The State of Western Australia v O'Brien
[2020] WASC 30
•4 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- O'BRIEN [2020] WASC 30
CORAM: FIANNACA J
HEARD: 29 JANUARY 2020
DELIVERED : 29 JANUARY 2020
PUBLISHED : 4 FEBRUARY 2020
FILE NO/S: DSO 1 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ROSS FINCH O'BRIEN
Respondent
Catchwords:
Dangerous sexual offender - Division 1 hearing - Division 1 hearing at the conclusion of a supervision order - Application for a further supervision order
Legislation:
Dangerous Sexual Offender Act 2006 (WA)
Result:
Orders made
Application granted for Division 2 hearing
Category: B
Representation:
Counsel:
| Applicant | : | Mr B Meertens |
| Respondent | : | Ms M Barone |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Dodd [2015] WASC 249
Director of Public Prosecutions (WA) v Free [2010] WASC 255
Director of Public Prosecutions (WA) v O'Brien [2015] WASC 163
State of Western Australia v Byron [No 6] [2019] WASC 29
FIANNACA J:
(These reasons were given extemporaneously and have been edited from the transcript).
This is the preliminary hearing of an application under s 8(4A) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) for an order that the respondent be subject to a supervision order. The respondent is currently subject to a supervision order made by Simmonds J on 9 April 2015 for a period of 5 years.[1] The order will expire on 8 April 2020.
[1] Director of Public Prosecutions (WA) v O'Brien [2015] WASC 163 (O'Brien).
Section 8(4A) states:
If:
(a)an offender is subject to a supervision order (the current order); and
(b)the current order is to expire within one year,
the DPP may file with the Supreme Court an application for orders under section 14 and for a Division 2 order in relation to the offender, the Division 2 order to take effect on the expiry of the current order.
Section 8(4B) states:
An application under subsection (4A) must specify whether the Division 2 order sought is a continuing detention order or a supervision order under section 17(1)(b).
The application in the present case specifies that the order sought is under s 17(1)(b), which is a supervision order. Such an order, as defined in s 3 in combination with s 17(1)(b), and as is relevant for an application under s 8(4B), is an order that:
… with effect from a stated date … 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.
If the application is granted, the order sought will be a new supervision order, but, in effect, it will be an extension for a further period, to be determined, of the conditions to which the respondent has been subject whilst in the community since 9 April 2015, subject to any amendments or additions that may be considered to be appropriate.
As required by s 8(4A), the application is also for orders under s 14 of the Act. Those are the orders that the court must make if the test applicable at the preliminary hearing is satisfied for the matter to proceed to a substantive hearing of the application for a Division 2 order (the div 2 hearing). As will appear shortly, when I refer to the relevant statutory provisions and legal principles, the orders sought under s 14 are for a date to be set for the div 2 hearing and consequential orders to obtain information for that hearing, including an order that the respondent undergo examination by two qualified experts named by the court, at least one of whom is to be a psychiatrist.
The provisions of s 8(4A) make it clear that the manner in which an application for a further supervision order is to proceed is similar to an application under s 8(1) in the first instance for a Division 2 order when a person has not previously been the subject of an order under the Act.[2]
[2] State of Western Australia v Byron [No 6] [2019] WASC 29 [17], a case which also involved an application by the State for a further supervision order.
The application for orders under s 14 is not opposed by the respondent. Nonetheless, it is still necessary for me to examine the evidence and make the necessary findings in respect of which I must be satisfied under s 14.
The law
Section 11(1) of the Act provides that, after an application is filed under s 8, a date must be fixed for the matter to come before the court for a preliminary hearing. Section 11(3) provides that the main purpose of the preliminary hearing conducted pursuant to s 14(1) is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community.
Section 14(1) of the Act provides:
At a preliminary hearing, if the court is satisfied that there are reasonable grounds for believing that the court might, under section 7(1), find that the offender is a serious danger to the community, the proper officer of the court must, subject to subsection (2A), fix a date for the hearing of the application for a Division 2 order.
The reference to s 7(1) draws attention to the matters about which the court must be satisfied before it could find that the respondent is a serious danger to the community. It provides that, before the court can make that finding, it will need to be satisfied to a high degree of probability, on acceptable and cogent evidence, that there is an unacceptable risk that, if the respondent is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.
The court will be required to make that determination having regard to the considerations set out in s 7(3), which are not exclusive. Those considerations include historical factors in respect of the respondent's offending and his antecedents generally, in particular, whether he has a propensity to commit serious sexual offences. The court must also consider whether the respondent has addressed the causes of his offending behaviour, and the effect on him of any rehabilitation program. It must also have regard to any report that a psychiatrist prepares, as required by s 37 of the Act, and any other medical, psychiatric, psychological or other assessment of the respondent. Finally, the court must have regard to the risk of the respondent committing a serious sexual offence if he were not subject to a continuing detention order or a supervision order, and the need to protect members of the community from that risk.
