The State of Western Australia v MBW [No 8]
[2023] WASC 80
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MBW [No 8] [2023] WASC 80
CORAM: LUNDBERG J
HEARD: 31 JANUARY 2023
DELIVERED : 21 MARCH 2023
FILE NO/S: SO 20 of 2007
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MBW
The Respondent
Catchwords:
Criminal law - High risk serious offender - Second review of continuing detention order - Respondent has long history of sexually violent behaviour with alcohol use - Supervision orders made in 2010 and 2012 - Multiple contraventions of both regimes including by a serious offence of aggravated indecent assault in 2016 - Whether respondent remains a high risk serious offender - Whether Respondent can discharge onus to demonstrate that he will substantially comply with the standard conditions of a supervision order - Whether the continuing detention order should be affirmed or a supervision order made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr D S McDonnell |
| The Respondent | : | Mr T Hager |
Solicitors:
| Applicant | : | State Solicitor's Office |
| The Respondent | : | Geoffrey Miller Chambers |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158.
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393.
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307.
Director of Public Prosecutions (WA) v Hart [2019] WASC 4.
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107.
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178.
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297.
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312.
Garlett v The State of Western Australia [2022] HCA 30.
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412.
The State of Western Australia v Garlett [2021] WASC 387.
The State of Western Australia v Latimer [2006] WASC 235.
The State of Western Australia v MBW [No 6] [2018] WASC 72.
The State of Western Australia v MBW [No 7] [2020] WASC 404.
The State of Western Australia v Narrier [No 2] [2022] WASC 49.
The State of Western Australia v Newland [No 3] [2022] WASC 43.
The State of Western Australia v Patrick [No 4] [2020] WASC 48.
The State of Western Australia v Tomasovich [No 2] [2022] WASC 402.
The State of Western Australia v West [No 6] [2019] WASC 427.
The State of Western Australia v ZSJ [2020] WASC 330.
Table of Contents
A. Introduction and Summary
B. Statutory Framework and Relevant Principles
C. The Respondent’s Antecedents
History of serious offending between 1981 and 2008
Detention and supervision orders
First Continuing Detention Order
First Supervision Order
Contraventions of the First Supervision Order
Second Continuing Detention Order
Second Supervision Order
Contraventions of the Second Supervision Order
Aggravated indecent assault
Second Contravention Application
D. The First Review Application
E. Evidence on the Second Review Application
Introduction
Dr Wojnarowska – Forensic and Child Adolescent Psychiatrist
Dr Sarah Barbas – Senior Clinical and Forensic Psychologist
Mr Luke Carmichael – Senior Community Corrections Officer
F. Submissions
The State's Submissions
The Respondent's Submissions
G. Disposition
Findings
High risk serious offender
Substantial compliance with standard conditions of a supervision order
H. Orders
ANNEXURE A
LUNDBERG J:
A. Introduction and Summary
On 6 May 2022, the State of Western Australia applied for an order that the Respondent’s detention under the continuing detention order made by Corboy J on 9 March 2018[1] (CDO) be reviewed as soon as practicable after 14 November 2022 (Second Review Application). The Second Review Application was made pursuant to s 64(2)(a) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). Suppression orders have previously been made by this court in respect of the identity of the Respondent and the victims of his offences.[2]
[1] The State of Western Australia v MBW[No 6] [2018] WASC 72 (Corboy J).
[2] A suppression order for the Respondent’s name to appear as an alias was made on 15 October 2018. A further suppression order was made by Derrick J on 13 November 2020 to prohibit publication of the identity of the Respondent’s victims. Accordingly, where I would otherwise have included references to particular decisions of this court which relate to the Respondent, it has been necessary to omit them from these reasons.
This is the second of the periodic reviews required by virtue of s 64(2) HRSO Act. The first review was undertaken by Derrick J on 28 October 2020 (First Review Application), and his Honour delivered his reasons in relation thereto on 13 November 2020: The State of Western Australia v MBW [No 7] [2020] WASC 404.[3]
[3] I have been greatly assisted in the preparation of these reasons by the historical summaries prepared by both Corboy J and Derrick J for the purposes of their respective decisions.
Programming directions for the hearing of this Second Review Application were made by Derrick J on 21 June 2022. The hearing of that application took place before me on 31 January 2023. The State was represented by Mr D S McDonnell. Mr T Hager of Geoffrey Miller Chambers appeared for the Respondent.
At the hearing of the Second Review Application the State maintained the Respondent was a high risk serious offender within the meaning of the legislation and that the circumstances were such that the adequate protection of the community could not be assured by placing the Respondent on a supervision order pursuant to s 68(1)(b)(ii) HRSO Act (Supervision Order). Accordingly, the State positively sought an order that I affirm the CDO made by Corboy J pursuant to s 68(1)(b)(i) HRSO Act.[4] In support of its position, the State relied upon its detailed written submissions dated 24 January 2023 (the State’s Written Submissions).
[4] State’s Written Submissions [2], [12] and [190]; and ts 70 and ts 106.
That said, as will be seen, the expert evidence called on behalf of the State provided some support for the contention that the Respondent was capable of being 'managed' in the community under a Supervision Order. I will return to this aspect of the matter during the course of my reasons.
At that hearing, counsel for the Respondent conceded that the Respondent was capable of being characterised as a high risk serious offender pursuant to the HRSO Act.[5] However, counsel for the Respondent pressed for orders that I rescind the CDO made by the court and submitted that I should make a Supervision Order.[6]
[5] ts 74.
[6] ts 74.
As will be seen, the current round of review applications do not represent the first occasions on which the Respondent has intersected with the HRSO Act or its predecessor legislation. They are merely the most recent review applications. The Respondent was first made the subject of a CDO in March 2008 under the predecessor legislation,[7] and he has previously been the subject of two Supervision Orders - the first of five years’ duration and the second of seven years’ duration. Demonstrating the unusual nature of this particular matter, and of the Respondent's circumstances, both of those earlier Supervision Orders were rescinded by the court following contraventions of these orders by the Respondent.
[7] Dangerous Sexual Offenders Act 2006 (WA) (DSO Act),
For the reasons set out below, I have concluded that the State has discharged the onus which it carries on this application, but the Respondent has not. That is:
(a)The State has demonstrated, and I find, that the Respondent remains a high risk serious offender for the purposes of the HRSO Act, in the sense in which that term is defined in s 7(1) HRSO Act.
(b)The Respondent has not discharged his onus under s 29(1) HRSO Act to satisfy me, on the balance of probabilities, that he will substantially comply with the standard conditions which must be imposed on an offender under s 30(2) HRSO Act, in the manner required. Absent a positive finding in the Respondent’s favour in this regard, the limitation on the power to make a Supervision Order in s 29(1) HRSO Act precludes an outcome other than affirmation of the pre-existing CDO.
In any event, even if contrary to the above conclusion the Respondent had been able to demonstrate that he would substantially comply with the standard conditions of the Supervision Order, I cannot be satisfied at this point that the community would be adequately protected by releasing the Respondent to the community on the Supervision Order. In my view, in the circumstances of the Respondent's case, the level and nature of the risk that he would pose if released on the proposed Supervision Order (with all of its conditions) would not be reasonably acceptable viewed from the perspective of the protection of the community.
I have therefore concluded that the CDO made by Corboy J should be affirmed and I propose to order accordingly.
B. Statutory Framework and Relevant Principles
The following summary of the applicable principles are drawn from my decision in The State of Western Australia v JXK [No 3] [2023] WASC 23. I have also had regard to the principles extracted in the State’s Written Submissions at [14] – [37].
The principles that apply to a review of a CDO are well known. They have been set out in several decisions of this court and were summarised by Hall J in The State of Western Australia v Newland [No 3] [2022] WASC 43.
On a review of a CDO under the HRSO Act, the court has to consider, first, whether the person remains a high risk serious offender and, second, if so, whether the CDO should be affirmed or whether it should be rescinded and a supervision order made.[8]
[8] HRSO Act s 68.
Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if the court 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.
A 'restriction order' under s 7(1) HRSO Act means either a CDO or a Supervision Order.[9]
[9] HRSO Act s 3(1).
