The State of Western Australia v Misko [No 6] - [2018] WASC 389

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MISKO [No 6] [2018] WASC 389
CORAM:   DERRICK J
HEARD:   29 NOVEMBER 2018 & SUPPLEMENTARY WRITTEN SUBMISSIONS FILED ON 3 & 7 DECEMBER 2018
DELIVERED          :   13 DECEMBER 2018
FILE NO/S:   DSO 2 of 2012
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JOHN TERRY MISKO
Respondent

Catchwords:

Dangerous sexual offender - Fifth periodic review - Whether respondent remains a serious danger to the community - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if respondent released on a supervision order - Lack of suitable accommodation if respondent released on a supervision order - Operation of s 95 of the Prisons Act 1981 (WA) in the case of a dangerous sexual offender

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
Evidence Act 1906 (WA)
Prisons Act 1981 (WA)

Result:

Respondent remains a serious danger to the community
Continuing detention order affirmed

Category: B

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	Mr D J McKenzie

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	David McKenzie Legal Pty Ltd

Case(s) referred to in decision(s):

Director of Public Prosecutions (WA) v CMP [No 5] [2017] WASC 254
Director of Public Prosecutions (WA) v Corbett [No 5] [2017] WASC 115
Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v Latimer [No 7] [2014] WASC 229
Director of Public Prosecutions (WA) v Misko [2012] WASC 259
Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300
Director of Public Prosecutions (WA) v Misko [No 3] [2014] WASC 332
Director of Public Prosecutions (WA) v Misko [No 4] [2016] WASC 4
Director of Public Prosecutions (WA) v Misko [No 5] [2017] WASC 8
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions for Western Australia v Narrier [No 4] [2017] WASC 306
The State of Western Australia v DAL [No 3] [2017] WASC 260

DERRICK J:

Introduction

On 29 May 1999 the respondent was sentenced to a total of 20 years imprisonment for a series of serious sexual offences. The offences were the subject of three separate indictments.
On 5 July 2012 McKechnie J found that the respondent was a serious danger to the community and made a continuing detention order pursuant to s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act).[1] His Honour accepted the opinions of two psychiatrists that there was a high risk of the respondent reoffending sexually if he was released to the community due to the nature and extent of his prior history and denial of offending, his lack of insight and his refusal to participate in treatment programs.
[1] Director of Public Prosecutions (WA) v Misko [2012] WASC 259.
Since McKechnie J made the continuing detention order the respondent has been the subject of four annual reviews conducted pursuant to s 29 and s 31 of the Act.[2]
[2] Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300; Director of Public Prosecutions (WA) v Misko [No 3] [2014] WASC 332; Director of Public Prosecutions (WA) v Misko [No 4] [2016] WASC 4; Director of Public Prosecutions (WA) v Misko [No 5] [2017] WASC 8.
The fourth annual review was conducted by Corboy J on 28 November 2016. At the fourth annual review the respondent accepted that he remained a serious danger to the community and that the community could not be adequately protected if he was released pursuant to a supervision order. The respondent made these concessions on the basis that no suitable accommodation had been identified for him to move into if he was released into the community.[3]
[3] Director of Public Prosecutions (WA) v Misko [No 5] [7].
At the fourth annual review Corboy J concluded that the respondent's concessions were rightly made. His Honour found that the respondent remained a serious danger to the community and affirmed the continuing detention order.[4]
[4] Director of Public Prosecutions (WA) v Misko [No 5] [7].
In his reasons for decision Corboy J accepted that the respondent continued to present a high risk of sexual reoffending.[5] His Honour stated that it was apparent from the material presented at the review hearing that the respondent had made some progress in addressing the causes of his offending since the continuing detention order had been made.[6] His Honour noted in this context that the respondent had since the third annual review accepted responsibility for his offending and had consequently participated in individual psychological counselling and the Sex Offenders Intellectual Disability program (SODP).[7] However, his Honour further noted that the respondent's treatment gains had been limited primarily due to his limited understanding of his offending which was in turn attributable to his intellectual difficulties, his personality profile and his deficits in social functioning.[8] His Honour stated that the respondent's treatment needs remained 'complex and challenging'.[9] His Honour concluded his reasons for decision in the following terms:[10]
A path to the respondent's eventual release to the community under supervision has, perhaps, emerged - a combination of further developing his self-management skills and the provision of accommodation in which he can be closely supervised and monitored (both for the protection of the community and for the respondent's benefit given the extent of his institutionalisation and intellectual disabilities). To that end, I note the opinions expressed in the material presented for the review that the respondent would benefit from being housed in a minimum security facility where he would be required to take more responsibility for his care if that could be safely arranged.
[5] Director of Public Prosecutions (WA) v Misko [No 5] [17].
[6] Director of Public Prosecutions (WA) v Misko [No 5] [18].
[7] Director of Public Prosecutions (WA) v Misko [No 5] [12,], [18].
[8] Director of Public Prosecutions (WA) v Misko [No 5] [12,].
[9] Director of Public Prosecutions (WA) v Misko [No 5] [18].
[10] Director of Public Prosecutions (WA) v Misko [No 5] [19].
On 29 November 2018 the respondent, who is now 49 years old, appeared before me for his fifth periodic review. The explanation for the fact that two years has elapsed since the fourth review is that since the date of the fourth review s 29(2) of the Act has been amended so as to require all reviews after the first review to take place on a two yearly basis.[11]
[11] Act, s 29(2).
At the review hearing the applicant submitted that I should find that the respondent remains a serious danger to the community and that I should affirm the continuing detention order. The respondent, while not formally conceding that the continuing detention order should be affirmed, did not actively attempt to persuade me to a conclusion different to that contended for by the applicant. This was unsurprising given the evidence adduced on the review hearing.
I have decided that the respondent remains a serious danger to the community and that the continuing detention order made in respect of him should be affirmed. These are my reasons for arriving at my decision.
These reasons for decision should be read together with and in light of the above referred to decisions previously made in relation to the respondent under the Act.

Legislative framework and relevant principles

Section 33 of the Act provides:
(1)On a review of a person's detention under section 31 -
(a)if the court does not find that the person remains a serious danger to the community it must rescind the continuing detention order; or
(b)if the court finds that the person remains a serious danger to the community it must -
(i)affirm the continuing detention order; or
(ii)with effect from a date specified by the court, but not earlier than 21 days after the day on which the review is concluded, rescind the continuing detention order and make a supervision order in relation to the person.
[(2)deleted]
(3)Subject to subsection (4), in making a decision under subsection (1)(b), the paramount consideration is to be the need to ensure adequate protection of the community.
(4)A court cannot make an order under subsection (1)(b)(ii) unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions of the order.
(5)The onus of proof as to the matter described in subsection (4) is on the person.
As to the purpose of a review hearing, I respectfully agree with and adopt Hall J's analysis in Director of Public Prosecutions (WA) v Unwin [No 3][12] which has in effect been endorsed and applied in a number of subsequent relatively recent cases.[13]
[12] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [18].
[13] See for example Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158 [10] ‑ [18], Director of Public Prosecutions (WA) v CMP [No 5] [2017] WASC 254 [13], The State of Western Australia v DAL [No 3] [2017] WASC 260 [65] ‑ [78] and Director of Public Prosecutions for Western Australia v Narrier [No 4] [2017] WASC 306 [28] ‑ [34].

The respondent's background and history of offending

The third annual review of the continuing detention order was conducted by Fiannaca J on 19 November 2015. In his reasons for decision Fiannaca J comprehensively summarised the respondent's background, his history of sexual offending, and the previous proceedings under the Act.[14] It is not necessary for me to repeat what his Honour said in relation to the respondent's background and the previous proceedings under the Act. As to the respondent's history of sexual offending, Fiannaca J's summary of the respondent's prior serious sexual offences, which I respectfully adopt, was as follows:[15]
The respondent has been convicted and sentenced for sexual offences committed on four occasions from 5 February 1993 to 1 January 1999.
He committed the first sexual offence on 5 February 1993. He approached the victim, a 29‑year‑old woman, outside a nightclub in Northbridge, gained her confidence and offered her a lift home. He took her to an isolated carpark where he assaulted her violently and rendered her incapable of resistance. He then sexually penetrated her. He left the victim unconscious on the ground and stole her money. The respondent was not identified as the perpetrator of the offence until 1998 when his DNA profile was obtained and found to match the DNA profile of the offender, obtained from the victim in 1993.
The respondent committed his second sexual offence on 14 or 15 May 1994. The respondent approached the victim at a nightclub. Despite her attempts to discourage him, the respondent followed the complainant home, where she allowed him in for a coffee. Expecting her flatmate to return and make the respondent leave, the complainant went to her bedroom. The respondent followed the complainant to her bedroom. She indicated to him that she was not interested in him. She then fell asleep and woke to find the respondent undressed and penetrating her vagina with his fingers. He tried to force the complainant to touch his penis and then tried to pull her underwear off. He then put his face against the complainant's groin. The incident ended when the complainant's flatmate arrived home. The respondent was dealt with for that offending in August 1995 when he entered a plea of guilty and was sentenced to 8 months' imprisonment (reduced from 2 years due to time already spent in custody).
The respondent committed his third set of serious sexual offences on 13 August 1997. He approached the victim, a 21‑year‑old woman, in Northbridge and befriended her. The victim was upset after having had a fight with her boyfriend. The respondent gained her confidence and offered her a lift home. He then took the victim to an underground carpark where he offered her money or drugs in return for sex. She refused. The respondent then drove the victim to Stirling where he stopped the vehicle and sexually assaulted her. He forced the complainant to masturbate him and perform fellatio upon him. He then penetrated her vagina both digitally and with his penis.
The respondent committed the fourth set of offences on 1 January 1998. He approached a prostitute in Northbridge and arranged to pay her for sex. Instead, he took her to an abandoned building, kicked her in the head several times and then sexually penetrated and indecently assaulted her several times over a period of three hours. When the victim tried to escape, the respondent held a piece of glass to her face and threatened to cut her. He then stole money from the victim.
It is apparent that the offences in 1997 and 1998 were committed after the respondent had served the term of imprisonment imposed in August 1995 for the 1994 offences.
On 21 May 1999 the respondent was sentenced to a total effective sentence of 20 years' imprisonment for the offences committed on 5 February 1993, 13 August 1997 and 1 January 1998. The offences consisted of four counts of sexual penetration without consent, five counts of aggravated sexual penetration without consent, two counts of assault occasioning bodily harm, indecent assault, aggravated indecent assault, deprivation of liberty and stealing.
[14] Director of Public Prosecutions (WA) v Misko [No 4] [19] ‑ [39].
[15] Director of Public Prosecutions (WA) v Misko [No 4] [22] ‑ [28].

