The State of Western Australia v MBW [No 7]
[2020] WASC 404
•13 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MBW [No 7] [2020] WASC 404
CORAM: DERRICK J
HEARD: 28 OCTOBER 2020
DELIVERED : 13 NOVEMBER 2020
FILE NO/S: DSO 20 of 2007
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MBW
Respondent
Catchwords:
Dangerous sexual offender - High risk serious offender - First 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- Whether respondent remains a high risk serious offender - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if respondent released on a supervision order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:
Community Protection (Offender Reporting) Act 2004 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | T Hager |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
[Suppressed]
GBT v The State of Western Australia [2019] WASCA 40
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v MBW [No 6] [2018] WASC 72
The State of Western Australia v Narkle [2019] WASC 404
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v Newland [2018] WASC 344
The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330
DERRICK J:
Introduction
On 20 May 2020 the applicant applied for the respondent's continuing detention order to be reviewed as soon as practicable after 26 October 2020 pursuant to s 29 and s 31 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) (the application).
The hearing of the application (the review hearing) took place before me on 28 October 2020.
For the reasons set out below I have decided that the respondent's continuing detention order must be affirmed.
The enactment of the High Risk Serious Offenders Act 2020 (WA)
On 9 July 2020 pt 1 of the High Risk Serious Offenders Act 2020 (WA) (the Act) came into operation.[1] Other parts of the Act relevant to the application came into operation on 26 August 2020 (the commencement day).[2] Upon the coming into operation of these other parts of the Act the DSO Act was repealed.[3] However, by virtue of s 124(1) of the Act, as the application had not been finally determined by the commencement day, the application continues and may be determined under the Act, and is taken to have been made under the provisions of the Act that correspond with s 29 and s 31 of the DSO Act. In addition, by virtue of s 124(2) of the Act the application may be continued by the Director of Public Prosecutions for Western Australia in the name of the applicant. Further, under s 125 of the Act, if an order made, or direction given, under the DSO Act is in effect on the commencement day, the order or direction continues in effect and is taken to have been made or given under the corresponding provision of the Act. The net result of these provisions of the Act is that:
1.the respondent's continuing detention order continues in effect and is taken to have been made under the Act; and
2.the application must now be treated as having been made pursuant to s 64 and s 66 of the Act and be determined under the provisions of the Act.
[1] Act, s 2(1)(a).
[2] The term 'commencement day' is defined for the purposes of the provisions contained in pt 10 of the Act (s 122 ‑ s 125) to mean 'the day on which this section comes into operation'. The 'day on which this section comes into operation' is, by virtue of proclamation, 26 August 2020: Act, s 2(1)(c).
[3] Act, s 123.
I will say more about the relevant provisions of the Act in due course. At this point it suffices to say that so far as the application is concerned the Act does not operate in any significantly different way to the DSO Act.
Background to the application - the proceedings under the DSO Act
On 27 March 2008 Jenkins J found that the respondent was a serious danger to the community within the meaning of s 7(1) of the DSO Act and made a continuing detention order in relation to him pursuant to s 17(1)(a) of the DSO Act.[4]
[4] [Suppressed].
On 16 June 2009 Hasluck J conducted the first annual review of the respondent's continuing detention order. On 18 June 2009 his Honour found that the respondent remained a serious danger to the community and, pursuant to s 33(2)(a) of the DSO Act, expressly declined to rescind the continuing detention order.[5]
[5] [Suppressed].
On 21 June 2010 Blaxell J conducted the second annual review of the respondent's continuing detention order. On 20 July 2010 his Honour found that the respondent remained a serious danger to the community, but that the community would be adequately protected if the respondent was released on a supervision order. Accordingly, his Honour rescinded the continuing detention order and released the respondent on a supervision order for a period of five years (the first supervision order) pursuant to s 33(2)(b) of the DSO Act.[6]
[6] [Suppressed].
During the period October 2010 through to December 2010 the respondent contravened the first supervision order on a number of occasions. The respondent's contraventions of the first supervision order were comprised, in essence, of the following:
1.Failing to disclose to the police that he had taken possession of a motor vehicle and an internet capable telephone;
2.Failing to report an intimate relationship to his community corrections officer (CCO) or the Sex Offender Management Squad (SOMS);
3.Possessing pornographic material;
4.Consuming alcohol; and
5.Communicating by text message with a sex worker.
The applicant commenced contravention proceedings under the DSO Act against the respondent for the above referred to contraventions of the first supervision order (the first contravention application). By the first contravention application the applicant applied for a continuing detention order to be made in relation to the respondent.
On 16 March 2011 McKechnie J, after hearing the first contravention application, rescinded the first supervision order and made a continuing detention order in relation to the respondent pursuant to s 23(1)(b) of the DSO Act.[7] In arriving at this conclusion McKechnie J said the following:[8]
The respondent seems to be an habitual liar [sic], which may have something to do with his elevated psychopathy scores. He seems to lie whenever it suits him to avoid his responsibilities under the supervision order and, as I say, he has breached it in a most serious way repeatedly over a considerable time.
The respondent needs to understand that it is not the responsibility of the Department of Corrective Services or the police Sexual Offender Management Squad to keep him out of trouble; that responsibility is fairly and squarely his, and there are consequences should he get himself into trouble.
In the end, however, I do not exercise my discretion to punish him but to decide whether there is an unacceptable risk that he would commit a serious sexual offence, with the paramount consideration being the need to ensure adequate protection of the community.
Having regard to his non‑compliance, his mendaciousness, which has continued beyond December, I am quite unable to be satisfied that the community would be adequately protected if he was to continue under a supervision order.
Having regard to his behaviour, I think it highly likely that he would continue to engage in risky behaviour, taking alcohol, using pornography, against a background where his libido has failed to be diminished. It is in fact a very unacceptable risk to the community that he would commit a serious sexual offence if he remains within the community.
[7] [Suppressed].
[8] [Suppressed].
On 27 March 2012 Commissioner Sleight conducted the first annual review of the continuing detention order made by McKechnie J. The review was conducted pursuant to s 29 and s 31 of the DSO Act. On the same date Commissioner Sleight rescinded the continuing detention order and placed the respondent on a supervision order for a period of seven years (the second supervision order) pursuant to s 33(2)(b) of the DSO Act.[9] Commissioner Sleight expressed his reasons for arriving at his conclusion as follows (citations omitted):[10]
Having considered all of the material, I am satisfied that the continuing detention order should be rescinded. In reaching this conclusion, I have taken into account that the paramount consideration is the need to ensure adequate protection of the community. However, this is not the only consideration. Other factors need to be taken into account. It is a matter of judgment, taking into account all considerations, as to what is adequate to protect the community.
In my view, it is not desirable for [the respondent] or for the community for [the respondent] to be held in custody for the rest of his life if conditions can be set to ensure that on release the community is adequately protected. Notwithstanding the risk of reoffending identified in the various reports considered by me, it must be taken into account that [the respondent] has not offended since 2000 and he is assessed as being well motivated to address his risk factors.
A significant change in his situation is that he is now using anti‑libidinal medication. Further, I believe that in view of his past breach of a supervision order, he is now likely to be subject to greater supervision to ensure his compliance and he will be more aware of the consequences if he does not comply.
Taking all factors into account, I consider that it is appropriate that I order that the continuing detention order be rescinded. There will be an order pursuant to s 33(2)(b) that [the respondent] be subject to conditions as set out in the minute of conditions dated 27 March 2012. The supervision order will apply until 26 March 2019 or further order of the court. I accept that the supervision order ought to be over this period for the reasons given by Dr Wynn Owen for not imposing a longer order.
[9] [Suppressed].
[10] [Suppressed].
During the period November 2012 to April 2013 the respondent was convicted of a number of offences of contravening the second supervision order contrary to s 40A(1) of the DSO Act. The contraventions were in the main alcohol use related, but also included failing to follow curfew conditions and being in possession of pornographic DVDs. The respondent received various penalties for the offences including a 12 month intensive supervision order (the ISO) and a 9 month term of imprisonment suspended for 12 months (the SIO).