A 'serious offence' is an offence specified in sch 1 div 1 of the HRSO Act, or in sch 1 div 2 and committed in the circumstances set out in div 2 relation to that offence.[10] In relation to sexual offences, the offences set out in sch 1 div 1 include all offences formerly defined as 'serious sexual offences' under the DSO Act.
[10] HRSO Act s 3, s 5(1) and s 5(2).
Section 7(1) HRSO Act was analysed by Corboy J in The State of Western Australia v Garlett [2021] WASC 387. Corboy J held that the preferred interpretation of the section requires the court to undertake two separate evaluative assessments.
First, the court must be satisfied that a risk that an offender will commit a serious offence is unacceptable.
Second, the court must be satisfied that it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.[11]
[11] The State of Western Australia v Garlett [2021] WASC 387 [135] ‑ [138]. See also The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [19] ‑ [21]; and The State of Western Australia v Narrier [No 2] [2022] WASC 49 [23].
The State bears the onus of satisfying the court that an offender is a high risk serious offender.[12] The court has to be satisfied of these matters, pursuant to s 7(1) HRSO Act, by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt. It is otherwise incapable of further definition.[13]
[12] HRSO Act s 7(2).
[13] Director of Public Prosecutions (WA) v GTR[2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).
An ‘unacceptable risk’ is a risk that is not trivial or transient.[14]
[14] The State of Western Australia v Garlett [2021] WASC 387 [136(b)].
The court is required to undertake a balancing exercise, taking into account the matters listed in s 7(3) HRSO Act. In doing so, the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[15] It requires the court to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for the offender if an order is made under the HRSO Act.
[15] HRSO Act s 7(4).
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.[16] 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.
[16] The State of Western Australia v West [No 6] [2019] WASC 427 [24]; The State of Western Australia v ZSJ [2020] WASC 330 [47].
If the court is satisfied that the offender is a high risk serious offender, the remaining issue is whether it is appropriate to order a CDO or a Supervision Order.[17] A court cannot make a Supervision Order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order.[18] The standard conditions are those contained in s 30(2) HRSO Act and include reporting, supervision, electronic monitoring and that the offender will not commit a serious offence during the period of the order. The onus is on an offender to satisfy the court that he will substantially comply with the standard conditions.[19]
[17] HRSO Act s 68(1)(b).
[18] HRSO Act s 29(1).
[19] HRSO Act s 29(2).
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment, but rather for the ultimate purpose of protecting the community. The protective purpose of the HRSO Act was affirmed by the High Court in Garlett.[20] This requires the court to choose the order that is the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[21] In doing so, the court’s function is not to reduce this risk to zero.[22]
[20] Garlett v The State of Western Australia [2022] HCA 30 [45], [55] – [56] (Kiefel CJ, Keane and Steward JJ), but see the analysis of Edelman J on this issue at [247] – [255], describing continuing detention orders under the HRSO Act as 'protective punishment'.
[21] The State of Western Australia v Latimer [2006] WASC 235 [49].
[22] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].
The protective purpose of the HRSO Act is to be achieved not only by continuing to exercise control over the person the subject of an order, but also by providing care and treatment for the offender in the hope that the risk to the community will be reduced.[23]
[23] HRSO Act s 8(b). See also The State of Western Australia v Tomasovich [No 2] [2022] WASC 402 [38] (Curthoys J).
The HRSO Act mandates periodic reviews of a CDO.[24] This allows for the possibility of a change of circumstances. However, it does not follow from this that in conducting a review, the court is bound by the factual findings made at the previous hearing. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community.[25]
[24] HRSO Act s 64.
[25] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [51].
The risk of offending may be affected by age, health and the successful completion of treatment. If the offender is found to no longer be a high risk serious offender, the CDO must be rescinded.[26]
[26] HRSO Act s 68(1)(a)
If the offender remains a high risk serious offender, the court does not have a predisposition to affirm the CDO. In deciding whether to affirm the CDO or rescind the CDO and make a Supervision Order, the paramount consideration is the need to ensure adequate protection to the community.[27]
[27] HRSO Act s 68(2).
The level of risk posed by the respondent, and whether the community can be adequately protected against the risk under a Supervision Order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external constraints and obligations that can be put in place under a supervision order to mitigate the risk.
Whether the protection that can be afforded by a Supervision Order will be 'adequate' is a qualitative assessment. It is necessary to have regard to the nature of the risk, the likelihood of the risk being realised and the likely affect that the proposed Supervision Order could have in reducing or obviating that risk.[28]
[28] Director of Public Prosecutions (WA) v GTR [26] ‑ [27] (Steytler P & Buss JA) and Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] ‑ [65] (Wheeler JA)
Gains made by an offender in treatment and their behaviour while in custody will inform the assessment of the personal factors. Behavioural changes or improvements in management options may make a supervision order a viable possibility.[29] The availability of new technology or resources in the community is also relevant to the assessment of external factors. If the risk changes or resources improve, the need for the continuing detention of an offender may dissipate and continuing detention may become unjust.[30]
[29] The State of Western Australia v Newland [No 3] [2022] WASC 43 [23]. See also Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [18].
[30] Director of Public Prosecutions (WA) v Unwin [No 3] [18], cited with approval by Fiannaca J in Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158 [18].
C. The Respondent’s Antecedents
The Respondent’s criminal record, his association with the HRSO Act and its predecessor legislation, and his non-compliance with orders of this court, is extensive and extremely troubling.
As Derrick J observed on the First Review Application, the Respondent has a history of serious offending including serious sexual offending. It is his serious sexual offending that has resulted in the Respondent being detained pursuant to the provisions of the DSO Act and the HRSO Act.
History of serious offending between 1981 and 2008
The Respondent's history of serious offending over the period between 1981 and 2008 was described in some detail by Corboy J in The State of Western Australia v MBW [No 6].[31] I draw the following summary from his Honour’s decision.
[31] The State of Western Australia v MBW [No 6] [6].
The Respondent’s first record of serious offending arose in 1981, when the Respondent was himself a teenager. 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. The Respondent was aged 14 at the time of his conviction.
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.
After his release from custody, there was only a relatively short period of time before the Respondent re-engaged with serious sexual offending. The next offences occurred in May 1992 and June 1993, and were dealt with by the court in March 1994.
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. As will be seen, the Respondent has some history in committing serious offences in relation to prostitutes. The total effective sentence imposed was 7 years 10 months' imprisonment, with the respondent being made eligible for parole.
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.
Once again, after his release from custody and having served the sentences imposed in March 1994, the Respondent committed further serious offences.
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.
Again, only a short time after being released from custody, the Respondent committed further serious sexual offences against prostitutes, this time on 13 May 2000 and then 16 May 2000. One of these occasions involved the Respondent making a threat to kill.
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. This 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.
In September 2003, the Respondent was found guilty of one count of sexual penetration without consent and one count of threatening to kill. These 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.
The offences in May 2000 were not the last of the Respondent’s serious criminal offences. The Respondent has contravened the terms of supervision and other orders made by the courts and, more seriously, the Respondent was convicted of a serious sexual offence of aggravated indecent assault in September 2017, which took place in June 2016. I turn next to outline the Respondent’s interaction with the DSO Act and the HRSO Act regimes.
Detention and supervision orders
The Respondent was first made subject to a CDO in March 2008. Since that time, judges of this court have seen fit on at least two occasions, on the evidence before them, to rescind the CDO and impose Supervision Orders on the Respondent.
To be clear, though, the Respondent has not demonstrated an ability to remain in the community for lengthy periods without committing further serious offences or contravening the terms of a Supervision Order.
This type of conduct culminated in the imposition by Corboy J of the existing CDO in March 2018, which was affirmed by Derrick J in November 2020. The detail of the Respondent’s detention and release history under the DSO Act and the HRSO Act is set out below.
First Continuing Detention Order
On 27 March 2008, Jenkins J found that the Respondent was a serious danger to the community within the meaning of s 7(1) DSO Act and imposed a CDO in relation to him pursuant to s 17(1)(a) DSO Act.[32] These orders were made after the Respondent had served the term of imprisonment imposed upon him for the offences he committed in May 2000.
