The State of Western Australia v MAM

[2022] WASC 100

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MAM [2022] WASC 100

CORAM:   STRK J

HEARD:   25 FEBRUARY 2022 & 11 MARCH 2022

DELIVERED          :   24 MARCH 2022

FILE NO/S:   SO 35 of 2008

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

MAM

Respondent

Catchwords:

Criminal law - High risk serious offender - High Risk Serious Offenders Act 2020 (WA) - Review of continuing detention order - Whether respondent remains a high risk serious offender - Whether continuing detention order or supervision order appropriate

Legislation:

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

Result:

Continuing detention order rescinded
Supervision order made

Category:    B

Representation:

Counsel:

Applicant	:	D S McDonnell
Respondent	:	A G Elliott

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Not applicable

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

Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38

Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158

Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307

Director of Public Prosecutions (WA) v Hart [2019] WASC 4

Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107

Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178

Director of Public Prosecutions (WA) v Wesley [No 2] [2015] WASC 168

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312

Director of Public Prosecutions for Western Australia v Stephenson [2015] WASC 496

The State of Western Australia v D'Rozario [No 3] [2021] WASC 412

The State of Western Australia v Garlett [2021] WASC 387

The State of Western Australia v Latimer [2006] WASC 235

The State of Western Australia v Narrier [No 2] [2022] WASC 49

The State of Western Australia v Newland [No 3] [2022] WASC 43

The State of Western Australia v Patrick [No 4] [2020] WASC 48

The State of Western Australia v West [No 6] [2019] WASC 427

The State of Western Australia v ZSJ [2020] WASC 330

STRK J:

Introduction

1. On 17 August 2009, Jenkins J found the respondent to be a serious danger to the community and released him on a supervision order pursuant to s 17(1)(b) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) for a period of 10 years.[1]

   [1] [suppressed]

2. The conditions of the supervision order included a prohibition on the respondent having face‑to‑face contact with his daughter unless the contact was prearranged by telephone.  A further condition prohibited him from being at a shopping centre without reasonable excuse at any time on weekends, except for specified periods.  The respondent breached the supervision order and the Director of Public Prosecutions for Western Australia commenced proceedings for contravention pursuant to s 22 of the DSO Act.

3. On 24 September 2009, after finding the contraventions proven, Jenkins J rescinded the supervision order and made a continuing detention order.[2]

   [2] [suppressed]

4. The continuing detention order was subject to regular reviews as required under the DSO Act.  On the occasion of each review the court has declined to rescind the continuing detention order.

5. While the DSO Act has since been repealed, the effect of the continuing detention order made by Jenkins J on 24 September 2009 is preserved by the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) which came into force on 26 August 2020.

6. On 13 August 2021, the State of Western Australia applied for an order that the respondent's detention under the continuing detention order made by Jenkins J on 24 September 2009 be reviewed as soon as practicable after 11 February 2022 pursuant to s 64 of the HRSO Act.

7. Prior to the making of this application, there had been seven reviews of that detention order, five periodic and two on the application of the respondent.[3]  On the last review, Hall J affirmed the continuing detention order.

   [3] [suppressed]

8. The hearing of this review was commenced on 25 February 2022, was then adjourned and concluded on 11 March 2022.  The State submitted that the respondent remains a high risk serious offender.  It was the State's position that if the court was to find the same, then the appropriate outcome would be for the court to affirm the continuing detention order pursuant to s 68(1)(b)(i) of the HRSO Act.

9. While the issue was not conceded, the respondent did not dispute that it was open to the court to find that he remained a serious danger to the community if not detained or placed on a supervision order.[4]

   [4] ts 1174, 1202 (11 March 2022).

10. It was the respondent's position that he could and should be released into the community on a supervision order with conditions that would adequately protect the community from the risk that he would commit further serious sexual offences.

11. For the reasons that follow, I am satisfied that the respondent remains a high risk serious offender.  All of the evidence supported that conclusion.  Further, I am satisfied that the respondent would substantially comply with the standard conditions of a supervision order and that the conditions and supervision proposed will ensure adequate protection of the community from the risk that he would commit further serious offences.

12. Accordingly, I propose to rescind the continuing detention order and make a supervision order on the terms set out at sch A to these reasons.

Statutory framework and legal principles

1. There is no dispute as between the parties as to the law and principles to be applied in undertaking this review.[5]  They have been set out in a number of decisions of this court, and again recently in The State of Western Australia v Newland [No 3] [2022] WASC 43 (Hall J). In undertaking this review, I applied the law and the principles outlined below.

   [5] State's submissions dated 22 February 2022 pars 16 ‑ 39; respondent's submissions dated 24 February 2022 par 12.

2. On a review of a continuing detention order under the HRSO Act, the court has to consider, first, whether the person remains a high risk serious offender and, secondly, if so, whether the appropriate order is to affirm the continuing detention order or to rescind the continuing detention order and make a supervision order.[6]

   [6] HRSO Act s 68.

3. Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if the court dealing with an application under the HRSO Act finds that it 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.

4. A 'restriction order' under s 7(1) of the HRSO Act means a continuing detention order or a supervision order.[7]

   [7] HRSO Act s 3(1).

5. A 'serious offence' is an offence that is specified in sch 1 div 1 of the HRSO Act, or is specified in sch 1 div 2 and is committed in circumstances indicated in relation to that offence in div 2.[8]  In relation to sexual offences, the offences set out in sch 1 div 1 include all offences formerly defined as 'serious sexual offences' under the DSO Act.  Relevantly, a 'serious offence' within the meaning of the HRSO Act includes sexual offence against a child under 13, sexual offence against a child of or over 13 and under 16, sexual offence by a relative or the like, deprivation of liberty, and aggravated indecent assault.[9]

   [8] HRSO Act s 3, s 5(1) and s 5(2).

   [9] HRSO Act sch 1 div 1 sub-div 3, items 16, 17, 20, 25, 31; Criminal Code (WA) s 320, s 321, s 324, s 329, s 333.

6. Section 7(1) of the HRSO Act was recently considered by Corboy J in The State of Western Australia v Garlett [2021] WASC 387. His Honour found that the preferred interpretation of the section requires that the court assess two separate matters. First, the court must be satisfied that a risk that an offender will commit a serious offence is unacceptable; and secondly, the court must be satisfied that it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence. His Honour accepted that s 7(1) involved these two evaluative judgments (and 'necessity' and 'adequacy' involve evaluative assessments).[10]

   [10] The State of Western Australia v Garlett [135] ‑ [138]. See also The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [19] ‑ [21]; and The State of Western Australia v Narrier [No 2] [2022] WASC 49 [23].

7. The two separate matters need to be demonstrated 'by acceptable and cogent evidence and to a high degree of probability'.[11]  The expression 'high degree of probability' connotes a standard that is more than the civil standard but less than the criminal standard of proof.[12]

   [11] HRSO Act s 7(1).  See also HRSO Act s 82(2).

   [12] Director of Public Prosecutions (WA) v GTR[2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).

8. The word 'unacceptable' might carry a meaning similar to that suggested by French CJ in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38. That is, a risk that is not trivial or transient.[13]

   [13] The State of Western Australia v Garlett [136(b)].

9. The State bears the onus of satisfying the court that an offender is a high risk serious offender.[14]  In considering that issue, the court must undertake a balancing exercise, taking into account the matters listed in s 7(3) of the HRSO Act.  In addition, the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[15]

   [14] HRSO Act s 7(2).

   [15] HRSO Act s 7(4).

10. If the court is satisfied that the offender is a high risk serious offender, the remaining issue is whether a continuing detention order or a supervision order is the appropriate outcome.[16]  A court cannot make 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 such an order.[17]  The standard conditions are those contained in s 30(2) of the HRSO Act and include reporting, supervision and electronic monitoring.  The onus is on the offender to satisfy the court that he will substantially comply with the standard conditions.[18]

    [16] HRSO Act s 68(1)(b).

    [17] HRSO Act s 29(1).

    [18] HRSO Act s 29(2).

11. On a review under s 66 of the HRSO Act, in deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[19]  The powers conferred by the HRSO Act, like the now‑repealed DSO Act, are not to be exercised for the purpose of imposing additional punishment, but rather for the ultimate purpose of protecting the community.  This requires the court to choose the order that is the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[20]  I accept that it is not the function of the court to reduce the risk to zero.[21]

    [19] HRSO Act s 68(2).

    [20] The State of Western Australia v Latimer [2006] WASC 235 [49].

    [21] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].

12. The HRSO Act mandates periodic reviews of a continuing detention order.[22]  Such reviews allow for the possibility of a change of circumstances.  It does not follow from this that a court conducting a review is bound by the factual findings made at a previous hearing or hearings.  In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community.[23]

    [22] HRSO Act s 64.

    [23] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [51].

13. The risk of offending may be affected by age, health and the successful completion of treatment.  If the offender is found to no longer be a high risk serious offender, the continuing detention order must be rescinded pursuant to s 68(1)(a).

14. If the offender remains a high risk serious offender, there is no predisposition to affirming the continuing detention order.  As noted above, in deciding whether to affirm the continuing detention order or rescind the continuing detention order and make a supervision order, the paramount consideration is to be the need to ensure adequate protection to the community.[24]

    [24] HRSO Act s 68(2).

15. The level of risk posed by the respondent, and whether the community can be adequately protected against the risk under a supervision order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external constraints and obligations that can be put in place under a supervision order to mitigate the risk.

16. Whether the protection that could be afforded by a supervision order will be 'adequate' requires a qualitative assessment.  It is necessary to have regard to the nature of the risk, the likelihood of the risk being realised and the likely affect that the proposed supervision order could have in reducing or obviating that risk.  In this respect, the word 'adequate' has some similarities to the word 'unacceptable' as used in s 7 of the DSO Act:  see in regard to s 7 Director of Public Prosecutions (WA) v GTR [26] ‑ [27] (Steytler P & Buss JA) and Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] ‑ [65] (Wheeler JA).

17. Gains made by the respondent in treatment and his behaviour while in custody will inform the assessment of the personal factors.  Behavioural changes or improvements in management options may make a supervision order a viable possibility.[25] The availability of new technology or resources in the community will be relevant to the assessment of external factors.  If the risk changes or resources improve to enable more efficacious conditions, then the need for detention may dissipate and continuing detention may become unjust.[26]

    [25] The State of Western Australia v Newland [No 3] [2022] WASC 43 [23]. See also Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [18].

