The State of Western Australia v MAR [No 2]
[2021] WASC 97
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MAR [No 2] [2021] WASC 97
CORAM: TOTTLE J
HEARD: 25 MARCH 2021
DELIVERED : 14 APRIL 2021
FILE NO/S: SO 8 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MAR
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application for restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by supervision of the respondent
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr T W McPhee & Ms F M Allen |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | State Solicitor for Western Australia |
| Respondent | : | T Hager |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
TOTTLE J:
Summary
In 2016 the respondent was convicted of two offences, aggravated grievous bodily harm and indecently dealing with a child under the age of 13 years. The District Court determined that a total effective sentence of four years imprisonment was commensurate with the seriousness of the respondent's offending. The respondent has served the full term of imprisonment - he was not released on parole.
The State has applied for a restriction order under the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) in respect of the respondent. There are two types of restriction order: a continuing detention order, the effect of which is to detain an offender in custody after he has served his sentence; and, a supervision order, the effect of which is to release the offender into the community subject to compliance with strict conditions designed to monitor and control an offender's behaviour. The court must make a restriction order if it determines that the offender is a high risk serious offender within the meaning of the Act.
A restriction order is made to protect the public - its purpose is not to impose additional punishment on an offender.
I have determined that the respondent is a high risk serious offender. The respondent's history of serious offending in the past, the difficulty the respondent has experienced with emotional self-regulation which has led him to rely on cannabis and alcohol when in the community and which has in turn contributed to his offending, his hostile and exploitative attitudes towards women and the significance attached to these and related matters in the psychiatric and psychological evidence, have satisfied me that a restriction order is necessary to ensure the adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
The combination of the unmet treatment needs of the respondent and the absence of suitable accommodation in the community have persuaded me that a continuing detention order is required to ensure adequate protection of the community.
These reasons have been anonymised to protect the identities of the victims of the respondent's offending. For similar reasons I will refer to the remote Aboriginal community in which the respondent has lived much of his life simply as the Community.
English is not the respondent's first language. The respondent's counsel said that the respondent could follow the proceedings in English but would be assisted by the use of an interpreter though there was no requirement that every word be interpreted. Accordingly, throughout the hearing the respondent had the assistance of an interpreter.
The statutory regime
The objects of the Act are twofold:[1]
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.
[1] HRSO Act, s 8.
An offender is a high risk serious offender if the court dealing with an application under the 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 an offender to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[2] In determining whether an offender is a high risk serious offender the court must have regard to the 10 considerations specified in s 7(3) of Act. The sub-headings used in the section of these reasons entitled 'The respondent is a high risk serious offender' correspond with the considerations specified in s 7(3).
[2] HRSO Act, s 7(1) and s 48.
In deciding whether to make a detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[3]
[3] HRSO Act, s 48(2).
Section 5 of the Act defines the term 'serious offence'. For present purposes it is sufficient to record that a number of the offences committed by the respondent in the past (identified later in these reasons) and those he may commit in the future with which this application is concerned, are serious offences for the purposes of the Act.
Division 2 of pt 4 of the Act governs the procedure to be followed when an application for a restriction order is made. As was accepted by the respondent's counsel there has been compliance with the relevant statutory conditions and there is no need to refer to them.
The evidence
The evidence comprised a book of materials containing relevant information on the respondent's prior offending, his conduct in prison, previous reports and decisions and reports prepared for the present application. The reports prepared for this application were the reports of Dr Peter Wynn Owen, a consultant forensic psychiatrist, Ms Julie Hasson, a forensic psychologist, Dr Kathryn Riordan, a forensic and clinical psychologist, and Ms Emma Cashmore a senior Community Corrections Officer with the Community Offender Monitoring Unit. The reports of Dr Wynn Owen and Ms Hasson were prepared pursuant to the provisions of pt 7 of the Act.
The respondent is a high risk serious offender
I will begin by addressing the considerations to which regard must be had - the s 7(3) considerations. It is helpful to begin with the respondent's antecedents and offending history.
Antecedents and offending history - s 7(3)(g)
Personal antecedents
The following account is a synthesis of the most significant aspects of the respondent's personal history derived from the various reports received into evidence. There were a number of inconsistencies between the reports in relation to the dates on which various events occurred. These inconsistencies were not material.
The respondent was born in Derby, Western Australia on 27 July 1981 and is currently 39 years old. He is the only child of his parents' union. He has an older (maternal) half-sister and a number of half siblings from his father's subsequent relationships.
The respondent grew up in remote Aboriginal communities in the far north of Western Australia. The respondent's mother was killed in violent circumstances when the respondent was four years old. The respondent's father was killed some years later when the respondent was still in his childhood. The respondent was raised by his maternal aunt, who was his cultural mother, and her partner, whom the respondent referred to as his stepfather. The respondent's stepfather was also killed in violent circumstances.
Throughout his childhood the respondent experienced multiple incidents of grief and loss associated with the death of his primary care givers. The respondent reported that he struggled to cope with this grief and loss.
External to his family home, the respondent reported he was exposed to violence within the community, as well as substance abuse and criminal behaviour.
The respondent's physical, social and emotional development was also affected by an accident that occurred when the respondent was a child and a tree fell on his back. There is some inconsistency in the evidence regarding the severity of the injury that was sustained. The respondent reports that he was hospitalised for approximately two years following the accident and was required to learn to walk again.
Notwithstanding his disrupted childhood, the respondent has a relatively good education history. He completed high school to approximately a year 11/year 12 level, despite moving schools between the remote community in which he lived as a young child, Derby, Darwin and Esperance.
Following his secondary education the respondent obtained an apprenticeship in motor mechanics but did not finish the apprenticeship due to conflict in the workplace. The respondent has also worked: in a bakery; undertaking general maintenance; and as a ranger. The respondent served in the North West Mobile Force, a division of the Australian Defence Force.
The respondent has an extensive history of chronic alcohol and cannabis use. There are conflicting reports on when the respondent first started consuming alcohol and cannabis, however it is clear from all of the reports that the respondent started consuming both substances as a teenager, and has continued to consume these substances throughout his adult life.
The respondent is diabetic and is also prescribed anti-depressant medication for the management of his mood and insomnia.
There is conflicting information between the reports concerning the respondent's relationship history, as well as his sexual development history. The respondent appears to have had three significant relationships with female partners. The first of these relationships resulted in the birth of the respondent's daughter. The relationship came to an end due to 'trust and jealousy issues'. The second relationship ended for similar reasons. The third relationship was with the victim of the aggravated grievous bodily harm offence for which the respondent was sentenced to imprisonment in 2018. The respondent reported that this relationship was marred by mutual violence from an early stage.
The respondent reports to have a strong connection with culture and country. He also identifies as having a strong connection to the spirit world, and possessing a strong spirit himself, that would allow him to assume a role as a cultural leader within the community at some point in the future.
Offending history
Index Offences
Indecently Dealt with a Child under 13 years - between 01/01/2016 and 31/12/2016
(Serious Offence)
The victim was having a sleepover with the respondent's partner's daughter. The victim was asleep on a mattress next to the respondent's partner's daughter. The respondent approached the victim and started to rub her breasts on the outside of her clothing. The respondent left the room when the victim woke up.