[32] [Suppressed].
On 16 June 2009, Hasluck J conducted the first annual review of the CDO. On 18 June 2009, his Honour found that the Respondent remained a serious danger to the community and, pursuant to s 33(2)(a) DSO Act, expressly declined to rescind the CDO.[33]
First Supervision Order
[33] [Suppressed].
On 21 June 2010, Blaxell J conducted the second annual review of the Respondent's CDO. On 20 July 2010, Blaxell J concluded 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 CDO and released the Respondent on a Supervision Order for a period of 5 years pursuant to s 33(2)(b) DSO Act.[34]
Contraventions of the First Supervision Order
[34] [Suppressed].
Between October 2010 and December 2010, the Respondent contravened the first supervision order on several occasions. The Respondent's contraventions included the following conduct:
(a)failing to disclose to the police that he had taken possession of a motor vehicle and an internet capable telephone;
(b)failing to report an intimate relationship to his community corrections officer or the Sex Offender Management Squad;
(c)possessing pornographic material;
(d)consuming alcohol; and
(e)communicating by text message with a sex worker.
The State then initiated contravention proceedings under the DSO Act against the Respondent for these contraventions and applied for a CDO to be made.
Second Continuing Detention Order
On 16 March 2011, McKechnie J heard the contravention application and made orders to rescind the first supervision order and impose a CDO in relation to the Respondent, pursuant to s 23(1)(b) DSO Act.[35]
[35] [Suppressed].
In making these orders, McKechnie J said the following:[36]
The respondent seems to be an habitual liar, 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.
Second Supervision Order
[36] [Suppressed].
On 27 March 2012, Commissioner Sleight conducted the first annual review of the CDO made by McKechnie J. The review was conducted pursuant to s 29 and s 31 DSO Act.
On the same date Commissioner Sleight rescinded the CDO and placed the respondent on a Supervision Order for a period of seven years pursuant to s 33(2)(b) DSO Act.[37] Commissioner Sleight expressed his reasons for arriving at his conclusion as follows:[38]
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. (footnotes omitted)
Contraventions of the Second Supervision Order
[37] [Suppressed].
[38] [Suppressed].
Within a short period of time, particularly in the context of the seven year Supervision Order upon which he had been placed, the Respondent once again engaged in activity which contravened the order.
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) DSO Act. The contraventions were largely alcohol 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 (which I will refer to as the Intensive Supervision Order) and a 9 month term of imprisonment which was suspended for 12 months (which I will refer to as the Suspended Imprisonment Order).
On 12 March 2014, the Respondent was convicted of two offences of contravening the second supervision order contrary to s 40A(1) DSO Act and one offence of failing to comply with his reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA). The Respondent committed these three offences in breach of the Intensive Supervision Order and the Suspended Imprisonment Order.
Ultimately, the Respondent was sentenced to a total of 9 months’ imprisonment for not only the contravention offences for which he had been placed on the Intensive Supervision Order and the Suspended Imprisonment Order but also the three offences which he had committed in breach of these orders. The Respondent was made eligible for parole.
On 26 July 2014, the Respondent was released on parole. On 11 December 2014, the Respondent completed his parole order satisfactorily.
On 25 June 2016, the Respondent contravened the second supervision on four occasions. The contraventions involved conduct on the part of the Respondent in consuming alcohol, leaving his approved residence without his electronic personal identification device, and exchanging text messages with sex workers. The Respondent pleaded guilty to each of the four charges under s 40A(1) DSO Act.
On 17 November 2017, the Respondent was sentenced to a total of 3 months' immediate imprisonment for the four contravention offences referred to above. The 3 months' imprisonment was ordered to be served concurrently with the sentence of 3 years and 4 months' imprisonment for the serious sexual assault which I have referred to below.
Aggravated indecent assault
As I have foreshadowed earlier, the Respondent committed a serious sexual offence of aggravated indecent assault in June 2016. This conduct also represented a contravention of the second supervision order.
The Respondent pleaded guilty to the assault offence in September 2017. I observe that the victim was a member of the Respondent's family. The victim is referred to as being the Respondent's stepdaughter-in-law given the Respondent is married to the victim's mother-in-law.
In The State of Western Australia v MBW [No 6], Corboy J outlined the facts of the indecent assault offence and summarised the position adopted by the Respondent at his sentencing hearing, which reflected a refusal by the Respondent to accept the seriousness of the offence and appears to highlight the continuing mendacity of the Respondent:[39]
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 ...'
[39] The State of Western Australia v MBW [No 6] [9] ‑ [11].
On 1 September 2017, the Respondent was sentenced to a term of 3 years and 4 months' immediate imprisonment for the offence. He was not made eligible for parole.
Second Contravention Application
As a result of the various contraventions of the second supervision order on 25 June 2016 and the commission of the serious sexual assault offence by the Respondent, the State commenced contravention proceedings under the DSO Act against the Respondent. The Respondent did not oppose the application. The State applied for a CDO to be imposed.
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 CDO pursuant to s 23(1)(b) DSO Act.[40] His Honour concluded as follows:[41]
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.
[40] The State of Western Australia v MBW [No 6] [2018] WASC 72.
[41] The State of Western Australia v MBW [No 6] [33] ‑ [36].
D. The First Review Application
The First Review Application under s 64(2)(a) HRSO Act was determined by Derrick J in November 2020.I have summarised his Honour’s conclusions at [74] to [78] below.
His Honour was satisfied to a high degree of probability that it was necessary to make a CDO or a Supervision Order in relation to the Respondent to ensure the adequate protection of the community against an unacceptable risk that he will commit a serious offence. It followed that his Honour found that the Respondent remained a high risk serious offender at that time (at [201]).
Derrick J made the following findings of fact, among others, based on the evidence before him at that stage (at [203]):
(a)The Respondent had not developed any substantial understanding of the similarities between the indecent assault offence and his earlier offences.
(b)The Respondent had not made any progress in relation to developing his self‑awareness. He had little or no appreciation of the factors that placed him at risk of reoffending.
(c)The Respondent had failed to fully accept responsibility for the indecent assault offence. Specifically, and contrary to the finding of fact made by the sentencing judge, the Respondent had continued to deny any intention to sexually assault the victim (that is, he continued to deny that his conduct was sexually motivated).
(d)The Respondent had not developed any clear insight into the factors that led him to commit the indecent assault offence.
(e)The Respondent continued to engage in cognitive distortions in relation to his offending.
(f) The Respondent continued to express disparaging views about certain categories of females.
(g)The Respondent's misguided perception of himself was that he did not present a risk to the community.
(h)The Respondent was unable to identify the factors that contributed to him relapsing into alcohol use in the lead up to the commission of the indecent assault offence. He did not have any clear plan or strategy for avoiding relapsing into alcohol use if he was released into the community. This is despite the fact that alcohol use remained a clear and significant risk factor for him.
(i)The Respondent had a deviant sexual arousal to violence and illicit sex, as well as an antisocial personality disorder with pronounced features of psychopathy. These two factors were the most significant contributing factors to his risk of committing further sexual offences.
(j)The Respondent refused to acknowledge the existence of his deviant sexual arousal to violence and illicit sex.
(k)The Respondent's antisocial personality style with its features of psychopathy (including impulsivity, irresponsibility and the ability to be manipulative) was not conducive to him being compliant with the obligations of a supervision order.
(l)The Respondent admitted that he may reoffend after being in the community for a period of time when the deterrent effect of imprisonment was no longer in the forefront of his mind.
(m)There was no contraindication to the Respondent resuming hormonal anti‑libidinal treatment with a view to reducing his sexual drive. However, the Respondent was unwilling to resume anti‑libidinal treatment.
(n)Although the respondent had made some gains as a result of engaging in counselling since being returned to prison following his commission of the indecent assault offence, overall he had made only very limited progress in his treatment. There had not been any material change in circumstances since the making of the continuing detention order in March 2018.
