The State of Western Australia v MGD [No 2]
[2019] WASC 186
•29 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MGD [No 2] [2019] WASC 186
CORAM: DERRICK J
HEARD: 24 APRIL & 24 MAY 2019
DELIVERED : 29 MAY 2019
FILE NO/S: DSO 4 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MGD
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for Division 2 order - Whether offender is a serious danger to the community - Whether a continuing detention order or supervision order appropriate
Legislation:
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)
Evidence Act 1906 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Dr N R Barber |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Barber Legal |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Corbett [No 5] [2017] WASC 115
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
GBT v The State of Western Australia [2019] WASCA 40
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v MGD [2018] WASC 345
The State of Western Australia v Narrier [No 5] [2019] WASC 17
The State of Western Australia v Newland [2018] WASC 344
DERRICK J:
Introduction
In September 2018 the State of Western Australia (the State) applied pursuant to s 8(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) for an order under s 14 of the Act and for a Division 2 order under s 17(1) of the Act to be made in relation to the respondent.
On 14 November 2018 I heard the application under s 14 of the Act. On the same date I decided that there were reasonable grounds for believing that the court might, under s 17(1) of the Act, find that the respondent is a serious danger to the community. I published written reasons for my decision (the preliminary reasons).[1]
[1] The State of Western Australia v MGD [2018] WASC 345.
In accordance with my decision I made orders for the hearing of the application for the Division 2 order. I also ordered, pursuant to s 14(2)(b) of the Act, that the respondent be detained in custody until the conclusion of the hearing and the judgment on the application for the Division 2 order.
On 24 April 2019 and 24 May 2019 I heard the State's application for the Division 2 order (the application).
On the first day of the hearing of the application the State submitted that I should find that the respondent is a serious danger to the community and that he should be subjected to a continuing detention order. However, by the second day of the hearing of the application the State, in light of additional evidence that had been obtained since the first day of the hearing, changed its position and did not oppose the respondent being made subject to a supervision order containing various specified conditions.
The respondent conceded that it was open for me to find on all the evidence that he is a serious danger to the community. However, he submitted that even accepting that he is a serious danger to the community it is appropriate that he be made subject to a supervision order on the conditions specified by the State.
For the reasons set out below I have decided that the respondent is a serious danger to the community within the meaning of s 17(1) of the Act and to order pursuant to s 17(1)(b) of the Act that he should be released from custody on a supervision order containing a significant number of conditions.
The evidence
At the hearing of the application the State adduced without objection the following evidence:
1.A book of materials comprised of information relating to the respondent's past offending, historical psychological and other reports prepared in relation to the respondent, and reports prepared in relation to the respondent specifically for the application, namely a report prepared by Dr Gosia Wojnarowska, Forensic and Child Adolescent Consultant Psychiatrist, dated 5 April 2019, a report prepared by Dr Ben Bannister, Forensic Psychologist, dated 12 April 2019, a Proposed Dangerous Sex Offender Management Plan report prepared by Dr Tarmala Caple, Forensic Psychologist, dated 10 April 2019, and a Community Supervision Assessment Report prepared by Ms Aletheia Yun, Senior Community Corrections Officer, Community Offender Monitoring Unit (COMU), Corrective Services, Department of Justice, dated 16 April 2019;[2]
[2] Exhibit 1.
2.A disc containing a recording of the interviews conducted by police with the respondent in relation to his past sexual offending;[3]
3.An email sent by the Office of the Director of Public Prosecutions for Western Australia (DPP) to the court at 1.09 pm on 17 April 2019 setting out a brief supplementary opinion expressed by Dr Wojnarowska;[4]
4.An email sent by the DPP to the court at 1.23 pm on 17 April 2019 setting out a brief supplementary opinion expressed by Dr Bannister;[5]
5.An email sent by Ms Kara Cassam, Team Leader, COMU, Corrective Services, Department of Justice, to Mr Brent Meertens of the DPP at 3.58 pm on 23 April 2019;[6]
6.An email sent by Ms Cassam to Mr Meertens at 4.37 pm on 23 April 2019;[7]
7.An updated Community Supervision Assessment Report prepared by Ms Cassam dated 20 May 2019;
8.An email sent by Dr Bannister to Ms Cassam on 21 May 2019 containing a further brief supplementary opinion of Dr Bannister;
9.An email sent by Ms Cassam to Mr Meertens at 11.30 am on 22 May 2019 setting out the results of a Desktop Spatial Analysis conducted in relation to a particular residential address;
10.An email sent by the DPP to the court at 2.26 pm on 22 May 2019 setting out a further brief supplementary report of Ms Cassam; and
11.An email sent by the DPP to the court at 4.50 pm on 22 May 2019 setting out some further information provided by the COMU in relation to the above referred to residential address the subject of the Desktop Spatial Analysis.
[3] Exhibit 2.
[4] Exhibit 3.
[5] Exhibit 4.
[6] Exhibit 5.
[7] Exhibit 6.
During the first day of the hearing on 24 April 2019 Dr Wojnarowska, Dr Bannister, Dr Caple and Ms Yun were called by the State to give supplementary oral evidence. They were not cross‑examined by the respondent's counsel.
The respondent elected not to adduce any evidence on the application.
The relevant statutory provisions and applicable legal principles
Section 17 of the Act provides as follows:
17.Division 2 orders
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
(2)Subject to subsection (3), in deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
(3)A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.
(4)The onus of proof as to the matter described in subsection (3) is on the offender.
The term 'offender' used in s 17(1) is defined in s 8(1) of the Act as a person in relation to whom an application for an order under s 14 and for a Division 2 order is made.
Section 7(1) of the Act provides:
Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
The references in s 7(1) to a 'continuing detention order' and to a 'supervision order' are references to an order made under s 17(1)(a) and an order made under s 17(1)(b) respectively.[8]
[8] Act, s 3.
As to the term 'serious sexual offence' used in s 7(1) (and also in s 8(1)), s 3 of the Act relevantly provides that 'serious sexual offence' has the meaning given to the term in s 106A of the Evidence Act 1906 (WA). Section 106A provides that the term 'serious sexual offence' means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years imprisonment or more, or an offence under a repealed section of the Criminal Code (the Code) if the acts or omissions that constituted an offence under that section are substantially the same as the acts or omissions that constitute an offence (the new offence) under a section or Chapter of the Code mentioned in pt B of sch 7 and the maximum penalty that may be imposed for the new offence is 7 years or more.
If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1), it necessarily follows that the person is a serious danger to the community.[9]
[9] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66], [68]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21]; The State of Western Australia v Newland [2018] WASC 344 [12]; GBT v The State of Western Australia [2019] WASCA 40 [21].
An unacceptable risk of the kind described in s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence the person is likely to commit (if that can be predicted), the serious consequences for the victim if the person commits a further serious sexual offence and the serious consequences for the person if a continuing detention order or supervision order is made.[10] That is, the court is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[11]
[10] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [12]; GBT v The State of Western Australia [21].
[11] Director of Public Prosecutions (WA) v Williams [63]; GBT v The State of Western Australia [21].
Section 7(2) of the Act provides:
The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied ‑
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
In other words, before the court can find that the person is a serious danger to the community, the court must be satisfied by acceptable and cogent evidence and to a high degree of probability that there is an unacceptable risk that if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[12] This does not necessarily mean that the risk must be at some high percentage of probability, a risk may be less than 50% yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[13]
[12] Director of Public Prosecutions (WA) v GTR [28].
[13] Director of Public Prosecutions (WA) v GTR [28]; The State of Western Australia v Newland [15].
Section 7(3) of the Act provides as follows:
In deciding whether to find that a person is a serious danger to the community, the court must have regard to ‑
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record; and
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
Although s 7(3)(g) of the Act provides that a court must have regard to the person's criminal record in deciding whether the person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future if he were not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they have been committed. Nonetheless, past behaviour is often a good indicator of future conduct.
As is apparent from the terms of s 17(1) of the Act, if the court finds that the offender is a serious danger to the community, the court must then make a continuing detention order or a supervision order.[14] Further, and as s 17(2) of the Act specifies, the paramount consideration for the court, in deciding whether to make a continuing detention order or a supervision order, is to be the need to ensure adequate protection of the community. However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[15] The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.[16]
[14] Director of Public Prosecutions (WA) v Williams [68]; Director of Public Prosecutions (WA) v GTR [51].
[15] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21].
[16] The State of Western Australia v Latimer [2006] WASC 235 [24]; Director of Public Prosecutions (WA) v Decke [15]; The State of Western Australia v Newland [22].
With respect to s 17(3) of the Act the term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition under s 18(1) that must be included in the order. Section 18(1) of the Act specifies seven conditions that must be included in any supervision order.