Aggravated Grievous Bodily Harm - 10/01/2017
(Serious Offence)
The respondent and the victim, the respondent's partner, were both intoxicated. An argument escalated into violence when the victim began to strike the respondent with a metal broomstick. At separate points in time both the respondent and the victim had possession of the broomstick and used it to strike the other. The respondent then gained control of the broomstick and struck the victim forcibly over the head with the metal end. This caused a significant wound to the victim's head and resulted in the victim's skull fracturing. The victim fell to the ground and the respondent struck the victim several more times before leaving.
Sexual Offending
Indecent Assault - 25/10/1996
At the age of 15 the respondent touched his five year old nephew on the buttocks. The respondent reported that he had become sexually aroused when playing with this nephew and had removed his own trousers and was in the process of removing his nephew's trousers when he was interrupted.
Indecently Dealt with a Child aged over 13 and under 16 years (two counts) - between 30/09/1997 and 29/09/2000
(Serious Offence)
The victim was the respondent's younger half-sister. The offence involved the respondent entering the victim's house while she slept, waking the victim by rubbing her breast on the outside of her clothes and then rubbing her vagina for approximately 5 minutes.
Indecent Assault - 27/10/1999
The respondent unlawfully entered the victim's house and found the victim asleep in bed. The respondent lay down next to the victim and touched her shoulder, upper chests and breasts.
Sexual Penetration without Consent - 23/03/2000
(Serious Offence)
The victim was a 28 year old woman, asleep in a bedroom. The respondent saw that the woman was unconscious as a result of intoxication, he removed her clothing and then penetrated her vagina with his penis.
Attempted Sexual Penetration of Child under 13 years (two counts) and Sexual Penetration of a Child under 13 years (two counts) - between 25/03/2002 and 10/12/2002
(Serious Offences)
The two instances of attempted sexual penetration of a child under 13 years occurred within a short space of time. The respondent entered a room where the victim was lying on a mattress, the respondent tried to penetrate her vagina with his penis but the victim used her hands to prevent him. The respondent ejaculated externally and then tried again to penetrate the victim's vagina with his penis but was again unsuccessful.
The first instance of sexual penetration of a child under 13 years occurred when the respondent invited the victim and her brother to his house to smoke cannabis, the respondent then prevented them from leaving, however the victim's brother managed to get away. The respondent then forced the victim to remove her clothes, lay her on a mattress and penetrated her vagina with his penis.
The second instance of sexual penetration of a child under 13 years occurred when the victim asked the respondent for a cigarette. The respondent invited the victim into his house to get it and then prevented her from leaving. The respondent then forced the victim onto a mattress, removed her clothes and penetrated her vagina with his penis.
Indecent Assault - 27/08/2007
The respondent entered the house of the victim, his half-sister, while she was sleeping. The respondent got into the bed where the victim was sleeping and rubbed his groin against her buttocks.
Non-sexual offending
Deprivation of Liberty (Serious Offence) and Assault Occasioning Bodily Harm (two counts) - 18/03/2000
The respondent punched the victim, a 13 year old girl, in the jaw with a clenched fist, causing the victim to fall to the ground. The respondent maintained the assault occurred in response to statements directed by the victim to the respondent (the victim and the respondent were known to each other). The victim ran to a nearby house to hide. The respondent chased after the victim, grabbing her and pulling her backwards causing her to fall to the ground again. The respondent then punched the victim twice in the stomach. The respondent then took hold of the victim, so as to not let her get away, and forced her towards his house against her will. The victim was freed when a third party intervened. In a subsequent interview the respondent said that he had been in a sexual relationship with the victim.
Other non-sexual offending
The respondent has an extensive non-sexual criminal history, with convictions for burglary, aggravated burglary, stealing, possession of drug paraphernalia, creating a disturbance, common assault, disorderly behaviour, property damage, driving without a licence, failure to comply with reporting obligations, breach of bail, breach of protective bail, breach of suspended sentence and escape lawful custody.
Reports prepared as required by s 74 of the HRSO Act - s 7(3)(a)
Reports of Dr Wynn Owen and Ms Hasson
Dr Wynn Owen interviewed and assessed the respondent on two occasions on 26 February 2021 and 1 March 2021, Ms Hasson interviewed and assessed the respondent on 25 February 2021. In the course of their oral evidence both Dr Wynn Owen and Ms Hasson said that the respondent had presented as open and honest with them in relation to his offending.[4]
[4] ts 49, 66.
The respondent was assisted by an interpreter throughout the interview process with both Dr Wynn Owen and Ms Hasson. Ms Hasson identified that the use of an interpreter made establishing rapport with the respondent difficult.
Ms Hasson observed the respondent to be polite, quiet and passive. Both Dr Wynn Owen and Ms Hasson observed that the respondent made minimal eye contact, which was culturally to be expected. Ms Hasson identified that the respondent sat with his head bowed except for when engaging in conversation during short breaks. Both Dr Wynn Owen and Ms Hasson expressed the view that they did not consider that the respondent had any significant difficulties with his memory, attention and concentration, or a formal thought disorder.
Psychiatric Diagnosis
Dr Wynn Owen diagnosed the respondent with Substance Use Disorder and Antisocial Personality Disorder. In the context of the respondent's history of offending against children, Dr Wynn Owen expressed the view that there was currently insufficient evidence to make a definitive diagnosis of paedophilia but considered that should remain under consideration should additional information come to hand.
Risk of sexual reoffending
Dr Wynn Owen and Ms Hasson both assessed the respondent's risk of sexual reoffending using a Structured Professional Judgment (SPJ) approach combining actuarial measures and a forensic psychological assessment and formulation. The instruments used in Dr Wynn Owen's assessment were the Static-99R, Risk for Sexual Violence Protocol ('RSVP') and the PCL-R (a tool used to assess psychopathy). The instruments used in Ms Hasson's assessment were the Static-99R, RSVP, Historical Clinical Risk Management 20, Version 3 (HCR-20 v3) and the PCL-R. Both Dr Wynn Owen and Ms Hasson identified that these instruments should be used with caution, as they were all developed with a mainly Caucasian population and so there are limitations given the absence of well normed comparisons for use with Aboriginal and Torres Strait Islander peoples.
In Ms Hasson's report the respondent's Static-99R score was 9, placing him at risk level IVb (Well Above Average Risk) for being charged or convicted of another sexual offence. The sexual recidivism rate at the five-year mark for a score of 9 is 43.8% with a confidence interval between 37.8% and 50.1%. In comparison, with a sample group that was identified as high risk and high need, the sexual recidivism rate at the five-year mark was 42.2% with a confidence interval of 32.6% and 52.5%. Similarly, Dr Wynn Owen placed the respondent at a risk level IVb (Well Above Average Risk), however Dr Wynn Owen identified the respondent as having an average five year sexual recidivism rate of 53.0% with a range of 45.6% and 60.3%.
Dr Wynn Owen and Ms Hasson also both employed the RSVP framework to determine the presence of the respondent's risk factors and formulate the most likely risk scenarios and recommended strategies. The RSVP framework involves looking at 22 individual risk factors over five domains, the domains being: sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Dr Wynn Owen's and Ms Hasson's findings using this tool were not materially different and they are summarised in the table below - I have noted minor diverges of views.
Both reports identified the following risk factors:
Sexual Violence History
Chronicity of sexual violence
Offending spans two decades, involving multiple victims.
