The State of Western Australia v Lewis [No 3] - [2022] WASC 148

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- LEWIS [No 3] [2022] WASC 148
CORAM:   ARCHER J
HEARD:   29 MARCH 2022
FILE NO/S:   SO 8 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JONATHON NEAL LEWIS
Respondent

Catchwords:

High risk serious offender - Contravention of supervision order - Whether the supervision order should be affirmed - Whether the conditions should be amended and the duration of the order increased

Legislation:

High Risk Serious Offenders Act 2020 (WA), s 29, 55

Result:

Supervision order affirmed, with amended conditions and for a longer duration

Category: B

Representation:

Counsel:

Applicant	:	B Meertens
Respondent	:	T Hager

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid (WA)

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

Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Kim v Witton (1995) 59 FCR 258
The State of Western Australia v A [2018] WASC 250
The State of Western Australia v Atkinson [No 2] [2020] WASC 379
The State of Western Australia v Decke [No 4] [2020] WASC 263
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Lewis [No 2] [2020] WASC 377
The State of Western Australia v Misko [No 6] [2018] WASC 389
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v ZSJ [2020] WASC 330

ARCHER J:

Introduction

In November 2020, the respondent was released from custody under a supervision order made by McGrath J (Supervision Order).[1]
[1] The State of Western Australia v Lewis [No 2] [2020] WASC 377.
On 31 August 2021, the State of Western Australia applied for an order under s 55 of the High Risk Serious Offenders Act 2020 (HRSO Act), alleging that the respondent had contravened conditions of the Supervision Order. On 1 September 2021, Allanson J ordered that the respondent remain in custody on an interim detention order pending the outcome of the State's application. The State's application was listed to be heard on 29 March 2022.
Ultimately, the State sought an order that the respondent be released on the existing Supervision Order, but with some amendments to the conditions and with an extension of the period during which he would be subject to the order.
At the conclusion of the hearing, I made orders in similar terms to those sought by the State, giving brief oral reasons. I said I would publish detailed reasons later. What follows are those reasons.

Background facts

The respondent's offences

The respondent has a criminal history which includes sexual offending. In 2005, he 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). In 2010, the respondent 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. In 2017, he committed the offences that led to the Supervision Order being imposed.
The 2017 offences were as follows:[2]
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) Act 2004 (WA).
[2] Lewis [No 2] [50].
The first three charges involved the same victim, a 14‑year‑old girl. The respondent met the child through a social media platform. The charges involved him sending her videos of himself masturbating, encouraging her to masturbate, and asking her to send videos of herself doing so to him (which she did).[3]

The supervision order

[3] See Lewis [No 2] [50] - [53].

The Supervision Order imposed by McGrath J was for a period of five years and came into effect on 12 November 2020. It contained 52 conditions with which the respondent had to comply during the period of the order.

