The State of Western Australia v Newland - [2022] WASC 21

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NEWLAND [2022] WASC 21
CORAM:   FIANNACA J
HEARD:   5 DECEMBER 2019
DELIVERED          :   5 DECEMBER 2019
PUBLISHED           :   28 JANUARY 2022
FILE NO/S:   SO 3 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

ROBERT BRUCE NEWLAND
Accused

Catchwords:

Dangerous sexual offender - First review of continuing detention order - Whether respondent a serious danger to the community - Whether continuing detention order should be affirmed

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Continuing detention order affirmed

Category: B

Representation:

Counsel:

Applicant	:	Ms H Watson
Accused	:	Ms K Farley SC

Solicitors:

Applicant	:	Director of Public Prosecution (WA)
Accused	:	Legal Aid WA

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

Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Decke [No 4] 2020 WASC 263
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Newland [2018] WASC 344
The State of Western Australia v Yates [2020] WASC 149

FIANNACA J

The application and outcome[1]

[1] Since the hearing for this matter, on 11 January 2021, the State Solicitor's Office took over carriage of the matter from the Director of Public Prosecution (DPP).

The respondent has a history of sexual offending against children. On 9 November 2018, Hall J found him to be a serious danger to the community, pursuant to s 7 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), in that there was an unacceptable risk that, if he was not subject to a continuing detention order (CDO) or a supervision order made under the DSO Act, the applicant would commit a serious sexual offence. His Honour concluded that to ensure the adequate protection of the community at that time, it was necessary to make a continuing detention order in respect of the respondent under s 17(1) of the DSO Act (the CDO), being an order that the respondent be detained in custody for an indefinite term for control, care and treatment.[2]
[2] The State of Western Australia v Newland[2018] WASC 344 (Newland)
The DSO Act provided for periodic reviews by the court of a person's detention under a CDO, in accordance with pt 3 of the DSO Act. Under s 29(2)(a), it was necessary for the first review of the respondent's detention to be conducted, on application by the DPP, as soon as practicable after the end of a period of one year commencing on the first day on which the respondent was in custody solely on the basis of the CDO. Under pt 3 of the DSO Act, the court was required to determine whether the respondent remained a serious danger to the community. If the respondent was no longer a serious danger, the CDO was to be rescinded. If, on the other hand, the court found that the respondent remained a serious danger to the community, it was required either to affirm the CDO or rescind the CDO and make a supervision order, if such an order was found to be appropriate. If the CDO was affirmed, the court was required to set the next date for review of the respondent's detention, which, at the relevant time, was as soon as practicable after the end of the period of two years commencing when the detention was most recently reviewed.[3]
[3] DSO Act s 29(2)(b).
On 5 December 2019, I conducted the first review of the respondent’s detention under the CDO made by Hall J. At the conclusion of the hearing, I was satisfied that the respondent continued to be a serious danger to the community and that it was necessary for him to remain subject to the CDO in order to ensure the adequate protection of the community. Therefore, I affirmed the CDO and set 6 December 2021 as the date for the next review.[4] I gave brief oral reasons on that date and said I would publish written reasons in due course. That approach was intended to ensure that the commencement of the two year period before the next review was not delayed. The approach was also taken in circumstances in which the respondent, quite properly, acknowledged that the only conclusions reasonably open on the evidence at the hearing were that he remained a serious danger to the community and that it was necessary at that stage to affirm the CDO. In those circumstances, the reasons for both conclusions were apparent and essentially mirrored Hall J's concluding reasons in Newland, as was indicated in my brief oral reasons. Further, at the time of giving the brief oral reasons, I also stipulated a number of recommendations, based on the expert evidence and the submissions of the respondent's counsel, which were intended to guide those responsible for the control, care and treatment of the respondent in relation to his management and treatment in the period before the next review, to assist him to progress towards release under supervision.[5] Those recommendations are set out at the conclusion of these reasons.
[4] 5 December 2021 was a Sunday, so I set 6 December 2021 (the next business day) as the date of the next review of the respondent's continuing detention.
[5] ts 201.
Notwithstanding the above explanation, I regret the delay in publishing these reasons.
I note that, since I gave my decision in this matter, the DSO Act was repealed on 26 August 2020 and was, in effect, replaced by the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act).[6] That development does not affect the content of these reasons, which relate to my decision under the DSO Act, other than the fact that the DSO Act is referred to in the past tense. However, the next review of the respondent's detention under the CDO will be conducted pursuant to the HRSO Act.[7]
[6] HRSO Act, s 123.
[7] Although I set 6 December 2021 as the date for the next review, the review hearing has been listed for 7 February 2022 due to the availability of the parties.
These are my detailed reasons for affirming the CDO on 5 December 2019. They should be read in conjunction with the decision of Hall J in Newland.

The respondent’s background

The respondent's antecedents, including his offending, were set out in detail by Hall J in Newland.[8] I adopt his Honour's outline of those matters, which have not changed. For convenience, I will summarise some key aspects of that background.

Social development

[8] Newland [28] ‑ [54].

In short, the respondent, who was born in 1961, experienced family dysfunction as a child due to his father's excessive alcohol use, physical abuse of the respondent's mother and verbal abuse of the children. The respondent's parents separated when he was 16.
The respondent struggled academically, socially and physically at school and reported significant amounts of bullying. He was diagnosed with cerebral palsy at the age of eight and subsequently attended a special school until he completed Year 10. After leaving school, he worked in sheltered employment, experiencing many conflicts at his workplaces, which he has said were the result of ill treatment and his consequential resentment and aggression.[9] Hall J noted that in more recent years the respondent had been receiving a disability support pension.
[9] Newland [35].
The respondent displayed over-sexualised behaviour from a young age. His subsequent sexual offending occurred against a background of fantasising, which was summarised by Hall J as follows:[10]
He reports masturbating frequently as a teenager and young adult with sexual fantasies about children emerging at the age of 14 years. Sex and masturbation became a habit that provided him with release from anxiety and tension. Over time his fantasies became more elaborate and violent, with age giving him an opportunity to feel powerful and in control of others.

Sexual offending

[10] Newland [36].

The respondent committed numerous serious sexual offences against male and female children aged between 3 and 10 years old between 1978 and 1998. The earliest offending, around 1978 to 1979, was against a 4‑year‑old girl and three 5‑year‑old boys. The respondent was cautioned for that offending, and not convicted. The offending against the 4‑year‑old girl included indecently dealing with her, trying to have her perform fellatio on him and rubbing his penis between her legs. When the girl began to scream to alert her brother, the respondent covered her mouth and tried to choke her, although he desisted from that shortly thereafter.[11]
[11] Newland [39].
Several of the offences involved the respondent enticing or following boys, whose ages ranged from 5 to 10 years old, into toilets at public venues, including swimming pools and a fast food restaurant. He was convicted of offences relating to four such occasions, which occurred in 1984, 1988 and 1997. On at least two of those occasions, the facts revealed that the respondent took the child into a cubicle and locked the door. The offending included, variously, 'playing' with the victim's penis, performing fellatio on the victim and having the victim touch his penis. On the occasion that he performed fellatio on the boy, the respondent was also masturbating himself.
The most serious offending occurred in June 1984 and March 1988. On each occasion the offending involved enticing children into his vehicle and then taking them away to distant locations where he sexually abused them.
The offences in June 1984 were committed against two children, a 3½‑year‑old boy and a 4‑year‑old girl, who had attended a park with their families for a sporting event. He enticed the children into his car by offering to buy them an ice cream. He then drove them to a location approximately 40 kilometres east of Perth where he indecently dealt with the children in the vehicle by touching their genitals. When they became distressed, he began to drive back to Perth, but was involved in an accident and abandoned the vehicle. He eventually made his way with the children to his home address, by obtaining a lift with a young couple to a train station and then travelling by train and taxi. There he further indecently dealt with the children by penetrating their mouths with his penis, touching the boy's penis and licking the girl's vagina. The respondent was discovered after the young couple heard a police report regarding the missing children and contacted the police. The respondent was identified by documents in his crashed vehicle. When police attended his house, the children were found naked in the respondent's bedroom.
The offending in March 1988 involved the abduction of a 5‑year‑old boy who was waiting to be picked up by his mother after school. The boy agreed to go with the respondent when he offered him a lift home. Instead, the respondent took the boy to Rockingham for a swim and then to a motel in Mandurah where the respondent indecently dealt with the boy by fondling and sucking his penis and having the boy lick the respondent's penis. After leaving the motel around 11.00 pm and commencing to drive towards Perth, the respondent had the child undress himself and then left him naked at the side of a road in Wattleup. The boy went to a nearby house and was eventually returned to his parents by the police. The respondent subsequently told police that he was concerned about fingerprints on the boy's clothes and had disposed of the boy's property.
After the caution for the offending in 1978 to 1979, and a good behaviour bond imposed in September 1984 for the first offence committed against a boy in a toilet (in August 1984), the respondent was sentenced to terms of imprisonment in respect of his subsequent convictions for sexual offences. His first sentence of imprisonment was imposed in the District Court on 24 January 1985, in respect of the offences committed against the two children in June 1984. He was sentenced to a total effective sentence of 4 years' imprisonment with a minimum term of 12 months in respect of four counts of indecently dealing with those children.[12] As Hall J explained in Newland, the structure of the sentence was intended to allow the respondent to receive psychological treatment in the community after a relatively low period of detention, as the judge accepted, based on reports, that the respondent was 'mentally disadvantaged' and had 'a psychological problem' which 'might well respond to treatment'.[13] The respondent served his minimum term and was released on parole on 13 January 1986. Prior to the expiry of that parole (the expiry date being 23 January 1989), he committed further sexual offences in January 1988 and February 1988, being the offences referred to above, in which he followed boys into toilets at swimming pools, and in March 1988, being the offence in which he abducted the 5‑year‑old boy.
[12] The respondent was acquitted, after trial, of two counts of child stealing in relation to this incident.
[13] Newland [44].
The respondent was next dealt with for the offences committed in February 1988 and March 1988. He was sentenced on 29 August 1988 to fixed terms of 3 years' imprisonment to be served concurrently for each of the four offences with which he was charged arising from those two incidents, being three sexual offences and the offence of child stealing. There was also an order made that, after the expiration of the sentence of imprisonment, the respondent was to be detained at the Governor's pleasure pursuant to s 662(a) of the Criminal Code (WA) (Criminal Code).[14]
[14] This section of the Criminal Code has since been repealed.
While serving the sentences imposed on 29 August 1988, in October 1988, the respondent was convicted of and sentenced for the offence committed by him in January 1988, being one of the incidents in which he indecently dealt with a boy in a toilet cubicle at a public swimming pool. He was sentenced to 6 months' imprisonment to be served concurrently with the sentence he was then serving.
On 15 December 1995, while being detained at the Governor's pleasure, the respondent was released on parole, as was permitted by s 662(a) of the Criminal Code. After being returned to custody on 9 September 1996 as a result of breaching his parole by being in the presence of two unaccompanied children, the respondent was again released on parole on 16 December 1996. He then committed the offence on 7 October 1997 in which he indecently dealt with a boy in the toilets of a fast-food restaurant. He was arrested for that offence on 11 November 1997. On 17 February 1998, he was sentenced to a total effective sentence of 2 years and 6 months' imprisonment for indecently dealing with a child under the age of 13 years and unlawfully detaining the child. He was not made eligible for parole. After completing that sentence, he continued to be detained at the Governor's pleasure pursuant to the order made on 29 August 1988.
As Hall J explained in Newland in 2017 and 2018, the respondent appealed against two of the convictions arising from the 1988 incidents, being the convictions for aggravated sexual penetration without consent contrary to s 324E of the Criminal Code, on the basis that the acts of fellatio upon the children, to which the charges related, did not fall within the meaning of sexual penetration as it then stood.[15] That appeal was conceded by the State. The convictions were set aside. For reasons explained by Hall J, although there was no dispute that the respondent had committed the sexual acts upon the children, the Court of Appeal was not able to substitute the convictions that were set aside with convictions for indecent dealings.[16]
[15] Newland [48] – [49].
[16] Newland [49].
The respondent also successfully appealed against the order of indefinite detention under s 662(a) of the Criminal Code. The Court of Appeal resentenced the respondent for the remaining counts to terms of imprisonment effective from 29 August 1988. The effect of that process was that the respondent had completed his sentence.

