The State of Western Australia v Patrick [No 2] - [2017] WASC 281

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- PATRICK [No 2] [2017] WASC 281

CORAM: CORBOY J

HEARD: 31 MARCH, 24 APRIL & 31 AUGUST 2017

DELIVERED : 3 OCTOBER 2017

FILE NO/S: DSO 3 of 2016

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
LEON PATRICK
Respondent

Catchwords:

Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Division 2 hearing - Application for continuing detention order or supervision order - Whether unacceptable risk of the respondent committing further serious sexual offences - Meaning of 'unacceptable risk' - Whether the respondent is a serious danger to the community - Whether indefinite detention order or supervision order appropriate

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17

Result:

Order made that the respondent be detained in custody for an indefinite term for control, care and treatment

Category: B

Representation:

Counsel:

Applicant: Ms S Markham
Respondent: Ms M R Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers

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

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2000) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 116
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
Fardon v Attorney General (Qld) [2004] HCA 46; (2004) 223 CLR 575
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Patrick [2016] WASC 391
The State of Western Australia v West [2013] WASC 14
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 83 WAR 217

CORBOY J: On 26 June 2015, the respondent was convicted on his plea of attempted aggravated sexual penetration. He was sentenced to 3 years imprisonment. A parole eligibility order was made but parole was refused in August 2015 at the respondent's request. His sentence was completed on 17 February 2017.
The State made an application under s 8 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) for orders under s 14 and div 2 of the DSO Act. Jenkins J heard and allowed the application for an order under s 14. Her Honour was satisfied that there were reasonable grounds for believing that the court might, under s 7(1) of the DSO Act, find that the respondent was a serious danger to the community. Accordingly, her Honour fixed a day for the hearing of the application for a div 2 order: The State of Western Australia v Patrick [2016] WASC 391 (Patrick No 1).
I have concluded that an order should be made under div 2 of the DSO Act that the respondent be detained in custody for an indefinite term for control, care and treatment for the reasons that follow.

The respondent's personal history

The respondent was born on 5 December 1995. His mother is hearing impaired and communicates with gestures and pictures. He does not know his father.
His mother has a significant problem with alcohol abuse. She consumed alcohol while pregnant and the respondent has been recently diagnosed as suffering from foetal alcohol spectrum disorder (FASD).
Psychological and Community and Youth Justice reports that were prepared while the respondent was in the juvenile justice system indicate that he was exposed to significant substance abuse and violence as a child and adolescent.
The respondent had a disruptive upbringing. His great grandmother had primary responsibility for his care for a period of time up to December 2010 but was unable to continue to care for and supervise him due to health problems that required her frequent hospitalisation. Subsequently, the respondent lived with his mother in the Warmun Aboriginal Community as well as with grandparents and other family members and was also housed in hostels on occasion.
Reports prepared for the respondent's sentencing in 2012 noted that the respondent had already developed a significant problem with alcohol and cannabis use and that substance abuse was normalised within the Warmun Aboriginal Community.
Ms Oliveri, who prepared a psychological report in respect of the respondent in February 2012, commented that the respondent lived a largely unstructured life associating with relatives and peers who misused alcohol and illicit substances and engaged in antisocial behaviour. She made the following observations about the respondent's presentation and social and developmental history:
[The respondent] is a 15 year old Aboriginal boy with features of FASD which has never been formally diagnosed. English is not his first language. Some intellectual difficulties were evident from his presentation, mannerisms and communication and it is estimated that he is functioning at the level of below average intelligence. His mother experienced significant problems with alcohol and communication (hearing difficulties); his father was absent; and his mother and grandparents both struggled to appropriately care for him and was frequently absent. He led a transient lifestyle; rarely attended school; was exposed to domestic violence, substance abuse, criminality and sexual behaviour from a young age. Furthermore, significant individuals in his life died: his cultural brother and his great grandfather. Many of his childhood experiences have resulted in feelings of rejection, neglect, abandonment and loss. From a young age he has associated with antisocial relatives and peers and engaged in substance abuse and offending behaviour. In recent years his accommodation has been unstable. He reports that he has been sexually active from a young age; such early sexual activity appears to have been normalised in his community (book of materials (exhibit 1), 281 ‑ 282).
The book of materials tendered by the applicant (exhibit 1) contained a number of reports concerning the respondent that had been prepared since early 2010 by Youth Justice Services, Community and Youth Justice, the Department for Child Protection and various psychologists and psychiatrists. The book also included sentencing submissions and remarks in respect of sexual offences for which the respondent has been convicted. Those reports, submissions and remarks presented a consistent picture, the most significant aspects of which were succinctly captured in the passage from Ms Oliveri's report reproduced above.
A number of the reports contained in the book of materials were also provided to Jenkins J for the purpose of the application under s 14(1) of the DSO Act. Her Honour made findings about the respondent's personal history that were based on the reports and which were not in issue in the div 2 hearing. Accordingly, I adopt those findings (which appear at [7] ‑ [15] of Patrick No 1) and note in particular:
(a)The respondent suffered emotional and psychological difficulties and further dislocation in his family life following the death of a cousin, who was also a cultural brother, in 2007. That tragedy appears to have been a trigger for antisocial behaviours, including substance abuse and offending.
(b)The respondent has literacy and numeracy difficulties and problems in attention/executive functioning (see Patrick No 1 [10] ‑ [12]). He has only attended school for very brief and sporadic periods. However, his teachers reported that he understood customs, beliefs and storytelling. He expressed his culture through music and apparently appreciated his cultural identity and religious beliefs.
(c)The respondent possesses some organisational and planning abilities. However, he has had no experience with routine activities such as managing his money, shopping or utilising public transport. He has no awareness of nutrition and is unable to take appropriate action if unwell or to follow medical instructions. He has not demonstrated any understanding of the disciplines involved in employment.
(d)The respondent was assessed by a clinical psychologist and neuropsychologist, Dr Pestell, in 2013. She identified various aspects of the respondent's assessment that were consistent with FASD (the assessment is summarised in Patrick No 1 [14]). However, she declined to confirm a diagnosis as that is outside the area of her expertise.
(e)Dr Pestell also noted that it is likely that chronic substance abuse has exacerbated any pre‑existing cognitive difficulties experienced by the respondent. She recommended that the respondent be referred to a speech pathologist for assessment and treatment and that he also be reviewed by a paediatrician for further investigation of a possible diagnosis of FASD.