The contraventions

On 2 April 2021, the respondent was arrested and charged with three offences of contravening a condition of the Supervision Order contrary to s 80(1) of HRSO Act. On 24 May 2021, the respondent was arrested and charged with a further offence of contravening a condition of the Supervision Order contrary to s 80(1) of the HRSO Act. The offences were alleged to have occurred between 29 December 2020 and 24 May 2021.
The respondent pleaded guilty in the Magistrates Court to the first three charges on 21 April 2021 and the fourth charge on 15 June 2021.
The conditions that the respondent contravened were conditions 4, 40, 45 and 49. They provided as follows:
4.Be under the supervision of a [Community Corrections Officer (CCO)] and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32).
40.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.
45.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.
49.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.
The first contravention chronologically occurred after the respondent told his CCO on 29 December 2020 that he had an iPod (which had internet access and a photograph storage capability). The CCO told him not to use it until he had been given a written instruction. After he was told this, the respondent used the iPod, in breach of condition 4 and the verbal direction given to him.
The second in time was revealed when the respondent was asked about his use of the iPod. The respondent admitted using the iPod to access an open WiFi signal. This was a breach of condition 45.
The third contravention chronologically occurred when the respondent drafted an email on the iPod and then deleted it, in breach of condition 49.
There is no suggestion that the respondent was using the iPod to access sexual material or to contact children.
The final contravention was a breach of condition 40. It was discovered when the respondent's house was searched on 24 May 2021 as part of ensuring his compliance with the conditions of the Supervision Order. In the search, a magazine was found which contained, among other things, photographs of children.[4] There is no suggestion that the photos in the magazine were in any way sexual images. The children depicted were all clothed. The magazine was a 'Take Five' magazine, which can be purchased from supermarkets.[5]
[4] Document titled 'Particulars of Contravention Allegations' filed by the State.
[5] ts 122.
The respondent was fined $1,000 in relation to each of the first three contraventions. He was sentenced to six months and one day imprisonment suspended for seven months in relation to the last contravention.
The State alleges that the respondent contravened the Supervision Order on seven other occasions, in respect of which no charges were laid. The respondent admits he did.[6]
[6] ts 112.
The first of these occurred when the respondent's mother was speaking to the respondent's aunt in a FaceTime video call. The respondent spoke to his aunt (an adult) without prior permission from a CCO. This breached conditions 44 and 45.
Condition 45 was set out above. Condition 44 provided:
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.
Five of the contraventions were occasions when the respondent entered exclusion zones in breach of conditions 4 and 7. However, the evidence indicated that these incursions were of very brief duration and were likely due to thoughtlessness by the respondent, rather than for any sinister purpose.[7]
[7] See the evidence of Ms Hazzard, in particular at ts 153, 156. See also ts 172 - 173 (submissions of the State).
Condition 4 was set out above. Condition 7 required the respondent to be subject to electronic monitoring.
The other contravention occurred when the respondent failed to call his CCO before leaving home, contrary to a direction he had been given, breaching condition 4.

The State's application

The State's application was filed on 31 August 2021.
On 1 September 2021, Allanson J ordered that the respondent remain in custody on an interim detention order pending the outcome of the State's application.
On 22 October 2021, Quinlan CJ ordered that the State's application be heard on 29 March 2022. His Honour made further orders to ensure that a psychologist (Ms Hasson) would assess the risk that the respondent would commit a serious offence if not made subject to a restriction order, and provide a report.

Relevant law in contravention proceedings[8]

[8] This section reproduces or draws upon what I have written in earlier decisions.

The provisions under the HRSO Act in relation to contravention proceedings are materially the same as the provisions under the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). For this reason, the principles established by the authorities in relation to the DSO Act may be applied to the HRSO Act.[9]
[9] And see The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31]; The State of Western Australia v Narrier [No 6] [2020] WASC 349 [29] ‑ [30]; The State of Western Australia v Atkinson[No 2] [2020] WASC 379 [10] ‑ [11].
Section 51 of the HRSO Act relevantly provides that a police officer or a CCO who reasonably suspects that an offender who is subject to a supervision order is likely to contravene, is contravening, or has contravened, a condition of that supervision order may apply to a magistrate to have a warrant issued against the person. A warrant issued under s 51 requires the offender to be arrested and brought before the Supreme Court for it to consider the suspected or anticipated contravention. Section 21 of the DSO Act was in similar terms.
Section 53 of the HRSO Act relevantly provides that, if an offender is brought before the Supreme Court pursuant to s 51 or is charged with contravening a requirement of their supervision order, the State may apply to the court for an order under s 55. Section 22 of the DSO Act was in similar terms.
Section 55 of the HRSO Act provides:
55.Court to make orders in certain cases
(1)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order -
(i)amending the conditions of the supervision order; or
(ii)amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order.
(3)In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 23(1), (1A) and (2) of the DSO Act were in similar terms.
The respondent admits contravening his Supervision Order. Therefore, the question for me is whether I should make an order under s 55(1)(a), (b) or (c).
Section 29 of the HRSO Act states:
29.Limitation on power to make or amend supervision order
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
Section 23(1B) and (1C) of the DSO Act were in similar terms to s 29(1) and (2) of the HRSO Act.
There are seven standard conditions for a supervision order. They are set out in s 30(2) of the HRSO Act:
30.Conditions of supervision order
…
(2)A supervision order in relation to an offender must require that the offender -
(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[10] during the period of the order; and
[10] Defined in s 5 of the HRSO Act.
(g)be subject to electronic monitoring under section 31.
(3)A supervision order in relation to an offender may require the offender not to make public any statement, information or opinion relating directly or indirectly to any victim of a serious offence committed by the offender.
(4)When considering whether to impose a requirement under subsection (3) the court must have regard to -
(a)the gravity and nature of the offender's offences; and
(b)the likely impact on the victims of the offender providing or making available any statement, information or opinion; and
(c)the public interest generally.
(5)A supervision order may contain any other terms that the court thinks appropriate -
(a)to ensure adequate protection of the community; or
(b)for the rehabilitation, care or treatment of the offender subject to the order; or
(c)to ensure adequate protection of victims of serious offences committed by the offender subject to the order.
(6)Without limiting subsection (5), a supervision order may provide that -
(a)for the period specified in the order the offender is subject to a curfew under section 32; and
(b)the photograph and locality of the offender must not be published under the Community Protection (Offender Reporting) Act2004 section 85G.
The effect of s 29 is that I must make a continuing detention order unless the respondent satisfies me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.

