The State of Western Australia v PCA
[2020] WASC 478
•23 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PCA [2020] WASC 478
CORAM: FIANNACA J
HEARD: 3 & 18 DECEMBER 2019
DELIVERED : 23 DECEMBER 2020
PUBLISHED : 23 DECEMBER 2020
FILE NO/S: SO 5 of 2019
(formerly DSO 5 of 2019)
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PCA
Respondent
Catchwords:
Dangerous sexual offender - High risk serious offender - Division 2 hearing - Supervision order - Enactment of High Risk Serious Offenders Act 2020 (WA)
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order granted
Category: B
Representation:
Counsel:
| Applicant | : | B D Meertens |
| Respondent | : | S R McGrath |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Stephen McGrath Barristers & Solicitors |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
DPP (WA) v Griffiths [2015] WASC 393
The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Lewis [No 2] [2020] WASC 377
The State of Western Australia v Narrier [No 5] [2019] WASC 17
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v ZSJ [2020] WASC 330
FIANNACA J:
The application and its history
Background
The respondent has a history of sexual offending against female children under the age of 13 years.He was convicted of such offending on three occasions from 2005 to 2015.
On the second occasion, in June 2011, he was sentenced in the District Court of Western Australia to a term of 2 years and 6 months' imprisonment, the commencement of that term being backdated to 12 July 2010.
Having completed that term, the respondent committed further sexual offences against prepubescent girls. He was convicted of those offences and sentenced in the District Court on 23 March 2015, being the last of the three occasions to which I have referred. On that occasion, he was sentenced to a term of 18 months' imprisonment, which was conditionally suspended for 12 months.
While subject to that sentence, in December 2015 the respondent committed two counts of the offence of using electronic communication with intent to procure a person who was under the age of 16 years to engage in sexual activity. He believed the child was 14 years old. The person with whom he communicated was in fact a police officer posing as a 14 year old girl. The respondent was charged with the two offences and convicted on his pleas of guilty on 24 June 2016. He was sentenced to a total term of 3 years' imprisonment for those offences.
As the respondent had committed those offences during the period of suspension of the conditionally suspended imprisonment order (CSIO) imposed on 23 March 2015, which he had thereby breached, he was also dealt with again on 24 June 2016 for the two offences for which he had been placed on that order, being six counts of indecently dealing with a child under the age of 13 years. He was sentenced to 12 months' imprisonment for those six counts, to be served cumulatively on the term of 3 years' imprisonment, resulting in a total effective term of imprisonment of 4 years' imprisonment, the commencement of which was backdated to 24 December 2015.[1]
[1] On 27 June 2016, the respondent was brought back before the District Court to be sentenced for the offence of breaching the CSIO. He was sentenced to a term of one month's imprisonment for that offence, to be served concurrently with the sentence of 4 years' imprisonment imposed on 24 June 2016.
Although the respondent was made eligible for parole, he was denied release on parole on 8 November 2017.
Commencement of the proceedings under the Dangerous Sexual Offenders Act 2006
On 5 July 2019, when the respondent was within the final year of the sentence imposed on 24 June 2016, the Director of Public Prosecutions for Western Australia (DPP) made an application in the name of the State of Western Australia (the applicant) for an order under Division 2 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) that:
(a)the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order);
(b)alternatively, he be subject to conditions when not in custody (a supervision order).
The application was filed pursuant to s 8 of the DSO Act, which provided that such an application may be filed in relation to a person, referred to as 'the offender', who, at the time the application was filed, was under a custodial sentence for a serious sexual offence[2] or had been under a custodial sentence for a serious sexual offence and, since being discharged from that sentence, had been under a custodial sentence for another offence or other offences. The offences of indecently dealing with a child under the age of 13 years, for which the respondent was sentenced to 12 months' imprisonment on 24 June 2016, were serious sexual offences for the purposes of the DSO Act. Irrespective of the order in which the sentences imposed on 24 June 2016 were served, the respondent came within s 8 of the DSO Act. In accordance with that section, the application was filed within the last 12 months of the total sentence imposed on that date.
[2] It is sufficient at this stage to note that, by s 3 of the DSO Act, a 'serious sexual offence' was an offence which came within the meaning of 'serious sexual offence' in s 106A of the Evidence Act 1906 (WA), which referred to offences mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more. The offences of which the respondent has been convicted included aggravated indecent dealing with a girl under 16 years and indecently dealing with a child under the age of 13 years, all of which were serious sexual offences for the purposes of the Evidence Act.
The application was made on the basis that the respondent was a serious danger to the community, in that there was an unacceptable risk that, if one of those orders was not made, the respondent would commit a serious sexual offence,[3] in particular, an offence of the kind he has previously committed against female children.
Preliminary hearing
[3] Section 7 and s 17 of the DSO Act.
In accordance with s 11 and s 14 of the DSO Act, the application came before the court for a preliminary hearing on 20 August 2019 to determine whether there were reasonable grounds for believing that the court might find under s 7(1) that the respondent is a serious danger to the community, and, if so, to make orders under s 14, the purpose of which was to set a date for the hearing of the application for the orders under Division 2 of the DSO Act and to ensure the court would have expert reports in respect of the respondent's then current risk of committing a serious sexual offence.
On 20 August 2019, I decided I was satisfied that there were reasonable grounds for believing that the court might find the respondent to be a serious danger to the community. I set 3 December 2019 as the hearing date, and made an order that the respondent undergo examinations by two qualified experts, namely Dr Mark Hall, a consultant forensic psychiatrist, and Ms Julie Hasson, a forensic psychologist, and consequential orders for the preparation of reports by those experts for the Division 2 hearing.
The Division 2 hearing
The application under Division 2 of the DSO Act proceeded on 3 and 18 December 2019 before me. I will set out below the evidence and arguments presented at the hearing. At the conclusion of the hearing, I reserved my decision. Regrettably, I was not able to give a decision before changes were made to the legislation governing the application. As will appear below, the changes do not substantially affect the issues to be determined or the manner in which I must approach the application. Nevertheless, it is necessary to outline the statutory scheme that now governs the application.
Enactment of the High Risk Serious Offenders Act 2020
On 9 July 2020, the High Risk Serious Offenders Act 2020 (the HRSO Act) received the Royal Assent, as a result of which pt 1 of the HRSO Act came into effect.[4] Other parts of the HRSO Act that are relevant to these proceedings came into force on 26 August 2020 (commencement day)[5] by virtue of proclamation pursuant to s 2(1)(c) of the HRSO Act.[6] Upon commencement of those parts of the HRSO Act, the DSO Act was repealed.[7]
[4] HRSO Act, s 2(1)(a) and Compilation table.
[5] The term 'commencement day' has relevance for the purposes of s 124, and is defined in s 122 to mean 'the day on which this section comes into operation', which, by virtue of s 2(1)(c) and the proclamation referred to below, was 26 August 2020.
[6] High Risk Serious Offenders Act 2020 Commencement Proclamation 2020, cl 2 (SL2020/131; Government Gazette, WA, 14 August 2020, p 2619).
[7] HRSO Act, s 123.
However, by s 124(1) of the HRSO Act, as the application made under the DSO Act in these proceedings had not been finally determined by commencement day, the application and these proceedings continue and may be determined under the HRSO Act, and for the purposes of determining the application under the HRSO Act, the application is taken to have been made under the corresponding provision of the HRSO Act. By s 124(2), the application may be continued by the DPP. Further, by s 125, if an order made or direction given under the DSO Act is in effect on commencement day, it continues in effect and is taken to have been made or given under the corresponding provision of the HRSO Act.
The overall effect of the HRSO Act is to widen the scope of the regime that previously applied in respect of persons who came within the description 'dangerous sexual offenders' in the title of the DSO Act to other offenders considered to be 'high risk serious offenders', being persons in respect of whom the court is satisfied 'that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence'.[8] A 'restriction order' is a continuing detention order or a supervision order, both of which are defined in similar terms as in the DSO Act.[9] The widening of the previous regime is achieved by the definition of 'serious offence'.[10] In addition to offences that previously came within the definition of 'serious sexual offence' under the DSO Act, parliament has determined that there are numerous other offences (most of which involve violence or some other particular danger to the community) from which the community requires protection by the making of a restriction order if there is an unacceptable risk the offender will commit such an offence.
[8] HRSO Act, s 7(1).
[9] HRSO Act, s 3 (definition of 'restriction order'), s 26 ('detention order') and s 27 ('supervision order').
[10] HRSO Act, s 3, s 5 and sch 1.
For the purposes of these proceedings, however, it is sufficient to note that the HRSO Act operates largely as the DSO Act did in respect of serious sexual offences. Whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether he is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same. I will deal with those matters in more detail below.
