The State of Western Australia v Narkle [No 5]

[2017] WASC 46

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NARKLE [No 5] [2017] WASC 46

CORAM:   JENKINS J

HEARD:   10 FEBRUARY 2017

DELIVERED          :   27 FEBRUARY 2017

FILE NO/S:   MCS 86 of 2009

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

SHANE NARKLE
Respondent

Catchwords:

Criminal Law - Dangerous Sexual Offenders Act 2006 (WA) - Application for further supervision order - Whether unacceptable risk of committing further serious sexual offences - Whether serious danger to the community - Terms of further supervision order - Date of the commencement of further supervision order

Legislation:

Criminal Code (WA), CHXXXI
Dangerous Sexual Offenders Act 2006 (WA), s 3, s 7, s 8(4A), s 10, s 14, s 17, s 37
Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA)
Evidence Act 1906 (WA), s 106(A), pt B sch 7

Result:

Further supervision order made

Category:    B

Representation:

Counsel:

Applicant:     Mr M T Trowell QC

Respondent:     Ms M R Barone

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Barone Criminal Lawyers

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

Director of Public Prosecutions (WA) v GTR [2007] WASC 318

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206

Director of Public Prosecutions for Western Australia v Narkle [2010] WASC 7

Director of Public Prosecutions for Western Australia v Narkle [No 3] [2013] WASC 1

Narkle v Director of Public Prosecutions (WA) [2011] WASC 324

1. JENKINS J:  For four years from January 2013, the respondent was subject to a supervision order made under the Dangerous Sexual Offenders Act 2006 (WA) (the Act) (the original supervision order). The original supervision order expired on 6 January 2017. On 7 December 2016, the Director of Public Prosecutions for Western Australia (DPP) applied in the name of the State of Western Australia pursuant to the Act s 8(4A) and s 17(1)(b) for a further supervision order.

2. On 21 December 2016, after a preliminary hearing, Hall J determined that there were reasonable grounds for believing that the court might, under s 7(1), find that the respondent is a serious danger to the community. His Honour fixed a date for the hearing of the application for a further supervision order, and ordered that the respondent be examined by a psychiatrist, Dr Bryan Tanney, and a psychologist for the purpose of preparing reports required by the Act s 37. The psychologist was later identified as Ms Gail Della Torre.

3. His Honour ordered that the respondent be detained pursuant to the Act s 14 until the hearing of the application, however, such order to be suspended upon the respondent entering into an undertaking that he would continue to abide by the conditions of the then current supervision order after it expired and that he would appear at the hearing of the application on 9 February 2017. The respondent appeared at the hearing in compliance with his undertaking.

4. At the hearing of the application for a further supervision order, the applicant submitted that the further supervision order should be for a period of two years and that it should contain the conditions in attachment 1.

5. The respondent objected to a further supervision order being made.  If one is made he submitted that it should be for a shorter period and contain fewer conditions.

6. These are my reasons for making a further supervision order for 22 months in the terms of attachment 2.

The law

1. The Act s 8(4A) was inserted into the Act by the Dangerous Sexual Offenders Legislation Amendment Act 2016 (WA) which commenced on 10 September 2016. This is the first application to be made under s 8(4A).

2. Section 8(4A) states:

   If ‑ 

   (a)an offender is subject to a supervision order (the current order); and

   (b)the current order is to expire within one year,

   the DPP may file with the Supreme Court an application for orders under section 14 and for a further supervision order under section 17(1)(b) in relation to the offender, the further order to take effect on the expiry of the current order.

3. The application for a further supervision order was made less than one year before the expiration of the original supervision order. The Act s 14 related to the making of the orders at the preliminary hearing and thus it is no longer relevant.

4. The Act s 17(1) provides that if a court hearing an application for a further supervision order finds that the respondent is a serious danger to the community the court must:

   (a)...

   (b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.

5. The Act s 17(3) provides that a court hearing an application for a further supervision order under s 8(4A) must not make an order for indefinite detention.

6. The Act s 10 relevantly provides that an application under s 8(4A) may proceed and a further supervision order made even if, while the application is pending, the respondent ceases to be subject to an original supervision order, as occurred in this case.

7. The parties agree that s 8(4A) provides that the application for a further supervision order must be for a further supervision order to commence at the expiry of an original supervision order.  That is, the DPP cannot apply for a further supervision order which would commence during the currency of an original supervision order and thereby achieve an amendment to the terms of an original supervision order.

8. The parties further agree that s 17(1)(b) empowers the court only to make a further supervision order that commences at least 21 days after the further supervision order is made. That is, the court cannot order a further supervision order to commence on an earlier date.

9. I will determine this application on the basis of the agreed construction of the relevant provisions. However, that does not mean that I do not think that there are issues with respect to the proper construction of those provisions. On any analysis of the statutory provisions, it seems odd that a qualification on the commencement date of a further supervision order was inserted in s 8(4A), which does not contain the power to make the further supervision order. It would have been logical to insert the qualification in s 17(1). If it had been inserted there the possibility of a time gap between the expiration of an original supervision order and the commencement of a further supervision order, which cannot come into effect less than 21 days from when it was made, would have been apparent.

10. It is not in the interests of public safety for there to be a 21 day period between the making of a further supervision order and its commencement, in circumstances such as exist in this case, where the original supervision order has expired. Yet, that is the mandatory effect of the Act s 17(1)(b). This court cannot alter the unambiguous meaning of the text of the Act. It is up to the legislature to change the law.

11. The Act s 7(1) provides that before the court can make a finding that the respondent is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the respondent were not subject to, relevantly, a supervision order, the respondent would commit a serious sexual offence.

12. Section 7(2) states that the applicant has the onus of satisfying the court of the matters in s 7(1) and that the court must be satisfied:

    (a)by acceptable and cogent evidence; and

    (b)to a high degree of probability.

13. The standard of proof to a 'high degree of probability' is higher than the civil standard, being proof on the balance of probabilities, but lower than the criminal standard, being proof beyond reasonable doubt.

14. The Act s 4A states relevantly that a person commits a serious sexual offence if the person does an act that constitutes a serious sexual offence and that it makes no difference whether the person doing the act or making the omission would be likely to be charged with an offence or, if charged with an offence, be found mentally fit to stand trial or be convicted.

15. The term 'serious sexual offence' is defined in the Act s 3 to have relevantly the meaning given to that term in the Evidence Act 1906 (WA) s 106A. The Evidence Act s 106A read with pt B of sch 7 of the same Act and the Criminal Code (WA) (Criminal Code) appropriately provides that serious sexual offences are any of the offences contained in ch XXXI of the Criminal Code, the penalty for which is 7 years' imprisonment or more. The Criminal Code ch XXXI is headed 'Sexual Offences' and contains the majority of offences of a sexual nature. Offences contained in ch XXXI which would fall within the definition of a 'serious sexual offence' include all sexual offences against children under the age of 13 years, all sexual offences by a person over the age of 18 years against a child between the ages of 13 and 16 years, aggravated indecent assault, sexual penetration without consent, sexual penetration of a de facto child or lineal relative, indecent dealing with a de facto child or lineal relative under the age of 16 years and sexual offences against incapable persons. Indecent assault simpliciter and indecent dealing with a child over the age of 16 years are not serious sexual offences.