    [26] Director of Public Prosecutions (WA) v Unwin [No 3] [18], cited with approval by Fiannaca J in Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158 [18].

Evidence

1. At the hearing of this application, the State tendered a book of materials in two volumes.  The first was dated 11 November 2021 and the second was dated 1 February 2022.[27]

   [27] Exhibits 1 and 2, respectively.

2. The first volume of the book of materials contained among other things a copy of the respondent's criminal record; a chronology of offending prepared by the State Solicitor's Office; various Department of Justice prison records; documents which concern the respondent's offending history; various medical reports; and reports prepared for previous review hearings.

3. The second volume contained among other things various Department of Justice prison records which concern the period since the last review hearing; and various reports prepared for this review hearing, which include an individual progress report prepared by Mr David Summerton, the respondent's treating psychologist, dated 30 November 2021.  Mr Summerton has treated the respondent since 2014.[28]

   [28] Exhibit 2, page 407, par 1 (Mr Summerton's report).

4. The State also tendered without objection an email communication from Mr Reywin Rico, a law clerk employed by the State Solicitor's Office, sent to the court and copied to the respondent's representatives on 22 February 2022.[29]  The email communication contained information provided to the State Solicitor's Office by the Community Offender Monitoring Unit within the Department of Justice concerning the results of a Desktop Spatial Analysis conducted in relation to a proposed residence for the respondent should he become subject to a supervision order.

   [29] Exhibit 3.

5. While the books of materials and the email communication were received into evidence without objection, counsel for the respondent noted that submission might be made as to their ultimate significance, relevance and weight.[30]

   [30] ts 1091 (25 February 2022).

6. At the hearing of the State's application, three witnesses gave oral evidence and were cross‑examined.  Their respective reports were received into evidence as documents within the second volume of the book of materials.  They were as follows:

   (a)Dr Peter Wynn Owen, a consultant forensic psychiatrist and author of the psychiatric report dated 30 January 2022;

   (b)Ms Tania Wilson‑Brown, a psychologist employed by the Department of Justice and the author of the treatment progress report dated 15 December 2021; and

   (c)Ms Emma Cashmore, a senior community corrections officer within the Community Offender Monitoring Unit of the Department of Justice, and one of three signatories of the community supervision assessment dated 21 January 2021.

7. Also received into evidence were the following:

   (a)an extract from a document titled 'STABLE-2007 Coding Manual Revised 2014' by Y Fernandez, AJR Harris, K Hanson and J Sparks.[31]  Ms Wilson‑Brown gave evidence that she had had regard to this reference material in the preparation of her report but had inadvertently omitted to cite the material at par 42, footnote 15 of her report; and

   (b)a treatment progress report prepared by Mr Summerton ahead of his 2019 review, referenced in Mr Summerton's individual intervention progress report dated 30 November 2021.[32]

   [31] Exhibit 4; ts 1149 ‑ 1150 (25 February 2022).

   [32] Exhibit 5; ts 1173 ‑ 1174 (11 March 2022).

8. The respondent elected not to give or call any evidence.

The respondent's background, antecedents and history of sexual offending

1. The respondent's background, antecedents and history of sexual offending are set out in the previous decisions, particularly in the judgment of Hall J in [suppressed], which references the background summarised in the judgment of Jenkins J in [suppressed].  I had regard to the same as if set out in full in these reasons.  I note that the tendered books of materials contained information in relation to alleged historic offending, the convictions for which were recently set aside.  I did not have regard to the same in undertaking this review.

2. As to prison behaviour, since the last review, the respondent incurred one prison charge for fighting with another prisoner, for which he pleaded guilty and was confined to a punishment cell for five days.  The respondent was involved in an additional five adverse incidents since the last review, the most serious of which involved another fight with a fellow prisoner.[33]

   [33] Exhibit 2, page 427 (Ms Cashmore's report); Exhibit 2, pages 332 ‑ 335 (Department of Justice Prison records).

3. However, the prison database states that the respondent 'is polite and respectful towards staff … and gets along well with his peers'.  Further, he is employed as the leading hand in the prison sewing shop.[34]

   [34] Exhibit 2, page 341 (Individual Management Plan); see also Exhibit 2, page 427 (Ms Cashmore's report).

4. While I do not intend to summarise all of the evidence before me, significant evidence came from Dr Wynn Owen, Ms Wilson‑Brown and Ms Cashmore, which I summarise below.

Dr Wynn Owen

1. Dr Wynn Owen is a medical practitioner registered with the Medical Board of Western Australia as a specialist (forensic psychiatrist).  His statement of qualifications is set out in his report.[35]  He is qualified to give the opinions expressed in his report and in the course of his evidence.

   [35] Exhibit 2, pages 443 ‑ 444 (Dr Wynn Owen's report).

1. Dr Wynn Owen assessed the respondent for the purpose of reviews of the continuing detention order on previous occasions.  For the purposes of this review, Dr Wynn Owen interviewed the respondent in person.  He also spoke with Mr Summerton, the respondent's treating psychologist, and Ms Cashmore.  The documents to which Dr Wynn Owen had regard are identified at pages 2 and 3 of his report.[36]

   [36] Exhibit 2, pages 444 ‑ 445 (Dr Wynn Owen's report).

2. Dr Wynn Owen's information sources included the first volume of the book of materials, which included references to historical offences for which the respondent had been charged and convicted since the review conducted in 2019.  He referred to those matters in his report at pages 4 and 7.[37]  At the hearing, Dr Wynn Owen became aware that more recent convictions had been set aside.  When asked whether the outcome of the recent appeal affected in any way Dr Wynn Owen's opinions as set out in his report, he answered that it did not.[38]

   [37] Exhibit 2, page 446, 449 (Dr Wynn Owen's report).

   [38] ts 1094 (25 February 2022).

3. Dr Wynn Owen expressed the opinion that the respondent currently presents a high risk of future serious sexual offending, and that his successful release 'will rely on external monitoring and constraints to manage risk'.[39]

Cooperation

[39] Exhibit 2, pages 461 ‑ 462 (Dr Wynn Owen's report).

1. As to the extent to which the respondent cooperated with his psychological examination, Dr Wynn Owen recorded that he was 'cooperative at the interview' and 'relaxed, casual and somewhat overfamiliar'.[40]

Relationship

[40] Exhibit 2, page 454 (Dr Wynn Owen's report).

1. Dr Wynn Owen records that in interview with the respondent, he and the respondent discussed the respondent's relationship status.  On his last review, the respondent had discussed with Dr Wynn Owen his relationship with a mature woman who resides in the Philippines (who in these reasons will be referred to as DM), and her then 21-year-old daughter (who in these reasons will be referred to as JM).[41]

   [41] [suppressed]

2. In his recent interview, the respondent reported to Dr Wynn Owen that that he and his friend in the Philippines 'still have a relationship, it's there, we just don't talk much', attributing this reduced communication to internet problems preventing Skype contact and difficulty with local telephone network coverage.  He indicated that their last conversation had been on New Year's Day 2022, and stating that 'the longer term plan is for [DM] to come to Perth'.  The respondent also reported that DM and her daughter are not currently living together and that the last time he had spoken to JM was '18 months ago'.[42]

Medical history

[42] Exhibit 2, page 449 (Dr Wynn Owen's report).

1. Dr Wynn Owen opined that there was no medical history of direct relevance to the respondent's past offending or current offending risk.[43]

Prison behaviour

[43] Exhibit 2, page 446 (Dr Wynn Owen's report).

1. In preparing his report, Dr Wynn Owen had regard to the respondent's recent prison behaviour, that is, his behaviour since the last review.  Dr Wynn Owen noted that six prison incidents were recorded, one resulting in a charge.  Two of the incidents relate to altercations with other prisoners, in May and December 2019, the December incident leading to a charge.

2. Dr Wynn Owen also recorded that the respondent is employed as a leading hand in the sewing shop, and that the prison Individual Management Plan records that the respondent is 'always polite and respectful towards staff … does not come to the attention of staff in a negative way … interacts appropriately with other prisoners'.

Libido, sexual function and sexual fantasy

1. Dr Wynn Owen recorded that in interview, the respondent reported that he currently masturbates two or three times a week, 'for the stress reducing effect'.  Further, the respondent stated that 'when I'm writing to [DM] or talking I'm having movement in my pants'.  The respondent noted that this also occurred when he writes to his female friend in Bandyup Women's Prison.

2. While acknowledging an ongoing libido, the respondent categorically denied having any sexual thoughts about children.  Dr Wynn Owen recorded that the respondent continues to assert that his past deviant sexual interest was only ever in girls aged 12 to 14, but that he had not had a sexual thought about girls this age 'since before coming to prison'.[44]

   [44] Exhibit 2, pages 449 ‑ 450 (Dr Wynn Owen's report).

3. Dr Wynn Owen recorded that further to this, the respondent had stated that when offending he would become fixated on a particular aspect of a young girl, giving the example that he wanted to see 'an unblemished cute body, and that's what I achieved … I'm not going to do that again'.  Dr Wynn Owen recorded that when asked what he meant, the respondent said that:[45]

   he would not repeat that specific offence as the objective was achieved, accepting that while his statement sounded like he was saying he would not reoffend at all this did not necessarily mean that he might not become fixated on another aspect of a girls sexual characteristics or stage of sexual development.

   [45] Exhibit 2, page 450 (Dr Wynn Owen's report).

4. In the interview, the respondent acknowledged that prior to and around the time of the last review hearing he had become sexually interested in DM's daughter while having contact with her over Skype, and that his pattern of contact with her alone reflected this attraction.  He admitted that he had started to think about being in a relationship with JM rather than DM, going on to say 'I probably let it run on with [JM], thrived on the attention she gave me, I thought I could be in a relationship with her'.

5. The respondent reported that he had now discussed this with his psychologist Mr Summerton and was aware that he had become fascinated by JM and that he was deceiving DM, and this was a pattern of behaviour that had occurred in the past when offending while in relationships.[46]

   [46] Exhibit 2, page 450 (Dr Wynn Owen's report).

6. The respondent also reported that he was currently corresponding with a woman in Bandyup Women's Prison.  Dr Wynn Owen recorded that the respondent had stated that he read an article in the newspaper which included a picture of a female prisoner, his words were 'I saw a gorgeous Thai Sheila in the paper a few months ago, it didn't seem right to me so I wrote to her, I helped her with the appeal'.  Of their current correspondence, the respondent said 'I'm talking all kinds of shit, some of it sexual, some not', and went on to say 'I'm trying to make something of this relationship, it's like I'm keeping a back‑up plan'.

