The State of Western Australia v O'Brien [No 2]

[2020] WASC 216

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- O'BRIEN [No 2] [2020] WASC 216

CORAM:   DERRICK J

HEARD:   3 JUNE 2020

DELIVERED          :   17 JUNE 2020

FILE NO/S:   DSO 1 of 2015

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

ROSS FINCH O'BRIEN

Respondent

Catchwords:

Dangerous Sexual Offenders Act 2006 (WA) - Supervision order - Application for a Division 2 order - Whether respondent is a serious danger to the community - Whether a continuing detention order or supervision order appropriate

Legislation:

Censorship Act 1996 (WA)
Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)
Evidence Act 1906 (WA)

Result:

Supervision order made

Category:    B

Representation:

Counsel:

Applicant	:	Mr M T Trowell QC
Respondent	:	Mr A G Elliott

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	David McKenzie Legal Pty Ltd

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

Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212

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

Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307

Director of Public Prosecutions (WA) v Hart [2019] WASC 4

Director of Public Prosecutions (WA) v O'Brien [2015] WASC 163

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

GBT v The State of Western Australia [2019] WASCA 40

Italiano v The State of Western Australia [2009] WASCA 116

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

The State of Western Australia v Narkle [2019] WASC 404

The State of Western Australia v Narrier [No 5] [2019] WASC 17

The State of Western Australia v Newland [2018] WASC 344

The State of Western Australia v Rao [2019] WASC 93

DERRICK J:

Introduction

1. On 9 April 2015 Simmonds J found that the respondent was a serious danger to the community within the meaning of s 7 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) and placed the respondent on a 5 year supervision order (the Supervision Order) pursuant to s 17(1)(b) of the Act.[1]  The expiry date for the Supervision Order was 8 April 2020.

   [1] Director of Public Prosecutions (WA) v O'Brien [2015] WASC 163.

2. Given that the Supervision Order was due to expire on 8 April 2020, on 8 January 2020 the State applied, in accordance with s 8(4A)(b) of the Act, for an order under s 14 of the Act and for a Division 2 order under s 17(1)(b) of the Act to be made in relation to the respondent.  Thus the State applies for a further supervision order to be made in relation to the respondent.

3. On 23 January 2020 the State applied for an order under s 27A(3) of the Act, that the Supervision Order continue until the proceedings under s 8(4A)(b) of the Act were finally determined.

4. On 29 January 2020 Fiannaca J heard the application under s 14 of the Act. On the same date his Honour decided that there were reasonable grounds for believing that the court might, under s 17(1) of the Act, find that the respondent is a serious danger to the community.[2]  His Honour therefore made orders for the hearing of the application for the Division 2 order.  His Honour also ordered, pursuant to s 27A(3) of the Act, that the Supervision Order continue until the State's application for the Division 2 order had been finally determined.

   [2] The State of Western Australia v O’Brien [2020] WASC 30.

5. On 3 June 2020 the State's application for the Division 2 order (the application) was heard before me. 

6. On the hearing of the application the State submitted that I should find that the respondent is a serious danger to the community and that he should be subject to a further period on a supervision order. 

7. The respondent contended that I should not find that he is a serious danger to the community and that he should consequently be released into the community without being the subject of any form of order under the Act.

8. For the reasons set out below I have decided that the respondent is a serious danger to the community and that the risk that he poses to the community can be adequately managed by placing him on a 3 year supervision order subject to conditions.

The evidence

1. At the hearing of the application the State tendered, without objection, the following into evidence.

   1.A book of materials dated 27 May 2020 containing the following:

   (1)Documentation relating to the respondent's past offending;

   (2)Copies of two indictments and associated documentation presented against the respondent in the State of Oregon in the United States for alleged sexual offending against two young girls under the age of 12 (provided by Interpol);

   (3)Historical psychological and other reports prepared in relation to the respondent;

   (4)Reports prepared for the purposes of the application, specifically a psychological risk assessment report prepared by Ms Julie Hasson, forensic psychologist, dated 11 May 2020, a proposed Dangerous Sex Offender (DSO) management plan report prepared by Dr Ben Bannister, forensic psychologist, dated 18 May 2020, and a Community Supervision Assessment report prepared by Ms Terri Godden, Senior Community Corrections Officer (CCO) with Busselton Adult Community Corrections (ACC) dated 20 May 2020; and

   2.A supplementary book of materials dated 2 June 2020 containing a psychiatric report prepared for the purposes of the application by Dr Gosia Wojnarowska, consultant psychiatrist, dated 26 May 2020 and an addendum report prepared by Ms Hasson dated 28 May 2020. 

2. At the hearing of the application Dr Wojnarowska, Ms Hasson, Dr Bannister and Ms Godden were called by the applicant to give supplementary oral evidence. 

3. The respondent did not adduce any evidence on the application. 

4. Dr Wojnarowska was responsible for assessing the respondent for the purposes of, and provided evidence on, the initial application made before Simmonds J.  Further, in November 2016 Dr Wojnarowska prepared a report for use by the sentencing magistrate in proceedings following the respondent's conviction for an offence of contravening the Supervision Order.  I will refer to this contravention further below.

Relevant statutory provisions and applicable legal principles

1. Section 17 of the Act provides as follows:

   17.Division 2 orders

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

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

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

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

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

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

2. The term 'offender' used in s 17(1) is defined in s 8(1) of the Act as a person in relation to whom an application for an order under s 14 and for a Division 2 order is made.

3. Section 7(1) of the Act is in the following terms:

   Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.

4. The references in s 7(1) to a 'continuing detention order' and to a 'supervision order' are references to an order made under s 17(1)(a) and an order made under s 17(1)(b) respectively.[3]

   [3] Act, s 3.

5. As to the term 'serious sexual offence' used in s 7(1), s 3 of the Act relevantly provides that 'serious sexual offence' has the meaning given to the term in s 106A of the Evidence Act 1906 (WA). Section 106A provides that the term 'serious sexual offence' means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years imprisonment or more, or an offence under a repealed section of the Criminal Code (WA) (the Code) if the acts or omissions that constituted an offence under that section are substantially the same as the acts or omissions that constitute an offence (the new offence) under a section or chapter of the Code mentioned in pt B of sch 7 and the maximum penalty that may be imposed for the new offence is 7 years or more.

6. If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1), it necessarily follows that the person is a serious danger to the community.[4]

   [4] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66], [68]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21]; The State of Western Australia v Newland [2018] WASC 344 [12].

7. It is important to appreciate that a finding that a person is a serious danger to the community is, by reason of s 7(1), a finding made as to the person's risk of committing a serious sexual offence if they are not subject to a continuing detention order or a supervision order. In other words, a finding that a person is a serious danger to the community is to be made on the assumption that the person is not subject to a continuing detention order or a supervision order. Thus, as Quinlan CJ stated in The State of Western Australia v Rao[5] in dealing with the interrelationship between s 7(1) and s 17 of the Act:

   There is therefore an essential interrelationship between s 7 and s 17 of the Act. As the assessment of whether a person is a 'serious danger to the community' is made upon the assumption that there is no detention or supervision of the offender, it follows, as a matter of the purpose of the Act as a whole, that an order made under s 17 (either detention or supervision) is intended to remove or ameliorate the risk that the person will commit a serious sexual offence, so that there is no longer an 'unacceptable risk' of that occurring. In other words, the purpose of the Act as a whole is that, as a consequence of the detention or supervision order, the person will no longer be 'a serious danger to the community'.

   [5] The State of Western Australia v Rao [2019] WASC 93 [29].

8. An unacceptable risk of the kind described in s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence the person is likely to commit (if that can be predicted), the serious consequences for the victim if the person commits a further serious sexual offence and the serious consequences for the person if a continuing detention order or supervision order is made.[6]  That is, the court is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[7]

   [6] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [12]; GBT v The State of Western Australia [2019] WASCA 40 [21].

   [7] Director of Public Prosecutions (WA) v Williams [63]; GBT v The State of Western Australia [21].

9. Section 7(2) of the Act provides:

   The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied -

   (a)by acceptable and cogent evidence; and

   (b)to a high degree of probability.

10. In other words, before the court can find that the person is a serious danger to the community, the court must be satisfied by acceptable and cogent evidence and to a high degree of probability that there is an unacceptable risk that if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.  The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt.  The standard is otherwise incapable of further definition.[8]  This does not necessarily mean that the risk must be at some high percentage of probability, a risk may be less than 50% yet still be unacceptable.  However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[9]

    [8] Director of Public Prosecutions (WA) v GTR [28].

    [9] Director of Public Prosecutions (WA) v GTR [28]; The State of Western Australia v Newland [15].

11. In deciding whether to find that a person is a serious danger to the community the court must have regard to the matters set out in s 7(3).

12. Section 7(3) of the Act provides as follows:

    In deciding whether to find that a person is a serious danger to the community, the court must have regard to ‑

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

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

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

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

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

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

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

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

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

    (j)any other relevant matter.

13. Although s 7(3)(g) of the Act provides that a court must have regard to the person's criminal record in deciding whether the person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future if he were not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they have been committed. Nonetheless, past behaviour is often a good indicator of future conduct.

14. As is apparent from the terms of s 17(1) of the Act, if the court finds that the offender is a serious danger to the community, the court must then make a continuing detention order or a supervision order.[10]  Further, and as s 17(2) of the Act specifies, the paramount consideration for the court, in deciding whether to make a continuing detention order or a supervision order, is to be the need to ensure adequate protection of the community.  However, other considerations do apply.  The use of the word 'adequate' in the section indicates that a qualitative assessment is required.  It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[11]  In this regard I respectfully adopt the following statements of Beech J (as his Honour then was) in Director of Public Prosecutions (WA) v DAL [No 2]:[12]

    In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations.  The use of the word 'adequate' indicates that a qualitative assessment is required.  In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment.  The Act does not require that there be no risk of reoffending.  Such a requirement could never be met and would mean no person to whom the Act applies would ever be released.  The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.  That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.  If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.

    [10] Director of Public Prosecutions (WA) v Williams [68]; Director of Public Prosecutions (WA) v GTR [51].

    [11] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21].

    [12] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (footnotes omitted). Also adopted in The State of Western Australia v Narkle [2019] WASC 404 [13].

15. The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.[13]

    [13] The State of Western Australia v Latimer [2006] WASC 235 [25]; Director of Public Prosecutions (WA) v Decke [15]; The State of Western Australia v Newland [22].