16. The Act s 7(3) states that in deciding whether to find that the respondent is a serious danger to the community, I must have regard to the following matters:

    (a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;

    (b)any other medical, psychiatric, psychological, or other assessment relating to the person;

    (c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

    (d)whether or not there is any pattern of offending behaviour on the part of the person;

    (e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;

    (f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person;

    (g)the person's antecedents and criminal record;

    (h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;

    (i)the need to protect members of the community from that risk; and

    (j)any other relevant matter.

17. In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 [68] ‑ [72] Wheeler JA (Le Miere AJA agreeing) considered what was meant in s 7(1) by the words 'unacceptable risk'. Her Honour said:

    In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention [63].

18. Wheeler JA's views were affirmed in the Director of Public Prosecutions (WA) v GTR [2007] WASC 318.

Issues

1. Having regard to the relevant statutory provisions, the issues for my determination are:

   (1)whether the respondent is a serious danger to the community in that there is an unacceptable risk that if he were not subject to a further supervision order, he would commit a serious sexual offence; and

   (2)if the respondent is a serious danger to the community what are the appropriate conditions and length of a further supervision order?

Background of the respondent

1. The respondent's background and the views of various experts who have provided reports about him are set out in the decision of Hall J when his Honour found that in 2010 the respondent was a serious danger to the community and made a continuing detention order (CDO):  Director of Public Prosecutions for Western Australia v Narkle [2010] WASC 7. There is additional relevant material contained in the decisions of McKechnie J in 2011 and 2013 when his Honour declined to rescind the CDO and later rescinded the CDO and made the supervision order: Narkle v Director of Public Prosecutions (WA) [2011] WASC 324 and Director of Public Prosecutions for Western Australia v Narkle [No 3] [2013] WASC 1.

2. Although the respondent does not agree with the conclusions in those decisions about him and his risk of serious sexual offending, he does not dispute that the decisions accurately reflect his background and the opinions of others.  Consequently, I take into account but will not repeat all of the material contained in those decisions.  In order to understand my reasons it is necessary to have regard to those earlier decisions.

3. In summary, in 1986 at the age of 22, the respondent committed his first serious sexual offence.  Hall J described the offence, his conviction and sentencing in the following way:

   At that time he was living with other members of his extended family at a house in Koongamia.  One of the others living at the house was Mr Narkle's 62‑year‑old aunt.  She was an invalid pensioner who was blind in the left eye and walked with the aid of a walking stick.  On 19 June 1986 she returned home in the mid‑afternoon and decided to have a sleep in the backyard.  She fell asleep on a blanket and woke sometime later after being grabbed from behind and dragged to the laundry of the residence.  Initially she could not see who her attacker was because of her blind eye.  She was dragged through the kitchen and into a bedroom and was then able to identify her attacker as Mr Narkle.  He punched and kicked her and told her that he was going to rape and kill her.  In the bedroom he pushed her to the floor, lifted her dress up around her neck and held her to the floor by her shoulders.  She was punched again to the head and pleaded with Mr Narkle to stop.  He then raped her and threatened again to kill her before leaving the house.  The victim got up from the floor, put her pants on and left the house and struggled down to the street to call out for help.  A subsequent medical examination confirmed that she had been physically and sexually assaulted.

   Mr Narkle was later apprehended and interviewed.  He initially denied any wrongdoing but subsequently admitted that he had raped his aunt and had beaten her.  …  He was unable to explain the offence other than to say that he had been drinking heavily.  This offence occurred within one month of being released on parole after serving a sentence of imprisonment for an offence of breaking and entering for which he was sentenced on 6 December 1985.

   A pre‑sentence report was obtained.  That report stated that Mr Narkle exhibited considerable guilt, shame and remorse for his conduct, however, he denied having a drinking problem notwithstanding, as the report writer noted, a record which showed a strong link between his use of alcohol and offending. 

   Mr Narkle was sentenced on 23 April 1987 to 8 years' imprisonment with an order that he not be eligible for parole until he had served at least 4 years.  The sentencing judge noted that Mr Narkle's background indicated that he seemed to consistently drink to excess and that he was prone to aggression when drunk.  His Honour noted, however, that there was no previous history of aggressive sexual conduct and to that extent the offence might be thought to be out of character.  The offence was in a higher category of seriousness because of the aggravating features, being the age of the victim and his familial relationship to her.  His Honour granted a minimum term of 4 years because of Mr Narkle's age (then 22 1/2) and circumstances and because a long term of imprisonment would be crushing [20] ‑ [23].

4. During the 1990s the respondent committed numerous violent offences as described by Hall J at [27]. In 2001 and 2002, he committed three serious physical assaults on women. The latter two were on his then de facto wife. The final one occurred when he attempted to remove her clothes whilst they were in bed. He lost his temper and punched her several times to the head and face, knocking her to the ground. In 2003, he breached a violence restraining order, that she had by then obtained, by approaching her and threatening to kill her.

5. In December 2003, the respondent was released to parole after he had said that he recognised the link between his alcohol abuse and offending.  He had acknowledged that he had to refrain from drinking.  Less than two weeks after the respondent's release, at the age of 39, he committed offences, including serious sexual offences, which resulted in him being sentenced to his last fixed term of imprisonment.  Hall J described the offences, his conviction and sentence in the following way:

   On the evening of 17 December 2003 the female victim and a number of other people were drinking at a park in Midland.  Mr Narkle was present and suggested that they walk to his house.  At the house more alcohol was drunk and at some stage the woman asked if she could use the toilet.  Mr Narkle showed her where the toilet was and when she had finished and opened the door she found he was standing blocking her way.  He then grabbed her around the waist and pulled her into a bedroom.  He pulled her to the ground and hit her head with a piece of wood.  She asked him to stop and he told her to shut up and let him do what he wanted to do.  She was hit more than once with the piece of wood and felt blood on her face.  He then pushed her into a bathroom and forcibly removed her clothes and underwear and then took her back to the bedroom.  He then pushed her onto the bed and raped her.  As he was doing this he continued to hit her with the piece of wood.  He also penetrated her with a finger.

   Mr Narkle denied the offences but was convicted after trial of unlawful detention, unlawfully doing grievous bodily harm and two counts of aggravated unlawful sexual penetration.  The sentencing judge described Mr Narkle's behaviour as a violent, cowardly and callous attack.  He was sentenced to 2 years' imprisonment for the deprivation of liberty; 32 months' imprisonment for unlawfully causing grievous bodily harm; 6 years' imprisonment for the first aggravated sexual penetration; and 32 months' imprisonment for the second aggravated sexual penetration.  Those sentences were made concurrent making an effective term of 6 years' imprisonment.  A parole eligibility order was made and the sentence was backdated to 18 December 2003 when Mr Narkle was first taken into custody [33] ‑ [34].

6. The respondent was not released on parole.  Prior to the expiry of his sentence in December 2009 the DPP applied for an order under the Act and he was detained under it.  On 18 January 2010, Hall J found that the respondent was a serious danger to the community and made a CDO.  The respondent remained in custody until, on 7 January 2013, McKechnie J rescinded the CDO and made the original supervision order for a period of four years.

