The State of Western Australia v Ojd [No 2]
[2021] WASC 50
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- OJD [No 2] [2021] WASC 50
CORAM: ALLANSON J
HEARD: 19 & 23 FEBRUARY 2021
DELIVERED : 4 MARCH 2021
FILE NO/S: SO 11 of 2020
(Formerly HRSO 2 of 2020)
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
OJD
Respondent
Catchwords:
High Risk Offenders Act 2020 - Application for restriction order - Where expert evidence unchallenged - Whether unacceptable risk that respondent will commit a serious offence if not subject to a restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by supervision of the respondent
Legislation:
High Risk Offenders Act 2020 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor for Western Australia |
| Respondent | : | David McKenzie Legal |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Lepoidevin v The State of Western Australia [No 2] [2021] WASCA 19
ALLANSON J:
Introduction
On 1 September 2020, the State of Western Australia commenced proceedings against the respondent for a restriction order pursuant to the High Risk Serious Offenders Act 2020 (WA).[1]
[1] In these reasons, all references to legislation are to the High Risk Serious Offenders Act, unless specified otherwise.
On 4 September 2020, Hill J made an interim supervision order, pending the determination of the application.
On 7 September 2020, the respondent was released on parole in respect of sentences of imprisonment imposed in 2012 and 2014.
On 20 October 2020, following a preliminary hearing, Derrick J ordered that the application be heard on 19 February 2021, with the respondent to undergo examinations by two qualified experts for the purpose of preparing the reports required by s 46(2)(a) and s 74 to be used on the hearing of the application. Derrick J also made an interim supervision order.
But for the State's application, the respondent would be released, without restriction, on the completion of his sentences on 20 May 2022.
The respondent's name is suppressed by order of the court.
Restriction Orders
The court must make a restriction order if it 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 respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence.[2]
[2] Section 7(1), s 48.
The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community. The court cannot make a supervision order, and therefore must make a detention order, unless it is satisfied, on the balance of probabilities, that a respondent will substantially comply with the standard conditions of a supervision order. The onus of proving that he will substantially comply is on the respondent.[3]
[3] Section 29(1) and (2).
Even where the court is satisfied that the respondent will substantially comply with the standard conditions of a supervision order, the court must make a continuing detention order if it is not satisfied that the conditional release under a supervision order will ensure an adequate degree of protection to the community.
The court must have regard to the following matters set out in s 7(3):
(a)any report prepared under s 74 for the hearing of the application and the extent to which the respondent co‑operated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the respondent;
(c)information indicating whether or not the respondent has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the respondent;
(e)any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation programme;
(f)whether or not the respondent's participation in any rehabilitation programme has had a positive effect on him;
(g)the respondent's antecedents and criminal record;
(h)the risk that, if he were not subject to a restriction order, the respondent would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
The matters set out in pars (h) and (i) are conclusions or findings based on those set out in s 7(3)(a) ‑ (g) and (j).
The term 'serious offence' is defined in s 5. Relevantly to this application, it includes an offence specified in sch 1, div 1.
In an application for a restriction order, the court must hear admissible evidence called by the State and, if the respondent elects to give or call evidence, that evidence.[4] The rules of evidence apply, but are modified to permit the court to receive in evidence:
(a)any document relevant to the antecedents or criminal record of the respondent; or
(b)anything relevant contained in the official transcript of any relevant proceeding against the respondent; or
(c)any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the respondent; or
(d)any relevant material of the kind mentioned in s 7(3) relating to the respondent.[5]
[4] Section 84(2).
[5] Section 84(5).
A document or report that is admissible for the purposes of these proceedings by reason of s 7 and s 84 is not necessarily probative in relation to the issues before the court in this application. Reports or assessments that have been prepared for other purposes, and the opinions expressed in them, may be of limited relevance to the questions now before the court.
Evidence
The State filed a three volume book of the materials it relies on for the purposes of the application.[6]
[6] In these reasons, I will refer to materials in the Book of Materials simply by page number.
The statements and transcript from the respondent's criminal trials make up most of the three volumes. There is little material relating to the time during which the respondent was in prison, which appears to have been largely without incident.
