The State of Western Australia v Patrick [No 4]
[2020] WASC 48
•6 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PATRICK [No 4] [2020] WASC 48
CORAM: JENKINS J
HEARD: 10 DECEMBER 2019, 14 JANUARY & 6 FEBRUARY 2020
DELIVERED : 6 FEBRUARY 2020
FILE NO/S: DSO 3 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
LEON PATRICK
Respondent
Catchwords:
Criminal law - Dangerous sexual offender - Contravention of community supervision order - Application to rescind supervision order - Whether to impose continuing detention order or amend supervision order - Whether community would be adequately protected if respondent is re-released on a supervision order
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 3, s 7A, s 18, s 19, s 22, s 23, s 40
Result:
Supervision order rescinded
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Ms M R Barone SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Ms M R Barone SC |
Case(s) referred to in decision(s):
Director of Public Prosecutions v Hart [2019] WASC 4
The State of Western Australia v Narrier [No 5] [2019] WASC 17
The State of Western Australia v Patrick [2016] WASC 391
The State of Western Australia v Patrick [No 2] [2017] WASC 281
The State of Western Australia v Patrick [No 3] [2019] WASC 482
The State of Western Australia v Yates [2019] WASC 63
JENKINS J:
Introduction
By application filed on 30 August 2019 the DPP[1] in the name of the State of Western Australia (the State) applies for an order under the Dangerous Sexual Offenders Act 2006 (WA) (the Act), s 23, that the respondent has contravened a condition of his supervision order made on 26 April 2019 (the SO). The application seeks orders that the SO be rescinded and a continuing detention order (CDO) be made in relation to the respondent (the contravention proceedings).[2]
[1] The Act s 3 defines DPP to mean the holder of the Office of Director of Public Prosecutions under the Director of Public Prosecutions Act 1991 (WA). Section 7A provides that the DPP may make applications under the Act in the name of the State.
[2] The State's application seeks various alternative orders but by the time of the hearing of the application the State identified that it sought orders that the SO be rescinded and a CDO be imposed.
The respondent submits that I should not rescind the SO as I should be satisfied on the balance of probabilities that he will substantially comply with the standard conditions or amended standard conditions of the SO. He acknowledges that this determination may depend on whether the necessary arrangements for his supervision could be put in place at the time of his release from the sentence he is now serving. Given that his date of release from his sentence is uncertain (because it is unknown whether he will be granted parole on that sentence) he concedes that an adjournment may be required until the date of his release is known.
These are the reasons for my decision to rescind the SO and make a CDO.
The breach offences
On 20 October 2019 the respondent pleaded guilty in the Magistrates Court to two charges against the Act s 40A(1), which alleged that on 28 August 2019 he contravened a requirement of the SO contrary to the Act s 40A(1) (the breach offences).
The breach offences were then transferred to this court[3] and I sentenced the respondent for the breach offences to 12 months' imprisonment backdated to commence on 28 August 2019. I ordered that the respondent was eligible for parole. My sentencing remarks for the breach offences should be read in conjunction with these reasons for rescinding the SO and imposing a CDO.
[3] The Act s 40B(4).
The statutory provisions
The Act s 22(2) provides that the DPP may, in certain circumstances, commence contravention proceedings under the Act s 23. It is not in dispute that the preconditions for commencing the contravention proceedings were satisfied. The Act s 23 relevantly states:
(1)If, on the hearing of an application under section 22, the court is satisfied, on the balance of probabilities, that the person to whom the application relates has contravened or is contravening a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the person; or
(b)subject to subsection (1B), make an order amending the conditions of the supervision order, or extending the period for which the person is to be subject to the supervision order, or both; or
(c)subject to subsection (1B), make an order affirming the supervision order without amendment or extension.
…
(1B)A court cannot make an order under subsection (1)(b) or (c) … unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions or amended standard conditions of the supervision order.
(1C)The onus of proof as to the matter described in subsection (1B) is on the person to whom the application relates.
(2)In deciding which order to make under subsection (1) …, the paramount consideration is to be the need to ensure adequate protection of the community.
The Act s 23(1) was amended by s 23(1B) and (1C) which came into force on 29 March 2019. As the SO and the breach offences occurred after this date, the amendments apply. I have previously outlined the effect of these amendments.[4]
[4] The State of Western Australia v Narrier [No 5] [2019] WASC 17 [9] ‑ [10]; The State of Western Australia v Yates [2019] WASC 63 [5] ‑ [15].
Section 23(1B) prevents me from amending, extending or affirming the SO unless I am satisfied that the respondent will substantially comply with the standard conditions or amended standard conditions.[5] A standard condition, in relation to a supervision order, means a condition which under the Act s 18(1) must be included in an SO.[6] Section 18(1) provides that a SO must require the person to whom it applies to:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the person's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the person's name, place of residence, or place of employment at least two days before the change happens; and
(d)be under the supervision of a community corrections officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a sexual offence as defined in the Evidence Act 1906 (WA) section 36A during the period of the order; and
(g)be subject to electronic monitoring under section 19A.
[5] Neither party considered that the matter turned on the distinction between the standard conditions and the amended standard conditions. Consequently, I will refer to them as the standard conditions.
[6] The Act s 3.
The standard conditions require that electronic monitoring pursuant to the Act s 19A be a condition of a SO and provide that a curfew pursuant to the Act s 19B may be a condition of a SO. The Act s 19A and s 19B relevantly state:
19A. Electronic monitoring
(1)The purpose of electronic monitoring of a person subject to a supervision order is to enable the location of the person to be monitored.
(2)For the purposes of the electronic monitoring of a person, a community corrections officer may -
(a)direct the person to wear an approved electronic monitoring device;
(b)direct the person to permit the installation of an approved electronic monitoring device at the place where the person resides or, if the person does not have a place of residence, at any other place specified by the community corrections officer;
(c)give any other reasonable direction to the person necessary for the proper administration of the electronic monitoring of the person.
(3)In subsection (2) -
approved means approved by the chief executive officer.
…
19B. Curfew
(1)The purpose of a curfew is to allow for the movements of a person subject to a supervision order to be restricted during periods when there is a risk of the person committing a serious sexual offence.
(2)The curfew is a requirement that the person must remain at a specified place, for specified periods, subject to subsection (5).
(3)In subsection (2) -
specified means specified by a community corrections officer from time to time.
…
(6)A community corrections officer may give any reasonable direction to the person necessary for the proper administration of the curfew requirement.
The issue
It is not in dispute that the respondent committed the breach offences. Neither is it disputed that the breach offences prove that the respondent has contravened conditions of the SO.
