The State of Western Australia v Newland

[2018] WASC 344

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NEWLAND [2018] WASC 344

CORAM:   HALL J

HEARD:   1 NOVEMBER 2018

DELIVERED          :   9 NOVEMBER 2018

FILE NO/S:   DSO 3 of 2018

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

ROBERT BRUCE NEWLAND

Respondent

Catchwords:

Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Whether unacceptable risk of committing serious sexual offences - Whether serious danger to the community - Whether indefinite detention or supervision order appropriate

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), ss 7, 10, 17 and 18

Result:

Indefinite detention order made

Representation:

Counsel:

Applicant	:	Mr B Meertens
Respondent	:	Ms K Farley SC

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid (WA)

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

Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611

Director of Public Prosecutions (WA) v Decke [2009] WASC 312

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

Newland v The Queen [2018] WASCA 124

Rodway v The Queen [1990] HCA 19; 169 CLR 515

The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; (2008) 198 A Crim R 149

The Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246

The State of Western Australia v Latimer [2006] WASC 235

Yates v The Queen [2013] HCA 8; (2013) 247 CLR 328

HALL J:

1. Between 1978 and 1998, Robert Bruce Newland, the respondent, committed a series of serious sexual offences against children. For a number of those offences he was sentenced to terms of imprisonment. In addition, in 1998, an order was made that at the expiration of a prison sentence that was then imposed he would be detained at the Governor's pleasure pursuant to s 662(a) of the Criminal Code (WA) (repealed). In 2017 the respondent commenced an appeal against the s 662(a) order and against his convictions for two of the offences for which he had been dealt with in 1998.[1]

   [1] Newland v The Queen [2018] WASCA 124.

2. The State conceded the appeals and anticipated that the outcome would be that the respondent would be deemed to have served all terms of imprisonment imposed on him and be eligible for release. In these circumstances, the State applied for an order that the respondent be detained in custody for an indefinite term for control, care and treatment pursuant to s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). At a preliminary hearing of the application, an interim order was made that the respondent be detained in custody pursuant to s 14(2) of the Act until the application for an indefinite detention order was determined.

3. The issues for determination in this case are:

   1.whether the respondent is a serious danger to the community; and

   2.if so, is the appropriate order one of indefinite detention or release into the community on a supervision order.

4. At the hearing, counsel for the respondent conceded that on the evidence it was difficult to dispute that the respondent is a serious danger to the community, as that phrase is used in the Act, and that orders under s 17 of the Act are open. The real issue was whether the appropriate outcome is a supervision order or an indefinite detention order. Without conceding that an indefinite detention order should be imposed, the respondent's counsel also accepted that there are a number of significant impediments to a supervision order at the present time.[2]

   [2] Ts 126.

5. For the reasons that follow, I have come to the conclusion that the respondent is a serious danger to the community.  Where the court finds that an offender is a serious danger to the community, the court must either order that the offender be detained for an indefinite term or make a supervision order.  I have further concluded that at present there are no conditions that could be imposed that would adequately reduce the risk that the respondent would commit further serious sexual offences if he was released into the community on a supervision order and that such an order is, therefore, inappropriate.  Accordingly, the appropriate order is one of indefinite detention.

The evidence

1. The evidence in this case consisted of two volumes of materials, two additional written reports, and the oral testimony of a number of witnesses called by the State.

2. The documentary materials were tendered by consent.  The two-volume book of materials consisted of historical information regarding the respondent's offending, his conduct and treatment in prison, reports prepared for this hearing and medical records.  The reports included reports from two psychiatrists Dr Gosia Wojnarowska and Dr Peter Wynn Owen.  They were both called to give oral evidence and were cross‑examined.  There were also reports from Ms Julie Hasson, a clinical psychologist, Dr Elizabeth Vuletich, a clinical neuropsychologist, and Ms Lisa Rathmann, a senior community corrections officer.  Ms Hasson and Ms Rathmann were also called to give oral evidence.

3. The matter was first listed for hearing on 22 May 2018.  At that time, it was noted that the report of Dr Vuletich raised the possibility that the respondent may be intellectually disabled to an extent that was greater than had been suggested previously.  There was also a suggestion that the respondent may have autism spectrum disorder.  The hearing was adjourned so that further reports could be obtained in regard to these possibilities.  Further reports addressing those issues were obtained from Dr Adam Brett and Dr Mandy Vidovich.  Those reports were separately tendered at the hearing.

4. The respondent elected not to give or to call any evidence at the hearing.

The law

1. The State applies for an order under Div 2 of the Act. Section 17 of the Act provides:

   (1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -

   (a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or

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

   (2)Subject to subsection (3), in deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

   (3)A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.

   (4)The onus of proof as to the matter described in subsection (3) is on the offender.

2. The State may make an application under the Act where a person is under a sentence of imprisonment for a serious sexual offence. At the time this application was made, being 12 January 2018, the respondent was serving a term of imprisonment for serious sexual offences. Though he was no longer serving such a sentence by the time of the final hearing (as a result of the appeal), s 10 of the Act provides that the application may proceed notwithstanding that change of position.

3. Section 7(1) of the Act states that before the court can find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the Act, it necessarily follows that the person concerned is a serious danger to the community.[3]

   [3] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66] (Wheeler JA); The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; (2008) 198 A Crim R 149 [21] (Steytler P and Buss JA).

4. A serious sexual offence is defined in s 3 of the Act to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA).  Section 106A of the Evidence Act provides that 'serious sexual offence' means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more. 

5. It also includes an offence under a repealed section of the Criminal Code if the acts or omissions that constituted the offence are substantially the same as an offence under the present Criminal Code which is mentioned in pt B of sch 7 of the Evidence Act and is punishable by a maximum penalty of 7 years' imprisonment or more.  The respondent has committed several offences that come within this category.  He has also committed some other offences that are not characterised as serious sexual offences.  Offences of other types may be relevant in assessing the risk of serious sexual offending being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious sexual offending.[4]

   [4] The Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].

6. Section 7(2) of the Act provides that the Director of Public Prosecutions has the onus of satisfying the court that a person is a serious danger to the community. The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.[5]  This does not necessarily mean that the risk must be at some high percentage of probability, a risk may be less than 50% yet still be unacceptable.  However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[6]

   [5] GTR [28] (Steytler P and Buss JA).

   [6] GTR [34] (Steytler P and Buss JA).

7. What is meant by 'unacceptable risk' was considered by Wheeler JA in Williams.[7]  In that case her Honour said that a judge is required to consider the likelihood of the person offending and the type of offence likely to be committed in considering whether the risk is so unacceptable that the interests of the community require a person to be subject to further detention even though they have already been punished for whatever offence they have actually committed in the past.  That does not exclude the possibility that an unacceptable risk may be effectively addressed and minimised by a supervision order.

   [7] Williams [63] ‑ [65] (Wheeler JA).

8. In GTR, Steytler P and Buss JA said at [27] that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). 

9. Section 7(3) of the Act sets out a number of matters that the court must have regard to in considering whether a person is a serious danger to the community. Those matters are:

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

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

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

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

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

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

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

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

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

   (j)any other relevant matter.

10. As s 7(3)(j) implies, the list of matters to be considered by the court is not a closed one.

11. While s 7(3)(g) provides that the court must have regard to any criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they have occurred. However, past behaviour is often a good indicator of future conduct.

12. Once a court has concluded that an offender is a serious danger to the community, it must make either an indefinite detention order or a supervision order.[8]  In deciding between those two possibilities, the paramount consideration is the need to ensure the adequate protection of the community.[9]  That does not exclude other considerations.  The use of the word 'adequate' indicates that a qualitative assessment is required.  It cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order.[10]

    [8] Williams [68] (Wheeler JA). 

    [9] Section 17(2) of the Act.

    [10] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].

13. The court should choose the option which is least invasive or destructive of the respondent's right to be at liberty.  At the same time it must ensure an adequate degree of protection of the community.[11]

    [11] The State of Western Australia v Latimer [2006] WASC 235 [49].

14. Section 17(3) of the Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The onus of proof is on the respondent pursuant to s 17(4) of the Act. These provisions were introduced as a result of an amendment that commenced on 29 March 2018.[12]

    [12] Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA), s 16.

15. The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act as meaning a condition under s 18(1) that must be included in the order. Section 18(1) of the Act provides seven conditions that must be included in a supervision order. Therefore, the effect of s 17(3) and 17(4) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order.