Evidence on the review

At the review hearing the appellant tendered a Book of Materials dated 21 November 2018. The Book of Materials contained various reports relating to the respondent's conduct in prison and the medical treatment provided to him in prison since the fourth review. The Book of Materials also contained the following:
1.A report prepared by Dr Gosia Wojnarowska, consultant psychiatrist, dated 23 October 2018;
2.A Dangerous Sex Offender Treatment Progress Report prepared by Ms Joanne Collyer, senior counselling psychologist with the Department of Justice's (the Department) Forensic Psychological Service, dated 9 November 2018; and
3.A Community Supervision Assessment report prepared by Mr Ian Farrall, Senior Community Corrections Officer with the Department's Community Offender Monitoring Unit (COMU), dated 14 November 2018.
At the review hearing Dr Wojnarowska, Ms Collyer and Mr Farrall were called by the State to give oral evidence in order to supplement some aspects of their reports.
Dr Wojnarowska and Ms Collyer have previously assessed the respondent for the purposes of, and have provided evidence on, earlier reviews of the respondent. Indeed, Dr Wojnarowska has assessed the respondent for the purposes of, and given evidence on, all four of the respondent's previous reviews as well as the original div 2 hearing under the Act relating to the respondent.

Developments since the fourth review

The evidence tendered by the applicant reveals the following about the respondent's treatment, progress and conduct during the period since the fourth review.

Psychological intervention

After the fourth review the respondent was seen by his treating psychologist, Ms C Place of the Dangerous Sex Offender Psychology Team, for four individual psychological sessions on a bi‑monthly basis during the period 18 April 2017 to 30 August 2017. The objective of Ms Place's counselling and treatment of the respondent was to encourage him to develop his own emotional and self‑management strategies.
On 14 February 2017 the respondent was transferred from the self‑care unit at Acacia Prison to Bunbury Regional Prison Pre‑Release Unit (Bunbury PRU).
Once the respondent had transferred to Bunbury PRU Ms Place encouraged him to take all available opportunities to increase his self‑management skills. The respondent subsequently became involved in a number of activities including working in the canteens, cleaning the medical centre and the Greyhounds as Pets (GAP). The feedback that Ms Place received from Bunbury PRU officers was that the respondent was motivated, busy and maintained a structured day. The result of the respondent having been engaged in these activities is that he has improved his self‑care, general life skills and confidence.
The respondent was keen to pursue further extensions of his activities by engaging pursuant to s 95(6) of the Prisons Act 1981 (WA) in activities in the community to assist with his reintegration (such as shopping for food, going to the beach, fishing or working). However, Ms Place advised the respondent that he is not eligible to obtain the 'green card' required for him to be permitted to engage in these activities. Ms Place provided the respondent with this advice in light of section 9.2 of Policy Directive 53 issued by the Department which stipulated, in effect, that any prisoner who is subject to a continuing detention order is ineligible for participation in activities in the community unless an order for participation in activities in the community is made by the Supreme Court as part of a release preparation plan.[16]
[16] Section 9.2 of Policy Directive 53 has now been revoked and replaced with Prison Procedure 301. However, the terms of Prison Procedure 301 are the same as section 9.2 of Policy Directive 53: evidence of Ms Collyer (ts 315) and evidence of Mr Farrall (ts 345 ‑ 347). The question whether there is any legislative basis for the court to make an order of the type referred to in Prison Procedure 301 is dealt with later in these reasons.
On 19 December 2017 Ms Place handed over responsibility for the respondent to Mr Summerton, another psychologist with the Dangerous Sex Offender Psychology Team. There were no reported transition concerns regarding the change in treating psychologists and the respondent continued to engage positively.
On 30 January 2018 Mr Summerton commenced monthly individual intervention sessions with the respondent. In the lead up to the respondent's current review the sessions were increased to a fortnightly basis.
On taking over responsibility for the respondent Mr Summerton identified the core treatment goals to include a focus on future plans, self‑management and risk management strategies.
Mr Summerton has formed the view that the respondent continues to have outstanding treatment needs that will remain relevant for the foreseeable future. The treatment needs include general living skills, coping and problem solving skills, substance abuse, violent offending, sexual offending, denial and empathy, relationships, 'communication/listening/emotions', risk factors and management strategies. Mr Summerton considers that the respondent continues to have a rudimentary understanding of the relevant coping and risk issues consistent with his historical accounts.
Mr Summerton is of the opinion that the respondent benefits from a focus on concrete practical strategies and discussion of scenarios to assist him with problem solving and planning. In his view the respondent is unlikely to develop significant psychological insight, lacks perspective and tends to set unrealistic goals. Mr Summerton attributes the respondent's deficiencies in this regard to his intellectual functioning, personal characteristics, and the distal nature of the offending and his lifestyle at the time.
Mr Summerton considers that the respondent would benefit from external supports and management in order to assist him to access pro‑social opportunities and have a structured meaningful life. He considers that the usefulness of this approach for the respondent is evident in the manner in which he has flourished at the Bunbury PRU.
Mr Summerton's recent intervention work with the respondent has been focused on sensitising him to relevant risk issues in custody with a view to working on these in the community in a concrete manner (for example, exploring what emotional management would look like in practicable, observable terms).

Conduct since transferring to Bunbury PRU

Since transferring to Bunbury PRU the respondent has progressed from level five gratuities to receiving level one gratuities as a maintenance worker. He has been on level one gratuities since 12 October 2018.
The respondent is employed in a maintenance party and according to his instructors is an above average worker with a good work ethic who is polite, courteous and appropriate.
The respondent has not recorded any prison charges or incidents. Prison staff have reported that he does not come to the adverse attention of officers.
The respondent has provided 13 urinalysis samples all of which returned negative results to alcohol and illicit substances. He has also been subjected to regular breath analysis and on all occasions returned a negative result for alcohol.
The respondent commenced peer support work on 11 October 2017.
Bunbury Regional Prison management consider that the respondent is suitable to engage in section 95 activities outside of the prison if approval is granted by the court. All such activities would be supervised.
The respondent has not received visitors since relocating to Bunbury PRU. However, he uses the prison telephone to call his mother and two female friends, one of whom lives in Queensland, and an ex‑prisoner.

National Disability Insurance Scheme case management

On 3 October 2018 the Department of Communities Disability Services transferred the respondent's case to the National Disability Insurance Scheme (NDIS).

