The State of Western Australia v Newland [No 3] - [2022] WASC 43

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NEWLAND [No 3] [2022] WASC 43
CORAM:   HALL J
HEARD:   7 FEBRUARY 2022
DELIVERED          :   7 FEBRUARY 2022
PUBLISHED           :   11 FEBRUARY 2022
FILE NO/S:   SO 3 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

ROBERT BRUCE NEWLAND
Respondent

Catchwords:

Criminal law - High risk serious offender - High Risk Serious Offenders Act 2020 (WA)-Review of continuing detention order - Whether respondent remains a high risk serious offender - Whether continuing detention order or supervision order appropriate - Lack of funding for adequate support in the community

Legislation:

High Risk Serious Offenders Act 2020 (WA)

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 [1998] HCA 62, [1988] 165 CLR 611
Newland v The Queen [2018] WASCA 124
The State of Western Australia v Newland [2018] WASC 344
The State of Western Australia v Newland [No 2] 2022 WASC 23
Yates v The Queen [2013] HCA 8, [2013] 247 CLR 328

HALL J:

This is the second review of a continuing detention order made by me in 2018: see The State of Western Australia v Newland [2018] WASC 344. The order was made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), which has since been repealed. The effect of the order is preserved by the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) which came into force on 26 August 2020.
The first review of the continuing detention order was heard on 5 December 2019. At the conclusion of that review, Fiannaca J affirmed the detention order: see The State of Western Australia v Newland [No 2] 2022 WASC 23.
By an application dated 23 July 2021, the State applied for the second review of the continuing detention order. The hearing of the review occurred on 7 February 2022.
At the conclusion of the hearing, I made findings that the respondent continued to be a high risk serious offender and that a supervision order was not appropriate. This was because the risk of reoffending can only be adequately managed with a level of support which, due to a lack of confirmed funding, is not presently available. There is also no suitable accommodation available to the respondent. In those circumstances, I affirmed the continuing detention order. I gave brief oral reasons and said that more detailed reasons would be published in due course.

Background

The respondent's personal history and his history of offending was set out in my initial decision when the continuing detention order was made. A brief summary of the offending is as follows.
The first independently confirmed incidents involving sexual conduct occurred on unknown dates around 1978 to 1979. At this time the respondent was aged between 17 and 18 years old. He 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. According to reports the incidents involved a 4‑year‑old girl and three 5‑year‑old boys.
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 boy on the bottom. He then followed the boy back up the escalator before asking if the boy wanted to go to the toilet with him. He was charged with assault in circumstances of aggravation, namely that the victim was a male child under the age of 17 years, contrary to s 313 and 322(5)(b) of the Criminal Code. He pleaded guilty and was sentenced on 4 September 1984 to a 12‑month good behaviour bond.
The next incident of sexual offending was dealt with by the District Court on 24 January 1985. The offences occurred on 16 June 1984, prior to the previous incident. On that date the respondent approached two children, a 3 1/2‑year‑old boy and a 4‑year‑old girl, at a playground. After offering to buy the children ice‑cream he took them in his vehicle approximately 40 kilometres east of Perth. After stopping the car, he got into the back seat with the children, removed his pants and their pants, and indecently dealt with each of the children by touching their genitals. He then took the children to his home, where he showered the children and got them on to his bed. He then 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.
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 counts of indecent dealing and not guilty to the 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 two years' imprisonment on each count with two of those sentences being cumulative, the total effective sentence therefore being four years' imprisonment with a minimum term of 12 months. 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.
On 19 February 1988, the respondent attended a public swimming pool. He followed a 6‑year‑old boy into the toilet area and pulled down the boy's bathers. He 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. That offence was dealt with at the same time as the next matter.
On 16 March 1988, the respondent attended a park where he saw a 5‑year‑old boy who was waiting to be picked up by his mother after school. He offered to give the boy a lift and then took him to Rockingham where they had a swim. He then took the boy to a motel where he 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 on to 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 pm that night and drove back towards Perth. The respondent asked the boy to get undressed and left him by the side of the road naked. The boy went to a house nearby and was returned by the police to his parents. 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.
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 noted that reports suggested that the respondent remained a risk to society and that the prognosis for any significant change in his sexual behaviour was considered to be poor. The sentencing judge 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 prevailed over personal factors. Sentences of three years' imprisonment were imposed on each count to be served concurrently. There was also an order that at the expiration of the sentences of imprisonment the respondent was to be detained at the Governor's pleasure, pursuant to s 662(a) of the Criminal Code (Repealed).
In 2017 and 2018, the respondent appealed against his convictions for two of the counts arising from the 1988 incident, namely the two counts of aggravated sexual penetration, contrary to s 324E of the Criminal Code. He also appealed against the order of 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.[1]
[1] Newland v The Queen [2018] WASCA 124.
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. 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.[2] These conclusions required resentencing the respondent on the remaining counts. He was resentenced to six 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.
[2] Chester v The Queen [1998] HCA 62, [1988] 165 CLR 611 and Yates v The Queen [2013] HCA 8, [2013] 247 CLR 328.
Whilst he was serving the original sentences, the respondent was convicted of a further offence of indecently dealing with a child aged under 14 years, contrary to s 183 of the Criminal Code. This offence occurred on 21 January 1988, prior to the respondent being imprisoned. The respondent was again at a public swimming pool. He followed a 5‑year‑old boy into a toilet cubicle and locked the door. He admitted to playing with, and masturbating, the boy's penis. He also admitted to exposing his erect penis to the boy. He also admitted he forced the boy to touch his penis. On 18 October 1988 he was sentenced in the Perth Children's Court to 6 months' imprisonment to be served concurrently with the sentence he was then serving.
The respondent was released on parole on 15 December 1995. 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. The boy was standing at a urinal and having difficulty undoing his pants. The respondent asked if he could help and the boy agreed. The respondent led the boy into a cubicle and closed and locked the door. He waited for the boy to urinate and then fondled the boy's penis. He then allowed the boy to leave the cubicle. He 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.
The respondent remained in prison after the commission of the last offences. After the expiration of his fixed terms of imprisonment he was detained on the basis of his indefinite sentence. When that order was set aside on appeal, he was held on an interim detention order under the DSO Act until the continuing detention order was made on 1 November 2018.

