The State of Western Australia v Pendleton
[2023] WASC 267
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PENDLETON [2023] WASC 267
CORAM: VANDONGEN J
HEARD: 16 MAY 2023 AND FURTHER WRITTEN SUBMISSIONS RECEIVED 26 MAY AND 31 MAY 2023
DELIVERED : 20 JULY 2023
PUBLISHED : 20 JULY 2023
FILE NO/S: SO 6 of 2011
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MARK PENDLETON
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application for restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make a restriction order to ensure adequate protection of the community - Whether community can be adequately protected by supervision of the respondent - Relevance of fact that respondent to be immediately deported if released from custody
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA)
Corruption and Crime Commission Act 2003 (WA)
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA) (repealed)
High Risk Serious Offenders Act 2020 (WA)
Migration Act 1958 (Cth)
Police, Crime, Sentencing and Courts Act 2022 (UK)
Sentence Administration Act 2003 (WA)
Sexual Offences Act 2003 (UK)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | F Allen |
| Respondent | : | D McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | David McKenzie Legal |
Case(s) referred to in decision(s):
A v Corruption and Crime Commission [2013] WASCA 288
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Garlett v The State of Western Australia [2022] HCA 30
Pendleton v The Queen [2002] WASCA 4
R v Teesside Magistrates Court [2015] EWCA Civ 7; [2015] 1 WLR 1695
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Woodward [No 3] [2023] WASC 83
YBL v Director of Public Prosecutions (WA) [2013] WASCA 221; (2013) 45 WAR 432
VANDONGEN J:
Introduction
On 1 November 2021, the State of Western Australia applied under s 64 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) for Mr Pendleton's detention under a continuing detention order to be reviewed, and for the review to take place as soon as practicable after 19 May 2022.
For the following reasons, I have concluded that Mr Pendleton remains a high risk serious offender. Further, I have concluded that I should affirm the continuing detention order.
Background
On 20 January 2012, an order was made by McKechnie J pursuant to the provisions of the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) that Mr Pendleton be detained in custody for an indefinite term for care, control and treatment: Director of Public Prosecutions (WA) v Pendleton [2012] WASC 22 (Pendleton). That order was made in circumstances in which Mr Pendleton had served a lengthy sentence for a large number of sexual offences committed against children, and for child pornography offences.
The following is an overview of the offending in respect of which Mr Pendleton was then serving a term of imprisonment:
Indictment IND 1627/2000 - 8 November 2000 · Possessing child pornography (6 counts)
· Indecent dealing with a child under 13 (20 counts)
· Procuring a child under 13 to do an indecent act (18 counts)
· Sexual penetration of a child under 13 (9 counts)
· Indecently recording a child under the age of 13 (76 counts)
· Showing offensive material to a child under 16 (1 count)
(continues over)
Sentenced 19 February 2001 to 12 years immediate imprisonment, not eligible for parole, and an order for indefinite imprisonment made.
Appeal allowed 23 January 2002: order for indefinite detention quashed, made eligible for parole.[1]
Indictment IND 1685/2001 - 15 January 2002 · Indecently recording a child (14 counts)
· Procuring an indecent act from a child (27 counts)
· Supply child pornography (1 count)
· Possession of child pornography to sell or supply (1 count)
Sentenced 21 June 2002 to 4 years imprisonment with parole eligibility, to be served cumulatively on the earlier sentence. Indictment IND 1333/2002 - 6 August 2002 · Possession of child pornography (3 counts)
Sentenced 23 March 2003 to 6 years and 6 months imprisonment with parole eligibility, to be served cumulatively on the earlier sentence.
Offending occurred in 2006 - 2008 while in prison serving the earlier sentences.
[1] Pendleton v The Queen [2002] WASCA 4 [39] - [ 40].
The facts relating to those offences were set out in detail in Pendleton. The following extract from Pendleton [8] - [30] provides a sufficient summary of Mr Pendleton's personal circumstances and offending as at that time:
The respondent's background
(a) Work, education and citizenship
The respondent was born as a British citizen in the United Kingdom on 31 October 1959 and emigrated to Australia ten years later. The respondent took out Australian citizenship on 23 August 1985. He renounced his Australian citizenship in 2009. Without a visa he has become an unlawful noncitizen. He signed a request for removal from Australia on 11 January 2011.
Between 1976 to 1983 and then between 1986 to 1992 he worked in the retail sector as a manager.
Between 1985 and 1986 he served as a private in the Australian Army.
Between 1993 and 1995 he studied and completed a Bachelor of Arts, Education (Early Childhood Education) at Edith Cowan University. This included five sessions of practical experience of two weeks duration at five different schools involving either Year 1 or pre-primary students and one session of practical experience at a primary school for a period of ten weeks.
In 1996 the respondent commenced teaching at 'A' Primary School. In 1997 and 1998 he taught at 'B' Primary School. In 1999 he taught at 'C' Primary School. In the year 2000 he commenced teaching at 'D' Primary School but very shortly into the school year, on 24 February 2000, he was arrested.
(b) Personal circumstances
The respondent was first married in 1981 but the marriage broke down 18 months later.
His second marriage occurred in 1984 or 1985. His first son was born in 1987 and his second child, a son, was born in 1989.
In 1993 the respondent separated from his second wife. He was carer for his sons and remained single.
(c) Criminal history apart from sexual offending
On 23 December 1992 the respondent was sentenced to 12 months probation for stealing from Woolworths while he was employed between 1991 and 1992.
Other than his sexual offending, the respondent's criminal history is unremarkable and does not bear at all on his risk of sexual offending in the future.
(d) Travel
Between 16 September and 8 October 1995 the respondent travelled to Thailand. He travelled again to Thailand between 4 and 18 April 1998.
Between 1 and 15 July 1999 he visited Thailand, China and Laos.
The circumstances of his apprehension for sexual offending
On 24 February 2000, police officers attached to the Child Abuse Investigation Office went to 'D' Primary School and met with the respondent. They asked him to accompany them to search his residence at Herne Hill. The respondent asked if he was under arrest and when advised that he was not, said he would drive his own vehicle to meet police at his house. However, he did not go directly home. He had with him a cardboard box containing much incriminating material, including children's underwear, video cassettes, documents and numerous photographs of young girls. The respondent made a detour on his way home to hide the box on a property near his home. Fortunately, a 14yearold boy saw the respondent driving onto private property. The next morning his older brother located the box which the respondent had unsuccessfully tried to hide, by pushing it under a tree.
Summary of sexual offending
Around 1993 he first offended against the child N, who is not able to be identified. He offended against her again in 1994 after teaching practicums at two different schools in 1993.
In 1995 he offended against MD.
In 1996, in his first placement as a teacher at 'A' Primary School, he offended against three students.
Between 1997 and 1998 he offended against two more students at 'B' Primary School.
In 1999 he offended against ten children while teaching at 'C' Primary School.
At the commencement of 2000 he supplied child pornography to another.
In 2002 he was caught in possession of child pornography he had created while in prison.
The respondent was sentenced in the District Court on IND 1627/2000 on 19 February 2001. The head sentence was a term of 12 years' imprisonment without parole; indefinite sentence imposed.
He was sentenced to a further term of 4 years' imprisonment cumulative in 2002 for more offences in the same period as those of the earlier indictment.
In 2003 he received a further 6 months' cumulative for three offences of child possession. This related to material he had created in prison - 29 pencil drawings of children's genitalia, extensive handwritten notes outlining stories about sexual relations with children, all in the nature of fantasy. The judge considered they were at the low end of the scale because they did not involve actual exploitation.
As McKechnie J noted in Pendleton, the original sentence was due to expire on 12 March 2011, at which point Mr Pendleton would likely have been immediately deported to the United Kingdom (UK) but for the fact that an application for a continuing detention order was made by the Director of Public Prosecutions under the DSO Act.[2]
[2] In YBL v Director of Public Prosecutions (WA) [2013] WASCA 221; (2013) 45 WAR 432 [65], the Court of Appeal rejected Mr Pendleton's appeal against the decision to make a continuing detention order. It was concluded that it could not be said that there was no possibility that Mr Pendleton would not remain in or return to Western Australia for some period after being released from custody.
On 20 May 2013, and then on 29 October 2013, while Mr Pendleton was still subject to the continuing detention order that was made in 2012, he was sentenced in relation to further offences:
Indictment IND 85/2012 - 17 August 2012 · Conspired with another to commit an act in Thailand, or Vietnam, or both, which would be an offence in Western Australia (2 counts)
· Attempted unlawful carnal knowledge of a girl under 13 (1 count)
Sentenced 20 May 2013 to 6 years and 6 months imprisonment, concurrent with the earlier sentences.
Offending occurred while in prison serving the earlier sentences.
Indictment IND 307/2013 - 13 March 2012 & 17 April 2012 · Unlawful carnal knowledge of a child under 13 (1 count)
· Indecent dealing with a child under 14 years (3 counts)
· Indecently recording a child over 13 and under 16 (1 count)
· Sexual penetration of a child over 13 and under 16 (4 counts)
Sentenced 29 October 2013 to 4 years imprisonment, to be served cumulatively on the federal sentence.
Offending occurred in 1977 - 1983, and 1993 - 1994.