His Honour noted that, by virtue of s 29(1) and s 29(2) HSRO Act he could not make a supervision order unless the Respondent had satisfied him on the balance of probabilities that he would substantially comply with the standard conditions of the order. Taking into account the findings of fact which his Honour had reached, 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 those contraventions, Derrick J was not satisfied on the balance of probabilities that the Respondent would substantially comply with at least the standard conditions of any Supervision Order specified in s 30(2)(d) and s 30(2)(f) HRSO Act. For that reason alone, his Honour was not persuaded that the Respondent should be released on a Supervision Order (at [203] - [204]).
Even if it was accepted on the balance of probabilities that the Respondent would substantially comply with the standard conditions of a Supervision Order, Derrick J was nonetheless of the opinion that, bearing in mind he was required to apply as the paramount consideration the need to ensure adequate protection of the community, he could not be satisfied that the community could at that point in time be adequately protected by releasing the Respondent on the proposed Supervision Order.
Releasing the Respondent on a Supervision Order on the conditions proposed would not, in his Honour’s 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 (at [205]).
Accordingly, Derrick J decided, pursuant to s 68(1)(b)(i) HRSO Act, that the Respondent's CDO should be affirmed (at [212]). His Honour also made some remarks about the Respondent’s ongoing management and treatment. In particular, his Honour noted the importance of the Respondent continuing 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. His Honour also expressed the view that further psychological treatment should address preparing the Respondent for reintegration into the community (at [214]). In making these observations, Derrick J accepted that it was perhaps unreasonable to expect that the Respondent would after so many years of psychological intervention, make any further significant advances in his treatment gains.
Further, Derrick J comment that the consumption of alcohol was a significant risk factor for the Respondent (at [215]). His Honour expressed the view that the Respondent must, if he is to be released, address this risk factor in a more substantive way than he had done to date. In this regard, the Respondent must develop a concrete strategy for minimising the risk of him relapsing into alcohol use on his release into the community (at [215]). To this end, Derrick J concluded that the Respondent should engage in an appropriate alcohol use treatment program as a matter of priority (consistently with the recommendation made by Dr Wojnarowska) (at [215]).
Finally, given the Respondent's personality traits and past behaviour while under supervision in the community, Derrick J did not consider that the Respondent’s assertions about the effect of his (then) current antidepressant medication on his sexual drive could be accepted as reliable. Derrick J concluded (at [216]):
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. (emphasis added)
E. Evidence on the Second Review Application
Introduction
At the hearing of the Second Review Application on 31 January 2023, the State tendered a book of materials (Book of Materials) comprising four volumes.[42] I received those volumes as Exhibits A to D. Exhibits A to C were all dated 24 November 2022 and Exhibit D was dated 5 January 2023.
[42] ts 74.
The first three volumes of the Book of Materials (Exhibits A, B and C) consisted of background material which included the Respondent's criminal record, Department of Justice prison records, medical reports, transcripts and records relating to the Respondent's previous offences and criminal hearings, material prepared for previous review applications under the predecessor legislation to the HRSO Act (in 2009, 2010, 2012 and 2020) and the contravention application hearings (in 2011 and 2018).
The fourth volume (Exhibit D) included material specifically prepared for this Second Review Application. I refer in particular to:
(a)The Treatment Progress Report prepared by David Summerton dated 8 December 2022.[43] Mr Summerton is a Counselling Psychologist in the Forensic Psychological Intervention Team.
(b)The Treatment Progress Report prepared by Dr Sarah Barbas dated 21 December 2022.[44] Dr Barbas is a Senior Clinical and Forensic Psychologist in the Forensic Psychological Assessment Team with the Department of Justice.
(c)The Psychiatric Report of Dr Gosia Wojnarowska dated 23 December 2022.[45] Dr Wojnarowska is a Forensic and Child Adolescent Psychiatrist.
(d)The Community Supervision Assessment of Luke Carmichael dated 4 January 2023.[46] Mr Carmichael is a Senior Community Corrections Officer with the Department of Justice.
[43] Exhibit D, pg 1486 – 1489.
[44] Exhibit D, pg 1490 - 1502.
[45] Exhibit D, pg 1503 – 1518.
[46] Exhibit D, pg 1519 – 1534.
At the hearing of the Second Review Application, oral evidence was given by Dr Wojnarowska, Dr Barbas and Mr Carmichael. The Respondent did not challenge the credibility or reliability of any of the witnesses and did not challenge the expertise of the experts. My assessment was that each of the witnesses gave their evidence in a considered manner, giving reasons where appropriate. I accept their evidence. The Respondent elected not to give or call any evidence.[47]
[47] ts 105.
I turn now to address the primary evidence which was led on the application.
Dr Wojnarowska – Forensic and Child Adolescent Psychiatrist
Dr Wojnarowska is a Forensic Consultant Psychiatrist. She has had a long standing involvement in treating the Respondent. Dr Wojnarowska was responsible for assessing the Respondent for the purposes of the previous applications under the DSO Act and the HRSO Act (in 2007, in 2018 and in 2020).
Dr Wojnarowska is a medical practitioner with a speciality in psychiatry and a sub-speciality in forensic and child and adolescent psychiatry. Dr Wojnarowska is a fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) with 14 years’ experience in forensic psychiatry. Dr Wojnarowska has been trained and involved with the assessment of dangerous sexual offenders since June 2007.
The evidence of Dr Wojnarowska for the purposes of the present application is found in her detailed report dated 23 December 2022[48] and in her oral evidence given at the hearing.[49] For the purposes of preparing her report, Dr Wojnarowska most recently reviewed the Respondent on 19 September 2022 while in custody. Dr Wojnarowska had also reviewed the materials tendered by the State for the purposes of this review, spoken with the Respondent’s community corrections officer (Mr Luke Carmichael) on 20 December 2022, and reviewed the proposed community correction conditions received from Mr Carmichael and which are dated 20 December 2022.
[48] Exhibit D, pg 1503 – 1518.
[49] Some minor errors in her report were corrected during Dr Wojnarowska's evidence in chief.
Within her report, Dr Wojnarowska described the Respondent as a man in his mid-50s with relatively good family supports. He has daily phone contact with his partner, and occasional visits from her. During the period of his CDO, the Respondent has been receiving counselling from Mr Summerton, on a fortnightly basis. The Respondent had completed 12 sessions since May 2021, following some interruptions due to COVID-19 restrictions. According to the counselling reports, the Respondent had gained some insight into the association between his negative attitude towards women that surface in the context of emotional regulation challenges, resentment, and his alcohol use.[50]
[50] Exhibit D, pg 1509.
In her report, Dr Wojnarowska provided a detailed outline of the Respondent’s history of sexual and non-sexual offending. The report summarised the Respondent’s attitude towards those offences, the Respondent’s sexual functioning, his psychiatric history and substance use history, in order to come to a conclusive risk assessment concerning the Respondent. I note the following matters in particular from Dr Wojnarowska’s report.
The Respondent’s attitude to his offences had not changed, according to Dr Wojnarowska, since her previous interview with him in 2020.[51] The Respondent reiterated that he had experienced financial difficulties prior to his last offence and this had caused relationship problems. The Respondent reported that he felt trapped and denied that he was using alcohol or illicit substances to cope until the day of the offence.
[51] Exhibit D, pg 1508.
As to his previous offences, the Respondent indicated to Dr Wojnarowska that he had been drinking heavily and had been looking for sex when he approached prostitutes, but never had an intention to hurt them. According to Dr Wojnarowska, the Respondent demonstrated some insight into his offending in this regard. The Respondent acknowledged that intoxication placed him at further risk of offending, and that he had been working on his offending pathways during this counselling sessions whilst in custody.
The Respondent informed Dr Wojnarowska that he had ceased using Androcur a year prior to his last offence as he had problems with ejaculation as a result. I understand from this evidence that the Respondent ceased taking Androcur around 7 years ago. In general terms, Androcur is an antilibidinal medication. As described by Dr Wojnarowska in her oral evidence, it is a testosterone inhibiting medication which lowers testosterone levels.[52] The Respondent reported to Dr Wojnarowska that his current sexual drive was very low and he denied any preoccupation with sex.
[52] Exhibit D, pg 1508; ts 76.