7. In January 2010, Hall J summarised the psychiatric evidence from Dr Wynn‑Owen in the following terms:

   The report of Dr Wynn‑Owen concluded that Mr Narkle has not accepted or addressed any of the factors increasing his future risk of reoffending and that he rationalises his avoidance of programs designed to help with these issues.  Dr Wynn‑Owen is of the view that Mr Narkle currently presents as a high risk of reoffending.  His risk of reoffending if released is unchanged from his offending risk at the time of his offences in 2003 and his anger at the duration of his present incarceration for a crime that he maintains he did not commit may elevate this risk.  Dr Wynn‑Owen stated that Mr Narkle's score on the Static‑99 test indicated that a person with his history had a likelihood of approximately four in 10 of committing a further serious sexual offence within five years.  This score is in keeping with his extensive criminal record and the failure to engage in potentially risk mitigating interventions.  Dr Wynn‑Owen noted that the risk is elevated by alcohol abuse, interpersonal conflict, and violent behaviour.

   ...

   Dr Wynn‑Owen assessed Mr Narkle as having an antisocial personality disorder.  This manifested itself in denial and minimisation of criminal conduct; a lack of remorse for his sexually violent behaviour; a lack of empathy for victims; chronic alcohol abuse; periodic threats of self-harm; disregard for the law; poor self-control; poor planning; difficulty coping with stress; and difficulty with management of anger.  Dr Wynn‑Owen noted that antisocial personality disorder was a reliable predictor of reoffending risk.  He noted that sex offender treatment programs have been shown to be of benefit to people with antisocial personality and psychopathy.  Successful completion would mean that at the end of the program a person would have the ability to understand the situations that put him at risk and the factors which would otherwise lead to anger and sexually violent behaviour [45] ‑ [49].

1. His Honour summarised the psychiatric evidence from Dr Tanney in the following terms:

   In Dr Tanney's report of 30 November 2009 he concluded that after applying a number of different clinical tests, he assessed Mr Narkle as being at a high risk of committing further serious sexual offences against vulnerable females with accompanying violence within the next five years or sooner should no further intervention take place. By a high risk Dr Tanney meant a 40 % chance within the next five years. Dr Tanney stated that any such re-offending would be most likely opportunistic and unpredictable. However, a number of risk elements are likely to exacerbate the likelihood of further offending: alcohol intoxication; inability to cope; and nonexistent social or support relationships. He considered that alcohol is the most critical factor in triggering a risk scenario [53].

2. His Honour concluded that:

   Based upon Mr Narkle's past history of offending, the nature of the serious sexual offences he has committed and his high risk of re-offending I am satisfied to a high degree of probability that there is an unacceptable risk that further such offences would be committed by him if an order under the Act was not made. For that reason Mr Narkle is a serious danger to the community. I note in that regard that the danger he presents is not confined to a single person or confined group and would be a largely unpredictable risk that could occur opportunistically. The risk is compounded by the fact that Mr Narkle has not addressed the factors that contributed to his past offending, namely his alcoholism, tendency to violence and antisocial personality disorder. Furthermore, recent psychiatric assessments support a conclusion that these factors would continue to have a significant effect on Mr Narkle if he were released and that he has little appreciation of their effect or motivation to control them. In the present circumstances I am satisfied that there are no conditions that would be either affective or adequate to manage the risk or reduce it to an acceptable level. Community protection, as the paramount consideration, cannot be met other than by indefinite detention. However, other factors such as the availability of appropriate care and treatment also strongly favour detention in this case. In coming to this conclusion I have taken into account the very serious consequences to Mr Narkle of being further detained, but those consequences are outweighed in this case by the need to protect the community [75].

3. In 2013, the respondent was released from custody pursuant to the terms of the supervision order made by McKechnie J.  In his reasons for releasing the respondent his Honour said:

   The respondent is principally a violent offender who has sexually offended in the course of violence towards women.  His past violent offending has been the result of alcohol and impulsivity.  His impulsivity appears to be declining in Dr Hall's opinion.  His desire to abstain from alcohol remains untested.  However, it will always be untested until he is released.  He has the prospect of continued detention if he fails to abstain.

   Last year his accommodation proposal was unsatisfactory.  It is now as satisfactory as it will ever be.  At this review much has changed in this respect.  He has stable accommodation in a single unit (which Dr Hall recommends) for a year.  More importantly, he has the support of Outcare and has built up a relationship of trust with Ms Kirk.  He has commenced sessions in the Recovery Programme. 

   I am satisfied that release on a supervision order with strict conditions would adequately protect the community.  Those conditions will include a condition to abstain from alcohol and drugs and a requirement that his abstention be monitored; an initial curfew to be extended for a period of up to 12 months in discretion; regular reporting requirements and a requirement to continue counselling sessions as may be appropriate.

   Dr Hall proposed that the supervision order should be for a period of 3 years, pointing out, I think correctly, that if the respondent is going to breach the order he is most likely to do it in the first 12 months.  I have concluded that a somewhat longer supervision order is required for the adequate protection of the community.  I will impose an order for a term of 4 years [31] ‑ [34].

4. For the purpose of this application Ms Lisa Rathmann, a Senior Community Corrections Officer (SCCO), completed a Community Supervision Assessment, dated 25 January 2017.  Also in evidence are some Department of Corrective Services (DCS) reports completed after supervision meetings with the respondent.  Ms Gail Della Torre completed a psychological report, dated 31 January 2017, and Dr Tanney completed a psychiatric report, dated 24 January 2017.  The authors of the reports gave evidence at the hearing.  The respondent did not give evidence or call any witnesses to give evidence.

Supervision whilst on original supervision order

1. Since the respondent's release on the supervision order he has reported as directed to his SCCO.  At the end of the order he was reporting for supervision fortnightly, which is the minimum reporting regime which DCS policy permits.  Over the course of the order, he had been directed to submit to random urinalysis testing for alcohol and drugs and this occurred approximately once a month.

2. The respondent's behaviour during supervision 'fluctuated between appropriate, aggressive and disruptive'.  For example, on 23 April 2015, the respondent was highly aggressive and intimidating towards his SCCO.  On 21 March 2016, the respondent had delusions that a worker at Outcare was his nephew's girlfriend and that she had stayed at his house several times and exposed her body to him.  He also had delusions about a worker from the Community Forensic Mental Health Service (CFMHS) being an aboriginal lady in disguise who wanted a relationship with him.  During the same meeting, he used slang words to describe his and women's genitals in an inappropriate manner.  On 5 April 2016, the respondent told his SCCO that he was in a good mood and wanted her to find him a white woman around the same age.  The respondent was told that this conversation would end as it was not appropriate.  The respondent then asked for his SCCO's age.  Again, the respondent was advised that this information was irrelevant.  The respondent poked out his tongue and said 'we got something good going on'. 

3. On the other hand, Ms Rathmann describes the respondent's presentation since July 2016 as being 'appropriate'.  Nevertheless, whilst he engaged in all supervision sessions, he 'often require[d] significant prompting to engage meaningfully'. 

4. Dr Tanney does not believe that the respondent's comments during supervision indicated a sexual interest in the SCCO.  If not, I am of the view that they are indicative of impulsive, inappropriate sexualised comments and behaviour.

5. Throughout supervision, the respondent did not acknowledge a link between his drinking and his offending.  He regularly claimed that he was falsely convicted of his serious sexual offences.

6. Ms Rathmann is of the opinion that the respondent still has little insight into the factors which contribute to his risk of serious sexual offending.  For example, whilst judges, medical and psychological experts have long identified alcohol as a significant risk factor for his serious sexual offending, the respondent reported to his SCCO that he often socialised with family and friends who drink and take drugs and he did not see that these situations were of potentially high risk to him.