16. There is a possible argument that s 17(3) and s 17(4) do not apply in this case because the application in these proceedings was filed before those sub‑sections came into operation. That argument would rely upon an assumption that the amendment to the law had the effect of altering the respondent's rights in a material way. Ordinarily, it is presumed that parliament does not intend legislative amendments to have retrospective effect, in particular if they affect an existing right or obligation, unless the language of the statute expressly or by necessary implication requires such a construction.[13]

    [13] Rodwayv The Queen [1990] HCA 19; 169 CLR 515 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).

17. In the present case, the respondent did not seek to argue that the amendment affected substantive rights and was not merely procedural. He did not submit that this application falls to be determined in accordance with the burden of proof that existed prior to the amendment. That is, that he should not be required to satisfy the legal burden of proving, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order. Nonetheless, whether s 17(3) and 17(4) apply to the present matter is a question which I have considered because of its potential to impact on the outcome.

18. It is ultimately unnecessary for me to resolve this issue.  That is because, even assuming that the amendment does not apply, the evidence adduced by the applicant plainly establishes that there are no conditions that could adequately reduce the risk that the respondent would commit a further serious sexual offence if released on a supervision order.  Regardless of whether the respondent bears any onus of proof in respect of the standard conditions, it is plain that release is not a viable option.  This is not a question of whether the respondent would substantially comply with standard conditions, rather it is that there are no conditions that could be imposed that would reduce the risk to any acceptable level.

History of offending and antecedents - s 7(3)(c), (d) and (g)

1. In deciding whether a person is a serious danger to the community, the court must have regard to the person's antecedents and criminal record.[14]  This means all prior offences, whether they be serious sexual offences or not, to the extent that such offences are relevant to the question of whether the person is a serious danger to the community.  It also requires consideration of the person's personal history, including the context in which past offences were committed.

   [14] Section 7(3)(g) of the Act.

2. The criminal record and antecedents are relevant in themselves, but also relevant to whether the person has a propensity to commit serious sexual offences in the future.[15]  They are also relevant to whether there is any pattern of offending behaviour.[16]

   [15] Section 7(3)(c) of the Act.

   [16] Section 7(3)(d) of the Act.

3. The respondent was born on 17 September 1961.  He is the youngest of four children in his family, having a brother and two sisters.  His father is deceased.  His mother is still alive and lives independently.  He has regular contact with his mother and one of his sisters.  He has never been married or been in a relationship and has no children.

4. The respondent has reported that he had an induced birth and his delivery was complicated by a breach presentation and having the umbilical cord wrapped around his neck.  He says that he suffered hypoxia and was diagnosed with cerebral palsy at the age of eight.  His developmental milestones were somewhat delayed, especially in regard to movement due to some right‑sided mild spasticity.

5. The respondent's father worked as a labourer and his mother had primary responsibility for looking after the children.  Whilst the family was not well off, there was always enough food and his mother made sure that the children attended school and were appropriately clothed.  The respondent's father drank alcohol excessively and, when intoxicated, was physically abusive to the respondent's mother.  He was also abusive, mainly verbally, to the children.  Family life slowly disintegrated due to his father's violence and his parents separated when the respondent was 16 years old.

6. The respondent has no good memories connected with his father but was close to his maternal grandfather who died when the respondent was 18 years old.  He has memories of growing up in isolation, always being misunderstood or ridiculed by others.

7. The respondent's schooling commenced in a regional town where the family moved to when the respondent was 4½ years old.  He struggled academically, socially and physically at school and reported significant amounts of bullying.  After receiving the diagnosis of cerebral palsy the respondent became eligible for a special school and attended such a school in Perth where he completed Year 10.  He has reported that he found high school to be easy and that he was possibly one of the highest functioning students there. 

1. After leaving school he lived intermittently with his mother and worked in sheltered employment.  He has reported having many conflicts at his workplaces, which he says were the result of ill treatment and his consequential resentment and aggression.  In more recent years he has been receiving a disability support pension.

2. The respondent cannot remember when he reached puberty.  He says that he knew about sex and was displaying over‑sexualised behaviour from a young age.  He remembers experimenting sexually at the age of 5 years with a girl from the neighbourhood.  His first sexual encounter with a male took place when he was 8 years old when an older brother played sexual games with him.  He reports that he enjoyed the experience and repeated it with one of his male friends.  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. 

3. The respondent has reported incidents when, as a teenager, he sexually assaulted, or attempted to sexually assault younger children at school.  The first independently confirmed incidents occurred on unknown dates around 1978 to 1979.  At this time the respondent was aged between 17 and 18 years old and was charged with four offences relating to sexual interference with children.  He was found fit to plead, however was cautioned and not convicted.  He was referred to a clinic for socialisation and sexual education on 6 August 1979. 

4. No police documents have been able to be located regarding the circumstances of this offending however there is a report from a psychiatrist at the clinic to which the respondent was referred.  That report notes that the respondent had problems associated with 'sexually molesting young children for the third time in 18 months'.  The respondent was reported as having said that he was scared that he might 'do it again and end up in prison'.  Another report relating to the incidents refers to a 4 year old girl and three 5 year old boys. 

5. The appellant later gave an account of the incident involving the 4 year old girl to a psychologist.  He stated that at the time he had had a significant fight with this mother.  After his mother and sister had left the house, the respondent opened the front door and invited the 4 year old daughter of a neighbour inside for an ice cream.  He took her into his bedroom removed her clothes and started to 'play with her vagina'.  He placed the victim's hand onto his penis.  He tried to have her perform fellatio on him but she resisted.  He then lay next to her on the bed, put her on top of him and rubbed her up and down his body before laying on top of her and rubbing his penis between her legs.  When the victim heard the respondent's brother outside she began to scream so he covered her mouth and then tried to choke her but desisted from this shortly thereafter.  He then dressed the complainant and himself.  As he was dressing, the victim's mother came into the house and slapped him.  Police arrived later that day and he was taken to a police station to make a statement.

6. The first sexual offending that resulted in a conviction occurred on 27 August 1984.  On that date, the respondent followed a 10 year old boy down an escalator where he 'hit the victim on the bottom'.  He then followed the victim back up the escalator before asking the victim if he wanted to go to the toilet with him.  He said in an interview that he asked this because he wanted to play with the victim's penis and wanted the victim to play with his penis.  He was charged with assault with a circumstance of aggravation, namely that the victim was a male child under the age of 17 years, contrary to s 313 and s 322(5)(b) of the Criminal Code.  He pleaded guilty and was sentenced on 4 September 1984 to a 12 month good behaviour bond.

7. The next incident of sexual offending was dealt with by the District Court on 24 January 1985.  The offences in question had in fact occurred on 16 June 1984, prior to the incident just referred to.  At about 5.30 pm on 16 June 1984, the respondent attended a reserve in Balga driving a hired vehicle.  Two children were playing in the playground.  They were a 3½ year old boy and a 4 year old girl.  The children had attended the park with their families for a sporting event.  The respondent approached the children and offered to buy them ice cream.  He took them to his vehicle and assisted them to enter it.  He then drove the children approximately 40 kilometres east of Perth.  He stopped the car, got into the back seat with the children and removed his pants and their pants.  He indecently dealt with each of the children by touching their genitals.  The children were becoming distressed so he stopped and dressed himself and the children.  He then started to drive back towards Perth but was involved in a car accident and was forced to abandon the vehicle.  He obtained a lift with a young couple for himself and the children to the Midland train station.  He then caught a train and a taxi with the children to his home address.  Once there he showered the children and got them onto his bed.  Both the respondent and the children were naked.  He indecently dealt with both of the children by penetrating their mouths with his penis, by touching the boy's penis and by licking the girl's vagina. 

8. The young couple who gave the respondent and the children a lift subsequently heard a police report over the radio regarding the missing children.  They contacted the police.  The crashed hired vehicle was located and documents identifying the respondent were discovered.  Police attended the respondent's address the same night and found the children naked in the respondent's bed.  He was arrested and made full admissions at an interview.

9. The respondent was charged with four counts of indecent dealing with a child under the age of 14 years contrary to s 183 of the Criminal Code and two counts of child stealing contrary to s 343 of the Criminal Code.  He pleaded guilty to the four counts of indecent dealing and not guilty to two counts of child stealing.  He was acquitted of the two counts of child stealing following a trial.  In regard to the indecent dealing charges, he was sentenced to 2 years' imprisonment on each count, with two of those sentences being cumulative, the total effective sentence being 4 years' imprisonment with a minimum term of 12 months. 

