The State of Western Australia v Ojd - [2020] WASC 380

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- OJD [2020] WASC 380
CORAM:   DERRICK J
HEARD:   20 OCTOBER 2020
DELIVERED          :   20 OCTOBER 2020
PUBLISHED           :   21 OCTOBER 2020
FILE NO/S:   HRSO 2 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
OJD
Respondent

Catchwords:

High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for believing that court might find that the offender is a high risk serious offender - Whether detention order or an interim supervision order should be made pending determination of whether offender is a high risk serious offender

Legislation:

Bail Act 1982 (WA)
Classification of Computer Games and Images Act 1995 (Qld)
Criminal Code (WA)
Dangerous Sexual Offenders Act 2008 (WA)
High Risk Serious Offenders Act 2020 (WA)

Result:

Application for orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the High Risk Serious Offenders Act 2020 (WA) allowed
Interim supervision order made

Category: B

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	Mr D J McKenzie

Solicitors:

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

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

Director of Public Prosecutions (WA) v Dodd [2015] WASC 249
Director of Public Prosecutions (WA) v Free [2010] WASC 255
Director of Public Prosecutions for Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [2006] WASC 160
The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v Cox Aka Roe [2020] WASC 344
The State of Western Australia v D'Rozario [No 2] [2020] WASC 201
The State of Western Australia v Ryan [2020] WASC 352

DERRICK J:

Introduction

On 15 August 2012 the respondent was sentenced to a total of 10 years imprisonment for four offences of sexually penetrating a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA) (Code), 18 offences of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code, two offences of indecently recording a child under the age of 13 years contrary to s 320(6) of the Code and two offences of possessing child exploitation material contrary to s 220 of the Code. The commencement date of his sentence was backdated to 23 May 2012. He was made eligible for parole.
The respondent appealed against the sentence of 10 years imprisonment. He was successful on the appeal. His total sentence was reduced to 8 years imprisonment.
On 29 January 2014 the respondent was sentenced to a total of 2 years imprisonment for one offence of sexually penetrating a child under the age of 13 years contrary to s 320(2) of the Code and five offences of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code. He was made eligible for parole. The sentence was ordered to be served cumulatively on the sentence of 8 years imprisonment which the respondent was already serving.
On 27 August 2020 the Prisoners Review Board granted the respondent parole with effect from 7 September 2020.
On 1 September 2020 the applicant made an application for the following orders to be made in relation to the respondent:
1.A restriction order under s 48(1) of the High Risk Serious Offenders Act 2020 (WA) (the Act) (the application for this order being made pursuant to s 35(1) of the Act);[1]
2.Orders pursuant to s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act; and
3.An order that, until the conclusion of the hearing and judgment on the application for a restriction order:
(1)the respondent be detained in custody; or alternatively
(2)with effect from the date of such order, the respondent be released subject to the conditions in s 30(2) of the Act and such other conditions as the court considers appropriate.
[1] Given that the respondent was to be released on parole on 7 September 2020, the application was, as required by s 35(3) of the Act, made within a period of one year of the date on which the respondent was to be released from custody.
The application was supported by an affidavit affirmed by Mr Brent Meertens, a lawyer employed by the Office of the Director of Public Prosecutions for Western Australia (the DPP), on 31 August 2020. The annexures to Mr Meertens' affidavit were comprised of materials relating to the offences of which the respondent has been convicted as well as various reports that have over the years been prepared in relation to him.
On 4 September 2020 Hill J, on the application of the applicant, made an order pursuant to s 58(5) of the Act that the respondent be subject to an interim supervision order from the time of his release on parole on 7 September 2020 to 20 October 2020 or until further order of the court. The interim supervision order made by Hill J contains 40 conditions.
On 20 October 2020 I heard the applicant's application for the orders pursuant to s 46(2) of the Act. Accordingly, the hearing before me was a preliminary hearing conducted pursuant to s 46(1) of the Act.
At the preliminary hearing the respondent did not oppose the application for the orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. Nonetheless, it was, of course, still necessary for me to examine the evidence and to satisfy myself that the orders sought should be made.
At the preliminary hearing the applicant did not, in light of the fact that the respondent had since 7 September 2020 been subject to the interim supervision order made by Hill J, press its application for the respondent to be detained in custody until the conclusion of the hearing and judgment on the restriction order application in the event that I decided to make the orders sought under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. The applicant accepted that if I did decide to make the orders sought under s 46(2)(a), s 46(2)(b) and s 46(2)(d) it was, given that there had been no issues with the respondent's compliance with the interim supervision order, appropriate for me to make a further interim supervision order pursuant to s 58(5) of the Act pending the determination of the restriction order application. The applicant made clear that its concession in this regard should not be taken as an indication of the position it would take at the hearing of the restriction order application in the event that I decided to make the orders sought under s 46(2)(a), s 46(2)(b) and s 46(2)(d). The respondent did not oppose the making of an interim supervision order. He did not seek to contend that he should be permitted to remain in the community without being subject to an interim supervision order.
At the conclusion of the preliminary hearing I was satisfied that it was appropriate to make the orders sought by the applicant under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act. I was also satisfied that it was appropriate to make an interim supervision order pursuant to s 58(5) of the Act. I therefore made the orders and said I would publish my reasons for doing so at a later date. These are my reasons.