However, the question for the court at this stage is whether there are reasonable grounds for believing that the court might make a finding, on the basis set out in s 7, that the respondent is a serious danger to the community. It is concerned with the possibility that such a finding may be made, and does not involve the weighing of evidence.
The principles applicable on a preliminary hearing under s 14 of the Act have previously been discussed by McKechnie J in Director of Public Prosecutions (WA) v Free,[3] and by Simmonds J in Director of Public Prosecutions (WA) v Dodd.[4]
[3] Director of Public Prosecutions (WA) v Free [2010] WASC 255 [4] ‑ [13] (Free).
[4] Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [34] ‑ [42] (Dodd).
It is not necessary for me to canvas the principles in any detail, given the approach that has been taken by the respondent in these proceedings. I have regard to the fact that the belief of the court must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative, power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made.[5] As McKechnie J also said in Free:[6]
At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community. It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.
[5] Free [11].
[6] Free [11].
As Simmonds J also pointed out in Dodd, although s 14 directs attention to s 7 and necessarily to s 7(3), it is conceivable that a person who may satisfy a criterion representing only one of those listed in s 7(3), may be the subject of a Division 2 order.[7] So, even in the absence at a preliminary hearing of any reports from a psychiatrist under s 37 of the Act or other medical, psychiatric or psychological assessment, there might be reasonable grounds for concluding, on the basis of an offender's criminal record, that a later court might be persuaded that the offender is a serious danger to the community.
[7] Dodd [38](2).
In this case, there is information that goes beyond the respondent's prior offending. That information includes the information that was before judges who sentenced the respondent in the past, and the materials that were before Simmonds J at the hearing in April 2015, which resulted in the making of the current supervision order.
I would note, finally, before leaving the legal principles, that the decision the court must make on a div 2 hearing, when an application has been made pursuant to s 8(4A), requires a fresh consideration of whether the respondent is a serious danger to the community, and that assessment must be made as at the time the application is heard. However, it will be relevant to that assessment to have regard to the fact that the applicant has previously been found to be a serious danger to the community, and, of course, the way in which he has conducted himself while subject to a supervision order that was formulated to mitigate the risk that the court previously found to exist. That risk, of course, was found to be an unacceptable risk in the absence of a detention order or a supervision order.
The evidence in the proceedings
The application is supported by an affidavit of Ms Fiona Clare, a lawyer with the Office of the Director of Public Prosecutions for Western Australia (the DPP). The affidavit was sworn on 8 January 2020. Annexed to the affidavit are a number of materials relevant to the respondent's history, including his criminal history, in particular the offending that occurred in 1999 and 2006 that resulted in terms of imprisonment and which, ultimately, formed the foundation of the application by the DPP in 2015 for orders under div 2 of the Act.
The materials also include the report prepared by Dr Gosia Wojnarowska, consultant psychiatrist, in respect of a breach of the supervision order by the respondent in 2016, to which I will return in due course. They also include court transcripts, witness statements and various reports that were relied upon in past proceedings concerning the respondent. It is not necessary to canvas all of those materials.
It is necessary to say something briefly about:
(1)the respondent's criminal offending;
(2)the basis upon which the supervision order came to be made by Simmonds J in 2015;
(3)the respondent's conduct while subject to the supervision order, in particular, the breach in 2016 to which I have referred;
(4)the report that was prepared by Dr Wojnarowska at the time the respondent was dealt with for the breach; and
(5)a more recent report that was prepared by Ms Sarah Ballantyne, a senior counselling psychologist with the Forensic Psychological Service of the Department of Justice, which was prepared on 1 March 2019.
The respondent's history of sexual offending
Commencing with the respondent's history of sexual offending, the first recorded criminal conviction for the respondent in Western Australia was on 7 December 2000, for 11 counts of indecently dealing with a child under the age of 13 years, contrary to s 189(3), of the Criminal Code, which is now repealed. The offence was punishable by a maximum penalty of 7 years' imprisonment. Therefore, it constitutes a 'serious sexual offence' under the Act.[8] That is not in dispute.
[8] This follows from the application of s 106A of the Evidence Act 1906, by the definition of 'serious sexual offence' in s 3 of the Act.
The offending was committed against five girls aged between seven years and 12 years. The respondent was their athletics coach. The offending took place over a period of approximately eight years, from 1991 to 1999, when the respondent was aged between 39 and 47 years. The acts that constituted the indecent dealing offences included touching the children over their clothing or near the genital area and breasts, and kissing the victims on their mouths. Whilst the nature of the touching fell toward the lower end of the scale of seriousness for offences of that type (as the applicant acknowledges), there was a degree of persistence of the conduct in both the number of years over which the offences were committed and the number of victims against whom the offences were committed. As the sentencing judge found, the offending involved a level of grooming, and, in fact, the respondent had befriended the parents of some of the children.