Relevant legal principles

On a review of a continuing detention order under the HRSO Act, the court has to consider, first, whether the person remains a high risk serious offender and, second, if so, whether the appropriate order is to continue the detention order or make a supervision order.[3]
[3] HRSO Act, s 68.
An offender is a high risk serious offender if the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.[4]
[4] HRSO Act, s 7.
The State bears the onus of satisfying the court that an offender is a high risk offender. In considering that issue, the court must take into account the matters listed in s 7(3) of the HRSO Act.
If the court is satisfied that the offender is a high risk serious offender, the remaining issue is whether a continuing detention order or a supervision order is the appropriate outcome. A court cannot make a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order. The standard conditions are those contained in s 30(2) of the HRSO Act and include reporting, supervision and electronic monitoring. The onus is on the offender to satisfy the court that he will substantially comply with the standard conditions.[5]
[5] HRSO Act, ss 29(1)(2).
In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[6]
[6] HRSO Act, s 68(2).
The HRSO Act allows for periodic reviews of a continuing detention order. Such reviews allow for the possibility of change. If the offender is found to no longer be a high risk serious offender, the continuing detention order must be rescinded. If the offender remains a high risk serious offender, behavioural changes or improvements in management options may make a supervision order a viable possibility.[7]
[7] HRSO Act, ss 64, 65.

Evidence

At the hearing of this review application, I received in evidence a book of materials comprising two volumes dated 18 October 2021 and 5 January 2022. The book of materials contained reports prepared for this review, including a psychiatric report by Dr Gosia Wojnarowska, a treatment progress report by Dr Kathryn Riordan, and a community supervision assessment report by Ms Emma Cashmore. The books of materials also included prison records, medical records, previous judgments and previous treatment reports.
At the hearing, oral evidence was received from Dr Wojnarowska, Dr Riordan and Ms Cashmore.
The respondent elected not to give or adduce any evidence.