The offending the subject of the two conspiracy charges occurred in 2006, while Mr Pendleton was in custody. Mr Pendleton was found guilty by a jury of two counts of conspiring with another prisoner to engage in sexual intercourse with a person who is under the age of 16 years. When sentencing Mr Pendleton, the trial judge found as follows:
In 2005 you took part in a sexual offenders treatment program at Casuarina Prison. During that program you met Robert Cummins who was also participating. You formed a friendship. One of the factors that contributed to this friendship was that you had similar victim profiles, that is, you were sexually attracted to children of a similar age and gender. There was talk about your past travels to Asia and the possibility of travelling there again in the future. In 2006 you were both transferred to Karnet. Your discussions continued and developed into a positive plan. The plan was that on release you would both travel to Thailand and offend against children. The plan also involved each of you setting up business there. In your case it was to be a business making porcelain dolls dressed in traditional costumes. In Robert Cummins's case it was to be a business … making clothes or canvas items utilising skills he had acquired in prison. It was intended that these businesses would provide both of you with a source of income and access to potential child victims. This was to be achieved by setting up the business in a rural and relatively impoverished area and employing local women with young children. The businesses would be compatible but would also enable both of you to access a broader pool of victims. Robert Cummins was released on parole in February 2008. You and he continued to communicate with each other thereafter. This included by telephone. Robert Cummins began communicating with women in Thailand using Internet chat room sites. Some of these communications were printed out and provided to you. Included in these communications were photographs of children. You and Robert Cummins referred to these photographs in your telephone conversations and engaged in sexual innuendo and banter about them. It is clear from those calls that you saw these children as prospective victims for both Robert Cummins and yourself. Robert Cummins referred one of the Thai women to you and acted as a conduit for your Internet communications with her. You also had at least one telephone conversation with that woman. There were references in your calls with Robert Cummins to providing gifts and money to the women. I find that this was intended to ingratiate you both with those women and their children. It was an exercise in grooming to make access to the children for sexual purposes easier. You both intended to exploit the poverty of these families to achieve your evil objectives. The callousness of your attitude was revealed when you spoke to Robert Cummins about the ease with which a family could be purchased in Thailand. Robert Cummins also made inquiries on the Internet about businesses and real estate for lease or purchase. He obtained information about the Thai language, culture and the legalities of establishing a business in Thailand. These inquiries were pursued on behalf of you both and to further your mutual intentions. To the extent that you were able, given your continued imprisonment, you assisted Robert Cummins. This included providing ideas for products, drawing clothing designs and encouraging the women with whom you were communicating to plead Robert Cummins's cause to her cousin, a woman with whom he had been in contact. You also took steps to learn the Thai language to facilitate your move to Thailand. Whilst Robert Cummins was able to do more directly because of his circumstances your involvement was equal to his and what he did was done for you both. In my view your culpability is at least equal to his. The conspiracy came to an end in 2008 when police executed search warrants. By that stage the planning was well advanced and many steps had been taken to carry out the plan. It is fortunate that the plan was thwarted because I do not doubt your willingness and desire to carry it out. Had it been carried out the potential for many young children in Thailand to have been sexually abused by you and Robert Cummins would have been realised.
Later, as the table above at [7] demonstrates, on 29 October 2013 Mr Pendleton was convicted in the District Court of some further offences. The first group of offences were committed in circumstances in which Mr Pendleton befriended the victim's mother and visited her during his lunch breaks and on the weekends. He took photographs of the victim while she was naked, after telling her that he would enter the photographs into a competition. He then progressed to indecently touching and sexually penetrating her.
The second group of offences related to a different child, who was a family friend of Mr Pendleton. Between May 1993 and December 1994 Mr Pendleton visited the victim at her home on several occasions, where he engaged in sexual conduct with her, including sexual intercourse. On one occasion he took an indecent photograph of the victim. Mr Pendleton also committed sexual offences against the victim while they were driving to his brother's house, where he planned to take photographs of the victim.
The sentences imposed for all of the above offences expired on 19 May 2021. However, as Mr Pendleton was then still subject to the continuing detention order made in 2012, he remained in custody.
The DSO Act was repealed on 26 August 2020,[3] and the HRSO Act came into force on the same day. Section 125 of the HRSO Act provides as follows:
If an order made, direction given or summons or warrant issued under a provision of the repealed Act is in effect on commencement day, the order, direction, summons or warrant -
(a)continues in effect; and
(b)is taken to have been made, given or issued under the corresponding provision of this Act.
[3] HRSO Act s 123.
As a result, on and from 26 August 2020 the order made by McKechnie J under the DSO Act continued in effect and is taken to have been made under the corresponding provision of the HRSO Act. This means that from 26 August 2020 Mr Pendleton is taken to have been subject to a continuing detention order made under the HRSO Act.
On 2 November 2021, the State filed an application pursuant to s 64 of the HRSO Act, for an order that Mr Pendleton's detention under the continuing detention order made on 20 January 2012 be reviewed pursuant to s 66. The State sought an order that Mr Pendleton's detention under the continuing detention order be reviewed as soon as possible after 19 May 2022, pursuant to s 64 of the HRSO Act.
Some procedural history
It is necessary to refer to some of the procedural history of this matter, if only to explain why it has taken so long for the review application to be heard and determined.
As I have already noted, the State filed an application on 2 November 2021 pursuant to s 64(1) of the HRSO Act for an order that Mr Pendleton's detention, under the continuing detention order taken to have been made under the HRSO Act, be reviewed in accordance with s 66 of that Act.
Pursuant to s 64(2)(a) the State must apply under s 64(1) as soon as practicable after the end of the period of one year commencing when the offender is first in custody on a day on which the offender would not have been in custody had the continuing detention order not been made. Section 64(2)(b) provides that thereafter, the State must apply under s 64(1) as soon as possible after the end of the period of two years commencing when the detention was most recently reviewed.
Accordingly, the effect of those provisions is that while it is open to the State to make an application for an offender's detention under a continuing detention order to be reviewed pursuant to s 64(1) at any time, the State is obliged to make such an application within the time periods provided for in s 64(2).
In this case, although the State filed its application before the end of the one-year period referred to in s 64(1), the application sought a review of the continuing detention order 'as soon as practicable after 19 May 2022'. No doubt that date was chosen because it was one year after the date that Mr Pendleton's sentences expired.
The hearing of the review application was initially listed to take place on 20 May 2022. However, on 17 May 2022 the hearing was adjourned, and it was re-listed for hearing on 28 July 2022.
On 27 July 2022 the hearing was again adjourned. This occurred after Derrick J, who was listed to hear the review application, raised several issues with the parties about the state of the evidence relating to Mr Pendleton's immigration status and the prospect that he might be subjected to restriction orders in the UK if he were to be deported to that country upon release from prison.
To understand why Derrick J was of the view that these issues were of importance in the context of the application for a review, it is necessary to pause here to provide some further background, extracted from YBL v The Director of Public Prosecutions[2013] WASCA 221; (2013) 45 WAR 432 [10] - [24]:[4]
[4] In this case the Court of Appeal considered Mr Pendleton's appeal against the detention order that was made by McKechnie J in Pendleton.
From 11 March 2000 to 12 March 2011 inclusive the appellant was serving terms of imprisonment imposed in respect of a series of child sexual and child pornography offences. Not having been granted parole, the appellant was due to complete his total effective sentence on 12 March 2011.
The appellant was born in England in 1959 and moved to Australia when he was aged around 10. The appellant became an Australian citizen on 23 August 1985. On 5 August 2009, the Department of Immigration and Citizenship (DIAC) received an application dated 20 July 2009 from the appellant to renounce his Australian citizenship.
On 4 March 2010 the appellant's application to renounce his Australian citizenship was granted, with the result that the appellant ceased to be an Australian citizen: Australian Citizenship Act 2007 (Cth), s 33(8).
As a result, the appellant became a 'non‑citizen' for the purposes of the Migration Act, s 35(3). On ceasing to be an Australian citizen, the appellant was taken to have been granted an ex‑citizen visa, which is a permanent visa: Migration Act, s 35(3).
On 30 July 2010 DIAC issued to the appellant a notice of intention to consider cancellation of his ex‑citizen visa under s 501(2) of the Migration Act.
On 19 August 2010 DIAC received a letter from the appellant in which he provided comments in relation to the possible cancellation of his ex‑citizen visa. The appellant requested 21 or 28 days to see family and finalise affairs before departing Australia. The appellant stated 'my whole family is here in Western Australia'.
On 9 December 2010 a delegate of the Minister for Immigration and Citizenship (the Minister) cancelled the appellant's ex‑citizen visa on character grounds. Also on that date, the appellant was granted a bridging visa, known as a 'Class WE‑050 bridging visa', on the basis that he was in 'criminal detention' because he was serving terms of imprisonment following conviction for an offence.
On 21 December 2010 notification of the decision to cancel the appellant's ex‑citizen visa was sent to the appellant by registered mail. On 11 January 2011 the appellant signed a Request for Removal from Australia form.
On 2 March 2011 the amendments made by s 3 and s 4 of the DSO Amendment Act came into operation.
On 4 March 2011 the first respondent (the Director of Public Prosecutions (WA)), filed an application for orders under s 14 and s 17(1) of the DSO Act.
On 9 March 2011 the appellant was charged with a single count of conspiring with E under s 558(1)(a) of the Criminal Code (WA) to do any act in Thailand or Vietnam or both which, if done in Western Australia, would be an indictable offence under s 320 of the Criminal Code, and which is an offence under the laws in force in Thailand or Vietnam or both (State conspiracy charge).
On 10 March 2011 DIAC issued the appellant with a Notice of Removal from Australia, indicating that he would be removed from Australia on 12 March 2011 at 15:35 hours WST.
On 11 March 2011 the appellant was remanded in custody on the State conspiracy charge and DIAC was informed that the appellant was no longer due to be released from criminal custody on 12 March 2011.
Also on 11 March 2011, at a preliminary hearing under the DSO Act, McKechnie J made an order under s 14(2)(b)(i) that the appellant be detained in custody pending the final hearing under the DSO Act.
On 20 January 2012 McKechnie J ordered that the appellant be detained in custody for an indefinite term for control, care or treatment pursuant to s 17(1)(a) of the DSO Act.
From this it can be seen that had Mr Pendleton not been made the subject of a detention order on 20 January 2012, and had he not been the subject of further charges, there was a real prospect that he would have been deported upon release from custody.
On 27 July 2022 Derrick J adjourned the hearing of the review application and relisted it to be heard on 14 November 2022. He also made the following orders:
3.On or before 30 August 2022 and pursuant to sections 73 and 75 of the Act, the Applicant file and serve on the Respondent's legal representative a report prepared by an officer of the Australian Border Force in which the officer deals with, and expresses their opinion in relation to, questions and topics to be advised by the Applicant, such questions and topics to include the immigration status of the Respondent and the likelihood of him being immediately taken into immigration detention and deported to the United Kingdom (UK) if he is released on a supervision order under the Act.