For the purposes of sentencing, in 2012, the respondent was assessed by Dr Sam Febbo, psychiatrist, and Ms Cinzia Zuin, psychologist. A further psychological report, by Ms Jane Sampson, and a pre-sentence report were prepared in 2014.
While in custody, the respondent participated in an Intensive Sex Offender Treatment Program. He was assessed for parole in March and April of 2020. The reports on that program and those assessments were in evidence.
The State also relies on:
(1)a Proposed High Risk Serious Offender Treatment Plan, prepared by Ms Catherine Korda;
(2)a Psychological Report of Ms Julie Hasson;
(3)a Psychiatric Report of Dr Gosia Wojnarowska; and
(4)a Community Supervision Assessment Report of Ms Pia McGeown.
The authors of those documents gave oral evidence at the hearing.
Antecedents and criminal record
Because they inform the consideration of the other relevant factors, it is convenient to begin with the respondent's antecedents and criminal record.
Personal antecedents
The respondent was born in 1976 and is now 44 years old. He was the oldest of four children. He spent most of his childhood in the country.
The respondent finished year 12. He joined the army at age 23, but resigned in 2005 after his arrest and subsequent conviction on charges of possession of child pornography. He was then 29.[7]
[7] See summary of background history in the psychologists report at 1225 ‑ 1231, and in the report of Dr Febbo at 847 ‑ 854.
After leaving the army, the respondent worked in a variety of fly in/fly out roles, before his imprisonment in 2012.
He was previously married and has three children. The marriage has now ended.
The respondent has been in custody since May 2012.
The offending history
The respondent's relevant offending history was set out in greater detail by Derrick J in his reasons on the preliminary hearing, and by the Court of Appeal on his appeals against conviction and sentence. I summarise the essential features of that history.
Queensland offences
On 12 January 2005, the respondent was convicted in Queensland of three offences of possessing video games that contained child pornography, contrary to s 26 of the Classification of Computer Games and Images Act 1995 (Qld). The respondent was fined for the offences.
Each of the three offences would constitute an offence of possessing child exploitation material contrary to s 220 of the Criminal Code (WA), a 'serious offence' under the Act.
2012 convictions
On 15 August 2012 the respondent was sentenced to 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), 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 committed the offences between January 2008 and early 2011. He was between 31 and 35 years old at the time. The victims of the sexual penetration offences and indecent dealing offences were eight boys aged between 6 and 9.
The respondent committed 16 of the indecent dealing offences while he was assisting as a 'parent-helper' at his children's school; he took on that role knowing that he would have access to young boys, and knowing of his sexual interest in them.
The respondent also offended against the son of a friend.
The respondent committed the indecent recording offences by taking photographs with his mobile phone in the male change rooms at school swimming lessons. The respondent again took advantage of being there as a 'parent-helper'.
The two offences of possessing child exploitation material were committed by possession of child exploitation material contained on a thumb drive and a computer hard drive. A thumb drive found in the respondent's possession on his arrest contained 1,938 images of boys aged between 6 and 14 years. Most of the images (1,680) depicted erotic posing with no sexual activity. The material on the respondent's computer, including two videos, was also of male children.[8]
[8] 876 ‑ 877, 916 [10] ‑ [11].
Each of the offences of which the respondent was convicted on 15 August 2012 is a 'serious offence' for the purposes of the Act.
The respondent was arrested in March 2011 and granted bail. In May 2012, he breached a protective bail condition by having unsupervised contact with a child who was the victim of two of the indecent dealing offences. On 17 August 2012, the respondent was convicted of that offence.
2014 convictions
In 2014 the respondent was convicted of 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, when he was aged between 34 and 36.
The victims of the offences were four boys aged between 6 and 12.
The respondent committed one of the indecent dealing offences at his home, while the victim was visiting the respondent's son. He committed the other indecent dealing offences while he was working away at a mine site. The victims were the children of friends.
The sexual penetration offence and four of the indecent dealing offences were committed while the respondent was on bail following his arrest in 2011.