10. The sentencing judge received reports and accepted that the respondent was 'mentally disadvantaged' and had 'a psychological problem' which 'might well respond to treatment'.  The sentence was structured so that the respondent would serve a relatively low period of time in detention followed by a period of parole in which he could obtain psychological treatment.  The respondent served his minimum term and was released on parole on 13 January 1986.  His parole expiry date was 23 January 1989.  Prior to the expiry of that parole, he committed further sexual offences.

11. On 19 February 1988, the respondent attended at a Balga swimming pool.  He followed a 6 year old boy into the toilet area.  He pulled down the boy's bathers and then sucked on the boy's penis for about 30 seconds.  While this occurred, the respondent had an erection and was masturbating himself.  During this incident, the respondent held the boy by the waist to prevent him from leaving.  He pleaded guilty to one count of sexually penetrating the child without his consent in circumstances where the child was under the age of 16 years, contrary to s 324E of the Criminal Code.  This offence was dealt with in the Supreme Court at the same time as the next matter.

12. On 16 March 1988, the respondent attended at a park in Highgate in a hired car. He saw a 5 year old boy who was waiting to be picked up by his mother after school. He asked the boy if he would like a lift home and the boy agreed. He then took the boy to Rockingham where they had a swim and he then took the boy to a motel in Mandurah. Once inside the motel room the respondent assisted the boy to undress and they both got into the shower. He washed the boy and then played with the boy's penis. They both got onto a bed where the respondent sucked the boy's penis and then got the boy to lick his penis. They left the motel somewhere around 11.00 pm at night and drove back towards Perth. When they reached Wattleup the respondent asked the boy to get undressed and then left him at the side of the road naked. The boy went to a house nearby and was returned to the police and his parents. The respondent told police that he was concerned about fingerprints on the clothes and that he also took the boy's property and disposed of it during the drive back to Perth. Arising from this incident, the respondent was charged with one count of child stealing contrary to s 343 of the Criminal Code, one count of unlawfully and indecently assaulting a child under the age of 16 years contrary to s 324C of the Code and one count of sexually penetrating a child under the age of 16 years without his consent contrary to s 324E of the Code.

13. In sentencing the respondent in respect of these two incidents, the sentencing judge noted that the respondent's offending against children had continued over a long period. He said that reports strongly suggested that the respondent remained a risk to society and the prognosis for any significant change in his sexual behaviour was considered to be poor. He accepted that the respondent suffered from an intellectual handicap and that for this reason he was not entirely responsible for his actions, but there was a need to protect children and that need must prevail over personal factors. Sentences of 3 years' imprisonment were imposed on each count, to be served concurrently. There was also an order that after the expiration of the sentence of imprisonment, the respondent was to be detained during the Governor's pleasure pursuant to s 662(a) of the Criminal Code (repealed).

14. As I have noted earlier in these reasons, in 2017 and 2018, the respondent appealed against his convictions for two of the counts arising from the 1988 incidents, namely the two counts of aggravated sexual penetration contrary to s 324E of the Criminal Code. He also appealed against the order for his indefinite detention. On 11 May 2018, the Court of Appeal allowed those appeals, set aside the convictions on the two counts referred to and entered judgments of acquittal in respect of those counts and also set aside the order for indefinite detention under s 662(a) of the Criminal Code.[17]. 

    [17] Newland.

15. The reason for setting aside the convictions was not because there was any dispute as to what had occurred but rather that the acts of fellatio upon the children did not fall within the meaning of sexual penetration as it then stood.  The terms of s 30(5) of the Criminal Appeal Act 2004 (WA) did not enable the court of appeal to substitute convictions for indecent dealing because the respondent had been convicted on his pleas of guilty and not after a trial.  In regard to the order for indefinite detention, the Court of Appeal held that the findings of fact and the reasoning of the sentencing judge were inconsistent with the test mandated by the High Court in Chester v The Queen[18] and Yates v The Queen[19].  These conclusions necessitated resentencing the respondent for the remaining counts.  The respondent was resentenced to 6 years' imprisonment for the child stealing offence and 3 years' imprisonment for the offence of aggravated indecent assault.  Those new terms had effect from the date of the original sentencing, namely 29 August 1988.

    [18] Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611.

    [19] Yates v The Queen [2013] HCA 8; (2013) 247 CLR 328.

16. Whilst he was serving the original sentences imposed in August 1988, the respondent was convicted of an offence of indecently dealing with a child aged under 14 years contrary to s 183 of the Criminal Code.  This offence had occurred on 21 January 1988, prior to the respondent being imprisoned, when he was at the Balga swimming pool.  He followed a 5 year old boy into a toilet cubicle and locked the door.  During an interview with the police, he admitted to 'playing' with and masturbating the boy's penis.  He also admitted to exposing his erect penis to the boy.  He couldn't recall forcing the boy to touch his penis, which was an allegation made by the boy, but admitted that this might have occurred.  It is not clear from available records whether the respondent pleaded guilty to this charge or was found guilty after trial.  His criminal record shows that on 18 October 1988 he was sentenced in the Perth Childrens' Court to 6 months' imprisonment, to be served concurrently with the sentence he was then serving.

17. The respondent was released on parole on 15 December 1995.[20]  He was returned to custody between 9 September 1996 and 16 December 1996 after he was seen in the presence of two unaccompanied children in breach of his parole order.  After being again released on 16 December 1996 he committed a further sexual offence on 7 October 1997.  On this occasion he followed a 7 year old boy into the toilets of a fast food restaurant in Perth.  The boy was standing at a urinal and having difficulty undoing his pants.  The respondent asked if he could help.  The boy agreed and the respondent led the boy into a cubicle.  Once inside the cubicle the respondent closed and locked the door.  He waited for the boy to urinate and then fondled the boy's penis for a period of between 30 seconds and several minutes.  The boy was scared and crying.  The respondent then allowed the boy to leave the cubicle.  He left the restaurant after the boy was met by his older sister outside the toilet. 

    [20] At the time the law provided that a person detained during the Governor's pleasure pursuant to s 662(a) of the Criminal Code could be released on parole. The current equivalent provision is s 101 of the Sentencing Act 1995 (WA).

18. The respondent was arrested on 11 November 1997 and charged with one count of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code and one count of unlawfully detaining the child contrary to s 333 of the Criminal Code.  He pleaded guilty and was sentenced on 17 February 1998 to 2 years and 6 months' imprisonment on the first count and 2 years' imprisonment on the second count, to be served concurrently.  He was not made eligible for parole.

19. In sentencing, the judge noted that the respondent had advised the author of a pre‑sentence report that he had been sexually abused as a child.  The judge also referred to the respondent's 'significant cognitive impairment', the intensive treatment he had received for sexual deviancy and the provision of libido reducing medications upon his release from prison.  It was also noted that the pre‑sentence report said that the respondent remained a 'high risk to the community'.

20. The respondent has remained in prison since the commission of the last offences.  After the expiration of his fixed terms of imprisonment, that was on the basis of his indefinite sentence.  Since that order was set aside on the appeal, he has been held on an interim detention order under the Act.

Efforts to address offending behaviour - s 7(3)(e)

1. It is necessary to consider whether the respondent has made any efforts to address the cause or causes of his offending behaviour including participation in any rehabilitation programs.[21] 

   [21] Section 7(3)(e) of the Act.

2. The respondent has had extensive assessment and treatment of his offending behaviour.  He has been assessed by psychologists and psychiatrists on numerous occasions.

3. The respondent first commenced treatment for his sexual offending behaviour following his arrest in 1978/79.  At that time he was referred to a child guidance clinic for sex education, support and to learn social responsibility.  An assessment by a psychiatrist at this time found that he showed no mental illness nor lack of control and knew right from wrong.  He was deemed fit to plead and it was recommended that he be referred to an adult clinic for one-on-one outpatient treatment 'for sex information and support'.  However, it was suggested that his best treatment would come from living in an adult hostel to learn social responsibility but within the constraints of the law.  It is not clear from the available material whether these recommendations were followed.

4. Following his convictions in 1985, the respondent was recommended to participate in a sex offender treatment program including aversion therapy.  He commenced such a program and aversion therapy at Fremantle Prison.  At that time aversion deconditioning treatment involved an individual being shown slides of young children and, if sexual arousal occurred, receiving a painful shock to the fingers.  When the current was turned off the person would be shown photographs of mature women.  The object was to positively condition the person to be sexually aroused by adult women.  A pre‑sentence report prepared in 1988 indicates that the respondent only attended a few sessions of the sexual offender treatment program and that he had been reluctant to engage in aversion therapy whilst in prison.