Diversity of sexual violence
Choice of victim and behaviours engaged in are diverse.
Escalation of sexual violence
Escalated to involve penetration and physical harm (Ms Hasson).
Physical coercion in sexual violence
Engaged in significant violence towards some victims, and was reckless and indifferent to the potential to cause harm, or fear of harm (Ms Hasson).
Psychological coercion in sexual violence
Many victims were family members, in their own homes, sleeping and with others present. Other victims were given cigarettes and cannabis.
Psychological Adjustment
Extreme minimisation or denial of sexual violence
In respect of the index offence and the first ever sexual offence (Ms Hasson).
By relying on the role of intoxication, an inability to control sexual urges and describing the behaviour as the community norm (Dr Wynn Owen).
Attitudes that support or condone sexual violence
Evidenced by victim blaming (Ms Hasson).
Evidenced by established patterns of behaviour (Dr Wynn Owen).
Problems with self-awareness
Limited level of self-awareness regarding the nature, motivations and consequences of his behaviour. Continues to place himself in high risk situations.
Problems with stress/coping
Finding it difficult to cope with grief, loss and conflict in relationships.
Problems resulting from child abuse
Exposed to extended family violence, criminality, alcohol and substance abuse in early childhood and adolescence. Identified only by Ms Hasson.
Mental Disorder
Sexual deviance
Evidenced by the respondent's behaviour (Ms Hasson).
Problems with substance use
Commenced using as a teenager and use has been closely connected with past offending.
Violent or suicidal ideation
Long history of self-harm ideation, and has caused physical injury and harm to victims (Ms Hasson).
Social Adjustment
Problems with intimate relationships
Problems including jealously and trust issues and intimate partner violence.
Problems with non-intimate relationships
Socialising with anti-social individuals in the community (Ms Hasson).
Relative social isolation (Dr Wynn Owen).
Problems with employment
Partially present with some difficulty establishing and maintaining employment in the community. Identified only by Ms Hasson.
Non-sexual criminal activity
A history of violent and generalist offending commencing in adolescence.
Manageability
Problems with planning
Difficulty making and implementing prosocial life plans.
Problems with treatment
Failed to benefit from rehabilitative services, continued to offend in a same or similar manner and has been unable to maintain abstinence from illicit substances.
Problems with supervision
A history of non-compliance in the community.
Having regard to the results of the RSVP and the STATIC-99R assessments both Dr Wynn Owen and Ms Hasson considered that the respondent presented a high risk of committing a serious offence in the future.
In the course of cross-examination both Dr Wynn Owen and Ms Hasson confirmed that the risk assessments undertaken by them assessed the risk of reoffending without the structure and constraints imposed by a supervision order being in place.[5]
[5] ts 43, 67.
The respondent's score on the PCL-R indicated that he did not fit the construct of psychopathy. There was evidence of antisocial personality traits and, as noted earlier, Dr Wynn Owen diagnosed the respondent with Antisocial Personality Disorder. The significance of the respondent not fitting the construct of psychopathy is that it improved the possibility of treatment gains being achieved in the future - psychopathy being a factor that limited the benefits of therapeutic intervention.[6]
[6] ts 38, 58.
Dr Wynn Owen and Ms Hasson both separately identified three risk scenarios in which the respondent would potentially repeat behaviour similar to the index offence, escalate his behaviour or escalate and change his behaviour. The three scenarios identified in each report were not materially different, except for the final scenario (escalation and a change), with Ms Hasson identifying further violence and the potential introduction of a weapon and Dr Wynn Owen identifying a potential sexual assault on a male. Ms Hasson considered that all three scenarios were likely to cause significant psychological harm to the victim, with the latter two scenarios resulting in the victim being physically harmed. The imminence of the offending was considered by Ms Hasson as being dependent upon the presence or absence of acute dynamic risk factors. Dr Wynn Owen considered that it could only be a matter of months before the respondent reoffends subsequent to his release, based on prior behaviour. Ms Hasson identified that the frequency/duration of the respondent's potential offending would be dependent upon how quickly the abuse is reported to police, and that all three scenarios were likely to occur in the future.
Risk of violent reoffending
As noted earlier, Ms Hasson also considered the respondent's risk of violent reoffending using HCR-20v3 assessment tool. There is a degree of overlap in the substance of the risk factors considered for the purposes of the HCR-20v3 and the STATIC-99R and RSVP assessments. While accepting that the risk factors are different and that the assessments are directed to different types of offending, the result of the HCR-20v3 assessment is broadly consistent with the results of the STATIC-99R and RSVP assessment, that is, that the respondent was assessed as being at a high level of violent reoffending. Ms Hasson described the respondent's violent offending as chronic and linked to his alcohol and substance abuse. For present purposes it is unnecessary to review the supporting detail.
Dr Wynn Owen considered the likelihood of non-sexual violent recidivism in the context of the respondent's offence of grievous bodily harm. Dr Wynn Owen used the Static-99R tool, identifying that it has some accuracy in estimating the likelihood of violent recidivism, and that the likelihood of violent offending would be greater than the estimate for sexual offending. As such, Dr Wynn Owen determined that the likelihood that the respondent would commit a new violent offence within five years of release would be greater than the 53% estimated for sexual offending. The context within which the grievous bodily harm offence occurred also suggests that there is an elevated risk of serious violent offending by the respondent when he is in an intimate relationship.
Concluding analysis
In Dr Wynn Owen's concluding analysis of the respondent's offending he expressed these views:
Formulation
[The respondent] is a 39 year old indigenous Australian man. His childhood was marked by loss of both parents to violent deaths eventually being raised by his mother’s sister. He reports that he was always a loner and was teased and bullied, this may have been to do with the stigma reportedly associated with his parents union being deemed inappropriate by the community in which they lived. He responded to this through further isolation and fighting. Adult role models drank alcohol and were violent, towards each other and between families, [the respondent] was also reportedly a victim of physical abuse. [The respondent] attended school to at least year 11, is literate and can speak at least 4 indigenous languages, plus Kriol and English.
[The respondent] does not suffer from any mental illness, his criminal and interpersonal behaviour is in keeping with an Antisocial Personality Disorder.
[The respondent] has committed multiple sexual offences since age 15 years and although he has participated in group interventions to address offending and appears to know what many of his risk are he has continued to offend until index offending notwithstanding very serious consequences including spending much of his adult life to date in prison.
Opinion
On the basis of clinical assessment and application of the risk assessment tools RSVP and Static-99R (2016) it is my opinion that [the respondent] presents a high risk of committing a serious offence in the future.
If subject to a restriction order or some form of post-sentence supervision this risk will be reduced, completely if in detention and partially if subject to community supervision, the degree of mitigation in these circumstances will depend on the level of constraint imposed and the timeliness of community response to high risk situations.
[The respondent] has significant unmet treatment needs; in particular in the areas of sexual offending, emotional self-management, interpersonal function and substance abuse.
Recommendations
I respectfully recommend the following:
(i)Psychological intervention to address outstanding treatment needs in the areas of sex offending, violent offending and substance abuse. This could be delivered by an individual therapist or in a combination of 1:1 therapy and group therapy.