7. The respondent has also made mixed statements about whether he will, or will not, resume drinking alcohol once released from the obligations of the original supervision order.  For example, on 22 March 2016, he said that after his original supervision order ended he would attend the casino and a nightclub and drink alcohol.  On 3 October 2016, he said that he would resume drinking alcohol.  He said that he would likely have a 'bottle or two' of vodka and orange or buy a 6‑pack, but would drink alone.  On 28 November 2016, he said he would not drink.

8. During the term of the supervision order, the respondent reported as directed to the Western Australian Police Sex Offender Management Squad (SOMS).  The reporting was required as part of the conditions of the original supervision order.  The reporting occurred monthly and SOMS did not report to the respondent's SCCO any issues concerning the respondent's presentation or interactions with it.

Psychological counselling whilst on original supervision order

1. After being placed on the supervision order, the respondent was directed to, and did, attend regular psychological counselling appointments.  His engagement was considered to be poor, and he was resistant to discussing issues pertaining to his risk management.  The psychologist regarded him as maintaining entrenched cognitive distortions about violence and considered that he took limited responsibility for his previous offences.  Due to his poor engagement in therapy, psychological counselling was concluded in October 2014.

2. The respondent was re‑referred to counselling in May 2016 after he made comments to his SCCO which had sexual connotations.  The respondent made limited therapeutic gains and presented as disinterested and unmotivated to engage in therapy.  Counselling concluded in December 2016 due to his poor engagement.

3. The respondent's treating psychologist, Dr Yewers, reported that the respondent's concrete thinking, distrusting nature, paranoia towards agencies involved in his case management, limited insight and mental health issues all affected his ability to engage in counselling.

4. None of the witnesses thought that the respondent would benefit from any further psychological treatment.  Dr Tanney thought that irrespective of any treatment gains that could be made in counselling, the respondent may still benefit from a positive relationship with a counsellor.  He acknowledged that given DCS's limited resources, providing a counsellor for this purpose may not be practical.

Offending whilst on original supervision order

1. The respondent has been convicted of contravening his original supervision order.  The convictions relate to the following incidents:

   (1)On 15 March 2014, the respondent failed to charge his global positioning system (GPS) device as directed resulting in the device losing power.  DCS was unable to track the respondent's movements or establish contact with him.  He was without GPS tracking for approximately 17 hours during which time he claimed that he was in York.  The respondent was convicted of three offences of contravening his supervision order.  The first related to failing to charge his device appropriately.  The second was for failing to return home when his device lost battery power, and the third was for failing to answer his mobile phone as required.  On 30 April 2014, the respondent was sentenced to 12 month conditional release orders (CROs) for these three offences.

   (2)On 17 April 2014, the respondent spent the night at his nephew's home and subsequently failed to attend a supervision appointment.  The police attended his home and subjected the respondent to a breath test.  He provided a positive result for alcohol.  On 30 April 2014, he was convicted of two offences of contravening the supervision order.  The first was for failing to attend his appointment and the second was for consuming alcohol.  The respondent was fined $1,500.

   (3)On 15 July 2014, the respondent provided a positive urinalysis result for cannabis.  The offence placed him in breach of the CRO imposed on 15 March 2014.  The respondent was fined $500 for contravening his supervision order.  He was not penalised for breaching the CROs.  In respect of the use of cannabis, the respondent denied using cannabis and claimed that the positive test resulted from passive smoking.

2. On 28 November 2016, the respondent told his SCCO that he intended to return to York in January 2017 (presumably at what he thought would be the end of his supervision order) to find the person who killed his twin brother.  He said he would find him and use a machete to hit him in the head.  He said that he was done with white people telling him what to do.  Despite these comments, since the end of the original supervision order and whilst the respondent was on the undertaking he gave to Hall J and a subsequent undertaking given to me, he has not been charged with any criminal offence and he has not travelled to York.

Accommodation whilst on the original supervision order

1. The respondent obtained a 12 month lease for private rental accommodation in December 2016.  Prior to obtaining this property, the respondent resided in Outcare accommodation.  Outcare has advised that after the expiry of his original supervision order and any undertaking related to this application, the respondent could only continue to engage with its service on a casual basis.  The respondent has said that he is willing to engage with Outcare in the future.

Mental health whilst on the original supervision order

1. In July 2013, the respondent's SCCO and the psychologist thought that the respondent was becoming increasingly delusional and paranoid.  As a result, in August 2013, the respondent was referred to the CFMHS.  Dr Tanney gave evidence that according to his discussions with Dr Pyszora, the respondent was diagnosed with schizophrenia.  Ms Rathmann's report states that he was diagnosed with delusional disorder (persecutory type).  In either case, the respondent was prescribed a low dose of an anti‑psychotic medication, Quetiapine, which he was initially resistant to take.  However, his dose has been slowly increased and he is currently prescribed 400 mg.  The respondent has appeared to his SCCO to be sometimes overly sedated on this dose.  The respondent has also complained of feeling overly sedated.

2. The respondent still occasionally displays delusional thinking.  In Dr Tanney's view this does not increase his risk of serious sexual offending.  He says that it is probably a result of stress.

3. Dr Tanney is of the opinion that the anti‑psychotic medication has no direct effect on the respondent's risk of committing a serious sexual offence.  However, he thinks that it is possible that it has an indirect effect in the sense that it helps the respondent to be less oppositional to authority and to maintain an ordered mind and life, which in turn helps him to make rational decisions not to offend.  Quetiapine's sedating effect would also indirectly reduce the respondent's risk of serious sexual offending.

4. The respondent currently meets with a mental health nurse from the CFMHS on a fortnightly basis and he can continue to do so on a voluntary basis without a supervision order. 

5. The respondent has made mixed statements about whether he will or will not continue to engage with CFMHS and take his medication as prescribed once the original supervision order and any related undertaking lapses.  For example, he told Dr Tanney that he would 'see what happens' and Dr Tanney was not clear whether that meant that the respondent would see what happened in relation to this application or would see how his relationship with CFMHS faired.

Personal and community activities whilst on the supervision order

1. Aside from the appointments and commitments related to the supervision order, the respondent has no structure in his life and is not engaged in any pro‑social or community activities.  He typically spends his day in his unit and walking around Perth and the Midland business districts, during which time he often socialises with extended family members, friends and associates.  Ms Rathmann describes these people as 'negative' which I take to mean that they are people who may have alcohol and substance abuse issues and records of offending.  It seems that these are the people with whom the respondent is likely to continue to associate.

2. Whilst on the original supervision order, the respondent showed quite some determination not to engage with these people in anti‑social activity or to consume alcohol with them.  For example, he was prepared to drink coffee or water whilst they drank alcohol.  The question is whether he would continue to do this were it not for the controls of a supervision order.

3. The respondent has also shown some insight into the undesirability of associating with some of his relatives who engage in anti‑social behaviour.  Although, at other times he has indicated that he would increase the time he spends with his relatives when any supervision order had expired.

4. The respondent has diabetes and hypertension.  He is aware of the deleterious effect of alcohol and drugs on his health.

5. I now turn to consider the mandatory considerations in the Act s 7(3).

Report prepared by a psychiatrist pursuant to the Act s 37

1. Dr Tanney reported that he reviewed the respondent on 6 January 2017.  He also reviewed a number of documents relating to the respondent and discussed relevant matters with people involved in the respondent's treatment and control under the supervision order, including Dr Pyszora from the CFMHS.