The respondent's criminal history

The respondent was first convicted of an offence in December 2008. He was convicted of aggravated burglary and committing an offence while in a dwelling. He was 12 years of age at the time that he committed the offence. He has subsequently been convicted of a number of burglary and similar offences.
The respondent was convicted of sexual penetration of a child under the age of 13 in May 2010. The offence was committed in December 2009. The respondent, in company with two others, sexually penetrated a 12‑year‑old girl who was unconscious through intoxication. The submissions made on behalf of the respondent for the purpose of sentencing indicated that at this time he had no contact with his mother; that he had been primarily cared for by his great grandparents and grandparents; and that he had been significantly affected by the death of his cousin. The respondent was sentenced to 8 months detention.
A psychological report prepared for the purpose of sentencing expressed similar opinions to the observations reproduced above from the report of Ms Oliveri. In particular, the possibility that the respondent suffered from FASD was raised, as was the need for psycho‑sexual education surrounding consent and other legal aspects related to engaging in sexual behaviour. The author of the report also expressed concern that the respondent did not have a stable place to live or a permanent care provider.
The respondent was convicted of two charges of assault and trespass that occurred on 30 September and 2 October 2010 while he was staying at the Warmun Aboriginal Community. Each offence involved the respondent entering premises without consent. In the first instance, he twice touched a 13‑year‑old girl on the buttocks while she was asleep and in the second instance, he awoke a 21‑year‑old woman by sitting on her bed. The offences were committed very shortly after the respondent had been released to the community on completing a period of detention for the offence committed in December 2009. The respondent was sentenced to a 6 month intensive youth supervision order.
The respondent was convicted of indecently dealing with a child in circumstances of aggravation in February 2012. The offence was committed on 7 December 2011. Again, the offence occurred while the respondent was staying at the Warmun Aboriginal Community. The victim was aged 14 years. The respondent entered her home carrying a pair of scissors. He used the scissors to cut a hole in the victim's shorts and underpants to expose her genital area while she slept. He then pushed his penis through the hole in her clothing causing her to wake up. She was distressed and called for help and the respondent ran from the scene. The respondent was sentenced to 8 months detention.
In September 2013, the respondent was convicted of unlawful and indecent assault in a circumstance of aggravation. The offence was committed in August 2013. The respondent twice inappropriately touched the victim while visiting her house. In the first instance, the respondent put his hand up the victim's skirt and touched her vagina from outside her underclothes while she bent over to attend to a young child. In the second instance, the respondent was being escorted away from the premises by the victim when he told her that she had 'a nice arse' and grabbed her buttocks. The victim was aged 31 years. The respondent was sentenced to 3 months detention.
In June 2015 the respondent was convicted of attempted aggravated sexual penetration without consent. The offence was committed in February 2014. The victim was aged 24 years. The respondent and a co‑offender were drinking with the victim at the front of a house in Kununurra. The respondent repeatedly asked the victim for sex and she told him that she was not interested. The respondent and his co‑offender repeatedly hit the victim's head causing her to fall to the ground. They then repeatedly kicked the victim's head and other parts of her body. The respondent's co-offender then sat on top of the victim, and the respondent pulled her shorts down to her knees despite her attempts to pull them up. The respondent and his co‑offender ran off when a neighbour, who had witnessed the incident, shouted out that they were calling the police. The victim received cuts, grazes and bruises to various parts of her body.

Psychiatric reports

The applicant tendered two psychiatric reports in support of its application to have the respondent declared a dangerous sexual offender:
(a)report of Dr Wojnarowska dated 20 January 2017; and
(b)report of Dr Wynn Owen dated 29 January 2017.
Dr Wojnarowska summarised in her report the appellant's history of sexual and other offending and his personal and social history. Her summary of those matters was substantially drawn from the book of materials and was not put in issue, although there was some cross‑examination on the conclusions that she had drawn from what she had read about the respondent's sexual offending.
Dr Wojnarowska questioned the respondent about his sexual development and his attitude towards his sexual offending for the purpose of preparing her report. She noted that most of the respondent's sexual encounters had occurred in the context of alcohol and cannabis intoxication and that two of the victims of his offending had also been involved in relationships with him.
Dr Wojnarowska also reported that the respondent claimed that he was not a sexual offender. For example, he stated that the victim of his 2009 offence had not been 'raped' as she was his girlfriend. Likewise, he stated that he thought that the victim of his 2011 offence would not mind having sex with him because she had done so in the past. He identified alcohol as a factor in his offending but was unable to otherwise explain why he had committed the offences.
Dr Wojnarowska concluded that the respondent 'presented as having a very limited understanding of these offences, his risk factors or how to manage them' (exhibit 1, 361). The respondent denied to her that he required treatment for his sexual offending or for drug and alcohol abuse. He indicated that he intended to continue smoking cannabis on his release to the community.
Dr Wojnarowska noted that the respondent had been psychologically assessed in the past; that he had received counselling in 2010 and that he had completed the Cognitive Brief Intervention programme in the same year. Although he had been assessed for participation in the Intensive Sex Offender treatment programme, his enrolment was cancelled due to concerns about his cognitive capacity to participate in the programme.
Dr Wojnarowska considered that the appellant had very limited insight into his psychological and behavioural functioning. She concluded that:
[The respondent's] personality structure is characterised by disregard for others and societal norms; limited ability to empathise, impulsivity and drug use. He also … possesses negative attitudes towards authority figures and has a dense history of generalist offending. He presents with profound deficits in interpersonal functioning characterised by deficits in empathy associated with limited remorse, propensity for violence, denial of sexual offending, and abrogation of personal responsibility for his behaviour by intoxication with alcohol as a form of excuse. He has a history of conduct disorder evidenced by his juvenile offences, and his current presentation is consistent with Antisocial Personality Disorder. The harmful use of alcohol and cannabis warrants a diagnosis of polysubstance abuse (exhibit 1, 368).
Dr Wojnarowska undertook a risk assessment utilising various instruments: Static‑99R, Hare Psychopathy Check List - Revised, HCR‑20 and Risk for Sexual Violence Protocol (RSVP). On the basis of the results of those tests and her clinical assessment, Dr Wojnarowska concluded that the respondent was at a high risk of sexually reoffending if he was not subject to a continuing detention order. She considered that several factors contributed to that conclusion:
(a)the respondent's high sexual drive and his high level of sexual preoccupation associated with his very young age;
(b)possible deviant sexual interest in incapacitated females;
(c)high impulsivity with propensity to act in a disinhibited manner;
(d)deficiency in communicating and sustaining interpersonal relationships;
(e)inability to understand the impact of his actions on others;
(f)high likelihood of resorting to alcohol and cannabis to alleviate his problems;
(g)refusal to accept treatment in any form (see exhibit 1, 373).
Dr Wojnarowska stated in her report that it was difficult to devise a management plan to assist in lowering the risk of the respondent sexually reoffending in the absence of a neuropsychological assessment concerning his cognitive capacity and the possibility that he suffers from FASD. However, Dr Wojnarowska noted that there had been many FASD intervention programmes implemented in Australia but those programmes were directed to school-aged children. Nevertheless, she thought that the intervention modules from at least one programme, the 'Alert Programme', might be adopted for use in the respondent's future treatment. She also thought that medication to assist the respondent in learning was worth considering - medication that would improve his attention skills and which had a low propensity for abuse - and that antidepressant medication could also be trialled.
Dr Wojnarowska confirmed in cross‑examination that she had given little weight to the results of the risk assessment instruments that she had administrated in concluding that the respondent was at a high risk of sexually reoffending if he was not subject to a continuing detention order. She considered that the instruments were of limited assistance as they had not been validated for use on indigenous persons and because the tests were designed for adults but the respondent's neurocognitive deficits meant that he functioned emotionally at the level of an adolescent. Accordingly, her conclusion relied primarily on her clinical assessment. The basis for her assessment was explored in cross-examination but it was not put in issue that Dr Wojnarowska could adequately assess the risk of the respondent sexually reoffending from her clinical observations and by using her clinical judgment.
Dr Wojnarowska characterised the respondent as being highly impulsive with no motivation to undergo treatment and stated that he was 'very oppositional in that adolescent sense' (ts 72). The respondent did not deny the facts of his past offending but he denied that he was a sex offender or a person who was in need of treatment (ts 76). He did not perceive his offending to be sexual in nature, a perception that Dr Wojnarowska considered to be directly relevant to his willingness to participate in treatment (ts 77). Dr Wojnarowska agreed that there were treatment modalities for offenders who denied that they were sexual offenders but noted that the respondent had stated that he would not participate in any form of treatment (ts 79). However, Dr Wojnarowska also accepted that the respondent was opposed to the idea of being categorised as a sexual offender and that this may have reflected a sense of shame. She considered that the respondent had expressed genuine regret for his past offending and accepted that his conduct was wrong.