7. Dr Wynn Owen recorded that when it was pointed out that he was again deceiving others, and engaged in a pattern of behaviour which included sexualised interactions surely with some attempt to meet sexual needs, the respondent responded, 'I know, I'm still doing it'.[47]

   [47] Exhibit 2, pages 450 ‑ 451 (Dr Wynn Owen's report).

8. Dr Wynn Owen assessed the respondent's current level of sex drive to be at least normal, but probably high normal.[48]  He further explained that the assessment was not based on the respondent's self‑report concerning masturbation, rather:[49]

   It's more on his other statements.  The – the way that he described females to me.  The comments that he made about becoming aroused when he talked with his partner on – on the telephone or on the Skype.  Just the general impression he gave of sexualising encounters on a regular basis.  He was sexualising correspondence with others.  He appeared to be enjoying sexualised correspondence, for example, with the people he had linked up with through an LGBTI magazine.  This all suggested ongoing sex drive and sexual thinking, almost to the extent of sexual preoccupation.

Anti-libidinal medications

[48] ts 1098 (25 February 2022).

[49] ts 1098 (25 February 2022).

1. The respondent reported to Dr Wynn Owen that he does not wish to take a hormonal anti‑libidinal medication.  He reported that he did not want to take the hormonal medication again as in the past it had had no effect on his sexual thinking and very limited effect on his sexual function.[50]

   [50] Exhibit 2, page 451 (Dr Wynn Owen's report).

2. Dr Wynn Owen gave evidence that the respondent had taken a hormonal anti‑libidinal agent for many years, and had:[51]

   developed some gynecomastia.  I believe he probably suffered some mood change as a result as well and bone density scanning showed that there was some reduction in his bone density, which is a significant risk.  He did not develop full blown osteoporosis and a very severe risk of fracture, but I think these were of concern to [the respondent].  I think he also had at the time some abnormal liver function tests which is also a potential side effect of the hormonal agents.

   [51] ts 1095 ‑ 1096, 1124 (25 February 2022).

3. In his evidence, Dr Wynn Owen accepted that hormonal anti‑libidinal medications were generally accepted to be more successful in reducing libido than selective serotonin reuptake inhibitors (SSRIs).  Dr Wynn Owen explained that SSRIs are a commonly used antidepressant/anxiolytic medication with minimal likelihood of any long term side effects, but which have some anti‑libidinal properties.[52]  Dr Wynn Owen also accepted that the taking of hormonal anti‑libidinal medications could be monitored through blood tests, in contrast to SSRIs, the taking of which could not be readily tested.[53]

   [52] ts 1096 (25 February 2022).

   [53] ts 1097 (25 February 2022).

4. Dr Wynn Owen recorded that at his latest interview, the respondent managed this part of the conversation by immediately talking about his preparedness to take a SSRI as an anti‑libidinal, giving the impression that it was already an agreed position that he would not be restarting a hormonal anti‑libidinal medication.  The respondent did not request information or advice relating to his decision.

5. As to medications, Dr Wynn Owen recorded that the respondent recommenced taking 50mg of Zoloft, a SSRI, in January 2022.[54]  In his oral evidence, Dr Wynn Owen explained that this is a medication which had been found through the registering of adverse side effects to have impacts on physiological sexual functioning, and 50mg is a starting dosage.[55]  Dr Wynn Owen explained that Zoloft was not a major testosterone suppressant.[56]

   [54] Exhibit 2, pages 447 (Dr Wynn Owen's report).

   [55] ts 1095 ‑ 1096 (25 February 2022).

   [56] ts 1095 (25 February 2022).

6. Dr Wynn Owen recorded that it had subsequently become apparent to him from discussion with Mr Summerton and Ms Cashmore that the respondent had led them to understand that his decision to not take hormonal anti‑libidinal medication was based on advice from the court appointed psychiatrist (that is, Dr Wynn Owen).[57]  Dr Wynn Owen opined that other than giving an example of how the respondent 'impression manages' and communicates with others, his discussions indicate that the respondent does not wish to take a hormonal anti‑libidinal treatment and, as consent is required, hormonal anti‑libidinal is not currently a treatment option.

   [57] Exhibit 2, pages 451 (Dr Wynn Owen's report); see also ts 1097, 1123 (25 February 2022).

7. Dr Wynn Owen recorded that as the respondent had indicated his willingness to take a SSRI, the respondent taking a SSRI should be supported.

8. In cross‑examination, Dr Wynn Owen stated that:[58]

   The whole point of these medications is as an adjunct to therapeutic intervention, particularly criminogenic therapeutic intervention.  It's not as a standalone risk management tool, because it's always going to be time‑limited.  The idea is, if somebody has a high level of sexual preoccupation, as well as the paraphilia, that that may adversely affect their engagement with any form of therapy.  If their preoccupation can be reduced and they engage better in therapy, you give them a window of opportunity during which time they can better progress and become better able to self-manage their risk.  It – it should never be a – a - - -

   An end of self - - -?---A castration approach.  That's not something that we would do now.

   [58] ts 1124 ‑ 1125 (25 February 2022).

9. In relation to hormonal anti‑libidinal medication, Dr Wynn Owen commented that he was 'not sure that there is a great deal of utility in the longer term, to be honest, in – in a therapy that's going to cause him some potentially physical – serious physical effects over time'.[59]

Plans for release

[59] ts 1125 (25 February 2022).

1. Dr Wynn Owen's evidence was that he believed that the respondent was highly motivated for release, and if released, the respondent does not want to commit an offence and return to prison.[60]

   [60] ts 1133 (25 February 2022).

2. Among other things, Dr Wynn Owen recorded in his report that the respondent reported that he was confident about his ability to manage if released.  The respondent reported that he will pass time during curfew and other time at home alone by playing Xbox games, watching TV and Skyping with DM.  He also indicated that he would like to find work.[61]

   [61] Exhibit 2, pages 451 ‑ 452 (Dr Wynn Owen's report).

3. In relation to supervision order conditions, Dr Wynn Owen recorded that the respondent had stated that he would definitely abide by all conditions imposed and would check with his community corrections officer and/or psychologist before doing anything which he thought might place him at risk of contravention.[62]

   [62] Exhibit 2, page 453 (Dr Wynn Owen's report).

4. Dr Wynn Owen further recorded that having made this apparently clear and unequivocal assertion, the respondent subsequently challenged the nature of the breaches which led to his supervision order in 2009 being revoked.  Dr Wynn Owen recorded that the respondent minimised the unapproved contact with his daughter, saying that he had been given approval to see his daughter later on that day to deliver a pram, so he did not see why there was a problem with him seeing her earlier.  The respondent further appeared to dismiss proximity to a children's play area as not being relevant to him.  Dr Wynn Owen also recorded that the respondent placed blame on his legal representatives at the time for being found guilty of contraventions.[63]

   [63] Exhibit 2, pages 453 ‑ 454 (Dr Wynn Owen's report).  See also ts 1102, 1132 (25 February 2022).

5. The respondent had brought a copy of a past draft supervision order to the interview, and in reference to it questioned the meaning 'friendship' in relation to reporting new friendships to his senior community corrections officer, saying '[i]f I meet a girl and we go and have sex is that a friendship?  There's not going to be a second night'.  Dr Wynn Owen recorded that the respondent indicated in interview that he would also challenge conditions he did not believe were relevant to his offending such as internet restrictions and being unable to enter a car with a lone female.

6. Dr Wynn Owen opined that these comments suggest that the respondent's attitude to conditions remains ambivalent.[64]

   [64] Exhibit 2, pages 453 ‑ 454 (Dr Wynn Owen's report).  See also ts 1102 (25 February 2022).

7. Dr Wynn Owen also gave evidence to the effect that there is a concern that the respondent may target vulnerable potential partners if released.[65]  He described a situation where the respondent commenced living with someone with a child to be a 'very high risk situation'.[66]  Dr Wynn Owen was concerned that the respondent might form a relationship that was not disclosed 'very, very quickly'.[67]  He noted the respondent's diversity of offending (which ranged from opportunistic, relatively impulsive, considered and also groomed) as creating 'multiple risks'.[68]

   [65] ts 1110 ‑ 1111 (25 February 2022).

   [66] ts 1111 (25 February 2022).

   [67] ts 1111 (25 February 2022).

   [68] ts 1127 (25 February 2022).

8. As to the accommodation proposed, Dr Wynn Owen's evidence at the hearing was that it is very difficult to say that the option identified by the respondent was any different from any other potential accommodation options.  His evidence was that there were no absolute standout red lights for him around the risk of this placement in terms of the spatial analysis that had been provided.[69]

   [69] ts 1103 ‑ 1104, 1108 ‑ 1109 (25 February 2022), referencing Exhibit 3.

9. Dr Wynn Owen's evidence was that he had had discussions with the community corrections officer in relation to the draft proposed supervision conditions set out at the end of the Community Supervision Assessment.[70]  Dr Wynn Owen also accepted that the conditions would 'definitely reduce [the respondent's] risks'.[71]

Psychological intervention

[70] ts 1143 (25 February 2022); Exhibit 2, pages 437 ‑ 442 (Ms Cashmore's Assessment).

[71] ts 1147 (25 February 2022).

1. Dr Wynn Owen recorded that since his last review hearing, the respondent attended 20 one‑hour psychological intervention sessions with Mr Summerton.  Dr Wynn Owen describes that intervention treatment in his report.[72]  In addition to the description of that treatment provided by Dr Wynn Owen, I also had regard to Mr Summerton's report, reproduced in the second volume of the materials.[73]  Dr Wynn Owen's description was accurate in that it was consistent with Mr Summerton's report.

   [72] Exhibit 2, pages 447 ‑ 448 (Dr Wynn-Owen's report).

   [73] Exhibit 2, pages 407 ‑ 412 (Mr Summerton's report).

2. Dr Wynn Owen recorded that during this period there were two six month blocks when counselling did not occur, but that counselling had been monthly since June 2021.

3. The goals of counselling had been self‑management planning and preparation for release.

4. Dr Wynn Owen recorded that the respondent's correspondence with LGBTI+ prisoners was also raised in counselling, the respondent indicating that he did not see this as an issue but rather as a distraction.[74]

   [74] Exhibit 2, page 448 (Dr Wynn Owen's report).

5. Dr Wynn Owen recorded that when it was suggested to the respondent that there were sexualised elements to the correspondence and that he was not being open with his partner about there being intimate correspondence with others, the respondent reportedly accepted this feedback and stated that he had spoken with his partner about it.