The Respondent indicated that he had been taking Sertraline 150mg and Endep which he believed had the same effect as Andocur. He denied watching pornography or experiencing violent sexual fantasies.[53] Dr Wojnarowska described Sertraline in her oral evidence as an antidepressant and anti-anxiety medication, which is a selective serotonin reuptake inhibitor (commonly referred to as an SSRI). Its side effects include decreased sexual drive and may cause delayed ejaculation.[54]
[53] Exhibit D, pg 1508.
[54] ts 76.
Dr Wojnarowska noted that the Respondent was presently being treated with Sertraline but observed that its effectiveness was difficult to assess due to the Respondent’s somewhat limited transparency in the area of his sexual functioning. Her view was that antilibidinal hormonal medications would be a superior treatment, particularly as ongoing compliance with the medication can be tested – whereas this is not possible in respect of SSRI medication.[55]
[55] ts 78; and Exhibit D, pg1517
Additionally, a Naltrexone implant for the Respondent’s alcohol dependence was recommended.[56] Dr Wojnarowska explained that Naltrexone is a medication that works on specific receptors in the brain, blocking those receptors that are responsible for the pleasure effect associated with drinking. The medication takes away that kind of a pleasure and decreases significantly the amount of alcohol a person is taking and, additionally, prevents binge drinking.[57]
[56] Exhibit D, pg 1517.
[57] ts 78.
Upon close review, it appeared there may be some internal tension between the opinions expressed by Dr Wojnarowska concerning the relative superiority of antilibidinal treatment compared to SSRI based treatment. As noted above, Dr Wojnarowska states in her report that the former treatment is superior and preferred. Dr Wojnarowska also identified the recommencement of the antilibidinal treatment as one of the important conditions required to accept that the Respondent's risks can be managed in the community. However, in her oral evidence, Dr Wojnarowska explained that Sertraline, in combination with Naltrexone would be a better option for the Respondent for a number of reasons. Firstly, because Sertraline does not cause the side effects that hormonal treatment would. The Respondent was more likely to be compliant on a long-term basis, in her view. Secondly, SSRIs such as Sertraline can be taken indefinitely, while hormonal antilibidinal treatment such as Androcur, would be prescribed for a limited period. Overall, given the fact Dr Wojnarowska perceived alcohol as being the most important and major factor in the Respondent’s reoffending, her opinion was that the combination of Sertraline and Naltrexone would be sufficient.[58]
[58] ts 77 – 78.
My assessment is that the apparent tension in the evidence to which I have referred can be resolved. I understand that Dr Wojnarowska's opinion is that, in general terms, recommencing antilibidinal treatment is preferred for a person in the Respondent's circumstances because it is intended to lower testosterone levels and reduce sexual drive. SSRI medication, on the other hand, is an antidepressant and anti-anxiety treatment which has, as potential side effects, decreased sexual drive and delayed ejaculation with sex. Ultimately, Dr Wojnarowska's opinion is that the SSRI medication would be sufficient, but I do not understand this to be the preferable treatment.
In any event, Dr Wojnarowska harboured concerns as to the Respondent’s willingness to maintain compliance with Sertraline (which, as already noted, may not be capable of detection through testing).
As to the recommencement of antilibidinal treatment, I understand the Respondent had reported to Dr Wojnarowska that 'he would be happy to continue with his current antidepressant medications but did not oppose when advised that re starting Androcur would be recommend.'[59] The statement by the Respondent that he would not be 'opposed' to restarting antilibidinal treatment does not provide me with significant comfort that the Respondent would willingly restart such treatment if released into the community (given the other evidence as to his lack of candour and his mendacity). As I have noted above, and importantly, it appears the Respondent has not undertaken any antilibidinal treatment since prior to 2016.
[59] Exhibit D, pg 1509 (at [39]). See also Exhibit D, pg 1516 (at [84]) where Dr Wojnarowska states the Respondent is prepared to recommence this treatment. I proceed on the basis that the Respondent's stated position to Dr Wojnarowska was that he would not oppose the treatment.
As to his own views on his progress, the Respondent reported to Dr Wojnarowska that he did not perceive himself as being a risk to the community.[60] He believed he would not relapse into drinking but was not able to explain what had changed for him. In her oral evidence, Dr Wojnarowska was concerned that this demonstrated a lack of insight and acceptance on the Respondent’s part. It was an important issue in her view because it shows the Respondent needs to be managed if he was released, in order to be compliant with the conditions which would be imposed.[61] These are important aspects of the evidence before me, in my view, and I will return to them when assessing the evidence in totality.
[60] Exhibit D, pg 1509 (at [40]).
[61] ts 79.
The Respondent had indicated to Dr Wojnarowska that he would like to return home after release from custody. This accommodation was thought to be suitable in Dr Wojnarowska’s view.[62] He intended to engage in full-time work as a brick layer and was confident he could secure that work. He said he was happy to continue with his current antidepressant medication.[63]
[62] ts 79.
[63] Exhibit D, pg 1509.
Dr Wojnarowska’s psychiatric diagnosis of the Respondent had not changed since her assessment of him in 2016. That is, there is no evidence of any major mental illness. However, the Respondent presents with an antisocial personality disorder and pronounced psychopathic traits. In her oral evidence, Dr Wojnarowska commented that this diagnosis was never likely to change.[64] He has a history of alcohol dependence with binge type of drinking, currently in remission (given he is in custody). Her opinion was that the Respondent did not fulfill the criteria for any specific sexual deviance, but she noted the association for him between humiliation/physical violence and sexual arousal.[65]
[64] ts 79.
[65] Exhibit D, pg 1511.
In her oral evidence and in her report, Dr Wojnarowska explained the Static-99R tool and its application to the Respondent. The Respondent achieved a score of 6 which placed him in the well above average risk, with predicated recidivism (of any sexual reoffending) of 5 years being 30.7% to 37%, and in 10 years of 42.8% to 52.3%. As Dr Wojnarowska explained, this particular forensic tool addresses historical risk factors – it does not examine dynamic factors. Accordingly, one would not expect the overall score to be different from previous risk assessments.[66]
[66] Exhibit D, pg 1512.
Dr Wojnarowska also applied the PCL-R tool in her assessment of the Respondent.[67] On her assessment, she considered there had been some improvement in terms of the Respondent's impression management and grandiosity. Accordingly, the current score for the Respondent was 24, which indicates that he does not reach the threshold for psychopathy. Nevertheless, her view was that it was a high enough score to raise concerns and be taken into account while assessing the risk of offending.[68]
[67] Exhibit D, pg 1512; and ts 80.
[68] ts 80.
Dr Wojnarowska observed in her report that the sexual deviance factor was present with respect to the Respondent. Sexual deviance is the most relevant factor to the domain of mental illness (which forms part of the overall RSVP analysis),[69] in her opinion, given its presence is associated strongly and specifically with the risk of sexual violence. It is also a causal factor that predisposes a person to engage in sexual offending.[70] Dr Wojnarowska did not consider this factor, in the context of the Respondent, would change significantly over time. There may be a reduction in sexual drive with advancing age or through treatment. Her assessment was that the Respondent's assertion that his sexual drive was reduced to almost non-existence could not (given his current age) be accepted as truthful.[71]
[69] Exhibit D, pg 1513 – 1517. The Risk for Sexual Violence Protocol (or RSVP) analysis incorporates dynamic variables, both stable and acute. As explained at paragraphs 67ff of Dr Wojnarowska’s report, the domain of mental disorder forms part of this analysis, and includes multiple factors, namely: sexual deviance, major mental illness, psychopathic personality disorder, problems with substance abuse, and violence or suicidal ideation.
[70] Exhibit D, pg 1514.
[71] ts 81.
Dr Wojnarowska was asked questions in her oral evidence arising from the indication by the Respondent's partner that she has no sexual interest or intent towards him upon his release from custody. In her report, Dr Wojnarowska had indicated that the Respondent would need to gain additional coping strategies to manage sexual drive in the community as a result of this.[72] Further, the Respondent would be likely to withdraw into his fantasy world or initiate contact with sex workers either online or in person.[73] These matters would impact on his risk of reoffending, his risk of using alcohol, and his risk of non-compliance with any conditions of a Supervision Order which prohibit contact with sex works and use of pornography.[74]
[72] Exhibit D, pg 1515.
