The State of Western Australia v Pendleton [No 2]
[2025] WASC 219
•12 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PENDLETON [No 2] [2025] WASC 219
CORAM: FORRESTER J
HEARD: 22 MAY 2025
DELIVERED : 12 JUNE 2025
FILE NO/S: SO 15 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
RYAN ANTHONY PENDLETON
Respondent
Catchwords:
Criminal law - High risk serious offender - Application for restriction order - Whether the respondent is a high risk serious offender - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make restriction order to ensure adequate protection of the community - Whether community can be adequately protected by imposition of supervision order - Whether the respondent will substantially comply with standard conditions of a supervision order
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr D McDonnell |
| Respondent | : | Ms A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Garlett v The State of Western Australia [2022] HCA 30
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Hart [2019] WASC 4
The State of Western Australia v Pendleton [2024] WASC 492
The State of Western Australia v ZSJ [2020] WASC 330
FORRESTER J:
Introduction
This is an application made by the State of Western Australia on 12 November 2024 for a restriction order to be made in respect of the respondent, Ryan Anthony Pendleton, pursuant to the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
On 29 November 2024, a preliminary hearing pursuant to s 46 of the HRSO Act was held before me.[1] I was satisfied that there were reasonable grounds to believe that the court might find the respondent to be a high risk serious offender and ordered that the application for a restriction order be heard on 22 May 2025, and that the respondent be made subject to an interim detention order pursuant to s 46(2) of the HRSO Act.[2]
[1] The State of Western Australia v Pendleton [2024] WASC 492.
[2] Book of Materials for the Restriction Order Hearing Volume 1 filed 30 April 2024, 145 (BOM Vol 1).
On the application for a restriction order, the matters I must decide are:
(1)whether the respondent is a high risk serious offender, within the meaning of s 7 of the HRSO Act; and, if so
(2)whether to make an order that the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order)[3] or that he be released into the community subject to conditions that the court considers appropriate (a supervision order).[4]
[3] HRSO Act s 26.
[4] HRSO Act s 27.
For the reasons below, I am satisfied that the respondent is a high risk serious offender, and that it is necessary that a restriction order should be made to ensure adequate protection of the community. I have determined that the appropriate order in this case is a continuing detention order.
Factual background
When the application was made on 12 November 2024, the respondent was serving a term of 5 years and 6 months' imprisonment, imposed by Lemonis DCJ on 22 December 2021, for:
(a)6 counts of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code;
(b)4 counts of indecently recording a child under the age of 13 years, contrary to s 320(6) of the Criminal Code; and
(c)one count of procuring, encouraging or inciting a child under the age of 13 years to do an indecent act, contrary to s 320(5) of the Criminal Code.[5]
[5] BOM Vol 1, 3 ‑ 4; Book of Materials, Volume 2 filed 30 April 2024 (BOM Vol 2), 539 ‑ 574.
The respondent's sentence was backdated to 18 July 2019, and therefore expired on 17 January 2025.[6] He was denied parole on 8 June 2023.
[6] BOM Vol 1, 23.
All of the offences for which the respondent was sentenced are serious offences under the HRSO Act.[7] As at the date of the application, the respondent was under a custodial sentence for that offence. Accordingly, the respondent was, at the time the application was made, 'a serious offender under custodial sentence'[8] who was not a serious offender under restriction within the meaning of s 35 of the HRSO Act.
[7] HRSO Act s 5 and sch 1, div 1, subdiv 3, item 17.
[8] HRSO Act s 3, s 5.
Materials
The State produced a Book of Materials comprised of three volumes,[9] containing the criminal history of the respondent and detailed evidence relating to it, including statements of material facts and transcripts, the respondent's custodial history, program completion reports relating to the various programs undertaken by the respondent while in custody, parole and other assessment reports, and reports prepared for this hearing, namely:
(1)Psychiatric Report of Dr Gosia Wojnarowska dated 22 April 2025;
(2)Psychological Report of Dr Kathryn Riordan dated 14 May 2025; and
(3)Community Supervision Assessment of Ms Nicole Bennetts dated 14 May 2025.
[9] Exhibits 1.1 ‑ 1.3.
At the hearing, the State also tendered the Treatment Options Report of Ms Emma Cashmore dated 19 May 2025.[10]
[10] Exhibit 2.
The State called the authors of these four reports at the hearing of the application, and they were cross‑examined by the respondent's counsel.
Index offences
On 24 July 2018, the respondent was released after serving a 9 year and 8 month term of imprisonment for sexual offending. On his release, he was subject to a post‑sentence supervision order (PSSO).
About three weeks after his release, the respondent met a woman, through mutual friends, and commenced a relationship with her. The woman was the mother of a female child who was 4 years old. The respondent regularly stayed at the woman's house and moved in with her in December 2018, contrary to the conditions of his PSSO.
The offending took place while the child was 4 and 5 years old, and consisted of the respondent performing various indecent acts on the victim or procuring her to do indecent acts. He had the victim touch her vagina over and under her underwear, touched the victim on her buttocks over her underwear, placed a vibrator near the victim before taking a photograph, wore an adult sized nappy in the victim's presence while she slept, placed a nappy on the victim's buttocks while she slept, placed his penis near the victim's hand and face, and took photographs of the victim while she was naked in the shower and while she was lying down with her legs spread. In every instance of offending, the respondent took photographs.
In sentencing the respondent, Lemonis DCJ (as he then was) found that the respondent 'either avoided or misled the Sex Offender Management Squad and the Department of Community Protection who were acting to protect the child' which enabled him to continue to interact with the child.[11]
[11] BOM Vol 2, 569.
The respondent was denied parole on 8 June 2023 as a result of unmet treatment needs, poor prior response to community supervision and the assessment that he is a high risk of reoffending.[12]
[12] BOM Vol 1, 31 ‑ 32.
Statutory framework and legal principles
The objects of the HRSO Act are:
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.[13]
[13] HRSO Act s 8.
If the court hearing a restriction order application finds that an offender is a high risk serious offender, the court must make a continuing detention order or, except as provided in s 29, a supervision order. In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[14]
[14] HRSO Act s 48.
The term 'high risk serious offender' is defined in s 7(1) of the HRSO Act as follows:
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' means a continuing detention order or a supervision order.[15] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[16] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.[17]
[15] HRSO Act s 3.
[16] HRSO Act s 3, s 26(1).
[17] HRSO Act s 3, s 27(1).
Relevantly, an offence is a 'serious offence' if it is an offence listed in sch 1 div 1 of the HRSO Act.[18]
[18] HRSO Act s 5.
The State has the onus of satisfying the court in accordance with s 7(1).[19]
[19] HRSO Act s 7(2).
When considering whether it is satisfied that a person is a high risk serious offender, the court must have regard to the factors set out in s 7(3) of the Act.
The jurisprudence established in respect of the Dangerous Sexual Offenders Act 2006 (WA) is relevant in construing and applying the HRSO Act, with necessary adaptation.[20]
[20] The State of Western Australia v ZSJ [2020] WASC 330 [31].
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[21]
[21] Garlett v The State of Western Australia [2022] HCA 30 [55] - [56].
The words 'high degree of probability' import more than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but are otherwise not capable of further definition.[22] The court is required to identify what it is that constitutes the risk and what makes it unacceptable, thereafter considering whether or not those factors have been proved to the requisite standard by acceptable and cogent evidence.[23]
[22] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 (GTR) [28] - [34].
[23] GTR [34].
In Garlett v The State of Western Australia,[24] the court said:
Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is 'necessary' to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.
[24] Garlettv The State of Western Australia [2022] HCA 30 [73].
The meaning of 'unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams[25] in the following terms:
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
[25] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 [63].
In The State of Western Australia v Garlett,[26] Corboy J considered that s 7(1) of the HRSO Act (in conjunction with s 48) requires the court to assess two separate matters. The first is whether a risk that an offender will commit a serious offence is unacceptable. The second is, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence. His Honour stated:
[T]he court should choose, as between a continuing detention order and a supervision order, the order that is 'least invasive or destructive' of a person's right to be at liberty while ensuring an adequate degree of protection of the community. That constraint also applies in determining the non-standard conditions (if any) of a supervision order. Moreover, as Hall J pointed out in Director of Public Prosecutions v Decke,[27] '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order'.[28]
[26] The State of Western Australia v Garlett [2021] WASC 387.
[27] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14].
[28] The State of Western Australia v Garlett [2021] WASC 387 [143].
The court cannot make a supervision order in relation to an offender unless satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[29]
[29] HRSO Act s 29.
The standard conditions of a supervision order are set out in s 30 of the HRSO Act and include the requirement that the offender not commit a serious offence during the period of the order.[30]
[30] HRSO Act s 30(2)(f).
In determining whether an offender 'will substantially comply with the standard conditions of the order':
The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious ... offence.[31]
[31] The State of Western Australia v Hart [2019] WASC 4 [52].
Matters to be considered pursuant to s 7(3) HRSO Act
Antecedents and criminal history
Family background and relationships
The respondent was born on 9 May 1986 and raised in Western Australia. He is the eldest of two sons born to his parents, who separated when he was 7 years old. The respondent described his parents' relationship prior to that point as 'stable' and reported a good relationship with them both. After the separation, the respondent and his brother stayed with their father. The respondent was unable to recall how he felt at the loss of his mother at the time.[32]
[32] BOM Vol 2, 918.
The respondent's father then went to university to train as a teacher, leaving the family financially strained. After graduation, the respondent's family lived in various country locations while his father worked as a teacher. The respondent had intermittent contact with his mother during this time.[33]
[33] BOM Vol 2, 919.
The respondent reported that his father had difficulty coping with his challenging behaviour during this period, and became intimidatory and punitive in his punishment style, such as smashing plates and smearing food in the respondent's bed if he complained about or refused to eat his food.[34]
[34] BOM Vol 2, 919.
In year 6, the respondent moved to Perth to live with his mother and her then de facto, in order to attend a school with a gifted learning program. However, his poor behaviour continued, for which his mother physically disciplined him, usually with a belt across his back and legs.[35]
[35] BOM Vol 2, 919.