6. Dr Wynn Owen recorded that scenario planning had been a part of the intervention, and that Mr Summerton had noted that although the respondent had appeared to be responsive to feedback about inappropriate behaviours, his acknowledgement had not always translated into specific behaviour change.

7. Dr Wynn Owen recorded that in discussion with Mr Summerton, Mr Summerton agreed that the respondent's recent correspondence with a female prisoner in Bandyup demonstrated the same pattern of secretive contact previously identified.  That is, the respondent rapidly sexualising aspects of communication, behaviour which suggests that the respondent had again not translated acknowledgment of past problematic behaviour into behavioural change.

8. Dr Wynn Owen recorded that Mr Summerton had indicated that counselling would continue if the respondent was released, initially on a weekly basis.  Mr Summerton is reported to have said that the role of the respondent's treating psychologist would be to support reintegration and provide additional monitoring of mood rather than to address criminogenic factors.[75]

   [75] Exhibit 2, page 448 (Dr Wynn Owen's report); see also ts 1094 ‑ 1095 (25 February 2022).

9. Dr Wynn Owen recorded that in Mr Summerton's report, Mr Summerton states '[t]he evidence suggests that [the respondent] will remain reliant on external restraints and direction'.[76]

   [76] Exhibit 2, page 448 (Dr Wynn Owen's report); Exhibit 2, page 411, par 19 (Mr Summerton's report).

10. During the course of his evidence, Dr Wynn Owen stated that he did not think that the respondent could make any further progress in the prison environment from a therapeutic perspective.[77]

Psychiatric diagnosis

[77] ts 1121 (25 February 2022).

1. In diagnosing the respondent, Dr Wynn Owen used a diagnostic classification system, DSM-V,[78] which he described as a widely used and utilised diagnostic classification system using a number of operational criteria.  Dr Wynn Owen diagnosed the respondent with a clinical disorder (paraphilias: voyeurism, exhibitionism, paedophilia (non‑exclusive type)); and antisocial personality disorder with prominent narcissistic personality traits.[79]

   [78] Diagnostic and Statistical Manual of Mental Disorders, 5^th edition.

   [79] Exhibit 2, page 454 (Dr Wynn Owen's report); see also ts 1094 (25 February 2022).

1. Dr Wynn Owen first examined the respondent in 2009, and conducted further psychiatric assessments in 2013, 2014, 2016, 2018 and 2019.[80]  Previous decisions of this court reveal that there has been no change in the respondent's diagnosis over time.

Risk assessment

[80] [suppressed] See also Exhibit 1, page 205 (Dr Wynn Owen's 2013 report); Exhibit 1, page 233 (Dr Wynn Owen's 2014 report); Exhibit 1, page 263 (Dr Wynn Owen's first 2016 report); Exhibit 1, page 274 (Dr Wynn Owen's second 2016 report); Exhibit 1, page 294 (Dr Wynn Owen's 2018 report); Exhibit 1, page 309 (Dr Wynn Owen's addendum 2019 report).

1. Dr Wynn Owen made a risk assessment utilising the Static-99R Test (2016 revision), the PCL-R (Psychopathy Checklist), and the RSVP (Risk for Sexual Violence Protocol).

2. Dr Wynn Owen previously made risk assessments of the respondent using these tools, and their nature and content were referred to in previous judgments.[81]  In these reasons, I do not repeat the description of the tests, but I record the current testing results.

   [81] [suppressed]

3. The respondent was rescored using the Static-99R Test, and his total score was reduced by two as he had reached the age of 60 in July 2021.  Notwithstanding this, the respondent's total score remained a risk level of IVb, or the 'well‑above average risk' of being charged or convicted of a new serious sexual offence.  Dr Wynn Owen explained that offenders released with the same score as the respondent, using the data from the 'high risk high needs' cohort, had a 25.7% likelihood of committing a new sexual offence within five years of release, and 37.3% within 10 years of release.  He also explained that the 'well‑above average risk' category is the highest category risk level under that test.[82]

   [82] ts 1104 (25 February 2022).

4. Dr Wynn Owen noted that this is a group risk estimate and does not indicate whether the respondent will be in the cohort that reoffends.  He noted that clinical and personality assessment, review of dynamic risk factors, protective factors and situational context assist in further refining the overall assessment of risk.[83]

   [83] Exhibit 2, page 455 (Dr Wynn Owen's report); ts 1116 ‑ 1118 (25 February 2022).

5. Dr Wynn Owen also noted that the likelihood of an adult male with no history of sexual offending committing a sexual offence during their lifetime is less than 1%.  The future likelihood of any individual who has committed a prior sexual offence committing a new sexual offence is approximately 10%.

6. A repeat assessment of the PCL-R Test was also undertaken.  The respondent recorded a PCL-R score of 28 out of 40 — which Dr Wynn Owen explained indicated a high level of psychopathy.[84]  While not reaching the threshold set for 'prototypical psychopathy' by the tool's author, Dr Wynn Owen observed that the respondent's score exceeded that accepted in a number of international legal jurisdictions other than Australia to define an individual as psychopathic; and psychopathy has been consistently demonstrated to be one of the two most significant indicators of future offending risk for sex offenders (the other being sexual deviance).[85]

   [84] ts 1105 (25 February 2022).

   [85] Exhibit 2, page 455 (Dr Wynn Owen's report); ts 1105 (25 February 2022).

7. In relation to the RSVP, Dr Wynn Owen noted that the respondent was previously assessed to have a range of 'static' risk factors and observed that all five RSVP sexual violence history risk factors were definitely present.  Dr Wynn Owen considered static and dynamic risk factors, including psychological adjustment, mental disorder, social adjustment and manageability.

8. As part of the psychological assessment, Dr Wynn Owen recorded that the risk factor 'extreme minimisation or denial of sexual violence' is present.  Dr Wynn Owen opined that '[m]inimisation or denial as an independent risk factor is not directly associated with elevated risk of future offending however can have an adverse effect on willingness to engage in treatment and compliance with supervision, it can also affect self‑awareness through failure to acknowledge or recognise high risk situations'.[86]  Further, he observed that the risk factor 'problems with self‑awareness' is present.  Among other things, Dr Wynn Owen observed that '[l]ack of self‑awareness is regarded as an important dynamic risk factor for future offending'.[87]

   [86] Exhibit 2, page 456 (Dr Wynn Owen's report).  See also ts 1099 ‑ 1100 (25 February 2022).

   [87] Exhibit 2, page 457 (Dr Wynn Owen's report).

9. As to risk scenarios, Dr Wynn Owen opined as follows:[88]

   [88] Exhibit 2, pages 459 ‑ 460 (Dr Wynn Owen's report).

   Risk scenarios

   (i)Repeat:  [the respondent] has committed a diverse range of sexual offences over time, the most significant element of the longitudinal course being a clear escalation from unseen non‑contact sexual offending to contact sexual offending with associated physical coercion.  Victims of his contact offending have been minors however non-contact offending has included adult and child victims; offences have been both planned (with or without grooming) and opportunistic; victims of both contact and non-contact offences have included strangers, unrelated non-strangers and lineal relatives.  In the context of pattern of diversity of offence type, victim selection and mode of offending the type of 'repeat' offending is not easily definable.  It is most likely that, in the context of sexual preoccupation and sexually deviant thinking, [the respondent] becomes focussed on observing and or touching a female child victim and identifies a venue where this may be possible with a low chance of detection.  He then attends that venue until an opportunity presents itself.

   (ii)Escalation:  the likelihood of escalation of offending is suggested by the pattern of escalation of offending from the 1980's to 2003.  Escalation could involve use of increased force with an increased likelihood of serious physical harm to the victim or an escalation to penetrative sexual assault.

   (iii)Escalate and change:  this is the least likely scenario.  The most likely, in light of past offending, is contact sexual offending against a female victim.  It is also noted that [the respondent] has gained some sexual benefit or pleasure from sexualised correspondence with male LGBTI+ prisoners indicating the possibility of future male victim selection however this would be a less likely escalation scenario.

   Once offending occurs it is likely to be diverse, and to continue frequently until discovered.

   There is no doubt that any future serious sexual offending will lead to immediate victim trauma, probable long term psychological harm and possible physical harm.

   Imminence:

   As above the diversity of offending and the absence of clearly offence necessary additional psychosocial stressors driving offending make estimation of imminence problematic, [the respondent's] offending relates to his sexual deviance and a personality structure with features of entitlement, callousness, lack of empathy and lack of remorse.  Based on the time to reoffence further to past sanction and or release from prison a new offence could occur within a year of release without supervision.

10. The effect of Dr Wynn Owen's evidence in cross‑examination was that the respondent was able to engage with and form relationships 'very, very quickly'.  Further, if that relationship was with someone with a child, it would be a very high risk situation.[89]

    [89] ts 1111 ‑ 1112 (25 February 2022).

11. He observed that the respondent has a 'well above average risk' score on Static-99R, and opined that:[90]

    Antisocial Personality Disorder with Narcissistic traits/a high level of psychopathy and sexual deviance being the most significant factors, these are strongly associated with risk of recidivism.  These particular factors underlying his reoffending risk are unlikely to change with further psychological intervention.  Successful release will rely on external monitoring and constraints to manage risk.

    [90] Exhibit 2, pages 461 ‑ 462 (Dr Wynn Owen's report).

12. I note that Dr Wynn Owen did not proffer the opinion that the risk posed by the respondent could not be managed in the community subject to a supervision order.  Instead, he opined that the respondent's successful release would 'rely on external monitoring and constraints to manage risk'.[91]

Recommendations

[91] Exhibit 2, page 462 (Dr Wynn Owen's report).

1. Having proffered the opinion that the respondent currently presents a high risk of future serious sexual offending, Dr Wynn Owen concluded his report with four recommendations.

Counselling

1. Dr Wynn Owen recommended that counselling with a therapist known to the respondent should continue if the respondent is released, initially on a weekly basis.

2. Dr Wynn Owen stated that the function of that counselling will be to assist reintegration, rehearse high risk scenarios, facilitate understanding of and compliance with order conditions, and to monitor mood and to observe behaviour.

3. If the respondent was to remain in detention, Dr Wynn Owen recommended that counselling initially continue at a lower frequency to maintain rapport and to assist in management of adjustment to the decision, taking the opportunity to address inappropriate behaviours and sexually deviant thinking should it arise.  He further recommended that higher frequency sessions should then recommence at least six months prior to the next prospective release date.