For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable, the attainment of the general object of the supervision order and the Act, namely the adequate protection of the community by management and mitigation of the risk that the offender will commit a serious sexual offence.[17]
[17] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v Narrier [No 5] [2019] WASC 17 [113].
Section 17A(7) of the Act provides, so far as is relevant, that in considering the application the court can have regard to the victim submission.
Is the respondent a serious danger to the community?
I turn to deal with the question whether the respondent is a serious danger to the community within the meaning of s 17(1) by reference of the factors specified in s 7(3).
Factors specified in s 7(3)
Antecedents and criminal record - s 7(3)(g)
Antecedents
The respondent was born in Tasmania on 11 June 1953. He is therefore now 65 years old.
In the preliminary reasons I summarised the respondent's background and personal circumstances. My summary, which is sufficient for present purposes, was as follows:[18]
[18] The State of Western Australia v MGD [17] ‑ [23].
The respondent is the fourth of five children born to his parents. His parents are deceased.
The respondent's parents' marriage was strained. They separated when he was 19.
The respondent was not subjected to any physical or sexual abuse as a child. However, it would appear that neither of his parents demonstrated any significant love or affection for him. In this respect he experienced an emotionally deprived childhood.
The respondent has no contact with his siblings.
The respondent left school at the age of 16. On leaving school he completed a motor mechanic apprenticeship. He had a consistent employment history prior to being imprisoned.
Prior to being imprisoned the respondent had been involved in several long term relationships. He was in a relationship at the time of being imprisoned. The relationship had commenced in 1993. The relationship had produced one child, a daughter, who was about 10 years old at the time of the respondent's convictions for his serious sexual offences.
The respondent had, at the time of his convictions, been living in this State for approximately 20 years.
Criminal record - offences of which the respondent was convicted prior to being convicted of the serious sexual offences
In the preliminary reasons I summarised the materially relevant offences of which the respondent was convicted prior to being convicted of the serious sexual offences for which he is currently in custody and which have resulted in the application. My summary, which is again sufficient for present purposes, was as follows:[19]
On 7 July 1989 the respondent was convicted in Tasmania of an offence of indecent assault. He committed the offence on 27 February 1989 against a 41‑year‑old female with an intellectual disability. He had come into contact with the victim in the course of his work as a volunteer at a community centre for disabled persons. It is not entirely clear on the available evidence precisely what sexual act formed the basis of the conviction. The respondent was sentenced to a term of imprisonment of 6 months wholly suspended for 18 months with a 'supervised probation order' and a requirement that he be of good behaviour during the term of the period of suspension.
On 22 April 1996 the respondent was convicted of three cannabis related offences for which he was fined.
On 15 April 2005 the respondent was convicted of one offence of aggravated common assault. The assault was comprised of the respondent, during an argument with his partner, striking his partner to the face. The respondent was sentenced to a 12 month community based order with program and supervision requirements, and a requirement that he undertake 100 hours of community work.
Criminal record - the serious sexual offences of which the respondent was convicted on 8 September 2009
[19] The State of Western Australia v MGD [24] ‑ [26].
On 8 September 2009 the respondent pleaded guilty to, and was convicted of, 21 offences the subject of District Court indictment 847 of 2009 dated 20 August 2009. The 21 offences were comprised of 16 offences of indecently dealing with a child under the age of 13 (counts 2 to 10, 12 and 16 to 21), one offence of encouraging a child under the age of 13 to do an indecent act (count 13) and four offences of sexual penetration of a child under the age of 13 (counts 1, 11, 14 and 15). All of the 21 offences are 'serious sexual offences' as defined in s 3 of the Act.
The respondent committed the 21 offences during the period January 2001 to November 2008 against six different female victims aged from 3 to 11 years old. The victims included the respondent's step nieces, his step granddaughter and friends of his daughter.
The respondent was sentenced to a total term of 10 years imprisonment for the 21 offences. He was made eligible for release on parole.
The facts of the respondent's 21 offences are as follows.
Count 1
The respondent was 48 years old. The victim was 4 years old.
Sometime in 2001 the victim was at the respondent's house in Broome. The victim went to the respondent's house to play hide and seek with a friend.
While playing the game of hide and seek the victim ran into a bedroom inside the house to hide under a bed from her friend. The respondent entered the bedroom and closed the door. He was wearing nothing but a towel around his waist. He told the victim in an ill‑tempered tone to take her clothes off. The victim came out from under the bed and removed her clothes. She did so because she was scared.
After the victim had undressed the respondent told her to climb onto the bed. The victim did what she was told and moved into the middle of the bed laying on the outside of the covers.
At this point the respondent dropped his towel. His penis was erect. He climbed on top of the victim and reached between her legs. He spread the victim's legs apart and moved on top of her. He used one of his hands to guide his penis into the inner lips of her vagina. The victim was crying in pain and told the respondent to stop. The respondent said to the victim, 'relax, its okay'. He continued to rub his penis on the inner lips of the victim's vagina.
After a few minutes the respondent stopped what he was doing, got off the victim and ejaculated onto the towel. He then wrapped the towel around his waist and told the victim that he had to go to the toilet. He also said to the victim, 'Do you want some popcorn? It's our little secret'.
After he had been arrested for the offence the respondent told the police that he had done a similar act with the victim on three to five other occasions over a time frame of approximately two years.
Counts 2 and 3
The respondent was 48 years old. The victim was the respondent's 6‑year‑old step‑niece.
On a weekend in 2001 or 2002 the victim was at the respondent's house in Broome. The victim was playing outside with other children when the respondent asked them all to come inside and go to a room inside the house. Once all the children were in the room the respondent put on an explicit adult pornographic video and asked the victim and the other children to watch the video (count 2). The respondent sat on the bed next to the victim.
Half way through the video the respondent, who was still sitting on the bed next to the victim, took his clothes off and lay down on the bed. A short time later he stood up, placed both of his hands on his penis and began masturbating himself in full view of the victim. He eventually ejaculated on a towel (count 3).
Counts 4 to 10
The respondent was 48 years old. The victim was the respondent's 10‑year‑old step‑niece.
On a weekend during 2001 or 2002 the victim was at the respondent's house in Broome. The victim was outside watching some children jumping on a trampoline. The respondent came into the yard naked and jumped on the trampoline with the children. At the respondent's suggestion the children played a game where they jumped and fell down with the respondent landing on top of the children. The victim saw the respondent vigorously rub his naked body over the children while he was on top of them (count 4).
The respondent suggested to all the children that they go inside his house. Once the children were inside his house he put on an adult pornographic video. He then sat down with the children including the victim to watch the video (count 5).
At some point the respondent moved to the doorway of the room. While the victim was watching the adult pornographic video he undressed himself and continued to stand in the presence of the victim while completely naked (count 5).
A short time later the respondent placed both his hands on his penis and masturbated in full view of the victim. He ejaculated on a towel (count 6).
During another weekend in 2001 or 2002 the victim was once again at the respondent's house in Broome. The victim was lying underneath a doona in a bed inside the house. The respondent came into the room and lay under the doona with the victim. The respondent opened his legs, ensuring that his penis dropped from the side of his shorts in full view of the victim. The respondent then ejaculated on his leg and got out of the bed to find something to wipe his penis with (count 7). The victim got up and left the room.
On another weekend during 2001 or 2002 the victim was once again at the respondent's house in Broome. The victim was watching television in the lounge room area of the house. The respondent sat down and watched the television with the victim.
After a short time the respondent got up and left the lounge room and walked to his own bedroom. A short time later the victim got up and walked past the respondent's bedroom. The door was open as she walked passed. She saw the respondent lying naked on his bed. The respondent looked at the victim and placed both his hands on his penis and began masturbating himself in full view of the victim (count 8). The respondent told the victim not to say anything.
On another weekend during 2001 or 2002 the victim was again at the respondent's house in Broome.
The victim was in a bedroom inside the house on a computer. The respondent walked into the room naked and asked the victim to lie down on the bed. The victim did so. The respondent then asked the victim to take her clothes off. The victim got up off the bed and took her clothes off and then sat back down on the bed. The respondent sat down on the right hand side of the victim and used both of his hands to rub the victim's vagina (count 9).
Once the respondent had finished rubbing the victim's vagina he instructed her to lie face down on the bed. The victim did as she was told. The respondent then moved himself on top of the victim lying on her back. He pushed his erect penis between her bottom cheeks and over her anus and over her vagina. The victim felt the respondent's penis rub against her anus, experienced pain and asked the respondent to stop (count 10).
At this time the victim and the respondent heard a car stop in the driveway of the house. The respondent stopped what he was doing, got up off the victim and rushed out of the room leaving the victim in a state of fear.