In year 7, the respondent located child exploitation images on his father's computer, which he was repairing. The images were sexually explicit images of very young female children. He said he found them arousing. He understood that he should not tell anyone what he had seen. A short time later the respondent's father's offending was discovered and he was later arrested and imprisoned for a lengthy period.[36]
[36] BOM Vol 2, 920.
At around the end of year 8, the respondent ran away from home. When he tried to return, his mother refused to allow him to do so. His father (before his incarceration) had also refused to take him back, and the respondent was ultimately taken into care.[37]
[37] BOM Vol 2, 920.
The respondent thereafter lived in foster homes, most of which he described positively, although in some he felt ignored and unwanted, and was neglected on occasion. While at times he has denied any history of physical or sexual abuse, to Dr Riordan he disclosed that he was assaulted physically by one of his foster carers who 'attacked' him with a pool cue, including hitting him in the genitals with it.[38] He continued to exhibit serious behavioural issues and was exposed to other young people with problems. It was not long before he came to the attention of police.[39]
[38] BOM Vol 3, 1062 [16]. The respondent was apparently awarded a redress payment in relation to the abuse and neglect he suffered while in care.
[39] BOM Vol 2, 920.
The respondent reported having his first serious girlfriend in year 8, with a girl of similar age. He was 13 when he first engaged in sexual intercourse. As an adult, the respondent has had 3 ‑ 4 intimate relationships with adult women, each lasting between 1 – 2 years, but also multiple sexual partners. The respondent's relationship with the mother of two of the victims of the offences for which he was sentenced in 2009 was marked by serious domestic violence. He has a daughter from that relationship, born in September 2008.[40]
[40] BOM Vol 2, 921.
After a long period without contact, the respondent commenced contact with his father, who is also in custody, via video link. In 2021, he was having limited contact with his mother by phone, but was estranged from his brother.[41]
[41] BOM Vol 2, 970.
The respondent is desirous of developing a relationship with his biological daughter. Whether and, if so, how, that occurs is under the supervision of the Department of Communities - Child Protection and Family Services (DCPFS). It is noted that the respondent has repeatedly maintained that he has remained in Western Australia in order to establish a relationship with his daughter, but would otherwise wish to move to Victoria.[42]
[42] BOM Vol 2, 972, BOM Vol 3, 1106 ‑ 1107 [185].
In 2025, the respondent described himself as someone who is 'socially proficient, easily able to establish and maintain peer relationship[s]'. He claimed to have always had 'heaps of friends', having established a wide base of support over time, and they became his 'family' after his own dissolved. From an early age, he commenced associating with an antisocial peer group, both at school and later when in care. He claimed to be well connected in the prison and to be able to get anything he wants.[43]
Education and employment
[43] BOM Vol 3, 1064 [22].
After the separation of his parents, the respondent was getting into trouble on a regular basis for being disruptive and failing to pay attention. His schooling was further disrupted by his father's teaching placements and his behaviour at home and at school worsened.[44]
[44] BOM Vol 2, 919.
After it was found that the respondent would benefit from attending a school with a gifted learning program, the respondent returned to Perth to live with his mother and her then de facto. However, his behaviour at school did not improve and he was suspended for being disruptive and for defiant behaviour towards the principal, which the respondent recalled as being the beginning of his problems with authority.[45]
[45] BOM Vol 2, 919.
The respondent reported being bullied at school because of his small stature, and said that students often tried to take his ADHD medication from him.
The respondent turned to tinkering with computers and became skilled at rebuilding them. This enabled him to earn money. He also started associating with an older peer group, who exposed him to alcohol and illicit substances. Ultimately, having been suspended on numerous occasions, he was asked to leave school, and did so at the end of year 8.[46]
[46] BOM Vol 2, 919 ‑ 920.
The respondent has a limited employment history, although from time to time he has supported himself in employment, usually relating to computers. At other times, he has been in receipt of Centrelink benefits.[47]
Substance abuse
[47] BOM Vol 2, 920.
The respondent commenced using cannabis and alcohol at the age of 13. He was readily able to access alcohol at home.[48] By the age of 14 he was attending raves and using ecstasy (MDMA), as well as inhaling butane gas and petrol.[49] At 16 years of age, he was ingesting, smoking and snorting amphetamines, before progressing to intravenous drug use. He has reported also being involved in the manufacture and distribution of methylamphetamines from this age.[50]
[48] BOM Vol 3, 1064 [23].
[49] BOM Vol 3, 1064 [23].
[50] BOM Vol 3, 1065 [24].
At the age of about 21 years the respondent was using alcohol daily, to the point of intoxication, but he reduced his use after suffering pancreatitis and claimed to have sustained that reduction since.[51] However, his prison records indicate that he was drinking up to approximately six standard alcohol drinks or up to a bottle of brandy a day on his admission to prison in 2019,[52] as well as using methylamphetamine on a daily basis. He justified his use as being similar in function to prescribed ADHD medication, but also admitted progressing to using it in a binge pattern.[53]
[51] BOM Vol 3, 1064 [23].
[52] BOM Vol 1, 340.
[53] BOM Vol 3, 1065 [25].
The respondent used opioids in the community, but 'consolidated' his use of this class of drugs while in prison, by regularly using buprenorphine (Subutex) and dimethyltryptamine (DMT). He received methadone treatment from 2009 to 2013, finding the withdrawal when the therapy was withdrawn to be difficult and unpleasant.[54] The respondent requested to again be placed on opioid replacement therapy in 2022, but was assessed as being unsuitable on the basis that he had no known or disclosed recent opioid use.[55]
[54] BOM Vol 3, 1065 [26].
[55] BOM Vol 3, 1071 [46].
The respondent admitted acquiring and consuming alcohol and illicit drugs during his present term of imprisonment, boasting of his ability to gain access to substances.[56] He has been documented as repeatedly requesting medication to manage nerve pain which has raised concerns that he was engaging in drug seeking behaviour.[57]
[56] BOM Vol 3, 1065 [27], ts 55.
[57] BOM Vol 3, 1071 [46].
The respondent is presently prescribed an anti‑depressant.[58]
Medical, psychiatric and psychological history
[58] BOM Vol 3, 1071 [47].
When he was in year 6, the respondent was diagnosed with Attention Deficit Disorder with Hyperactivity (ADHD) for which he was prescribed dexamphetamine. He is presently not medicated for this condition.
Testing revealed the respondent had a high intelligence quotient.
The respondent has reported that, when he was about 12 years old, he started receiving testosterone injections for a growth disorder.[59]
[59] BOM Vol 2, 963.
In 2009, Ms Hasson considered that the respondent had probably exhibited conduct disorder in his adolescence and presented a complex psychological picture, for which he had had little psychological intervention.[60]
[60] BOM Vol 2, 922.
While in custody, the respondent contracted Hepatitis C from sharing needles. He has been successfully treated.
The respondent has reported that he suffers from chronic back pain and nerve damage in his hand, for which he requires pain medication.[61]
Criminal history
Other serious offences
[61] BOM Vol 2, 1001.
On 19 June 2009, the respondent pleaded guilty to 20 charges of indecent dealing with a child under 13 years, 22 charges of indecently recording a child under 13 years, two charges of procured or encouraged a child to engage in sexual behaviour, and one charge of sexual penetration of a child under 13 years.
The offending all occurred between November 2007 and September 2008. The victims of these offences were the two children of his then girlfriend, and a third child, the friend of one of the other two children. At the time of the offending, the victims were aged between 18 months and 5 years of age.
The offending involved the respondent performing various indecent acts on the victim or procuring the victim to do indecent acts. His conduct included touching the victim's vagina while she was asleep, causing the victim to bend over and touch her vagina in a sexual manner, exposing his penis while he was wearing a child's nappy, exposing his penis to the victim or having the victim expose his penis, touching the victim inappropriately on her breast, lower stomach, exposed bottom and groin, kissing the victim's lower stomach area while she was asleep, pulling the victim's bottom cheeks apart with his hands to expose her vagina, having the victim sit on his lap with her legs spread in a sexually explicit pose (sometimes with her vagina situated directly over his exposed penis), standing over the victim with his penis exposed and touching himself in view of the victim, smacking the victim's bottom with his erect penis, and attempting to put his penis in the victim's mouth. On one occasion, the respondent placed his erect penis between the victim's legs and moved it inside her vagina before removing it and masturbating.
Either a visual recording or photograph, or both, was taken of every instance of offending. The recordings and images were discovered on a stolen laptop or hard drive in the respondent's possession. Tens of thousands of other images and videos of child exploitation material (CEM) were found on the stolen laptop, hard drives or memory cards in the respondent's possession. There were more than 59,000 images and movie files, including images of sexual penetration of children by adults and bestiality involving children.[62]
Other criminal history
[62] BOM Vol 2, 602 ‑ 610.
Since being sentenced for the index offences, the respondent has been convicted of six charges of breaching a family violence restraining order, one charge of obstructing a public officer, four charges of failing to comply with reporting obligations and four charges of breaching of a PSSO.[63] This offending included the respondent having unsupervised contact with children under the age of 16, reporting an address he did not reside at as his residential address, not disclosing email, social media accounts and phone numbers which were used to contact a person protected by a restraining order, and contacting a person protected by a restraining order using the prison telephone system.
[63] BOM Vol 1, 1 ‑ 2.
Between 2018 and 2019, the respondent was convicted of a number of offences, including five charges of breaching a PSSO (including by using illicit drugs), two charges of failing to comply with reporting obligations, possessing drug paraphernalia, breaching a family violence restraining order and assaulting a public officer.[64]
[64] BOM Vol 1, 5 ‑ 6.
In respect of the 2008 offending, the respondent was also convicted of four charges of possession of child pornography,[65] two charges of possessing or copying an indecent or obscene article, and one charge of possessing stolen or unlawfully obtained property. The respondent was also convicted in 2008 of breaching a violence restraining order and aggravated common assault, involving the mother of the children who were the victims of the 2007 and 2008 offending.[66]
[65] Contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
[66] BOM Vol 1, 11 ‑ 12, BOM Vol 2, 775 ‑ 776.
Prior to 2008, the respondent's criminal history was made up of offences relating to cannabis use, driving without a licence and driving while under fines suspension, wilfully misleading police, refusing to supply his identifying details, and stealing.[67]
Conduct while in custody
[67] BOM Vol 1, 12 ‑ 15.