16. With respect to s 17(3) of the Act the term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition under s 18(1) that must be included in the order.  Section 18(1) of the Act specifies seven conditions that must be included in any supervision order.

17. For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable, the attainment of the general object of the supervision order and the Act, namely the adequate protection of the community by management and mitigation of the risk that the offender will commit a serious sexual offence.[14]

    [14] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v Narrier [No 5] [2019] WASC 17 [113].

Is the respondent a serious danger to the community?

1. I turn to deal with the question whether the respondent is a serious danger to the community within the meaning of s 17(1) by reference to the factors specified in s 7(3).

Factors specified in s 7(3)

Antecedents and criminal record - s 7(3)(g)

Antecedents

1. The respondent was born on 17 December 1951.  He is therefore now 68 years old.

2. The respondent's childhood and adult years up to around the time of his offending were for present purposes sufficiently summarised by Simmons J in Director of Public Prosecutions (WA) v O'Brien[15] in the following terms: 

   [15] Director of Public Prosecutions (WA) v O'Brien [42] ‑ [53].

   [The respondent] … the middle child of three … was raised on a farm in this State.  He described an uneventful childhood.  This was except for two incidents he reported of being 'groped', one at YMCA facilities and one in bathrooms which he had attended for football.  However, he indicated that this childhood sexual abuse had not affected him significantly.  At the same time, he reported that he had noticed he had begun to feel more distant from his family after that time.

   [The respondent] reported that in his teens his best friend was killed in a motor vehicle accident and another one died of a drug overdose.  He also sustained a knee injury which prevented him from participating in sport at the level at which he had previously performed.

   [The respondent] reported that in his late teens he had learnt that his father had committed sexual offences against female children.  However, his father was not convicted for those offences until 1994.  On 30 September 1994 his father was sentenced to a total of 2 years and 3 months' imprisonment for 12 offences of indecent dealings with a child under 14 and three offences of carnal knowledge of a girl under 13. 

   [The respondent] finished school in year 12.  He secured work with the Road Traffic Authority as a clerk and progressed with that employer over a period of seven years to 'Officer-in-Charge'. 

   Over the next three years [the respondent] worked in farming with his brother.  The venture failed because of factors relating to the weather.

   [The respondent] then moved to Saudi Arabia where he worked for a year, returning to Australia after his contract there ended and paying some of the money owed to creditors of the farming venture. 

   After a period of about two months spent with his parents who were touring around Australia, in 1981, [the respondent] went to the United States with a cousin.  After a period of a holiday there he began to work for that cousin's company.  He continued working for the company for about 10 years, during which he spent a period of time in England setting up a similar company.

   During that period in the United States [the respondent] married.  This was in order to obtain a green card.  That marriage lasted for two years.  He had had a few intimate relationships in his early adulthood, with one of them lasting for three years.  [The respondent] reported that after his return to Australia he had not entered into any further relationships.

   [The respondent] returned to Australia in 1990.  He left all of his assets in the United States.  He reported having left that country after having become overloaded with work several months prior to his departure and after having suffered what he described as a 'nervous breakdown.'

   Following [the respondent's] return to Australia, he experienced a period of depression during which he did not leave his house for 12 months.  A friend of his, with whom he had left a power of attorney to manage his affairs in the United States, embezzled all of his assets.  [The respondent] did not pursue the matter because of his lack of energy resulting from his depression.  He also reported having become less orientated to material things at that time. 

   Subsequently, [the respondent] began working in farming again and also did work related to computers, although he did not obtain regular employment.

   He began to coach children in Little Athletics in the early or mid-90s.

Criminal history and contraventions of the Supervision Order

1. The respondent's sexual offending history was set out by Simmonds J in Director of Public Prosecutions (WA) v O'Brien.[16]  The details of the respondent's sexual offences were also set out by Fiannaca J in The State of Western Australia v O'Brien.[17]  It is not necessary for me to recite in detail the facts of the respondent's offences in order to explain my reasons for coming to the conclusion that I have.  Rather, it suffices for present purposes to say the following.

   [16] Director of Public Prosecutions (WA) v O'Brien [59] ‑ [74].

   [17] The State of Western Australia v O'Brien [22] ‑ [34].

2. On 1 November 2000 the respondent was convicted, on his pleas of guilty, of 11 offences of indecently dealing with a child under 13 years contrary to the now repealed s 189(3) of the Code.  The offence of indecent dealing under s 189(3) is a 'serious sexual offence' within the meaning of the Act.[18]  The respondent committed the 11 offences over a period of about eight years between 1991 and 1999.  The respondent was between 39 and 47 years old at the time of committing the offences.  The victims were five females aged between 7 and 12 years old.  The respondent was their athletics coach.  The offences involved the respondent touching the victims over their clothing on or near the genital area and breasts, and kissing the victims on the mouth. 

   [18] Act, s 3, definition of 'serious sexual offence'.

3. On 7 December 2000 the respondent was sentenced to 2 years imprisonment for each of the 11 offences with a total effective sentence of 4 years immediate imprisonment.  He was made eligible for parole. 

4. The respondent was released on parole on 2 March 2002.  He successfully completed his period of parole which expired on 2 July 2003.

5. On 13 September 2007 the respondent was convicted, on his pleas of guilty, of one offence of sexual penetration of a child under 13 years contrary to s 320(2) of the Code, seven offences of indecently recording a child under 13 years contrary to s 320(6) of the Code, seven offences of indecently dealing with a child under 13 years contrary to s 320(4) of the Code and three offences of possessing child pornography contrary to s 60(4) of the Censorship Act 1996 (WA). The respondent committed the offences on the same date being an unknown date between 1 December 2005 and 26 January 2006, that is, a little under two and a half years after completing his parole period for the offences for which he was sentenced on 7 December 2000. All of the offences, save for the three possessing child pornography offences, are 'serious sexual offences' for the purposes of the Act.

6. The respondent was approximately 54 years old at the time of committing the offences.  The victims were two females who were sisters, NC and SC.  At the time of the offences NC was 8 years old and SC was 6 or 7 years old. 

7. The respondent had developed a friendship with the victims' mother after the respondent had assisted the family by providing a computer over a year before the offences were committed.  The respondent assisted the family by babysitting SC and her younger sister (not a victim of the offences).  NC ordinarily resided with her maternal grandmother in Queensland, but at the time of the offences was staying with her mother for a visit.  The offences were committed after the respondent took NC and SC and their younger sister to the beach and then to his home in City Beach.  He took the two victims into his bedroom, leaving the younger child watching television.  He encouraged the victims to remove their underwear and open their legs, and proceeded to take photographs of their exposed genitals.  The respondent exposed his erect penis to the victims while holding NC and later placed his erect penis on the outside of NC's vagina.  He later committed similar acts against SC.  He made the victims take photographs of the sexual acts.  On one occasion he penetrated the vagina of SC with his penis, while persuading NC to take a photograph.

8. The respondent's three offences of possession of child pornography related to 7,351 images of child pornography, 16 video files of child pornography and 33 written short stories about child pornography located on the hard disk of his computer.

9. On 4 April 2008 the respondent was sentenced for the offences to a total of 10 years imprisonment.  He was made eligible for parole.   On 11 July 2008 the sentence was corrected to a total sentence of 9 years and 2 months imprisonment. 

10. The responden became eligible for release on parole in 2013.  However, on 22 March 2013 the Prisoners Review Board, having considered his case, refused to grant him parole.

11. In addition to his history of sexual offending, the respondent has contravened the Supervision Order on four occasions.

12. The first of the respondent's contraventions occurred on 11 April 2015.  On that date the respondent attended the home of a sex worker to access prostitution services.  He did so despite having been verbally directed on 9 April 2015 not to engage in prostitution services until a proper assessment could be completed.  No action was taken against the respondent in respect of this contravention.

13. The second of the respondent's contraventions occurred on 5 September 2015.  The respondent's Global Positioning System (GPS) recorded that the respondent's personal carried unit (PCU) was not in range of the transmitter for a period of four minutes.  The respondent was therefore not tracked during this four minute period.  In addition, he was unable to be contacted on his mobile phone or landline.  The matter was referred to the police for consideration.  The police decided not to proceed with a charge under s 40A(1) of the Act given the explanation provided by the respondent, specifically that he had gone outside for a cigarette or to collect some firewood, and given also that there was no evidence that the respondent had left his residence.  The respondent was reminded of the written lawful instruction that had been issued to him in relation his electronic monitoring requirements.

14. The respondent committed the third of his contraventions of the Supervision Order on 17 August 2016.  On that date police conducted a search of the respondent's home and located 41 non‑sexual images of children, 18 of these images being of pre‑pubescent children.  The images had been cut out of magazines and newspapers and stuck onto cardboard.  The respondent had started collecting and keeping the images in around April 2016.  The respondent had written names and ages on the cardboard next to the images.  The images were stored with the respondent's collection of adult pornography. 

15. On 18 August 2016 the respondent was charged under s 40A(1) of the Act with one offence of contravening the Supervision Order by possessing the images of the children.  On 2 September 2016 the respondent pleaded guilty to, and was convicted of, the charge.  His explanation for the offending was that he had collected the images in response to everyone telling him that he was a paedophile and that he therefore thought that he would test himself.  He was sentenced to 9 months imprisonment suspended for two years.  In sentencing the respondent the magistrate found that the respondent had wilfully and knowingly contravened the Supervision Order,[19] that he had engaged in the contravening conduct while he was receiving psychological counselling as part of the Supervision Order,[20] that there was a 'sinister component' to the contravention,[21] and that he had collected and kept the images of the children for sexual reasons (this last finding being made in part in light of the fact that the images were stored with the respondent's collection of adult pornography).[22]

    [19] ts 12, 23 December 2016.

    [20] ts 9, 23 December 2016.

    [21] ts 7, 23 December 2016.

    [22] ts 8, 12, 23 December 2016.

16. The respondent committed the last of his contraventions of the Supervision Order on 4 October 2019.  The GPS recorded that the respondent's PCU was not in range of the transmitter for an eight minute period.  As a result the respondent was unable to be tracked for this period of time.  The respondent explained the situation by stating that he had left his PCU in his car when he parked his car to enter a shop to purchase a loaf of bread.  The matter was referred to the police for consideration as to whether the respondent should be charged under s 40A(1) of the Act.  A decision was made not to charge the respondent given that the respondent had established contact with ACC promptly.  The respondent was issued a formal warning letter for the contravention. 