One of the victims alleged that the respondent threatened to kill him if he told anybody. While the respondent pleaded guilty to the offences, he denied that allegation and it was not proved for the purposes of sentencing.[9]
The s 74 reports
Preliminary observations
[9] 1237, 1245.
By s 46, on a preliminary hearing on an application for a restriction order, where the court is satisfied that there are reasonable grounds for believing that the court might find the offender is a high risk serious offender, the court 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, to be used on the hearing of the restriction order application.
By s 74:
(1)A qualified expert providing a report in relation to a subject under this section must ‑
(a)examine the subject; and
(b)prepare an independent report.
(2)The report must indicate ‑
(a)the reporter's assessment of the level of the risk that, without a restriction order, the subject will commit a serious offence; and
(b)the reasons for the reporter's assessment.
(3)The reporter must have regard to any report or information given under section 76(1).[10]
[10] By s 76 (1), 'the CEO must give to a reporter preparing a report under section 74 any medical, psychiatric, prison or other relevant report or information relating to the subject that is in the CEO's possession or to which the CEO has, or may be given, access'.
The report prepared under s 74 is admissible, and a matter to which the court must have regard.
The practice is for the report authors to be called to give oral evidence addressing the content of the report. When giving that evidence, the author may be asked to express an opinion, sometimes outside the boundaries of the report. When that occurs, the witness is giving evidence as an expert, and is subject to the rules regarding expert evidence. In particular, as the Court of Appeal recently said in Lepoidevin v The State of Western Australia [No 2] [2021] WASCA 19 [63]:
(1)A person who is to give expert or opinion evidence must have acquired, by study or experience, sufficient knowledge of the matters the subject of his or her evidence to render the evidence of value to the court in resolving the issues before it.
(2)Evidence of an expert's opinion must be confined to matters which are the subject of his or her special knowledge or experience.
(3)The facts on which the opinion is based must be proved.
(4)The process by which an opinion is reached must be expressed in a manner that permits the conclusion to be scrutinised and a judgment made as to its reliability. An opinion can carry no weight if the process of reasoning is not fully exposed.
In the present case, an issue arose regarding allegations that the respondent had not complied with conditions of the interim supervision order, first by attending a Christmas meal where his brother and his brother's children were present, and second by marron fishing at a location other than the location he had sought and been given approval for. Each of the experts was asked to comment, and did so without objection.
It may be that opinions could have been expressed which were based upon the special knowledge and experience of the witnesses, but that is not the way in which the evidence was given.[11] Nor am I satisfied that the experts had before them sufficient facts to enable them to express an opinion that would have evidentiary value.
Static-99R
[11] See, for example, ts 105.
Both witnesses provided scores for the respondent on the actuarial tool, Static-99R. The respondent's score places him in a group where the rate of being charged with or convicted of a sexual offence after five years in the community is well above average, or high.
Ms Hasson went further and referred to assessment of offenders who meet the criteria for inclusion in a 'high-risk high-needs' group. That assessment is based on a Canadian sample. The criteria for inclusion in the group have not been proved.
Both witnesses referred to the known limitations of Static-99R. It does not measure all relevant risk factors, and a person's recidivism risk may be higher or lower, based on factors not included.[12]
[12] 1374 [76]; 1398 [91].
Further, the court is required to assess whether it is necessary to make a restriction order in relation to this particular respondent to ensure adequate protection of the community against an unacceptable risk. That requires an assessment of whether the respondent is likely to offend, and the circumstances of that offending. The court must also decide what is necessary to protect the community against that risk ‑ whether it is necessary to order continuing detention, or whether the risk may be managed by supervision in the community. If there is to be supervised release, what conditions are necessary to ensure adequate community protection? The Static-99R score, and the assessed level of risk using that instrument, are of limited relevance.
Risk for Sexual Violence Protocol
Both Dr Wojnarowska and Ms Hasson also assessed the respondent using the Risk for Sexual Violence Protocol ‑ a structured clinical guide for assessing and reporting the risk of sexual violence. The protocol requires consideration of identified factors in a series of categories or domains: sexual violence history, psychological domain, mental disorder, social adjustment, and manageability.