Consequently I had to decide whether to:
(a)rescind the SO and make a CDO; or
(b)amend and/or extend the SO; or
(c)affirm the SO without its amendment or extension.
I can only do (b) or (c) if the respondent has satisfied me, on the balance of probabilities, that he will substantially comply with the standard conditions or amended standard conditions of the SO.
Background
The respondent's background and history of offending have been set out in previous decisions of this court.[7] I will not detail all of that material but these reasons must be read in conjunction with those decisions. I provide the following summary of the respondent's background.
[7] The State of Western Australia v Patrick [2016] WASC 391; The State of Western Australia v Patrick [No 2] [2017] WASC 281.
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. It has been determined that the respondent suffers from foetal alcohol spectrum disorder (FASD).
The respondent was exposed to significant substance abuse and violence as a child and adolescent. His childhood was unstable as he lived with various relatives in different Aboriginal communities in the Kimberley area. By 2012, when he was still a teenager, the respondent had developed a significant problem with alcohol and cannabis use.
The respondent has literacy and numeracy difficulties. He has very little experience of activities such as money management, shopping or public transport. He has substantial difficulty in learning and retaining new information. He is easily irritated, finds it difficult to concentrate on topics that are not of interest to him, has a concrete thinking style which inhibits conceptual reasoning and has difficulty controlling his impulses to act.
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 that offence. He has subsequently been convicted of a number of burglary and similar offences.
In May 2010 the respondent was convicted and sentenced to 8 months' detention for the sexual penetration of a child under the age of 13. The offence was committed in December 2009, when he was 14 years old. The respondent, in company with two others, sexually penetrated a 12‑year‑old girl who was unconscious through intoxication.
The respondent was convicted and sentenced to a 6 month intensive youth supervision order for two charges of assault and trespass that occurred on 30 September and 2 October 2010 respectively, at the Warmun Aboriginal Community. In the first instance, he touched a 13‑year‑old girl twice 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 into the community after completing a period of detention for the offence committed in December 2009.
In February 2012 the respondent was convicted and sentenced to 8 months' detention for indecently dealing with a child in circumstances of aggravation. The offence was committed on 7 December 2011 at the Warmun Aboriginal Community. The respondent entered the 14‑year‑old female victim's 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.
In September 2013 the respondent was convicted and sentenced to 3 months' detention for aggravated unlawful and indecent assault. In August 2013 the respondent inappropriately touched the 31‑year‑old female victim twice while visiting her house. In the first instance, he 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, whilst the respondent was being escorted away from the premises by the victim, he told her that she had 'a nice arse' and grabbed her buttocks.
In June 2015 before he turned 20 years of age, the respondent was convicted and sentenced to 3 years' imprisonment for the attempted aggravated sexual penetration without consent of a young adult female victim in February 2014. 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.
Whilst the respondent was serving that sentence the State applied for an order under the Act that the respondent be found to be a serious danger to the community and be made subject to a CDO.
After the hearing of that application, on 3 October 2017, Corboy J found that the respondent was a serious danger to the community and made a CDO.[8]
[8] The State of Western Australia v Patrick [No 2].
The statutory review of the CDO commenced on 18 October 2018. Following a number of adjournments,[9] on 26 April 2019, Fiannaca J rescinded the CDO, and imposed the SO (effective from 20 May 2019). His Honour was satisfied that the community could be adequately protected if the respondent were released on a SO in circumstances in which he would be residing in supported accommodation in Perth with a support worker present 24 hours a day, seven days a week for a period of at least six months.[10]
[9] To enable the respondent to obtain funding through the National Disability Insurance Scheme (NDIS) or Disability Services.
[10] The State of Western Australia v Patrick [No 3] [2019] WASC 482 [69].
The breach offences
On 20 May 2019 the respondent was released from custody on the SO. The conditions of the CDO required the respondent to live at an address in Perth and to be under the 24 hour a day supervision of a support worker. The funding for the support workers and their agency was provided by the NDIS.
The SO contained 54 conditions, including the following relevant conditions:
4.Be under the supervision of a Community Corrections Officer (CCO) which includes complying with any reasonable direction of the officer (including a direction for the purposes of the Act s19A or 19B).
7.Be subject to electronic monitoring under s 19A.
10.Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
34.Be subject to curfew, pursuant to the Act s 19B such that you are required to remain at and not leave your approved address as directed by a CCO from time to time.
On 20 May 2019 an electronic monitoring device (EMD) was fitted to the respondent's ankle. On the same date the respondent signed a written lawful direction (the WLD) given to him by his Community Corrections Officer (CCO) which included the following directions:
A) YOU ARE HEREBY DIRECTED TO
wear an electronic personal identification device ("the transmitter")
…
E) YOU ARE HEREBY DIRECTED TO
remain at or within the following geographical inclusion zone/s by the specified time/s unless otherwise directed by a Community Corrections Officer:
(a)[address omitted] 7pm to 7am (curfew daily)'
It is not in dispute that the EMD was an 'electronic personal identification device'.
At 7.20 pm on 28 August 2019, the respondent cut the EMD, and removed it from his ankle. He left it in the yard of his home and ran off. His absence was detected a short time later. After a search effort, at about 11.50 pm the same evening police officers located the respondent in Wellington Square, East Perth. The respondent had no prior permission to be at that location. As a result, the respondent was not monitored for a period of approximately four and a half hours. The respondent was arrested and participated in an electronic record of interview where he made full admissions to both breach offences, being a breach of the SO by removing the EMD and failing to wear it and a breach of the curfew by leaving the house between 7.00 pm and 7.00 am. The respondent said that he committed the offences out of boredom.
Other evidence in the contravention proceedings
DSO Performance Report - Mr Snow
The respondent's DSO Performance Report, dated 2 December 2019, was authored by the respondent's Senior Community Corrections Officer (SCCO), Mr Snow, and endorsed by two other authors.[11] Mr Snow gave oral evidence at the hearing.
Performance whilst subject to the SO
Support plan
[11] The report was endorsed by the following authors from the Community Offender Monitoring Unit: Mr Timothy Snow, Ms Kara Cassam (Team Leader), and Ms Tatjana Gvozdenovic (Director).
Prior to the respondent's release on the SO, he successfully secured funding through the NDIS for a 12 month period. This enabled him to have a support worker from [disability services provider][12] with him 24 hours a day, seven days a week on a one‑to‑one basis. A review of this funding is due to occur in April‑May 2020.
[12] In compliance with a suppression order made by Fiannaca J the names of the disability services provider and its support workers have been omitted from these reasons. The disability services provider recruited six support workers (including one indigenous support worker) to work with the respondent in shifts to cover each 24 hour period.