Interim detention order
The sentence imposed on the respondent on 24 June 2016, which was backdated to 24 December 2015, expired on 23 December 2019.
At the conclusion of the hearing on 18 December 2019, in anticipation of the fact that a decision would not be given before the sentence expired, the applicant applied for an order under s 14(2)(b) of the DSO Act that the respondent be detained in custody until the conclusion of the hearing and judgment on the application (an interim detention order). On the basis of the respondent's circumstances, as they appeared at that stage, I was satisfied such an order was appropriate. Accordingly, I made an interim detention order and the respondent has remained in custody since the hearing on that basis.
Statutory framework and legal principles
Before turning to the evidence in these proceedings and my factual findings in respect of the matters that inform the question of whether the respondent is a high risk serious offender and, if so, which restriction order is appropriate, it is necessary to provide a more detailed outline of the statutory framework and relevant legal principles that govern the application.
In The State of Western Australia v ZSJ[11] I made a comparative examination of the statutory framework under the DSO Act and the HRSO Act, and concluded that the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. I reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes. I was also of the opinion that the construction is confirmed by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General.[12] Of particular significance for present purposes is that the HRSO Act was intended to 'fully preserve' the provisions in the DSO Act that applied in respect of persons to whom that statute was directed, referred to as 'dangerous sexual offenders'.[13]
[11] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ).
[12] ZSJ [30]; Interpretation Act 1984 (WA), s 19(1)(a) and s 19(2)(f); Western Australia, Parliamentary Debates, Legislative Assembly, 26 June 2019, (Hansard) 4675b-4677a (Mr J.R. Quigley, Attorney General).
[13] Hansard, 4675.
A number of cases have been decided under the HRSO Act since ZSF, including two cases involving the substantive hearing of applications for restriction orders and one case involving a review of a continuing detention order.[14] The statutory construction and approach to the legal principles adopted in those cases is consistent with the views I adopted in ZSF. Therefore, I adhere to the views I reached in that case that the concepts and criteria in both statutes are substantially the same and that, consequently, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non-sexual offences.
[14] The State of Western Australia v Narrier [No 6] [2020] WASC 349 (Derrick J); The State of Western Australia v Lewis [No 2] [2020] WASC 377 (McGrath J); and The State of Western Australia v Atkinson [No 2] [2020] WASC 379 (McGrath J).
For convenience, I will outline again the statutory framework and legal principles I discussed in ZSF,[15] relating them to the circumstances of this case.
[15] ZSF [30] ‑ [63].
Pursuant to s 8, the objects of the HRSO Act are:
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.
An application of the kind brought in these proceedings pursuant to s 8 of the DSO Act would now be made pursuant to s 35 of the HRSO Act. Whereas previously the application was for a Division 2 order under the DSO Act (being a continuing detention order or a supervision order made under s 17(1)(b)),[16] the application would now be for a restriction order, which is defined under s 3 of the HRSO Act to mean a continuing detention order or a supervision order.
[16] DSO Act, s 3.
The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 respectively of the HRSO Act in similar terms to those used in the DSO Act. In the DSO Act the meaning was to be ascertained from s 3 (the definitions section), which referred in respect of each term to the later provisions that authorised the making of the orders (in particular s 17(1)(a) and (b)). The description of the orders in those later provisions gave content to the meaning, as will appear from the reference to s 17 below.
As these proceedings were conducted under Division 2 of the DSO Act, it is necessary to consider the manner in which the court was required to deal with a Division 2 hearing, which was set out in s 17 of the DSO Act. Section 17 provided:
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
(2)Subject to subsection (3), in deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
(3)A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.
(4)The onus of proof as to the matter described in subsection (3) is on the offender.
As I noted earlier, s 17(1)(a) and (b) gave content to the terms 'continuing detention order' and 'supervision order', by virtue of s 3 of the DSO Act.
Section 7(1) of the DSO Act provided:
(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.
A finding of 'serious danger' depended, therefore, on the existence of an 'unacceptable risk' that 'the person would commit a serious sexual offence' if the person were 'not subject to a continuing detention order or a supervision order'. If the court was satisfied in the manner provided in s 7(2) that there was an unacceptable risk of the kind described in s 7(1) of the DSO Act, it necessarily followed that the person concerned was a serious danger to the community.[17]
[17] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [66] (Wheeler JA); The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; (2008) 198 A Crim R 149 (GTR) [21] (Steytler P & Buss JA).
The provision in the HRSO Act that corresponds to s 17 of the DSO Act is s 48, which provides:
(1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(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.
As I indicated in ZSF, the significant differences between s 48 of the HRSO Act and s 17 of the DSO Act are:
(1)the reference to 'high risk serious offender' instead of 'serious danger to the community';
(2)the content of what is meant by 'continuing detention order' and 'supervision order' in s 48 is to be found in separate provisions, namely s 26 and s 27 respectively of the HRSO Act;
(3)the condition concerning the commencement date of a supervision order in s 17 of the DSO Act is not reproduced in s 48 of the HRSO Act, but is replicated in amended form in s 27 of that Act; and
(4)the requirements of s 17(3) and (4) of the DSO Act are not reproduced in s 48 of the HRSO Act, but are replicated in s 29 of that Act.
Section 7 of the HRSO Act provides:
(1)An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
(2)The State has the onus of satisfying the court as required by subsection (1).
In my opinion, although the formulation of that provision differs from s 7 of the DSO Act, when one has regard to the language, context and overall structure of the relevant provisions in each statute, the matters about which the court must be satisfied are essentially the same. In particular, when dealing with the risk posed by a sexual offender, s 7 of the HRSO Act does not contain any criterion necessary to find a respondent to be a high risk serious offender that was absent in the DSO Act for the purposes of determining whether a respondent was a serious danger to the community. Again, that construction is confirmed by the second reading speech in respect of the relevant bill, in which the Attorney General said, when referring to the term 'high‑risk offender', that the bill was 'not intended to change the test under the [DSO Act] for whether the court makes a continuing detention order or a supervision order.'[18]
[18] Hansard, 4675.
The matters about which the court must be satisfied under s 7(1) of the HRSO Act are that:
(a)it is necessary to make a restriction order in relation to the offender;
(b)the necessity for the order stems from the need to ensure adequate protection of the community; and
(c)what the community must be protected against is the 'unacceptable risk' that the offender will commit a serious offence.
A finding that it is necessary to make a restriction order to ensure adequate protection of the community against 'an unacceptable risk that the offender will commit a serious offence' necessarily entails a finding that, if the offender were not subject to a restriction order, there would be an unacceptable risk he would commit a serious offence, which was the formulation in s 7 of the DSO Act. Similarly, while the latter provision did not speak of a need for the court to be satisfied that a continuing detention order or a supervision order was necessary, the findings required under s 7 of the DSO Act, when read with s 17 of the DSO Act, necessarily entailed a finding that a continuing detention order or a supervision order was necessary to adequately protect the community against an unacceptable risk that the person would commit a serious sexual offence.
That construction is supported by what was said by Wheeler JA in Williams in respect of what was meant by 'unacceptable risk' under the DSO Act, which, in my opinion, applies to the concept of 'unacceptable risk' under the HRSO Act. Her Honour said (emphasis added):[19]
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 likely 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.
[19] Williams [63] - [65] (Wheeler JA).
The question of what was meant by 'unacceptable risk' under the DSO Act was considered further in GTR, where Steytler P and Buss JA said that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised and the serious consequences for an offender 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).[20] In my opinion, those principles apply equally to the concept of 'unacceptable risk' as it relates to a 'serious offence' under the HRSO Act.
[20] GTR [27] (Steytler P & Buss JA).
It can be seen also that s 7 of the HRSO Act stipulates the same evidentiary requirement, standard of satisfaction and onus of proof as were stipulated in s 7(2) of the DSO Act. The need for the court to be satisfied 'to a high degree of probability' is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition.[21] This does not necessarily mean that the risk must be at some high percentage of probability. A risk may be less than 50%, yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[22]
[21] GTR [28] (Steytler P & Buss JA).
[22] GTR [34] (Steytler P & Buss JA).
Section 7(3) of the HRSO Act sets out a number of matters that the court must have regard to in considering whether a person is a high risk serious offender. Those matters are, in relevant respects, identical to the matters previously set out in s 7(3) of the DSO Act. The matters in s 7(3) of the HRSO Act are:
(a)any report prepared under s 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by the section;[23]
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
[23] The DSO Act, s 7(3)(a) referred to 'any report 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'.
As s 7(3)(j) of the HRSO Act implies, the list of matters to be considered by the court is not closed. There is clearly overlap between a number of the matters in the list, and some of the matters inform others.