While serving his most recent term of imprisonment, the respondent has been found guilty of a number of prison charges including use of an illicit drug (methylamphetamine and cannabis), use of a drug other than as prescribed, disobeying rules or orders and insubordination or misconduct.[68] He has also been involved in a very large number of incidents, including possession of prohibited items and substances, fights, engaging in threatening, abusive and aggressive behaviour, and making threats or attempts to self‑harm. He was also reported to have engaged in violent behaviour while resisting officers on a number of occasions.[69]
[68] BOM Vol 1, 29 ‑ 30.
[69] BOM Vol 1, 35 ‑ 237, 249 ‑ 251, 266 ‑ 269, 275 ‑ 323, 330 ‑ 334.
On 18 June 2023, the respondent was found to have photographs of a young female child in his personal property, apparently related to his criminal proceedings. He was also reported to have rubbed his erect penis against his cell mate's arm. He did not stop when asked and, when his cell mate got up to leave, the respondent was reported to have tried to stick his finger up his cell mate's bottom.[70]
[70] BOM Vol 1, 249.
Apart from one occasion in November 2020, when a sample from the respondent tested positive for amphetamines, the respondent has produced 51 samples, all of which tested negative for illicit substances.[71]
[71] BOM Vol 1, 337 ‑ 338.
The respondent's conduct during his most recent sentence is consistent with his conduct during the sentence imposed on him in 2009.[72]
[72] BOM Vol 1, 33 ‑ 34.
The respondent told Dr Riordan that if a person wanted to 'have fun and make friends' in prison, then they needed to become involved in various incidents to consolidate their position in the living unit. He claimed that prisoners are often jealous of him because 'he is a dirty rotten sex offender, and I can get drugs and other stuff, and they can't'.[73]
[73] BOM Vol 3, 1084 [98].
However, the respondent told Dr Riordan that in the last 12 ‑ 18 months, he had matured and made the decision to make an effort to desist from involvement in prison based incidents and charges.[74]
[74] BOM Vol 3, 1084 [98].
Since May 2024 the respondent's records show there have been limited incidents, albeit including one in which he was found with a quantity of suspected 'home brew' in his cell.[75]
Previous Response to Supervision
[75] BOM Vol 1, 275 ‑ 331.
In April 2019, the respondent was convicted of four counts of breaching a PSSO, and two counts of failing to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) (CP(OR) Act) committed between November 2018 and January 2019. The offending included failing to inform SOMS of his residential address, failing to attend appointments at SOMS or Community Corrections as required, failing to provide a valid urinalysis sample, and testing positive for methylamphetamine.[76]
[76] BOM Vol 1, 2 ‑ 3.
In November 2019, the respondent was again convicted of breaching the PSSO, by testing positive to cannabis.[77]
[77] BOM Vol 1, 5, BOM Vol 2, 846 ‑ 850.
As indicated above, in January 2022, the respondent was convicted of four counts of breaching the PSSO, and four counts of failing to comply with reporting obligations under the CP(OR) Act, committed in June and July 2019. The offending involved the respondent failing to properly update his address, failing to advise of his email address, and failing to provide a mobile phone number and details of a Facebook account, and having unsupervised contact with female children under the age of 16 years.[78]
[78] BOM Vol 1, 1 ‑ 2, BOM Vol 2 , 860 ‑ 864.
The index offences were committed while the respondent was subject to a PSSO. The offending period stated in the indictment commenced a week after the respondent's release on the PSSO.[79] That does not necessarily mean that the respondent offended within a week of his release on the PSSO. However, it was only about three weeks after his release that he entered into a relationship with the complainant's mother, and the respondent acknowledged that the relationship progressed rapidly and he started living with the complainant's mother in breach of the PSSO.[80]
[79] BOM Vol 2, 532.
[80] BOM Vol 3, 1070 [43].
During that period of supervision, the respondent engaged in 20 sessions of individual counselling in the community.[81] He initially complied with his reporting and supervision requirements. He attended urinalysis 28 times, with eight samples being positive to cannabis, one sample positive to methylamphetamine, two void samples and 17 negative samples.[82] By December 2018, his compliance deteriorated and after that, he completely disengaged from his order, which he attributed to drug use as a coping mechanism for the breakdown of his relationship, accommodation issues, and limited contact with his biological daughter.[83]
[81]BOM Vol 2, 974, 979.
[82] BOM Vol 2, 979.
[83] BOM Vol 3, 1114.
The respondent has lifetime reporting obligations under the CP(OR) Act.
Treatment Assessment Report dated 14 June 2022
In his first interview for the Treatment Assessment Report dated 14 June 2022, the respondent was reported to appear nervous and defensive, and to have questioned why he was being interviewed, given his completion of the Intensive Sex Offender Treatment Program (ISOTP) and Pathways programs during his previous sentence. However, in his second interview, the respondent seemed more relaxed.[84]
[84] BOM Vol 2, 981.
The respondent admitted the offending. He maintained a victim stance in relation to his breach offences.[85] Further, according to the report author, the respondent minimised the index offending, arguing that he did not commit any sexual offences because he 'just took photos' and did not sexually penetrate the victim or touch her genitals.[86]
[85] BOM Vol 2, 983.
[86] BOM Vol 2, 981.
The respondent was assessed as being at 'well above average risk of sexual reoffending'. It was recommended that he again participate in the Pathways and ISOTP programs.[87]
Reports prepared under s 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section
Psychiatric report of Dr Gosia Wojnarowska dated 22 April 2025
[87] BOM Vol 2, 986.
In her report dated 22 April 2025, prepared for the purposes of these proceedings, Dr Wojnarowska spoke with the respondent for a period of five hours, as well as reviewing the other materials produced by the State in support of its application.
Dr Wojnarowska observed the respondent to be engaging in impression management, and described his affect as 'mostly grandiose, reactive and mood congruent'. She considered there to be evidence of minimisation, justification and antiauthoritarian attitudes.[88]
[88] BOM Vol 3, 1047 [67] ‑ [68].
Dr Wojnarowska identified the characteristics of the respondent's offending as being:
(a)choice of victims: all female children aged between 2 and 5 years old, known to him;
(b)frequency: dense history from 2004;
(c)escalation: there is a 'very clear and concerning escalation' from generalist offending to serious sexual offending, as well as offending while subject to a PSSO;
(d)coercion: while the respondent denied grooming the victims, there is no doubt that he groomed the mother of his first victims and used treats to lure the victim into compliance; and
(e)associated factors: paedophilia, disrupted childhood attachment, parental imprisonment, substance use, predatory and planned offences.[89]
[89] BOM Vol 3, 1039 - 1040 [20] ‑ [24].
According to Dr Wojnarowska, the respondent indicated that he had a better relationship with his father than his mother. He remains close to his step‑brother, who is said to be supportive of him.[90]
[90] BOM Vol 3, 1044 [47].
When questioned, the respondent denied being a 'paedophile' and claimed that living in a home with a child was his only risk factor. He claimed the first victim of his offending was 'flashing him' and was 'flirtatious' which instigated his interest, but denied keeping photographs or using them for masturbation.[91]
[91] BOM Vol 3, 1044 ‑ 1045 [52] ‑ [54].
The respondent claimed that wearing a nappy (as he did in a photo) was a joke, and denied having urges to wear children's clothing. He said that images of children no longer interested him and minimised the quantity of CEM that had been found in his possession. He suggested he was convicted of more offences than he had committed.[92] He told Dr Wojnarowska that, 'DCP screwed us up, they took away our child, what I did was bad but DCP, how they dealt with it was worse.'[93]
[92] BOM Vol 3, 1045 [56] ‑ [57].
[93] BOM Vol 3, 1045 [57].
Dr Wojnarowska reported that the respondent was of the opinion that he would not reoffend. He again denied having a paedophilic interest in children[94] and said he would not be a danger in the community. He admitted he had thought the same after his first term of imprisonment, and said that if he had known at the start that his partner had a child, he would not have pursued a relationship with her. He was not prepared to take responsibility for what occurred.[95]
[94] ts 29.
[95] BOM Vol 3, 1046 [59] ‑ [60].
The respondent expressed a willingness to comply with the conditions of a supervision order, suggesting that he would be unable to offend if he were subject to them.[96]
[96] BOM Vol 3, 1046 [61].
The respondent claimed he intended to abstain from alcohol and substances in the community, although he was contemplating requesting medicinal cannabis and thought he would benefit from treatment for his ADHD.[97]
[97] BOM Vol 3, 1046 [65].
Dr Wojnarowska considered that the respondent has insight into his offending and understands the factors that are relevant to his offending, including the causal link between his substance use and his offending behaviours.
However, when questioned at the hearing, Dr Wojnarowska noted that there is evidence from research that psychopathic individuals do not necessarily benefit from programmatic interventions but may simply use the knowledge gained to demonstrate change without there having been actual change.[98]
[98] ts 39.
While the respondent reported being remorseful for his behaviours and how he impacted his victims, Dr Wojnarowska hesitated to accept that he actually was.[99]
[99] ts 38.
In Dr Wojnarowska's opinion, the respondent does not currently present with symptoms suggestive of a major psychiatric disorder, but exhibits features of paraphilic disorder, and his previous sexual offending indicates the presence of a sexual deviance, namely Paedophilia, non‑exclusive type, attracted to female children. He also has a history of other paraphilic interests such as bestiality[100] and fetishism.[101]
[100] BOM Vol 3, 1047 – 1048 [70] ‑ [71].
[101] ts 30.
The respondent also, in Dr Wojnarowska's assessment, fulfils the criteria for Antisocial Personality Disorder, as evidenced by his history of breaking the law, acting impulsively and lacking regard for the authority and safety of others. He also presents with narcissistic traits, characterised by inflated self‑image, grandiosity, egocentricity and self‑serving behaviours.[102]
[102] BOM Vol 3, 1048 [73].
Finally, the respondent also fulfils the criteria for Substance Use Disorder (opiates, methamphetamine and cannabis), which is presently in remission since his most recent imprisonment.[103]
[103] BOM Vol 3, 1048 [74].