Evidence of Dr Gosia Wojnarowska

In her report, Dr Wojnarowska confirmed an earlier diagnosis that the presentation of the respondent is consistent with the presence of sexual deviance, namely paedophilia (non‑exclusive type). This diagnosis is supported by the respondent's self‑reported sexual attraction to young children which has been present since his early adolescence.[8]
[8] Exhibit 2, 415.
Dr Wojnarowska had previously interviewed the respondent for the purpose of earlier reports. For the purpose of this review, she interviewed the respondent on 1 December 2021. He reported feeling depressed and abandoned. He said that he had recently completed a program run by the prison chaplain during which he had realised that his problems are spiritual. He expressed a belief that he was possessed by an evil spirit and that this was the reason he was unable to control his thoughts at times. This led him to believe that the only effective treatment would be of a spiritual nature and that psychological counselling would not address his needs. For this reason, he had agreed to terminate psychological counselling in August 2021.[9]
[9] Exhibit 2, 413
When the respondent was questioned about his past offending, he stated that it 'was evil and against God'. He said that he would not reoffend as he would be able to walk away from situations that triggered him. When questioned as to whether he was confident that he would be able to apply appropriate judgement, he acknowledged that he required improvement in this area. He admitted to having violent thoughts towards adults and children, which included fantasies of raping people against whom he had a grievance and raping their children. He identified his perception of unfair treatment as being the main trigger for the re‑emergence of such thoughts. His sexual drive and frequency of masturbation increased during times of stress or heightened emotional state. He expressed a belief that he would control these thoughts if released into the community.[10]
[10] Exhibit 2, 414.
The respondent acknowledged that he had no accommodation and no current prospects of securing it in the near future. He reported being presently housed in a single cell in the prison, where he spends time either watching television or making things out of cardboard. He has regular telephone contact with his mother, who is in a nursing home and suffers from dementia. He has no contact with his siblings and his father died 10 years ago. He denied watching pornography or being sexually preoccupied.[11]
[11] Exhibit 2, 414.
Dr Wojnarowska undertook an assessment of the respondent's risk of serious reoffending using the Static‑99R and RSVP assessment tools. The respondent's score on the Static‑99R was 7, which places him in the level IVb or the well above average risk range. That score has reduced by 2 points since the last assessment due to the respondent's age. In oral evidence, Dr Wojnarowska said that this reduction was less justified in the case of offenders with paedophilia as experience had shown that their tendency to offend did not markedly reduce with increasing age, in contrast to other types of sexual offender. However, the score reduction was required by the Static‑99R rules as that test does not discriminate between different types of sexual offenders. In any event, the score of 7 places the respondent into a class of offenders who have a five‑year recidivism rate of between 36% to 45%. Dr Wojnarowska accepted that the Static‑99R test does not measure all relevant risk factors and that the respondent's recidivism risk may be higher or lower than that indicated.[12]
[12] ts 217-218.
Using the RSVP (Risk of Sexual Violence Protocol) assessment tool Dr Wojnarowska assessed the respondent against a number of risk related factors. These included sexual violence history, psychological domain, mental disorder, social adjustment, problems with treatment and manageability.[13]
[13] Exhibit 2, 416.
In regard to sexual violence history, Dr Wojnarowska noted that the respondent had offended against 12 children with the majority being males who were unknown to him. She noted that according to his own accounts, there are also other victims in respect of whom he has never been charged. The respondent reoffended within one year of release after completing a sex offender treatment program and has undertaken five intensive sex offender treatment programs in total. She noted that all of his sexual offending was characterised as predatory and opportunistic in nature.[14]
[14] Exhibit 2, 416.
As to the psychological domain, Dr Wojnarowska said that there had been no change in respect of this factor since her last assessment. In her last assessment, she had concluded that the respondent has insight into his risk of sexual violence and the nature of his sexual interest. She said that there was no evidence of minimisation or denial, or of attitudes that support or condone sexual violence. She also noted that the respondent had incurred a number of recent incidents whilst in prison that indicated he had not been able to cope well with challenging or stressful situations.[15]
[15] Exhibit 2, 417.