Statutory provisions and applicable legal principles

Section 43(1) of the Act provides that after a restriction order application is made, as in this case, the court must fix a day for the matter to come before the court for a preliminary hearing. A 'preliminary hearing' is defined to mean 'a preliminary hearing referred to in s 46'.[2]
[2] Act, s 3. After the applicant filed the application for the restriction order to be made in relation to the respondent, the court fixed 20 October 2020 for the preliminary hearing.
Section 43(2) provides that within seven days after the court has fixed the day for the preliminary hearing or any other period specified by the court, the State must give the offender notice of the day fixed.[3]
[3] The respondent is an 'offender' for the purposes of the Act: see definitions of 'offender' and 'serious offender under restriction' in s 3 of the Act.
Section 46(1) of the Act is in the following terms:
The main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, in accordance with section 7, find that the offender is a high risk serious offender.
Section 7(1) of the Act which contains the definition of the term 'high risk serious offender', provides as follows:
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
Accordingly, the main purpose of the preliminary hearing is to enable the court to decide if it is satisfied that there are reasonable grounds for believing that the court might be satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.[4] In deciding if it is satisfied that there are reasonable grounds for the requisite belief, the court must have regard to the matters specified in s 7(3) of the Act.[5]
[4] A 'restriction order' is a continuing detention order as defined in s 26(1) of the Act or a supervision order as defined in s 27(1) of the Act: Act, s 3.
[5] The State of Western Australia v Ryan [2020] WASC 352 [18].
If the court is satisfied on the preliminary hearing that there are reasonable grounds for believing that the court might, in accordance with s 7, find that the offender is a high risk serious offender, the court:
1.must order that the offender undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with s 74 of the Act to be used on the hearing of the restriction order application;[6] and
2.may, on the application of the State or the offender, order that a person named by the court prepare a report in accordance with s 75 of the Act to be used on the hearing of the restriction order application on questions or topics set out in the order;[7] and
3.may:
(1)if the offender is in custody or might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order; and
(2)if the offender is not in custody, order that the offender be detained in custody for the period stated in the order;[8] and
4.must, except as provided in s 46(3) (which is not relevant in the present case) fix a day for the hearing of the restriction order application.[9]
[6] Act, s 46(2)(a). The terms 'psychiatrist' and 'qualified psychologist' are defined in s 3 of the Act.
[7] Act, s 46(2)(b).
[8] Act, s 46(2)(c).
[9] Act, s 46(2)(d).
In Director of Public Prosecutions (WA) v Free[10] McKechnie J made the following statements in relation to the requirements of s 14(1) of the now repealed Dangerous Sexual Offenders Act 2006 (WA), s 14(1) being the equivalent provision to s 46(1) of the Act:
A judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made …
It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description. The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made. At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community. It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.
The phrase 'Reasonable grounds of belief' has been the subject of judicial interpretation. In George v Rockett (1990) 170 CLR 104:
'When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.'
Further on:
'The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.'
The principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review.[11]
[10] Director of Public Prosecutions (WA) v Free [2010] WASC 255 [10] ‑ [13].
[11] Similar observations in relation to the requirements of s 14(1) were made by Simmonds J in Director of Public Prosecutions (WA) v Dodd [2015] WASC 249 [34] ‑ [42].
In my opinion McKechnie J's above statements are equally applicable to s 46(1) of the Act, save of course that his Honour's reference to the person being a 'serious danger to the community' needs to be read as 'high risk serious offender'.
Substantially similar statements to those made by McKechnie J in Director of Public Prosecutions (WA) v Free were made by Allanson J in The State of Western Australia v Cox Aka Roe,[12] the first decision of this court which resulted in orders being made following a preliminary hearing under the Act. In The State of Western Australia v Cox Aka Roe Allanson J said the following:[13]
In a preliminary hearing, a judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made - that is, a judge might be satisfied to a high degree of probability that it is necessary to make an order for continuing detention or supervision of the respondent to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. To say that something might occur is to say that it is possible.
For there to be 'reasonable grounds' for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. That is the threshold that must be crossed before ordering that the respondent be examined by a psychiatrist and qualified psychologist whose reports will form the primary evidence on the application for a restriction order.
[12] The State of Western Australia v Cox Aka Roe [2020] WASC 344.
[13] The State of Western Australia v Cox Aka Roe [15] ‑ [16].
Against the background of the relevant statutory provisions and applicable legal principles I turn now to the information before me which bears upon my determination of the question posed by s 46(1).