Hearing under Division 2 of the DSO Act – November 2018

Anticipating that the respondent would be eligible for release at the conclusion of the appeal, the State made an application under the DSO Act for orders under Division 2 of that Act, on the basis that the respondent was a serious danger to the community, and applied for an interim detention order, pursuant to s 14(2). That order was made at a preliminary hearing of the application, and the respondent remained in custody subject to that order until the application was finally determined.
The substantive hearing of the application under Division 2 of the DSO Act was heard by Hall J on 1 November 2018. His Honour received a large body of evidence, which his Honour described in Newland at [6] ‑ [8]. It is sufficient to note for present purposes that the evidence included reports and oral evidence from the court-appointed psychiatrists who examined the respondent for the purposes of the hearing, namely Dr Peter Wynn Owen and Dr Gosia Wojnarowska. It also included a report from Dr Elizabeth Vuletich, a clinical neuropsychologist, who had been engaged pursuant to an order of the court to provide an opinion as to any cognitive deficits of the respondent. Hall J noted that Dr Vuletich's report raised the possibility that the respondent had autism spectrum disorder (ASD), which prompted further reports to be obtained, addressing that issue, from a psychiatrist who has experience in the diagnosis of ASD, Dr Adam Brett, and another clinical neuropsychologist, Dr Mandy Vidovich.[17] The evidence before Hall J also included a report from Ms Julie Hasson, a forensic psychologist who interviewed the respondent, reviewed the evidence in respect of his past treatment, and made recommendations in respect of his future treatment, and a report from Ms Lisa Rathmann, a senior community corrections officer (SCCO). Both Ms Hasson and Ms Rathmann also gave oral evidence.

The respondent's treatment history

[17] Newland [72].

Hall J considered in detail the respondent's previous efforts to address his offending behaviour.[18] As his Honour noted, the respondent has had extensive assessment and treatment of his offending behaviour since he first commenced to offend. He has been assessed by psychologists and psychiatrists on numerous occasions. As at the time of the hearing before Hall J, the applicant's treatment had included, since 1985, a brief attempt at aversion deconditioning treatment, individual counselling (both in the community and in prison), participation on several occasions while in custody in an intensive sex offender treatment program (ISOTP), participation in a sex offender maintenance program within the community, anti-libidinal medication, and participation in a cognitive skills legal and social awareness program (devised for offenders with cognitive impairment) and a further cognitive skills program.
[18] Newland [56] ‑ [71].
The respondent did not complete his first attempt at an ISOTP in 1988 because he was unable to cope, due to his tendency and preference for social isolation and deficits in his interpersonal and communication skills.[19] However, it was reported that during his participation in three further ISOTPs in 1994 and 1995 the respondent had made sound progress towards addressing his offending behaviour and had shown determination to understand his risk cycle and how to prevent himself from escalating to offending. He was also perceived to have made gains in victim empathy and accepting responsibility.[20] However, notwithstanding these perceived gains, when he was subsequently released on parole, he committed the offence on 7 October 1997.
[19] Newland [60].
[20] Newland [61].

Hall J noted that in the following 20 years after his incarceration following the offending in 1997, the respondent participated in a number of further programs whilst in prison, including the two cognitive skills programs in 2001 and 2002.[21]
[21] Newland [64].
Also in 2001, the respondent participated in five sessions of individual counselling to ascertain his level of treatment retention. Hall J summarised the counselling psychologist's findings as follows:[22]
The counselling psychologist who undertook these sessions noted in her report that the respondent seemed honest and highly motivated to address his offending behaviour. He demonstrated some small positive gains in taking responsibility for his offending and had an awareness of situations that placed him at high risk. He was able to articulate a relapse prevention plan and to identify the precursors to his offending, including deviant fantasies and general emotional adjustment issues. He had maintained these insights well after completion of treatment. A number of areas of outstanding treatment needs were identified. These included addressing childhood abuse, his dependency on others, his fear of rejection, empathy training, emotional management, self‑esteem, assertiveness, issues of unresolved grief and loss and addressing his ongoing use of deviant sexual fantasies. Despite identifying these risk factors and treatment needs, the psychologist stated that there was 'little else sex offender treatment programs could offer [the respondent]'.
[22] Newland [65].
Hall J noted that the respondent had been reviewed by the parole board on several occasions, and that, following detailed assessments by a forensic psychologist, the board had recommended that the respondent have individual counselling. However, the psychologist providing the assessment in 2003 had noted that the respondent had not undergone further individual counselling, despite the parole board's recommendations.[23]
[23] Newland [66].
The respondent was assessed again in 2004 by a psychologist who provided a report on the available treatment options. It is apt to reproduce Hall J's summary of the psychologist's findings at that time, as they shed light on the extent of the respondent's sexual offending as well as the issues that have been identified for some considerable time as needing to be addressed if the respondent is to progress in his rehabilitation:[24]
The respondent was quoted as having stated that he had inappropriately touched over 100 children and likely over 200. The psychologist observed that the respondent had become sexually aroused while discussing his offending. The psychologist was of the view that the respondent has 'limited capacity to cope with known situations that are of high risk for him to reoffend'. He further noted that the options to minimise these risks are human and financially resource intensive. He recommended a combination of small group and individual counselling over a 12 to 18 month period with a focus on several areas including maintenance of previously achieved goals, enhancing empathy and intimacy, and specific treatment for dealing with neglect, misunderstandings and aspects of self-esteem. There was a need to specifically address aspects of arousal to children, including his power and control over children, violence towards children, understanding child development and vulnerability. There was also a need to target adult sexual functioning including coping with sexual desires and fantasies and how his religious beliefs assist or are detrimental to his ability to cope and change his sexual arousal and functioning.
[24] Newland [67].
Hall J noted that the psychologist's recommendations were not progressed 'due to the respondent's inability to participate in a pre-release program at a minimum security facility, because of his fears for his safety and the level of intensity and resourcing required to deliver the treatment.'[25] As his Honour also noted, the view at that stage was that treatment was of questionable value and there was no guarantee that it would reduce the respondent's risk of offending. However, that view changed, and the respondent eventually completed a further ISOTP in 2007. Again, it is apt to reproduce Hall J's summary of the report from that program, as it indicates both the insights the respondent had gained, but also the limitations of the treatment he had received:[26]
A treatment completion report noted that the respondent had a concrete thinking style particularly associated with his religious beliefs which restricted his capacity to challenge his own distorted thinking including deviant sexual fantasies. Whilst he was motivated to engage in treatment, his communication style and behaviour restricted his capacity for treatment gains in connection with other group members. He did appear to have maintained treatment gains from previous programs, including understanding his offence cycle and the role of his emotions in the risk of offending. However, it was observed that previous treatment outcomes had documented similar insights but the perceived gains had failed to translate into an offence-free lifestyle. A number of maladaptive coping strategies, including avoidance and behaving in a self-defeating and passive aggressive manner, sexual preoccupation, deviant sexual fantasy and masturbation, and the disclosure of homicidal thoughts about children to avoid detection were risk factors that had not been adequately addressed in the program and remained areas of outstanding treatment need.
[25] Newland [68].
[26] Newland [69].
The theme of homicidal thoughts has relevance to the assessment of the respondent's risk, as I will discuss later.
Finally, the respondent had participated in a further ISOTP in late 2012 to 2013. Hall J noted that, although numerous reports had indicated that the respondent was considered to have reached saturation point with regards to treatment, he was considered to have made some treatment gains during that program, including demonstrating an improved ability to lower his emotional response and using calming techniques, and the need to practice those skills regularly. The respondent was also noted to have shown improvement in coping skills, perspective taking and challenging unhelpful thinking. Sex offender maintenance counselling was recommended.[27]

Expert evidence

[27] Newland [70].

