The State of Western Australia v Pickett

[2020] WASC 96

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PICKETT [2020] WASC 96

CORAM:   SMITH J

HEARD:   13 FEBRUARY 2020

DELIVERED          :   25 MARCH 2020

FILE NO/S:   SO 3 of 2019

MATTER: Sections 14 and 17(1) of the Dangerous Sexual Offenders Act 2006

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

KINGSLEY ARNOLD PICKETT

Respondent

Catchwords:

Criminal law - Dangerous Sex Offenders Act 2006 (WA) - Application for div 2 orders - Whether a serious danger to the community - Whether a continuing detention or supervision order should be made - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7, s 7(1), s 7(3), s 7(3)(a), s 7(3)(b), s 7(3)(c), s 7(3)(d), s 7(3)(e), s 7(3)(f), s 7(3)(g), s 7(3)(h), s 7(3)(i), s 14(1), s 17, s 17(1)(a), s 17(1)(b), s 17(2), s 17(3), s 17(4), s 18(1), s 18(1)(b), s 18(1)(d), s 23(1B)
Sentencing Act 1995 (WA), s 98

Result:

Continuing detention order made

Category:    B

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	Mr D J McKenzie

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Carol Bahemia Lawyers

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 Griffiths [2015] WASC 393

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187

Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312

Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4

Pickett v The Queen [2019] WASCA 178

The State of Western Australia v Jonsson [No 3] [2019] WASC 463

The State of Western Australia v Rao [2019] WASC 93

The State of Western Australia v West [2013] WASC 14

SMITH J:

The application and the result

1. This is an application for a div 2 order under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act).

2. On 5 June 2019, the Director of Public Prosecutions (Director) on behalf of the State of Western Australia (State) applied under s 8 of the Act, for preliminary orders under s 14, and for a continuing detention order or a supervision order under s 17 of the Act.

3. On 25 July 2019, Hall J conducted a preliminary hearing pursuant to s 14 of the Act. His Honour was satisfied that there were reasonable grounds for believing that a court might find that Mr Pickett is a serious danger to the community, and fixed a date for the hearing of the application. His Honour also ordered, pursuant to s 14(2)(b)(i), that Mr Pickett be detained in custody until the conclusion of the application.[1]

   [1] ts 25 July 2019, page 29.

4. The issues that I must decide are:

   (a)whether Mr Pickett is a serious danger to the community, within the meaning of the Act; and

   (b)if so, whether he should be detained in custody for an indefinite term for control, care, or treatment by a detention order, or, alternatively, be released into the community subject to conditions that the court considers appropriate by a supervision order.

5. At the hearing, both matters were in dispute.

6. For the reasons that follow, I find that Mr Pickett is a serious danger to the community within the meaning of the Act, and that an order should be made that Mr Pickett be detained in custody for an indefinite term for control, care, or treatment.

The length of time Mr Pickett has been incarcerated since the commission of the index offences

1. Mr Pickett has continually been in custody since 4 December 1998.  At that time he was 21 years old.  He is now 42 years old.

2. On 23 June 2000, Murray J sentenced Mr Pickett to 9 years' imprisonment without parole eligibility, for the offences of aggravated burglary, armed robbery, aggravated indecent assault and aggravated sexual penetration without consent (index offences).  When the sentence was imposed for these offences, Mr Pickett was already serving a total effective sentence of 10 years 9 months' imprisonment, imposed by other judges, for other offences committed within five days of the index offences.  The effect of the finite terms of imprisonment were that Mr Pickett would otherwise have been released from custody on 17 August 2007.[2] However, on 23 June 2000, Murray J also made an order for indefinite imprisonment under s 98 of the Sentencing Act1995 (WA).

   [2] Pickett v The Queen [2019] WASCA 178 [1].

3. In 2018, Mr Pickett instituted an appeal out of time against the sentence imposed by Murray J. In 2019, the Court of Appeal granted Mr Pickett an extension of time to appeal, allowed the appeal, set aside the sentences imposed on 23 June 2000 (including the order for indefinite imprisonment) and resentenced Mr Pickett,[3] to a total effective sentence of approximately 14 years 7 months' imprisonment, backdated to commence on 23 June 2000.[4] But for the order made by Hall J on 25 July 2019, pursuant to s 14(2)(b)(i) of the Act (detaining Mr Pickett in custody pending the hearing of this application for a div 2 order) the sentence imposed by the Court of Appeal on 12 November 2019 would have resulted in the immediate release of Mr Pickett.

   [3] Pickett v The Queen [2019] WASCA 178 [99].

   [4] Pickett v The Queen [2019] WASCA 178 [96] - [98].

The evidential material

1. The documentary evidence in this matter is contained in three volumes of documents and a supplementary book of documents tendered into evidence comprising:

   (a)material relating to Mr Pickett's past offending and antecedents prior to June 2000;

   (b)psychiatric, psychological and pre-sentence reports prepared prior to the sentencing of Mr Pickett in June 2000;

   (c)post-sentence, psychological and treatment reports prepared whilst Mr Pickett was in custody between 2005 and 2017;

   (d)offender incidents and occurrences reports;

   (e)substance use test results  reports from 1998 to February 2020;

   (f)medical progress notes from 1995 to 4 February 2020;

   (g)psychiatric reports and a pre‑sentence report prepared in 2019 for the Court of Appeal;

   (h)psychiatric and psychologist reports, together with a neuropsychological assessment report prepared for this div 2 hearing; and

   (i)proposed DSO management plan and community supervision assessment report.

2. Two psychiatrists who prepared reports for this application, Dr Gosia Wojnarowska and Dr Peter Wynn Owen, supplemented their reports with oral evidence.  I also heard oral evidence from a forensic psychologist, Dr Ben Bannister, and Ms Kimberley Comery, a senior corrections officer, who both prepared reports for this hearing.

3. Other than to tender into evidence a certificate awarded to Mr Pickett by the Acting Deputy Director of Acacia Prison and the Assistant Director of Reducing Reoffending, in or about June or July 2019, no evidence was adduced on behalf of Mr Pickett.[5]

   [5] Exhibit 5.

4. There was little disagreement between the witnesses as to any matters of fact or expert opinion. 

5. I make the following findings of fact based on the evidence.

Legal principles - div 2 orders

1. Pursuant to s 17(1) of the Act, the court must make a div 2 order if the court finds that the offender is a serious danger to the community. In making such a finding, the court is to be satisfied of the criteria specified in s 7(1) of the Act, and must have regard to the matters set out in s 7(3) of the Act. Section 7 of the Act provides:

   7.  Serious danger to community

   (1)Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.

   (2)The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied -

   (a)by acceptable and cogent evidence; and

   (b)to a high degree of probability.

   (3)In deciding whether to find that a person is a serious danger to the community, the court must have regard to -

   (a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and

   (b)any other medical, psychiatric, psychological, or other assessment relating to the person; and

   (c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and

   (d)whether or not there is any pattern of offending behaviour on the part of the person; and

   (e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and

   (f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and

   (g)the person's antecedents and criminal record; and

   (h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and

   (i)the need to protect members of the community from that risk; and

   (j)any other relevant matter.

   (4)In considering whether it is satisfied as required in subsection (1), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.

2. The principles that are to be applied when determining whether a person is a serious danger to the community, and the matters prescribed in s 7 of the Act are well-established, and were summarised by Corboy J in The State of Western Australia v West:[6]

   [6] The State of Western Australia v West [2013] WASC 14 [52].

   In summary:

   (a)Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).

   (b)The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability.  The expression 'high degree of probability' is incapable of further definition.  Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof:  Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).

   (c)In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.

   (d)It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence:  DPP v GTR [21].

   (e)The term 'unacceptable risk' is not defined in the DSO Act.  However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made:  Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).

   (f)In a passage that expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63] ‑ [64]:

   'In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.'

   (g)The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community.  The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced:  DPP v GTR [97] (Murray AJA).

   (h)The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence:  DPP v GTR [34].

   (i)The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community:  Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].

   (j)The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community:  The State of Western Australia v Latimer [2006] WASC 235 and Decke. 

3. If the court is satisfied that the person is a serious danger to the community the court is then required to determine whether it should make a detention order under s 17(1)(a) or a supervision order under s 17(1)(b) of the Act. In deciding, the paramount consideration is the need to ensure adequate protection of the community (s 17(2)). In assessing whether the conditions of a supervision order would adequately protect the community, Beech J pointed out:[7]

   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.

   [7] Director of Public Prosecutions (WA) v Dal [No 2] [2016] WASC 212 [33]. (footnotes omitted)

4. Section 17(3) of the Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities that the offender will substantially comply with the standard conditions of the order. The onus of proof as to whether the offender will substantially comply with the standard conditions of the order, is on the offender pursuant to s 17(4) of the Act.

5. Section 18(1) of the Act prescribes the standard conditions that the court must impose as part of a supervision order. These conditions require that the person subject to a supervision order:

   (a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the person's current name and address; and

   (b)report to, and receive visits from, a community corrections officer as directed by the court; and

   (c)notify a community corrections officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens; and

   (d)be under the supervision of a community corrections officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B); and

   (e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

   (f)not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order; and

   (g)be subject to electronic monitoring under section 19A.