5. From 1986 to 1988 whilst in the community on parole, the respondent attended a Christian based counselling service and was persuaded to accept aversion therapy.  During this time he also engaged in individual counselling with Ministry of Justice staff, the Bunbury regional psychiatric unit and at a Christian residential program.  There are no reports that provide details of the content of this counselling or the degree of the respondent's participation in this counselling.  However, its efficacy may be doubted given that the respondent re-offended in 1988.

6. After offending in 1988 and being returned to prison, the respondent was given further opportunities to address his behaviour by participation in programs.  He engaged in individual therapy for a period of 12 months whilst at Fremantle prison and then at Casuarina prison.  In 1991 he attempted, but did not complete, an intensive sex offender treatment program (ISOTP).  A report in regard to that program states that he was unable to cope due to his tendency and preference for social isolation and deficits in his interpersonal and communication skills.

7. Between February 1994 and December 1995, the respondent participated in three further ISOTPs.  A report in 1995 stated that he was making sound progress towards addressing his offending behaviour, describing him as having worked with 'dogged determination' to understand his risk cycle and how to prevent himself from escalating to offending.  Gains were also perceived in victim empathy and accepting responsibility. 

8. In November 1995 release on parole was supported with a recommendation that the respondent engage in a sex offender treatment maintenance program or a community based program if required. He stated an intention to continue individual counselling in the community if released. A recommendation was also made that the respondent commence anti‑libidinal therapy. This was recommended to be administered on a weekly basis once he was released into the community.

9. After release on parole on 19 January 1996, the respondent participated in a sex offender maintenance program and in individual counselling. The counselling continued between January and August 1996. A counselling termination report prepared on 2 September 1996 was largely positive regarding the respondent's engagement and treatment gains. However, within weeks of ceasing counselling and soon after receiving his weekly dose of anti‑libidinal medication, the respondent's parole was suspended for 3 months from 24 September 1996 after he placed himself in a high risk situation by sitting alone at a bus stop with two children. By doing this he breached his parole conditions of no unsupervised contact with children. He was released to parole again some three months later on 13 December 1996 with recommendations for community based maintenance, individual counselling and continuation of anti‑libidinal medication.

1. As noted earlier, on 11 November 1997 the respondent was arrested and charged with further sexual offences.  He has been in custody since that time.  During the following 20 years he has participated in a number of further programs whilst in prison.  These have included a 66 hour cognitive skills legal and social awareness program in 2001.  This program was devised for offenders with cognitive impairment.  The purpose of the program is to raise awareness of society's laws and rules, to understand the consequences when laws are broken, to consider attitudes to others including victims, to identify minimisation and justification of offending and to recognise and deal with risky situations.  This program does not specifically address causal factors associated with sexual offending.  The completion report for this program was favourable.  The respondent also participated in a 38 session cognitive skills program from 29 October 2001 to 24 January 2002.

2. In 2001, the respondent participated in five sessions of individual counselling to ascertain his level of treatment retention.  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]'.

3. The respondent was reviewed on several occasions by the parole board and detailed assessments were completed by a forensic psychologist.  In 2003, the psychologist noted that the respondent had not undergone any further intervention despite the parole board having made recommendations for individual counselling.  She recommended that individual counselling should be considered and that it should commence whilst the respondent was in prison and continue in the community if he was released on parole.

4. In March 2004, a psychologist assessed the respondent over four sessions at Casuarina and provided a report on the treatment options available.  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.

5. The recommendations of the psychologist 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.  A view was taken that the treatment was of questionable value and there was a lack of any guarantee that it would actually reduce the respondent's risk of offending.  However, this view changed and in 2005 the respondent was recommended for assessment for re‑inclusion in a group program to ascertain retention of previous program content and to determine his motivation to implement strategies to prevent re‑offending.

6. The respondent did not engage in the treatment until 2007 at which time he again completed an ISOTP.  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.

7. The respondent again participated in an ISOTP in late 2012 to 2013.  The reasons for his inclusion in this program are unclear as numerous reports indicated that he was considered to have reached saturation point with regards to treatment.  However, he was considered to have made some treatment gains, including demonstrating an improved ability to lower his emotional response and using calming techniques, and the need to practice these skills regularly.  Improvement in coping skills, perspective taking and challenging unhelpful thinking were also noted.  Sex offender maintenance counselling was recommended.

8. In addition to offence specific programs at various times the respondent has also participated in individual counselling with the prison counselling service to work on his self‑esteem, managing his emotions and improving his coping and communication skills.  He has not, however, had the opportunity to participate in any further treatment to maintain treatment gains or to address his outstanding treatment needs since August 2013.

Psychiatric reports and the extent to which the respondent co-operated with psychiatric examinations - s 7(3)(a)

1. The court ordered that the respondent undergo examination by two psychiatrists, Dr Peter Wynn Owen and Dr Gosia Wojnarowska.  An order was also made that a clinical neuro‑psychologist, Dr Elizabeth Vuletich, be engaged pursuant to s 38A of the Act to provide a report setting out her opinion as to any cognitive deficits of the respondent.  The report of Dr Vuletich raised the possibility that the respondent had autism spectrum disorder.  As a consequence, further reports addressing this issue were ordered to be obtained from a psychiatrist, Dr Adam Brett, and another clinical neuropsychologist, Dr Mandy Vidovich.  All of the psychiatrists and psychologists met with the respondent for the purpose of preparing reports.  He fully co-operated with the examinations.  The reports were tendered and some of the psychiatrists and psychologists gave oral evidence at the hearing.  The two reports initially ordered by the court, (and the oral evidence of the relevant witnesses) will be referred to here.  The other reports will be referred to in the next section.

Dr Peter Wynn Owen

1. The respondent told Dr Wynn Owen that he was not ready for release when he committed the last of his offences.  He said that at that time he was having ongoing sexual fantasies about boys but felt unable to tell his counsellor for fear of being returned to prison.  He considered that he was aware that his last victim was distressed and crying but said that whilst offending he was 'like a zombie' and that the emotional state of his victim does not affect him.[22]

   [22] Ts 79; Report of Dr Wynn Owen dated 15 May 2018, Book of Materials (Exhibit 1) (BOM), page 1162.

2. In regard to the respondent's medical history, Dr Wynn Owen noted that the respondent does have a number of legitimate medical problems but has a tendency to catastrophize minor symptoms.  The diagnosis of cerebral palsy has not been confirmed other than brief references in earlier reports.  His general intellectual ability has been assessed as being in the low average range.[23]

   [23] Report of Dr Wynn Owen dated 15 May 2018, BOM, pages 1164 - 1165.

3. In regard to psychiatric history, Dr Wynn Owen noted that the respondent was remanded to Graylands Hospital for psychiatric assessment following his arrest in 1984.  At that time he was assessed as being fit to plead and of low normal/borderline intelligence.  No diagnosis of major mental illness was made.  There has been a history of intermittent treatment for depressive symptoms over 30 years, although no formal diagnosis of major depressive disorder by a psychiatrist has been made.  There has been ongoing expression of suicidal intent in the face of stress and dissatisfaction with how he is being treated.  However, there is no history of serious suicidal or self‑harming behaviour.  There is no history of substance abuse or misuse of prescribed medications and no suggested link between alcohol and the offending behaviour.[24]

   [24] Report of Dr Wynn Owen dated 15 May 2018, BOM, pages 1164 - 1165.

4. The respondent told Dr Wynn Owen that he had no sexual thoughts for about a month and that he had been focussing on his Christian faith.  However, before a month ago he said that his stress levels were high and he had experienced sadistic fantasies especially when upset by the staff at the prison.  These had included a fantasy of tying up the offending staff member and making them watch him sexually assault a young boy during which he would blame the staff member for forcing him to do it.  He reported being sexually aroused by such fantasies.  He was very open about his ongoing sexual preferences for young boys aged around five years.[25]

   [25] Ts 82 - 83; Report of Dr Wynn Owen dated 15 May 2018, BOM, pages 1168 - 1169.

5. The respondent was unable to articulate any benefit he had gained from his most recent ISOTP.  When asked how he would avoid re‑offending in the future and what he had learned from the treatment he had received over the years, the respondent stated that he would lead a balanced lifestyle and deal with his stress.  He said a balanced lifestyle involved having friends, hobbies and interests.  When asked how he would deal with stress he said that he would seek out supports such as Church and Citizens Advocacy personnel.  He reported being prone to stress but could not initially think of anything that might be stressful if he was returned to the community after his long period of incarceration.[26]

   [26] Report of Dr Wynn Owen dated 15 May 2018, BOM, pages 1177 - 1178.