4.On or before 30 August 2022 and pursuant to sections 73 and 75 of the Act, the Applicant file and serve on the Respondent's legal representative a report prepared by an officer of the UK's Crown Prosecution Service or other appropriate UK agency in which the officer deals with, and expresses their opinion in relation to, questions and topics to be advised by the Applicant, such questions and topics to include the following:
(1)Whether the Respondent meets the criteria for being made the subject of an application for a notification order under s 97 of the Sexual Offences Act 2003 or an application for a Sexual Harm Prevention Order (SHPO) under the Sexual Offences Act 2003;
(2)The likelihood of the Respondent, if he is released from prison and deported to the UK, being made the subject of an application for a notification order and, if he is, the likelihood of a notification order being made in respect of him;
(3)The likely conditions of any notification order made in respect of the Respondent;
(4)The likelihood of the Respondent, if he is released from prison and deported to the UK, being made the subject of an application for a SHPO and, if he is, the likelihood of a SHPO being made in respect of him; and
(5)The likely conditions of any SHPO made in respect of the respondent.
5.The writers of the reports referred to in orders 3 and 4 above are to set out in their reports the basis for any opinions expressed by them and are not to include in their reports information or opinions based on communications with a third person unless details of the communication that are sufficient to identify the person with whom the communication was held, the date of the communication and the substance of the communication are included in the report.
6.The UK's Crown Prosecution Service or other appropriate UK agency referred to in order 4 above may liaise with the Department of Justice as to a management plan (if appropriate) for the Respondent to be supervised in the community.
7.The report referred to in orders 3 and 4 above are upon their provision to the Applicant to be provided fo1ihwith to Dr Peter Wynn Owen, Psychiatrist, and Ms Julie Hasson, Psychologist, to enable them to prepare supplementary report in which they express their opinion as to whether the making of a notification order or a SHPO or both will ensure the adequate protection of the community in the UK.
The hearing of the review application was then listed before me. On 4 November 2022, shortly before the review hearing was due to take place, my Associate sent an email to both parties. The relevant part of that email was in the following terms:
As the parties will no doubt appreciate, if the Court were to ultimately find that the Respondent remains a high risk serious offender then it would be required to either affirm the continuing detention order pursuant to s 68(1)(b)(i) of the High Risk Serious Offenders Act 2020 (WA), or rescind the continuing detention order and make a supervision order pursuant to s68(1)(b)(ii) of the Act. However, s 29 of the Act provides that the Court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the Respondent will 'substantially comply with the standard conditions of the order as made'. The Respondent bears the onus of proof as to that issue.
The Court would be assisted by submissions from the parties about the proper construction of s 29(1) of the Act, and in particular how a Court might be satisfied that an offender will 'substantially comply' with all of the standard conditions that are set out in s 30(2), in circumstances where it might be open to a Court to conclude that the relevant offender will be immediately taken into immigration detention upon release from continuing detention.
On 9 November 2022, the State replied in the following terms:
I refer to the above matter, listed before his Honour for a HRSO review hearing on Monday, 14 November 2022.
The State is of the view that in all of the circumstances of this case we are not currently able to formally concede that the relevant risk may be managed in the community, absent a clear and certain statement as to the accommodation able to be provided to the Respondent in the United Kingdom and whether or not UK authorities will work with the Western Australian Department of Justice to develop a management plan for him.
Further, in light of the additional information set out in the email below from the Metropolitan Police Service in the United Kingdom, the State is now considering whether it is necessary that the HRSO legislation be amended to allow some sort of arrangement with deported offenders.
In the circumstances, the State seeks that Monday's HRSO review hearing be adjourned to a date next year to allow the State sufficient time to consider the proper construction of s29(1) of the HRSO Act. In particular how a Court might be satisfied that an offender will "substantially comply" with all of the standard conditions that are set out in s 30(2), in circumstances where it might be open to a Court to conclude that the relevant offender will be immediately taken into immigration detention upon release from continuing detention.
In the event the Respondent is agreeable to an adjournment, the State will liaise with listings and expert witnesses to obtain a suitable date for a new review hearing. (emphasis added)
As can be seen, the State clearly considered that the issues raised by the court in advance of the hearing were of sufficient importance to contemplate the need to make amendments to the HRSO Act. It is understandable that the State may have formed that view. As will become apparent, the effect of the HRSO Act may well be that an offender who is the subject of an application for a restriction order, or for a review of a continuing detention order, and who is liable to be immediately deported upon release from prison, will never be released on a supervision order. This is so even if the offender might otherwise have been able to satisfy a court that it is appropriate to make such an order, and where the State positively supports such an order being made.
The idea that Mr Pendleton and others in a similar situation face the prospect of never being released on a supervision order is not new. This was foreshadowed almost 12 years ago by McKechnie J in Pendleton [270] - [279], albeit in the context of the DSO Act:
I have considered whether the community could be adequately protected if the respondent was subject to supervision in the community.
There are two reasons why supervision would not be suitable.
The first reason is the inevitability that the respondent will be deported the moment he is released from custody. He has been given a notice of his removal, as soon as is reasonably practicable, as an unlawful non citizen who asked the Minister, in writing, to be removed: Migration Act 1958 (Cth) s 198(1). Because of his substantial criminal record, he will not be eligible for the grant of another Australian visa.
Removal from Australia will also remove the respondent from the supervisory jurisdiction of this court. None of the conditions for his release into the community that might ensure its adequate protection could be enforced.
The second reason is that I have no confidence that the respondent could presently comply with a supervision order. I note in his favour that the respondent has no issues with drugs or alcohol. Mr McKenzie's cross examination of Dr Tanney and Dr Wynn Owen explored some of the external checks that could be put in place to minimise the possibility of re offending. These relate to conditions restricting his employment and residence to avoid contact with children, conditions restricting his ability to groom children, and conditions on the use of the internet.
Mr McKenzie also points to the fact that the respondent, if released, will have other obligations under ANCOR.
These external checks, important as they are, do not give me sufficient confidence in the adequate protection of the community in the absence of corresponding internal controls within the respondent. His relapse prevention plan was described by Ms Boyle as 'of concern', 'lacks solid details, is fluid and unrealistic'. Ms Boyle described his relapse prevention strategies as 'basic'.
The present position is that the respondent's fantasies are not able to be controlled by him. He has demonstrated no potential regime of control. He is capable of considerable planning and effort in pursuing his paedophilia and without internal controls, supervision will inevitably breakdown and he will offend further.
The only conclusion on the evidence is that the respondent is a serious danger to the community and must be detained in custody for an indefinite term for control, care or treatment.
I am aware of the consequences of this finding. Because of the first reason why supervision is not feasible, the respondent faces the real prospect that he will never be able to demonstrate, on annual review, that is his risk to the community may be adequately supervised outside detention. He would have to show such gains in overcoming his paedophilia that he was no longer regarded as a serious danger to any community. The only possibility, and it is not a strong possibility, is that such gains may be assisted by pharmacological intervention in some form of anti libidinal medication. That apart, the respondent's paedophilia is so entrenched that he faces the bleak possibility of life in detention forever.
Because the State indicated that it intended to explore the possibility of legislative reform, and because Mr Pendleton consented to an adjournment of the review hearing, I agreed to adjourn the hearing to 16 May 2023, notwithstanding the legislative command in s 66(1) of the HRSO Act that the review must be carried out as soon as is practicable.'
Unfortunately, by 16 May 2023 no legislative amendments had been made, and there were no indications that any amendments might be made in the near future, or at all. Accordingly, the hearing proceeded on that date.
In a directions hearing held prior to 16 May 2023, I made reference to a decision of the Chief Justice in The State of Western Australia v D'Rozario [No 3][2021] WASC 412. In written submissions that were filed in advance of the hearing, the State made the following submissions:
3.While the evidence presented by the applicant is sufficient to satisfy the Court that/leads [sic] to the inevitable conclusion that there would be an unacceptable risk to the community that the respondent would commit a serious offence if released without restriction, the State submits that this is a rare situation where it is not necessary for this Court to make a restriction order in relation to the respondent. (As foreshadowed by Quinlan CJ in The State of WA v D'Rozario [2021] WASC 412 [21] [sic])
4.This rare situation arises in the following circumstances:
a)The respondent ceased to be an Australian Citizen on 4 March 2010. He is currently the holder of a Bridging Visa E, on criminal detention grounds. This visa will cease by operation of law once if he is released from State custody. In practice, he will not hold a visa once he is released from criminal custody, and will become an unlawful non-citizen at that time;
b)Upon release from criminal custody in Western Australia, the respondent will be immediately taken into immigration detention by Australian Border Force (ABF).The respondent will be deported to the UK under escort;
c)The respondent meets the criteria to be subject to an application for a notification notice under the Sexual Offences Act 2003 (UK) for an indefinite period. The local Police force where the offender will be residing will be responsible for this notice being obtained and then for his ongoing management in the community. This notification notice will make the respondent a Registered Sex Offender (RSO) in the UK indefinitely. A RSO would be issued to the respondent immediately upon arrival in the United Kingdom, where arrangements are made that the respondent is met at London Heathrow Airport by the Metropolitan Police Operation Jigsaw Team;
d)In addition to his status as an RSO, as part of the risk assessment process conducted by the responsible Police force, consideration will be given to whether an application is to be made to the requisite court for a Sexual Harm Prevention Order (SHPO). The local force where he will be residing will need to decide what specific restrictive conditions or positive obligations are necessary to protect the public, based on the level of risk they deem the respondent poses to the community; and
e) Based on the respondent's criminal history the Metropolitan Police Service have confirmed that should the respondent wish to reside within their force area they would expect to make an application to the court for a SHPO. A sex offender notification notice, ensuring the respondent complies with the notification requirements under Part 2 of the Sexual Offences Act 2003 as if he had been originally convicted in the UK.
5. As a consequence of the particular circumstances of this case, the State submits it is open to the Court to find that the respondent does not remain a high risk serious offender, that is, that it is not necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against the unacceptable risk that the respondent will commit a serious offence.
