved a child in child exploitation contrary to s 217(2) of the Criminal Code; and
4.one count that between 1 April 2017 and 30 January 2018 he failed to comply with his reporting obligations contrary to s 63(1) of the Community Protection (Offender Reporting) Act2004 (WA).[42]
[42] Exhibit 1, Book of Materials, Indictment dated 5 June 2018, 369.
The facts upon which Mr Lewis was sentenced for the 2017 offending were as follows.[43] Between 1 April 2017 and 30 May 2017, Mr Lewis used a social media networking chatroom to contact the victim who was 14 years of age.[44] The gravamen of count 1 is that Mr Lewis sent pictures of his erect penis and videos of himself masturbating to the victim. Mr Lewis encouraged the victim to then record and send indecent images and videos of herself engaging in sexual acts.[45]
[43] Exhibit 1, Book of Materials, Amended Statement of Material Facts, 365 ‑ 368.
[44] Exhibit 1, Book of Materials, Sentencing Transcript of 18 June 2018, 394.
[45] Exhibit 1, Book of Materials, Amended Statement of Material Facts, 366.
Count 2 involved Mr Lewis encouraging the victim to engage and perform sexual acts on herself, in particular, through the act of touching her vagina. In some instances the offending occurred during video calls.[46]
[46] Exhibit 1, Book of Materials, Amended Statement of Material Facts, 366.
Count 3 involved Mr Lewis requesting the victim play with herself for his benefit by the victim touching her vagina and breasts and sending videos and images of her performing those actions to him. Accordingly, the victim sent images of her bare breasts and vagina as well as videos of her engaging in masturbation to Mr Lewis. The victim's mother upon finding the chat logs reported the offending to the police.[47]
[47] Exhibit 1, Book of Materials, Amended Statement of Material Facts, 366 ‑ 367.
Count 4 is in respect of Mr Lewis failing to meet his reporting obligations contrary to s 63 of the Community Protection (Offender Reporting) Act. Under his reporting obligations, Mr Lewis was required to attend regular meetings with his case manager and report changes in his personal details within 24 hours or 7 days of those events occurring, depending on what details changed. During the period of April 2017 to 30 January 2018, Mr Lewis failed to provide details to his case manager relating to online accounts he was using to communicate with other people. Mr Lewis admitted to the police that he knowingly withheld this information from his case manager.[48]
[48] Exhibit 1, Book of Materials, Amended Statement of Material Facts, 367.
The sentencing judge imposed a total effective sentence of 25 months' imprisonment for the offending.[49]
[49] Exhibit 1, Book of Materials, Sentencing Transcript of 18 June 2018, 399.
The offences set out in div 1 of sch 1 of the HRSO Act include all previous offences defined as serious sexual offences under the DSO Act. Counts 1, 2 and 3 on the 2017 offences indictment are serious offences under the HRSO Act. Therefore, Mr Lewis has been convicted of serious offences as defined under the HRSO Act.

Other offending

On 29 November 2013, Mr Lewis was convicted of an offence of failing to comply with reporting obligations contrary to s 63 of the Community Protection (Offender Reporting) Act.[50] The offending involved Mr Lewis staying at a friend's residence for a two week period due to a dispute with his father. Mr Lewis disclosed the failure to report to his case manager.[51] The magistrate imposed a fine of $150.

Propensity to commit serious offences in the future – s 7(3)(c)

[50] Exhibit 1, Book of Materials, Western Australian Criminal Record, 1.

[51] Exhibit 1, Book of Materials, Statement of Material Facts, 249.

The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR Murray AJA stated that:[52]
[propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[52] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178] (Murray AJA).
Mr Lewis has committed serious offences against female children. Dr Wojnarowska determined that Mr Lewis' sexual interest in pubescent girls aged 12 ‑ 14 years is hebephilia and a social deviance rather than a sexual deviance.[53] Whilst the victims were of different ages they were all under 18 years of age. The convictions permit the inference to be made that Mr Lewis has a tendency to commit sexual offences against female children aged between 12 ‑ 14 years, both in person and by using electronic devices.

Whether or not there is any pattern of offending behaviour – s 7(3)(d)

[53] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 8 March 2020, 459.

The convictions demonstrate a pattern of offending against females and not males, and against children not adults.
The offending is characterised by Mr Lewis targeting pubescent girls aged between 12 ‑ 14 years of age. Mr Lewis' offending discloses that he uses electronic devices to groom female children.

Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect – s 7(3)(e) and s 7(3)(f)

I must also consider if Mr Lewis has made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs. Further, whether or not the participation in any rehabilitation programs has had a positive effect.
In 2010, Mr Lewis participated in and completed the People 1st Programme which provides a program of teaching intellectually disabled offenders about sex, consent and appropriate sexual boundaries.[54]
[54] Exhibit 1, Book of Materials, People 1st Programme Report, 217 ‑ 220.
The report from the People 1st Programme stated that Mr Lewis was able to articulate most of the concepts taught including the inappropriateness and illegality of adult sexual contact with children and that sexual partners must be over the age of 16 years. Mr Lewis reoffended less than two months after completing that program.
In 2010 Mr Lewis was assessed as being suitable to participate in the Sex Offending Intellectual Disabilities Program and in 2011 the Legal and Social Awareness Program. Mr Lewis declined to participate in either program at that time for the reason that he did not wish to be transferred to Casuarina Prison, citing the lack of family support if he transferred.[55]
[55] Exhibit 1, Book of Materials, Proposed Dangerous Sex Offender Management Plan dated 25 February 2020, 418.
In 2018, Mr Lewis expressed a willingness to transfer to a different prison in order to complete the Sex Offending Intellectual Disabilities Program. However, Mr Lewis did state that he held concerns about his personal safety if he transferred to another prison and that he would lack the support of his family.[56]

Psychiatric reports and extent to which Mr Lewis cooperated with psychiatric examinations – s 7(3)(a)

Dr Wojnarowska

[56] Exhibit 1, Book of Materials, Proposed Dangerous Sex Offender Management Plan dated 25 February 2020, 418.

Dr Wojnarowska produced two reports, under s 37 of the DSO Act, dated 8 March 2020[57] and 10 July 2020[58] respectively, and also gave oral testimony at the hearing of the application.[59] In my view, it is evident from the reports and the evidence of Dr Wojnarowska that Mr Lewis cooperated when he was examined.
[57] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 8 March 2020, 449 ‑ 464.
[58] Exhibit 2, Supplementary Book of Materials, Report of Dr Wojnarowska dated 10 July 2020, 12 ‑ 14.
[59] ts 29 ‑ 38 (21/07/2020).
Dr Wojnarowska used the diagnostic tool DSM‑V to determine whether Mr Lewis was suffering any psychiatric or clinical disorder. The DSM‑V professional diagnostic tool is an internationally recognised diagnostic system of the American Psychiatric Association. The DSM‑V is a comprehensive and highly detailed classification system for psychiatric disorders based on clinical description rather than presumed causation.
Dr Wojnarowska stated that Mr Lewis has developed a pattern of offending against pubescent females, which is called hebephilia. Dr Wojnarowska stated that hebephilia is a social deviance characterised by strong and persistent sexual interest by adults in pubescent (early adolescent) children, typically ages 11 ‑ 14 years.
Dr Wojnarowska determined that Mr Lewis does not present with any identifiable psychopathology. Mr Lewis does present with some avoidant/dependent personality traits characterised by anxiety, fear of rejection and criticism. Dr Wojnarowska stated that in her opinion Mr Lewis did not present as a person with Intellectual Disability.[60]
[60] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 8 March 2020, 459.
Dr Wojnarowska used actuarial instruments and structured professional judgment tools to assess risk. Dr Wojnarowska used the STATIC‑99R, which is an actuarial tool designed to assess the long‑term potential for sexual recidivism amongst adult male sex offenders. The STATIC‑99R score of Mr Lewis placed him in the high risk range. In routine samples with the same score as Mr Lewis the five year recidivism rate of sexual offending is 25%.[61]
[61] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 8 March 2020, 461.
Dr Wojnarowska also utilised the Hare Psychopathy Checklist-Revised (PCL‑R), which assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy.[62] The PCL‑R score is recognised as a useful indicator of likely future recidivism for general, violent and, to a lesser degree, sexual offending. The score obtained from this test can be an important component of other risk assessment tools including structured clinical guides. The Risk for Sexual Violence Protocol (RSVP) is such a guide and requires consideration of a comprehensive range of risk factors for sexual offending, with emphasis given to the manageability of the risk of future sexual violence.
[62] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 8 March 2020, 461.
Dr Wojnarowska determined that Mr Lewis did not have a psychopathic disorder given that the PCL‑R score was in the low range.[63]
[63] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 8 March 2020, 461.
Dr Wojnarowska expressed the opinion that Mr Lewis' risk of sexual offending is high and cannot be managed in the community unless he is subject to the DSO legislation. Dr Wojnarowska observed that Mr Lewis has never received offence specific treatment and has many outstanding treatment needs. Further, Mr Lewis' sexual interest in pubescent children is unlikely to shift without treatment.[64] Mr Lewis requires 'ongoing psychological treatment with focus on Emotion Management; Relationships; Problem Solving; Responsibility; Sexual Interest; Cognitive Distortions and Risk Management.'[65]
[64] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 8 March 2020, 461.
[65] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 8 March 2020, 463.
Dr Wojnarowska stated that Mr Lewis is likely to comply with orders given that he has no history of generalist offending, does not exhibit antisocial attitudes and does not appear to be highly impulsive or manipulative.[66]
[66] Exhibit 1, Book of Materials, Report of Dr Wojnarowska dated 8 March 2020, 461.
During her testimony, Dr Wojnarowska confirmed that if Mr Lewis was placed on a supervision order he would likely comply with the conditions imposed.[67] Further, that ongoing detention whilst undertaking treatment would not be conducive to rehabilitation.[68] Dr Wojnarowska stated that if appropriate conditions were imposed under a supervision order and suitable accommodation was available then the risk that Mr Lewis presents could be managed in the community.[69]