(ii)If released to community supervision the supervision conditions should reflect specific high risk scenarios situations such as substance use, association with criminal peers and the stressors of any intimate relationship. I have reviewed the draft Supervision Order conditions and discussed them with the supervision SCCO, I am of the opinion that the conditions are appropriate to his pattern of offending and will reduce [the respondent’s] risk of future serious offending.
In Ms Hasson's concluding analysis of the respondent's offending she expressed these views:
[The respondent's] offending behaviour is often precipitated by alcohol and substance abuse. Negative mood states, feelings of jealousy and mistrust, inadequate communication and conflict resolution skills and cognitions supportive of violence (for problem solving and conflict resolution) are factors in his intimate partner violence. [The respondent's] sexual offences appear to be motivated by sexual arousal, inability to delay sexual gratification, sexual preoccupation, blockage of sexual outlet, rejection, beliefs about sexual entitlement and objectification of women. His relationships with women have often been superficial and short, suggestive of difficulties with attachment and intimacy. [The respondent] has often been involved in more than one relationship at a time. Sex is likely to have been used as a maladaptive coping mechanism to attenuate dysphoric emotions. The presence of antisocial personality traits contributes to his offending behaviour.
Research suggests that most sexual offences are committed by someone known to the complainant and often occur in a familiar residential location. They are often committed by family members and within intimate relationships. [The respondent's] offences have all been committed within the location he is living at the time. He has not taken steps to conceal his identity. Victim availability such as children and adolescents and those who are intoxicated or asleep, have, in the past been easy targets for [the respondent]. The adoption of a victim stance and other cognitive distortions that serve to minimise, justify, rationalise, excuse and nullify his actions are likely to be factors that have maintained [the respondent's] offending behaviour over time. These are key issues that require intervention to reduce his risk of reoffending in the future. Substance use is also an area of outstanding treatment need.
Summary and Recommendations
Based on the current assessment [the respondent] presents as a high risk of serious reoffending, if not subject to a Restriction Order - Continuing Detention or a Community Supervision Order under the High Risk Serious Offender Act 2020.
A number of factors have contributed to [the respondent's] offending the most relevant of which include substance abuse and difficulties with emotional and behavioural regulation especially the expression and/or inhibition of angry, aggressive or sexual impulses. Jealousy and trust issues, intimacy and attachment difficulties, sexual entitlement and attitudes supportive of violence and sexual assault as well as a degree of sexual entitlement are relevant features of his offending behaviour.
During his current term of imprisonment [the respondent] completed the Stopping Family Violence program to address the offences committed against his now former partner. [The respondent] was said to have gained some insight into his use of aggression however he had not been able to demonstrate assertive communication skills which are seen as important in resolving or de-escalating conflict before it can lead to violence. Outstanding treatment needs remain around impulsivity and effective decision making. Overall [the respondent's] treatment gains were described as rudimentary.
During previous participation in sex offender treatment programs and interventions targeting substance abuse [the respondent] had developed a relatively detailed relapse prevention plan and yet later reoffended. It is difficult to ascertain if [the respondent] has failed to maintain treatment gains or chosen to disregard relapse prevention strategies. Regardless of the reason, what is clear is that insight and understanding of internal and external risk triggers or cues to reoffending sexually or violently without corresponding behavioural change is not sufficient to moderate or mitigate risk his risk. [The respondent] recognises some problem areas, especially those related to alcohol and illicit substance abuse and wanting to have sex, but he does not yet have the skills to manage these risks consistently and therefore lapses will occur with a high likelihood of him engaging in non-consensual sexual activity. Behavioural change requires further therapeutic input. [The respondent] indicated he was willing to engage in further counselling and programs.
Discussion with Dr Riordan reveals that [the respondent] has the support of family and various community members and professionals in Kalumburu. He would be welcome to return to live in the community should he be released from prison. A structured and meaningful day will be an important risk management tool to limit boredom and opportunity to engage in risky behaviours and to reduce the opportunity to consume alcohol or use cannabis. Employment and engagement in structured leisure activities are recommended for [the respondent] to achieve meaning and purpose in his life.
Substance abuse is one of [the respondent's] most significant risk factors. Urinalysis for drug testing is recommended as is attendance at specialised substance abuse counselling.
Should [the respondent] be determined to be a High Risk Serious Offender and be subject to a Continuing Detention Order, it is recommended
i.[The respondent] commence counselling with a psychologist from Forensic Psychological Services/Specialist Psychological Services to address the numerous outstanding treatment needs described above.
ii.[The respondent] has the opportunity to return to country to re-establish links with family and community members prior to his release.
Should the respondent be determined to be a High Risk Serious Offender and be subject to a Supervision Order, it is recommended that:
i.[The respondent] be subject to a Supervision Order of at least five years.
ii.Specialised counselling should focus on encouraging [the respondent] to remain abstinent from alcohol and substance abuse and that overtime he takes responsibility for this so that external control and management becomes less necessary.
iii.Further specialised counselling must also assist [the respondent] to understand the risk factors for sexual offending and to challenge his cognitions and attitudes about women, sex and violence. A comprehensive risk and self-management plan is essential to reduce his risk of reoffending. [The respondent's] outstanding treatment needs can be addressed through engagement in individual psychological counselling preferably with a psychologist from Forensic Psychological Services/Specialist Psychological Services or Adult Community Psychological Services (ACPS).
iv.The focus of his engagement on an order should be to develop a positive relationship with those providing intervention and monitoring to enhance the likelihood of compliance with conditions. This would include for him to establish as supportive relationship with a trusted elder in his local community to serve as a mentor and guide.
v.It is important that [the respondent] develop a fulfilling lifestyle with healthy intimate and non-intimate relationships. Focus should be on seeking meaningful employment or volunteer work, identifying, and engaging in appropriate hobbies, interests, and leisure pursuits, establishing prosocial friendships and supports, maintaining stable accommodation.
vi.Community Based agencies in the region will be useful for helping [the respondent] cope with stresses that he is likely to encounter day to day and with reintegration back into the community.
Any other medical, psychiatric, psychological or other assessment relating to the person - s 7(3)(b)
Proposed HRSO Management Plan of Dr Riordan
Dr Kathryn Riordan, a forensic and clinical psychologist from Forensic Psychological Services, prepared a proposed High Risk Serious Offender Management Plan to assist with the identification of relevant supervision, management and intervention strategies should the respondent be made subject to a restriction order.
Utilising the STABLE-2007 assessment tool to identify outstanding treatment targets, Dr Riordan identified the respondent's most salient dynamic risk factors as being: capacity for relationship stability; deviant sexual preference; social influences; hostility towards women; poor problem solving; and co-operation with supervision.[7]
[7] Book of Materials, 638 - 639.
Utilising the Violence Risk Scale (VRS) to identify the respondent's level of violence risk and treatment targets linked to violence, and to evaluate the respondent's readiness to change, Dr Riordan identified the respondent's static risk factors as being: his current age; his young age at first conviction for a violent offence; use of violence across the lifespan and the instability of the family system within which the respondent's early growth and development occurred.[8]
[8] Book of Materials, 640.
Dr Riordan identified the respondent's dynamic risk factors under the VRS to be: substance use; violent lifestyle and criminal peers; interpersonal aggression and lack of stable relationships; emotional control; weapon use; violence cycle and cognitive distortions; community support and released to high risk situations; and compliance with supervision.[9]
[9] Book of Materials, 640 - 642.