United States charges

1. On 8 January 1990 in the State of Oregon in the United States the respondent was, following an examination of witnesses before a Grand Jury, charged on an indictment dated 8 January 1990 with one offence of unlawfully and knowingly touching a girl, JL, who was under the age of 12 years, on her vagina.  The offence was alleged to have been committed on a date between 1 September 1989 and 30 September 1989.  JL was the respondent's step‑daughter. 

2. On 15 January 1990 in the State of Oregon in the United States, the respondent, following an examination of witnesses before a Grand Jury, was charged on an indictment dated 15 January 1990 with two offences of unlawfully and knowingly touching a girl under the age of 12 years on her vagina, three offences of 'deviate sexual intercourse oral‑vaginal' with a girl under the age of 12 years, four offences of 'deviate sexual intercourse anal‑penile' with a girl under the age of 12 years, and one offence of sexual intercourse with a girl under the age of 12 years.  All of the offences were alleged to have been committed against the one child, DC, on various occasions during the period between 1 June 1989 and 30 September 1990.  The respondent was a friend of DC's family.

3. Warrants have apparently been issued for the respondent's arrest in relation to the indictments.  However, extradition is not being pursued.

4. It is worth noting that the respondent appears to have departed from the United States not long before he was charged with the above referred to offences.

Current situation

1. The respondent lives with his 95‑year‑old father in his father's Department of Community (Housing) two bedroom unit.  The unit is located in an 'over 55's' unit complex in Busselton.  The respondent's father has recently submitted an application to Housing to have the respondent added as a co‑tenant.  The respondent's father's application is in the process of being assessed at Housing's head office.

2. The respondent is a registered carer for his father.  He provides assistance and support to his father when required.

3. The respondent remains in regular telephone contact with his 93‑year‑old mother who lives independently in Hyden.  In recent times the respondent and his father have made several trips to Hyden to spend time with the respondent's mother.

4. The respondent maintains contact with his brother who lives in the Perth metropolitan area.  On occasions he also has contact with other extended family members.  His sister, who lives in Queensland, after having initially severed contact with the respondent as a result of his offending, now visits him in Busselton on a regular basis.

5. The respondent is in receipt of a Centrelink Aged Pension. 

6. The respondent maintains a fairly regular daily routine which revolves around attending to household chores, shopping, engaging in occasional brief contact with his neighbours, and attending medical appointments for himself and with his father.  He enjoys reading books, gardening and feeding wildlife (birds).

7. Generally speaking the respondent maintains a solitary lifestyle.  He has reported that he is content with his current level of social contact and that he has little interest in engaging in other normal age related social activities.  The respondent has further reported that he is not seeking any additional attachments or relationships because the onus of having to disclose his offending behaviour is prohibitive for him.

8. The respondent has no plans to seek employment. 

9. The respondent has been diagnosed with several health issues for which he is being treated, including high blood pressure, chronic obstructive pulmonary disorder and chronic fatigue syndrome.

10. In the past 12 months or so the respondent has expressed a wish to relocate with his father to a different regional area south of Perth for health reasons.  The respondent has also expressed a desire to have his mother reside with him so that he can provide home care support to her.  However, given his current court matters, his current health issues, his father's current health issues, and restrictions associated with COVID‑19, the respondent has not recently actively pursued his desire to relocate.

11. On 6 March 2020 the Victim Mediation Unit provided to ACC updated information.  Following the provision of this updated information the respondent was issued with a Written Lawful Instruction preventing him from entering the City of Mandurah inclusive of 18 suburbs. 

Psychiatric reports prepared as required by s 37 of the Act and the extent to which the person cooperated when examined by the psychiatrist - s 7(3)(a)

1. In accordance with the orders made by Fiannaca J on 29 January 2020, the respondent has, pursuant to s 37(1)(a) of the Act, been examined and assessed by a qualified psychiatric expert, namely Dr Wojnarowska.  Dr Wojnarowska was provided with all relevant material and has prepared her above referred to report dated 26 May 2020 pursuant to s 37(1)(b) of the Act.  In order to enable her to prepare her report Dr Wojnarowska was provided with all relevant materials.  In addition Dr Wojnarowska spoke to Ms Kelly Gibson, clinical psychologist.  Ms Gibson is a privately contracted clinical psychologist who has, under the supervision of Ms Joanne Collyer as a Department of Corrective Services psychologist, been the respondent's treating psychologist since June 2016. 

Report

1. Dr Wojnarowska's report reveals the following.

2. Dr Wojnarowska interviewed the respondent on 9 May 2020.  The respondent recognised Dr Wojnarowska from his previous encounters with her.  He interacted pleasantly.  Rapport was established and he engaged well.

3. During Dr Wojnarowska's previous assessments of the respondent he strongly denied abusing his former wife's 9‑year‑old daughter or thinking about her in a sexual way.  However, on this occasion the respondent admitted to Dr Wojnarowska that he did sexually interfere with his step‑daughter and his step‑daughter's friend.  That is, the respondent admitted to Dr Wojnarowska sexually abusing the two complainants the subject of the United States indictments presented against him.

4. The respondent informed Dr Wojnarowska that he had been preparing himself for his father's death.  He stated that he felt as though he would be able to cope with this occurrence because he will still have to care for his mother and will still have the support of his siblings.

5. The respondent told Dr Wojnarowska that he has a low libido but that he would still like to be able to visit sex workers to fulfil his need for physical closeness ('a cuddle') as he perceives himself to be too ugly to attract an age appropriate female.

6. The respondent informed Dr Wojnarowska that he had had no sexual thoughts about his victims or any other children but that he would frequently think about how they had been and whether they were alright.  The respondent told Dr Wojnarowska that he would choose an adult over a child in a sexual situation because he did not want 'to end up in the same situation, hurt someone again and hurt my family'.

7. The respondent spoke to Dr Wojnarowska about the 'void' that he had felt at the time when he was offending.  He stated, 'I thought it was love, now I know it was just me being selfish and thinking this void can be filled by being with a child'.  The respondent also stated, 'There is no void anymore; I have people around me who give me the feeling of belonging and being loved'.

8. Dr Wojnarowska's psychiatric formulation relating to the respondent has not changed since her last assessment of him.  In Dr Wojnarowska's opinion the respondent's sexual interest in children has been present for a long time and fulfils the diagnostic criteria for 'paedophilia, attracted to females, non‑exclusive type'.  In her view the fact that the respondent's paedophilia is 'non‑exclusive' suggests that he is also capable of experiencing sexual fulfilment in a sexual relationship with adult females.

9. In Dr Wojnarowska's opinion the respondent's history of a pervasive pattern of social inhibition, feelings of inadequacy and hypersensitivity to negative evaluation is consistent with a diagnosis of Avoidant Personality Disorder.  In Dr Wojnarowska's view this disorder developed over years, mostly likely on the basis of a biological (genetic) predisposition associated with adverse life events, which in the respondent's mind confirmed his inferiority compared with others and his lack of attractiveness.

10. Dr Wojnarowska assessed the respondent's risk of reoffending using Actuarial Instruments and Structured Clinical Guides.  Actuarial Instruments use mainly static (unchangeable) risk factors.  The Actuarial Instruments used by Dr Wojnarowska were the Static‑99R and the Hare Psychopathic Checklist (PCL‑R).  The non‑actuarial instrument used by Dr Wojnarowska was the Risk for Sexual Violence Protocol (RSVP).

11. The respondent's Static‑99R score was 3 which placed him in the average risk category for reoffending.  However, for every five years that an offender is in the community without committing a new sexual offence the risk of recidivism is reduced by half.  Offenders who score 3 on the Static‑99R have an average rate of sexual reoffending of 16.8% over five years.  This means that out of 100 sexual offenders with the same risk score 16.8 will be charged or convicted of a new sexual offence after five years in the community.  Conversely, 83.2 would not be convicted of a new offence.  With consideration of the respondent's offence‑free period his risk score of reoffending is 8.4% which places him at below the average risk for a sexual offender which is 15%.

12. The score obtained from Dr Wojnarowska's assessment of the respondent using the PCL‑R placed him in the low range.  The respondent did not reach the threshold of psychopathy.

13. Dr Wojnarowska used the RSVP to identify risk factors that are present in the respondent's case.  In doing so she identified the following risk factors:  chronicity (that is, persistence and frequency) of sexual offending; escalation of sexual offending; escalation of sexual offending; psychological coercion; problems with stress or coping; sexual deviance (defined as 'an interest, preference, arousal or behaviour that involves a focus on persons or objects and may be manifested in fantasies, urges or repeated acts of a sexually deviant nature'); and a history of problems with intimate and non‑intimate relationships.

14. Dr Wojnarowska is of the view that the sexual deviance risk factor is 'strongly present' in the respondent's case.

15. In relation to the problems with intimate and non‑intimate relationships risk factor, Dr Wojnarowska, on balance, does not consider this to be a major risk factor for the respondent.  In her view, although the respondent has used the service of sex workers over the years to satisfy his sexual needs, he is acutely aware of the fact that these encounters are not fulfilling his needs of intimacy.

16. Dr Wojnarowska does not consider that the risk factor of problems with self‑awareness is present.  She considers that the respondent appears to have insight into the factors and processes that have placed him at risk of sexual offending.  She considers that he is aware of his previous lack of boundaries in relation to children.

17. Dr Wojnarowska does not consider that the problems with treatment risk factor is present in the respondent's case.

1. Dr Wojnarowska does not consider that the risk factor of having problems with planning is present in the respondent's case.  She considers that the respondent has developed capacity around plans to prevent reoffending which he was able to articulate during the Intensive Sex Offender Treatment Program (ISOTP) which he completed on 1 June 2012 while serving the term of imprisonment for the offences of which he was convicted on 13 September 2007.  Specifically, Dr Wojnarowska considers that the respondent displays strong motivation to avoid any contact with children which may potentially expose him to high risk situations.  She considers the fact that the respondent has also started to develop an open communication with his family members who will be his primary supports in the community is relevant in this context. 

2. Dr Wojnarowska considers that an additional consideration in relation to risk is the respondent's age and medical complications.  She considers that these factors ameliorate his risk. 