6. In Director of Public Prosecutions for Western Australia v Hart, Fiannaca J considered what should be the appropriate approach to the construction of the phrase 'will substantially comply with' in s 23(1B) of the Act and what is required of the court.[8] The words 'will substantially comply with' in s 17(3) are identical to those in s 23(1B) of the Act. It is a requirement that the court be satisfied, on the balance of probabilities, that the offender will comply in a manner and to an extent required by those words, ('will substantially comply with'), before the court can make a supervision order. In Hart, his Honour relevantly observed:[9]

   The court and the community expect that a person released on a supervision order will comply with the conditions of the order strictly. However, it is realistic to recognise, as s 23(1B) does in effect, that there may be missteps from time to time, particularly given the very onerous nature of the conditions required to adequately manage the person's risk. The question is whether, notwithstanding such missteps, I can be satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order.

   [8] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].

   [9] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [51].

7. His Honour then went on to set out the appropriate approach when determining whether a person will substantially comply with conditions in the future:[10]

   (1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.

   (2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.

   (3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.

   (4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.

   (5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.

   (6)The court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.

   (7)Factors that are relevant to that assessment would include the respondent's history of compliance and non-compliance and the factors set out at [50] above (being an assessment of past compliance or non-compliance with the conditions of a past supervision order, in particular whether the person is likely to deliberately flout the conditions, his or her capacity to comply with the conditions, what measures there are in place to ensure he or she would substantially comply, and the relative importance of any breach that might occur. In particular, where engagement in counselling is to be a condition of the supervision order, the person's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk).

   [10] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].

The first question ‑ is Mr Pickett a serious danger to the community?

Factors under s 7(3)

Mr Pickett's antecedents and criminal record - s 7(3)(g)

1. Mr Pickett has spent more than half of his life incarcerated, first in juvenile detention and then in prison.  He has a very long criminal history of offending.  The evidence before the court is that his offending is associated with the extensive use of illicit drugs.

2. Mr Pickett was born on 30 November 1977, and is now 42 years old.  He is the eldest son and the third of nine children born to his parents.  His parents were non‑drinkers and non-smokers who provided him with a stable home but they struggled financially.  Mr Pickett has described his childhood as happy and that he grew up in a close‑knit family environment.[11]  At the time he was last convicted in 2000 Mr Pickett's family remained supportive of him.[12]  Since that time Mr Pickett's family have continued to be supportive of him.

   [11] Exhibit 1, vol 3; Psychological Report of Catherine Korda, page 1825.

   [12] Pickett v The Queen [2019] WASCA 178 [18].

3. According to his criminal history, Mr Pickett incurred numerous convictions from 5 December 1988 onwards (after he had attained the age of criminal responsibility) until the time of his most recent imprisonment in 1998.

4. Mr Pickett attended numerous primary schools. He struggled to cope with schoolwork.  He was often in trouble for fighting and frequent truancy.  He was expelled from primary school.[13]

   [13] Pickett v The Queen [2019] WASCA 178 [19].

5. Mr Pickett commenced sniffing glue prior to the age of 13, as the friends that he associated with did this.  His glue use became problematic and often occurred on a daily basis, and resulted in him breaking into hardware stores and stealing tins of glue.  He then used solvents, and associated with this peer group for about a year.  Just after he ceased sniffing solvents and glue, he started using cannabis and first tried alcohol.

6. Mr Pickett's relationships with his siblings deteriorated and behavioural problems commenced in the last year of primary school, when he began running away from home, lying to his parents, truanting from school, stealing money and shoplifting to fit in with his peer group.  His offending behaviour eventually led to his being sentenced to juvenile detention at 12 years of age in 1990 as a result of a large number of convictions for stealing motor vehicles and joyriding.

7. Mr Pickett had difficulties with reading and writing during his primary school years and was held back a year of school at some point.  After being released from detention, he attended high school in Fremantle for two days before leaving school for good.

8. By 1991, Mr Pickett started committing offences of dishonesty, mainly breaking and entering offences, and more serious violent offences including robbery which escalated to sentences on 16 April 1992 to offences of manslaughter by motor vehicle, and being in detention again at the age of 14.

9. On 30 November 1992, Mr Pickett was convicted on his 15th birthday for a series of violent offences (including assault of a public officer, assault to prevent arrest, burglary, dangerous driving, escape from legal custody, failure to stop, resisting arrest, robbery in company and stealing) and sentenced to indefinite detention pursuant to the Crimes (Serious and Repeat Offenders) Sentencing Act 1992 (WA) (repealed).[14] 

   [14] Pickett v The Queen [2019] WASCA 178 [20] ‑ [21].

10. Mr Pickett was released from indefinite detention on a Conditional Release Order (CRO) on 7 November 1994 (at the age of 16 years).  He was returned to custody for a breach of a curfew condition on 6 December 1994 (at the age of 17 years).  He had been out of custody for about one month.[15]

    [15] Pickett v The Queen [2019] WASCA 178 [22].

11. Mr Pickett was next released from custody on a CRO on 6 May 1995 (still at the age of 17 years).  He was returned to custody about one month later on 2 June 1995 (again at the age of 17 years).  While on the CRO, he committed multiple offences, including assault occasioning bodily harm, assault of a public officer, damage, fraud, stealing a motor vehicle and reckless driving.[16]

    [16] Pickett v The Queen [2019] WASCA 178 [23].

12. Mr Pickett turned 18 years old on 30 November 1995.[17]

    [17] Pickett v The Queen [2019] WASCA 178 [24].

13. Mr Pickett was again released from custody on a CRO on 9 July 1997 (at the age of 19 years).  He remained in the community for seven months.

14. In July 1997, (at the age of 19 years old) he engaged in the only paid employment he has had, which involved working in a factory in Myaree that made conveyor belt parts.  He quit the job after two months as he claimed that the foreman was giving him jobs that he was not supposed to do and he did not want to get into a fight with him.[18]

    [18] Exhibit 1, vol 3; Psychological Report of Peta Smith, dated 12 June 2000, pages 1704 ‑ 1706; Pre‑sentence Report of Sally Parsons, dated 14 June 2000, pages 1707 ‑ 1712.

15. At about this time, Mr Pickett met a woman who became his long‑term girlfriend and they began to cohabit.  They used amphetamines and cannabis together and argued over his engagement in criminal activities.  The relationship ended after 12 to 18 months due to his offending and periods of incarceration.

16. On 6 March 1998, Mr Pickett was remanded in custody on an offence of stealing a motor vehicle.  That offence was committed on 24 February 1998.  Mr Pickett was 20 years old at the time of the offence of stealing a motor vehicle and his return to custody on remand.[19]

    [19] Pickett v The Queen [2019] WASCA 178 [25].

17. At about 19 years of age, Mr Pickett commenced using amphetamines intravenously.  He considered his use to become problematic straightaway.  He was injecting a couple of times a day and sometimes all night and engaging in behaviour such as stealing cars.  He may have developed a tolerance to amphetamines because he noted that the effects were not as good as the first time he used it.  He also experimented with LSD, cocaine and heroin.[20]

    [20] Exhibit 1, vol 3; Psychiatric Report of Dr Wojnarowska, dated 17 October 2019, page 1927.

18. Mr Pickett was next released from custody on 19 June 1998 (at the age of 20 years).  He remained in the community for three months until 24 September 1998, when he was arrested and remanded in custody for offences of aggravated burglary and attempted aggravated burglary committed on 23 and 24 September 1998.[21]

    [21] Pickett v The Queen [2019] WASCA 178 [26].

19. On 7 October 1998 (still at the age of 20 years), Mr Pickett was released on home detention bail in respect of the burglary offences committed on 23 and 24 September 1998.[22]

    [22] Pickett v The Queen [2019] WASCA 178 [27].

20. The offences for which he was sentenced by Murray J, on 23 June 2000, were committed between 29 November 1998 and 3 December 1998.  The appellant turned 21 years old on 30 November 1998.

21. Until November 1998, Mr Pickett had not committed any sexual offences.

22. Over the period of five days between 29 November and 3 December 1998, Mr Pickett committed a number of violent burglary offences against five different complainants.  The offences committed against the first complainant occurred on the first of those five days and involved the index offences.  The factual circumstances of these offences were summarised recently by the Court of Appeal as follows:[23]

    [23] Pickett v The Queen [2019] WASCA 178 [13] ‑ [14], [15], [29] - [30].

    Count 1 was an offence of aggravated burglary involving the appellant breaking and entering into the complainant's home in company with a co-offender.  Count 2 was an offence of armed robbery involving the appellant stealing from the complainant the sum of $55 with threats of violence while pretending to be armed with a knife.  Count 3 was an offence of aggravated indecent assault involving the appellant unlawfully and indecently assaulting the complainant while pretending to be armed with a knife.  Count 5 was an offence of aggravated sexual penetration without consent involving the appellant introducing his penis into her mouth while pretending to be armed with a knife.  Count 6 was an offence of aggravated sexual penetration without consent involving the appellant penetrating the complainant's vagina with his finger while pretending to be armed with a knife.  The appellant was acquitted of counts 4 and 7 on the indictment.

    The facts may be broadly summarised as follows.  In the early hours of 29 November 1998, the 27‑year‑old female complainant was at home alone.  Her husband had gone to work.  She was woken by the sound of the appellant breaking a sliding glass door of her house (count 1).  She called the police and hid in her bedroom.  The appellant entered the complainant's bedroom and pretended that he was armed with a knife.  He demanded money from the complainant.  She gave him $55 in cash (count 2).  The appellant made the complainant remove her nightdress, so that she was naked.  He compelled her to sexually touch herself (count 3).  He then compelled her, while she was still naked, to walk outside to a storeroom past the co‑offender, who was keeping watch.  The appellant then sexually penetrated the complainant by putting his penis in her mouth without her consent (count 5).  Finally, he then sexually penetrated her vagina with his finger without her consent (count 6).