Dr Wojnarowska's evidence

Report

Dr Wojnarowska's report reveals the following.
Dr Wojnarowska saw and interviewed the respondent on 20 October 2018. She had access to all relevant information to enable her to prepare her report.
The respondent admitted to Dr Wojnarowska all of his offending, although he still maintained that he had a fragmented memory of the first of his offences. However, unlike on previous occasions the respondent agreed that his fourth set of offences did not involve any consensual element and that he had, in committing these offences, used additional violence.
The respondent still maintains that the only reason for his offending was alcohol intoxication. He denied planning the offences.
In terms of empathy the respondent acknowledged some of the consequences for his victims. However, his acknowledgement was vague and superficial.
When Dr Wojnarowska questioned the respondent about his attitude towards females the respondent said that he has not thought about women at all. He reported that he has a female friend who lives in Queensland with whom he has regular phone contact. He said that he has no immediate plans to be in a relationship with this woman once released. He said that there was a possibility sometime in the future that she would come to visit him in Perth and that he will 'see what happens'.
The respondent quoted to Dr Wojnarowska what she presumed he had been told by various professionals with whom he had contact over the years, namely 'women have the same right as men do; consent means asking a woman if she wants to have sex and if she says no, it has to be respected; violence against women is not allowed'. When Dr Wojnarowska questioned the respondent why violence was 'not allowed' the respondent said that 'people shouldn't get hurt'.
The respondent's position in relation to his alcohol problem has not changed from the position he has expressed to Dr Wojnarowska during her interviews with him for his prior review hearings. The respondent quoted his health problems as a main barrier to his alcohol use in the community. He said that he would 'chase away anyone who brings alcohol or is drunk' from his place. He said that all his family and friends know about his alcohol problem and that he was sure they would respect it. He said he would remove himself from the proximity of an intoxicated woman.
The respondent suggested to Dr Wojnarowska that he would not crave alcohol within the community as he has been 'off it' since being incarcerated in 1999. He said that he would not be tempted to use alcohol as a coping strategy in the future and that he would be ordered to avoid places such as Northbridge and nightclubs in general. He said that a curfew will also assist in him not being tempted to go out and drink.
The respondent was confident that he would not reoffend as his only triggers in the past, according to him, were access to alcohol and his high libido. The respondent has maintained to Dr Wojnarowska for at least three years that he has no libido due to his diabetes related erectile problems and that he will have no access to alcohol in the community.
The respondent expressed happiness with his current living arrangements and the progress he has made since being in high security prisons in Perth. He was happy with his work achievements and the fact that he has been valued and liked by the other prisoners. He reported that he has enjoyed his work in the unit and working with Greyhounds in the GAP program. He said he would like to be part of this project when he lives in the community.
The respondent indicated to Dr Wojnarowska that the only aspect that was missing in his rehabilitation process was the lack of a green card without which he had no access to the community where he could start practising shopping for food and other items, going to the beach, fishing or even working.
The respondent reported to Dr Wojnarowska that he had stopped taking all medications that he was previously dependent on to treat his anxiety symptoms. He indicated that his mood has stabilised since being prescribed a mood stabiliser and that he has not experienced a depressed mood for over a year. He stated that he coped with his father's death well experiencing normal grief without developing depression or suicidal behaviours. He stated that he is looking forward to being with his family once released to the community.
The respondent denied to Dr Wojnarowska having any sexual interests. He said that he has had problems with erectile functioning for many years due to his diabetes. The respondent did not accept Dr Wojnarowska's proposition that erectile dysfunction does not correlate directly with sexual desire or fantasy and that the latter is usually present irrespective of the former.
Dr Wojnarowska asked the respondent about his phone conversations with his female friend from Queensland the contents of which were, as was revealed by the recordings of the conversations, highly sexual. The respondent said that he and his female friend were both joking with each other. He again denied the presence of any sexual thoughts or fantasies.
The respondent denied any deviant sexual interests. He said that he never masturbates and does not have morning erections. This information is consistent with information provided by the respondent to Dr Wojnarowska during her previous psychiatric assessments of him.
Dr Wojnarowska's mental study examination of the respondent revealed no elements of depressive cognitions, suicidal thoughts or any other psychiatric symptoms. However, the respondent continues to have a very rudimentary knowledge about the underlying causes of his offending. Accordingly, in Dr Wojnarowska's view the respondent's insight into his psychological functioning and behaviour is very limited.
Dr Wojnarowska's diagnostic formulation for the respondent has not changed. Her primary diagnosis is 'alcohol dependence - in remission in custody'. Her additional diagnosis is 'Cognitive impairment, mild; Anti‑social Personality Disorder'.
In assessing the respondent's risk of committing further offences of sexual violence in the future, Dr Wojnarowska used two instruments, an Actuarial Instrument and a Structured Clinical Guide. Actuarial instruments use mainly static risk factors. A core aspect of these instruments is that scores obtained on individuals can be related to statistical reference data. They involve consideration of a limited number of factors that are combined according to a fixed and explicit algorithm. They create a statistical profile of a person that may be compared to known groups of recidivist and non‑recidivist sexual offenders.
In contrast, Structural Clinical Guides use both static and dynamic risk factors. They require clinicians to consider different factors which impact upon the assessment of risk.
The Actuarial Instrument used by Dr Wojnarowska was the Hare Psychopathy Check-list - Revised (PCL‑R; Hare 1991 and 2002) (PCL‑R). The Structural Clinical Guide instrument used by Dr Wojnarowska was the Risk Sexual Violence Protocol 20 (the RSVP).
The PCL‑R assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The score obtained is an important component of other risk assessment tools including Structural Clinical Guides.
The respondent's PCL‑R total score has changed from 25 to 23. However, the respondent's overall score still suggests that his personality characteristics conform to the clinical construct of psychopathy.
The RSVP results indicate that there have been further shifts in the respondent's psychological adjustment. He now acknowledges his sexual offending and there is no evidence of extreme minimisation or denial of sexual violence. There is some improvement in relation to self‑awareness. However, the respondent still has limited insight into the factors and processes that have placed him at risk of sexual violence. He appears to have developed some capacity to cope with stress as evidenced by his ability to function without the constant support from the prison staff and without anxiolytic medications. He also appears to be more confident and less anxious in his interactions with others.
The RSVP results indicate that some improvement in the respondent's social adjustment has occurred, although he has a record of difficulty in intimate and non‑intimate relationships including with his family. Employment is a risk factor for the respondent as he may have difficulty securing employment after many years of incarceration. Conversely, the respondent displays a good work ethic and commitment to seeking employment in the community. Therefore he may be able to obtain some form of employment in the future.
The respondent has consistently engaged with psychological counselling and is willing to continue this in the community. However despite the intensive psychological input over the years his self‑awareness and his insight into his offending have not improved.
In relation to the issue of the respondent's manageability his motivation to work outside prison and spend time with his family, as well as his history of positive engagement with his therapist are seen by Dr Wojnarowska as protective factors in his management.
In Dr Wojnarowska's view, if the respondent were to reoffend it is likely that he will do so in the same manner as he has in the past. Specifically, there is a risk of the respondent offending against a vulnerable female victim in the context of alcohol intoxication. This may also occur in the context of his poor emotional regulation and association with anti‑social peers. The respondent may become bored or frustrated by not being able to work and having limited social outlets. He may encounter a victim on the streets or in any other public places as well as brothels. Warning signs of the respondent reoffending would include his relapse to alcohol use and frequenting nightclubs, disengagement from his therapist and supervising agencies.
In Dr Wojnarowska's opinion the clinical analysis of risk factors as they relate specifically to the respondent, as guided by the RSVP, indicates that the respondent's risk of sexual reoffending remains high, but that it continues to marginally decline and is now lower than in her previous assessments of him. The respondent is therefore at high risk of reoffending sexually if not subject to a supervision order or a continuing detention order.
In Dr Wojnarowska's opinion the respondent's risk of reoffending sexually could be currently managed in the community. Risk factors relevant to the respondent's offending include his anti‑social attitudes, history of alcohol dependence and limited social supports. Protective factors for the respondent would include his engagement with psychological counselling and his progress in his ability to work and function independently.
In the event that the court decides to make a supervision order Dr Wojnarowska recommends the imposition of conditions that will require the respondent to continue to engage in psychological counselling, to be subject to 24 hour supervision, to be subject to ongoing supervision in relation to his alcohol use (random breath testing being required), and to engage in appropriate employment only, specifically a highly structured and supervised type of employment.
Dr Wojnarowska has reviewed the supervision order conditions recommended by Mr Farrall. She agrees with the content of the recommended conditions. It is, however, her understanding that there is no suitable accommodation for the respondent at this point in time.

Oral evidence

In her oral evidence Dr Wojnarowska maintained the views and opinions expressed by her in her report. She also gave the following supplementary evidence.
She is confident that there have been major changes in the area of the respondent's functioning.
Since the respondent has moved to Bunbury PRU his confidence and his ability to function independently has improved. Further, and most importantly, he is less reliant on medical services and medication. When she examined the respondent in 2016 he was highly dependent on weekly reviews by the medical staff at Casuarina Prison. He was also reliant on anti‑anxiety medication such as benzodiazepine. This has all changed. The respondent is now not taking any medication for anxiety.
There has not been much change in the respondent's insight into his offending and self‑awareness. However, she would not expect him to develop major understanding in this area. The respondent is a very 'concrete man'. Therefore his understanding of the underlying causes of his offending and his plans as to how to deal with the issues related to his offending are also 'very concrete'.
The respondent's lack of insight and lack of understanding into the underlying causes of his offending are at a psychological level. There is a lot of evidence that his offending was driven not by sexual deviance but by his anger, and his need for power and dominance. The respondent does not understand this. His alcohol use is a facilitator of his offending, but not the underlying cause of his offending.
She thinks that the respondent's behaviour controls are better. This is evidenced by his behaviour in prison, as well as his preparedness to take much more responsibility for his offending than previously.
She was not convinced that the respondent was being truthful with her when speaking about the issues of sexual fantasies and sexual functioning. The respondent is a 50‑year‑old man with a history of high sexual drive and sexual preoccupation. Therefore irrespective of any erectile dysfunction difficulties it would be highly unlikely that he does not have sexual fantasies of sexual interests. She is aware in this context of the respondent's phone calls with his female friend in Queensland which, according to what she has been told, had a highly sexual content.
Unlike the position that existed in the past the respondent does not now deny his sexual offending. He does not minimise the seriousness of his past offending.
There is some improvement in the area of the respondent's self‑awareness. He now understands what kind of situations may place him at risk of sexual violence more than he used to. In the past his understanding as to the kind of situations that may place him at risk of sexual violence 'was very much only about alcohol, not about him'. However, he now acknowledges that his risk of sexual violence is about his mental state and the woman's vulnerability and proximity.
The respondent is now definitely coping better with stress. It is 'quite impressive' that after so many years of being dependent on anxiolytic medications and benzodiazepine the respondent has actually managed to stop taking them completely.
She is not able to comment on the respondent's ability to sustain an intimate relationship.
Whether the respondent's involvement in an intimate relationship will be a protective factor or risk factor will depend on the specific nature of the relationship and the kind of woman that the respondent is involved with.
As to the respondent's risk scenario referred to in her report, there would be warning signs. It would be very obvious if the respondent was becoming dissatisfied with his life. Therefore if he is supervised any such dissatisfaction should be picked up during psychological counselling.
Whereas in 2016 she was of the opinion that the respondent was a very high risk of sexual reoffending, she would now say that he is at a high risk of sexual offending.
In her opinion the respondent's level of risk can currently be managed in the community.
The respondent's most relevant risk factors include his overall anti‑social attitudes, his history of alcohol dependence and his limited social supports. His protective factors consist of his willingness and motivation to engage in psychological counselling, and his progress in ability to work and function independently.
She does not expect the respondent to gain more understanding of 'self or his offences'. It is very much about the respondent being engaged with a psychologist that can support him and can monitor his mental state, and with whom he can develop a good working relationship so that he can confide in the psychologist and count on the person to support him should there be any deterioration in his mental state or his anxiety level. She would also expect the respondent to be able to talk about his sexual interests and sexual drives with his psychologist.
Even though she believes that the respondent was not candid with her in relation to his sexual interest and sexual fantasies, she expects that he will be able to talk about these matters with his psychologist because he will have a different relationship with his psychologist than he does with her. The respondent perceives her as a person who will be preparing the report. She believes that it is his understanding that by not telling her about his sexual interest and sexual fantasies this will be to his advantage. She does, however, believe that the respondent is capable of developing a more sincere and truthful sort of relationship with his psychologist over time.
It is her understanding that the respondent will have support from the NDIS, and that the NDIS will be in a position to assist him in securing some sort of employment even if it is sheltered employment. If this does happen it will be a protective factor.
With the amount of support that she understands will be available to the respondent, she believes that he will be able to transition into the community. The respondent is very motivated to commence this process.
Her reference in her report to the respondent requiring 24 hour supervision is intended to convey that she would support a 12 hour curfew and would envisage that in the first three months after his release he would be constantly supervised during the 12 hours outside the curfew period. She understands that it will be possible for the respondent to be subjected to this degree of supervision for a three month period even though he has only been allowed 20 hours per week under his NDIS plan. She understands that the required additional supervision each day could be negotiated for a very limited period of time.
The statement in her report that she has reviewed the proposed supervision order conditions prepared by Mr Farrall and agrees with them is made on the basis that there would be an additional condition requiring the respondent to be subject to constant supervision for the 12 hours outside of the 12 hour curfew period for a period of three months.