Unsurprisingly, the respondent did not take any issue with those submissions. The respondent did, however, also submit that if the Court found that Mr Pendleton was a high risk serious offender then it should nevertheless conclude that it was appropriate to rescind the continuing detention order and to make a supervision order, pursuant to s 68(1)(b)(ii) of the HRSO Act.
At the conclusion of the hearing, and after hearing brief oral submissions from both counsel, I made orders requiring the parties to file further written submissions for the purposes of dealing with issues relating to the management of sexual offenders under the Sexual Offences Act 2003 (UK) (UK Act). Specifically, I sought written submissions regarding amendments made to that Act in November 2022 and March 2023.
Evidence
At the hearing on 16 May 2023, the State tendered the following evidence:
(a)seven books of materials (BoM), filed on 16 May 2022 (Exhibit 1);
(b)psychiatric report of Dr Wynn Owen, prepared under s 74 of the HRSO Act, dated 10 July 2022 (Exhibit 2);
(c)letter from Australian Border Force (ABF) to the State Solicitor's Office, dated 20 April 2023 (Exhibit 3) (April ABF Letter);
(d)letter from ABF to the State Solicitor's Office, dated 2 May 2023 (Exhibit 4) (May ABF Letter);
(e)letter from the UK Criminal Records Office (ACRO) to the Acting State Solicitor of Western Australia, dated 24 April 2023 (Exhibit 5) (ACRO Letter); and
(f)affidavit of Henry Mitchell Cooney, sworn 7 September 2022 (Exhibit 6) (Cooney Affidavit).
Volume 7 of the BoM contained the following reports, which were prepared specifically for the review application:
(a)Department of Justice's 'High Risk Serious Offender Treatment Progress Report' dated 14 April 2022, prepared by Ms Tania Wilson-Brown;
(b)psychological risk assessment prepared under s 74 of the HRSO Act, dated 2 May 2022, by Ms Julie Hasson; and
(c)Department of Justice's 'Community Supervision Assessment' dated 26 April 2022, by Ms Emma Cashmore.
Although the hearing of the review took place on 16 May 2023 (many months after these reports, and Dr Wynn Owen's report, had been prepared) neither party made any suggestion that updated reports were required.
Mr Pendleton tendered an affidavit sworn by his counsel, Mr McKenzie, on 24 April 2023.
Dr Wynn Owen also gave oral evidence at the hearing on 16 May 2023.
On a later date, after the review hearing had taken place, the parties advised that they were content for the Court to take into account a document titled Guidance on Part 2 of the Sexual Offences Act 2003 that was published by the UK Home Office on 11 September 2012, and most recently updated in March 2023 (2023 Guidance Document). A similar document was attached to the Cooney Affidavit, but it had become out of date due to amendments subsequently made to the UK Act.
Legislative framework and relevant principles
The relevant principles to be applied when undertaking a review in accordance with Part 5 of the HRSO Act have been discussed in several decisions of this court. None of those principles were in dispute between the parties in this case.
The principles were comprehensively set out by Derrick J in The State of Western Australia v Woodward [No 3] [2023] WASC 83 [17] - [40]. I gratefully adopt and apply what his Honour said about those principles in determining this review. The following is a summary of the principles insofar as they are relevant to my determination of this review.
On a review under s 66 the court is required to consider whether the offender 'remains a high risk serious offender'. If the court does not find that the offender remains a high risk serious offender, then it must rescind the continuing detention order. Conversely, if the court does find that the offender remains a serious high risk offender it must either affirm the continuing detention order or rescind the continuing detention order and make a supervision order.[5]
[5] HRSO Act s 68.
The definition of the term 'high risk serious offender' is contained in s 7(1) of the Act, which is in the following terms:
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.
A 'restriction order' is a 'continuing detention order' or a 'supervision order'.[6] A 'continuing detention order' is 'an order that the offender be detained in custody for an indefinite term for control, care or treatment'.[7] A 'supervision order' is 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate in accordance with section 30'.[8]
[6] HRSO Act s 3.
[7] HRSO Act s 26.
[8] HRSO Act s 27.
A 'serious offence' is, relevantly, an offence that is 'specified in Schedule 1 Division 1' of the Act.[9] Section 5(2) of the Act provides that an offence is also a 'serious offence' if it was 'an offence under a written law that has been repealed and the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence' under s 5(1). Section 5(3) of the Act provides that an offence is a 'serious offence' if it is an 'attempt … to commit an offence that is a serious offence' under s 5(1) or s 5(2). Further, s 5(5) provides that an offence against the law of the Commonwealth is a serious offence if it is an offence of a sexual or violent nature, the penalty for the offence is or includes imprisonment for seven years and the offence is prescribed to be a serious offence.
[9] HRSO Act s 5(1)(a).
Before the court can find under s 68(1)(b) that the offender remains a high risk serious offender, it must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'. Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.
Under s 7(1) the court is required to make a judgment about the risk that an offender will commit a serious offence and to ask itself whether that risk is unacceptable, by reference to the likelihood that the offender will commit a serious offence and the nature and extent of the harm that will be caused if the offender commits the serious offence. The court is also required to consider whether a restriction order is 'necessary' in order to ensure 'adequate protection of the community against that unacceptable risk'.
The fact that the court is required to undertake these two evaluative tasks, and that these tasks differ to those the court was required to perform under the legislative scheme in operation at the time Pendleton was decided, is reflected in what was said by Quinlan CJ in D'Rozario [20] - [22]:
Under the HRSO Act, rather than embed the ameliorating effect of a potential restriction order within the evaluation of the 'unacceptable risk' (as was the case in the DSO Act), the 'unacceptable risk' and the effect of a putative restriction order are kept conceptually distinct.
The effect of this distinction, as Corboy J observed in Garlett, is to make clear the possibility that the Court might find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has found that the risk of future offending was unacceptable. While no doubt such a situation would be rare, it is possible to envisage circumstances in which that might be the case. For example, it may be that, in the circumstances of a particular case, other external restraints on an offender (such as a post‑sentence supervision order under the Sentence Administration Act 2003 (WA)) may provide adequate protection of the community against the unacceptable risk that the offender will commit a serious offence (such that a restriction order is not 'necessary').
As Corboy J recognised in Garlett, the current form of s 7(1) recognises that the need to ensure adequate protection for the community should form part of the Court's determination of whether the offender is a high risk serious offender (the first step in making a restriction order) and not merely the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step). (citations omitted)
In A v Corruption and Crime Commission [2013] WASCA 288 [67] - [68], Martin CJ and Murphy JA observed, when construing s 152(4)(c) of the Corruption and Crime Commission Act 2003 (WA), that the word 'necessary' is capable of a range of meanings depending on the particular statutory context in which the word is used, and the purpose of the legislation gleaned from the language of the statute as a whole. They noted that a dictionary meaning suggested that it meant 'absolutely necessary' or 'indispensable',[10] whereas in other contexts it has been construed as meaning 'reasonably required' or 'legally ancillary' to the achievement of the purpose for which the act is said to be 'necessary'.[11]
[10] A v Corruption and Crime Commission[61].
[11] A v Corruption and Crime Commission [67].
As the parties did not address, and were not asked to address, the proper construction of the word 'necessary' in s 7(1) of the HRSO Act, and because I do not need to arrive at the proper construction of that word in order to decide this case, I will leave that question of construction to be finally determined if and when it arises in another case.
For the purposes of this review, it is important to observe that the word 'community', which forms an integral part of the definition of 'high risk serious offender' in s 7(1) of the HRSO Act, is defined in s 4 of the HRSO Act to include 'any community' and it is not limited to the community of Western Australia or Australia. It is interesting to note that this definition was originally inserted into the DSO Act on 1 March 2011 in direct response to Mr Pendleton's plans to commit sexual offences against young girls in Southeast Asia upon his release and deportation in May 2010, which plans resulted in his convictions for the two counts of conspiracy recorded in May 2013: Pendleton [4], [49] - [82].
Section 7(3) of the HRSO Act specifies the matters that the court must have regard to in deciding if an offender is a high risk serious offender for the purposes of s 7(1). The matters specified are substantially identical to the matters that the court was, by s 7(3) of the DSO Act, required to have regard to in deciding whether a person was a 'serious danger to the community' within the meaning of the DSO Act. The matters are as follows:
(a) any report prepared under s 74 of the HRSO Act for the hearing of the application, and the extent to which the offender cooperated in the examination required by that section;
(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.
Section 82(1) provides that proceedings under the HRSO Act, or on an appeal under the HRSO Act, are taken to be criminal proceedings for all purposes. However, anything that is to be evidenced for the purposes of the HRSO Act need not be evidenced to a higher standard than is required by s 7(1).
I will now turn to deal with the various matters specified in s 7(3) of the HRSO Act.
Section 7(3)(a) - reports prepared under s 74
Two reports were prepared under s 74 of the HRSO Act for the hearing of this review:
(a)psychological risk assessment of Ms Hasson, dated 2 May 2022; and
(b)psychiatric report of Dr Wynn Owen, dated 10 July 2022.
Psychological Risk Assessment Report
Ms Hasson is an independent forensic psychologist employed by the Department of Justice. She prepared a psychological risk assessment dated 2 May 2022, based, among other things, on two interviews with Mr Pendleton, together with discussions with Ms Cashmore and Mr Summerton (Mr Pendleton's treating psychologist). She was also provided with the BoM (volumes 1 to 5) and Ms Wilson-Brown's High Risk Serious Offenders Treatment Progress Report.
Ms Hasson used psychological assessment tools to gauge Mr Pendleton's risk of reoffending, including the Static-99R (2016) (Static-99R), the Risk for Sexual Violence Protocol (RSVP), and the Hare Psychopathy Checklist - Revised: 2nd Edition (PCL-R).
The Static-99R assesses static risk factors associated with increased risk of reoffending, whereas the RSVP assesses more dynamic factors. While Mr Pendleton's Static-99R result indicates a 'moderate' risk of reoffending,[12] when considered together with the RSVP results, Ms Hasson is of the view that Mr Pendleton:
is at risk of sexually reoffending without the benefit of further intervention and the imposition of supervision, restrictions, support, and monitoring should he be released to the community. Mr Pendleton's risk rating has been modified (increased) beyond his Static-99R score (actuarial measure) on the basis of the ongoing presence of a significant number of dynamic risk factors distributed across all domains of the RSVP. His risk therefore is higher than the actuarial instrument indicates.[13]
[12] BoM 1722 [135].