Dr Wojnarowska was of the view that the respondent's childhood diagnosis of ADHD was supported by her observations on examination of the respondent.[104]
Assessments
[104] BOM Vol 3, 1048 [74].
Dr Wojnarowska administered the STATIC‑99R[105] actuarial risk assessment tool, on which the respondent's score placed him in the Well Above Average Risk category for sexual reoffending. In routine samples of individuals with the same score, the 5 year recidivism rate is between 36% and 45%, meaning that of 100 sexual offenders with the same score, between 36 and 45 would be charged or convicted of a new sexual offence in the community (and between 64 and 55 would not). The recidivism rate of sexual offenders with the same score would be expected to be 7 times higher than that of a typical sexual offender.[106]
[105] Dr Wojnarowska noted that the STATIC‑99R has moderate accuracy, and the recidivism risk predicted could be higher or lower than the actual risk: ts 41.
[106] BOM Vol 3, 1049 [80] ‑ [83].
On the Hare Psychopathy Checklist ‑ Revised, (PCL‑R), the respondent's score was 24, one point short of the threshold of psychopathy. All four facets were equally elevated. Dr Wojnarowska considered this to be consistent with the respondent's clinical presentation.[107]
[107] BOM Vol 3, 1049 [84].
Dr Wojnarowska also applied the RSVP, a structured professional judgement assessment tool. She considered that the factors of chronicity of sexual violence, psychological coercion, extreme minimisation and denial of sexual offence, problems with self‑awareness, problems with stress and coping, problems resulting from child abuse, sexual deviance, substance use, psychopathic personality disorder, problems with relationships, problems with education and employment, problems with treatment and problems with supervision were present or partially present.[108]
Risk scenarios
[108] BOM Vol 3, 1050 ‑ 1055 [85] ‑ [114].
As to the respondent's most likely risk scenarios, Dr Wojnarowska observed that his previous offending was planned and predatory, and involved grooming of the mothers of the victims. In her opinion, the most likely scenario would be for the respondent to enter a relationship with a woman who has young children. He would likely present as not interested in children, and then after gaining the mother's trust start grooming the child/children. He would likely attempt many scenarios to satisfy his deviant sexual interest, and would likely record images of his victims for future use. The offending would not likely start with penetration but could quickly escalate.[109]
[109] BOM Vol 3, 1055 [115].
As Dr Wojnarowska observed, the psychological harm of such conduct is likely to be significant. In her view, the respondent is not likely to use physical coercion or additional violence, but, once he engages in such offending, it has the potential to occur frequently. It may or may not occur in the context of substance use but would involve a high degree of grooming and manipulation. It is unlikely to involve him forcing a female child unknown to him into a sexual act.[110]
[110] BOM Vol 3, 1055 [116] ‑ [117].
In her evidence at the hearing, Dr Wojnarowska said that given the unaddressed and unacknowledged presence of sexual deviance, namely paedophilia, and the respondent's significant history of accessing CEM, it was her opinion that, in the absence of restriction, it would also be very likely that the respondent would commit a further CEM offence.[111]
[111] ts 29.
Dr Wojnarowska was of the view that there may not be any specific warning signs in the respondent's case, but failure to comply with conditions of any order, including substance use, increased contact with antisocial peers and withdrawing from psychological counselling should be considered as such.[112]
Conclusion as to risk assessment
[112] BOM Vol 3. 1055 ‑ 1056 [118] ‑ [119].
According to Dr Wojnarowska, it would be difficult to safely manage the respondent's risk in the community at this time. His sexual deviance appears unchanged from his first offending, and he still appears grandiose, antiauthoritarian and lacking insight, while exhibiting impulsivity and immaturity for his age.[113] In her view, the respondent may find it more difficult to comply with more strict conditions than the PSSO, and his ADHD might affect his ability to comply with reporting conditions, although Dr Wojnarowska did not regard his ADHD as a major impediment to compliance. It was the respondent's high level of sexual deviance which she considered would cause the respondent the most difficulty.[114]
Treatment and accommodation options
[113] BOM Vol 3, 1056 [123].
[114] ts 47.
Dr Wojnarowska indicated treatment will most likely require individual criminogenic treatment with an experienced forensic psychologist through the Forensic Psychological Intervention Team (FPIT).[115] She accepted that the restrictions the respondent is presently under in custody are 'not conducive to him preparing for life in the community'.[116]
[115] ts 31.
[116] ts 40.
In Dr Wojnarowska's opinion, non‑stimulant ADHD medication would be inappropriate for the respondent, given its potential to raise testosterone levels, and stimulant medication is not available in custody.[117] She did suggest that he be assessed for suitability and motivation to be trialled on anti‑libidinal medication,[118] although this can only be done in the community.[119] Dr Wojnarowska also suggested that pharmacological treatment for drug use could be considered, although that would need to be delivered in conjunction with simultaneous psychological treatment.[120]
[117] BOM Vol 3, 1056 ‑ 1057 [127].
[118] BOM Vol 3, 1057 [128].
[119] BOM Vol 3, 1125.
[120] BOM Vol 3, 1056 [126].
As to the accommodation options presently available for the respondent, Dr Wojnarowska did not regard either as suitable, having regard to the fact that vulnerable people lived in the immediate vicinity, as well as the presence of other high risk serious offenders living nearby.[121]
Psychological report of Dr Kathryn Riordan dated 14 May 2025
[121] ts 31 ‑ 32.
For her report dated 14 May 2025, prepared for the purposes of these proceedings, Dr Riordan interviewed the respondent on three occasions in March and April 2025, for a total of 6.5 hours.[122]
[122] BOM Vol 3, 1059 [8].
To Dr Riordan, the respondent presented as able to sustain good attention and concentration, his mood was stable and neither elevated nor depressed, and his affect was 'reactive, at times expansive, and broadly congruent'. He reported being 'irritated' by the proceedings and assessment but impressed as providing information in an open and candid manner, with Dr Riordan describing his engagement style as 'remarkable' for its candour and openness to discussing his sexual offending and paraphilia, while saying he was not 'comfortable' with the label of 'sex offender'.[123]
[123] BOM Vol 3, 1059 ‑ 1060 [9] ‑ [10].
Dr Riordan considered there to be 'evidence of impression management, grandiosity and grooming behaviour, most notably in the form of providing commentary and feedback on my interviewing style and making comment on my overall presentation'.[124]
[124] BOM Vol 3, 1060 [10].
The respondent provided a history consistent with earlier reports. He told Dr Riordan that he had inadvertently contributed to his father's arrest, by asking a friend to download a game onto a device which had CEM on it. The respondent disclosed that he had always struggled with guilt about this.[125] He also recalled finding material suggesting his first girlfriend was a victim of his father's offending.[126]
[125] BOM Vol 3, 1061 [13].
[126] BOM Vol 3, 1065 - 1066 [28], 1068 [36].
The respondent continues to have feelings of abandonment and resentment towards his mother, due to her absence after his parents' separation, and then her rejection of him as a teenager due to his challenging behaviours which ultimately resulted in him being taken into care.[127]
[127] BOM Vol 3, 1061 ‑ 1062 [15].
The respondent has had contact with his father, who has at times been incarcerated in the same facility as the respondent. The respondent disclosed that he found it difficult being his father's son, given his father's well‑known history.[128]
[128] BOM Vol 3, 1061 [14].
The respondent told Dr Riordan of his experience finding a cache of CEM on his father's computer, resulting in confusion, curiosity and shock.[129] At 13, around the age of his first sexual intercourse, he found sexual toys in his mother's room, as well as images and videos of his mother engaged in sexual acts. He watched one of the videos with a friend, resulting in sexual dreams depicting his mother, also causing him to feel confused.[130]
[129] BOM Vol 3, 1065 ‑ 1066 [28].
[130] BOM Vol 3, 1066 [29].
The respondent described a strong interest in pornography. At around the time of the 2009 offences, the respondent engaged in a pattern of compulsive searching, viewing and cataloguing of pornography, including CEM, sexual violence and bestiality. This became an obsession and occupied large parts of his day. He was motivated by his desire for risk taking, trying to find the most 'taboo' image or video, resulting in a 'dopamine hit' which reinforced his desire to find more images. He described meticulously cataloguing each image, to use later for sexual gratification or masturbation. He denied sharing any images.[131]
[131] BOM Vol 3, 1066 ‑ 1067 [30], 1077 [69].
Dr Riordan reported that the respondent acknowledged that he used various classes of illicit drugs to heighten his senses and enhance the euphoria experienced during sex with his intimate and casual partners, and experimented with different drugs during sex to diversify his sexual experiences.[132]
[132] BOM Vol 3, 1065 [25].
The respondent denied belonging to any sexual subculture, or engaging in or being aroused by sexual violence. However, contrary to what he told Dr Wojnarowska, he did acknowledge his sexual interest and fetishism in wearing nappies, which he speculated resulted from his mother telling him off for wearing a nappy during childhood. He said that the disinhibiting effects of methylamphetamine use facilitated this interest, and he employed his fetish to prolong sexual arousal. He said he often tried to avoid ejaculation, and described a state post ejaculation which Dr Riordan said was consistent with Postcoital Dysphoria, a condition characterised by the experience of negative emotional states after an otherwise satisfactory sexual experience. Dr Riordan hypothesised that a desire to avoid Postcoital Dysphoria could have contributed to the respondent's sexual offending.[133]
[133] BOM Vol 3, 1067 [32].
The respondent claimed to be proficient at gaining the attention of sexual partners.[134] He has had a number of relationships as well as casual sexual encounters. Some of those relationships have been marred by illicit drug and alcohol use, and violence, particularly his relationship with the mother of the victims of the offending for which he was sentenced in 2009.[135] He admitted to experimenting with another man on one occasion, but made it out to be out of benevolence, rather than his own sexual interest. He said he was not motivated to engage in same sex sexual activity again.[136]
[134] BOM Vol 3, 1067 [31].
[135] BOM Vol 3, 1068 - 1070 [36] ‑ [42].
[136] BOM Vol 3, 1067 ‑ 1068 [33].