Whilst on the SO, the author reported that the respondent appeared to follow his daily/weekly routine (developed by his support team) which comprised a hour‑by‑hour daily itinerary of activities.
The respondent played competitive football on the weekends for two teams. He is passionate about football.[13] Through his support team, he engaged in a variety of other activities[14] with other clients of [disability services provider]. At the time of the respondent's arrest, the respondent's support team and his Occupational Therapist, Ms Wieman, were organising the respondent's participation in an online educational program tailored to his learning and retention level.
Intervention
[13] ts 499, 10 December 2019.
[14] Including cooking classes and social activities, such as playing pool, attending discos, basketball, bush trekking and other cultural activities.
The author reported that the respondent was deemed unsuitable for psychological counselling due to his cognitive impairment and that the priority was to ensure that his disability needs were met.
Ms Wieman met with the respondent on a weekly basis to address his poor emotional regulation and frustration, impulsivity and difficulties with attention. The authors reported that Ms Wieman referred the respondent to an external support service through TAFE to engage in a 'Read Write Now' program, which he attended on two occasions. Subsequently, the respondent was deemed unsuitable to continue by the program facilitator due to his limited understanding and inability to manage simple words and letters. The facilitator further advised that the respondent had a memory retention span that lasted between 15 to 20 minutes.
Mr Snow reported that the respondent's engagement with Ms Wieman was as a whole, satisfactory. The respondent engaged in a positive manner when discussing matters such as football, his daily activities and his support structure. He demonstrated signs of optimism about his life, despite having some frustrations around initially not having his own mobile phone and limitations on speaking to his family.
Supervision and contraventions
The respondent was supervised twice weekly by Mr Snow.[15] Twenty supervision sessions took place from 21 May - 26 August 2019.
[15] Supervision would occur on Tuesday mornings in the company of one of the respondent's support staff at East Perth Adult Community Corrections (EPACC) and on Friday mornings at the respondent's home address.
The respondent tested negative to illicit substances[16] following directions to attend urinalysis on 15 occasions whilst on the SO.
[16] Except for two results which were void.
Mr Snow reported that the respondent attended punctually for supervision and had a positive presentation generally. However, due to his inability to remain focussed on topics which Mr Snow wished to discuss, some sessions were brief. On the other hand, the respondent has a concrete thinking style and when he wished to discuss a topic he was difficult to move from it.[17] Rapport was developed as the sessions progressed.
[17] ts 500, 10 December 2019.
Conversations with the respondent surrounding his desire to pursue contact with his family waivered. In July 2019 he stated that he did not wish to have contact with them. However, as time progressed, discussions surrounding the respondent's family became prominent. The respondent's fixation on being able to contact his family and being permitted to have a mobile phone overrode other discussions.
Prior to the breach offences discussions occurred between the respondent and Mr Snow about the respondent's lack of sexual outlets. To manage the respondent's sexual needs, the respondent's Risk Management Team (RMT) considered it appropriate that the respondent be granted access to appropriate adult pornographic material. The respondent was open to the idea of having a television and DVD player in his bedroom and asked if he could access music videos on a mobile phone. There were also discussions about the possibility of the respondent accessing a sex worker.
On 16 July 2019 the author reported that the respondent had a television in his bedroom, but did not have an Xbox or DVD player. Logistics regarding purchasing a DVD player were discussed with the [disability services provider] team leader on 23 July 2019 but the respondent was embarrassed to speak about the topic. The respondent stated he did not want to pursue the option of accessing the services of a sex worker.
There had been no resolution to this issue before the respondent committed the breach offences. More recently the respondent's RMT have considered the option of permitting the respondent to access sex workers, through arrangements made between a brothel and his support workers.[18] The respondent would have to fund the service through his pension. The State opposes such a plan because the respondent would potentially present a risk to the brothel workers and because of funding issues.
[18] [Disability services provider] who supplies the support workers has experience in arranging similar services for some of its other clients.
Another area of frustration for the respondent was his limited access to contact with his family and a former partner. The author liaised with the respondent's family members to ensure they had an understanding of the conditions of the SO and to confirm that they wished to have contact with him. Subsequently [name deleted][19] granted approval for him to telephone three family members as requested by the respondent, provided the calls occurred on loud speaker and in the presence of a support worker.
[19] I have omitted some names and positions because of statutory provisions preventing the publication of certain information. The omitted information is known to the parties.
The respondent wanted to have contact with a former partner who he believes has given birth to his child.[20] Processes had to be undertaken to ensure that the former partner wanted the contact[21] and that she understood the conditions of the SO. At times, the respondent found it difficult to understand this supervision and expressed frustration and hostility at the rules regarding having his own telephone. On these occasions, the respondent expressed beliefs that he had more freedom whilst being incarcerated. The author reported that in June 2019, the respondent was provided his own mobile phone, with a reminder with whom he was allowed to speak.
[20] The paternity of the child has not been established.
[21] When the respondent was in custody he had said abusive things to his former partner over the phone and she had requested that her phone number be removed from his approved contacts.
The report outlined a number of notable events which occurred whilst the respondent was on the SO, summarised below:
Date
Surrounding Event
Description
20/05/2019
Date of release on the SO
SOMS[22] advised that it had received information regarding a telephone call from the respondent to his former partner on 6 May 2019, whereby the respondent used threatening language.
Subsequent review of the call revealed that a male initially answered the telephone, who stated to the respondent that he had a child with his former partner and that they were married. The respondent then made threats to physically harm the male.
At supervision with the respondent on 21 May 2019, and in discussing the telephone call, the respondent informed that he had no intention of contacting his former partner or the man who answered the phone. The respondent stated he verbally abused the man because he felt humiliated.
18/06/2019
During a supervision appointment
The respondent presented as hostile due to being unhappy about his calls with his family being limited in time. The respondent expressed that he had more freedom in prison and that he was not told about the restrictions prior to his release on the SO. The author of the report explained the purpose of the restrictions, and that in future, the respondent may be permitted to have longer telephone calls.
20/07/2019
During a supervision appointment
During supervision, the respondent stated that if COMU[23] and the RMT did not let him go to his grandmother's funeral, he would 'snap his GPS anklet off and go'.
The author stated that there was no information to suggest that the respondent's grandmother could pass away in the near future.
The author located the respondent's grandmother and the respondent spoke to her on the telephone.
30/07/2019
During a supervision appointment
The respondent disclosed that he had called his former partner on a number of occasions since being in possession of a mobile phone. He advised that he deleted her number after making the calls.
This information came to light when the respondent reported to supervision with the mobile phone damaged. The respondent admitted that he smashed the phone from frustration that his former partner would not answer his calls and that she blocked his number.