It has previously been noted in respect of the corresponding provision of the DSO Act that, while s 7(3)(g) provides that the court must have regard to any criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean there is an unacceptable risk that the person would commit a serious sexual offence (now a serious offence) in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they have occurred. However, past behaviour is often a good indicator of future conduct. Further, offences other than serious offences may be relevant in assessing the risk of the respondent committing a serious offence in the future, because they may demonstrate behaviour which has the real potential to lead to serious offending.
Once a court has concluded that an offender is a high risk serious offender, it must make either a detention order (being an order that the respondent be detained in custody for an indefinite term for control, care, or treatment)[24] or a supervision order (being an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30 of the HRSO Act).[25] In deciding between those two options, the paramount consideration is the need to ensure adequate protection of the community.[26] As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order.[27]
[24] HRSO Act, s 26(1).
[25] HRSO Act, s 27(1).
[26] HRSO Act, s 48(2).
[27] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
In my opinion, the following principles established in respect of the DSO Act apply equally to the HRSO Act. The court should choose the option which is least invasive or destructive of the respondent's right to be at liberty. At the same time it must ensure an adequate degree of protection of the community.[28] Therefore, if the court is not satisfied that a supervision order is capable of providing adequate protection of the community (having regard to the possible conditions which might be imposed, as identified in the evidence), it must make a continuing detention order.[29]
[28] The State of Western Australia v Latimer [2006] WASC 235 [49].
[29] Which includes if the court is left in doubt that a supervision order will provide adequate protection:
Williams [86] (Wheeler JA, Le Miere AJA agreeing).
Further, the requirements of s 17(3) and (4) of the DSO Act, set out above, are now reproduced in s 29 of the HRSO Act, which provides relevantly:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the HRSO Act to mean a condition that under s 30(2) of the HRSO Act must be included in the order. Under the DSO Act the standard conditions were specified in relevantly identical terms in s 18(1). The conditions specified in s 30(2) are that the offender:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender'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 offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);[30] 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 serious offence during the period of the order;[31] and
(g)be subject to electronic monitoring under section 31.
[30] DSO Act, s 18(1)(d) referred to 'section 19A or 19B', which correspond to s 31 and s 32 of the HRSO Act.
[31] DSO Act, s 18(1)(f) referred to 'a sexual offence as defined in the Evidence Act 1906 section 36A', which included offences additional to those coming within the meaning of 'serious sexual offence'.
Therefore, the effect of s 29(1) and (2) (as was the case with s 17(3) and (4) of the DSO Act) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order.
In respect of the equivalent provisions of the DSO Act, I expressed my views as to what is meant by 'substantially comply with' in Director of Public Prosecutions (WA) v Hart.[32] Those views apply to s 29(1) of the HRSO Act. Accordingly, the words of that provision should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order.[33] In essence, I 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 offence.[34]
[32] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
[33] Hart [52].
[34] Hart [52]; The State of Western Australia v Narrier [No 5] [2019] WASC 17 [113].
As I identified in Hart, some matters that will be of relevance are (a) the respondent's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions); (b) his capacity to comply with the conditions; (c) what measures there are in place to ensure he would substantially comply; and (d) the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the HRSO Act.[35] In particular, where engagement in counselling is to be a condition of the supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk.[36]
[35] Hart [50].
[36] Hart [50].
An obvious factor that is relevant to the assessment of whether a respondent will substantially comply is his history of compliance and non‑compliance with any previous court order. In this case, that will require consideration of the respondent's breach of the CSIO imposed in the District Court on 23 March 2015. Although a CSIO is not the same as a supervision order under the HRSO Act, the respondent's failure to comply with the CSIO in a fundamental respect, in that he offended while subject to the order, may inform the question whether he has the capacity or willingness to comply with the conditions of a supervision order.
In my opinion, the following observations of Wheeler JA in Williams in respect of the DSO Act also apply in the context of the HRSO Act:[37]
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.
[37] Williams [86].
These proceedings were commenced on the basis that there was an unacceptable risk that the respondent would commit a serious sexual offence (as defined in the DSO Act)[38] if he were not subject to a continuing detention order or a supervision order. The question now is whether there is an unacceptable risk the respondent would commit a serious offence as defined in the HRSO Act. For the purposes of these proceedings, it is sufficient to say that, by s 3 and s 5(1) of the HRSO Act, a serious offence is an offence that is specified in sch 1 of that Act. Offences that were serious sexual offences under the DSO Act come within the definition in that they are now set out specifically in div 1 of sch 1, being 'offences that are serious offences in all circumstances'. In particular, the respondent's risk is alleged to relate to the types of offences he committed in the past, being offences of indecently dealing with girls under the age of 13 years. All of those offences were contrary to s 320 of the Criminal Code 1913 (WA), which is a specified serious offence in Schedule 1.
[38] See footnote 2 above.
I note that one of the standard conditions that must be included in a supervision order, and with which the court must be satisfied the respondent would substantially comply, is that he not commit a serious offence during the period of the order (s 30(2)(f) of the HRSO Act). Although the respondent's risk is alleged to be in respect of sexual offending against children, and the application was brought on that basis, the effect of s 30(2)(f) is to require the court to be satisfied on the balance of probabilities that the respondent will not commit a serious offence of any kind specified in sch 1. It is not an issue that requires further consideration in this case, as there is no suggestion the respondent might commit some other kind of serious offence.
Finally, in the event that a supervision order is made, s 27 of the HRSO Act picks up the requirements previously stated in s 17 of the DSO Act in terms of the commencement and duration of such an order as follows:
(2)A supervision order has effect in accordance with its terms -
(a)from a date stated in the order; and
(b)for a period stated in the order.
(3)The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
Evidence in these proceedings
The evidence adduced by the applicant in these proceedings consisted of a Book of Materials (BOM), which was tendered by the applicant without objection, some additional exhibits tendered at the hearing and oral evidence given by:
(1)Dr Mark Hall, the consultant forensic psychiatrist who was one of the two court‑appointed experts who examined the respondent for these proceedings;
(2)Ms Julie Hasson, the forensic psychologist who was the other court‑appointed expert;
(3)Dr Benjamin Bannister, Senior Clinical and Forensic Psychologist with the Forensic Psychological Services of the Department of Justice, who prepared a report titled Proposed Dangerous Sexual Offender Management Plan in respect of the respondent, reviewing the respondent's treatment up to 7 November 2019 (the date of the report) and assessing his outstanding treatment needs and how they may be met; and
(4)Ms Kimberley Comery, a senior community corrections officer (SCCO), who prepared a Community Supervision Assessment report.
The BOM, included the reports of each of the witnesses and comprehensive materials concerning:
(1)the respondent's antecedents, including his criminal record, a chronology of his offending prepared by the DPP, and information from the Department of Corrective Services about the respondent's conduct and medical attendances in prison;
(2)the offences for which the respondent was sentenced on 20 May 2005 in the Perth Children's Court, including transcripts of police interviews with the child witnesses (the victims in that case), relevant witnesses' statements, a transcript of the respondent's police interview and transcript of the sentencing hearing;
(3)the offences (charged on two indictments) for which the respondent was sentenced in the District Court on 14 June 2011, including a transcript of the police interviews with the child witness (the victim in that case), relevant witnesses' statements and a transcript of the respondent's police interview in respect of the offences on the first indictment, a statement of material facts in respect of the offences on the second indictment, transcript of the sentencing hearing, and a psychological report relied upon by the court in sentencing;
(4)the offences for which the respondent was sentenced in the District Court on 23 March 2015, including a statement of material facts, transcripts of police interviews with the child witnesses (the victims in that case), transcripts of the respondent's police interviews, pre-sentence reports, psychological reports and reports in respect of the respondent's participation in a community-based sex offending treatment programme and a sex offender treatment maintenance programme (which the court relied upon at the sentencing hearing), and transcript of the sentencing hearing;
(5)the offences for which the respondent was sentenced in the District Court on 24 June 2016, including an amended statement of material facts and transcripts of the respondent's police interviews in respect of the offences committed in December 2015, a pre-sentence report, a psychological report and a psychiatric report (which the court relied upon at the sentencing hearing) and transcript of the sentencing hearing;
(5)an Intensive Sex Offender Treatment Program Completion Report dated 2 November 2017; and
(6)a Parole Assessment Report dated 8 November 2017.
The respondent gave oral evidence in his case.
Approach to consideration of the evidence and the issues
As I noted earlier, the matters listed in s 7(3) of the HRSO Act, to which the court must have regard, overlap. The matters in pars (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed by the information and findings in respect of all of the other matters listed in s 7(3). The questions concerning propensity and any pattern of offending behaviour (pars (c) and (d)) will be informed by the respondent's antecedents and criminal record (par (g)) and the findings in the reports and assessments referred to in pars (a) and (b). Those findings will also inform the matters in pars (e) and (f) concerning efforts at rehabilitation and the effect of participation in rehabilitation programs.