2. Dr Tanney said that the respondent conveyed information selectively to present himself favourably but that he 'did not experience feeling purposefully manipulated'.  During his interview with the respondent, the respondent did not show any abnormality in process or form of his thoughts.  He did not express any delusional ideas.

3. Dr Tanney said that the respondent's problem solving capacity was straightforward and practical.  His attitude was that he should think before he did something stupid.  Dr Tanney noted that the respondent's thinking was deficient in respect of emotional and interpersonal problems such as sexuality and relationships.  His defence against emotions involved avoiding discussing his past previous sexual offending.

4. The respondent expressed to Dr Tanney that he was aware of external support agencies and his ability to use them, but he was uncertain as to his continued engagement with them.

5. The respondent's attitude was that he was older, that he was looking after himself and that he had proved to society and to himself that he had changed.  He knew that alcohol was not good for his health, especially as he has diabetes and hypertension.  He emphasised to Dr Tanney the importance of his freedom and living his life with the motivation not to reoffend and waste his life in jail.  The respondent expressed a desire to be off the original supervision order.  He had no appreciation that the limitations and supports that it provided had enabled him to re‑enter community life successfully and to manage his risk of reoffending.

6. Dr Tanney used the Static‑99R as a tool to assist in determining the respondent's risk of serious sexual offending.  The respondent's score of 6 placed him in the 'well above average' risk rating for recidivism of sexual or violent offending.  Dr Tanney noted that in 2010 the respondent's Static‑99R score was 7. 

7. The Static‑99R predicts that 25.7% of persons with a score of 6 who are high needs sexual offenders, similar to the respondent, will reoffend within five years and 37.3% will reoffend within 10 years.

8. The limitations of the Static‑99R are well known.  For example, it does not reduce a person's score due to the length of time between offences or for the length of time between the last offence and the date of assessment.

9. Dr Tanney also used the Risk for Sexual Violence Protocol (2003) (RSVP) to assist in determining the respondent's risk of serious sexual re‑offending.

10. The RSVP requires an assessment of a person based on clusters of factors under five major headings being, sexual violence, psychological adjustment, mental disorder, social adjustment problems and manageability. 

11. Dr Tanney noted that the respondent has an established pattern of sexual offending involving a recurring but unpredictable risk scenario which appeared to be an extension of the respondent's long history of violence.

1. The respondent also has lifelong impairments of his inner psychological processes.  These have distorted his interpersonal communications and relationships and severely impacted on his ability to regulate and express emotions related to trust and caring.  The respondent has shown little interest and, likely, minimal ability to appreciate or address these disturbances.

2. The respondent has deeply entrenched patterns of disordered emotional, cognitive and behaviourally adaptive functioning.  He has an anti‑social personality disorder comorbid with chronic and severe substance abuse issues.  The emergence of a diagnosed psychotic mental disorder during the original supervision order has further complicated his problem solving abilities.  Dr Tanney is of the view that the diagnosis may reflect the respondent's maladaptation to stress due to his low IQ and traumatic life experiences.

3. Dr Tanney is of the opinion that the respondent has difficulty with social adjustment in all major life domains.  He does not place a high priority on establishing intimate relationships or a socially acceptable support system.

4. Dr Tanney also noted that the respondent has treatment experience but few gains have resulted.  The respondent's past response to supervision was poor but it was adequate during the original supervision order.  There was also some significant improvement in manageability during the course of the original supervision order.

5. Dr Tanney concluded in respect of the RSVP that the respondent has a large number of risk factors, suggestive of multiple pathways towards his offending.  The RSVP suggested 'chronic major broadly based deficits in all risk factor clusters'.

6. Dr Tanney referred to a DCS study conducted in 2012 of the likelihood of sexual reoffending amongst 162 indigenous sex offenders using Western Australian data.  Without considering risk levels/scores, baseline rates of reoffending were calculated at 25% within five years and 28.2% within 10 years.  It was noted that the general pattern of reoffending appeared to be more inclined towards violent offending in general and towards offences involving adults.  Seventy five percent of the sample had been enrolled and/or participated in some sexual offender treatment programme.

7. The Static‑99R has to be used cautiously in respect of Western Australian indigenous offenders in light of the DCS study referred to above.  However, the Static‑99R norms for reoffending were based on large international samples, which included indigenous persons.  It found that race was not a significant predictor of sexual offence recidivism.

8. Dr Tanney regarded the respondent's lack of sexual or violent offending whilst he had been in the community for the last four years as warranting an downward adjustment in his likelihood of reoffending.  Dr Tanney noted that there was a Canadian study which suggested a 50 ‑ 60% 'substantial' decrease in likelihood of sexual reoffending after a five year period of being offence‑free in the community.  Specifically, the study found that the reoffending rate in the first five years after release was 22% but only 8.6% in the five years after being offence‑free for five years.

9. In his evidence, Dr Tanney said that he did not believe that the Canadian study was in respect of offenders who were subject to supervision, treatment or control when they were in the community.

10. Dr Tanney also completed an 'idiosyncratic consideration of [the respondent's] life as a unique entity'.  Dr Tanney noted that the respondent's further sexual offending or violent offending against females was likely to involve physical violence in the context of substance abuse.  He noted that the respondent's serious sexual offences were widely spaced in time but that they shared characteristics of being situational and opportunistic, without extended planning or premeditation.  He said that they had occurred within brief windows of opportunity following a period of custody, and that the respondent was in a relationship at the time of both incidents.  Dr Tanney said that there were no apparent triggering events or circumstances beyond impulsivity of sexual desire and alcohol intoxication.  Dr Tanney concluded:

    Sexually violent re‑offending against females remains a realistic concern at some unspecifiable date and the risk scenario can be adequately portrayed.

    Of considerable importance, there are some grounds for optimism about his likelihood of reoffending based on time offence free in the community.

11. Based on the Static‑99R and RSVP, Dr Tanney concluded that the respondent remained at considerable risk of serious sexual reoffending within the next five years or sooner, should no further intervention take place.  The reoffending is likely to be opportunistic and unpredictable at the actual event, but a consistent risk scenario can be stated.  The likely victims are vulnerable, familiar females and the offending will involve physical violence with accompanying sexual violence.  The dynamic risk elements that are likely to exacerbate the likelihood of further serious sexual offending are, in order, alcohol intoxication, impaired regulation of effects (maladaptive coping), and limited social or support relationships.

12. Dr Tanney said that for many reasons, the respondent had not made meaningful treatment gains in addressing the majority of risk factors.  He said that monitoring and support are the mainstays of ongoing risk management.

13. In Dr Tanney's view there are four possible explanations for the respondent's lack of violent or sexual offending over the past four years.  One is that the support and restrictions of the original supervision order prevented him from relapsing into alcohol abuse and reoffending.  The second is that the respondent has modified his behaviour in order to prove that he can comply with the constraints of the supervision order.  The third is that the respondent has matured and grown out of the behaviour that led to his offending.  The fourth is that the anti‑psychotic medication has settled the respondent's anti‑authoritarian oppositional stance, emotions and behaviour. 

14. Dr Tanney is not able to say which of these four explanations was the most likely, but a defiant determination on the respondent's part to prove that he could comply with the terms of the original supervision order was not his preferred explanation.  This is because Dr Tanney thinks that the respondent's impulsivity would overcome any such defiance.

