The State of Western Australia v Pindan [No 5] - [2021] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PINDAN [No 5] [2021] WASC 72
CORAM:   HILL J
HEARD:   11 MARCH 2021
DELIVERED          :   18 MARCH 2021
FILE NO/S:   SO 2 of 2013
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
NIGEL PINDAN
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Review of continuing detention order - Whether respondent remains a high risk serious offender - Whether to affirm continuing detention order or make a supervision order - Whether community would be adequately protected if respondent released on a supervision order - Suitability of proposed accommodation

Legislation:

High Risk Serious Offenders Act 2020 (WA), s 64, s 68, s 125

Result:

Continuing detention order rescinded
Supervision order made

Category: B

Representation:

Counsel:

Applicant	:	Mr B Meertens
Respondent	:	Mr T Hager

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	T Hager

Case(s) referred to in decision(s):

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306
Director of Public Prosecutions (WA) v Pindan [2013] WASC 393
Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107
Director of Public Prosecutions (WA) v Pindan [No 4] [2017] WASC 271
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Prisoners Review Board v Freeman [No 2] [2010] WASCA 167
The State of Western Australia v MBW [No 7] [2020] WASC 404
The State of Western Australia v ZSJ [2020] WASC 330

HILL J:

On 11 October 2019, the applicant applied under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) for a review of a continuing detention order made by Curthoys J on 20 December 2018.
The review was originally listed for hearing on 2 April 2020 but was adjourned by consent to allow the respondent the opportunity to participate in an Intensive Sex Offender Treatment Program (ISOTP) which he completed in August 2020. The application was relisted for hearing on 27 October 2020. On 23 October 2020, on the application of the respondent, the review was adjourned until 11 March 2021 to allow the respondent to undertake a neuropsychological assessment.
The hearing of the application took place before me on 11 March 2021 (Review Hearing).
For the reasons that are set out below, I consider that the continuing detention order should be rescinded and the respondent released on a supervision order on the conditions set out in Annexure B.

Background to the application

On 28 October 2013, McKechnie J found that the respondent was a serious danger to the community within the meaning and for the purpose of the DSO Act. His Honour ordered that the respondent be detained in custody for an indefinite term for control, care and treatment.
On 7 April 2015, the first review of the continuing detention order occurred. On that date, the court declined to rescind the continuing detention order.
The second annual review was heard in April 2016. On 22 April 2016, the court again declined to rescind the continuing detention order.
The third annual review of the continuing detention order was heard on 21 April, 5 May, and 7 and 15 September 2017. On 19 September 2017, Fiannaca J rescinded the continuing detention order and released the respondent on a supervision order to take effect on 10 October 2017.[1]
[1] Director of Public Prosecutions (WA) v Pindan [No 4] [2017] WASC 271.
On 6 September 2018, police officers from the Sex Offenders Management Squad attended the respondent's address to conduct a home visit. After entering the address, the police located a woman who was affected by illicit substances. They also found a clipseal bag containing less than 1 gram of cannabis. The respondent was charged with two offences under s 40A of the DSO Act (for contraventions of the conditions of his supervision order) and two offences under the Misuse of Drugs Act 1981 (WA).
On 20 December 2018, the respondent appeared before Curthoys J, pleaded guilty to these offences and was sentenced to 27 weeks' imprisonment, backdated to commence on 6 September 2018. On the same date, his Honour rescinded the supervision order made by Fiannaca J and ordered that a continuing detention order take effect at the end of the term of imprisonment he imposed on that date. It is this order that is the subject of the application before me.

Legislative framework

On 9 July 2020, pt 1 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) came into effect. On 26 August 2020, the remaining provisions of the HRSO Act came into force except for s 91 and sch 1, div 2, subdiv 1, item 1. On the same date, the DSO Act was repealed.[2]
[2] High Risk Serious Offenders Act 2020 (WA) s 123.
Pursuant to s 124(1) of the HRSO Act, if an application made under the DSO Act has not been finally determined by the commencement date of the HRSO Act, the application continues and is determined under the HRSO Act. The application is taken to have been lodged under the corresponding provisions of the HRSO Act.[3] Section 125 of the HRSO Act provides that if an order made, or direction given, under the DSO Act is in effect on the commencement day of the HRSO Act, the order or direction continues in effect and is taken to have been made or given under the corresponding provision of the HRSO Act.
[3] High Risk Serious Offenders Act s 124(1)(c).
The effect of these provisions of the HRSO Act is that:
(a)the respondent's continuing detention order made 20 December 2018 continues in effect and is taken to have been made under the HRSO Act;
(b)the application dated 11 October 2019 is treated as having been made pursuant to s 64 and s 66 of the HRSO Act; and
(c)this application must be determined under the provisions of the HRSO Act.
Part 5 of the HRSO Act sets out the provisions governing the review of an offender's detention under the HRSO Act. As is made expressly clear by s 63 of the HRSO Act, the purpose of the review is to ensure that an offender's detention under a continuing detention order is regularly reviewed.
Section 64 of the HRSO Act provides:
Review - periodic
(1)While an offender is subject to a continuing detention order, the State may apply to the Supreme Court for the offender's detention under the order to be reviewed.
(2)The State must apply under subsection (1) so as to ensure that reviews are carried out -
(a)as soon as practicable after the end of the period of 1 year commencing when the offender is first in custody on a day on which the offender would not have been in custody had the continuing detention order not been made; and
(b)as soon as practicable after the end of the period of 2 years commencing when the detention was most recently reviewed under this section or section 65.
(3)The periods mentioned in subsection (2)(a) and (b) are extended by any period during which the offender is in custody serving a sentence of imprisonment.
Section 66 of the HRSO Act provides:
Dealing with application
(1)As soon as practicable after an application is made under section 64 or 65, the court must give directions for the hearing of the application.
(2)Subject to subsection (3), the application must be heard, and the review must be carried out, as soon as it is practicable to do so in accordance with any directions given by the court.
(3)The court may adjourn the hearing of the application, and the carrying out of the review, where good cause is shown.
Pursuant to s 68 of the HRSO Act, on a review under s 66 of an offender's detention, the court must rescind a continuing detention order if the court finds that the offender no longer remains a high risk serious offender. If the court finds the offender remains a high risk serious offender, it must either affirm the continuing detention order or, subject to s 29, rescind the continuing detention order and make a supervision order. Section 68(2) provides that in deciding whether to make a supervision order, the paramount consideration is the need to ensure adequate protection of the community.
The term 'high risk serious offender' is defined by s 7 of the HRSO Act. An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. Section 3 of the HRSO Act defines a restriction order to mean a continuing detention order or a supervision order. The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 of the HRSO Act in similar terms to the definitions of these terms in the DSO Act.
Specifically, s 26 of the HRSO Act provides:
(1)In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.
(2)A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.
Section 27 of the HRSO Act provides:
(1)In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.
(2)A supervision order has effect in accordance with its terms -
(a)from a date stated in the order; and
(b)for a period stated in the order.
(3)The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
A 'serious offence' is defined in s 5 of the HRSO Act by reference to a number of offences specified in sch 1 to the Act. These offences include all of the offences that were defined as 'serious sexual offences' under the DSO Act.
In considering whether an offender is a high risk serious offender, the onus of proof is on the State.[4] Section 7(3) of the HRSO Act sets out particular matters that the court must consider in determining whether or not a person is a high risk serious offender. Again, these matters mirror those that were relevant under the DSO Act.
[4] High Risk Serious Offenders Act s 7(2).
The court cannot 'make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.'[5] The onus of proof is on the respondent to establish on the balance of probabilities that he will substantially comply with the standard conditions of the order.[6]
[5] High Risk Serious Offenders Act s 29(1).
[6] High Risk Serious Offenders Act s 29(2).
The 'standard conditions' of a supervision order are those conditions set out in s 30(2) of the HRSO Act.