The author reiterated to the respondent that he was not allowed to call her without permission, and that he was not permitted to delete contact numbers. He acknowledged this and explained that he wanted to speak to his 'wife and son' and that he wanted a relationship with them. The respondent admitted that he called his former partner, out of earshot from his support workers who believed he was calling his brother. The respondent made comment that he will continue to call his former partner as he wants to get back with her.
The respondent said that the SO conditions were strict and that he thought that he should go back to prison. He found the EMD annoying, was frustrated about having support staff at his house all of the time and frustrated at not being allowed to do what he wants.
The respondent was issued a warning letter for damaging his phone and deleting call logs. He was issued a further WLD.
02/08/2019
During a home visit
The respondent became hostile towards the author. He told the author that he was better off in prison, would keep calling his former partner when he got a new phone and that she is his wife. When explained about approval required from [name deleted], the respondent did not seem to understand or pay attention, and rather focussed on the fact that he was not allowed to contact her in the present time. When reminded about the fact that he did not have permission, he stated that he 'did not care'.
09/08/2019
Interagency meeting
[Name deleted] advised that from the information available to her, she was not prepared to grant the respondent approval to contact his former partner, but requested that the issue continued to be monitored in terms of the respondent's view. It was agreed that COMU would first make contact with his former partner to ascertain her wishes.
09/08/2019
During a home visit
The respondent did not provide much information during the visit and did not appear to want to talk, other than to express that he wanted his own mobile phone. The respondent claimed that Mr Snow, told him he could have the mobile phone back at the last supervision. The respondent was informed that it was not Mr Snow's decision, and that it was the decision of [name deleted] and the RMT as a whole. The respondent was not receptive to this information.
15/08/2019
During a home visit
The respondent was issued with a written warning letter regarding his deletion of mobile phone data, and a WLD to indicate that condition 23 of the SO applied to his call logs.
The respondent asked if he could contact his former partner as it would help him feel better.
20/08/2019
During a supervision appointment
The respondent advised that he had not spoken to any family or friends, however his main focus was on wanting contact with his former partner. He stated that he would need to hear it directly from her if she did not wish to speak to him. It was explained to the respondent that the issue was being discussed in an interagency forum and that the decision had been made that he was not allowed to contact his former partner until approval from [name deleted].
20- 27/08/2019
Contravention of SO
The respondent contravened the SO by two void urinalysis:
20 August 2019 - the respondent attended urinalysis.
21 August 2019 - results received indicated that the respondent provided a diluted sample.
22 August 2019 - the respondent was directed to attend EPACC to provide another urine sample.
23 August 2019 - results received indicated a diluted sample.
26 August 2019 - during a home visit, the author verbally directed the respondent to provide a further sample of urine, which he did.
27 August 2019 - results received from the urinalysis indicated that it was within the required range.
A written warning letter was created for the two void samples, due to the third uranalysis being within the required range. A further decision was made to increase the respondent's frequency of urinalysis testing, and further, that the respondent see a general practitioner to see if there were any medical reasons as to why his creatinine levels were low.
Due to the respondent's arrest on 28 August 2019, the written warning letter was not given to him.
28/08/2019
Breach offences
13/09/2019
Respondent in custody
The respondent assaulted his cellmate by punching him three times because 'he was talking'. The respondent received six days loss of privileges.
13/09/2019
Respondent in custody
On 13 September a CCO spoke to the respondent's former partner. She said that she was aware that the respondent was in custody from seeing it on the news. She further indicated that whilst the respondent was in the community on the SO, they spoke on the telephone, and that most conversations were about encouraging the respondent 'not to muck up' and to do 'what he was told'. She further stated that they had not argued over the phone, however the respondent would get frustrated when she did not pick up his call straight away.
The former partner confirmed that she would not be concerned with her phone number being provided to the respondent in custody and in the community, if released. She subsequently denied that the respondent was the father of her child and said that she did not intend to visit the respondent in Perth.
[22] Western Australian Police Sex Offender Management Squad.
[23] Department of Justice Community Offender Management Unit.
Contact with the respondent since being detained in custody
In 2019 after the respondent was returned to custody, Mr Snow visited him on three occasions[24] to discuss the respondent's contraventions and his attitudes towards potential release in the future. The respondent's responses varied between not wanting to be released, threatening to cut off the EMD in the future and run, to then saying that he wanted to be released and was willing to comply with the conditions of the SO.
[24] 27 September 2019, 25 October 2019 and 19 November 2019.
On 25 October 2019, the respondent indicated that he would only agree to being released if he was given his own mobile telephone and was not subject to GPS monitoring. The respondent was advised that GPS monitoring is a mandatory requirement, and in response, he stated that he would then cut off his EMD, steal a car and return to his family. The author explained that this would be a poor choice and the respondent said he did not care.
Reasons for breach of SO
On 27 September 2019 the respondent explained to Mr Snow that the reason he committed the breach offences was due to boredom and wanting to have sexual intercourse.[25] He went to Wellington Square because he knew people from his country congregated there. The respondent further disclosed that he had sexual intercourse with a female in the park prior to his arrest.
[25] The respondent reaffirmed his reason for the breach as wanting to have sexual intercourse.
The respondent said that the SO conditions were too strict, that he did not like the EMD or the reporting requirements and he felt like he did not have time to himself. Despite this, the respondent stated he had no negative feelings towards his support workers.
Contact with his former partner and the respondent's family
On 27 September 2019, the respondent was further advised that [name deleted] had granted him permission to have telephone contact with his former partner. The respondent stated that it did not matter, as he planned to stay in prison and did not want to talk to anyone.
On 25 October 2019, the respondent stated that he had some telephone contact with his former partner. On 18 November 2019, the respondent stated that he did not want to contact family members or have their contact numbers, in particular his former partner. In evidence Mr Snow confirmed that the respondent had called his former partner on a number of occasions during this period in custody.[26]
Strategies and considerations for managing the respondent in the community
[26] ts 489, 10 December 2019.
Mr Snow stated that, if released, the respondent would continue to be closely monitored and supervised by the RMT. Interagency liaison would continue to occur between [name deleted], [disability services provider], the Support Service Coordinator, and an occupational therapist.
Proposed community supervision plan
On 12 November 2019, [disability services provider] informed the author that due to the respondent's arrest and detention in custody, the support workers allocated to the respondent were no longer available. As a result of the respondent's contravention, the agency had incurred a financial loss and needed to reconsider whether it would be willing to support the respondent.