The respondent pleaded guilty to the 11 counts on 1 November 2000, which was said to have been accepted in full satisfaction of the counts that were in the indictment. He was sentenced by Williams DCJ on 7 December 2000 to a total term of 4 years' imprisonment, consisting of 2 years' imprisonment on each count, with some accumulation. He was made eligible for parole.
Reports were prepared in respect of the respondent for the purposes of the sentencing, including a psychological report which identified the respondent's risk of reoffending as being elevated from medium‑low to high when taking into account clinical factors, including the fact that he minimised his sexual interest, the fact that there was an absence of any social relationship that provided a sexual outlet for him, the position of responsibility that he had towards the victims, and the long period over which the offending had been committed. I have referred to that particular finding in the report because, as will appear later, some of those issues continue to be relevant in the respondent's case now.
During the term of imprisonment imposed at that time, the respondent took part in a sex offender treatment program. He completed the Medium Sex Offender Treatment Program at Karnet Prison Farm on 31 July 2001. The report in respect of his completion of that program indicated that, during the program, the respondent conceded that his offending would likely have continued had he not been reported. He was assessed as a medium to low risk of future sexual offending.
The respondent was released on parole on 2 March 2002. He completed the parole order, which expired on 2 July 2003.
Two years after completing the parole order, namely, late 2005 or early 2006, the respondent reoffended by committing a number of sexual offences against girls. The offending occurred on an unknown date between 1 December 2005 and 25 January 2006.
The respondent pleaded guilty to 18 offences on 13 September 2007. They included offences of indecently dealing with a child under the age of 13 years, one count of sexual penetration of a child under the age of 13 years and seven counts of indecently recording a child under the age of 13 years. All of those offences are serious sexual offences for the purposes of the Act. There were two female child victims who were sisters. They were aged eight years old in the case of the first victim, and between six and seven years old in the case of the second victim.
The respondent was approximately 54 years old at the time of those offences. He had developed a friendship with the victims' mother after assisting the family, by providing a computer over a period of a year before the offences were committed. He also assisted the family by babysitting one of the victims and her younger sister (who was not a victim of the offences).
As I have already noted, the offending involved indecent dealing and one count of sexual penetration. The indecent dealing included the placement of his penis by the respondent against the vagina of each of the two victims. On one occasion, he penetrated the vagina of one of the victims with his penis while persuading the other victim to take a photograph. He posed in those photographs.
In addition to the counts of sexual offending, the respondent was also convicted of three counts of possession of child pornography, under s 60(4) of the Censorship Act, which are not serious sexual offences for the purposes of the Act. Those offences related to a very large number of images of child pornography, 16 video files of child pornography and a number of written short stories about child pornography, which had been found on the hard disc of his computer during a search on 26 January 2006.
The respondent was sentenced in respect of the offending by Deane QC DCJ on 4 April 2008. After a correction was made to the initial sentence that was imposed, the head sentence imposed upon the respondent was 9 years and 2 months' imprisonment, with parole eligibility.
A psychological report was prepared for sentencing on that occasion by Mr Summerton, in January 2008. He was of the view that the respondent's risk of reoffending may be higher than had been assessed under the actuarial instrument that was used for assessing risk. That actuarial instrument, the STATIC‑99, placed the respondent in the medium to high category, which meant that there was a three in ten chance of sexual reoffending within a five year period.
Treatment during sentence of imprisonment from 4 April 2008
During his sentence for that last series of offences, the respondent completed the Sex Offender Intensive Program at the Bunbury Regional Prison. He completed the program on 1 June 2012. He was assessed as being at high risk of reoffending on the STATIC‑99 measure at that time. It was recommended (in the program completion report dated 26 June 2012) that the respondent participate in a sex offender maintenance program upon release, and that he attend for psychological counselling.
The respondent came to be considered for parole on 22 March 2013. A report was prepared for that purpose, dated 7 March 2013. The Prisoners Review Board, having considered his case, declined to grant parole.
The application under the Act in 2015
Prior to the conclusion of the respondent's sentence, the DPP applied for orders under Division 2 of the Act. At a preliminary hearing, on 12 February 2015, McKechnie J made orders, including an order that the respondent be detained in custody until the conclusion of the hearing and judgment on the application for the Division 2 order. The hearing of the Division 2 application came before Simmonds J on 8 April 2015. As I noted earlier, his Honour gave his decision in the matter on 9 April 2015.
It is not necessary for me to go into detail in respect of his Honour's findings, but there are some matters to which I need to refer. The first is that one of the psychiatrists who examined the respondent for the purposes of that hearing was Dr Wojnarowska. The other psychiatrist was Dr Febbo.
Although, having accepted the evidence of the psychiatrists, his Honour was of the view that the respondent constituted a high risk of reoffending in a sexual manner in a similar way to that in which he had offended in the past, he was satisfied that the adequate protection of the community could be achieved at that point in time, having regard to the expert opinions that had been expressed, by the making of a supervision order with 45 stringent conditions. His Honour said:[9]
On the evidence before me, I consider Mr O'Brien has a propensity to commit serious sexual offences of the kind described as the most likely reoffending scenario by Dr Wojnarowska above, which corresponded, as I have indicated, with the first kind of reoffending scenario described by Dr Febbo.