    It was accepted that the appellant had entered the house with intent to steal property, and that the sexual offending was not premeditated. 

    …

    The appellant committed four other violent home burglary offences against four different complainants over the period of five days between 29 November and 3 December 1998:

    (1)On Monday 30 November 1998, the appellant committed an aggravated burglary at the home of the complainant.  The complainant and his wife came home at 9.30 pm and found that their house had been ransacked.  As they began to look through the house they were confronted by the appellant, who was holding a star picket which he raised at the complainant.  The complainant and his wife ran from the house and the appellant ran into a bedroom and left via a window.  Some credit cards and money were taken.

    (2)On Tuesday 1 December 1998, the appellant committed an aggravated burglary at the home of the complainant.  At about 9.50 pm, the complainant and his sister-in-law were sitting in their lounge room in their house in Cloverdale.  They heard a noise and looked up to see that the curtain and sliding door had been opened and the appellant was standing watching them.  The appellant was holding a brick, which he raised as he demanded that they hand over their wallets.  The complainants refused.  The appellant threw the brick at the two complainants and ran off.

    (3)On Wednesday 2 December 1998, the appellant committed an aggravated burglary and an attempted stealing with violence against the complainant.  The 55-year-old complainant was at home alone reading in bed at about 11.55 pm when she heard a loud crashing noise.  The complainant went to investigate and found a glass sliding door smashed.  The complainant returned to her bedroom to call police and activated her duress alarm.  She was then confronted by the appellant holding a garden stake.  The appellant jabbed at the complainant with the stake demanding that she give him money.  The appellant left when the duress alarm began to sound, stealing a black sports bag which was later returned to the complainant.

    (4)On Thursday 3 December 1998, the appellant committed an aggravated burglary and an assault occasioning bodily harm offence against the complainant.  At about 1.15 am, the complainant and his wife were asleep at their residence in Cloverdale.  The complainant was woken by the sound of smashing glass and went to investigate, arming himself with an axe handle.  The complainant saw the appellant standing on the rear patio.  The complainant's wife retrieved the cordless phone from the kitchen and went to the bedroom to call police.  The appellant entered the house holding a brick in his right hand above his head.  He then walked to the bedroom where the complainant's wife was waiting.  The complainant approached the appellant and hit him to the back of the head with the axe handle.  The appellant then punched the complainant in the face and a struggle ensued.  The appellant managed to leave the premises. 

    The appellant committed the Subject Offences and the other offences referred to in the previous paragraph in breach of his CRO and less than eight weeks into his home detention bail. 

23. Mr Pickett was sentenced in the District Court for the burglary, robbery and assault offences committed between 30 November 1998 and 3 December 1998. On 17 August 1999, Hammond CJDC sentenced Mr Pickett to a total effective sentence of 8 years' imprisonment.[24] 

    [24] Pickett v The Queen [2019] WASCA 178 [35].

24. Following a trial on 22 ‑ 23 May 2000, before Murray J in the Supreme Court, Mr Pickett was convicted of the aggravated burglary, aggravated indecent assault and aggravated sexual penetration offences for which he was sentenced on 23 June 2000.[25]

    [25] Pickett v The Queen [2019] WASCA 178 [1], [12].

25. Mr Pickett was arrested and returned to custody on 4 December 1998, and has been in custody ever since.  Consequently, since his 15th birthday in 1992, except for a period totalling approximately 14 months, Mr Pickett has been incarcerated in juvenile detention and in prison as an adult. [26]

    [26] Pickett v The Queen [2019] WASCA 178 [20] - [31].

26. On his arrest on 4 December 1998, Mr Pickett was detained on remand at Casuarina Prison.  On Christmas Day 1998, unrest amongst a group of prisoners escalated into a volatile riot which was not suppressed until the early hours of the following morning.  During that period a large number of prisoners, including Mr Pickett, were defying, threatening and assaulting prison and police officers and causing damage to the prison.  Mr Pickett was subsequently convicted of four counts of wilful damage and five counts of unlawfully assaulting a public officer.[27]  Mr Pickett was sentenced on 4 November 1999 to 2 years' imprisonment for the offences committed during the Casuarina Prison riot.[28]

Other relevant matters - s 7(3)(j) - Mr Pickett's behaviour in prison

[27] Pickett v The Queen [2019] WASCA 178 [33].

[28] Pickett v The Queen [2019] WASCA 178 [36].

1. Until recently, despite being incarcerated, Mr Pickett has continued to consume illicit drugs.

2. The court has been provided with Mr Pickett's substance use test results from 24 November 1998 to 14 February 2020 which recorded that until August 2018, Mr Pickett regularly tested positive to cannabis and occasionally to amphetamines, benzodiazepines, cocaine and alcohol.  He last tested positive to amphethamines on 5 August 2016, and he last tested positive to cannabis and benzodiazepines on 16 August 2018.[29]  Since 16 August 2018 Mr Pickett has not failed a drug test.

   [29] Exhibit 1, vol 3; Community Supervision Assessment of Kimberley Comery, pages 1990 ‑ 2002.

3. It appears that over time Mr Pickett has become compliant to a degree with prison authorities, and has made some positive behaviour changes.

4. Whilst being incarcerated for over 21 years, between 24 November 1998 to 30 May 2019, Mr Pickett has been convicted of 72 charges which have been dealt with as prison offences.  These charges include 36 charges of use/possess illicit drugs, one charge of use drug other than as prescribed, and 15 charges of failing to submit a body sample.[30] 

   [30] Exhibit 1, pages 48 ‑ 57.

5. However, it appears that since 5 August 2016, Mr Pickett has been convicted of five charges only, being three charges of use/possess illicit drugs on three separate occasions between 2016 and 13 September 2018, and one charge of use drug other than prescribed on 11 April 2019.[31]  On 21 September 2019, Mr Pickett was found to be in possession of a smoking implement.  Yet on the same day he tested negative for illicit drugs.[32]

   [31] Exhibit 1, vol 1; page 547.

   [32] Exhibit 1, vol 3; Community Supervision Assessment of Kimberley Comery, page 1991.

6. Dr Wynn Owen remarks in his report that after Mr Pickett made threats to kill during the Casuarina Prison riots (when on remand in December 1998), his prison behaviour has been more marked by substance abuse than insubordination.[33]  Having reviewed Mr Pickett's prison records, I accept this observation.

   [33] Exhibit 1, vol 3; Report of Dr Peter A Wynn Owen, page 1968.

7. In 2007, methadone was prescribed to Mr Pickett for his drug use in prison.  Over time he has reduced the dose but he has been unable to reach below 60 doses (60 mg) a day.  Mr Pickett claims that he had at one point in time reduced his dose to 25 mg a day, but recent prison medical records do not appear to support that contention.  However, it is clear that Mr Pickett's prison medical records support his contention that he has endeavoured over time to reduce his daily dose of methadone and continues to desire to do so.  For some time, Mr Pickett has also been prescribed psychotropic medications as 'drug replacement' and to deal with his stress and anxiety.  These medications continue to be prescribed to him.[34]

   [34] Exhibit 1, vol 3; Report of Dr Gosia Wojnarowska [16.6] page 1927; see also Report of Dr Peter Wynn Owen, page 1964.

8. The prison records indicate that in the past Mr Pickett has resided in a self-care unit, but for the first few years of his imprisonment he was incarcerated in high security areas of the prison system.  In more recent times he has resided in medium security areas of prisons in the metropolitan area, and in Albany.

9. When Mr Pickett was incarcerated in 1998 it appeared that he was illiterate.  Recently as a result of a neuropsychological assessment, Mr Pickett was assessed as having difficulties in processing information, because of auditory processing issues.[35]  However, it is clear from that report he has the capacity to learn.  Mr Pickett has informed the court that he has been able to learn to read and write whilst he has been in prison.  Prison records record that in August 2013 he was studying art, maths and English.[36]

   [35] Exhibit 2; Neuropsychological Assessment Report by Dr Mandy Vidovich, dated 17 January 2020, pages 13, 16.

   [36] Exhibit 1, vol 1; pages 618 ‑ 619.

10. Mr Pickett married whilst he was in prison and although he was incarcerated during the entire period of his marriage he and his wife maintained what appears to be a close relationship for approximately 13 years until sometime in late 2018, when they parted.  In late 2019, he formed a relationship with another woman whom he knew when he was a teenager.  This woman is supportive of him.[37]

    [37] Exhibit 1, vol 3; Community Supervision Assessment of Kimberley Comery, page 1994.

11. Mr Pickett has not had consistent work roles within the prison system.  However, until his transfer to the Perth prison system in mid-2019 he had some work at the Albany Regional Prison.  On 8 March 2019, the author of an individual management plan prepared by an officer at Albany Regional Prison noted in the report under the heading '1.5 Prisoner Behaviour':[38]

    Mr Pickett currently resides in Unit 2 on a Standard Supervision Regime.  Unit Officers report that he abides by unit and prison regimes, is polite and respectful to officers, maintains an acceptable standard of cell and personal hygiene and is not generally considered to be a management problem.