Dr Wojnarowska agreed that the pattern of the respondent's offending did not involve violence in addition to the sexual assaults that constituted the offences that he had committed (ts 96). However, the respondent had consistently offended against vulnerable females irrespective of their age and while under the influence of alcohol and cannabis. It is possible that the respondent will resort to physical violence to gain the victim's compliance despite there being no pattern of additional violence in his past offending (see the risk scenario referred to in Dr Wojnarowska's report; exhibit 1, 372).
As to future treatment, Dr Wojnarowska considered that there is a risk of 'over‑intervening'. For example, placing the respondent in a high‑intensity sex offender treatment programme could risk failure and consequent alienation and demotivation. She considered that the respondent's treatment would best be undertaken while the respondent is in custody in the Kimberley where he would be closer to his family and country, and that any treatment programme should be tailored to individual counselling. She also considered that the respondent would, most likely, require 24 hour monitoring if he was released to the community at this time because of his impulsivity and failure to appreciate the risks of alcohol use (ts 102).
Dr Wynn Owen also interviewed the respondent about his past sexual offending and attitudes towards sexual offending in preparing his report. Dr Wynn Owen stated that the respondent reported feeling 'bad' about his sexual offending but that 'on further questioning it was clarified that he felt bad because he had been caught and imprisoned'. According to Dr Wynn Owen, the respondent 'did not volunteer any understanding of the effect his actions might have on his victims; he did not acknowledge a role for consent once he wanted to have sex with a victim and neither his manner, affect nor words indicated any victim empathy' (exhibit 1, 383).
Dr Wynn Owen discussed in his report the past psychological assessments that had been undertaken and in particular, Dr Pestell's report concerning the respondent's cognitive functioning. Based on his experience of interviewing the respondent, Dr Wynn Owen stated that he agreed with Dr Pestell's conclusion that the respondent is unlikely to benefit from group or individual therapy unless the format is specifically tailored to his needs.
Dr Wynn Owen undertook a risk assessment using the Static‑99 and RSVP. He considered that the respondent presents a high risk of serious sexual reoffending which is compounded by the presence of significant cognitive issues. He also considered that management of the respondent's risk would be 'most effectively achieved through a highly structured approach and containment' (exhibit 1, 394). He concluded his report with a summary of the respondent's personal history and circumstances that was similar to that provided by Ms Oliveri in 2012.
Dr Wynn Owen stated in his evidence that he thought the respondent would be fit to plead to a criminal charge but he agreed that it is unlikely that he understood what counsel for the respondent phrased as the 'moral imperative' of the DSO Act - that is, the concept of managing community safety. Dr Wynn Owen stated, 'I don't even get the sense that he felt that he made the community unsafe, so I think it would be very difficult for him to then apply that concept to himself' (ts 22). He added that the respondent does not see himself as dangerous and accordingly, has no concept of 'dangerousness' as that term is used in the DSO Act. The respondent is, however, aware that he has been detained beyond the release date for his past offending.
Dr Wynn Owen was cross‑examined as to the sources of his knowledge about the circumstances of the respondent's past offending and the extent to which he had confirmed his understanding with the respondent. He explained that he had difficulty in obtaining information from the respondent about those matters. He was asked whether the paucity of information provided by the respondent affected his ability to assess the causes of his offending. He replied:
To the causes, not necessarily. To the thinking behind it, in terms of sexual fantasy, in terms of managing sexual desire - those sorts of things, I have no real insight at all into that. But in terms of the - the offence and intoxication, I mean, I think that - that's there. The neurological deficits are there, the - there's the subsequent (indistinct) that alcohol may have offered to those neurological deficits, so I think, in terms of causes, we have some good information. But I would like to understand the thinking behind it because that's actually what can potentially be addressed therapeutically (ts 33).
Dr Wynn Owen explained that the pathway to the respondent's offending involved 'a longstanding neurological deficit with a range of behavioural and cognitive outcomes in terms of impulsivity, poor planning, poor judgment, and that being exacerbated by intoxication at times'. He added that, '[h]owever, the presence of that neurological deficit would be enough to make [the respondent] a high risk offender' (ts 34 ‑ 35). He accepted that the respondent's cognitive deficits are not susceptible to treatment but he considered that the respondent's resultant disinhibition is capable of treatment depending upon his capacity to learn certain behaviours (ts 35). However, he did not consider that the respondent's impulsivity could be managed at this stage as there had been no therapeutic intervention. He also considered that the respondent would relapse into alcohol use quite quickly without adequate supervision and that, together with his impulsivity and high sexual drive, he would be at risk of sexually reoffending (ts 20).
Dr Wynn Owen agreed that many of the factors relevant to the risk of the respondent sexually offending had been identified while the respondent was in the juvenile justice system. The relevant factors had been identified, for example, in the psychological reports that had been prepared when the respondent was in his mid-teens at a time when his developmental and social history were known and his abuse of alcohol was already problematic. Dr Wynn Owen observed that:
There have been a number of recommendations through court, which have talked to addressing his sexual behaviour, addressing alcohol and - and other drugs, but I've not seen evidence that they've been followed through with an intervention. And [the respondent] didn't report anything else (ts 42).
In particular, there was no evidence that the respondent had been assessed for participation in any drug and alcohol programme or for programmes to enhance his interpersonal and social skills or to address his educational problems. Dr Wynn Owen considered that although the respondent's cognitive impairment posed difficulties, it ought to have been possible to have undertaken trials to assess the extent to which different forms of intervention might have addressed his treatment, counselling and personal needs.
Dr Wynn Owen stated that the respondent's most recent offence was likely to be the best predictor of his future behaviour; that he was more likely to offend when intoxicated but intoxication was not necessarily the determinant risk factor and that, at present, the respondent would require 24 hour supervision if he was released to the community to ameliorate the risk of him sexually reoffending. He considered that the respondent requires counselling, treatment, supervision and monitoring, with appropriate accommodation being provided at a place that can adequately cater for those requirements. It is likely that tailored individual counselling is necessary having regard to the respondent's cognitive impairments. Dr Wynn Owen also considered that the respondent would benefit from further education and medication to treat Attention Deficit Hyperactivity Disorder and that it would be necessary to monitor his progress for at least 12 months to determine the time over which intervention strategies would be required.