[9] O'Brien [164].
His Honour said:[10]
In accordance with DPP v GTR [34] … if I determine that Mr O'Brien is a serious danger to the community on my satisfaction that there is for him an unacceptable risk within DSO Act s 7, I must identify what it is that constitutes the risk and makes the risk unacceptable. Further, I must consider whether or not that matter has been proved to a high degree of probability by acceptable and cogent evidence.
I have so determined on such satisfaction so proved.
What constitutes the risk in this case, and makes that risk unacceptable, is the level of likelihood I have indicated, as to be drawn from the evidence of the two psychiatrists, of a serious sexual offence of the kind described by Dr Wojnarowska as the likeliest reoffending scenario, corresponding to the first of the three kinds of reoffending scenario described by Dr Febbo, with the potential psychological harm for such reoffending they describe as I have indicated.
I consider that in accordance with DSO Act s 7(2), the DPP has discharged its onus of satisfying me in those terms by acceptable and cogent evidence and to a high degree of probability I so determine by reference to my review of the matters to which section 7(3) says I must have regard.
[10] O'Brien [172] – [175].
It is sufficient to say that the scenarios that had been identified included the following scenario:[11]
Mr O'Brien might be able to develop a relationship with a family in which there were relatively young prepubescent children. Over a period of time he would be able to obtain the trust of the family. Then, when he was in the company of the children, he would take the opportunity to inappropriately touch them. This inappropriate touching might even occur while adults were in the area, particularly if the adult were some distance away from the child. It was likely that over time this offending would escalate, particularly if Mr O'Brien were given the opportunity to be alone with the child or children. The escalation might have inappropriate touching from outside the clothing to inside the clothing, and might go on to involve penetration, that included digital and possibly penile penetration.
[11] O'Brien [109].
That was the first scenario that had been described by Dr Febbo, which corresponded with the second scenario that was described by Dr Wojnarowska.
As I said earlier, having found that the risk existed in those terms, Simmonds J was satisfied that a supervision order was the appropriate order to make. He came to that view in light of the developments that had occurred during the respondent's term of imprisonment, in particular his undergoing the intensive sex offender program, and the views that had been expressed by the psychiatrists during the hearing, including the view of Dr Wojnarowska that the respondent's risk could be managed within the community under a supervision order with strict conditions. His Honour had regard to the principles by which he was bound, which include that the court should make the order that is least invasive of the respondent's right to be at liberty, consistent with the adequate protection of the community.
It is to be noted that Dr Wojnarowska's views at that time were based, at least in part, on an assessment that the respondent had been honest in his dealings with those who conducted the sex offender program, and that he could be relied upon to comply with the conditions that were to be imposed. It is not necessary for me to go into detail about the conditions that were imposed. They contained the standard conditions under the Act which place significant restrictions on his liberty. Importantly, the conditions placed significant restrictions on his ability to have contact with children. In addition, there was a condition (number 39) which provided that he 'not conduct computer searches for, or collect in electronic or permanent form, images of children, whether indecent or not, with the exception of images of his immediate family, which are not indecent images'.
The respondent's breach of the supervision order
Whilst subject to the supervision order, the respondent incurred two breaches.
The first, on 11 April 2015, involved a contravention of a verbal direction given to him on 9 April 2015, by attending at the home of a sex worker to access prostitution services. He had been directed not to engage in prostitution services until a proper assessment could be completed. It seems that no action was taken in respect of that.
On 23 December 2016, the respondent was convicted in the Busselton Magistrates Court of one count of contravening a supervision order, for breaching condition 39 of the supervision order. That breach was in respect of his possession of images of children. During a police search of his home on 17 August 2016, 41 non‑sexual images were found, 18 of which were of prepubescent children.
The images of the children had been cut out of magazines and newspapers and stuck onto cardboard with names and ages written on them. The images had been kept by the respondent stored with his adult pornography. In light of statements made by the respondent, which I will refer to shortly, it was accepted when he came to be sentenced by Magistrate Mahon in the Busselton Magistrates Court that he had kept the images of children for the purposes of sexual gratification. That, in part, was apparent from the fact that the images were stored with his adult pornography.
The respondent pleaded guilty to the charge of contravening the supervision order. He was sentenced by the magistrate to 9 months' imprisonment, suspended for 2 years. The period of 2 years' suspension is the maximum period of suspension that a court can order.
In sentencing the respondent, the magistrate relied on a psychiatric report dated 2 November 2016 prepared by Dr Wojnarowska for those proceedings. It is necessary to refer to some parts of the report to give an indication of what the respondent had to say about his circumstances and the opinion that Dr Wojnarowska formed.