Counts 11 ‑ 15
The respondent was 48 years old. The victim was the respondent's 3 or 4‑year‑old step‑granddaughter.
Sometime in 2001 the victim was at the respondent's house in Broome. On one evening while the victim was sitting in the lounge room the respondent came and sat next to her. The respondent put his hand on the victim's hip. He then moved his hand down under the victim's pants and inserted a finger into her vagina (count 11). The respondent heard his daughter calling him and stopped what he was doing. The victim ran into a bedroom and hid under a bed until her grandmother came home.
In March 2005 the victim's family went to Singapore. The victim stayed with the respondent at his home in Stratton.
On one weekend evening the victim was sitting in the lounge room covered with a blanket watching television. The respondent sat down next to the victim. He moved his right hand under the blanket onto the outside of the victim's clothes and onto the outside of her vagina area. He commenced to rub the victim's vagina (count 12). The victim pushed the respondent away and got up saying 'no'.
On an evening on the same weekend the victim went to sleep next to the respondent and his daughter. The respondent removed his penis from his shorts and requested the victim to play with it. He encouraged the victim to touch his penis. The victim refused and left the room (count 13).
On 24 March 2009 the respondent was interviewed by the police about his offending against the victim. During the interview he admitted to inserting his penis into the victim's vagina on more than one occasion between two and four years earlier in his house in Stratton in his bedroom (count 14, the charge being a representative count). The respondent was unable to remember the actual incidents of the offending but was certain they occurred at his home in Stratton.
During the same interview the respondent also admitted performing cunnilingus on the victim on more than one occasion (count 15, the charge being a representative count). The respondent could not remember the actual incidents of the offending.
Count 16 ‑ 18
The respondent was 55 years old. The victim was 10 years old.
In May 2008 the victim was at the respondent's house in Stratton. At the time the victim regularly spent Thursday evenings shopping with the respondent's 9‑year‑old daughter. The victim would then sleep over at the respondent's address.
On the evening in question the victim was playing on the computer in the lounge room area of the respondent's house. The respondent was also sitting in the lounge room area. The victim heard a squeaky sound coming from the direction of the respondent. She looked over to the respondent. The respondent made eye contact with the victim while masturbating his penis. The victim looked away towards the computer (count 16).
On a Thursday night in August 2008 the victim went to sleep alongside the respondent's 9‑year‑old daughter in the respondent's bedroom. A short time later the respondent lay down next to his daughter. At some time during the night the victim was lying on her side facing away from the respondent. She was woken up by the respondent rubbing her bottom on the outside of her pyjama pants. The respondent slowly forced the victim's legs slightly apart and placed his fingers on her vagina and began pressing against her vagina, again on the outside of her clothing (count 17).
After pressing his fingers against the victim's vagina the respondent got up off the bed and stood next to the victim facing her. The respondent took hold of the victim's left wrist and placed her hand on his exposed penis. He placed his hand on top of the victim's hand and moved her hand in an up and down motion on his penis (count 18). At this point the victim made a noise to let the respondent know that she was aware of what was occurring. The respondent let go of her hand and walked away.
The victim later reported to the police that she had seen the respondent masturbate on two other occasions, once on the couch in the lounge room when he had no pants on and his legs were spread open and once when she walked passed the kitchen area.
Counts 19 ‑ 21
The respondent was at the time 55 years old. The victim was 11 years old.
In September 2008 the victim was at the respondent's house in Stratton. The victim was playing outside in the yard with the respondent's daughter and three other children. The respondent approached the children and asked them to come inside his house to watch something. The victim then went into the computer room of the house and sat on the couch.
Once the victim was in the computer room the respondent played a movie of explicit adult sex scenes (count 19). After watching the movie for a period of time the victim got up off the couch and walked away.
On another date in September 2008 the victim was again at the respondent's house in Stratton. The respondent was in the kitchen area making pancakes for the victim.
The victim walked into the kitchen and saw the respondent holding his penis with his hand. The respondent commenced masturbating over the pancakes. The respondent was only wearing socks at the time. He made eye contact with the victim while he masturbated (count 20).
On Wednesday 17 September 2008 the victim was once again at the respondent's house in Stratton. The victim was sitting in the computer room on a couch with three other girls including the respondent's daughter. The respondent, who was wearing only socks, walked into the computer room and sat down next to the victim on the couch. He had some hand cream and he began placing his hands on his penis and masturbating in front of the victim (count 21). The victim got up from the couch and moved to the lounge room.
Criminal record - the serious sexual offences of which the respondent was convicted on 13 April 2010
On 13 April 2010 the respondent pleaded guilty to, and was convicted of, two offences the subject of District Court indictment 277 of 2010 dated 1 February 2010. The two offences were offences of indecently dealing with a child under the age of 13. The offences were committed against the one female victim.
The respondent was sentenced to a total term of 6 months imprisonment for the two offences. The 6 month term was ordered to be served concurrently with the 10 year term imposed on 8 September 2009.
The facts of the respondent's two offences are as follows.
The respondent was 55 years old and the victim was 7 years old.
On a day between August 2008 and November 2008 the respondent was at his house in Stratton. The victim was at the respondent's house playing with the respondent's daughter and some other friends.
The respondent was in the computer room of the house. He was sitting naked on a sofa while the children played on the computer. The respondent pretended to read a book and masturbated in full view of the victim (count 1). The respondent continued to masturbate until the victim and the other children left the room.
On another occasion between August 2008 and November 2008 the respondent was at his house in Stratton. The victim was at the house playing with the respondent's daughter and some other friends.
The respondent was in the computer room of the house. He was sitting on a sofa naked while the children were in the kitchen making a snack and getting a drink. The respondent was playing a game on his mobile phone and masturbating in full view of the victim (count 2). The respondent continued to masturbate until he received a phone call on the mobile phone which caused him to stop what he was doing and to go to a different area of the house.
Current situation
The respondent became eligible for release on parole on 3 March 2017. However, he was denied parole at his own request. If I had not made the above referred to order under s 14(2)(b) of the Act the respondent would have been released on 24 March 2019.
The respondent has no contact with his biological daughter (who is now approximately 20 years old), his siblings or members of his extended family.
The respondent's siblings and other family members live in the eastern states. The respondent has expressed a wish to re‑establish contact with his family members including his daughter.
The respondent's primary sources of support in the community are AB, a male friend who he has known for about 15 years, and AB's partner CD.
The respondent co‑owns the house in Stratton in which he committed a number of his above referred to offences with AB and his, that is, the respondent's, former partner (the mother of his biological daughter). The respondent owns a 25% share in the house. AB lives in the house with CD and their adult son.
The respondent has expressed an intention to keep in contact with the chaplain at Karnet Prison Farm for additional support if he is released from custody. He has also stated that given his active interest in Buddhism he will, if he is released from custody, seek support through the Buddhist Monastery in Serpentine.
The respondent has indicated that upon his release from custody he intends to rely on his Centrelink benefits while he undertakes a search for employment in the horticulture or automotive industries. He has expressed a wish to be able to recommence contributing to the mortgage repayments of the shared property in Stratton.
Efforts by the person to address the cause or causes of the person's offending behaviour, including that the person has participated in any rehabilitation program - s 7(3)(e)
In 2012 the respondent completed an Intensive Sex Offender Treatment Program (ISOTP) while in custody. In the preliminary reasons I described the respondent's engagement in the ISOTP and the results thereof in the following terms:[20]
[20] The State of Western Australia v MGD [60] - [77].
On 7 June 2011 the respondent commenced the Intensive Sex Offender Treatment Program. He completed the program on 14 December 2011.
A Program Completion Report dated 4 April 2012 was prepared by two senior programs officers and a clinical supervisor. The report reveals the following.
The respondent's level of participation in the program was variable. He appeared ambivalent in relation to seeking treatment. He was reluctant to discuss his future plans for managing risks.
During the program the respondent took responsibility for his offences. He acknowledged his role in selecting victims and creating opportunities to offend. He did not make any attempt to blame the victims for what he had done. However, he did not impress as appreciating the seriousness of his actions. During his pre group interview he referred to his offending occurring due to 'sexual urges and addiction'. However, he did not repeat these views during the remainder of the program.
The authors of the report had difficulty gauging whether the respondent was remorseful for his actions given that his emotional demeanour rarely changed. The respondent was able to identify the potential impacts of his offending on his victims. However, he reported that he had difficulties adopting 'perspective taking'.
The respondent relayed a familial and sexual development history which largely mirrored what he had conveyed to Ms Zuin and the writers of the pre‑sentence reports.