It is convenient to start with the respondent's antecedents, including his criminal history, in particular the offending that is most relevant to the assessment of his risk of committing a serious offence.
Respondent's antecedents and criminal record
Social history
The summary of the respondent's history, which follows, is collated from various materials in the BOM, including pre‑sentence, psychological and psychiatric reports prepared for criminal proceedings, reports from sex offender treatment programmes in which the respondent has engaged, and the reports prepared for these proceedings, in particular the reports of Dr Hall and Ms Hasson.
It has been difficult to ascertain the precise details of some aspects of the respondent's childhood because of inconsistencies between the accounts given by the respondent, his mother and his father to the authors of various reports. Some of the inconsistencies between the respondent's mother and his father appear to reflect opposing perspectives of a relationship that ended acrimoniously.
The respondent is 31 years of age. He is the only child from his parents' relationship, but he has a number of siblings on his mother's side from her other relationships. His mother had a daughter and three sons from an earlier relationship, and a son from a relationship after she separated from the respondent's father. One of the respondent's older brothers committed suicide when the respondent was still in primary school. It appears he was the one sibling to whom the respondent was close, regarding him as an idol, and his death had a significant impact on the respondent.
The respondent has said that his childhood was one in which he felt unwanted, unloved and unsupported.[39] On all accounts, he was raised in what has been described as a dysfunctional family environment. That appears to have been the case both before and after his parents separated when he was three years old. It also appears that a significant factor in the breakdown of his parents' relationship was his mother's belief that his father was sexually abusing all of the children.[40] The respondent's father was subsequently convicted of sexual offences committed against the respondent's half-sister and her friend, as children, before the separation. He was sentenced to 18 months' imprisonment. It appears to have been a source of angst for the respondent as a child that his mother claimed that he and other siblings were sexually abused by his father. His father denied offending against any child other than the victims of the offences of which he was convicted. The respondent has always maintained that he has no memory of being sexually abused by his father, although, given that his mother's allegations appear to relate to a period when the respondent was three years or younger, one would not necessarily expect him to have a memory. Dr Hall referred to information that indicates the respondent reported in 1993 (which would mean he was about 4 years old) that his father had touched his penis during an access visit, but there is insufficient information about the context to conclude that it was contact of a sexual nature.[41] The respondent told Mr Summerton, the psychologist who assessed him for sentencing in 2011, that he 'had become a sceptical person because he did not wholly believe either of his parents' accounts of what had occurred'.[42] Mr Summerton noted that there had been 'conflicting realities' within the respondent's family.[43]
[39] BOM 676 (Intensive Sex Offender Treatment Program, Program Completion Report, 2.11.2017).
[40] BOM 336 (Report of Mr Summerton, 9.5.2011).
[41] BOM 703 (Dr Hall's report, 15.11.2019).
[42] BOM 336.
[43] BOM 337.
The respondent has described a dysfunctional relationship with his mother when he was growing up, which has continued in adulthood.[44] He has described the causes, variously, as including the harsh and abusive manner in which she disciplined him when he misbehaved, her behaviour when she drank excessively, her choices in the relationships she had after she separated from the respondent's father, which the respondent claims included incidents of domestic violence, and a general attitude of treating the respondent as the 'black sheep' of the family. The respondent has said that his mother had not been affectionate and that he never really felt connected to her.[45] The author of the Community Based Sex Offending Treatment Program (CBSOTP), Program Completion Report in 2015 noted:[46]
It appeared that his relationship with his mother had resulted in him developing more generally negative attitudes towards adult women. He expressed feeling hurt and rejected by adult women and struggled forming healthy intimate relationships. He also expressed a general sense of mistrust and hostility toward other adults, which appeared more prevalent towards adult females.
[44] See, for example, BOM 516 (Community Based Sex Offender Treatment Program Completion Report dated 5.11.2015, p 3)
[45] BOM 699 (Dr Hall's report, 15.11. 2019).
[46] BOM 516.
Despite these indications concerning his mother, I note that, during the sentencing hearing on 20 May 2005, the President of the Children's Court said to the respondent that he was very fortunate in that he had a 'pretty supportive mother' (a view that was supported by the information before his Honour). When his Honour asked the respondent if he appreciated that, he said, 'Yeah.'[47] Of course, such a response in the context of that hearing might be expected, irrespective of any contrary feelings the respondent may have harboured, but, whatever his mother's shortcomings, the evidence indicates she tried to obtain therapeutic help for the respondent. His negative views of her are likely to have been influenced, at least in part, by the fallout from the separation of his parents, including the fact that he did not have contact with his father for a substantial part of his childhood, for which he has blamed his mother.[48]
[47] BOM 225.
[48] BOM 629 (Psychological pre-sentence report of Ms Maria Krabbe, 5.5.2016).
After his parents separated, the respondent had limited supervised contact with his father from the age of 6 years. Although it is not clear when the respondent's father was imprisoned for the sexual offences he had committed, it seems that the supervised contact occurred after his father was released from prison. The respondent initially found the visits 'weird' because of the sense of formality and the fact that they were monitored.[49] However, the respondent has said that over time he began to enjoy the contact with his father, and he has fond memories of going fishing and go-karting with him.[50] He has said that he looked forward to seeing his father, which was the highlight of his week and made him feel special.[51]
[49] BOM 336 (Mr Summerton's report, 9.5.2011) and 718 (Ms Hasson's report, 15.11.2019).
[50] BOM 718 (Ms Hasson's report, 15.11.2019).
[51] BOM 718 (Ms Hasson's report, 15.11.2019).
For reasons that are not explained in the available information, the respondent ceased to have contact with his father when he was 10 years old. The respondent has said that his mother told him he could not see his father anymore and his father 'just seemed to accept it'.[52] He has also said that he was forced by his mother to telephone his father and informing that there would be no further contact,[53] which appears to have been another source of resentment towards his mother. The respondent has claimed that he went from being a happy child to a 'hell raising' child after he was prevented from seeing his father, and that he took out his anger and frustration on others.[54] As Mr Summerton noted in 2011, the account of events given by the respondent's mother differed somewhat from the respondent's version. It is not necessary to go into the differences or to endeavour to resolve them, which would not be feasible in the context of the present proceedings, in any event. It is sufficient to say that the respondent's mother has described him as a 'somewhat troubled child' who, 'away from the domestic context … apparently manifested consistent misbehaviour'.[55] What matters is that, notwithstanding his father's past offending and the spectre of his mother's belief that his father had sexually abused him, the respondent has positive memories of time spent with his father as a child.
[52] BOM 718 (Ms Hasson's report, 15.11.2019).
[53] BOM 336 (Mr Summerton's report, 9.5.2011).
[54] BOM 718 (Ms Hasson's report, 15.11.2019).
[55] BOM 337 (Mr Summerton's report, 9.5.2011).
After the supervised visits ceased, the respondent had no further contact with his father until he was 18. Despite not having had contact with his father for some 8 years, the respondent was able to establish a close relationship with him after they reconnected and was living with him before the respondent was imprisoned for his sexual offending. They have remained close. The respondent has said that the fact he moved in with his father evoked anger in his mother and siblings and contributed, along with his own offending behaviour, to his alienation from them.[56] As I will explain later, although there are questions concerning the suitability of the respondent's father as a pro-social support for the respondent in the community, given the respondent's father's own previous offending and his attitude towards the police, he remains the respondent's main support in the community.
[56] BOM 701 (Dr Hall's report, 15.11.2019).
The respondent has described fractured relationships with his mother's partners after she separated from his father, other than her most recent partner, of whom he has spoken positively.[57] Another partner, who the respondent has described as a 'severe alcoholic',[58] was physically and verbally abusive towards the respondent. The respondent has also described another of the partners as 'possibly' having been sexually inappropriate towards him and one of his brothers.[59]
[57] BOM 699 (Dr Hall's report, 15.11.2019), 718 ‑ 719 (Ms Hasson's report, 15.11.2019).
[58] BOM 699.
[59] BOM 676 (Intensive Sex Offender Treatment Program, Program Completion Report dated 2.11.2017), 719 (Ms Hasson's report, 15.11.2019).
Although I have had regard to the whole of the respondent's social history, and do not disregard its significance in his development, the balance of that history can be summarised shortly.
The respondent's adolescence and early adulthood were marred by social rejection and his own negative behaviour. He was bullied and teased at school, resulting in significant social isolation and impaired development of appropriate relationships with both males and females. He had no friends and did not fare well academically. Those outcomes were no doubt affected by his misbehaviour (as the respondent has acknowledged in respect of his schooling)[60] and troubled nature, but it is reasonable to conclude that the way he was treated by his peers also contributed to that behaviour.