That guide also identifies dynamic risk factors, and may permit the witness to offer an opinion on appropriate treatment and management. Possibly as a result of the limited engagement of the expert witnesses with the particular respondent, those opinions may be presented at a very general level.[13]
[13] For example, it was recommended in this case that the respondent 'develop a fulfilling lifestyle with healthy intimate and non-intimate relationships. Focus should be on seeking meaningful employment or volunteer work, identifying, and engaging in appropriate hobbies, interests, and leisure pursuits, establishing prosocial friendships and supports, obtaining stable accommodation and eventually developing an intimate adult relationship'.(1382)
Both witnesses agreed on all but one of the risk factors which were present or partially present. The evidence was not challenged.
(1)Sexual deviance is one of the two most important risk factors. The respondent meets the criteria for diagnosis of paedophilia. His paedophilia is non-exclusive, as he is sexually interested in adults (male and female) as well as male children.
(2)Frequency of sexual violence is one of the most reliable factors associated with recidivist sexual offending.[14] That risk factor is present, with the respondent first convicted in 2005 and subsequently convicted of sexual offences between 2008 and 2012 involving multiple boys. His conduct ceased only after his second arrest.
(3)Ms Hasson considered the risk factor of diversity of sexual violence is present. The respondent exclusively targeted prepubescent males outside his family, but has offended both by sexual contact and by indecent recording, as well as the possession of child exploitation material. There is evidence, in the offences for which he was convicted in 2012, of some physical coercion. Dr Wojnarowska did not find this factor to be present, the acts constituting the offences being similar in nature and degree of depravity and facilitated by similar coercive methods.
(4)The risk factor of escalation of sexual violence is present. The respondent's behaviour began with the viewing of exploitation material and progressed to indecent touching and penetration.
(5)Physical coercion and psychological coercion were found to be present with threats to at least one victim and grooming behaviour.
(6)The respondent denied some of the acts of sexual violence of which he has been convicted, acknowledging indecent dealings but denying sexual penetration. Denial or minimisation is also recognised as a risk factor.
(7)Finally, the respondent was found to have some problems with stress or coping, including his history of offending on bail which he reported was partially related to the stress of being separated from his family.
[14] Dr Wojnarowska, 1399 [96].
None of the other known risk factors was found to be present. The presence of paedophilia was, in Dr Wojnarowska's evidence, the single factor that she took into account when assessing the respondent's final risk.
In Dr Wojnarowska's opinion, the respondent could be managed in the community.[15] She was aware of concerns expressed by the police about his proposed accommodation but did not have similar concerns.[16]
[15] ts 74.
[16] ts 83.
Ms Hasson testified that, when she assessed him, the respondent was coping and managing quite well in the community; he had good supports and was attending supervision.[17] She expressed the view that his risk could be adequately managed in the community. Ms Hasson was also asked specifically about his current accommodation and said she had no concerns.[18]
[17] ts 97.
[18] ts 108.
Both witnesses recommend that the respondent engage with psychological counselling focusing on his sexuality and the factors relevant to his offending.
Dr Wojnarowska also suggested that he would benefit from pharmaceutical anti-libidinal treatment, namely Selective Serotonin Reuptake Inhibitors. She said that medications are employed when high levels of sexual drive and arousal are identified. The evidence does not support a finding that the respondent is currently preoccupied with deviant sexual thoughts or has a high level of arousal. Dr Wojnarowska appears to have based this assessment on the respondent's offences while on bail, some eight years ago. The respondent currently denies any such preoccupation.
I accept there may be some benefit to the respondent from Selective Serotonin Reuptake Inhibitors. The evidence does not satisfy me that medication is a necessary part of any supervision order - that it is necessary to ensure the adequate protection of the community. Dr Wojnarowska did not say that it is. The respondent may choose to undergo that treatment, which may have other benefits for him because of its effect in treating anxiety. I would not order it as a condition of his supervised release.
The respondent was also assessed by reference to a checklist for psychopathy. The presence of psychopathy is the other most important risk factor, with sexual deviance, in predicting risk of reoffending.[19] The respondent's score on the checklist did not indicate psychopathy. Nor did he meet diagnostic criteria for antisocial personality disorder.[20]
[19] ts 74.