Under the heading of Intervention and Risk Management Options, Dr Riordan concluded that the respondent continues to present with a range of dynamic risk factors and treatment needs, including: alcohol and other drug use, skills in self-regulation, instability in interpersonal relationships and hostile attitudes towards women, resulting in involvement in intimate partner violence; impulsivity and the presence of a latent deviant sexual interest that appears to be activated by drug and alcohol intoxication.[10]
[10] Book of Materials, 642.
Dr Riordan was of the opinion that if a continuing detention order were made, then the respondent should participate in relevant and recommended treatment programs such as the Pathways and Sex Offending Intensive Treatment Programs.
Dr Riordan noted that in the event the respondent was released into the community on a supervision order the intervention, supervision and management strategies that will be available will depend on his location. Dr Riordan identified that a connection to culture and country could be a positive influential factor in the context of community re‑integration and noted that if the respondent could be managed in the remote community in the Kimberley with which he had cultural roots there was the potential for him to assume a cultural role as an elder/leader in the community. Dr Riordan identified this as potentially assisting with the establishment of a pro-social identity and with community re-integration, however it is also possible that if the respondent were to hold such a position within the community this could exacerbate his risk for future violence and sexual violence within his community.[11] For a variety of reasons, discussed later, it is not possible to make a supervision order which would allow the respondent to resume his life in the Community with which he has cultural ties.
[11] Book of Materials, 643.
Broome was identified as a culturally safe option, which would allow for greater access to family based support, community based psychosocial support and intervention services. As discussed below there is, however, no accommodation presently available in Broome. Further, while residence in Broome may provide the respondent with stronger links to his community, previous placements in and around larger townships such as Broome have exposed the respondent to high risk situations involving drug and alcohol misuse and subsequent reoffending.[12] In short, the possibility of making of a supervision should accommodation become available in Broome (or the respondent relocating to Broome whilst subject to a supervision order) would require a very careful balancing of the competing considerations.
[12] Book of Materials, 644.
Dr Riordan noted that a placement in the Perth metropolitan area was not ideal, as the respondent would be displaced from country, community and culture, which could have the potential effect of inducing cultural stress and depleting his psychological capacity to cope. If such a placement was to occur the respondent would require formal support services and culturally appropriate mentoring, something which Dr Riordan accepted would be difficult to access in the Perth metropolitan area. It would also be important for the respondent's mood, mental state and cultural stress to be closely monitored.[13]
[13] Book of Materials, 644.
Irrespective of the geographical location of the respondent's placement, if released on a supervision order, it would be crucial for the respondent to have access to treatment and management that involved a combined psychological, cultural and external constraint approach to limit exposure and access to alcohol and other drugs. The efficacy of such intervention would be reliant upon factors such as: the respondent's compliance with externally imposed constraints, his motivation to desist from alcohol and other drug use and his willingness to seek assistance from support services should he feel at risk of relapsing. Such intervention would be accessible in Perth or, in the event the respondent was placed in the Community or in Broome, through the Kimberley Drug Intervention team.[14]
[14] Book of Materials, 644.
Dr Riordan also identified that the respondent would require psychosocial support to establish regular medical care, secure employment, encourage involvement in structured recreational pursuits and to establish a network of prosocial peers. It would also be important for the respondent's Community Corrections supervising officer to be cognisant of his language and cultural responsivity factors, and provide the respondent with access to cultural consultancy and/or interpreting services should they be required.[15]
[15] Book of Materials, 644.
Dr Riordan identified that irrespective of whether the respondent is subject to a continuing detention or community supervision restriction order, it is important that the respondent engage in individual intervention with Forensic Psychological Services. This could occur in person or by electronic means and should be cognisant of the respondent's cultural responsivity factors and involve a cultural consultant if possible.[16]
Community Supervision Assessment Report
[16] Book of Materials, 643.
Ms Cashmore provided a Community Supervision Assessment dated 11 March 2021 which provided a helpful summary of the respondent's history and the issues to be addressed in the event that the court should make a supervision order.
Ms Cashmore identified three potential places of residence for the respondent if he were to be released on a supervision order. These were: that the respondent could return to the Community to live with his aunt; he could reside with his 'young grandmother' in Broome; or accommodation in the Perth metropolitan region could be available under the auspices of Uniting WA's Supported Accommodation Program, which could also provide support in the community.
Ms Cashmore identified the following obstacles to the respondent returning to the Community to live:
(1)supervision would occur predominantly by telephone;
(2)in person contact generally would occur no more frequently than every four to six weeks compared to face to face contact of up to 20 hours per week if supported by Uniting Way in the Perth metropolitan area;
(3)attendance at the Community is usually via light aircraft, as travel by road takes between 16 and 23 hours, and road travel is difficult or impossible in the wet season;
(4)there are no forensic urinalysis testing facilities in the Community;
(5)Kununurra Adult Community Corrections are not resourced sufficiently to adequately manage a person subject to a supervision order under the Act;
(6)The police facility within the Community is only open 8.00 am to 4.00 pm on weekdays, with two assigned police officers, covering a large area, which means that sometimes the police are required to travel away from the Community;
(7)Two victims of the respondent's sexual offending reside in the Community, with one victim living approximately 40 metres from the respondent's proposed address;
(8)The victim of the aggravated grievous bodily harm offence has been known to frequent the Community, at which point it would not be possible to adequately manage the lifetime family violence restraining order taken out against the respondent;
(9)The respondent's proposed address has been described as 'dysfunctional', with children and convicted child sex offenders known to frequent the property; and
(10)GPS monitoring is not possible in the Community as the area does not support a GPS signal.
The respondent proposed living with his 'young grandmother' in Broome, however, Ms Cashmore identified that this was not an option because the respondent's grandmother is caring for her one month old granddaughter and so is not in a position to provide accommodation. Ms Cashmore has assisted the respondent in putting in an application for community housing in Broome but no housing is presently available.
There is currently a difficulty with providing the respondent with accommodation through the Uniting WA Supported Accommodation Program, as out of the six properties in the Perth metropolitan area provided to this program, three are currently occupied by high risk serious offenders on community supervision orders, with the first property becoming available in approximately September 2021. The other three properties have been allocated to other HRSO matters where the individuals are ahead of the respondent on the Supported Accommodation Program waitlist. The respondent is now sixth on the waitlist.
As a consequence there is currently no available housing for the respondent within the Perth metropolitan region.
The considerable advantage of the Uniting WA program is that in addition to the provision of accommodation support Uniting WA provides reintegration support for two years post release. This involves practical support associated with transport, informal guidance with decision making processes, life skills training, referrals to long term community supports and linking into appropriate recreational activities.
Ms Cashmore has explored other accommodation options on behalf of the respondent. It is unnecessary to detail the work undertaken by Ms Cashmore, it is sufficient to say that there are no other accommodation options.
At the end of her report Ms Cashmore set out 59 conditions she recommended be included in a supervision order, if the court decided a supervision order should be made.
Propensity to commit serious offences in the future - s 7(3)(c)
In this context propensity means that the offender has an inclination or tendency, or a disposition to commit serious offences either generally, in a particular way, or upon a particular type of victim.[17]
[17] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178].