'Substantially comply' with the standard conditions

The meaning of the phrase 'substantially comply' was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[11] in relation to the provisions of the DSO Act. His Honour's observations, which I gratefully adopt, apply equally to the provisions of the HRSO Act.
(1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of 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 sexual offence.
(2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.
(3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.
(4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.
(5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.
(6)The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
(7)Factors that are relevant to that assessment would include the respondent's history of compliance and non-compliance and the factors set out at [50] above.
[11] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
In the above extract at point 5, his Honour observed that the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order. Elsewhere in the judgment, his Honour made a number of other useful observations in relation to the assessment of prior contraventions, to the following effect:
1.Self‑evidently from the statutory scheme, the fact that the respondent has contravened the conditions of a supervision order will not necessarily result in a continuing detention order;[12]
2.Given the onerous nature of supervision orders, missteps are to be expected;[13] and
3.The frequency or regularity of contraventions might inform the question of whether the person will substantially comply.[14]
[12] Hart [21].
[13] Hart [51].
[14] Hart [36].

A critical point made by Fiannaca J, as set out in point 6 of the extract, is that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.

Factors relevant to the assessment

In point 7 of the extract, Fiannaca J identified the factors that are relevant to the assessment of whether the respondent will substantially comply with the standard conditions. His Honour said that they would include the respondent's history of compliance and non‑compliance and the factors he had set out in his judgment in paragraph 50.
In paragraph 50, Fiannaca J identified, in effect, the following factors:[15]
[15] The first four factors his Honour drew from Kim v Witton (1995) 59 FCR 258. The next four factors were from The State of Western Australia v A [2018] WASC 250 [123]. The last factor was from The State of Western Australia v Misko [No 6] [2018] WASC 389.
1.the offender's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);
2.his capacity to comply with the conditions;
3.what measures there are in place to ensure he would substantially comply;
4.the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the DSO Act;
5.the respondent's motivation to remain offence free and in the community;
6.any willing participation in a sex offender treatment programme;
7.abstinence from drugs;
8.conduct while in prison; and
9.demonstrated gains in treatment, self‑management and life skills.

Detention or supervision?[16]

[16] What follows reproduces, or is drawn from, my earlier decisions under the DSO Act, such as The State of Western Australia v Decke [No 4] [2020] WASC 263.

If the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions, I must then decide whether to rescind the Supervision Order and make a continuing detention order or affirm the Supervision Order, with or without amendment or extension.
In deciding between these options, the paramount consideration is the need to ensure adequate protection of the community.[17] However, it 'cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order'.[18] Nor does it mean that other considerations are excluded.[19]
[17] Section 55(3) of the HRSO Act.
[18] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]. See also The State of Western Australia v West [2013] WASC 14 [52].
[19] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [57] (Wheeler JA).
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on an offender, but rather for the ultimate purpose of protecting the community.[20] The court should choose the order that is the 'least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[21]
[20] See, in relation to the DSO Act, Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [97] (Murray AJA).
[21] West [52(j)], citing The State of Western Australia v Latimer [2006] WASC 235; and Decke. See also Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [22].
In Director of Public Prosecutions (WA) v DAL [No 2],[22] Beech J[23] summarised the principles to be applied in considering whether a supervision order would adequately protect the community, in relation to relevantly identical provisions in the now repealed DSO Act. Putting his Honour's observations in list form, and omitting citations, his Honour said:
1.The use of the word 'adequate' indicates that a qualitative assessment is required.
2.In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be imposed so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his or her care and treatment.
3.The [DSO Act] does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released.
4.The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
5.If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[22] DAL [No 2] [33], citing Williams [57], [86] (Wheeler JA); Griffiths [20], [103], [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].
[23] As his Honour then was.