The authors of the report identified the following background factors that were in existence in the six months leading up to the commencement of the respondent's offending:
1.Relationship and intimacy issues: The respondent's partner developed a gambling habit which resulted in decreased intimacy. The respondent had trouble expressing his needs to his partner. He developed a preference for his partner to be away from home so that he could experience his fantasies and have private contact with the children;
2.Sexual fantasies: The respondent was experiencing sexual fantasies involving female children that he had access to and was taking care of. Just prior to committing the offences he was preoccupied with sexual thoughts about female children. He specifically fantasised about ways that he could masturbate around female children; and
3.Avoidant coping: The respondent was preoccupied with work and his inappropriate fantasies involving female children. He therefore did not take any steps to repair his relationship with his partner.
During the program the respondent identified the following 'immediate factors as salient in his decision' to commit his offences:
1.Emotional needs: He felt that he had an emotional connection with the victims that he did not share with his partner. He found being with children to be less emotionally complicated and demanding than being with adults;
2.Sexual preference: He admitted to being sexually attracted to female children and to fantasising about them when masturbating. He would fantasise about his victims during his sexual encounters with his partner. He experienced gratification and 'a thrill' when the children saw him masturbating, and played out fantasies about female children in his mind just prior to committing his offences;
3.Creating opportunities: He created an environment where children could come and go and he created loose boundaries within the household. He played hide and seek in order to get the victims where he wanted them in the house;
4.Overcoming thought processes: He groomed his victims by gradually exposing them to sexualised behaviour. He had thoughts around believing that the victims enjoyed masturbating him and believing that he had fallen in love with them. He also had thoughts that sex and nudity were a normal part of growing up and therefore engaged in sexual acts in front of the children.
The respondent indicated that he did not see himself entering into a relationship in the future. He did not put forward any suggestions as to how he would meet his sexual and intimacy needs. He stated that he 'did not need to consider this in the future'.
The respondent acknowledged access to children to be a risk factor for him. He stated that he would not form any relationships, including friendships with females, who have children or grandchildren who are of a similar age to the victims of his offences. He commented that he had placed 'moral boundaries' on himself as a deterrent from offending in the future. However, many of the deterrents identified by the respondent centred on remaining vigilant and self‑protection rather than not wanting to cause harm to others.
The view of the authors of the report was that the respondent did not have realistic and adequate plans in place to manage the risk of future contact with children.
The respondent reported no current unhealthy sexual fantasies. He maintained that he had last experienced deviant fantasies 'years ago'. He stated that he believed that his self‑control would combat any temptation that may arise in the future. When the respondent was questioned about how these fantasies had become dormant he could not articulate precisely how this had occurred. However, he stated that he had applied certain Buddhist philosophical methods including mindfulness and awareness.
The respondent maintained that his attraction to 8‑year‑old females had subsided since he had been imprisoned. He did not provide any explanation for how or why this had occurred. He acknowledged that at the time of his offending he had objectified children and seen them as sexual objects. He stated that he would deal with this in the future 'by not becoming aware of the child's body parts that he found attractive'.
The respondent identified several risk factors including feeling trapped, pressured, worthless and that he was a failure. He indicated that he would cope with these feelings by being open in relationships, being aware of these feelings, communicating his needs and wants, compromising, being mindful of not blaming others, taking ownership and ending dysfunctional relationships. He stated that he was open to receiving professional assistance if these strategies did not alleviate his feelings of being trapped, pressured, worthless and that he was a failure.
The authors of the report considered that the respondent's abilities to implement the above stated strategies was 'dubious' given that he experienced difficulties communicating his needs and wants in the group context and was reluctant to explore and discuss other uncomfortable feelings.
Using the Static 99 risk assessment tool, the authors found the respondent to represent a Medium‑High risk of sexual reoffending.
In the view of the authors, the respondent made some treatment gains during the program including gaining some understanding of the factors underlying his offending and demonstrating a greater acceptance of responsibility for his offending. However, they considered that the respondent's self‑management plan could be further strengthened by additional support in the area of identifying practical measures to deal with high risk situations, 'exploring and management' around unhealthy sexual fantasies, more consideration of potential risk factors including contact with children and deviant thoughts and fantasies, and practical and specific plans around coping and emotional management. Overall, the opinion of the authors was that the respondent's self‑management plan lacked practical and realistic strategies to apply in the future.
The recommendations of the authors were that the respondent abide by any Victim Mediation Unit agreements currently in place, have no unsupervised contact with children under the age of 16 years, undergo programs to address his outstanding needs, and show his self‑management plan to a community corrections officer in order to gain assistance with its development, implementation and monitoring.
The respondent has not engaged in any further programmatic intervention since I published the preliminary reasons.
Psychiatric reports prepared as required by s 37 of the Act and the extent to which the person cooperated when examined by the psychiatrist - s 7(3)(a)
In accordance with the orders that I made on 14 November 2018 the respondent has, pursuant to s 37(1)(a) of the Act, been examined and assessed by a qualified expert, namely Dr Wojnarowska. Based on her examination and assessment of the respondent Dr Wojnarowska prepared her above referred to report dated 5 April 2019 pursuant to s 37(1)(b) of the Act. Dr Wojnarowska was provided with all relevant material to enable her to carry out her examination and assessment of the respondent and to prepare her report.
Report
Dr Wojnarowska's report reveals the following.
Dr Wojnarowska saw and interviewed the respondent on 9 February 2019 and 20 February 2019 for a total of five hours.
The respondent informed Dr Wojnarowska that what he had done in committing his offences was abhorrent and that there was no justification for his behaviour.
Contrary to statements that the respondent had made to others who had assessed him in the past, the respondent told Dr Wojnarowska that he only started being 'curious' about children's sexuality at around the time that he committed his first sexual offence at the age of 48. When Dr Wojnarowska questioned him further about this assertion the respondent became angry and said that he did not want to talk about the details. Other than the irritability demonstrated by the respondent at this point the respondent was complaint with the interview process and rapport was established.
Contrary to statements that the respondent had made to a psychologist in 2008 to the effect that he had been offending against children since he was 8 years old and that the number of his victims could have been '20 to 1,000',[21] the respondent asserted to Dr Wojnarowska that he had only offended against the victims of the offences of which he had been convicted.
[21] Psychological report prepared in relation to the respondent by psychologist Ms Cinzia Zuin dated 29 July 2009 for use by the judge who sentenced the respondent for the offences of which he was convicted on 8 September 2009.
The respondent acknowledged to Dr Wojnarowska his sexual interest in children but said that he was uncomfortable discussing the topic further. The respondent dismissed the topic as something that had happened in the past and was of no current relevance.
With prompting the respondent told Dr Wojnarowska that he became interested in children when he first noticed 'that they do sexual things'. The respondent said that as a child and then as a teenager he liked looking at naked women and that he thought that maybe the children 'would want to experience something like that'.
He strongly opposed Dr Wojnarowska's suggestion that based on the information he had provided to other professionals in the past it was evident that he had a lifelong paedophilic interest.
The respondent informed Dr Wojnarowska that at the time of his offending he did not think he was hurting the children. He said that he started gaining insight into his offending and had reflected on what he had done over the years in prison before he was transferred to Karnet Prison Farm. He said to Dr Wojnarowska:
I have developed awareness of the pain that the child experienced, they had to hide it, it's not good to be a victim, stigma will always be there, they will have problems with friendships, relationships and their own children; they may get into drugs.
The respondent further stated in this context:
[The children] have lost the ability to discover what they should on their own; it will affect their growth and life in general; it will always be in their minds. I manipulated their innocence.
The respondent informed Dr Wojnarowska that he has always had a genuine sexual attraction towards adult females. He expressed the view that sexual dissatisfaction played a role, albeit not a significant role, in his offending.
The respondent denied engaging in grooming behaviour with his victims. He stated that the children came to his house to play with his daughter and became part of the family. He asserted that he never threatened the children or promised to give them anything. He denied ever speaking about 'secrets'. He stated that the children seemed unharmed and not fearful of him.
The respondent informed Dr Wojnarowska that he fantasised about the children at the time that he was having sex with his adult female partner. He stated that he would also fantasise about one of the victims prior to offending against her. He stated that he allowed himself to think that he was in love with his victims and that this was reciprocated. He stated that getting involved with adult women required time and effort and was associated with complications and that therefore children's simplicity was more appealing to him.
The respondent conceded that despite his fantasies of being in love with a victim, he had no respect towards the victims as human beings, and that he treated them like a sex object at the time of offending against them.
The respondent informed Dr Wojnarowska that his sexual offences were planned to a certain degree, although not much in advance. He stated that he would wait to see who came to the house and then he would manipulate the victim and his daughter to a type of play that would enable him to be alone with the victim. He said that he would always keep an eye on where his daughter was.