3. Dr Wojnarowska's opinion, on balance, is that the clinical analysis of the risk factors as they relate to the respondent as guided by the RSVP indicate that his risk of sexual reoffending is significantly lower than that assessed by her in 2015, and as such is consistent with his risk level as assessed using the actuarial methods.[23]

   [23] In her report dated 28 March 2015 which Dr Wojnarowska prepared for the purposes of the application heard and determined by Simmonds J, she assessed the respondent as being at a high risk of committing serious sexual offences if not subject to supervision in the community:  see Book of Materials, page 21.

4. Dr Wojnarowska made use of the RSVP to identify the type of offending scenarios that may occur for the respondent.  One of the reasons for her having done so is that resulting scenario planning can then provide the basis for management interventions that may ameliorate risk in the community.

5. In Dr Wojnarowska's opinion if the respondent does reoffend it is most likely that his offence will be a sexual penetration type offence involving digital or penile penetration.  She considers the respondent's likely victims will be pre‑pubescent females to whom he has pre‑existing access and has been able to groom via a position of trust.  She considers that the respondent's likely motivation will be the gratification of his deviant sexual interest in children.  She considers that the psychological harm to the child will be that of enduring psychological disturbance characterised by low self‑esteem, vulnerability to the development of psychiatric disorders and emotional fragility.  She considers that the potential for sexual offending and violence to escalate to serious or life‑threatening violence is low as this would not be consistent with the selection of victim and grooming practices that the respondent tends to employ.

6. In Dr Wojnarowska's opinion temporality of engagement in sexual offending (that is, imminence of offending) may depend on how soon the respondent develops a relationship with the victim's caregivers.  Warning signs that may signal an increasing or imminent risk are difficult to identify.  In her opinion, the respondent does not require the development of a meaningful relationship with a child in order to offend.  Nonetheless, she considers that access to pornography, child exploitation material in particular, should be considered a warning sign.

7. Dr Wojnarowska considers that the respondent is unlikely to change his type of offending or escalate his offending by attempting to rapidly groom a stranger.  She considers that he is also unlikely to progress to abductive type behaviours whereby his offending is not preceded by grooming. 

8. In Dr Wojnarowska's view the respondent's contravention of the Supervision Order in August 2016 confirmed that the respondent had been fantasising about children.  She considers that this will be a lifelong occurrence for the respondent. 

9. The respondent's statistical risk of reoffending in the next five years is now below the average risk for a sexual offender.  Further, the dynamic risk factors that were strongly present during Dr Wojnarowska's first assessment of the respondent and which included lack of awareness and transparency, lack of acceptance of his paedophilic interests, narcissistic and grandiose defences, and amenability to make a meaningful emotional connection with others, have been significantly reduced through psychological treatment.  In Dr Wojnarowska's view strong protective factors that exist in the respondent's case include his feelings of obligation to his family, his motivation not to disappoint them and his fear of being incarcerated for the rest of his life.

10. In Dr Wojnarowska's opinion the respondent does not currently present with a high risk of sexual reoffending.  However, she accepts that the respondent's mental state could destabilise once his current carer role is made obsolete by his parents passing.  She considers that at that time the respondent would benefit from supportive counselling which he is committed to on a voluntary basis.

Oral evidence

1. In her oral evidence Dr Wojnarowska maintained the views and opinions expressed in her report.  Dr Wojnarowska also gave the following supplementary evidence. 

2. It is the position that at this point in time most of the respondent's interaction with other people is confined to interaction with members of his family.[24]  Her understanding is that the respondent is reluctant to form close relationships with other people due to the fact that he would be required to disclose his past which he feels very ashamed of.[25]  However, another factor which goes to explain the respondent's reluctance to form close relationships with people other than members of his family is his personality structure.[26]  He prefers his own company and this is not likely to change in the future.[27]

   [24] ts 153, 3 June 2020.

   [25] ts 153, 3 June 2020.

   [26] ts 153, 3 June 2020.

   [27] ts 153, 3 June 2020.

3. In her view if the respondent is no longer on a supervision order it will be easier for him to confide in selected people with whom he feels he can develop some closeness with about his past.[28]  It will be easier for the respondent to confide in selected people when he is no longer on a supervision order because he will be able to say that his time on the order is in the past.[29]  She perceives the Supervision Order as a barrier to the respondent forming relationships with others because he does not want to disclose the fact that he is a sexual offender on a supervision order.[30]  However, the reality is that the respondent has never been an outgoing person and this is not going to change.[31] 

   [28] ts 154, 3 June 2020.

   [29] ts 154, 3 June 2020.

   [30] ts 154, 161, 3 June 2020.

   [31] ts 154, 3 June 2020.

4. The halving of the statistical risk of reoffending arrived at by using the Static‑99R tool due to the respondent not having reoffended during the last five years does not take into account that during those five years he has been the subject of the Supervision Order.[32]

   [32] ts 155, 3 June 2020.

5. The possible destabilisation of the respondent's mental state due to events that may arise in future years may give rise to a risk of the respondent reverting to offending.[33]  However, whether these factors would destabilise him to the point that he will revert is a question that no‑one can answer.[34]

   [33] ts 157 ‑ 158, 3 June 2020.

   [34] ts 158, 3 June 2020.

6. It is the position that in 2015 her opinion was that the respondent's risk of reoffending was sufficient to make it appropriate for him to be made the subject of a supervision order.[35]  This is no longer her view.[36]  Some things have changed between 2015 and now which have caused her to alter her view.[37] 

   [35] ts 158, 3 June 2020.

   [36] ts 158, 3 June 2020.

   [37] ts 158, 3 June 2020.

7. One of the factors that she has taken into account in arriving at her risk assessment of the respondent is that he has remained offence free for five years.[38]  This is a significant factor but her opinion as to the respondent's level of risk does not rely solely on this factor.[39]

   [38] ts 159, 3 June 2020.

   [39] ts 159, 3 June 2020.

8. The significance of the progress that the respondent has made in his counselling is that the risk factors that are relevant to the respondent have been mitigated.[40]

   [40] ts 160, 3 June 2020.

9. In her view there was nothing wrong with the respondent wanting to visit sex workers to fulfil a need for physical closeness.[41]  Physical closeness is an expected human interest.[42]

   [41] ts 160, 3 June 2020.

   [42] ts 160, 3 June 2020.

10. She accepts the respondent's assertion that he has a low libido.[43]  This is a protective factor.[44]

    [43] ts 161, 3 June 2020.

    [44] ts 160, 3 June 2020.

11. She does not have any doubts about the genuineness of the respondent's statements to her to the effect that he has people around him who give him the feeling of belonging and being loved.[45]  This is a very positive feature and is a significant change from the position that existed in 2015.[46]  The absence of such feelings in 2015 was a very important risk factor in his sexual reoffending.[47]  By addressing this factor the respondent has significantly lowered his risk of reoffending.[48] 

    [45] ts 161, 3 June 2020.

    [46] ts 160, 3 June 2020.

    [47] ts 161, 3 June 2020.

    [48] ts 160, 3 June 2020.

12. The respondent's age and associated decrease in vitality, as well as his chronic fatigue syndrome and narcolepsy, means that there are periods of time, specifically during the day, that he feels very tired.[49]  This would decrease his ability to groom children, stay on task and pursue children.[50]

    [49] ts 164, 3 June 2020.

    [50] ts 164, 3 June 2020.

13. Her conclusion is that since the contravention by the respondent of the Supervision Order in August 2016 there has been a reduction in the respondent's dynamic risk factors, most particularly in the last 12 to 14 months.[51]

    [51] ts 165, 3 June 2020.

14. As to whether or not the respondent will, if he is not subject to a supervision order, voluntarily engage in counselling she considers that the likelihood of him doing so is equal to the likelihood of him not doing so.[52]  When she interviewed the respondent she thought that he was sincere in his intention to stay offence free, psychologically healthy and connected with other people.[53]  She considers that the respondent's new found level of engagement in counselling is supportive of a conclusion that it is more likely than not that he will continue with the supports and counselling that he has embraced in the last 12 to 14 months.[54]

    [52] ts 166, 3 June 2020.

    [53] ts 166, 3 June 2020.

    [54] ts 166, 3 June 2020.

15. If the respondent is to be subject to a further supervision order, she does not think that it is necessary or desirable for the order to be in place for five years.  She would suggest a period of between two to three years.[55]

    [55] ts 166, 3 June 2020.

16. In relation to the RSVP problems with self‑awareness risk factor, she would say that the factor existed to the extent of 20% to 30%.[56]

    [56] ts 167, 3 June 2020.

17. She does not consider that the RSVP risk factor of having problems with treatment is present in the respondent's case.[57]  Although there were initial difficulties between the respondent and his treating psychologist, she would expect such difficulties to be present in someone who for years denied who he was and who had the type of personality structure that the respondent has, namely being an introvert and an avoidant person.[58]  Further, the respondent's psychologist, Ms Gibson, is now confident that the respondent has made significant progress.[59]

    [57] ts 167, 3 June 2020.

    [58] ts 167 ‑ 168, 3 June 2020.

    [59] ts 168, 3 June 2020.

18. Her understanding is that the respondent fully recognises that he has a sexually deviant interest in children.[60]  He not only talks about love but also about his sexual interest in children.[61]  He knows that he is a paedophile and that this is not going to change.[62]

    [60] ts 168, 3 June 2020.

    [61] ts 168, 3 June 2020.

    [62] ts 168, 3 June 2020.

19. The respondent has in the past talked a lot about the void that he has for all of his life experienced and has asserted that he was only able to fill the void by acting on his fantasies about children and deluding himself that he has been loved.[63]  However, the respondent now talks about the void being filled by the emotions associated with developing connections with his family.[64]  She accepts that this is not perfect.[65]  However, she does believe that the respondent has developed enough strategies to cope with his sexually deviant feelings.[66]  She has a degree of confidence that the respondent will be able to use appropriate strategies should his deviant thoughts and desires reoccur.[67]

    [63] ts 169, 3 June 2020.

    [64] ts 169, 3 June 2020.

    [65] ts 169, 3 June 2020.

    [66] ts 169, 3 June 2020.

    [67] ts 169, 3 June 2020.

20. If the respondent is not subject to a supervision order he will be able to arrange for counselling through the public health system under the Better Outcomes Scheme.  This would entitle him to 10 to 12 counselling sessions in a year.[68]

    [68] ts 173, 3 June 2020.