The expert evidence in the Division 2 proceedings provides relevant background and context for the expert evidence in the proceedings before me. Hall J set out the expert evidence on which he relied in detail.[28] I will refer to several aspects of that evidence that I consider to be of particular significance for present purposes. It is convenient to deal first with the evidence concerning the respondent's cognitive abilities.
[28] Newland [73] ‑ [123].
In short, the results of formal testing conducted by the neuropsychologists were not considered to be commensurate with a diagnosis of intellectual disability. Dr Vuletich considered that her testing supported a conclusion that the respondent has 'a sound, crystallised intelligence (ie, the ability to use acquired knowledge and skills) but clinically significantly weaker and impaired psychomotor processing'.[29] Her neurological assessment results '[called] into question previously reported borderline intellectual deficit'.[30] There was no evidence of marked cognitive impairments. In Dr Vuletich's opinion, the respondent's difficulty in perceiving and representing space as well as motor slowness are in keeping with a diagnosis of cerebral palsy, and are likely long-standing and developmental in nature.[31]
[29] Newland [108].
[30] Newland [109].
[31] Newland [109].
The reports specifically dealing with the possible diagnosis of ASD were sought because Dr Vuletich noted that there is a greater incidence of ASD in persons diagnosed with cerebral palsy, compared with the broader population.[32] However, both Dr Brett and Dr Vidovich were of the opinion that the respondent did not meet the diagnostic criteria for ASD. Dr Brett believed that the respondent's issues were best understood as being the product of mild cerebral palsy, his early environment and his history of trauma.[33] Dr Vidovich found that the respondent has a functional IQ in the borderline range, with intellectual abilities ranging from borderline to average, though his performances were mostly of a low average to average quality. In Dr Vidovich's opinion, there was no consistent level of impairment suggestive of an acquired cognitive disability, but there were indications of a specific learning disorder with impairments in reading and written expression.[34]
[32] Newland [110].
[33] Newland [112].
[34] Newland [116].
Dr Wynn Owen noted that the respondent's general intellectual ability had been assessed as being in the low average range.
Both Dr Wynn Owen and Dr Wojnarowska used actuarial instruments and structured professional judgment tools in combination with a clinical psychiatric assessment and formulation to assess the respondent's risk of reoffending.[35] As the same instruments and tools were used by Dr Wojnarowska for the purposes of the present review, I respectfully adopt Hall J's description of the methodology:[36]
The Static-99R test is an actuarial tool designed to assess the long-term potential for sexual recidivism amongst adult male sex offenders. The Hare Psychopathy Checklist - Revised (PCL-R) assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The PCL-R score has come to be recognised as a useful indicator of likely future recidivism for general, violent and, to a lesser degree, sexual offending. The score obtained from this test can be an important component of other risk assessment tools including structured clinical guides. The Risk for Sexual Violence Protocol (RSVP) is such a guide and requires consideration of a comprehensive range of risk factors for sexual offending with emphasis given to manageability of the risk of future sexual violence.
[35] Newland [79], [102] ‑ [103].
[36] Newland [79].
In brief, having applied that methodology and clinical judgment, Dr Wynn Owen was of the opinion that the respondent presented a high risk of serious sexual offending, and Dr Wojnarowska was of the opinion that the respondent's risk of sexual offending in the future was chronic and in the very high range.[37] Both were of the opinion that the risk could not be adequately managed in the community. In Dr Wynn Owen's opinion, the respondent's risk could not be adequately managed without constant supervision, and that the necessary level of supervision was not then available in the community for a person without a diagnosed disability, which the respondent does not have.[38] In Dr Wojnarowska's opinion, the risk could not be adequately managed in the community without very high intensity supervision and the almost constant availability of a support network, clarifying in oral evidence that the necessary supervision would need to be one-to-one and at all times.[39] However, Dr Wojnarowska considered it to be a factor in the respondent's favour that he had been frank and honest when interviewed, and had demonstrated that he has some planning skills and is motivated to receive further treatment.[40]
[37] Newland [86], [104].
[38] Newland [86].
[39] Newland [104].
[40] Newland [104].
Both Dr Wynn Owen and Dr Wojnarowska were of the opinion that the respondent met the diagnostic criteria in DSM V (Diagnostic and Statistical Manual of Mental Disorders 5^th Ed) for paraphilia, referred to by Dr Wynn Owen as a paedophilic disorder, and by Dr Wojnarowska as 'sexual deviance, being paedophilia, non-exclusive type'.[41] The respondent accepted the diagnosis and, according to Dr Wynn Owen, was very open about his ongoing sexual preferences for boys aged around 5 years.[42] He told Dr Wojnarowska that, although he was also attracted to adult males and females, his primary sexual attraction was to children, irrespective of age or gender.[43]
[41] Newland [78], [99].
[42] Newland [76].
[43] Newland [93].
The respondent had been frank in describing to both Dr Wynn Owen and Dr Wojnarowska the fact that he experienced sexual fantasies about children, and that those fantasies included violent ideation, referred to by Hall J (in outlining Dr Wynn Owen's evidence) as 'chronic violent and sexually violent ideation'.[44] Hall J summarised the expert evidence about the respondent's deviant sexual fantasies as follows:[45]
Both Dr Wojnarowska and Dr Wynn Owen noted that the respondent's deviant sexual fantasies are entrenched and, in addition to feeding his sexual desires, are also used by him to cope with stress and grievances against others. He constructs revenge fantasies that relate to those he has grievances against but that also incorporate sexual abuse of children. This dual purpose means that it is more difficult for the respondent to give up the fantasies and makes it important to develop, through counselling and/or medication, other coping mechanisms.
[44] Newland [82].
[45] Newland [106].
Hall J referred to another aspect of the respondent's violent ideation, noting that the respondent 'has reported to others that he has contemplated sexually assaulting and killing a child victim[,] stating "no victim no crime" a phrase that he repeated in his interview with Dr Wynn Owen'.[46] His Honour noted, from Dr Wynn Owen's evidence, that '[w]hile few studies have been undertaken with individuals with violent ideation, what research there is suggests an increased risk of future sexual violence'.[47]
[46] Newland [82].
[47] Newland [82].
The respondent told Dr Wynn Owen that he had had no sexual thoughts for about a month prior to his interview, and that he had been focussing on his Christian faith, but, prior to that, his stress levels were high, and he had experienced sadistic fantasies, especially when upset by the staff at the prison.[48] The respondent said similar things when interviewed by Dr Wojnarowska. He 'volunteered that in the last three years his fantasies had changed to include killing, not only child victims but also adults who hurt him' and included 'raping children in front of their parents and then killing them'.[49] He told Dr Wojnarowska that he was sexually aroused by such fantasies, but that, in the month prior to the interview, he had tried to pray instead.[50]
[48] Newland [76].
[49] Newland [94].
[50] Newland [94].
Although both Dr Wynn Owen and Dr Wojnarowska were of the opinion that the respondent did not meet the diagnostic criteria for psychopathy, and Dr Wojnarowska was reluctant to make an official diagnosis of sadism, because the respondent had not acted on his sadistic violent fantasies, she considered that 'the respondent's self-confessed interest in rape and torture of people who have upset him in some way, and fantasies about rape and torture of those people's children, adds another dimension to his risk of future reoffending'.[51]
[51] Newland [99].
In arriving at their assessments as to the respondent's risk of sexual reoffending, both Dr Wynn Owen and Dr Wojnarowska found many of the risk factors identified in the RSVP to be present. I will deal with those risk factors and any changes in the respondent's circumstances when I deal with Dr Wojnarowska's assessment in these proceedings of the respondent's risk of reoffending.
I note the following additional points from Hall J's summary of Dr Wynn Owen's evidence:
(1)The respondent was unable to articulate any benefit he had gained from his most recent ISOTP.[52]
(2)Dr Wynn Owen believed that the respondent has a personality disorder but could not place it in any particular category of personality disorders, as it is mixed.[53]
(3)The respondent's plans upon being released appeared to be unrealistic and superficial.[54]
(4)In relation to treatment, whilst the respondent had consistently demonstrated an understanding of his offending and risk, he had not been able to demonstrate any change in his attitudes that might reduce his risk of re-offending. Whilst he had the ability to learn, he had not been able to progress from an entrenched pattern of behaviour and coping mechanisms.[55]
(5)The respondent's possible future risk scenario is likely to reflect his past offending. Accordingly, it is likely to be opportunistic and against a young boy who is a stranger in a public toilet associated with a place where children meet or visit, and is likely to include physical restraint. If the respondent has access to a vehicle, he may attempt to convey the victim to a more private place. If the risk escalates it may involve an increased level of physical violence which may be as extreme as the death of the victim.[56]
(6)The imminence of the respondent re-offending would be highly dependent on the structures around the respondent, but, because of the respondent's sensitivity to perceived slights, and the very real stressors in transition to living in the community, he may want to offend immediately upon seeing a child alone when he is under stress.[57]
(7)In his interview with Dr Wynn Owen, the respondent regarded himself as a risk and did not believe that he could manage that risk in the community without '24‑hour support' and 'having an adult with [him] every time [he were to] leave the house'.[58]
(8)In Dr Wynn Owen's opinion, the respondent's poor functioning in the highly structured prison environment did not augur well for his ability to function in the significantly less structured community setting.[59]
[52] Newland [77].
[53] Newland [78].
[54] Newland [83].
[55] Newland [83].
[56] Newland [84].
[57] Newland [85].
[58] Newland [86].
[59] Newland [86].
I note the following additional points from Hall J's summary of Dr Wojnarowska's evidence:
(1)The respondent told Dr Wojnarowska that there were many more times that he engaged in sexual offending than he had been charged for. He said that he had touched 'more than a hundred, even two hundred children' in his life.[60]
[60] Newland [89].
(2)In relation to the 1984 offences against the two children he took from the park, the respondent said that when the children were crying and frightened it was more exciting. He said he had a thought of killing the children but indicated that he resisted because he knew killing was wrong and against God's wishes, and that he drove around 'to get rid of those thoughts'. He said he did not think of the children's parents or the anguish that he put them through.[61]
(3)The respondent said that, during his second term of imprisonment, he started to realise the wrongfulness of his behaviour. He thought he could manage his fantasies in the community after completing the ISOTP, but on his release he struggled to contain his urges. He said it was easier when he was not stressed, lonely, bored or angry.[62]
(4)The respondent said that, at the time of his last offence in 1997, he had endeavoured to use strategies that he had learned in an ISOTP and in individual counselling, and that he was 'almost there' in avoiding reoffending, and he was not sure what it was that had overcome those strategies.[63]
(5)The respondent told Dr Wojnarowska that he felt remorseful and ashamed about what he had done.[64]
(6)Although the respondent told Dr Wojnarowska that he was ready to be released, he realised he would have difficulties 'getting straight after 20 years', and he would need to have someone with him all the time to help him deal with 'seeing children on the streets' and 'having arguments with others'.[65] In Dr Wojnarowska's opinion, although the respondent displayed insight into his offending and was realistic about his risk, his strategies for dealing with such risk relied on external factors, and he appeared fearful about the prospect of functioning in the community unless constantly supported and supervised.[66]
(7)The respondent did not believe that anti-libidinal medication would assist in his risk reduction, as he had previously continued to experience sexual fantasies about children, and had reoffended, at a time when his testosterone levels were almost zero as a result of taking such medication. However, although he had also experienced unpleasant side effects as a result of the medication, he was not averse to trying such medication again.[67] Dr Wojnarowska thought that 'a careful titration of anti‑libidinal medication with adequate medical supervision could be of assistance in reducing the respondent's deviant sexual fantasies'.[68]
(8)The respondent's history was consistent with him having a personality with strong narcissistic, borderline and antisocial traits. Further, dependency traits and low self-esteem had contributed to the development and maintenance of his sexual interest in children.[69]
(9)Dr Wojnarowska noted that the respondent's offending was a mixture of opportunistic and predatory behaviour, and that his risk of reoffending is chronically elevated due to the presence of sexual deviance and some psychopathic traits.[70] There were some protective factors related to the respondent's motivation to change and do well, the support he was receiving from his church and his health-related problems, which would limit his mobility.[71]
(10)Dr Wojnarowska was of a similar opinion as Dr Wynn Owen in respect of the possible future sexual offending by the respondent, namely that it would likely be a repeat of his past offending, in that he would lure or snatch a child who was momentarily not supervised and would then engage in sexual abuse of that child, including penetration. The offending could arise from feelings of resentment towards others and a need for revenge, or because the respondent was feeling lonely due to prolonged social isolation. A scenario of the kind in the respondent's sadistic or homicidal fantasies, one in which he is particularly hurt and seeking revenge, could not be entirely excluded.[72]
(11)In terms of imminence of re-offending, the offending could take place at any time without any preparation. Dr Wojnarowska noted that the respondent targets strangers and this makes his behaviour unpredictable and difficult to manage.[73]
[61] Newland [90].
[62] Newland [91].
[63] Newland [92].
[64] Newland [93].
[65] Newland [95].
[66] Newland [97].
[67] Newland [96].
[68] Newland [105].
[69] Newland [100].
[70] Newland [101].
[71] Newland [101].
[72] Newland [103].
[73] Newland [103].