The respondent told Dr Wojnarowska that when a high associated with the sexual experience with a child wore off he would become dysphoric, ashamed of what he had done and at times suicidal. He said that he knew very well that what he was doing with the child was wrong but that he justified his conduct to himself by thinking that the child did not look disturbed or harmed and that he did not force them into any activity that they did not want to take part in.
In Dr Wojnarowska's view the statements made on prior occasions by the respondent to the effect that he had been offending since he was 8 years old until his arrest suggests a 'persistence and density' of offending during all of the respondent's adult life.
In Dr Wojnarowska's opinion, despite the respondent's claims that he did not groom his victims there is evidence to the contrary. In her opinion the respondent created an atmosphere of an open house where his daughter's friends were welcome to come and go. In her view although some of the offences committed by the respondent were opportunistic in nature, a significant proportion of the respondent's offending required planning and preparation in order to conceal it from his daughter and partner and can therefore be classified as predatory type offending.
In Dr Wojnarowska's opinion alcohol and illicit drugs were not a factor in the respondent's offending.
In Dr Wojnarowska's opinion the presence of an intimate relationship was not a protective factor against the respondent offending.
Dr Wojnarowska found it difficult to obtain from the respondent information bearing upon his current attitude towards the risk of him committing further sexual offences. The respondent informed Dr Wojnarowska that he did not fantasise about children anymore, and that any thought that he has about children 'is blasted out' of his consciousness. The respondent stated that he was still interested in adult females. The respondent was confident but not insistent that he would never reoffend as the thought of hurting children again was unacceptable to him. He said that his willpower was a protective factor. He also referred in this context to his interest in Buddhism and his extensive meditation that he engaged in on a daily basis.
The respondent informed Dr Wojnarowska that he did not think that participation in the ISOTP assisted in his insight, development or risk reduction. He stated that the ISOTP provided him with some directions in relation to triggers which in his case were 'seeing children doing something common, not necessarily sexual'.
When Dr Wojnarowska questioned the respondent about his safety plan in the community, the respondent said that his safety plan would be intrinsically linked with his meditation which he perceived as the most powerful protective factor against him reoffending. He stated that his life goal was to achieve even higher levels of enlightenment. He stated that had contacted the monks in Serpentine to ascertain if he would be permitted to live with them once released but that due to his offending history this would not be possible. He said that the monks had however invited him to visit them.
The respondent said that between his meditation and work that he would need to engage in in order to pay off his financial debt towards the victims, he would not have time to indulge in any thoughts about children. He said that he would not allow himself to have a connection with a woman who has young children in her family.
Dr Wojnarowska summarises the position in relation to the respondent's current attitude towards his risk of sexual reoffending by stating that it is evident that the respondent's sexual interest in children is still strong but that he has been aware of this interest and has been making a conscious effort not to dwell on the interest by using distraction, which in his case has involved him applying a technique called meditation.
In relation to his attitude towards supervision in the community, the respondent informed Dr Wojnarowska that he did not think that any conditions were relevant to his risk because he would never reoffend. Nonetheless, he stated that he did not mind being subjected to Global Positioning System (GPS) monitoring, restriction zones or any other conditions. He expressed the view that he did not think that psychological treatment was in his case necessary and that he did not think that such treatment would increase his insight into his offending or decrease the risk of his reoffending. Nonetheless, he stated that he would be fully compliant with any conditions imposed by the court including a condition requiring psychological counselling.
The respondent informed Dr Wojnarowska that he deserved his sentence and what could be his future if he was confirmed as a dangerous sexual offender. The respondent also said that as much as he would like to be released, he would not be disappointed or devastated if he is not released. According to Dr Wojnarowska this indicates that the respondent is content with his life.
According to Dr Wojnarowska, the respondent's insight and his self‑management plan as presented to her was similar to the one described by the respondent in the ISOTP. In Dr Wojnarowska's view the respondent's 'thought process has not been accessible to draw any conclusion about the risk reduction'. In Dr Wojnarowska's view the respondent has not been able to convey his self‑management plans in a convincing way.
The respondent informed Dr Wojnarowska that he has not masturbated for years and that his sexual fantasies are limited to fleeting thoughts about women that he has encountered in the past. He strongly denied fantasising about children.
The respondent informed Dr Wojnarowska that he was adamant that he would not be looking for a relationship if released, at least initially. He said that if he found anyone his partner would need to share his interest in Buddhism and spirituality. He emphasised the fact that any partner would be a person with no access to young children.
The respondent said that if the fantasies of children returned the only way he would be able to combat the fantasies would be through meditation.
The respondent said that he would avoid any contact with children. He stated that he thought that adhering to the restriction zones would enable him to avoid contact.
According to Dr Wojnarowska the respondent did not appear to have a specific risk management plan apart from placing restrictions on himself in relation to his social contacts and practicing daily meditation.
In Dr Wojnarowska's opinion it would be highly unusual for the respondent's apparently intense and entrenched interest in pre‑pubescent female children ranging between the ages of 3 and 11 (as demonstrated by his commission of the serious sexual offences) to develop at the age of 48. In these circumstances, and given that the respondent has simultaneously been involved in adult sexual relationships, it is her opinion that the respondent fulfils the diagnostic criteria for Paedophilia non‑exclusive type, attracted to female children.
Dr Wojnarowska also diagnoses the respondent as having a Narcissistic Personality Disorder. She bases this diagnosis on the respondent's past history of his relationships and the circumstances of his offending. She considers that the respondent's avoidance of discussion regarding his sexual offending suggests his ego fragility and is a barrier to further treatment. She considers that the respondent's fascination with Buddhism, spirituality and meditation can be viewed as yet another, although not illegal, attempt on the respondent's part to escape the mundane reality of life which he has never been able to accept.
In assessing the respondent's risk of committing further sexual offences Dr Wojnarowska made use of actuarial instruments and structured clinical guides.
Actuarial instruments use mainly static (historical) risk factors. The actuarial instruments used by Dr Wojnarowska were the Static‑99R (Hanson & Thornton 1999) and the Hare Psychopathy Check‑List‑Revised (PCL‑R) (Hare 1991 and 2002) (PCL‑R).
Structured clinical guides use both static and dynamic (changeable) risk factors. They require clinicians to consider different factors which impact upon the assessment of risk. The structured clinical guide that Dr Wojnarowska made use of was the Risk Sexual Violence Protocol (RSVP).
The respondent's Static‑99R score was three which places him in Risk Level III (average risk) for being charged with, or convicted of, another sexual offence. In routine samples with the same score the five year sexual recidivism rate is between 7% to 8.8% with a predicted recidivism rate of 7.9%. This means that out of 100 sexual offenders with the same risk score, between 7 to 9 would be charged with or convicted of a new sexual offence after five years in the community. Conversely, between 93 to 91 sexual offenders would not be charged with, or convicted of, a new sexual offence during that time period.
Given that the Static‑99R does not measure all relevant risk factors the respondent's recidivism rate may be higher than that indicated by Static‑99R based on factors not included in the risk tool.
The respondent scored 14 on the PCL‑R which is significantly below the cut-off for the presence of a psychopathy. High PCL‑R scores alongside the presence of deviant sexual interests are the most important risk factors for predictions of future reoffending. The respondent did not achieve high scores on the assessment. His scores are consistent with the presence of narcissistic personality and draw attention to the areas of concern regarding his future manageability.
Using the RSVP Dr Wojnarowska identified in the case of the respondent a number of factors known to increase the likelihood of future sexual offending including his inability to appreciate his potential for future reoffending, his sexual deviance and the likelihood of him being resistant to future intervention. However, Dr Wojnarowska expresses the opinion that the respondent is likely to be compliant with supervision in that he has a history of completing a community based order and does not currently demonstrate any anti‑social or authoritarian attitudes.
Using the RSVP Dr Wojnarowska identified the most likely risk scenario for the respondent as involving him meeting a woman who has access to young children. In Dr Wojnarowska's view during the initial phase the respondent would be likely to resist the temptation to groom the children but once the novelty of his relationship with the female wore off he would then turn to children for 'a thrill of sexual experience'. In Dr Wojnarowska's view once the respondent started offending against the children he would find it very difficult to replace the experience with a child with an experience with an adult because his paedophilic interest is still strong. The physical harm that would be caused to the children by the respondent engaging in such conduct would, as Dr Wojnarowska notes, depend on their age (the younger the children the more physical harm that would be expected). However, in Dr Wojnarowska's opinion the physical harm would not escalate to life threatening violence. In Dr Wojnarowska's view the identified risk scenario is not imminent.
