The State of Western Australia v MAR [No 3] - [2022] WASC 371

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MAR [No 3] [2022] WASC 371
CORAM:   FIANNACA J
HEARD:   25 JULY, 31 AUGUST & 21 OCTOBER 2022
DELIVERED          :   25 OCTOBER 2022
PUBLISHED           :   1 NOVEMBER 2022
FILE NO/S:   SO 8 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MAR
Respondent

Catchwords:

High risk serious offender- First periodic review - Whether respondent remains a high risk serious offender - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if respondent released on a supervision order

Legislation:

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Dangerous Sexual Offenders Act 2006 (WA) (repealed)

Result:

Continuing detention order rescinded
Supervision order made

Category: B

Representation:

Counsel:

Applicant	:	Mr B Meertens
Respondent	:	Mr T Hager

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Albert Wolff Chambers

Cases referred to in decision:

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 for Western Australia v Williams [2007] WASCA 206; (2007) 35 WAR 297
Garlett v The State of Western Australia [2022] HCA 30
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 MAR [No 2] [2021] WASC 97
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330

FIANNACA J:

The application and its history

These are proceedings under pt 5 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) for the review of the respondent's continuing detention under that Act.
The respondent is subject to a continuing detention order (CDO) made by Tottle J under s 48(1)(a) of the HRSO Act on 14 April 2021, in proceedings for a restriction order under that section.[1] His Honour made the order, having found that the respondent is a high risk serious offender, as defined in s 7 of the HRSO Act. That is, his Honour was satisfied that it was necessary to make a restriction order in relation to the respondent to ensure the adequate protection of the community against the unacceptable risk that the respondent will commit a serious offence, as defined in the HRSO Act, being a serious offence of a sexual or violent nature. Further, his Honour concluded that, to ensure the adequate protection of the community at that time, the appropriate restriction order was a CDO, being an order that the respondent be detained in custody for an indefinite term for control, care and treatment.
[1] The State of Western Australia v MAR [No 2] [2021] WASC 97 (MAR [No 2]).
Underpinning his Honour's decision was the fact that the respondent had several unmet treatment needs in respect of factors that put him at a high risk of committing a serious offence. It was expected that the treatment the respondent would receive in detention would consist of individual psychological counselling and participation in rehabilitation programmes. Another significant matter underpinning the decision was the unavailability of suitable accommodation to which the respondent could be released under a supervision order.
Part 5 of the HRSO Act provides for the periodic review of an offender's detention under a CDO. Section 64(1) provides that the State may apply to this court for the offender's detention to be reviewed. In relation to the first review, s 64(2) provides that the State must make the application so as to ensure that the review is carried out as soon as practicable after the end of the period of one year commencing when the offender is first in custody on a day on which the offender would not have been in custody had the CDO not been made.
The review process recognises that the circumstances underpinning a CDO may change. If the offender is found no longer to be a high risk serious offender, the CDO must be rescinded.[2] If the court finds that the offender remains a high risk serious offender, the court must decide whether to affirm the CDO or rescind the CDO and make a supervision order.[3] That will depend on whether a supervision order will provide adequate protection of the community.[4] Changes in an offender's behaviour, insights and attitudes, among other things, and/or improvements in management options, may mean that a supervision order is capable of providing adequate protection of the community, where previously it was not.
[2] HRSO Act s 68(1)(a).
[3] HRSO Act s 68(1)(b).
[4] HRSO Act s 68(2).
This is the first review of the respondent's detention under the CDO made by Tottle J. The State made the application on 13 October 2021.
The hearing of the application proceeded on 25 July 2022. As will appear below, the evidence at that hearing supported the conclusion that the respondent remains a high risk serious offender, which was conceded, but also supported the conclusion that his circumstances had changed and, if suitable accommodation and counselling were available to the respondent in the community, his risk could be adequately managed in the community on a supervision order. At that stage, there was no suitable accommodation available, and there was a question as to whether a psychologist could be allocated to provide counselling to the respondent. However, there were prospects that accommodation would become available and that the Department of Justice would take steps to allocate a psychologist to the respondent. Therefore, at the conclusion of the hearing, upon an application by the respondent, I adjourned the hearing to 31 August 2022 for the court to be provided with evidence of developments in respect of those matters, which would affect the determination of the review.
At the resumed hearing on 31 August 2022, the court was informed that progress had been made in respect of the allocation of a psychologist, but that suitable accommodation had not yet been found for the respondent. However, efforts were being made in that regard, and there remained a prospect that private accommodation would become available. Consequently, the hearing was again adjourned on the application of the respondent to 6 October 2022 for further evidence to be provided to the court in respect of developments concerning accommodation.
On 19 September 2022, information was forwarded to the court by the applicant, copied to the respondent's lawyers, indicating that a rental property that would provide suitable accommodation had been secured and was being held for the potential release of the respondent on a supervision order.
The hearing listed for 6 October 2022 was subsequently vacated by consent due to the unavailability of counsel for the respondent, and was relisted for 21 October 2022.
At the resumed hearing on 21 October 2022, further evidence was adduced by the applicant confirming that suitable accommodation was now available to the respondent and indicating that, if a supervision order was made by the court, it was practically feasible to implement such an order from 31 October 2022. The evidence also confirmed that the respondent had commenced counselling sessions with the psychologist allocated to him, and that the psychologist would be available to continue to provide counselling in the community if the court were to make a supervision order.
For the reasons that follow, I am satisfied that the respondent remains a high risk serious offender, but I am also satisfied that the adequate protection of the community against the risk that the respondent would commit a serious offence can now be ensured by a supervision order, if the respondent were to be released on the standard conditions provided by the HRSO Act and further conditions proposed by the applicant. Accordingly, the appropriate orders are to rescind the CDO and to make a supervision order in the terms contained in the annexure to these reasons.