As to mental disorder, Dr Wojnarowska said there was no evidence of a major mental illness. However, the respondent has difficulty controlling his emotions, and his propensity to have a low mood is directly related to his risk of reoffending. His sexual interest in children has been chronic and requires continuous management by the respondent and others involved in his care.[16]
[16] Exhibit 2, 417.
As to social adjustment, Dr Wojnarowska said that whilst the respondent had expressed an interest in developing relationships in the community, he has chronic interpersonal difficulties which mean that he is unlikely to be successful. Any social contact in the community is likely to be limited to his elderly mother and church members. His sensitivity to comments perceived as derogatory could trigger the cycle of offending.[17]
[17] Exhibit 2, 416.
As regards problems with treatment, Dr Wojnarowska noted that this had been addressed in previous reports. The respondent has demonstrated that he has the ability to learn new material and remember it well. He does not have cognitive limitations that would impede his ability to implement strategies when required. However, the respondent has reoffended after receiving both individual and group specific treatment. Dr Wojnarowska noted that the respondent is now of the opinion that only spiritual treatment in the form of 'deliverance' would be beneficial. She said this was of concern and could potentially distract the respondent from other treatment options such as psychological counselling. His expectation that he would be cured after a series of sessions with the prison chaplain suggested naivety and the lack of motivation to work through criminogenic needs, instead expecting a simple cure.[18]
[18] Exhibit 2, 417.
As to manageability, Dr Wojnarowska said the respondent had demonstrated good planning skills, though he admitted during interview that his judgement of social situations requires improvement. He is highly impulsive which is a risk factor for the imminence of offending when an opportunity arises. Dr Wojnarowska said that victim safety planning would be difficult to implement as the respondent has a history of abducting children and being highly opportunistic.[19]
[19] Exhibit 2, 418.
Dr Wojnarowska considered the likely risk scenario in the event that the respondent was to reoffend. She said that the kind of sexual violence that the respondent might commit is likely to be similar to that of his prior offences. Any perceived insults including a failed attempt at friendship would result in the respondent becoming emotionally heightened and angry. This is significant as the respondent has reported that his increased sexual drive and deviant fantasies occur during periods of anger and stress. The likelihood is that he would attend a place where he is likely to encounter children such as a swimming pool, fast‑food restaurant, public playground or public transport. He would then await an opportunity to approach an unsupervised child and engage that child in conversation. It is unlikely he would use elaborate tactics and he does not have a history of prolonged grooming. Rather, he is likely to act impulsively in abducting or sexually assaulting a child within minutes of encountering them.[20]
[20] Exhibit 2, 418.
Although the respondent now says that he would walk away from any trigger, Dr Wojnarowska stated that it was unlikely he would be able to do so. Further, his sensitivity to perceived insults, and the effect this has on his moods, would be difficult to monitor in a community setting. Feelings of loneliness and isolation may also be relevant. Whilst the respondent has not acted on his sadistic or homicidal fantasies, Dr Wojnarowska said that that kind of scenario when he is particularly hurt and seeking revenge could not be entirely excluded.[21]
[21] Exhibit 2, 418.
In the event that the risk scenario was realised, the psychological harm to the victim would be very serious. Physical harm could also be at the high end of the spectrum. The imminence of the respondent's potential offending is of a concern due to the factors described by Dr Wojnarowska. She said that the warning signs that might signal that a risk of offending is increasing included the respondent becoming anxious, withdrawn, missing reporting sessions and frequenting places where children congregate.[22]
[22] ts 220.
In her report, Dr Wojnarowska concluded that the respondent's risk of sexual reoffending remains very high and has not changed significantly since her last assessment. She noted that the respondent had declined to engage in further psychological counselling and said that although his spiritual journey may assist him it would not be sufficient to address his criminogenic needs. Dr Wojnarowska said that if the respondent was not subject to an order under the HRSO Act he is at high risk of reoffending in a sexual manner.[23]
[23] Exhibit 2, 419.
Dr Wojnarowska made a number of recommendations for future treatment. She said that the respondent required ongoing psychological counselling with a focus on emotional management, risk management and his sexual interest in children. A mood diary would be helpful. She said that it would be hoped that engagement with a counsellor would enable the respondent to disclose the emergence of factors that could potentially lead to reoffending.[24]
[24] Exhibit 2, 419.
Dr Wojnarowska also recommended that the respondent continue with his antidepressant medication, which can also assist with the reduction in libido. In oral evidence, she said that the current dose rate of the medication was insufficient to produce this latter effect and it would be desirable for the dose to be reviewed and increased if possible. She also noted that the respondent had previously had a trial of antilibidinal medication but was opposed to using it again because he had suffered unpleasant side effects. She said it would be worthwhile for the respondent to be referred to a psychiatrist in the prison to discuss the range of medications that are now available so that he could reconsider his position.[25]
[25] ts 220-221.
Dr Wojnarowska concluded by saying that the risk of reoffending was such that the respondent required a high level of supervision if he was to be released in the community. She noted that it was unlikely that he would ever receive sufficient funding to enable 24 hour/7 day a week supervision. In her opinion, 12 hours of supervision would be the minimum to negate his risk of reoffending, but this would need to be paired with a 12 hour night-time curfew and closely restricted GPS monitoring.[26]
[26] Exhibit 2, 419.
In cross‑examination it was put to Dr Wojnarowska that the respondent's attitude to psychological counselling had now changed and that he was willing to re‑engage. She saw this as a positive development. She also said that psychological counselling could operate in tandem with religious counselling. She maintained the view that religious counselling was not sufficient in itself as it does not address the pathways to offending and tends to be seen by the respondent as relieving him of personal responsibility.[27]

Evidence of Dr Kathryn Riordan

[27] ts 227.