One would hope that a person of normal IQ would understand the psychological aspect of his or her alcohol addiction. The respondent does not have this understanding. The only reason he provides for not drinking alcohol is his medical condition. This is a quite simplistic view of why he should not be drinking. He does not really have any understanding that there are other good reasons why he should not be drinking alcohol.
A person of normal IQ would be able to understand their triggers for consuming alcohol. The respondent does not have this understanding. For example, he does not understand that if he is feeling stressed or lonely he is more likely to drink alcohol.
As to the respondent's plan for refraining from drinking alcohol if he is released, she considers that if the respondent had a more sophisticated understanding of his alcohol related difficulties he would be able to say that if while in the community he feels anxious, bored or lonely he will tell his psychologist, or do certain activities, so as to reduce the risk that he will relapse into using alcohol.
In her view, if the court was prepared to release the respondent on a supervision order it should be for a period of 10 years.
There are risk factors apart from alcohol use that the respondent does not perceive to be risk factors. She suspects that there are certain types of women that would trigger the respondent. This is an area that has never really been explored and she does not, given his limitations, think it ever will be.
If the respondent is released into the community it will be for his treating psychologist to be aware of alcohol use as a risk factor and to engage in a great deal of counselling in relation to this. Support from his psychologist will help him refrain from use of alcohol.
The type of 12 hour supervision that she envisages the respondent will require at least in the first three months of being released is supervision that would be given through agencies like NDIS and Uniting Care West (UCW). If he was able to secure employment this would also count as time in which he was being supervised.
The greater degree of confidence that the respondent has developed will make him more manageable in the community, and hopefully less vulnerable to induce stress or disappointment. It is parallel to developing some resilience.
It would be preferable if any accommodation of the respondent was supervised by an agency like UCW because they are likely to be quite involved with their clients.
She is 'pretty confident' that the respondent would be able to function well within a home environment.
On the previous occasions that she has reviewed the respondent she has formed the opinion that his risk of reoffending sexually cannot be adequately managed in the community. The factors that have now led her to come to the view that the respondent's risk can be managed in the community are as follows:
1.The respondent has been accepted as a client under the new NDIS scheme and has been afforded financial assistance;
2.The respondent has changed from a highly dependent individual (dependent on others and medications) to an individual that functions well and happily in a less structured environment. He has not been depressed for the last two years. His mood is stabilised and therefore, in her opinion he is less likely to decompensate in the community;
3.The respondent has gained some insight into his offending; and
4.The respondent accepts that he is a sexual offender which she considers to be very important because what goes with this acceptance is acceptance of the fact that he is a risk and will be very closely supervised.
In addition, although she cannot say for sure, her hypothesis is that the respondent's attitude towards women has changed. She did not detect any hostility towards women or any attitude of blaming the victim, such an attitude having previously existed.

Ms Collyer's evidence

Report

Ms Collyer's report reveals the following.
Ms Collyer saw and interviewed the respondent on 17 October 2018. She had access to all relevant information to enable her to prepare her report.
In relation to his general living skills, the respondent indicated to Ms Collyer that the environment of the Bunbury PRU had provided him with many opportunities. He referred in this context to his involvement in GAP, cooperating with the men in the unit in regard to cooking, cleaning and shopping, undertaking a traineeship in logistic warehousing, working in the canteen, and working in general maintenance in his unit. The respondent stated that if he did not get released he hoped to apply for a green card that would enable him to assist with canteen shops in the community and participate in external recreational activities on occasions such as fishing.
A focus on medical management was noted by Ms Collyer to be evident in the respondent's discussion around his coping abilities.
The respondent stated to Ms Collyer that if he was in the community he would not be interested in forming friendships and instead wanted to rely on his professional supports and family, particularly while he 'found his feet'. He stated that he did not anticipate any significant difficulties when released to the community due to the support that he would have.
The respondent continued to identify alcohol use as the primary issue behind his offending. He confidently stated that he would not drink and therefore not be a risk of further sexual offending. He asserted with confidence that alcohol was 'no longer a problem for him' and that due to health issues he would 'never touch it again'. He explained that he had engaged with a counsellor from Holyoake with a specific focus on alcohol. He identified that he could see a counsellor from Holyoake in the community and that he was happy to do so. He voiced a rudimentary understanding that alcohol was a problem for him historically and was linked to his sexual offending. He claimed that alcohol had increased his libido and that his attendance at nightclubs had exposed him to vulnerable women. He identified a number of health reasons that would prohibit him from drinking alcohol, including diabetes and the impact on his liver. He identified situations in the community that he would need to be wary of. He stated that there would be a 'no drinking at his house' rule and that if someone came to his house with alcohol he would ask them to leave.
When Ms Collyer questioned the respondent about his strategies for managing anger or conflict the respondent stated that instead of letting his anger build up he would go and talk to one of his identified professional support people.
In relation to his sexual offending the respondent voiced guilt for the offences. However, he stated that the offences were 'a long time ago' when he was 'much younger' and that he had talked about them a lot over the years. According to the respondent his main focus was now on scenarios that he needed to manage particularly in the community. The scenarios included not drinking, not associating with women that drank due to them being in a vulnerable state and getting consent. The respondent was not able to expand further on how he would ascertain if a woman was giving consent, commenting that he had forgotten the details of the material that was covered in his treatment some time ago. The respondent stated that he regretted his offending due to the length of time that he had spent in custody. He also stated that he regretted the impact of his offending on the victims. He indicated that he thought that his victims might still be experiencing an ongoing impact, possibly on their relationships, and that it is likely that they were still experiencing some ongoing trauma.
The respondent acknowledged speaking regularly with his female friend who lives in Queensland. He reported that the relationship is unlikely to progress from phone contact for the foreseeable future due to her ill health. Additionally, he claimed little interest in a relationship as he was more focused on spending time with his family.
The respondent's response to how he would manage risk was mostly centred on the activities he would participate in and things he would avoid. He identified Northbridge as a 'no go zone' and expressed the belief that spending time with his family and professional supports would be important. He indicated that engagement with external support services such as the Disability Services Commission and Outreach services would be positive. He expressed the opinion that it would be important for him to keep busy and have a job in the community and that he would have assistance for transportation and also in his home as needed. He identified a desire to continue his involvement with Greyhounds in the community. The respondent described his employment options as 'prolific' due to the number of courses that he had undertaken.
In Ms Collyer's opinion the respondent continues to have outstanding treatment needs pertaining to his sexual and violent offending, offence cycle, precursors to offending, risk factors and management strategies, substance use (relapse prevention), problem solving, coping skills, relationships and boundaries, communication skills and emotional management. She considers that he has made gains primarily in the realm of developing life skills, coping and to some extent communication. She considers that risk related treatment needs remain outstanding with little progress made or expected to be made in regard to further insight on the issues surrounding this. She considers that in a practical sense 'this suggests a continued focus assisting [the respondent] to manage and structure his day to optimise pro‑social choices and positive occupation'. She suggests that ongoing rehearsal of scenarios and strategies to assist the respondent to manage any interactions or situation that could prove problematic, particularly given his difficulties recalling risk relevant considerations and strategies, is indicated.
Ms Collyer notes that the respondent has tended towards instability when he transitions to a new environment, but that once he is supported and settled he has responded reasonably well and shown a positive capacity for engagement. She considers that the respondent has 'evidenced' marginal change in terms of his insight for offence specific treatment targets. She considers that what the respondent has demonstrated is a capacity to adjust to change, specifically, a less restrictive, less structured environment, albeit with support.
In Ms Collyer's view the focus of treatment for the respondent will need to continue to be crafted by the treating psychologist and 'guided by the known risk relevant treatment areas'. In her view 'pertinent for [the respondent] is the need for concrete practical approaches'. She gives the following examples of the types of treatment areas that would be beneficial to the respondent:
1.Management of mood states and in particular stress reaction to change and potential for instability;
2.Ongoing scenario planning and strategy review regarding substance use relapse prevention;
3.Ongoing scenario planning and strategy review specific to sex and violent offending scenarios; and
4.Assistance to motivate the respondent to develop a meaningful life with a balance of employment, study and recreational pursuits.
Ms Collyer gives as examples of types of additional treatment areas that would be beneficial to the respondent 'specific to a community release' the following:
1.Support around establishment of appropriate professional relationships with external support providers;
2.Assistance regarding reunification with family and navigating any issues that might arise after a lengthy period of incarceration; and
3.Assistance with realistic goal setting.
In Ms Collyer's view the respondent's presentation can mask the impact of his impaired cognitive functioning, with the result that he can seem more capable in terms of his capacity for problem solving and consequential thinking than is actually the case. She opines that taking into account the respondent's concrete thinking style, his borderline cognitive capacity and his limited gains achieved in psychological treatment thus far, in combination with the limited likelihood of further significant treatment gains and his positive response to changes in environment and opportunity, the best way forward in terms of the respondent's treatment is a 'continued shift in accordance with plans typical of individuals with an intellectual disability', specifically:
1.vocational, educational and recreational programs that are adequately sourced and supported;
2.transition services to assist with increased stress and instability likely to occur with a change in environment, routine or relationships;
3.repetition of core management strategies specific to substance use, violence and sexual offending (initially with a treating psychologist but ultimately with alternative personnel such as a senior community corrections officer); and
4.collaboration between involved services to ensure that the respondent is adequately supported with daily living needs, health care and planning towards long term care and support.
In Ms Collyer's view the respondent has continued to engage well in individual counselling and adapted well to a change in treating psychologist. However, limited gains have been achieved by the respondent in regard to his 'offence specific treatment targets'. In her view it is evident that any further significant gains are unlikely, this arguably being a function of the respondent's borderline cognitive functioning, concomitant rigid thinking style and difficulties with perspective and insight. Consequently the respondent continues to have a number of ongoing treatment needs including insight into his sexual and violent offending, risk factors and management strategies pertaining to his substance use history, problem solving and coping skills, relationships and boundaries, communication skills and emotional management.
Psychological treatment for the respondent in the prison setting would involve ongoing repetition and role play of scenarios and strategies. The frequency would occur monthly to bi‑monthly.
Psychological intervention for the respondent in the community would initially increase to weekly to assist the respondent with integration to the community. Intervention would involve discussion of 'real life' situations that the respondent would be required to manage in the community and the monitoring of his stress levels in the wake of significant change.
Ms Collyer notes that if the respondent is released into the community he would have, in addition to contact with the Department, increased access to external support agencies such as Holyoake and those funded by the NDIS.
In Ms Collyer's view, if the respondent is not released into the community he will benefit from progressing his current placement at Bunbury PRU by obtaining a green card in order to undertake activities in the community. This would further the respondent's opportunities to test skills in a less restricted real life situation.