The respondent's history of serious offending

The details of the respondent's prior offences are set out in Mr Meertens' affidavit. It is not necessary for me to recite the factual details of the 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.

2012 convictions

In 2012 the respondent was convicted of the offences to which I have already referred for which he was ultimately sentenced to 8 years imprisonment, namely four offences of sexually penetrating a child under the age of 13 years contrary to s 320(2) of the Code, 18 offences of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code, two offences of indecently recording a child under the age of 13 years contrary to s 320(6) of the Code and two offences of possessing child exploitation material contrary to s 220 of the Code. The respondent was convicted of the sexual penetration offences and 16 of the indecent dealing offences after trial. He pleaded guilty to the remaining two indecent dealing offences as well as the indecent recording offences and the possession of child exploitation material offences. Each of the offences of which the respondent was convicted is a 'serious offence' for the purposes of the Act.[14]
[14] Act, s 5(1)(a).
The respondent committed the offences over a period in excess of four years between January 2008 and May 2012. The respondent was between 31 and 36 years old at the time of committing the offences.
The victims of the four sexual penetration offences and 18 indecent dealing offences were eight boys aged between 6 and 9. The four sexual penetration offences involved the respondent digitally penetrating the child's anus. The 16 indecent dealing offences to which the respondent pleaded not guilty involved the respondent touching, rubbing, squeezing and tickling the boys under their clothing on or near their genital area or buttocks. The respondent committed the offences while he was assisting as a 'parent‑helper' at a school. The two indecent dealing offences to which the respondent pleaded guilty were committed against a friend of the respondent's son.
The two indecent recording offences involved the respondent on two separate occasions using a mobile phone to take photographs of boys aged between 6 and 12. On each occasion the respondent took the photographs in the male change rooms at an aquatic centre while he was assisting as a 'parent‑helper' at school swimming lessons. The photographs depicted the children either completely naked or partially undressed. Each of the offences is a 'serious offence' for the purposes of the Act.[15]
[15] Act, s 5(1)(a).
The two offences of possessing child exploitation material, each of which is a 'serious offence' for the purposes of the Act[16], involved the respondent being found in possession of child exploitation material contained on a thumb drive and a hard drive of an HP mini‑tower computer. The thumb drive contained 1,680 category one sexual or indecent images of naked or semi‑naked children under the age of 16 years, 208 category two sexual or indecent images of children under the age of 16 years engaged in sexual activity including penetrative and non‑penetrative sexual activity with other children, one category three sexual or indecent image of a child under the age of 16 years engaged in non‑penetrative sexual activity with adults and 49 category four sexual or indecent images of children under the age of 16 years engaged in penetrative sexual activity with adults. The hard drive of the HP mini‑tower computer contained two videos and three images of boys who appeared to be aged between 6 and 16, categorised as category one child exploitation material.

Breach of protective bail - 2012

[16] Act, s 5(1)(a).

On 17 August 2012 the respondent was convicted of an offence of breaching a protective bail condition contrary to s 51(2a) of the Bail Act 1982 (WA). He committed the offence on 5 May 2012. He was sentenced to 3 months imprisonment for the offence. The offence was comprised of him breaching a protective bail condition by having unsupervised contact with the child who was the victim of his above referred to two indecent dealing offences of which he was convicted on his pleas of guilty.

2014 convictions

In 2014 the respondent was convicted, on his pleas of guilty, of the offences to which I have already referred for which he was sentenced to 2 years imprisonment, specifically one offence of sexually penetrating a child under the age of 13 years contrary to s 320(2) of the Code and five offences of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code. The respondent committed the offences over a period of 14 months between January 2011 and May 2012. The respondent was between 34 and 36 years old at the time of committing the offences. The victims of the offences were four boys aged between 6 and 12.
The sexual penetration offence involved the respondent performing fellatio on an 11‑year‑old boy. The five indecent dealing offences involved the respondent touching and squeezing the boys under their clothing on or near the genital area and buttocks.
One of the indecent dealing offences was committed by the respondent at his home while the victim was visiting the respondent's son and was in the care of the respondent. The respondent committed the remainder of the indecent dealing offences while he was working away at a mine site. The respondent developed a close friendship with the victims' families and while the victims were in his care he took them to the local swimming pool or recreation centre where he offended against them.
The respondent committed the sexual penetration offence and four of the indecent dealing offences while he was on bail for the offences for which he was dealt with on 15 August 2012.[17] It was a condition of the respondent's bail that he not have any unsupervised contact with a child under the age of 16. Accordingly, the respondent's commission of the sexual penetration offence and the four indecent dealing offences constituted a breach of his bail conditions.[18]

Queensland offences

[17] Meertens' affidavit, annexure L, page 63.