On 12 March 2014 the respondent was convicted of two offences of contravening the second supervision order contrary to s 40A(1) of the DSO Act and one offence of failing to comply with his reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA). He committed these three offences in breach of the ISO and the SIO. In the end result he was sentenced to a total of 9 months imprisonment for not only the contravention offences for which he had been placed on the ISO and the SIO but also the three offences which he had committed in breach of these orders. He was made eligible for parole.
On 26 July 2014 the respondent was released on parole. On 11 December 2014 he completed his parole order satisfactorily.
On 25 June 2016 the respondent contravened the second supervision on four occasions. The contraventions were comprised of the respondent consuming alcohol, leaving his approved residence without his electronic personal identification device (transmitter), and exchanging text messages with sex workers. The contraventions were made the subject of four charges under s 40A(1) of the DSO Act. The respondent pleaded guilty to each of the four charges.
In addition, on 25 June 2016 the respondent contravened the second supervision order by committing a serious sexual offence of aggravated indecent assault (indecent assault offence). He pleaded guilty to the indecent assault offence.
On 1 September 2017 the respondent was sentenced to a term of 3 years and 4 months immediate imprisonment for the indecent assault offence. He was not made eligible for parole.
On 17 November 2017 the respondent was sentenced to a total of 3 months immediate imprisonment for the four contravention offences. The 3 months imprisonment was ordered to be served concurrently with the sentence of 3 years and 4 months imprisonment.
As a result of the respondent's four contraventions of the second supervision order on 25 June 2016 and his commission of the indecent assault offence, the applicant commenced contravention proceedings under the DSO Act against the respondent (the second contravention application). By the second contravention application, which was not opposed by the respondent, the applicant applied for a continuing detention order to be made in relation to the respondent.
On 1 March 2018 the second contravention application was heard by Corboy J. On 9 March 2018 Corboy J rescinded the second supervision order and made a continuing detention order in relation to the respondent pursuant to s 23(1)(b) of the DSO Act.[11] In expressing his reasons for coming to the conclusion that he did, Corboy J said the following:[12]
I am satisfied, applying the Briginshaw [(1938) 60 CLR 336] standard, that there is an unacceptable risk that the respondent would commit a serious sexual offence if a continuing detention order was not made having regard to all of the evidence presented by the State. In particular, I accept Dr Wojnarowska's opinions that:
(a)the risk of the respondent committing a serious sexual offence in the future is high;
(b)the respondent has derived little benefit from past psychological interventions due to his psychopathic personality traits and associated willingness to engage in deceptive and manipulative strategies in counselling.
I also accept Dr Wojnarowska's opinions on the causes of the respondent's risk of sexual reoffending. Understandably, her opinions reflect the circumstances of the respondent's offending, including the most recent sexual offence, as well as her expertise as a forensic psychiatrist.
Dr Wojnarowska's opinion concerning the failure of past psychological counselling to significantly ameliorate the risk of the respondent sexually reoffending is supported by Ms Hasson's report and opinions. Moreover, the respondent was involved in on-going counselling at the time that he committed the aggravated indecent assault in June 2016. However, neither counselling nor the requirements of the Supervision Order operated as sufficient protective mechanisms to prevent the respondent from committing a serious sexual offence (nor in engaging in risky behaviour in the period immediately prior to the offence).
Dr Wojnarowska's opinions, and the most recent sexual offence committed by the respondent, strongly suggest that the factors contributing his risk of sexual offending are entrenched. They are likely to remain difficult to treat unless he is able to moderate the personality traits that condition his egocentric approach to counselling. However, he has demonstrated some capacity for control and it may be that, in the future, a combination of anti‑libidinal medication, close supervision and intensive counselling could provide sufficient protection for the community. At present, the risk of the respondent committing a serious sexual offence if a continuing detention order was not made is, in my view, unacceptable.
[11] The State of Western Australia v MBW [No 6] [2018] WASC 72.
[12] The State of Western Australia v MBW [No 6] [33] ‑ [36].
Evidence on the application
At the review hearing the applicant tendered, without objection, a Book of Materials dated 15 October 2020.[13] The Book of Materials contained historical information and past reports relating to the respondent as well as the following reports prepared specifically for the purpose of the application:
1.An annual review report prepared by Dr Gosia Wojnarowska, consultant psychiatrist, dated 2 October 2020;
2.A Department of Justice (Department) High Risk Serious Offender Treatment Progress Report prepared by Dr Ben Bannister, Forensic Psychologist with the Department's Forensic Psychological Service (FPS), dated 5 October 2020; and
3.A Community Supervision Assessment Report prepared by Ms Emma Cashmore, Senior Community Corrections Officer (CCO) with the Department's Community Offender Monitoring Unit (COMU), dated 12 October 2020.[14]
[13] Exhibit 1.
[14] Dr Wojnarowska and Dr Bannister are 'qualified experts' as defined in s 3 of the Act. Their reports were prepared and obtained pursuant to s 67(1) of the Act and in accordance with s 74 of the Act.
At the review hearing the applicant also tendered without objection the following:
1.The notes of an assessment of the respondent carried out by consultant psychiatrist Dr Peter Wynn Owen on 13 October 2020 (in his capacity as a psychiatrist engaged by the State Forensic Mental Health Service);[15] and
2.A copy of an email exchange between Ms Kara Cassam, Team Leader, COMU, and Mr Brent Meertens, a Senior State Prosecutor employed within the Office of the Director of Public Prosecutions for Western Australia, which occurred on 26 and 27 October 2020 (Cassam email).[16]
[15] Exhibit 2.
[16] Exhibit 3.
At the review hearing Dr Wojnarowska, Dr Bannister and Ms Cashmore were called by the applicant to give supplementary oral evidence.
The respondent did not give or adduce any evidence at the review hearing.
Dr Wojnarowska was responsible for assessing the respondent for the purposes of, and provided evidence on, the initial application made in relation to the respondent under the DSO Act and the second contravention application.
Ms Cashmore is the respondent's CCO.
Relevant statutory provisions and applicable legal principles[17]
[17] This section of my reasons reproduces what I wrote in The State of Western Australia v Narrier [No 6] [2020] WASC 349 [29] ‑ [52].
I turn now to dealing in more detail with the provisions of the Act by reference to which the application must be determined as well as with the legal principles that are applicable to the determination of the application.
In relation to the applicable legal principles, in The State of Western Australia v ZSJ,[18] a case in which the State made an application under div 2 of the DSO Act but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):
As will emerge from the outline below of the statutory framework under the DSO Act and [the Act], the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General. The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'. He went on to say:
'In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].'
Whether or not that has been achieved remains to be seen upon analysis of the provisions. However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying [the Act], with appropriate adaptation in cases involving non-sexual offences.
[18] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].
I respectfully agree with Fiannaca J's observations. In my opinion the case law decided under the DSO Act in relation to applications for review of continuing detention orders remains relevant to the determination of such applications under the provisions of the Act. Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application under the Act will be cases that have been concerned with proceedings under the DSO Act.
Section 63 of the Act provides:
The purpose of this Part is to ensure that an offender's detention under a continuing detention order is regularly reviewed.[19]
[19] The respondent is an 'offender' for the purposes of the relevant provisions of the Act: Act, definition of 'offender' and 'serious offender under restriction' in s 3.
Section 64 of the Act provides:[20]
[20] The relevant date for the purposes of s 64(2)(a) and s 64(3) is 25 October 2020, the continuing detention order having commenced on 25 October 2019 upon the expiration of the sentence of 3 years and 4 months imprisonment imposed for the aggravated indecent assault offence committed by the respondent on 25 June 2016: ts 3.
Review - periodic
(1)While an offender is subject to a continuing detention order, the State may apply to the Supreme Court for the offender's detention under the order to be reviewed.