The PATCHES report

The respondent was assessed by Dr Fitzpatrick and Dr Pestell in December 2016 for the possibility that he suffers from FASD. Dr Fitzpatrick is a consultant paediatrician and Director of PATCHES Paediatric and, as has been noted, Dr Pestell is a clinical psychologist and neuropsychologist.
The PATCHES report (exhibit 3) contained a summary of the respondent's mental and educational history that was drawn from the book of materials. The report also referred to Dr Pestell's 2013 report and Dr Wojnarowska's psychiatric report of January 2017 in relation to the respondent's psychosocial history. It was noted that various psychometric tests had been administered to the respondent in the past and the report incorporated a summary of the results of those tests and the observations that had been made by Dr Pestell in 2013 and Dr Wojnarowska in 2017. It is not necessary to reproduce the detail of the respondent's history as described in the PATCHES report. It is necessary only to note that no aspect of the report or its conclusions was challenged by either party.
The PATCHES report concluded that the respondent met the diagnostic criteria for FASD and that his functional impairment was in the severe range, consistent with a diagnosis of intellectual disability. He would likely qualify for very substantial support within the National Disability Insurance Scheme (NDIS) due to the functional implications of his disability. The report reached that conclusion despite the respondent refusing to engage in the assessment process, in particular, further neuropsychological testing. The respondent stated that he considered the tests as 'babyish' and that he did not want to know whether he suffers from a disability.
Dr Pestell concluded in a part of the report that she wrote that the respondent's cognitive and language problems will continue to affect his ability to communicate and sustain interpersonal relationships. His inability to express himself also affects his capacity to resolve conflict and given his cognitive limitations, it is likely that the respondent will act in a disinhibited and impulsive manner with little regard for the consequences of his actions. He appeared to lack the ability to appreciate the perspective of others or to understand the impact that his actions might have on other persons.
Dr Pestell made recommendations in the PATCHES report concerning future intervention and support programmes for the respondent. She recommended that there be a 'holistic focus on building his functional skills, capacity to cope and resist peer pressure' and that he be taught better coping strategies to deal with feelings of anger, frustration, stress and possible unresolved grief. It is likely that it would take considerable time to build rapport with him given his attentional difficulties, cognitive impairments and distrustful attitude. He requires assistance with planning and organisation and Dr Pestell supported Dr Wojnarowska's recommendation that aspects of the Alert Programme could be beneficial for the respondent, together with an appropriate medication regime to assist with learning and to manage his attention difficulties and mood. She also considered that medical tests should be undertaken to investigate the possible causes of the respondent's extreme growth impairment and microcephaly in the context of his intellectual disabilities.