Evidence

The State tendered, by consent, two books of materials[24] which included a reports from three psychologists (Ms Hasson, Dr Riordan and Ms Korda) and a report from Ms Hazzard of the Department of Corrective Services.
[24] Exhibits 1.1 and 1.2 (BOM).
Ms Hasson, Dr Riordan, and Ms Hazzard gave oral evidence in the hearing. The respondent did not challenge the credibility or reliability of any of the witnesses, and did not challenge the expertise of the experts. Each of the witnesses gave their evidence in a measured and frank manner, giving reasons where appropriate. I accept their evidence.
The respondent did not give or adduce any evidence in this hearing.

Ms Hasson

Ms Hasson is a psychologist. Ms Hasson had previously provided a report for the Supervision Order hearing before McGrath J.[25] She provided the risk assessment required by s 74 of the HRSO Act in these proceedings, pursuant to Quinlan CJ's orders.
[25] BOM pages 210 - 213.
In her report for these proceedings, Ms Hasson noted that the respondent demonstrated improved insight into aspects of his risk, as well as his personality and functioning.[26]
[26] BOM pages 365 [1].
Ms Hasson also found that there was no evidence of the respondent engaging in positive impression management. She found he understood his obligations under the Supervision Order and was aware of the seriousness of the contraventions.[27]
[27] BOM page 365 [1].
In her report, Ms Hasson set out the results of her risk assessment. Ms Hasson concluded that, if the respondent was not subject to a supervision order or detained in custody, the risk that would commit a sexual offence in the future remained high.[28]
[28] BOM page 378 [76] and page 382 [94].
In her oral evidence, Ms Hasson expanded on the gains made by the respondent since he was first released on a supervision order. In short:[29]
1.he has greater awareness of his risk factors and his attraction to adolescents;
2.he now knows he does not suffer from an intellectual disability (which it appears contributed to the gain next listed);
3.there has been a shift in his acceptance of responsibility and less minimisation of his behaviour;
4.there has been an improvement in his ability to cope with and manage stress;
5.he now has strategies to manage his anxiety and there has been quite a big improvement in this area given the levels of anxiety that he has had in the past; and
6.there has been quite a significant improvement in his ability to manage his relationship with his family.
[29] ts 114 - 118.
In her report, Ms Hasson said that there had been no substantial change in the risk scenarios from her previous report. She identified three risk scenarios. She noted that similar scenarios were identified by Dr Wojnarowska.[30]
[30] BOM page 378 [77].
Ms Hasson said that the first (and most likely) of the scenarios would involve an offence committed against a female child known to Mr Lewis. She said there was little to indicate that it would involve any use of force or physical coercion. She said that there would likely be some grooming prior to the commission of the offence involving conversations or discussions with a sexual content. The offending would likely continue until Mr Lewis' behaviour was exposed.[31]
[31] BOM page 379 [78].
In her oral evidence, Ms Hasson said that there was nothing to indicate that Mr Lewis would offend against a random stranger in a very impulsive, opportunistic manner. She said that his offending tended to be in the context of a relationship.[32]
[32] ts 120.
Ms Hasson further said that she did not believe that there was an imminent risk of a further offence. She said she believed there would be certain warning signs that would indicate that an offence is more likely.[33]
[33] ts 120.
Ms Hasson also said that, in her opinion, the respondent would substantially comply with the conditions of the Supervision Order if it was affirmed.[34]
[34] ts 132, 135.
Ms Hasson noted that, while Mr Lewis has made some progress in counselling, he has ongoing treatment needs around the development of further self-awareness as it relates to his upbringing, personality functioning and temperament.
Ms Hasson wrote that the respondent also:[35]
needs to enhance and expand his coping skills and improve his ability to recognise his feelings and to make choices, decisions and changes in his life to ameliorate negative affect and improve his quality of life, sense of self, well-being and increase or develop a sense of personal agency and control.
[35] BOM pages 380 - 381 [90].
Ms Hasson said that Mr Lewis can address these treatment needs through ongoing participation in individual counselling. However, she acknowledged that this will take a long time, and that his engagement in counselling will therefore be prolonged.[36]
[36] BOM pages 380 - 381 [90].
In her report, Ms Hasson suggested a range of supervision strategies that would minimise his risk if re-released into the community:[37]