Dr Riordan is a senior forensic and clinical psychologist with the forensic psychological services of the Department of Justice. She has not had any responsibility for delivering treatment to the respondent but was tasked with preparing a treatment progress report. For this purpose, she drew on interviews with the respondent and access to his case file.[28]
[28] Exhibit 2, 394 – 295.
The respondent's treatment history has been detailed in previous judgments. It is only necessary for present purposes to consider treatment progress since the last review.
Dr Riordan stated that since the last review, the respondent had participated in weekly individual psychological counselling until February 2020. At that time, his psychologist, Ms Place, changed the frequency of contact due to restrictions with prison access that occurred due to the impact of COVID‑19. This resulted in a transition to monthly welfare telephone calls. This was supplemented by supportive counselling with a social worker from the prison wellbeing service. This counselling was offered between 9 April 2020 and 17 June 2020 for a total of eight sessions. Ms Place recommenced face‑to‑face meetings with the respondent on 8 September 2020. There was then a transition to a new psychologist because Ms Place was changing employment.[29]
[29] Exhibit 2, 399.
Sessions with Ms Place focused on establishing the foundation of cognitive behaviour therapy; that is, problem solving and helpful thought patterns, challenging unhelpful thinking, distress tolerance, emotional management and emotional regulation using meditation. Ms Place reported that the respondent made a small shift towards engaging in assertive problem solving however his skills in this area were inconsistently applied. The respondent often reverted to previously established passive aggressive methods of problem solving. He also made some small gains with increased insight into interpersonal relationship deficits.[30]
[30] Exhibit 2, 406.
Ms Place reported that counselling aimed specifically at addressing the respondent's sexual offending and deviant sexual interests was limited. The respondent identified a range of previously learnt avoidance-based strategies to manage triggers for deviant sexual arousal. He reported a reduction in the use of sexual fantasy and an associated decline in the frequency of masturbation. He said that regular reading of the Bible and prescribed medication had assisted him in achieving this goal. Ms Place formed the view that the respondent had demonstrated good insight into his deviant sexual interest but lacked robust strategies to manage this interest and did not possess adequate strategies to manage his use of sex as a form of coping. His strategies to manage high risk situations were largely externally based, inadequate and impractical.[31]
[31] Exhibit 2, 397-398.
Ms Place worked to develop a behaviour management plan to assist prison staff in their management of the respondent. This plan was aimed at increasing positive interpersonal engagement with staff, developing an incentive based schedule, increasing self‑efficacy and allowing time for the respondent to address matters with staff that he perceived as problematic. A scheduled time was arranged for the respondent to meet with the prison unit manager on a weekly basis to allow the respondent an opportunity to raise areas of concern. Incentives were also put in place to offer the respondent a placement in a self‑care unit and possible transfer to minimum security on successful engagement in education and compliance with the plan. The respondent was able to achieve some of the goals, such as single cell and placement in a self‑care unit, however he was inconsistent as to whether he wished to be placed in a minimum security prison. Ms Place also noted that both the respondent and prison staff fluctuated in their willingness and ability to consistently adhere to the plan.[32]
[32] Exhibit 2, 397.
After the change of psychologist in September 2020, there were a further 10 individual counselling sessions with a new psychologist, Dr George. A number of these sessions were disrupted due to issues associated with COVID‑19. Dr George noted that the respondent had fluctuating motivation but had engaged adequately. The respondent was able to identify some previously established and effective coping strategies and expressed an interest in extending his skills and his capacity to cope with stressors in both the prison and community setting.[33]
[33] Exhibit 2, 397.
Dr George encouraged the respondent to engage in tasks between sessions, including physical exercise, which the respondent said had improved his mood. However, the respondent lacked discipline in completing such tasks on a regular basis. He did demonstrate insight into interpersonal difficulties and the failure to develop relationships often left him feeling lonely and rejected. He reported that he felt he had made little progress in developing skills to initiate and sustain healthy interpersonal relationships.[34]
[34] Exhibit 2, 398.
Dr George said that whilst sexual deviancy had been addressed, and it was possible that the respondent had made some progress in managing his deviant sexual interest, this was difficult to objectively assess. The respondent had previously asserted that he would be unlikely to disclose deviant sexual thoughts and it was possible that he had minimised the extent of them during treatment.[35]
[35] Exhibit 2, 398-399.
In September of 2021, the respondent was reallocated to a third psychologist, Mr Summerton, after Dr George ceased her employment with the Department of Justice. The respondent had two sessions with Mr Summerton, in which he expressed a view that his treatment needs were primarily within the realm of spirituality. He expressed the view that his deviant sexual interests were the function of evil spirits. He was advised that the function of psychological counselling was to address his offending behaviour and other aspects of his psychological functioning. As such, psychological counselling would not occur within an 'evil spirits framework'. In these circumstances, the respondent agreed to terminate further psychological counselling.[36]
[36] Exhibit 2, 399.
Although individual psychological counselling from the forensic psychological services unit ended in September 2021, the respondent was able to access some other services. These included the psychological wellbeing service at Acacia Prison, however, the purpose of this service was to deal with acute issues arising in prison rather than addressing issues of sexual deviancy or behaviours relevant to the risk of further sexual offending.[37]
[37] Exhibit 2, 399.
Dr Riordan confirmed that the respondent had sought spiritual guidance and intervention from the chaplain at Acacia Prison. The chaplain had been spoken to and stated that he had been meeting with the respondent at his request for about four months (as at 19 November 2021). The respondent had initially sought 'deliverance' (that is, the removal of evil spirits) and the chaplain had advised that such a quick‑fix approach was not appropriate.[38]
[38] Exhibit 2, 400.
The focus of contact with the chaplain was on support and pastoral care. The chaplain and the respondent had worked through a book titled 'Soul Care' to facilitate discussion and self‑reflection. The chaplain advised that whilst he believes that spiritual growth and development can assist in rehabilitation, his contact with the respondent was not specifically aimed at reducing his risk of reoffending.[39]
[39] Exhibit 2, 400 – 401.
The discussions with the chaplain were around interpersonal difficulties, rejection, abandonment, adverse early childhood experiences, difficulties distinguishing between fantasy and reality, experience of anger and the respondent's desire for revenge. The chaplain said that the respondent had experienced a range of interpersonal difficulties and that he tended to self‑sabotage and be manipulative and immature. The chaplain was willing to continue to offer chaplaincy services to the respondent, though not necessarily in accordance with the respondent's demands. The chaplain envisaged that he would see the respondent approximately every three weeks.[40]
[40] Exhibit 2, 401.
In oral evidence, Dr Riordan said that if the respondent's attitude to psychological counselling had changed, a psychologist could be made available to him to resume counselling. She agreed that religious instruction from the chaplain was not inconsistent with psychological counselling. She said that there would be benefit in the chaplain and the psychologist communicating to ensure that their efforts were complementary.[41]
[41] ts 230-231.
Dr Riordan concluded by saying that the respondent had engaged in an extensive amount of treatment over a 42 year period. He has previously been assessed as having developed and maintained a sound understanding of the dynamic proximal and situational risk factors that have underpinned his sexual offending in the community. Future counselling intervention is contingent on his treatment readiness and will form a minor part in a multi‑disciplinary treatment approach to risk management and intervention, which would include support from the National Disability Insurance Scheme, and such other support services as are necessary.[42]