Oral evidence

In her oral evidence Ms Collyer maintained the views and opinions expressed by her in her report. She also gave the following supplementary evidence.
Mr Summerton has identified that he would like to focus on future plans with the respondent, including his self‑management and risk management strategies. Mr Summerton has in his sessions with the respondent taken an approach of looking at potential scenarios that the respondent needs to be aware of talking through role playing in those scenarios. Mr Summerton's understanding is that the respondent, has in some ways, reached a certain limit in terms of his treatment gains and that the focus now needs to be on more practical interventions.
If the respondent is released on a supervision order psychological counselling would certainly increase to a weekly basis to facilitate support of him through this quite significant change in his environment. Further, the respondent will be in contact with his family and will need assistance with understanding how to cope with these relationships.
The respondent was able to give her quite a bit of information on how he has progressed in terms of his general living skills and self‑management. He presented in a very confident manner, differently to the way that he has presented in the past. He has taken responsibility for needing to do something about his health whereas in the past he would have just expected the doctors to manage the situation for him.
The respondent has also demonstrated an increased capacity in terms of coping and problem solving skills.
The respondent revealed his regard for his professional supports and the support that they can provide to him. He was very clear that if his strategies for feeling stressed (such as exercising, going to his cell to have timeout) are not successful he will talk to his professional support.
The respondent does not specifically link his feelings of stress with alcohol use. He does however link alcohol use to his sexual offending, mostly in regard to his belief that it increases his libido.
The respondent does not actually believe that he will need, if he is released, to obtain the support of Holyoake in order to assist him to avoid relapsing into alcohol use. He believes that he will not drink. Nonetheless, despite his belief the respondent was very adamant that he would seek the help of Holyoake in order to obtain further support for an alcohol relapse prevention plan.
The respondent enjoys access to professional supports and he is aware that the courts are concerned about his alcohol use. For him, refraining from alcohol use is something that he should do rather than something that he thinks he needs to do.
The respondent does not really believe that he will have a lot of difficulties going back into the community because his understanding is that he will have lots of support.
The respondent did voice guilt for his prior offences.
In saying that he could not remember the details that he had been taught in the sexual offender program about obtaining consent, the respondent did not seem particularly anxious. He was just being honest in saying that he could not remember. This is not in and of itself a problem. There are more aspects to consent and perhaps the respondent is less able to explain or understand them.
If the respondent was in a stable intimate relationship this would be a protective factor. However, the respondent has historically had difficulties with stable relationships and this has caused stress for him in the past. If he were to enter into an intimate relationship this would be a focus in counselling in terms of identifying any issues that could come up around communication and conflict.
The respondent believes that his employment options on release will be prolific given the number of courses he has done while in custody.
Since his last review the focus so far as the respondent's treatment needs are concerned has primarily been on his self‑management and coping. Therefore other outstanding treatment needs have been addressed more by way of discussion around scenarios rather than being the main focus of the intervention. This is primarily due to the need for the respondent to focus on an area which is going to actually support him going forward. Having self‑management skills and having the capacity to engage in activities in a pro‑social and active manner was identified as something that was going to be most beneficial to the respondent at the moment. Therefore, the respondent has not made a lot of progress in other areas. However, this is not necessarily anything to do with what the respondent has done. It is just a function of where his treatment is at the moment.

It is difficult to say whether the respondent is likely to make any progress in the future with individual counselling in relation to his outstanding treatment needs. Based on his engagement so far, any progress is likely to be limited. Given the respondent's quite concrete thinking style and the cognitive deficits it is unlikely that significant gains will be made.
The respondent has certainly demonstrated the capacity to adjust to change. Although there has often been a period of emotional upheaval initially, the respondent settles into the environment relatively quickly with supports and has demonstrated a capacity to work well and with motivation.