[18] Meertens' affidavit, annexure L, page 63.

On 12 January 2005 the respondent was convicted in Queensland of three offences of possessing an objectionable video game contrary to s 26 of the Classification of Computer Games and Images Act 1995 (Qld). The offences were comprised of the respondent being in possession of three video games that contained child pornography. The respondent was fined for the offences.
Each of the three offences of possessing an objectionable video game contrary to s 26 of the Classification of Computer Games and Images Act would constitute an offence of possessing child exploitation material contrary to s 220 of the Code. An offence under s 220 of the Code, as I have already indicated, is a 'serious offence' under the Act. Accordingly, the three offences under s 26 of the Classification of Computer Games and Images Act are 'serious offences' for the purposes of the Act.[19]
[19] Act, s 5(4).

Reports

Over the years a number of reports have been prepared in relation to the respondent. I have had regard to these reports all of which are annexed to Mr Meertens' affidavit. For present purposes, however, it suffices for me to refer specifically to the following:
1.The psychiatric and psychological reports prepared for use by the judge who sentenced the respondent for the offences of which he was convicted in 2012 (the 2012 offences);
2.The psychological report prepared for use by the judge who sentenced the respondent for the offences of which he was convicted in 2014 (the 2014 offences);
3.The report prepared in relation to the respondent's participation in the Intensive Sex Offender Treatment Program (ISOTP) while he was in prison; and
4.The most recent parole assessment report prepared in relation to the respondent.

Reports prepared in relation to the 2012 offences

Psychiatric report

The respondent was, prior to his sentencing for the 2012 offences, assessed by Dr Sam Febbo, consultant psychiatrist. Dr Febbo prepared a report setting out the results of his assessment of the respondent dated 8 August 2012. Dr Febbo's report reveals the following.
Dr Febbo interviewed the respondent on 6 August 2012.
The respondent accepted responsibility for the possession of child pornography offences and the indecent recording offences. However, he refused to accept responsibility for the sexual penetration offences and the indecent dealing offences. The respondent told Dr Febbo that it was not possible for him to have offended because 'everything that happened is alleged to have happened in a classroom … with kids sitting right next to the child in question'.
The respondent told Dr Febbo that he struggled with his sexuality and his lack of attraction towards women.
Dr Febbo concluded that even if one accepted the respondent's denials about having committed the sexual penetration and indecent dealing offences, he still fulfilled the diagnostic criteria for paraphilia, paedophilia.
Dr Febbo used some well recognised risk assessment tools in order to assess the respondent's risk of committing further offences. Making use of these tools Dr Febbo concluded that the respondent was at least at a moderate risk of committing further sexual offences. Dr Febbo identified the factors that contributed to the respondent's moderate risk of reoffending to include the following:
1.Extreme minimisation or denial of sexual violence;
2.Problems with self‑awareness;
3.Sexual deviance; and
4.Possible psychological coercion in sexual violence.
Dr Febbo was of the view that the respondent's sexual deviance, or in other words, his paraphilia, paedophilia was particularly significant and needed to be addressed. He considered that the respondent required assertive treatment and that he needed to be assessed for inclusion in a sex offender treatment program.

Psychological report

Prior to his sentencing for the 2012 offences the respondent was assessed by Ms Cinzia Zuin, psychologist. Ms Zuin prepared a report setting out the results of her assessment dated 8 August 2012. Ms Zuin's report reveals the following.
Ms Zuin interviewed the respondent on 30 July 2012. She also performed some psychological testing on the respondent.
The respondent presented as fully compliant with the assessment process.
The respondent refused to accept responsibility for his sexual penetration and indecent dealing offences. He claimed that while he may have had the opportunity to touch the victims he never did. He also claimed that as a result of the photographs that he had taken (the subject of his indecent recording offences) not being kept confidential his character was tarnished and that there was considerable anger at the school with the result that the parents of the victims had encouraged their children to make the sexual penetration and indecent dealing allegations against him. Ms Zuin formed the view that the respondent's explanation for the allegations having been made against him was implausible and was an attempt by the respondent to deflect attention away from his behaviour.
The respondent admitted to Ms Zuin that he had an interest in child pornography. He attempted to rationalise his interest in child pornography and his indecent recording offences by stating that this was a 'control measure' that he used to 'stop it going further'. Ms Zuin considered that the respondent's viewing of child pornography reinforced his sexual attraction to young boys and progressed to a desire for sexual contact resulting in 'hands on' offending to gratify his sexual urges.
In Ms Zuin's view the respondent lacked insight into his offending and how it had affected his parents, brothers, ex‑wife and children. She considered that the respondent presented as self‑absorbed about his situation.
The respondent told Ms Zuin that he first started questioning his sexuality as a teenager because females did not show any interest in him. He stated that he is aware of his attraction to males but that he had not acted on it.
Ms Zuin concluded that the respondent had strong homosexual tendencies which had been suppressed for some time. She considered that this could have been a contributing factor in his offending given his view that male children were more accessible than male adults.
Based on the results of psychological testing, Ms Zuin noted in the respondent the presence of avoidant personality features such as social anxiety, discomfort and low self‑esteem. She considered that these personality features might explain why the respondent targeted young boys (that is, young boys were less likely to reject him and make him feel inadequate).
Ms Zuin used a recognised risk assessment tool to estimate the respondent's risk of reoffending. The respondent received a score which placed him in the high risk category for being convicted of a sexual offence within a five‑year period.
Ms Zuin was of the opinion that the respondent's offending behaviour reflected the presence of a homosexual paedophilic sexual deviance which required intensive treatment. She was of the opinion that without such treatment the respondent posed a high risk of reoffending.