Psychological and other assessments – s 7(3)(b)

Dr Vuletich

[67] ts 35 (21/07/2020).

[68] ts 35 (21/07/2020).

[69] ts 38 (21/07/2020).

Dr Vuletich, Clinical Neuropsychologist, provided a report dated 25 June 2020.[70] Dr Vuletich did not give evidence at the hearing.
[70] Exhibit 1, Book of Materials, Report of Dr Vuletich dated 25 June 2020, 465 ‑ 489.
Dr Vuletich examined Mr Lewis' current intellectual functioning using the Wechsler Adult Intelligence Scale, 4th edition (WAIS-IV). The core subtests from the test allow for the calculation of four composite index scores (Verbal Comprehension, Perceptual Reasoning, Working Memory, Processing Speed) and an overall Full Scale IQ score.[71] Dr Vuletich expressed the opinion that Mr Lewis does not fulfil the diagnostic criteria for intellectual disability. Dr Vuletich stated that Mr Lewis' general cognitive ability was in the low average range. However, none of his index scores, nor the general ability composite (either on this occasion or any of the previous occasions) fell in the range of intellectual impairment. Dr Vuletich expressed the opinion that 'based on the previous assessment results available to me, this criteria has never been met, and the label has been erroneously applied.'[72]
[71] Exhibit 1, Book of Materials, Report of Dr Vuletich dated 25 June 2020, 475.
[72] Exhibit 1, Book of Materials, Report of Dr Vuletich dated 25 June 2020, 481.
Dr Vuletich stated that whilst the majority of the diagnostic criteria for ADHD do appear to be met by Mr Lewis, the features are not specific to ADHD. Therefore, Dr Vuletich stated that she is unable to exclude a potential contribution from Mr Lewis' current extremely severe depressive, anxiety and stress symptoms. Dr Vuletich stated that 'regardless of a specific label, what is clear is that Mr Lewis appears to present with longstanding attentional deficit‑like symptoms, with continued evidence of pockets of cognitive limitations that may have relevance to his ongoing management and treatment.'[73]
[73] Exhibit 1, Book of Materials, Report of Dr Vuletich dated 25 June 2020, 482.

Dr Vuletich stated that from a neuropsychological perspective there are no indications that Mr Lewis would lack the ability to live independently.