At the Division 2 hearing, the role of Ms Hasson, the forensic psychologist, was to assist with the identification of relevant supervision, management and intervention strategies in the event that the respondent was made subject to an order under the DSO Act. She reviewed the respondent's history and conducted three interviews with him, during which she administered formal psychological testing.[74] She found that the respondent came within a psychological profile in which individuals have 'unstable and unpredictable moods, characterised by inappropriate or extreme emotional reactions' and 'highly impulsive behaviours, including risky, self‑destructive and dangerous conduct that can be sexual in nature'.[75]
[74] Newland [117] ‑ [118].
[75] Newland [119].
In relation to the respondent's previous treatment:[76]
Ms Hasson noted that it was concerning that after completing a significant amount of treatment aimed at reducing his risk of reoffending, the respondent continues to self-soothe and manage dysphoric emotions through masturbating to violent and sadistic sexual fantasies involving children. He is emotionally and behaviourally impulsive with an external locus of control.

Hall J's findings

[76] Newland [122].

Hall J summarised the respondent's history of offending and treatment, and his propensity to commit a serious sexual offence in the following findings:[77]
The respondent has committed a number of serious sexual offences over an approximately 20-year period between 1978 and 1997. The first of those offences occurred when the respondent was aged about 17 or 18.
Whilst the respondent has undertaken a number of treatment programs, the last of those was an ISOTP in 2013. His self-report is that those programs have been useful and he has been able to give an account to the psychiatrists of what he learnt. However, their effectiveness in preventing future sexual offending is open to doubt. Some of the treatment occurred prior to his last release and was inefficacious in preventing further offending.
The respondent has also had a period in the community where he took anti-libidinal drugs. It would appear that they were not effective in preventing further offending. The respondent's self-report is that the medication did not prevent him from having sexual fantasies regarding children. He also disliked the side effects of the medication. He does not believe that such medication would be efficacious in the future. I note, however, that Dr Wojnarowska is of a view that it may be beneficial to trial such a drug again. However, unless the respondent is willing to take the medication and there is then some testing to determine whether it has been efficacious, a conclusion cannot be drawn as to whether it would reduce risk.
It is plain on the available evidence that the respondent presently presents a high risk of reoffending by committing further serious sexual offences. The nature of the risk and the likely offence scenario is such that any management options would have to promise a high degree of assurance that they could prevent the risk from being realised. It is plain that there is a real and serious risk that a serious sexual offence involving children will be committed by the respondent if a continuing detention order or supervision order is not made.
[77] Newland [125] ‑ [128].
On the evidence before him, his Honour concluded that there were no conditions that would either be effective or adequate to manage the risk that the respondent presented, or reduce it to an acceptable level, if the applicant were released into the community.[78] That conclusion was based on the fact that, for the conditions to be adequate, they would need to include requirements for 24-hour supervision of the respondent and suitable secure accommodation.[79] His Honour noted that such facilities and resources were not available in the community, other than for a person with a diagnosed disability.[80] His Honour noted that, whilst the respondent had been assessed as having low average to borderline intellectual functioning, he was not considered to be intellectually disabled, nor did he have autism.[81] Ms Rathmann, the SCCO, had reported that, for those reasons, the respondent did not meet the eligibility criteria for funding from the Disability Services Commission, and nor would he qualify for the National Disability Insurance Scheme (NDIS). Therefore, funding would not be available for a full-time carer.[82]
[78] Newland[147].
[79] Newland[145].
[80] Newland[145].
[81] Newland[145].
[82] Newland [133].
In relation to the unavailability of suitable accommodation, Hall J said:[83]
It must be borne in mind in this context that it is not simply a matter of finding a suitable residence. Dr Wojnarowska has advised that she recommends that any suitable accommodation for the respondent would need to be a secure type of property and have 24-hour supervision in order to manage the respondent's risk. No accommodation that meets these requirements has yet been identified.
[83] Newland [136].
Apart from the unavailability of suitable accommodation, his Honour noted that the respondent had 'no social support network, no arranged employment [and] no arranged further education', and these were all relevant in assessing whether the risk of reoffending could be managed in the community.[84] The lack of accommodation and social support also meant that the respondent was not a realistic candidate for release on a supervision order.[85]
[84] Newland[146].
[85] Newland [146].
His Honour also found that, in any event, the respondent had significant unmet treatment needs, as had been identified by Ms Hasson,[86] that could only be addressed, realistically, in a custodial environment.[87] That was so, notwithstanding the observations that had been made in numerous reports in the past that the respondent had reached 'saturation point' with regards to treatment.[88]
[86] Newland [121] - [122].
[87] Newland[146].
[88] See [32] above.
As noted at the outset of these reasons, his Honour found that the respondent was a serious danger to the community.[89] Further, having also concluded that the respondent's risk could not be adequately managed in the community under a supervision order, his Honour went on to say:[90]
Having said that, there do appear to be some options for further treatment whilst in custody that may have the effect of reducing the risk, and I have detailed those earlier in these reasons. Whether those treatment needs can be addressed and to what extent they will affect the risk, cannot presently be predicted.
[89] Newland [143].
[90] Newland [147].
As it was not appropriate to make a supervision order, Hall J ordered that the respondent be subject to indefinite detention, pursuant to s 17(1) of the DSO Act.
As it is relevant to a consideration of the manner in which the respondent has been managed, and to future management, I note the following comments made by his Honour at the conclusion of his reasons, with which I respectfully agree:[91]
It must be accepted that, as a result of the respondent's successful appeal, he has spent many more years in prison than he would have done if the appropriate sentences had been imposed at first instance. However, there is no scope for that to be a factor in the decision that must now be made. Proceedings under the [DSO] Act are not about punishment for past offending, but about ensuring adequate protection of the community. That can only be achieved at present by detaining the respondent. However, it is important to emphasise that an order for detention is for the purposes of 'control, care and treatment', not punishment. Decisions regarding treatment, counselling, security rating, work opportunities, education, prison location and privileges need to be guided by this distinction.
[91] Newland [148].