[73] Exhibit D, pg 1516.
[74] ts 81.
Dr Wojnarowska was of the view that the Respondent was likely to stop his medication, or at least his compliance might be erratic.[75] This was evident because he had previously ceased taking his medication and because, according to Dr Wojnarowska, people with antisocial personality traits are at times, or often, dishonest.[76]
[75] Exhibit D, pg 1517.
[76] ts 82.
Overall, Dr Wojnarowska's opinion, following the application of the RSVP, PCL-R and Static-99R tools, was that the Respondent was at high risk of serious sexual offending as defined in the HRSO Act if not made the subject of a restriction order.[77]
[77] Exhibit D, pg 1517; and ts 81.
Dr Wojnarowska's opinion was that the Respondent's risk of re-offending was associated with the presence of psychopathic traits, sexual deviance and substance use disorder. There was evidence of some progress in the Respondent’s treatment since her previous review of the Respondent, and so Dr Wojnarowska's opinion was that his risk could be managed in the community, subject to the following matters:[78]
(a)provided the Respondent continued to engage in individual psychological counselling;
(b)provided the Respondent recommenced his antilibidinal treatment; and
(c)provided the Respondent's substance use disorder was adequately managed through counselling and with a Naltrexone implant (and Dr Wojnarowska's understanding was that the Respondent was agreeable to such an implant).[79]
[78] Exhibit D, pg 1517; and ts 83.
[79] ts 88.
In the course of cross-examination by the Respondent's counsel, Dr Wojnarowska's opinion was further clarified, as follows:[80]
[80] ts 83 – 84.
Dr Wojnarowska, obviously, it's a matter for the court's discretion, but, in your view, can the respondent, be adequately managed in the community under a supervision order? Yes.
…
To your view, has he reached the point that he cannot make any further treatment gains in a custodial setting? That's correct.
And any further gains ought or need to be tested in the community upon his release on a supervision order? Yes.
…
But I take it from your answer to my first question that his risk – your perception as to his risk of reoffending in a sexual and serious way is dramatically reduced if there are strict conditions of a supervision order imposed upon him? Well, they are reduced. I don't want to use the word 'dramatically', but it would be reduced to the point that, in my view, he's manageable – it's manageable.
…
[The Respondent], self-evidently, has outstanding treatment needs, doesn’t he? He – he does, yes.
And your earlier – your earlier answers suggest that those treatment needs are best tested and treated in the community at this point? In my view, there – well, he certainly won't gain anything from the therapeutic point of view, remaining in prison. Whether whatever needs to be treated will be treated is another question. And, in my view, [the Respondent], in the first place, requires very close supervision. There are areas that can be improved, like his communication, management of stress, relationships, etcetera. That, I understand, will be targeted – is proposed to be targeted in ongoing psychological treatment. But we are not talking about, really, changing his personality structure or sexual – or the presence of sexual deviance.
…
I take it from that, Doctor, there are certain features that simply can't be changed? Yes.
Dr Wojnarowska was questioned as to whether, if the Respondent remained in custody and his counselling did not continue for say 18 months, what effect would that have on the Respondent's treatment. Understandably, and not surprisingly at all, Dr Wojnarowska's opinion was that this scenario would have a negative effect on the Respondent.[81] For my part, it would seem to be a worrying outcome if the Respondent's treatment/counselling was simply brought to a halt if his CDO was affirmed and he remained in custody until the next mandatory review under the HRSO Act.
[81] ts 85.
In her oral evidence, Dr Wojnarowska accepted that the Respondent had demonstrated changes relative to the findings made by Derrick J in his decision delivered in October 2020.[82] These include positive changes reported to Mr Summerton by the Respondent as to his understanding and link between his most recent offence and his past sexual offences (although he plainly did not accept full responsibility for his most recent offence), there was a marked improvement in the Respondent's cognitive distortions in relation to his past offending, a positive change in the Respondent expressing disparaging views about certain categories of females, and the Respondent had a good social network available to him.
[82] ts 85 – 90.
Dr Wojnarowska accepted that the Respondent could comply with a Supervision Order if 'very closely managed'.[83] Dr Wojnarowska also accepted that the Respondent had an appreciation of the consequences of any reoffending, in terms of the deterrent effect on him (both as to low level offending and serious offending).[84]
[83] ts 88.
[84] ts 89.
In summarising her assessment, Dr Wojnarowska expressed the opinion that, compared to the Respondent's position some two years ago, the Respondent has been much more open and amenable to being challenged. During her interview of the Respondent, she did not identify any hostility from him in terms towards females. Dr Wojnarowska thought that the way he spoke about his wife was different (and the continuing support of his partner was a matter of significance). Although Dr Wojnarowska noted there were no major gains, when she assessed his mental state there was definitely a difference in his presentation. Dr Wojnarowska felt that the antidepressant medications may have had some effect on that.[85]
[85] ts 89.
Dr Wojnarowska accepted that the Respondent was 'keen to comply with the terms of a supervision order' and she accepted that the terms of the Supervision Order which had been proposed were appropriate to manage the risk.[86]
Dr Sarah Barbas – Senior Clinical and Forensic Psychologist
[86] ts 90
Dr Barbas is a Senior Clinical and Forensic Psychologist with the Forensic Psychological Assessment Team, within the Department of Justice. Dr Barbas is registered with the Australian Health Practitioner Regulation Agency as a Clinical and Forensic Psychologist, and has a combined Masters/PhD in Clinical and Forensic Psychology from Edith Cowan University.
Dr Barbas' evidence for the purposes of the present application was contained in her report dated 21 December 2022, and in her oral evidence.[87] For the purposes of preparing her report, Dr Barbas undertook two interviews with the Respondent (in November and December 2022), and consulted with Mr Summerton and Mr Carmichael.
[87] In which I note Dr Barbas corrected some minor errors in her report.
Dr Barbas provided in her report a summary of the treatment history of the Respondent based on her review of documentary material which is before me, and her consultation with Mr Summerton. In reviewing Dr Barbas' report, my focus has been on the assessment of the Respondent's treatment since 2016 as I consider that to be more material for the purposes of the present application.[88] Some of the more salient features of this summary are set out below.
[88] Exhibit D, pg 1494 at [19] – [33].
The Respondent has had only minor prison misconduct events or charges since his last review before Derrick J. All of the Respondent's urinalyses since that time have been negative as well.
As explained by Dr Barbas, Mr Summerton has undertaken 18 psychological intervention sessions since 2020, with 12 of these sessions taking place since May 2022. The treatment has primarily focused on assisting the Respondent to develop appropriate risk management plans in the event of any potential future release to the community. In this regard, Mr Summerton has highlighted the Respondent's egocentricity as a factor that repeatedly hindered treatment progress and has remained a prominent factor in his offence cycle. Mr Summerton reported that the Respondent lacks the skills to cope with the distress of others and such difficult had predated both recent and historical sexual offending.[89]
[89] Exhibit D, pg 1496.
Mr Summerton reported that the Respondent has made 'treatment gains in the context of intervention embedded within examination of his relationship dynamic with his partner'. These gains reflect, according to Dr Barbas, the finding that the Respondent's proclivity for egocentrism and its relevance to his sexual offence cycle appears amenable to change within the therapeutic environment.[90]
[90] Exhibit D, pg 1496.
According to Mr Summerton, the Respondent perceives his high risk scenario is one where resentment and other negative emotions build to the extent that he expresses aggression towards women in a demeaning manner, particularly in the context of alcohol use.[91] I understand from Dr Barbas’ report that the Respondent had indicated to Mr Summerton he would maintain a commitment to abstinence from alcohol and a preference for a graded approach to reintegration into the community if released. Mr Summerton also concluded that the Respondent had recently demonstrated amenability to exploring and addressing more longstanding factors associated with his offending behaviours that have positive implications for perspective-taking, emotional regulation and improved intimacy. Mr Summerton predicted that the Respondent would be engaged with ongoing weekly intervention with a focus on community adjustment, risk management and relationship counselling should he be released on a Supervision Order.[92]
[91] Exhibit D, pg 1496.