[60] BOM 699 (Dr Hall's report, 15.11.2019).
Since an early age, the respondent has had difficulties with emotional regulation. He has a history of self-harm and suicidal ideation. For much of his life he has suffered from having low self‑esteem and a lack of confidence, which have contributed to a heightened sensitivity to rejection. I noted earlier that the death of his older brother when the respondent was in primary school (described by the respondent at different times as being when he was aged 8, 9 or 10), had a significant adverse impact on him emotionally. It appears that was exacerbated by the respondent's mother telling him on occasions when she was affected by alcohol that she would rather it had been the respondent who died.[61] There is no indication of when those incidents took place. It is obvious from observations made by the respondent's mother in the past that she regarded the respondent as having caused damage to the family. She told Mr Summerton in 2011 that the family had been 'highly unsettled by both [the respondent's] and his father's sexual offences', and that she had lost a number of friends as a result of the respondent's 'sexual acting out during his adolescent years'.[62]
[61] BOM 699 (Dr Hall's report, 15.11.2019).
[62] BOM 337 (Mr Summerton's report, 9.5.2011).
The respondent has described having one serious relationship, which commenced when he was aged 18 or 19.[63] As with other aspects of his background, the respondent's various accounts about the relationship have been inconsistent in various respects over time. It would appear, however, that they were together for a period of 12 to 18 months. It appears from all of his accounts that he was in love with his girlfriend, R, and was committed to the relationship, despite the fact that he regarded it as a 'hectic and chaotic' relationship.[64] He has said that R was 'sexually adventurous',[65] although it is not clear whether he found that to be a positive or negative attribute. To Ms Hasson, the respondent described R as intense, and suggested that she was possessive, would question his love for her and was at times violent towards him.[66] On the other hand, he told Dr Hall that, although he thought R was moody, the relationship was marred predominantly by his insecurity and jealousy and the conflict that would arise from it.[67] R was also strongly opposed to the respondent's use of cannabis, which resulted in him abstaining for periods until they would argue and he would use cannabis again to manage his negative feelings.[68] The respondent's insecurity led to him monitoring R's phone for a period of time. He believed she was cheating on him, and eventually the relationship ended when he found her having sex with two men in a vehicle. The discovery had a significant emotional impact on the respondent to the point that he contemplated suicide.
[63] BOM 337 - 338 (Mr Summerton's report, 9.5.2011), 472 (Report of Jane C Sampson, Clinical and Forensic Psychologist, 15.12.2014 - he told Ms Sampson that he was about 17), 700 (Dr Hall's report, 15.11.2019) and 721 (Ms Hasson's report, 15.11.2019).
[64] BOM 700 (Dr Hall's report, 15.11.2019).
[65] BOM 721 (Ms Hanson's report, 15.11.2019).
[66] BOM 721.
[67] BOM 700.
[68] BOM 700 (Dr Hall's report, 15.11.2019).
At the sentencing hearing of 14 June 2011, to which I will return later in these reasons, it was suggested that his sexual offending in 2010 'stemmed' from the traumatic nature of the break up with his girlfriend, which had resulted in the respondent consuming significant quantities of cannabis and alcohol.
The respondent has described having a number of casual sexual relationships with adult women after the break up. He told Dr Hall of two attempts at having a relationship with adult women, in 2013 (following his release from prison) and in 2015, the first of which did not proceed beyond a first date and the second of which ended when the woman found about his sexual offending.
The respondent has said that he is in a relationship of sorts with a female prisoner, with whom he has been corresponding during his most recent incarceration.
Education and employment
After finishing school part way through year 10 or 11, the respondent worked for short periods in various unskilled or semi‑skilled roles in farming, railways and traffic control. He told Dr Hall that he had engaged in 'malicious interference' with at least one of the businesses in which he was employed, and said he often attended work intoxicated by cannabis.[69] He said he abstained from cannabis use while working as a scaffolder at a mine in Boddington for seven months before he was arrested for sexual offences for which he was subsequently imprisoned in 2011. He told Ms Hasson he liked that job.[70] After being released from prison, he found it difficult to find employment because of his offending history. He was not employed prior to his current period of imprisonment.
Substance use
[69] BOM 700 (Dr Hall's report, 15.11.2019).
[70] BOM 720.
As Dr Hall noted in his report for the present proceedings, the information in the records and the respondent's past disclosures indicate that the respondent has had a serious problem with alcohol use in the past.[71] However, during the assessment for these proceedings the respondent was 'somewhat vague and obfuscatory in relation to his substance use history', and the history he gave to Dr Hall tended to minimise his problem with alcohol.[72] On the other hand, he told Ms Hasson that he was a binge drinker from the age of 14.[73] However, he claimed not to have offended while under the influence of alcohol or any other substance except for the 2010 offences (which I will describe below). He told Ms Hasson that alcohol had not been a problem since 2009 or 2010,[74] but he admitted to Dr Hall that during his incarceration in 2011 he attended meetings of Alcoholic Anonymous in prison, and that after he was released from custody in 2013, he recommenced drinking within three months and his drinking had escalated by the time he committed the offences at the Bayswater Waves Leisure Centre, which was in 2014.[75] He told Dr Hall that, by the time of the 'online offences' (in December 2015), he had reduced his alcohol intake to 'a six-pack over the weekend'.[76]
[71] BOM 698.
[72] BOM 698.
[73] BOM 720.
[74] BOM 721.
[75] BOM 698.
[76] BOM 698.
I am satisfied, on the basis of all the evidence presented in these proceedings, that Dr Hall's assessment that the respondent has had a serious problem with alcohol use is correct, and that it will continue to be an issue for him if it is not addressed by continuing treatment. That is particularly so because of the unreliability of his insight into the problem, given his inconsistent accounts. As will emerge later, his potential relapse into alcohol abuse is a risk factor in his offending.
The other substance that has been a problem for the respondent is cannabis. He commenced using cannabis at the age of 12 or 13 and reached a stage by the age of 16 where he 'couldn't go a minute without it'.[77] He stopped using the drug when he was employed in the mines in Boddington in 2011, because he was regularly tested for drugs. He told Dr Hall he found the withdrawal period 'very trying'.[78] He said he relapsed on his birthday in 2012 while in prison. He initially said he had not used cannabis since then, but then told Dr Hall that he had used it sporadically.
[77] BOM 698 (Dr Hall's report, 15.11.2919). See also BOM 720 (Ms Hasson's report, 15.11.2019).
[78] BOM 698.
It is not clear whether cannabis intoxication played a part in any of the respondent's offending, but, as it is a disinhibiting drug, the potential for the respondent to relapse into cannabis use is an issue that will need to be addressed in addition to his potential alcohol abuse.
Sexual development
In 2011, Mr Summerton noted that it was 'somewhat difficult to gain an accurate picture of [the respondent's] sexual development in view of his defensiveness and obfuscation'.[79] However, the respondent appears to have been more forthcoming with Dr Hall and Ms Hasson during their interviews with him for the purposes of these proceedings. There are inconsistencies in the histories he gave to them, but the inconsistent details are largely not significant.
[79] BOM 337.
The respondent has said that his first sexual encounter with another person was with a female friend in primary school, E. He told Dr Hall that he was nine, and that the girl was a year above him at school. He told Ms Hasson that he was in year six (which would make him 10 or 11) and that E and he were of a similar age. They engaged in kissing and sexual touching over a period of time. He told Ms Hasson it was a few times and that E eventually lost interest in him and met someone else. He said they remained friends until she moved away, which caused him to feel devastated because the 'closeness' had come to an end. The respondent's account to Dr Hall was somewhat different. He said the sexual encounters had occurred over a period of four years, at home and at school, and had persisted despite the two being caught and counselled at home and at school. He told Dr Hall that the sexual encounters stopped when E moved from the area where the respondent was living. The matter of significance is that the respondent was sexually active from a young age and his early experiences (described by Ms Hasson as 'sexual play'[80]) were with another child who was sexually active.
[80] BOM 722.
However, that child was the same age or a little older than the respondent. As will appear below, under 'Criminal History', there is evidence that the respondent was sexually interfering with younger children, as young as 4 years old, from about the age of 12. It is not clear whether that occurred at the same time that he was engaging in sexual activity with E, but it seems to me that his experiences with E would not account for his sexual interest in children of a very tender age.