Supervision strategies that could be implemented to mitigate the risks include a curfew for a limited time while he readjusts to living in the community, this curfew could however have adjusted hours for example from 10pm until 6am to allow the opportunity to engage in adult oriented community based activities. Prohibition on unsupervised contact with female children under the age of 18 unless the person supervising is approved by a community corrections officer is recommended as this would allow Mr Lewis to spend time with his sister and her baby. Monitoring of Mr Lewis’ phone could assess his engagement with peers, the age group of peers or females with whom he is in contact, the number of female peers he is contact with and the quality of his relationship with any future potential intimate partner. Monitoring of social functioning and relationship status could be supported through engagement with family members. Monitoring and review of Mr Lewis’ internet access is recommended to consider allowing him greater access to the internet. Whilst additional access to the internet may be considered a risky option there are some significant benefits that could be risk reducing for Mr Lewis. Conversation around his use of the internet can then focus on what he is looking at, when he is viewing material and for how long. Review of the types of movies, tv shows, video games and pornographic sites he is viewing should also be discussed regularly. GPS monitoring would assist with ascertaining his compliance with curfews and geographical restrictions though it is acknowledged that GPS monitoring will also restrict engagement in prosocial/risk reducing activities. At this time, it is recommended that Mr Lewis is prevented from utilising social media such as Facebook, Tik Tok, Instagram, messaging apps.
[37] BOM page 381 [92].
In her oral evidence, Ms Hasson expanded on these strategies. She said:[38]
So there's a balance between helping him become an individual who's responsible for making his own decisions, and then trying to manage his risk, and that's going to be a very difficult balance. So things like we want him to become more socially skilled. We want him to be better able to interact with adults. We want him to find some hobbies and interests, and conditions around how he does that needs to allow for that to happen … whilst protecting children of a - in the community.
[38] ts 124.
Ms Hasson used the curfew as an example:[39]
So some of my suggestions here are the - the curfew, for example, means he can't go and do many ordinary adult things. He needed to be home by 6 o'clock. So that - if he had managed to get a job, doesn't leave any time to be able to do anything, in terms of hobbies, interests - even going to the gym after work wouldn't have been a - a possibility. He was allowed to - and he was attending the gym and that was making him feel good, so that was good for his self-esteem, but then he can't go during school holidays. So there's lots of things that just could be tinkered with and managed, perhaps, to make it - to find that balance between him as the individual and managing the risk.
…
I've put an indication in there asserting, perhaps, 10 pm. At - because it - with a 6 till 6 - and I think it's - there has been a suggestion to recommend - and it's still going to be a 12-hour period, though, and still early in the evening - would be that he could go the movies. He could go on dates, and not that he has met anybody. But, in time, he could go out for dinner. He could stay out - we're coming out of summer, but whilst there was daylight, he could stay out longer. He could go to the gym later, which would mean that there's probably less likely chance, if he goes later in the evening, of children being there than if he goes before that period of time. So it would just give a greater freedom of choice. At the moment, one of the things he was saying to me is that with the curfew, and he's home by 6, and then he's come alone with nobody at all. He has no family up here. And that's a really long period of time to be isolated in the house by yourself when he has never lived independently all by himself.
[39] ts 124 - 125.
Ms Hasson also said that allowing him to access the internet (subject to monitoring and the exclusion of social media) would be risk reducing. It would enable him to better look for work. He would be able to subscribe to a streaming service, which would reduce his boredom (a risk factor).[40]
[40] ts 128 - 129.
In her report, Ms Hasson recommended that, if Mr Lewis remained in custody subject to a detention order, he should continue with individual counselling to address his outstanding treatment needs. Ms Hasson noted that Mr Lewis had developed a good working relationship with his treating psychologist (Ms Korda) and continuity would be important to maximise treatment gains.[41]
[41] BOM page 382 [96].
Further, Ms Hasson recommended that, among other things, if Mr Lewis was subject to a supervision order:[42]
·Given his relatively young age, intellectual limits and immaturity Mr Lewis be subject to a Supervision Order of at least five years.
·Mr Lewis continue his engagement in counselling with his treating psychologist to address the issues identified above and also to focus on adjustment, maintaining awareness of risk factors associated with offending and to provide intervention and support when Mr Lewis commences a new relationship and to assist him to better manage existing ones.
…
[42] BOM page 382 [97].
Ms Hasson was asked for her opinion on condition 50, which prohibits the respondent from consuming alcohol without prior approval. Ms Hasson said she did not see that condition as relevant to Mr Lewis because he does not have a history of alcohol abuse or misuse. She said that there was no indication that alcohol use was related to his offending at all.[43]
[43] ts 120.
In her oral evidence, Ms Hasson confirmed that, in her view, the risk of further offending could be adequately managed in the community, provided the responded was subject to a supervision order.[44]