Based on her assessment of the respondent using the Static‑99R, the PCL‑R, and the RSVP, and also her clinical interviews with the respondent, Dr Wojnarowska is of the opinion that the respondent's current risk of committing further sexual offences is in the above average category. In arriving at this conclusion Dr Wojnarowska has taken into account the results from Static‑99R and the presence of a highly relevant factor, namely sexual deviance, which has elevated the respondent's predictive risk from average to an above average level.
In Dr Wojnarowska's opinion the respondent's risk of the respondent committing further sexual offences can be managed in the community if he is subject to a supervision order.
Dr Wojnarowska is of the opinion that the respondent's outstanding treatment needs can be addressed by psychological counselling in the community. The identified areas of intervention were outlined by the ISOTP facilitators and include further development of self‑management, identifying practical measures to deal with high risk situations, exploring and management of unhealthy sexual fantasies, and the implementation of practical and specific plans around coping and emotional management. In Dr Wojnarowska's opinion the respondent would not benefit from a community based sex offender treatment program at this point in time.
In Dr Wojnarowska's opinion if the respondent is subjected to a supervision order then in addition to the standard conditions the supervision of his internet access should be monitored.
Oral evidence
In her oral evidence Dr Wojnarowska maintained the views and opinions expressed in her report. She also gave the following supplementary evidence.
The fact that the respondent's paedophilic disorder is non‑exclusive suggests that he is also attracted to adult females.
The score of 14 which the respondent obtained on the PCL‑R was not significant in terms of her risk assessment.
The most important risk factor in terms of assessing the respondent's risk of reoffending is the presence of sexual deviance. This is the most important risk factor because it would be a driving force in his future offending.
The respondent's paedophilia has been constant over the years. It is unlikely that it has disappeared or significantly diminished while he has been in prison.
In relation to the most likely risk scenario that she has identified, the basis for her view that the risk is not imminent is that in the respondent's history of sexual offending there has always been an element of grooming of children that he is familiar with.
She has read the Community Supervision Assessment Report prepared by Ms Yun. She has read the supervision order conditions proposed by Ms Yun. She agrees with the conditions.
The respondent does have quite extensive treatment needs. However she considers that these treatment needs can be addressed in the community. She does not think that the respondent is suitable for group based sex offender treatment. She considers that individual psychological treatment would be the best option in the respondent's case.
She has two main reasons for thinking that the respondent is not suitable for group based sex offender treatment. The first is that there is some resistance on his part to such treatment associated not only with his feelings of shame for his offending, but also with his somewhat narcissistic assessment of what the facilitators try to achieve and also perhaps other participants. The respondent is of the opinion that he is quite capable of managing his risk by utilising meditation. The respondent is intelligent enough that he could create an impression that he is engaging in group based treatment when this was not the case.
Her second reason for thinking that the respondent is not suitable for group based treatment is the main area that needs to be addressed, namely the respondent's sexual deviance and pre‑occupation with children, is likely to be better addressed in individual psychological counselling rather than in a group setting.
Her reason for considering that the respondent's internet access should be monitored is that there is always a risk that the respondent may turn to viewing child pornography if his access to children is blocked.
She is aware that the respondent's house in Stratton is across the road from a park to which it can be assumed that many children will go to from time to time. Given this fact the respondent's house in Stratton is not ideal accommodation. However, overall she thinks that this can be managed and that the accommodation should be taken into consideration after a Desktop Spatial Analysis is conducted. She does believe that the respondent's risk can be managed by appropriate conditions and that there are not many places of accommodation that would not have proximity to parks or schools or pre‑schools.
She is aware that the respondent's friend AB has a criminal history involving drug dealing. It is her understanding that AB is now expressing condemnation of his past drug related criminal behaviour. In any event, the respondent's offending was not causally related to the drug intoxication or drug use.
Any other medical, psychiatric, psychological or other assessment relating to the person - s 7(3)(b)
I have already referred to the fact that the evidence relied upon by the State includes historical psychological and other reports prepared in relation to the respondent. I referred in some detail to the content of a number of these historical reports in the preliminary reasons.[22]
[22] The State of Western Australia v MGD [28] ‑ [59].
I have, of course, had regard to the historical reports in dealing with the application. However, I do not propose to repeat herein what I said in the preliminary reasons about the content of the historical reports (beyond the extent to which I do so in dealing with the factors specified in s 7(3)(e), s 7(3)(f) and s 7(3)(j)). It is simply not necessary for me to repeat what I have already said about the historical reports in order to explain the reasons for my decision on the application. Rather it is sufficient for me to refer to the additional reports that have been prepared in relation to the respondent specifically for the purposes of the application as well as the supplementary oral evidence given in relation to the reports.
Psychological risk assessment - Dr Bannister
In accordance with the orders that I made on 14 November 2018 the respondent has, pursuant to s 37(1)(a) of the Act, been examined and assessed by qualified expert Dr Bannister. Based on his examination and assessment of the respondent Dr Bannister prepared his above referred to report dated 12 April 2019 pursuant to s 37(1)(b) of the Act. Dr Bannister was provided with all relevant material to enable him to undertake his examination and assessment of the respondent and to prepare his report and prepared his above referred to report dated 12 April 2019 pursuant to s 37(1)(b) of the Act.
Report
Dr Bannister's report reveals the following.
Dr Bannister interviewed the respondent on 11 March 2019, 12 March 2019, 13 March 2019 and 22 March 2019 for a total of 11 hours and 40 minutes.
The respondent presented to Dr Bannister as a polite and affable man. A level of rapport was able to be established over the course of multiple extended interviews.
An impediment to the assessment process was the apparent lack of veracity of some of the respondent's answers to Dr Bannister's questions. Dr Bannister noted substantial inconsistencies between the information that the respondent provided to him and information that the respondent had previously provided to other professionals and assessors. This was particularly evident in discussion about the respondent's offending and his sexual behaviour. When attempts were made to clarify these inconsistencies the respondent gave various answers many of which were contradictory. Despite numerous direct challenges and often repeated efforts to elucidate clear responses to questions, the respondent's responses frequently remained unfocussed and convoluted. The respondent's presentation on one such occasion of being confronted with conflicting information was consistent with someone who was frustrated and angry. The respondent said that he felt he was 'always reaching, stretching but missing the mark'.
The respondent maintained to Dr Bannister that he first developed an interest in pre‑pubescent female children immediately prior to his sexual offending. When Dr Bannister asked the respondent about contradictory statements that he had made in the past which indicated that he had had an interest in children from the age of 8, that he had felt a sexual attachment towards his mother and female siblings as a child desiring sexual contact and often seeking to view them naked, and that he had attempted to engage in sexual play with his sisters, the respondent disputed that he had made any such statements and said that he was not speaking literally at the time of previous assessments.
When the respondent was asked to clarify the comments that he had made to the psychologist who prepared the report for use by the judge who sentenced him for the offences of which he was convicted on 8 September 2009[23] to the effect that he had offended against 20 to 1,000 victims, the respondent stated that he knew the question had been coming from the psychologist and that he 'wanted to blow her off' because he resented the intrusiveness of the enquiry. The respondent asserted that he did not offend against any children other than the victims of the offences of which he was convicted (although he accepted that there were clusters of associated inappropriate behaviour towards his victims leading up to his offending against them).
[23] Psychological report prepared in relation to the respondent by psychologist Ms Cinzia Zuin dated 29 July 2009.
Contrary to statements previously made by the respondent during his participation in the ISOTP to the effect that just prior to him committing the offences he was preoccupied with sexual thoughts about female children, the respondent denied to Dr Bannister that he fantasised about pre‑pubescent children prior to his offending. He said that he did not have to fantasise because he could just make the sexual offending happen.
When Dr Bannister asked the respondent about his current use of fantasies, the respondent said that while he had accessed memories of his child sex offending when he first entered prison, he generally does not now fantasise at all except for occasional brief periods shortly after waking or prior to going to sleep. The respondent also stated that he found sexual thoughts of children had the potential to be intrusive for him and required his active attention to manage. He explained that he believed his awareness around such thoughts was crucial and he expressed confidence in his ability to prevent such thoughts increasing in frequency and intensity.
The respondent told Dr Bannister that he thought about sex occasionally but also that he usually suppresses any sexual thoughts. He said that he does not currently masturbate and has not done so for years.
The respondent denied any current interest in children 'due to the weight' that he carries. He said that his current ideal partner would be a female aged 30 to 35 years.
The respondent informed Dr Bannister that at the time of committing his offences he was feeling 'detached from life and displaced from nature'. He said that he rallied against what he felt was society's expectations of him as he found such things to be unfulfilling. He indicated that this in turn encouraged him to have an uncaring and flippant attitude towards life resulting in a sense that both he and his life were worthless. He said that he believed that this contributed to his offending as it led him to having less accountability to others.