(2)The State must apply under subsection (1) so as to ensure that reviews are carried out -
(a)as soon as practicable after the end of the period of 1 year commencing when the offender is first in custody on a day on which the offender would not have been in custody had the continuing detention order not been made; and
(b)as soon as practicable after the end of the period of 2 years commencing when the detention was most recently reviewed under this section or section 65.
(3)The periods mentioned in subsection (2)(a) and (b) are extended by any period during which the offender is in custody serving a sentence of imprisonment.
Section 66 of the Act provides:
Dealing with application
(1)As soon as practicable after an application is made under section 64 or 65, the court must give directions for the hearing of the application.
(2)Subject to subsection (3), 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.
(3)The court may adjourn the hearing of the application, and the carrying out of the review, where good cause is shown.
Section 68 of the Act 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 definition of the term 'high risk serious offender' is contained in s 7(1) of the Act. Section 7(1) is in the following terms:
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.
The term 'restriction order' is defined in s 3 of the Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 respectively in similar terms to those that were used in the DSO Act.[21] Thus s 26 provides:
(1)In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.
(2)A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.
[21] Act, s 3.
Section 27 provides:
(1)In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.
(2)A supervision order has effect in accordance with its terms -
(a)from a date stated in the order; and
(b)for a period stated in the order.
(3)The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
As to the term 'serious offence' used in s 7(1), s 3 and s 5(1) of the Act provide that a 'serious offence' is an offence that 'is specified in Schedule 1 Division 1 of the Act', or 'is specified in Schedule 1 Division 2 and is committed in the circumstances indicated in relation to that offence in that Division'. Offences that were 'serious sexual offences' under the DSO Act come within the definition of a 'serious offence' under the Act because they are offences that are specified in sch 1 div 1 of the Act.
It follows from the definition of 'high risk serious offender' contained in s 7(1) 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 the offender will commit a serious offence.[22]
[22] The State of Western Australia v West [No 6] [2019] WASC 427 [21]; The State of Western Australia v ZSJ [44].
By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 68(1)(b) that the offender remains a high risk serious offender, it must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'. The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[23]
[23] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28]; The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability. A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk.[24] It is the necessity 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 that must be proved by acceptable and cogent evidence and to a high degree of probability.
[24] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
An unacceptable risk of the kind described in s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the offender offending, the type of offence the offender is likely to commit (if that can be predicted), the serious consequences for the victim if the offender commits a further offence and the serious consequences for the offender if a continuing detention order or supervision order is made.[25] That is, the court is required to consider whether, having regard to the likelihood of the offender offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the offender has already been punished for the offences they have committed, it is necessary in the interests of the community to ensure that they are subject to further control or detention.[26]
[25] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [2018] WASC 344[12]; GBT v The State of Western Australia [2019] WASCA 40[21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45].
[26] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63]; GBT v The State of Western Australia [21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45].
By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 68(1)(b) that the offender remains a high risk serious offender it must be satisfied that it is necessary to make a restriction order in relation to the offender to ensure the adequate protection of the community against the relevant risk. Moreover, by reason of s 68(2), if the court finds that the offender remains a high risk serious offender it is the need to ensure the adequate protection of the community that is to be the paramount consideration for the court in deciding whether to affirm the continuing detention order or to make a supervision order.
The use of the word 'adequate' in s 7(1) indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[27] In this regard I respectfully adopt the following statements of Beech J (as his Honour then was) in Director of Public Prosecutions (WA) v DAL [No 2] which, although made in relation to review proceedings under the DSO Act, are equally applicable to the operation of s 7(1) and s 68(2) of the Act:[28]
In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. The [DSO Act] does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[27] Director of Public Prosecutions (WA) v Williams [63] ‑ [64]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21]; The State of Western Australia v West [No 6] [26]; The State of Western Australia v ZSJ [51].
[28] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]. Also adopted in The State of Western Australia v Narkle [2019] WASC 404 [13] and The State of Western Australia v West [No 6] [26].
The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.[29]
[29] The State of Western Australia v Latimer [2006] WASC 235 [25]; Director of Public Prosecutions (WA) v Decke [15]; The State of Western Australia v Newland [22]; The State of Western Australia v West [No 6] [27]; The State of Western Australia v ZSJ [52].
Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.
Section 7(3) of the Act specifies the matters that the court must have regard to in deciding if an offender is a high risk serious offender for the purposes of s 7(1). The matters specified are substantially identical to the matters that the court was, by s 7(3) of the DSO Act, required to have regard to in deciding whether a person was a 'serious danger to the community' within the meaning of the DSO Act. The matters are as follows:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
By s 68(1)(b)(ii) of the Act, the power of the court to rescind the continuing detention order and make a supervision order is expressed to be subject to s 29. Section 29 relevantly provides:
(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 proof as to the matter described in subsection (1) is on the offender.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition that under s 30(2) of the Act must be included in the order. Section 30(2) of the Act specifies seven conditions that must be included in any supervision order.
Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions set out in s 30(2) before the court can make a supervision order in relation to them.
For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable, the attainment of the general object of the supervision order and the Act, namely the adequate protection of the community by management and mitigation of the risk that the offender will commit a serious offence.[30]
[30] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v Narrier [No 6] [51]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] ‑ [58].
As to the purpose of a review hearing under the Act, the following statements made by Hall J in The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5][31] in relation to the review process provided for under the DSO Act are apposite (footnotes omitted):
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending, rather it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be better managed in the community, then the continuing need for detention must be considered.
The risk of reoffending may change over time. It may be affected by age, health or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of the prison authorities to facilitate change by offering programs and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, merely a welfare check, rather they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. 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.
[31] The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359 [7] ‑ [11].
Value of expert evidence
Given the expert evidence adduced on the application, it is worth repeating the following statements made by Steytler P and Buss JA (as his Honour then was) in Director of Public Prosecutions (WA) v GTR:[32]
Although there is no doubt, under the Western Australian Act, that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.
[32] Director of Public Prosecutions (WA) v GTR [62].
Matters specified in s 7(3) of the Act
I turn to addressing the matters specified in s 7(3) of the Act.
The respondent's personal circumstances and antecedents - s 7(3)(g) and s 7(3)(j)
The respondent is 53 years old. He is married. His parents are deceased.
The respondent's main supports are his wife, his wife's daughter and his parents‑in‑law.
The respondent has two sisters with whom he has no contact.
The respondent has two children with whom he has no contact. He has not seen his children for approximately 20 years.
The respondent plans to return to live at his former address with his wife if he is released (the proposed residence). His wife is currently the sole occupant of the proposed residence. He also plans to engage in full time work as a bricklayer.
The respondent has a history of depression for which he is currently prescribed Sertraline (Selective Serotonin Reuptake Inhibitor). Sertraline is an antidepressant medication.
The respondent's history of serious offending - s 7(3)(g)
The respondent has a history of serious offending including serious sexual offending. It is his serious sexual offending that has resulted in him being detained pursuant to the provisions of the DSO Act.
The respondent's history of serious offending has been described in varying levels of detail in a number of this court's previous decisions relating to him. However, so far as the respondent's offending up until 2008 is concerned, it is sufficient to refer to the following summary given by Corboy J in The State of Western Australia v MBW [No 6]:[33]
(a)In October 1981, the respondent pleaded guilty to one count of attempted rape of a 9‑year‑old girl. He was armed with a knife which he used to threaten the victim. He was aged 14 at the time of his conviction.
(b)In October 1985, the respondent pleaded guilty to two counts of rape and one count of attempted sodomy. The offences occurred in March 1985. The total effective sentence imposed was 9 years 4 months' imprisonment, with the respondent required to serve a minimum of 5 years before being eligible for parole.
(c)In March 1994, the respondent pleaded guilty to one count of deprivation of liberty and five counts of sexual penetration without consent while armed with a dangerous weapon. The offences occurred in June 1993 and involved multiple sexual assaults on a prostitute. The total effective sentence imposed was 7 years 10 months' imprisonment, with the respondent being made eligible for parole.