4. In oral evidence, Dr Wynn Owen confirmed his understanding that, if released on a supervision order, the role of a psychologist will be to support reintegration and provide additional monitoring of mood, rather than to address criminogenic factors.[92]

Conditions

[92] ts 1094 ‑ 1095 (25 February 2022).

1. If the respondent is released, Dr Wynn Owen recommended that supervision order conditions reflect high risk situations, in particular relating to unsupervised contact with children; monitoring existing relationships and formation of new relationships enabling access to children; and preventing access to venues where children regularly gather.

2. He opined that as the respondent has been in prison for a long time, conditions should also initially be constructed to assist reintegration and the transition from the highly structured and ordered prison environment to the community, such conditions to be potentially varied at the discretion of the community corrections officer based on progress of integration and other factors such as employment.

3. He recommended that the conditions also reflect the possibility of unreliable self‑report.[93]

   [93] ts 1148 (25 February 2022).

4. In oral evidence, Dr Wynn Owen observed that the particular areas of risk for the respondent, such as children's playgrounds, would obviously have to be exclusion zones.[94]

Duration

[94] ts 1103 (25 February 2022).

1. Dr Wynn Owen expressed the view that if the respondent is released to a supervision order, the duration should be at least 8 years.

2. He recorded that this recommendation was based on accumulated research evidence which clearly showed that risk reduces with time spent offence free in the community, and on research published by the authors of the Static-99R test, which found that individuals with the same score as the respondent on release had a reduction to a future offence likelihood in the 'average risk' range after 8 years offence free.[95]

Anti-libidinal medication

[95] See also ts 1108 (25 February 2022).

1. Finally, Dr Wynn Owen recommended that if released to a supervision order, the respondent should consider taking a SSRI medication as an anti‑libidinal, such medication having been shown to reduce libido and to impair sexual function.  He stated that if sexual preoccupation can be reduced by this medication, the respondent may be more able to engage in therapy and with supervision.

2. However, Dr Wynn Owen noted that patient consent is required for this medication and therefore it should not be seen as a critical part of the risk management of the respondent.

Ms Wilson-Brown

1. Ms Wilson‑Brown is a senior counselling psychologist employed by Forensic Psychological Services, within the Department of Justice, and is registered with the Australian Health Practitioner Regulation Agency.

2. Ms Wilson‑Brown's report is titled 'High Risk Serious Offender Treatment Progress Report', and she records that it was prepared in order to provide an overview of the intervention provided to the respondent and assess the relevant issues impacting on his treatment provision since his last review.[96]  She is qualified to give the opinions expressed in her report and in the course of her evidence.

   [96] Exhibit 2, page 413, par 3 (Ms Wilson-Brown's report).

3. The sources Ms Wilson‑Brown relied upon in preparing her report included a two hour interview with the respondent on 30 November 2021.  She also relied upon, and substantively quoted from, the reports prepared by Mr Summerton dated 30 November 2021 and 30 July 2018.[97]

Cooperation

[97] Exhibit 2, pages 407 ‑ 412 (Mr Summerton's report of 30 November 2021); pages 413 ‑ 418 (Ms Wilson‑Brown's report); Exhibit 5 (Mr Summerton's report of 30 July 2018).

1. Ms Wilson‑Brown met with the respondent and noted that he had a 'generally affable attitude toward the assessment process'.[98]

Libido, sexual function and sexual fantasy

[98] Exhibit 2, page 418 (Ms Wilson-Brown's report).

1. Ms Wilson‑Brown reported that in interview, the respondent described the factors that precipitated his sexual offences as sexual preoccupation that became 'addictive' which he allowed to gradually increase 'to make [him]self feel better'.  She recorded that he stated his offending occurred when he let his arousal 'spiral out of control', acknowledging he was in 'fantasy land', and thinking about sexually inappropriate stimuli was a 'distraction' which made him feel better when he felt stressed.[99]

   [99] Exhibit 2, page 419 (Ms Wilson-Brown's report).

2. When asked about the potential for relapse into sexual preoccupation in the community, Ms Wilson‑Brown recorded that the respondent indicated this could be a possibility, more so if faced with similar recent stressors, such as if he were charged with new offences as this trigger had also previously brought up his alleged sexual abuse.

3. In response to being asked what his high risk situations for sexual offending in the community were, Ms Wilson‑Brown recorded that the respondent reported these to be 'boredom, aimlessness' and 'becoming curious' as to what a female he sees would look like with no clothes on.  She recorded that he described this latter factor as the most significant 'early indicator' that he was on a path to offending, specifically describing how he would need to recognise if he was 'fixating on a particular person' or creating opportunities to see them.  He stated strategies to manage these high risk situations would involve needing to consider every scenario and having a plan, indicating he would need to be talking to Mr Summerton and his senior community corrections officer to continue developing his risk management plan, as not every situation can be anticipated prior.

4. Ms Wilson‑Brown recorded that upon enquiry, the respondent reported feeling capable in managing this as he had been 'practising' being open in his communication with supervising staff and was aware of the need to check his conditions and consider all the 'technicalities'.

5. As to his libido, Ms Wilson‑Brown recorded that the respondent described engaging in fortnightly masturbation, with his arousal to visual stimulus from television shows, such as sex scenes and more specifically, lesbian scenes on SBS.  She reported that the respondent stated that six months ago he had been engaging in daily masturbation and had been doing so for the preceding two years.  He stated that his arousal had increased from previously reported levels due to stress associated with his legal proceedings.

6. Upon enquiry, the respondent reported that he did not consider his arousal would increase with this upcoming court review.  He based his view on the recent appeal proceeding, which he reported did not result in him experiencing any increased arousal.  He reported his sexual preference was for adult females, however acknowledged an enduring sexual interest in 12 to 14 year old girls.  He also stated that he knows he will always look at girls in this age range and would likely think 'they look cute' or 'she's going to be a heartbreaker'.  He acknowledged that he anticipated he would continue to have these sexual thoughts about adolescent girls and stated he would need to ensure he does not 'dwell' on these thoughts to avoid a behavioural 'consequence'.[100]

   [100] Exhibit 2, page 420 (Ms Wilson‑Brown's report).

7. The respondent also discussed JM with Ms Wilson‑Brown and was asked if he was concerned about an enduring sexual attraction to his partner's daughter if he were to have physical contact.  The respondent stated that he hopes there would not be but he did not know if he would be 'inappropriate' with her.[101]

Risk assessment

[101] Exhibit 2, page 421 (Ms Wilson-Brown's report).

1. Ms Wilson‑Brown opined in her report as to the respondent's future intervention issues.[102]  She stated at par 36 of her report, among other things, that:

   Maintaining his openness to self-reflection, consideration of alternative viewpoints, and responsiveness to feedback was reported by Mr Summerton, which was apparent during interview.  However, [the respondent] continues to have difficulty accepting problematic behaviour of a sexual nature until highlighted by others and, despite his acknowledgment of inappropriate behaviour, this has not always resulted in behaviour change.  External constraints and ongoing engagement with individual intervention and supervision to highlight potential risk issues will be required in the community.

   [102] Exhibit 2, pages 421 ‑ 424 (Ms Wilson‑Brown's report).

2. She also opined that:

   Whilst [the respondent] continued to express some oppositional views in his attitude toward the DSO/HRSO Act, these appear entrenched beliefs largely entwined with his personality features, and therefore are unlikely to shift.  He demonstrated some improvement in his acceptance of his order and his intention to no longer legally contest it.  This included understanding the likely conditions if released on a supervision order and the need to clarify and seek permission from supervising staff regarding his activities.  However, given his tendency to present favourably, his limited (albeit developing) consideration of the needs of others, and inhibited foresight in considering the potential negative impact of his behaviour which may increase his risk, [the respondent's] ongoing compliance with intervention and other risk management strategies will need to be monitored.

   …

   There appeared to be minimal change in his presentation from his previous assessment of treatment progress, however some indications of improvement in treatment goals was observed during the current assessment.  Specifically, in [the respondent's] increasing acceptance of the need for compliance with supervision and order requirements regarding his activities and behaviour in the community given his awareness of his deviant interest and fantasising about adolescent girls and the potential for his ongoing deviant sexual thinking to lead to high risk behaviour.  However, despite his stated intentions to take responsibility for ensuring he is understanding his order conditions and maintaining transparency with his [senior community corrections officer], and his awareness of the expectations and consequences of non‑compliance, he will likely experience difficulties maintaining this approach, particularly if he disagrees with aspects of his order.  Feedback and support from his treating psychologist would be helpful in managing his response to challenging situations throughout his supervision order.

3. Ms Wilson‑Brown opined that the respondent's level of sexual preoccupation remains concerning, evidenced by his report of increased arousal over an extended time earlier in this review period, and continued sexual focus in his written correspondence with others.[103]

   [103] Exhibit 2, page 423 (Ms Wilson‑Brown's report).

1. The respondent's tendency to engage in deviant, avoidant or otherwise non‑compliant behaviour in a deceptive or secretive manner was also noted by Ms Wilson‑Brown, together with his capacity for deception acknowledged to have served an attention seeking and emotionally rewarding purpose.

2. She further noted that the respondent had previously presented with an over estimation of his ability to address problematic behaviour independently, and whilst he stated he had attempted to be more reflective of his behaviour in counselling, his potential to avoid addressing these issues in counselling will need to be monitored.  She noted that this may also impact on monitoring by his senior community corrections officer, and supervising staff would need to be aware that despite external controls such as reporting being present, their effectiveness may be limited as it is dependent on the respondent's openness and transparent engagement.

3. In relation to the respondent's willingness to self‑report honestly and openly, Ms Wilson‑Brown's evidence was that she accepted that this could be developed in therapy.[104]  As to the respondent's response to therapy, she noted that:[105]

   he has demonstrated some openness, and I – and I noted that in – in my interview.  He was – he was open in disclosing his current sexual arousal, admitting to his sexual preferences, admitted to having a – developed a sexual interest in his partner's daughter, which he knew was inappropriate at the time, given he was in a relationship with the mother.  He has a capacity and willingness to accept information that may view him in a negative light.  But he has also demonstrated a pattern of withholding information to Mr Summerton that could have been helpful in – particularly when it was pre-emptively raised – in avoiding him continuing on with behaviour that became problematic and risk‑relevant.

   [104] ts 1152 (25 February 2022).

   [105] ts 1153 (25 February 2022).