In recounting what the respondent had said about the offence of contravening the supervision order, Dr Wojnarowska said (at page 3 of her report, under the heading '5. Mr O'Brien's Account of the Index Offence'):
Mr O'Brien said that he has been released in April 2015 after serving 10 years sentence. He lived initially with his brother in Perth after which time he moved to Busselton to take care of his elderly father. He said that due to the strict conditions of his Order he has had a very limited 'sexual outlet'.
The respondent told Dr Wojnarowska that initially he had not been permitted to use brothels.
Importantly, Dr Wojnarowska went on to say (still at page 3):
Mr O'Brien indicated that he had been sexually frustrated and had been considering his options. He said: 'everyone was telling me that I am interested in children, so I thought I would try that'. He said that his order specifically referred to children's images online, so he decided to look for the pictures in 'legal', 'hard copy magazines'. He said that in April this year he went to a newsagent and found an advertising magazine from which he cut off 12 pictures depicting female children and glued them onto cardboard which he then kept together with his adult pornography magazines. He said that he looked at those pictures initially daily; then the interest started to wind down and he found himself being more responsive to adult pornography images. He said, 'I don't even know why I kept them there … I lost interest.'
(Italics and grammar in original)
Dr Wojnarowska went on to refer to the respondent's appreciation of the wrongfulness of his conduct. She said (at page 4 of her report):
Mr O'Brien said 'deep down I knew it was a breach' to do what he did, even when the images were in hard copy, not online. When questioned about his thoughts prior to getting the magazine, he said: 'I was so frustrated, I felt like less of a man … nothing was happening there' referring to his sexual functioning. He added 'I shouldn't have done it; I was trying to keep to Order.' He said that during the time of his offending, he had fortnightly sessions with his psychologist. When questioned if it was difficult to keep the information about his offending away from his counsellor, he said that it was, specially that he had just started developing relationship with her and making progress in his treatment. He wasn't however able to explain his motives for not disclosing this pertinent to his treatment information.
(Italics and grammar in original)
At the time of the div 2 hearing before Simmonds J, the respondent had been diagnosed as having paedophilia. Dr Wojnarowska's diagnosis was 'Paedophilia, attracted to females, non‑exclusive type'. She had also found that the respondent had 'avoidant personality disorder'. In her report for the contravention offence in the Magistrates Court, Dr Wojnarowska said (at page 7 of her report):
There is no change in my diagnostic formulation of Mr O'Brien since I assessed him in 2015. He presented on this occasion for a psychiatric assessment in the context of breaching his supervision order. He reported preoccupation with sexual themes and sexual 'frustration' but denied experiencing sexual thoughts about children and indicated that he was 'bored' with their images.
Mr O'Brien's principal diagnosis remains paedophilia, attracted to females, non-exclusive type. The latter suggests that he is also capable of experiencing sexual fulfilment in a sexual relationship with adult females.
He also fulfils diagnostic criteria for Avoidant Personality Disorder, as evidenced by history of a pervasive pattern of social inhibition, feelings of inadequacy and hypersensitivity to negative evaluation.
Importantly, in making her risk assessment in respect of the respondent, under the heading Psychological Domain, Dr Wojnarowska went on to say (at page 8 of her report):
Mr O'Brien's assertion during this interview that '(he) was told' he had a sexual interest in children and that's why he decided to look for children's images are of a concern: it suggests a degree of denial and deflecting responsibility. I am not convinced now that his treatment gains during the prison-based Intensive Sex Offender Treatment Program (ISOTP) were as significant as reported by the facilitators and accepted by the assessing psychiatrist.
The other areas of psychological functioning including issues related to empathy or self-awareness are not currently the areas of concern. He is well aware of the fact that what he did constitutes breach of the conditions of his Order.
Under the heading Mental Disorder, Dr Wojnarowska noted that the respondent's devious interest in children is the most important causal risk factor in his sexual offending. Under the heading Problems with Treatment, Dr Wojnarowska said (at page 9 of her report):
My previous opinion that Mr O'Brien does not possess problems with treatment, needs to be revisited: his statements regarding his breach as quoted in this report, suggest that he has not fully accepted that he is a paedophile and his commitment to be open in the therapy is now questionable.
In relation to Manageability, Dr Wojnarowska said:
There has been a clear problem with managing Mr O'Brien in the community which resulted from his lack of transparency. Although not overtly uncooperative, he managed to deceive his treating psychologist and his CCO.
Although Mr O'Brien has not committed a sexual offence on this occasion, it is possible that once feeling secure in his ability to deceive, his behaviour would have escalated to more serious breaches and possibly offending.
The headings under which Dr Wojnarowska expressed her opinions referred to in the three preceding paragraphs were part of Dr Wojnarowska's assessment using the Risk for Sexual Violence Protocol (RSVP) tool, which looks at both historical and dynamic factors in determining the person's level of risk of committing a sexual offence.