Legal Principles governing the Application

As was noted by Fiannaca J in The State of Western Australia v ZSJ:[7]
[T]he HRSO Act operates largely as the DSO Act did in respect of serious sexual offences. Whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether [they are] a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.
[7] The State of Western Australia v ZSJ [2020] WASC 330 [5].
In The State of Western Australia v MBW [No 7], Derrick J expressed the view that the authorities that considered the review of continuing detention orders under the DSO Act remained relevant to the determination of an application for review under the HRSO Act.[8]
[8] The State of Western Australia v MBW [No 7] [2020] WASC 404 [30].
Derrick J went on to consider the meaning of the word 'adequate' in both s 7(1) and s 68(2) of the HRSO Act and said:[9]
The use of the word 'adequate' in s 7(1) indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order. In this regard I respectfully adopt the following statements of Beech J (as his Honour then was) in Director of Public Prosecutions (WA) v DAL [No 2] which, although made in relation to review proceedings under the DSO Act, are equally applicable to the operation of s 7(1) and s 68(2) of the Act:
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 [DSO 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 [DSO Act] applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community. (citations omitted)
[9] The State of Western Australia v MBW [No 7] [44] – [45].
In Director of Public Prosecutions (WA) v Unwin [No 3], Hall J summarised the court's approach to a review hearing in the following terms:[10]
The clear intention of the annual review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community then the continuing need for detention must be considered.
It is a significant thing to deprive a person of their liberty, not for something they have done but for something they might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
The risk of reoffending may change over time. It may be affected by age, health and the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
The annual review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Annual reviews are not, therefore, merely a welfare check; they are an exercise of judicial power to confirm, vary or rescind a detention order. Continuing detention should not be ordered unless that is justified by the circumstances existing at the time of the review.
[10] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] - [19].
In my view, the same considerations apply to a review under the HRSO Act.
On a review hearing, the court is not bound by the factual findings made at previous hearings.[11] However, it is not likely that the expert evidence adduced at a review hearing will call into question the previous finding that the respondent was a serious danger to the community.[12]
[11] Director of Public Prosecutions (WA) v Pindan [No 4] [43].
[12] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [51].

Findings at previous hearings

The respondent's background and details of his offending were set out in the judgment of McKechnie J on the initial application.[13]
[13] Director of Public Prosecutions (WA) v Pindan [2013] WASC 393 [5] ‑ [8]; [43] ‑ [51].
On 20 December 2018, the respondent appeared before Curthoys J and pleaded guilty to two contraventions of the supervision order as well as two offences under the Misuse of Drugs Act 1981 (WA).
Curthoys J found that the respondent had placed himself in a particularly high risk situation, both for himself, in breaching the order, and for the woman who was under the influence in his presence. His Honour concluded that once placed in a situation with an intoxicated woman there was a risk 'that there might well then have been intercourse either with or without consent. So it was on the threshold, potentially, of further offending and being placed in a high risk situation'.[14]
[14] ts (20 December 2018) 780.
In respect of the expert report of Dr Wynn Owen which was tendered at the hearing, his Honour referred to the opinions expressed in the report that the respondent:
(a)was not remorseful or apologetic in relation to the breaches of his supervision order and was disappointed that he had been caught out. He expressed the opinion that the respondent's failure to understand the significance of the breaches and his lack of insight were important factors in determining the respondent's risk of further offending;[15]
(b)gave Dr Wynn Owen the impression that he did not consider his offending was very serious. Dr Wynn Owen noted that while minimisation or denial is not a risk factor directly associated with an increased risk of future sexual offending, it is associated with poor treatment engagement and can be associated with attitudes that support or condone sexual violence;[16]
(c)said to Dr Wynn Owen that 'I'm not at risk. I can control myself'. The respondent expressed the view that he did not consider having an intoxicated woman at his home, giving her drugs and planning to let her stay at his house presented a risk to her or was a high risk situation for him;[17]
(d)said to Dr Wynn Owen that he had been 'caught out' by the random visit. Dr Wynn Owen expressed the view that this indicated that the respondent was aware that his actions were breaches of the supervision order;[18] and
(e)did not offer any understanding of his offending risk, other than avoiding alcohol.[19]
[15] ts (20 December 2018) 780.
[16] ts (20 December 2018) 781.
[17] ts (20 December 2018) 781.
[18] ts (20 December 2018) 781.
[19] ts (20 December 2018) 782.

In relation to the report of Dr Ben Bannister, Dr Bannister:
(a)noted that the respondent's treating psychologist, Dr Yewers, reported that the respondent continued to be ambivalent about his treatment and concrete rigid in his outlook, and that he had a low tolerance for examining his thoughts, feelings and motivations;[20]
(b)concluded that due to the respondent's frustration about the process and his rigidity of thought as well as other factors, including his personality structure, change was unlikely.[21]
[20] ts (20 December 2018) 782.
[21] ts (20 December 2018) 784.
His Honour concluded that the reports disclosed ongoing issues with the respondent's acceptance of the conditions of the supervision order and a lack of progress in resolving these issues.[22] Having regard to these factors, Curthoys J was satisfied the supervision order should be rescinded and a continuing detention order made.[23]
[22] ts (20 December 2018) 784.
[23] ts (20 December 2018) 785.

Issues for determination in the Review Hearing

The issues that I must decide on the Review Hearing are:
(a)is the respondent still a high risk serious offender?
(b)if so, can his risk be adequately managed under a supervision order if suitable accommodation is available?
(c)is the proposed accommodation suitable for the purposes of a supervision order?