6. Dr Wynn Owen noted that the respondent's speech was of normal rate volume and syntax.  There was no thought disorder and the respondent was alert and oriented as to time, place and person.  He appeared to be cognitively intact.  He does not currently meet the criteria for an affective, anxiety or psychotic disorder.[27]  He does however have an unusual personality, which includes abnormalities of cognition, affectivity, interpersonal function and impulse control and that his enduring pattern of inner experience and behaviour is pervasive, inflexible and leads to significant distress or impairment in social, occupational and other areas of functioning.  Dr Wynn Owen gave evidence that he believes that the respondent does have a personality disorder but that he cannot place it in any particular category of personality disorders as it is mixed.[28]  He does meet the diagnostic criteria in DSM V (Diagnostic and Statistical Manual of Mental Disorders 5^th Ed) for paraphilia (paedophilic disorder).[29]

   [27] Ts 92; Report of Dr Wynn Owen dated 15 May 2018, BOM, pages 1178 - 1179.

   [28] Ts 85.

   [29] Report of Dr Wynn Owen dated 15 May 2018, BOM, pages 1179.

7. In regard to the risk of reoffending, Dr Wynn Owen utilised actuarial instruments and structured professional judgment tools in combination with a clinical psychiatric assessment and formulation.[30]  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.[31]

   [30] Report of Dr Wynn Owen dated 15 May 2018, BOM, page 1180.

   [31] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1154.

8. The respondent's Static‑99R score was 9, which is in the well above-average risk range.  In routine samples of sexual offenders, those with the same score as the respondent have a five year sexual recidivism rate of 27%.  In Dr Wynn Owen's view, the respondent should be considered in the high risk/needs cohort because he has extensive outstanding treatment needs.  This would place him in a group which had a 30% likelihood of re‑offending in the five years post‑release.  This can be understood as meaning that of 100 offenders released into the community with this score, 30 would commit another sexual offence within five years and 70 would not.[32] 

   [32] Ts 85 - 86; Report of Dr Wynn Owen dated 15 May 2018, BOM, page 1180.

9. The PCL-R is administered as part of the review using the RSVP clinical judgment framework.  Dr Wynn Owen considered the various risks relevant to future offending that are addressed by the RSVP.  In regard to sexual violence history, Dr Wynn Owen noted that risk factors of chronicity (that is, early onset, persistence and frequency of sexual violence), escalation (the frequency and density of offending behaviour), physical coercion and psychological coercion in sexual violence were all definitely present.  In regard to psychological adjustment, Dr Wynn Owen noted that the risk factors of extreme minimisation or denial of sexual violence, attitudes that support and/or condone sexual violence, problems with self‑awareness, problems with stress or coping and problems resulting from child abuse were all present.[33] 

   [33] Ts 86 - 88; Report of Dr Wynn Owen dated 15 May 2018, BOM, pages 1180 - 1182.

10. In regard to mental disorder, the risk factor of sexual deviance was found to be definitely present having regard to the fact that the respondent has been diagnosed with the paraphilia, paedophilic disorder.  The respondent does not have a psychopathic personality disorder as his score on the PCL-R does not meet the threshold for psychopathy.  However, the risk factor of violent or suicidal ideation is definitely present (that is, violent ideation rather than suicidal ideation is present) because the respondent experiences chronic violent and sexually violent ideation as part of his sexual fantasies and such fantasies have been his main coping strategy to deal with stress.  He 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.  While few studies have been undertaken with individuals with violent ideation, what research there is suggests an increased risk of future sexual violence.[34] 

    [34] Ts 80, 88 - 89; Report of Dr Wynn Owen dated 15 May 2018, BOM, page 1182.

11. In regard to social adjustment, the risk factors of problems with relationships (both intimate and non-intimate) and problems with employment are both definitely present.  In regard to manageability the risk factor of problems with treatment is definitely present and the risk factor of problems with planning and problems with supervision are both present.  Dr Wynn Owen noted that the respondent's plans on release appear to be unrealistic and superficial.  In regard to treatment, whilst the respondent has received exhaustive input in group and individual settings and has consistently demonstrated an understanding of his offending and risk, he has not been able to demonstrate any change in his attitudes that might reduce his risk of re‑offending.  Whilst he has the ability to learn, he has not been able to progress from an entrenched pattern of behaviour and coping mechanisms.[35] 

    [35] Report of Dr Wynn Owen dated 15 May 2018, BOM, pages 1182 - 1183.

12. In regard to the possible future risk scenario, Dr Wynn Owen says that the most likely future offence would be an opportunistic one against a young boy who was a stranger in a public toilet associated with a place where children meet or visit.  Such an offence would likely include physical restraint.  If the respondent had 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.  There is also a possibility that the risk may escalate and change because the respondent has admitted to fantasies about detaining adults he is upset with and forcing them to watch him sexually abuse children.[36]

    [36] Ts 89; Report of Dr Wynn Owen dated 15 May 2018, BOM, page 1184.

13. In regard to the imminence of any future offending, Dr Wynn Owen is of the view that this is highly dependent on the structures around the respondent.  He was in the community for approximately two years following his release to parole in January 1986 and remained in supported accommodation until December 1987.  Following the return to independent living in Perth, he committed sexual offences in early 1988.  He then breached parole (but did not sexually offend) shortly after release on parole in December 1995.  He then committed a serious sexual offence one month after re‑release.  Dr Wynn Owen suggests that without structured support including supported accommodation, the respondent could re‑offend within weeks or months of release, or almost immediately upon release.  In oral evidence, Dr Wynn Owen said that 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.[37]

    [37] Ts 89; Report of Dr Wynn Owen dated 15 May 2018, BOM, page 1184.

14. Dr Wynn Owen notes that the respondent regards himself as a risk and does not believe that he can manage that risk without '24 hour support' and 'having an adult with me every time I leave the house'.  His poor functioning in the highly structured prison environment does not augur well for his ability to function in the significantly less structured community setting.  In Dr Wynn Owen's opinion, the respondent currently presents a high risk of serious sexual offending.  That risk could not be adequately managed without constant supervision.  The necessary level of supervision is not available in the community for a person without a diagnosed disability, which the respondent does not have.[38]

    [38] Ts 90 - 91; Report of Dr Wynn Owen dated 15 May 2018, BOM, page 1145.

1. Dr Wynn Owen concludes his report by recommending that the respondent be assessed by appropriate clinicians to establish whether he has autism spectrum disorder.  He also suggests that any further counselling be focussed on practical day to day problem solving and be with clinicians who are aware of the respondent's history and treatment needs.  He also notes that difficulties in the prison environment could be addressed by coordinated interventions between the prison staff to ensure that the respondent receives consistent messaging.[39] 

Dr Gosia Wojnarowska

[39] Ts 90 - 91; Report of Dr Wynn Owen dated 15 May 2018, BOM, pages 1187 - 1188.

1. The respondent was forthcoming with Dr Wojnarowska in regard to his history of offending.  He said that he 'mostly' agreed with the judge's sentencing remarks and the various views of therapists regarding his risk.  He spoke in a calm manner, without underlying hostility.[40]

   [40] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1142.

2. The respondent told Dr Wojnarowska that there were many more times that he engaged in sexual offending than that he had been charged for.  He said that he had touched 'more than a hundred, even two hundred children' in his life.  His first victims were younger students at his school when he was aged 13.  He remembered his offences in a chronological order, including the dates of his sentencing and time in custody.[41]

   [41] Ts 69; Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1142.

3. He said that his 1984 offences occurred on a day when he hired a car and was excited about the prospect of driving around.  When he saw two unaccompanied children at a playground he felt 'an urge to have them'.  He admitted the incidents of sexual assault with the children and said that when the children were crying and frightened it was more exciting.  He admitted that he had a thought of killing the children but he knew killing was wrong and against God's wishes so he talked himself out of it.  He said that this was why he did not take the victims straight to his house but was driving around 'to get rid of those thoughts'.  He did not think of the children's parents or the anguish that he put them through.  He underplayed the seriousness of his conduct because he said that he intended to return the children.[42]

   [42] Report of Dr Wojnarowska dated 7 May 2018, BOM, pages 1142 - 1143.