The respondent told Ms Hasson that sexual matters were never discussed at home and that, when he tried to speak with his older brother about such matters on an occasion when he was 9 or 10, his brother was too uncomfortable and instead gave the respondent pornographic magazines to look at.[81] However, as I noted in the preceding paragraph, the respondent told Dr Hall that he had been counselled when he was caught out engaging in sexual acts with his female friend in primary school. There is no evidence of what that counselling comprised, but that history suggests there were some opportunities for discussion about sexual matters at home at a time when he was becoming sexually aware.
[81] BOM 722.
The respondent told Dr Hall that he began masturbating at the age of 12 or 13, and did so frequently, using pornographic magazines for arousal. He gave Ms Hasson a similar account, but appears to have suggested it was somewhat later, when he 'commenced puberty around the age of 14'.[82] It appears he was also watching adult pornography.[83] He also told Ms Hasson that, during his teenage years, he masturbated to thoughts of female peers, as well as girls he saw on television. However, there is evidence, as I have already indicated, that during his teenage years the respondent was also sexually abusing children who were much younger.
[82] BOM 722.
[83] BOM 723 (Ms Hasson's report, 15.11.2019).
The respondent acknowledged to Ms Hasson that 'in hindsight he used to engage in masturbatory behaviour when he was in high stress states, suggesting he was using masturbation as a coping mechanism or to self-soothe and attenuate dysphoric emotions'.[84] He also said that he had been bullied and teased at school around that time for being 'weird [and] different' and that he 'felt like crap'.[85]
[84] BOM 723.
[85] BOM 722.
The respondent told Dr Hall that he first had sexual intercourse at the age of 14 with a female who was aged 18 or 19, but he did not have intercourse again until he was aged 19, when he had sex with his girlfriend at the time. He told Dr Hall that, after he separated from his girlfriend, he had only two more sexual encounters with adult women, both of which were casual. He explained that he 'was never good at picking up girls'.[86]
[86] BOM 723.
The respondent developed a sexual interest in female children. He told Ms Hasson that this started when he was sent an anonymous email when he was in his teens and he looked at images of scantily clad girls aged 7 to 13 in a link to the email. He subsequently used the internet to access child exploitation material, although he claimed to Ms Hasson that he did not masturbate to such images until much later.[87] He told Dr Hall that the severity of the material he could access was limited by not having a credit card. He used computers to download folders containing child exploitation images.[88]
[87] BOM 723.
[88] BOM 723.
The respondent was reluctant to discuss his sexual interest in children with either of Dr Hall or Ms Hasson, suggesting it was a thing of the past and that he no longer felt that way.[89] However, with time and after being presented with disclosures he had made to writers of reports in the past, he became more forthcoming with Dr Hall. He described a 'long‑standing and preoccupying interest in young females, both prepubescent and pubescent'.[90] When asked what he considered to be attractive about children, he minimised any physical aspect and said that it was because he would get 'happy memories' of E (the first girl with whom he had sexual encounters and to whom he was close), and because the children 'look up to you when you want to spend time with them and pay them lots of attention'.[91]
[89] BOM 703 and 723.
[90] BOM 704.
[91] BOM 704.
When interviewed by both Dr Hall and Ms Hasson, the respondent said that he currently masturbated to fantasies of adult women, referring in particular to the female prisoner pen pal.[92] He told Ms Hasson that he was no longer 'as attracted to children' and he had little interest in them.[93] However, he disclosed to Dr Hall that he 'continued to have recurrent and intrusive sexual thoughts about children, which might sometimes involve memories of one of his victims'.[94] He said that such thoughts were more likely to arise if he was feeling stressed, and that, when they arose, it felt as though they were tempting him or 'trying to drag [him] back to [his] old self'.[95] He told Dr Hall that, since participating in the ISOTP, he had been better able to distance himself from the thoughts and give consideration to what may have triggered them. He also said that he distracts himself from such intrusive thoughts by using meditation, listening to music or writing a letter.
Criminal history and treatment interventions
[92] See [75] above.
[93] BOM 723.
[94] BOM 704.
[95] BOM 704.
The respondent's criminal history consists of his sexual offending and breaches of the court-imposed orders in respect of some of that offending.
The respondent's earliest offending needs to be considered against the background I have described in respect of his social history and sexual development.
The respondent began acting out sexually at a young age. It would appear that he initially offended opportunistically, targeting children who had a connection to his family or who lived nearby. Over time his offending progressed to include children who were strangers. That was likely due to the fact that he came to have limited access to children within his family or in his social circles. On many occasions his offending was brazen, occurring at times and locations where there was a likelihood that he would be seen by others.
At the sentencing hearing of 20 May 2005, to which I will come shortly, the respondent's counsel informed the court that in 2002, when the respondent was about 12 years old, his mother was told by one of her friends that the respondent had been touching her female children, who were four and five years old at the time.[96] That incident prompted the families to seek help from SafeCare, a non‑profit organisation which provided treatment, counselling and support services to families where child sexual abuse had occurred or where it was feared it may occur. The respondent had received counselling, but the respondent had been difficult to engage and the counselling appears to have been ineffective. His counsel told the court that there had been other reported incidents of the respondent touching other young girls, including the 6‑year‑old daughter of his older brother's girlfriend and a friend of the respondent's sister.[97] Again, those matters were reported to SafeCare, but further counselling had not been effective. Speaking in the context of the offending for which the respondent was being sentenced in 2005, his counsel said that the respondent '[did not] resile from the fact that it happened regularly', and both he and his mother were 'desperate to get help'.[98]
[96] BOM 213.
[97] BOM 213.
[98] BOM 213.
Turning to the offences of which the respondent has been convicted, the facts outlined below are taken from the statements of material facts and the court proceedings in respect of those offences. In outlining the facts, I will also refer briefly to the respondent's conduct and treatment interventions in between the offending. I will discuss the treatment interventions in more detail later.
Offences committed between 31 December 2004 and 19 January 2005
The first series of offences was committed by the respondent when he was 15 years old. The offences were committed against two female children, being KFT, who was aged 3 years, and SDT, who was aged 8 years. They were his neighbours for approximately 12 months. Their home backed onto the respondent's home. The properties were in a semi-rural suburb outside the metropolitan area. One evening in January 2005, the respondent called out to the girls who were playing in their backyard. When they came to the area of the back fence that was behind a tree, the respondent showed the girls three pornographic magazines containing sexually explicit photographs of naked females, including photographs of females engaging in sexual acts with each other. While the girls were looking at the magazines, the respondent pulled his pants down and exposed his penis to both of them while moving his hips from side to side as the girls watched. He was seen by another neighbour who yelled out to him, at which time he pulled up his pants.
On another occasion during the same period of offending, between 31 December 2004 and 19 January 2005, the 8‑year‑old girl, SDT, went to the respondent's house to play with his younger brother. When she knocked on the door, the respondent invited her into his house. He was in fact alone in the house. He then took SDT into the rear yard and told her to take off her pants. She pulled her clothing down and exposed her vagina. The respondent pulled his own clothing down and exposed his penis. He then touched the girl on the outside of her vagina.
On yet another occasion during the same period, the respondent again called out to the children while they were playing in their yard, calling them over to the back fence. The respondent removed his clothing and exposed his penis. He told the 3‑year‑old, KFT, to remove her clothing so that he could see her vagina. She complied. He then touched her on the outside of her vagina.
The respondent was interviewed by detectives on 25 February 2005.[99] He eventually admitted the sexual offences. He also admitted that he had engaged in sexual behaviour with the children on a number of other occasions. He said it was on weekends during school holidays.[100] He said he knew it was wrong because his father had gone to gaol for it.[101] He said he had told the girls 'not to tell'.[102] He also said he had tried to get counselling a few times.[103]
[99] BOM 159 - 205.
[100] BOM 201.
[101] BOM 185.
[102] BOM 186.
[103] BOM 185.
The respondent was charged with four counts of indecently dealing with a child under the age of 13 years (Criminal Code s 320(4)) and two counts of showing offensive material to a child under the age of 16 years (Criminal Code s 204A(2)). He pleaded guilty to those offences and was sentenced in the Children's Court on 20 May 2005.
As I noted earlier, the respondent's counsel informed the court that the respondent acknowledged he had been engaging in the sexual abuse regularly, and that there had been reports that he had indecently dealt with other young children. When asked what he was thinking when he committed the offences, the respondent had told his counsel that it was 'mostly spontaneous' and that 'it just sort of overcomes him'.[104] The respondent confirmed those explanations when questioned by the sentencing judge.[105] He said he thought about the fact that his behaviour was wrong. He also said he had been told, in effect, that if he felt the urge arising he should speak to someone about it.
[104] BOM 213.
[105] BOM 224.
The respondent had been attending counselling on a fortnightly basis, but, as I outlined earlier, he had not been engaging well with treatment. The sentencing judge impressed on the respondent the need to be open and engage with the process if it was to be of any benefit to him.