Ms Hasson

Ms Hasson, Forensic Psychologist, provided two reports dated 20 February 2020[74] and 9 July 2020,[75] and also gave evidence at the hearing.[76]
[74] Exhibit 1, Book of Materials, Report of Ms Hasson dated 20 February 2020, 424 ‑ 448.
[75] Exhibit 2, Supplementary Book of Materials, Report of Ms Hasson dated 9 July 2020, 8 ‑ 11.
[76] ts 44 ‑ 59 (21/07/2020).
Ms Hasson assessed Mr Lewis' risk using a Structured Professional Judgment (SPJ) combining actuarial (STATIC‑99R and PCL‑R) and non‑actuarial (RSVP) tools, in combination with a psychological assessment and formulation.
Ms Hasson determined that Mr Lewis' STATIC‑99R score was six placing him at risk level IVb (well above average) for being charged or convicted of another sexual offence. Mr Lewis' age, lack of relationship history, prior offending and extrafamilial victim selection all add to the risk classification determined by Ms Hasson. Level IV offenders have a perceptibly higher risk than the typical offender.[77]
[77] Exhibit 1, Book of Materials, Report of Ms Hasson dated 20 February 2020, 438.
Ms Hasson stated that the STATIC‑99R does not measure all relevant risk factors, observing that Mr Lewis' risks may be higher or lower than that indicated based upon dynamic risk factors which will be considered using the RSVP.[78]
[78] Exhibit 1, Book of Materials, Report of Ms Hasson dated 20 February 2020, 438 ‑ 439.
With respect to the RSVP assessment Ms Hasson stated that the risk factor of chronicity of sexual violence is present. Chronicity refers to the persistence and frequency of sexual violence perpetrated by the individual being assessed. Further, diversity of sexual violence is partially present given the age of the victims vary between 12 ‑ 14 years and included committing offences against children known to him as well as offences being impulsive and opportunistic.[79] Ms Hasson stated the escalation of sexual violence is not present.[80]
[79] Exhibit 1, Book of Materials, Report of Ms Hasson dated 20 February 2020, 439.
[80] Exhibit 1, Book of Materials, Report of Ms Hasson dated 20 February 2020, 440.
Ms Hasson said Mr Lewis acknowledged his offending behaviour and did not appear to displace blame or project responsibility onto others. However Mr Lewis did acknowledge not being able to consider himself a 'rapist' as he does not view himself as having 'raped' his first victim. However following discussion Mr Lewis was able to acknowledge that none of his victims were able to consent to engaging in sexual behaviour with him. Ms Hasson stated that Mr Lewis' apparent emotional immaturity in his acknowledgment of such, as well as an unwillingness or lack of motivation to change and develop age appropriate relationships, is a risk factor for future offending.[81]
[81] Exhibit 1, Book of Materials, Report of Ms Hasson dated 20 February 2020, 440.
Ms Hasson confirmed that in her opinion Mr Lewis did not meet the criteria for the definition of psychopathy.[82] Mr Lewis has a history of depression first diagnosed in 2010 and presents with dependent personality traits. Ms Hasson said people with dependent personality traits may have characteristics of an inability to make decisions without the advice or reassurance of others and avoidance of adult responsibilities by acting passive and helpless. Ms Hasson stated that a risk factor with Mr Lewis is his offending whilst under community supervision and as a reportable offender and it is clear he deliberately withheld information during the supervision and monitoring.[83] However, Ms Hasson stated that Mr Lewis' total score on the PCL‑R indicates that he does not fit the construct of psychopathy.[84]

Proposed DSO Management Plan

[82] Exhibit 1, Book of Materials, Report of Ms Hasson dated 20 February 2020, 441.

[83] Exhibit 1, Book of Materials, Report of Ms Hasson dated 20 February 2020, 442.

[84] Exhibit 1, Book of Materials, Report of Ms Hasson dated 20 February 2020, 443.