Statutory provisions and legal principles applicable in these proceedings

At [2] above, I set out the effect of the statutory provisions that governed the review of continuing detention under the DSO Act. Although the DSO Act has been repealed since I gave my decision in this matter, the review was also governed by the legal principles, set out below, that applied in respect of proceedings under the DSO Act.
The purpose of a review was to determine whether the person continued to be a serious danger to the community and, if so, whether the appropriate order was a CDO or release of the person subject to a supervision order (i.e. an order that they be subject to stated conditions that the court considers appropriate, which must include a number of standard conditions).[92] In deciding between affirming the CDO or making a supervision order, if the respondent remained a serious danger to the community, the paramount consideration was the need to ensure adequate protection of the community.[93]
[92] DSO Act s 33, read with s 3 (definitions), s 17 and s 18.
[93] DSO Act s 33(3).
The legal principles that applied to a periodic review under the DSO Act, and the appropriate approach to the decision to be made between a CDO and a supervision order, have been identified and discussed in a number of authorities and I canvassed them in some detail in Director of Public Prosecutions (WA) v Pindan [No 3].[94] Subject to the requirement in s 33(4) of the DSO Act at the time of the hearing of this application (see below), which was not in operation at the time of Pindan [No 3], the principles and approach discussed in the earlier authorities continued to apply. In particular, I respectfully adopt Hall J's analysis of the annual review process in Director of Public Prosecutions (WA) v Unwin [No 3][95] (which his Honour reiterated, with some elaboration, in The State of Western Australia v Corbett [No 5]).[96] The key principles may be summarised as follows.
[94] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 (Pindan [No 3]) [22] ‑ [32].
[95] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 (Unwin [No 3]) [14] ‑ [18].
[96] The State of Western Australia v Corbett [No 5] [2017] WASC 115.
Detention under the DSO Act was not punishment for past offending; it was a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. As Hall J noted in Unwin [No 3], '[it] is a significant thing to deprive a person of their liberty, not for something they have done but for something that they might do in the future'.[97] The review process was intended to allow for the possibility of a change of circumstances. If circumstances changed such that the risk of reoffending reduces, it may be that the risk could be reduced to an acceptable level by the making of a supervision order.
[97] Unwin [No 3] [15].
Although, in practice, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community,[98] the first question the court had to consider, nevertheless, was whether it was satisfied to a high degree of probability, on acceptable and cogent evidence, that there remained an unacceptable risk that the respondent will commit a serious sexual offence if not subject to a CDO or supervision order.[99] It is in that context that a finding that a person remains a serious danger to the community must be considered.
[98] Pindan [No 3] [51].
[99] DSO Act s 33(1)(a) read with s 7.
If the court was satisfied that the respondent remained a serious danger to the community, then, in deciding whether to affirm the CDO or release the respondent on a supervision order, the court was required to choose the order that was least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.[100]
[100] The State of Western Australia v Latimer [2006] WASC 235 [49]; Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [79].
When considering whether a supervision order would adequately protect the community, it was necessary to have regard to any conditions which could be included in such an order to ensure that protection. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the protection of the community will always favour detention, as the most assured form of prevention.[101] However, because of the paramount consideration, if, having regard to the evidence concerning possible conditions which might be imposed in a supervision order under s 33(2), the court was left in doubt as to whether such an order would adequately protect the community, it was required to affirm the CDO.[102]
[101] Williams [58].
[102] Williams [86]; Pindan [No 3] [29] ‑ [32].
Moreover, upon a review of a CDO, s 33(4) of the DSO Act provided that a court could not make a supervision order unless it is satisfied, on the balance of probabilities, that the offender would substantially comply with the standard conditions of the order. The term 'standard condition' in relation to a supervision order was defined in s 3 of the DSO Act as meaning a condition under s 18(1) that must be included in the order. Pursuant to s 33(5), the onus of proof that they would substantially comply was on the respondent.
Therefore, the effect of s 33(4) and s 33(5) was that the respondent must satisfy the court that he would substantially comply with those standard conditions before the court could make a supervision order. In essence, the court had to be satisfied that the respondent would comply with the standard conditions in a manner and to an extent that was consistent with, and would enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent would commit a serious sexual offence.[103]
[103] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart) [52]; The State of Western Australia v Yates [2020] WASC 149; The State of Western Australia v Decke [No 4] 2020 WASC 263.
As it is relevant in the present case, I note that where engagement in counselling is to be a condition of a supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration in determining whether the respondent is likely to substantially comply with the standard conditions of such an order, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk.[104]
[104] Hart [50].
The requirement in s 33(4) was one consideration (albeit a determinative consideration if the court was not satisfied it had been met) in determining whether the offender's risk could be managed adequately in the community, so as to provide adequate protection of the community. There could be additional considerations, such as the availability of suitable accommodation (which is relevant in this case), which would also affect the determination. Further, one of the standard conditions in s 18 was that the person would not commit a sexual offence as defined in s 36A of the Evidence Act 1906 (WA) (Evidence Act) during the period of the order. That definition substantially overlapped, but was wider than, the definition of 'serious sexual offence' under the DSO Act and included all of the sexual offences in Chapter XXXI of the Criminal Code, without any limitation in respect of the maximum penalty.[105] It was to be expected that the court's capacity to be satisfied that the respondent would comply with that condition (i.e. that he would not commit a sexual offence during the period of the order) would ordinarily be affected by the court's consideration of whether the respondent was likely to comply with other conditions (both standard and non-standard conditions) in the supervision order designed to manage and mitigate risk.
[105] 'Serious sexual offence' is defined in s 3 of the DSO Act to mean, inter alia, a serious sexual offence as defined in s 106A of the Evidence Act, which refers to offences listed in pt B of Sch 7 of that Act for which the maximum penalty is 7 years or more than 7 years. The offences listed include the whole of Chapter XXXI of the Criminal Code.
The level of risk posed by the respondent, and whether the community could be protected adequately against the risk under a supervision order, had to be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external constraints and obligations that could be put in place under a supervision order to mitigate the risk. Gains made by the respondent in treatment and his behaviour while in custody would inform the assessment of the personal factors. The availability of new technology or resources in the community would be relevant to the assessment of external factors.
As Hall J remarked in Unwin [No 3], if the risk changes or resources improve to enable more efficacious conditions, then the need for detention may dissipate and continuing detention may become unjust.[106] The review process was intended to ensure that detention continued only where necessary.
[106] Unwin [No 3] [18].

Materials before the court

The evidence in this case consisted of a book of materials (BOM), which was tendered by consent[107], and the oral testimony of three witnesses called by the State. The three witnesses were:
(1)Dr Wojnarowska, who again was appointed by the court to examine the applicant and provide a report for this review in respect of the respondent's risk of sexual re-offending;
(2)Ms Joanne Collyer, a Senior Counselling Psychologist with the Forensic Psychological Service of the Department of Justice, who reviewed materials and interviewed the respondent for the purpose of providing the court with a treatment progress report and recommendations for future treatment intervention for the respondent; and
(3)Mr Kyle Jarvie, an SCCO within the Community Offender Management Unit (COMU) in the Department of Justice, who was the respondent's supervising SCCO and provided a report in respect of developments in the respondent's personal circumstances and the availability of suitable accommodation and support for the respondent within the community.
[107] Exhibit 1.
The BOM contained departmental records about the respondent's behaviour and management while in custody, including incident reports, a charge history, substance use test results, an individual management plan and medical records. The BOM also contained the reports prepared for this hearing by Dr Wojnarowska, Ms Collyer and Mr Jarvie
The respondent elected not to give or call any evidence at the hearing.

The respondent’s circumstances since the CDO was imposed

In some respects, findings about developments in the respondent's circumstances depend on his accounts to various people, including the authors of the reports for these proceedings. This presents a difficulty, because the respondent has not been consistent in his accounts in relation to some matters. Nevertheless, it is possible to identify themes in his behaviour and thinking from a combination of his accounts and observations by other persons, in particular Ms Chantelle Place, of the Forensic Psychological Service, who has been the respondent's counselling psychologist in the period since the CDO was made.

Overview

The respondent has now been in custody continuously for over 21 years. At the time of the review he was 58 years old.
On 21 January 2019, after the CDO was made by Hall J, the respondent was transferred from Hakea Prison to Acacia Prison to 'progress his custodial case management'.[108] Staff at Acacia Prison were familiar with the respondent as he had spent time there previously.[109]
[108] BOM 130.
[109] BOM 130.

Generally, the respondent was not regarded by his unit manager as presenting with behavioural issues affecting his management,[110] and he was not charged with any prison offences. However, he did experience difficulties in his relationships with other prisoners and prison staff and he spent a lot of time and energy during the review period pursuing complaints about systemic issues within the prison. In his report, Mr Jarvie identified troubling characteristics of the respondent's attitude and conduct during the review period that appear to have persisted from earlier times and stem from persecutory beliefs and deficits in his interpersonal skills:[111]
Of particular note is that Mr Newland continues to perceive wrongdoing towards him by prison staff, his treating psychologist and the author. Mr Newland frequently complains of not being given enough allocated time to address his issues in a custodial environment. There are ongoing examples of presenting false or misleading information to manipulate his environment, or making negative assumptions about people and situations he encounters. He has a tendency to ruminate on information and assume that if something does not occur the way he perceives, that it should then be assumed that it is the result of deliberate acts of prison officers or other staff. Historically, the perception of being wronged has been a precursor to his sexual offending.
[110] ts 174. In his report (at BOM 131), Mr Jarvie put it in terms that the respondent was 'not disruptive at a unit level'.
[111] BOM 134.
Consistent with the theme of distorted perceptions outlined above, the way in which the respondent perceived he was being viewed by his unit managers was different to the more positive impression conveyed by them to Mr Jarvie.[112]
[112] ts 174.
While Mr Jarvie's assessment, set out above at [76], was broadly based, it appears the respondent's main grievances were in respect of having to share a cell and not being able to have ready access to recreational items that he considers important for stress management.
Prior to his transfer to Acacia Prison, the respondent had occupied a single cell. At Acacia Prison he was allocated to a shared cell. The respondent initially resisted being placed in that cell, refusing to comply with a direct order to enter the cell and making threats of self-harm if he was not placed in a single cell. The refusal to comply on 22 January 2019 resulted in a referral for a formal charge, but the matter was dealt with by his unit manager, without charging the respondent.[113] However, an At-Risk Monitoring System (ARMS) alert was raised, and the respondent was put in the detention unit for a period of time for his own safety, given his threats.[114] The ARMS alert was lifted on 5 April 2019.
[113] BOM 131.
[114] BOM 130.
The respondent was subsequently placed in a shared cell and, despite the respondent occasionally making claims that he and his cell mate were often in conflict, they were considered by unit staff to get on without any issues.[115] However, Mr Jarvie noted that the respondent would request placement in the detention cell when he felt he needed 'time out' or felt that he was not coping.[116] Further, Mr Jarvie said in oral evidence that there had been an incident on 28 November 2019 that brought into question whether the respondent would be able to continue cohabiting with his cellmate, and it was 'entirely likely' he would receive another cellmate.[117] The respondent's assessment in his interview with Ms Collyer was that he was 'mostly getting along' with his cellmate, but they could 'get on each other's nerves'.[118]
[115] BOM 131.
[116] BOM 131.
[117] ts 180.
[118] BOM 101.
Regrettably, the psychological treatment that was recommended at the time of the Division 2 hearing was not commenced until June 2019, leaving less than 6 months for efforts to be made to address issues that would be relevant to the review of the respondent's detention. It is further regrettable that the respondent's preoccupation with systemic issues detracted from the purpose of the psychological treatment, which was to address factors aligned with treatment goals that were identified during the Division 2 hearing. Concerns about the respondent's engagement in treatment and the efficacy of such treatment, and recognition that any prospect of the respondent eventually being released into the community would depend on him making progress towards self-care, led to the formulation of a behaviour management plan (the management plan) by Ms Place and COMU. The management plan was formulated with the respondent's agreement. It was designed to enable the respondent to deal with management issues outside the therapeutic context and work within counselling sessions towards assuming greater personal responsibility and improving his interpersonal skills and stress management.
I will deal with the management plan in more detail below. It is sufficient at this stage to note that it included the respondent participating in education and having regular meetings with unit management staff to provide him with a forum to air his grievances. According to Mr Jarvie, 'checking in' every week with the unit manager had assisted the respondent to manage his moods and anxiety and had decreased the number of complaints made by the respondent about the prison system.[119]

Health

[119] BOM 122 [75].