Mr Ian Farrall

Report

The report prepared by Mr Ian Farrall reveals the following.
The respondent has engaged appropriately in supervision. His more recent supervision sessions have focussed on his current review.
When questioned about the challenges he would face in the community and the supports that he will require if released on a supervision order, the respondent had difficulty communicating the challenges that he would experience. He indicated that if released on a supervision order he would experience issues with basic reintegration needs such as transport. He required prompting in regards to his criminogenic needs such as alcohol abuse.
The respondent has stated that he is 'desperate to be released into the community' as his personal supports are getting older. He has stated that he has unresolved grief in relation to his father's death.
The respondent has indicated that if he is not granted release under a supervision order he will request a transfer to Casuarina Prison. Mr Farrall notes that this statement contradicted earlier statements made by the respondent to the effect that if he is not released on a supervision order he will make a request to engage in section 95 activities at Bunbury PRU to assist his reintegration into the community.
The respondent has advised that if he is released on a supervision order it is his intention to re‑engage with Holyoake for counselling, including relapse prevention strategies to assist him in remaining abstinent from alcohol abuse. He has reported that he has not engaged with Holyoake for a period of 18 months but that during psychological counselling his past substance abuse had been discussed at length. He intends to initially spend time with his family and then seek volunteer work with either GAP or Food Rescue.
The respondent has advised that he had no current thoughts towards the victims of his sexual offences. He has indicated that he is trying to start a new life. He has commented that at the time of his offending he was under the influence of alcohol and that what he did was wrong.
The respondent was previously engaged with Outcare under the Dangerous Sexual Offender Supported Accommodation Program (DSOSAP). However, he has now been transferred to the UCW Dangerous Sexual Offender Supported Accommodation Program due to a change in the Department's contract. UCW commenced visiting the respondent on 20 March 2018 with the most recent contacts being facilitated by Skype and telephone as UCW do not visit Bunbury PRU.
UCW has confirmed that it is able to provide reintegration supports to the respondent upon release including access to a mobile telephone and assistance with transport, banking, health needs and identified pro‑social activities.
There is currently no available accommodation with the DSOSAP. Future availability will be reliant on the outcomes of other dangerous sexual offenders appearing in court. Therefore the lack of accommodation available through the Dangerous Sexual Offenders Supported Accommodation Program is subject to change.
Contact has been made with other agencies in an attempt to find alternative accommodation. The other agencies are St Bartholomew's House, the Department of Planning, St Patrick's Community Supports, St Jude's Disability Services, the Salvation Army and the Department of Communities (Housing). However, no proposed accommodation for the respondent has been able to be identified.
The respondent has advised that he is unable to reside with any relatives.
The respondent identified one address as possible accommodation for him. However, the proposed accommodation is unsuitable because the owner of the residence has a sexual offending history.
Given his history of substance abuse it is Mr Farrall's view that the respondent would benefit from engagement in frequent and random urinalysis as well as random breath analysis by the Western Australian Police Sexual Offender Management Squad (SOMS).
The respondent would be made subject to Global Positioning System (GPS) tracking, a tool to assist in the case management of dangerous sexual offenders. This would allow the Department to monitor the respondent's movements and identify necessary exclusion and inclusion zones. GPS tracking is of benefit in observing movement patterns that may be developing and indicate an increase in risk. However, and as Mr Farrall notes, GPS tracking has limitations in that it cannot identify the people who the respondent engages with or determine the actions or activities in which he is involved.
It is Mr Farrall's view that as the respondent has been incarcerated for close to 19 years and has led a highly structured lifestyle in the custodial environment, a nightly curfew may be appropriate to provide him with stability and structure.
If the respondent is released on a supervision order he will be closely managed and supervised by the members of the local Risk Management Group, which includes, but is not limited to, individuals from the COMU, Forensic Psychological Services and SOMS to ensure a multi‑agency approach to his management.
Mr Farrall recommends a total of 55 conditions for the court's consideration (specified in his report) in the event that the respondent is considered suitable for release on a supervision order. The recommended conditions include, but are not limited to, a residential condition (by which the respondent would be required to live at a specified address and spend every night at the address), conditions requiring the respondent to report to a community corrections officer (CCO) and SOMS, conditions requiring the respondent to be under the supervision of a CCO and to engage in medical and other treatment and programs as directed by a CCO, non‑contact with victims conditions, conditions requiring the respondent not to engage in specified criminal conduct, not to possess or consume prohibited drugs, and not to possess or consume alcohol, a urinalysis condition, a curfew condition, and conditions directed at preventing the respondent from engaging in specified 'high risk' conduct (for example, conditions limiting the circumstances in which he can have contact with females). The proposed residential condition is clearly directed at giving effect to the view expressed by Corboy J in his reasons for decision on the fourth annual review that the respondent will, if he is to be released, need to be provided with accommodation in which he can be closely supervised and monitored.

Oral evidence

In his oral evidence Mr Farrall maintained the views and opinions expressed by him in his report. He also gave the following supplementary evidence.
There are currently six houses available under the DSOSAP. One of the houses is currently occupied. It is occupied by another dangerous sexual offender.
Another of the houses available under the DSOSAP has been compromised. It will not be possible for this house to be utilised as a home for a dangerous sexual offender again. UCW are in the process of negotiating with the Department of Housing for another house to be allocated to the DSOSAP.
The remaining four houses available under the DSOSAP are currently reserved for dangerous sexual offenders who are awaiting the outcome of decisions by the court. The position is that if a home is being reserved for a particular dangerous sexual offender pending the outcome of a decision of the court, the reservation is 'frozen' and will not be taken from that particular offender until the outcome of the court hearing is known. So in the case of these four houses, UCW and COMU have assessed that the accommodation in question is suitable for the particular dangerous sexual offender and have made a commitment to the court that that accommodation will be available to that offender if he or she is released on a supervision order.
The result is that there is no currently available accommodation for the respondent under the DSOSAP.
There is one other dangerous sexual offender who does not at this point have one of the available four houses reserved for him who is ahead of the respondent 'in the queue'. In other words, the respondent is 'second in the queue of people who haven't already been potentially nominated' to be in one of the four available houses.
He cannot say what the future will hold in relation to the availability of accommodation for the respondent under the DSOSAP. It would be two to three months by the time that the court cases are dealt with and any assessment of the suitability of any house that might become available for the respondent could be completed.
Efforts have been made to find accommodation for the respondent other than through the DSOSAP. The efforts have been unsuccessful. Accommodation is very difficult to obtain.
UCW provides a dangerous sexual offender with support in his reintegration on an as needs basis, including support with matters such as accommodation, attending appointments, banking, transport and finding volunteer work. UCW will not schedule a set number of hours of assistance per week. They will address the offender's needs and identify the services required accordingly.
The respondent was interviewed by an NDIS planner on 27 November 2018. The planner has devised a plan for the respondent to obtain assistance and funding from the NDIS. It is a 12 month plan which will be instigated on the respondent's release. At the end of the 12 month period the plan will be reviewed.
The plan devised by the respondent's planner still has to be approved by the planner's manager. However, the planner has informed him that he is confident that the plan will be approved by his manager. The assistance and funding that will be provided to the respondent under the plan over the course of 12 months is as follows:
1.The respondent will be allocated 20 hours a week for his mental disability needs and also to help him engage in the community;
2.The respondent will be provided with a six hour allocation for occupational therapy functional assessments;
3.The respondent will be allocated 40 hours for a specialist coordinator service;
4.The respondent will be allocated 12 driving lessons; and
5.The respondent will be provided with $1,600 in financial assistance to enable him to access transport.
The proposed NDIS plan mirrors the respondent's previous disability services plan that was put before the court at the time of his last review hearing. The planner was confident that the plan would be approved in the short term.
At the end of the 12 month period the plan will be reviewed.
One of NDIS' approved service providers is Cam Can. Cam Can will be the agency responsible for providing the specialist coordinator service.
The specialist coordinator would coordinate a plan and develop a case management plan for the respondent.
The specialist coordinator can make any application for additional support if necessary.
The 20 hours per week of support that will be provided by NDIS through Cam Can will equate to roughly three hours per day. However, it is a flexible package. Therefore the NDIS support coordinator could work with Cam Can and 'initially identify more hours to start off with than later'. That is, if more hours are used at the beginning of the 12 months less hours would need to be used at the end of the 12 month period.
It is up to the specialist coordinator to decide how the hours are to be used.
He thinks he can say confidently that Cam Can will stick to their average of three hours per day.
The NDIS plan will not involve the respondent having a support worker living with him for several hours a day. The support worker will be there to provide support to the respondent with his independent living skills and his core skills 'which is to get out into the community and get involved in the community'. A support worker does not reside with the respondent. The support worker could easily spend three hours of the day with the respondent at his residence but that is not the aim of the support. The aim is to get the respondent engaged in the community.
NDIS will only be responsible for providing support in relation to the respondent's disabilities. The NDIS will only accommodate the three hours per day. There is no funding for the Department to provide 12 hours of supervision. There is no basis on which a condition could be included in a supervision order requiring constant supervision of the respondent during the 12 hour period that is not subject to a curfew (assuming the curfew is for 12 hours).
UCW will provide some support services but the services will not be structured. The support provided by UCW would be one to two hours per week at a maximum.
The respondent would engage with a psychologist for one hour a week initially and would also see a CCO for half an hour to an hour. If he needed to attend other appointments UCW would help him with this.
He has not proposed a condition as part of the proposed supervision order that requires the respondent to keep a diary for the purpose of disclosing associations. One of the reasons he has not done so is that he thinks the required thought process would be difficult for the respondent.

Analysis and findings

Serious danger to the community

The respondent does not seek to contend that I should not find that he remains a serious danger to the community.
Dr Wojnarowska's evidence is that the respondent's risk of reoffending sexually if he is not subject to a supervision order or a continuing detention order continues to marginally decline and is lower than what it was at the time of her previous assessment of him, but nonetheless remains high.
In light of the respondent's history of offending and the evidence of Dr Wojnarowska as to the respondent's risk of reoffending, I am satisfied that the respondent will be at high risk of committing further serious sexual offences if he is not subject to a continuing detention order or a supervision order. In these circumstances I am also satisfied that there is an unacceptable risk that the respondent will commit further serious sexual offences if he is not subject to a continuing detention order or a supervision order and that he therefore remains a serious danger to the community.[17]

Continuing detention order or a supervision order

[17] Act, s 7(1).