Evidence on the application

At the Review Hearing, the applicant tendered without objection a book of materials dated 19 October 2020,[24] a supplementary book of materials dated 3 March 2021[25] and an email dated 10 March 2021.[26]
[24] Exhibit 1.
[25] Exhibit 2.
[26] Exhibit 3.
The book of materials contained historical information and past reports concerning the respondent. It also included the following reports that had been prepared specifically for the purpose of the application:
(a)a psychiatric report prepared by Dr Peter Wynn Owen dated 17 October 2020;[27]
(b)a Department of Corrective Services 'Dangerous Sex Offender Treatment Progress Report' by David Summerton dated 29 September 2020;[28] and
(c)a Department of Corrective Services 'Community Supervision Assessment' by Brooke Mandolene, Senior Community Corrections Officer (SCCO) dated 15 October 2020.[29]
[27] Exhibit 1, p 166 – 183.
[28] Exhibit 1, p 136 – 148.
[29] Exhibit 1, p 149 – 165.
The supplementary book of materials contained updated information concerning the respondent as well as a neuropsychological assessment report by Dr Mandy Vidovich dated 27 January 2021 (Vidovich Report)[30] and addendums to each of the reports of Dr Wynn Owen,[31] Mr Summerton[32] and Ms Mandolene.[33]
[30] Exhibit 2, p 60 – 75.
[31] Exhibit 2, p 76 – 78.
[32] Exhibit 2, p 79 – 80.
[33] Exhibit 2, p 81 – 87.
At the Review Hearing, Dr Wynn Owen, Mr Summerton and Ms Mandolene were called by the applicant to give evidence. Dr Vidovich was not required by the respondent to attend for cross-examination and her report was admitted by consent. The respondent did not give or adduce any evidence at the Review Hearing.
In considering the evidence adduced at the Review Hearing, I have had regard to the comments of Steytler P and Buss JA) in Director of Public Prosecutions (WA) v GTR:[34]
Although there is no doubt, under the Western Australian Act, that a court must have regard to the psychiatrists' reports (and must bear in mind that the authors have an area of expertise not shared by the court), the reports are only a part of the materials that must be considered and the weight to be accorded to them will depend upon their cogency and reliability, when considered in light of the whole of the evidence. The responsibility for deciding whether or not the offender is a serious danger to the community as defined and, if so, what order should be made is that of the judge alone.
[34] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [62].

Is the respondent a high risk serious offender?

At the commencement of the Review Hearing, counsel for Mr Pindan informed the court that the respondent accepted there was sufficient material before the court to find that the respondent remains a high risk serious offender.[35]
[35] ts 5.
On the material before the court, I accept this concession was properly made, and am satisfied that the respondent remains a high risk serious offender. That is, I am satisfied, by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
In making that finding I have considered, as I am obliged to do, the matters referred to in s 7(3) of the HRSO Act, which I have summarised below.

The respondent's personal circumstances and antecedents - s 7(3)(g) and s 7(3)(j)

The respondent is a 43‑year‑old Indigenous man from Derby, in the Kimberley region of Western Australia. He has never been married and does not have any children.
The respondent has never known his biological father. He was brought up by his mother and stepfather. The respondent attended school until he was 15 or 16. Outside of his initial employment with a government agency or in a custodial setting, the respondent has never been employed.

The respondent's history of serious offending - s 7(3)(g)

On three separate occasions, the respondent has been convicted of sexual assaults on women. All of the offences occurred in the Kimberley region of Western Australia.
The first occasion on which the respondent was convicted of a serious offence was in 1994. This conviction was for an offence of sexual assault, which occurred in December 1993 in Broome, when the respondent was a juvenile. The second occasion on which the respondent was convicted for a serious offence was in 1997 when he was 18 years of age. The respondent pleaded guilty to one charge of sexual penetration without consent which occurred in a community near Derby and was sentenced to three years' imprisonment. The third occasion was in 2007, where the respondent was convicted of a series of offences committed in Broome, when he was 28 years of age. The respondent pleaded guilty to three charges of sexual penetration without consent and was sentenced to six years' imprisonment.
The details of each of these offences were summarised by Fiannaca J in The Director of Public Prosecutions (WA) v Pindan [No 4].[36] It is sufficient for the purposes of the present application to note that on each occasion:
(a)the respondent committed the offences when he was heavily intoxicated with alcohol and, on one occasion, had been using cannabis; and
(b)the respondent entered the women's homes at night without their consent while the women were asleep before assaulting them.

Other medical assessments - s 7(3)(b)

[36] The Director of Public Prosecutions (WA) v Pindan [No 4] [5] - [9].

It is important at the outset to note that the original reports filed by the applicant for the purpose of the Review Hearing were prepared without the benefit of the Vidovich Report. The contents of the Vidovich Report caused Dr Wynn Owen, in particular, to reflect on the contents of his reports and his opinion of the respondent. For that reason, it is useful to summarise this report first before turning to the reports that were ordered to be obtained for the Review Hearing under s 74 of the HRSO Act.

Dr Mandy Vidovich

Dr Vidovich conducted a neuropsychological assessment on Mr Pindan on 19 January 2021.[37] While initially expressing reluctance to participate in the testing, the respondent became more engaged and co‑operative with the process.[38]
[37] Exhibit 2, p 60.
[38] Exhibit 2, p 64.
Dr Vidovich assessed the respondent's intellectual functioning; attention, working memory and processing speed; verbal skills and academic abilities; visual, perceptual and constructional skills; learning and memory; and executive abilities and behaviour.[39]
[39] Exhibit 2, p 66 – 68.
Dr Vidovich's opinion was that:
(a)the respondent has impaired auditory processing which strongly contrasted with his performance when he was required to attend to and mentally manipulate visual information;[40]
(b)the respondent's limited language skills and auditory attentional deficits significantly impacts his ability to learn information which is presented orally;[41]
(c)the respondent performed best when he was given tangible and concrete feedback;[42]
(d)the respondent's confidence in his performance increased when he was given time to reflect, as well as an opportunity for repetition and self-correction;[43]
(e)the respondent's ability to learn, particularly in a classroom or group setting, is affected by his attentional and auditory processing difficulties and his difficulty in learning new information;[44]
(f)the respondent's limited academic, literacy and expressive language skills make it challenging for him to reframe information in his own words and to express what he has learnt.[45]
[40] Exhibit 2, p 67.
[41] Exhibit 2, p 69.
[42] Exhibit 2, p 69.
[43] Exhibit 2, p 69.
[44] Exhibit 2, p 70.
[45] Exhibit 2, p 70.
Dr Vidovich stated that:[46]
As noted in other clinical reports, Mr Pindan is not psychologically minded and certain personality factors are likely going to result in him presenting as rigid and dismissive in his interaction, having difficulty with developing trust and openness, and to be avoidant of situations where he perceives he may be judged negatively (regardless of whether that is actually the case).
[46] Exhibit 2, p 70.
Dr Vidovich concluded that one-to-one therapeutic sessions were the most likely to produce shifts in his behaviour and perspective and that group programs were unlikely to significantly effect change in the respondent.[47]

Reports prepared under s 74 and extent to which respondent cooperated in examinations - s 7(3)(a)

Dr Wynn Owen's evidence

[47] Exhibit 2, p 70.