Evidence of Emma Cashmore

[42] Exhibit 2, 405 – 406.

Ms Cashmore is a senior community corrections officer and the officer assigned to the respondent. For the purposes of this review, she prepared a report dated 4 January 2022. That report deals with progress since the last hearing and the availability of services and accommodation in the community.[43]
[43] Exhibit 2, 420.
Ms Cashmore stated that since the last review, the respondent has not incurred any prison charges or received any loss of privileges. However, in that period he has been involved in 10 incidents, predominantly related to sudden illness and/or injury. Of particular concern was an incident on 29 September 2021 relating to abuse and threatening behaviour to a female prison unit manager. Records indicate that the respondent threatened to assault the unit manager with a frozen water bottle. He later admitted the threat and said that he made it out of frustration because he perceived that the unit manager picked on him. Ms Cashmore said that this incident had not resulted in a prison charge. However, she said that it may have an adverse effect on any application by the respondent for a change to his security rating.[44]
[44] Exhibit 2, 421-422.
Ms Cashmore said that the respondent had engaged in an education program since the last review, and this entitled him to receipt of level 3 gratuities. Senior counsel for the respondent later informed the court that the respondent had completed his course in July 2021. He had been permitted to continue attending the education unit on an informal basis for some months, but this had since ceased. It was understood that he was unable to access other education opportunities, either because there were no courses suitable for his particular needs or because his future detention status was uncertain given the pending review. Ms Cashmore reported that staff had indicated that the respondent completed all necessary tasks during his education course in a timely manner and had actively engaged in class activities.[45]
[45] Exhibit 2, 422.
Following the last review, the respondent's then corrections officer and then psychologist (Ms Place) had prepared a management plan in an attempt to reduce the amount and frequency of the respondent's complaints. It was hoped that this might address some of his feelings of frustration and anger. The plan included the following components:
1.Weekly catch-up meetings with his prison unit manager, ensuring that the person undertaking these meetings is consistent and that the meetings occur in an appropriate space.
2.The catch-up meetings to be about unit issues only and the respondent is not to raise medical issues or issues outside the unit manager's control in this forum to ensure they remain productive.
3.If the respondent is able to maintain his placement as a student in education with no disruptive behaviour, including walking out or being in conflict with other students, then consideration can be given to a transfer to another unit with enhanced care and possibly single cell placement.
4.If the respondent is able to maintain this enhanced care placement for a period of approximately six months without any issues, then consideration be given to transfer to a minimum security environment and/or self‑care unit, if supported by the court and if the respondent is accepted by the receiving prison.[46]
[46] Exhibit 2, 422.