Statutory framework and legal principles

Before turning to the evidence in these proceedings, it is convenient to outline the statutory framework and the relevant legal principles in more detail.
At [4] above, I summarised the effect of pt 5 of the HRSO Act, under which the review is to be conducted. It is sufficient to add that, under s 66, as soon as practicable after an application is made under s 64, a court is required to give directions for the hearing of the application (which occurred in this case), and the application must be heard, and the review must be carried out, as soon as it is practicable to do so in accordance with any directions given by the court.[5] The court may adjourn the hearing of the application, and the carrying out of the review, where good cause is shown.[6] As I outlined above, there were good reasons for the adjournment of the application on more than one occasion in this case.
[5] HRSO Act s 66(1) and (2).
[6] HRSO Act s 66(3).
Section 67 of the HRSO Act provides that, unless the court otherwise orders, the chief executive officer (CEO) of the relevant Department (being the Department of Justice) must engage one or more qualified experts to prepare reports in accordance with s 74 to be used on the review.
Section 74 of the HRSO Act provides that a qualified expert who has been engaged to provide a report must examine the subject and prepare an independent report, which must indicate:
(a) the reporter's assessment of the level of the risk that, without a restriction order, the subject will commit a serious offence; and
(b)the reasons for the reporter's assessment.
At [5] above, I summarised the effect of s 68 of the HRSO Act. The section provides:
Review of detention under continuing detention order
(1)On a review under section 66 of an offender's detention –
(a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b)if the court finds that the offender remains a high risk serious offender it must –
(i)affirm the continuing detention order; or
(ii)subject to section 29, rescind the continuing detention order and make a supervision order.
(2)In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure the adequate protection of the community.
The structure of the provision requires the court to determine first whether the respondent remains a high risk serious offender.
The definition of the term 'high risk serious offender' is contained in s 7(1) of the HRSO Act, which provides:
An offender is a high risk serious offender if the court dealing with an application under this 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.
Section 7(2) provides that the State has the onus of satisfying the court as required by subsection (1).
Section 7(3) sets out a number of matters that the court must have regard to in determining whether a person is a high risk serious offender. They include any report prepared under s 74 of the HRSO Act. I note that, in MAR [No 2], Tottle J dealt with each of those matters under separate headings.
'Serious offence' is defined in s 5 of the HRSO Act. As Tottle J pointed out in MAR [No 2], it is sufficient to note that a number of the offences committed by the respondent in the past (which I will identify later in these reasons) and those he may commit in the future, with which the proceedings under the HRSO Act have been concerned, are serious offences for the purposes of the HRSO Act.
It is apt to note that the provisions of s 68 are identical to the provisions of s 33 of the repealed Dangerous Sexual OffendersAct 2006 (WA) (DSO Act), save that it refers to 'high risk serious offender' rather than 'serious danger to the community'.
In The State of Western Australia v ZSJ,[7] I concluded, having regard to the relationship of the provisions of the HRSO Act bear to the provisions of the DSO Act, that the concepts and criteria with which the court is concerned in determining an application under the HRSO Act are substantially the same under both statutes, and, therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non-sexual offences.[8] Although that case was concerned with a restriction order hearing under s 48 of the HRSO Act, the reasoning applies equally to a review under s 68.
[7] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ).
[8] ZSJ [30] - [63].
That general approach has been adopted by other judges in subsequent cases, although, as Corboy J identified in The State of Western Australia v Garlett,[9] there is arguably a difference in the way the criteria in s 7(1) of the HRSO Act are to be applied, when compared with the criteria for finding a person to be a serious danger to the community under s 7 of the DSO Act.[10] It is not necessary to discuss that difference here. It turns on whether the element of necessity for a restriction order in s 7(1) is additional to the element of unacceptable risk. As I will explain in due course, I am satisfied that, if they are to be regarded as separate elements, both elements have been established in this case. It is also clear from MAR [No 2] that Tottle J was satisfied of both elements, although his Honour did not address them separately.
[9] The State of Western Australia v Garlett [2021] WASC 387 (Garlett).
[10] I note that the definitional issue identified by Corboy J in Garlett was not considered by the High Court in Garlett v The State of Western Australia [2022] HCA 30.
I note that nothing in the High Court's recent decision in Garlett v The State of Western Australia,[11] which considered the constitutional validity of aspects of the HRSO Act, is inconsistent with adopting the jurisprudence established in respect of the DSO Act when construing and applying the HRSO Act. In fact, it is implicit from the majority judgment that such jurisprudence remains relevant.[12]
[11] See footnote 10 above.
[12] See for instance Garlett v The State of Western Australia [55] (footnote 68), [103], [104], [106].
In Director of Public Prosecutions (WA) v Pindan [No 3],[13] I considered the issue of whether, on a review of continuing detention under the DSO Act, the court was bound by findings in previous proceedings that had resulted in the CDO or the affirmation of the CDO, and the general approach to be taken on a review.[14] In my opinion, the conclusions at which I arrived, having regard to relevant authorities, are relevant to review proceedings under the HRSO Act. Adapting those conclusions to the context of the HRSO Act, they may be summarised as follows:
(1)On a review under s 68 of the HRSO Act, the court is required to decide, in accordance with s 7 of the Act, whether it is satisfied to a high degree of probability that the respondent remains a high risk serious offender. This requires a consideration of all the matters in s 7(3) on the evidence available at the time of the review.
(2)If the court is not satisfied that the respondent remains a high risk serious offender, it must rescind the CDO.
(3)If the court is satisfied that the respondent remains a high risk serious offender, it must determine whether the community could be adequately protected by the release of the respondent on a supervision order, being an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30 of the HRSO.[15] If the court is left in doubt that the community could be adequately protected in that way, it must affirm the CDO.[16]
(4)While the previous decision that the respondent was a high risk serious offender must be assumed to be correct, and provides a point of departure for consideration of the first issue, it does not follow that the court on the annual review must find that the respondent is a high risk serious offender if it finds there has been no change in his circumstances. The court is still required to be satisfied in accordance with s 7(1) of the HRSO Act that the respondent is a high risk serious offender at the time of the review. The onus remains on the State under s 7(2) to satisfy the court accordingly.
(5)The task of determining the appropriate order for the adequate protection of the community is not constrained by the findings made in previous proceedings in respect of that issue, but those findings will be relevant as part of the background against which the current assessment is to be made.
(6)The materials to which the court will have regard, and the previous findings on which it will rely, will depend on the manner in which the proceedings are conducted by the parties. Previous findings will usually provide the context for consideration of more recent developments in the respondent's circumstances. To use the terminology adopted in previous cases, they will provide the point of departure or baseline for the assessment of such developments.
(7)The doctrine of issue estoppel may apply to some findings of fact made in previous proceedings, so that the parties will be bound by those findings.
(8)If there is no challenge to a previous finding that is relevant to the determination of the issues on the annual review, the court should proceed on the basis that the finding was correct and give it weight in the current proceedings accordingly, unless there is evidence, that in the court's assessment, requires reconsideration of the finding. Such evidence may be in respect of facts that existed at the time of a previous decision, but which were not part of the evidence available at that time and have become known since then.
[13] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 (Pindan [No 3]).
[14] Pindan [No 3] [33] - [57].
[15] HRSO Act s 27(1).
[16] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [86].
I note in respect of the first point that a finding under s 68(1)(b) that an offender 'remains a high risk serious offender', that is, a finding that it remains 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, necessarily entails a finding that if the offender is not subject to a restriction order the community will not be adequately protected against an unacceptable risk that he will commit a serious offence.[17]
[17] The State of Western Australia v West [No 6] [2019] WASC 427 (West) [21]; ZSJ [44].
If the court finds the respondent remains a high risk serious offender, then, in deciding whether to affirm the CDO or release the respondent on a supervision order, the court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community, which is the paramount consideration under s 68(2) of the HRSO Act.[18]
[18] The State of Western Australia v Latimer [2006] WASC 235; Williams [79].
However, the discretion under s 68(1)(b)(ii) (set out above) to make a supervision order is subject to s 29 of the HRSO Act, which provides:
Limitation on power to make or amend supervision order
(1) A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2) The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.

The term 'standard conditions' in relation to a supervision order is defined in s 3 of the HRSO Act to mean a condition that, under s 30(2) of the HRSO Act, must be included in the order. Section 30(2) of the HRSO Act specifies seven conditions that must be included in any supervision order. Those conditions are set out in the supervision order in Annexure 1 of these reasons. They include a condition that the respondent will not commit a serious offence during the period of the supervision order.
The effect of s 29(1) and s 29(2) of the HRSO Act is that, before the court can make a supervision order in relation to a respondent, he must satisfy the court, on the balance of probabilities, that he will substantially comply with the standard conditions set out in s 30(2).
In respect of the equivalent provisions of the repealed DSO Act,[19] I expressed views in Director of Public Prosecutions (WA) v Hart[20] as to what is meant by 'substantially comply with'. Those views apply to s 29(1) of the HRSO Act. Accordingly, the words of that provision should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order.[21] In essence, I must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious offence.[22]
[19] DSO Act s 33(4) and s 33(5).
[20] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
[21] Hart [52].
[22] Hart [52]; The State of Western Australia vNarrier [No 6] [2020] WASC 349 (Narrier) [113].
As I identified in Hart, some matters that will be of relevance are (a) the respondent's attitude to the conditions of the supervision order; (b) his capacity to comply with the conditions; and (c) what measures there are in place to ensure he would substantially comply.[23]
[23] Hart [50].
In determining whether to affirm the CDO or make a supervision order, the following principles established by authorities under both the repealed DSO Act and the HRSO Act are relevant.
Detention under the HRSO Act is not punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual and violent offending from being realised. As Hall J noted in Unwin [No 3],[24] it is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future. Further, the purposes of continuing detention include treatment and care of the offender in a secure environment. The objective of treatment is to reduce risk. If the offender's circumstances change, or if there is a change in external circumstances, such that the offender's risk of reoffending reduces, it may be that the adequate protection of the community against the risk, although it is still unacceptable in the absence of any restrictive measures, can be achieved by the making of a supervision order.
[24] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [15].
The level of risk posed by the respondent, and whether the community can be protected adequately 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 measures and obligations that can be put in place under a supervision order to mitigate the risk. The external measures include the available means to monitor, supervise and treat the respondent.
All of the factors to which I have referred affect both the question of whether the respondent will substantially comply with the standard conditions of a supervision order[25] and the overall efficacy of the supervision order in ensuring adequate protection of the community. Gains made by the respondent in treatment and his behaviour while in custody will inform the assessment of the personal factors. The availability of new technology or resources in the community will be relevant to the assessment of external factors.
[25] Garlett v The State of Western Australia [103].
The review process is intended to ensure that detention only continues where necessary.

Evidence in the proceedings

The evidence in these proceedings included a book of materials (BOM) in two volumes,[26] other documentary exhibits tendered during the hearing, and the oral evidence of three witnesses, Dr Peter Wynn Owen, a consultant forensic psychiatrist, Dr Kathryn Riordan, a forensic and clinical psychologist, and Ms Emma Cashmore, a senior Community Corrections Officer at the Community Offender Monitoring Unit (COMU), which is part of the Department of Justice. All three witnesses also gave evidence in the restriction order application before Tottle J in 2021.
[26] The BOM was tendered as exhibits 1 and 2.
As was the case in the 2021 proceedings:
(a)Dr Wynn Owen is the expert who was requested to assess the respondent under the HRSO Act and provide an opinion in respect of his risk of committing a serious offence;
(b)Dr Riordan reviewed the respondent's progress in respect of his treatment (by way of a rehabilitation programme and individual psychological counselling), and provided recommendations in respect of further treatment; and
(c)Ms Cashmore was the respondent's Community Corrections Officer and provided evidence in respect of his conduct within the prison system, steps that had been taken to find suitable accommodation for the respondent, if he were to be released on a supervision order, and the conditions recommended by COMU for inclusion in any such supervision order to ensure adequate protection of the community.
I note that, by the time the hearing was concluded, Ms Cashmore was no longer working at COMU, and evidence in relation to the most recent developments was given by Ms Aimee Goode, a team leader with COMU.
The BOM included reports prepared by each of the witnesses for both the 2021 proceedings and the present proceedings. It also included a treatment progress report from Ms Sarah Ballantyne, a senior counselling psychologist who provided counselling to the respondent during the period since the CDO was made. The BOM also included information on the respondent's prior offending, the decision in MAR [No 2], a previous decision of the court in respect of the respondent under the repealed DSO Act, which the HRSO Act replaced, and prison records in respect of the respondent since he was made subject to the CDO.
At the hearing, the applicant tendered a Pathways Program Completion Report dated 5 May 2022, relating to the respondent's participation in that programme since he became subject to the CDO. Over the course of the hearing, the applicant also tendered a number of emails containing information from the Department of Justice about developments in relation to the availability of suitable accommodation and the allocation of a psychologist to provide individual counselling to the respondent in the community if he were to be released on a supervision order. I will refer to relevant aspects of those materials when I outline the evidence in the review proceedings.
The respondent elected not to give or adduce any evidence at the hearing.