21. The limitations associated with obtaining counselling from the public health system is a factor that she took into account before she gave her overall opinion as to the respondent's risk of reoffending.[69]

    [69] ts 175, 3 June 2020.

22. There is a possibility that the respondent's risk of reoffending will increase because of the loss of the carer role that he performs at the moment.[70]

Any other medical, psychiatric, psychological or other assessment relating to the person - s 7(3)(b)

[70] ts 175 ‑ 176, 3 June 2020.

1. I have already referred to the fact that the evidence relied upon by the State included historical psychological, psychiatric and other reports prepared in relation to the respondent. I have, of course, had regard to these historical reports. However, it is not, in order to explain the reasons for my decision on the application, necessary for me to make detailed reference to the content of these various reports (beyond the extent to which I do so below in dealing with the factors specified in s 7(3)(e) and s 7(3)(f)). Rather, it is sufficient for me to refer to the additional reports that have been prepared in relation to the respondent specifically for the purposes of the application.

Psychological risk assessment - Ms Hasson

1. Pursuant to the orders made by Fiannaca J on 29 January 2020, the respondent has, pursuant to s 37(1)(a) of the Act, been examined and assessed by a qualified expert, Ms Hasson.  Ms Hasson has prepared her above referred to report and addendum report pursuant to s 37(1)(b) of the Act.  In order to enable her to prepare her reports Ms Hasson was provided with all relevant materials.  Ms Hasson also spoke to Ms Gibson in order to enable her to prepare her reports. 

Report and addendum report

1. Ms Hasson's report and addendum report reveal the following.

2. Ms Hasson interviewed the respondent on 6 May 2020 over a four hour period.  The respondent's demeanour throughout the assessment was polite and cooperative, and his mood was generally positive.  He answered all questions spontaneously and with a reasonable quantity and quality of information.

3. The respondent emphasised that he is content with his current level of social contact which is limited to various acquaintanceships with others in his apartment block and the retail workers he sees on a regular basis and with whom he engages in pleasantries.  He indicated that he was not seeking any additional attachments or relationships because the onus of having to disclose his offending behaviour is prohibitive for him.

4. The respondent expressed frustration at ongoing questions about his level of sexual drive, frequency of sexual thoughts, sexual fantasies and masturbation habits.  He debated with Ms Hasson what constituted a fantasy.

5. The respondent acknowledged experiencing a sexual interest in, or arousal associated with, adult females that he estimated to occur between once and three times a month.  He expressed a minimal interest in masturbation and pornography.

6. The respondent acknowledged a historical interest in child pornography and female children as evidenced by his criminal convictions.  However, he denied an obvious current sexual interest in children and indicated that he did not consider himself to be a paedophile.  He did not acknowledge any incidents of arousal associated with thoughts or unplanned sightings of female children. 

7. Although at the time of conducting her interview Ms Hasson did not have knowledge of the details of the offences allegedly committed by the respondent in the United States, she did ask questions of the respondent in relation to the charges.  The respondent denied all knowledge of who had accused him, and when and where the offences were alleged to have been committed.  He expressed 'disgust' at allegations of anal penetration.

8. Leaving aside the offences allegedly committed by him in the United States, the respondent accepted responsibility for his offending.  He did not engage in victim blaming or minimisation. 

9. The respondent described the conditions and obligations of the Supervision Order as 'stressful, difficult and onerous'.  In this context the respondent highlighted the wearing of the GPS ankle monitor and the PCU, restrictions on his ability to travel, time allowed for visiting, exclusion zones and his inability to access the internet and sex workers as areas of most concern.  He was positive about supervision and attendance at counselling and his engagement with the Sex Offender Management Squad.

10. Ms Hasson assessed the respondent's risk of reoffending using a structured professional judgment approach combining the use of actuarial and non‑actuarial tools in combination with a forensic psychological assessment and formulation.  The actuarial tools used by Ms Hasson were the Static‑99R and the PCL‑R.  The non‑actuarial tool used by Ms Hasson was the RSVP.

11. In routine samples of sexual offenders the average five year sexual recidivism rate is between 5% and 15%.  In order to use the Static‑99R to estimate recidivism rates it is necessary to select the reference group that the offender most closely resembles.  Recidivism rate norms are provided for routine samples and samples that have been preselected to be high risk and high need.  The routine samples are the appropriate reference group for most situations.  However, it is possible that the high risk and high need samples may be appropriate in some circumstances such as when assessing the risk of sexual reoffending in offenders that are subject to the Act.

12. The respondent's Static‑99R score was 3 which placed him at Risk Level III (Average Risk) for being charged with, or convicted of, another sexual offence.  Level III offenders would be the typical offenders in the middle of the risk distribution.  Using routine samples with the same score as the respondent as the relevant reference group, the estimated probability of the respondent committing a further sexual offence within the next five years is 8%.  Using ‘High Risk/High Need samples with the same score as the respondent as the relevant reference group, the estimated probability of the respondent committing a further sexual offence within the next five years is 14%.  However, the respondent has remained sexual offence free during the five years that he has been subject to the Supervision Order.  Accordingly, Ms Hasson has adjusted his Static‑99R risk to reflect this fact which places him at Risk Level II (below average risk).

13. In Ms Hasson's view, reduced recidivism is associated with high quality release plans that support accommodation, positive social connections, employment or hobbies, and pro‑social personally meaningful goals.  It is therefore quite plausible that a gradual, multi‑year decline in risk is linked to factors in addition to age, such as an individual developing increasingly affective pro‑social ways of achieving a satisfying life.  In Ms Hasson's view the respondent has been able to achieve some of these goals since his release.  However, many have remained elusive for the respondent. 

1. The score obtained from the assessment of the respondent using the PCL‑R placed him in the low range.  He did not reach the threshold for psychopathy.  He does not possess many psychopathic traits.  These results are consistent with previous assessments.

2. Ms Hasson used the RSVP to identify risk factors that are present in the respondent's case.  In doing so she identified the following risk factors:  chronicity (that is, persistence and frequency) of sexual offending; diversity of sexual offending; escalation of sexual offending; psychological coercion; problems with self‑awareness; problems with stress or coping; sexual deviance - paedophilia (non‑exclusive); history of problems with intimate and non‑intimate relationships (that is, an inability to establish or maintain stable romantic or sexual relationships with age appropriate partners or stable non‑intimate pro‑social relationships with age appropriate peers); problems with treatment up until the last 12 months.

3. In relation to the problems with self‑awareness risk factor (which Dr Wojnarowska ultimately accepted as being present to the extent of 20% to 30%), Ms Hasson's view is that there is partial evidence that the respondent may continue to have problems in this domain.  In her view there were, following her assessment of the respondent, some questions or concerns about his ability to accurately appraise his personal strengths and limitations, as well as the general nature of the association between thoughts and behaviour, ability to cope with negative affectivity, interpersonal conflict and deviant thoughts and urges.

4. With respect to the problems with treatment risk factor (another factor which Dr Wojnarowska did not identify as being present) Ms Hasson points out that despite the respondent's assertions that he gained a great deal from his participation in the ISOTP, he collected and modified child related imagery while subject to the Supervision Order with his explanation for having done so being that everyone kept telling him that he was a paedophile.  In Ms Hasson's view the respondent's comments to this effect indicate that he has not accepted this diagnosis.  She also considers that the respondent's inability to accept that he is a paedophile has resulted in his entrenched avoidance of exploring this issue more fully.

5. Ms Hasson also used the RSVP to identify risk scenarios for the respondent.  She considers the most likely scenario for future offending by the respondent would consist of him establishing a relationship with a family with female children followed by a period of grooming and ingratiating himself with the family before ultimately proceeding to hands‑on sexual touching and kissing of the child.  The respondent may also attempt to persuade the child to touch him.  Such offences will most likely occur over the top of clothing.

6. In relation to the issue of the imminence of any reoffending, imminence is highly dependent on the structure around the respondent, his level of satisfaction, his connectedness to others, his sense of purpose, and his capacity to meet his sexual needs for intimacy and gratification through legal or pro‑social means.  Ms Hasson considers that if the respondent experiences significant negative affectivity the imminence of risk will become more likely.  She also considers that an increase in the presence of sexual arousal, interest in or attraction towards children will correspondingly escalate the imminence of the respondent's offending.

7. In relation to the issue of frequency and duration of any reoffending, Ms Hasson considers that if the respondent is not caught immediately after reoffending there is a potential for him to continue to offend several times against the same victim and/or to seek new victims.  She considers that his history shows acute and chronic episodes of sexual offending.  She expresses the view that supervision and management are key to managing his risk for the foreseeable future. 

8. Ultimately, based on her assessment of the respondent, including his static and dynamic risk factors, Ms Hasson is of the opinion that the respondent presents as an average or moderate risk of sexual reoffending within the next five years if he is not subject to a supervision order.

9. In Ms Hasson's opinion, despite the presence of situational, psychological and emotional precipitance to the respondent's offending, the most likely significant contributor to his offending behaviour is the presence of sexual deviance.  She considers that this is evidenced by the number of the respondent's victims, the longitudinal nature of his offending, his interest in child exploitation material including material downloaded from the internet, his taking of photographs of some of his victims, his creation of his own material via stories and the modification of non‑sexual images of children, and his possession of children's underwear.

10. Ms Hasson considers that the respondent has a clear cycle of sexual offending.  He has a preference for pre‑pubescent female children.  He engages in a period of grooming of both the complainants and their families by ingratiating himself into their lives.  He then becomes socially, emotionally and psychologically dependent on the families to boost his feelings of self‑worth and acceptability.  He forms close physical relationships with the children because this means they are likely to be less critical, judgmental and rejecting of him.  It is in this process that his interest in the children becomes more overtly sexual.  His offending elicits sexual pleasure and the experience of positive emotions.

11. During Ms Hasson's assessment of the respondent, he demonstrated some insight into his sexual offending by identifying that his experience of negative emotions and his lack of ability to manage them appropriately, deficits in coping skills, and loneliness and isolation all contributed to his offending behaviour.  The respondent was, however, reluctant to discuss with Ms Hasson the significance of his sexual deviance.  He could only articulate that he would avoid children, and that he had 'drawn a line in the sand' that he will not associate with children or develop relationships with adults with children.  The respondent was unable to articulate how he would manage experiences of sexual arousal or the re‑emergence of sexual thoughts about children.  He expressed resentment and annoyance that he is repeatedly asked about his level of sexual drive, frequency of masturbation, and fantasy content.  In Ms Hasson's view, the respondent has become adept at deflecting this topic with vague responses.