Dr Wynn Owen interviewed the respondent on 8 October 2020.
On this occasion, the respondent was prepared to discuss the 2007 offences which represented a shift from his last assessment. The respondent told Dr Wynn Owen that he thought he had the victim's consent but now realised he did not.[48] He challenged some of the facts of the offence, including his statement that he ceased sexually assaulting the victim. Dr Wynn Owen's opinion was that while the respondent did not express victim empathy, he did appear to show remorse.[49]
[48] Exhibit 1, p 169 – 170.
[49] Exhibit 1, p 170.
Dr Wynn Owen expressed the view that the respondent was more engaged with his current psychologist, Ms Collyer, and that he had positively engaged both with one‑on‑one therapy and the ISOTP program.[50]
[50] Exhibit 1, p 171.
When asked about his alcohol and substance use, the respondent told Dr Wynn Owen that, if required by the conditions of supervision order, he would not drink alcohol or use cannabis or other drugs. He said that he would not have any problem in abstaining from drugs and alcohol and that his plan, if offered drugs or alcohol, was to walk away if his refusal was not acknowledged.[51]
[51] Exhibit 1, p 172 – 173.
Dr Wynn Owen stated that the respondent was more forthcoming in discussing his sexual thinking on this occasion. The respondent reported to him that he has a low sex drive and denied any deviant sexual thinking or fantasy.[52] The respondent stated that, in his view, it was not the role of a community corrections officer (CCO) or the police to question his sexual thinking and behaviour; this was a matter he would only discuss with a psychologist. However, the respondent acknowledged the importance of working positively with his supervision team and openly disclosing his activities and not hiding things.[53]
[52] Exhibit 1, p 174.
[53] Exhibit 1, p 174.
Dr Wynn Owen's diagnosis was that the respondent has a substance use disorder, which is currently in remission, as well as an antisocial personality disorder.[54] This diagnosis has not changed since his earlier report in December 2018.
[54] Exhibit 1, p 175.
Dr Wynn Owen undertook an assessment of the risk of the respondent committing further sexual offences. In carrying out this assessment, he used an actuarial instrument, namely the Static‑99R, and a structured clinical guide, namely the risk sexual violence protocol (RSVP).
As has been noted by the court previously, actuarial instruments use mainly static (that is unchanging) risk factors. In contrast, structured clinical guides use both static and dynamic risk factors which require clinicians to consider different factors that impact upon their assessment of risk.[55]
[55] See for example, The State of Western Australia v MBW [No 7] [2020] WASC 404 [90].
The respondent's Static‑99R score placed him in the 'Level IVa - Above Average Risk' range. This indicates a predicted recidivism rate of 27.2%. The respondent falls within the 'High Risk High Needs' sample which means that the likelihood of him committing a new sexual offence within five years was 25.1% to 37%, and within 10 years, 42.8%.[56]
[56] Exhibit 1, p175 – 176.
Dr Wynn Owen expressly noted that the Static‑99 risk estimates have not been validated for indigenous Australian offenders.[57] However, a review undertaken in 2012 found that the Static‑99 routine samples underestimated the risk of future sexual offending with the likelihood of reoffending being more closely aligned with the High Risk/High Needs offender sample.[58]
[57] Exhibit 1, p 176.
[58] The Static 99 and Static 99-R Norms Project, Caroline Spiranovic, University of Western Australia, December 2012.
In relation to the RSVP, Dr Wynn Owen identified the following factors as being relevant to the assessment of the respondent's risk of reoffending:[59]
[59] Exhibit 1, p 176 – 179.
(a)frequency and diversity of sexual violence;
(b)chronicity of sexual violence: both early onset and persistent;
(c)escalation of sexual violence, being increasing duration and level of violence associated with his offences;
(d)physical coercion and sexual violence;
(e)extreme minimisation or denial of sexual violence which, while not associated with an increased risk of future sexual offending, was associated with poor treatment engagement and response;
(f)problems with self-awareness: the respondent continued to maintain he was not in a high risk situation for sexual offending during the events of September 2018 as he had no sexual interest in the woman;
(g)problems with stress and coping;
(h)problems with substance use: the respondent's previous offending has been associated with alcohol intoxication and cannabis use;
(i)problems with intimate relationships and non-intimate relationships;
(j)problems with employment: the respondent has not had employment for many years and will find it extremely difficult to find employment on release;
(k)the presence of non-sexual criminal activity: the respondent has some history of general offending;
(l)problems with planning: the respondent has difficulty in preparing a risk management plan and will be reliant on external supports and constraints;
(m)problems with treatment: while the respondent has consistently engaged with treatment, his motivation is to meet an obligation to achieve his release rather than to understand or acknowledge his risks of future offending;
(n)problems with supervision: Dr Wynn Owen noted the respondent's failure to comply with the previous supervision order.
Dr Wynn Owen expressed the view that the respondent's dynamic risks were potentially amenable to therapeutic intervention. However, the respondent had made little progress in addressing these risks despite his participation in two sex offender treatment programs and one‑on‑one individual therapy sessions with forensic psychologists.[60]
[60] Exhibit 1, p 181.
Dr Wynn Owen's opinion was that the respondent's risk of sexual reoffending was high based on his Static‑99R score, a review of the risk factors identified in the RSVP and a comprehensive clinical assessment.[61]
[61] Exhibit 1, p 181.
Dr Wynn Owen made the following recommendations for the treatment of the respondent:[62]
(a)continuation of individual counselling;
(b)consideration for enrolment in a community offender maintenance program;
(c)consideration of an indigenous peer mentor to work with the respondent to model and develop prosocial skills and behaviour;
(d)in the event that a supervision order were considered appropriate, he recommended that it be for a period of 10 years based on the respondent's slow progress with treatment, his age and his high Static‑99R score.
[62] Exhibit 1, p 181 - 182.
Dr Wynn Owen also recommended that, in the event the court determined the risks associated with the respondent could be managed by a supervision order, any conditions of the supervision order be tailored to risk manage the pattern of the respondent's previous sexual offending.[63]
[63] Exhibit 1, p 182.
Following receipt and review of the Vidovich report, Dr Wynn Owen prepared an addendum to his report but did not reinterview the respondent. In the addendum, Dr Wynn Owen expressed the view that the Vidovich report did not impact on his overall assessment of the respondent's risk of reoffending. His opinion, having considered the Vidovich report, was that the respondent had the capacity to benefit from further treatment intervention to reduce the risk of future serious offending and recommended individual counselling as the mode of treatment most likely to bring about change.[64]
[64] Exhibit 2, pp 76 - 78.
Dr Wynn Owen's evidence at the Review Hearing was that having had an opportunity to review the Vidovich Report, he would have preferred to reinterview the respondent. However, given there had been two previous adjournments to the Review Hearing, no party suggested that it should be adjourned again to enable this to occur. It was for this reason that the oral evidence of Dr Wynn Owen differed from his written reports.
In his oral evidence, Dr Wynn Owen noted that there were two 'standout changes' from his previous interview of the respondent: first, improved engagement with his therapist, Ms Collyer, and second, the respondent was prepared to discuss the 2007 offences which he had not done previously.[65]
[65] ts 22.
In respect of the first change, Dr Wynn Owen's evidence was that improved engagement was a significant component of treatment gain. That is, in order for there to be any treatment gain, it was essential the respondent had the ability to work effectively with his counsellor. His observation of the respondent's improved level of engagement was consistent with the reports from the respondent's counsellor, from Dr Summerton's report and from the respondent directly.[66] Further, the respondent's ability to disclose to Ms Collyer issues which are causing him stress or concern will 'go a long way towards assisting management of his risk in the community'.[67] Under cross‑examination, Dr Wynn Owen expressed the view that there were two main reasons for the respondent's improved engagement: first, the effective therapeutic relationship between Ms Collyer and the respondent, and second, Mr Pindan's improved motivation.[68]
[66] ts 22.
[67] ts 23.
[68] ts 49 - 50.
In respect of the second change, Dr Wynn Owen expressed the opinion that this was 'a significant step forward'.[69] This was because it indicated that the respondent would be much more likely to openly discuss aspects of the offending, which was an important step in determining the antecedents to these offences. Understanding the underlying factors that caused the respondent to commit a sexual offence enabled identification of what were the risk situations that arose and what strategies needed to be put in place to avoid them.[70]
[69] ts 22.
[70] ts 23.