Some of the respondent's complaints about systemic issues had related to health care.
The respondent told Dr Wojnarowska that his physical health had 'significantly deteriorated' over the 12 months since the CDO was made, although Dr Wojnarowska did not think that was reflected in the prison medical records contained in the BOM.[120] Nevertheless, Dr Wojnarowska noted that the respondent was very pre-occupied with his physical health and '[focussed] his psychological distress on his bodily functioning',[121] referring to his hernia, weight gain and chronic stomach, kidney and back pain, which he said had been crippling him.[122] I note that in the proceedings before Hall J, Dr Wojnarowska referred to the respondent's health-related problems and the impact they would have on his mobility, and suggested this was a potential protective factor.[123] However, that did not detract from Dr Wojnarowska's conclusion that the respondent's risk of future sexual offending was chronic and in the very high range.[124]
[120] BOM 120 [62]; ts 140.
[121] ts 140.
[122] BOM 120 [62].
[123] See [46] (9) above.
[124] BOM 124 [81].
One of the respondent's health issues has been sleep apnoea.[125] The respondent was given a sleep apnoea machine on a 2‑week trial from a public hospital. The respondent's account to Ms Collyer about the trial suggests that he benefited from using the machine. He told Ms Collyer that his improved sleep had resulted in an improved mood.[126] This led him to have greater belief that he could manage his mood providing he had good sleep.[127] The respondent gave somewhat different accounts to Ms Collyer and Mr Jarvie about the circumstances in which the machine was returned to the hospital, but, in essence, he said the machine was removed because of either the cost of using the machine or the cost that would have to be paid if the machine was damaged. In either case, on the respondent's account, neither he nor the prison was prepared to bear the costs.[128] Mr Jarvie said that he made inquiries with the medical unit as to whether the respondent could have continued to have access to the sleep apnoea machine. He was told that the respondent was invited to come to the medical unit on a number of occasions, but he refused to attend.[129] This does not answer the question Mr Jarvie posed, but it suggests that the issue was left unresolved. The respondent's refusal to attend would appear to be consistent with his responses in other contexts when he has perceived that he has been wronged.
[125] BOM 115 [35].
[126] BOM 102 [47].
[127] BOM 102 [47].
[128] BOM 102 [47]; ts 181.
[129] ts 181.
In any event, the evidence does not address directly whether the respondent had difficulties with his sleep after the machine was removed. The respondent told Ms Collyer that his stress levels continued to be lower after the machine was removed, but he attributed that, at least in part, to having regular contact with the unit managers and Ms Place.

Education

On 1 October 2019, the respondent commenced an education program. At the time of the review, he was enrolled in studies involving basic literacy and mathematics but was expected to progress to more difficult modules and eventually undertake more advanced studies, including certificate courses.[130]
[130] BOM 95 [26]; BOM 120 [64]; BOM 131.
Ms Collyer noted that the respondent had undertaken certificate studies at Acacia Prison prior to the Division 2 hearing, and he had difficulties with the facilitator at that time.[131] It appears this had a bearing on the respondent starting with the basic literacy studies. Ms Collyer noted that the study group is specifically for prisoners who are marginalised, and the facilitator is familiar with the respondent and how to interact with him.[132] The report from the facilitator to Ms Collyer was positive. The facilitator said that the respondent was polite and willing to engage with him, interacted in a more scholarly fashion and was more patient than he had been in the past. Although all the students kept to themselves, the respondent interacted appropriately with the other students when required. He was observed to do better than most in the class, and this appeared to be having a positive effect on the respondent's 'self-esteem and self-efficacy'.[133]
[131] ts 170.
[132] ts 170.
[133] BOM 95 [26].
Mr Jarvie also commented that the respondent's engagement in education had improved dramatically, marked by good behaviour, as opposed to the walkouts and disruptive behaviour of the past.[134] During his interview with Dr Wojnarowska, the respondent acknowledged his improved behaviour in that regard, and indicated that, as a result, he had been successful in respect of one of the goals expected of him in the education program.[135]

NDIS access

[134] ts 173.

[135] BOM 120 [66].

As noted above, at the time of the Division 2 hearing, it was considered that the respondent would not qualify for NDIS funding.[136] Nevertheless, during the review period, the respondent made an application directly to the relevant agency for NDIS funding. The application was not made on his behalf by the Department of Justice.
[136] [50] above.
On 18 November 2019, the respondent was granted 'access approval'. Mr Jarvie believed that the application was made on the basis of documentation obtained by the respondent in respect of a previous disability support pension application in 1996, and that the access approval was granted on that basis, in particular that the respondent had previously been in receipt of the disability support pension, having been diagnosed with cerebral palsy, intellectual deficits and, potentially, autism.[137] It will be recalled that the respondent was found not to have ASD when he was assessed for the Division 2 proceedings. However, it had been considered that some of the findings in the neuropsychological testing had been consistent with a diagnosis of cerebral palsy.
[137] ts 175.
In any event, at the time of the review hearing, the extent of any support the respondent would receive from the NDIS was far from certain. Mr Jarvie reported that the NDIS had informed him on 25 November 2019 that the respondent was 'a considerable way from being provided with a funding amount'.[138] On 27 November 2019, Mr Jarvie was informed by the NDIS that the respondent was being allocated a case planner who would commence the planning and assessment stage in respect of funding and goals.[139] In oral evidence, Mr Jarvie described the 'access approval' the respondent had received from NDIS as a 'foot in the door' which would allow the relevant agency to further investigate what supports are needed by the respondent and what level of funding might be appropriate.[140] It remained possible that the agency may decide the respondent is entitled to no amount or a very small amount of financial support.[141]
[138] BOM 132.
[139] BOM 132.
[140] ts 174.
[141] ts 174.
It appears from Mr Jarvie's evidence that the respondent's expectation about the kind of funding he might receive was initially unrealistic, for instance, believing it may include accommodation. However, the respondent's expectation had become realistic after Ms Place corrected his misconception.[142] Mr Jarvie said that, while he believed the respondent had been 'upbeat' after receiving the news about access approval (a fact confirmed by Ms Collyer in her report), he had observed that the respondent appeared to return to a lower mood after Ms Place had provided him with the further information.
[142] ts 181.
From her discussions with the respondent, it appeared to Ms Collyer that the respondent was not clear about the difference between 'access approval' and actual NDIS approval, and he may think he can get more support than may ultimately be provided.[143] Further, Ms Collyer was of the view that the respondent had unrealistic hopes that having a carer would negate his risk of reoffending.[144] As Ms Collyer explained, NDIS funding is related to an identified disability, and carers are not really trained to manage risk. The kind of support that might be provided would depend on the level of support the respondent is assessed as needing. Ms Collyer referred to practical matters such as banking and shopping as examples.[145]

Withdrawal from church

[143] ts 161.

[144] ts 165.

[145] ts 165.

As noted above, at the Division 2 hearing, Dr Wojnarowska identified the support the respondent was receiving from his church as a protective factor.[146] The respondent had also claimed that his faith had prevented him from killing two of his victims.
[146] See [46](9) above.
For the purposes of these proceedings, the respondent indicated to Mr Jarvie and Ms Collyer that his involvement in the church and his faith had waned during the review period. He told Mr Jarvie that, over the last year, he perceived that he was not welcome at the chaplaincy service. He said that, in response, he had withdrawn a little and had questioned his faith. He felt that those at the chaplaincy service did not want his 'whinging'.[147]
[147] ts 158.
In his first interview with Ms Collyer, the respondent said that he used to attend church, but had stopped doing so, because he thought it was hypocritical, as he did not 'match' the associated values.[148] In his second interview, he said he was still attending church once a month, but he felt like a hypocrite.[149]
[148] BOM 101 [44].
[149] BOM 101 [44].
Addressing the fact that his involvement in the church had previously been regarded as a protective factor, the respondent told Mr Jarvie that he would continue doing some bible studies. He also said that continuing his education in the community would keep him occupied and would be a protective factor.[150]

Psychological Wellbeing Service

[150] ts 178.

Prior to the treatment intervention with Ms Place, the respondent had accessed the Psychological Wellbeing Service (PWS) at Acacia Prison. Mr Saligari, a counsellor with the PWS, told Ms Collyer that the respondent was known to have chronic issues coping in the prison setting, generally due to his ruminations over systemic issues and fears he would never be released. The goal in sessions with the PWS, outside its support role, tended to focus on exploring 'interpersonal issues, communication and encouraging [the respondent] toward an internal rather than external locus of control'.[151] It appears those sessions did not overcome the respondent's deficits in those areas, as they persisted when he commenced psychological treatment with Ms Place and thereafter.

Access to therapeutic materials

[151] BOM 100 [39].

In his discussion with Ms Collyer, Mr Saligari referred to a matter that is of some importance concerning the approach taken by prison staff to managing the respondent, especially having regard to the comments made by Hall J at the end of his reasons in Newland in relation to the purpose of detention under a CDO. As Ms Collyer reported:[152]
According to Mr Saligari, Mr Newland was viewed negatively by some prison staff as inappropriately using the PWS service to access Sudoku and other worksheets. However, Mr Saligari suggested that these were important stress management tools for Mr Newland and that it was easier for Mr Newland to ask for worksheets, rather than identify and verbalise that he needed support. Nonetheless, Mr Saligari has encouraged Mr Newland to find alternative sources for these worksheets and to access PWS with a specific identified need for support, to encourage him to better communicate his needs.
[152] BOM 100 [39].
In my opinion, while the encouragement offered by Mr Saligari would appear to have been appropriate, the approach evinced by the 'negative view' of some prison staff is not consistent with the spirit of the distinction drawn by Hall J between the purpose of a CDO on the one hand (which includes care and treatment) and punishment on the other.
I raised this matter with Mr Jarvie when he gave evidence at the hearing. Mr Jarvie said that the respondent's inability to get access to the worksheets was a matter the respondent had raised with him. He said it was discussed at an administration level within Acacia Prison (the relevant section being referred to as Sentence Administration), because the worksheets were acknowledged to be a good coping mechanism for the respondent. Mr Jarvie said the education officer had indicated that they would be willing to provide the worksheets to the respondent, and some of the unit managers had also provided worksheets to him. Mr Jarvie further noted that there had been 'one or two occasions where they haven’t been able to' and that, at one point, the respondent had formed the opinion that 'Intelligence had stopped his access to those sheets due to some issue in education'.[153] He said that it was at that stage that Sentence Administration had been contacted and they had indicated that the respondent would be provided with the worksheets on an ongoing basis.[154]

Prison staff approach

[153] ts 186.

[154] ts 186.

Further, Mr Jarvie confirmed that Sentence Administration were aware of the purpose of a CDO and the need to draw a distinction between someone who is in prison on a CDO and someone who is serving a sentence, which serves the purpose of punishment.[155] However, he thought that, due to the turnover of staff, there is a high likelihood that a lot of prison officers would not be aware of the distinction referred to by Hall J in Newland.
[155] ts 187.
As to the specific issue concerning the worksheets, Mr Jarvie had not been aware, until he read Ms Collyer's report, that some officers thought the respondent was abusing the PWS system. However, when the respondent raised the worksheets issue with him, Mr Jarvie dealt with it through Sentence Administration and was given a reply quickly that the respondent could continue to access the worksheets through the person from whom he had been receiving them.[156]
[156] ts 187 ‑ 188.
Mr Jarvie said that further steps could be taken through unit managers to ensure that prison officers dealing with the respondent were made aware, if they were not already aware, of the relevant distinction and the need to take that into account in managing the respondent, both at 'an interpersonal level' and 'how they might perceive him'.[157] He said the matter could also be documented in the respondent's management plan.[158] It follows from what I have said about this issue that the steps identified by Mr Jarvie should be taken.