    Mr Pickett is employed in Unit 2 as a cleaner and receives level 3 gratuities.  Unit staff state that he is an average worker who requires minimal supervision, completes his duties as required to a good standard and appears to interact well with staff and his peers in the workplace.

    [38] Exhibit 1, vol 1; page 240.

12. It appears as a result of his recent appeal, Mr Pickett was transferred from Albany Regional Prison to Acacia Prison in mid-2019.  Since that time, Mr Pickett has been unemployed in the prison system but he receives level 5 gratuities. 

1. In June or July 2019, Mr Pickett was awarded a 'Celebrating Success Trust Award' certificate whilst at Acacia Prison in which it is stated that the reason for his nomination was:[39]

   During an unforeseen incident in unit 1 of uniform block Kingsley put the safety of others above himself.  Kingsley attempted to assist staff in deescalating a challenging situation.

   Kingsley approached the prisoner in a calm respectful manner with a view to reducing the prisoner's anger and frustration towards staff.  Although aware of the potential threat to himself and above his own safety, Kingsley put the welfare of the prisoners and staff first.

   I believe that Kingsley demonstrated not only significant level of courage but a deep sense of maturity in confronting such a challenging situation.

   We recognise that prisons can be challenging environment for both staff and prisoners.  Kingsley's actions support a safer and healthier community where we work together to support one another.

   [39] Exhibit 5.

2. On 9 July 2019, Mr Pickett submitted an employment application for the position of Youth Adult Mentor, which involves providing positive leadership and role modelling for prisoners aged 18 to 26 years.  At the end of October 2019 he was listed as waiting for employment.[40]

Section 7(3)(a) ‑ the extent to which Mr Pickett cooperated with psychiatric examinations

[40] Exhibit 1, vol 3; Community Supervision Assessment of Kimberley Comery, page 1991.

1. Psychiatric reports were prepared pursuant to s 37 of the Act by Dr Wynn Owen and Dr Wojnarowska.  Both doctors gave oral evidence before me. It is evident from their reports and their evidence that Mr Pickett cooperated with each of them when he was examined.

2. The evidence of both psychiatrists was not substantially challenged in cross‑examination.

Section 7(3)(a) and s 7(3)(b) -  psychiatric and psychological reports

Report and oral evidence of Dr Wynn Owen

1. Dr Wynn Owen is a consultant forensic psychiatrist.  He conducted two interviews with Mr Pickett for the purpose of providing a report for this application.

2. Dr Wynn Owen assessed Mr Pickett's current attitudes towards index sexual offending, and his current attitudes towards violent and generalist offending.  When interviewed by Dr Wynn Owen, Mr Pickett denied committing any of the index offences, saying he was not there but was placed there by the co‑offender.  When describing his past offending, Mr Pickett did not offer much detail but said that:

   (a)he had been in company with older peers when offending and often took the sole responsibility because the 'youngest bloke used to take the blame for the older guys';

   (b)people he hung around with put him up to it and he had to do it to fit in with them; and

   (c)he minimised his role during the Casuarina Prison riot of 1998.  Although he acknowledged that he had behaved in a violent manner, he said that he followed everyone that was there, and he was just young and silly.

3. Dr Wynn Owen noted in his report that Mr Pickett:

   (a)has a past medical history of hepatitis C that has been treated but has left him with associated cirrhosis (of the liver);

   (b)has type 2 diabetes; and

   (c)has refused to attend medical and nursing appointments for his general and mental health, including refusing to attend offsite appointments which led to his discharge from the Royal Perth Hospital liver clinic.

4. Dr Wynn Owen also stated in his report that;

   (a)at the time of Mr Pickett's assessment, apart from his diabetes medication, his medications were methadone 85 mg daily (opiate), sodium valproate 1500 mg nocte (antiepileptic/mood stabiliser), quetiapine 500 mg nocte (antipsychotic major tranquilizer) and desvenlafaxine 200 mg daily (SNRI antidepressant/antianxiety medication);

   (b)antisocial personality disorder has been consistently diagnosed throughout Mr Pickett's time in prison;

   (c)psychiatrists assessing Mr Pickett as an adolescent and as an adult reveal that no diagnosis has been made of a major mental illness;

   (d)Mr Pickett has had episodes of mood change and deliberate self‑harm associated with adjustment to external circumstances, and mood states that have resolved within a short time frame.  This pattern is in keeping with a personality structure, with limited coping skills, and problems dealing with negative emotions, that is, Mr Pickett has a pattern of reactive mood changes based on the circumstances.  His mood fluctuations over time are in keeping with the personality structure unable to tolerate and/or manage negative emotion resulting.  Recently, his behaviour has varied when stressed by matters such as prison transfers, loss of relatives, the end of his long-term relationship (marriage in 2018) and preparing to appeal his indefinite sentence;

   (e)it is unclear why he is prescribed, in the long-term, high doses of antidepressants, mood stabilisers or antipsychotic medications. His inability to self-manage negative affective states is a significant risk factor for future offending, and strategies to manage these will not be developed while relying on medications, prescribed or illicitly sourced;

   (f)as Mr Pickett was not opiate dependent when methadone treatment was commenced in 2007, it must be assumed that the treatment was implemented as a harm minimisation strategy to reduce his risk of ongoing prison-based polysubstance abuse and related health risks. If so, this strategy has been manifestly ineffective, not only does he now have long-term well‑established opiate dependency, he did not stop using other substances for a further 10 years;

   (g)no testing of Mr Pickett's structured psychological assessment of his intellectual/cognitive functioning had been made since 2000, but the tests used prior to that date offered a surprisingly inconsistent picture of his cognitive and intellectual function.  One test had assessed him as having borderline level of intellectual functioning, another test had assessed him as having a low average range of intellectual functioning and another test assessed him in the average range of intellectual ability.

5. Dr Wynn Owen also reviewed records of Mr Pickett's participation in therapeutic group programs, and noted that in an assessment by a forensic psychologist in 2017, it was noted that Mr Pickett had a range of significant outstanding treatment needs, whereby it was considered that Mr Pickett would not benefit from further group‑based treatment and recommended that he engage in individual psychological counselling to address his outstanding treatment needs which were at that time:

   (a)no insight into his pattern of violent behaviour (and denial of poor emotion management);

   (b)significant cognitive distortions by externalising blame to others;

   (c)substance abuse/use; and

   (d)relationship skills and an understanding of what constitutes a healthy relationship.

6. Dr Wynn Owen undertook an assessment of Mr Pickett's risk of sexual reoffending utilising the Violence Risk Appraisal Guide (VRAG), or STATIC-99 R and the Risk for Sexual Violence Protocol (RSVP) structured clinical judgment framework.  His results were:

   (a)using the VRAG, a total score of 13 was calculated for Mr Pickett.  This score is in risk category 6 (being a high risk of future violent offending) (there are seven categories) (being a 44% risk of reoffending violently within seven years after release);

   (b)Mr Pickett's STATIC-99 R score is in the Level IVa or 'Above Average Risk' range;

   (c)a number of RSVP risk factors were identified in Mr Pickett which are known to increase the likelihood of future sexual offending which, if addressed, and effective treatment is given, can potentially contribute to a reduced risk of future offending.  The risk factors and issues identified as treatment targets (consistent with previously identified outstanding treatment needs of Mr Pickett) include:  serious problems with self‑awareness; problems with stress or coping; serious problems with substance use; and problems with intimate relationships and non‑intimate relationships; and

   (d)in relation to manageability, the RSVP identifies that he has problems with planning; problems with supervision; and problems with treatment, that need to be taken into account in management planning.

7. Dr Wynn Owen concluded that Mr Pickett's risk of future serious sexual offending is high, he demonstrates vague/superficial release planning, has limited/no understanding of his antecedents to violent offending and has not been able to directly address his risk of sexual offending due to his stance of denial.  Further, Mr Pickett's most significant dynamic and most potentially amenable risk factor to intervention is substance abuse.

8. When giving oral evidence, Dr Wynn Owen said that Mr Pickett displays no signs of sexual deviance or psychopathy.  Dr Wynn Owen then went on to explain why he formed the opinion that Mr Pickett's risk of sexual offending is high when asked what is the interrelationship or connection between the non‑sexual offending and the index offences:[41]

   Well, certainly it seems that after a pattern of serious violent ‑ property and violent offending, there has been a sexual offence that has led to this long period of imprisonment.  That, in my opinion, is an escalation of violent offending, and the sexual offence has occurred in the context of that violent offending.  So the two are intrinsically linked.  I mean, I've talked about it subsequently, but in the absence of sexual deviance, in the absence of particular sexual intent in the antecedents to the offence itself, it seems that the violent offending is the most significant component of this.  

   [41] ts 13 February 2020, pages 70.

9. Dr Wynn Owen also said when giving evidence that:[42]

   (a)sexual offending is a form of violent offending, and there had been a trajectory of increased or escalating violent offending by Mr Pickett; and

   (b)the fact that the final escalation included sexual offending increases the likelihood that future violent offending would include sexual offending.

   [42] ts 13 February 2020, pages 81 ‑ 82.

10. It was also Dr Wynn Owen's evidence that:[43]

    (a)intoxication is a risk factor of significance in Mr Pickett's previous violent and sexual offending, as alcohol is something which increases libido, as well as increases the risk of violence;

    (b)managing stress with substances is something which Mr Pickett has done over a long period of time; and

    (c)the risk is that, should Mr Pickett be under distress and return to substance abuse, his risk of committing future violent and/or sexually violent offences will become higher.