[20] ts 70 (Dr Wojnarowska); 111 (Ms Hasson).
Dr Wojnarowska expressed the opinion that an appropriate period for supervision would be 10 years, based on his age and research which shows that sexual offenders who offend against children may offend into their late sixties or even seventies.[21]
[21] ts 84.
Ms Hasson suggested supervision for five years, apparently on the basis that in that time it would be possible to see whether there had been a reduction or elimination of deviant sexual thoughts.[22]
Other medical, psychiatric, psychological, or other assessment
Pre-sentence reports
[22] ts 108.
In August 2012, for the purposes of the first sentencing, the respondent was assessed by Dr Sam Febbo, Consultant Psychiatrist. Dr Febbo prepared a report, dated 8 August 2012.[23]
[23] 847.
In his interview with Dr Febbo, the respondent denied the sexual penetration and indecent dealing offences, and said that he was not prepared to admit to something that he did not do.
Dr Febbo did not find a personality disorder, or any significant pathological personality traits. Although the respondent had been on active service while in the Army, and had served in Timor, he did not report any negative psychological sequelae related to his service.
The respondent met the diagnostic criteria for paedophilia. It was that risk factor which, in Dr Febbo's opinion, needed to be addressed in any treatment.
The respondent was also assessed by Ms Cinzia Zuin, Psychologist. Ms Zuin found no major thought or mood disorder. She found the presence of avoidant personality features.
Ms Zuin assessed the respondent by reference to Static‑99, and expressed the view that without treatment he posed a high risk of reoffending.
Ms Zuin's report adds little, if anything, to the detailed report by Dr Febbo and the later s 74 reports.
In 2014, a pre‑sentence report was prepared for the purposes of sentencing the respondent for the offences he committed while on bail. The information in the report adds nothing to the psychological report obtained at the same time.[24]
[24] 1222.
The respondent was later assessed by Ms Jane Sampson, Clinical and Forensic Psychologist. Ms Sampson prepared a report dated 20 January 2014.[25]
[25] 1225.
Ms Sampson assessed the respondent as demonstrating a deviant sexual arousal pattern (directed to male children), and psychological and social adjustment issues. She recommended intensive sex offender specific treatment, and also a cognitive skills program.[26]
Programs undertaken while in custody
[26] 1231.
The respondent participated in an Intensive Sex Offender Treatment Program in Bunbury Regional Prison between March and November 2015. A completion report was prepared, dated 4 February 2016.[27]
[27] 1258 ‑ 1268.
The respondent was reported as not having previously engaged in any interventions, although Ms Sampson referred to his treatment with a psychologist in 2014.
The report on the program was generally positive. The respondent was reported as gaining insight and understanding into the antecedents of his offending, and understanding the correlation between his treatment needs and the risk of offending.[28]
Parole Assessment
[28] 1267 ‑ 1268.
The respondent was assessed for release on parole in April 2020.[29] The major issue identified was the suitability of proposed accommodation (the address where he now lives). He was, however, released to parole in September 2020.
Propensity to commit serious offences
[29] 1279 ‑ 1285.
Section 7(3) requires the court to have regard to a respondent's propensity to commit serious offences in the future. Sexual offences against children are serious offences under the Act.
The word 'propensity' is used in its ordinary meaning in the context of the criminal law, that is:
an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.[30]
[30] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [178] (Murray AJA). His Honour was there addressing propensity under the Dangerous Sexual Offenders Act.
The Risk for Sexual Violence Protocol calls for the expert, as part of the assessment, to identify future offending scenarios. Those scenarios appear to be inferences drawn from the respondent being sexually attracted to young boys and his past conduct in acting on that attraction. That kind of inference drawing is something that courts are frequently called upon to do, unguided by expert opinion. Although it is part of the protocol, there is nothing in the evidence to show that the formulation of 'future offending scenarios' is based on the special knowledge and training of the witnesses.
The expert evidence does identify something in the respondent's psychological makeup which predisposes him to serious offending. He is sexually attracted to pre-adolescent boys, and has acted repeatedly on that attraction by keeping and viewing exploitation material, by recording children in an indecent manner, and by serious sexual assaults and indecent dealing.