Psychological treatment

[157] ts 188.

[158] ts 188.

The evidence in relation to the respondent's psychological treatment was given primarily by Ms Collyer, although Dr Wojnarowska also dealt with the subject, having reviewed the materials and spoken with Ms Place and the respondent about it. Ms Collyer relied on her interview with the respondent, an interview with Ms Place and a treatment review report that had been prepared by Ms Place. The latter was not tendered in evidence, but no issue has been taken by either party with the contents, to the extent that they were referred to by Ms Collyer. While it was necessary for Ms Place to report on treatment progress to the experts who gave evidence in this review, it was appropriate, consistent with the usual approach, that any assessment about such progress be made by experts other than Ms Place, to avoid compromising her therapeutic relationship with the respondent. Therefore, she did not give evidence at the hearing.

Recommendations

[322] ts 152.

Dr Wojnarowska's recommendations were as follows.

Pharmacological treatment

Dr Wojnarowska was of the opinion that it would be useful to trial an SSRI in the respondent's case, to assist in dealing with his mood fluctuations and his irritability. Further, the use of an SSRI should decrease the respondent's level of sexual preoccupation and his sexual fantasies.[323] The positive effects of an SSRI should be seen within two to three weeks of commencement.[324]
[323] ts 144.
[324] ts 144.
The respondent had previously had a trial of the anti-libidinal mediation, Androcur. That was prior to the respondent's last incidence of sexual offending. He had reported that it was not very effective and that he suffered unpleasant side effects.[325] Dr Wojnarowska noted that we do not have access to information about the respondent's testosterone levels at the time of the last offence, to confirm the effectiveness (or otherwise) of the anti-libidinal medication.[326] If the respondent were to take anti-libidinal medication in the future, its effectiveness in reducing his testosterone would need to be monitored as a step in assessing its effectiveness in reducing the respondent's sexual thinking and sexual urges.
[325] ts 144; BOM 127 [103].
[326] ts 145.
Dr Wojnarowska said that there are new anti-libidinal medications, such as GnRH (gonadotropin-release inhibitor hormone) medication, that are as effective as Androcur but have fewer side effects. It would be preferable for the respondent to be prescribed one of the new therapeutic drugs.[327]
[327] ts 144.
In Dr Wojnarowska's opinion, careful titration of anti‑libidinal medication with adequate medical supervision could be of assistance in the reduction of the respondent's deviant sexual fantasies and his libido.[328] GnRH medication is administered as a monthly injection. It would take longer to work than SSRI medication, but a marked reduction in testosterone could occur within three to four months.[329] This could be checked by blood tests.[330]
[328] BOM 127 [103].
[329] ts 145.
[330] ts 145.
The respondent was referred to the State Forensic Mental Health Service on 15 July 2019 for assessment of his suitability for SSRI or hormonal medication.[331] He was to be seen by Dr Wynn Owen, but as at the time of the review hearing, Dr Wynn Owen had not yet had an opportunity to meet with the respondent to discuss the options^.[332]
[331] ts 179.
[332] ts 150.
Since completing his report, Mr Jarvie had spoken with Dr Wynn Owen about the issue by telephone. Dr Wynn Owen confirmed that he had completed a 'desktop review' in relation to the issue. He had submitted documentation to access the respondent's medical records from the medical record system associated with Acacia Prison and other areas. He told Mr Jarvie that he expected the access issue to be resolved by the end of the week, and thereafter he would do a clinical interview with the respondent in person.[333]
[333] ts 179.
The desktop review mentioned SSRI medication, hormonal anti-libidinal medications and GnRH medication.[334] It appears that, on the basis of the desktop review, there was no physical contraindication in relation to any of the medication, but a blood test would need to be done to be conclusive in that regard.[335]
[334] ts 179.
[335] ts 180.
Mr Jarvie noted that the suitability of the various medications could be investigated, but he was unsure whether it could be provided to the respondent. In any event, as Mr Jarvie acknowledged, the respondent would have to consent to taking the anti‑libidinal medication before it could be administered.[336]

Management plan and psychological treatment

[336] ts 180.

Dr Wojnarowska supported the implementation of a management plan for the respondent.[337] She agreed with the proposition that if the respondent is given incremental tasks through the management plan, with the possibility of success, that would have a positive impact on him, especially as prison is a place where it can be difficult to achieve success.[338]
[337] ts 149.
[338] ts 148.
She noted that the management plan that had been implemented, as at the time of the review hearing, was still in its early days.[339]
[339] ts 150.
In Dr Wojnarowska's opinion, the respondent required ongoing psychological counselling, with a focus on emotional management, risk management and his sexual interest in children. A 'mood diary' would assist in dealing with those issues.[340]
[340] BOM 127 [101].
Despite the concerns raised about the respondent's preparedness to make full disclosure about relevant issues in counselling within the community, Dr Wojnarowska was hopeful that, once engaged in counselling, the respondent would be able to disclose to the psychologist the emergence of factors that could potentially lead to his reoffending.[341]

Supervision

[341] BOM 127 [101].

If the respondent were to be released on a supervision order, Dr Wojnarowska was of the opinion it should be for at least 10 years. That is because paedophilic interest does not decrease with age, so the respondent could still be very dangerous at age 60 or 70.[342]
[342] ts 146.
Dr Wojnarowska agreed that the length of time the respondent has been in custody would significantly affect his ability to reintegrate into the community. The respondent expressed concern to her about adjusting to living in a community that has changed significantly.[343]
[343] ts 147.
As I noted earlier, Dr Wojnarowska's opinion had not changed from the Division 2 hearing, in that she was of the view that, to adequately manage his risk, the respondent would need 24-hour supervision if he was released into the community.[344]

Accommodation[345]

[344] ts 146.

[345] ts 171 – 189, BOM 129 - 143.

At [51] above, I referred to Hall J's comments in Newland concerning the requirements that accommodation in the community would need to meet to ensure adequate protection of the community. Those comments remain apt.
Mr Jarvie confirmed that, at the time of the review hearing, there was no proposed accommodation for the respondent.[346] The respondent had no private accommodation options and had been assessed as too complex to be considered for the supported accommodation program with UnitingCare West. Various hostels were also contacted but were not suitable. The essence of the problem, as at the time of the Division 2 hearing, was finding a place where the respondent could be under care 24 hours a day, which would provide a measure of ongoing supervision. Realistically, at the time of the review hearing, that could only occur if the respondent could receive disability assistance that would include the provision of such care in suitable accommodation.
[346] ts 174.
To the respondent's credit, he was also able to identify potential problems with hostel accommodation. He told Ms Place that he would not be suitable for such accommodation because he would likely target vulnerable people in that setting.[347] In his interview with Ms Collyer, the respondent elaborated that it was not just that there would be vulnerable people in such accommodation, but that his difficulties with interpersonal interactions could be aggravated in hostel accommodation.[348] Ms Collyer considered that the respondent had a reasonable understanding that such difficulties could cause rumination, low mood and the potential for acting out.[349]
[347] ts 159.
[348] ts 159.
[349] ts 159.
In the absence of government-established specialist accommodation for persons in the respondent's situation, which would include the necessary direct supervision, the issue of finding suitable accommodation continues to be inextricably linked at this stage with the respondent's ability to obtain NDIS funding for a carer in what would be, in effect, supported accommodation. Such arrangements have been put in place in other cases in which respondents have been found to have a disability that affects their risk of reoffending.

Findings

In outlining the evidence above, I have made findings in relation to various issues I must determine. In general, I have accepted the evidence of Ms Collyer, Dr Wojnarowska and Mr Jarvie, and I have accepted that the accounts given to them by Ms Place about her dealings with the respondent were accurate. Where I have formed a different view to any opinion expressed by Ms Collyer or Dr Wojnarowska, I have said so and have given reasons.
Broadly speaking, I am satisfied that the respondent has made some progress since he was made the subject of the CDO.
The respondent's overall insight that he could not be released into the community safely without supervision 24 hours per day is not new, as he had expressed that view leading up to the Division 2 hearing. Although he told Dr Wojnarowska that he was less fearful of being released than he had been in the past, it is clear that he nevertheless continues to have insight into the objective risk that he would commit a further sexual offence against a child if he were to be released without the necessary supervision.
The areas in which I consider there has been development in the respondent's circumstances are as follows.
First, the respondent had made some progress in his intellectual understanding of the impact of his offending. I accept Dr Wojnarowska's opinion in that regard.[350] Although the respondent had previously had some understanding on an intellectual level of the impact of his offending, Dr Wojnarowska considered that his statement that he did not want any other child to suffer in the same way was a new development. My assessment is that the respondent had become more emphatic over time in his statements that he did not want to cause harm to children.
[350] See [172] above.
Secondly, the implementation of the management plan had enabled a structured approach to be taken in respect of the respondent's management that separated grievance issues from therapeutic issues. It would appear to have improved the prospects of therapy dealing with his risk factors in a constructive way. The therapeutic goals had also become more focussed to deal with management of his risk of reoffending, including precipitating psychological factors, recognising that his deviant sexual interests are unlikely to shift.
Thirdly, largely because of the second development, by the time of the review hearing the respondent had begun to engage in therapy in a productive way. However, it remained to be seen whether that would persist. The difficulty with assessing the extent to which there has been positive development in this area is that the respondent's honesty and level of insight in his sessions with Ms Place and in his interviews with Ms Collyer and Dr Wojnarowska should be considered a positive factor, yet several things he has admitted raise concerns about (a) whether he would continue to be honest and (b) the manageability of his risk in the community. The most notable matters are his admission that he has been manipulative in the past and has made up stories to manipulate the system, and his admission that he might not be forthcoming in counselling in the community, if he thought it might be to his detriment.
Having regard to those matters, I was not satisfied that the respondent would substantially comply with the standard conditions of a supervision order. That would preclude the making of a supervision order, even before considering the evidence that his risk could not be adequately managed if he did not have 24-hour daily supervision.
However, it seems to me that the respondent's insights and his honesty about his deficits (in relation to manipulation and potentially withholding information) allow for those deficits to be identified and addressed in counselling. In that regard, it is a development upon which future treatment can be built.
Fourthly, the respondent had shown improvement in his engagement with education. He had attended classes without disruption and had been noted to engage in a more scholarly and patient manner than before, and to interact appropriately with other students. It was observed that his better achievement than others appeared to be having a positive effect on his self-esteem. At the time of the hearing, the educational course was at an early stage, but there were positive indications that the respondent could make progress.
Finally, the NDIS access approval, which I have discussed above, was a positive, but, at the time of the review hearing, an uncertain development towards putting in place a community-based arrangement in which a supervision order with suitably tailored conditions might provide adequate protection of the community.
Notwithstanding the developments to which I have referred, the evidence established that the respondent continued to pose a high risk of committing a serious sexual offence against children if he were to be released into the community on a supervision order without supervision 24 hours every day.
A matter that remains a significant deficit for the respondent is his continuing reliance on an external locus of control. The need for him to accept responsibility for his own thoughts and actions remains an important area to be addressed in treatment.