The respondent maintained he is attracted to adult women, but conceded he possesses a latent sexual attraction to young girls, aged between 18 months and 5 years. He was attracted to similar features to those he found attractive in women, such as soft skin, smell and taste, but a 'potent driver' of his sexual interest also appeared to be risk taking, and the taboo associated with sexual behaviour with a child. He denied any intention of engaging in penetrative sex with any child, on the basis that it would hurt them and/or be physically difficult.[137]
[137] BOM Vol 3, 1068 [34], 1078 [71].
According to Dr Riordan, the respondent appears to have resisted fulfilling social or family roles with any of his child victims, keeping a psychological and relational distance from them.[138] However, he did occupy the role of primary care provider for the victims of the offences for which he was sentenced in 2009. He perceived their behaviour as being at times sexually provocative and struggled to manage his paraphilic sexual interest in them. His capacity to do so was further undermined by his drug and alcohol use;[139] he said he was then consuming a large quantity of methylamphetamine daily.[140]
[138] BOM Vol 3, 1068 [34].
[139] BOM Vol 3, 1069 - 1070 [42].
[140] BOM Vol 3, 1077 [69].
In relation to the offending for which he was sentenced in 2009, the respondent agreed that having easy access to the victims facilitated his offending, and that his volatile relationship with his then partner contributed to a sense of dissatisfaction in his intimate and sexual relationship with her. He alleged that, as his relationship with his partner declined, he started to become sexually aroused by what he claimed to be sexually disinhibited behaviours of one of his victims, and that acted as a catalyst to his offending.[141]
[141] BOM Vol 3, 1077 ‑ 1078 [69] ‑ [70].
In discussing the index offending, the respondent claimed that his partner indulged his fetishes. He minimised his conduct in taking photos of the victim, as well as denying that he kept the images for his own sexual satisfaction.
The respondent denied having sought out his partner because she had a young daughter. He claimed the victim demonstrated few protective behaviours, and perceived him to be a father figure, while he did not have as much care for her. However, when pressed, he conceded he was likely fantasising about her while engaging in sexual intercourse with her mother.[142]
[142] BOM Vol 3 1074 ‑ 1075 [58] ‑ [59].
The respondent denied fulfilling the diagnostic criteria for paedophilia, while admitting having developed paedophilic sexual interests. He also accepted that he fulfils the diagnostic criteria for Fetishistic Disorder.[143]
[143] BOM Vol 3, 1068 [35].
According to Dr Riordan, the respondent disclosed drawing upon the use of Non‑Suicidal Self‑Injury as a form of protest and expression of anger, although the documented incidents of attempted or actual self‑harm were far more extensive than he described. He adamantly denied being a risk of harm to himself.[144]
[144] BOM Vol 3, 1072 ‑ 1073 [51].
In Dr Riordan's analysis:
[The respondent's] pattern of sexual and violent offending is underpinned by a range of distal static factors related to cumulative disadvantage from [the respondent's] multiple adverse early childhood experiences that have spanned the full spectrum of harm across all critical periods of development. He reported sharing an emotionally invalidating relationship with both his parents, resulting in disorganised attachment relationships ... [his] early life experiences contributed to an insecure, unpredictable and volatile base of support. He was placed in out of home care as an adolescent, where he experienced multiple placement breakdowns, neglect, physical abuse and possible sexual/indecent assault, further undermining his sense of safety and reinforcing his established internal representation of the world as unsafe, and that no one can be trusted. Contextually, in out of home care, [the respondent's] early growth and development occurred within community, and social contexts that normalised, condoned, and encouraged anti-authoritarian and anti-social beliefs and attitudes, including the use of violence to meet needs, express emotional states, resolve conflict, have fun, and assert power and dominance. The cumulative effect of this developmental trauma, chronic and recurrent experiences of rejection and perceived abandonment from all primary care providers has undermined [the respondent's] psychosocial, emotional and moral development, contributing to the development of a narcissistic self-focus and a psychopathic personality structure.[145]
[145] BOM Vol 3, 1085 ‑ 1086 [103].
Dr Riordan observed that the respondent was exposed to inappropriate sexual material and activity in the care of both of his parents, and it would appear as though this early exposure contributed to him forming the belief that both parents were engaged in sexually deviant behaviour, which to some extent normalised his behaviour and his own early initiation into sex and sexual exploration.[146]
[146] BOM Vol 3, 1086 [104].
It was not possible for Dr Riordan to form an opinion as to the obvious parallel between the offending behaviour of the respondent and that of his father, given that she has not assessed the respondent's father. However, in her view, the respondent's early exposure to CEM is a relevant distal factor to the respondent's early interest and initiation into sexual behaviour, and likely his deviant sexual interest in young female children. If the respondent was given testosterone injections to stimulate his growth (which has not been confirmed), this might have inadvertently exacerbated his sexual interest and libido at a critical period of his development.[147]
[147] BOM Vol 3, 1086 [104].
Dr Riordan noted that the respondent has demonstrated an ability to establish and maintain sexual relationships with same aged and adult women, indicating that he does not hold exclusively paedophilic sexual interests and opined:
[The respondent's] lifestyle throughout late adolescence and adulthood appears to have been strongly driven by hedonistic pursuits to maximise his experience of self-gratification through pleasure and avoid the experience of emotional pain associated with rejection, abandonment and adult responsibility. Sex, sexual behaviour and drug use have played a dominate role in this regard. By his own admission, [the respondent] becomes sexually aroused by risk taking behaviour, and pushing the boundaries of moral, behavioural, social and sexual decency.[148]
[148] BOM Vol 3, 1086 ‑ 1087 [105].
Referring to the respondent's obsessive collecting and cataloguing of CEM and other pornography prior to 2009, Dr Riordan noted that:
[H]is prolonged engagement in this activity, sexual arousal, masturbation and associated euphoria to the contents of this material served to strength[en] his deviant sexual interests and deviant sexual fantasy. The same drive to prolong sexual arousal appears to have underpin[ned] his sexual offending.[149]
[149] BOM Vol 3, 1086 ‑ 1087 [105].
Based on the totality of the information reviewed, Dr Riordan was of the opinion that the respondent fulfils the criteria for a Paedophilic Disorder, Non‑exclusive type, sexually attracted to young female children, and a Fetishistic Disorder, involving Non‑living objects, namely nappies, currently in remission due to being in a controlled environment. The respondent also fulfils the criteria for a Substance Abuse Disorder.[150]
[150] BOM Vol 3, 1086 ‑ 1087 [105].
In Dr Riordan's opinion, consistent with his psychopathic personality structure,[151] there is a transactional quality to the respondent's relationships. He appears to equate sex with acceptance, intimacy, love, loyalty and power and therefore demands his intimate partners meet his need for sex and sexual behaviour. However, Dr Riordan found little evidence to support his assertion that a lack of sex, sexual behaviour and sexual gratification with his adult partner has underpinned his sexual offending, noting that his most recent partner willingly participated in exploring and facilitating his fetishist interests. It was of concern to Dr Riordan that the respondent was unable or unwilling to manage his deviant sexual interests in children even when in a relationship which provided the opportunity to freely express his sexual idiosyncrasies to meet his sexual needs.[152]
[151] See [140] ‑ [141] below.
[152] BOM Vol 3, 1087 [106].
Dr Riordan noted that the respondent maintains that his deviant sexual interest in and sexual attraction to, young female children is best managed through external constraints on victim access.[153]
[153] BOM Vol 3, 1087 [106].
As to the respondent's use of violence, Dr Riordan was of the view that substance use, interpersonal conflict, challenges to his authority, status in the relationships, masculinity, intelligence and engaging in behaviour that the respondent does not approve of appear to be 'potent precursors to acts of intimate partner violence', resulting in a clear violence cycle. His use of violence has been reinforced and validated by his strong cognitive distortions rationalising his behaviour as proportionate, necessary and justified. His willingness to use weapons is a risk factor requiring close monitoring.[154]
[154] BOM Vol 3, 1087 - 1088 [107].
Further, the respondent's ongoing reliance on threats and verbal aggression to intimidate when emotionally heightened is a strong indication of his ongoing commitment to the use of interpersonal aggression to have his voice heard and needs met.[155]
[155] BOM Vol 3, 1087 - 1088 [107].
While not of itself associated with sexual recidivism, the respondent's apparent limited capacity for perspective taking and victim empathy is likely to be a function of his cognitive distortions and offence-supportive beliefs that view women and very young girls as sexual objects and rationalising his offences as innocuous given they are not penetrative. Adhering to such cognitive distortions contributes to the respondent not perceiving his conduct as harmful.[156]
[156] BOM Vol 3, 1088 [108].
Dr Riordan observed in her evidence that while the respondent definitely understands that his offending is not socially acceptable, and can and has possibly caused harm, he is not moved by that experience to the extent that he is prevented from repeating his behaviour.[157]
Assessments
Psychopathy Checklist ‑ Revised, 2nd Edition (PCL-R)
[157] ts 56.
The respondent was assessed for psychopathy, which is conceptualised as a neuropsychiatric disorder characterised by marked deficits in an individual's emotional responses, lack of empathy, impulsivity and poor behavioural controls which often results in persistent involvement in an antisocial lifestyle and criminal behaviour.[158]
[158] BOM Vol 3, 1088 - 1089 [110].
When the respondent's life history, file information and interview data is considered against the items of the PCL‑R, he met the clinical score for psychopathy. His profile was unevenly distributed across the two factors of Interpersonal/Affective components and Social Deviance, with the higher scores being in the latter factor. However, he also presented with a constellation of interpersonal and affective traits that are commonly associated with psychopathy, the most prominent being a grandiose sense of self-worth, shallow affect, lack of remorse or guilt, and failure to accept responsibility. It was the presence of those traits which, in Dr Riordan's view, indicated the presence of psychopathy rather than antisocial personality disorder.[159]
STATIC-99R and STABLE‑2007
[159] BOM Vol 3, 1090 [116].
In combination, Dr Riordan used the STATIC‑99R and STABLE‑2007 risk assessment tools, measuring static and dynamic risk factors, to arrive at an overall assessment of the respondent's sexual recidivism risk.
According to Dr Riordan, applying the STATIC‑99R Coding Rules, the respondent was placed in the Well Above Average Risk category for being charged or convicted of another sexual offence, using the standardised risk level framework. Individuals who fall within this category often have many criminogenic needs, most of which are chronic and severe, and likely have limited access to prosocial resources.[160]
[160] BOM Vol 3, 1091 [119].