Psychological report prepared in relation to the 2014 offences

Prior to his sentencing for the 2014 offences the respondent was assessed by Ms Jane Sampson, clinical and forensic psychologist. Ms Sampson prepared a report setting out the results of her assessment dated 20 January 2014. Ms Sampson's report reveals the following.
Ms Sampson interviewed the respondent on 15 January 2014.
The respondent reported to Ms Sampson that his recent work while in prison with a psychologist had enabled him to understand his offending behaviour more and that he believed that he was making progress in relation to the nature of, and motivation for, his offending.
The respondent acknowledged that he has a deviant sexual interest in male children. He expressed a keenness to seek treatment.
The respondent took responsibility for the majority of his behaviour the subject of his offences. However, he did deny his offending against one of his victims asserting that he had pleaded guilty to the offending as part of a plea bargain.
Ms Sampson formed the opinion that the respondent's offending behaviour was driven by a number of factors including the following:
1.A deviant sexual interest in young males;
2.Likely repression of his own sexual preferences;
3.Unmet sexual and emotional intimacy needs;
4.Poor emotional regulation and stress resilience;
5.A sense of empowerment and control in his contacts with his victims; and
6.Impulsivity related to his ability to control his sexual impulses even when on bail for similar offences.
Ms Sampson formed the view that as a result of undertaking individual counselling with the psychologist, the respondent appeared to be making some gains in relation to victim empathy and taking responsibility for his actions. She considered that the respondent showed some awareness of the implications of his offending towards his victims, but that he continued to be somewhat self‑focused and confused about his sexual orientation.
Ms Sampson, having made use of recognised risk assessment tools and applying her own clinical judgment, formed the opinion that the respondent was at high risk of committing similar sexual offences in the future if he did not receive treatment and monitoring. She was of the opinion that the respondent demonstrated an entrenched deviant sexual arousal pattern, that he appeared to have psychological and social adjustment issues, and that his self‑awareness was poor (although improving as a result of his psychological treatment). She considered that the respondent required intensive sex offender specific treatment.

ISOTP completion report

On 30 November 2015 the respondent completed the ISOTP at Bunbury Regional Prison. The program completion report prepared by the program facilitators dated 4 February 2016 reveals the following.
The internationally recognised Static‑99 risk assessment measure was used to estimate the respondent's risk of sexual reoffending. The respondent's Static‑99R score placed him in the high risk category. The respondent's score resulted in him being deemed suitable for participation in the ISOTP.
A person's Static‑99 score is not expected to change after they have participated in treatment. Rather, the obtaining of the score assists in determining 'the dosage of treatment (which should be proportionate to the actuarially determined risk level)'.
Based on the information that the respondent provided to the program facilitators as well as other collateral information, various criminogenic targets for treatment were identified for the respondent. The targets for the respondent included the following:
1.Distorted attitudes and cognitions (emotional identification with children and view of himself as being at a low risk of reoffending);
2.Self‑regulation issues (emotional and behavioural dysregulation, impulsivity, and poor coping and problem solving skills);
3.Relationship problems (intimacy deficits, lack of communication skills, maladaptive attachment style and emotional loneliness);
4.Sexual issues (confusion regarding sexual orientation and deviant sexual interest in male children); and
5.Self‑esteem deficits.
During treatment the respondent was observed to gain insight and understanding into the antecedents of his offending including stress, maladaptive coping, fear of rejection and emotional loneliness. He articulated an understanding of the interconnectedness of these issues and his resultant relationship difficulties, emotional suppression, withdrawal from positive supports, and sense of isolation and consequential emotional distress. He was cognisant of the fundamental link between these factors and his sexual offending.
The respondent demonstrated pro‑social attitudes, open mindedness and flexibility. The respondent used self‑reflection to gain awareness. However, at times he minimised his offending behaviour and the impact that it had on his victims thus demonstrating his emotional identification with children.
The respondent viewed himself as being at a low risk of reoffending. He expressed the view that his friends and family had no reason to fear him having contact with his own or other children. In the facilitators' view these statements demonstrated a lack of perspective taking ability and a somewhat simplistic view of his risk of reoffending.
The respondent admitted to using maladaptive coping strategies such as viewing child pornography to avoid difficult emotions, alleviate stress and over‑regulate his emotions.
The respondent attributed some of his offending to a lack of closeness and affection within his personal relationships, most particularly his former wife.
During the program the respondent stated that he had experienced confusion regarding his sexual orientation since adolescence but that after considerable reflection he considered himself to be bi‑sexual. The facilitators observed that the combination of the respondent's confusion and suppression over his sexual orientation and the reinforcing of arousal towards male children through masturbatory orgasmic conditioning was a significant contributing factor to his offending. The facilitators considered that while the respondent had articulated some plans around developing and maintaining future relationships with his parents and possibly his children, he would benefit from further plans to establish new adult friendships including implementing strategies to foster and sustain age appropriate relationships.
During the final stages of the program the respondent was offered the opportunity to develop a self‑management plan. In the development of the plan the respondent displayed a distinct understanding of the correlation between his identified treatment needs and his risk of reoffending. The facilitators formed the view that the respondent's plan was robust, that his goals were varied and detailed, and that if his goals were implemented this would likely reduce his risk of reoffending.