That the respondent has a propensity to commit serious offences of a sexual or violent nature, against women and female children is evident from his offending history.
Whether there is a pattern of offending behaviour - s 7(3)(d)
There is a pattern of offending behaviour. The respondent offending is linked to his abuse of cannabis or alcohol.[18] He offends when he is intoxicated and disinhibited. His victims are vulnerable females. The vulnerability of the victims is a consequence of their young age, their lack of consciousness (whether because the victim is asleep when the offending begins or because the victim is intoxicated), or the victim's desire for cigarettes, alcohol or drugs.
Efforts to address offending behaviour - s 7(3)(e)
[18] ts 48.
The respondent's participation in courses to address the causes of his offending behaviour were summarised in the Community Supervision Assessment Report prepared by Ms Cashmore. It is convenient to reproduce the summary of the outcomes of programmatic interventions prior to the respondent's latest custodial sentence.
Sex Offender Treatment Program
[The respondent] commenced participation in the Sex Offender Treatment Program at Greenough Regional Prison on 27 September 2000. A Program Completion Report dated 6 February 2001, noted that [the respondent]'s ' . commitment to the programme can be described as minimal ... at no stage, throughout the entire 13 weeks, demonstrated interest in or offered support to other group participants. He often went to sleep in group sessions and had to be encouraged to be more honest.' According to the Program Completion Report, [the respondent] failed to demonstrate victim empathy and continued to apportion blame to his over-use of alcohol. Furthermore, 'he continues to minimise his offending behaviour and views himself as a victim'.
Indigenous Men Managing Anger and Substance Abuse (IMMASU)
[The respondent] commenced an IMMASU programme at Roebourne Regional Prison on 7 January 2002. He attended three days of programme; however, he was unable to complete the remaining programme sessions due to attending his grandmother's funeral at [the Community].
Cognitive Brief Intervention Report
Between 13 October 2008 and 7 November 2008, [the respondent] participated in the Cognitive Brief Intervention Program. The Program Completion Report dated 11 November 2008, indicates that [the respondent] was an attentive participant during all program sessions and ' ... demonstrated a good understanding of the course content'.
Sex Offender Treatment Program
[The respondent] commenced participation in the Sex Offender Treatment Program at Sunbury Regional Prison on 31 August 2009 and completed all required program sessions. According to the Program Completion Report dated 11 May 2010, [the respondent] ' ... was observed to gain a greater understanding of the factors underlying his offending, and demonstrated a greater acceptance of responsibility for his behaviour'. It was noted that he ' ... was observed to engage in the treatment process better than on his previous group' and appeared to display motivation to complete the program.
The Stopping Family Violence Program (SFVP) is a 29 session program that aims to help group members develop more respectful relationships with partners, children, and other family members - it encourages participants to understand and take responsibility for abusive behaviour. The respondent participated in the SFVP run in Acacia Prison between November 2019 and February 2020. The summary and recommendations of the program completion report were as follows:
Summary and Recommendations
[The respondent] is a thirty-eight-year-old Aboriginal male who completed the Stopping Family Violence Program at Acacia Prison on 4th February 2020. He is currently serving an effective sentence of four years for Unlawfully did Grievous Bodily Harm with a Circumstances of Aggravation and Indecent Dealing with a Child Under 13 Years.
[The respondent] attended 29.5 of 30.5 sessions of the Stopping Family Violence Program. [The respondent] was a quiet participant who rarely contributed to discussions without prompting. He was observed to engage in small group activities and complete individual tasks, though often required additional assistance with comprehending the concepts or scope of the activity. He presented as lacking confidence in his abilities and appeared nervous to speak in front of others. [The respondent] had difficulties in separating his thoughts, emotions and behaviours which appeared to impact his ability to explore his use of violence and gain insight into behaviours. [The respondent] demonstrated minimal shifts in his insight and skill implementation throughout the program. He consistently reflected to facilitators that he felt he was learning and applying concepts to his experience, however he was unable to explore this in any detail.
[The respondent]'s treatment needs were identified through the treatment assessment report, pre-program interview and program participation. They were assessed as being: Violent lifestyle and violence supportive beliefs, emotion regulation, impulsivity and interpersonal aggression.
Although [the respondent] appeared to gain an emerging awareness of abusive practices, he was observed to continue to externalise blame for his behaviours to the victim as well as alcohol consumption. He demonstrated limited emotional recognition and did not appear to develop adaptive internal coping strategies for emotional regulation. [the respondent] showed some insight into his use of aggression in order to meet his needs, however was unable to demonstrate the use of assertive communication in the group environment. As a result of the above limitations to his insight he showed minimal awareness into his impulsivity and once again placed blame on his lack of effective decision-making skills onto his alcohol use. [The respondent] made rudimentary gains towards his treatment need areas and therefore continues to present risk of engaging in re-offending behaviours. He would benefit from opportunities to further address his treatments needs.
At the time of writing this report [the respondent] was booked to participate in the Pathways Program and the Sex Offending Intensive Program remained unavailable. As his risk management plan does not appear to suitably mitigate his risk of re-offending, he would benefit from participation in all of his recommended treatment programs to further address outstanding risk.
Whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(f)
The fact that the respondent reoffended after the programmatic interventions in 2000, 2002, 2008 and 2009 - 2010 suggests that the programs had little positive effect on the respondent. Such a stark statement risks doing the respondent an injustice because it is important to note that the programs the respondent has taken are group programs. Both Dr Wynn Owen and Ms Hasson emphasised the importance of the respondent receiving individual therapy, a point echoed in Dr Riordan's evidence.[19] In response to a question about how much treatment the respondent might require before positive gains might be seen, Dr Wynn Owen gave a more positive view of the respondent's gains from the programs he had undertaken. Dr Wynn Owen said:[20]
It's a bit of a how long is a piece of string discussion because it very much depends on the relationship between the therapist and - and [the respondent] himself and developing a relationship of trust which can take some months. But then once that’s achieved and - and goals are set, [the respondent] doesn't appear to have any problem with learning or intellect such that he is not able to take on these concepts. He has demonstrated that he can take on a number of other concepts through the interventions that he has in the past. So I would imagine a period of therapy of - of a number of years would be required to really establish those patterns of understanding, and then to work through actually modifying behaviour, because the crucial thing is not understanding at an intellectual level what those risks are and what those problems are. It's then changing your behaviour in the face of that. The difficulty there is it's much, much more difficult to change a long-established pattern of behaviour. And so constant reinforcement and repetition will be a very important part of that - that learning and then the establishment of the behavioural change.
[19] ts 74.
[20] ts 37.
Dr Riordan gave evidence which was broadly to the same effect, that is, there were signs that the respondent was in a state of change. The passage of evidence was as follows:[21]
And you state that you consider that [the respondent] to be the contemplative stage of change. What do you mean by that?---The VRS allows for the assessor to make a - a judgment or gauge with how the respondent is, or - with respect to stage of change or readiness to change. Stage of change relates to the transtheoretical model of change, and it looks at various stages with respect to whether the person that you're assessing is open and receptive to change, whether they have already started the process of actually enacting change strategies, and how integrated that is with respect to their daily life. So when I'm talking about a contemplative stage of change, this would be considered the second step I - for want of a better description. That would suggest that [the respondent] is considering change. He has identified - he has some insight that substance use is a difficulty for him; however, he hasn't yet made some active steps towards developing and enacting strategies within the community setting. Certainly in the prison setting there has been no evidence of substance use; however, that's a very tightly constrained and controlled environment. Of course he has had access to substance use in the prison setting; however - and he hasn't used, which indicates that he's contemplative.