Management Plan

The book of materials included a proposed Dangerous Sex Offender Management Plan prepared in respect of the respondent by Ms Ballantyne, a senior counselling psychologist with the Department of Corrective Services (DCS). The plan was dated 20 January 2017 (exhibit 1, 331 ‑ 341). An addendum to the plan was also tendered by the applicant (exhibit 4). The addendum was dated 27 March 2017 and was completed after the PATCHES report was prepared.
The plan and addendum were prepared after the respondent had been interviewed and following consultation with others, including Dr Wynn Owen, Dr Wojnarowska and Ms Henshall (a senior community corrections officer with DCS who prepared the Community Supervision Assessment Report that was included in the book of materials). Ms Ballantyne also reviewed the documents contained in the book of materials.
Ms Ballantyne's plan summarised aspects of the information contained in the book of materials relating to the respondent's offending, his dealings with the juvenile justice system and the neuropsychological assessment undertaken by Dr Pestell in 2013. The plan confirmed the matters on which Dr Wynn Owen had testified concerning the past identification of the respondent's treatment and counselling needs and his limited access to intervention programmes while in the juvenile justice system.
The plan also contained an assessment of the factors relevant to the risk of the respondent sexually reoffending using an assessment tool, STABLE‑2007. That tool is not used to predict the risk of the person sexually reoffending in the future but rather, to assist 'stakeholders' to formulate a case management plan or to identify treatment and supervision 'targets' for offenders (exhibit 1, 336, par 29). Using that assessment tool, Ms Ballantyne commented on the respondent's social supports, intimacy 'deficits', the capacity for general and sexual self‑regulation and cooperation with supervision. Ms Ballantyne's plan of January 2017 concluded with a discussion of intervention and risk management recommendations based on her conclusions in respect of each of those matters.
Ms Ballantyne concluded in the addendum that 'formal confirmation' that the respondent met the diagnostic criteria for FASD and intellectual disability had 'significant implications for the formulation of offence specific treatment targets (dynamic risk factors) of relevance regarding historical and possible future sexual offending' (exhibit 4, par 2). She considered that the respondent's impairment appeared to 'preclude him to some extent from significant improvement in a number of dynamic risk indicators addressed in offender treatment programmes' and that the respondent is disadvantaged by the extent of his treatment needs and his limited capacity to respond to 'traditional' psychological interventions to address those needs (exhibit 4, pars 3 and 4). Ms Ballantyne stated that it had not been possible at the time of her report to identify specific individuals, agencies or programmes that might be used to provide intervention and support for the respondent, although the PATCHES report indicated that he might be eligible for funding and services through the Disability Services Commission or NDIS.
The addendum concluded with Ms Ballantyne identifying various programmes in which the respondent might participate depending upon his eligibility for funding and support through government and non‑government sectors. In summary, Ms Ballantyne considered that:
(a)The respondent is not suitable for inclusion in 'mainstream' psychological offence specific group or individual treatment programmes in either a custodial or community setting. Accordingly, it is necessary to develop an individualised intervention plan for him.
(b)The respondent is more likely to engage meaningfully in supported, culturally appropriate interventions and while being mentored by an appropriately qualified Aboriginal male.
(c)It is not possible to establish a detailed plan for the respondent until his eligibility for funding and services has been clarified. It is possible that he could be eligible for services provided by Disability Justice Clinicians (clinical psychologists) and it might be possible to identify a mentor through Uniting Care West.
(d)The respondent might benefit from participation in a programme such as the Alert Programme modified by a suitably qualified occupational therapist to accommodate the respondent's age and particular needs.
Ms Ballantyne accepted in her evidence that she did not possess the skills necessary to devise or modify programmes that might accommodate the respondent's FASD. Further, DCS did not employ occupational therapists and the likely role that the Department would play in the treatment and counselling of the respondent would be to coordinate and oversee the provision of services by the Disability Services Commission or NDIS (assuming that the respondent qualifies for funding and services through those entities) (ts 129 and ts 135). Ms Ballantyne also accepted that the Psychology Services Team at DCS did not have experience in dealing with offenders who had been diagnosed with FASD (ts 135).

Community Assessment Supervision Report

Ms Henshall noted in her report (exhibit 1, 343 ‑ 355) that the respondent had not been subjected to supervision by DCS as an adult. However, he had been subjected to supervision orders while a juvenile and he had struggled to comply with the conditions on which those orders had been made.
The respondent had proposed that he reside with his grandfather at the Warmun Aboriginal Community if he was released from custody. He subsequently advised that he had been informed that the Community did not wish him to reside with them (that matter was subsequently confirmed by other family members). The respondent indicated that two relatives living in Kununurra might be willing to assist him with accommodation but he was unable to provide contact details. The respondent's grandfather also stated that he remained supportive of the respondent.
In cross‑examination, Ms Henshall confirmed that the respondent is detained as a remand prisoner; he was not working or studying and accordingly, was on the lowest level of gratuities for a prisoner; he is subject to the same regime as other prisoners in respect of matters such as lockdown time; and like sentenced prisoners, he is required to purchase items such as a television, an X‑box and art supplies from his own funds. His ability to access self‑care is also similar to a sentenced prisoner.

The statutory framework

Section 17 of the DSO Act states:
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 7 of the DSO Act concerns the concept of a serious danger to the community. The section provides:
(1)Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2)The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied -
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
(3)In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b)any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d)whether or not there is any pattern of offending behaviour on the part of the person; and
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g)the person's antecedents and criminal record; and
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.

Part V of the DSO Act concerns the preparation and provision of reports to the court for, among other things, div 2 applications. No issue arises in this case concerning whether the reports received by the court conformed to the requirements of pt V.