15. All but the third of these explanations are dependent on organised community support for the respondent.  However, the respondent does not appreciate the value of that support and his future voluntary engagement with such support is uncertain.

16. Taking into account all of the relevant matters, Dr Tanney is of the view that the respondent has a stable but low risk of sexual reoffending at an unspecified time in the future.  I note, however, that this conclusion is substantially based on Dr Tanney's opinion that the respondent has a reduced risk of reoffending due to the four years that the respondent has spent in the community without drinking alcohol and offending.

17. Dr Tanney said that in the face of some ongoing risk, what he described as a 'soft' supervision order for a period of two years had been proposed in order to consolidate the respondent's engagement with various community supports.  He noted that it would also ensure ongoing monitoring of some of the high risk elements of the respondent's behaviour.

18. By 'soft' Dr Tanney meant fewer restrictions on the respondent's behaviour than were imposed by the original supervision order, such as no GPS tracking and some relaxation in the prohibition against alcohol.  Dr Tanney regards a complete prohibition on alcohol consumption to be unrealistic given the prevalence of alcohol use in the Western Australian community.

19. Dr Tanney said that he was not proposing a further supervision order.  He considered it the court's role to determine whether a supervision order was required.

Any other psychological or other assessment relating to the respondent

1. I have already detailed the community supervision assessment completed by Ms Rathmann.

2. Ms Della Torre has been employed by DCS as a forensic psychologist for 15 years but this is the first risk assessment that she has completed under the Act.  It was also the first time that she had given evidence.

3. Ms Della Torre interviewed the respondent on 13 January 2017 for the purpose of completing her psychological report.  She also discussed the respondent with Dr Yewers and Ms Rathmann.  She had email communication with Dr Pyszora.  Ms Della Torre also reviewed past documents.

4. Ms Della Torre noted that the respondent was pleasant and cooperative for most of the interview although, on a couple of occasions, he raised his voice and was angry when asked about his sexual offending and not having addressed this in treatment.  He was not open to discussing his sexual offending.  He expressed some delusional thinking.

5. Ms Della Torre used the Static‑99R and the Stable‑2007 risk assessment tools.  Like the Static‑99R, the Stable‑2007 is based on a statistical analysis.  It consists of 13 items and produces estimates of risk based upon the number of stable dynamic risk factors present in any one individual.  The offender's risk may be higher or lower than the probability estimated in the Stable‑2007 depending on other risk factors not measured by it.  The Stable‑2007 has not been normalised on Australian indigenous males.  As with Dr Tanney, Ms Della Torre noted that other studies had found that race was not a significant predictor of sexual offence recidivism.

6. Ms Della Torre concluded that the respondent's score on the Static‑99R placed him in the medium‑high risk category of sexual re‑offending.  The respondent's score on the Stable‑2007 placed him in the high risk category of re‑offending with a sexual motive, not just serious sexual offending.  Ms Della Torre combined the results from the two tools to provide a composite score.  Overall, the respondent's composite score placed him in the high risk category of sexual reoffending.  Men in the normative sample with the same risk profile as the respondent reoffended sexually at a rate of 23% over five years.  In reaching this opinion, Ms Della Torre did not take into account the Canadian data considered by Dr Tanney.

7. Ms Della Torre identified the following areas of concern:

   (1)The respondent's main positive supportive relationships are with Outcare, CMFHS, his SCCO and any treating psychologist.  The respondent has identified a sister who is a positive influence and has phone contact with her occasionally.  However, his continued involvement in these positive relationships, absent a further supervision order, is uncertain.  He tends to socialise with extended family members who have problematic drug and alcohol issues.

   (2)The respondent has a generally negative view of women and speaks in derogatory terms when referring to his female family members and the victims of his offences.  He is particularly condemning of women who he considers to be promiscuous and who abuse alcohol or drugs, which are characteristics that he ascribes to his previous victims.

   (3)The respondent has engaged in intimate partner violence and there is no evidence of remorse for his victim.  He generally shows lack of concern for others.  However, he expressed an intention to look out for his ex‑partner's welfare.  Ms Della Torre is of the opinion that whilst this demonstrated some capacity to care for her, it was of concern that he may involve himself in violence to prevent her from getting into fights.

   (4)The respondent has limited capacity for cognitive processes that require mental flexibility, problem solving and consequential thinking.  He is somewhat simplistic in his thinking and inconsistent in his planning.  This will continue to present as a risk factor for further offending.

   (5)The respondent experiences persecutory delusions, is suspicious generally of others and has personality features that lend him to be generally hostile towards others and, particularly, authority figures.  When experiencing negative emotions the respondent has used alcohol as a maladaptive coping strategy.  Ms Della Torre is of the opinion that if the respondent returns to regular alcohol use his risk of reoffending will increase.

8. Ms Della Torre said that the most likely scenario where the respondent has potential to reoffend sexually is if he is intoxicated, socialising at a home with family or friends and he identifies an adult female who he deems to be promiscuous and vulnerable (intoxicated).  He may feel anger or rage towards the potential victim or others.  The violence is likely to involve violence beyond that required to subdue the victim and he may use a weapon as he has in the past.  The respondent's advancing age and reducing physical strength increase the likelihood of him using a weapon.  There may also be an escalation in his offending by the choice of a younger victim who would appear to be more vulnerable.  In cross‑examination, Ms Della Torre acknowledged that this scenario was somewhat speculative.

9. Ms Della Torre said that if no further supervision was imposed, she was concerned that the respondent would return to his prior behaviour of consuming large amounts of alcohol and associating with others who were also intoxicated.

10. Ms Della Torre is of the opinion that the imminence of the respondent's reoffending largely depends on his level of alcohol use and the frequency with which he spends time in the company of family and friends, thus providing him with an opportunity to reoffend.

11. Ms Della Torre noted that under the conditions of the original supervision order the respondent had not had the opportunity to demonstrate that he can abstain from alcohol use without the constraints of the order.

12. She recommended that a further supervision order should allow the respondent to demonstrate that he can manage himself in the community without the tight constraints that were imposed on the original supervision order.  She recommended that the respondent be required to report to a SCCO and/or to SOMS monthly to provide information about his movements and social interactions.  She further noted that stable accommodation is a protective factor and a further supervision order would enable it to be seen whether the respondent can maintain his current accommodation beyond the current 12 month lease.  Therefore, she recommended a further supervision order which was longer than one year, but not 'too long'.  A long order may make the respondent feel resentful and unfairly treated.  She considered that two years is a reasonable time to allow the respondent some freedom to demonstrate that he can manage himself in the community, without resorting to risk taking behaviours.

13. Ms Della Torre is of the opinion that the respondent's voluntary engagement with CFMHS over the course of a further supervision order would demonstrate a commitment by him to manage his mental health without being forced to do so.  The conditions of a further supervision order should enable the DCS to compel him to engage with CFMHS if he was not prepared to do so voluntarily.

14. Ms Della Torre said that the respondent's engagement with Outcare has been mostly positive and that he appears to have used its services when he has required assistance.  A further supervision order could prove whether the respondent would continue to seek support from Outcare, if he was not directed to do so by his SCCO.  Ms Della Torre noted that this was another area where the respondent should be given an opportunity to demonstrate that he can voluntarily make positive choices for himself.