Ms Cashmore reported that this plan was implemented and initially achieved some success. The respondent was placed into a single cell and requested consideration for progress to a self‑care unit. However, when moved to the self‑care unit he received five warnings, one which related to poor personal and cell hygiene, and others for failing to present for muster. This resulted in him being regressed back to a non- self‑care unit.[47]
[47] Exhibit 2, 422.
There was also mixed success with the check‑up meetings. Custodial staff reported that the respondent only presented for these meetings when specific officers were rostered on because he perceived that some officers were more receptive to his concerns than others. After being regressed from the self‑care unit, the manager of the unit into which he was placed was of the view that the meetings were unnecessary due to the small cohort of prisoners in the unit. This resulted in the respondent continuing to regularly express concern about his prison placement and to have grievances regarding his treatment by custodial staff. Ms Cashmore said that it appeared that the respondent had often misinterpreted his interactions with prison staff.[48]
[48] Exhibit 2, 423.
Ms Cashmore reported that the Community Offender Monitoring Unit (COMU) had been working towards a viable plan for possible release of the respondent on a supervision order. She said that there were ongoing barriers to the compilation of such a plan. One of these barriers was due to the stance of the National Disability Insurance Agency (NDIA), which has stated that it will no longer provide confirmation of support hours that would be funded if the respondent was released into the community until a confirmed release date is known.[49]
[49] Exhibit 2, 424.
A National Disability Insurance Scheme (NDIS) plan with total funding support of $21,312.67 was in place and due for review on 28 May 2021. One of the services that was funded was a functional capacity assessment by an occupational therapist. The purpose of that assessment was to provide recommendations regarding the supports and services the respondent required to address his unmet disability needs and to provide recommendations for ongoing support to be funded by the NDIS. An occupational therapist completed the report on 2 November 2020. This report included a recommendation for funding for supported independent living in shared accommodation with up to three other people with 24 hour/7 day a week support. Recommendations were also made for funding a community support worker for at least 30 hours a week, 80 hours of flexible therapy services, 20 hours of occupational therapy, at least 40 hours of psychology services, 20 hours of physiotherapy, at least 40 hours of positive behaviour support and at least 60 hours of specialist support coordination.[50]
[50] Exhibit 2, 424-425.
An amended 12‑month NDIS plan was implemented on 15 December 2020 with total funded supports of $24,799.96. This figure clearly did not include funding for supported independent living (and at least some of the other supports recommended). Notwithstanding this, a quote for supported independent living at a suitable hostel was prepared and submitted to the NDIA on 18 February 2021. Ms Cashmore said that the outcome of this quote remains unknown.[51]
[51] Exhibit 2, 425.
On 6 July 2021, an interagency meeting involving Ms Cashmore, the respondent's NDIS planner and a specialist support coordinator was held. Ms Cashmore said that she queried the apparent disregard of the functional capacity assessment report and was advised that there was 'not enough evidence' to support the recommendation contained in that report. When asked what additional evidence was required, Ms Cashmore was informed that a confirmed release date was needed before the NDIA could consider funding the recommendations in the report.[52]
[52] Exhibit 2, 425-426.
In oral evidence, Ms Cashmore said that since writing her report there had been some progress in dealings with the NDIA in regard to offenders detained under the HRSO Act. She said that the NDIA had agreed to an arrangement whereby four offenders presently subject to continuing detention orders would be assessed on a 'transitional basis', notwithstanding that they did not have a definite release date. Unfortunately, the four offenders did not include the respondent. The four offenders had been chosen on the basis that at previous reviews the court had expressed concern about the difficulties in accessing NDIS funding.[53]
[53] ts, 251.
Ms Cashmore said that she was hopeful that if the court expressed similar views in respect of the respondent this may enable his NDIS plan to be reviewed. However, at present there was no prospect of this. That means that there is presently no realistic possibility that the respondent could, if released into the community on a supervision order, have the level of supervision that Dr Wojnarowska had identified as necessary to ensure that the risk of reoffending was reduced to an acceptable level.[54]
[54] ts, 253.
Ms Cashmore had also investigated the possibility of accommodation for the respondent in the community. Uniting WA currently hold a contract with the Department of Justice to facilitate the supported accommodation program. This program makes available six properties to high risk serious offenders. However, Uniting WA have maintained a stance that they are not prepared to accept the respondent as a participant in this program until the level of service for his disability needs is confirmed.[55]
[55] Exhibit 2, 427.
A range of other accommodation providers was also investigated by Ms Cashmore, including the Bennett Brook Disability Justice Centre, the National Rental Affordability Scheme, the Department of Planning, Lands and Heritage, Accord West and crisis accommodation service providers. The Bennett Brook Disability Justice Centre is not available to the respondent as it caters solely to individuals who are managed by the Mentally Impaired Accused Board. Furthermore, accused persons who are charged with sexual offences are precluded from this accommodation option. Ms Cashmore also investigated lodging style residences and motels and long stay apartments. None of these options were suitable, either because the respondent did not meet entry requirements or because he cannot fund bond or advanced payment requirements. In any event, the suitability of such accommodation, having regard to the respondent's particular risk profile, has not been assessed.[56]
[56] Exhibit 2, 427 – 429.