The rate of sexual reoffending for individuals in this category is about three to four times the average rate of reoffending for the overall population of individuals convicted of sexually motivated offences. In routine samples of men charged or convicted of a sexual offence, the average 5 year sexual recidivism rate is between 5 and 15%. In routine samples of individuals with the same STATIC‑99R score as the respondent, the sexual recidivism rate is 31% (with a 95% confidence interval of 27 ‑ 35.4%).[161]
[161] BOM Vol 3, 1091 [120] ‑ [121].
The dynamic risk factors measured by the STABLE‑2007 include personal skills deficits, predilections and learned behaviours that correlate with sexual recidivism but can be changed through a process of 'effortful intervention', being treatment, supervision or a combined approach.
The respondent was scored as High on the STABLE‑2007, with the most prominent dynamic risk factors identified pertaining to the respondent's:
…very limited network of prosocial influences, his high level of negative emotionality, high level of impulsivity, poor problem solving skills, high level of sexual preoccupation/sex drive, his use of sex as a form of coping and strong deviant sexual interest, difficulties with the quality and tenor of previous intimate relationships and poor level of cooperation with supervision.[162]
[162] BOM Vol 3, 1092 [123].
In Dr Riordan's opinion, when combined, the respondent's scores on these measures place him in the Well Above Average Risk category for supervision and intervention using the standardised risk framework.[163] The expected 5 year recidivism rate of individuals with his combined score was 46.5%, with a margin of error for this estimate being 35.7 ‑ 57.7%.[164]
Violence Risk Scale 2nd Edition (VRS 2)
[163] BOM Vol 3, 1092 [124].
[164] BOM Vol 3, 1092 [125].
The respondent's risk of violent reoffending was assessed using the Violence Risk Scale, 2nd Edition (VRS 2), which is an actuarial risk assessment tool, comprised of six static and 17 dynamic variables that are combined to provide an assessment of violence risk.
On the static factors, being his current age, his age at first violent conviction, number of young offender (juvenile) convictions, violence through the lifespan, breaches of legally mandated conditions and stability of family upbringing, the respondent's total score was 14 out of a possible 18.[165]
[165] BOM Vol 3, 1094 ‑ 1095 [131] ‑ [138].
As to his dynamic variables, the respondent scored most highly on the factors of violent lifestyle, criminal personality, criminal attitudes, criminal peers, interpersonal aggression, emotional control, violence during incarceration, weapon use, substance related problems, stability of relationships with significant others, community support, release to high risk situations, violence cycle, cognitive distortions, compliance with community supervision, and security level of anticipated release institution. All but the latter were identified as areas of treatment need.
The respondent's total score for the dynamic variables was 54 out of a possible 60.[166]
[166] BOM Vol 3, 1095 ‑ 1101 [139] ‑ [161].
The respondent's total score placed him in the Well Above Average Risk category. Those assessed as being in this level have needs that are chronic, severe and longstanding, and may also have many non‑criminogenic needs and require higher intensity intervention and supervision, with the prognosis from effective treatment expected to take several years before sustained risk reduction is achieved.[167]
[167] BOM Vol 3, 1102 [164].
Offenders in the normative sample who were also assessed to fall in the same category of the respondent were calculated to have a violent recidivism rate of 49% over a three year period, with a 95% confidence interval between 40.6% and 57.5%. The five‑year predicted violence recidivism rate was 66.3%, with a 95% confidence interval between 68.3% and 80.7%.[168]
[168] BOM Vol 3, 1102 [165]
It is important to note that the risk assessment relates to all violent reoffending, not 'serious' offending as that term is defined in the HRSO Act.[169]
Respondent's motivation to change
[169] ts 63.
Dr Riordan assessed the respondent's motivation to change across each of the identified treatment needs fell within the pre‑contemplative or contemplative stage of change, reflecting either a failure on the part of the respondent to identify the area as an area of concern for him, or being unable to demonstrate any active steps to addressing the treatment need, due to apathy or indecision. The exception was in the area of institutionalised violence, where the respondent was rated within the preparation stage of change.[170]
[170] BOM Vol 3, 1103 [167].
Dr Riordan noted that the respondent has engaged in treatment intervention in the past, with limited outcomes. In her opinion, the most prominent responsivity factor is the respondent's psychopathic personality structure, which research establishes can be a barrier to therapeutic alliance with treating clinicians, as well as responsibility taking, developing insight, challenging distorted thinking and recognising harm inflicted onto others.[171]
Risk scenarios
[171] BOM Vol 3, 1103 [168].
In Dr Riordan's assessment, the most likely future sexual offence scenario involves the respondent accessing and possessing CEM to facilitate sexual arousal and satisfy his sexual needs. His level of computer literacy may increase his ability to conceal supervision and monitoring efforts. Dr Riordan warned that the onerous conditions of a Supervision Order, such as conditions which prevent him engaging in casual sexual encounters with women,[172] may inadvertently increase his proclivity to acting in this manner.[173]
[172] BOM Vol 3, 1104 [175].
[173] BOM Vol 3, 1104 [171].
A further potential scenario is that the respondent will engage in a sexually harmful manner towards a female child under the age of 10 years, who is known to him. This is more likely to occur in the context of the respondent having established an intimate relationship with the child's mother/guardian, thereby facilitating access to the victim. The offending may, but not necessarily will, be facilitated by the respondent's use of alcohol or drugs. The victim would likely suffer significant psychological, sexual and physical harm.[174]
[174] BOM Vol 3, 1104 [172].
Dr Riordan gave evidence that, given the respondent's computer literacy, be would potentially be able to be more covert in his ability to search for CEM. Further, he is able to present in a way which is superficially charming, and would likely be able to maintain a façade of not engaging in that behaviour while covertly doing so, as he has in the past. To that extent, there may be few warning signs of reoffending.[175]
Conclusion as to risk assessment
[175] ts 52.
In her evidence at the hearing, Dr Riordan expressed the opinion that the excitement and arousal the respondent achieves or experiences through engaging in criminal behaviour will make compliance with orders more difficult for the respondent, on the basis that it impacts on his motivation to comply.[176]
[176] ts 49.
Dr Riordan also observed that it would be very difficult for the respondent to stay away from antisocial peers, mainly because he doesn't have any established prosocial peers, but also because he is likely to feel more comfortable with antisocial peers.[177] It is to be noted there are significant barriers to the respondent being able to form relationships with prosocial peers, including his offending history.
[177] ts 50 ‑ 51.
Ultimately, it was Dr Riordan's opinion that, while the respondent has the capacity to comply with a restriction order, he lacks the motivation to do so.[178]
[178] ts 52.
In Dr Riordan's opinion, based on the totality of the evidence available, the respondent poses a well‑above average risk of sexual reoffending (and generalist violent reoffending) if his risk factors are not adequately managed by a restriction order.
Treatment
As to treatment, Dr Riordan observed that:
[The respondent] has the interpersonal and cognitive capacity to easily understand the course contents and feign interest, engagement and intellectual treatment gains. He has to date, lacked the internal motivation to change. While the respondent would undoubtedly benefit from criminogenic treatment that targets both his use of violent and sexually harmful behaviour, his motivation to do so is likely to be compliance focussed rather than driven by a genuine attempt at behaviour and lifestyle change.[179]
[179] BOM Vol 3, 1088 [109].
Dr Riordan expressed the view that, because the respondent's motivation to engage in treatment was, at the time of her assessment, externally driven to secure his release from prison, any treatment program would require a considerable amount of motivational interviewing to increase his motivation to enact change and self-manage his risk of reoffending.[180]
[180] BOM Vol 3, 1107 [187].
Effective risk management would require a multidisciplinary approach to ensure adequate monitoring, treatment, supervision and safety planning.[181] He would also benefit from ongoing individual intervention through the FPIT.[182]
Any other medical, psychiatric, psychological or other assessment relating to the offender
Community Supervision Assessment of Ms Nicole Bennetts dated 14 May 2025
[181] BOM Vol 3, 1106 [182].
[182] BOM Vol 3, 1107 [186].
I have been provided with the report of Ms Nicole Bennetts dated 14 May 2025.
Ms Bennetts indicated that the respondent has been in communication with her on numerous occasions regarding his accommodation options and expressing his frustration with the time the proceedings are taking. Ms Bennetts reported that the respondent impressed as being of the view that he was entitled to release if he was able to source accommodation, based on his self‑assessment that his risk of reoffending is manageable in the community.[183]
[183] BOM Vol 3, 1111 ‑ 1112.
Ms Bennetts expressed concerns that the respondent was unable to present firm plans as to how he would establish new prosocial peer groups or strategies to avoid antisocial peer associations if he were to be released.[184] The respondent reported having the support of his step‑brother and peer group in the community, and that he expected to reconnect with his mother if released. He also intended to have contact with his father.[185]
[184] BOM Vol 3, 1112.
[185] BOM Vol 3, 1120.
Given the respondent's acknowledgement that his acquisition of peers has largely been connected to illicit substance use, association with old peers is a risk factor for the respondent.[186]
[186] BOM Vol 3, 1120.
Some facilitated contact by letter has taken place between the respondent and his 16 year old daughter. The contact is monitored by the DCPFS, who hope to be able to increase contact in a staggered approach. However, there are concerns of phone contact through a third party. Further, given the child's age, she is entitled to make some decisions on her own, although she will be supported in her decisions. DCPFS do not support unsupervised contact.[187]
[187] BOM Vol 3, 1119 ‑ 1120.
The respondent did take up assistance from ReSet, a support agency for prison and post‑release support. However, having regard to ReSet's contractual obligations in relation to high risk serious offenders with a sexual offending history, the respondent was exited from its support on 23 January 2025. The respondent has declined to be referred to Uniting WA for reintegration support at this stage.[188]
[188] BOM Vol 3, 1121.
The respondent has been referred to Uniting WA for assistance with accommodation, but for that assistance, he needs to undertake an assessment, and to be open to reintegration support as well. ReSet is unable to assist the respondent with accommodation.[189]
[189] BOM Vol 3, 1120 ‑ 1121.