In addition to the respondent's pervasive sense of himself and his life being of little value, the respondent was also able to identify to Dr Bannister some specific antecedent factors of his offending. These factors included stress brought about due to financial difficulties resulting from his partner's gambling habits and conflict in their relationship, as well as resentment towards his partner due to his belief that their physical intimacy was too infrequent. The respondent also stated that he believed his offending had a specific acute precipitating factor namely that he believed that he saw one of the victims masturbating. He explained that this was what prompted the start of his offending. The respondent was unable to otherwise identify any acute antecedent factors. The respondent reported that his offending was typically followed by feelings of guilt and shame.
When Dr Bannister asked the respondent what his victims might have been feeling during the offending the respondent said that they would only have experienced 'curiosity'. However, after further questioning the respondent acknowledged that the victims were likely to have problems in relationships in their later lives. He said that the victims would not be able to 'wipe it out of their memories' and that it was 'a heavy weight for them'. The respondent stated that it made him cringe thinking about this and that it was hard to face society with that guilt.
The respondent also said that it was his opinion that the victims played some part in their own victimisation as demonstrated by their open 'curiosity' and 'willingness'. However, he added that he should not have 'capitalised on their curiosity'.
The respondent denied to Dr Bannister that his offending was accompanied by any form of coercion whatsoever. The respondent insisted that he said to all of his victims that they were free to go and to tell their parents about what had occurred.
The respondent maintained to Dr Bannister that he did not plan any aspect of his offending. However, he admitted that he engaged in activities whereby he could engineer particular outcomes and 'manipulate activities'. The respondent also said that it had been his intention to influence the victims in such a way as to create a degree of familiarity in relation to his offending behaviour (for example by walking around naked or masturbating) which then facilitated his offending. The respondent did not specifically identify this conduct as grooming behaviour. The respondent stated that generally he 'did what the victims wanted'. Furthermore, the respondent initially said that he believed the victims acted seductively towards him but then he altered his answers to deny that this was his opinion.
The respondent indicated to Dr Bannister that he was annoyed by the ISOTP. He said that the ISOTP 'wasn't feeding the things [he] thought it should, and didn't give [him] techniques about how to get rid of the behaviour'. The respondent further stated that it was his opinion that program staff should have taken a more direct teaching role, rather than a facilitative one. He stated that he did not receive any encouragement which is what he said he had sought. He stated that he was disappointed with the program facilitators' 'attitudes towards people', and that he felt that he had not learned anything about himself. He said that instead he had 'straightened [his] own moral compass' and completed 'the necessary ethical and behavioural work' independent of treatment.
The respondent indicated to Dr Bannister that in order for treatment to be effective it should be delivered by 'someone who has been there, done that … been on the other side of the fence'. He told Dr Bannister that he believed that he was unlikely to benefit from further treatment unless his treating clinician had 'gone through the same things' he had. He stated that the purpose of any treatment would be to reinforce what he already knows and that he would be willing to work in treatment with 'anyone on any level to get my message across about how I've dealt with it'.
The respondent informed Dr Bannister that his current relapse prevention plan is essentially to manage his external influences and be mindful of the consequences of his behaviour. He said he believed it was important to control his physical environment. He provided an example of such control as not seeking to establish a relationship with a woman who has children. He compared his future risk of sexual offending to an addiction to a substance such as alcohol, tobacco or sugar.
In relation to relapse prevention the respondent was able to articulate that successful relapse prevention required him to 'change his habits' and seek assistance from others. He said that it would be important for him to 'put [himself] in another mindset' by doing physical activity. He said that overall he felt his current risk of recidivism was 'minimal'.
In relation to his plans on release, the respondent told Dr Bannister that if he was released into the community he wanted to remain active, flexible and attain employment. He said that he would be interested in seeking casual intimate companionship with an attractive and appropriately aged woman who had no children in her life. He indicated that he understood that in the event he is found to be a dangerous sexual offender he would likely be required to inform any potential partner of this. He said that the likelihood of finding a prospective partner who meets all the necessary criteria is remote and that he has therefore accepted that he is unlikely to enter into a sexual relationship in the foreseeable future.
The respondent stated to Dr Bannister that he did not anticipate any issues with any potential supervision conditions, or meeting his supervision obligations, provided that he could both successfully navigate his way to a reporting centre in a convenient manner and that any of his prospective employers were aware of his obligations.
With respect to the issue of the explanation for the respondent having committed his serious sexual offences, Dr Bannister's opinion is that the offending was likely a result of the respondent's access to vulnerable individuals, specifically an intellectually disabled woman and pre‑pubescent children. He considers that the respondent's access to such victims meant that he was more readily able to assert dominance and to meet his needs relating to both intimacy and power/control. He considers that the respondent's offending continued as he created opportunities to offend, groomed his victims and engineered situations to achieve desired outcomes.
Based on the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM‑5), Dr Bannister diagnoses the respondent as having a Paedophilic Disorder; Non‑Exclusive Type; Sexually Attracted to Females. He considers that the respondent meets this diagnosis because over a period of at least six months he experienced recurrent sexually arousing fantasies, sexual urges and behaviours involving sexual activity with a pre‑pubescent child or children aged 13 or younger and acted on these sexual urges.
Dr Bannister also considers that the respondent may meet the DSM‑5 proposed diagnostic criteria of Narcissistic Personality Disorder.
Dr Bannister assessed the respondent for psychopathy using the PCL‑R. The respondent did not meet the clinical cut‑off score for psychopathy, scoring in the low range on the PCL‑R.
Dr Bannister assessed the respondent's current risk of sexual recidivism using the Violence Risk Scale: Sex Offender Version (VRS‑SO). The VRS‑SO is a structured clinical judgment tool designed to assess risk and predict sexual recidivism, to measure and link treatment changes to sexual recidivism, and to inform the delivery of sexual offender treatment.
The VRS‑SO comprises seven static (historical) and 17 dynamic (changeable) factors that have been empirically or conceptually linked to sexual recidivism. Making use of the VRS‑SO Dr Bannister's conclusion is that the respondent's total combined static and dynamic risk variable score is 48 out of a possible 72 which places him in the High Risk category of sexual offending as defined by the VRS‑SO normative sample. Dr Bannister considers that the nature of the risk that the respondent poses is predominantly related to sexual deviance and treatment responsivity factors, and that his general criminality is much less relevant to his risk.
Dr Bannister notes that using VRS‑SO normative sample, five and 10 year estimates of risk can be assigned to the respondent. He states that 24% of sexual offenders in the normative sample with the respondent's score sexually reoffended within five years of release to the community, and that with a 95% confidence interval this suggests that the respondent will have a 19.2% to 29.5% chance of sexually reoffending within five years if he is not subject to a supervision order. Dr Bannister states that 35.8% of sexual offenders in the normative sample with the respondent's score sexually reoffended within 10 years of release to the community, and that with a 95% confidence interval this suggests that the respondent will have a 30.8% to 41.1% chance of sexually reoffending within 10 years if he is not subject to a supervision order.
In Dr Bannister's opinion several treatment targets remain for the respondent including the following:
1.Exploration of the precipitating factors of his deviant sexual interest (which will also assist to increase his level of insight);
2.Addressing cognitive distortions associated with his offending;
3.Improving his relapse prevention plan, incorporating using a scenario based approach to risk management;
4.Improving his emotional regulation skills;
5.Improving his coping skills and stress management skills; and
6.Improving his communication skills and assertiveness.
In Dr Bannister's view the most likely risk scenario for the respondent is a breach by him of the conditions of a supervision order which may be brought about due to 'his underestimation of his ability to meet any obligations necessary under an order'. Dr Bannister gives as an example of this scenario a situation where the respondent feels his reporting is impeding his work such that he may choose to prioritise attending his job over meeting his reporting responsibility.
In Dr Bannister's view the most serious risk scenario for the respondent would involve the respondent establishing a relationship or friendship with a person that increases his access to a vulnerable person on a regular basis. He considers that in these circumstances the respondent may seek to groom the vulnerable person over time in order to offend against them. Dr Bannister considers that the respondent is unlikely to offend impulsively but that it is possible that this may occur in the absence of opportunities to groom victims.
Dr Bannister considers that the respondent currently presents with a number of outstanding criminogenic needs that may be amenable to treatment. However, he considers that any treatment provided to the respondent should ideally be preceded by 'treatment readiness work' in order to maximise the respondent's capacity to benefit from the treatment.
Ms Cassam apparently considers that the UCW property is a suitable property for the respondent to live in if he is released on a supervision order.