The basis for the CDO made by Tottle J

Having regard to the principles I have outlined, it is appropriate to commence with the findings that were made in the restriction order proceedings in 2021. Neither party in these proceedings took issue with those findings. In fact, the findings were relied upon as the point of departure for identifying changes in the respondent's circumstances that inform the question of whether his risk has reduced or can be adequately managed in the community. I am satisfied, with respect, that it is appropriate to rely on the findings made by Tottle J in MAR [No 2] as the starting point for determining the issues under s 68(1) of the HRSO Act.
His Honour set out in detail the respondent's history and the evidence in those proceedings that led him to conclude that the respondent was a high risk serious offender and that a CDO was the appropriate restriction order at that time. These reasons should be read in conjunction with the decision in MAR [No 2]. I will not refer to the respondent's history or the evidence in those proceedings in detail, but, for context, it is appropriate for me to provide a summary.

The respondent's history

General background

The respondent was born in Derby and grew up mainly in the Kimberley region of Western Australia. The evidence frequently refers to his connection to country.
He had a tragic and disrupted childhood, marked by 'multiple incidents of grief and loss associated with the death of his primary care givers', with which he struggled to cope.[27] Both of his birth parents and his stepfather were killed in violent circumstances. The respondent has also said he was exposed to violence within the community, as well as substance abuse and criminal behaviour.[28]
[27] BOM 72 - 73; MAR [No 2] [17] - [18].
[28] BOM 73; MAR [No 2] [19].
As Tottle J noted in MAR [No 2], the respondent's physical, social and emotional development was also affected by a serious accident that occurred when the respondent was a child.[29]
[29] BOM 73; MAR [No 2] [20].
Despite the difficulties in his childhood, the respondent has a relatively good education history, completing school in Year 11 or Year 12. He went on to work in various jobs, including as a ranger, and served in the Northwest Mobile Force, a division of the Australian Defence Force.[30] I mention this because it suggests the respondent has a good grasp of the English language, notwithstanding that an interpreter in the Wyrnambal language was made available to the respondent during the present proceedings to assist him, as required, to fully comprehend what transpired during the hearing.
[30] BOM 73; MAR [No 2] [22].
It appears the respondent has been in three significant relationships with female partners, and he has a daughter from one of those relationships. The relationships were affected by issues of trust and jealousy, and the last of them involved mutual violence, resulting in the respondent being convicted of grievous bodily harm in 2018, to which I will return below.
The respondent has an extensive history of chronic alcohol and cannabis use, which appears to have commenced when he was a teenager, and continued throughout his adult life. Although there is nothing in the materials to suggest that it prevented him from functioning satisfactorily in the work and service roles he has had, his substance abuse problem has been identified as a factor in his offending.

Offending history

The respondent has a criminal history of sexual and violent offending from the age of 15 years.[31] He also has an extensive history for other forms of offending.[32]
[31] See BOM 10 - 14, 74 - 77; MAR [No 2] [26].
[32] BOM 77; MAR [No 2] [26].
Apart from an indecent assault in 1996 against his five year old nephew, the respondent's sexual offending, spanning from 1997 to 2016, was against girls and women, ranging in ages from under 13 years to 28 years of age. The offences included indecently dealing with and sexually penetrating girls under the age of 13 years and a girl between the ages of 13 and 16 years, indecently assaulting a 27 year old woman, and sexually penetrating a 28 year old woman without her consent. On five occasions the respondent offended or commenced to offend against the victim while she was asleep. On three of those occasions the respondent entered the victim's house to commit the offence. On one occasion he was also convicted of aggravated burglary. In most instances, the victim was a close relative of the respondent or otherwise known to him. Some of the sexual offending involved additional violence.
Apart from the sexual offending and the associated offences to which I have referred, the respondent was convicted and sentenced in June 2000 of two counts of assault occasioning bodily harm and one count of deprivation of liberty. That offending was against a 13-year-old girl in March 2000. The respondent assaulted the victim and deprived her of her liberty with the intention of taking her to a house and engaging in sexual acts with her. The violence included punching the child in the jaw, pulling her by her hair, and punching her in the stomach. The respondent's sexual motive was thwarted when a neighbour intervened and forced him to let go of the child.[33]
[33] BOM 11.
The respondent was also convicted on his plea of guilty in January 2018 of the offence of unlawfully doing grievous bodily harm, which he committed in January 2017 against his then partner. The respondent and the victim were both intoxicated and became involved in an argument, which 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, causing a significant wound to her head and resulting in a fracture to her skull. The victim fell to the ground and the respondent struck her several more times before leaving.[34]
[34] BOM 13 - 14, 74 - 75; MAR [No 2] [26].
The respondent was sentenced to terms of imprisonment for several of the offences. Some of the offending occurred while the respondent was subject to a community based order for previous sexual offending. The offending against the 13-year-old girl in March 2000 occurred 26 days after being placed on a 12 month community based order for offences of indecent assault and aggravated burglary.[35] The respondent also committed offences of attempting to sexually penetrate and sexually penetrating a child under the age of 13 years in 2002 while he was on parole in respect of a sentence for previous sexual offending.[36]
[35] BOM 10 - 11.
[36] BOM 12.
The so-called index offences, which formed the grounds for the restriction order application before Tottle J, were the grievous bodily harm offence committed in January 2017 and an offence of indecently dealing with a child under the age of 13 years, which was committed on a date unknown in 2016, when the respondent indecently dealt with a child who was having a sleepover with his partner's daughter.[37] Both of those offences are serious offences under the HRSO Act. The respondent was serving a total effective term of 4 years' imprisonment for those offences at the time the application was made. The term had been imposed on 19 February 2018, but was backdated to 26 January 2017.

Application in 2006 under the DSO Act

[37] BOM 74; MAR [No 2] [26].

The respondent was the subject of an application by the Director of Public Prosecutions of Western Australia (the DPP) in June 2006 for an order under the DSO Act that the respondent be subject to a CDO or supervision order under that Act on the basis that he was a serious danger to the community, that is, that there was an unacceptable risk that if the respondent was not subject to a CDO or a supervision order, he would commit a serious sexual offence, as defined in that Act.[38] On the evidence in that application, the judge was not satisfied that the DPP had established to the requisite standard that the respondent was a serious danger to the community, as defined in the DSO Act.[39] Consequently, no order was made under the DSO Act.
[38] BOM 18 - 23. The decision of this Court in that application, published in 2017, is reproduced in BOM vol 1. I have omitted the citation because I have decided that the respondent's name should be anonymised for present purposes, and his name was not anonymised in that decision.
[39] BOM 65 - 66.
The respondent subsequently committed the indecent dealing offence in 2016.

Evidence in the HRSO Act proceedings before Tottle J in 2021

In the restriction order proceedings before Tottle J in 2021, Dr Wynn Owen and Ms Julie Hasson, a forensic psychologist, provided reports and gave evidence as the experts appointed by the court to examine the respondent pursuant to s 46(2)(a) of the HRSO Act and prepare reports pursuant to s 74. As his Honour stated, both experts 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.[40] The instruments used by Dr Wynn Owen were the Static-99R, Risk for Sexual Violence Protocol (RSVP) and the PCL-R (a tool used to assess psychopathy). The instruments used by Ms Hasson were the Static-99R, RSVP, Historical Clinical Risk Management 20, Version 3 (HCR-20 v3) and the PCL-R. Ms Hasson gave evidence that those instruments should be used with caution, as they were all developed with a mainly Caucasian population, so there are limitations, given the absence of 'well normed' comparisons for use with Aboriginal and Torres Strait Islander peoples.[41]
[40] MAR [No 2] [31].
[41] MAR [No 2] [31].
It is sufficient for present purposes to note that, having applied the various instruments and assessed the respondent in interview (through an interpreter), both Dr Wynn Owen and Ms Hasson considered that the respondent presented a high risk of committing a serious offence in the future.[42] That assessment related to the respondent's risk of reoffending without the structure and constraints imposed by a supervision order being in place.[43]
[42] MAR [No 2] [35].
[43] MAR [No 2] [36].
As the name indicates, the Static-99R is an instrument that looks mainly at historical factors to assess risk of sexual reoffending on a statistical basis. It is sufficient to note at this stage that the score arrived at by both experts placed the respondent at a level of risk that was 'well above average'.[44]
[44] MAR [No 2] [32].
Under the RSVP, which involves looking at 22 individual risk factors over five domains, namely, sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability, Dr Wynn Owen and Ms Hasson identified numerous risk factors, which were set out by Tottle J in a table.[45] As the description indicates, the factors under the first domain are historical, and therefore static, whereas under the other domains the factors are dynamic and can be compared over time to see if there has been any change that might affect the offender's level of risk. There was some divergence between Dr Wynn Owen and Ms Hasson as to which factors were present, or the manner in which they were present, but Tottle J did not regard the differences to be material. However, as Ms Hasson did not give evidence in the current review proceedings, it is appropriate to identify the relevant factors referred to by both experts in 2021 and the divergence between them, as recorded by his Honour.
[45] MAR [No 2] [34].
The historical factors identified as relevant by both experts were that the respondent's offending:
(1)was chronic, in that it occurred over a period of two decades and involved multiple victims;
(2)was diverse, in the choice of victims and the behaviours in which he engaged; and
(3)involved psychological coercion, in that many victims were family members, in their own homes, sleeping and with others present, and other victims were given cigarettes and cannabis.
The historical factors identified as relevant only by Ms Hasson were that the respondent's offending:
(1)escalated to involve penetration and physical harm; and
(2)involved physical coercion, in that the respondent engaged in significant violence towards some victims, and was reckless indifferent to the potential to cause harm or fear of harm.