15. Ms Della Torre noted that it is imperative that the respondent remain abstinent from drug and alcohol use in order to reduce his risk of reoffending.  She recommended that random drug and alcohol testing be required under a further supervision order.  She also noted that the respondent may benefit from support through an aboriginal drug and alcohol agency, although this could be offered to the respondent, rather than mandated.

16. Ms Della Torre recommended that the respondent be subject to random searches of his property to ascertain that he is not storing weapons and that he has no drug or alcohol paraphernalia at his property.

Information indicating whether the respondent has a propensity to commit serious sexual offences in the future

1. Information relating to this issue has been dealt with in previous decisions of the court and in these reasons.

2. Clearly, given the respondent's past serious sexual offending, the respondent has a propensity, in the sense of an inclination or tendency, to commit serious sexual offences when under the influence of alcohol and as an extension of his propensity to violence and impulsivity.  There was 17 years between his two incidents of serious sexual offending and so I conclude that this propensity is unpredictable and may not manifest itself in frequent serious sexual offending.  I agree with Dr Hall's opinion given in 2012 that based on the respondent's past behaviour he has a propensity for extreme violence to accompany any serious sexual offending. 

3. I also acknowledge that the respondent is aging and, hopefully, maturing.  These factors are generally considered to reduce the propensity for recidivism in sexual offenders.  I also accept that the respondent has not been diagnosed with psychopathy or deviance, the two factors most indicative of recidivism.

4. The respondent has been in the community for the past four years without any sexual offending or any indication that sexual reoffending was imminent.  Whilst he has on at least one occasion consumed alcohol, it does not seem to have been significant consumption leading to an increased risk of serious sexual offending.  Further, he has demonstrated a reduction in impulsivity.  These are good signs but given the time between his previous serious sexual offences, time without serious sexual offending does not compel a conclusion that the respondent does not continue to have a propensity to commit serious sexual offences.  Importantly, abstention from alcohol was mandated by the original supervision order and the respondent has not evidenced a determination to remain abstinent after the expiry of any supervision order.  I remain satisfied that he has a propensity to commit serious sexual offences.

Whether or not there is any pattern of offending behaviour

1. The respondent's pattern of serious sexual offending behaviour is against known adult females who are in vulnerable circumstances, and it is likely to be associated with intoxication and significant violence.

Efforts by the respondent to address the causes of his serious sexual offending

1. The respondent has made limited efforts to address the causes of his offending in the sense that he has not engaged meaningfully in programmes designed to assist him to rehabilitate.  Further, he often denies his past serious sexual offending which reduces the chances of him addressing its causes.

2. The respondent has made an effort in an informal and indirect way to address the causes of his offending in the sense that he complied with the conditions of his original supervision order which required him not to consume alcohol and which restricted his ability to be in the presence of females who were intoxicated.  The respondent, constrained by the conditions of his supervision order, has in these respects made a significant contribution to addressing the causes of his serious sexual offending.

Whether or not the respondent's participation in any rehabilitation programme has had a positive effect on him

1. If the original supervision order is considered to be a rehabilitation programme, I conclude that his participation in it has been beneficial to him.  More generally, the respondent has learnt in previous programmes some concrete ways to avoid violent and sexual offending.  To this extent they have had a positive effect on him, but all of the experts are of the view that he has limited insight into the causes of his offending and has made few treatment gains.

The respondent's antecedents and criminal record

1. The respondent's antecedents and criminal record are detailed in this and the previous decisions of judges of this court.  His criminal record since he was placed on the original supervision order is detailed above.  It is not to the respondent's credit that he has been convicted of numerous contraventions of the original supervision order.  On the other hand, there is a marked improvement in his antecedents and the rate and nature of his offending since being placed on the original supervision order.  His criminal record prior to being placed on the order consisted of 14 pages of a criminal history containing multiple offences of violence and sexual violence.  Since being placed on the order, he has only appeared in court for relatively minor contraventions of the original supervision order, and he did not breach the order during its last two and a half years.

The risk that, if the respondent is not subject to a further supervision order, he will commit a serious sexual offence

1. The risk assessment tools indicate that the respondent remains at a significant or high risk of sexual reoffending in the future if he is not on a supervision order.

2. Dr Tanney's view is that, taking into account the four years that the respondent has spent in the community without reoffending, his risk can be described as stable and minimal.

3. I am of the view that Dr Tanney has placed too much weight on the four years which the respondent has spent in the community without offending.  This is because during those four years the respondent's behaviour, in particular, his alcohol use was strictly controlled by the conditions of the original supervision order and the respondent was highly motivated not to reoffend in order to prove that he could comply with its conditions.  Thus, I consider that the respondent's risk of serious sexual offending, absent a supervision order, is higher than low or minimal.

4. I further consider that the respondent's anti‑psychotic medication is contributing currently to reducing his risk by reducing his oppositional stance and stabilising his mental state, which in turn enables him to live a more stable life.  I am doubtful that the respondent would be compliant with his medication regime absent a further supervision order.  Lack of compliance with his medication would increase his risk of serious sexual offending.

5. On the other hand, I consider that the results from the statistical risk assessment tools, overestimate the respondent's risk of serious sexual offending.  This is because they do not take into account in a meaningful way the respondent's proven ability to remain in the community alcohol and sexual offence‑free for the last four years.

6. I also consider that there is some contribution to a reduction in the respondent's risk from his aging and the physiological effects of it on him.  This would continue if the respondent was not subject to a further supervision order. 

The need to protect members of the community from the respondent's risk of serious sexual offending

1. The respondent's serious sexual offences were very serious and were accompanied with significant violence.  Whilst that offending occurred many years ago and there was a 17 year gap between the relevant incidents, it would be appalling if it was to recur.  Thus, there remains a need to protect the community from the respondent's risk of serious sexual offending.

Any other relevant matter

1. As was stated in Williams, one of the issues for the court to consider is the consequences of making a finding that the respondent is a serious danger to the community.

2. Thus, it is relevant to note that the Act prohibits me from ordering that the respondent be detained under the Act.  The consequence of a finding that the respondent is a serious danger to the community is that he would be required to be on a further supervision order.  It is proposed that the constraints on him under a further supervision order would be fewer and less onerous than on the order that he has been on for the last four years.

3. Nevertheless, a further supervision order would be a substantial constraint on the respondent given that he was detained on a CDO for two years before his release on the original supervision order, and then he was under considerable restraint and control for four years on the original supervision order.  Over that period he did not breach, in a serious manner, its controls.

Conclusion as to whether there is an unacceptable risk that if the respondent were not subject to a further supervision order he will commit a serious sexual offence

1. Based on my independent assessment of all the evidence, I conclude that Hall J and McKechnie J were correct in 2010 and 2013, respectively, for the reasons they gave to find that there was an unacceptable risk of the respondent committing a serious sexual offence if he was not subject to a CDO, and then a supervision order.

2. The respondent says that since he was placed on the original supervision order two things have occurred or changed.  First, the respondent has aged and matured.  Secondly, he has proven that he is capable of remaining alcohol and offence‑free, substantially, in the community for a period of four years.  The respondent has told others that he did this because he chose to comply with the conditions of the original supervision order and not to offend.  He submits that the applicant has not proven that he cannot be relied on to make the same choice in the future.