    [43] ts 13 February 2020, page 73.

11. Dr Wynn Owen is also of the opinion that the risk of the type of sexually violent offending would be similar to the index offences.[44]  However, it is Dr Wynn Owen's view that Mr Pickett's risk of non‑sexual, violent offending is higher than his risk of sexual offending.[45]

    [44] ts 13 February 2020, page 75.

    [45] ts 13 February 2020, page 77.

12. As to the imminence of the risk, it is Dr Wynn Owen's view that, without intervention and supervision following release, Mr Pickett would be likely to commit offences within weeks to months.[46]

    [46] ts 13 February 2020, pages 76 ‑ 77.

13. When cross-examined, Dr Wynn Owen conceded that Mr Pickett's risk of offending in his early 40s is lower than when he committed the index offences.  However, Dr Wynn Owen qualified this concession by stating that his assessment had taken into account Mr Pickett's age.[47]

    [47] ts 13 February 2020, page 82.

14. In Dr Wynn Owen's report, one of the recommendations he made was that Mr Pickett undergo a neuropsychological assessment to determine his actual level of cognitive/intellectual function to assess his potential to benefit from therapeutic interventions to address risk.  By the time Dr Wynn Owen gave oral evidence, a neuropsychological assessment had been conducted by Dr Vidovich.  Having read that report, Dr Wynn Owen, in an addendum report, noted that the neuropsychological assessment reported that Mr Pickett engaged well with the assessment process, was found to have visual skills in the average range, with auditory and verbal skills in the borderline range, and noted to have attentional problems which adversely affects his ability to register new information, but that once information was registered, Mr Pickett demonstrated the capacity to retain the information (that is to learn).  In light of this information, it is Dr Wynn Owen's recommendation that:[48]

    (a)irrespective of whether Mr Pickett remains in prison or is released, he should receive one-to-one counselling with a specialist forensic psychologist to address his outstanding treatment needs, including undertaking a deniers program (which could entail participation in a group or individual program).  A one-to-one program is said to be desirable as such a program is better tailored to his auditory information issues as information in a one‑to‑one program can be conveyed to him in a way that he is likely to learn from, as he clearly has the capacity to learn; and

    (b)if he is to be released there should be some preparation for release to address his outstanding treatment needs as his  past history of supervision on release has been poor, and he is clearly showing difficulty in managing stress in a medium secure environment and attending scheduled appointments.  For these reasons, he would benefit from a period of time in a less structured safe environment such as a minimum security prison (which still provides a structured environment) which will enable him to learn the skills that he will need to survive (not to offend) upon release.

    [48] ts 13 February 2020, pages 77 - 80, 85.

15. It is Dr Wynn Owen's opinion that he found it surprising and concerning that Mr Pickett was on a high dose of methadone as well as high levels of antipsychotic medication and that Mr Pickett needs to stop taking those medications over time as they dull his responses.  Dr Wynn Owen is of the view that the only medication (in this class of medications) Mr Pickett should continue, is the antianxiety antidepressant medication, venlafaxine.[49]

    [49] ts 13 February 2020, pages 84, 92.

16. Dr Wynn Owen is also of the opinion that Mr Pickett should not be set up to fail by being released without the skills and supports necessary to manage his stress and not to return to substance abuse.  If he is not afforded these supports and obtains these skills it is Dr Wynn Owen's opinion that Mr Pickett is likely to return to violent offending.  If Mr Pickett returns to a pattern of substance abuse it would, in Dr Wynn Owen's opinion, lead Mr Pickett within weeks to months to violent and potentially sexually violent offending.[50]

Report and oral evidence of Dr Wojnarowska

[50] ts 13 February 2020, pages 86 ‑ 88.

1. Dr Wojnarowska is also a forensic consultant psychiatrist.  Dr Wojnarowska conducted one interview with Mr Pickett for the purposes of providing a psychiatric report to the court in respect of this application.

2. Dr Wojnarowska also found that Mr Pickett fulfils the criteria for antisocial personality disorder and substance use disorder (alcohol, amphetamines and cannabis).  In her written report, she concluded that the latter condition is now in remission due to being imprisoned and being medicated with high doses of psychotropic medications.

3. Dr Wojnarowska, like Dr Wynn Owen, undertook an assessment of Mr Pickett's risk of sexual reoffending utilising the STATIC-99 R and the RSVP.  In addition, she also undertook an assessment of Mr Pickett by utilising the Hare Psychopathy Checklist‑Revised (PCL‑R); the HCR‑20 (a broad‑band violence risk assessment instrument), and the 3‑Predictor model ('which identifies three factors as predictive of sexual reoffending in the Aboriginal population').[51]

   [51] ts 13 February 2020, page 100.

4. In her written report, Dr Wojnarowska stated that:

   (a)Mr Pickett was below the threshold scores usually required to confirm a diagnosis of psychopathy;

   (b)Mr Pickett's score on the STATIC‑99 R suggests that he is within the high risk category of sexual reoffending.  Twenty five per cent of offenders with the same score as Mr Pickett reoffended within five years;[52]

   (c)using the 3-Predictor model, two of the three factors that best predicted sexual reoffending were identified, which were, unrealistic long-term goals and poor coping skills before release.  However, he did have some feasible release plans in that he has suitable accommodation where he is likely to be supported and supervised;

   (d)in terms of his long-term goals, Mr Pickett did not appreciate that a lifestyle of staying at home and watching TV would not be sustainable.  He had no specific plans as to his future employment and development of social connections or pro‑social activities.  He did not perceive that he may struggle to remain drug and alcohol free and did not anticipate major problems with adjustment to the community after 21 years in prison;

   (e)in terms of Mr Pickett's coping skills before release, he had spent the last 21 years in a highly structured and contained environment.  He required moderate levels of support to function and high doses of psychotropic medications to assist with self-regulation.  His random drug and alcohol screens have been positive over the years; and

   (f) she identified a number of risk factors in Mr Pickett using the RSVP, which are associated with an increased risk of sexual reoffending including: psychological coercion in sexual violence; extreme minimisation/denial of sexual offending; problems with self‑awareness; problems with stress and coping; substance use; violent or suicidal ideations (possible); problems with intimate and non-intimate relationships; problems with employment; problems with planning; problems with treatment; and problems with supervision.

   [52] When giving oral evidence Dr Wojnarowska stated that there was no significance in the difference of the score that she gave of high risk compared with the above average risk score assessed by Dr Wynn Owen.

5. After assessing Mr Pickett by utilising the HCR-20, Dr Wojnarowska's opinion is that a moderate level of effort or intervention is required to prevent Mr Pickett from committing further violence, but that there was a high risk that the violence will involve or escalate into serious or life-threatening physical harm.  The emergence of this risk in the near future was low.

6. The likely risk scenario formulated by Dr Wojnarowska involves Mr Pickett being unemployed, drinking alcohol and/or using drugs to alleviate boredom, ceasing his medications, committing generalist offences to obtain money to buy drugs, and during the course of a burglary or roaming the streets in an intoxicated state, he may encounter a victim.  The harm to the victim is likely to be psychological and physical.

7. Taking into account her clinical assessment of Mr Pickett and her application of the RSVP, PCL-R, 3-Predictor model and HCR-20, Dr Wojnarowska formed the opinion that Mr Pickett is at high risk of sexual reoffending, if not subject to an order under the Act.

8. Like Dr Wynn Owen, Dr Wojnarowska is of the opinion that Mr Pickett's risk of sexual offending is intrinsically woven into his generalist offending.

9. When Dr Wojnarowska wrote her October 2019 psychiatric report, she was uncertain to what extent, if any, Mr Pickett could benefit from individual psychological or programmatic treatment.[53]  However, after Mr Pickett underwent a neuropsychological assessment by Dr Vidovich, which identified no major cognitive deficits, Dr Wojnarowska provided a supplementary report in which she states that, provided Mr Pickett is motivated to change and apply himself, his prospects at achieving his treatment goals and reducing his risk of reoffending are good.[54]

   [53] Exhibit 1, vol 3; Psychiatric Report of Dr Gosia Wojnarowska, page 1938.

   [54] Exhibit 2; Supplementary Book of Materials, page 5.

1. Also, like Dr Wynn Owen, it is Dr Wojnarowska's recommendation that Mr Pickett's methadone, mood stabilisers and antipsychotic medication should be reduced before he is released.  In particular, Dr Wojnarowska expressed the opinion that Mr Pickett is unlikely to obtain quetiapine in the community, as it will need to be prescribed outside the indications, as a private prescription.[55]  Further, if Mr Pickett's methadone, mood stabilisers and antipsychotic medication are stopped suddenly, his cravings for illicit substances may return.

   [55] Exhibit 1, vol 3; Psychiatric Report of Dr Gosia Wojnarowska, page 1939.

2. When giving oral evidence, Dr Wojnarowska stated that Mr Pickett needs assistance in abstaining from alcohol and illicit drug use.  This is said to be so because of his long history during incarceration of using illicit substances, which has been replaced by prescription medications (which, in her opinion, should not be used long-term for anyone who does not suffer a major psychiatric condition).  Consequently, Dr Wojnarowska points out there is no evidence as to whether Mr Pickett is capable of remaining abstinent from alcohol and illicit drugs on release.[56]

   [56] ts 13 February 2020, page 115.