Ms Korda

[44] ts 131.

Ms Korda is a senior forensic psychologist. She has been the respondent's treating psychologist since November 2020. She provided a report to provide an overview of the psychological intervention provided to the respondent and the progress he has made to date.[45]
[45] BOM page 355 [1] - [2].
Ms Korda said that the respondent had attended 36 individual intervention sessions between 10 November 2020 and 10 January 2022. Mr Lewis attended all scheduled session but two, which were missed due to illness. The sessions usually lasted 45 to 60 minutes.[46] She wrote:[47]
[46] BOM pages 355 - 356 [1], [8].
[47] BOM pages 361 - 362.
[Mr Lewis] is considered to have provisionally made gains in the following areas:
·Adjustment to living independently in the community setting, albeit within a largely predictable and familiar routine;
·Greater insight into his emotional experiences, particularly anxiety, and the development of emotional management strategies;
·Increased understanding of the impact of his developmental experiences on his later functioning;
·Greater insight into the factors contributing to his sexual offending, potential high-risk situations, and self-management strategies.
However, these gains are tempered to some extent by his limited disclosure, particularly in relation to the potentially risk-relevant behaviours that contravened his Order, and limited capacity to self-motivate and demonstrate initiative in addressing issues without significant structure and support. In regard to the latter, Mr Lewis' presentation does need to be considered in relation to the relevant developmental, personality and neuropsychologica1 variables, which also suggest that he is likely to require long-term intervention in order to make substantial and enduring change. It is also noted that certain conditions of Mr Lewis' Supervision Order function to inhibit the development of initiative and greater personal independence and foster a reliance on others to participate in routine daily activities which is counter-productive to attempts to develop his sense of autonomy and agency. For example, his inability to access the internet prevents him from being able to independently investigate accommodation, employment, and recreation/leisure options and public transport routes as well as freely maintain video contact with his family in Albany. Similarly, his curfew has the potential to restrict his opportunity to develop relationships with age-appropriate peers through his inability to attend leisure/recreation pursuits in the evenings.
There has been insufficient opportunity to date to address other treatment needs related to Mr Lewis' sexual interests, strategies to manage problematic sexual urges and to meet his sexual needs, skills to form and maintain peer and intimate relationships, and engagement in age‑appropriate activities. … Mr Lewis presents with a number of outstanding treatment issues at the present time.

Dr Riordan

Dr Riordan is also a forensic psychologist. She provided a treatment progress report in relation to the respondent. The focus of her report was 'to provide an assessment of any potential treatment gains made by Mr Lewis, to explore any potential barriers to service provision and to identify areas of outstanding treatment need.'[48]
[48] BOM page 343 [2].