Parole assessment report

In around April 2020 Ms Suzette Oppert, a senior community corrections officer within the Corrective Services section of the Department of Justice, assessed the respondent for release on parole. She prepared a report setting out the results of her assessment dated 7 April 2020. The report reveals the following.
Ms Oppert interviewed the respondent on 3 April 2020.
Ms Oppert did not support the respondent's release on parole because his plan on release to reside with his parents in Albany, which was the area in which he had committed a number of his offences, was not viable. She did not consider that the respondent's parents' address could be considered a protective environment for the respondent.
Ms Oppert considered that although the respondent appeared to have made some gains from the treatment programs he had engaged in, his 'somewhat blasé' attitude towards coming into contact with his victims, the possible repercussions for his parents of having him reside at their home and his reduced consideration for the needs of others appeared to suggest that he may still be at moderate to high risk of offending in a similar manner if he did not keep a tight rein on himself and his actions.
In assessing the likelihood of the respondent complying with parole obligations and requirements, Ms Oppert reported that the respondent's 'reoffending whilst he was subject to bail conditions and his anti‑authoritarian attitude towards officers and decisions made regarding his management may indicate a stance of entitlement as to what he "needs and wants" as opposed to what he is required to undertake whilst subject to the strict conditions of a Parole Order'.

The conditions of the respondent's Parole Order

The conditions of the respondent's Parole Order include that he is to live with his parents in Albany, that he is not to have direct or indirect contact with the victims of his offences, that he is to have no unsupervised contact with children under the age of 18, that he is not to enter any school grounds or aquatic centres, that he is to attend programs and counselling as directed, and that he is to be subject to GPS monitoring.
The Parole Review Board (the Board) decided that the respondent's proposed accommodation, namely his parents' house in Albany, was suitable accommodation for him. The material before me does not disclose the basis for the Board's conclusion in this regard.

Decision

The respondent over an extended period of time committed numerous serious offences against young boys generally aged between 6 and 9. He has an entrenched deviant sexual interest in young boys.
The respondent committed some of his serious offences against young boys while on bail for other serious offences against young boys. The fact that he was on bail did not deter him from succumbing to his deviant sexual interest. Having said this, it must be acknowledged that the respondent committed the offences in breach of his bail prior to serving a term of imprisonment and prior to receiving treatment.
Prior to being sentenced for the 2012 offences the respondent was assessed by a psychiatrist as being at least at a moderate risk of committing further sexual offences against boys and by a psychologist as being at a high risk of committing further sexual offences against boys. Prior to being sentenced for the 2014 offences the respondent was assessed by a psychologist as being at high risk of committing further sexual offences against boys. Prior to commencing the ISOTP the respondent was assessed as being at a high risk of committing further sexual offences against boys.
The respondent does appear to have made some gains through his participation in the ISOTP. The facilitators of the ISOTP concluded that if the respondent implemented his self‑management plan his risk of reoffending would be reduced. Of concern, however, is that during the ISOTP the respondent at times minimised his offending and the impact that it had on his victims. Also of concern is the fact that during the ISOTP the respondent apparently expressed the misguided view that he is at low risk of reoffending. This suggests that the respondent does not have a true appreciation and understanding of his risk of reoffending and consequently may have difficulty recognising when he is at risk of reoffending.