(d)In March 1994, the respondent also pleaded guilty to one count of deprivation of liberty. The offence was committed in May 1992. The circumstances in which the offence was committed strongly suggested that it was a precursor to a sexual assault. The respondent was sentenced to 12 months' imprisonment cumulative on the sentences imposed for the offences committed in June 1993.
(e)In February 1999, the respondent pleaded guilty to one count of deprivation of liberty and one count of assault. The offences occurred in August 1998. Again, the circumstances in which the offences were committed strongly suggest that they were the precursor to a sexual assault. The respondent was sentenced to a term of imprisonment of 23 months, with a parole eligibility order.
(f)In March 2001, the respondent pleaded guilty to one count of sexual penetration without consent, aggravated by the victim suffering bodily harm in addition to the sexual assault. The [offence was] committed on 16 May 2000 and involved a sexual and other bodily assault on a prostitute. The total effective sentence imposed was 4 years 8 months' imprisonment, with a parole eligibility order.
(g)In September 2003, the respondent was found guilty of one count of sexual penetration without consent and one count of threatening to kill. The offences occurred on 13 May 2000 and involved a sexual assault and further threatened violence against a prostitute. The respondent was sentenced to 4 years' imprisonment to be served concurrently with the sentences imposed in respect of the other offences committed in May 2000.
[33] The State of Western Australia v MBW [No 6] [6].
As I have already mentioned, in September 2017 the respondent pleaded guilty to, and was sentenced for, the indecent assault offence. The victim was a member of the respondent's family (described as the respondent's stepdaughter-in-law because he is married to the victim's mother-in-law). In The State of Western Australia v MBW [No 6] Corboy J said the following in relation to the facts of the indecent assault offence and the stance taken by the respondent in relation to the offence at his sentencing hearing:[34]
The respondent went to the victim's house early in the evening of 25 June 2016, [suppressed]. The respondent then grabbed and overpowered the victim. He pulled down her pants and underwear and touched her on the inner thighs.
The victim managed to struggle free and rushed out of the house wearing only a singlet. She got help from a neighbour and contacted the police. The respondent was found by the police hiding near the victim's house.
The respondent denied at his sentencing hearing that he had intended to have sex with the victim. However, his denial was not accepted by the sentencing judge. His Honour stated:
'In all the circumstances, given also your drinking that day and your history of serious sexual offending, there is, in my view, no reasonable inference at all that could possibly support your view that you had no intention to have sex with her. The only reasonable inference on all of the evidence that's before me is that you did intend to have sex with her, whether she consented to it or not.
Fortunately she had the strength and the fortitude to stop you and to get away. But your intention, I find, beyond reasonable doubt was to have sex with the complainant ...'
Developments since the determination of the second contravention application including participation in rehabilitation programs - s 7(3)(e) and s 7(3)(f)
[34] The State of Western Australia v MBW [No 6] [9] ‑ [11].
The evidence tendered by the applicant reveals the following about the respondent's treatment, progress and conduct since 9 March 2018, the day on which Corboy J made the continuing detention order.
Behaviour in prison
The respondent generally follows prison rules and instructions. He is not considered to be a management concern. He is employed as a unit worker.
On 22 November 2019 the respondent was found in possession of a drug that had not been lawfully issued to him, namely buprenorphine. As a result the respondent was charged with an offence and found guilty.
Participation in programs
Prior to being designated a dangerous sexual offender in 2008, the respondent had completed three sex offender treatment programs while in prison, two community based maintenance programs and a period of individual counselling.
The respondent has not engaged in any programmatic intervention since he was returned to prison following his most recent offending.
Psychological intervention
Prior to his most recent offending the respondent, over a period of about four and a half years, participated in 81 individual counselling sessions with Mr David Summerton, FPS psychologist. The counselling was primarily directed at helping the respondent reintegrate into the community and maintain compliance with supervising authorities. The counselling also covered factors relating to general self-regulation, sexual preoccupation, sex as a maladaptive coping mechanism, substance use and rejection of supervision.
The last 18 months of the counselling that the respondent engaged in with Mr Summerton prior to his most recent offending occurred on a monthly basis. The respondent's presentation to Mr Summerton during this time gave no obvious indication that he would commit a further sexual offence. As a result Mr Summerton concluded that the respondent had omitted discussion of factors that revealed an increased risk of him reoffending.
Once the respondent was remanded in custody for the indecent assault offence his therapeutic contact with Mr Summerton ceased. This occurred so that the legal process would not be interfered with, and in order to avoid the possibility of Mr Summerton discussing with the respondent his alleged offending conduct prior to the respondent having been convicted of an offence in respect of that conduct.
The respondent did not recommence individual treatment with Mr Summerton until 20 April 2020. The respondent has participated in 12 one hour sessions with Mr Summerton on a fortnightly basis since 20 April 2020.
Although Mr Summerton did not recommence treatment sessions with the respondent until 20 April 2020, he did, prior to recommencing treatment, have some incidental contact with the respondent. During these incidental contacts the respondent expressed to Mr Summerton a sense of futility and questioned the utility of further counselling. The respondent also suggested to Mr Summerton during these incidental contacts that it would be difficult for him to talk candidly about his most recent offence. However, once the treatment sessions began in earnest the respondent expressed a motivation to re‑engage while maintaining an enduring hopelessness regarding the possibility of a positive outcome.
Given that the respondent had in the past engaged in significant counselling with him, Mr Summerton assumed for the purposes of the most recent course of counselling that the substantive work of addressing the respondent's offending had already occurred. Mr Summerton therefore focused on addressing matters that were mutually agreed to be relevant to the respondent's risk of further offending. This included an emphasis on risk management, adjustment to community living and the reliability of the respondent's self‑reporting.
During the counselling sessions the respondent indicated that he had difficulty understanding why he committed the indecent assault offence. He was, however, able to acknowledge that he felt disdain for the victim and a desire to demean her. The respondent did seek to cast doubt over the accuracy of the official record of the facts of the indecent assault offence. However, he conceded that he had a number of significant warning signs that he should have heeded at various stages prior to the incident the subject of the indecent assault offence.
Mr Summerton formed the opinion that there was some indication that the respondent's commission of the indecent assault offence represented an exciting counterpoint to the mundaneness of what had become a predictable lifestyle in the community, despite indications that he also appeared satisfied with the simplicity of his lifestyle in the community.
Overall Mr Summerton assessed the respondent as being motivated to participate in treatment despite his extensive prior involvement in treatment. He formed the view that the respondent appeared adequately open in addressing relevant issues. However, he also recognised that the questionable reliability of the respondent's self‑reporting remained relevant.
In Mr Summerton's view the respondent's understanding of the similarities of his past and most recent offending has not developed into substantial insight.
Reports prepared under s 74 and extent to which respondent cooperated in examinations - s 7(3)(a)
Dr Wojnarowska's evidence
Report
Dr Wojnarowska's report reveals the following.
Dr Wojnarowska interviewed the respondent on 19 September 2020.
The respondent's expressed attitude to the indecent assault offence has not changed since Dr Wojnarowska last interviewed him in 2018. The respondent reiterated to Dr Wojnarowska that he had experienced financial difficulties prior to the indecent assault offence and that this had caused relationship problems. He stated that he felt 'trapped' but denied that he was using alcohol or illicit substances to cope until the day of the indecent assault offence. He stated that when he learnt that the victim was considering entering the sex work industry due to financial difficulties he felt obliged to help her as he had many contacts. He admitted to engaging in some SMS exchanges with the victim and his contacts, but denied that these were sexually arousing. He denied any intention of sexually assaulting the victim, stating that he just wanted to take a photo of her and to embarrass her. He continued to express disparaging views of the victim calling her 'lazy' and 'unclean' and stated that he would therefore never have been sexually interested in her. He added that he now recognised that he should have had more tolerance and understanding for the victim and her predicament.
In relation to his earlier offences, the respondent told Dr Wojnarowska that he had been drinking heavily and going to raunchy shows. He told her that he was looking for sex when he approached prostitutes and that he never had any intention to hurt them. He was unable to explain what the triggers for his offending were. He admitted that he perceived prostitutes as a 'lesser female'.