Submissions

The applicant's submissions

The applicant submitted that, given the opportunistic, extremely serious nature of the respondent's offending, and his very high risk of serious sexual reoffending, the respondent remained a serious danger to the community and should not be released on a supervision order without a marked change in his rehabilitation. The applicant relied on the evidence that the respondent continued to have many outstanding treatment needs and the opinion of Dr Wojnarowska.
The applicant submitted that the respondent's newly admitted fantasies involving babies were concerning.[351] In that regard, while I agree that the revelation was disturbing, it was not raised with Dr Wojnarowska when she gave evidence, so I do not have the benefit of her view as to what significance might be placed on the revelation, in terms of either the assessment of the respondent's risk or the management of that risk in the community. It is also difficult to envisage a situation in which the respondent could have access to a baby in the community. While it is a disturbing matter, I do not consider it adds to the assessment of risk made by Dr Wojnarowska.
[351] ts 192.
The applicant submitted that the applicant's ability to self-report could be doubted, given his indications that he said too much about his fantasies ahead of the Division 2 hearing and that he might withhold information if released on a supervision order.[352] The applicant also submitted that, even if the applicant's thoughts were controlled to some extent at the time of the review hearing, it did not mean he could control them if a trigger were to upset him in the community.[353]
[352] ts 191.
[353] ts 192.
The applicant submitted that the respondent's faith had previously been regarded as a protective factor used by him to control his urges, but his commitment to his faith had reduced, so that he had one less protective factor.[354]
[354] ts 193.
The applicant submitted, relying on Dr Wojnarowska's evidence, that, without accommodation with 24-hour daily supervision in the community, for which there was no funding at the time of the review hearing, the risk of the respondent reoffending was very imminent and could involve snatching a child without warning and sexually offending against them, and the potential for serious injury or death could not be ruled out.[355]
[355] ts 194.
In summary, the applicant submitted that there had been no significant change in the respondent's circumstances which would lead the court to conclude that the respondent is no longer a serious danger to the community, or that the community could be adequately protected if the respondent was released on a supervision order.[356] Therefore, the only appropriate order was to affirm the CDO.

The respondent's submissions

[356] ts 193.

The respondent conceded that he remained a serious danger to the community at the time of the review hearing and accepted that he could not be released into the community without supervision of the kind recommended by Dr Wojnarowska. The respondent further accepted that, given the fact that there was no funding available for the type of supervision or accommodation he would require, he was not in a position to submit that a supervision order would be appropriate at the time of the review.[357]
[357] ts 132.
It was submitted on the respondent's behalf that it was a matter of concern that it took so long for steps to be taken after the Division 2 hearing to put in place the recommendations referred to by Hall J.[358] It was submitted that the frustration expressed by the respondent at times, as revealed in the evidence, could be understood in that context.[359] In particular, it was noted that, notwithstanding that the CDO was made on 9 November 2018, the respondent only began counselling in July 2019, he had still to be assessed in relation to his suitability for anti-libidinal or SSRI medication, and his NDIS application had only progressed in October 2019 so the level of funding that may be available to the respondent remained unknown at the time of the review hearing.
[358] ts 195.
[359] ts 195.
It was submitted on the respondent's behalf that his minimal treatment gains could be attributed to the minimal time that there had been for that to occur. It was submitted that the respondent had been cooperating and engaging with his treatment, but that it was unrealistic for one to expect a person who has been in custody for as long as the respondent (being 21 years) to show any gains within such a short period.[360]
[360] ts 196.
While I accept that steps should have been taken earlier to commence the respondent's counselling, it is apparent from the evidence that, once Ms Place was allocated as the respondent's counsellor, some time was required to formulate a suitable treatment plan. In addition, the limited treatment gains could be attributed to a significant extent to the respondent's lack of proper engagement in the treatment process in the early stages of counselling, as I have outlined above. It required a recalibration of the approach taken by Ms Place, including the implementation of the behaviour management plan.
In any event, it was not submitted on the respondent's behalf that any deficits on the part of the authorities in implementing recommendations could affect the outcome of these proceedings, in terms of the order to be made. Rather, they went to further recommendations that the court might make in respect of the continued detention of the respondent.
It was submitted on the respondent's behalf that a graduated management plan should be implemented, which would allow the respondent to take graduated steps towards release, particularly having regard to the fact that he had been given access approval to the NDIS. Further it was submitted that those involved in the prison system needed to be reminded of the reasons for the respondent's continuing detention, as identified by as Hall J in Newland at [148], and that the court should reinforce the need for those involved in the management of the respondent to continue with the positive steps that had been taken in that regard in more recent times.[361]
[361] ts 199.

Conclusions

As I stated in my short oral reasons, having regard to the evidence presented in these proceedings and the parties' submissions, I was satisfied to a high degree of probability that the respondent remains a serious danger to the community.[362] Indeed, at the time of the review, I was satisfied that the respondent remained a high risk of committing a serious sexual offence against children if he were not subject to either a CDO or a supervision order.[363] As I noted at the outset, the respondent did not submit to the contrary.[364] The question that remained was whether I should affirm the CDO or release the respondent subject to a supervision order.
[362] ts 200.
[363] ts 200.
[364] ts 200.

It was clear, on the evidence of Dr Wojnarowska, that the level of the respondent's risk of committing a serious sexual offence was such that the respondent could not be released into the community without 24‑hour daily supervision. To his credit, the respondent recognised at the time of the review hearing, as he had done previously, that he poses a risk of that kind and that it would not be safe for him to be in the community without 24-hour daily supervision.
No accommodation that would enable that kind of supervision to be provided was available at the time the review hearing. In fact, no circumstances had been identified whereby the respondent could be in the community with that degree of supervision.
The respondent’s circumstances had not changed to any significant extent from what they were when Hall J made the CDO. As I have outlined above, there had been some developments, but they were not such as to mitigate his risk to the extent that the community could be adequately protected if he were in the community without 24‑hour daily supervision. The circumstances were essentially still as found by Hall J, when his Honour said:[365]
Conditions in this case would have to include requirements for 24 hour supervision of the respondent and suitable secure accommodation. It is pointless to impose such conditions unless facilities and resources that would meet those requirements are available in the community. Those facilities and resources are not available in the community, other than for a person with a diagnosed disability.
[365] Newland at [145].
At the time of the review hearing, steps had been taken by the respondent to access funding through the NDIS for appropriate support within the community, of such a kind as to enable the respondent to be supervised in the intensive manner that is necessary. It must be acknowledged, as was explained by Ms Collyer, that what would be funded by the NDIS is disability support, rather than risk management in the form of supervision or oversight for the purposes of preventing the respondent from reoffending. However, if funding were available for 24-hour daily support, it would be hoped that the corollary of the care and support that would be provided to the respondent would be a form of supervision or oversight that would enable the authorities to be informed if the respondent's behaviour indicated an increase in his risk of committing a serious sexual offence, having regard to the known risk factors.
In any event, at the time of the review hearing, the process of seeking NDIS funding was at the very early stages, with the respondent having been granted only 'access approval'. It was evident that much work would need to be done to determine whether the NDIS could assist the respondent.
Further, as I noted earlier, even before considering the unavailability of 24‑hour supervision and suitable secure accommodation, I was not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order. That necessarily follows from the high likelihood that he would commit a serious sexual offence if such supervision and accommodation were not in place. However, the conclusion was also based on the concerns in respect of whether the respondent would be open and honest with his counsellor and those managing him in the community.

Recommendations for continuing risk management

As I stated in my oral reasons, apart from the need to pursue the NDIS application, it will be necessary, in any event, for the respondent to continue to undergo treatment and to endeavour to change his ability to control his behaviour and his sexually deviant thoughts. There is a continuing need to address his cognitive distortions and deficits in his appreciation of the impact of his offending, which I have outlined in discussing the expert evidence. Dr Wojnarowska was of the view that it is unlikely that the respondent will ever feel empathy, but he has an intellectual understanding of the impact of his behaviour on his victims, and there may be scope for him to develop that understanding further. Although, according to Dr Wojnarowska, a lack of empathy does not increase risk, it seems that the development of understanding may be a protective factor. It is to be hoped that, irrespective of whether the respondent develops an emotional understanding of the impact of his offending, further development of his intellectual understanding of that impact might better equip him to resist his deviant urges in the future. This is something to be worked upon in further treatment. Underpinning the prospect of achieving other treatment goals is the need for the respondent to learn to assume responsibility for his conduct, rather than rely on an external locus of control.
As I also stated in my oral reasons, what was most important at that stage was that the management plan that had been established by Ms Place and Mr Jarvie should be pursued to its full extent, in the manner discussed by Ms Collyer, Dr Wojnarowska and Mr Jarvie in their evidence. That management plan was outlined in some detail in the reports of Mr Jarvie and Ms Collyer, and has been reproduced by me above.[366] Those who are responsible for the management of the respondent should be guided by that outline and by Ms Collyer's assessment of the way it should be delivered and its benefits.[367]
[366] See [125] ‑ [129] and [157] ‑ [159] above.
[367] See [158] ‑ [159] above.
In the implementation of that management plan, and in the further management of the respondent, it is important for those who are responsible for his care, control and treatment while he is subject to continuing detention to bear in mind what was said by Hall J on the last occasion concerning the nature of such detention, and the need for that to guide decisions regarding treatment, counselling, security rating, work opportunities, education, prison location and privileges.[368]
[368] Newland [148]. See [56] above.

Orders

For the reasons I have given, on 5 December 2019, I affirmed the CDO made by Hall J on 9 November 2018.
I set 6 December 2021 as the date of the next review of the respondent's continuing detention.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Associate to the Honourable Justice Fiannaca
28 JANUARY 2022