[13] BoM 1729 [165].
Ms Hasson describes the PCL-R as:
a 20-item scale which uses both historical and dynamic data for the assessment of psychopathy in research, clinical, and forensic settings. Psychopathy is an important variable in predicting risk of reoffence as well as in understanding the severity of violence likely to be used in future offending. Psychopathy is strongly associated with persistent aggressive traits and violent behaviour throughout the lifespan.[14]
[14] BoM 1729 [166].
Ms Hasson notes that:
[p]sychopathic traits contribute to sexual offending in a general way through maladaptive emotional regulation, difficulties in interpersonal relationships, a failure to appreciate the emotional consequences for victims and primary focus on the gratification of one's own needs and wants above that of others.[15]
[15] BoM 1729 [169].
While Mr Pendleton's PCL-R score is below the Australian cut-off for psychopathy, Ms Hasson notes that his results feature traits relating to 'glibness and superficial charm; grandiosity; pathological lying; conning and manipulation; lack of remorse and empathy; failure to accept responsibility and shallow affect.'[16]
[16] BoM 1729 [168].
In her report, Ms Hasson identified three risk scenarios for future offending by Mr Pendleton. The first of those scenarios, which she described as the most likely, would involve Mr Pendleton indulging in deviant sexual fantasy and committing such thoughts to paper through writing, drawing, or painting, thereby creating child exploitation material. In the second scenario, Mr Pendleton is likely to relapse into viewing child exploitation material online. Ms Hasson opines that this scenario is more likely to occur if Mr Pendleton is released to the community. In the third scenario, Mr Pendleton would identify and target a young female child, and then engage in a process of grooming both the child and the family. During this process Mr Pendleton may photograph the child and engage in indecent dealing behaviour before penetrating the child.
Although Ms Hasson found it difficult to discern the likelihood of Mr Pendleton offending in a sexual manner, she did say that any such offending would be likely to be preceded by insufficient supervision and monitoring, in circumstances in which Mr Pendleton was socially and emotionally isolated. Ms Hasson also expressed the view that if Mr Pendleton committed sexual offences, then that behaviour would be likely to continue until such time as he was caught, as it is unlikely his offending would cease of his own volition.
In Ms Hasson's view, all three risk scenarios are likely if Mr Pendleton does not manage his risk, as they closely parallel previous offending.
In her assessment, Mr Pendleton is at a high risk of sexual reoffending.
After considering all factors, Ms Hasson concluded that Mr Pendleton presents as a high risk of serious reoffending if not subject to a restriction order under the HRSO Act. Ms Hasson believed that, regardless of the order made, Mr Pendleton must continue to receive regular treatment. Should he be made subject to a supervision order, she recommended that he be given considerable supervision, counselling, and support to adjust to life in the community, and that he be prohibited from having any contact with children or with other individuals with convictions for sexual offending. She also recommends that his access to the internet be limited and monitored.[17]
[17] BoM 1733 [201].
In my view it is also important to record Ms Hasson's recommendation if the Court decides that Mr Pendleton is a high risk serious offender and should be subject to a continuing detention order. In that regard, Ms Hasson recommended that:
[H]e continues his engagement with his psychologist to address his outstanding treatment needs but also to assist Mr Pendleton to remain future focused through to his next review date. It is expected that Mr Pendleton will experience a sense of hopelessness and despair should he be made subject to a [continuing detention order].[18] (emphasis added)
[18] BoM 1733 [200].
Ms Hasson did not give evidence at the review hearing on 16 May 2023, and Mr Pendleton did not challenge any of her conclusions or the reasoning processes that she employed to reach those conclusions.
Psychiatric Report
Dr Wynn Owen is an independent consultant forensic psychiatrist. He prepared a psychiatric report, dated 10 July 2022, based on the BoM (volumes 1 - 6), an interview with Mr Pendleton on 14 April 2022, a High Risk Serious Offender Treatment Progress Report dated 14 April 2022, a series of recorded telephone calls between Mr Pendleton and another person (which I understand were the subject of Mr Pendleton's conspiracy convictions in 2013), as well as upon discussions and correspondence with Ms Cashmore.
In his report, after briefly setting out some relevant history, Dr Wynn Owen recorded information relating to Mr Pendleton's current attitudes towards his sexual offences. He said that in relation to the more recent offences (the offences of conspiracy to commit sexual offences against children overseas) Mr Pendleton continues to deny any sexual intent in his planning with others, maintaining that he always intended to set up a business.
In relation to the offences committed between 1977 and 1984, Mr Pendleton told Dr Wynn Owen that he had groomed the complainant and her mother in order to commit sexual offences against the complainant. According to Dr Wynn Owen, when discussing these offences Mr Pendleton expressed no remorse or victim empathy in relation to offending which occurred regularly over a six and a half year period.
In relation to the offences that were committed in 1993 and 1994, Mr Pendleton told Dr Wynn Owen that he had first developed a friendship, then a sexual relationship with the child victim. He attributed responsibility for this as much to the victim as to himself, noting that the sexual contact was acknowledged by the victim to have been 'consensual'. Dr Wynn Owen said that Mr Pendleton did not openly acknowledge the duration of the relationship or the fact that the child was 13 years of age when the sexual abuse started. He also did not acknowledge the frequency of the offending, thereby minimising the nature of his behaviour. In Dr Wynn Owen's opinion, abusing the child notwithstanding his awareness of her having experienced abuse in the past indicated a willingness to exploit vulnerability and a gross lack of empathy.
Dr Wynn Owen expressed doubts about the truthfulness of elements of the personal history given by Mr Pendleton, noting that in treatment he has feigned motivations and rationales in relation to all aspects of his parts offending, which will have the effect of undermining treatment effectiveness.
In Pendleton, reference was made to what was described as a 'sexual history spreadsheet':
When the respondent was arrested on 24 February 2000, among items seized by the police, and subsequently tendered at the sentencing hearing, were exhibit 9, a book containing a hand drawn spreadsheet involving details of sexual encounters by the respondent with various girls and women, and exhibit 10, a Victory Project book. These are both in spreadsheet style, although some pages of exhibit 10 have the attributes of a list.[19]
[19] Pendleton [224].
An issue at the hearing in 2012 was whether the spreadsheet referred to real events of sexual offending, or whether they were produced as an aid for writing fictional stories. His Honour ultimately rejected Mr Pendleton's explanation and found that they were a largely accurate account of his offending behaviour, which he described as 'pervasive'.[20]
[20] Pendleton [237].
By the time Dr Wynn Owen had seen Mr Pendleton again for the purposes of preparing a report for the review hearing before me, he was able to state the following:
it has now become clear that the spreadsheet of his sexual exploits is probably entirely factual, not fabricated as [Mr Pendleton] had previously stated, indicating the primacy of sexual offending against children over age appropriate intimate relationships for all but a short period of his adult life. He has longstanding paedophilic disorder with onset in adolescence.[21]
[21] Psychiatric Report of Dr Wynn Owen dated 10 July 2022, 8 [36].
Dr Wynn Owen also said that in the light of the more recent offending, which confirmed the duration of sexual offending and persistence of paedophilic disorder since adolescence, it is probable that Mr Pendleton's decision to train as a teacher was based on enabling access to children to offend against.
Dr Wynn Owen observed that while Mr Pendleton has been in custody he has been employed and is regarded as a good worker. However, in April 2017 he was found in possession of stylised drawings and paintings depicting young women, and manga DVDs which include scenes of animated nudity and sexual violence. Also found were papers and lists including a document entitled 'Freedom of Expression'. This outlined a set of rules for a community, of which Mr Pendleton was the leader, which included statements suggesting that sexual promiscuity is encouraged regardless of age.
When asked why he drew images of very young-looking females in sexual poses, Mr Pendleton initially made statements suggesting the images were clearly not of children, but later appeared to acknowledge they were evidence of ongoing sexually deviant thinking. Dr Wynn Owen said that later in the interview, Mr Pendleton claimed that he had not done drawings of that type for at least four years.
It appears from Dr Wynn Owen's report that despite recommendations made in 2011 concerning the need for intervention targeting a range of outstanding treatment needs, intervention did not commence until December 2021, some 10 years later. In the few monthly individual sessions that have occurred since then, Mr Pendleton indicated that he did not believe that he had anything to gain from counselling and that he was not motivated to engage in treatment while still in detention.
Mr Pendleton acknowledged that his paedophilic interest and behaviours had been present since adolescence. However, he claimed that current sexual thoughts and arousal were to adult female stimuli and that he reported a very low sex drive. Dr Wynn Owen drew attention to the fact that this self-report was at odds with statements made to Ms Wilson-Brown, the author of the 2022 Treatment Progress Report, to whom he reported fortnightly arousal to sexual stimuli.
Dr Wynn Owen observed that the 2022 Treatment Progress Report noted a consistent theme of superficial engagement in treatment and questionable veracity in the information presented by Mr Pendleton, as well as minimising his sexual interests. He also observed that the programs and individual interventions had resulted in minimal gains.
In Dr Wynn Owen's opinion:
Mr Pendleton's chronicity and frequency of offending, multiple sexual interests, history of simultaneously having paedophiliac and adult sexual relationships, detailed recording and repeating of past offending and collection of huge quantities of sexual images are indicative of a high degree of sexual preoccupation.[22]
[22] Psychiatric Report of Dr Wynn Owen dated 10 July 2022, 11 [59].
Mr Pendleton reported that he found it stressful not knowing if he would be deported on release from prison. He told Dr Wynn Owen that ideally on release he would like to find an occupation or role that uses his skills in education or retail but is aware that this will not be possible. He indicated some awareness of supervision conditions should a supervision order be made and stated that he intends to comply with all conditions of such an order. In relation to high-risk situations, Mr Pendleton said that his risk of reoffending would only arise in the context of intimate relationships and that he had no intention of starting a new relationship.