4. In regard to the offences in 1988, he said that the first offence occurred on a day when he had had an argument with the manager at his accommodation.  When he realised that he had not been caught immediately for the first offence his behaviour escalated and he committed three further offences within a seven‑week period.  He said that it was during his second period of imprisonment that he started to realise how wrong his behaviour had been.  He completed an ISOTP and thought that he could manage his fantasies in the community.  However, on his release he struggled to contain his urges.  He said it was easier when he was not stressed, lonely, bored or angry.[43]

   [43] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1143.

5. The respondent said that his last offence in 1997 had been the result of built‑up stress.  This had pushed him into moods where he wanted to hurt others and take his pain out on them.  He said that some time before this offending, one of his friends at church had made a comment that he perceived as being very sarcastic.  He had felt very hurt and ruminated over this for a while, and violent and sexual fantasies had re‑emerged.  He said that 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.  He was not sure what it was that had overcome these strategies.[44]

   [44] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1143.

6. The respondent told Dr Wojnarowska that he felt remorseful and ashamed about what he had done.  He confirmed that his primary sexual attraction were children, irrespective of age or gender, but that he was also sexually attracted to adult males and females.  He said that female children were less accessible to him and that is why he had only had one female victim.  Whilst he equally enjoyed sex with adults, his partners had been either physically or mentally disabled, so issues of dominance and lack of consent were also present in these encounters.[45]

   [45] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1143.  See also ts 59 - 60.   

7. The respondent said that his offences usually took place after he had an argument with his family.  At these times, he would feel misunderstood and lonely.  He would find a child and sexually assault them because it made him feel good and feel like he was being loved and accepted.  He said that there many times that this occurred without him being caught or charged.  He did not dwell on how much he damaged his victims, although he knew that he did.  He told Dr Wojnarowska that his offending was 'about power and revenge, not about sex' and that, in his opinion, he was at high risk of reoffending when stressed.  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.  These fantasies would include raping children in front of their parents and then killing them.  He said that he was sexually aroused by such fantasies, but in the last month had tried to pray instead.[46]

   [46] Ts 61; Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1144.

8. When questioned about past treatments, the respondent said that he had learned what impact his offending had on victims and acknowledged that he had a sexual attraction to children.  He said that he was aware of the consequences of his responses to stress and the need to use techniques to counter negative feelings.  He said that he needed future counselling to be able to identify target areas, including coping with stress, feeling better about himself, and learning how to meet people and how to be in a relationship.  He said that he was ready to be released and would do everything in his power not to reoffend.[47]  He identified the following likely difficulties if he was to be released:[48]

   Getting straight after 20 years, I would need to have a person with me all the time, seeing children on the streets, having arguments with others.

   [47] Ts 61; Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1144.

   [48] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1145.

9. He did not believe that anti‑libidinal medication would assist in risk reduction.  He said that his testosterone levels were almost zero when taking Depo‑Provera previously, but that he still experienced sexual fantasies about children, and reoffended.  He also referred to unpleasant side effects as a result of the medication.  However, he was not averse to trying such medication again.[49]

   [49] Ts 62 - 63; Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1145.

10. In Dr Wojnarowska's view, the respondent displayed an insightful attitude towards his offending with a realistic estimation of his risk.  However, his strategies for dealing with such risk relied on external factors, such as an almost constant presence of other people in his life.  He appeared fearful about the prospect of functioning in the community unless constantly supported and supervised.[50]

    [50] Ts 62; Report of Dr Wojnarowska dated 7 May 2018, BOM, page1145.

11. Whilst the respondent was mildly anxious at the commencement of his interview with Dr Wojnarowska, he clearly expressed his readiness to cooperate with the process.  He was polite and answered all questions with minimal prompting.  He maintained good eye contact and was sincere in his answers.  His speech was fluent and forthcoming with no evidence of formal thought disorder.  He did not reveal depressive or psychotic symptoms.  He was alert, fully oriented and able to sustain adequate concentration.  His attention span was normal and there were no memory deficits.  His insight was good and his judgment was not impaired.  His memory was formally tested but he impressed as having a detailed recall of his life in prison, including the dates of the programs he had completed.[51]

    [51] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1152.

12. Dr Wojnarowska is of the opinion that the respondent's history and current presentation are consistent with the presence of 'sexual deviance, being paedophilia, non‑exclusive type'.  This is supported by the respondent's self‑reported sexual attraction to young children, which has been present since his early adolescence.  Although the respondent's fantasies have changed to incorporate physical violence, Dr Wojnarowska notes that he has never acted on those fantasies and never engaged in sadomasochistic types of sex.  In these circumstances, Dr Wojnarowska is reluctant to make an official diagnosis of sadism.  However, 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.[52]

    [52] Ts 67; Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1153.

13. The respondent's long history of difficulty regulating his emotions, fear of rejection, impulsivity, sensitivity to criticism and self‑serving behaviours are consistent with a personality with strong narcissistic, borderline and antisocial traits.  He displays dependency traits and low self‑esteem which have contributed to the development and maintenance of his sexual interest in children.[53]

    [53] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1153.

14. Dr Wojnarowska describes the respondent's offending as a mixture of opportunistic and predatory behaviour.  His risk of reoffending is chronically elevated due to the presence of sexual deviance and some psychopathic traits.  There are some protective factors related to his motivation to change and do well; the support he has received from his church and his health‑related problems which will continue to limit his mobility.[54]

    [54] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1153.

15. Dr Wojnarowska also conducted a risk assessment.  In regard to Sstatic‑99R, Dr Wojnarowska noted that the respondent's assessment had decreased with time due to age, but was still at a very high range category.  She noted that offenders who fell into this category have a 25% chance of sexual reoffending within a five‑year period.  In regard to the PCL-R, the respondent's total score was in the moderate range, below the threshold required to confirm a diagnosis of psychopathy.[55] 

    [55] Ts 67 - 68; Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1155.

16. Dr Wojnarowska also used the RSVP structured clinical guide.  She noted that the respondent possesses risk factors in the domains of sexual violence history, psychological domain mental disorder, social adjustment, problems with treatment and manageability.[56]  She said that the RSVP can guide professional judgment of the type of offending scenarios that may occur for an offender.  She said that were the respondent to offend again sexually, the kind of sexual violence that he might commit would likely be a repeat of his past offending.[57]  He would see a child that was momentarily not supervised and would lure or snatch the child and then engage in sexual abuse, including penetration. Offending behaviour could arise from feelings of resentment towards others and a need for revenge, or because he was feeling lonely due to prolonged social isolation.  Although he has never acted on his sadistic or homicidal fantasies, that kind of scenario, one in which he is particularly hurt and seeking revenge, could not be entirely excluded.  Psychological harm to a prospective victim would be 'enormous' and physical harm could also be 'very serious'.[58]  The imminence of any potential offending would be of concern and warning signs could include becoming withdrawn, missing reporting sessions and frequenting places where children congregate.[59]  However, it was likely that offending could take place at any time without any preparation.  He targets strangers and this makes his behaviour unpredictable and difficult to manage.[60] 

    [56] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1155.

    [57] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1156.

    [58] Ts 70.

    [59] Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1157.

    [60] Ts 65, 69 - 70.

17. Dr Wojnarowska was of the opinion that the respondent's risk of sexual reoffending in the future is chronic and in the very high range.  This risk could not be adequately managed in the community without very high intensity supervision and the almost constant availability of a support network.[61]  In oral evidence, she said that the necessary supervision would be one-to-one and at all times.[62]  However, it was a factor in his favour that he had been frank and honest when interviewed.  This has demonstrated that he has some planning skills and is motivated to receive further treatment.[63]

    [61] Ts 70; Report of Dr Wojnarowska dated 7 May 2018, BOM, page 1157.

    [62] Ts 71 - 72.

    [63] Ts 69.

18. In the event that a supervision order was contemplated, Dr Wojnarowska recommended that the respondent would require ongoing psychological counselling to consolidate his treatment gains and facilitate transition into the community.  Antidepressant medication to stabilise his moods may also have positive results.  Notwithstanding the respondent's negative view as to the efficacy of anti‑libidinal medications, Dr Wojnarowska thinks that a careful titration of anti‑libidinal medication with adequate medical supervision could be of assistance in reducing the respondent's deviant sexual fantasies.[64]

    [64] Ts 70 - 71; Report of Dr Wojnarowska dated 7 May 2018, BOM, pages 1157 - 1158.

19. 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.[65]

    [65] Ts 73 - 74, 83.

Other reports - s 7(3)(b)

Dr Elizabeth Vuletich

1. Dr Elizabeth Vuletich is a clinical neuropsychologist.  She saw the respondent in April 2018 for the purpose of assessing his cognitive abilities.  She conducted an interview with the respondent and administered a number of tests.