3. It is also Dr Wojnarowska's opinion that Mr Pickett requires treatment by one-to-one counselling to address and self-manage his anxiety, emotions and negative mood issues without the medications that he is taking which numb his feelings.  Without that treatment, it is her view that there is a high possibility that Mr Pickett will reoffend, and releasing him without first having his treatment needs addressed will set him up for failure.  It is her recommendation that Mr Pickett not be released until he has engaged with a therapist and prove that he is able to function without prescribed or illicit substances.[57]

   [57] ts 13 February 2010, pages 115 - 118.

4. Dr Wojnarowska agrees with Dr Wynn Owen's opinion that Mr Pickett be permitted to a gradual reintegration into the community (as opposed to immediate release).  She states that, ideally, Mr Pickett should first be transferred to a low security prison where he would be afforded a period of leave, and accommodated in a self-contained unit with the possibility of work.[58]

   [58] ts 13 February 2020, page 111.

5. If Mr Pickett is to be released on a supervision order, it is Dr Wojnarowska's opinion that the most important conditions to ensure community safety are related to a curfew, and abstinence from illicit substances.[59]

Report and oral evidence of Dr Ben Bannister

[59] ts 13 February 2020, page 112.

1. Dr Bannister is a forensic psychologist.  Dr Bannister assessed Mr Pickett in 2011 and more recently in late 2019. 

2. In 2011, Dr Bannister assessed Mr Pickett's progress towards being suitable for a resocialisation program and to develop a viable parole plan.[60]  In 2011, Dr Bannister reported that Mr Pickett presented with outstanding treatment needs, particularly in the areas of problem‑solving skills, cognitive rigidity, consequential thinking, emotional regulation, relapse prevention and stress management.  In 2011, Dr Bannister recommended that Mr Pickett undertake a Pathways Drug and Alcohol program and an additional Think First program.

   [60] Exhibit 1, vol 3; Psychological Report of Ben Bannister, pages 1872 ‑ 1876.

3. In September 2019, Dr Bannister interviewed Mr Pickett and prepared a report for the court.  In his report, he referred to his last assessment in 2011, and stated that:

   (a)Mr Pickett had in the past received fortnightly individual counselling between December 2012 and March 2013, and completed a structured, manual‑based program titled 'Break Your Cycle of Recidivism';

   (b)in March 2017, Mr Pickett was found to have significant outstanding treatment needs, and it was recommended that individual counselling should be provided to him again.  He was referred to a specialist psychological service.  However, Mr Pickett declined to participate and it was observed that at that time he tended to disengage from assistance services at times of heightened stress or low mood;

   (c)Mr Pickett was enrolled in the Pathways program between May 2011 and August 2011.  Mr Pickett was reported by program facilitators to have been conscientious, and was able to recognise that he used drugs in prison in order to cope with his circumstances.  However, program staff reported that he had some difficulties in accomplishing actual behaviour change in relation to his substance use, and that his relapse prevention plan consisted largely of having support from his wife and family;

   (d)although Mr Pickett was scheduled to participate in the Think First program, he refused to do so.  This is because the course participation list was restricted to sex offenders only, and Mr Pickett had continued to deny his sex offending.  In 2011 and 2012, it was recommended he complete a mainstream Think First program that was not restricted to sex offenders only.  Mr Pickett was to be assessed for suitability to engage in the Sex Offender Deniers program upon successful completion of the Think First program.  Although Mr Pickett attended sessions of the Think First program between October 2015 and January 2016, he refused to participate in the Deniers program; and

   (e)program facilitators of the Think First program in 2016 reported that Mr Pickett often required help to understand activities, but once he was provided with appropriate explanations, he was able to understand directions and complete work to a satisfactory level.  His treatment gains were reported by facilitators as:  improved understanding and application of consequential thinking skills; demonstrated understanding of all aspects of problem-solving, and an ability to apply these concepts to his own experience; recognised signs of anger and strong emotion as a trigger to need to use emotion management; and addressed impulsivity treatment need.

4. When assessing Mr Pickett in 2019, Dr Bannister used an assessment tool known as STABLE-2007 to identify outstanding treatment targets of Mr Pickett that may warrant either further intervention or the development of risk management strategies.  Dr Bannister identified in Mr Pickett some dynamic risk factors, including personal skills deficits, predilections and learned behaviours that correlate with sexual recidivism but can be changed through a process of 'effortful intervention', being through either treatment or supervision.  The risk factors in Mr Pickett were identified as:

   (a)Intimacy deficits:  records indicate that while Mr Pickett has spent a limited time in the community, he was able to form a relationship in his late teenage years that included about 18 months of cohabitation.  However, this relationship was reportedly characterised by some instability as a result of infidelity and drug use by both parties.  Mr Pickett stated he is currently in a relationship with a woman with whom he intended to live with upon his release.  He had known her from a much earlier time in their lives and they had reconnected in or about late August 2019, but this relationship has not been tested in the community setting;

   (b)General social rejection/loneliness:  Mr Pickett admitted that he often felt lonely and preferred to keep to himself.  He acknowledged that there was no one in prison he felt he could talk to as a friend;

   (c)Lack of concern for others:  Mr Pickett's offending behaviour is the clearest evidence of this.  He has historically demonstrated dishonesty, manipulative behaviour, a lack of guilt, remorse or empathy.  His antisocial actions, both in the community and in prison, have demonstrated that he may be indifferent to the rights and well‑being of others;

   (d)General self-regulation:  there appears to be evidence of a degree of impulsive acts in Mr Pickett's history across a range of life domains, as noted in a range of professional assessments across a long period of time.  This impulsivity has been demonstrated in Mr Pickett's offending, his behaviour in prison, his interpersonal interactions and his substance use;

   (e)Poor cognitive problem-solving:  previous assessors have also noted that Mr Pickett's lifestyle in the community and history of offending indicates a chronic history of poor problem-solving as evidenced by difficulties in areas such as substance use, post‑release plans and offending;

   (f)Negative emotionality:  there is clear evidence that Mr Pickett has experienced this; he has previously discussed feeling victimised and mistreated by others, particularly those in positions of authority, such as police officers and prison staff; and

   (g)Co‑operation with supervision:  Mr Pickett has previously been convicted of various breaches of probation, bail or conditional release orders.  At the time of his index offences, he was on home detention bail.  When asked about his intention to abide by the conditions of a supervision order, he said that he would do whatever was required of him in order to be released.  However, he may still react negatively towards people in positions of authority, such as community corrections officers or Sex Offender Management Squad officers (police officers).

5. In his 2019 report, Dr Bannister states that despite Mr Pickett engaging to significant degree of treatment programs, both in an individual and group format, he continues to have a number of outstanding treatment needs that require attention, which include:  improving insight, emotion management and problem-solving; addressing cognitive distortions and substance use (including improving relapse prevention strategies); and developing relationship skills.

6. Dr Bannister is also of the view (as are Dr Wynn Owen and Dr Wojnarowska) that Mr Pickett's treatment needs should most appropriately occur through a targeted and individualised approach, and within a framework that considers his cognitive and memory difficulties.  Dr Bannister also points out that the treating forensic psychologist should bear in mind Mr Pickett's likely wavering motivation to engage.[61]  Notwithstanding this view, when Dr Bannister gave oral evidence, he stated that Mr Pickett had informed him that he would do what was required of him in order to be released from prison.[62]  I note, in this regard, that in the past Mr Pickett has agreed to attend appointments, such as individual counselling in 2017, or more recently medical appointments, but has subsequently refused to attend.

   [61] Exhibit 1, vol 3; Proposed DSO Management Plan of Dr Ben Bannister, page 1989.

   [62] ts 13 February 2020, page 127.

7. In his oral evidence, Dr Bannister did, however, say that he broadly agreed that Mr Pickett has over time shown that he has become more self-regulated, in that, although Mr Pickett has problems with impulsivity, within the fairly restricted environment of prison, it appears that Mr Pickett has made less impulsive decisions than he has in the past.[63]  Having reviewed Mr Pickett's prison records and his substance use test results, it appears that is the case.

   [63] ts 13 February 2020, page 135.

8. In the event that Mr Pickett is made subject to an order under the Act, Dr Bannister informed the court that Mr Pickett will be allocated a psychologist by the Department of Justice.[64]  If he is to be released on a supervision order, it is likely that he will need considerable psychological assistance to make the transition to the community, due to potential issues of institutionalisation.  In Dr Bannister's view, Mr Pickett will likely need weekly psychological contact, but that there are expert forensic psychologists who are available to assist him, if he is motivated to receive their assistance.

   [64] ts 13 February 2020, page 129.

9. Dr Bannister made it clear that if Mr Pickett is made subject to an order under the Act, he will be allocated a forensic psychologist, irrespective of whether he is subject to a continuing detention order or a supervision order.  Further, the availability of an individual psychologist to Mr Pickett will be the same irrespective of whether he is in or out of custody.[65]

Report and oral evidence of Ms Kimberley Comery, Senior Community Corrections Officer

[65] ts 13 February 2020, pages 135 ‑ 136.