The respondent told Dr Wojnarowska that his current sexual drive was 'very low, similar to when I was in the community on Androcur'. He asserted that his Sertraline medication had the same effect on his sexual drive as Androcur.
The respondent did not perceive himself as being a risk to the community. He expressed the belief that he would not relapse into drinking, but was unable to explain what had changed in this regard. He stated that he had been talking to his psychologist about his last offence and that he had learnt that he has problems with 'lazy and unclean people and didn't realise that [the victim] needed help because she lost her husband'.
When Dr Wojnarowska questioned the respondent about his past participation in the Sex Offender Treatment Program he said that he could not remember what he had learnt because 'it was a long time ago'. He agreed that he would benefit from continuing psychological treatment. He said that he would be willing to continue with counselling in the community but could not identify any treatment goals.
The respondent did not acknowledge to Dr Wojnarowska his deviant sexual arousal to illicit sex and violence.
When Dr Wojnarowska asked the respondent about his alcohol use, the respondent said that he knew he would have to stop drinking on release. He said that if released he would not be a danger because he would not put himself in the same position. He said that he would not reoffend immediately 'but later when I forget about prison conditions I may'.
Dr Wojnarowska's diagnostic formulation relating to the respondent has not changed since she assessed him for the second contravention application. In her opinion the respondent presents with Antisocial Personality Disorder and pronounced psychopathic traits. She also considers there to be a history of Alcohol Dependence with binge type drinking which is currently in remission.
Dr Wojnarowska undertook an assessment of the risk of the respondent committing further sexual offences. In carrying out this assessment she used an Actuarial Instrument, namely the Static‑99R, and a Structured Clinical Guide, namely the Risk Sexual Violence Protocol (RSVP).
Actuarial Instruments use mainly static (that is unchanging) risk factors. In contrast, Structured Clinical Guides use both static and dynamic risk factors. Structured Clinical Guides require clinicians to consider different factors which impact upon the assessment of risk.
In assessing the risk of the respondent committing further sexual offences Dr Wojnarowska also made use of the Hare Psychopathy Checklist‑Revised (Hare 1991 and 2002) (PCL‑R). She made use of this tool to assess the extent to which the respondent's personality structure conforms to the clinical construct of psychopathy. The score obtained on the use of the tool is an important component of other risk assessment tools.
The score obtained by the respondent on Static‑99R was seven which places him in the 'Level IVb - Well above average risk'. This indicates a predicted recidivism rate of 30.7% to 37% within five years and 42.8% to 52.3% within 10 years.
On the PCL‑R the respondent achieved a high score on interpersonal features of psychopathy such as a tendency to be manipulative, callous and exploitative, having a grandiose sense of self, and being impulsive, irresponsible and sensation seeking. On the antisocial behaviour facet the respondent's score was elevated due to his history of offending, supervision failure, poor adjustment and poor behavioural control. Persons in this range tend to lead persistent antisocial lifestyles with frequent and serious violations of social and legal expectations. In the respondent's case the elevation on this facet is consistent with an antisocial personality disorder diagnosis.
In making use of the RSVP Dr Wojnarowska identified the following factors as being present in the respondent's case, and as being relevant to the assessment of his risk of reoffending and also the extent of his manageability in the community:
1.Chronicity of violence;
2.Escalation of sexual violence: The respondent most recently offended while closely supervised and his victim was a family member;
3.Physical coercion in sexual violence;
4.Attitudes that support or condone sexual violence: The respondent has significant deficiencies in this area which are associated with his psychopathic personality, grandiose sense of self and self‑serving attitudes;
5.Extreme minimisation or denial of sexual violence (with respect to the indecent assault offence);
6.Problems with self‑awareness: The respondent has made no progress in this domain. The respondent has no appreciation of the factors that place him at risk of reoffending. He placed himself in several high risk situations on the day that he committed the indecent assault offence by agreeing to help the victim in her search for a sex worker job, and by then making contact with sex workers and sending sexually suggestive messages to the victim. The respondent also failed to recognise that he was becoming angry and continued to drink alcohol. The respondent made a decision to drive to the victim's house despite her changing her mind regarding the previous arrangements;
7.Sexual deviance;
8.Psychopathic personality disorder;
9.Problems with substance use: There is a well‑established diagnosis of alcohol dependence as evidenced by the pattern of use and the presence of intoxication during his past sexual offending;
10.Absence of non‑intimate relationships;
11.The presence of non‑sexual criminal activity: The respondent has a long history of non‑sexual criminal activity;
12.Problems with planning: The respondent has difficulty considering the consequences of his behaviour for himself and others. He is highly impulsive but has demonstrated some ability to plan and is of average intelligence; and
13.Problems with supervision: The respondent's personality style is not conducive to being compliant with his personal or other obligations. He has demonstrated persistent rule breaking behaviours within the community. It appears that despite having been managed closely in the community and having been punished for his breaches he failed to learn from these experiences.
In relation to the above referred to attitudes that support or condone sexual violence factor, Dr Wojnarowska considers the respondent to possess such attitudes because he is motivated to offend by his deviant sexual arousal to violence and as such has cognitive distortions which serve to rationalise his behaviour. She considers that he has a callous attitude and lacks empathy towards his victims.
As to the above referred to sexual deviance factor, Dr Wojnarowska considers this factor to be present because in her opinion the respondent, during the commission of the indecent assault offence, became sexually aroused thinking about prostituting the victim and then making contact with sex workers.
On balance, it is Dr Wojnarowska's opinion that the clinical analysis of risk factors as they relate specifically to the respondent as guided by the RSVP, indicates that his risk of sexual reoffending is high which is consistent with his Static‑99R score.
In Dr Wojnarowska's opinion, taking into consideration her clinical assessment of the respondent and her application of the Static‑99R, the PCL‑R and the RSVP, the respondent is at a high risk of sexual reoffending if not subject to a continuing detention order or a supervision order under the Act. In her opinion the respondent's risk of reoffending is associated with the presence of psychopathic traits, sexual deviance and substance use disorder. She considers that the respondent has made minimal progress in his treatment and has sexually reoffended while adequately supervised in the community.
In Dr Wojnarowska's opinion the protective factors, which mitigate the respondent's risk, include his community supports and willingness to engage with psychological counselling. However, she notes that the respondent's return to the proposed residence will be associated with the respondent having contact not only with the victim of his most recent offence but also with another young female (his step‑daughter) who reportedly trusts the respondent and believes that he is innocent of the indecent assault offence.
As to the respondent's 'risk scenario', in Dr Wojnarowska's view the respondent's risk scenario has not changed since her last assessment of him. In her view the respondent's pattern of offending suggests that if he were to reoffend his victim will be an adult stranger female or a sex worker. She considers that the respondent's indecent assault offence suggests that he may also offend against a female who is known to him. She considers that anger towards the victim will be the immediate trigger to the respondent offending and that he is likely to be frustrated at the time about his life circumstances. She considers that the respondent's sexual needs may not be fulfilled by his regular partner for a variety of reasons including his disinterest in her, and that he is then likely to withdraw into his fantasy world or initiate contact with sex workers either online or in person.
In Dr Wojnarowska's opinion the respondent is likely to stop his medication or his compliance may be erratic. She considers that he is not likely to disclose his medication cessation to his therapist or any person supervising him in the community. She considers that the respondent's reoffending would not have to occur in the presence of alcohol use but that he is more likely to act on his fantasies when intoxicated.
In Dr Wojnarowska's opinion the respondent's offending behaviour is driven by his deviant sexual drive (sexual occupation), and his self‑serving attitudes combined with impulsivity facilitated by disinhibition while intoxicated.