There is, of course, the possibility that if the respondent is released on a supervision order on the condition that he live in the UCW property he may be required to vacate the property at short notice as a result of it being established that his interest in the Stratton property puts him above the UCW assets threshold. However, as is apparent from the evidence to which I have referred UCW will, in these circumstances, allow sufficient time for the respondent, with the assistance of the COMU and his CCO, to find and move to alternative accommodation that has been assessed and approved as suitable for him. In any event, and as counsel for the State pointed out, it is invariably the case that when a dangerous sexual offender is released on a supervision order on a condition that they reside at a specified address, the specified address is provided as short term accommodation only and on the understanding that after an appropriate period of time alternative suitable accommodation will be found for the person. It is for this reason that the proposed residential condition (as is ordinarily the case with supervision orders) provides for a CCO to give approval in advance to the respondent living in a different address to that specified in the supervision order.
In all the circumstances to which I have referred, I am satisfied that the UCW property is a suitable property for the purposes of the proposed residential condition.
It follows from what I have said that I am also, on the basis of all of the evidence before me, satisfied that the need to ensure the adequate protection of the community is properly and satisfactorily met by releasing the respondent on a supervision order on the proposed conditions with the residential condition specifying the UCW property as the relevant residence. I am satisfied that the conditions are sufficiently extensive and stringent to enable the adequate management of the risk that the respondent currently presents to the community.
The final question which remains for my determination is the term for which the respondent should be required to be subject to a supervision order.
The evidence given by Dr Bannister was that the term of the supervision order should be for five years. It was not contended on behalf of the State or the respondent that a term of five years is not appropriate. In these circumstances I am satisfied that the respondent should be subject to the supervision order for a period of five years.
Conclusion
For the reasons that I have given I have determined that the respondent should be subject to a supervision order for a period of five years pursuant to s 17(1)(b). The terms of the supervision order are set out in Annexure 2.
ANNEXURE 1
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of your current name and address.
Report to, and receive visits from, a CCO as directed by the court.
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 days before the change happens.
Be under the supervision of a CCO, which includes complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).
Not leave, or stay out of, the State of Western Australia without the permission of a CCO.
Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.
Be subject to electronic monitoring under section 19A.
ADDITIONAL CONDITIONS
Residence
Take up residence at [address to be determined] 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 nominated 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, education, training or volunteer work without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any 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 sexual re‑offending, as directed by a CCO.
Reporting to WA Police
Report to the Officer‑in‑Charge of the Sex Offender Management Squad (SOMS) 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 SOMS or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).
If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the police officer believes to contravene the conditions of the order.
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the Dangerous Sexual Offenders Act 2006 (WA).
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.
Permit a CCO or WA Police to access any computer or device capable of storing digital data, for the purpose of ascertaining your computer activities, and provide to the CCO or WA Police upon request any passwords or any other device locking means required for such access.
Not delete any data from any computer or electronic storage device in your possession without prior permission from the CCO or WA Police.
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with victims
Have no contact, directly or indirectly, with the victims of your sexual offending, or EF, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Justice, or conducted in a manner approved in advance by the CCO, with such latter approval not to be given except with the express consent of the victim.
Unless contact with victims or EF is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to the CCO or Police.
Criminal conduct
Not commit any other criminal offence the maximum penalty for which includes imprisonment and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K of the Criminal Code 1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) 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 (WA), and your use is in accordance with the instructions of the prescriber.
Curfew
Be subject to a curfew, pursuant to s 19B of the Dangerous Sexual Offenders Act 2006 (WA), such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order you must ensure that all those people present in the residence who may answer the telephone or door are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Prevention of high‑risk situations
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 Officers upon request.
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.
To provide a valid sample for the testing described in condition 35.
Not remain in the presence of any person who you know, or ought to know, to be affected by a prohibited drug.
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.
To advise a CCO of every device used by you to access the internet and the location of that device.
With respect to any computer or telephone in your possession that is connected to the internet or has been used by you to access the internet, not to delete or otherwise remove or disguise any search histories or logs capable of identifying your activities on that computer, without the approval in advance of a CCO or Police Officer.
Not conduct computer searches for, access data containing, possess or collect in either electronic or permanent form, images of children, whether indecent or not.
Not be in present possession of any children's toy, game or confectionery capable of constituting an enticement to children, unless such possession is for a legitimate purpose.
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide details of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.
Report immediately to your CCO the formation of any domestic, romantic, sexual or otherwise intimate relationship by you with a person who has children under the age of 18 years in their care either full time or part time.
Not form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time, unless approved by a CCO.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Have no contact with, membership of, or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or a Police Officer.
ANNEXURE 2
SUPERVISION ORDER MADE BY THE HON JUSTICE DERRICK
ON 29 MAY 2019
The Court, having found pursuant to section 7 and section 17 of the Dangerous Sexual Offenders Act 2006 (WA) that the respondent is a serious danger to the community, orders that the respondent be the subject of a supervision order pursuant to section 17(1)(b) of the Dangerous Sexual Offenders Act 2006 (WA) for a period of 5 years from 19 June 2019, being a date not earlier than 21 days from the date this order is made, on the following conditions:
You, MGD, must:
STANDARD CONDITIONS REQUIRED BY THE ACT
1.Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address.
2.Report to and receive visits from, a Community Corrections Officer as directed by the court.
3.Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
4.Be under the supervision of a Community Corrections Officer, which includes, complying with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).
5.Not leave, or stay out of the State of Western Australia without the permission of a Community Corrections Officer.
6.Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.
7.Be subject to electronic monitoring under section 19A.
ADDITIONAL CONDITIONS
Residence
8.Take up residence [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 Community Corrections Officer (CCO) assigned to you.
Reporting to a CCO and supervision by a CCO
9.Reporting to a CCO at your nominated release address within normal business hours on the day of release from custody under this order.
10.Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
11.Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.
Attendance at programs or treatment
12.Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
13.Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re‑offending, as directed by a CCO.
Reporting to WA Police
14.Report to the Officer‑in‑Charge of the Sex Offender Management Squad 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 Sex Offender Management Squad or his/her delegate.
15.Comply with all obligations imposed on you under the Community Protection (Offender Reporting) Act 2004.
16.If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order.
17.Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the Dangerous Sexual Offenders Act 2006.
18.When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you, and all internet user names or identities used by you.
19.Permit a CCO or WA Police to access any computer or other device capable of storing digital data, for the purpose of ascertaining your computer activities, and provide to the CCO or WA Police upon request any passwords or any other means required for access to the device or the data contained on, or accessible from, the device .
20.Not delete any data from any computer or electronic storage device m your possession without prior pe1mission from the CCO or WA Police.
Disclosure/Exchange of Information
21.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
22.Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with victims
23.Have no contact, directly or indirectly, with the victims of your sexual offending, or EF unless such contact: is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Justice, Corrective Services; or is conducted in a manner approved in advance by the CCO, such latter approval being not to be given except with the express consent of the victim or EF as the case may be.
24.Unless contact with victims or EF is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending or EF (including being in the immediate presence of any victim or EF), without engaging in conversation with any victim or EF whether by word or gesture, and must avert your gaze from such victim or EF at all times.
25.Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to the CCO or Police.
Criminal conduct
26.Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
27.Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA).
28.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
29.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 authorized under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.
Curfew
30.Be subject to a curfew, pursuant to section 19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
31.When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
32.When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Prevention of high-risk situations
33.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 Officers upon request.
34.Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
35.Attend for, and submit to, urinalysis or other testing for prohibited drugs as directed by the CCO or by a Police Officer, including accompanying such person to an appropriate location for such testing to take place.
36.To provide a valid sample for testing pursuant to Condition 35.
37.Not remain in the presence of any person who you know, or ought to know, to be affected by a prohibited drug.
38.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.
39.To advise a CCO of every device used by you to access the internet and the location of that device.
40.With respect to any computer, telephone or other device in your possession that is connected to the internet or has been used by you to access the internet, not to delete or otherwise remove or disguise any search histories or logs capable of identifying your activities on that device, without the approval in advance of a CCO or Police Officer.
41.Not conduct computer searches for, access data containing, possess or collect in either electronic or permanent form, images of children, whether indecent or not.
42.Not be in present possession of any children's toy, game or confectionery capable of constituting an enticement to children, unless such possession is for a legitimate purpose.
43.Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone, or by electronic means, unless:
a.the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or
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).
44.Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
45.Provide details of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.
46.Report immediately to your CCO the formation of any domestic, romantic, sexual or otherwise intimate relationship by you with a person who has children under the age of 18 years in their care either full time or part time.
47.Not form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time, unless approved by a CCO.
48.As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
49.Have no contact with, membership of, or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
__________________________
THE HON JUSTICE DERRICK
I have received a copy of this order. I have had explained to me and understand the effect of this order and what may happen if I contravene it.
Signed by the respondent: _____________________
In the presence of: _____________________
Name and address: _____________________
_____________________
Date: _____________________
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick29 MAY 2019
10
3