Dr Riordan provided a Proposed DSO Management Plan dated 25 February 2020[85] and used the STABLE‑2007 to identify outstanding treatment targets that warrant either further intervention or the development of risk management strategies. The areas identified under the STABLE‑2007 as potential treatment targets pertain to Mr Lewis' capacity for relationship stability, factors related to general social rejection and loneliness, deviant sexual preference, sexual pre‑occupation and drawing upon sex and sexual behaviour as a means to cope.[86]
[85] Exhibit 1, Book of Materials, Proposed DSO Management Plan dated 25 February 2020, 411 ‑ 423.
[86] Exhibit 1, Book of Materials, Proposed DSO Management Plan dated 25 February 2020, 419.
Dr Riordan expressed the opinion that Mr Lewis requires offence specific treatment in the community to manage the dynamic risk factors. Dr Riordan stated Mr Lewis should be referred to the Adult Community Psychological Services for intervention if released into the community. She stated that Mr Lewis requires meaningful activity to engage in on a daily basis in the form of both vocational/education pursuits and involvement in structured recreational activities.[87]
[87] Exhibit 1, Book of Materials, Proposed DSO Management Plan dated 25 February 2020, 422.
Dr Riordan stated that Mr Lewis' main source of social support is his family unit. Dr Riordan stated that Mr Lewis' family is predominantly prosocial holding prosocial beliefs and attitudes consistent with their religious affiliation. However, the family's ability to influence and to monitor and intervene in potential high risk situations would be considered neutral with respect to Mr Lewis' potential for sexual reoffending.[88]
[88] Exhibit 1, Book of Materials, Proposed DSO Management Plan dated 25 February 2020, 420.
Dr Riordan expresses that opinion based on the fact that Mr Lewis' previous offending behaviour all occurred whilst residing in the family home. Further, that Mr Lewis appears to assume a childlike role and therefore appears to have limited agency and assumes little responsibility for managing his own behaviour and decisions whilst residing in the family residence.[89]
[89] Exhibit 1, Book of Materials, Proposed DSO Management Plan dated 25 February 2020, 420.
With respect to accommodation Dr Riordan states that the preferable option would be for Mr Lewis to secure accommodation outside the family home but in the Albany area. The basis for that opinion is that the family system faces a number of complex challenges including available space and the fact that Mr Lewis' sister and partner have chosen to reside in the family home. Dr Riordan expresses the opinion that it would be preferable to secure the support of Uniting Care West. Whilst Mr Lewis expressed his preference to return to the family home in Albany, Dr Riordan has the reservations outlined above.[90]

The risk that a serious offence will be committed if a continuing detention or supervision order is not made – s 7(3)(h)

[90] Exhibit 1, Book of Materials, Proposed DSO Management Plan dated 25 February 2020, 421.

The psychiatric and psychological evidence supports the finding that Mr Lewis is at a high risk of committing further serious offences. This assessment of risk takes into account his ongoing treatment needs. Mr Lewis has undertaken a number of treatment programs. However, it is clear that there is the risk that a serious offence may be committed if a continuing detention order or supervision order is not made.

The need to protect members of the community from that risk – s 7(3)(i)

There is a need to protect the community from this risk.

Any other relevant matter – s 7(3)(j) – Community Supervision Assessment

Ms McGeown, Senior Community Corrections Officer with the Community Offender Monitoring Unit of the Department of Corrective Services, provided a Community Supervision Assessment Report dated 1 July 2020[91] and gave oral evidence at the hearing.[92] In addition, Ms McGeown prepared an updated Community Supervision Assessment report dated 29 September 2020.[93] The matters addressed by Ms McGeown included whether Mr Lewis has a community support network, appropriate accommodation if released, and employment prospects.
[91] Exhibit 1, Book of Materials, Community Supervision Assessment Report of Ms McGeown dated 1 July 2020, 490 ‑ 509.
[92] ts 59 ‑ 65 (21/07/2020).
[93] Exhibit 3, Community Supervision Assessment Report dated 29 September 2020, 494.
Ms McGeown stated that the proposal that Mr Lewis reside at his parent's address in Albany was not supported due to concerns that a victim resided approximately 500 m from that residence and that the location would place Mr Lewis in the middle of a network of known and convicted sex offenders. Further, there is a primary school within 650 m of the residence.[94]
[94] Exhibit 3, Community Supervision Assessment Report dated 29 September 2020, 4 ‑ 5.
The alternative accommodation referred to by Ms McGeown in her first report was the Uniting WA DSO Supported Accommodation program. However, in July 2020 there was no accommodation available. The hearing of 21 July 2020 was adjourned to permit Uniting WA sufficient time to locate a property. Mr Lewis also proposed a property which was subsequently assessed by the Department of Corrective Services.
Ms McGeown provided a supplementary report dated 29 September 2020. Ms McGeown confirmed that she attended the address proposed by Mr Lewis and met with the two persons to discuss the accommodation. The residents confirmed that the accommodation was not available for the reason that they did not have the capacity to provide the support necessary to Mr Lewis. Consequently, Ms McGeown did not request that the police undertake a desktop spatial analysis.[95]
[95] Exhibit 3, Community Supervision Assessment Report dated 29 September 2020, 1 ‑ 3.
However Ms McGeown confirmed that a property was available under the Uniting WA DSO Supported Accommodation program. The police conducted a desktop spatial analysis identifying that a school is in the general area being 1.5 km away from the proposed accommodation and that there were open spaces including parks. The Department of Communities advised that they were unable to identify any records showing any particularly vulnerable families with females in the age group of 12 ‑ 14 years within the proposed residential block or adjoining properties that share fences.[96] Ms McGeown gave testimony that in relation to particular areas such as school zones an exclusion zone could be enforced by a GPS tracking device monitoring Mr Lewis.[97] Further, in respect of any person in the area whom the authorities did not wish Mr Lewis to meet with, he could be subject to a notice or direction not to contact that person. In respect of the location of a school being in the general suburban area, Ms McGeown accepted that if a person is accommodated in an urban area in this state then it is likely that schools and such facilities will be nearby.[98]
[96] Exhibit 3, Community Supervision Assessment Report dated 29 September 2020, 5.
[97] ts 73 (05/10/2020).
[98] ts 75 (05/10/2020).
Ms McGeown confirmed that Mr Lewis would be provided with ongoing assistance through the appointment of mentors, budgetary planning and assisting in undertaking tasks such as obtaining a licence.[99]
[99] ts 74 (05/10/2020).