As recently as April of this year the senior community corrections officer responsible for assessing the respondent's suitability for release on parole considered that some of the attitudes expressed to her by the respondent suggested that he may be at moderate to high risk of committing further sexual offences against young boys if he did not keep a 'tight rein on himself and his actions'.
Taking all of the above matters into account, and having regard to the matters specified in s 7(3) of the Act, I am satisfied in accordance with s 46(1) of the Act. More specifically, I am satisfied that there are reasonable grounds for believing that the court might find, in accordance with s 7, that the respondent is a high risk serious offender; that is, might find that it is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the respondent in order to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. To put the matter another way, I have a belief in the possibility that the court will be satisfied to a high degree of probability that the respondent is a high risk serious offender. I will therefore, as sought by the applicant, make orders under s 46(2)(a), s 46(2)(b) and s 46(2)(d) of the Act.
The question that remains is whether I should make an order pursuant to s 46(2)(c)(ii) requiring the respondent to be detained in custody pending the determination of the restriction order application, or an order pursuant to s 58(5) of the Act that the respondent be placed on an interim supervision order until the determination of the restriction order application.
Section 58 of the Act provides as follows:
58.Interim supervision order
(1)In this section -
specified means specified by the court in an order made under this section.
(2)This section applies if -
(a)proceedings on a restriction order application or an application made under section 49 or 53 are pending (the pending proceedings); and
(b)the offender to whom the pending proceedings relate is not in custody; and
(c)the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under this section.
(3)If the offender is subject to a supervision order that may otherwise expire before the pending proceedings are finally determined, the court may at any time in the pending proceedings order that the supervision order is to continue until the pending proceedings are finally determined or until another specified date.
(4)If the offender has been subject to a supervision order that has expired, the court may at any time in the pending proceedings order that the supervision order is to be reinstated with effect from a specified date and is to continue until the pending proceedings are finally determined or until another specified date.
(5)In any other case, the court may at any time in the pending proceedings order that, with effect from a specified date and until the pending proceedings are finally determined or until another specified date, the offender is to be subject to stated conditions that the court, subject to subsection (6), considers appropriate.
(6)Section 30 applies to an order under this section as if it were a supervision order.
I note that it is appropriate to refer to an order made under s 58(5) as an 'interim supervision order' even though this term only appears in the heading to s 58, because the term 'interim supervision order' is defined in s 3 of the Act to mean an order under s 58.[20]
[20] This differs from the position that existed under the DSO Act. Under the DSO Act the term 'interim supervision order' was not separately defined. Rather, the term 'supervision order' was defined in s 3 of the DSO Act to include an order under s 27A(5) which was the equivalent, albeit not identically worded, provision to s 58(5) of the Act.
The reference in s 58(6) to s 30 applying to an order made under the section 'as if it were a supervision order', that is, as if it were an order within the meaning of s 27(1) of the Act,[21] makes clear that an interim supervision order made under s 58 is distinct from a supervision order as defined in s 27(1).[22] It follows, given that the respondent is currently and up until today's date subject to an interim supervision order made under s 58(5), that the respondent is not subject to a supervision order within the meaning of s 58(3), and has not been subject to a supervision order within the meaning of s 58(4). Consequently, neither of these sections is applicable to the respondent's case. If an interim supervision order is to be made, it can only be made under s 58(5).
[21] Act, s 3, definition of 'supervision order'.
[22] Section 27A of the DSO Act did not contain an equivalent provision to s 58(6) of the Act. Rather, s 27A(5) provided, 'In any other case, the court may at any time in the pending proceedings order that, with effect from a specified date and until the pending proceedings are finally determined or until another specified date, the offender is to be subject to stated conditions that the court, subject to s 18, considers appropriate'. Section 18 of the DSO Act was the equivalent provision to s 30 of the Act.
Before I can make an interim supervision order under s 58(5), the following pre‑conditions must be met:
1.There must be proceedings on a restriction order application made pursuant to s 35(1) that are pending;
2.The offender to whom the pending proceedings relate must not be in custody; and
3.I must be satisfied that it is desirable to make an order under the section in order to ensure adequate protection of the community.
In the respondent's case proceedings on a restriction order application made under s 35(1) are pending. Further, the respondent is at today's date not in custody. Thus the first two pre‑conditions for the making of an interim supervision order under s 58(5) are met. Therefore it is open to me to make an interim supervision order under s 58(5), as opposed to an order for the detention of the respondent under s 46(2)(c)(ii), provided that I am satisfied that it is desirable to do so to ensure adequate protection of the community. Of course, it should not be overlooked that it is also open to me, given the non‑prescriptive wording of both s 46(2)(c)(ii) and s 58(5), to make neither a detention order nor an interim supervision order pending the determination of the restriction order application.
In determining if I should, in the exercise of my discretion, make a detention order or an interim supervision order pending the determination of the restriction order application, the factors to be taken into account are as follows:[23]
1.The likelihood of the applicant ultimately satisfying the court that the respondent is a high risk serious offender, to the extent that this can be assessed;