Following reconsideration, on 22 November 2019, the agency confirmed that it would be prepared to support the respondent if there was a strong indication (ie. a 75% chance) that the respondent would be re‑released.[27] The majority of indigenous support staff previously working with the respondent are no longer available, but [disability services provider] would aim to recruit indigenous staff specifically. Nonetheless, it was noted that the respondent had developed very positive relationships with non‑indigenous staff.
[27] This assurance is required due to the risks and further potential losses to the agency. It would take the agency approximately three months to hire new staff and reinstate the same support structures. Therefore, the agency requires three months' notice if the respondent is to be released.
Mr Snow testified that the respondent had gotten along well with his team leader and with a number of his support workers, one of whom the respondent told the author he looked up to as a father figure. That support worker has visited the respondent whilst he has been in custody. The respondent would like to continue working with these people. [Disability services provider] also advised that following three months' notice, the respondent would be able to return to his original address that he was residing at with the agency.[28]
[28] There is currently another client living in this accommodation, but that client would be moved to allow the respondent to return.
Mr Snow also testified that he would be willing to continue as the respondent's SCCO if he was re‑released on the SO, although he said that was not his decision to make.[29]
NDIS funding
[29] ts 503, 10 December 2019.
The author advised that following the forthcoming review of the respondent's plan under the NDIS, COMU will continue to advocate for the respondent to remain on 24 hour support. Further, Facilitatrix[30] advised that if support is unable to continue with [disability services provider] for any reason, that other support agencies could be approached to ascertain if they would work with the respondent based on the same funding.
Additional SO conditions
[30] The Specialist Support Coordinator in regards to the NDIS plan.
If the respondent was to be re-released on the SO, Mr Snow recommended the addition of five conditions being:
55.Not enter the premises of, or access the services of, escort agencies or sex workers, unless pre‑approved by your CCO;
56.Undergo medical testing or treatment, including with anti‑depressant medication or hormonal anti‑libidinal treatment, as directed by the CCO in consultation with a medical practitioner or medical practitioners;
57.Comply fully with any treatment prescribed pursuant to condition 56;
58.Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect, that you have, or intend to, cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with a medical practitioner on such treatment;
59.Undertake any medication regime in accordance with a medication practitioner's direction, and comply with all testing to monitor your compliance with medical treatment including hormonal anti‑libidinal treatment as directed by a CCO.
The first condition is to facilitate Mr Snow's suggestion that the respondent be able to have supervised access to sex workers. Mr Snow testified that [name deleted] would like the condition on the SO so that it was not just her decision. The other four conditions are designed to support Dr Wojnarowska's recommendation that the respondent be released on antilibidinal medication.
Psychiatric Report - Dr Gosia Wojnarowska
For the purpose of the contravention proceedings, Dr Wojnarowska, forensic consultant psychiatrist, assessed the respondent and provided a psychiatric report pursuant to the Act s 23A. Dr Wojnarowska also gave oral evidence.
Dr Wojnarowska had two interviews with the respondent at Hakea Prison on 6 and 23 November 2019.
The respondent's account of the contraventions
Dr Wojnarowska reported that the respondent agreed with the facts of the breach offences. Despite initially refusing to talk about the events, in the second interview he said that he committed the offences because he missed his family and wanted to get home to his community. He stated that he had been feeling sexually frustrated and decided to go to the park in the hope of meeting someone with whom he could have sex. He said that this was not pre‑planned. After the respondent found a woman (who was around his age and from his country) who agreed to have sex with him, the police arrived before anything could happen.[31] When questioned about what would have happened if the woman refused, the respondent said 'I would walk away, I am not a rapist'.
[31] This is different to the information given by the respondent to Mr Snow. I will decide this application on the basis of the account given to Dr Wojnarowska as this is the account which was accepted by the State for sentencing.
The respondent stated that his family were ashamed of him and refused to take his calls from prison after the media published his photograph following his arrest for the breach offences.
During the first interview, Dr Wojnarowska reported that the respondent remained angry and despondent, claiming that it was 'too late' for him to change his life and that he would be locked up in prison for the rest of his life. Dr Wojnarowska further stated that it was evident that the respondent did not seem to understand the nature of the Act, due to him wanting to 'serve [his] time' and leave prison as a free man. When attempts were made to explain his order to him, he became increasingly agitated and said that he would remove his EMD and run away again.
At the second interview, Dr Wojnarowska reported that the respondent was calmer and easier to engage. He said he had a good relationship with his mentor and was happy with the activities and the support workers provided to him. The respondent did not understand why he was required to wear the EMD and perceived this condition as the most difficult to comply with. He said that it would prevent him from having a normal sexual relationship with anyone. He accepted that at this time, he would not be in a relationship and that his sexual needs would need to be met by sex workers.
To summarise, Dr Wojnarowska reported that the respondent identified two reasons for his breaches; sexual frustration and missing his family.
The respondent's attitude towards his sexual offending
Dr Wojnarowska stated that the respondent refused to engage in conversation about the past, as talking about it made him angry and he stated that he would rather stay in prison for the rest of his life. With some persuasion, the respondent answered some questions but Dr Wojnarowska reported that the respondent's attitude had not changed since her earlier assessment.[32]
[32] Dr Wojnarowska also prepared reports for the Division 2 hearing in 2017 and for the review of the CDO before Fiannaca J.
There was also no change to the respondent's attitude towards his offending. The respondent conceded that what he did was wrong and he accepted full responsibility. The respondent did not blame his victims or speak about them in a disrespectful manner. There was no evidence of major cognitive distortions such as denial or entailment.
The respondent quoted that alcohol and his young age at the time of offending were contributing factors to the offending. He said that he was now older and wiser and therefore would not engage in drinking or smoking cannabis.
When questioned about his previous statement that he chose to live in Perth, the respondent agreed that returning to his community would be associated with returning to his previous lifestyle which included the abuse of alcohol and cannabis.
In response to what the respondent had reported to Mr Snow in interview, namely that he would 'do it again' when referring to removing his EMD and 'raping someone' - the respondent said that he was very angry at the time and has since calmed down. The respondent reported sexual urges but reiterated that he had no intention of committing a sexual offence.
The respondent's progress
Sexual behaviour and fantasy
Dr Wojnarowska reported that the respondent did not consider himself as sexually preoccupied and believed he had a normal sexual drive. The respondent avoided questions regarding the frequency of his masturbation, but admitted that he had been frequently sexually frustrated, having had no access to sexual intercourse. The respondent said that he was reluctant previously to agree to use sex workers. He felt a degree of shame involved in the practice and also preferred to have sex with an Australian indigenous woman,[33] but he was agreeable to reconsidering the option. Dr Wojnarowska apparently concurs with Mr Snow that if the respondent had supervised access to sex workers it would decrease his sexual frustration and increase the chances of him complying with the SO.