The offences of sexual penetration and indecent dealing occurred over a period of about four years, and continued after the respondent's initial arrest. He had, at that time, already committed and been convicted of the offence in Queensland relating to child pornography.
I am satisfied that the respondent has demonstrated a propensity to commit serious sexual offences in relation to young boys.
Any pattern of offending behaviour
The victims of the respondent's other offending were all male children aged between six and 12, and were all known to him. The offending was against children to whom the respondent had opportunistic access: in his position as 'parent helper' at his children's school; or by friendship with the boys' parents. The potential victims were known to the respondent.
I accept Dr Wojnarowska's description of the pattern of offending:
He would choose his victims based on the response to his initial advances: for example when the victim responded favourably to his 'accidental' touching, he would seek opportunity for further contact. He reported that the victim's looks were also important to him (blue eyes and blonde hair) that the child willingness to comply was a deciding factor…
There is evidence of coercion and grooming which included the children's parents. He sought opportunity to play with children when the families gathered for barbecues. He did make threats to some of the victims. He utilised physical and psychological coercion.[31]
Addressing the cause or causes of the offending
[31] 1390 [39] ‑ [40]. See also 1401 [122] ‑ [124].
I have set out above the evidence relating to the respondent's participation in the Intensive Sex Offender Treatment Program. The respondent had also engaged in psychological intervention at Acacia Prison, and had attended 34 sessions between June 2013 and August 2014 focused on exploring the origins of, and his motivation for, his offending behaviour and his anxiety about attending programmatic intervention. The intervention had ceased due to his improvement in coping.[32]
[32] See comments of Ms Korda at 1353.
The evidence does not enable a finding about the extent to which the programs and counselling in which the respondent participated addressed his sexual interest in children. The Intensive Sex Offender Treatment Program did not specifically address deviant sexual interests, although there could be some content on strategies to manage paedophilia.[33]
[33] ts 120.
Proposed High Risk Serious Offender Treatment Plan
Ms Catherine Korda, Senior Forensic Psychologist, prepared a report dated 25 January 2021 for the purposes of the application. The express purpose of the report was 'to assist with the identification of outstanding treatment needs and provide recommendations how these should be met if [the respondent] is made subject to a Restriction Order'.[34]
[34] 1346.
Ms Korda summarised the material relating to the respondent's background, including his sexual development and relationship history. She reported that (while it had been recommended) participation in a cognitive skills program had not been considered warranted.
Ms Korda recommended that the respondent engage in individual psychological counselling and commented on his positive engagement in treatment to date. Individual counselling could be available whether a continuing detention order is made, or the respondent is released subject to a supervision order.
If the respondent was being treated in the community on a supervision order, the treating psychologist would work in collaboration with the case manager and broader risk management team. Ms Korda described their role as 'to service the psychological intervention … within the constraints of the order'.[35]
[35] ts 130.
The Community Supervision Assessment
The court heard from one of the Community Corrections team, Ms Pia McGeown. Ms McGeown prepared a Community Supervision Assessment Report, dated 8 February 2021, for the purposes of the hearing.[36]
[36] 1404 ‑ 1424.
Most of the report summarises the author's view of material already before the court.
Relevantly, Ms McGeown reported on the respondent's compliance with parole in the interim supervision order. The respondent has been subjected to GPS tracking, and has been subject to (and complied with) a curfew. He has reported on a weekly basis for supervision.
The respondent had not incurred any alerts relating to GPS tracking and exclusion zones that required any further action. He has been subject to random, unannounced home visits by police, has presented well, and no illicit material has been found during compliance checks.
The respondent has been assessed as having good pro‑social supports who remind him of the importance of the restrictions he is under for his safety and that of others.
The respondent has complied with his obligations to report under the Community Protection (Offender Reporting) Act 2004 (WA).
The respondent had, at the date of the initial report, demonstrated good compliance since his release on the current interim order.
The addendum
Ms McGeown provided an addendum to her report and gave oral evidence regarding occasions, not included in her initial report, when the respondent may not have complied with the terms of his supervision order, or a written direction given under it.