In the domain of 'psychological adjustment', both experts identified the following risk factors:
(1)Extreme minimisation or denial of sexual violence. Ms Hasson identified this in respect of the index offending and the first ever sexual offence, whereas Dr Wynn Owen considered it to be manifest in the fact that the respondent attributed his offending to intoxication, an inability to control sexual urges and the suggestion that it was normal behaviour in his community.
(2)Attitudes that support or condone sexual violence, which, according to Ms Hasson, was evidenced by victim blaming, and, according to Dr Wynn Owen, was evidenced by established patterns of behaviour.
(3)Problems with self-awareness, in that the respondent had a limited level of self-awareness regarding the nature, motivations and consequences of his behaviour, and continued to place himself in high risk situations.
(4)Problems with stress and coping, in particular, in relation to grief, loss and conflict in relationships.
In relation to the first of those factors, Dr Wynn Owen's opinion was that the respondent's explanation in respect of 'normal behaviour' was part of his cognitive distortions in relation to sexual offending, which was an area of treatment need. Tottle J set out Dr Wynn Owen's explanation as follows:[46]
... 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.
[46] MAR [No 2] [84].
It is apt to note that Ms Hasson also spoke of cognitive distortions in the context of the respondent's lack of empathy for his victims, dismissing their feelings 'in the moment' to satisfy his overarching need for sexual gratification.[47]
[47] MAR [No 2] [85].
Ms Hasson also identified problems resulting from child abuse as a relevant factor in the domain of 'psychological adjustment', in that the respondent had been exposed to extended family violence, criminality, alcohol and substance abuse in early childhood and adolescence.[48]
[48] MAR [No 2] [34].
In the domain of 'mental disorder', Ms Hasson identified sexual deviance as a relevant factor, whereas Dr Wynn Owen did not. This was clarified by Tottle J:[49]
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.
[49] MAR [No 2] [30].
Both experts identified problems with substance abuse as a relevant factor that was connected with past offending. Dr Wynn Owen diagnosed the respondent with Substance Use Disorder.[50] He also diagnosed the respondent with Antisocial Personality Disorder.
[50] MAR [No 2] [30].
Ms Hasson considered that the risk factor of violent or suicidal ideation was also present, because the respondent had revealed a history of self-harm ideation, and he had caused physical injury and harm to victims.
In the domain of 'social adjustment', the respondent was considered by both experts to have problems with both intimate and non-intimate relationships and with non-sexual criminal activity. The problems with intimate relationships have included problems with trust and jealousy, and violence towards an intimate partner. In relation to non-intimate relationships, Dr Wynn Owen considered that the respondent's relative social isolation was an issue. Ms Hasson also identified problems with employment to be partially present as a risk factor.
In the domain of 'manageability', both experts identified the following risk factors:
(1)Problems with planning, in that the respondent has had difficulty making and implementing prosocial life plans.
(2)Problems with treatment, in that he failed to benefit from previous attempts at rehabilitation, continuing to offend in the same or a similar manner, and being unable to remain abstinent from illicit substances.
(3)Problems with supervision, in that he had demonstrated a history of non-compliance with orders in the community.
In relation to the respondent's risk of violent reoffending, Ms Hasson also used the HCR-20v3 assessment tool, and while accepting that the risk factors are different and the assessments are directed to different types of offending, Ms Hasson was of the view that the result of the HCR-20v3 assessment was 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. Tottle J noted that Ms Hasson described the respondent's violent offending as chronic and linked to his alcohol and substance abuse.[51]
[51] MAR [No 2] [39].
In relation to Dr Wynn Owen's opinions concerning the respondent's risk of non-sexual violent reoffending, his Honour said:[52]
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.
[52] MAR [No 2] [40].
Dr Wynn Owen's concluding analysis in the proceedings before Tottle J included observations that:[53]
(1)The respondent had committed multiple sexual offences since the age of 15 years and, although he had participated in group interventions to address offending and appeared to know what many of his risks were, he had continued to offend until the index offending, notwithstanding the very serious consequences, including spending much of his adult life to date in prison.
(2)The degree of mitigation of the respondent's high risk of committing a further serious offence, if the respondent were to be under supervision in the community, would depend on the level of constraint imposed and the timeliness of community response to high risk situations.
(3)The respondent had significant unmet treatment needs; in particular in the areas of sexual offending, emotional self-management, interpersonal function and substance abuse.
(4)The respondent required psychological intervention, delivered by an individual therapist or in a combination of individual and group therapy, to address his outstanding treatment needs in the areas of sexual offending, violent offending and substance abuse.
(5)If the respondent were to be released into the community on a supervision order, the conditions would need to reflect the respondent's specific high risk scenarios, which included situations such as substance abuse, association with criminal peers and stressors of any intimate relationship. Dr Wynn Owen considered the conditions of the supervision order proposed in those proceedings (which were in similar terms to the conditions of the supervision order proposed in these proceedings) were appropriate to address the respondent's pattern of offending.
[53] MAR [No 2] [41].
Ms Hasson's concluding analysis included the following matters, which I consider to be significant, having regard to the evidence in these proceedings:[54]
[54] MAR [No 2] [42].
(1)The respondent's sexual offences appear to have been motivated by sexual arousal, inability to delay sexual gratification, sexual preoccupation, blockage of sexual outlet, rejection, beliefs about sexual entitlement and objectification of women.
(2)Sex was likely to have been used as a maladaptive coping mechanism to attenuate dysphoric emotions. The presence of antisocial personality traits contributed to his offending behaviour.
(3)The respondent's offences were all committed within the location in which he was living at the time. He had not taken steps to conceal his identity. Victim availability, such as children and adolescents and those who were intoxicated or asleep, had been easy targets for the respondent.
(4)The adoption of a victim stance and other cognitive distortions that serve to minimise, justify, rationalise, excuse and nullify his actions were likely to have been factors that had maintained the respondent's offending behaviour over time. These were identified as key issues that required intervention to reduce the respondent's risk of reoffending in the future.
(5)Substance use was also identified as an area of outstanding treatment need.
(6)A number of factors had contributed to the respondent's offending, the most relevant of which included 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, were relevant features of his offending behaviour.
(7)Although the respondent had completed the Stopping Family Violence program to address the offences committed against his former partner, and had gained some insight into his use of aggression, his gains were described as rudimentary.
(8)The respondent had previously participated in sex offender treatment programs and interventions targeting substance abuse, and he had developed a relatively detailed relapse prevention plan, and yet he later reoffended. Ms Hasson noted that it was difficult to ascertain if the respondent had failed to maintain treatment gains or chosen to disregard relapse prevention strategies, but it was clear 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 his risk.
(9)Although the respondent recognised some problem areas, he did not yet have the skills to manage those risks consistently, and therefore lapses will occur with a high likelihood of him engaging in non-consensual sexual activity.
(10)Behavioural change required further therapeutic input.
Both Dr Wynn Owen and Ms Hasson regarded substance abuse to be one of the respondent's most significant risk factors.
Ms Hasson recommended that the respondent commence counselling with a psychologist from the Psychological Services/Specialist Psychological Services to address his numerous outstanding treatment needs. She also identified the need for a comprehensive risk and self-management plan. She was also of the view that the focus of the respondent's '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'.[55] She suggested that this would include establishing a supportive relationship with a trusted elder in his local community to serve as a mentor and guide.[56]
[55] MAR [No 2] [42].
[56] MAR [No 2] [42].
Tottle J also relied on the evidence of Dr Riordan. Her role in the restriction order proceedings was not to provide an assessment of risk, but to identify risk factors and unmet treatment needs in the context of planning the respondent's further management.
Dr Riordan concluded that the respondent 'continue[d] 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'.[57] She was of the opinion that, if a CDO were made, the respondent should participate in relevant and recommended treatment programs, such as the Pathways Program and the Sex Offending Intensive Treatment Program.[58] If the respondent were to be released on a supervision order, then the intervention, supervision and management strategies that would be available would depend on the respondent's location. Dr Riordan identified connection to culture and country as a potential positive influential factor in the context of community reintegration, and if the respondent could be managed in a remote community in the Kimberley, he could assume a cultural role as an elder or leader in the community.[59] Dr Riordan was of the view that a placement in the Perth metropolitan area was not ideal and would require formal support services and culturally appropriate mentoring.[60] However, as Tottle J pointed out, for a variety of reasons, it was not possible to make a supervision order that would allow the respondent to resume life in a community in which he has cultural ties.[61]
[57] MAR [No 2] [47].
[58] MAR [No 2] [48].
[59] MAR [No 2] [49].
[60] MAR [No 2] [51].
[61] MAR [No 2] [49].
Ultimately, the position in relation to supervision was summarised as follows:[62]
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.
[62] MAR [No 2] [52].
Dr Riordan considered it important that the respondent engage in individual intervention with Forensic Psychological Services, and that such intervention ‘be cognisant of the respondent's cultural responsivity factors'.[63] Dr Riordan confirmed that a referral for such counselling could be generated quickly and without the need for further assessment.[64]
[63] MAR [No 2] [54].
[64] MAR [No 2] [79].
Tottle J noted that such therapy would be required over a number of years.[65]

Accommodation

[65] MAR [No 2] [77].

It is not necessary to refer in any detail to the evidence concerning the unavailability of suitable accommodation in the 2021 proceedings. It is sufficient to note that there were a number of obstacles to the respondent returning to his Community to live under a supervision order, as it would not be practically feasible to monitor or supervise the respondent in a manner that could adequately mitigate his risk, even if a supervision order was otherwise appropriate.[66] Broome was considered, but there was no suitable property available. Within the Perth metropolitan area, the respondent had engaged with Uniting WA with a view to accessing a property under the Supported Accommodation Program managed by that agency. However, there was no property available to the respondent at that time. He was sixth on a waitlist.[67]

Tottle J's findings in respect of risk

[66] MAR [No 2] [57].

[67] MAR [No 2] [59].