Dr Wojnarowska concluded by saying as follows (at pages 9 and 10 of her report):
By breaching his SO, Mr O'Brien demonstrated that he has continued to fantasise about children without addressing this issue during his counselling. Furthermore, he secretly acted on those fantasies, and only the fact that there has been a close supervision and surveillance put in place, his breach has been discovered. His lack of transparency is not consistent with the declarations that he made prior to his release.
The essence of his high risk of reoffending remains to be the presence of deviant sexual interest in children.
The management of Mr O'Brien's risk in the community requires even more rigorous supervision with more restrictions than it was anticipated on his release from prison.
Although those comments were made over three years ago, the report being dated 2 November 2016, the most recent assessment conducted by Ms Ballantyne suggests that the concerns raised by Dr Wojnarowska continue to be relevant.
Before proceeding to Ms Ballantyne's report, I note that the respondent has not been charged with any further breaches of the supervision order, or in respect of any other offences, during the term of his order since he was sentenced in the Magistrates Court.
Of course, as was pointed out by the applicant, the respondent, for a period of two years after the sentencing on 23 December 2016, was under a suspended imprisonment order, which put him at risk of having to serve the term of 9 months' imprisonment if he breached that order, as well as being subject to the stringent provisions of the supervision order made by Simmonds J.
Most recent psychological assessment
As I understand the situation, Ms Ballantyne's report of 1 March 2019 was prepared as an assessment to determine whether an application should be made to the court for a further supervision order. Again, it is not necessary to go into detail in respect of all the matters contained in Ms Ballantyne's report, but there are some matters that are of particular importance and to which I do need to refer.
First, Ms Ballantyne noted:[12]
Negative emotionality is linked in some ways with Mr O'Brien's poor problem solving, his personality and interpersonal communication style is indicative of a longstanding tendency toward rumination and grievance thinking with reference to his interactions with, and treatment by other people.
[12] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 338 (p 11 of Ms Ballantyne's report).
That is relevant because, as Ms Ballantyne went on to say:[13]
An example of such externalisation of blame was evident in his account of the reasons for having collected images of young girls in direct contravention of supervisory conditions.
[13] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 338 (p 11 of Ms Ballantyne's report).
Ms Ballantyne then said:[14]
It is acknowledged that some of these traits are characterological and therefore unlikely to alter, particularly given Mr O'Brien's stage in life, however, the effect of his negativity in response to challenges has the capacity to impede attempts by others to suggest, or support the development of more constructive coping strategies. Mr O'Brien's resistance to active engagement with attempts in his psychological counselling to directly address his offending behaviour has continued to some extent throughout the duration of his current order. It is, however, more recently the case that he appears to have engaged more actively and meaningfully with interventions intended to teach stress management, reduce his negative rumination and grievances, and explore underlying schema which are likely to have contributed to maintain those attitudes and feelings.
[14] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 338 (p 11 of Ms Ballantyne's report).
Ms Ballantyne went on to refer to the fact that:[15]
Mr O'Brien has problems in the domain relating to sexual deviance based on the total number of (known) prepubescent victims of his offending, in addition to his possession of a large quantity of child exploitation material, some of which he produced himself in his contact with aforementioned victims.
[15] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 339 (p 12 of Ms Ballantyne's report).
Ms Ballantyne continued:[16]
Of most particular concern is evidence suggestive that Mr O'Brien has a continuing interest in underage girls, based on the obvious sexual motive for his collecting (and modifying) images of young girls from non-sexual media sources. Mr O'Brien's account of the reasoning behind that 'collection' and his access or use of it was superficial both at the time and in the course of the current assessment, he failed to acknowledge his personal responsibility or any intrinsic motivation for such behaviour and as such this has ultimately remained unaddressed due to his persistent avoidance or denial of meaningful exploration or acknowledgement of problems in this domain.
[16] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 339 (p 12 of Ms Ballantyne's report).
As is apparent from that paragraph, the respondent's explanation to Ms Ballantyne for the offending that constituted the contravention of the supervision order was in similar terms to the explanation he gave to Dr Wojnarowska. As I said earlier, that tends to bring into focus the relevance now of the opinions that were expressed by Dr Wojnarowska.
Ms Ballantyne went on to say:[17]
Some evidence of continuing sexual preoccupation and drive is evident in both Mr O'Brien's self‑reports regarding frequency of masturbation (weekly, to approximately every three weeks). Mr O'Brien describes sexual fantasy involving younger-looking (but post‑pubescent) Asian women during this assessment. Having adult pornography in his home, in addition to those images of children, in 2016 is also evidence of ongoing sexualised interests and behaviours. He was not asked explicitly at interview, but it is assumed that he continues to have adult pornography in his possession.
[17] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 339 (p 12 of Ms Ballantyne's report).