While the sentencing judge regarded the offences to be serious, he decided that, given the respondent's age and his need for psychological and psychiatric assistance, he should be released on a youth conditional release order for 12 months. The respondent was released on that order subject to conditions requiring him to attend consultations with a psychiatrist and comply with treatment recommended by that psychiatrist, and also to receive intensive psychological counselling.
Offences committed between 1 January 2010 and 25 April 2010
The respondent was next charged with sexual offences on 12 July 2020, when he was 20. He was charged with three counts of indecently dealing with a child under the age of 13 years (Criminal Code s 320(4)), one count of indecently recording a child under the age of 13 years (Criminal Code s 320(6)) and two counts of being in possession of child pornography (Classifications (Publications, Films and Computer Games) Enforcement Act 1996 (WA) s 60(4)).
The charges of indecent dealing were charged on a separate indictment from the other offences. He was dealt with for all of the offences at the same time on 14 June 2011. I will outline the circumstances of each set of offences before referring to the sentencing proceedings.[106]
[106] The facts are set out at BOM 228 - 229 and 344 - 346.
The offences of indecently dealing with a child under the age of 13 years occurred on three separate occasions between 1 January 2010 and 25 April 2010. The respondent was 20 years of age and the victim, SCP, was 9 years of age. The respondent was a friend of her parents, having befriended them over a period of 12 months through his involvement in a miniature railway (steam locomotive) club.[107] He told Mr Summerton that, as the friendship developed, the victim's parents had offered him the chance to babysit their children.
[107] BOM 333 (Mr Summerton's report, 9.5.2011) and 356 (Sentencing proceedings, 14.6.2011.)
The first offence occurred when the respondent went to victim's home to help her brother build a model boat. He went into the child's bedroom, and sat next to her on her bed. He then pulled his pants and underwear down past his hips exposing his penis. He took hold of the victim's hand and placed it onto his penis. While holding her wrist, he caused her to masturbate him by moving her hand up and down. The victim tried to remove her hand. The respondent stopped, pulled his pants up and left the room when the victim's brother called out to the victim.
In relation to the second offence, the respondent was at the victim's house on another occasion and again went into her bedroom. He began to tickle her over her clothing on various parts of her body before putting his hand on her underwear and tickling her genitals for a short period.
In relation to the third offence, the respondent was at the victim's house on 24 April 2010. The victim's father was having a birthday party, and the respondent was invited. During the evening, the respondent went with the victim and other children to a vacant block behind the victim's house and was playing a game with them. While the other children were hiding, the victim sat on the respondent's leg. The respondent put his hand under her skirt and onto her underwear in the area of her genitals. He then tickled her vagina.
The respondent was arrested and charged with those offences on 12 July 2010, when the police executed a search warrant at his home. The next set of offences arose from that search.
Offences committed between 30 June 2009 and 23 March 2010 and on 12 July 2010
When searching the respondent's home on 12 July 2010, police found 207 images of child pornography on the hard drive of the respondent's home computer. There were 161 images depicting children aged 4 to 14 years in various states of dress or naked. Some included children who were semi‑naked or in swimwear or underwear posing sexually. Other images focussed on the child's genital area. There were also 46 files of animated child pornography, including images depicting babies being penetrated and children urinating.
During examination of the respondent's laptop, police found two photographs of the victim SCP, which had been taken by the respondent when SCP was aged 8 or 9 years. In one image she was sitting on her bed in boxer shorts and a t-shirt with her legs crossed. The image was labelled '[s]_naughty'. The other image depicted her in her underwear lying on a bed with her legs out straight and spread apart in front of her. The image was labelled '[s]_nice'.
A search of the respondent's work computer at the Boddington Gold Mine located 119 images of child pornography on the hard drive. All of the images were of the same female child posing sexually in underwear. The child appeared to be aged between 9 and 11 years. The files were all labelled with the same female name. There was a small number of other images depicting sexual deviance by an adult female, but there is no suggestion they are relevant to a consideration of the respondent's risk in this case.
I accept the respondent's evidence that, since the ISOTP, he has been more prepared to discuss issues concerning problematic thinking and emotional problems with trusted persons in prison. While, as he acknowledged, he has more work to do, he has taken positive steps that should put him in better stead to benefit from supervision and deal with the stresses that he will no doubt encounter upon his return to the community subject to the onerous restrictions of a supervision order.
Although the respondent appears to have come rather belatedly to the realisation that he has a problem with alcohol, notwithstanding his abstinence in custody, it is further insight that should assist with his rehabilitation and compliance with a supervision order. The conditions requiring him to submit to testing for alcohol or drug use should also act as a deterrent to the respondent using substances as a maladaptive coping mechanism.
I am satisfied that the respondent will engage appropriately with supervision and further treatment. I am also satisfied that he will comply with the obligation to maintain a diary, given that it will provide him with some structure and assist him to report accurately during supervision. He is now well aware of the consequences of dishonesty in his dealings with supervisors and those who are providing him with counselling. In coming to the conclusion that the respondent will engage appropriately, I have had regard to the fact that, while in custody for the term of his most recent sentence, he has been assessed as being compliant and respectful.
The applicant correctly points to the respondent's past performance on the CSIO and while undergoing treatment as a matter that casts doubt on whether the respondent would substantially comply with the conditions of a supervision order. However, the proposed supervision order would provide a degree of monitoring of the respondent's movements and conduct and a degree of constraint on what he can do that were not present when he was last in the community and reoffended. If he were to breach the conditions, he would likely be returned to custody and the court could make a CDO. It is obvious this is not lost on the respondent's father from his comment that the respondent will be spending the rest of his life behind bars if he offends again. In my opinion, it is also not lost on the respondent.
The conditions of the supervision order are designed to enable detection of behaviour and mindsets that may lead to reoffending, well before the respondent reaches that point.
The matters relied on by the applicant, set out at [379] to [382] above, go to the finding that the respondent is a high risk serious offender, but, in my opinion, they do not preclude a finding, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of a supervision order, or that such an order will sufficiently mitigate the respondent's risk as to ensure adequate protection of the community. They were all matters taken into account by Dr Hall and Ms Hasson. While it is not their role to determine whether the risk that would remain, if the respondent were subject to a supervision order, would be acceptable or unacceptable, nor to express an opinion on that issue, their evidence provides guidance as to whether the respondent's risk could be managed in the community from a clinical perspective. Dr Hall was of the view it could be, and Ms Hasson's evidence did not suggest to the contrary, notwithstanding the factors referred to be the applicant.
Having regard to all of the evidence, I am satisfied that the respondent will substantially comply with the standard conditions and that the proposed supervision order will ensure adequate protection of the community.
As for the proposed accommodation, I have already dealt with the concern about potential inadvertent contact with one of the respondent's victims. It is regrettable, but, ultimately, it is a possible occurrence that will need to be managed in accordance with the conditions of the supervision order. The respondent's circumstances and matters such as the designation of exclusion zones will remain under review. Should an inadvertent encounter occur, and if it appears it may be a recurring issue, it will be incumbent on those having responsibility for the respondent's supervision to take appropriate steps, which may include a review of his place of residence.
The question of whether the respondent's father is an appropriate person to be providing accommodation and support to the respondent has been a vexed one, for the reasons identified by the applicant, which have been discussed at length above. Taking into account the views of Dr Hall and Ms Hasson, and having regard to the information obtained by Ms Comery from the respondent's father, I am satisfied that whatever views he might have held some three years ago, the most recent indications are that he does not hold anti-social views in respect of the police or the respondent's offending, and that he genuinely wishes to assist his son comply with any supervision order so as to avoid a return to custody. Of course his preparedness to comply with the requirements of the authorities to be allowed to enter and search his home, and his resolve to attend supervision sessions with his son, remain to be tested, but on the available evidence I am satisfied he will engage appropriately with the authorities. As Ms Hasson said, it is preferable that the respondent be in accommodation where he will have emotional support, rather than be in temporary accommodation and isolated, especially given that isolation is a risk factor for him.
While it is the case that the respondent's offending as an adult has occurred while he has been living with his father, which suggests his father does not provide the sort of support that will assist the respondent to avoid recidivism, a significant period of time has passed, the respondent has served the lengthiest of his sentences, and I am satisfied both the respondent and his father are now better equipped to work together to prevent a relapse by the respondent.
It will be necessary to ensure that the respondent re-engages with counselling, makes efforts to find employment (although it must be accepted that that may be difficult for some time) and finds constructive leisure activities. However, it is appropriate at this time that he be prohibited from joining or attending any club or association where children might be in attendance. Despite some indication in the materials that consideration had been given to allowing the respondent to attend the miniature railway club, that should not occur until a time is reached, if at all, in the assessment of those having the care and supervision of the respondent that his involvement with such a club no longer poses a risk of reoffending.