1. Ms Comery is Mr Pickett's allocated community corrections officer.

2. Ms Comery in her report states that if Mr Pickett is released on a supervision order:

   (a)Mr Pickett proposes to live with his younger brother, and his brother's partner, in their rented home.  Mr Pickett's brother confirmed that he and his partner remained supportive of Mr Pickett and will allow him to reside with them;[66]

   (b)the Sex Offender Management Squad have no concerns regarding Mr Pickett's brother and his partner.  A Desktop Spatial Analysis of the proposed address has been completed and police have identified a number of places/areas/persons of concern within a 2 km radius of the property, none of which are of such significance as to render it unsuitable as a residence for Mr Pickett;[67]

   (c)Mr Pickett's mother will visit the property frequently to spend time with her son and support Mr Pickett;[68]

   (d)Mr Pickett commenced a new relationship with a woman in or about September 2019, whom Ms Comery had spoken to who confirmed that she had known Mr Pickett since the age of 15 years and that they now identify as being in a relationship.  Mr Pickett's younger brother (with whom he intends to reside) is aware that Mr Pickett would like his new partner to stay at their home;[69]

   (e)although Mr Pickett's new partner appeared to be aware of Mr Picket's offending, she did not appear to be aware of his convictions for sexual offending.  Nevertheless, she stated that she will support and assist him in any way she can in regard to compliance with a supervision order;[70]

   (f)Mr Pickett has not given advice of any plans to commence employment if released, however, this can be explored after his release;[71]

   (g)the victim of Mr Pickett's sexual offending does not appear to reside in close proximity to the address at which it is proposed that he reside with his younger brother and his younger brother's partner;[72]

   (h)although Mr Pickett is not a reportable offender under the Community Protection (Offender Reporting) Act 2004, the proposed supervision order contains a condition that the respondent report to the Sex Offender Management Squad within 48 hours of his release, and thereafter report to and receive visits from police at times and locations as directed;[73] and

   (i)other proposed conditions of a supervision order include a curfew, prohibition on the use of illicit drugs and alcohol, as well as testing for illicit drugs and substances, and other requirements to ensure compliance, including keeping a diary, most of which are included in the orders for other dangerous sexual offenders who are released into the community.[74]

   [66] Exhibit 3, email from Ms Kara Cassam to the Office of the Director of Public Prosecutions, sent 10 February 2020.

   [67] Exhibit 3, email from Ms Kara Cassam to the Office of the Director of Public Prosecutions, sent 10 February 2020.

   [68] Exhibit 1, vol 3; Community Suspension Assessment of Kimberley Comery, page 1993.

   [69] Exhibit 1, vol 3; Community Suspension Assessment of Kimberley Comery, pages 1993 ‑ 1994.

   [70] Exhibit 1, vol 3; Community Suspension Assessment of Kimberley Comery, pages 1994 ‑ 1995.

   [71] Exhibit 1, vol 3; Community Suspension Assessment of Kimberley Comery, page 1995.

   [72] Exhibit 1, vol 3; Community Suspension Assessment of Kimberley Comery, page 1995.

   [73] Exhibit 1, vol 3; Community Suspension Assessment of Kimberley Comery, pages 1996, 1999.

   [74] Exhibit 1; vol 3, Community Suspension Assessment of Kimberley Comery, pages 1990, 2002.

3. When giving oral evidence, Ms Comery explained the reason why it is proposed that if Mr Pickett is to be released on a supervision order he should be directed to keep a diary.  Ms Comery said it is a standard condition of a supervision order that the person be subject to electronic monitoring, however, there are limitations to electronic monitoring.  GPS tracking notifies the authorities exactly when and where a person is, but does not inform the authorities what they are doing or who they are with.[75]  Consequently, it is often a condition of a supervision order that the person self-report about those matters by keeping a daily diary of their movements and associations[76] which can be reviewed by community corrections officers and police officers to whom the person subject to the order reports.

   [75] ts 13 February 2020, page 144.

   [76] ts 13 February 2020, page 145.

4. Ms Comery also said that if Mr Pickett is released on a supervision order, a referral had been made to a private service to assist Mr Pickett to receive reintegration support in the community.  This private service would assist him in connecting with Centrelink, training him in the use of public transport, obtaining appropriate identification, and assisting him in obtaining a general medical practitioner close to his residence.[77]

   [77] ts 13 February 2020, page 148.

5. As to the recommendation made by Dr Wynn Owen and Dr Wojnarowska that if a detention order is made Mr Pickett should be moved to a low security environment, Ms Comery informed the court that it was not unusual for persons who are declared dangerous sex offenders to be housed in a low security prison, and that such a transfer request could be made on behalf of a person who is the subject of a detention order by a community corrections officer.  However, Ms Comery also informed the court that whether such a request would be granted is a matter for the Deputy Commissioner of Custodial Operations to determine.[78]

Other reports and assessments relating to Mr Pickett

[78] ts 13 February 2020, page 142.

1. The book of materials contains a number of reports prepared in relation to Mr Pickett by psychologists and psychiatrists, together with a pre‑sentence report which were all prepared prior to Mr Pickett being sentenced in 2000.  Given that these reports were written some 20 years ago, they are of no real assistance in determining this application.

2. The book of materials also contains pre‑sentence and treatment reports prepared between October 2005 and 13 October 2017.  I have reviewed each one of those reports.  The contents of all of these reports have been referred to and considered by Dr Wynn Owen, Dr Wojnarowska and Dr Bannister and do not need to be set out in any detail in these reasons.

3. The supplementary book of materials contains the neuropsychological assessment report by Dr Vidovich.  I have reviewed that report in the context of considering the addendum psychiatric reports of Dr Wynn Owen and Dr Wojnarowska. 

4. The supplementary book of materials also contains a pre‑sentence report from Ms Stephanie Lovelock, a psychiatric report of Dr Steve Patchett and a psychological report of Mr Nigel Cameron.  These reports were prepared for the Court of Appeal for the purpose of resentencing Mr Pickett in late 2019.  The contents of the opinions expressed in these reports are consistent with the reports prepared for this application.  I have considered the contents of each of these reports.

5. I note in particular that, when Mr Pickett was interviewed by Dr Patchett, Mr Pickett abruptly left the consultation after about 45 minutes, as a result of some questions Dr Patchett asked about what Mr Pickett had told his father, and as a consequence the psychiatric examination of Mr Pickett was incomplete.  However, Dr Patchett was of the opinion that Mr Pickett would benefit from supportive counselling/psychotherapy to explore the impact of sexual abuse on him (that he had suffered as a child by a relative, not being either of his parents, that he had recently disclosed to the Royal Commission).  Dr Patchett was also of the view that intensive, individual and motivational counselling is the approach most likely to secure a change of insight (in Mr Pickett) and then engagement with rehabilitative programs such as residential rehabilitation when he is back in the community.[79]

Section 7(3)(c) ‑ information indicating whether or not Mr Pickett has a propensity to commit serious sexual offences in the future

[79] Exhibit 2; Supplementary Book of Materials, pages 26 - 27, 35.

1. Counsel on behalf of the State made a submission that the word 'propensity' in s 7(3)(c) of the Act should be taken to have its ordinary meaning in the context of the criminal law. In Director of Public Prosecutions (WA) v GTR, Murray AJA said that in this context propensity:[80]

   [M]eans that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim.  The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.

   [80] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [178]; this construction of the word 'propensity' was applied to s 7(3)(c) of the Dangerous Sexual Offenders Act 2006 (WA) in Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [66] (Hall J) and in The State of Western Australia v Jonsson [No 3] [2019] WASC 463 [66] (Archer J).

2. It is of some importance in this matter that Mr Pickett has committed serious sexual offences against only one victim on 29 November 1998, and there is no evidence of any other convictions or uncharged acts of a similar nature.  However, there is evidence before the court that Mr Pickett has had a long history of committing violent offences under the influence of illicit drugs, in relation to which, the seriousness and number of such offences have escalated.  The expert evidence of the psychiatrists (which I accept), is that the index offences committed by Mr Pickett are a type of violent offences.  When regard is had to all of this evidence it does not necessarily follow that, because Mr Pickett has only been convicted of serious sexual offences which occurred on one occasion (that is committed during the course of an aggravated burglary with intent to steal property) that there is no evidence that Mr Pickett has a propensity to commit serious sexual offences in the future. 

3. In any event, if regard is had only to the extensive volume and number of Mr Pickett's convictions for violent offences, when compared to the fact that Mr Pickett committed serious sexual offences on one occasion only, it could be said that there is simply an absence of evidence as to propensity.

4. Further, whether or not a person has a propensity to commit serious sexual offences generally, in a particular way or upon a particular type of victim in the future, is only one matter that the court must have regard to pursuant to s 7(3).

Section 7(3)(d) - whether or not there is any pattern of offending behaviour

1. The State properly concedes there is no evidence that Mr Pickett has engaged in any pattern of offending of serious sexual offences. 

Section 7(3)(e) and s 7(3)(f) ‑ any efforts by Mr Pickett to address the cause or causes of the offending behaviour, including participation in any rehabilitation program, and whether participation in any rehabilitation program has had a positive effect

1. Mr Pickett has participated in a number of treatment programs whilst in prison.  These include:[81]

   [81] Exhibit 1, vol 3; Psychiatric Report of Dr Gosia Wojnarowska, page 1920.

   (a)an Intensive Substance Use program in mid‑1996;

   (b)Skills Training for Aggression Control program completed in December 1996;

   (c)Violent Offender Treatment program in November 2005;

   (d)individual counselling in 2006 to 2007;

   (e)Moving on from Dependencies program in April 2007;[82]

   (f)Think First program in December 2007;

   (g)Pathways program in September 2011;

   (h)Break your Cycle of Offending program in 2013;

   (i)Think First program from October 2015 to January 2016; and

   (j)Cognitive Skills program in 2017.