The matters that Tottle J was required to address under s 7(3) of the HRSO Act included whether the respondent has a propensity to commit serious offences in the future, and whether there is a pattern of offending behaviour.
His Honour found that it is evident from the respondent's offending history that he has a propensity to commit serious offences of a sexual or violent nature against women and female children.[68]
[68] MAR [No 2] [65].
In relation to pattern of offending, his Honour found (footnote omitted):[69]
There is a pattern of offending behaviour. The respondent (sic) offending is linked to his abuse of cannabis or alcohol. 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.
[69] MAR [No 2] [66].
In relation to the need to protect members of the community from the risk, his Honour aptly noted that it required little exposition, and said:[70]
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.

Finding that the respondent was a high risk serious offender

[70] MAR [No 2] [74].

Based on the evidence before him, Tottle J was satisfied that the respondent was, at that time, a high risk serious offender, stating:[71]
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.
[71] MAR [No 2] [89].
In summarising his findings earlier in his reasons, his Honour noted that the respondent's reliance on cannabis and alcohol when in the community had contributed to his offending.[72] His Honour also noted that the psychiatric and psychological evidence attached significance to the respondent's hostile and exploitative attitudes towards women.[73]

Finding that a CDO was necessary

[72] MAR [No 2] [4].

[73] MAR [No 2] [4].

Having found the respondent to be a high risk serious offender, his Honour was persuaded that a continuing detention order was required to the ensure adequate protection of the community. That was because of a combination of the respondent's unmet treatment needs and the absence of suitable accommodation.[74]
[74] MAR [No 2] [5].
As his Honour explained:[75]
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.
[75] MAR [No 2] [93] - [96].

His Honour noted that there was no accommodation available to the respondent at that time in either Broome or the Perth metropolitan area.

Unmet treatment needs

His Honour's reasons clearly identified the unmet treatment needs the respondent needed to address while subject to continuing detention, and the factors that would determine whether any identified accommodation would be suitable for the purposes of a supervision order to ensure the adequate protection of the community.
In summary, in order to sufficiently reduce the respondent's risk, so as to make a supervision order feasible, the respondent needed to:
(1)improve his insight into the need to manage his emotions, and demonstrate some progress in his emotional regulation by the development and implementation of strategies for that purpose, which would be the foundation to his rehabilitation;
(2)address his difficulties with cannabis and alcohol; and
(3)address his hostile attitudes towards women.
His Honour noted that the purpose of a CDO is not merely to control a serious offender but to provide care and treatment for him, which is a statutory requirement, not merely a matter of policy.[76] His Honour then identified what was required:[77]
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.
[76] MAR [No 2] [99].
[77] MAR [No 2] [99].

The review proceedings

Structure of the balance of these reasons

The first question to be determined in these proceedings is whether the respondent remains a high risk serious offender. That requires consideration of the matters listed in s 7(3) of the HRSO Act. As I noted earlier, in MAR [No 2], Tottle J considered each of those matters under separate headings. I will not do so for present purposes. That is because there is no real issue in these proceedings that the respondent remains a high risk serious offender, and it will be apparent from my finding in that regard that I have considered all of the matters listed in s 7(3).
Further, the matters to which the court must have regard under s 7(3) overlap. For instance, the matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed, in turn, by the information and findings in respect of all of the other matters listed in s 7(3), including the reports of experts and other reports. Consideration of the questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning efforts at rehabilitation and the effect of participation in rehabilitation programmes.
I will deal with the evidence and my findings in respect of the relevant topics in the following order:
(1)The respondent's efforts at rehabilitation in the Pathways Program during the period since the CDO was made.
(2)The respondent's participation in individual counselling during the period since the CDO was made.
(3)The respondent's treatment progress.
(4)The respondent's conduct in prison during the period of the CDO.
(5)Dr Wynn Owen's assessment of the respondent's risk.
(6)The most recent developments in relation to the availability of counselling in the community.
(7)The availability of suitable accommodation.
(8)The strategies to manage the respondent’s offending behaviour.
(9)My findings regarding the respondent's risk of reoffending and my determination that a supervision order is the appropriate restriction order to make.
(10)The proposed conditions for a supervision order.
I will then give my conclusions in respect of the issues to be determined.

Pathways Program

Information from the facilitators

The Pathways Program Completion Report (Completion Report) was received as Exhibit 3.
It will be convenient to adopt Dr Riordan's summary of the respondent's progress in the program, but I will refer to some preliminary matters to give context to that summary.
The Completion Report describes Pathways as being 'a 50-session programme aimed to assist participants to understand the stages of change in relation to drug use and offending behaviour, develop a relapse and recidivism prevention plan and acquire a range of skills to maintain a drug and crime-free lifestyle.'[78] The respondent commenced participation in the Pathways Program while held at Acacia Prison on 27 October 2021. He attended 49 of the 50 sessions. The accrued single absence was adequately explained.[79] There was a delay in the completion of the programme because of COVID-19 and other prison-based disruptions. Consequently, the programme finished the day before he was interviewed by Dr Riordan.
[78] Exhibit 3, p 1.
[79] Exhibit 3, p 3.
It should be noted that the respondent's participation in the Pathways Program occurred at the same time he was undergoing individual counselling with Ms Ballantyne, which I will discuss below. That has enabled Ms Ballantyne to provide some insight in relation to the way in which the respondent was coping during the programme.
During the assessment formulation for the programme, in which the facilitators identified the issues that the respondent would need to address during the programme, the respondent was required to describe his background. There appears to have been an inconsistency in his perception of his childhood, in that he recalled his upbringing to have been positive, yet he referred to his exposure to violence and communal substance use, and also said that he had felt isolated and unwanted throughout his formative years, both in the home and the school environment.[80] The respondent said that he attended several different schools and was often bullied by his peers. The facilitators noted that this increased his experiences of rejection and low self-esteem, while also causing him to develop an adversarial perception of the world.[81] It seems to me that the positive aspects in the respondent's upbringing were overwhelmed by the negative influences and experiences.
[80] Exhibit 3, p 2.
[81] Exhibit 3, p 2.
The facilitators also referred to the fact that the respondent's older male relatives had 'modelled' behaviour of perpetrating violence in response to perceived injustice. They expressed the opinion that this likely resulted in the respondent having a sense of entitlement regarding immediate gratification and satisfaction of his needs, with limited regard for others. The facilitators also referred to the respondent's use of alcohol and cannabis as a maladaptive coping strategy to manage adverse emotional experiences and experiences of boredom.[82]
[82] Exhibit 3, p 2.
The respondent said that the loss of several family members, to which I referred earlier in these reasons, affected his mental health, resulting in him feeling depressed with suicidal ideation.[83] He also described a dysfunctional intimate relationship with the victim of the grievous bodily harm offence.[84]
[83] Exhibit 3, p 2.
[84] Exhibit 3, p 2.
In formulating the issues that needed to be addressed, the facilitators of the programme expressed the opinion that:[85]
[The respondent's] risk of relapse and recidivism is perpetuated by his limited emotional awareness and self-efficacy regarding coping with adverse emotional experiences and feelings of perceived injustice. He additionally maintains a reliance on the use of substances and violence as a form of maladaptive coping. His emotional detachment and suppression increase his impulse tendencies and limits effective problem solving. Further, his entrenched victim stance and entitlement attitudes perpetuate his risk of relapse and recidivism, providing permission and justification for these behaviours.
[85] Exhibit 3, p 2.
Further, they noted that the respondent maintained a perception of institutionalisation and alienation from the wider community that impeded his willingness to seek help, and served as a barrier to facilitating a prosocial life. The respondent presented with limited protective strategies against relapse or future offending.[86]
[86] Exhibit 3, p 3.
The facilitators reported that the respondent attended at the pre-programme interview motivated to engage in the intervention, with willingness to discuss his alcohol use in the context of his violent offending, but an aversion to discussing his sexual offending. It appears he expressed concerns about that in the context that the programme was a mainstream programme, not specific to sex offenders.[87]
[87] Exhibit 3, p 3.
When Dr Riordan spoke with the facilitators, they described the respondent as a quiet and mostly respectful participant who relied heavily on the facilitators to prompt participation and reinforce his conceptual understanding of the programme contents.[88] This is consistent with their description in the Completion Report.[89] They observed that the respondent's internal motivation to participate in group activities vacillated.[90] They were of the view that, throughout the programme, the respondent lacked the confidence and motivation to apply the strategies he had learned either within the group or within the wider prison setting.[91]
[88] BOM 385 [13].
[89] Exhibit 3, p 3.
[90] BOM 385 [13].
[91] BOM 385 [13].
The Completion Report states that the respondent demonstrated increased insight into his alcohol use, but there were caveats.
The facilitators told Dr Riordan that the respondent was able to identify and explore his adverse childhood experiences in gaining an understanding of the factors that had resulted in his early substance use and had caused him to maintain such use over time.[92] He was said to have been able to link historical family-based stressors, particularly those pertaining to grief and loss, to his substance use.[93]
[92] BOM 385 [14].
[93] BOM 385 [14].
However, he fluctuated in his expressed intentions with respect to the use of alcohol and cannabis when in the community.[94] At times he appeared to be motivated to abstain from alcohol use entirely, while at other times it appeared he had an intention to engage in controlled alcohol use.[95] The Completion Report states that 'the respondent's insight and planning for future alcohol use were consistent with controlled use and harm minimisation, however demonstrated limitations regarding how he could implement and manage his goal in a safe manner.'[96] His strategies relied on external factors, rather than on internal coping.[97]
[94] BOM 385 [14].
[95] BOM 385 [14].
[96] Exhibit 3, p 4.
[97] Exhibit 3, p 4.
With respect to cannabis use, the facilitators noted that the respondent tended to minimise both his use of the substance and the need to abstain from using it in the future.[98]
[98] BOM 385 [14].
The facilitators noted that the respondent tended to speak vaguely about his current relationship with an intimate partner, at times referring to the woman as his ex-partner, and other times referring to her as his current partner. The facilitators considered that the respondent's decision to focus on prison-based relationships[99] limited the extent to which he could understand the factors that had contributed to his index offending (which, in context, is the offence of grievous bodily harm).[100]
[99] As will appear below, this is a reference to the fact that the relationship to which the respondent was referring commenced while he was in custody.
[100] BOM 385 [15].
The facilitators stated that the respondent appeared to have developed some mindfulness-based strategies to assist him to identify escalating conflict, manage his emotional state and walk away to prevent involvement in conflict.[101]
[101] BOM 385 [15].
On at least one occasion during the programme, the facilitators observed the respondent applying the skill of taking time out when experiencing emotional arousal.[102] However, when he subsequently returned to the programme and spoke to the facilitators about why he had left the group, his body language and stance were intimidating.[103] They noted that the stance only dissipated upon the respondent's needs being met.[104] The respondent subsequently withdrew from group activities, seemingly adopting a passive aggressive approach to the situation in the group-based setting. The facilitators noted that he appeared to lack awareness about his style and manner of communicating. They expressed concern that, if his needs were not met, his intimidatory behaviour would likely escalate further.[105]
[102] BOM 386 [16].
[103] BOM 386 [16].
[104] BOM 386 [16].
[105] BOM 386 [16].
The facilitators viewed the above incident as potentially paralleling offence behaviour. They hypothesised that if the respondent perceived that he was not being listened to, or was not having his needs met within an intimate relationship, his initial reaction may be to draw upon the use of intimidation, with little awareness of the impact that such behaviour has on those around him.[106]
[106] BOM 386 [16].
In a further reference to the occasions when the respondent felt unsettled by conflict within the group and took time out, the facilitators noted in the Completion Report:[107]
However, [the respondent] did demonstrate increased capacity to engaged (sic) in introspection after these occasions and recognised his response was associated with a perception of insecurity and helplessness. Though he demonstrated capacity to engage in perception checks and generate counters, there was limited evidence of his ability to do so in the present tense when experiencing heightened emotional arousal related to a triggering event.
[107] Exhibit 3, p 4.
In a similar vein, the Completion Report also noted that the respondent 'demonstrated an increased ability to recognise uncomfortable emotions, specifically shame and guilt, retrospectively … [h]owever he did not evidence an ability to recognise these emotions when experiencing them, hindering his ability to explore helpful coping strategies in the moment'.[108]
[108] Exhibit 3, p 4.
The respondent was able to develop a risk management plan towards the end of the programme. The facilitators said that due to interruptions and COVID-19, the plan he developed may have been rushed and less comprehensive than others developed in groups that had not had such disruptions.[109] The facilitators were of the opinion that the respondent lacked awareness of the presence of 'situational and contextual risk factors in his community for relapse into substance use'.[110] Instead, he proffered the view that his risk for alcohol use and reoffending would dissipate when residing with family, in community and on country.[111]
[109] BOM 386 [17].
[110] BOM 386 [17].
[111] BOM 386 [17].
He placed a heavy emphasis on occupying the role of a youth worker as part of his risk management plan, which showed a lack of awareness that he would be unable to hold such a position, given his history of sexual offending.[112]
[112] BOM 386 [18].
With respect to high risk situations, the respondent demonstrated limited ability to formulate and develop coping strategies that he could draw upon in the community.[113] While he was able to identify a range of activities that he found to be enjoyable, such as fishing, painting, drawing, reading and music, the manner in which he planned to engage in such activities would constitute a form of distraction, rather than a way to assist him to regulate his emotions.[114]
[113] BOM 386 [18].
[114] BOM 386 [18].
Overall, the facilitators were of the view that the respondent had made limited treatment gains from his participation in the Pathways Program. Further work was required in the areas of self-regulation, including increasing his repertoire of coping skills and developing insight and awareness into risk management and relapse prevention with respect to substance use. The facilitators noted in particular that the respondent lacked an understanding of the way in which substance use was likely to exacerbate other risk factors for reoffending.[115]