[21] ts 72.
In her evidence Ms Hasson stated treatment was a definitely a viable option.[22]
[22] ts 58.
Further, it is important to note that the respondent presented to Dr Wynn Owen and Ms Hasson as someone who was quite willing to engage with a psychologist and quite willing to engage in programs.[23]
The risk that a serious offence will be committed if a continuing detention or supervision order is not made - s 7(3)(h)
[23] ts 50, 64.
Conformably with the opinions expressed by Dr Wynn Owen and Ms Hasson, I conclude there is a high degree of risk that the respondent will commit a serious offence if a restriction order is not made.
The need to protect members of the community from that risk - s 7(3)(i)
The need to protect members of the community from the risk that the respondent will commit a serious offence if not the subject of a restriction order requires little in the way of exposition. The risk of serious reoffending by the respondent carries with it the risk of very serious harm being suffered by the victims of such reoffending and the community needs to be protected from the risk of that harm.
Any other relevant matter - s 7(3)(j)
Under this heading it is convenient to refer to a number of aspects of the evidence concerning the closely related issues of the respondent's treatment needs, the extent to which they are unmet and the risk of reoffending that is created by those unmet needs. In the following paragraphs I will summarise the critical points.
The starting point is the difficulty the respondent has with emotional control (emotional self-regulation).[24] The respondent has difficulty in recognising his emotions and developing strategies for dealing with them.[25] The respondent has relied on cannabis and alcohol as a maladaptive method of coping with his emotions.
[24] See comments of Dr Riordan at ts 73.
[25] ts 33, 36
Therapeutic intervention in the form of one-on-one psychological counselling is required to assist the respondent with emotional self‑management. Such therapy will be required over a period of years.
Without this form of therapeutic intervention if the respondent is permitted to live in the community subject to a supervision order it is the framework of supervision and monitoring (the external controls) that will provide the method of managing the risk of reoffending rather than the respondent's ability to regulate his own emotions. It is thus critical for there to be therapeutic intervention to assist the respondent in the management of his own emotions.
Dr Riordan confirmed in her oral evidence that her own report and the reports of Dr Wynn Owen and Ms Hasson constitute sufficient assessment of the respondent's need for one-on-one psychological counselling that a referral for that counselling can be generated quickly and without the need for any further assessment.[26]
[26] ts 87.
In Ms Hasson's and Dr Riordan's reports and in the oral evidence there was some discussion that for cultural reasons the counsellor be an Aboriginal male. No doubt that would be preferable but Dr Riordan's evidence was to the effect that there were no Aboriginal psychologists on staff and the delay in beginning counselling with a male psychologist is likely to be longer than if the counsellor is female as there is only '1.5 FTE' male psychologist on staff.[27] Ultimately, the manner in which counselling is to be provided must be determined by the Forensic Psychology Services in consultation with the respondent but there is a need to commence the counselling as soon as practically possible.
[27] ts 87.
It is to the respondent's credit that urinalysis undertaken in prison confirms that he has abstained from using cannabis while in custody. As Ms Hasson explained the respondent has developed strategies for avoiding drug use in custody.[28] This is a positive step. The concern, however, is that when confronted with the stresses of daily life outside the custodial setting, and perhaps under the influence of peers, the respondent may relapse into drug abuse.
[28] ts 61.
The psychological counselling to which reference has been made would address the respondent's drug and alcohol issues but participation in a group based program such as the Pathways substance abuse program is recommended. The respondent will need to be assessed for his participation in this program. Dr Riordan confirmed that a Pathways program may be available in quarter 3 and quarter 4 of the 2021 and the program is more likely to be available in the metropolitan area rather than a regional area. Dr Wynn Owen, Ms Hasson and Dr Riordan were all of the view that the respondent would benefit from participation in the Pathways program.
The third unmet treatment need relates to the respondent's offending of a sexual nature. The overwhelming need for intervention in this area is best outlined by the explanations given by Dr Wynn Owen, Ms Hasson and Dr Riordan of what they termed the respondent's 'cognitive distortions'.
Dr Wynn Owen explained what he meant by using the phrase 'cognitive distortions' as follows:[29]
... what I talked about is about the - having the belief, and [the respondent]’s case, that sexual contact with a range of ages is quite acceptable and normal. In my interviews with him he talked about his sexual contact with girls between the ages of 12 and 16 in a normalising manner. He mentioned that it was a common thing that - in his community that girls and women would have sex for cigarettes, sex for drugs, etcetera. These are all distortions that enable offending. They're issues that need to be addressed and understood. Consent is another issue altogether. That whilst [the respondent] acknowledges that consent was not present in a number of his past offences, sitting behind that there is not a very clear understanding as to how to achieve consent. I think partly what we see reflected here is the difficulty [the respondent] has in negotiating an intimate interpersonal communication and contact, and so the way that he has accessed sexual intimacy has relied on somebody being vulnerable through being semiconscious or intoxicated, and therefore consent has not been required.
[29] ts 34 - 35.
Ms Hasson's evidence was to a similar effect. She said:[30]
So when I was interviewing [the respondent] and looking back at previous comments in reports there wasn't a great sense of him recognising that these are individuals with feelings and emotions and, in fact, some instances people have fought him off and resisted his overtures and he has still persisted anyway, so there is that, sort of, absence of or, perhaps, not absence of, but a dismiss of their feelings and emotions. So it's really about, in that moment, his overarching need for sexual gratification, so in that sense a cognitive distortion in the sense that he can objectify those or - to say dehumanise is too strong a description, but it's really to, sort of, put a distance between him and then and to switch off from whatever experience they may be having, focusing purely on his own needs at that point in time.
...
It could, in part, be related to some of the antisocial aspects of his personality. It could be partly due to intoxication through cannabis use or alcohol, because will certainly have an impact on that. There may be some origins in his early childhood, and attachment issues, and intimacy, and almost protecting himself from that, so it could be a multitude of reasons and that would be one area that he would look at in treatment as to how he is able to do that in developing empathy and really identifying with others.
[30] ts 57 - 58.
Finally, in the context of commenting on the respondent's hostility towards women, Dr Riordan put the matter as follows:[31]
With respect to [the respondent's hostility towards women], [the respondent] provided some contradictory information, or some conflicting information during interview. While on the one hand he spoke quite emphatically about being raised to respect women and that, in particular, his index offending with respect to the grievous bodily harm offence against his intimate partner was not in keeping with what he viewed an Aboriginal man should engage in, the behaviour that he should engage in towards his partner. He spoke about quite a bit of shame with respect to that. However, on the other hand, he also spoke about with respect to some of the earlier offences and the sexual offences with really some of those cognitive distortions that Dr Wynn Owen and Ms Hassan spoke about, and distancing himself from responsibility of those, apportioning some blame to the victims of those, such that perhaps they were behaving in a way that he didn't approve of, in particularly the 13 year old victim. He spoke of her going around with other men, or having other relationships he didn’t approve of. So with that respect there was a level of hostility around how he perceived women's role in the community that was incongruent with his expressed beliefs around particularly the offence and the grievous bodily harm.