12. The respondent demonstrated some insight into his risk of sexual reoffending in the future.  He was able to identify high risk factors and situations such as being around children.  He also acknowledged having to avoid places where children frequent or where he has previously committed offences.  He understands that loneliness and isolation and negative views of himself have been relevant factors in his offending.  He told Ms Hasson that he is looking forward to being able, when he is no longer the subject of supervision, to use the internet, travel freely, visit sex workers when he feels like it, move house and form friendships without the need for disclosure. 

13. It seems to Ms Hasson that some of the respondent's conforming behaviour is, in part, due to an external locus of control as opposed to him accepting and understanding why it will be important for him to avoid places and situations that he is currently prohibited from attending even when he is no longer subject to supervision and monitoring.  In Ms Hasson's view there appears to be a limited internal locus of control and there is a concern that the respondent may have become somewhat complacent about his risk.  In her opinion, and particularly in light of the respondent's comments as to activities that he would like to engage in once he is no longer subject to supervision, the respondent's risk to date has been managed by the conditions and reporting requirements of the Supervision Order which he relies upon as a source of external control.

14. Despite his long history of sexual offending against children, the respondent is reluctant to accept the previously made diagnosis of paedophilia.  As a result he is, in Ms Hasson's view, potentially lacking appropriate risk management strategies when he may need them most.  The respondent is more comfortable identifying psychosocial and emotional background factors associated with his offending rather than acknowledging the central role of his deviant sexual interest.  The development of specific strategies to enable the respondent to manage sexually deviant thoughts and feelings is, in Ms Hasson's view, essential because despite the respondent's best efforts to avoid children there may be many occasions or times when this is not possible and deviant sexual urges may occur.  The respondent, in Ms Hasson's view, needs to know how to manage these urges. 

15. Ms Hasson acknowledges that the respondent has made some solid gains in treatment and supervision, and has formed solid collaborative relationships with those involved in his management especially since his relocation to Busselton.  The concern for Ms Hasson is that the respondent is likely to experience a number of stressful life events in the next five years including, but not limited to, major changes in the health of his mother and father and older relatives, the death of his parents, changes in family get‑togethers and relationships, increasing personal illness or injury, sexual difficulties, changes in his financial position, a major change in his living conditions, a change in the type of his usual recreation and hobbies, and a loss of current professional supports and purpose in life.  All of these events will be psychologically and emotionally challenging.  In Ms Hasson's view there are questions about whether the respondent has sufficiently broad and well‑developed coping skills to manage these stressful life events without reverting back to old patterns of behaviour.

16. Ms Hasson recommends the following in the event that the court decides that the respondent remains a serious danger to the community and should therefore be subject to a further supervision order:

    1.The respondent be subject to at least a five year supervision order;

    2.The respondent continue with psychological counselling with the focus being on existing treatment targets as well as identifying specific strategies to manage deviant sexual thoughts and urges;

    3.The respondent keep a journal of sexual practices including frequency of sexual thoughts, masturbation habits and details of stimulus.  Sexual functioning should also be recorded.

17. Ms Hasson bases the last of her recommendations on the respondent's vague and reluctant discussions about sexual issues.  In her view it is important to be able to determine as accurately as possible the respondent's level of sexual drive.

Oral evidence

1. In her oral evidence Ms Hasson maintained the views and opinions expressed in her report, save in relation to the required length of any supervision order.  Her supplementary oral evidence was as follows. 

2. The respondent's primary criminogenic need is his deviant sexual interest in children.[71]  This is the respondent's primary risk factor treatment need.[72]

   [71] ts 178, 3 June 2020.

   [72] ts 178, 3 June 2020.

3. The respondent's paedophilia will always be present and is a risk factor which predisposes him to offend against children.[73]  Other factors contribute to what might be seen as 'the more precipitating factors as to why he would act on those thoughts and feelings'.[74]

   [73] ts 178, 3 June 2020.

   [74] ts 178, 3 June 2020.

4. The respondent's other criminogenic needs or risk factors are his need to feel wanted, accepted and loved by others, and his low self‑esteem which might make it more likely that he will lean towards children who he might perceive to be less judgmental of him.[75]

   [75] ts 178, 180, 3 June 2020.

5. When she met with the respondent and assessed him he was engaged in the assessment process.[76]  He demonstrated far less resistance to the assessment process than he has during past assessments of him.[77]

   [76] ts 179, 3 June 2020.

   [77] ts 179, 3 June 2020.

6. She did not think that the respondent was being disingenuous with her.[78]  She did not think that the respondent was trying to tell her what he wanted her to hear or was trying to create a positive impression in any way.[79]  She thought that he was just being candid.[80]

   [78] ts 179, 3 June 2020.

   [79] ts 180, 3 June 2020.

   [80] ts 180, 3 June 2020.

7. If the respondent is not subject to a further supervision order he will be able to access psychological counselling through the Better Outcomes in Mental Health program.  This will be via a referral from his general practitioner.[81]  Under this program he will be limited to approximately 10 to 12 counselling sessions a year.[82]  It is unlikely that his current psychologist will be able to continue to see him because she is employed by the Department of Justice and it would be seen as a conflict if she proceeded to see him on a private basis.[83]  The respondent would therefore need to establish a new relationship in the community with another psychologist.[84]

   [81] ts 181, 3 June 2020.

   [82] ts 181, 3 June 2020.

   [83] ts 181, 3 June 2020.

   [84] ts 181, 3 June 2020.

8. She is of the opinion that there is partial evidence of the respondent having problems with self‑awareness because when she asked the respondent about how he would cope in certain situations and in certain scenarios he was only able to articulate a very limited repertoire of coping skills.[85]  The respondent always spoke about avoidance.[86]  However, avoidance is not always possible and apart from asserting his intention to avoid children the respondent could not articulate any other strategies that he would make use of if he did come across a child that aroused his deviant sexual interest.[87]  The respondent was not able to articulate what steps he would take to deal with such feelings.  Specifically, he was not able to articulate what he would do, how he would change his thoughts, or how he would challenge his thinking, or how he would resolve his feelings.[88]

   [85] ts 182, 3 June 2020.

   [86] ts 182 ‑ 183, 3 June 2020.

   [87] ts 183, 3 June 2020.

   [88] ts 183, 207, 3 June 2020.

9. At the moment the respondent is quite content and settled.[89]  He lives a quite limited and sheltered life.[90]  His life is 'very constricted' and revolves a lot around his current place of residence, the routines he has established since his move to Busselton, the contact that he has with his psychologist and his CCO, and the role that he plays in caring for his father.[91]

   [89] ts 184, 3 June 2020.

   [90] ts 184, 3 June 2020.

   [91] ts 184, 3 June 2020.

10. The respondent is likely to encounter a range of stressful factors in the next few years (most obviously the passing of his parents) which have the capacity to destabilise his life.[92]  The destabilisation of the respondent's life caused by him experiencing stressful life events is a major risk factor for the respondent.[93]  Her concern, given that the respondent has not made other connections in the wider community, is that the respondent will not have the skills to manage and cope with 'the storm of change'; that is, with grief and the loss of a large component of his life that he will experience on the passing of his parents.[94]  When changes occur and 'things start to crumble' often people revert back to old ways because this is what they are more familiar with.[95]  This is particularly the case if they are experiencing negative emotions such as grief, loss, and sadness.[96]  This is the basis for her concern that the respondent could regress.[97]

    [92] ts 189, 3 June 2020.

    [93] ts 184, 3 June 2020.

    [94] ts 184, 189, 3 June 2020.

    [95] ts 184, 3 June 2020.

    [96] ts 184, 3 June 2020.

    [97] ts 185, 3 June 2020.

11. It does concern her that the respondent has not developed anything other than superficial contact with persons who are not members of his family.[98]

    [98] ts 187, 3 June 2020.

12. In her report she did recommend a supervision order for a period of five years.  She nominated a period of five years because this would enable the assessment of the respondent's risk of reoffending by reference to established 10‑year recidivism rates.[99]  She also had in mind that the review of supervision orders is an onerous process for a person to go through.[100]  However, she would not disagree with Dr Wojnarowska's evidence that if a supervision order is to be imposed two to three years would be sufficient.[101]

    [99] ts 190, 3 June 2020.

    [100] ts 190, 3 June 2020.

    [101] ts 190, 201, 3 June 2020.

13. She thinks that the level of supervision, structure and support that the respondent receives at the moment under the Supervision Order is 'really important'.[102]  If the respondent is not on a supervision order he will not necessarily receive the same level of supervision, structure and support.[103]  Her concern is that if it is challenging for the respondent to establish a new connection with a new psychologist or a new source of support he may give up and go down a different path in order to deal with his feelings, the different path being reoffending.[104]

    [102] ts 190, 3 June 2020.

    [103] ts 190, 3 June 2020.

    [104] ts 190, 3 June 2020.

14. People on supervision orders do manage to establish friendships and connections even with a requirement that they disclose their history of offending and that they are on a supervision order.[105]  However, the respondent has chosen not to make any of these connections because of his concerns and fears around rejection or around having to tell people about his history.[106]  This is an issue that he has never worked through.[107]

    [105] ts 195, 3 June 2020.

    [106] ts 195, 3 June 2020.

    [107] ts 195, 3 June 2020.

15. When she spoke to the respondent about risk scenarios the respondent would not even 'go down the path of acknowledging that there were children around'.[108]  His response was simply that he would avoid children.[109]  His focus was quite narrow in terms of him seeing children.[110]  His approach that he is simply going to avoid all children is too simplistic, too narrow, and does not allow for different scenarios.[111]  She does not think that this is the result of a problem of articulation on the respondent's part.[112] 

    [108] ts 196, 3 June 2020.

    [109] ts 196, 3 June 2020.

    [110] ts 196, 3 June 2020.

    [111] ts 199, 3 June 2020.

    [112] ts 196, 3 June 2020.

16. The position is that the respondent has not discussed, and does not discuss, the connection between his sexual interest and the specifics of his offending.[113]  The respondent has discussed his lack of relationships, his difficulties in relationships and his sense of rejection, but has not discussed or addressed any of the things specific to his sexual attraction to children.[114]

    [113] ts 197, 3 June 2020.