In respect of the respondent's cooperation while subject to supervision, Ms Ballantyne said that it had fluctuated, and that the most significant breach of the order had been afforded considerable attention by her earlier in the report (to which I have referred). Importantly, Ms Ballantyne said:[18]
More generally, it appears that Mr O'Brien has a tendency to “test boundaries” and exhibit resistance to more stringent management regimes with passive aggressive resistance to, or rejection of supervision. Apart from the aforementioned breach action, which progress to Magistrates Court, Mr O'Brien has complied sufficiently with his order to avoid further criminal charges and remain in the community subject to his DSO SO for the past (approximately) four years.
[18] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 339 (p 12 of Ms Ballantyne's report).
Ms Ballantyne conducted a risk assessment, applying the STATIC‑99R instrument and the Stable‑2007 instrument which, similar to the RSVP, looks at dynamic factors as well as historical factors. Combining the measures, she concluded that the composite assessment placed the respondent in Level IVa, which is above average risk, for supervision and intervention using the standardised risk framework.[19] Ms Ballantyne went on to talk about the respondent's progress while subject to intervention, and his general response to supervision. She said:[20]
Though his compliance with the conditions of his DSO SO has been generally acceptable, though 'difficult' with reference to his presentation (negative, pessimistic, passive-aggressive and resistant) in his relationships with the majority of people involved in his risk management and intervention, his collecting (and modification) of images of children in 2016 is a contravention of significant concern in a number of domains.
[19] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 340 (p 13 of Ms Ballantyne's report).
[20] Affidavit of Ms Fiona Clare, sworn 8 January 2020, pp 340-1 (pp 13 - 14 of Ms Ballantyne's report).
Ms Ballantyne went on to say that the contravention suggested that initial impressions regarding Mr O'Brien's compliance with supervision were overly positive. Not only did he engage in the behaviour while subject to the supervision order, he did so over a period of time, during which he had the support of Community Correction staff and was engaged in psychological intervention. She noted that Mr O'Brien had explicitly acknowledged that he knew his collection of child images constituted a breach of his supervision order, and the manner in which he stored and modified the images that he obtained was suggestive, according to Ms Ballantyne, of considerable thought and attention being afforded to them.[21]
[21] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 341 (p 14 of Ms Ballantyne's report).
Ms Ballantyne also noted that the respondent had disclosed that he had obtained the images in approximately April of 2016, and they were not discovered until August of that year. She said that, in that context, his consistent denial of any interest or ongoing fantasies regarding children in both supervision reporting and psychology sessions was evidence of his capacity for deception or denial of matters most relevant to his risk for reoffending and the reasons for imposition of a supervision order in the first instance.[22]
[22] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 341 (p 14 of Ms Ballantyne's report).
Of course, that echoes opinions expressed by Dr Wojnarowska, to which I referred earlier, and, although Ms Ballantyne is making that assessment on the basis of his offending in 2016, it is also in the context of matters that emerged during her interview with the respondent in 2019. In the same way that Dr Wojnarowska had done, Ms Ballantyne noted that sexually deviant interests remain the most significant domain of concern regarding the respondent's potential for further sexual offending.
Ms Ballantyne went on to say that the extent of the respondent's known offending and number of identified victims, in addition to the nature of his contravention in 2016, are indicative of an entrenched and ongoing sexually deviant interest in young girls.[23] Ms Ballantyne went on to say:[24]
[F]or some individuals with enduring sexually deviant (and illegal) sexual interests, approaches for managing those desires more appropriately in order that they are not acted upon is necessary where those interests are unlikely to change (most particularly in cases where a diagnosis of paedophilia is exclusive and more acuminate to a sexual orientation.
[23] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 341 (p 14 of Ms Ballantyne's report).
[24] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 341 (p 14 of Ms Ballantyne's report).
I note, however, that Dr Wojnarowska has diagnosed the respondent as having a non-exclusive form of paedophilia.
Ms Ballantyne went on to say:[25]
These approaches in psychological counselling require considerable motivation on the part of the offender to acknowledge, explore and engage in collaborative identification of potentially risky situations.
[25] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 341 (p 14 of Ms Ballantyne's report).
She went on to say in the next paragraph that the respondent has consistently avoided, deflected or denied the ongoing presence of any sexual deviant interests, despite the undeniable evidence. This had persisted at least until the latter half of 2016. She said:[26]
His accounts for the motivation and function of his collecting those images is implausible, but even if it were accepted as he claims, had he engaged more actively and authentically in counselling of the nature described above he would know that the most simple of risk management strategies would preclude him from "testing" any continuing attraction to underage girls.
[26] Affidavit of Ms Fiona Clare, sworn 8 January 2020, pp 341-2 (pp 14 - 15 of Ms Ballantyne's report).