4. In her report, Ms Wilson‑Brown noted that there was progress in the respondent's increasing acceptance of the need for compliance with supervision and order requirements regarding his activities and behaviour in the community given the potential for his ongoing deviant sexual thinking to lead to high risk sexual behaviour.  She noted that the respondent's tendency to engage in deviant, avoidant or otherwise non‑compliant behaviour in a deceptive or secretive manner, together with his identified personality factors a propensity to challenge those in authority, are relevant treatment responsivity considerations.  She also noted that this behaviour may also impact on supervision and external controls utilised to attempt to mitigate risk relevant behaviour.  She further noted that ongoing treatment targets would best be met through his ongoing intervention with a Forensic Psychological Intervention Team psychologist.  Ms Wilson‑Brown also confirmed in her evidence that the respondent would continue to be treated by Mr Summerton to maintain continuity.[106]

Recommendations

[106] ts 1156 (25 February 2022).

1. Ms Wilson‑Brown opined that treatment goals identified in assessment since the respondent's designation as a high risk serious offender remain relevant in managing his risks, particularly if released to the community.  Should the respondent receive a supervision order, she recommended that ongoing intervention should focus on:

   a)His coping with his re-integration to the community and associated stressors, particularly continuing to develop his acceptance and willingness to comply with his order conditions;

   b)Developing his motivation to engage and communicate with members of his risk management team in a transparent and open manner;

   c)Further developing his awareness of high risk situations and management strategies, with a focus on identifying strategies specific to anticipated scenarios and antecedents in the community;

   d)Ongoing review and monitoring of the presence of deviant sexual thoughts and fantasies and further development of strategies to manage this behaviour; and

   e)Developing his intimate relationship skills if his current partner relocates to Australia or if he forms a new relationship, particularly in exploring how he is forming an emotional connection to others and meeting his sexual needs.

2. She recommended that if the respondent remained subject to a continuing detention order, his treatment needs and responsivity to ongoing intervention will be further assessed by his treating psychologist to determine the most appropriate plan to address these needs prior to his next review.  If the respondent was released on a supervision order, she recommended that regular psychological intervention would be of benefit, with an initial focus on his adjustment to the community, in addition to specifically addressing risk related factors.[107]

   [107] Exhibit 2, page 425 (Ms Wilson‑Brown's report).

3. Like Dr Wynn Owen, Ms Wilson‑Brown did not proffer the opinion that the risk posed by the respondent could not be managed in the community subject to a supervision order.  Instead, she opined that ongoing compliance with intervention and other risk management strategies would need to be monitored.[108]

Ms Cashmore

[108] Exhibit 2, page 424 (Ms Wilson‑Brown's report).

1. Ms Cashmore is a senior community corrections officer within the Community Offender Monitoring Unit of the Department of Justice.  She produced a community supervision assessment dated 21 January 2022.[109]

   [109] Exhibit 2, pages 426 ‑ 442 (Ms Cashmore's report).

2. The first part of Ms Cashmore's report set out the factual background to the report, which includes a summary of the intervention programs the respondent has completed to date and his prison behaviour.[110]

   [110] Exhibit 2, pages 426 ‑ 427 (Ms Cashmore's report).

3. Ms Cashmore's report then described a proposed community supervision plan, which includes accommodation options; community supports (which remain limited); potential future employment; and contemplates the respondent being restrained from having any contact with complainants of his serious offending, as well as being required to permit police officers to search his residence, electronic devices and vehicle for the purpose of monitoring his compliance with his obligations.[111]

Future employment

[111] Exhibit 2, pages 427 ‑ 434 (Ms Cashmore's report).

1. The respondent does not have confirmed employment and will initially be in receipt of Centrelink payments.[112]

   [112] Exhibit 2, page 434 (Ms Cashmore's report).

2. As to potential future employment, Ms Cashmore reported that although the respondent has been proactive in attempting to compile a viable release plan by writing to various prospective employers and accommodation providers, his plans had, at times, been unrealistic.  However, after discussion, he conceded that forms of employment that he had suggested were inappropriate.[113]

Victims

[113] Exhibit 2, pages 427 ‑ 428 (Ms Cashmore's report).

1. Ms Cashmore reported that the respondent has maintained contact with his daughter.  Ms Cashmore noted in her report that by her contact with the Victim-offender Mediation Unit (VMU) on 18 and 20 January 2022, it had been confirmed to her that the previously proposed protective conditions remain appropriate.  She noted that the respondent's daughter had requested that these protective conditions also be extended to include her children, regardless of their age, expressing concern that the respondent may attempt to contact her 18 year old child.[114]

   [114] Exhibit 2, page 434 (Ms Cashmore's report).

2. Ms Cashmore also recorded that while liaising with VMU, concerns were raised in relation to the respondent's ongoing correspondence with a prisoner at Bandyup Women's Prison.  She records that VMU noted that this female prisoner had convictions relating to a 12 year old child, including having exposed a child under 13 years to indecent matter, and to distribution of child exploitation material.  In the event that the respondent is released to a supervision order, Ms Cashmore noted that it is envisaged that the proposed condition 'not to associate with any person known by you to have committed a sexual offence' will compel the respondent to cease contact with this prisoner.

Australian National Child Offender Register (ANCOR)

1. Ms Cashmore recorded that the respondent is subject to reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA). She noted that should the respondent be released from custody, he will be required to report to the officer in charge of the Sex Offender Management Squad (SOMS), or his or her delegate, within 48 hours of his release from custody. As a convicted child sex offender, the respondent will not be permitted to consort with other convicted child sex offenders.[115]

Treatment needs and proposed conditions

[115] Exhibit 2, page 434 (Ms Cashmore's report).

1. Ms Cashmore described the treatment needs and behaviours of the respondent that would require management should he be released from custody on a supervision order as identified in the reports of Dr Wynn Owen and Ms Wilson‑Brown, together with the strategies suggested by them to manage the respondent's offending behaviours.[116]

   [116] Exhibit 2, pages 434 ‑ 436 (Ms Cashmore's report).

2. If the court was to make a supervision order, Ms Cashmore proposed in her report 56 supervision order conditions.  They include conditions which will, among other things, facilitate treatment; facilitate monitoring of movements and associations; restrain contact with complainants; allow for the review of electronic devices; restrict substance use; allow for the imposition of a curfew; and are focused on the prevention of high‑risk situations.[117]

   [117] Exhibit 2, pages 437 ‑ 442 (Ms Cashmore's report).

3. I note that if released to a supervision order, the respondent will be subject to Global Positioning System (GPS) monitoring.  Ms Cashmore noted in her report that GPS tracking, including the use of GPS exclusion zones, can be utilised to monitor and prohibit attendance at high risk locations.  Although GPS monitoring can be utilised to identify patterns in the respondent's movements, she noted that there are limitations with the technology in that it will not indicate who the respondent is associating with nor what he is doing.[118]

   [118] Exhibit 2, page 435 (Ms Cashmore's report).

4. Ms Cashmore also recorded that Dr Wynn Owen had confirmed his support for a diary condition.  She noted that such a condition would require the respondent to record information relating to his daily activities and associations as well as the locations he had attended.  She stated that this diary would be regularly reviewed by his community corrections officer and would also be presented to police officers at SOMS upon request.  The respondent's movements, as reported in his diary would then be able to be verified through a review of GPS data to identify any frequently attended areas in which the respondent could be forming new relationships and associations, and gaining access to potential victims.

5. Ms Cashmore noted however that the accuracy of information contained in the respondent's diary will be reliant on the respondent's self‑report, and as such, order conditions requiring the respondent to report any new friendships and relationships was recommended to ensure that appropriate enquiry into these individuals can occur.  She noted that if deemed necessary, a disclosure of the respondent's previous offending and order obligations can be facilitated.  Liaison would occur with the respondent's supports and any agencies involved in his case management to verify self‑report wherever possible.  Ms Cashmore recorded that these proposed conditions were discussed with Dr Wynn Owen at the time and he confirmed his support.

6. Ms Cashmore stated that given the respondent's ongoing impression management and concerns around the reliability of his self‑report, in addition to the diary condition, a condition may be included to compel the respondent to outline proposed future movements either verbally or in written form via his diary.  She noted that this would allow for preplanning of his movements and exploration around his decision‑making processes in advance.  She noted that discussions around the respondent's future movements would also assist him in taking responsibility for behaviours that could be seen as mirroring his previous non‑compliance and offending profile, and allow for a dialogue around this in advance.

7. Ms Cashmore recorded that this proposed condition was discussed at length with Dr Wynn Owen, who confirmed his support for the condition, noting that projecting future movements would assist the respondent with reintegration and provide him with the opportunity to develop his planning and organisation skills.  She further noted that a proposed condition had been crafted in a way to allow for change over time, to provide the respondent with the opportunity for self‑management, once established in the community.

Disposition

High risk serious offender

1. I am satisfied on the evidence that the respondent remains a high risk serious offender.

2. First, I find that there remains an unacceptable risk that the offender will commit a serious offence.

3. As was the case at the last review hearing, there is presently no doubt that the respondent remains a serious danger of committing further serious sexual offences.  The level of risk of serious offending has not significantly changed nor reduced since the last review hearing.

4. There is no change to the respondent's psychiatric diagnosis.  Dr Wynn Owen's examination of the respondent revealed the risk factor of sexual deviance remained present.  Further, while the respondent did not meet the diagnostic threshold for prototypical psychopathy, it was found that the features characterising his personality are all factors of a psychopathic personality.[119]  I understand from the evidence of Dr Wynn Owen that sexual deviance and psychopathy are the two most significant factors in assessing risk of future sexual offending.

   [119] Exhibit 2, page 457 (Dr Wynn Owen's report); ts 1106 (25 February 2022).

5. When rescored using the Static-99R risk assessment, the respondent's total score had reduced by two.  The reduction occurred only by reason of the respondent having reached 60 years of age in July 2021.[120]

   [120] Exhibit 2, page 454 (Dr Wynn Owen's report).

6. It remains the case that there is no medical history of direct relevance to the respondent's past offending or current offending risk.  Minimal change in the respondent's presentation was observed by Ms Wilson‑Brown in the respondent's presentation from his previous assessment of treatment progress.[121]

   [121] Exhibit 2, page 422 (Ms Wilson‑Brown's report).