Dr Wynn Owen noted that in the past, a question had been raised as to whether the respondent should be diagnosed with paraphilia. Dr Wynn Owen gave this question careful consideration and rejected it. In his view, he did not consider that the respondent's offending was a sexual deviance but was 'more about vulnerability'.[71] For this reason, he did not make a diagnosis of paraphilia or sexual deviance.[72]
[71] ts 24.
[72] ts 24.
Dr Wynn Owen explained his diagnosis that the respondent had a substance use disorder that was in remission. In his view, while access to drugs and alcohol was significantly reduced because the respondent was detained in custody, he considered that this was not the only explanation. Dr Wynn Owen noted that when the respondent was in the community on a supervision order, he was not found to be consistently using drugs and alcohol and was motivated not to use alcohol or illicit substances.[73]
[73] ts 25.
Dr Wynn Owen explained that an essential first step in not using alcohol or drugs is to commit to not using it. After this, it is necessary to have some basic and then more sophisticated strategies of avoidance. His evidence was that the respondent was able to articulate some basic strategies of avoidance, namely to remove himself from the environment. Dr Wynn Owen noted that the respondent has not yet articulated the context of his use of alcohol and illicit drugs. However, he considered this may be able to be obtained through continued therapy.[74]
[74] ts 25.
Dr Wynn Owen considered that the risk factors in respect of the respondent were difficulty with coping or stress, which led to substance abuse and then entering a building or home where, if a vulnerable woman was present, the respondent would potentially commit a sexual offence.[75] Dr Wynn Owen believed these risks could be managed by some of the proposed conditions such as substance testing, which would identify that the respondent was 'moving down a path towards a higher risk',[76] and a curfew.[77]
[75] ts 38.
[76] ts 38.
[77] ts 40.
Having had the opportunity to consider the Vidovich Report, Dr Wynn Owen reflected on a number of matters in his written reports.
First, given the respondent's auditory processing problems, it is possible that Mr Pindan's responses to questions about the 2018 offences reflected the respondent's view was that he was not a risk rather than that he was not in a high risk situation. Dr Wynn Owen explained that this confusion may have arisen because he was not specific about what he meant by high risk situations and did not explain precisely what he meant by the respondent placing himself in a high risk situation. [78]
[78] ts 32.
Second, Dr Wynn Owen reconsidered his original recommendations and did not consider it was essential that the respondent enrol in a community offender maintenance program as it was unlikely to be of assistance to him.[79] However, he noted that this might have a useful component of structure for the respondent.[80]
[79] ts 26.
[80] ts 42.
Third, Dr Wynn Owen's evidence was that there was now a better understanding as to why the respondent may not have had significant gains from the group therapy programs he had attended over his time in custody and that one‑to‑one therapy was a much more appropriate model of treatment for the respondent.[81]
[81] ts 30.
Dr Wynn Owen was asked a series of questions about the proposed accommodation. His evidence was that:[82]
Mr Pindan needs stable accommodation and he has an opportunity to have that accommodation. I'm not sure that anywhere in the community will not potentially have people – women – who are vulnerable in it. I don't see that persons who are, for example, the victims of domestic violence as being more or less vulnerable. The victim selection has been about intoxicated and vulnerable through sleeping or unconsciousness. So wherever he is there's a possibility for that. I'm not sure that – yes. I don't see it as being a particularly high-risk situation for him just because he's in that block of units. So I would deem it potentially suitable.
[82] ts 44.
Dr Wynn Owen's conclusion was that with the imposition of conditions set out in the draft order, the respondent's risk of committing a serious sexual offence 'will be very significantly reduced'.[83] This was because these conditions would enable the offence cycle to be captured at an early stage rather than allowing it to continue to a late stage, namely the commission of an offence.[84] His evidence, under cross‑examination, was that:[85]
[I]s there anything that cannot be achieved in the community on a supervision order that can be achieved in a custodial setting in terms of his treatment and in addressing his risk?---I don't think anything – no, there's nothing that cannot be done in the community that would otherwise be done in detention. Absolutely not, no.
And again I will come to the specifics in a moment, but is it the case generally that he has done all that he can in terms of treatment in a custodial environment? The true test starts now in terms of putting in place things that have been learnt and maintaining that - - -?---I believe that's right. I think it's the intellectual learning that – you know, getting the concepts is one thing, but putting them into action is another and there are many, many restrictions to doing that in a custodial setting. So I do believe that Mr Pindan needs an opportunity to do that and that won't be offered in prison.
[83] ts 44.
[84] ts 48.
[85] ts 49.
In Dr Wynn Owen's opinion, if the respondent remained in custody and his psychological counselling was reduced, there was a possibility that he would go backwards in the gains he had made and lose trust and familiarity with his current therapist.[86]
[86] ts 56.
In relation to whether the respondent was likely to comply with the conditions of any supervision order, Dr Wynn Owen expressed the view that there was a high likelihood that he would comply with the conditions.[87] Dr Wynn Owen explained, under cross‑examination, that the respondent was aware that his previous non‑compliance with the conditions of his supervision order had caused him to be returned to prison. The respondent had identified that he should have talked to a number of different people, including his treating psychologist and his CCO, and indicated that he was motivated to do so in the future to avoid being returned to prison.[88]
[87] ts 45.
[88] ts 54.
Dr Wynn Owen confirmed his view that if a supervision order were ordered it should be for a 10 year period. This was primarily because of the respondent's age and the time it would take to bring the respondent's risk down 'below that average level of risk'.[89]

David Summerton's evidence

[89] ts 58.