[92] Exhibit D, pg 1496.
In the event the current CDO is affirmed, Mr Summerton reported that intervention would be suspended until around 6 months prior to the Respondent's next review. This means that counselling would be halted for around 18 months.[93] In her oral evidence, Dr Barbas explained this proposed cessation on the basis that Mr Summerton was of the opinion that further psychological intervention was unlikely to be particularly helpful in a custodial setting.[94]
[93] Exhibit D, pg 1496.
[94] ts 93.
Dr Barbas observed in her report that the Respondent has a long history of sexually violent behaviour in the context of significant alcohol use. The Respondent's offence cycle has typically involved relationship problems, significant alcohol consumption, impulsivity, visiting prostitutes and the use of a preoccupation with sex as a form of coping. The Respondent has consistently been identified, according to Dr Barbas, as having a high risk of reoffending in a sexually violent manner on various risk assessment tools over time. The Respondent has completed three prison-based sex offender treatment programs, and two community based maintenance sex offender treatment programs. Dr Barbas notes that the Respondent has engaged in over 20 years of individual psychological intervention.[95]
[95] Exhibit D, pg 1499.
Dr Barbas was of the opinion that the Respondent appeared to have made significant gains in the form of improving his capacity for reflective listening, validation of partner's feelings, problem solving and openness in the current relationship with his partner.[96] A number of other positive improvements were noted by Dr Barbas, although she cautioned that the Respondent's proclivity towards impression management and superficial interpersonal style should not be overlooked.[97]
[96] Exhibit D, pg 1500.
[97] Exhibit D, pg 1500 – 1501 at [44] – [48] in particular.
During her oral evidence, some specific matters were identified by both counsel and drawn to Dr Barbas' attention for her comment and opinion. The material matters were as follows:
(a)Counsel for the State directed Dr Barbas to the passage in her report (at pg 1497) which reported the Respondent’s explanation concerning his 2016 offence. Dr Barbas explained the passage in her report as indicating the Respondent was attributing blame to others, rather than himself, in relation to that conduct.[98]
(b)Counsel for the State drew Dr Barbas' attention to two passage in her report (at pg 1498) in which she recorded that the Respondent's relationship with his wife was unlikely to be intimate in the future, and also the Respondent's assertion that he had no intention to associate with sex workers upon any future release to parole and expressed the view that he felt more aware of his access to this population as problematic. Dr Barbas agreed that these matters raised a concern as to whether the Respondent had an outlet for his sexual interest. Importantly, though, Dr Barbas emphasised that she was unable to confirm the observation regarding the Respondent's wife.
(c)Counsel for the Respondent clarified with Dr Barbas certain matters concerning the undertaking of urinalysis (if a Supervision Order was to be made). I understood the import of Dr Barbas' evidence to be that the Respondent had himself proposed undertaking more frequent urinalysis if released into the community, in order to lower his risk of alcohol consumption.[99] There appeared to be two conclusions one could draw from this – that the Respondent has a lack of control over his alcohol use but also that he acknowledges alcohol use as a trigger to his past reoffending. Both matters were acknowledged by Dr Barbas in cross-examination.[100]
Mr Luke Carmichael – Senior Community Corrections Officer
[98] ts 91.
[99] ts 94.
[100] ts 95.
Mr Carmichael produced a report dated 4 January 2023, and also provided oral evidence.[101] Mr Carmichael, who is a Senior Community Corrections Officer, assumed case management of the Respondent on 21 September 2022, and met with him twice before the hearing before me. His dealings with the Respondent were thus limited.
[101] Exhibit D, pg 1519; and ts 96.
As already noted, the Respondent has proposed to reside with his partner at her house in the event he is released.[102] Mr Carmichael explained in his report that he had attended at the premises and spoken with the Respondent's wife. In general terms, Mr Carmichael recorded that the Respondent's wife was supportive of him, but indicated she is no longer in love with him and has no desire to be sexually intimate with him. She nonetheless explained that she still loves the Respondent.[103]
[102] The availability of suitable private accommodation for the Respondent removes, at least insofar as this application is concerned, one potential issue surrounding the possibility of making a Supervision Order. If a Supervision Order is not now made, however, and the Respondent remains in custody for another 2 years for example, the Respondent would have the option (theoretically at least) of government sponsored accommodation being available, but counsel for the Respondent observed there could be no guarantee in this regard given the difficulties with making such accommodation available (ts 115).
[103] Exhibit D, pg 1521 and 1522.
The Respondent's wife also relayed to Mr Carmichael that the next release (into the community) may be the Respondent's last opportunity to continue their relationship, whether that is on the current review or in the future.[104] In his evidence, Mr Carmichael reiterated this was his understanding of the Respondent's wife's position.[105]
[104] Exhibit D, pg 1522.
[105] ts 98 and 104.
Mr Carmichael proffered, through his report, a detailed set of rather extensive conditions which he considered would be appropriate for the purposes of a Supervision Order, if the court was minded to make such an order.[106] The proposed conditions are attached to these reasons as Annexure A. I did not understand the Respondent to oppose the scope and formulation of those conditions. The State proposed that any Supervision Order, if made, be imposed for a 10 year duration. Counsel for the Respondent had no objections to that period being imposed, if a Supervision Order was to be made.[107] My assessment is that such a lengthy regime would be appropriate in relation to the Respondent, noting that his previous regimes were of 5 years and 7 years duration respectively.
[106] Exhibit D, pg 1527 – 1533 (being Conditions 1 to 62).
[107] ts 117.
In his oral evidence, Mr Carmichael was asked specifically about proposed condition 33, which relates to medications and mental health treatment. The proposed condition has been drafted to contain an exception as to the taking of SSRI or antilibidinal medication by the Respondent. Any such medication is only required to be taken by the Respondent if he consents to do so. That represents the position of the Department and its Consultant Psychiatrist (i.e., patient consent is required before such medication is required to be taken).[108]
[108] ts 100. If the Supervision Order was to be made, I would remove the word ‘other’ in the exception given the differences between SSRI and antilibidinal medication.
F. Submissions
The State's Submissions
The State's position was that the CDO made by Corboy J, which was affirmed by Derrick J, should be affirmed on this review. Ultimately, although the State recognised that there had been changes in the Respondent's circumstances, those changes are not such (and the evidence does not demonstrate), that the risk of the Respondent reoffending can be adequately managed in the community.
Counsel for the State emphasised that the Respondent continued to deny that he had sexually assaulted the victim of his most recent serious offence or that he had any sexual motivation in that conduct. Counsel submitted that the Respondent did not perceive himself to be a risk to the community and exhibited a lack of self-awareness, such that there must be some doubt as to whether he would recognise high-risk situations.
The State accepted that Dr Wojnarowska had testified as to the manageability of the Respondent in the community, but noted that her opinion depended on three matters. That the Respondent continue to engage in psychotherapy; that the Respondent does not consume alcohol; and that the Respondent continues to take all prescribed medicine. The State identified risk factors in this regard, including the risk the Respondent would stop taking his medication and not report the cessation, and difficulties in testing certain medication.
The State submitted, through counsel, that if the Respondent were to be released on a Supervision Order that would not be a reasonably acceptable risk under the HRSO Act. Counsel submitted there was a high risk of the Respondent committing a serious sexual offence without a supervision order and, as is readily apparent from his previous releases, a likelihood that he would commit a serious offence even if subject to a Supervision Order, regardless of the level of close supervision, counselling and strict conditions, according to the State.
As to the nature of the risk, the State submitted that Dr Wojnarowska's evidence was that the most likely risk scenario was that the Respondent would commit similar offences to those he has previously. Such offences necessarily cause significant harm to victims, both psychological and physical. Dr Wojnarowska's evidence was that the harm to victims of any future offending by the Respondent would be severe.
The Respondent's Submissions
Counsel for the Respondent conceded that his client was a high risk serious offender. That concession is well made in the circumstances. The broad submission then made on behalf of the Respondent was 'If the Respondent is not released now, then when would he be released?'. In this regard, counsel indicated that a number of factors are aligned at present to support a decision to allow the Respondent to re-enter the community (having been in custody for the past 6 or more years).