In addition to interviewing the respondent, Dr Riordan spoke to Ms Korda. In summarising the respondent's counselling with Ms Korda, Dr Riordan wrote:[49]
Importantly, Ms Korda highlighted the complexities of assisting Mr Lewis to consolidate and extend upon relevant treatment goals within the confines of the [Supervision Order] requirements. While relevant treatment goals for Mr Lewis have been identified in the areas of developing his independent living skills, promoting autonomy, agency, the development of age-appropriate social skills and establishment of a pro-social support network through engagement in appropriate vocational and recreational pursuits, paradoxically the order requirements act at times to stifle development in these areas and reinforce dependency on support agencies. For example, Mr Lewis' lack of access to the internet does not allow for independent sourcing of accommodation, job searching, bill payment, and carrying out other tasks for daily living. Similarly, Mr Lewis curfew inhibits his ability to engage in age-appropriate recreational activities that ordinarily occur outside of business hours during the week.
[49] BOM pages 347 - 348 [20].
Dr Riordan also set out a summary of the respondent's account of his own progress and of the contraventions.[50]
[50] BOM pages 348 - 350 [22] - [31].
Dr Riordan concluded:[51]
Mr Lewis continues to engage adequately in the recommended individual treatment with Ms Korda. He has made some incremental progress toward goals, notwithstanding the contraventions of his order. Mr Lewis has a range of outstanding treatment needs to require ongoing treatment and as such, individual intervention should remain a component of any Restriction Order imposed by the court.
[51] BOM pages 352 - 353.
In her oral evidence, Dr Riordan expressed similar views to Ms Hasson. Dr Riordan said that the respondent's insight and awareness around his risk factors had increased. She said that he had improved his capacity to function in the community while living independently. She also said that the respondent was assuming much more responsibility for his decision-making in relation to his offending than previously.[52]
[52] ts 138.
Dr Riordan also agreed with Ms Hasson that the respondent should be permitted to access the internet (subject to monitoring and excluding social media).[53] Further, Dr Riordan agreed with Ms Hasson in relation to the curfew.[54]

Ms Hazzard

[53] ts 140.

[54] ts 141.

Ms Hazzard is the respondent's CCO. She works for the Community Offender Monitoring Unit (COMU) of the Department of Justice. Ms Hazzard provided a performance report. Her report addressed the respondent's response to supervision[55] and his engagement in the counselling with Ms Korda.
[55] BOM pages 385 - 387.
Ms Hazzard noted that the respondent underwent random urinalysis testing on 17 occasions, with all tests returning negative to illicit substances.[56] When in custody as a result of the interim detention order, he continued to return negative tests.[57]
[56] BOM page 388.
[57] BOM page 394.
Ms Hazzard also set out the respondent's involvement with Uniting WA, noting their on-going willingness to support him with accommodation and reintegration should he be re-released.[58]
[58] BOM page 389.
In her report, Ms Hazzard also summarised the contraventions and the respondent's behaviour in prison.[59]
[59] BOM pages 391 - 394.
Ms Hazzard set out her recent discussions with the respondent in relation to various issues, including his significant anxiety.[60]
[60] BOM page 395.
Ms Hazzard had regard to the reports of the psychologists and also consulted Ms Hasson on the phone. Ms Hazzard summarised the risk behaviours to be managed and the strategies that could be adopted to manage the respondent in the community.[61]
[61] BOM pages 398 - 401.
In short, the following strategies were recommended:[62]
1.the counselling should continue;
2.the GPS monitoring should continue;
3.a curfew should be imposed for a limited time while the respondent readjusts to living in the community;
4.there should be a modification of the conditions relating to his use of the internet.
[62] BOM pages 399 - 401.
Under condition 44 of the Supervision Order, the respondent is required to advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information possessed or used by him, whether or not it is capable of being connected to the internet, and the location of that device. Under condition 45, the respondent is not to access the internet on any computer, telecommunication and/or electronic device capable of internet access without prior approval of a CCO and such access must be supervised at all times by a person approved in advance by a CCO.
Ms Hazzard noted Ms Hasson's recommendation that the respondent be permitted to access the internet, subject to various controls. The controls include that he should continue to be required to disclose all of his electronic devices and his use would continue to be monitored. In addition, Ms Hazzard noted that Ms Hasson recommended that he not be permitted to use social media without prior approval of a CCO.[63]
[63] BOM pages 400 - 401.
Accordingly, Ms Hazzard recommends that conditions 44 and 45 be amended as follows:[64]
[44] Advise a CCO and Police 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.
[45] Not join, access, register, view, or use any social media applications, programs, or services without the prior approval of a CCO.
[64] BOM pages 401 - 402.
Ms Goode of the COMU confirmed that the COMU intends to implement Ms Hasson's recommendations. She said, in effect, that if conditions 44 and 45 were amended as Ms Hazzard set out, the other recommendations could be implemented within the existing conditions or by appropriately worded written instructions from the respondent's CCO.[65]
[65] Exhibit 2 (Email from Mr Rico of the State Solicitor's Office to my associate on 23 March 2022 at 6.14pm).

Evaluation

Substantially comply?