    [114] ts 197, 3 June 2020.

17. The respondent does not appear to understand the importance of some of the restrictions that are currently in place under the Supervision Order.[115]  He wants to go to zones that are currently exclusion zones under the Supervision Order.[116]  He wants to be able to move around and travel.[117]  He wants to go and meet people and make new friendships and not tell them about his past.[118]  He wants to be able to use the internet.[119]  However, he does not appear to understand the importance of these sorts of restrictions and why they are in place.[120]  Consequently, if he does not understand why the restrictions are in place under the Supervision Order then, if the restrictions no longer exist, he will place himself in risky situations.[121]

    [115] ts 191, 201, 3 June 2020.

    [116] ts 201, 3 June 2020.

    [117] ts 201, 3 June 2020.

    [118] ts 201, 3 June 2020.

    [119] ts 205, 3 June 2020.

    [120] ts 201, 205, 3 June 2020.

    [121] ts 191, 201, 3 June 2020.

18. She is concerned about the respondent's ability to deal with life stressors.[122]  However, she is also concerned by the fact that the respondent has not addressed his underlying deviant sexual interest.[123]  The fact that the respondent may have acknowledged that he is a paedophile does not mean that he has addressed his underlying sexual deviance.[124]  She did not get from the respondent a categorical response from him that he fully acknowledged what it means to have a diagnosis of paedophilia and how he needs to then manage his paedophilia.[125]  The respondent needs to acknowledge how frequently his deviant sexual urges occur, when they occur, why they occur, what it is about children that interests him and how he goes about managing these matters.[126]  In the respondent's case there is simply no acknowledgement or discussion around these issues at all.[127]

    [122] ts 203, 3 June 2020.

    [123] ts 203, 3 June 2020.

    [124] ts 203, 3 June 2020.

    [125] ts 203, 3 June 2020.

    [126] ts 203 ‑ 204, 3 June 2020.

    [127] ts 204, 3 June 2020.

1. Since the respondent's change in attitude to his counselling Ms Gibson has observed him to demonstrate more emotional expression, to be less guarded and to be better able to cope with stress.  He has also become focussed on repairing relationships, improving his connections with others, and exploring the role that his own past trauma plays in his interpretation of his current environment. 

2. In response to the respondent's positive change in attitude, Ms Gibson has taken the opportunity to spend time addressing with him his maladaptive coping strategies and exploring the function of his offending.  She has taken a 'schema therapy approach' to the treatment of the respondent with a focus on the factors that have predisposed him to, and maintained, his offending behaviour.  It has become apparent to Ms Gibson that avoiding contact with children appears to be at the forefront of the respondent's thinking.

3. According to Ms Gibson the respondent's improved response to treatment has extended to him being willing to discuss his sexual offending.  The respondent has been able to discuss, explore and understand the predisposing and precipitating factors of his sexual offending, and his distorted thinking pertinent to seeking attachment and love via inappropriate means.

4. In terms of future counselling the respondent has informed Ms Gibson that he recognises the possibility that he may be left without support at some point and that this may increase his stress, low mood and maladaptive coping.  He endorsed to Ms Gibson the suggestion of seeking ongoing psychological intervention via a private practitioner in the community in the event that he is not placed on a supervision order.

5. The respondent has expressed to Dr Wojnarowska, Ms Hasson and Dr Bannister the positive views about his individual counselling with Ms Gibson.  He has reported that the individual counselling, although 'confronting' at times, has particularly helped him to develop coping mechanisms, manage stress and make positive changes in his life.  He reports that as a result of his counselling he understands that he needs to avoid all contact with children.  He reports that his counselling has helped him to gain further knowledge and insight.  He reports that his counselling has enabled him to realise that he has offended to compensate for feelings of emptiness that have been brought about through him disconnecting from others and isolating himself.

Whether or not the person's participation in any rehabilitation program has had a positive effect on the person - s 7(3)(f)

1. As is apparent from what I have said in dealing with the question posed by s 7(3)(e), and as is acknowledged by Dr Wojnarowska, Ms Hasson and Dr Bannister in their reports, it appears that the respondent has made some not insignificant treatment gains as a result of the individual counselling that he has engaged in with Ms Gibson during the last 12 months or so. Specifically, it appears that the respondent has through his counselling improved his interactions and connections with his family members and others, become less negative about his own circumstances, developed better coping and stress management strategies, and has been able to discuss his sexual offending and consequently develop an understanding of at least some of the factors that have contributed to his offending.

The risk that if the person were not subject to a continuing detention order or a supervision order the person would commit a serious sexual offence - s 7(3)(h)

1. There is a conflict between the evidence of Dr Wojnarowska and the evidence of Ms Hasson in relation to the risk of the respondent committing a serious sexual offence if he is not subject to a continuing detention order or a supervision order.  Dr Wojnarowska's evidence, using the Static‑99R, the PCL‑R and the RSVP is that the respondent's risk of committing further sexual offences within the next five years is approximately 8% which is below the average risk for sexual offenders (the average risk being 15%).  Ms Hasson, on the other hand, using the same risk assessment tools in combination with forensic psychological assessment and formulation considers that the respondent is at an average or moderate risk of reoffending, which I take to mean that there is approximately a 15% risk of him committing further sexual offences within the next five years.

2. The respondent submits that I should accept the evidence of Dr Wojnarowska as to the risk of him reoffending.

3. On my assessment of the evidence of Dr Wojnarowska and Ms Hasson, the difference between their opinions as to the respondent's risk of reoffending arises out of Ms Hasson's view that there are certain risk factors present in the respondent's case which Dr Wojnarowska either does not consider to be present or does not consider to be of significance.  The risk factors in question can be summarised as follows:

   1.The respondent's failure to properly address the significant role that his deviant sexual interest in young female children has played in his offending (with the consequence that he has failed to develop specific strategies, other than avoidance, to manage his deviant sexual thoughts and feelings);

   2.The respondent's lack of understanding of the reasons why he should not engage in certain conduct, or attend certain places, that he is currently prohibited from engaging in or attending by reason of the conditions of the Supervision Order; and

   3.The respondent's potential inability to deal with stressful life events that he is highly likely to face in the relatively near future (most obviously, the passing of his parents and the consequential loss of the carer role that occupies much of his life) without reverting back to familiar patterns of behaviour, specifically reoffending.

4. Dr Wojnarowska and Ms Hasson are both highly experienced and qualified practitioners in their respective fields.  However, having carefully considered the evidence given by both of them in light of all of the evidence before me, I am satisfied that the above referred to risk factors identified by Ms Hasson are present in the respondent's case to the extent stated by Ms Hasson.  I found Ms Hasson's evidence as to the existence of the risk factors and why she considered them to be present to be well reasoned and convincing.  I accept Ms Hasson's evidence as to the existence of these risk factors.  In this regard I make the following additional observations.

5. Ms Hasson's opinion that the respondent has failed to properly address the significant role that his deviant sexual interest has played in his offending by developing strategies other than avoidance is consistent with the evidence before me as to the results that have thus far been achieved by him in his counselling with Ms Gibson.

6. Dr Wojnarowska's evidence was that it was her 'understanding' that the respondent fully recognises that he has a deviant sexual interest in young female children and that he talks about his sexual interest in young female children.  Dr Wojnarowska's understanding in this regard is inconsistent with Ms Hasson's evidence that when she interviewed the respondent he denied a current sexual interest in children and stated that he did not consider himself to be a paedophile.  Despite this inconsistency, I am willing to accept that the respondent has expressed to Dr Wojnarowska that he accepts or recognises that he has a deviant sexual interest in young female children and that he has talked about his deviant sexual interest in young female children.  However, what Dr Wojnarowska did not say in her evidence is that on her assessment of the respondent his 'acceptance' of his deviant sexual interest has extended to him actually attempting to address the causal role that his interest has played in his offending.  It is one thing for the respondent to state that he accepts that he has a deviant sexual interest and to talk about his deviant sexual interest.  It is another thing entirely for him to address the significant causal connection between his deviant sexual interest and his offending by participating in the development of strategies to manage his deviant sexual thoughts and feelings.  This is the point that was in effect made by Ms Hasson. 

7. In finding on the basis of Ms Hasson's evidence that the third of the above identified risk factors does exist, I have not overlooked that the respondent has, over the last 12 months or so and through his counselling with Ms Gibson, apparently improved his ability to cope with and manage stress.  However, and as Ms Hasson in effect pointed out in her evidence, the loss of one or both of the respondent's parents and the changes to his lifestyle that will inevitably flow from this occurrence will, given the nature of the respondent's current lifestyle, place him under a very high level of emotional and psychological stress.  In these circumstances, the fact that the respondent has in recent times improved his ability to manage and cope with stress does not cause me to doubt Ms Hasson's opinion that as things currently stand he may not be able to deal appropriately with the stressful life events that he is highly likely to be faced with in the relatively near future. 

8. I have not, in finding on the basis of Ms Hasson's evidence that the above identified risk factors exist, overlooked the evidence before me to the effect that the respondent has expressed an intention, if he is not placed on a further supervision order, to continue with psychological counselling.  However, I do not consider that this evidence can be given any real weight when it comes to deciding if the identified risk factors exist.  It is, in my view, unsurprising that the respondent, knowing that he is coming to the end of the term of the Supervision Order and being aware that the court will be determining if he is still a serious danger to the community, has stated to those responsible for assessing him an intention to continue with psychological counselling.  Further, even if it is accepted that the respondent's currently expressed intentions are genuine, in light of what Ms Hasson has identified as the respondent's limited internal locus of control, I doubt that the respondent will in fact, if not compelled to do so, continue to engage in psychological counselling on a voluntary basis. 

9. Having found that the above identified risk factors are present in the respondent's case the question which remains is what is the risk of the respondent committing a serious sexual offence if he is not subject to a continuing detention order or a supervision order?

10. Given that I have found that the additional risk factors identified by Ms Hasson are present in the respondent's case, I am satisfied that the respondent's risk of committing a further serious sexual offence within the next five years is, as Ms Hasson opines, average or moderate rather than below average.  I prefer the evidence of Ms Hasson to Dr Wojnarowska on this point. 