Mr Summerton is a counselling psychologist in the Forensic Psychological Service Team of the Department of Justice. Mr Summerton interviewed and assessed the respondent on two occasions. The respondent actively engaged in the assessment process, was candid in addressing 'his perceived shortcomings over periods of his life' and was broadly positive about his participation in recent treatment and his future.[90]
[90] Exhibit 1, p 143.
In preparing his report, Mr Summerton had regard to the treatment progress reports prepared by each of Ms Chantelle Place, Ms Vanessa Rankin and Dr Tara Yewers as well as an individual intervention progress report of Dr Sarah Barbas. Mr Summerton also spoke to the respondent's current psychologist, Ms Joanne Collyer, in the preparation of his report and considered the reports that had been previously prepared for the court in respect of the respondent.
In the month prior to the rescission of his supervision order, the respondent commenced counselling with Dr Sarah Barbas. Dr Barbas observed that the respondent lacked insight into his offending but that he had some insight into the risk associated with his potential for future offending.[91] In March 2020, the respondent changed counsellors to Ms Collyer, which was a more positive therapeutic relationship. Ms Collyer asked relatively fewer questions and allowed the respondent to speak freely regarding themes and material relevant to the respondent's offending and his adjustment back into the community. The respondent had responded well to this approach and volunteered appropriate responses and maintained focus in their sessions. He reported to her that he disliked direct and repetitive questioning.[92]
[91] Exhibit 1, p 139.
[92] Exhibit 1, p 139 - 140.
Ms Collyer expressed the view that the respondent's 'impoverished sense of self' was central to a range of the respondent's difficulties, his problem with perspective taking and led to him frequently feeling misunderstood.[93]
[93] Exhibit 1, p 140.
The respondent reported to Ms Collyer that he was aware he had inappropriately concealed his contact with females in the community from his supervision corrections community officer when he was previously placed on a supervision order and expressed a motivation to be more open in supervision meetings. Ms Collyer noted that there were a number of ongoing challenges in the management of the respondent under a supervision order including that the supervision meetings were time limited and were required to address specific issues. This did not suit the respondent's communication style. Ms Collyer considered that a long‑term aim was to assist the respondent forge a balance between attaining mature independence versus an appropriate response to supervision and his identified supports.[94]
[94] Exhibit 1, p 141.
In his interviews with Mr Summerton, the respondent initially focused on the contraventions of his supervision order. He asserted that he had no intention of sexually assaulting the woman who was found in his residence.[95] The respondent also discussed his previous offences as well as his future plans and goals.[96]
[95] Exhibit 1, p 143.
[96] Exhibit 1, p 143 – 145.
Mr Summerton's view was that the respondent was quite open in addressing a range of factors that were relevant to his offending and instability in his life at various points. In his opinion, there were a number of interacting threads that underpinned the respondent's offending including exposure to violence and sexual aggression as a child, difficulty in initiating and maintaining appropriate intimate relationships with females, his use of alcohol to circumvent his awkwardness and fears of rejection in approaching women, and his problems in understanding cues and perspectives when interacting with women.[97]
[97] Exhibit 1, p 145 – 146.
Mr Summerton expressed the view that there was evidence that the respondent had shifted to a more positive engagement in intervention more recently but that despite this, he was still inclined to present himself in a positive light.[98] The respondent told Mr Summerton that he intends to be more open in his interactions with his treating psychologist and supervision team and appeared mindful of the consequences if he did not do so.
[98] Exhibit 1, p 146 – 147.
Mr Summerton concluded:[99]
There have been some shifts in the area of negative emotionality and cooperation with supervision although these and the remaining factors will require testing in the community. Ms Collyer outlined that she will attempt to focus on relationship issues as appropriate as well as facilitating appropriate communication and cooperation in his interactions with his SCCO and the Sex Offender Management Squad. This will occur through input with Mr Pindan but also by assisting others to understand and how best to engage with him.
In the event that Mr Pindan is released to a high risk serious offender restriction order supervision order, Ms Collyer will undertake weekly counselling over an extended period as he adjusts back to the community setting. Alternatively if his high risk serious offender restriction order continuing detention order is not rescinded, intervention would likely be reduced and potentially suspended until the lead up to his next review. Mr Pindan has participated in considerable intervention to date resulting in relatively moderate change. Addressing the identified outstanding treatment targets in a custodial setting is unlikely to lead to further consequential change.
[99] Exhibit 1, p 147.
Mr Summerton prepared an addendum to his report following Mr Summerton's review of the Vidovich Report.[100] Mr Summerton expressed the opinion that the Vidovich Report did not substantially alter his recommendations but offered 'a broader framework for what might be achievable'.[101] Mr Summerton concluded that individual counselling was the most appropriate form of treatment and will play a role in assisting the respondent to respond to his supervision obligations in a community setting.[102]
[100] Exhibit 2, p 79 - 80.
[101] Exhibit 2, p 79.
[102] Exhibit 2, p 80.
In his oral evidence, Mr Summerton agreed that since 2018, the respondent's level of engagement in both counselling and participation in the group program had increased.[103] In respect of the second change identified by Dr Wynn Owen, Mr Summerton's evidence was that the respondent had previously discussed his broader offending and his most recent offence and that he was forthcoming on a range of issues.[104] Mr Summerton emphasised that some of these changes had occurred prior to the 2018 continuing detention order.[105]
[103] ts 65.
[104] ts 65.
[105] ts 66.
Mr Summerton's evidence was that it would be necessary for the respondent to continue with individual counselling for some time to address his underlying issues, such as his capacity for relationships and broader regulation of his behaviour.[106] Mr Summerton noted that:[107]
When there isn't [an] established relationship he's more likely to adopt a defensive position than he is when he has an established working relationship with someone, whether it be a supervision person or his counsellor.
[106] ts 68.
[107] ts 69.
Mr Summerton explained that, on the assumption the next review would not be for two years if the court confirmed the continuing detention order, the utility of continuing the respondent's counselling would be assessed. In this regard, his evidence was that the respondent had addressed a lot of 'what is addressable at this stage' and that he did not think anything substantial was to be gained from continued intervention while the respondent remained in a custodial setting.[108]
[108] ts 71.
Under cross-examination, Mr Summerton's evidence was that:[109]
Is it a situation, Mr Summerton, where, in essence, Mr Pindan has done all that he can in terms of treatment intervention within a custodial setting, and essentially it's now time for treatment options in the community to be explored?---That would be my view, yes. Purely in terms of response to intervention. Obviously risk issues are a broader context.
[109] ts 75.
He went on to state that:[110]
And I just go back to that question I asked you earlier. Mr Pindan, as I hear your evidence, is at a situation where within a custodial setting he has achieved everything, essentially, that he could. The next step, in effect, is treatment in the community, subject to restriction; is that right?---I think that would be the most – in terms of his progress in counselling, that would be the most beneficial outcome.

Developments in the respondent's circumstances since the making of the continuing detention order including participation in rehabilitation programs - s 7(3)(e) and s 7(3)(f)

[110] ts 78.

As set out above, the evidence of Dr Wynn Owen was that there had been two significant developments: first, improved engagement with his therapist, Ms Collyer, and second, the respondent's preparedness to discuss the 2007 index offences which he had not been prepared to do previously. Mr Summerton agreed that the first of these was a significant development in the respondent's circumstances. In respect of the second matter, Mr Summerton's evidence was that the respondent was forthcoming in discussing his offences and had been prior to his release on a supervision order in 2018.