The question which remains for my determination is whether the respondent should continue to be detained pursuant to a continuing detention order, or whether he should be released into the community pursuant to a supervision order. In deciding this question I must choose the order that is least invasive of the respondent's liberty while ensuring an adequate degree of protection of the community, adequate protection of the community being the paramount consideration.[18]
[18] Act, s 33(3).
In considering if a supervision order will adequately protect the community I must take into account any conditions that can be placed on the supervision order.[19]
[19] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [103].
I cannot choose to place the respondent on a supervision order unless I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order as defined under s 18(1) of the Act.[20]
[20] Act s 33(4).
The applicant submits that the respondent should be detained for the reason that the risk presented by him cannot be adequately managed by the conditions of a supervision order. In support of this submission the applicant points to the following matters:
1.The unavailability of suitable accommodation for the respondent;
2.The inability of the Department to fund and put in place arrangements for the respondent to be subjected to, even in the short term, the sort of 24 hour supervision contemplated by Dr Wojnarowska;
3.The respondent's 'simplistic' plans for avoiding a return to alcohol use;
4.The respondent's limited prospects of securing employment; and
5.The respondent's lack of insight into, and understanding of, the underlying causes of his offending and the factors and processes that have placed him at risk of sexual violence.
The applicant further submits that in light of all the evidence the respondent cannot discharge his burden of proving on the balance of probabilities that he will substantially comply with the standard conditions of a supervision order, most specifically, the standard condition specified in s 18(1)(f) that he not commit a sexual offence as defined in s 36A of the Evidence Act 1906 (WA) during the period of the supervision order.
The 55 conditions formulated by Mr Farrall are extensive and very stringent. The conditions do seek to address the respondent's risk factors as disclosed by the evidence to which I have referred.
The respondent has a history of engaging positively in his psychological counselling. He has indicated a willingness to continue to engage in counselling in the community, including attending at Holyoake for counselling and ongoing support in relation to his alcohol related issues. Moreover, it is clear from the evidence to which I have referred that the respondent has, since the fourth review, made material gains in the areas of acceptance of responsibility for his prior offending, self‑management, general life skills and self‑confidence. The respondent's history of positive engagement in psychological counselling and his gains in the areas that I have identified are, as Dr Wojnarowska has pointed out, protective factors in his management.
On the other side of the ledger, however, is the fact that it is also clear from the evidence to which I have referred that the respondent continues, due at least in part to his low level of intellectual functioning, to have not only a rudimentary understanding of, and limited psychological insight into, the underlying causes of his offending and his risk factors, but also a number of other outstanding treatment needs. Further, the consensus of opinion seems to be that this situation is unlikely to change in the foreseeable future and that the respondent may well have made almost as much progress as he is going to make in addressing these areas of concern. Having said this, the evidence of Dr Wojnarowska and Ms Collyer does indicate that the respondent's outstanding treatment needs, including the need to attempt to further develop his understanding of, and insight into, the underlying causes of his offending and his risk factors, will be able to continue to be worked on, and should continue to be worked on, by appropriate psychological counselling if he is released into the community on a supervision order.
Despite the respondent's rudimentary understanding of, and limited insight into, the underlying causes of his offending and his risk factors, and his other outstanding treatment needs, the opinion of Dr Wojnarowska, who has been involved in assessing the respondent over a long period of time, is that the point has now been reached where the respondent's risk of reoffending can be managed in the community under a supervision order which has attached to it the conditions formulated by Mr Farrall plus a condition that the respondent is, at least for the first three months of any supervision order, subjected to continuous supervision for any period of time outside of the curfew to which he would be subject (the maximum curfew capable of being imposed being 12 hours[21]). Further, the evidence given by Ms Collyer and Mr Farrall does not contradict the opinion expressed by Dr Wojnarowska.
[21] Act, s 19B(4).

I accept, in light of the evidence of Dr Wojnarowska, that the respondent's plan for abstaining from alcohol in the event that he is released on a supervision order is not as sophisticated as it could be. However, given that part of the respondent's plan for avoiding a return to alcohol use is to attend counselling with Holyoake for ongoing support and assistance in this area, I think that the applicant's characterisation of the respondent's overall plan for abstaining from alcohol as 'simplistic' is overly harsh. Moreover, in my view the respondent's health problems will provide a real incentive for him not to resume consuming alcohol. Further, the proposed conditions of any supervision order which will not only prohibit the respondent from possessing or consuming alcohol, but also require him to engage in counselling with Holyoake or any other appropriate service as directed by a CCO and to subject himself to urinalysis, in my view appropriately address the risk of the respondent relapsing into alcohol use. In short, I do not accept the applicant's submission that the inadequacies in the respondent's plan for abstaining from alcohol, to the extent that they exist, provide a basis for concluding that he should not be released on a supervision order.
There is little doubt that the respondent, if he is released, and despite his apparently held belief that his employment options will be 'prolific', will have real difficulty securing employment, particularly in the short term. However, the respondent will have available to him reintegration support services provided by UCW which will include identifying pro‑social activities and sheltered employment for him to engage in as a means of usefully and beneficially occupying his time. Accordingly, I do not accept the applicant's submission that the difficulties that the respondent will inevitably have in obtaining employment provides a basis for concluding that he should not be released on a supervision order.
Given the respondent's behaviour in custody since having been transferred to Bunbury PRU, the gains that he has made in the areas of self‑management and general life skills, and his history of engaging positively in his psychological counselling, I am satisfied on the balance of probabilities that the respondent would, if released on a supervision order containing the 55 conditions formulated by Mr Farrall plus the additional supervision condition proposed by Dr Wojnarowska, substantially comply with the standard conditions of that order as defined under s 18(1) of the Act, including the condition specified in s 18(1)(f).
Further, in the above circumstances I am satisfied on all of the evidence before me, most particularly the evidence of Dr Wojnarowska, that the point has now been reached where the need to ensure the adequate protection of the community could properly and satisfactorily be met by releasing the respondent on a supervision order that is subject to the 55 conditions formulated by Mr Farrall plus the additional supervision condition proposed by Dr Wojnarowska. Herein, however, lies the major and in my view insurmountable difficulty for the respondent. The fact is, that the type of 24 hour supervision condition envisaged by Dr Wojnarowska cannot be imposed as part of the supervision order. While it is likely that the respondent would, particularly in the early stages of his release on a supervision order, be under supervision by one means or another for a significant portion of the non‑curfew period of each day, it is beyond dispute that he will not be under supervision for all of that period. Furthermore, and in my view even more significantly, it is simply not currently possible for the residential condition of the proposed supervision order to be complied with because there is not, unfortunately, any available accommodation suitable to the respondent's needs. In my opinion the lack of available suitable accommodation and the consequential inability to give effect to the proposed residential condition, even taking into account all of the other 54 remaining stringent conditions proposed by Mr Farrall, of itself compels the conclusion that the adequate protection of the community from the risk of reoffending that the respondent poses cannot be ensured by releasing the respondent on a supervision order. Although in the present case the respondent did not attempt to argue that I could make a supervision order with a requirement that suitable accommodation be found for him, the following comments made by Hall J in The State of Western Australia v Corbett [No 5][22] are otherwise generally speaking applicable to the respondent's situation:
Accommodation for a person on a supervision order is not simply a place to live. The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending. The absence of suitable accommodation makes it impossible to be satisfied that a supervision order is presently a viable option. It was suggested by counsel for Mr Corbett that I could make a supervision order with a requirement that suitable accommodation be found. However, there are at least three problems with an order in those terms. Firstly, I am not satisfied that I have the power to order the executive to provide accommodation. Secondly, it would not be possible to be satisfied that the safety of the community would be assured unless the accommodation was known and had been assessed. Thirdly, given the efforts already made, it is far from clear that any suitable accommodation could be found.
[22] Director of Public Prosecutions (WA) v Corbett [No 5] [2017] WASC 115 [80].
The further comments made by Hall J in The State of Western Australia v Corbett [No 5][23] in relation to the inadequacy of existing arrangements for accommodation of dangerous sexual offenders who are being considered for release on supervision orders are also applicable to the present case. I note in this context that the respondent did not, for understandable reasons, request an adjournment of the application for the purpose of waiting to see if the accommodation situation relating to the accused changes over the next few months.
[23] Director of Public Prosecutions (WA) v Corbett [No 5] [78], [81] ‑ [82].

Decision

For the reasons I have stated I have decided that the respondent's continuing detention order should be affirmed.