The respondent originally proposed accommodation in a multi‑storey unit complex. A desktop spatial assessment of the property was carried out by the Western Australian Police Force (WAPF). WAPF have said there are six people who live at those premises who have significant criminal histories, including violent and drug offending. There is also information which indicates that there are vulnerable women and children living in the immediate environs who have been involved in family violence incidents in the last 12 months. One convicted child sexual offender lives in the complex, and two others reside within 1 km of the address.
An alternative address is also available. It is a four bedroom house. WAPF conducted a desktop spatial assessment of it. The property is within easy walking distances of shops, secondary and primary schools, at least ten recorded child care centres, and a park frequented by unsupervised children during the evening. WAPF has information suggesting that there is a significant number of families, some with children, living within 500 m of the proposed address, that have been subject to multiple domestic violence incidents in the last 12 months. Another convicted child sexual offender lives within 500 m of the address. Another person who has been declared a high risk serious offender also lives at the address, but can be relocated if required.
There are concerns with the second address having regard to the location of one of the respondent's victims.
The respondent is on the waitlist for public housing, and has been since 2021.
The respondent does not presently have any plans for employment.[190] While he would like to return to a role in the information technology space, there are issues with his access to computers and the internet which will need to be managed in the event that he does so.
Treatment Options Report of Emma Cashmore dated 19 May 2025
[190] BOM Vol 3, 1122.
Unfortunately, the respondent has not been afforded the opportunity to engage in any psychological intervention since he completed the Pathways program in 2023. A referral to the FPIT has been completed and accepted, but the allocated psychologist could not engage with the respondent until 6 June 2025.[191] This can take place weekly in the community or fortnightly in the custodial setting.[192]
[191] Treatment Options Report dated 19 May 2025 [10].
[192] BOM Vol 3, 1119, Treatment Options Report dated 19 May 2025 [10].
Ms Cashmore gave evidence that, if the respondent were made subject to a continuing detention order, there would be difficulties in providing the respondent with a further opportunity to participate in the ISOTP, given the stance of the authorities as to where the respondent would be incarcerated, and the location of another prisoner with whom the respondent cannot be imprisoned.[193]
Previous Reports
Psychological report of Ms Julie Hasson dated 24 May 2009
[193] ts 65 ‑ 66.
Ms Hasson prepared a psychological report for the purposes of the respondent's sentencing in 2009. Ms Hasson reported that the respondent was polite and cooperative and a good level of rapport was established.
Ms Hasson reported that the respondent fully acknowledged the offending for which he was to be sentenced. He claimed it was opportunistic. He admitted being aroused by the CEM he had collected and to masturbating while viewing the images or at the memory of them. He said he would often view it at the end of a 'drug binge'.[194]
[194] BOM Vol 2, 922 ‑ 923.
The respondent told Ms Hasson that he had a longstanding interest in pornography from the age of 15 years, when he began trading with mates. This was limited to 'mainstream' pornography, but once the respondent had access to the internet, his interests diversified.
The respondent also acknowledged various fetish activities, which he found both reassuring and arousing.
In Ms Hasson's opinion, the respondent's sexual offending closely resembled that of his father, both as to the age and gender of victims and the mode of offending. While the respondent was never abused by his father, Ms Hasson suggested that the respondent's exposure to the CEM on his father's computer and his awareness of his father's interest in female children influenced his own sexual offending. Ms Hasson considered that the respondent's background of leaving home at an early age, early sexual experiences, testosterone injections at a crucial age and involvement with a negative peer group were also integral to the development of his deviant sexual interests.[195]
[195] BOM Vol 2, 923.
Any efforts by the respondent to address the cause or causes of the offending behaviour, including whether the respondent has participated in any rehabilitation program, and whether the participation in any rehabilitation program has had a positive effect on the offender
Programs
Intensive Sex Offender Treatment Program 2011
The respondent participated in the ISOTP at Bunbury Regional Prison in 2011. This was a 270 hour program which aimed to address the risk, need and responsibility issues associated with offenders at high risk of sexual offence.[234]
[234] BOM Vol 2, 931.
While the respondent acknowledged the majority of his offending, he denied committing one of the more serious sexual penetration charges, despite the fact that he had filmed it.[235]
[235] BOM Vol 2, 932.
The respondent was reported to have presented as very confident in his capacity to learn and understand information. His manner was mostly abrupt when speaking to facilitators and other group members. His presentation was consistent with his ADHD diagnosis.
The report authors observed that the fact that the respondent was charged with a prison charge relating to using cannabis and possessing drug paraphernalia when the course was 80% complete, at a time when the respondent was aware of the involvement of drug use in his offending, suggested that the respondent had not internalised the information he had been taught, and had not made the commitment to change.[236]
[236] BOM Vol 2, 933.
During the program, the respondent identified the following factors as relevant to his decision to offend in a sexual manner:
(a)exposure to pornographic material: he was aroused by such images, and that photography and electronic storage of images was part of his offending;
(b)grooming/normalising behaviours: the respondent used normal situations to entice the victims to expose themselves and to permit the respondent to offend;
(c)privacy/secrecy: the respondent knew when he would be alone and thus when he could offend, and his poor sleep due to his methylamphetamine use enabled him to view CEM when his partner was asleep; and
(d)drug abuse: the respondent identified he was using copious amounts of methylamphetamine and cannabis in the period of offending and substances disinhibited him.[237]
[237] BOM Vol 2, 936 ‑ 937.
While the respondent completed the ISOTP, he was assessed to have made few treatment gains, based on his behaviour in custody generally, and within the program group. He was observed to have gained a greater understanding of the factors underlying his offending, despite his denial of one of the offences. He developed a generally appropriate self‑management plan, but persistent risk factors were seen, in particular, to be substance abuse, a sense of entitlement/grandiosity, approval seeking, a view that he is 'always right', and untreated ADHD.[238]
[238] BOM Vol 2, 940.
In 2016, the respondent reported to Ms Sampson that he did not derive much benefit from this program.[239]
Pathways Program Report 2013
[239] BOM Vol 2, 965.
The respondent completed the Pathways program in May 2013, having attended 49 of the 50 sessions. His participation was generally reported to be 'excellent'. He completed his written tasks to a highly satisfactory degree, suggesting 'an advanced comprehension of program concepts and the motivation and willingness to apply program concepts to his personal situations'.[240]
[240] BOM Vol 2, 942.
The respondent was assessed to have made a number of significant gains from the program. He was able to identify the impact substance use had on his offending, and the patterns of his substance use. He was willing to disclose details of his past offending and his background. He demonstrated significant awareness of his potential high risk situations post‑release, and identified some strategies to help counteract them.[241]
[241] BOM Vol 2, 943 ‑ 944.
While the respondent's gains were significant, his ability to manage difficult situations and apply relevant skills was largely theoretical, being untested outside the custodial setting. His emotional skill base and resilience if faced with stressful situations post release were also a remaining concern. It was suggested that if his plans did not result in the respondent achieving some of his goals, he might require additional assistance to maintain positive behaviour change.[242]
Individual treatment
[242] BOM Vol 2, 944.
In 2016, the respondent completed 14 individual treatment sessions while incarcerated. He also had a number of individual treatment sessions in the community while subject to the PSSO in 2018. No report is available in relation to the 2016 treatment, but the 2018 sessions targeted treatment needs across the area of responsibility for his offending behaviour, victim empathy, paraphilic interests and sexuality, intimacy and relationships, emotional control, antisocial behaviour and substance abuse. Following this treatment, areas of outstanding treatment need were identified as emotional control, antisocial behaviour and substance use.[243]
Pathways Program Report 2023
[243] BOM Vol 3, 1079 [81].
The respondent again participated in the Pathways program between November 2022 and February 2023. This iteration of the program involved 100 hours of intensive, cognitive behavioural skills‑based treatment to individuals who have a history of offending behaviour and substance use problems.[244] The respondent's treatment need areas were identified as substance use, antisocial peers, emotional regulation, protective factor development, antisocial cognition, and ISOTP.[245]
[244] BOM Vol 2, 988.
[245] BOM Vol 2, 989.
The respondent demonstrated a willingness to participate, and was knowledgeable and confident in expressing his opinion. He attributed his relapse into substance use and the index offending to precipitating factors including methylamphetamine use and conflict within his relationship. He was motivated to establish and maintain a relationship with his daughter, which the authors suggested was a strong protective factor. It was evident to them that the respondent was trying to build other protective factors, such as stable accommodation and employment.[246]
[246] BOM Vol 2, 989.
The report authors were of the view that the respondent made significant gains during the program in the area of substance use,[247] as well as around his emotional awareness, noting in relation to the latter that he claimed to have changed his behaviour towards prison officers 18 months earlier. He demonstrated an increased understanding of 'his emotional world' and how he related to people and an intention to attempt to change his behaviour going forward.[248]
[247] BOM Vol 2, 991.
[248] BOM Vol 2, 992.
In relation to his antisocial cognition, the respondent identified occasions on which he conducted himself in a more prosocial manner than he once would have. He experienced some difficulties in the sessions on empathy. He was able to show some positive coping skills, but ultimately there is caution about 'his tendency to minimise, blame and justify'.[249]
[249] BOM Vol 2, 994.
It was recommended that, if the respondent were to be released, he should engage in a community substance counselling or rehabilitation program, engage in individual counselling support, continue to engage with release support services, and seek out prosocial leisure activities.[250]
Individual Management Plans
[250] BOM Vol 2, 995.
In June 2022, the respondent's numerous past adverse reports were noted but he was reported to be a good worker, who was proactive and completed his duties with minimal supervision. He was also noted to be respectful in his dealings with staff and to work appropriately with his peers.[251] However, by December 2022 the respondent had been dismissed from his higher level employment due to a 'disagreement' with an officer.[252] Thereafter, he was considered to be generally compliant and not a management issue,[253] although there was the incident in June 2023 in which he was said to have indecently assaulted his cell mate, and some issues in May 2024 in relation to contraband and violently resisting officers.
[251] BOM Vol 1, 238.
[252] BOM Vol 1, 244.
[253] BOM Vol 1, 252 ‑ 265, 270 ‑ 274, 324 ‑ 327.