Participation in programs

Since his detention in December 2018, the respondent has participated in an Intensive Sex Offender Treatment Program (ISOTP) which he completed in August 2020. He has also been engaged in fortnightly counselling sessions initially with Dr Barbas and then with Ms Collyer.
The ISOTP completion report noted that:[111]
Mr Pindan was assessed as having a below average range of intellectual functioning. This was considered a responsivity issue during the program. He was observed to struggle to comprehend some of the more abstract elements of program content. In addition, his willingness and motivation to engage in treatment in previous reports, indicated ambivalence towards therapy especially in a custodial setting.
[111] Exhibit 1, p 128.
The program completion report concluded that the respondent met the program objectives, made some treatment gains and gained some understanding of the factors that underlie his offending.[112]

Response and attitude to treatment

[112] Exhibit 1, p 134.

The respondent's response and attitude to treatment is summarised in the Dr Summerton's report and was the subject of Mr Summerton's oral evidence. Under cross‑examination, Mr Summerton agreed that Mr Pindan had taken up opportunities over the past four years or more for treatment and had openly engaged in the programs offered to him.[113] In his view, the ISOTP had a positive effect upon the respondent's confidence, his sense of inclusion and his capacity to talk about issues more openly.[114]
[113] ts 75 - 76.
[114] ts 76.
Mr Summerton reported that during the respondent's sessions with Ms Collyer, the respondent informed her that he was aware that he had been inappropriately concealing his contacts with women during his last period of supervision. The respondent indicated that he had considered raising the issue with his treating psychologist at the time but did not do so when he became aware she was terminating her employment with the Department of Justice. Ms Collyer reported that she intends to focus on assisting the respondent towards productive and transparent engagement with those responsible for his supervision as well as focusing on risk management issues. Specifically Ms Collyer reported that:[115]
[the respondent] had expressed motivation to be more open in supervision but that a number of ongoing challenges remained. In particular supervision meetings tended to be time-limited with specific issues to be addressed, which was ill suited to his communication style.
[115] Exhibit 1, p 141.
Mr Summerton concluded that the respondent had 'shifted to a more positive engagement in intervention over recent years'.[116]

Insight into offending and risk factors

[116] Exhibit 1, p 142.

As set out in more detail at [80] and [96], the respondent's primary risk factors are alcohol and substance use and his immaturity in developing relationships with women.
From the evidence of Dr Wynn Owen and Mr Summerton, the respondent has demonstrated that he is aware that alcohol is a personal risk factor for reoffending. He outlined to Dr Wynn Owen the strategies he intended to employ and his intention to manage the risk by abstaining from alcohol and removing himself from any environment where others are drinking.
While the respondent's plan is relatively simplistic, the respondent has demonstrated through his regular urinalysis testing that he is successfully abstaining from alcohol. Dr Wynn Owen's view was that his alcohol and substance disorder was in remission.
In his therapeutic sessions with Ms Collyer, the respondent has been forthcoming about his sexual offending and the factors that lead to it. The expert evidence is that the respondent's gains can be dealt with and continued in further counselling.

Conduct in custody

The respondent follows prison rules and instructions. He is quiet, interacts well with prison staff and prisoners and is not considered to be a management problem.[117] He is not currently employed within the prison system.
[117] Exhibit 1, p 85.

Since being returned to custody in December 2018, there has only been one incident of note, namely one charge for cannabis use.[118] Over the intervening 27 month period, the respondent has undergone a series of random substance use tests for both alcohol and various illicit substances, to which he has consistently returned negative results.[119]

Attitude to a supervision order

[118] Exhibit 1, p 85.

[119] Exhibit 1, p 83

The respondent's responses to questions from his SCCO (Ms Mandolene) about the proposed conditions of any supervision order reflected both defensiveness and a degree of annoyance or frustration. On occasions, he was unwilling to engage with her on these matters and at times spoke over her. In her oral evidence, Ms Mandolene explained that the respondent wanted to get his point across and that, after speaking over her, they returned to a discussion.[120]
[120] ts 83 - 84.
Both Dr Wynn Owen and Mr Summerton were of the opinion that the respondent did not have a negative attitude to the proposed conditions and considered he would comply with these conditions.

Propensity to commit serious offences in the future - s 7(3)(c)

A person has a propensity to commit serious offences in the future if they have an inclination, tendency or disposition to commit serious offences generally, or in a particular way, or upon a particular type of victim.[121]
[121] Director of Public Prosecutions (WA) v GTR [178].
The respondent has over several years committed a number of offences involving the sexual penetration of adult females without their consent. All of these offences were 'serious offences' as defined in s 5(1) of the HRSO Act.
Given the history of the respondent's offending, I am satisfied the respondent has the propensity to commit serious offences in the future.

Pattern of offending behaviour - s 7(3)(d)

There is clearly a pattern to the respondent's offending behaviour. The pattern consists of the respondent breaking into the houses of adult females while they are asleep and committing sexual offences against them without their consent.

Risk of committing serious offence if not subject to restriction order - s 7(3)(h)

Dr Wynn Owen's evidence was that in his opinion, the respondent continues to be at a high risk of committing further serious sexual offences if he is not subject to a continuing detention order or a supervision order. The respondent's risk factors for reoffending are alcohol and cannabis use.[122] Dr Wynn Owen explained in both his report and his oral evidence the basis for his opinion. His evidence on this issue was not challenged.
[122] Exhibit 1, p 175, 178.
I accept Dr Wynn Owen's evidence as to the risk that the respondent will commit further sexual offences if he is not subject to a continuing detention order or a supervision order. I am satisfied that the respondent remains a high risk of committing further serious offences if he is not subject to a continuing detention order or a supervision order.

Need to protect community - s 7(3)(i)

There is an obvious need to protect the community from the risk that the respondent presents.

Any other relevant matter -s 7(3)(j)