[33] ts 473, 10 December 2019.
The respondent denied any sexual fantasies about violence, domination, sadism and deviant arousal concerning children or incapacitated females. The respondent denied having difficulty in securing consensual sexual encounters.
Future plans
Over the two interviews, the respondent's attitude towards his future fluctuated. During the first interview, the respondent said that his future was in prison, but during the second interview, he said he was happy to return to his previous living arrangements on the SO.
The respondent accepted that there could be further restrictions/conditions placed on him. He requested that his sexual needs be taken into account. When Dr Wojnarowska asked the respondent whether he would consider antilibidinal treatment, he did not understand the reason for it, appeared confused and did not commit himself to a specific answer.
Outstanding treatment needs
The respondent's outstanding treatment needs previously identified include:
(1)Sexual interest - the respondent has consistently said that he does not perceive having problems in this area. Dr Wojnarowska reported there has been no recent evidence of deviant sexual interest, but that this area still requires future exploration.
(2)Distorted thinking - the respondent understands what constitutes consent and reported to have no difficulty in securing the consent of the woman he approached at the time of his contravention of the SO. Dr Wojnarowska reported that consolidation of this knowledge and reminders surrounding consent are required.
(3)Emotional functioning - Dr Wojnarowska reported that the respondent has difficulty in regulating his emotions. Although there was no evidence of anger dyscontrol before he was returned to prison, he has struggled with cultural loneliness and at times, boredom. Even in a structured and supported environment, the respondent has limited emotional and cognitive resources. Dr Wojnarowska stated there is a hope that with further brain maturation, his ability to tolerate frustration and other unpleasant emotions will increase. I note that the respondent demonstrated lack of anger control when on 13 September 2019 he assaulted his cellmate. Further the respondent's response to his detention after the breach offences[34] indicates a lack of control of his emotions, including anger.
(4)Self‑management - the respondent demonstrated over his three months in the community that he could manage to function without resorting to alcohol or drug use. The respondent also reported that he had not experienced cravings for these substances. I note that there was no evidence that the respondent was intoxicated with drugs or alcohol when he was arrested on 28 August 2019. Dr Wojnarowska reported that the respondent has not managed to control his sexual frustration and impulsively acted to fulfil these needs when he committed the breach offences.
Mental state examination
[34] See for example [81].
The respondent continues to struggle to understand the concept of the SO, and stated that he preferred to 'do his time', no matter how long, in order to be released as a free man. He either lacks the capacity to understand that a CDO is an indefinite order or he will not accept that aspect of the order.
The respondent's affect was anxious and at times angry. The respondent struggled to attend to questions, with his speech being comprised of short answers without elaboration and he quickly became restless and fidgety. He had a tendency to misinterpret questions as being directed against him, however he responded to reassurance.
The respondent exhibited no psychotic features and his thoughts were properly organised and coherent. He denied suicidal thoughts, plans or intent, and violent ideations.
Psychiatric diagnoses
Dr Wojnarowska utilised the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition Text Revision (DSM‑5) to assess the respondent.
Dr Wojnarowska reported that her previous diagnostic formulation of the respondent had not changed since the last assessment. Diagnoses of FASD and intellectual disability were confirmed, with prominent attention difficulties. In addition, the respondent fulfilled the diagnostic criteria for antisocial personality disorder and alcohol use disorder (currently in remission).
Risk assessment
Dr Wojnarowska utilised the Static‑99R instrument, Hare Psychopathy Checklist - Revised (PCL‑R) and the RSVP to perform a sexual violence risk assessment of the respondent.
Assessment using Static‑99R revealed no change since the respondent's last assessment. He remained in the high‑risk category for sexual reoffending.[35]
[35] Dr Wojnarowska reported that 99.1% of reoffenders scored at or below the respondent's score, and only 3% scored higher.
Assessment using the PCL‑R demonstrated that the respondent obtained an equal score to the one obtained earlier in 2019, and that the respondent was in the moderate range.[36]
[36] This was below the threshold usually required to confirm a diagnosis of psychopathy.
A comprehensive assessment using the RSVP was utilised to assess the nature of the respondent's risk of sexual offending. The doctor noted the chronicity, escalation and physical coercion involved in his sexual offending. She also noted that he had continuing problems with self‑awareness, stress, coping, substance use, intimate relationships, treatment and supervision. He also had difficulties resulting from childhood abuse. However he did not have a major mental illness or a psychopathic personality disorder.
Dr Wojnarowska reported that the respondent accepts his sexual offences, does not condone or support sexual violence and claimed he would not have sex with the female he encountered in the park if she had rejected him. Dr Wojnarowska stated that it was possible that the respondent had sexual deviance, but that she was unable to gather any new information pertaining to the respondent's sexual fantasies.
Risk scenario
Dr Wojnarowska's view on the respondent's risk scenario has not changed since her last assessment. Dr Wojnarowska identified that if the respondent finds himself in an unfamiliar environment, such as Perth, it would take some time for him to feel comfortable in approaching a female. Previous offending was against vulnerable females who were known to him.
Offending would be likely to occur against an intoxicated female who he would ask to go with him to a specified place. Depending on the situation, resistance by the female may cause the respondent to become violent.
The respondent would be likely to offend both alone or in company. Likely harm to the victim would be physical[37] and psychological.
[37] Dr Wojnarowska said physical injuries may be significant if the respondent used violence, not only to force the victim to comply, but to render the victim unconscious.
Loneliness and boredom (associated with lack of structured activity) would lead to the respondent resorting to alcohol and cannabis to regulate his mood. Important risk factors identified by Dr Wojnarowska were loneliness, boredom and the respondent's limited opportunity to engage with sexually consenting, age appropriate females. However, in the doctor's opinion, sexual frustration is the most important risk factor.[38]
Conclusions and recommendations
[38] ts 566, 10 December 2019.
Dr Wojnarowska concluded that not much had changed in the respondent's risk of reoffending since her last report. Dr Wojnarowska's view remains that the respondent remains at a high risk of sexual re‑offending, as highlighted by problems controlling the respondent's actions in the community whilst he was on the SO.
In Dr Wojnarowska's opinion the respondent's risk of committing serious sexual offences can be managed in the community if the following two recommendations are implemented:
(1)In respect of psychological treatment - individual therapy should occur with focus on the respondent monitoring his mood and assisting him with building a meaningful and drug and alcohol‑free life.