The respondent's account of treatment progress

Dr Riordan

[115] BOM 387 [19].

When interviewed by Dr Riordan, the respondent said that, throughout the programme, he had learned the importance of expressing his thoughts and feelings, and engaging in open communication.[116] He said that he valued learning from the experiences of the other men in the group, felt that he was able to offer valuable information and experience to assist others, and felt well-supported by the other participants and the facilitators.[117]
[116] BOM 389 [26].
[117] BOM 389 [26].
He discussed one incident in which he 'took a chance' to contribute in the group but was ignored by the facilitator when he attempted to share his thoughts. He said that this induced in him a strong emotional reaction, in that he felt a strong sense of injustice that triggered feelings of anger. He said that he managed that situation by seeking a time out.[118] This would appear to correlate with the incident referred to by the facilitators.
[118] BOM 389 [27].
Upon reflection, the respondent acknowledged that his feelings of anger from that experience took some time to dissipate, and that he withdrew from contributing to the group as he 'didn't want to look at them'.[119] The respondent said that it took him three to four days to regulate his emotional state and return to contributing to the group. Despite the length of time he had taken to regulate his emotional state, the respondent provided that example to illustrate that he had made treatment gains in emotional regulation. He explained that when he was younger, similar incidents would have resulted in a more explosive emotional and behavioural reaction.[120]
[119] BOM 389 [27].
[120] BOM 389 [27].
Although the example might be thought to suggest an overestimation by the respondent of his treatment gains, it seems to me that his capacity to relate that example, which was also referred to by the facilitators, shows some progress in his insight into his need for emotional regulation. It also suggests that, on that occasion, at least, he was able to recognise a problematic emotional reaction in the moment, even if he was not able to use any strategy other than walking away to deal with it. That view is supported by Ms Ballantyne's assessment when she discussed the same incident with him. It is convenient to deal with that aspect of Ms Ballantyne's report here.
Ms Ballantyne said that the respondent 'reported an intensity of emotion that was disproportionate to the context and circumstances he described, but his perception [was] that he had managed those feelings more constructively than he would have in the past'.[121] The respondent 'claimed that he approached facilitators during a break and explained the reason for his changed demeanour, but acknowledged that he remained sufficiently angry that he was unable or unprepared to discuss his response with the group when encouraged to do so'.[122] Although that was not entirely consistent with the version of events provided by the facilitators, it was an acknowledgement that he continued to be angry and would not engage. Ms Ballantyne wrote that, with respect to the respondent's progress with individual counselling, 'this incident is noted as an example of his capacity to identify and reflect on contemporary examples of emotionally salient interactions and automatic thinking of relevance to his interpersonal functioning'.[123]
[121] BOM 379 [18].
[122] BOM 379 [18].
[123] BOM 379 [18].

Prior to the hearing on 21 October 2022, Uniting WA had identified a potential issue in respect of the lease, stemming from their interpretation of a clause to the effect that if the property is vacant for 28 days, it can be considered by the lessor to be abandoned and the tenancy could be forfeited.[273] Uniting WA considered that the term required a tenant to be physically occupying the premises within that period. The property had been ready for occupation from 17 September 2022, and the period of 28 days from that date expired on 18 October 2022. It is not necessary or appropriate for the Court to comment on that issue. The real estate agent had not given any indication to Uniting WA that the property might be considered to be abandoned. However, the issue had caused COMU to consider whether it would be practically feasible to implement the supervision order within a short period of time to enable the respondent to be released promptly if a supervision order is made. I will return to this issue below when discussing the commencement date of a supervision order.
[273] Exhibit 7; ts 215.

Community Supervision Assessment

Ms Cashmore's Community Assessment Report, dated 20 April 2022, dealt with a number of developments in the respondent's circumstances since the CDO was made. I have dealt with a number of them under various headings above, including Accommodation. The following outline deals with some further matters in the report, including the proposed conditions of a supervision order.

Cultural supports

Although the respondent did not have any cultural supports within the metropolitan area known to him, Ms Cashmore identified three culturally appropriate support organisations that may assist in reducing the respondent's disconnection from country and culture if released in Perth. It is sufficient to note that they were in various locations and included a men's group, an organisation that facilitates workshops and craft groups, in addition to bush tucker gardening throughout the year, and an organisation that runs a weekly meeting attended by Elders and facilitates cultural events and community-based activities throughout the year. The respondent confirmed with Ms Cashmore that he would like to engage with the community supports that were identified. Whilst the services do not cater specifically to the respondent's 'mob', he expressed interest in learning about Noongar culture and language.

Uniting WA

In addition to accommodation, Uniting WA provides reintegration support during the first two years the person is in the community, post release. In the event the respondent is released on a supervision order, the following support will be available:
(1)Practical support such as initial transport to mandatory appointments, as well as assisting with using public transport.
(2)Informal guidance with respect to decision making processes.
(3)Life skills training.
(4)Referrals to long-term community supports.
(5)Linking the respondent to appropriate recreational activities.

Employment

The respondent currently does not have employment available to him in the community, so he will initially be in receipt of Centrelink payments. However, he has consistently expressed a willingness and motivation to obtain employment upon release.

Strategies to manage offending behaviour

Ms Cashmore proposed conditions for a supervision order that substantially reflected the terms of the supervision order annexed to these reasons. Ms Cashmore provided the following explanations for some of the conditions, the first of which is mandatory.