Findings

I am satisfied that the respondent remains a high risk serious offender. The level of risk of serious offending has not significantly changed since the last review. The uncontested expert evidence is that a restriction order is necessary in the circumstances of this case.
The nature of the respondent's past offending conduct, and his likely risk scenario in the event of reoffending, are such that there must be a strong degree of assurance that the risk of reoffending is extremely low. Because the respondent's past offending has been opportunistic and unpredictable the risk is more difficult to manage. A very high level of supervision and support would offer some prospect of this level of management. I accept the evidence of Dr Wojnarowska that ideally 24 hour a day/7 day a week supervision is desirable but that 12 hour supervision with a night time curfew for the remaining 12 hours and close GPS monitoring during that period may be adequate to reduce the risk to an acceptable level.
The fact is that provision of such supervision is dependent on appropriate funding. The only possible source of such funding is the NDIS. Whilst a functional capacity assessment report has recommended that supported independent living be supported, the NDIA is yet to respond to that report. If, as it would seem, the reason for that is that there is no definite release date then I would hope, in light of these reasons, the NDIA is able to reconsider its position.
In other cases, I have noted that offenders like the respondent are caught in the limbo of an apparently inflexible policy by the NDIA not to assess a person who is detained in prison for community support funding until a certain release date is set. This policy creates an impossible barrier in the case of an offender who is the subject of a continuing detention order under the HRSO Act. By definition, such an order is a continuing one that can only be rescinded if certain conditions can be met. Under the HRSO Act, the court cannot approve release on a supervision order unless satisfied that the risk of reoffending can be reduced to a level consistent with adequate protection of the community. In a case such as the respondent's, that means the court must be assured that the support necessary to reduce that risk would be provided before the supervision order can be made.
I note that there is some reason for optimism that things may be changing in that the NDIA has recently indicated a willingness to consider provisionally assessing some HRSO offenders who remain on continuing detention orders. Whilst I cannot, of course, dictate to the NDIA whether they should take a similar approach to the respondent, it is difficult to understand why they would not.
As I have noted in another similar case, the NDIA is not concerned with the risk of reoffending: its concern is with the provision of disability services. However, the two areas are not mutually exclusive. It is likely that if the respondent's disability needs are met to the recommended level this would also produce, as an incidental benefit, a reduction in the risk of reoffending. There may be a concern within the NDIA that support is sought that is related to the reoffending risk and not disability support. With all due respect, that concern seems to be ill‑founded and fails to appreciate that the two things are not mutually exclusive, and it is often the respondent's disability that is one of the factors contributing to risk. Other contributors to risk may be addressed by a range of supports from other service providers such as the Department of Justice and Uniting WA. But the contribution required from the NDIS can often be critical.
I also accept the evidence of Ms Cashmore that suitable accommodation for the respondent is not presently available. Given the level of supervision that is required to reduce the risk to an acceptable level, it is likely that the only suitable accommodation will be in some form of hostel environment. The ability of the respondent to access such accommodation is also dependent upon funding.
In all of the circumstances, I concluded that a supervision order is not appropriate at this time and, at the conclusion of the review hearing, I affirmed the continuing detention order.

Recommendations

As I noted at the hearing, it is important for all concerned in the management of the respondent, including prison authorities, to bear in mind that he is not a prisoner, rather he is a person being detained under the HRSO Act for the purposes of his control, care or treatment. Prison authorities are understandably concerned with maintaining discipline and security within the prisons, but this does not justify an all too easy assumption that detainees under the HRSO Act should be treated in the same way as prisoners. Detainees have different needs and the executive has different responsibilities in respect of them.
Every effort should be made to maximise the opportunities for the respondent to be released on a supervision order if this can be achieved consistently with adequate protection of the community. Bearing that in mind, I make the following recommendations regarding the respondent's period in detention before the next review:
1.Counselling.
Given the respondent's expressed willingness to reengage with counselling, he should be given the opportunity to resume counselling with a psychologist as soon as possible. Counselling should occur with at least the same level of frequency as was occurring in 2019. It is desirable that the psychologist communicate with the prison chaplain to ensure consistency of approach and to utilise the benefits of any spiritual motivations that the respondent has. It is desirable that the counselling continue to address sexually deviant thinking and methods for minimising and dealing with such thinking. Other issues that should be addressed in counselling include interpersonal issues and management of feelings of anger and frustration that can be a pathway to deviant thinking.

2.Education.
Efforts be made to ensure that the respondent has access to appropriate educational opportunities. He should not be excluded from any courses on the basis of the timing of reviews under the HRSO Act. If there are no suitable courses available, efforts should be made to determine whether remote access or distance learning opportunities are suitable.
3.NDIS.
COMU should continue to liaise with the NDIA with a view to encouraging that agency to conduct a transitional funding assessment, in particular as to whether funding can be provided for supported independent living.
4.The Management Plan.
Whilst the custodial management plan did not achieve its objectives, there would be benefit in resuming the unit manager check-up procedure. The purpose of this is to give the respondent an opportunity to air his grievances and to have explained to him the reasons why decisions have been made. This should be treated as an opportunity for the respondent and not as a requirement. The fact that he perceives some officers as being more responsive to his concerns than others should not be viewed in a negative light. He may well be correct and, in any event, if he chooses not to avail himself of an opportunity to speak to the unit manager that is not a matter that should be viewed adversely. It is desirable that the meetings occur at the same time each week and with the same officer (if possible) and that an effort be made to explain to the respondent why decisions are made or how any grievances he has can be addressed.
5.Medication.
The current dose rate of the antidepressant medication prescribed for the respondent should be reviewed with a view to increasing it to achieve antilibidinal effects, as recommended by Dr Wojnarowska. The respondent should also be referred to the psychiatrist responsible for administering antilibidinal medications in the prison so that he can consider his options in that regard.
6.Self‑care.
It is desirable that the respondent have the opportunity to acquire and test skills that would be necessary for living in the community. One way of achieving this would be to transfer him to a unit in the prison where self‑care facilities are available. It would be preferable for this to occur in conjunction with psychological counselling and at a time that the psychologist considers that the respondent is best prepared for the move.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
10 FEBRUARY 2022