Dr Wynn Owen diagnosed Mr Pendleton with a paedophilic disorder, a voyeuristic disorder, and fetishistic disorders. He also diagnosed a personality disorder with antisocial and narcissistic traits.
Dr Wynn Owen utilised several tools as part of a risk assessment, including the Static-99R, the RSVP, and the PCL-R.
He concluded that Mr Pendleton's Static-99R score is in the average risk range.
The RSVP identified the following risk factors in the domain of sexual violence history:
(a)Chronicity of sexual violence, which relates to the persistence and frequency of sexual offending. According to Dr Wynn Owen this is not a causal risk factor but is the risk most reliably associated with future sexual offending.
(b)Escalation of sexual violence, which refers to a pattern of change in sexual offending through an increase in the frequency, seriousness or diversity of offending over time.
(c)Psychological coercion in sexual violence. In Mr Pendleton's case this has included a significant element of grooming, and abuse of positions of trust. While this risk does not elevate the future risk of sexual offending it is of particular importance to the management of future offending risk.
(d)Diversity of sexual violence. According to Dr Wynn Owen, diversity refers to multiple types of sexual offending with respect to offence nature and victim selection. He notes that Mr Pendleton has committed a variety of offences involving victims ranging from 4 to 13 years of age. This risk factor is associated with an increased risk of future sexual offending.
Dr Wynn Owen also concluded that it was now apparent that the risk factor of physical coercion and sexual violence is present. Although this risk factor is not causally associated with an increased risk of future sexual offending, it does indicate a high likelihood of physical coercion being used in future sexual offending.
Other risk factors identified by Dr Wynn Owen included risks associated with psychological adjustment (such as denial and minimisation), attitudes that support or condone sexual violence, and the presence of stress or coping problems. He also opined that there were definite risk factors associated with Mr Pendleton's mental disorders, including sexual deviance and a psychopathic personality disorder. Dr Wynn Owen noted that these two risk factors are most strongly correlated with future offending.
Further risk factors included those associated with problems forming intimate and non-intimate relationships, as well as risks concerned with the fact that Mr Pendleton is essentially an untreated sex offender and the possibility of being unable to properly supervise him without the means to cross-check and verify statements made by Mr Pendleton whilst under supervision.
In terms of risk scenarios, Dr Wynn Owen reached the following conclusions:
Nature
Repeat: This is the most likely reoffending scenario. Acting on ongoing deviant sexual fantasy a friendship will be formed with a parent/carer/guardian enabling access to a female child victim(s). Mr Pendleton will groom the parent/carer and child enabling initially opportunistic/candid photography or visualisation. If this is successful, reinforcing deviant sexual intent, further grooming many (sic) result imposed/semi-clothed or no photography and, if unchecked, this will escalate to contact sexual offending, that offending could include digital and penile sexual penetration and may involve physical as well as psychological coercion.
Any future serious offence will cause psychological harm with the potential for immediate physical harm and long-term psychological trauma.
Imminence
Mr Pendleton has been unable to manage his deviant sexual interest in the past and is currently essentially untreated. As such opportunistic voyeurism and taking opportunities to meet adults with children in their care may occur immediately upon release should he be released unsupervised as it is not possible to rely on his self-report with respect to his capacity to manage his deviant thinking. His plan to travel to Thailand to sexually offend against children, concocted while in prison and having completed a number of treatment programs, coupled with his lack of veracity, indicates that the possibility that Mr Pendleton has current intent to offend on release that he is not disclosing cannot be discounted.[23]
[23] Psychiatric Report of Dr Wynn Owen dated 10 July 2022, 20 [105] - [109].
Considering all of the materials, Dr Wynn Owen's clinical assessment of Mr Pendleton, his Static-99R score, RSVP risk factor review, and his PCL-R score, Dr Wynn Owen considers that Mr Pendleton presents a high risk of committing a future serious offence if not subject to a restriction order.[24]
[24] Psychiatric Report of Dr Wynn Owen dated 10 July 2022, 20 [111].
In Dr Wynn Owen's opinion,
[t]he most significant risks present are entrenched sexual deviance and personality disorder. He is essentially untreated as new historical offence convictions have revealed significant deceit and non-disclosure in treatment settings to the extent that, in my opinion, past treatment has been rendered invalid noting that he was already regarded as having only superficially engaged in treatment and having made minimal gains. With respect to Mr Pendleton's current denial of sexual intent in relation to travelling to Thailand, this is, in my opinion, as believable as his past denial of the factual nature of his chart or chronology of past sexual activity. This denial represents a continuing barrier to treatment intervention.
The fact that Mr Pendleton admits to ongoing intrusive paedophilic thoughts and fantasy up to three times a day, in the context of his pattern of denial and minimisation, suggests that he probably continues to experience a considerably higher degree of sexual preoccupation than he admits. This has probably presented a barrier to treatment.
The early onset, entrenched nature and long duration of Mr Pendleton's sexual deviance, his personality style and structure and his advancing age mean that any treatment gains will be slow to achieve, if treatment gains can be achieved.[25]
[25] Psychiatric Report of Dr Wynn Owen dated 10 July 2022, 21 [112] - [114].
Dr Wynn Owen made similar recommendations to those of Ms Hasson with respect to ongoing psychological counselling, and said that if Mr Pendleton is released on a supervision order, there would need to be a focus on community reintegration and stress management.[26] He further recommended antilibidinal hormone treatment as an adjunct to any psychological intervention.[27]
[26] Psychiatric Report of Dr Wynn Owen dated 10 July 2022, 22 [115].
[27] Psychiatric Report of Dr Wynn Owen dated 10 July 2022, 22 [115].
In his report, Dr Wynn Owen recommended that any supervision order conditions should reflect the specific risks identified in Mr Pendleton's historical offending and the nature of his sexual deviance. In that regard, he expressed the view that there needed to be conditions designed to prevent access to children and to ensure that access cannot be achieved through others. Further, conditions were required to prevent reinforcement of sexual deviance through images or stories created or accessed by Mr Pendleton. Dr Wynn Owen said that he had reviewed the draft conditions proposed by Ms Cashmore and believe that those issues were addressed.
Finally, Dr Wynn Owen recommended that any supervision order should be made for a period of 10 years.[28]
[28] Psychiatric Report of Dr Wynn Owen dated 10 July 2022, 22 [115].
On 16 May 2023, Dr Wynn Owen gave evidence before me. In his evidence he confirmed that he had previously been provided with access to the book of materials and had been given the opportunity to review the Cooney Affidavit. In addition to those materials, Dr Wynn Owen had reviewed the April ABF Letter, the May ABF Letter and the ACRO Letter.
Dr Wynn Owen confirmed that he continued to hold the view that Mr Pendleton presents a high risk of committing a future serious offence if he were to be released without any form of supervision or restriction. He reiterated that Mr Pendleton has a paedophilic disorder, but that the behaviours resulting from such a disorder can be successfully managed by authorities in the community. He said that this requires an awareness of the person's specific patterns of offending.
Dr Wynn Owen said that with Mr Pendleton there is a clear pattern of him befriending a parent or adult who has care or responsibility for a child, grooming the parent or carer, and developing trust with the child, to enable offending to occur. Because that pattern is quite clear in Mr Pendleton, Dr Wynn Owen said that:
constraints in the community that involved understanding his movements and, through that, checking his associations, ensuring that he reports those things, and the cross-checks such as GPS and other checks are available to check whether he is being honest about what is being reported, requirements for him to tell somebody about – that he is forming a friendship with that he has a history of contact sexual offending against children, these are all things which will make a difference, as well as ongoing reporting requirements to police, to community justice authorities. That can largely mitigate the likelihood of offending.[29]
[29] Transcript 16 May 2023, 54.
In his report, Dr Wynn Owen recommended hormonal anti-libidinal treatment as there is clear paraphilia/sexual deviance and sexual preoccupation, as well as a history of poor treatment engagement. However, in his evidence before me he noted that such medication is not a mainstay of risk management, and that it was essential that Mr Pendleton be physically fit enough for that medication to be administered.[30] He also noted that any such treatment would require Mr Pendleton's consent after he had been provided with full information and was able to ask questions about the issues that may present with the medication.[31]
[30] Transcript 16 May 2023, 55.
[31] Ibid.
When asked about various claims that have been made by Mr Pendleton about his lack of libido or sexual interest, Dr Wynn Owen said that the only person that knows whether those statements are true is Mr Pendleton himself. He did, however, note that Mr Pendleton's assertions that he had absolutely no deviant sexual fantasies seemed unlikely.[32]
[32] Transcript 16 May 2023, 56.
Dr Wynn Owen confirmed that, in his opinion, all the risk factors that he had identified in his report relating to Mr Pendleton remained present as at the time of his evidence. He also confirmed that since 2011 two new risk factors had been identified, namely, diversity in sexual offending and physical coercion.
In relation to the PCL-R assessment, Dr Wynn Owen confirmed that Mr Pendleton's score on that assessment was 26. This demonstrates a high level of psychopathy, which is a factor in Mr Pendleton's risk of future reoffending.
Dr Wynn Owen gave the following evidence when he was asked what he considered to be the most likely risk scenario for Mr Pendleton:
I think that it - based on his past behaviour, the most likely pattern of offending to befriend - I think as I said in opening, to befriend a parent, grandparent, carer of a child, not for the purpose of their friendship or for a purpose of a sexual relationship with that individual, but to form a relationship with the child. That person would be befriended and then groomed to engage Mr Pendleton as a trusted friend. At the same time, the child would be being groomed. So the trusted adult being with Mr Pendleton would start the process because the child would see that person is being safe and that would enable some form of either photographic or contact offending to occur.[33]
[33] Transcript 16 May 2023, 59.
Counsel representing the State at the review hearing asked Dr Wynn Owen, based on his assessment of the materials, and on the assumption that Mr Pendleton were to remain in Western Australia, whether his risk of reoffending could be managed through supervision in the community. Dr Wynn Owen provided the following opinion:
I'm of the opinion that the supervision, if it were to cover off his high risk areas in terms of forming relationships, unsupervised access to children, reporting, checking his – very, very carefully checking his veracity, not believing, necessarily, everything he said, that his risk would be considerably reduced, such that I believe it could be managed to prevent any form of serious offending. That would clearly include GPS monitoring and the sort of regular reporting to community corrections to WA … Serious Offender Management Squad. And ideally, it would include ongoing psychological intervention to assist in management of the stress of community reintegration, as well as management of deviant sexual fantasy and further discussion about how he may be helped with that in the future.[34]
[34] Transcript 16 May 2023, 59 - 60.