7. I have had regard to the respondent's background, antecedents and criminal history.

8. It remains the case that based on the respondent's history of offending, the risk is that he will commit a serious sexual offence against a young female.  The nature of the risk is a serious one and the class of potential victims is very wide.  The possible victim could be a child, but also extend to girls of 14 to 16 years old.  There is no fixed pattern to the respondent's offending and this makes predicting specific risk scenarios a difficult task.  The risk relates not only to children whom he may be in a familial or domestic relationship with, it extends to children who are strangers and who he has seen only briefly before becoming obsessed with them.  His offending is not likely to be opportunistic, rather it could involve significant planning and preparation.  The offending could involve the use of psychological coercion as well as physical violence.  Dr Wynn Owen opined that once offending occurs it is likely to be diverse, and will continue frequently until discovered.  It will lead to immediate victim trauma, probably long term psychological harm and possibly physical harm.[122]

   [122] Exhibit 2, page 460 (Dr Wynn Owen's report), cited by the State at par 52 of the State's submissions.

9. Dr Wynn Owen proffered the opinion that respondent currently presents a high risk of future serious sexual offending.  The expert evidence regarding the nature and degree of the risk was not challenged.  I accept the opinions of the experts.  In light of all of the evidence, which I found to be acceptable and cogent, I was satisfied to a high degree of probability that there remains an unacceptable risk that the offender will commit a serious offence.

10. Secondly, I am satisfied on the evidence that it remains necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.

11. In so finding, I had regard to the reference made to the Community Protection (Offender Reporting) Act in Ms Cashmore's report.  I understood that the respondent is a reportable offender subject to that Act.

12. I understand from Ms Cashmore's report that the strategies recommended to manage offending behaviour described in Ms Cashmore's report, which were formulated in consultation with Dr Wynn Owen and Ms Wilson‑Brown among others, include conditions that are in addition to the restrictions that would be imposed upon the respondent under the Community Protection (Offender Reporting) Act upon release.  The evidence does not permit a meaningful comparison of the effectiveness of an order available under the Community Protection (Offender Reporting) Act, and the regime under the HRSO Act.  On the evidence, I cannot be satisfied that the obligations that might be imposed on the respondent under the Community Protection (Offender Reporting) Act are sufficient to ensure the adequate protection of the community.[123]

    [123] Following the approaches of Heenan J in Director of Public Prosecutions (WA) v Wesley [No 2] [2015] WASC 168 [56]; and Allanson J in Director of Public Prosecutions for Western Australia v Stephenson [2015] WASC 496 [72] ‑ [74].

13. I am satisfied to a high degree of probability that on the evidence, there continues to be a need to protect the community from the risk that the respondent will commit a serious offence by making a restriction order.

Continuing detention order or a supervision order?

1. Having found that the respondent remains a serious danger to the community, the court must either affirm the continuing detention order or make a supervision order.  In making this decision, the paramount consideration is the need to ensure the adequate protection of the community.  The need to ensure the adequate protection of the community does not exclude other considerations.[124]

   [124] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14], cited by the State at par 44 of the State's submissions.

2. As noted above, a court cannot make 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 such an order.[125]  The standard conditions are those contained in s 30(2) of the HRSO Act and include reporting, supervision and electronic monitoring.  The onus is on the offender to satisfy the court that he will substantially comply with the standard conditions.[126]  For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[127]

The State's position

[125] HRSO Act s 29(1).

[126] HRSO Act s 29(2).

[127] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [2019] WASC 427 [29]; The State of Western Australia v ZSJ [2020] WASC 330 [56] ‑ [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] ‑ [111].

1. The State submitted that when the respondent was last released on a supervision order, he repeatedly breached his conditions within a few days; and continues to challenge the nature of his breaches committed in 2009.  Further, the respondent recently indicated that he disagrees with some of the proposed conditions, if a supervision order were to be implemented.

2. The State submitted that given the respondent's entrenched personality traits of narcissism and sense of entitlement, it is difficult to see how he is going to maintain compliance with conditions that he does not see as justified.  The State also noted the evidence of the respondent's lack of self‑awareness, and tendency for deception, which the State submitted would make self‑reporting a real challenge.  Self‑reporting was noted by the State as a critical part of supervision and management in the community for HRSO offenders.[128]

   [128] ts 1087 ‑ 1088 (25 February 2022).

3. It is the State's position that there has been no improvement in those areas which would support the view that the community would be adequately protected if the respondent was released.[129]

The respondent's position

[129] State's submissions par 96.

1. Counsel for the respondent contended that on the evidence, the court should find that the risk the respondent presents to the community can be adequately managed by releasing him on a supervision order with appropriate conditions.

Findings

1. On the basis of the evidence before me, I am satisfied of the following matters:

   (a)The respondent's level of sexual preoccupation remains concerning, despite his claim to the contrary.[130]  He has not fully acknowledged his sexual deviance,[131] has demonstrated significant difficulties controlling his deviant thinking, and continues to sexualise interactions.

   [130] Exhibit 2, page 423 (Ms Wilson‑Brown's report).

   [131] ts 1100 ‑ 1101 (25 February 2022).

   (b)There is significant potential for relapse into sexual preoccupation in the community.  In this regard, Ms Wilson‑Brown records that the respondent indicated this could be a possibility, particularly if he is also feeling stress.[132]

   [132] Exhibit 2, pages 419 ‑ 420, 422, 424 (Ms Wilson‑Brown's report).

   (c)The respondent has limited support available to him from relatives, nor does he have developed and tested skills to assist in self regulation.  However, some support will be available to the respondent upon release provided by Uniting WA, which includes practical support and life skills training; and referrals to additional long‑term community supports.

   (d)The variety of offending conduct engaged in means that the respondent could be difficult to predict and also, consequentially, difficult to manage.

   (e)The factors underlying his reoffending risk are unlikely to change with further psychological intervention, and if released, the respondent will remain reliant on external restraints and on directions.  The focus of the respondent's treatment upon release will be on condition compliance.

   (f)In 2009, the respondent breached the terms of his last supervision order.  He has continued to express some oppositional views in his attitude towards the DSO Act and HRSO Act, which appear to be entrenched beliefs largely entwined with the respondent's personality features, and therefore unlikely to shift.

   (g)The respondent has a tendency to engage in deviant, avoidant or otherwise non‑compliant behaviour in a deceptive or secretive manner.  There is difficulty knowing when the respondent is being open and frank.[133]  The reliability of any self‑report by the respondent is questionable.[134]

   (h)The respondent is highly motivated to be released.

   (i)It appears unlikely that the respondent could make any further progress in the prison environment from a therapeutic perspective.

   (j)The respondent has demonstrated some improvement in his acceptance of being subject to a restriction order, and in his understanding the likely conditions if released on a supervision order.  This includes the need to clarify and seek permission from supervising staff regarding his activities.  There is some evidence that the respondent has come to appreciate the low threshold for the potential to contravene his conditions if subject to a supervision order.[135]  However, he will likely experience difficulties in fulfilling his stated intentions of seeking clarification and maintaining transparency, particularly if he disagrees with aspects of his supervision order.

   (k)Suitable initial accommodation has been identified and will be available if the respondent is released.  Available accommodation for high risk serious offenders is unlikely to be perfect.  The accommodation proposed raised no particular red flags.

   (l)The respondent is not prepared to take anti‑libidinal medication, but had indicated willingness to take a SSRI, a commonly used antidepressant/anxiolytic medication with minimal likelihood of any long term adverse side effects which has some anti‑libidinal properties.

Anti-libidinal medication

[133] ts 1129 (25 February 2022).

[134] ts 1148 (25 February 2022); Exhibit 2, page 456 (Dr Wynn Owen's report).

[135] Exhibit 2, page 411 (Mr Summerton's report).

1. The respondent's position concerning the taking of anti‑libidinal medication has changed over time.  I note as follows.

2. At the time of his last review, the respondent was receiving an anti‑libidinal hormone injection and a SSRI.  He reported some side effects, but was prepared to continue taking the medication, including the SSRI and had indicated preparedness to increase the dosage rate of that was recommended.[136]

   [136] [suppressed]

3. The reasons for decision of Hall J delivered upon the last review record that while anti‑libidinal medication was not the only component of the appropriate treatment, in Dr Wynn Owen's view, it was a cornerstone of risk management.[137]  Further, Dr Wynn Owen noted that it was appropriate to consider increasing the dose rate in an effort to achieve lower testosterone levels.[138]

   [137] [suppressed]

   [138] [suppressed]

4. During the course of the hearing before Hall J, an adjournment was secured on behalf of the respondent so that he could seek an adjustment in his dose rate of anti‑libidinal medication, as recommended by Dr Wynn Owen.[139]  At the time of the last review, it appeared that the respondent was fixated on achieving a number for his testosterone levels rather than a change in his fantasies, libido and behaviour.[140]

   [139] [suppressed]

   [140] [suppressed]

5. Dr Wynn Owen's evidence was that the anti‑libidinal medications were being prescribed to reduce libido and, in particular, the frequency, intensity and intrusiveness of sexual thinking, in part directly reduced the risk of sexual offending by removing one of the principal drives to his offending, but also, and more importantly, to enable the respondent to engage in therapy.  The importance of this is that hormonal anti‑libidinal medication is time limited by the serious side effects, some of which are potentially life threatening.  He expressed the opinion that such therapy cannot be part of any long-term risk management strategy.[141]

   [141] [suppressed]

6. Justice Hall concluded that on the evidence before his Honour, it was apparent that, notwithstanding the reduction in testosterone, the respondent's sexual thinking had been largely unaffected.[142]

   [142] [suppressed]

7. In interview in advance of this hearing, the respondent indicated that he was not prepared to take anti‑libidinal medication.  However, Dr Wynn Owen recorded that the respondent had indicated willingness to take a SSRI, a commonly used antidepressant/anxiolytic medication with minimal likelihood of any long term adverse side effects which has some anti‑libidinal properties, which he opined should be supported if the respondent was released.

Disposition

1. On the evidence, the decision of whether to affirm the continued detention order, or to revoke it and impose a supervision order is very finely balanced.

2. The paramount consideration is the need to ensure the adequate protection of the community.  Having weighed all the evidence, I am satisfied that the risk that is presented by releasing the respondent on a supervision order can be reduced or guarded against to a level that is reasonably acceptable and will ensure the adequate protection of the community.

3. The standard conditions required by the HRSO Act will apply.  An additional 49 conditions are proposed in the Community Supervision Assessment prepared by Ms Cashmore.

4. The proposed additional conditions for the supervision order are designed to achieve the appropriate management of the respondent and his risk of sexual offending.