In relation to managing the respondent in the community, Dr Wojnarowska makes the following recommendations:
1.The respondent be subject to long‑term psychological treatment to address his emotional functioning, stress, sexual drive management, self‑awareness, self‑esteem and interpersonal functioning;
2.The respondent engage in drug and alcohol counselling (which remains a priority);
3.The respondent, taking into account his historical high sexual drive and high risk of sexual reoffending, should restart anti‑libidinal treatment as soon as possible;
4.Given the previous supervision order conditions were not sufficient to prevent the respondent from reoffending, an additional condition preventing the respondent from being alone with any female, including his step‑daughter, should be imposed; and
5.Any breaches of a supervision order related to alcohol use should be treated very seriously.
In relation to the third of the abovementioned recommendations, Dr Wojnarowska notes that the respondent is currently treated with Sertraline. However, she considers that the effectiveness of this medication as an anti‑libidinal treatment is difficult to estimate due to the respondent's lack of transparency. She considers that the respondent's reluctance to recommence Cyproterone (Androcur) is understandable given its side effects and complications, but that he should nonetheless restart anti‑libidinal treatment as soon as possible.
Oral evidence
In her oral evidence Dr Wojnarowska maintained the material views and opinions expressed by her in her report.
In her evidence‑in‑chief Dr Wojnarowska gave the following supplementary evidence.
There is not much difference between the respondent's presentation in 2018 and his current presentation.[35] The respondent still presents with some psychopathic traits.[36] He has a history of alcohol dependence which, due to his incarceration, is currently in remission.[37]
[35] ts 10.
[36] ts 10.
[37] ts 10.
Although the respondent does not achieve a score on the PCL-R which justifies a formal diagnosis of psychopathy, he presents with psychopathic traits.[38] These psychopathic traits will influence his ability to comply with treatment and possibly benefit from treatment.[39] They will also have a bearing on his management in the community.[40]
[38] ts 12.
[39] ts 12.
[40] ts 12.
The respondent's dynamic risk factors have not changed since she assessed him 2018.[41]
[41] ts 12.
The respondent consistently denies that his commission of the indecent assault offence was sexually motivated.[42]
[42] ts 12.
She perceives the respondent as having paraphilia.[43] The respondent's sexual arousal is associated with violence and prostitution.[44] The respondent's sexual deviance, constituted by his sexual arousal associated with violence and prostitution, is one of the two most important factors contributing to his risk of committing further sexual offences.[45] The other most important factor is his psychopathic personality.[46]
[43] ts 14.
[44] ts 14.
[45] ts 14.
[46] ts 14.
The respondent has a well‑established diagnosis of alcohol dependence.[47] There is evidence that he relapses in the community.[48] She therefore perceives alcohol dependence as still being a relevant risk factor.[49]
[47] ts 15.
[48] ts 15.
[49] ts 15.
The respondent's risk factor comprised of his problems with supervision obviously has a major impact on his manageability.[50]
[50] ts 16.
Although the respondent has a long history of engaging in individual counselling, she still thinks that there is some point in him continuing with this form of treatment because there is always a hope that he will make some further progress.[51] In addition, engagement with psychological counselling is another way of protecting the community in the sense that warning signs that the respondent could reoffend will hopefully be detected by the person who knows him best which will be his psychologist.[52]
[51] ts 16.
[52] ts 16.
She acknowledges that in 2016 Mr Summerton did not pick up any signs that the respondent was about to reoffend.[53] She is hopeful that the respondent will be more truthful and forthcoming in the future.[54]
[53] ts 16.
[54] ts 16.
When she assessed the respondent he was honest and forthcoming in relation to some matters.[55] However, she found him to be untruthful in relation to the indecent assault offence and the effect on him of anti‑libidinal medication.[56] The respondent told her that while he was engaging in anti‑libidinal treatment in the community his libido was higher than when the treatment was changed to antidepressant medication (which occurred approximately 12 months before he committed the indecent assault offence).[57] In her view, given her knowledge of anti‑libidinal medication, it is not possible that the respondent's libido was higher while he was on the anti‑libidinal medication.[58] Anti‑libidinal medications do lower levels of testosterone and consequently the levels of sexual desire.[59] She would say that although anything is possible, it is unlikely that the antidepressant medication Sertraline that the respondent has been taking has had the same effect on his libido as the anti‑libidinal medication Androcur which he was previously taking.[60]
[55] ts 17.
[56] ts 17.
[57] ts 17.
[58] ts 17.
[59] ts 17.
[60] ts 18.
The respondent's likely risk scenario is that he will become bored with his current life or sexual life, that he will start drinking alcohol and thinking about prostitutes, and that he will then approach sex workers.[61] The respondent's most recent offence also indicates that he is likely to offend against a female that is known to him.[62]
[61] ts 18.
[62] ts 18.
The respondent's wife and most of his family are supportive of him.[63] This is a protective factor.[64]
[63] ts 19.
[64] ts 19.
She does not have any concerns about the prospect of allowing the respondent to live at the proposed residence.[65] She is aware that the respondent's wife still maintains contact with her daughter‑in-law, the victim of the indecent assault offence.[66] She is aware that the respondent's wife is of the opinion that the respondent did not commit the indecent assault offence.[67] She does not perceive these matters to present as a major obstacle in the respondent returning to the proposed residence and to his wife.[68] She thinks that the respondent's relationship with his wife, and the fact that he has secure accommodation, is a protective factor.[69]
[65] ts 20.
[66] ts 20.
[67] ts 20.
[68] ts 20.
[69] ts 20.
She is aware that a young female, his stepdaughter, will be living in the vicinity of the respondent if he returns to live at the proposed residence.[70] This is why she recommends that the respondent should not be alone with any female except when his wife is present.[71]
[70] ts 20.
[71] ts 20.
Sertraline is used in the treatment of sex offenders because one of its side effects is a reduction of libido.[72] Although Sertraline is not a hormonal anti‑libidinal treatment it does have some impact on a person's libido.[73] However the extent of the impact of Sertraline on a person's libido is very difficult to measure because it does not actually lower testosterone.[74] Testosterone levels are directly associated with sexual drive.[75]
[72] ts 20.
[73] ts 20.
[74] ts 20 ‑ 21.
[75] ts 21.
Cyproterone is an anti‑testosterone medication which is frequently used in the treatment of sexual offenders with paraphilia.[76] In her opinion the recommencement by the respondent of anti‑libidinal treatment would significantly assist with managing his risk in the community because it would have an effect on his sexual preoccupation.[77]
[76] ts 21.
[77] ts 21.
She has discussed with Dr Wynn Owen his assessment of the respondent on 13 October 2020.[78] Dr Wynn Owen's position is that two of the three criteria for anti‑libidinal treatment are in the respondent's case fulfilled, specifically paraphilia and sexual preoccupation, and a good general state of health.[79] The only criteria which Dr Wynn Owen does not consider that the respondent meets is consent to treatment.[80]
[78] ts 22.
[79] ts 23.
[80] ts 23.
Despite the respondent's current refusal to recommence anti‑libidinal treatment, she continues to recommend that he does so in the hope that he will reconsider his position.[81] She considers that anti‑libidinal treatment is necessary to manage the respondent's sexual preoccupation.[82]
[81] ts 23.
[82] ts 23.
In her opinion as things currently stand the respondent's risk of reoffending is comparable to the risk that he posed to the community in 2016.[83]
[83] ts 24.
In her opinion if the respondent is to be released on a supervision order the order, given that the respondent is still only 53, should be for a period of 10 years.[84]
[84] ts 24.
In cross‑examination Dr Wojnarowska gave the following supplementary evidence.
She sees the use of anti‑libidinal medication by the respondent as a crucial factor in terms of his risk prevention.[85] If the respondent recommenced anti‑libidinal treatment her view would be that the risk that he poses to the community could be adequately managed by releasing him on a supervision order.[86] The anti‑libidinal medication would take effect within the first one to three months and one would expect to see a reduction of testosterone within that time.[87]
[85] ts 24.
[86] ts 29.
[87] ts 29.