During the week of Christmas the respondent was at home for a Christmas meal which was attended by his brother and his brother's two children, aged 12 and 14. The respondent had advised one of his supervisors, on 22 December 2020, that his brother and children would be present on Christmas day. On 30 December 2020, he advised Ms McGeown that his brother's family (his wife and two children) had attended for lunch on 23 December.
The respondent agreed in cross‑examination that he did not have express consent to be present while his brother and sister‑in‑law and their children were there. He said he assumed it was okay because he had told his supervisor, had been told that Community Corrections would look into it, and knew they had contacted his brother and sister‑in‑law. No one had told him it could not go ahead.[37]
[37] ts 160.
The State did not call the Community Corrections Officer to whom the respondent reported on that day. The result set out in the addendum report was:
Review of all of the information indicates that no explicit consent was provided to [the respondent] verbally or in writing. He may have however interpreted consent from his supervision contact on 22 December 2020 and 30 December 2020. As a result of review of the behaviour and discussions with Police no further action has been resulted.[38]
[38] Exhibit 2, page 2.
It is not possible to make more detailed findings on what was said on 22 December 2020. The respondent may have been testing the boundaries of his compliance. Although no further action resulted, the incident was investigated and the respondent should be aware that conditions of supervision will be enforced.
The second incident which Ms McGeown included in her addendum occurred on 17 February 2021. Ms McGeown said that the respondent requested and was given permission to fish at a particular location and verbally instructed to return if his mobile service dropped below two bars on his phone. He went fishing for marron on farm dams in a different place, and attempts to contact him went through to his message bank.
The respondent denied that he had specified the location where he was intending to fish, but said he had given a more general area. He agreed that he had been told about maintaining mobile service, but said reception varied so that he could lose reception and then get full coverage back soon afterwards. The respondent said he received no notification on his phone that anyone was trying to contact him.[39]
[39] ts 162.
There is no suggestion that the respondent had, or attempted to have, any contact with children.
The incident resulted in the respondent being given a verbal warning by the Community Corrections Team Leader to provide more specific details when informing of his recreational fishing activities to ensure that he is able to maintain telephone contact.[40] Ms McGeown said:
I was trying not to be punitive in my approach towards managing him, because I believed that the fishing and recreational activities would be good for his transition back to the community. But given what has happened, I will definitely need to have him provide me with plans in terms of what he intends to do.[41]
[40] Exhibit 2, page 5.
[41] ts 150.
Dr Wojnarowska saw the incident as indicating that the respondent may require a high level of supervision.[42] The adequate protection of the community depends on the supervision of the conditions of release and enforcement where required.
[42] ts 85.
The report refers also to the respondent being warned for having two photographs of his brother's daughter on his mobile phone. He is prohibited by a condition of his supervision order from having pictures of children, except immediate family, in his possession. The respondent has now been given a written instruction for the purposes of that condition. In relation to a condition dealing with images of children, the written instruction provides a quite inapposite definition of 'immediate family', taken from social security law, that does not include nephews and nieces but includes his parents and grandparents. In effect, the condition read with the instruction permits only pictures of the respondent's children.
Dr Wojnarowska was asked about the photograph and said that she had no concern with a photograph of a female family member.[43]
[43] ts 84.
The last matter dealt with in the addendum is an assessment of the respondent's accommodation. The respondent was released on parole in September 2020, and the date of this hearing was fixed on 20 October 2020. It is perplexing that the assessment (a desktop analysis) was not done earlier.
The police raised three concerns regarding the location of his accommodation. The State does not suggest that any issues identified in the analysis cannot be managed by common conditions of supervision including the imposition of exclusion zones, and restrictions on association.
Additional information
Finally, through Ms McGeown, the State adduced a document containing further information, obtained only the day before the hearing.[44]
[44] Exhibit 3.
The first matter is with regard to a friendship or association with a Mr B, the man with whom the respondent went fishing on 17 February 2021. Mr B has two daughters aged 7 and 9. It is not suggested that the respondent has had any contact with those children, but under the terms of his interim supervision order, he is required to report 'any association or relationship' with a person who has a child under 18 years in their care. The respondent had not reported any association with Mr B.