5. The conditions proposed are comprehensive and address the respondent's specific risk factors.  I am satisfied that the imposition of the conditions, which contemplate very close supervision and immediate and ongoing psychological intervention focussed on condition compliance, combined with the insight gains acquired by the respondent and his strong desire not to be again be the subject of a continuing detention order, reduce the risk posed by the respondent to a level that is reasonably acceptable and will ensure the adequate protection of the community.

6. All of the proposed additional conditions will be adopted.  While each serves a necessary function, I note the following.

7. The respondent is to attend programs or treatment nominated by a community corrections officer, as directed by a community corrections officer.  Treatment focused on condition compliance and addressing risk related factors is contemplated by the conditions and required in this case.  I understand that psychological intervention will continue with Mr Summerton, initially on a weekly basis.  Continued and regular treatment by Mr Summerton is preferrable, given his familiarity with the respondent, and to promote stability and continuity.

8. I will also include a condition that the respondent undergo medical treatment, including antidepressant medication or anti‑libidinal treatment, as directed by the community corrections officer in consultation with a medical practitioner or medical practitioners.  Further, it will be a condition that he comply fully with any treatment prescribed, and comply with all testing to monitor his compliance with medical treatment and/or anti‑libidinal treatment as directed by a community corrections officer.

9. It will also be a condition of the supervision order that the respondent permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to the respondent's level of risk of reoffending, and compliance with the treatment to the Department of Justice.  The respondent will require vigilant monitoring.  Transparency and dialogue as between those supervising the respondent and those treating him is required.

10. The respondent's movements and associations will be closely monitored.  The conditions contemplate the respondent being subject to close monitoring and supervision by members of the Risk Management Team of the Community Offender Monitoring Unit, including police officers from SOMS, Community Corrections Officers, management staff from the Department of Justice, and psychologists and managers from the Forensic Psychological Service Team.

11. The risk management of the respondent is to include regular and unscheduled home visits, liaising with community agencies and other stakeholders, as well as regular review of his risk factors at risk management meetings of the Risk Management Team of the Community Offender Monitoring Unit.

12. Given the questionable reliability of self‑report by the respondent, conditions will be imposed which require the respondent to outline future movements.  These conditions will allow for pre‑planning of movements and exploration of the respondent's decision‑making processes in advance.  He will also be subject to GPS monitoring, exclusion zones, and a diary condition.  These conditions used in combination are intended to keep him away from areas where children usually congregate, and to address the respondent's unreliability and tendency to deceive.

13. The Community Offender Monitoring Unit and the SOMS will be empowered to review the respondent's electronic devices to allow for the monitoring of any potential high risk scenarios, and to confirm the respondent's self‑report with respect to associations and relationships.  To ensure data integrity, the respondent will be prohibited from deleting or disguising electronic data.  Further, the respondent will be prohibited from accessing online social media platforms so as to reduce the opportunity to access and groom potential victims.

14. The respondent will be subject to conditions which restrict his contact with children.  The conditions contemplate that any contact with a child be approved in advance and supervised at all times by an adult approved in advance by a community corrections officer.  It will be a condition that he not be within 50 metres of a school, unless he has a reasonable excuse; and that he not remain in any child focused area (such as the children's section of any department store) where children congregate, without a reasonable excuse.

15. Further, it will be a condition that the respondent 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 community corrections officer.  The respondent will also be required to report at his next contact with his community corrections officer, the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by him with any person.

16. The respondent will be subject to conditions which restrict contact with victims of the respondent's offending, which includes specific conditions in relation to contact with his daughter.  As the respondent breached such a condition in 2009, it is appropriate that the respondent be subject to such conditions.  I am satisfied that the conditions proposed are clear in their terms and comprehensive.

17. A curfew will be imposed to assist the respondent with stability and structure, in addition to limiting his potential access to high risk situations.  The curfew condition enables the community corrections officer to maintain or reinstate the curfew requirement should any concerning behaviour or patterns identified by the respondent's movements be detected.

18. The respondent will upon release no doubt face challenges and stresses.  As historic charges against the respondent remain unresolved, he is likely to be subject to periods of particularly high stress, which will increase his risk of reoffending.  I am satisfied that the proposed conditions have significant flexibility to allow for increased supervision, controls and restrictions in such periods.

19. I am satisfied that the conditions proposed are such that will enable contravention of any conditions to be promptly detected.  In my view, while extensive, the proposed conditions reflect the minimum requirements that are necessary to manage the respondent in the community in order to adequately protect the community against the risk that he would commit a serious sexual offence.

20. Under the HRSO Act, I cannot make a supervision order unless the respondent has satisfied me on the balance of probabilities that he will substantially comply with the standard conditions of the order.  The State submitted that the respondent cannot establish that he will substantially comply with the sixth standard condition, which is that he is not to commit a serious offence.[143]

    [143] ts 1087 ‑ 1088 (25 February 2022).

21. I accept that the respondent understands the need to comply with the conditions proposed to be imposed on him and directions given to him.  Following the breach of his supervision order conditions in 2009, the respondent has remained the subject of a continuing detention order for 12 years.  He is acutely aware that his liberty is at stake.  While he has continued to express some oppositional views in his attitude towards the DSO Act and HRSO Act (his personality factors a propensity to challenge those in authority), the respondent has indicated his willingness and intention to comply.

22. In all of the circumstances, the respondent has satisfied me on the balance of probabilities that he would substantially comply with the standard conditions specified in the HRSO Act.  Absent the imposition of the additional proposed conditions, I would not be so satisfied.  I accept the evidence of the experts that treatment support with comprehensive restrictions and supervision will be necessary to manage the respondent's response to challenging situations throughout his supervision order.

23. The additional proposed conditions are all required to provide essential supervision, support and boundaries to the respondent.  With the imposition of all proposed conditions, I find that the level and nature of the risk that the respondent will still pose if released on the proposed supervision order would be reasonably acceptable viewed from the perspective of the protection of the community.

Duration of the order

1. Dr Wynn Owen's evidence was that the appropriate duration of the supervision order was 8 years.[144]  Dr Wynn Owen explained that this recommendation was based on accumulated research evidence which clearly showed that risk reduces with time spent offence free in the community and on research published by the authors of the Static-99, which found that individuals with the same score as the respondent on release had a reduction to a future offence likelihood in the 'average' risk range after eight years offence free.[145]

   [144] Exhibit 2, page 463 (Dr Wynn Owen's report).

   [145] Exhibit 2, page 463 (Dr Wynn Owen's report).

2. On the evidence of Dr Wynn Owen, I am satisfied that it will take some considerable time for the risk posed by the respondent to reduce.  In these circumstances I consider the appropriate duration for the order is 8 years.

Conclusion

1. For these reasons, I have decided pursuant to s 68(1)(b)(ii) of the HRSO Act that that the respondent's continuing detention order should be rescinded and that the respondent should be released on a supervision order with the conditions set out in sch A to these reasons.

2. I will hear from the parties as to the date on which the order should take effect.

SCHEDULE A

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

1.Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre 30 Moore Street East Perth within 48 hours of the order being issued and advise the officer of the person's current name and address.

2.Report to and receive visits from, a Community Corrections Officer as directed by the court.

3.Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 days before the change happens.

4.Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32).

5.Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer.

6.Not commit a serious offence during the period of the Order.

7.Be subject to electronic monitoring under section 31.

ADDITIONAL CONDITIONS

Residence

8.Take up residence at [address suppressed] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.

Reporting to a CCO and supervision by a CCO

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

10.Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO.

11.Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of you.

12.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

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

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

Reporting to WA Police

15.Report to the Officer-in-Charge of the Sex Offender Management Squad 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 Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate.

16.Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.

17.If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order.

18.Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020.

19.When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.

Disclosure/Exchange of Information

20.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.

21.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

22.Have no contact, directly or indirectly, with the victims of your current 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.

23.Unless  contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your 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.

24.In relation to contact with [XYZ], adhere to the following directions:

(a)to have only mail and mobile telephone contact with [XYZ], unless given a direction by the CCO to do otherwise;

(b)make no request for face-to-face contact with [XYZ];

(c)if [XYZ]'s children answer the telephone, you must request to speak to [XYZ] without identifying yourself or engaging in conversation with the children;

(d)to have no direct or indirect contact with [name]'s children, regardless of their age, other than in the context of condition 24 (c);

(e)not to approach [XYZ] in public including doing anything to draw attention to yourself.  For example, but not limited to whistle, wave or beeping your car horn.

Criminal conduct

25.Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.

26.Not commit an offence under s 202, s 203, s 204 Criminal Code 1913 (WA), s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021.

27.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.

28.Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse Of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider.

Curfew

29.Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.

30.When subject to a curfew under this order, present yourself for inspection at the front door or verge of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.

31.When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.

Medications/Mental Health

32.Undergo medical treatment, including anti‑depressant medication or anti‑libidinal treatment, as directed by the CCO in consultation with a medical practitioner or medical practitioners.

33.Comply fully with any treatment prescribed pursuant to condition 32 and comply with all testing to monitor your compliant with medical treatment and/or anti‑libidinal treatment as directed by a CCO.

34.Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO.

35.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Justice.

Prevention of high-risk situations

36.Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.

37.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.

38.Provide a valid sample pursuant to condition 37.

39.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.

40.Provide a verbal or written account of your projected daily movements to your CCO and obtain prior approval of your projected movements, as and when directed by your CCO; with the exception of the following circumstances:

(a)to obtain urgent medical or dental treatment for yourself;

(b)for the purpose of averting or minimising a serious risk of death or injury to the respondent or another person;

(c)to obey an order issued under a written law (such as a summons) requiring your presence elsewhere;

(d)at the direction of a CCO or Police Officer.

41.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;

(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).

42.Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.

43.Provide details of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.

44.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.

45.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.

46.As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

47.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.

48.Not be within 50 meters of a school, unless you have a reasonable excuse.

49.Not to remain in any child focussed area (such as the children's section of any Department store) where children congregate, unless you have a reasonable excuse.

50.Whilst in any public place, not be in present possession of any animate or inanimate item capable of constituting an enticement to children, unless such possession is for a legitimate purpose.

51.Not to access online social media unless approved in advance by a CCO.

52.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.

53.Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in Condition 52, without prior approval of the CCO.

54.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, telecommunication and/or electronic device referred to in condition 52, or any online accounts, to any person other that a CCO or Police Officer.

55.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.

56.Not delete or otherwise remover and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AI

Associate to the Honourable Justice Strk

24 MARCH 2022