Dr Wynn Owen was asked questions by counsel for both the State and Mr Pendleton that were designed to elicit his opinions about Sexual Harm Prevention Orders (SHPO) which are available to be made in relation to residents of the UK pursuant to the UK Act. With all due respect to Dr Wynn Owen, and without criticising him in any way, I found this evidence to be of little assistance. As he acknowledged, his familiarity with SHPO was limited to reading materials provided to him by the State in advance of the hearing, and to some discussions with his colleagues in the UK. Dr Wynn Owen was just answering the questions that were put to him in an effort to assist the court.
In cross examination, Dr Wynn Owen was asked about the purpose of a supervision order in reducing risk, and whether the best way for that to be implemented is by ensuring that there are external controls over Mr Pendleton. In answer, Dr Wynn Owen gave the following evidence:
I think, initially, that would be essential, because from the various reports that are in mind, it is quite clear that Mr Pendleton doesn't always tell the truth and the truth is essential to managing risk. If somebody doesn't tell the truth, there are many cross-checks that are required to ascertain exactly what somebody's movements are, who they're associating with, etcetera, particularly when one is concerned about these sort of befriending and grooming behaviours that have been a pattern of Mr Pendleton's offending and - - -
Yes?---So I – yes - - -
Yes?--- - - - I would be concerned about that.
Yes. All right. So for example, restrictions that restricted Mr Pendleton's ability to have any contact with children would be an important management tool?---That's right. Well, so no unsupervised contact with children has to be – has to be one of the core conditions. It's - - -
Yes?--- - - - a high-risk scenario for Mr Pendleton. But equally important is the formation of friendships and relationships that may be used to gain access to children. Those two are, I think, core to the high risk. The other is the significance and – how shall I put it – primacy at any particular of his sexually deviant thinking, because it will fluctuate, but the times when it is a significant preoccupation are the times when he is more likely, then, to act and to start to behave in a particular way. If he starts an offending cycle, starts to groom somebody, it is likely that that will reinforce itself, once it has occurred.
Yes?---So those cross-checks about associations and the GPS monitoring to say, “Where were you? Why were you there? Who were you with?” and then – to make sure you check that are going to be essential in terms of that external constraint. Over time, in any order, however, any offender should be given the opportunity to demonstrate self – a greater degree of self-management. So if somebody has consistently complied with conditions for the first 24 months, then one should look at the order and think, “Well, at the end of the order, the person is not going to be on one, so there needs to be opportunities for this person to demonstrate that they have that capacity and look at which of the conditions may be varied to enable that demonstration”. But yes, yes, the external constraint, initially, would be essential.
Yes. Did you form an opinion about Mr Pendleton as to whether he's a person likely to comply with conditions put upon him?---I think Mr Pendleton is likely to say he will comply with the conditions.
Yes?---It's difficult to know whether to believe that or not.
Yes?---So I – likely or unlikely – I mean, I suggest that external risk management is going to be the mainstay of his risk management for quite a while and that has implications for my answer, really, which is that I am concerned that unless that external – very obvious external presence is there, that he may be less likely to comply.[35]
[35] Transcript 16 May 2023, 63 - 64.
No useful purpose would be achieved by me repeating what I have set out above in relation to how the provisions of the UK Act might operate in relation to Mr Pendleton in the event he was deported. However, based on that analysis I am unable to conclude that if Mr Pendleton was deported to the UK, the 'community' would be adequately protected from the risk that he will commit a serious offence such that it is not 'necessary' to make a restriction order for the purposes of s 7 of the HRSO Act.
Based on the evidence before me, there is every reason to conclude that if Mr Pendleton were released from custody, he would be met by immigration officials as he walked out of prison. He would then be taken straight to an immigration detention centre, where he would remain until he was removed from Australia and then taken to the UK.
It also appears safe to conclude that upon arrival at Heathrow Airport, Mr Pendleton would be served with a notice and he would then be required to comply with the notification requirements provided for in the UK Act. Mr Pendleton would be required to comply with those requirements even though he has not, on the evidence before me, committed an offence in the UK. The power to serve a notice extends to and includes a power to serve a notice on a person who has been convicted of sexual offences committed outside of the UK.
However, if a notice was served on Mr Pendleton in accordance with the UK Act, this will not adequately protect the community against what I have found to be an unacceptable risk that Mr Pendleton will commit a serious offence. In Mr Pendleton's case, it seems likely that he would be required to comply with the notification requirements for an indefinite period. However, apart from an initial requirement to provide the relevant authorities with certain information, a requirement to provide updated information where relevant details change, and a requirement for periodic notification, the notification requirements will not prevent Mr Pendleton having access to children either directly or by grooming adults, or prevent him having access to material that reinforces sexual deviance, or require him to engage with psychological counselling. Further, the notification requirements do not provide for a means for checking the veracity of information provided by Mr Pendleton, in order to monitor his compliance with conditions designed to appropriately manage the risk of him committing a further serious offence.
In short, even if Mr Pendleton was served with a notice under the UK Act, in my view this would not provide the level of supervision that the evidence before me suggests would be required to provide adequate protection to the community by appropriately managing the risk that he may commit a serious offence.
The parties do not suggest that the community would be adequately protected if Mr Pendleton simply were subject to the notification requirements under the UK Act. Instead, the parties rely on evidence which they submit sufficiently establishes that Mr Pendleton will be made the subject of a SHPO. The State's submissions on this point, based on the evidence, are in the following terms:
as part of the risk assessment process conducted by the responsible Police force, consideration will be given to whether an application is to be made to the requisite court for a Sexual Harm Prevention Order (SHPO). The local force where he will be residing will need to decide what specific restrictive conditions or positive obligations are necessary to protect the public, based on the level of risk they deem the respondent poses to the community; and [b]ased on the respondent's criminal history the Metropolitan Police Service have confirmed that should the respondent wish to reside within their force area they would expect to make an application to the court for a SHPO. A sex offender notification notice, ensuring the respondent complies with the notification requirements under Part 2 of the Sex Offences Act 2003 as if he had been originally convicted in the UK.
In my view, this short passage taken from the State's submissions in fact demonstrates that this court cannot in fact be satisfied that the 'community' will be adequately protected against what I have found to be an unacceptable risk that Mr Pendleton will commit a serious offence.
Firstly, there is a great deal of uncertainty about whether an application for an SHPO would ever be made in relation to Mr Pendleton. Quite apart from the need for a risk assessment to be undertaken, and the need for consideration regarding whether it is appropriate to make an application for an SHPO, whether an application will be made may also depend on the local police force in the area in which Mr Pendleton happens to reside. The fact that the Metropolitan Police Service have confirmed that they would 'expect' to make an application for a SHPO is of little comfort because whether that will actually occur depends on whether Mr Pendleton is residing within the relevant police force area at the time.
Secondly, even if the relevant authorities in the UK decided to apply for a SHPO, there is likely to be a delay before such an application is made and then determined by a court. Apart from the notification requirements under the UK Act, and the potential that the authorities may apply to a court for an interim order,[64] Mr Pendleton will not be subject to the regime of supervision that the evidence before me suggests is immediately required if the risk that he poses is to be appropriately managed in the community. That is clearly undesirable.
[64] According to the 2023 Guidance Document, a court may make an interim order if it considers it just to do so.
In this regard it is important to recall that Ms Hasson noted in her report that Mr Pendleton's offending would likely be preceded by insufficient supervision and monitoring, in circumstances in which Mr Pendleton was socially and emotionally isolated. That Mr Pendleton is likely to be socially and emotionally isolated, and unsupervised and unmonitored (at least while decisions are being made about the appropriateness of a SHPO) upon being deported to the UK clearly cannot be discounted. Indeed, it seems likely.
It is also relevant to again refer to Ms Hasson's opinion that if Mr Pendleton committed sexual offences, then that behaviour would be likely to continue until such time as he was caught, as it is unlikely his offending would cease of his own volition.
Thirdly, given that a SHPO can only be made by a court, there is no certainty that such an order would actually be made in relation to Mr Pendleton. Quite apart from the uncertainties that are inherent in any litigation, before a SHPO could be made in relation to Mr Pendleton the police must demonstrate not only that he is a 'qualifying offender', but also that since conviction he has acted in such a way as to give reasonable cause to believe that an order is necessary to protect the public, or any member of the public in the UK, or children or vulnerable adults abroad, from sexual harm. The evidence before me does not permit me to confidently draw any conclusions about whether a UK court would be satisfied of either of those two prerequisites in relation to Mr Pendleton.
Finally, even if a SHPO is granted there is no certainty that Mr Pendleton will be required to comply with the sort of conditions that the evidence before me suggests are required to ensure adequate protection of the community.
For these reasons I am unable to accept that, having found that there is an unacceptable risk that he will commit a serious offence, it is nevertheless not 'necessary' to make a restriction order in relation to Mr Pendleton.
I should record the fact that nothing that I have said in these reasons should be taken in any way as a criticism of the regime that exists in the UK to ensure the protection of the public from sexual harm. That forms no part of my function.
In 2012 McKechnie J reached the following conclusions about Mr Pendleton:
The convictions of the respondent establish that he is a dangerous paedophile obsessed with children, child pornography and sexual activity. He was a dangerous sex offender when he was convicted in 2000 and remained so when he was again convicted in 2003. The only change to that status might occur if, during the intervening period, he has gained significantly from the treatment programmes that have been offered to him, including the ISOTP and the Intensive individual counselling.
However, the report writers do not give any evidence of any significant gains. Each concluded there are still serious and outstanding treatment needs.
…
In Dr Tanney's opinion there is no supervision requirement possible. It would all have to be external checks because the respondent has no internal measures to control his urges.