3. I am satisfied that the main reasons why the respondent's risk of serious sexual offending was reduced whilst he was on the original supervision order were as follows:

   (1)the constraints of and the support of the supervision order;

   (2)the respondent's anti‑psychotic medication and the support of the CFMHS;

   (3)the support he has received from Outcare, especially in relation to accommodation; and

   (4)the respondent's determination to prove to the authorities that he was capable of complying with the conditions of the original supervision order.

4. Absent a supervision order, I am satisfied to a high degree of probability that there is an unacceptable risk that the respondent would commit a serious sexual offence.  This is because without the constraints and support of a supervision order I am satisfied that it is likely that he would return to excessive alcohol use, he would not be compliant with his anti‑psychotic medication, there would be an increase in his impulsive behaviour, his accommodation would likely become unstable and he would lack any pro‑social supports in the community.  Alcohol abuse and impulsivity are the respondent's pathways to violent offending and serious sexual offending.

5. The unacceptable risk that the respondent poses makes him a serious danger to the community.

Terms of a further supervision order

1. Having found that the respondent is a serious danger to the community the Act s 17(1)(b) requires me to order that, with effect from a stated date not earlier than 21 days from today, and continuing for a stated period, the respondent, be subject to a further supervision order containing stated conditions that I consider appropriate.

2. As I have already stated, it is not in the public interest that there be even a 21 day period between the date of this order and the date on which the respondent's further supervision will come into effect.  However, the legislature has mandated that period and I cannot abrogate it.  Thus, the further supervision order will come into effect 21 days from today.

3. The recommendation from the witnesses is that a further supervision order be for a period of two years from the end of the original supervision order, which was 6 January 2017.  In particular, the consensus appeared to be that a 12 month order would not be long enough, whereas an order that is substantially longer might have negative effects on the respondent's behaviour.  The applicant accepted that it would be appropriate to reduce the two years to take into account the time which has elapsed since 6 January 2017.

4. I accept some of the respondent's counsel's criticisms of the proposed conditions of the supervision order.  I do not have the power to delete the standard conditions, including a requirement for electronic monitoring.  The purpose of the conditions of the further supervision order should be to ensure that the respondent maintains a sober and psychiatrically stable life, in stable accommodation.

5. In order to achieve this the respondent should be supervised by DCS.  DCS policy is that supervision for dangerous sexual offenders is set at a minimum of once per fortnight.  I have considered whether this should be reduced in frequency but have determined that regular contact with a CCO is an important component of a further supervision order, as is the ability of DCS to randomly visit the respondent in his home.  The conditions of the further supervision will allow DCS to determine the frequency of supervision meetings.  This should be determined by the respondent's circumstances and not a standard policy.  However, the management of the respondent's risk does not require him to also report to SOMS.

6. I consider that maintaining sobriety is an essential component of the respondent's serious sexual offending risk management.  Thus, despite Dr Tanney's opinion, I would not alter Ms Rathman's proposed conditions regarding alcohol use and random testing.

7. I understand that cannabis use is not seen as a risk factor but given the respondent's anti‑psychotic medication and the importance of it in managing his risk, a random drug testing regime should also be part of the further supervision order.

8. DCS should have the power to obtain from and share with other agencies, the police and health professionals information about the respondent, so as to manage the respondent's risk.

9. Whilst it will be important over the life of the further supervision order for DCS to support the respondent to manage his own life and health, it is equally as important to ensure that DCS has the power to compel the respondent to attend upon any health professional and to comply with a medication regime prescribed for him, if he should not do so voluntarily.

10. Dr Tanney gave evidence that the respondent's risk of serious sexual offending is not increased by associations with other sex offenders.  Neither is there any evidence that the respondent has sought out any such associations for improper reasons.  Thus, there is no need for the respondent to be prohibited from associating with other sex offenders.

11. I have made some other relatively minor changes to the proposed further supervision order to tailor it to the respondent's particular circumstances.

12. Thus, the further supervision order for a period of 22 months will contain the conditions in attachment 2.

ATTACHMENT 1

1.Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of the person's current name and address;

2.Report to and receive visits from, a CCO as directed by the court;

3.Notify a CCO of every change of the person's name, place of residence, or place of employment at least 2 business days before the change happens;

4.Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B);

5.Not leave, or stay out of the State of Western Australia without the permission of a CCO;

6.Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order;

7.Be subject to electronic monitoring under section 19A.

ADDITIONAL CONDITIONS

The following conditions incorporate the above standard conditions and are suggested to strengthen and add to the standard conditions required by the Act for the more effective management of the offender in the community.

Residence

8.Take up residence at [insert address] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO;

Reporting to a CCO and supervision by a CCO

9.Report to, and receive visits from, a CCO at times and at places as directed by the CCO such arrangements having regard to any employment commitments of you;

10.Not commence or change employment without the prior approval of the CCO;

Reporting to WA Police

11.Continue to report to and receive visits from Police of the Sex Offender Management Squad at times and at locations as directed by the Officer‑in‑Charge of the Sex Offender Management Squad or his/her delegate;

12.If requested, permit Police Officers to enter and search your residence for the purpose of monitoring your compliance with your obligations under this order;

Disclosure/exchange of information

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

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

Restrictions on contact with victims

15.Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Corrective Services;

16.Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;

Criminal conduct

17.Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A;

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

19.Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA);

20.Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;

Medications/mental health

21.Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO;

22.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Corrective Services;

23.Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;

Prevention of high‑risk situations

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

25.Not possess, consume or use alcohol, unless authorised in advance by the CCO;

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

27.Not to remain in the presence of females who you know to be affected by alcohol, or reasonably ought to know to be affected by alcohol, unless the identity of such person is approved in advance by the SCCO;

28.Report immediately to your CCO the formation of any friendship or domestic, romantic, sexual or otherwise intimate relationship by you;

29.Make full disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

ATTACHMENT 2

1.Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of the person's current name and address;

2.Report to and receive visits from, a CCO as directed by the court;

3.Notify CCO of every change of the person's name, place of residence, or place of employment at least 2 business days before the change happens;

4.Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B);

5.Not leave, or stay out of the State of Western Australia without the permission of a CCO;

6.Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order;

7.Be subject to electronic monitoring under section 19A.

Residence

8.Take up residence at [insert address] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO;

Reporting to a CCO and supervision by a CCO

9.Report to, and receive visits from, a CCO at times and at places as directed by the CCO such arrangements having regard to any employment commitments of you;

10.Not commence or change employment, voluntary or paid, without the prior approval of the CCO;

Powers of WA Police

11.If requested, permit Police Officers to enter and search your residence for the purpose of monitoring your compliance with your obligations under this order;

Disclosure/exchange of information

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

13.Allow a CCO or a member of the WA Police approved by a CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;

Restrictions on contact with victims

14.Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Corrective Services;

15.Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;

Criminal conduct

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

17.Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;

Medications/mental health

18.Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by a CCO;

19.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Corrective Services;

20.Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;

Prevention of high‑risk situations

21.Not possess, consume or use alcohol, unless authorised in advance by a CCO;

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

23.Not to remain in the presence of females who you know to be affected by alcohol, or reasonably ought to know to be affected by alcohol, unless the identity of such person is approved in advance by a CCO;

24.Report within 4 days (96 hours) to a CCO the formation of any domestic, romantic or sexual relationship formed by you; and

25.Make full disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic or sexual relationship, which disclosure can be confirmed by a CCO or a Police Officer.