The relevant principles

I have previously set out my understanding of some principles concerning the proper construction of s 7 of the DSO Act in The State of Western Australia v West [2013] WASC 14. That statement represented a summary of a number of earlier authorities. It was endorsed by the Chief Justice in Director of Public Prosecutions (WA) v Yates [2014] WASC 136 and accordingly, I am content to reproduce what I stated in West as the starting point for considering the parties' submissions concerning the meaning and application of the expression 'unacceptable risk' to the respondent's circumstances:
(a)Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906(WA) (s 3 of the DSO Act).
(b)The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).
(c)In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d)It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].
(e)The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).
(f)In a passage that was expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions (WA) v Williams[2007] WASCA 206; 35 WAR 297 [63] ‑ [64]:
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
(g)The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h)The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].
(i)The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions (WA)[2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions (WA) v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].
(j)The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Decke [52].
It is helpful to cite further from the judgment of Wheeler JA in Director of Public Prosecutions (WA) vWilliams [2007] WASCA 116 having regard to the respondent's submissions (it should be noted that Le Miere AJA agreed with Wheeler JA in Williams). Her Honour rejected a suggestion made in The State of Western Australia vLatimer [2006] WASC 235 that an 'unacceptable risk' was a 'real risk rather than a remote possibility'. The interpretation of the expression 'unacceptable risk' favoured by her Honour is set out in the passage from Williams reproduced above. Her Honour explained that [64] ‑ [65]:
There are four reasons for considering that the meaning outlined above is what Parliament intended by the expression 'unacceptable risk'. The first is that s 7(1) expressly refers to the risk as a risk which exists 'if the person were not subject to [either] a continuing detention order or a supervision order'. That is, Parliament has expressly adverted to the consequences of making a finding, in referring to the type of risk to be guarded against. Second, s 7(2) places upon the DPP the onus of satisfying the court of the matters described in s 7(1) by acceptable and cogent evidence and 'to a high degree of probability'. An onus expressed in that way suggests a task of substantially greater difficulty than that of simply ascertaining whether there is a risk which is real and not remote. Third, s 7(3) sets out a variety of matters to which the court must have regard in determining the related question of whether a person is a serious danger to the community. The list includes factors which suggest that there is some need to balance the interests of the offender against those of the public, or at least that it is permissible for a court to have regard to such matters. Section 7(3)(i), for example, refers to the need to protect members of the community from 'that risk' (suggesting that the public may not need protection from every risk) while s 7(3)(j) refers broadly to 'any other relevant matter'.
Finally, it is to be noted that many of the provisions of the Act are similar to, although not identical with, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Section 13(2) of that Act referred to 'an unacceptable risk that the prisoner will commit a serious sexual offence'. It was argued in Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 that such a test was devoid of practical content. In rejecting that contention, Gleeson CJ at [22] and Callinan and Heydon JJ at [225] referred to the decision of the High Court in M v M (1988) 166 CLR 69, a case which dealt, as Gleeson CJ summarised it in Fardon, with 'the magnitude of a risk that will justify a court in denying a parent access to a child'. That is, those members of the High Court who referred directly to the question considered that the legislature had adopted a criterion and a standard appropriate to the balancing of competing considerations. Fardon was decided prior to the enactment of the Act, and it would be expected that Parliament in Western Australia would be aware of the meaning given to that expression in the reasons in Fardon. An examination of Hansard confirms that Parliament was aware of that case: eg Parliamentary Debates, Legislative Assembly, 15 November 2005, 7272 ‑ 3.
The Chief Justice noted in Yates two further matters concerning those principles that he described as anomalies but which the Court of Appeal had accepted. His Honour stated:
Having regard to established principles of statutory construction, there are two anomalies evident in these principles. First, two different expressions in the Act ('an unacceptable risk that ... the person would commit a serious sexual offence' and 'serious danger to the community') have been given precisely the same meaning. Second, in s 17 the word 'may' has been construed as 'must', and consequently as conveying a duty to make an order, rather than a discretion. However, those aspects of the construction of the Act have been endorsed by decisions of the Court of Appeal of this State (Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307), and must be taken to represent the current state of the law. In any event, for the reasons which follow, the differing nuances of meaning which might be given to the relevant provisions of the Act would have no bearing upon the outcome of these proceedings [6].
Those 'anomalies' also reflect the reasoning of Wheeler JA in Williams. Her Honour stated:
There is a question as to whether a 'serious danger to the community' is a finding which is automatically to be made once the court determines that there is an unacceptable risk of the kind to which s 7(1) refers, or whether there is some additional finding which must be made. Normally, where Parliament uses two different expressions, one would expect two different meanings to be intended. However, if, as in my view it does, s 7(1) in referring to an 'unacceptable risk' is referring to a risk which is unacceptable having regard to the serious consequences of making such a finding, then it is difficult to imagine what further matters the court would need to consider in determining whether the person was a serious danger to the community. In the context of this Act, it seems to me more likely that in using the different, and even less precise, expression 'serious danger to the community', Parliament was merely intending to emphasise the very serious nature of the finding with which the court was concerned. In my view, once the court has found an unacceptable risk in the sense that I have described, the finding of serious danger to the community inevitably follows.
…
However, on the view that I take of the considerations to which the court must have regard in determining whether to find that a person is a serious danger to the community, the court has already, in arriving at that view, balanced all relevant considerations including the potential consequence of such a finding for the offender. If that is the correct view of the way in which the court should approach the making of such a finding, then there will be no further relevant considerations which the court can have regard to in deciding whether to make, or decline to make, an order. Rather, the only question which would remain is that of what would be the appropriate form of order. In that case, as it appears to me that there would be nothing upon which a discretion could sensibly operate, it is my view that the legislature intended that 'may' was to be understood as 'must' [66] and [68].
Steytler P and Buss JA (as his Honour then was) expressly agreed with the observations of Wheeler JA concerning the meaning of the expression 'unacceptable risk' in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2000) 38 WAR 307. Their Honours added:
The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other hand, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case …' [27].
The observations of Wheeler JA in Williams and the additional observations of Steytler P and Buss JA in GTR were subsequently referred to and applied by the Court of Appeal in Woodsv Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 83 WAR 217 and Italiano v The State of Western Australia [2009] WASCA 116. The observations of Wheeler JA were reproduced in full in those cases (and in GTR) no doubt because it is difficult to adequately capture, by paraphrasing, the full effect of her Honour's reasoning.

The respondent's submissions

The respondent did not dispute the opinions and conclusions expressed by Dr Wojnarowska, Dr Wynn Owen or Ms Ballantyne. In particular, the respondent did not contend that the opinions of Dr Wojnarowska and Dr Wynn Owen that the respondent presents a high risk of serious sexual reoffending unless he is detained in custody (or, perhaps, placed under 24 hour supervision) should be rejected. Subject to cross‑examination on some aspects of detail, the respondent also accepted the basis upon which those opinions had been formed, including the methodology employed and the characterisation by Dr Wojnarowska and Dr Wynn Owen of the respondent's conduct, personality and psychosocial traits. As has been noted, the respondent also did not challenge the diagnosis that he suffers from FASD.
As to the legal principles to be applied, the respondent accepted what was stated by Wheeler JA in Williams but also noted that:
(a)The determination of whether any identifiable risk is 'unacceptable' is a matter of judicial discretion - by which, I assume, the respondent means that it is for the court to undertake the balancing exercise identified by Steytler P and Buss JA in GTR and more fully described by Wheeler JA in Williams to determine whether any risk established by the evidence is 'unacceptable'.
(b)The protection of the community is not the paramount consideration in determining whether an identifiable risk is 'unacceptable' (in contrast to the decision to be made under s 17). That factor is one of several factors identified in s 7(3) of the DSO Act. Further, the list of matters to be considered is not closed - s 7(3)(j) permits the court to have regard to any other relevant matter.
(c)Consideration of whether an identified risk is unacceptable is not confined to a determination of the quantum of risk.
As I understood the submission, the respondent contended that the word 'unacceptable' connotes more than a purely quantitative assessment of the risk of serious sexual reoffending; the concept of 'unacceptable' risk also embodies a normative dimension. The balancing exercise that the court is required to undertake involves not merely considering the consequences of a finding that the respondent is a serious danger to the community (and therefore must be made subject to a continuing detention order or a supervision order) in the abstract, but rather that the court is entitled to have regard to, in this case, the explanation for (the causes of) the respondent's risk profile and the circumstances in which he would be detained in custody should a continuing detention order be made. Accordingly, it was submitted that the court ought not find that the respondent's risk of committing a serious sexual offence was unacceptable having regard to:
(a)his young age;
(b)the fact (so it was submitted) that the respondent's risk profile is largely caused by matters outside of his control - that is, that his risk profile is related to, and caused by, his FASD;
(c)the further fact (so it was submitted) that his risk profile is largely caused by the negligence of those who were meant to care for him when he was a child, namely his mother, but also that the State should bear some responsibility for the failure of the respondent's mother to provide adequate perinatal care for the respondent;
(d)the failure of DCS to provide treatment/rehabilitation to the respondent while he was a sentenced prisoner in the past in circumstances where the Department was well aware of his unique needs and treatment requirements;
(e)the policy of DCS which dictates that detainees under the DSO Act are to be held in the same 'punitive environment with the same punitive rules' as sentenced prisoners, in particular regarding the location of detention (in a gazetted prison); the nature of the detention (by reference to lockdowns and constraints on freedom of movement); lack of access to 'the comforts of life' (for example, phone calls, television and art supplies); and being forced to work for the benefit of the State whilst being held in custody;
(f)the lack of any plan for the treatment of the respondent - at most, DCS has a 'plan to develop a plan';
(g)the lack of expertise or experience within DCS to treat or facilitate the rehabilitation of the respondent.
It will be necessary to further consider the respondent's submissions concerning the meaning and effect of the expression 'unacceptable risk'. However, it is convenient to first comment on the factors specified in s 7(3) of the DSO Act which the court is obliged to have regard in determining whether the respondent is a serious danger to the community.