Although the respondent has not made many gains from his ongoing counselling, he has made some gains.[88] The respondent now talks about his attitudes towards other people and specifically about the victim of the indecent assault offence.[89] He has started to recognise that even though he disliked certain characteristics about the victim this should not have translated to him treating her disrespectfully.[90] However, he continues to deny his sexual intent in committing the indecent assault offence.[91]
[88] ts 25 - 26.
[89] ts 26.
[90] ts 26.
[91] ts 26.
She has no issue with the suitability of the proposed residence as an address to which the respondent could be released to.[92] She agrees that the proposed residence is itself a protective factor in terms of it being a stable address with his wife.[93] The proposed residence would, in her view, reduce the risk of the respondent committing further offences.[94]
[92] ts 27.
[93] ts 27.
[94] ts 27.
In her opinion the key issues for the respondent are to start anti‑libidinal treatment and to continue with his psychological counselling.[95]
Dr Bannister's evidence
Report
[95] ts 29.
Dr Bannister's report reveals the following.
Dr Bannister interviewed and assessed the respondent on 22 September 2020. The respondent participated in the assessment well.
The respondent recalled that his treatment with Mr Summerton consisted primarily of finding similarities between the indecent assault offence and his earlier offences. The respondent said that some of the connections that he had been able to make were experiencing stress relating to finances and his reporting under the supervision order, alcohol use and avoidance of conflict. Nonetheless, the respondent said that he felt that he did not have a clear understanding of the motivation for his behaviour in committing the indecent assault offence. He said that he did not know why he chose to drink alcohol on the occasion of the indecent assault offence given that he had not consumed alcohol in the two years leading up to that time. He said that he was convinced that if he had not consumed alcohol he would probably have just verbally abused the victim and left.
The respondent was able to provide detail in regards to how his resentment towards the victim of the indecent assault offence might have built up over time.
The respondent also recalled that he had worked with Mr Summerton on his struggle to abide 'lazy, dirty people who don't help themselves'. He expressed the belief that his disdain for such individuals likely influenced his previous victim selection (outlining his preference to choose sex workers as his victims).
The respondent disputed that the victim's account of the indecent assault offence was entirely accurate. He expressed the belief that a lesser charge should have been laid against him because he 'only pulled her pants downs' and did not touch her body.
The respondent told Dr Bannister that the indecent assault offence was 'no longer an issue for [the victim]', and that she had begun to cohabit with a new partner and had moved away. He said that contact with her once he was released was 'unlikely', and that he would in any event agree to a restraining order being put in place.
The respondent told Dr Bannister that the treatment he had participated in over the past 12 years or so had assisted him not to offend for a number of years prior to committing his most recent offence. The respondent said that he found that he gained the most benefit from individually focused treatment. The respondent said that he believed a new issue that he had not discussed previously in detail was how to develop an increased awareness of how he viewed other people. He said that this incorporated improving his capacity for tolerating behaviours that he perceived as frustrating as well as making efforts to take the perspective of others. The respondent said that he had learned that he needed to become generally less egocentric, and to focus less on himself and more on those around him.
The respondent agreed that alcohol use and relapse prevention remained an outstanding treatment need.
The respondent also spoke to Dr Bannister about the issue of complacency being relevant for him. The respondent elucidated that on each occasion of being released from prison he had found it relatively straightforward to comply with supervision requirements as the deterrent effect of incarceration was in the forefront of his mind. However, he explained that as time progressed he had sometimes become 'over confident' and less likely to be motivated by the deterrence of prison, which in turn led to him breaching his supervision order. In response to being asked to reflect on the implications of this complacency in relation to his capacity to be successfully managed on a supervision order in the future, the respondent said, 'When things go pear‑shaped, I need to open up more, not be as fiercely independent, and seek help'.
In Dr Bannister's view the respondent has demonstrated motivation to engage in individual treatment despite articulating some hopelessness about his current circumstances. However, he considers that the respondent's ability to gain fully from treatment has likely been influenced both by persistent cognitive distortions in relation to his offending and a tendency to avoid admissions that paint him in a negative light. Nevertheless, in Dr Bannister's view, for the current assessment the respondent was able to articulate some insight into risk relevant factors as they pertained specifically to him and was able to make some links between his current and past offending. In Dr Bannister's view the respondent may benefit from making further advances in this regard, including deepening his understanding of the factors underpinning his offending behaviour.
In Dr Bannister's view it is arguably unreasonable to expect that the respondent will make further significant advances in his treatment gains if he has not already done so. He considers that the focus of intervention should therefore continue to be on the practical aspects of the respondent's risk management, and the range of outstanding criminogenic needs that relate directly to it. He considers these to include stress management, relapse prevention, perspective taking, emotion management and problem solving. He considers that it is important to recognise that specific responsivity factors may continue to impact on the respondent's capacity to make substantial treatment gains, such as his reported propensity for egocentricity and apparent focus on attempting to influence the perceptions others have of him.
Dr Bannister recommends that the respondent should continue his treatment with Mr Summerton. He considers that if the respondent is released on a supervision order he should continue regular contact with Mr Summerton in order to address outstanding treatment needs, consolidate emerging gains, and manage stressors related to his reintegration. He considers that if the respondent remains in prison on a continuing detention order, Mr Summerton should negotiate the frequency of contact and session content in collaboration with the respondent and proceed as clinically indicated.
Oral evidence
In his oral evidence Dr Bannister maintained the material views and opinions expressed by him in his report.
In his evidence‑in‑chief Dr Bannister gave the following supplementary evidence.
Prior to the 18 month period during which the respondent's counselling with Mr Summerton was occurring on a monthly basis, the counselling sessions were fortnightly.[96] The frequency of the counselling sessions was reduced because there were no more significant gains to be made in relation to dealing with the respondent's criminogenic issues.[97] The focus of the counselling shifted to 'maintenance'; to applying the skills that the respondent had hopefully learnt to that point.[98]
[96] ts 34.
[97] ts 34.
[98] ts 34.
Prior to the commission of the indecent assault offence the respondent did not, during his counselling with Mr Summerton, give any indication that he might be about to relapse into alcohol use or to reoffend.[99]
[99] ts 34.
Reliable self‑reporting is very important in the counselling process.[100] Reliable self‑reporting speaks to someone's meaningful engagement in counselling.[101] If the person who is engaged in counselling is not honest and forthcoming with their counsellor the counselling will not be as effective as it could be.[102]
[100] ts 34.
[101] ts 34.
[102] ts 34.
As I have previously indicated, by s 29(1) and s 29(2) of the Act I cannot make a supervision order unless the respondent has satisfied me on the balance of probabilities that he will substantially comply with the standard conditions of the order. Taking into account my above specified findings in combination with each other, and also taking into account the respondent's established and significant history of contravening supervision orders including the nature of his contraventions, I am not satisfied on the balance of probabilities that the respondent will substantially comply with at least the standard conditions of any supervision order specified in s 30(2)(d) and s 30(2)(f) of the Act. For this reason alone I am not persuaded that the respondent should be released on a supervision order.
Even if contrary to my above expressed conclusion the respondent has proved on the balance of probabilities that he would substantially comply with the standard conditions of a supervision order, I am not, bearing in mind that I am required to apply as the paramount consideration the need to ensure adequate protection of the community, satisfied that the community can at this point in time be adequately protected by releasing the respondent on the proposed supervision order. Taking into account all of my above specified findings in combination with each other, I am not satisfied that the community will be adequately protected if the respondent is released on a supervision order containing the conditions that are proposed. Releasing the respondent on a supervision order on the conditions proposed will not, in my view, reduce the risk of him committing further serious offences, specifically further serious sexual offences, to a level that is reasonably acceptable and that will ensure the adequate protection of the community.
There is one further issue that I need to deal with in this context.
At the review hearing the applicant submitted that a factor that supports a finding that the respondent cannot be released on a supervision order is that there is no suitable accommodation for him to be released to. In this regard the applicant pointed to the absence of available SAP housing for the respondent, and submitted that the proposed residence is not a suitable address for the respondent to be released to.