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

1. I have, in dealing with the matter specified in s 7(3)(b), referred to Dr Wojnarowska's evidence and Ms Hasson's evidence as to the risk scenarios relevant to the respondent. It is clear from their evidence that offending of the nature specified in the first and most likely of the scenarios identified by each of Dr Wojnarowska and Ms Hasson would (even if the respondent did not proceed to penetrative activity) almost inevitably cause considerable fear and psychological harm to the female child victim and members of her family. There is therefore an obvious need to protect members of the community from the type of offences that the respondent is at risk of committing.

Any other relevant matter - s 7(3)(j)

1. There are no other matters of relevance in addition to those which I have already referred that need to be taken into account.

Analysis and findings

Serious danger to the community

1. Against the background of the matters to which I have referred and the findings that I have made in dealing with the factors listed in s 7(3) of the Act, I turn to the question whether I am satisfied that the respondent is a serious danger to the community within the meaning of s 17(1).

2. The respondent is now 68 years old.  He has been on the Supervision Order for a little in excess of five years.  Although he has contravened the Supervision Order on a number of occasions, only one of the contraventions, the contravention comprised of him being in possession of images of children, has been of sufficient seriousness to warrant charges being laid under s 40A(1) of the Act.  This contravention occurred a relatively short time into the term of the Supervision Order.

3. The respondent has over the last 12 months or so made some relatively significant treatment gains.  He has improved his ability to interact and engage with others, including family members, on more than just a superficial level.  He has improved his ability to cope with stress.  He has reduced his focus on negative emotions.  Further, he has become more willing to discuss his offending and consequently has been able to develop an understanding of psychological, emotional and situational factors that have contributed to his past offending. 

4. Protective factors that are present in the respondent's case include his feelings of obligation to his family, his motivation not to disappoint his family and his fear of again being incarcerated. 

5. The above matters are in the respondent's favour.  However, there are powerful countervailing considerations. 

6. First, the respondent, if he is not subject to a continuing detention order or a supervision order, will, as I have found, be at an average or moderate risk of committing a further serious sexual offence within the next five years.

7. Second, the type of serious sexual offence that the respondent is at risk of committing if he is not subject to a continuing detention order or a supervision order is a sexual offence against a young female child who is 12 years old or younger, and may include digital or penile penetration of the child's vagina.  In other words, the type of serious sexual offence that the respondent is at risk of committing falls towards the upper end of the range of seriousness of serious sexual offences.

8. Third, the adverse consequences for the child victim and the victim's family of any serious sexual offence committed by the respondent will almost inevitably be significant. 

9. Fourth, and following on from the above identified second and third considerations, there is an obvious need to protect members of the community from the type of serious sexual offences that the respondent is at risk of committing.

10. Ultimately, when I take into account the combined force of the above referred to four considerations I am, despite the progress that the respondent has made in recent times, satisfied to a high degree of probability that the risk that the respondent would commit a serious sexual offence if he is not subject to a continuing detention order or a supervision order is unacceptable.  It follows that I find that the respondent is a serious danger to the community within the meaning of s 17(1).

Continuing detention order or supervision order?

The question for determination

1. The question that remains for my determination is whether the respondent should be detained pursuant to a continuing detention order, or whether he should be permitted to remain in the community on a supervision order.  In deciding this question I must choose the order that is least invasive of the respondent's liberty while ensuring an adequate degree of protection of the community, adequate protection of the community being the paramount consideration.[153]

   [153] Act s 33(3).

2. In considering if a supervision order will adequately protect the community I must take into account any conditions that can be placed on the supervision order.[154]  I cannot choose to place the respondent on a supervision order unless I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order as defined in s 18(1) of the Act.[155] 

Decision

[154] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [103].

[155] Act s 33(4).

1. As I have already pointed out the State, for understandable reasons, does not by the application seek for the respondent to be made the subject of a continuing detention order.  The State's position is that the respondent can be appropriately placed on a supervision order containing the conditions set out in Annexure 1.  The respondent, for his part, did not contend that if I concluded that he is a serious danger to the community and that he should therefore be placed on a supervision order, that any of the conditions proposed by the State are inappropriate.

2. Despite the State's position it of course remains for me to decide if the respondent should be made the subject of a continuing detention order or a supervision order.

3. On the basis of all of the material before me, and taking into account the matters to which I have referred and the findings that I have made in dealing with the factors listed in s 7(3) of the Act, including of course that the respondent is currently the subject of the Supervision Order, I am satisfied that placing the respondent on a new supervision order on the conditions proposed by the State as set out in Annexure 1 will ensure an adequate degree of protection of the community. I am also satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the proposed supervision order as defined in s 18(1) of the Act.

4. With respect to the conditions proposed by the State I need to make a number of points.

5. First, the proposed conditions do not, in accordance with the recommendation made by Ms Godden, contain a condition equivalent to condition 30 of the Supervision Order.

6. Second, the amendments to conditions 36 and 39 of the Supervision Order recommended by Ms Godden are reflected in the conditions proposed by the State, the relevant conditions in Annexure 1 being conditions 31 and 36.

7. Third, despite the view expressed by Ms Godden to the effect that it is no longer necessary for the respondent to be subject to conditions equivalent to conditions 31 to 33 of the Supervision Order, the State's position is that although any new supervision order need not contain a condition that compels the respondent to undertake any medication regime (condition 33 of the Supervision Order), any new order should still contain conditions requiring the respondent to engage as directed with certain specified practitioners and permitting any such practitioner to disclose details of medical treatment and opinions relating to the respondent's risk of reoffending (conditions 31 and 32 of the Supervision Order).  These proposed conditions are conditions 12 and 13 in Annexure 1. 

8. The respondent did not argue that proposed conditions 12 and 13 are not appropriate.  I am satisfied that they are appropriate.

9. Fourth, despite Ms Godden's view that it is appropriate for any new supervision order to refer to children under the age of 18 years, the State's position, as reflected in Annexure 1, is that this is not necessary and that it is appropriate for conditions 37, 38 and 39 of the new supervision order to refer to children under the age of 16 years.  The State takes this position given the age of the female children that the respondent has in the past offended against.  I agree with the State's position. 

10. In relation to the period of the new supervision order, the State's position, in light of the evidence given by Dr Wojnarowska and Ms Hasson, is that a supervision order for a period of three years is in all the circumstances appropriate.  I agree with the State's position.  In my view it is likely that some or all of the stressful life events that the respondent is going to have to deal with are likely to occur within the next three years.  It is also my opinion that a period of three years is sufficient to give the respondent the opportunity to fully address the risk factors that he still needs to address in order to further reduce his risk of committing serious sexual offences.  In addition, I think that it is important to recognise the progress that the respondent has in recent times made by in effect granting to him the possibility of being free of the burdens of a supervision order in the not too distant future. 

1. For the reasons I have given I am satisfied that a three year supervision order containing the conditions set out in Annexure 1 should be made in relation to the respondent.

ANNEXURE 1

STANDARD CONDITIONS REQUIRED BY THE ACT

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

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

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

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

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

6. Not commit a sexual offence as defined in the Evidence Act 1906 (WA) section 36A during the period of the order; and

7. Be subject to electronic monitoring pursuant to section 19A Dangerous Sexual Offenders Act 2006 (WA).

ADDITIONAL CONDITIONS

Residence

1. Take up residence at [address suppressed], and spend each night at that address or at a different address only if such different address is approved in advance by a CCO (CCO) assigned to you;

Reporting to a CCO and supervision by a CCO

1. Report to the CCO at Busselton Adult Community Corrections, Unit 2‑3, 17 Bussell Highway, Busselton, WA, within normal business hours on the day of an order being imposed;

2. Be under the supervision of a CCO, report to and receive visits from a CCO at times and places as directed by the CCO, and comply with the lawful orders and directions of a CCO;

3. Not commence or change paid or unpaid employment, volunteer work, education or training without the prior approval of a CCO;

Attendance at programs or treatment

1. Consult and engage with any medical practitioner, psychiatrist, psychologist, counsellor, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;

2. Permit any practitioner named in condition 12 to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment or programs to the Department of Justice;

3. Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual reoffending, as directed by a CCO;

Reporting to WA Police

1. Report to the Officer‑in‑Charge of Busselton Police Station located at 12 Stanley St, Busselton, WA, within 48 hours of being placed on the order, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer‑in‑Charge of Busselton Police Station or his/her delegate;

2. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA);

3. If requested, permit Police Officers to enter and search your residence, and/or vehicle and/or person for the purpose of monitoring your compliance with the obligations under this order and allow the seizure of any such items that the Police Officers believe to contravene the conditions of the order;

4. Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the Dangerous Sexual Offenders Act 2006;

5. When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you;

Disclosure/exchange of information

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

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

Restrictions on contact with victims

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

2. Unless contact with victims is permitted pursuant to condition 22, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;

3. Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997 (WA);

Criminal conduct

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

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

3. Not commit an offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA);

Prevention of high-risk situations

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

2. Not possess any pornographic materials in any format, and not search for pornographic images on any computer, telecommunications device or other device capable of internet access;

3. Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;

4. Not access the internet on any computer, mobile phone or other device capable of internet access without prior approval of a CCO;

5. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police;

6. Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device.  Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO;

7. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 30, without prior approval of the CCO;

8. Where possible, enable device locking or password access of your computer, telecommunication and/or electronic devices; not provide or disclose passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 30, or any online accounts, to any person other than a CCO or Police Officer;

9. Not conduct computer searches for, collect, access, or be in possession of, in either electronic or permanent form, images of children, whether indecent or not, with the exception of images of your immediate family that are not indecent images.  Possession of such images depicting a child or children on items such as on household items, may be authorised by a CCO;

10. Have no contact with any child under the age of 16 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:

    a)The contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or

    b)The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction and another adult is present;

    ('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);

11. Where any unsupervised contact with a child under the age of 16 years is initiated by the child, unless the contact is permitted under condition 37, you must withdraw immediately from the presence of the child;

12. Provide details of any contact with a child under the age of 16 years both to your CCO and to the Police on the next occasion you report to that person or agency;

13. Report immediately to your CCO the formation of any domestic, romantic, sexual or otherwise intimate relationship by you with a person who has children under the age of 18 years in their care, either full‑time or part‑time;

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

15. Have no contact with, membership of, or affiliation with clubs, associations or groups where membership includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.

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

CP
Associate to the Honourable Justice Derrick

16 JUNE 2020