As noted earlier, the effect of the legislative framework is that I must make a continuing detention order unless the respondent satisfies me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
As pointed out by Fiannaca J in Hart, 'substantially comply' does not mean complete compliance, with no room for any accidental breach or minor missteps. It means comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.[66]
[66] Hart [52].
I am satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of a supervision order.
The evidence indicated that the respondent's contraventions were likely to have occurred due to thoughtlessness on his part, contributed to by his low level of functioning. There is nothing to suggest any wilful disobedience on his part, or that any of his conduct posed an actual risk.
Further, Ms Hasson is of the view that he will substantially comply. She gave cogent reasons for that view, and I accept her evidence.

Should he be released on the same conditions, additional conditions or detained?

Being satisfied that the respondent would substantially comply with the standard conditions, I must then decide whether to rescind the Supervision Order and make a continuing detention order or affirm the Supervision Order, with or without amendment or extension.
In deciding between a continuing detention order and a supervision order, the paramount consideration is the need to ensure adequate protection of the community. The court should choose the order that is the 'least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[67]
[67] West [52(j)].
Counsel for the State submitted that the respondent's risk of serious reoffending can be adequately managed in the community if the Supervision Order is amended and the supervision strategies suggested by Ms Hasson are implemented.[68] Counsel for the State submitted that the respondent should be re-released on the Supervision Order.[69]
[68] State's Submissions [102] and ts 171 - 172.
[69] ts 174 - 175.
These submissions recognised the weight of the evidence and appropriately reflected the role properly to be played by counsel for the State.
The evidence which established this included Ms Hasson's oral evidence that the risk of further offending could be adequately managed in the community, provided the responded was subject to a supervision order. Ms Hasson said the respondent's risk is no higher than it was when he was first released on the Supervision Order.[70] Ms Hasson further said that she did not believe that there was an imminent risk of a further offence. She said she believed there would be certain warning signs that would alert the authorities that the risk had increased.[71]
[70] ts 123.
[71] ts 120.
Ms Hasson also recommended that the conditions be amended. She said that giving the respondent more flexibility in certain (and limited) respects would actually be risk reducing. Similar observations were made by Dr Riordan.[72] For this reason, counsel for the State submitted that the conditions should be amended in accordance with Ms Hazzard's proposal.[73]
[72] BOM pages 347 - 348 [20].
[73] State's Submissions [103].
I am satisfied that the community will be adequately protected by a supervision order. I accept Ms Hasson's recommendations as to the amendments that should be made.
Accordingly, I will affirm the Supervision Order, and will amend conditions 44 and 45 of the Supervision Order in the manner outlined in Ms Hazzard's report.
I will also amend condition 50 in relation to alcohol. There is no evidence that the use of alcohol is relevant to the respondent's risk. However, to ensure that COMU retains the power to impose controls if it becomes apparent that controls would be beneficial, I will not remove the condition altogether. Rather, I will amend it so that the respondent will be subject to any directions given to him by a CCO in relation to alcohol. If, after proper consideration and consultation with Ms Hasson, COMU considers that the respondent's use of alcohol needs to be controlled, it would be open to COMU to issue a written direction in terms similar to condition 50 as it stood when the Supervision Order was first made.
Further, I record my views that the curfew requirement should be actively considered by COMU. I am not going to remove or amend the curfew condition, as it is necessary that COMU have the power to impose a curfew and have complete flexibility as to the way in which it is implemented from time to time. However, for the reasons expressed by Ms Hasson, it is important that the curfew be adjusted so far as that is possible consistently with managing his risk to allow the respondent to engage in activities after 6pm without first getting approval. This would reduce his risk directly and indirectly. It is my view that, within a short period after he is again released into the community, the risk management team in COMU should discuss with Ms Hasson reducing the curfew period to align with what Ms Hasson recommended (from 10 pm to 6 am).

Duration of the order

The State submitted that the period for which the respondent is to be subject to the Supervision Order should be extended by the amount of time that the respondent has spent in custody on the interim detention order.[74]
[74] State's Submissions [103]. See also ts 175.
The respondent did not contest this. I am satisfied it is appropriate. The respondent is going to need a lot of assistance for a considerable period of time.

Conclusion

For these reasons, I will affirm the Supervision Order, amend conditions 44, 45 and 50, and extend the period for which the respondent is to be subject to the Supervision Order by 7 months.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KH
Associate to the Honourable Justice Archer
2 MAY 2022