The s 7(3) factors

Psychiatric, psychological and other assessment reports (s 7(3)(a) and (b))

Dr Wojnarowska and Dr Wynn Owen each separately concluded that, at present, there is a high risk of the respondent committing a serious sexual offence unless he is detained in custody. Although there were some differences in their opinions (for example, on the extent to which the respondent was remorseful for his past offending and appreciated that his conduct was wrong), their views were consistent on the magnitude and causes of the risk of the respondent committing a serious sexual offence.
I accept the opinions expressed by Dr Wojnarowska and Dr Wynn Owen and find that the respondent presents a high risk of committing a serious sexual offence unless he is detained in custody. I make that finding having regard to the evidence as to his cognitive impairments; impulsivity; disinhibited behaviour, especially when intoxicated; lack of insight into, and appreciation of, the causes of his offending; and attitudes towards the gratification of his sexual desires. I accept and find that the cause of those personality and behavioural characteristics lies in a combination of his FASD and his personal and social development history, particularly his dysfunctional upbringing, and the fact that the respondent has received little treatment and counselling and, in particular, has not received any treatment that reflects the opinions and recommendations that have been expressed by Dr Wojnarowska, Dr Wynn Owen and Dr Pestell. All of the psychiatric, psychological and neuropsychological reports that have been presented in this hearing are, in my view, consistent with, and provide evidence for, those findings.

Pattern of offending behaviour (s 7(3)(d))

There were some differences between Dr Wojnarowska and Dr Wynn Owen as to the pattern of the respondent's past offending - in particular, as to the extent to which the respondent's past offending involved the use of violence in addition to the sexual assaults that were committed. However, it is clear that the respondent's past offending involved impulsivity and disinhibition. The offences were opportunistic and were committed on victims who were vulnerable. As has been noted, the impulsive and disinhibited nature of the offences reflected the influence of alcohol and drugs, the effects of the respondent's cognitive impairments (which are apparently the result of his FASD), his antisocial personality disorder and his lack of socialisation through his chaotic upbringing. Those matters indicate that the risk of the respondent committing a serious sexual offence is high in the absence of intervention.
Dr Wojnarowska and Dr Wynn Owen each expressed an opinion on the risk scenario for the respondent committing a serious sexual offence. The scenarios were based on the pattern of his past offending and their understanding of the factors that contributed to the risk of the respondent sexually reoffending. It is not necessary to describe the detail of those risk scenarios. It is sufficient to note that they were consistent with the various opinions expressed by Dr Wojnarowska and Dr Wynn Owen and with the balance of the evidence presented in the hearing.

Propensity to commit serious sexual offences (s 7(3)(c))

The factor specified in s 7(3)(c) is directed to whether an offender has an identified sexual propensity or deviance. Sexual deviance is one factor considered in the RSVP assessment. Dr Wojnarowska stated in her report that she was unable to comment on the presence of sexual deviance due to the lack of information provided (exhibit 1, 368). However, in reporting on the results of the RSVP assessment she performed, Dr Wojnarowska noted the possibility of sexual deviance. She stated, '[t]here is some evidence to suggest that there is a pattern of deviant sexual interest, not confirmed by [the respondent]' (exhibit 1, 371).
Dr Wynn Owen did not comment in his report on deviance or, more generally, whether the respondent might have a propensity to commit serious sexual offences.
In my view, the evidence does not establish that the respondent has a propensity to commit serious sexual offences in the future - that is, that he has a sexual deviance or sexual interest that can be characterised as a propensity independent of the other risk factors to which reference has already been made.

Past interventions (s 7(3)(e) and (f))

As was submitted on his behalf, the respondent's neuropsychological and cognitive difficulties and the consequences for his behaviour were recognised while the respondent was in the juvenile justice system. There was a suspicion that he suffers from FASD as early as 2010, although the diagnosis was not confirmed (psychological report of Ms Riordan dated 18 March 2010; exhibit 1, 243 ‑ 249). However, the characteristics of his presentation and behaviour that ultimately resulted in confirmation of the diagnosis of FASD had been identified by the time that the respondent was in his mid‑teens. His personal and social development had also been documented by that time and the need for intervention strategies had also been clearly isolated. All of those matters were referred to in the psychological and other reports prepared by youth justice authorities; they were also referred to during the hearings for the respondent's sentencing for his past offending.
It is clear that the respondent was not at fault for his lack of participation in treatment and counselling programmes during the time that he was in the juvenile justice system. The reports contained in the book of materials indicate that he responded positively to the Cognitive Brief Intervention Programme. However, at some point he has developed what Dr Wojnarowska described as an 'oppositional' attitude. As she explained, that attitude probably reflects his intellectual disabilities and emotional immaturity. As a result, the respondent now denies that he requires any form of treatment, whether for sexual offending or problems such as drug and alcohol abuse.
The evidence provided by Dr Wojnarowska and Dr Wynn Owen establishes that the lack of past intervention is a significant factor contributing to the risk of the respondent committing a serious sexual offence if he is released to the community. Their opinions are supported and confirmed by psychological and other reports incorporated in the book of materials.