These factors include positive changes and progress with the Respondent since the last review before Derrick J (including greater self-awareness), there is suitable accommodation, he has a supportive partner who will not tolerate any more breaches from the Respondent, and there is apparently nothing more to be gained in custody in terms of therapeutic treatment.
Allied to the foregoing statements, I recognise that the proper approach to the treatment of expert evidence in applications such as this, as outlined in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307. Steytler P and Buss JA at [62] recognised that, under the legislation in this State, a court must have regard to the psychiatrists' reports which are adduced in evidence and must bear in mind that the authors of such reports have an expertise not shared by the court. That said, their Honours emphasised that these reports are only a part of the material that must be considered and the weight to be accorded to them will depend upon their cogency and reliability.
In seeking to discharge the burden which falls upon him, the Respondent cannot escape the long history he has of both serious sexual assault offences over the last 37 years or so, and of failures to comply with Supervision Orders (and other orders) of this court, over the last 10 years or so. Faced with that history, and my findings that the Respondent lacks candour and appreciable insight at present, coupled with the reality that the Respondent has not recommenced antilibidinal medication (although he says he is not opposed to that course), the risk he will not maintain his SSRI medication, and although he has made some gains through therapeutic intervention over the past two years, I simply cannot be satisfied on the balance of probabilities that the Respondent will substantially comply with the standard conditions of the Supervision Order.
In any event, even if contrary to the above conclusion the Respondent had been able to demonstrate that he would substantially comply with the standard conditions of the Supervision Order, I cannot be satisfied at this point that the community would be adequately protected by releasing the Respondent to the community on the Supervision Order. In this regard, I must affirm the CDO if I am not satisfied that conditional release under a Supervision Order would ensure an adequate degree of protection to the community.[120]
[120] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [22] (Hall J).
In my view, in the circumstances of the Respondent's case, the level and nature of the risk that he would pose if released on the proposed Supervision Order (with all of its conditions) would not be reasonably acceptable viewed from the perspective of the protection of the community.
None of this, of course, is to say that the Respondent could never be released into the community or that the court must be satisfied that the risks attendant on such release must be reduced to zero. Neither of those propositions is correct. The assessment I make as part of this Second Review Application is based on the evidence adduced on this particular application, the status of the psychiatric and psychological treatment of the Respondent as matters stand, and my present evaluation of the paramount consideration to ensure adequate protection of the community.
The final observation I should add is that I am concerned the Respondent's therapeutic treatment will slip into a hiatus upon the CDO being affirmed. The evidence before me was to the effect that Mr Summerton considered counselling should be halted until 6 months before the next review. That is, halted for an 18 month period. The treatment decisions in this regard are a matter for those who have responsibility, and the expertise, for such matters, but for my part I would strongly recommend that the Respondent be permitted to engage in ongoing treatment, rather than bring his treatment to an abrupt cessation.[121] This may involve something less than the intensive counselling sessions with Mr Summerton, and may extend to the Respondent's participation in courses or programs of the type he has willing participated in previously whilst in custody.
[121] It appeared to me that Dr Barbas had expressed a view not dissimilar to this point, in her report: Exhibit D, pg 1501 (at [50]).
H. Orders
For the foregoing reasons, pursuant to s 68(1)(b)(i) HRSO Act, having found that the Respondent remains a high risk serious offender within the meaning of s 7(1) HRSO, the court affirms the continuing detention order made on 9 March 2018 by the Honourable Justice Corboy.
ANNEXURE A
PROPOSED CONDITIONS FOR THE SUPERVISION ORDER AS PREPARED BY THE DEPARTMENT OF JUSTICE
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth within 48 hours of this order being issued by the Court and advise the officer of your 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 business 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 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 REDACTED] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you;
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order;
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO;
Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO;
Attendance at programs or treatment
Consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, 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;
Attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO;
Reporting to WA Police
Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team or his/her delegate;
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order;
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020;
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 screen name(s), user name(s), and email addresses;
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, inclusion confidential information;
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate to disclose to them confidential information including your offending history;
Restrictions on contact with Victims
Have no contact, directly or indirectly, with [NAME REDACTED] unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice and approved in advance by a CCO
Have no contact, directly or indirectly, with the victims of your sexual and violent offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice;
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual or violent offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times;
Report to the CCO and WA Police any direct or indirect contact with the victims of your offending (including sexual offending) on the next working day you report to the CCO or Police;
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under s202, s203, s204, s557K Criminal Code 1913 (WA) or s17(1) Criminal Law (Unlawful Consorling and Prohibited Insignia) Act 2021;
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 prescriber;
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave you approved address as directed by a CCO from time to time;
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring you compliance with the curfew;
When subject to a curfew under this Order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;
Medications/Mental Health
Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO or undergo medication treatment, including antidepressant medication or anti-libidinal treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners; EXCEPT that you are not required to take Selective Serotonin Reuptake Inhibitor medication or other antilibidinal/anti-testosterone medication unless you consent to do so;
To engage with mental health services and to obey the instructions of the treating psychiatrist with regard to treatment and medication;
Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that 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 anti-depressant 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;
Comply with the requirements of: Uniting WA (UWA) and all programs designed to assist you to perform daily living activities and/or reduce your risk of serious sexual re-offending, as directed by a CCO;
Prevention of high-risk situations
With the exception of public transport, not to enter in or on any vehicle, including taxis and rideshare vehicles such as but not limited exclusively to Uber, where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by the CCO;
Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO;
Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO;
Report any unsolicited interaction with females at your residential address to the CCO and the Serious Offender Management Squad at your next scheduled appointment;
Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
Provide a valid sample pursuant to Condition 46;
Not purchase, or possess, or consume or use alcohol;
Not to go, enter any part of your body inside, or remain at any licensed premises unless permitted or required to do so for the following reasons:
a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person
b)For a purpose, and duration approved in advance by a CCO;
c)On the order of a CCO or Police Officer;
Not remain in the presence of any person who is affected by alcohol or prohibited substances, or you ought to know are affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO;
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence;
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless
a)The contact is authorised in advance by the CCO and such contact is supervision at all times by an adult approved in advance by the CCO;
b)The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);
Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 53, without prior approval;
Enable device locking or password access of your computer, telecommunication and/or electronic devices, Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 53, or any online accounts, to any person other than a CCO or Police Officer;
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police;
Not to access online pornography, nor to be in possession of any pornographic material, in either hard-copy or digital form, or access or view pornography on the internet; Pornographic materials means printed or visual or any medium of material that contains the explicit description or display of sexual organs or activity [does not include chests, breasts or nipples or backsides with clothing covering the anus], unless authorised in advance from a CCO
Not enter the premises of, or access the services of, escort agencies or sex workers, including telephone communication, unless pre-approved by a CCO.
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;
You must provide your projected daily movements to your CCO in writing at your supervision sessions each week. You must provide any additional projected movements that you are not able to provide in advance in writing in your supervision sessions and any proposed deviations from your projected movements verbally by telephone call to your CCO. You must provide your projected movements for any weekend to your CCO by 3.00pm on the Friday before that weekend. You must not undertake the movement unless you have been given verbal or written approval by your CCO in advance, with the exception of the following circumstances:
a)To obtain urgent medical or dental treatment for yourself;
b)For the purpose of averting or minimising a serious risk of death or injury to yourself 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 and/or Police Officer;
Maintain a daily diary of your movements, activities and associations, if and as directed by the CCO, and present this diary to the CCO and Police upon request;
I authorise police officers from the Western Australia Police Force (WA Police Force) to access any cloud-based platforms or services associated with the devices I use, and examine the internet accounts at any time for the purposes of monitoring my online behaviour (absent any investigation for any offence). I understand and acknowledge WA Police Force will use passwords or tokens located within my devices to access any cloud based platforms and services and that a password may not be required. By authorising this I understand and acknowledge a Police Officer from the WA Police Force may change the password(s) to these accounts so I will no longer have access for as long as is required for legitimate evidentiary or law enforcement purposes only.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IHN
Associate to the Honourable Justice Lundberg
21 MARCH 2023
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