Ms Ballantyne went on to say that the respondent's offence profile and his behaviour in 2016 suggest that his enduring sexual interest in prepubescent girls is an ongoing matter of concern, yet one he has continued to avoid or deny in both supervision and psychological counselling. In her conclusions and recommendations, having identified the treatment targets that had been set between the respondent and his treating psychologist, Ms Gibson, Ms Ballantyne said:[27]
Though some positive improvement has been reported by both Mr O'Brien and Ms Gibson in his responding to those treatment targets, he has failed to engage meaningfully with offence and risk specific attempts to discuss his sexual functioning, interests and strategies for managing or appropriately meeting those needs/desires.
[27] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 342 (p 15 of Ms Ballantyne's report).
Importantly, Ms Ballantyne went on to identify the following matters, which in the end, it seems to me, are quite determinative of the question of whether a court might find that the respondent continues to be a serious danger to the community:[28]
It is acknowledged that it is essential Mr O'Brien remains compliant with all the conditions of his DSO SO, particularly given his tendency to 'test' or 'push' those boundaries, however, it is also the case that individuals prone to negative emotionality and with Mr O'Brien's personality type may react to especially stringent supervision and management with increasingly risky behaviour. In this respect it is suggested that attention is directed to those matters of most relevance regarding specific risk factors for sexual offending, rather than more minor technical transgressions such as those mentioned above. Of course, any behaviour suggestive of non‑compliance or rejection of supervision should be viewed in the context and independently if, or as, those occur.
Mr O'Brien will be expected to be engaging with increasingly more independent self‑management and future planning at this stage in his existing DSO SO, and in this respect his actions and planning for a possible relocation to the Pinjarra area are supportive of this progression. It should also be acknowledged that such a move is likely to be a significant source of stress and the establishment of relationships with a new risk management team are likely to require some time.
[28] Affidavit of Ms Fiona Clare, sworn 8 January 2020, p 343 (p 16 of Ms Ballantyne's report).
The reference to the move to Pinjarra is a reference to the respondent's intention to move to that town, where, it would appear, he would expect to live with family.
Conclusions
On the basis of the opinions expressed by Dr Wojnarowska in 2016 and confirmed by Ms Ballantyne as still being relevant at the beginning of 2019, and in the absence of any evidence to suggest that circumstances have changed for the respondent since that time, I am satisfied that a court might find that the respondent continues to be a significant risk of committing a sexual offence of the kind that was considered to be part of the risk scenario described by both Dr Wojnarowska and Dr Febbo in the proceedings before Simmonds J, if he continues to have a sexual interest in children, as was manifested by his collection of material and the use to which he put it in 2016. There is, as Dr Wojnarowska has also identified, a risk that it will escalate to thoughts, and then actions, that may lead to offending of the kind in which he engaged in the past.
What is most important is that both Dr Wojnarowska and Ms Ballantyne expressed views that there is a requirement to continue to supervise the respondent. In fact, the opinions they expressed about the level of his risk appear to be based on the continuation of supervision under a supervision order of the kind to which he has been subject. If those opinions are accepted by a court in due course, then, subject to what might come of the assessment by the court‑appointed experts (one of whom must be a psychiatrist) for the div 2 hearing, I am satisfied that a court at such a hearing might find that the respondent is, at this point in time, a serious danger to the community; that is, that there is an unacceptable risk that if he is not subject to a supervision order as is sought by the applicant, he would commit a serious sexual offence.
If the court came to that view, of course, it would be obliged to make a supervision order, being the order that is sought by the applicant at this stage.
For those reasons, I am satisfied that the orders sought by the applicant should be made, the first two of which are to set a date for the div 2 hearing, which will be 3 June 2020, and to require that the respondent undergo examination by two qualified experts, who have been identified as Dr Gosia Wojnarowska, a psychiatrist, and Ms Julie Hasson, a psychologist.
It is not necessary for me to state the balance of the orders; they are in the terms that are ordinarily made to ensure that there is appropriate information before the court at the div 2 hearing.
One of the orders that was sought by the applicant will be amended; that is in relation to providing experts with access to audio‑visual recordings of interviews with the respondent, or transcripts of the same, for the purpose of preparing their reports, pursuant to s 122 of the Criminal Investigation Act 2006 (WA). That proposed order related to the two experts nominated by the court, pursuant to the second order. It will be amended to include any expert who may be engaged by the respondent.
Otherwise, the orders that will be made by the court are in terms of the minute of proposed orders dated 24 January 2020 filed by the applicant. The second last of those orders is that the supervision order made by Simmonds J in relation to the respondent on 9 April 2015 continue until the State's application for a Division 2 order has been finally determined, pursuant to s 27A(3) of the Act. That order is appropriate, in light of the matters to which I have referred, which are the basis upon which I have concluded that the matter should proceed to a div 2 hearing. The appropriateness of the order was not disputed on behalf of the respondent.
Orders
The orders, then, will be in accordance with the minute of proposed orders, subject to stipulating the date for the div 2 hearing to be 3 June 2020, and the addition of the words 'or any expert engaged by the respondent' after the words 'the two experts' in par 7 of the minute.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca4 FEBRUARY 2020
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