In my opinion, all of the conditions of Annexure A are appropriate, necessary and sufficient at this stage to ensure adequate protection of the community. Despite the respondent's offending by the use of the internet, I accept Dr Hall's evidence that it would be counterproductive to his pro-social reintegration into society to deny the respondent the use of the internet completely. The restrictions and obligations in the conditions are sufficient to prevent use of the internet in a way that would lead to reoffending, and will allow for adequate monitoring of his use.
The original proposed supervision order contained a condition that the respondent was to 'undertake medical testing or treatment, including with anti-depressant medication, as directed by the CCO in consultation with a medical practitioner or medical practitioners'. On its face, such a condition would appear to oblige the respondent to take SSRI medication if it was prescribed for him. Dr Hall was of the view that such medication would be beneficial for the respondent, but he did not consider it necessary to enable the respondent's risk to be managed within the community from a clinical perspective. The respondent has indicated he is unwilling to take such medication. I accept the evidence of Dr Hall and I do not consider the respondent should be obliged to take such medication. For the avoidance of any doubt, I am of the view that there should be an exception in respect of SSRI medication in the relevant condition, as appears in condition 32 of Annexure A. A consequential change is then required to condition 36 to clarify that his obligation to comply with anti-libidinal treatment applies only if he has consented to such treatment.
Otherwise, I am satisfied that it is appropriate for the respondent to be released on a supervision order in accordance with Annexure A.
Duration of the supervision order
As to the duration of the supervision order, I have had regard to the differing views of Dr Hall and Ms Hasson set out above. While I accept Ms Hasson's evidence that what is appropriate now may not be appropriate in five years' time in terms of the conditions of a supervision order, and that the level of the respondent's risk may change, I also accept the evidence of Dr Hall that the respondent's paedophilia, the fact that he has not completely embraced the significance of the diagnosis, the other continuing risk factors and that fact that the respondent is still quite young mean that the respondent will need to be supervised in the community for a period in the order of 10 years if his risk is to be adequately managed. I have regard to the fact that the State can bring an application for a further supervision order towards the end of the term of a supervision order, and the determination of whether such an order is appropriate can be made on the basis of the evidence at that time.[387] However, it is also possible for an application to be made to amend the conditions of a supervision order, if they are no longer appropriate.[388]
[387] HRSO Act, s 36.
[388] HRSO Act, s 49.
In my opinion, the enduring nature of the respondent's paedophilia and his history of offending warrant a longer period of supervision than was recommended by Ms Hasson. I consider that an appropriate period of supervision at this stage is eight years.
Anonymisation and Suppression order
Although the address to which the respondent will be released in accordance with the supervision order is not stated in these reasons, there will be a suppression order prohibiting publication of that address, including the suburb in which the property is located.
There have in the past been incidents of harassment occurring at premises being used to house persons released under the DSO Act on supervision orders that have resulted in the premises being compromised, in the sense that they could no longer be used for that purpose. There are also legitimate concerns about the welfare of government officers who provide supervision and are required to attend such premises. In this case the premises are on private property owned by the respondent's father. I have reached the conclusion, after careful consideration, that he is an appropriate support for the respondent. It would be unacceptable if his positive resolve to assist his son were to be undermined by his home being compromised in the manner I have described. For those reasons, a suppression order is appropriate.
I have also determined that it is appropriate to anonymise the name of the respondent to protect the privacy of his victims and also to protect the respondent's father for the reasons given in the preceding paragraph.
Commencement date
Section 27(3) of the HRSO Act provides that the date from which a supervision order has effect must not be earlier than 21 days after the date the order is made, unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
I have been advised by the applicant that 27 January 2021 is the earliest practically feasible date for the supervision to take effect. This will allow core supports from COMU, SOMS and UnitingCare West to work with the respondent. It will also allow contact and rapport to be established by COMU and SOMS with the respondent's father. Finally it will allow for an updated environmental assessment to take place.
Order
I rescind the interim detention order made on 18 December 2019, effective upon the coming into operation of the following order.
I order that, when not in custody, the respondent is to be subject to conditions in the terms of the Supervision Order annexed to these reasons, and that the order is to have effect from 27 January 2021 for a period of 8 years.
The publication of the address, including the suburb of the property, at which the respondent will be residing when released, according to the Supervision Order made 23 December 2020, is prohibited.
Annexure A
IN THE SUPREME COURT OF WESTERN AUSTRALIA
SO 5 of 2019
IN THE MATTER of the High Risk Serious Offenders Act 2020 (formerly under the Dangerous Sexual Offenders Act 2006)
THE STATE OF WESTERN AUSTRALIA Applicant
-and-
PCA Respondent
_______________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 23 DECEMBER 2020
_______________________________________________________________________
The Court, having found pursuant to section 7 and section 48(1) of the High Risk Serious Offenders Act 2020 that there is an unacceptable risk that the Respondent would commit a serious offence if not subject to a continuing detention order or a supervision order, orders that the Respondent be the subject of a supervision order pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020, for a period of 8 years from 27 January 2021 on the following conditions:
You, PCA, must:
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of your current name and address.
Report to and receive visits from a CCO as directed by the court.
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a CCO, which includes complying with any reasonable direction of the CCO (including a direction for the purposes of section 31 or 32 of the High Risk Offenders Act 2020).
Not leave or stay out of the State of Western Australia without the permission of a CCO.
Not commit a serious offence as defined in section 5 of the High Risk Offenders Act 2020 during the period of the Order.
Be subject to electronic monitoring under section 19A of the High Risk Offenders Act 2020.
ADDITIONAL CONDITIONS
Residence
Take up residence at [REDACTED] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.
Reporting to a CCO and supervision by a CCO
Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this order.
Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO.
Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO.
Reporting to WA Police
Report to the Officer-in-Charge of the Sex Offender Management Squad at the Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your residence and/or vehicle, or your person for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such material that the Police Officer believes to contravene the conditions of this order.
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence pursuant to condition 16.
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any of your associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with Victims
Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice; or is conducted in a manner approved in advance by the CCO, who may give such approval only with the express consent of the victim.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and you must avert your gaze from such victim at all times.
Report to the CCO and WA Police any direct or indirect contact with any victim of your sexual offending on the next occasion you report to the CCO or Police.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.
Criminal conduct
Not commit any other criminal offence, the maximum penalty for which includes imprisonment, which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203 or s 557K of the Criminal Code1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not possess, or consume, or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Medications/Mental Health
Undertake medical testing or treatment, including with anti-depressant medication, as directed by the CCO in consultation with a medical practitioner or medical practitioners, except that you are not required to take Selective Serotonin Reuptake Inhibitor medication unless you consent to do so.
Comply fully with any treatment prescribed pursuant to condition 32.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect, that you have ceased, or intend to cease, taking medication or undergoing pharmaceutical treatment contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment.
Comply with any medication regime in accordance with a medical practitioner's direction and comply with all testing to monitor your compliance with medical treatment, including anti-libidinal treatment to which you have consented, as directed by a CCO.
Prevention of high-risk situations
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and Police Officer upon request.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Attend for and submit to urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.
Provide a valid sample for testing pursuant to condition 41.
Not possess or purchase or consume or use alcohol.
Not go to, enter in or remain at any alcohol licensed premises unless permitted or required to do so for the following reasons:
a. For the purpose of averting or minimising a serious risk of death or injury to yourself or another person.
b.For a purpose, and duration approved in advance by a CCO.
c.On the order of a CCO or a Police Officer.
Not remain in the presence of any person who you know, or ought to know, to be affected by a prohibited drug.
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place.
Advise a CCO and WA Police of every electronic device used by you to access the internet and the location of that device.
Permit a CCO or WA Police at any location as nominated by them, to access any computer or device capable of storing digital data, for the purpose of ascertaining your computer activities, and provide to the CCO or WA police upon request any passwords or any other device unlocking means required for such access.
With respect to any computer or telephone or other electronic device in your possession that is connected, or capable of connecting, to the internet or has been used by you to access the internet, not delete or otherwise remove or disguise any search histories or logs capable of identifying your activities on that device, without the approval in advance of a CCO or Police Officer.
Not delete any data from any computer or electronic device in your possession without prior permission from the CCO or WA Police.
Not conduct computer searches for, nor collect or possess in either electronic or permanent form, images of children, whether indecent or not, with the exception of images of your immediate family that are not indecent images. Possession of such images depicting a child or children may be authorised by a CCO.
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
a) the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
b) the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide details of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.
On the next occasion you report to your CCO, report the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship.
Not form any domestic relationship with a person who has a child or children under the age of 18 years in their care either full time or part time.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca23 DECEMBER 2020
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