Recommendations for ongoing management and treatment

So far as the respondent's ongoing management and treatment while he remains in custody is concerned, it is in my view important that he continue, through his psychological counselling, to attempt to address his outstanding treatment needs and, as part of this process, to attempt to further develop his understanding of, and insight into, the underlying causes of his offending and his risk factors. It is also, in my view, important for the respondent to continue, again through his psychological counselling, to rehearse and develop strategies to manage and deal with any high risk situations that he may find himself in when he is ultimately released.
In addition, in my view the respondent should continue to be given every available opportunity to further develop his self‑management and general living skills in order to help him prepare for release and reintegration into the community.
With respect to the issue of the respondent being given the opportunity to continue to develop his self‑management and general living skills in order to help him prepare for release and reintegration into the community, the respondent requests, in light of the previously referred to Prison Procedure 301, that I make a recommendation that he be permitted to participate in 'section 95 activities' in the community.
It is necessary, in order to properly deal with this request, to make some further observations about the relevant sections of the Prisons Act 1981 (WA), Prison Procedure 301 and Adult Custodial Rule 18 'Assessment and Case Management of Prisoners' (the Rule).
Prison Procedure 301, which is clumsily worded, is in the following terms:
Any prisoner who is subject to or under consideration for a continuing detention order made under the Dangerous Sexual Offenders Act 2006. If an Order for participation in a leave of absence for participation in activities in the community is made by the Supreme Court as part of a release preparation plan, advice is to be forwarded to the Assistant Director Sentence Management by the Designated Superintendent prior to the prisoner's leave of absence. Prisoners are not to be further assessed under these Procedures.
Thus the wording of Prison Procedure 301 does not actually stipulate that a person the subject of a continuing detention order can only participate in activities in the community if an order is made by a judge of this court permitting this to occur as part of a release preparation plan. However, the evidence adduced on the review hearing to which I have already referred establishes that regardless of the wording of Prison Procedure 301 it has been interpreted and applied by the prison authorities in a way that makes an order by a judge of this court permitting the person to participate in activities in the community as part of a release preparation plan a pre-condition to this occurring.
Section 95(1) of the Prisons Act provides:
Without limiting the responsibility of the chief executive officer for the welfare of prisoners conferred by section 7(1), the chief executive officer may arrange for the provision of services and programmes for the wellbeing and rehabilitation of prisoners.
Section 95(2) of the Prisons Act provides:
(2)In particular, services and programmes may be designed and instituted with the intention of ‑
(a)promoting the health and wellbeing of prisoners; and
(b)enabling prisoners to acquire knowledge and skills that will assist them to adopt law abiding lifestyles on release; and
(c)assisting prisoners to integrate within the community on release; and
(d)maintaining and strengthening supportive family, community and cultural relationships for prisoners; and
(e)providing counselling services and other assistance to prisoners and their families in relation to personal and social matters and problems; and
(f)providing opportunities for prisoners to utilise their time in prison in a constructive and beneficial manner by means of educational and occupational training programmes and other means of self improvement; and
(g)providing opportunities for work, leisure activities, and recreation; and
(h)assisting prisoners to make reparation for the offences they have committed.
Section 95(6) of the Prisons Act provides that the services and programs under the section 'may be provided inside or outside a prison'.
Section 95(7) provides that a prisoner may be confined in a facility outside a prison to facilitate the prisoner being provided with opportunities for work or participation in services or programs under the section.
Section 95(8) provides that the section does not authorise a prisoner to be absent from a prison or a facility referred to in s 95(7) without an absence permit.
An 'absence permit' within the meaning of s 95(8) is a written permission given by the chief executive officer under s 83(2) of the Prisons Act for a prisoner to be absent from a prison or other facility.[24] Moreover, by s 24 of the Prisons Act a prisoner who is absent from a prison or other facility under an absence permit is deemed to be in lawful custody while absent as authorised by the permit.
[24] Prisons Act, s 3.
An offender the subject of a continuing detention order is a 'prisoner' within the meaning of the definition of the term in s 3 of the Prisons Act in that the offender is a person who has 'been ordered to be detained in a prison under a law of the State'.[25] Moreover, an offender the subject of a continuing detention order 'continues to be a prisoner for so long as he remains in lawful custody'.[26] It follows that s 95 can apply to the respondent.
[25] Act, s 17(1)(a), s 45.
[26] Prisons Act, s 3.
It is apparent from the terms of s 83(2) that the responsibility for deciding whether to give to a prisoner an absence permit so as to authorise the prisoner to engage in services and programs that are provided outside of the prison pursuant to s 95(1) and s 95(6) falls to the chief executive officer. It is also apparent from the terms of s 83(2) that the section does not, contrary to what is apparently contemplated by Prison Procedure 301, give the court the power to order that any prisoner, including an offender detained under a continuing detention order, be permitted to participate outside of the prison (that is, in the community) in a program established pursuant to s 95(1) and s 95(6) as part of a 'release preparation plan' or at all. Furthermore, there is no other legislative provision contained in the Act or the Prisons Act which expressly bestows on the court such a power.
Section 8(1) of the Prisons Act provides that the chief executive officer may delegate to any person any power or duty of the chief executive officer under another provision of the Prisons Act other than s 9 or s 35.[27] Therefore, the power given to the chief executive officer under s 83(2) to decide whether to give to a prisoner an absence permit so as to authorise the prisoner to engage in services and programs that are provided outside of the prison pursuant to s 95(1) and s 95(6) may be delegated under s 8(1).
[27] Section 8(2) of the Prisons Act provides that the delegation must be in writing and signed by the chief executive officer.
Leaving aside the question whether an officer of the executive arm of government can delegate a power or duty to the judiciary (a question which it is unnecessary for me to deal with in the present case), the chief executive officer has not purported to expressly delegate any power under s 83(2) of the Prisons Act to a judge of this court.
The applicant has drawn my attention in this context to sections 9.5.4, 10.3.8.5 and 10.3.8.6 of the Rule. The Rule has been made pursuant to s 35(1) of the Prisons Act. Section 35(1) of the Prisons Act provides:
The chief executive officer may, with the approval of the Minister, make rules for the management, control and security of prisons generally or a specified prison and for the management, control, and security of prisoners and the management of officers of the Department.
Section 35(3) provides:
Rules made under this section may confer a discretionary authority on any person or class of persons.
The Rule was approved by the Minister for Corrective Services on 10 April 2012. Section 9.5.4 of the Rule provides:
Prisoners subject to a detention order made by the Supreme Court under [the Act] may only be approved for minimum security rating where a release preparation plan (including any treatment program) that requires placement at minimum security has been approved by the Supreme Court (see also sections 10.3.8.5 and 10.3.8.6).
Section 10.3.8.5 of the Rule provides:
When the Supreme Court has issued an order for the prisoner's detention in custody past the expiry date of the prisoner's sentence, or where an offender (DSOA) in the community is returned to custody under an order of the Supreme Court, the Authorised Assistant Superintendent will ensure that the prisoner is held in a closed (maximum or medium) setting.
Section 10.3.8.6 of the Rule provides:
Prisoners subject to section 10.3.8.5 may only be approved for minimum security rating and placement, where a release preparation plan (including any treatment program) that requires placement at minimum security has been approved by the Supreme Court.
The applicant submits in light of s 35(3) of the Prisons Act that 'the Rule and Prison Procedure 301 may be considered an implied conferral of authority because a minimum security rating for a prisoner who is a [dangerous sexual offender] will only be approved by the prison authority if the Supreme Court has approved a release preparation plan that requires placement in such a facility'.[28] Although the applicant does not make clear in its submission the nature of the authority which it contends is impliedly conferred, I assume that the authority which it contends is conferred is an authority to make an order of the sort contemplated by Prison Procedure 301. That is, the applicant's argument, as I understand it, is that given that a prisoner will ordinarily only be permitted to engage in services and activities outside of the prison that are established pursuant to s 95(1) and s 95(6) of the Prisons Act if the prisoner has a minimum security rating, the above referred to sections of the Rule read in conjunction with Prison Procedure 301 operate to impliedly confer on a judge of this court an authority to make an order that the respondent be permitted to engage in services and programs outside of the prison that are established pursuant to s 95(1) and s 95(6).[29]
[28] Paragraph 23 of the Applicant's 'Outline of Submissions Re Authorisation of Activities under Section 95 of the Prisons Act1981' dated 7 December 2018, filed and served pursuant to an order of the court made at the conclusion of the review hearing (Supplementary Submissions).
[29] Supplementary Submissions, pars 21 ‑ 23.
I do not accept the applicant's submission. It simply does not follow, in my opinion, that because the prison authorities will only approve for an offender the subject of a continuing detention order a minimum security rating if the release preparation plan approved by this court requires placement at minimum security, that the court also has the authority to make an order permitting the offender to engage in services and activities outside of the prison that are established pursuant to s 95(1) and s 95(6) of the Prisons Act. In my opinion the wording of the above referred to sections of the Rule, even if read with Prison Procedure 301, cannot possibly be construed as conferring on a judge of this court, expressly or impliedly, an authority to make an order that an offender the subject of a continuing detention order be permitted to engage in services and programs outside of the prison that are established pursuant to s 95(1) and s 95(6). The above referred to sections of the Rule are concerned solely with when an offender the subject of a continuing detention order may be approved by prison authorities for a minimum security rating. In any event, even if, contrary to my expressed view, it is accepted that the sections of the Rule do purport to confer on a judge of this court the contended for authority, the conferral of such an authority does not constitute, and is not a substitute for, a delegation by the chief executive officer to a judge of this court, in accordance with s 8(1) of the Prisons Act, of the power given by s 83(2) of the Prisons Act (assuming, without deciding, that such a delegation would be lawful).
For the reasons I have stated, I do not consider that I have the jurisdiction or power to make an order of the sort contemplated by Prison Procedure 301. The respondent does not attempt to contend to the contrary hence the request made by him that I make a recommendation that he be permitted to participate in 'section 95 activities' in the community.
Despite my above expressed conclusion with respect to Prison Procedure 301, there does not appear to me to be any legislative prohibition on me making, or any other reason why I cannot make, a recommendation to the effect that the respondent be permitted to engage in services and programs outside of the prison that are established pursuant to s 95(1) and s 95(6) of the Prisons Act if I consider that to do so is in all the circumstances appropriate and consistent with the stated objects of the Act, one of which is to provide for the continuing control, care, or treatment of offenders detained pursuant to the provisions of the Act (emphasis added).[30] I note that the applicant's position is that it is open to me to make such a recommendation. I note further in this context that in Director of Public Prosecutions (WA) v Latimer [No 7],[31] which it appears is the only other decision under the Act in which the issue of the possibility of a dangerous sexual offender being permitted to engage in activities under s 95 of the Act outside of a prison has been raised, Jenkins J, although her Honour was not required to decide the point, did not appear to exclude the possibility of a dangerous sexual offender engaging in such activities in appropriate circumstances.
[30] Act, s 4(b).
[31] Director of Public Prosecutions (WA) v Latimer [No 7] [2014] WASC 229 [74].

In my opinion it is important that the respondent, in order to continue to develop his self‑management and general living skills with a view to helping him prepare for release and reintegration into the community, be permitted to engage in appropriate programs and services that are established under s 95(1) and which are, pursuant to s 95(6), provided outside of the prison in the community provided that he is at all times, while engaging in such programs or services, under constant supervision. I therefore recommend that whatever steps need to be taken are taken by the prison authorities to enable this to occur. This recommendation is, of course, consistent with the previously referred to view held by the management of the Bunbury Regional Prison that the respondent is suitable to engage in 'section 95 activities' outside of the prison.
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 DERRICK
13 DECEMBER 2018