Monitoring

If released on a supervision order, the respondent would be subject to Global Positioning System (GPS) monitoring. Ms Cashmore noted that GPS monitoring can be utilised to monitor and prohibit the respondent's attendance at high-risk locations.[274]
[274] BOM 368.
The proposed conditions include a requirement that the respondent maintain a diary. Dr Wynn Owen confirmed his support for such a condition. Ms Cashmore said that this would require the respondent to record information of his daily activities and associations, as well as providing structure to the respondent's life and assisting him with planning. The respondent has confirmed that his written skills are at a level where this condition is appropriate.[275]

Entering residences and vehicles

[275] BOM 368.

In light of the respondent's offending history, COMU has proposed conditions restricting him from entering residential addresses where females reside or vehicles where a female may be alone. Although the respondent's offending did not involve vehicles, the extension of the condition to vehicles is a cautionary approach to avoid situations in which the respondent might be alone with a woman in a vehicle in a high risk situation. Dr Wynn Owen supported this condition, but was of the view that discretion should be given to the supervising CCO, so that, with sustained compliance, the respondent could be afforded the opportunity to demonstrate his ability to self-manage his risk in such circumstances.[276]

Contact with children

[276] BOM 369.

Given the respondent's offending history, COMU proposed a condition precluding the respondent from having any contact with children. Ms Cashmore explained in her report:
It is noted that the [Community Protection (Offender Reporting) Act 2004 (WA)] requires an individual to report 'the names and ages of any children who generally reside in your household or the details of any children with whom you have regular unsupervised contact'. Individuals are required to report any changes to this information within 24 hours of that change taking place and as such, individuals do not require prior approval or supervision by an approved adult in order to have contact with children. For this reason, conditions precluding [the respondent] from having 'contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or electronic means ...' have been proposed. Additionally, it is recommended that any approved contact with a child be supervised at all times by an adult approved in advance by a CCO
Although Dr Wynn Owen has not diagnosed the respondent with paedophilic disorder, much of his offending has been against girls under the age of 16 years, including girls under the age of 13 years. Whether his choice of those victims was because of a deviant interest in female children, or because he considered them vulnerable targets he could overcome or manipulate, would not seem to matter in assessing the appropriateness of these conditions. In fact, Dr Wynn Owen confirmed to Ms Cashmore his support for these conditions, but noted that the respondent should be afforded the opportunity to self-manage after a period, if he has demonstrated consistent compliance.[277]

Alcohol and substance use

[277] BOM 369.

The proposed conditions include conditions that prohibit the use of alcohol and illicit drugs, prevent behaviours that might lead to such use, and allow for monitoring to detect substance use. Accordingly, the conditions include: provision for urinalysis testing; restrictions preventing the respondent from attending licensed premises; prohibitions preventing the consumption of alcohol or use of drugs; and restrictions on being in company with any individual under the influence of alcohol or illicit substances.[278]

Review of electronic devices

[278] BOM 369.

COMU proposed conditions relating to the respondent's use of electronic devices, allowing the police or his CCO to inspect the contents of his devices and preventing deletion of data. I note that such conditions are often included in supervision orders because an offender's use of electronic devices may reveal risk-laden behaviours, whether by way of accessing material that indicates thought processes related to the offender's prior serious offending, seeking out illicit substances, or other similar behaviours. There is no evidence that the respondent previously used electronic devices in such circumstances, but his reintegration into the community may well involve him having electronic devices for a variety of legitimate purposes. According to Ms Cashmore, Dr Wynn Owen gave qualified support for such conditions, explaining that a condition that permits COMU and the police to review the respondent's electronic devices should only be utilised in the event that he destabilises, becomes uncooperative or lacks transparency with respect to his peer associations and daily activities.[279]

Curfew

[279] BOM 370.

COMU proposed a curfew condition to assist in providing the respondent with stability and structure, in addition to limiting his access to high-risk situations. Ms Cashmore noted that this condition should be flexible, in that it should allow the respondent's CCO to alter or remove the curfew.

Interagency liaison and risk management

Ms Cashmore reported that, if the respondent is released on a supervision order, he would be subject to close monitoring and supervision by members of the Risk Management Team, including police officers from SOMS, CCOs, management staff from the Department of Justice, and Forensic Psychological Intervention Team Managers and Psychologists.[280] It is necessary and appropriate that the various agencies be able to share information to enable them to perform their roles effectively. Indeed, it is the integrated approach to supervision and monitoring that maximises the efficacy of a supervision order as a means of ensuring adequate protection of the community.
[280] BOM 370.
The risk management of the respondent would include regular and unscheduled home visits, liaison with community agencies, and regular review of his risk factor at Risk Management Meetings.[281]
[281] BOM 370.

Conclusions

In the course of outlining the evidence above, I have made a number of findings, which I incorporate into the following findings and conclusions. In arriving at my findings and conclusions, I have had regard to all of the matters referred to in s 7(3) of the HRSO Act.

Is the respondent a high risk serious offender?

The first question I must decide is whether the respondent remains a high risk serious offender. As I noted earlier, the respondent did not dispute that he does, but it is necessary nevertheless for me to be satisfied to a high degree of probability that he does.
Having regard to all of the evidence in these proceedings, I am satisfied that the findings made by Tottle J in relation to the respondent's propensity to commit serious offences, his pattern of offending and the harm that any future serious offending would cause to victims, were well-founded. I respectfully adopt those findings, set out at [89] to [92] above. The findings in respect of the respondent's pattern of offending correlate with the risk scenarios identified by Dr Wynn Owen in these proceedings.
I am satisfied also that the findings made by Tottle J in respect of the respondent's unmet treatment needs were well-founded, and that, at the time of the 2021 hearing the respondent did pose an unacceptable risk of committing a serious offence, both of a sexual and non-sexual violent type, if he was not subject to a restriction order. I am satisfied that it was necessary for the respondent to undergo treatment as specified by Tottle J to address the treatment needs identified by his Honour, especially in relation to the issue of emotional regulation, and to show treatment gains before his risk could be managed in the community.
Notwithstanding some hiccups along the way, the respondent has engaged well both in the group programme and individual psychological intervention during the review period, and the evidence I have outlined shows that he has made gains in relation to emotional regulation and other insights, particularly in relation to substance use. It is true that his skills in identifying inappropriate and risk-laden emotions and applying strategies to regulate such emotions have not always been demonstrated in the moment. It is also true that he has shown some vacillation in his motivation in respect of alcohol and illicit substance use. However, I am satisfied based on the evidence of Dr Wynn Owen in response to my queries at the hearing, outlined above, that these are matters that can be improved, consolidated, and managed by ongoing counselling, supervision, and monitoring.
However, there remain outstanding treatment needs, particularly in relation to issues underlying the respondent's sexual offending. Further, the respondent's gains in treatment have been in the highly regulated environment of a prison, and his insights and strategies have yet to be tested in the community. Having regard to the respondent's previous relapses and to Dr Wynn Owen's professional assessment, I am satisfied to a high degree of probability that the respondent presents a high risk of serious sexual and violent reoffending if he is not subject to some form of restriction in the community. That risk is unacceptable, in that the potential harm to a victim in the community would be significant and potentially enduring.
Further, I am satisfied that anything short of a restriction order, whether a CDO or the highly restrictive conditions of a supervision order as proposed, would not provide adequate protection of the community. The evidence satisfies me that the respondent requires a high level of supervision and monitoring and ongoing treatment if his risk is to be adequately managed.
In short, in the absence of a restriction order, there would be no adequate measure to sufficiently mitigate the unacceptable risk that the respondent would commit a serious offence.
Therefore, I am satisfied that the respondent remains a high risk serious offender.

Will a supervision order provide adequate protection of the community?

The question then is whether I should affirm the CDO or make a supervision order. If I am satisfied that a supervision order will provide adequate protection of the community, I should rescind the CDO and make a supervision order.
I cannot make a supervision order unless I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the order. I am so satisfied for the following reasons:
(1)Despite the respondent's past problems with supervision, as discussed above, and the fact that it remains a risk factor under the RSVP, I am satisfied that the respondent's changed behaviour during the review period, especially his much improved level of engagement with his CCO and his psychologist, suggest that he is motivated to comply with supervision and treatment requirements.
(2)The respondent's conduct in prison has been compliant and respectful. He has not incurred any adverse incidents.
(3)I am satisfied that the respondent is motivated to remain free of alcohol and illicit substances while on a supervision order. I am inclined to accept Dr Wynn Owen's assessment that the respondent's vacillation was likely to be in relation to life beyond a supervision order, and that is something that can be addressed in further counselling. There is no suggestion the respondent has used any substances during the review period, when it is known that the prison environment is no guarantee against such use. Further, he will be monitored for substance use, which should provide a significant deterrent to such use.
(4)The respondent has indicated an awareness of the obligations upon him and the restrictions to which he would be subject under a supervision order, and has indicated his willingness to comply.
(5)The respondent has demonstrated a degree of equanimity during a period when there was uncertainty and frustration about the availability of suitable accommodation and further counselling.
(6)The respondent appears to be appreciative of the support he has received during the review period and of the support he could expect to receive in the community.
In considering whether a supervision order will adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of the respondent and his care and treatment and to ensure adequate protection of victims of offences committed by the respondent.[282]
[282] HRSO Act s 30(5).
I am satisfied that the conditions that have been proposed, as set out in the annexure to these reasons, would provide adequate protection of the community against the respondent's unacceptable risk of serious offending, having regard to his specific risk factors. The conditions are comprehensive. They address the respondent's risk factors. They place onerous obligations on the respondent to report and provide information that will indicate whether he is at risk of relapsing into behaviours that may lead to serious offending. They include a suite of external constraints and monitoring measures that will allow the authorities to monitor him closely, and which have proved to be effective in such cases in the past. They also ensure the respondent will continue to receive treatment in the community to address outstanding issues relevant to his risk. The conditions allow for the early detection of issues that may put the respondent at risk, such that contravention of the 'early detection' conditions would likely result in the respondent being brought back before the court in contravention proceedings.
I am satisfied that the conditions are reasonable and do not go beyond what is necessary to ensure adequate protection of the community.
I am satisfied, on the basis of Dr Wynn Owen's evidence outlined above, in conjunction with the evidence in respect of the respondent's psychological treatment and the Community Supervision Assessment, that the respondent is motivated to comply and is likely to comply with the conditions. He understands that if he does not comply, he is at risk of returning to detention, if contravention proceedings are brought.
He has presented to persons involved in assessing and supervising him in this review as a changed man. Although he continues to present an unacceptable risk of committing a serious offence, the change in the respondent is commendable and provides me with confidence that he will comply more broadly with the supervision order, not just the standard conditions.
I am satisfied that, notwithstanding the respondent's outstanding treatment needs, and the fact that it would have been desirable for some of the sexual offending treatment to occur before his release into the community, his current circumstances warrant that he be given the opportunity to further his progression in the community under supervision.
Accordingly, I should rescind the CDO and make a supervision order.