The respondent's evidence was that his mother and Mr B's mother were friends. He had only met Mr B a couple of times, and, on the evening before, Mr B had asked if he was interested in catching some marron.[45] Whether the contact with Mr B is an 'association or friendship', or was properly described as one on 17 February, cannot be decided on the evidence presented at the hearing. This incident demonstrates the need for clarity of expression in conditions of supervision. If clarity cannot be achieved, consideration may be given to alternative methods of monitoring conduct, such as a requirement to maintain a diary.
[45] ts 155.
Evidence of the respondent
The respondent gave evidence directed to the evidence from Ms McGeown, and the addendum to the community supervision assessment. I have dealt with it in that context.
Developments after the hearing
On 3 March 2021, the day before I was to hand down my decision, the police arrested the respondent and charged him with three offences: two charges of breach of the interim supervision order, and one charge of failure to comply with his reporting obligations under the Community Protection (Offender Reporting) Act 2004.
One alleged breach related to the respondent's failure to report an association. That matter was known at the time of the hearing on the State's application for a restriction order. Neither expert witness altered her view about whether the respondent's risk of offending could be properly managed in the community.
The second breach of the interim supervision order is alleged to have occurred on 3 March 2021, when the police conducted a search of the respondent's bedroom. The statement of material facts alleges that the respondent was in possession of 'advertising material/information booklets that depicted children'.
The charge under the Community Protection (Offender Reporting) Act 2004 alleges the respondent had downloaded a phone application and had not reported it within 7 days. Reporting obligations include obligations with respect to use of and access to the internet.
The respondent has pleaded not guilty to those charges and they have not yet been dealt with. Both the State and the respondent, however, agreed that it was preferable for this matter to proceed to final orders rather than await the outcome of the charges. I agree with that course. The State does not submit that the fresh matters should change the outcome of the application.
Conclusion
The expert opinion was substantially unchallenged. On the evidence which I have accepted, and the reports prepared pursuant to s 74, I am satisfied that, without further treatment and the restrictions imposed by a supervision order, there is a real risk that the respondent would offend again. The age of the children to whom the respondent is sexually attracted means that any sexual offences would be serious offences. The potential harm attendant on such offences leads inevitably to the finding that, although it cannot be quantified, the risk is unacceptable.
The evidence is that the risk can be managed by a supervision order, so as to ensure the adequate protection of the community, provided the respondent is subject to conditions and his conduct is monitored.[46] He has, since his release on an interim supervision order, demonstrated his ability and his willingness to substantially comply with the conditions of a supervision order. His supervising Corrections Officer has also shown a conscientious and diligent approach to his supervision. Notwithstanding the charges brought against the respondent on 3 March 2021, the evidence before the court is that supervision subject to conditions should provide adequate protection.
[46] Dr Wojnarowska, ts 74.
I am not satisfied, on the evidence, that it is necessary to order that the respondent undergo treatment with anti-libidinal medication.
The State urged that I accept the evidence of Dr Wojnarowska and make an order for supervision for 10 years.
It was submitted on behalf of the respondent that the evidence of Dr Wojnarowska and Ms Hasson was inconsistent. Counsel further submitted that under s 36 of the Act, the State may apply for a further restriction order to take effect on the expiry of the current order. Were such an application made, the respondent's supervision could then be considered on current evidence. I accept that submission and would impose a supervision period of five years.
The events which occurred between the preliminary hearing and the making of orders demonstrate how closely offenders who are subject to supervision orders are monitored in the community. They also demonstrate the need for conditions of a supervision order to be so expressed that they can be enforced. Breach of conditions of a supervision order is an offence, and accordingly the obligations imposed on the respondent must be clearly expressed.
In summary, I am satisfied on the evidence, to a high degree of probability, that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. I am satisfied that the respondent should be subject to a supervision order under s 27 of the Act, so that he is to be subject to the conditions stated in that order for a period of 5 years, and that those stringent conditions are sufficient to ensure the adequate protection of the community.
The respondent is not in custody, but in the community subject to an interim supervision order. Pursuant to s 27(3), I will make an order to have effect from the earliest date that is practically feasible.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
30 MARCH 2021
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