Dr Wynn Owen has reached a similar conclusion that the respondent is a high risk of reoffending that cannot really be managed in the community.
The evidence is overwhelming that the respondent is a serious danger to any community that has young girls. His crimes, the history of sexual abuse that he compiled, the photographs, stories, videos, drawings and fetishes including underwear, all showed an intense pervasive obsession with prepubescent females. This extended at least through the 1990's until his arrest in February 2000. It continued in prison as evidenced by the material the subject of the third indictment. The continuing sexual fantasies involving young girls is demonstrated by his discussions and plans about South East Asia. His principal purpose for wishing to travel there is to indulge his paedophilia.
As recently as December 2011, in interview with Dr Wynn Owen, the respondent admitted to continuing fantasies.
It is clear that he remains a serious danger to the community.
Despite considerable efforts at treatment, any gains made have been minimal.[65]
[65] Pendleton [260] - [269].
At that stage in 2012, there had been 'considerable efforts at treatment'. However, since then there has been little or no positive progress, at least insofar as treatment is concerned. As Dr Wynn Owen said in his evidence before me:
Mr Pendleton had not engaged in any form of treatment for a number of reasons, including having to deal with the court proceedings in relation to overseas travel and then further court proceedings in relation to historical offending, the treatment intervention was deferred and it has been recently commenced was more to do with discussions with the psychologist about why he was not keen to participate in treatment at that time, how he would prefer treatment to occur if you're in a community setting and uncertainty in relation to deportation or his future, which seemed to impact on his ability to engage with that treatment.[66]
[66] Transcript 16 May 2023, 52 - 53.
I accept Dr Wynn Owen's evidence. I also accept his opinion, referred to earlier in these reasons, that:
[t]he early onset, entrenched nature and long duration of Mr Pendleton's sexual deviance, his personality style and structure and his advancing age mean that any treatment gains will be slow to achieve, if treatment gains can be achieved.[67]
[67] Psychiatric Report of Dr Wynn Owen dated 10 July 2022, 21 [114].
In light of these findings and having taken into account all of the matters referred to in s 7(3) of the HRSO Act, I am satisfied, to a high degree of probability, that Mr Pendleton remains a high risk serious offender for the purposes of s 7(1).
Having reached this conclusion it is not open to me to rescind the continuing detention order that is currently in place. By force of s 68(1)(b), I may only either affirm the continuing detention order[68] or rescind that order and make a supervision order.[69] In deciding which of those two options should be preferred, the paramount consideration is the need to ensure adequate protection of the community.[70] Further, before I could rescind the continuing detention order and make a supervision order, Mr Pendleton must satisfy me, on the balance of probabilities, that he will substantially comply with the standard conditions of such an order, set out in s 30(2) of the HRSO Act.[71]
[68] HRSO Act s 68(1)(b)(i).
[69] HRSO Act s 68(1)(b)(ii).
[70] HRSO Act s 68(2).
[71] HRSO Act s 29.
Supervision order or continuing detention order?
Given my finding that Mr Pendleton is a high risk serious offender who would be deported to the UK if he were released from custody, the question of whether I should either affirm the continuing detention order or rescind that order and make a supervision order can be dealt with succinctly.
Even though the evidence very clearly supports a conclusion that a supervision order would adequately protect the Australian community from an unacceptable risk that Mr Pendleton will commit a serious offence, and even though the State has conceded that it would be appropriate to make such an order and that he should be released and supervised in that community, the only order that I can properly make is one that affirms the continuing detention order.
In deciding whether to affirm the continuing detention order, or to rescind that order and to make a supervision order, the paramount consideration is the need to ensure the adequate protection of the community. As has been demonstrated above, if I were to rescind the continuing detention order, and order that Mr Pendleton be released subject to a supervision order, such an order would have no practical effect. This is because the evidence before me very clearly establishes that upon being released from custody Mr Pendleton would be immediately detained by ABF agents, whereupon he would be taken to an immigration detention centre, before being deported to the UK.
Putting to one side the question of whether Mr Pendleton would ever be able to discharge his onus of establishing that he will substantially comply with the standard conditions of a supervision order[72] in these circumstances, a supervision order that is only enforceable in Western Australia could not provide adequate protection of the 'community' after Mr Pendleton has been removed from Australia. This was recognised almost 12 years ago by McKechnie J in Pendleton [273]:
Removal from Australia will also remove the respondent from the supervisory jurisdiction of this court. None of the conditions for his release into the community that might ensure its adequate protection could be enforced.
[72] As required by s 29 of the HRSO Act.
For the reasons that I have set out above in relation to the question of whether Mr Pendleton remains a high risk serious offender, I am not satisfied that the 'community' would be adequately protected from the risk that Mr Pendleton will commit a serious offence if I were to rescind the continuing detention order and make a supervision order. Quite apart from the practical unenforceability of any supervision order, I am not satisfied that the regime that currently exists in the UK to protect the 'community' from the risk of sexual harm will provide sufficient protection from the risk that Mr Pendleton will commit a serious offence, whether in that country or in another 'community'.
In those circumstances, the court has no option other than to affirm the continuing detention order.
This conclusion suggests that the decision to broaden the meaning of the term 'community' in the DSO Act, and then to carry that definition through to the HRSO Act, may have had unforeseen consequences.
There is, of course, obvious force in the idea that this State has an obligation to protect all children from sexual harm regardless of where they might be in the world, particularly when there is a risk that such harm might be inflicted by someone who is in, or has a relevant connection to, Western Australia. Indeed, as is demonstrated by my analysis of the UK Act, an approach that seeks to protect all children from sexual harm is not unique to this state.
However, one consequence of the broad definition of 'community' is that all high risk serious offenders who are liable to be immediately deported upon release from custody, such as Mr Pendleton, face the real prospect of never being released. As noted above, this was recognised by McKechnie J in Pendleton:
Because of the first reason why supervision is not feasible [the inevitability that Mr Pendleton would be deported the moment he is released from custody], the respondent faces the real prospect that he will never be able to demonstrate, on annual review, that is his risk to the community may be adequately supervised outside detention. He would have to show such gains in overcoming his paedophilia that he was no longer regarded as a serious danger to any community.[73]
[73] Pendleton [279].
What may not have been contemplated is that Mr Pendleton would surely have faced the same bleak future even if McKechnie J had found that the risk that he might commit a serious offence could be adequately managed in this community. Of course, Mr Pendleton's long-standing paedophilic tendencies and his terrible history of offending against children mean that he is unlikely to attract any sympathy for his plight. However, there is an obvious absurdity in a scenario that Mr Pendleton must be detained on a continuing detention in order to provide adequate protection for communities outside Western Australia, where the State of Western Australia responsibly accepts that the risk that he might commit a serious offence can adequately be managed under a supervision order in this community.
Before concluding, I want to briefly return to some evidence contained in Ms Wilson-Brown's High Risk Serious Offender Treatment Progress Report.
In that report, Ms Wilson-Brown referred to her 32-minute consultation on 28 March 2022 with Mr David Summerton, a Senior Counselling Psychologist with the FPIT. According to that report, Mr Summerton informed her that:
[If] Mr Pendleton was released on a Supervision Order, counselling will occur on a weekly basis to assist with his adjustment to the community, in addition to specifically addressing risk related factors. He noted that if he was placed on a Detention Order, counselling will be suspended initially as his treatment needs would not require immediate therapeutic attention, and treatment would recommence closer to his next review. (emphasis added)
A view appears to have been taken that the State's obligation to provide Mr Pendleton with the opportunity to undergo treatment should be 'suspended' if he is made subject to a continuing detention order, and that such treatment would only be recommenced closer to the next review. This is of very great concern.
Those who are responsible for making decisions about what to do with Mr Pendleton pending the next statutory review of his continuing detention order, and whether he should at least be provided with the opportunity to undergo treatment, should bear firmly in mind the warning that was given in Pendleton as long ago as January 2012. At that time McKechnie J said that Mr Pendleton faced the real prospect of never being able to demonstrate, on an annual review, that his risk to the 'community' could be adequately managed under a supervision order, and that he would have to 'show such gains in overcoming his paedophilia that he was no longer regarded as a serious danger to any community.'[74]
[74] Pendleton [279].
It is difficult to see how Mr Pendleton could ever hope to show that he has made relevant gains if he is not provided with sufficient opportunity, that is provided over a very significant period of time, to undergo treatment and to demonstrate rehabilitation. Given the entrenched nature of his paedophilic tendencies, it is expected that a more concerted effort will be made by those responsible than an offer of treatment closer to the next review.
I note that it was only after he was convicted of further offences in 2013 that Mr Pendleton was referred for a treatment assessment. For reasons that are not clear to me, that assessment was not completed, and he was instead referred to the Forensic Psychological Service on 27 September 2013. Some 6 years later, on 18 July 2019, an individual psychological treatment assessment report was finally completed. This assessment recommended that Mr Pendleton's intervention be deferred because he was a sentenced prisoner and that his treatment needs and motivation to engage would be assessed at the conclusion of his sentence. However, it was only after his sentence was completed that Mr Pendleton eventually started to receive therapeutic intervention with Mr Summerton in December 2021.
As Dr Wynn Owen said in the report prepared for this review:
[a]lthough in 2011 DSOA court appointed independent experts and the Corrective Services departmental psychologist recommended intervention targeting a range of outstanding treatment needs intervention did not commence until December 2021, 10 years later.[75]
[75] Psychiatric Report of Dr Wynn Owen dated 10 July 2022, 10 [48].
Where Mr Pendleton faces the 'bleak possibility of life in detention forever',[76] in circumstances in which the State has conceded that his risk of committing a serious offence can be adequately dealt with in the Western Australian community, it would be most unfortunate if a similar observation was to be made at the next review of Mr Pendleton's continuing detention order.
[76] Pendleton [279]
Orders
The continuing detention order that was made on 20 January 2012 is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KB
Associate to the Hon Justice Vandongen
20 JULY 2023
(b) (in the context of harm outside the United Kingdom) by the person doing, outside the United Kingdom, anything which would constitute an offence listed in Schedule 3 of that Act if done in any part of the United Kingdom.'
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