Duration of supervision order

Dr Wynn Owen considered that a period of between five and six years would be necessary to enable the benefits of psychological counselling to take effect with the goal of reducing the respondent's risk of sexual reoffending to an acceptable level without restrictions.
Under s 36 of the HRSO Act, the State may apply for a restriction order in relation to an offender who is subject to a supervision order that is to expire within one year. There is provision, therefore, for the State to apply for a further supervision order if, approaching the end of the supervision order I make, there is evidence that the respondent's risk is still at a level where there is a need for a further period of restriction to provide adequate protection of the community.
I am satisfied, on the evidence of Dr Wynn Owen that the timeframe for supervision to adequately protect the community should be at least five years. I am satisfied that is the appropriate period for which the respondent should be subject to the supervision order, and the respondent's circumstances can be reviewed by the authorities in the final year of that period to determine whether a further order is necessary.

Commencement date

Section 27(3) of the HRSO Act provides that the date from which a supervision order has effect must not be earlier than 21 days after the date the order is made, unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
At the hearing on 21 October 2022, Ms Goode gave evidence that from the perspective of COMU, it would be practically feasible to implement the supervision order from 31 October 2022. The accommodation is ready for the respondent to move in, and, as I indicated earlier, there is a perception on the part of Uniting WA of a pressing need to have the respondent occupy the premises as soon as possible. The date for delivery of judgment in this matter was vacated and relisted later in the week for practical reasons. At the time I was to deliver judgment, I was informed by counsel for the applicant that the commencement date would now need to be pushed back to 2 November 2022 in order for it to be practically feasible to implement a supervision order.
Ms Goode gave evidence that WA Police had indicated that it would not be practically feasible for that agency to implement the administrative measures necessary under the Community Protection (Offender Reporting) Act 2004 (WA) in relation to publication of the respondent's details on the Community Protection website. It is not necessary to consider that issue further. The orders I must make are under the HRSO Act. The issue of practical feasibility under the HRSO Act is concerned with the implementation of a supervision order, not the administrative steps that may need to be taken under the Community Protection (Offender Reporting) Act 2004. While I do not wish to diminish the importance of the processes under that Act, which provide an added layer for protection of the community, those measures are not necessary for the implementation of the supervision order, which, in my opinion, will provide adequate protection of the community until the administrative steps under the Community Protection (Offender Reporting) Act 2004 are complete.
I am satisfied by the evidence of Ms Goode that it is practically feasible for the supervision order to be implemented earlier than 21 days from the date the order is made, and, in light of the new information, that it is desirable for practical reasons that the order commence on 2 November 2022.

Suppression order

The applicant sought a suppression order with respect to the address of the property where the respondent will be residing upon his release on a supervision order. The order was sought at the request of the Department. The application was supported by the respondent. I am satisfied that a suppression order is appropriate for the following reasons, based on the applicant's submissions.
There have been incidents in the past in which persons dissatisfied with the release of an offender on a supervision order have attended that offender's residence in an inappropriate and intimidating manner and have harassed the offender or persons who are supervising or monitoring the offender. Such conduct has the potential to compromise the effectiveness of a supervision order to adequately ensure protection of the community from the offender's risk of serious reoffending. That might result from interference with the work of persons whose responsibility it is to supervise and monitor the offender, with the consequence that the effectiveness of their roles is reduced. It might result from the offender decompensating as a result of stress from the harassment or from knowing that his accommodation is compromised, causing an increase in the offender's risk. It can have the consequence of making even more difficult than already is the case the task of finding residential properties for use by persons released on supervision orders.
To the extent that persons in the vicinity of the relevant accommodation need to be informed of the respondent's circumstances, that can be addressed by COMU and WA Police. Otherwise, there is no pressing public interest in the community being aware of where the respondent is residing. The adequate protection of the community is ensured by the comprehensive conditions of the supervision order. To the extent that there is a public interest in the information being available, it is outweighed, in my opinion, by the need to ensure the orderly implementation of the supervision order as a step in the administration of the HRSO Act, which is concerned with protection of the community, not punishment of offenders who have already served the sentence imposed on them for their offending.
Accordingly, I will make a suppression order in respect of the address of the respondent's residence.
For the same reasons, I have decided that it is appropriate to anonymise the respondent's identity in these reasons, as was done in MAR [No 2].

Orders

Accordingly, I order that:
(1)The continuing detention order made by Tottle J on 14 April 2021 is to be taken to be rescinded from 2 November 2022.
(2)From 2 November 2022, when not in custody, the respondent is to be subject to conditions in the terms of the Supervision Order annexed to these reasons.
(3)The Supervision Order is to have effect for a period of five years from 2 November 2022.
(4)There is to be no publication of the address, including the suburb, to which the respondent will be released to reside. This order does not apply to communication by any representative of a party to these proceedings for the purpose of conducting the case or providing advice in respect of the case or by any person who is responsible for supervising the respondent if the communication is necessary for that purpose.

Addendum

After delivering my decision, it became apparent that there was a need to make a further non-publication order to avoid the anonymisation of the respondent's name in the decision being frustrated by publication of a report of the proceedings that used the respondent's name. Therefore, I made the following additional order:
(5)Until further order, no person shall publish or cause to be published in any newspaper other publication, or broadcast or cause to be broadcast by radio or television, or by any other electronic means a report of these proceedings containing the name of the respondent who is concerned in these proceedings.

Annexure

_________________________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 27 OCTOBER 2022

Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (HRSO Act), the Court makes a supervision order in relation to the Respondent (this Order), for a period of 5 years from 2 November 2022, on the following conditions:

You, MAR, must:

STANDARD CONDITIONS REQUIRED BY THE ACT

Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre within 48 hours of your release from custody subject to this Order, and advise the CCO of your current name and address.

Report to and receive visits from a CCO as directed by the court under this Order.
Notify a CCO of every change of your name, place of residence or place of employment at least 2 business days before the change happens.
Be under the supervision of a CCO, which includes, complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32 of the HRSO Act).
Not leave or stay out of the State of Western Australia without the permission of a CCO.
Not commit a serious offence as defined in section 5 of the HRSO Act during the period of this Order.
Be subject to electronic monitoring under section 31 of the HRSO Act.

Residence

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

Reporting to a CCO and supervision by a CCO

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

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

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

Attendance at programs or treatment

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.

Attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO.

Reporting to WA Police

Report to the Officer-in-Charge of the High Risk Serious Offender team at the 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 High Risk Serious Offender team or his/her delegate.

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

If requested, permit Police Officers to enter and search your person, 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 Officers believes to contravene the conditions of the Order.

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

Disclosure/Exchange of Information

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

Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate to disclose to them confidential information including your offending history.

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your sexual and violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.

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

Report to the CCO and WA Police any direct or indirect contact with the victims of your offending (including sexual offending) on the next working day you report to the CCO or Police.

Criminal conduct

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

Not commit an offence under s202, s203, s204 Criminal Code 1913 (WA) or s17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021.

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

Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.

Curfew

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 you approved address as directed by a CCO from time to time.

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

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

Prevention of high-risk situations

With the exception of public transport, not to enter in or on any vehicle, including taxis and rideshare vehicles such as but not limited exclusively to Uber, where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by the CCO.

Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO.

Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO.

Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person.

As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

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

Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.

Provide a valid sample pursuant to Condition 36.

Not purchase, or possess, or consume or use alcohol.

Not to go, enter any part of your body inside, or remain at any licensed premises unless permitted or required to do so for the following reasons:

a.For the purpose of averting or minimising a serious risk of death or injury to yourself or another person.
b.For a purpose, and duration approved in advance by a CCO.
c.On the order of a CCO or Police Officer.

Not remain in the presence of any person who is affected by alcohol or prohibited substances, or you ought to know are affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO.

Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence.

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 supervision at all times by an adult approved in advance by the CCO.
b.The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.

('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication)

Where any unsupervised contact with a child under the age of 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.

Provide the name, address, location and any details known by you, 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.

Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.

Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.

Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 46, without prior approval.

Enable device locking or password access of your computer, telecommunication and/or electronic devices; Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 46, or any online accounts, to any person other than a CCO or Police Officer.

Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses.

Not delete or otherwise remove 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.

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 upon request.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZB
Associate to the Honourable Justice Fiannaca
1 NOVEMBER 2022