2. One of the tests of intellectual functioning was the Wechsler Adult Intelligence Scale (WAIS).  This test provides four index scores that contribute to a Full Scale Intelligence Quotient.  When this test was administered, the respondent's subtest scores varied notably, ranging from extremely low to the average range.  The findings indicated that the respondent's psychomotor processing speed capacity is considerably lower than his general verbal and non‑verbal intellectual abilities and his working memory capacity.  Dr Vuletich believes that it is likely that the respondent's motor skills, and any underlying cerebral palsy, would be a contributing factor in his slower performances.  Given the discrepancies, his full scale IQ was not considered interpretable.  An alternative instrument, the General Ability Index, was considered to be a more appropriate estimate of the respondent's overall intellectual ability.  The respondent produced a low average score using this index.  The WAIS profile would support 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.  These results are not commensurate with a diagnosis of intellectual disability.[66]

   [66] Report of Dr Vuletich dated 4 May 2018, BOM, pages 1113 - 1115.

3. In her report, Dr Vuletich states that the current neuropsychological assessment results call into question previously reported borderline intellectual deficit.  The obtained results were not commensurate with a diagnosis of intellectual disability.  Further, based on current extensive assessment, aside from relative weaknesses in high‑level visuospatial ability, motor speed and social cognition, there was no evidence of marked cognitive impairments.  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.  Nor does there appear to be any evidence of a decline in his cognition.[67]

   [67] Report of Dr Vuletich dated 4 May 2018, BOM, page 1120.

4. Dr Vuletich makes reference to the greater incidence of autism spectrum disorders (ASD) in persons diagnosed with cerebral palsy, compared with the broader population.  She suggests that it would be worthwhile considering a comprehensive 'work‑up' of adult autism, as this could inform future treatment approaches and support within the community should the respondent be released.[68]

Dr Adam Brett

[68] Report of Dr Vuletich dated 4 May 2018, BOM, page 1120.

1. Dr Adam Brett is a consultant psychiatrist with experience in the diagnosis of ASD.  Pursuant to an order of the court, he produced a report which focused on that issue.  He was not asked to conduct, and did not conduct, any risk assessment.

2. Dr Brett conducted an interview with the respondent on 5 June 2018 and reviewed other reports setting out the respondent's history.  After considering the diagnostic criteria for ASD, Dr Brett concluded that on the evidence available to him he did not believe that the respondent fulfilled the diagnostic criteria for ASD.  He 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.[69]

   [69] Report of Dr Brett dated 3 August 2018 (Exhibit 2), page 10.

3. Dr Brett stated that the respondent clearly has outstanding unmet clinical and social needs.  If he were to be released into the community he would need significant support, and this has been highlighted in reports for a number of years.  These would include stable accommodation, meaningful daytime activity, social training and mentoring, and appropriate recreational activities.[70]

Dr Mandy Vidovich

[70] Report of Dr Brett dated 3 August 2018 (Exhibit 2), page 10.

1. Dr Mandy Vidovich is a clinical neuropsychologist.  She was also asked to produce a report addressing whether the respondent meets the diagnostic criteria for ASD.  She was also requested by the State to give an opinion as to whether the respondent has an intellectual or cognitive disability.[71]

   [71] Report of Dr Vidovich dated 21 September 2018 (Exhibit 3), page 1.

2. Dr Vidovich conducted an interview with the respondent, administered cognitive tests and reviewed documentation relevant to the respondent's history.[72]

   [72] Report of Dr Vidovich dated 21 September 2018 (Exhibit 3), page 1.

3. Dr Vidovich's conclusions were that the respondent does not meet the diagnostic criteria for an intellectual disability.  He 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.  There was no consistent level of impairment suggestive of an acquired cognitive disability.  There were, however, indications of a specific learning disorder with impairments in reading and written expression.  The possibility of a mild attentional disorder is raised by his profile, though this is more difficult to confirm.  It is also Dr Vidovich's opinion that the respondent does not meet the diagnostic criteria for ASD.  His problems with aspects of social cognition and interpersonal relationships can be explained by components of his psychosocial history, learning difficulties, personal characteristics and behaviours, and a lengthy period of time in a custodial environment.[73]

Ms Julie Hasson

[73] Report of Dr Vidovich dated 21 September 2018 (Exhibit 3), page 8.

1. Ms Julie Hasson is a forensic psychologist who is presently in private practice and engaged under contract to the Department of Justice.[74]  She was retained to produce a report to assist with identification of relevant supervision, management and intervention strategies should the respondent be made subject to an order under the Act.  She conducted three interviews with the respondent in March and April 2018.[75]  In her report, Ms Hasson considered the respondent's presentation, his background, history of offending and his treatment history.[76] 

   [74] Ts 99; Report of Ms Hasson dated 26 April 2018, BOM, page 1104.

   [75] Report of Ms Hasson dated 26 April 2018, BOM, page 1091.

   [76] Report of Ms Hasson dated 26 April 2018, BOM, pages 1092 - 1098.

2. She also administered the Millon Clinical Multiaxial Inventory (3rd edition) (MCMI-III).  This is a questionnaire used to assess personality traits and emotional adjustment, as well as screen for the presence of psychological and clinical issues.  Ms Hasson noted that whilst the test results were considered valid, the respondent's responses were suggestive of a 'cry for help' and described a person who is experiencing a significant degree of psychological difficulty, particularly regarding emotional regulation.  The profile was consistent with previous assessments, with the exception that the respondent appears to be now less reliant and dependent on others.  This may be due to his small circle of support and the amount of time that he spends pursuing solitary activities.[77]

   [77] Report of Ms Hasson dated 26 April 2018, BOM, page 1099.

3. The results showed significantly elevated scores on the depressive, borderline, anxiety and dysthymia scales.  Individuals with such profiles have unstable and unpredictable moods, characterised by inappropriate or extreme emotional reactions that can last several days or just a few hours.  Such individuals may have highly impulsive behaviours, including risky, self‑destructive and dangerous conduct that can be sexual in nature, and a history of unstable relationships with others such that feelings can change drastically from love to hate.  Feelings of hostility and fear of abandonment and rejection, real or perceived, are also very common.  A dysfunctional and distorted self‑image is common, as are feelings of isolation, boredom and emptiness.  Such individuals are known to have trouble feeling empathy for others.[78]

   [78] Report of Ms Hasson dated 26 April 2018, BOM, page 1099.

4. The presence of antisocial, passive aggressive, avoidant, self‑defeating and schizotypal personality traits was also noted.  Individuals with such traits may initially attract sympathy and support from those around them.  However, over time, their interpersonal style leads to distancing and rejecting behaviours from others, thereby reinforcing their fears and concerns and sense of worthlessness and unlovability.  Feelings of anger and resentment often surface.  However, these feelings are rarely expressed appropriately.[79]

   [79] Report of Ms Hasson dated 26 April 2018, BOM, page 1099.

5. Ms Hasson utilised the STABLE‑2007 instrument.  The normative data used by this instrument was collected from offenders who had received community‑based supervision orders and those who had been released from custody on completion of a prison term following conviction for sexual offences.  Ms Hasson noted that research has yet to establish whether this instrument provides accurate assessments of criminogenic needs among offenders who are still in prison while serving long sentences.  The instrument was not used on this occasion to estimate or comment on the respondent's future risk of sexual offending.  Rather, it was used to identify outstanding treatment targets that may warrant a further intervention or the development of risk management strategies.[80] 

   [80] Report of Ms Hasson dated 26 April 2018, BOM, pages 1099 - 1110.

6. After taking into account the dynamic risk factors assessed in the STABLE‑2007 instrument, Ms Hasson made a number of recommendations in the event that the respondent is made subject to a continuing detention order.  She recommended that the primary focus of any intervention should be on addressing unmet criminogenic treatment targets through individual intervention with the forensic psychological service.[81]  I have interpreted this as meaning one‑on‑one counselling with a psychologist.  A number of potential treatment targets were identified.  These included negative emotionality, deviant sexual interests, sexual preoccupation and sex as coping.  Ongoing maintenance of risk management strategies and managing high‑risk scenarios also needed to be targeted.  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.[82]

   [81] Ts 109; Report of Ms Hasson dated 26 April 2018, BOM, page 1102.

   [82] Report of Ms Hasson dated 26 April 2018, BOM, pages 1102 - 1103.  See also ts 109 - 110.