   [82] Exhibit 1, vol 3; Moving on from Dependencies Treatment Completion Report of Jayne Carver, pages 1853 ‑ 1855.

2. Dr Wojnarowska, Dr Wynn Owen and Dr Bannister all agree that despite engaging with a significant number of treatment programs in the past, Mr Pickett continues to have a number of outstanding treatment needs that require attention.  As a result of Mr Pickett's continued stance of denial that he committed the index offences in 1998, Mr Pickett has not participated in any sex offender treatment programs.  Dr Wojnarowska, Dr Wynn Owen and Dr Bannister all agree that there is no reason why individualised, sex offender denier treatment could not be delivered to Mr Pickett by a forensic psychologist.

3. In Dr Wojnarowska's report, she observed that the assessment records indicate that as late as 2017, a forensics psychologist, Ms Place, observed that:[83]

   (a)despite engaging in numerous group treatment programs, Mr Pickett demonstrated no insight into his pattern of violent behaviour.  He was unable to identify the factors which contributed to his violent behaviour and denied the role of poor emotion management and antisocial peers in his violent behaviour, though he acknowledged the role of antisocial peers in his general offences;

   (b)Mr Pickett was lacking in personal responsibility and evidencing a pattern of playing the victim, with inadequate risk management strategies; and

   (c)Mr Pickett displayed a sense of hopelessness.

   [83] Exhibit 1, vol 3; Psychiatric Report of Dr Gosia Wojnarowska, page 1921.

4. Dr Wojnarowska also importantly noted in her report that by the time Ms Place made her assessment in 2017 prison reports were describing Mr Pickett as polite, respectful and following rules.  In this regard, when Dr Wojnarowska interviewed Mr Pickett she observed that it is only in recent years that Mr Pickett made a firm decision to disconnect from the antisocial culture within prison, by trying to pull away and keep to himself.[84]  This evidence is important because it indicates that whilst Mr Pickett has unmet treatment needs, he has exhibited signs that he is capable of change.  Importantly, Mr Pickett has not returned a positive test for illicit drugs since late 2018.

   [84] Exhibit 1, vol 3; Psychiatric Report of Dr Gosia Wojnarowska, page 1921.

5. Further, it is important to observe that the recent neuropsychological assessment by Dr Vidovich indicates Mr Pickett appears to have difficulties in learning in a group environment.  Consequently, in light of this evidence, it cannot be conclusively found that Mr Pickett's unmet treatment needs are entirely as a result of his own failures to address the causes of his offending.

6. Dr Wynn Owen, Dr Wojnarowska and Dr Bannister all agree that Mr Pickett's unmet treatment needs (which include improving insight, emotion management and problem‑solving, addressing cognitive distortions in substance use, including improving relapse prevention strategies, and developing relationship skills) could be met through a targeted and individualised approach that takes into account Mr Pickett's previously identified cognitive and memory difficulties.

7. It is, however, of concern that when offered individual intervention in March 2017 from Specialist Psychological Services, Mr Pickett chose not to engage with that service.  However, his lack of motivation may be capable of being explained by the fact that at that time he was serving an indeterminate sentence, had become institutionalised and was still engaging in illicit drug use in prison, despite being on large doses of methadone, mood stabilisers and antipsychotic drugs.

Section 7(3)(h) and s 7(3)(i) ‑ the risk of a further serious sexual offence if Mr Pickett is not subject to a continuing detention order or supervision order, and the need to protect members of the community from that risk

1. Having regard to the evidence of Dr Wynn Owen, Dr Wojnarowska and Dr Bannister, I am satisfied that there is a high risk that if Mr Pickett is released into the community without a continuing detention order or supervision order he will commit further serious sexual offences.

2. I am also satisfied that it is Mr Pickett's propensity to commit home burglaries, whilst affected by drugs and/or alcohol, which could expose women in their homes to serious sexual offences, is a risk which raises a clear need for the protection of women in the community.

Conclusion as to whether Mr Pickett is a serious danger to the community

1. Having regard to all of the evidence and the factors I am required to consider pursuant to s 7(3) of the Act, I am satisfied to the requisite standard that there is an unacceptable risk that, if Mr Pickett is not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence in the future.

2. I, therefore, find that Mr Pickett is a serious danger to the community for the purposes of s 17 of the Act.

The second question - continuing detention order or supervision order?

1. Having found that Mr Pickett is a serious danger to the community, I must decide whether he should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order.

2. There is no disagreement between counsel as to the appropriate conditions to be attached to a supervision order if made by the court.

3. Counsel for the State advanced a submission that a continuing detention order should be made, as the community cannot be adequately protected if the court released Mr Pickett on a supervision order.

4. Counsel for Mr Pickett submitted that the risk that Mr Pickett will commit a serious sexual offence in the future could be managed adequately by the conditions of a supervision order.

5. As counsel for the State points out, the paramount consideration in deciding between a continuing detention order and a supervision order, is the protection of the community, but this does not mean that there is a predisposition towards making a continuing detention order.  As Hall J observed in Director of Public Prosecutions (WA) v Decke:[85]

   Once a court has concluded that an offender is a serious danger to the community it must make either an indefinite detention order or a supervision order (DPP v Williams per Wheeler JA at 68).  In deciding between those two possibilities the paramount consideration is the need to ensure the adequate protection of the community (s 17(2)).  That does not exclude other considerations.  Nor does it necessarily favour an indefinite detention order.  The use of the word 'adequate' indicates that a qualitative assessment is required.  It cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order.

   In The State ofWestern Australiav Latimer [2006] WASC 235, Murray J expressed the view that the court would not make a detention order if an adequate degree of protection of the community could be obtained by making a supervision order. His Honour noted that a detention order is for an indefinite term whereas a supervision order is for a defined period. Given the more onerous nature of a detention order, Murray J concluded that the Act requires the court to do no more than is necessary for the continuing control, care, or treatment of the offender to achieve an adequate degree of protection for the community. I agree.

   [85] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14] - [15].

6. However, as Quinlan CJ recently pointed out, as s 17(2) requires the court to apply, as the paramount consideration, the need to ensure adequate protection of the community, matters personal to the person must necessarily be secondary considerations.[86]

   [86] The State of Western Australia v Rao [2019] WASC 93 [129].

7. Further, the court is prohibited by the operation of s 17(3) and s 17(4) of the Act, from making a supervision order unless it satisfied, on the balance of probabilities, that Mr Pickett will substantially comply with the standard conditions of a supervision order, the onus of proof which is on Mr Pickett.

8. One of the standard conditions of a supervision order is that the person subject to the order will comply with any reasonable direction of the community corrections officer under whose supervision they are placed under.[87]  Another standard condition is that the person subject to the supervision order will report to a community corrections officer.[88]  In light of the evidence that:

   (a)Mr Pickett has unmet treatment needs which need to be addressed prior to release from prison;

   (b)Mr Pickett is on prescribed psychotropic medications (one of which is unlikely to be prescribed outside of prison) and methadone, all of which Dr Wynn Owen and Dr Wojnarowska agree should be gradually withdrawn prior to release from prison;

   (c)Mr Pickett needs to show that he can self-manage his anxiety, emotions and negative moods, without psychotropic medications and illicit drugs, whilst in a regulated environment,  to assist him to make a transition  to the community;

   (d)in the past Mr Pickett (albeit when he was significantly younger) has previously shown a disregard of supervision orders as he has been convicted of various breaches of probation, bail or conditional release orders, and at the time of his index offences, he was on home detention bail; and

   (e)Mr Pickett's reluctance from time to time to attend appointments;

   I am not satisfied, on the balance of probabilities, that Mr Pickett will substantially comply with the standard conditions of a supervision order, set out in s 18(1)(b) and s 18(1)(d) of the Act.

   [87] Dangerous Sexual Offenders Act 2006 (WA) s 18(1)(d)

   [88] Dangerous Sexual Offenders Act 2006 (WA) s 18(1)(b).

9. As Quinlan CJ also recently remarked, it is in the interests of the community, and its protection from offending, that an offender with known treatment needs have those treatment needs addressed, before consideration is given to their release under supervision not, as is the case, afterwards.[89]

   [89] The State of Western Australia v Rao [2019] WASC 93 [137].

10. For these reasons, I am of the opinion that I must make an order that Mr Pickett be detained in custody for an indefinite term for control, care or treatment.

11. Whilst Mr Pickett is detained, it is imperative that he should receive the treatment and assistance he requires to make the transition to the community.  Mr Pickett has family support available to him in the community, and has the prospect of a protective relationship with a new partner.  If Mr Pickett is prepared to properly engage with a forensic psychologist in prison to address all of his treatment needs, and to engage with appropriately qualified medical staff to reduce his psychotropic medication, and if possible his dependency on methadone, then it is my view that Mr Pickett should have good prospects in the future to be released on a supervision order.

12. In all of the documentary and evidentiary material before the court, there is in my view signs that Mr Pickett, with dedicated and appropriate assistance, is capable of gaining insight into the triggers that lead him into offending.

13. Now that Mr Pickett is no longer subject to an indefinite sentence, perhaps he can now see that there is some light in front of him if he is prepared to do the work to make the changes in his patterns of behaviour that are required of him.

14. It is also important, in providing the proper assistance to Mr Pickett in making the changes required of him, that the prison authorities consider whether it is possible to move him to a low security prison environment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NM

Research Orderly to the Honourable Justice Smith

25 MARCH 2020