The applicant's submission that the proposed residence is not a suitable address for the respondent to be released to was put on two grounds. First, that if the respondent lived at the proposed address the respondent may encounter the victim of the indecent assault offence. Second, that if the respondent lived at the proposed address he would be in close proximity to the residence of the respondent's wife's grandchildren, this being a matter of concern because of the evidence of the alleged conduct of the respondent in 2010 towards the 13‑year‑old daughter of his former partner.
The applicant's submission made in relation to the suitability of the proposed residence was not supported by the evidence of Dr Wojnarowska. As I have already indicated, Dr Wojnarowska's evidence, which it is not in dispute was given in full knowledge of the contents of Ms Cashmore's report and the information in the possession of the CPFS regarding the alleged incident in 2010, was that the proposed residence is suitable accommodation for the respondent in the event that he is released on a supervision order containing the proposed conditions (the proposed conditions including conditions precluding the respondent from having deliberate contact with victims, requiring him to immediately withdraw from any situation of inadvertent contact with victims, and precluding him from having contact with females, including females under the age of 18, without the prior approval of his CCO).
Further, with respect to the concern about the respondent living in close proximity to his wife's grandchildren, the concern is based on evidence of an allegation of 'inappropriate' behaviour made in 2010 by the respondent's former partner and mother of the child in question in circumstances where the child herself was not willing to be formally interviewed about the allegation. This being the case, and without in any way wishing to sound critical of a child who does not want to go through a police interview process, I do not consider that I can properly place any weight on the evidence of the allegation in assessing the suitability of the proposed residence. More specifically, I do not consider that the evidence provides a proper basis for me to conclude that the proposed residence is not suitable for the respondent to be released to because of its proximity to the respondent's wife's grandchildren. I note in this regard that when I canvassed this issue with the applicant's counsel, he conceded that it was difficult for me to place weight on the evidence of the alleged conduct.
In light of Dr Wojnarowska's evidence, and given what I have said about my inability to place any weight on the evidence of the alleged conduct of the respondent in 2010 towards his former partner's daughter, if I had come to the conclusion that the respondent could be released on a supervision order containing the conditions proposed by Ms Cashmore provided suitable accommodation was available, I would also have concluded that the proposed residence, while not ideal, was sufficiently suitable for the respondent to reside in under the conditions of the supervision order.
Decision
For the reasons I have stated I have decided, pursuant to s 68(1)(b)(i) of the Act, that the respondent's continuing detention order must be affirmed.
Recommendations for ongoing treatment and management
I turn finally to making some remarks relating to the respondent's ongoing management and treatment.
As pointed out by Dr Bannister, it is perhaps unreasonable to expect that the respondent will, after so many years of psychological intervention, make any further significant advances in his treatment gains. Nonetheless, and in accordance with Dr Bannister's recommendation, it is in my view important for the respondent to continue to engage in psychological treatment for the purpose of addressing his criminogenic factors (stress management, relapse prevention, perspective taking, management of emotions and problem solving) that relate directly to the risk of him committing further offences. Further psychological treatment should also address preparing the respondent for reintegration into the community.
The consumption of alcohol is a significant risk factor for the respondent. In my opinion the respondent must, if he is to be released, address this risk factor in a more substantive way than he has done to date. The respondent must develop a concrete strategy for minimising the risk of him relapsing into alcohol use on his release into the community. To this end the respondent should, in my view, consistently with the recommendation made by Dr Wojnarowska, engage in an appropriate alcohol use treatment program as a matter of priority.
Given the respondent's personality traits and past behaviour while under supervision in the community, I do not consider that his assertions about the effect of his current antidepressant medication on his sexual drive can be accepted as reliable. In my view the respondent should, given his historical high sexual drive and high risk of sexual reoffending, and in accordance with the recommendation of Dr Wojnarowska, recommence anti‑libidinal treatment. Of course, I recognise that the respondent cannot be forced to recommence anti‑libidinal treatment. The respondent is entitled to maintain his current stance. However, if he decides to do so he needs to appreciate that his decision may impact adversely on the prospects of him being released at the time of his next review.
Despite what I have said about the current suitability of the proposed residence, prior to the respondent's next review date all efforts should be made to secure suitable SAP housing for him. This will have the effect of ensuring that if at the time of the next review the court concludes that the respondent remains a high risk serious offender but can be released on a supervision order to a suitable residential address, any further concerns that may by that time have arisen in relation to the suitability of the proposed residence (assuming that his wife is still living at the proposed residence and it is still the respondent's plan to live at the proposed residence) will not present as an insuperable obstacle to him being released. The inquiry should be pursued early to avoid the almost inevitable failure of inquiries that are only made in the last month or two before a review.
ANNEXURE 1
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of the person's current name and address.
Report to and receive visits from a Community Corrections Officer as directed by the court.
Notify a Community Corrections Officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32).
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a serious offence during the period of the Order.
Be subject to electronic monitoring under section 31.
ADDITIONAL CONDITIONS
The following conditions incorporate the above standard conditions and are suggested to strengthen and add to the standard conditions required by the Act for the more effective management of the offender in the community.
Residence
Take up residence at [address] 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.
Not leave or remain out of the State of Western Australia without the permission of a Manager of the Department of Corrective Services and, if so permitted, abide by all conditions of such permission whilst absent from the state.
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.
Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of you.
Not commence or change voluntary, paid employment, or education without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any psychiatrist, psychologist, support service and/or support person nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO.
Reporting to WA Police
Report to the Officer‑in‑Charge of the Sex Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth, WA, 6000, or other police station if regional, within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of the Sex Offender Management Squad or his/her delegate.
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 residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order.
Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020.
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.
Disclosure/exchange of information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with victims
Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Corrective Services.
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 offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Report to a CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to that person or agency.
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204 Criminal Code 1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider.
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Medications/mental health
Undergo medical treatment, including antidepressant medication or hormonal anti‑libidinal treatment, as directed by the CCO in consultation with a medical practitioner or medical practitioners.
Comply fully with any treatment prescribed pursuant to condition 33 and all testing to monitor your compliance with medical treatment and/or anti‑libidinal treatment as directed by a CCO.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice.
Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease, undergoing pharmaceutical anti‑libidinal and or antidepressant medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.
Prevention of high risk situations
Provide a verbal or written account of your projected daily movements to your CCO and obtain prior approval of your projected movements, as and when directed by your CCO; with exception of the following circumstances:
a)To obtain urgent medical or dental treatment for yourself;
b)For the purpose of averting or minimising a serious risk of death or injury to the respondent or another person;
c)To obey an order issued under a written law (such as a summons) requiring your presence elsewhere;
d)At the direction of a CCO or Police Officer.
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and to present this diary to the CCO and Police Officer upon request.
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 any unsolicited interaction with females at your residential address to a CCO and the Sex Offender Management Squad at your next scheduled appointment.
With the exception of public transport, not enter in or on any vehicle with any female or 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 a CCO.
Have no contact with any female under the age of 18 years, whether such contact is in person, in writing, by telephone or be electronic means, unless
a)the contact is authorised in advance by the CCO; the CCO may determine that such contact be supervised at all times by an adult approved in advance by the CCO;
b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and a child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Not to possess or purchase or consume or use alcohol.
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.
To provide a valid sample for testing pursuant to condition 46.
Not go to 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 for a duration, approved in advance by a CCO;
c)On the order of a CCO or Police Officer.
Not remain in the presence of females who are affected by alcohol, or reasonably ought to know to be affected by alcohol, unless the identity of such person is approved in advance by the CCO.
Not remain in the presence of any person who you know to be affected by illicit substances, or reasonably ought to know to be affected by illicit 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.
Not enter the premises of, or access the services of, escort agencies or sex workers.
Not engage in any telephone communications with prostitutes or sex workers.
Not to attend adult sex shops without prior approval of a CCO and not to attend locations which facilitate adult entertainment, including but not limited to: stripping, lap-dancing and pole-dancing.
Not to be in possession of any pornographic material in either hard copy or digital form, or not to access or view pornography on the internet.
Report at the next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick16 NOVEMBER 2020
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