Criminal record, risk and the need for protection of the community (s 7(3)(g), (h) and (i))

The factors as specified in s 7(3)(g), (h) and (i) have already been discussed. I have found that there is a high risk that the respondent will commit a serious sexual offence if he is not detained in custody. The respondent's antecedents and criminal record form part of the basis upon which I have made that finding. In my view, there is a need to protect members of the community from the risk of the respondent committing a serious sexual offence for the reasons that have already been given.

'Unacceptable risk' and any other relevant matter

The proposition that the expression 'unacceptable risk' entails more than a purely quantitative assessment does not, I think, fully capture the effect of the respondent's submissions. As I understood the submissions, the respondent contended that the meaning of the word 'unacceptable' was sufficiently wide to embrace the apparent unfairness of a person being found to be a serious danger to the community, with the consequences that must follow from that finding, where an identified risk of a person sexually offending was the manifestation of factors that were outside their control (such as the perinatal negligence of their mother) and where the party that sought to detain or curtail the freedom of the person, the State, had, itself, contributed to the manifestation of that risk.
As Wheeler JA explained in Williams, there is 'at least some need' to balance the interests of an offender against those of the community. Further, the reference to an 'unacceptable' risk implies that Parliament contemplated that some risk, or forms of risk, will be acceptable when the interests of the offender and those of the community are balanced (and as the respondent's counsel observed, the community accepts the possibility of recidivism when an offender is released to the community in other circumstances). However, in my view, the decisions in Williams and GTR make clear that whether an identified risk is unacceptable is to be determined by assessing the magnitude and nature of the risk of a person committing a serious sexual offence and the consequences of finding that a person is a serious danger to the community (that is, the requirement for a continuing detention order or a supervision order).
There is a difference between the factors that contribute to the risk of a person committing a serious sexual offence - for example, in this case, factors such as cognitive impairment, impulsivity and disinhibition - and the underlying explanation for those factors - for example, in this case, matters such as FASD, drug and alcohol abuse and the lack of appropriate and effective intervention in the past. The explanation for the presence of risk factors may assist in determining the magnitude and nature of a risk of a person sexually reoffending but it cannot, in my view, provide a basis for concluding that an identified risk is 'unacceptable'. The question posed by s 7(1) of the DSO Act is whether the magnitude and nature of the risk justifies a court finding that a person is a serious danger to the community with the consequence that a continuing detention order or a supervision order must be made (to paraphrase Gleeson CJ in Fardon v Attorney General (Qld) [2004] HCA 46; (2004) 223 CLR 575). The question is not whether it would be unjust, and therefore 'unacceptable', in some broad sense to find that a person is a serious danger to the community because of the underlying explanation for the presence of risk factors for serious sexual offending. That interpretation is, in my view, consistent with the objects of the DSO Act as specified in s 4. The objects of the Act include 'to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community and of victims'.
It is not clear whether the balancing required by s 7(1) of the DSO Act can be affected by the actual circumstances in which a person might be detained in custody if a continuing detention order is made. It may be that the circumstances are so punitive as to constitute a form of punishment - although, consideration of that possibility may raise questions about the line between judicial discretion under the DSO Act and the exercise of executive power outside the Act (that question is different to the question whether the true motive of the State in seeking an order under the Act is the further punishment of the offender). However, it is not necessary to further consider the issue as, in my view, the risk of the respondent committing a serious sexual offence, if a continuing detention order or supervision order is not made, is unacceptable even if the evidence concerning the circumstances in which the respondent would be detained in custody is relevant. I would only add that there is a circularity in the respondent's argument - it assumes that the offender will be detained, but whether a continuing detention order should be made involves a separate assessment under s 17 of the DSO Act which can only occur after a person has been found to be a serious danger to the community. Moreover, it might have been expected that the Act would have incorporated provisions governing the detention of persons who are made subject to a continuing detention order if it had been intended that such matters could be relevant to the determination of whether a person was a serious danger to the community. That said, it must always be remembered that offenders who are subject to the DSO Act have completed their sentences for the offending. The object of the Act is not to further punish the offender. The objects of the Act are to protect the community and to provide for the control and/or care and/or treatment of offenders who have been found to be a serious danger to the community.
I consider that the high risk of the respondent committing a serious sexual offence unless a continuing detention order or a supervision order is made is unacceptable having regard to the findings that have been made in these reasons. I would have reached the same conclusion even if the respondent's submissions concerning the meaning and effect of the expression 'unacceptable risk' had been accepted. The magnitude and nature of the risk of the respondent committing a serious sexual offence would justify a finding that he is a serious danger to the community even if the causes of the risk are as he has asserted and those causes are relevant to the assessment of whether the risk is unacceptable.

Continuing detention order or supervision order (s 17)

Having found that the respondent is a serious danger to the community, it is necessary to determine whether a continuing detention order or a supervision order should be made. Dr Wojnarowska and Dr Wynn Owen agreed that there is a high risk of the respondent committing a serious sexual offence if he is not detained in custody. They did not suggest that there were conditions that might be imposed that would adequately protect the community if the respondent was released on a supervision order. That is because the respondent has significant unfulfilled treatment needs.
Dr Wojnarowska, Dr Wynn Owen and the other witnesses who were called by the State were not questioned on what, if any, conditions might be imposed that would adequately protect the community if the respondent was released on a supervision order. The respondent did not submit that a supervision order should be made if he was found to be a serious danger to the community. Rather, the respondent's submissions were directed to the anterior question of whether he was a serious danger to the community because the risk of him committing a serious sexual offence was unacceptable.
In my view, the evidence unequivocally establishes that the community cannot be adequately protected if the respondent is released on a supervision order. The respondent has complex and significant treatment needs that remain unfulfilled.
The evidence relating to those needs is relevant to the findings I have made concerning whether the respondent is a serious danger to the community and the order that should be made under s 17. However, it is to be hoped that the evidence concerning the respondent's needs for treatment and counselling, and the recommendations that have been made by Dr Wojnarowska, Dr Wynn Owen and Dr Pestell will assist DCS in managing the respondent during the time that he is in custody.
I find that it is necessary to make a continuing detention order to ensure that the community is adequately protected from the unacceptable risk that the respondent will commit a serious sexual offence if he is released from custody.