2.The extent to which the court can be satisfied that the respondent's adherence to the conditions of an interim supervision order will ensure the adequate protection of the community against the unacceptable risk that he may ultimately be found to pose to the community; and
3.The undesirability of depriving the respondent of his liberty prior to the restriction order application being finally determined, bearing in mind that the application may ultimately be refused.
[23] Director of Public Prosecutions for Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [2006] WASC 160 [62] ‑ [64]; The State of Western Australia v Ryan [21].
Given the nature and extent of the respondent's history of offending, his entrenched deviant sexual interest in young boys and the contents of the reports to which I have referred, I am satisfied that as things currently stand the applicant has reasonable prospects of satisfying the court that the respondent is a high risk serious offender. However, the respondent has been on an interim supervision order without incident since 7 September 2020. He has complied with the conditions of the interim supervision order. The interim supervision order contains, in accordance with s 58(6), the standard conditions specified in s 30(2) of the Act.[24] The interim supervision order also contains conditions which appear to address the respondent's risk factors as revealed by the material before me. In these circumstances I am satisfied on the balance of probabilities that if the respondent is released on an interim supervision order containing the same conditions as those to which he has been subject since 7 September 2020, he will adhere to the conditions of the order until the determination of the restriction order application, and further that his adherence to the conditions will ensure adequate protection of the community against the unacceptable risk that he may ultimately be found to pose to the community. Accordingly, I am satisfied that it is desirable to make an interim supervision order to ensure adequate protection of the community. I will therefore make an order pursuant to s 58(5).
[24] Act, s 3, definition of 'standard condition'.
Obviously, my decision to make an interim supervision order should not in any way be seen as binding the judge who ultimately hears the restriction order application. If the judge who ultimately hears the restriction order application does decide that the respondent is a high risk serious offender, it will of course be open to the judge to decide, on the basis of the more extensive material that will as a result of the orders that I am about to make be before them, that it is necessary to make a continuing detention order in order to ensure the adequate protection of the community.
There is one final issue that I wish to address.
In The State of Western Australia v CA[25] and The State of Western Australia v D'Rozario [No 2],[26] both of which were decisions made under the DSO Act, Fiannaca J discussed the question whether it was necessary for the court, before making an interim supervision order under s 27A(5) of the DSO Act, to be satisfied that the offender would substantially comply with the standard conditions of a supervision order, this being a matter that the court was required by s 17(3) of the DSO Act to be satisfied of before it could make a supervision order in the context of a div 2 hearing under the DSO Act.[27] Fiannaca J did not decide the question. However, his Honour's discussion gives rise to the question whether, before a court can make an interim supervision order under s 58(5) of the Act, it must, by reason of s 29(1) of the Act, be satisfied that the offender will substantially comply with the standard conditions specified in s 30(2) of the Act.
[25] The State of Western Australia v CA [2020] WASC 164.
[26] The State of Western Australia v D'Rozario [No 2] [2020] WASC 201.
[27] The State of Western Australia v CA [34] ‑ [46]; The State of Western Australia v D'Rozario [No 2] [62] ‑ [65].
The question is not one in relation to which the applicant or the respondent made any submissions. Moreover, the question is not one that I need to decide. I do not need to decide the question because I am, for reasons that are apparent from what I have already said, satisfied that the respondent will, if released on an interim supervision order containing the same conditions as those to which he has been subject since 7 September 2020, substantially comply with the standard conditions specified in s 30(2) that will form part of the order until the determination of the restriction order application.
Having said the above, and without expressing a concluded view on the point, it does appear to me that there is, given the distinction between a supervision order and an interim supervision order under the Act, and given also that s 58(6) applies only s 30 and not s 29(1) to an order made under s 58(5), a sound basis for arguing that it is not essential for a court to be satisfied that the offender will substantially comply with the standard conditions specified in s 30(2) before making an interim supervision order under s 58(5).
Of course, even it is accepted that it is not essential for a court to be satisfied that the offender will substantially comply with the standard conditions specified in s 30(2) before making an interim supervision order under s 58(5), this does not mean that the extent to which the offender is likely to comply with the standard conditions is irrelevant to the determination of whether to make an interim supervision order as opposed to a detention order pending the determination of the restriction order application. The extent to which the offender is likely to comply with the standard conditions is a factor that necessarily needs to be taken into account in determining whether all of the conditions of an interim supervision order will ensure the adequate protection of the community against the unacceptable risk that the offender may ultimately be found to pose to the community. Indeed, it is, I would have thought, likely to be a rare case in which a court that is not satisfied that the offender will substantially comply with the standard conditions specified in s 30(2) will nevertheless be satisfied that the making of an interim supervision order under s 58(5) will ensure the adequate protection of the community against the unacceptable risk that the offender may ultimately, on a restriction order application, be found to pose to the community.

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

21 OCTOBER 2020