(2)In respect of medications - a trial of antilibidinal medication should be conducted to decrease the respondent's sexual drive. Provided the respondent consents, this would assist with regulation of arousal and, associated with it, mood.[39] Treatment should not exceed two to three years, during which offence‑specific counselling could take place, and it needs only to reduce his sexual drive; not remove it.
[39] It may not be necessary to achieve castration levels of testosterone - rather to maintain them in the low range.
Dr Wojnarowska testified that it would be best if the respondent consented to the antilibidinal medication but that if he could not do so, [name deleted] could consent to medical treatment.[40]
[40] ts 465, 10 December 2019.
Dr Wojnarowska was asked to give her overall opinion of the respondent's risk of reoffending and the doctor said:
So it's still high. There are some factors that are higher than during my previous assessment, but I still think that, if he is treated and his sexual frustration is dealt with by using antilibidinal medications, he can be managed in the community.[41]
[41] ts 466, 10 December 2019.
In cross examination Dr Wojnarowska confirmed her opinion took into account all of the respondent's behaviour whilst on the SO.[42]
[42] ts 478, 10 December 2019.
Evidence received after the initial hearing
At the time of the initial hearing on 10 December 2019, no enquiries had been made to determine if the respondent was suitable for antilibidinal medication and whether he would consent to it. Further there was no evidence as to whether one‑to‑one psychological counselling was available to him. I adjourned the hearing so that these enquiries could be carried out. At the next return date of 14 January 2020 some limited information was available but necessary blood tests had not been carried out. Until the results were known the question of consent to antilibidinal medication could not be broached with the respondent or [name deleted]. I further adjourned the hearing to 6 February 2020.
After the adjournment, the following evidence was adduced.
Dr Wynn Owen, psychiatrist, was consulted to determine whether the respondent was suitable for antilibidinal medication. On 24 January 2020, it was confirmed that all baseline investigations as recommended by Dr Wynn Owen (blood tests and ECG) had been completed and no abnormalities were identified.
On 28 January 2020 (upon Dr Wynn Owen's return from leave), a teleconference was held between Dr Wynn Owen, and others responsible for the respondent's care. Dr Wynn Owen provided information regarding the recommended treatment (depo provera, via injection) and its potential side effects. On 29 January 2020 consent was granted to the treatment as proposed by Dr Wynn Owen. Dr Wynn Owen was informed of this and he has stated that he will see the respondent on 11 or 13 February 2020 with the plan to commence treatment. He stated that he will request fortnightly testosterone level testing and that the respondent will not require any other blood tests until 12 weeks after treatment is initiated.
Dr Ben Bannister from the Forensic Psychological Service (FPS) within the Department of Justice attended Hakea Prison to see the respondent on 24 January 2020 to reassess his suitability for engagement in psychological counselling. Mr Patrick chose not to attend this appointment. A further appointment was scheduled for 30 January 2020. Mr Snow requested that prison staff inform the respondent of the visit and advise him that it was important that he attend. Mr Snow also attended the appointment with Dr Bannister and was present initially to introduce Dr Bannister and explain to the respondent the reason for the visit. At the completion of that visit Dr Bannister wrote a Dangerous Sex Offender Treatment Report dated 4 February 2020.
After a detailed assessment of previous recommendations about the respondent's suitability for counselling and of the learning as to when a person is suitable for psychological counselling, Dr Bannister stated that if the respondent remains in prison, psychological intervention is not recommended. He stated that if re‑released on the SO, the most effective therapeutic approach will be for the respondent to re‑engage with the occupational therapist he was previously assigned in the community. Dr Bannister recommended that an FPS psychologist remain engaged in a consultative role and commented that in a best case scenario, the psychologist may eventually take a more direct clinical role.
Dr Bannister liaised with Dr Wynn Owen, who indicated that the antilibidinal treatment protocol only supports the use of hormonal antilibidinal as an adjunct to psychological intervention. Dr Wynn Owen stated that in circumstances where a court appointed psychiatrist recommends antilibidinal treatment as a trial approach, he is of the opinion that a reassessment of suitability for psychological intervention would ideally be made once effective testosterone suppression is established. He suggested this should occur three months after treatment is initiated.
In his report, Dr Bannister stated that in the event that the respondent commences antilibidinal treatment, it is appropriate that a reassessment of his suitability for psychological treatment occurs once effective testosterone suppression has been reached. However, Dr Bannister stated 'it is anticipated that the impact of addressing his sexual preoccupation through medication is unlikely to have a profound effect on his amenability for counselling'.
I was also advised that the [disability services provider] remains willing to be the support provider for the respondent's NDIS plan. However the support team would need to be re‑established. As outlined in the Community Supervision Assessment dated 2 December 2019, the [disability services provider] stated that it would require an indication that there is a high likelihood that the respondent would be released, before they commenced recruiting staff. It would need three months from this indication to put the team and support plan together, which includes the respondent's previous accommodation.
Should the SO be rescinded and a CDO be imposed, or should the SO be amended?
I cannot release the respondent on any form of the SO unless I am satisfied on the balance of probabilities that he will substantially comply with the standard conditions of the SO.
In determining whether the respondent will substantially comply with the standard conditions of a SO in a manner and to an extent that will result in the SO adequately protecting the community from the respondent's risk of committing a serious sexual offence, I apply the following comments of Fiannaca J in Director of Public Prosecutions v Hart:[43]
In determining whether the respondent will substantially comply with the standard conditions or amended standard conditions, the respondent's prior history of compliance and non-compliance will be relevant and important. However, self-evidently from the statutory scheme, the fact that the respondent is being dealt with for contraventions of conditions of the supervision order, including standard conditions, is not determinative of the issue under s 23(1B), and will not necessarily result in the making of a continuing detention order. The court must have regard to any other evidence, including evidence of developments in the respondent's circumstances since the contraventions occurred, which may inform the question of future compliance.
[43] Director of Public Prosecutions v Hart [2019] WASC 4 [21] ‑ [22].
The Act provides no definition or guidance as to what is meant by 'will substantially comply'. I apply my previous comments regarding the measure of substantial compliance:
What amounts to substantial compliance is not just a measure of the number of conditions which are complied with or of the length of time over which the conditions of a SO are complied with. It involves a judgment as to whether a person will comply with the standard conditions in a manner and to an extent that will result in the SO adequately protecting the community from the respondent's risk of committing a serious sexual offence.[44]
[44] The State of Western Australia v Narrier [No 5] [113].
The approach adopted by Fiannaca J, which I have endorsed in a subsequent decision,[45] involves the following assessment:
[45] The State of Western Australia v Narrier [No 5] [111] ‑ [117].
In summary … I consider that the appropriate approach to what is required under s 23(1B) is as follows:
(1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.
(2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.