It was recommended that the respondent participate in the Pathways program and the Intensive Sex Offenders Program, although the latter was said to be 'not available'.[254]
Effect on the respondent
[254] BOM Vol 1, 239.
The respondent told Dr Riordan that his participation in the ISOTP was a 'waste of time', expressing the view that the group‑based format of the program did not allow for the creation of a safe environment in which he could fully disclose his sexual offending, paraphilic disorders, fetish interests and other deviant sexual thoughts or interests. He also reported that he was 'wasted' for most of the program and therefore could not recall much of the contents of the program, nor how to apply any of the skills learned during it.[255]
[255] BOM Vol 3, 1082 [92].
The respondent also gloated about his first Pathways program completion report. He described the contents of the course as 'common sense and easy to understand' and said that he spent time assisting others in the group. He was less able to articulate how he could apply the contents of the program to manage his substance use.[256]
[256] BOM Vol 3, 1082 - 1083 [93].
The respondent was dismissive of the Pathways program he completed in 2023, noting that he had already covered the contents and that they tended to focus on 'motivation to change crap'.[257]
[257] BOM Vol 3, 1082 - 1083 [93].
The respondent described his individual intervention in 2016 as the most helpful in helping him to understand his own sexual interests and behaviour, and he described how he developed a greater understanding of his emotional range and how emotional experiences can affect behaviour. He was dismissive of the individual treatment he engaged in in 2018, describing this treatment as focused on order compliance.[258]
[258] BOM Vol 3, 1083 [94].
In my view, the clear inference to be drawn from all of the reports which have been produced in this matter, including the reports prepared for the purposes of this hearing, is that the respondent is more than capable of learning from intervention, whether that be delivered in a group setting or individually. Further, in my view, the respondent's responses about his treatment demonstrate that he has learned from the intervention he has received to date, in the sense that he has absorbed and understood the program content.
However, I do not accept that the respondent has used his increased insight or understanding to make any actual (as opposed to expressed) change to his attitudes or behaviour to date. He has not applied any of the skills learned, although I accept his opportunities to do so in the custodial environment are limited. Furthermore, on the evidence available to me, I am unable to accept that he genuinely intends to do so. The distinct impression I gained was that the respondent says what he believes is necessary in order to facilitate the best outcome for him; in this case, release from custody. There is no evidence which enables me to regard his improved behaviour in custody in more recent times as other than for the same reason, rather than a demonstration of changed maturity.
In my view, the evidence which was adduced at the hearing as to the respondent's intentions regarding drugs, relationships, associations and future offending justifies grave concerns as to whether those intentions are in fact sincerely held and part of a genuine motivation to change.
The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence and the need to protect members of the community from that risk
Both experts expressed the opinion that there is a 'well above average' risk that the offender would commit a serious offence if he were not subject to a restriction order. I accept that evidence.
On the evidence, I am satisfied that, in the absence of restriction, the risk that the respondent would commit offences relating to the possession or production of CEM is 'very likely'. In my view, that risk would be imminent upon the respondent's release. There may well be no warning of the pending commission of such offences, and their very nature is that they could be committed covertly. Any access to CEM is also likely to increase the risk that the respondent would engage in contact sexual offending.
The principal impediment to the respondent committing sexual offending against children (other than CEM offences) is access to potential victims. Given the respondent's apparent (at least boasted of) ease at finding sexual partners, and his seeming ability to identify partners with children who have a particular vulnerability which he can exploit, in my view, the risk of future serious offending in the absence of restriction is high.
The need to protect the community against the risks posed by the respondent is obvious.
Any other relevant matter - accommodation
The Community Supervision Assessment established that there are some potential options for the respondent to be accommodated in the community, were a Supervision Order to be made. While the evidence was somewhat equivocal as to the actual availability of the accommodation, I have proceeded on the basis that it is available or could readily be made so if I were to make a Supervision Order.
I have already set out the views of Dr Wojnarowska as to the suitability of those options.
It is plain that access to public housing is unlikely to be granted any time in the near future.[259]
[259] ts 68 ‑ 69.
It would be of benefit to the respondent if he were to engage with Uniting WA regarding housing and reintegration assistance. At present, he has declined to do so.[260]
[260] ts 69.
Is the respondent a high risk serious offender?
The State submitted that the evidence established that the respondent was a high risk serious offender within the meaning of the HRSO Act.
The respondent, acknowledging that the ultimate decision was a matter for the court, conceded that such a finding was supported by the evidence adduced.[261]
[261] ts 27.
In my view, the respondent's concession was properly made.
Is there an unacceptable risk that the respondent will commit a serious offence?
As I have indicated, I accept that the evidence establishes that the respondent is a well above average risk of committing serious sexual offences and CEM offences in the absence of restriction.
On the basis of the evidence I find to be acceptable and cogent, I am satisfied to a high degree of probability that the totality of the evidence before me, including the respondent's:
(a)criminal history;
(b)sexual deviance, most notably his sexual attraction to very young female children;
(c)willingness to act on his sexual attraction, even when under supervision and conditions designed to prevent access to children;
(d)personality structure, which means that he is largely unconstrained by conscience or empathy for his victims;
(e)past response to programmatic intervention and the fact that he has considerable outstanding criminogenic treatment needs;
(f)lack of genuine motivation to change, particularly in relation to areas which increase his risk; and
(g)performance under previous supervision
leads to the conclusion that there is an unacceptable risk that the respondent will commit a serious offence in the future, namely an offence which falls within sch 1, div 1, subdiv 3 items 3 ‑ 8 and 16 ‑ 19 of the HRSO Act.
I find the risk to be unacceptable because of the immense harm which will almost certainly be caused to the child victim of the offending which the respondent is likely to commit, whether that child be known to the respondent or be the victim of offending which produced the CEM the respondent chooses to access.
Is it necessary to make a restriction order to ensure adequate community protection against the unacceptable risk that the respondent will commit a serious offence?
I am also satisfied, on the basis of acceptable and cogent evidence, and to a high degree of probability, that there is a clear need to make a restriction order to ensure adequate community protection against the risk posed by the respondent. Even the respondent acknowledged that his persistent deviant sexual interest in and sexual attraction to young female children is best managed through external constraints on victim access.[262] It is noted that the previous imposition of conditions by way of a PSSO wholly failed to constrain the respondent.
[262] BOM Vol 3, 1087 [106].
Conclusion
I am satisfied to a high degree of probability that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
Accordingly, the offender is a high risk serious offender within the meaning of the HRSO Act.
Continuing detention order or supervision order?
In Director of Public Prosecutions (WA) v DAL [No 2], Beech J (as he then was) observed:
In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. The Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the Act applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.[263]
[263] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (citations omitted).
The State has submitted a list of a large number of conditions which could be imposed if the respondent were to be made subject to a supervision order in this case. The proposed conditions include supervision, monitoring and individual intervention, restrictions on who the respondent can associate with, substance use, drug and alcohol testing, and access to technology.
However, in my view the evidence establishes that the respondent is highly unlikely to comply with those conditions at this stage, even in the short term. His personality structure and the fact that he gains excitement and arousal from his offending and its forbidden nature means that it is most likely that he will seek out opportunities to achieve that excitement and arousal, including substance use, antisocial associations and prohibited uses of technology.
I am also not satisfied that a suitable accommodation option has been proposed for the respondent. If that were the only issue, I would adjourn these proceedings to enable alternative accommodation to be found. However, in the circumstances, there is no good reason to do so.
Has the respondent satisfied the court on the balance of probabilities that he will substantially comply with the standard conditions?
Regardless of the above findings as to the likelihood of the respondent complying with the proposed conditions of any supervision order, I cannot make a supervision order in relation to the respondent unless I am satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of a supervision order, the onus of proof of which is on the respondent.[264]
[264] HRSO Act s 29.
The respondent did not adduce any evidence in the hearing in relation to this issue.
Apart from assurances to Dr Wojnarowska and Dr Riordan to the effect that he will comply with the conditions of a supervision order, there was no evidence available to me which was to the effect that the respondent would do so. Further, I do not accept those assurances as expressing a genuine intention to comply with the order.
The respondent breached his PSSO very soon after his release in 2018, ultimately in the most egregious manner, by committing further sexual offences against a very young child, including indecently recording her. He had also accessed CEM during the PSSO. He has minimised this conduct since. He does not accept responsibility for other criminal behaviour during this period, taking a victim stance as to prosecutions of him for it, including for breaches of his reporting obligations under the CP(OR) Act and breaching a violence restraining order.
The respondent's behaviour during his sentence of imprisonment has been extremely poor. He has been involved in numerous incidents, including violent conduct towards prison officers. He has boasted of being able to access drugs at will in prison. He has refused to comply with lawful orders, bullied other vulnerable prisoners, and allegedly indecently assaulted another prisoner. The fact that he was able to largely refrain from such behaviour when his release was approaching demonstrates a lack of willingness, not a lack of ability, to obey fundamental rules. On the evidence before me, I am unable to accept his change of behaviour at such a late stage of his imprisonment as being accompanied by a change of attitude; in my view it was much more likely to be a recognition of the adverse impact which would result from him continuing to behave in such a manner.
Notwithstanding that the respondent completed a Pathways program during his present term of imprisonment, there is nothing which suggests he has made any progress towards treating his criminogenic needs. He was dismissive regarding the program, and described its contents as tending to focus on 'motivation to change crap'.[265] On all of the evidence, including what the respondent has said and done since that program, any assessment of the respondent having made 'treatment gains' is demonstrative of little more than the respondent being able to show understanding and 'insight' by repeating what he was taught.
[265] BOM Vol 3, 1083 [93].
The totality of the evidence is that, at present, the respondent's motivation is that he simply wishes to be released. That wish is understandable. However, there is nothing which demonstrates a genuine commitment to change, or a motivation to properly engage with treatment in a way which will result in a reduction of the respondent's risk of committing a serious offence.
In particular, I am not satisfied that the respondent will not commit a serious offence during the period of any supervision order. I am also not satisfied that the respondent will be willing or even able to comply with the reasonable directions of a Community Corrections Officer.
In those circumstances, the only order open to me is a continuing detention order and that is the order that I will make.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Hon Justice Forrester
12 JUNE 2025
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