Assessment and conclusion

After considering all of the evidence in respect of the factors in s 7(3) of the HRSO Act, and finding that evidence to be acceptable and cogent, I am satisfied to a high degree of probability that Mr Lewis currently presents an unacceptable risk to the community that he would commit a serious offence namely a sexual offence. Therefore, I am satisfied that a restriction order must be made under the HRSO Act to ensure the adequate protection of the community against that risk. Both Dr Wojnarowska and Ms Hasson gave cogent and reliable evidence that supports this finding.

Continuing detention order or supervision order

I must now decide whether Mr Lewis should be detained pursuant to a continuing detention order or released into the community under a supervision order.
The court must choose the order that is the least invasive to Mr Lewis' liberty while ensuring an adequate degree of protection of the community.
In considering whether a supervision order will adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of Mr Lewis and his care and treatment, and to ensure adequate protection of victims of offences committed by Mr Lewis.[100]
[100] High Risk Serious Offenders Act 2020 (WA) s 30(5).
I must also be satisfied on the balance of probabilities that Mr Lewis will substantially comply with the standard conditions of the order pursuant to s 29 of the HRSO Act. The onus is on Mr Lewis to satisfy the court that he will so comply.
The State submitted that the risk could only be managed by continuing detention. The State expressed concern that Mr Lewis has ongoing treatment needs and that the treatment needs should be undertaken whilst Mr Lewis is incarcerated.[101] However, the treatment needs may be addressed in the community as the evidence supports a finding that appropriate treatment programs are available and that Mr Lewis will engage. Moreover, a condition of a supervision order would be imposed requiring Mr Lewis to undertake the treatment.
[101] ts 86 (05/10/2020).
The State also submitted that doubt must exist as to whether Mr Lewis will comply with the conditions of a supervision order.[102] The State referred to the breach of the first conditional suspended imprisonment order that was imposed and a failure to inform the authorities of a change of address and his use of online media applications. The breach of the conditional suspended imprisonment order occurred in 2010 and the failures to inform authorities occurred in 2013. The State expressed concern that Mr Lewis has not yet developed sufficient skills to manage his impulsivity.[103]
[102] ts 85 (05/10/2020).
[103] ts 86 (05/10/2020).
The evidence of both Dr Wojnarowska and Ms Hasson supports the finding that Mr Lewis' risk of reoffending may be managed in the community with appropriate supervision and treatment. Dr Wojnarowska stated that, in her opinion, with appropriate conditions the risk may be managed in the community. Ms Hasson agreed that the risk may be managed in the community. Mr Lewis will be given treatment and assistance in developing skills.
I do not accept the State submission that Mr Lewis should be incarcerated for another 2 years to undertake treatment when that treatment may be completed in the community whilst the ongoing risk is managed by a supervision order.
I consider that this is a case where the protection of the community may be properly and satisfactorily advanced by a supervision order rather than a continuing detention order. Further, I am satisfied on the balance of probabilities that Mr Lewis will substantially comply with the standard conditions of a supervision order under s 30 of the HRSO Act.
In my view, there are conditions that may be imposed under a supervision order that will provide adequate protection of the community. The conditions that are to be imposed are outlined in the Supervision Order, which is attached as Annexure One. The conditions are extensive and serve to manage or reduce the risk in the community.