7. In the event that the respondent is released on a supervision order, Ms Hasson recommended that a number of dynamic risk factors identified in the STABLE‑2007 instrument should be monitored.  This included the need to address negative emotionality, deviant sexual interests, sexual preoccupation and sex as coping.  These factors need to be addressed whether the respondent remains in custody or is released into the community.  Attention also needed to be given to the respondent's expressed desire for companionship, the need for him to have structured activity and the need for individual counselling.[83]

   [83] Ts 110 - 111; Report of Ms Hasson dated 26 April 2018, BOM, page 1103.

The propensity to commit serious sexual offences in the future - s 7(3)(c)

1. The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law.[84]  In GTR, Murray AJA stated at [178] that:

   [Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim.  The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.

   [84] GTR.

2. 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. 

3. 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.

4. 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.

5. 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.

The need to protect members of the community from that risk - s 7(3)(i)

1. As I have noted, the psychiatrists both predict that in the event that the respondent reoffended, the offence would involve a sexual assault upon a young child.  It can be safely assumed that any offence of this nature would likely cause very considerable fear and long‑term psychological harm.  The possibility of physical harm can also not be discounted.  There is clearly a need to protect members of the community from the risk of offences of this type.

Any other relevant matter - s 7(3)(j) - community supervision assessment

1. Ms Lisa Rathmann, a senior community corrections officer with the Community Offender Monitoring Unit of the Department of Corrective Services, has provided a community supervision assessment report and gave oral evidence at the hearing.  The matters addressed in the report include whether the respondent has a community support network, accommodation and employment prospects.[85]

   [85] Report of Ms Rathmann dated 8 May 2018, BOM, pages 1120 - 1127.

2. The report also canvasses the respondent's behaviour whilst in prison.  At the time the report was prepared, the respondent was located in a protection unit.  He was studying general education and receiving level 3 gratuities.  He was described as a courteous prisoner who does not come to the negative attention of staff.  However, during his term of imprisonment the respondent has demonstrated poor coping skills, often threatening to self‑harm, as a result of interpersonal conflict or disagreement with decisions.  He acknowledges often struggling to cope with ridicule or bullying and with the lack of control in his current circumstances.[86]

   [86] Report of Ms Rathmann dated 8 May 2018, BOM, page 1124.

3. Over his long current period of imprisonment he has incurred a number of prison charges.  Most of these have involved non‑compliance with orders, verbal aggression or threats to other prisoners.  He has had no such charges for the last seven years.[87]

   [87] Report of Ms Rathmann dated 8 May 2018, BOM, pages 1124 - 1125.

4. Given the extensive resources needed to provide close supervision in the event that the respondent was to be released into the community, it is relevant to consider whether those resources are available.  Ms Rathmann reports that the respondent does not meet the eligibility criteria for funding from the Disability Services Commission.  Nor would he qualify for the National Disability Insurance Scheme because recent reports have stated that he does not have a diagnosis of an intellectual disability or ASD.  Funding for a full time carer would not be available.[88]

   [88] Ts 121; Report of Ms Rathmann dated 8 May 2018, BOM, page 1125.

5. In regard to accommodation, the respondent was referred to a supported accommodation program.  Ms Rathmann's report states that the program provider was continuing to meet with the respondent to review his eligibility.  However, they have raised concerns that their service would be unable to provide an adequate level of support, given the respondent's complex needs.  As a result, accommodation cannot be secured by this program provider at this time.[89]  In oral evidence Mr Rathmann confirmed that the provider had recently advised that the respondent does not qualify for their program.[90]

   [89] Report of Ms Rathmann dated 8 May 2018, BOM, page 1126.

   [90] Ts 120.

6. Community housing options have also been canvassed, though these do not entail any level of support other than the provision of accommodation.  A number of service providers have been contacted without success.  In one case, an in‑person assessment was required and this could not be facilitated in a prison setting.  In another case, there were no current vacancies and referrals were only taken on a day‑to‑day basis for persons requiring immediate residency.  In a third case, the service provider was currently reviewing their policies in relation to accepting sex offenders into their accommodation program.  This prevented the respondent from being referred to that service.[91]

   [91] Report of Ms Rathmann dated 8 May 2018, BOM, page 1126.

7. In these circumstances, there is currently no available accommodation for the respondent.  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.

8. In regard to community support, the respondent has advised that he would need considerable support upon release from custody.  He has said that he would require 24‑hour supervision, which he has described as being in close proximity to a support worker.  He has said that he would also require assistance to do shopping, budget his finances and to assist with his reintegration into the community.  He also believes he would require someone to provide emotional support and religious mentoring.  He believes that this support would be imperative to his risk management.[92]

   [92] Report of Ms Rathmann dated 8 May 2018, BOM, page 1126.

9. The respondent identified a former church pastor as his primary support person in the community.  However, several attempts to contact this person were unsuccessful.  Contact was established with the respondent's mother.  She confirmed that she has weekly telephone contact with the respondent.  She said that if he was released she would visit him in the community once or twice a fortnight.  However, due to her age, financial situation and mental state she was unable to provide any further support for him.[93]

   [93] Report of Ms Rathmann dated 8 May 2018, BOM, pages 1126 - 1127.

10. Contact was made with a service that had been engaged with the respondent during his prison term.  It was confirmed that a worker from that service had been in weekly contact with the respondent and was willing to provide him with some support upon his release via telephone or in person.  This would involve meeting in public settings for coffee or speaking on the telephone.  The person also advised that she may be able to refer the respondent to a bible study group.  Whilst this support would no doubt be helpful, it is clearly limited in scope.[94]

    [94] Report of Ms Rathmann dated 8 May 2018, BOM, page 1127.

11. In regard to employment, the respondent advised that he has no proposed employment on release from custody.  He has had limited previous employment experience, and obtaining employment would be an obvious difficulty.[95]

    [95] Report of Ms Rathmann dated 8 May 2018, BOM, page 1127.

12. If released on a supervision order, the respondent would be subject to global positioning system (GPS) monitoring.  GPS tracking, including the use of GPS exclusion zones, can be utilised to monitor and prohibit attendance to high‑risk areas in proximity to his proposed address.  Such exclusion zones could include areas where children are present, such as schools and childcare centres.  There are, however, limitations in respect of GPS tracking, as it does not indicate who the respondent is with and what he is doing.  The efficacy of such tracking must also be doubted given that some of the respondent's victims have been in areas that are not specifically identifiable as those in which unaccompanied children may be found, for example a fast food restaurant.[96]

    [96] Ts 121 - 122; Report of Ms Rathmann dated 8 May 2018, BOM, pages 1128 - 1129.

13. Ms Rathmann concluded her report by stating that if the respondent was to be released into the community he would require 24‑hour supervised and secure accommodation.  Accommodation of this nature is not currently available in the community.  As the respondent does not present with an intellectual disability or ASD he is not eligible for other sources of support.[97]

    [97] Report of Ms Rathmann dated 8 May 2018, BOM, pages 1130 - 1131.

Serious danger to the community

1. The respondent is a high risk of committing further serious sexual offences against children if he is not subject to a continuing detention order or a supervision order.  I have come to this conclusion based primarily upon his past offending history and the evidence of Dr Wynn Owen and Dr Wojnarowska, which I accept.  There are few indications that the risk of reoffending has been reduced by treatment of the respondent's deviant sexual interests over many years.  Nor does it appear to have been effectively treated by the use of anti‑libidinal medication.  I am satisfied to a high degree of probability that the respondent is a serious danger to the community.

Indefinite detention or supervision order

1. When considering whether a supervision order would adequately protect the community, it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of the respondent and his care and treatment.[98]

   [98] Section 18(2) of the Act.

2. 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.  Whilst the respondent has been assessed as having low average to borderline intellectual functioning, he is not considered to be intellectually disabled, nor does he have autism.

3. The respondent presently has no social support network, no arranged employment, no arranged further education and no available suitable accommodation.  These are all factors which are relevant in assessing whether the risk of reoffending can be managed in the community.  The lack of accommodation and social support also mean that the respondent is not a realistic candidate for release on a supervision order.  In any event, the respondent has significant unmet treatment needs that can only be realistically addressed in a custodial environment.

4. In my view, there are no conditions that would either be effective or adequate to manage the risk that the respondent currently presents, or reduce it to an acceptable level.  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.

5. 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 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.

Conclusion

1. Pursuant to s 17(1) of the Act, I order that Robert Bruce Newland be detained in custody for an indefinite term for control, care and treatment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AM
ASSOCIATE TO THE HONOURABLE JUSTICE HALL

9 NOVEMBER 2018