[31] ts 71.
Dr Wynn Owen, Ms Hasson and Dr Riordan expressed the view that the respondent should undertake the Sex Offenders Intensive Treatment program. This program is a six month program that is only available within the prison system and, relevantly at least, in the Bunbury and Acacia prisons. The respondent will need to be assessed before he is eligible to participate in the Sex Offender Intensive Treatment program. The process of assessment does not simply involve an assessment of the respondent's need. Dr Riordan explained:[32]
Well, there's also group dynamics that you also would need to be looking at. So the - the actual facilitators of the program would be looking at who is going to be in that program, who is - who comprises the group to optimise the treatment gains from that group. For [the respondent]'s case it would be ideal for him to have other men of similar cultural background to himself, so that the group process of norming behaviours and challenging each other’s beliefs is such that it would be more culturally relevant to him and therefore more likely to be integrated. Should the respondent be the only man of aboriginal descent in a - in a group, he might be less likely to take on the views of the other participants because they're culturally dissimilar to him.
... So it would be ideal that an assessment take place so that he would be able to establish a relationship with other members in the group. That would facilitate treatment.
[32] ts 82.
There are two Sex Offender Intensive Treatment programs due to commence in the fourth quarter of 2021. The first of these is scheduled to commence on 4 October 2021. There are two matters of important practical significance to note. First, the Pathways program and the Sex Offender Intensive Treatment program cannot be undertaken at the same time. Second, the respondent will not be assessed as eligible for participation in a Sex Offender Intensive Treatment program if the date for completion of the six month program is later than the date of his first annual review. In other words if there is a possibility that an offender may be released before completion of the program he will not be accepted onto the program. In the event the respondent is not accepted onto a Sex Offender Intensive Treatment program, Dr Riordan's evidence was that the respondent's outstanding treatment needs with respect to sexual offending potentially could be addressed on an individual basis,[33] (I infer through the one-on-one counselling to which I have referred). Participation by the respondent in the Sex Offender Intensive Treatment program is substantially preferable because of the targeted nature of the program and the potential educational benefits to be derived from a group program. It is important from both the respondent's perspective and the community's perspective that the respondent undertake all possible rehabilitative programs that may be available. I endorse the recommendation made by all the report writers that the respondent participate in a Sex Offender Intensive Treatment program before the first annual review of the continuing detention order.
Reasons for concluding the respondent is a high risk serious offender
[33] ts 89.
The evidence I have outlined in the preceding paragraphs satisfies me to a high degree of probability that it is necessary to make a restriction order to ensure that adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence. Shortly stated the matters that satisfy me of this are:
(a)The respondent's offending history.
(b)The respondent's difficulties with emotional self-regulation that lead to the use of cannabis and alcohol to cope with life.
(c)The respondent's entrenched hostile and exploitative attitudes towards women encapsulated in the evidence given by reference to the term 'cognitive distortions' to which I have referred.
(d)The difficulties the respondent has experienced in maintaining a stable relationship with a female partner that provides him with a level of intimacy that removes the necessity for the respondent to seek sexual gratification elsewhere.
(e)The opinions of Dr Wynn Owen and Ms Hasson that the respondent presents a high risk of serious reoffending.
Continuing detention order or supervision order
I turn now to my evaluation of the considerations bearing upon whether the respondent should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order.
In evaluating the considerations I have borne in mind that I should choose the order that is least invasive or destructive of the respondent's right to liberty, whilst ensuring an adequate degree of protection for the community.
Before I can make a supervision order, I must be satisfied, on the balance of probabilities, that the respondent would substantially comply with the standard conditions of a supervision order and that the totality of the conditions would provide adequate protection of the community against the risk that the respondent would commit a serious offence.[34] The respondent bears the onus of establishing that he would substantially comply with the standard conditions.[35]
[34] HRSO Act, s 29(1).
[35] HRSO Act, s 29(2).
The issue of unmet treatment needs and accommodation are intertwined. For the purposes of analysis I will deal with the unmet treatment needs first.
The respondent's unmet treatment needs are such that I am not persuaded that if released on a supervision order he would substantially comply with the standard conditions - in particular I am not persuaded that he would not commit a serious offence during the period of the order. The concern that I hold is that until the respondent has had the benefit of therapeutic intervention aimed at improving his insight into the need to manage his emotions and has demonstrated some progress in the development and implementation of strategies for achieving this management (at least at a theoretical level given the constraints on demonstrating the implementation of such strategies in a custodial setting), once in the community and faced with the stress of being in an unfamiliar environment away from country he will relapse into drug use leading to reoffending. Put another way, without making progress in his emotional regulation, I fear that the structure of supervision and monitoring will not be sufficient to prevent reoffending.
The focus in the previous paragraph on making progress in the respondent's ability to manage his emotions reflects my assessment that this is the essential building block on which the respondent's overall rehabilitation has to be based. This focus does not obviate the need for addressing, through the separate therapeutic interventions discussed earlier, the respondent's difficulties with cannabis and alcohol and, importantly, his hostile attitudes to women.
Turning to the question of accommodation there is tension between structuring a supervision order that would enable the respondent to return to country and live in the Community on the one hand and the very real need for respondent to be closely supervised, monitored and supported on release. Quite apart from the question of respondent's personal autonomy, as Dr Riordan pointed out there is research that a connection to culture and being able to engage with one’s culture can be protective with respect to not only psychological health but also being able to desist from some offending behaviour. Even though there is accommodation available to the respondent in the Community, the inability to monitor the respondent electronically, the absence of urinalysis facilities, the ready availability of cannabis and its widespread use, the proximity to victims of his past offending, and the difficulty in supporting the respondent in such a remote location are all factors that lead to the conclusion that a supervision order that permitted the respondent to live in the Community would not adequately protect the community. These observations do not preclude the possibility of making such a supervision order in the future - the position may change and evidence may be adduced that satisfactorily addresses the factors to which I have referred.
There is no accommodation available to the respondent in either Broome or the Perth metropolitan area. In terms of supervision, monitoring and support, accommodation in Perth is preferable. It would suffer, however, from the disadvantage that the respondent would be further removed from his culture and country in Perth than in Broome and this is a matter that may constitute a significant challenge for the respondent. That being so, if accommodation in Broome was to become available, it is an option which would require serious consideration. Of course, in the absence of any accommodation in Perth or Broome, this discussion of the comparative merits of the locations is largely hypothetical.
For the reasons stated I consider that the respondent should be made the subject of a continuing detention order.
Care and treatment requirements
The purpose of a continuing detention order is not merely to control a serious offender but to provide care and treatment for him - this is a statutory requirement and not merely a matter of policy. I have referred to the respondent's unmet treatment needs in earlier paragraphs of these reasons. The treatment required by the respondent includes:
(a)One-on-one psychological counselling.
(b)Participation in a Pathways program.
(c)Participation in a Sex Offenders Intensive Treatment program.
It is imperative both that the psychological counselling starts as soon as possible and that the respondent be assessed for participation in the Pathways and Sex Offenders Intensive Treatment program at an early date to give him the best prospect of participation in these programs before the date for the first annual review of the continuing detention order.
Order
I order that the respondent be detained in custody for control, care and treatment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
14 APRIL 2021
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