Conclusion

For the above reasons, I have determined that it is necessary to make a restriction order in relation to Mr Lewis to ensure adequate protection of the community against the unacceptable risk that he will commit a serious offence namely a sexual offence. Further, I have determined that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of 5 years. The terms of the supervision order are stated in Annexure One.

ANNEXURE ONE

SUPERVISION ORDER MADE BY
THE HONOURABLE JUSTICE MCGRATH ON 21 OCTOBER 2020

Pursuant to s 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA) the court, having found that the Respondent is a high risk serious offender within the meaning of s 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the respondent, for a period of 5 years from 12 November 2020, being a date not earlier than 21 days from the date this order is made, on the following conditions:

You, JONATHON NEAL LEWIS, must:

STANDARD CONDITIONS REQUIRED BY THE ACT

Report to a Community Corrections Officer (CCO) 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 CCO as directed by the court.

Notify a CCO of every change of your name, place of residence, or place of employment at least two days before the change happens.

Be under the supervision of a CCO and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32).

Not leave or stay out of the State of Western Australia without the permission of a CCO.

Not commit a serious offence during the period of the order.

Be subject to electronic monitoring under s 31.

ADDITIONAL CONDITIONS
Residence

Take up residence at [address redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.

Reporting to a CCO and supervision by a CCO

Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this order.

Be under the supervision of a CCO, report to and receive visits from a CCO at times and places as directed by the CCO, and comply with the lawful orders and directions of a CCO.

Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.

Attendance at programs or treatment

Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.

Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual reoffending, as directed by a CCO.

Reporting to WA Police

Report to the officer-in-charge of the Sex Offender Management Squad (SOMS) at Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody and thereafter report to and receive visits from WA Police at times and at locations as directed by the officer-in-charge of SOMS or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).
If requested, permit police officers to enter and search your residence and/or vehicle, and/or your person, for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the police officer believes to contravene the conditions of the order.
Remain at your premises and/or vehicle when police officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020 (WA).
When requested, advise WA 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.

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.
Unless contact with victims is permitted pursuant to condition 21, 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 within 48 hours of such contact occurring.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997 (WA).

Criminal conduct

Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K of the Criminal Code (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorized under the Medicines and Poisons Act 2014 (WA), and your use is in accordance with the instructions of the prescriber.

Curfew

Be subject to a curfew, pursuant to s 32 of the High Risk Serious Offenders Act 2020 (WA), 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 of such attempts to contact you by persons monitoring your compliance with the curfew.

Prevention of high-risk situations

Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO; and
(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 18 years is initiated by the child, unless the contact is permitted under condition 33, you must withdraw immediately from the presence of the child.
Provide details of any contact with a child under the age of 18 years both to your CCO and to the WA Police on the next occasion you report to that person or agency.
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and police officer upon request.
Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person.
Report at your next contact with your CCO and WA Police any association or relationship by you with a person who has a child or children under the age of 18 years in their care either full time or part time.
Not form any domestic relationship with a person who has a child, or children under the age of 18 years in their care either full time or part time, without prior approval of a CCO.
Not conduct computer searches for, collect, access, or be in possession of in either electronic or permanent form, images of children including drawings or sketches, whether indecent or not, with the exception of images of your immediate family that are not indecent images if approved in advance by a CCO. Possession of such images depicting a child or children on items such as household items, may be authorised by a CCO.
Not be in possession of any children's toy, game or confectionary that could reasonably be perceived to be capable of being an enticement to children, unless such possession is for a legitimate purpose and authorised by a CCO.
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 whether online or otherwise, which disclosure can be confirmed by a CCO or a police officer.
Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or police officer.
Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
Not access the internet on any computer, telecommunication and/or electronic device capable of internet access without prior approval of a CCO; such access must be supervised at all times by a person approved in advance by a CCO.
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 44, without prior approval of the CCO.
Enable device locking or password access of your computer, telecommunication and/or electronic devices; not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 44 or any online accounts, to any person other than a CCO or police officer.
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
Not to possess, purchase, consume, or use alcohol, unless approved in advance by a CCO.
Attend for, and submit to, urinalysis or other testing for 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.
To provide a valid sample for testing pursuant to condition 51.

____________________________________ THE HON JUSTICE MCGRATH
I have received a copy of this order. I have had explained to me and understand the effect of this order and what may happen if I contravene it.
Signed by the respondent:	____________________________________ *Jonathon Neal Lewis*
In the presence of:	____________________________________
Name and address:	____________________________________
Date:	____________________________________

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath
21 OCTOBER 2020