(3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.
(4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.
(5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.
(6)The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
(7)Factors that are relevant to that assessment would include the respondent's history of compliance and non‑compliance and the factors set out at [50] above.[46]
[46] Director of Public Prosecutions v Hart [52].
I have found that the respondent has contravened the SO by committing the breach offences. I further find that the respondent has failed to satisfy me on the balance of probabilities that he will substantially comply with the standard conditions of the SO, if I was to release him on it.
The respondent demonstrated general compliance with the conditions of the SO, albeit the respondent was only in the community for about three months before his arrest. However, he did not comply with some important directions of his SCCO involving whom he could telephone and the conditions of his phone calls. Further, he deleted from his mobile phone the telephone numbers of persons he called and lied to his SCCO about his calls. Also and importantly, he committed the breach offences.
Thus the respondent was prepared to breach the SO at an early stage, despite having 24 hour supervision and support. Further, despite the respondent's admission to the breach offences, the respondent appears to lack remorse or regret for his actions, as evidenced in his later interviews with his SCCO where he threatened to contravene a future SO in the same manner.
The respondent clearly lacks insight as to the mandatory nature of GPS tracking and its underlying purpose of protecting the community. On a more holistic level, the respondent struggles to understand the concept of orders made under the Act.
Further, whilst there is abundant evidence regarding the respondent's cognitive difficulties, his actions demonstrate an intellectual ability to execute plans, albeit plans made impulsively and without much thought, to knowingly contravene his SO and the directions of his SCCO and to lie or act in an attempt to evade detection of his breaches.
It is also relevant to note that whilst in custody the respondent assaulted a cellmate and again has little remorse for it.
To the respondent's credit, Dr Wojnarowska identified improvements in the respondent's behaviour and additional support structures, including the following matters which are not insubstantial:
(1)The positive influence of [disability services provider] on the respondent whilst in the community and the agency's confirmation of their preparedness to offer accommodation to re‑initiate support with the respondent in a modified and more hands‑on structure.[47]
(2)The ability to trial antilibidinal medication with the respondent (with his consent) to modify his sex drive. Further, the respondent has since indicated a more agreeable attitude of engaging with a sex worker to meet his sexual needs.
(3)The respondent's willingness to not use alcohol or cannabis, further evidenced by his negative urinalyses.
[47] ie. through suggesting a 24 hour live-in support worker.
The future support of the respondent through the [disability services provider] would be critical to the minimisation of future contraventions. Yet for reasons which are understandable, that support is not available now.
The reasons for my decision that the respondent has failed to satisfy me on the balance of probabilities that he will substantially comply with the standard conditions of the SO, whether they be amended or not, if I was to release him on it take into account all of the material contained in these reasons but most telling are the following matters:
(a)Dr Wojnarowska remains of the opinion that the respondent is at high risk of sexual re‑offending.
(b)Given the respondent's history of serious sexual offending, that risk must include a high risk of serious sexual offending which can only be managed by his adherence to the conditions of a strict SO.
(c)Dr Wojnarowska's opinion is that the respondent's risks of serious sexual offending can only be managed on the SO with the addition of one‑to‑one psychological counselling and antilibidinal medication to reduce his sex drive.
(d)The breach offences provide telling evidence of the respondent's sexual and other frustrations whilst on a SO and his inability to resist the impulse to breach the conditions of the SO in an attempt to alleviate those frustrations in the short term.
(e)Whilst the respondent's conduct on the SO established that he is likely to comply in the future with some of the standard conditions such as reporting to a CCO as directed, and not leaving Western Australia, all of the circumstances including the breach offences mean that I am not satisfied that he will comply with important standard conditions such as complying with reasonable directions of a CCO and being subject to electronic monitoring.
(f)The respondent currently has no accommodation and no team of support workers to supervise him in the community. Such arrangements can only been put in place once there is a judicial determination that it is highly likely that the respondent will be released on a SO. Such an indication, if a judge was prepared to make it, could be made at a minimum of four months from today (after antilibidinal medication had been taken for three months) and then another three months would be required to put the support team in place.
(g)The further conditions which could be added to the SO so as to try to ensure substantial compliance with the standard conditions, prevent serious sexual offending and protect the community are unable to be implemented at this time or in the near future. In particular, a trial of antilibidinal medication has not yet commenced and so I am not able to say whether the respondent is likely to be compliant with the medication[48] and if so whether it will be successful in reducing his sex drive. The respondent has been determined to be currently unsuitable for psychological counselling. A reassessment of that position will not be made until there has been a three month trial of antilibidinal medication.
[48] Whilst it will be given by injection, there is still an issue as to whether the respondent will cooperate with the treatment regime.
I am therefore required by the Act s 23(1) to rescind the SO and make a CDO in relation to the respondent.
The future
The respondent's CDO will be reviewed one year after his sentence for the breach offences ends.
It is in the best interests of the respondent and the community that a trial of the antilibidinal medication proceeds. If it is a success and the respondent is able to engage in one‑to‑one psychological counselling, community accommodation is available for the respondent and community supervision is available to the respondent there would be good reasons to believe that a SO order could be made at the review. Those are the matters which should be pursued prior to any review of the CDO.
I am disappointed that the respondent has been assessed as being unsuitable for one‑to‑one psychological counselling. I cannot see how the respondent can improve his understanding of consent to sexual behaviour and his triggers to offending without such assistance.
I note in this regard that the assessment was made in part relying on one, one‑to‑one assessment by Dr Bannister. It seems to me to be unrealistic to expect that sufficient rapport would be gained between an assessor and the respondent or that sufficient understanding of the concept of psychological counselling is likely to be gained by the respondent, during one such meeting. This is because of the respondent's limitations which have been set out in these reasons and elsewhere.
The respondent is a cognitively impaired, socially disadvantaged young man. His serious sexual offences were committed before he was 19 years old when he was living in, and after he had been brought up in, a violent and dysfunctional world. There is no evidence to show that close adult males had modelled appropriate sexual behaviour to him or that any concerted efforts had been made to educate him in appropriate sexual behaviour. He has now been in custody for all but three to four months of the past six years. The limited time he was in the community on the SO was spent in Perth, a completely unfamiliar urban environment, away from his family and country. He was supervised 24 hours a day by people he did not know initially. He did not have the support or company of any family member or friend.
There is no doubt that potential victims should be safeguarded from the respondent. But given the above circumstances, it is also clear that the State has a responsibility to educate, guide and provide services to the respondent in a concerted attempt to ensure that the Act does not operate so as to keep him incarcerated on a CDO for the rest of his life.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Jenkins20 FEBRUARY 2020
14
6
1