Brooke Mandolene

Ms Mandolene is a senior community corrections officer with the Community Offender Monitoring Unit and is the respondent's CCO.
In her report, Ms Mandolene noted that the respondent had been reluctant to discuss his previous offending in any depth with her. In response to her request that he reflect on how he would identify high risk situations, his responses reflected defensiveness and a degree of annoyance about being asked about these matters. On occasions, the respondent appeared to be unwilling to engage with Ms Mandolene and, at times, spoke over her.[123]
[123] Exhibit 1, p 151.
The respondent is engaged with the Uniting WA Supported Accommodation Program. As part of the program, accommodation is made available to high risk serious offenders for up to approximately 12 months, during which time the offender is assisted to secure their own private accommodation. As well as accommodation, Uniting WA provides reintegration support for a two year period.[124]
[124] Exhibit 1, p 154.
At the time of her initial report, no properties were available to the respondent. Ms Mandolene also contacted a number of hostel and lodging type accommodation service providers, but none were feasible options for the respondent at this time.[125]
[125] Exhibit 1, p 154 – 156.
Ms Mandolene, after consulting with Dr Wynn Owen and Mr Summerton, recommended a total of 51 conditions for the court's consideration in the event the respondent is considered suitable for release on a supervision order.[126] These are set out in full in Annexure A to these reasons. These conditions include the following:
[126] Exhibit 1, p 160 – 165.
(a)requiring the respondent to reside at a specified address;
(b)requiring the respondent to report to the Sex Offender Management Squad (SOMS) and to disclose certain information to the SOMS to facilitate his management in the community;
(c)requiring the respondent to be subject to electronic monitoring;
(d)a curfew requirement (aimed at providing the respondent with stability and structure in addition to limiting his potential access to high risk situations);
(e)requiring the respondent not to be in possession or to consume alcohol or attend licensed premises;
(f)requiring the respondent to have urinalysis testing;
(g)prohibiting the respondent from entering residences of females without prior approval and from being in vehicles with females without prior approval;
(h)requiring the respondent to refuse permission to females to enter his residence without prior approval;
(i)requiring the respondent not to remain in the presence of any person who he knows or reasonably ought to know to be affected by illicit substances; and
(j)requiring the respondent to identify new friendships and relationships.
If the respondent is released on a supervision order, he will continue to engage with Ms Collyer, a psychologist from the Forensic Psychological Service of the Department of Justice. He will also be subject to close monitoring and supervision by the members of the Risk Management Team including police officers from the SOMS, CCOs, management staff from the Department and psychologists from the Forensic Psychology Service. The risk management of the respondent will include regular and unscheduled home visits, liaison with community agencies and other stakeholders, as well as regular reviews of the respondent's risk factors at risk management meetings.
In the addendum to her report, Ms Mandolene addressed a number of matters that had arisen since her initial report. Critically since that time, a property had become available via Uniting WA by a private rental option. Uniting WA will hold the head lease for the property and will meet the financial commitment of the lease for a six month period, at which point, the respondent will take over the lease. The proposed residence is a ground floor unit in a complex comprising of 10 units in total.[127]
[127] Exhibit 2, p 82 – 83.
A 'desktop spatial analysis' of the property was provided to Ms Mandolene by WA Police. The WA Police identified a number of concerns, which is not unusual. These include public spaces such as parks, sporting complexes and public spaces within a 2 km radius as well as a number of licensed premises and liquor outlets. Information available to the WA Police indicates that illicit drug activity is occurring within the immediate environment of the proposed residence. The time estimated for police response, in the event there was an incident at the property, is 10 to 15 minutes dependent on tasking priorities.[128]
[128] Exhibit 2, p 83.
There are adult females living within the complex who have been the subject of domestic violence as well as some who have been victims of historical sexual assaults. The WA Police considered that this form of accommodation, namely one which contains female residents, should be viewed as 'very high risk'.[129]
[129] Exhibit 2, p 83.
Ms Mandolene notes that the respondent has previously resided in high density living arrangements. Ms Mandolene also discussed the proposed accommodation with Dr Wynn Owen. Dr Wynn Owen did not have any immediate or significant concerns about the proposed accommodation and reiterated that the respondent will be reliant on external measures to manage his behaviour. Dr Wynn Owen's opinion was that 'there is no more risk inherent in [this accommodation], compared to vulnerable women in general Mr Pindan could happen upon in his day to day movements' and reinforced to Ms Mandolene that the respondent's risk 'will not increase living in close proximity to these individuals'. Dr Wynn Owen considered that any risk could be addressed by the imposition of the proposed conditions.[130]
[130] Exhibit 2, p 85.
Under cross-examination, Ms Mandolene confirmed that the respondent had confirmed to her his commitment to comply with the proposed conditions of the supervision order, including the requirement to reside in Perth and not in the Kimberley region of Western Australia.[131] Ms Mandolene explained that the supervising officers within the community supervision team regularly explain and reinforce to offenders the meaning of the conditions. For this reason, she was confident that the proposed conditions could be explained to the respondent in sufficiently clear and plain terms.[132]

GPS monitoring in proposed accommodation

[131] ts 90 - 91.

[132] ts 92.

The applicant drew to my attention the fact that it was not possible to give an assurance that the GPS monitoring system would detect whether the respondent moved from his unit to another unit within the same complex.[133] At this stage, this had not been tested. Counsel for the applicant informed me that it would take approximately one week for this testing to occur.
[133] ts 14; Exhibit 3.

Assessment of the evidence

The evidence of Dr Wynn Owen and Mr Summerton were not the subject of any substantial challenge. Each of them explained their reasons for arriving at the opinions that they expressed. Their evidence was broadly consistent with each other. In these circumstances, I accept the evidence given by each of Dr Wynn Owen and Mr Summerton.
I also accept the evidence given by Ms Mandolene.

Should the continuing detention order be affirmed or rescinded and a supervision order made?

While counsel for the applicant acknowledged that there had been changes in the respondent's circumstances since the continuing detention order was made in December 2018, the State's position was that these changes were not sufficient to justify the release of the respondent on a supervision order.
Counsel for the respondent contended that on the evidence, I should find that the risk the respondent presents to the community can be adequately managed by releasing him on a supervision order with appropriate conditions.
On the basis of the evidence before me, I am satisfied of the following matters:
(a)the respondent has made two significant gains since the imposition of the continuing detention order in December 2018, namely improved engagement and his preparedness to discuss his prior offending;
(b)the respondent has progressed in the treatment of his criminogenic needs through his one-on-one counselling and participation in programs;
(c)the respondent has taken significant steps to gain insight into his offending and the factors he must address to avoid committing serious sexual offences in the future;
(d)there has been a material change in circumstances since the making of the continuing detention order in December 2018;
(e)the recent diagnosis of auditory processing disorder and the respondent's cognitive limitations mean that group therapy has limited therapeutic assistance for the respondent and that targeted one‑to‑one counselling is the best mode of addressing the respondent's continuing treatment needs;
(f)the respondent is strongly motivated to live a pro-social life and not to return to custody;
(g)the respondent has addressed all of the matters that can be addressed in a custodial setting and will only progress if released into the community under appropriate conditions;
(h)the respondent's risk factors for the commission of offences are stressful situations or not coping, which in turn leads to substance abuse and the possibility of the commission of further serious offences. These risk factors can be identified at an early stage by the proposed conditions.
Under s 29(1) and s 29(2) of the HRSO Act, I cannot make a supervision order unless the respondent has satisfied me on the balance of probabilities that he will substantially comply with the standard conditions of the order.
Counsel for the applicant submitted that, on the basis of the report of Ms Mandolene, I could not be satisfied he would substantially comply with the standard conditions of the order. The basis for this submission was the evidence of Ms Mandolene that the respondent, on occasions, spoke over her. While I accept Ms Mandolene's evidence that the respondent has, on occasions, spoken over her, I do not consider an inference can be drawn from this that the respondent will not comply with the standard conditions of the order. As explained by Ms Mandolene in her oral evidence, the respondent spoke over her when he was trying to get a particular point across and that they would return to a discussion. This is consistent with the comments of Ms Collyer, his therapist, on the respondent's communication style.
I am satisfied that the respondent's conduct while in custody has been respectful, compliant and constructive. This demonstrates that he has the capacity to comply with the conditions of the supervision order. On the basis of this evidence, my findings set out at [143], together with the evidence of Dr Wynn Owen, Mr Summerton and Ms Mandolene, I am satisfied on the balance of probabilities that the respondent will substantially comply with at least the standard conditions of any supervision order specified in s 30(2)(d) and s 30(2)(f) of the HRSO Act.

Proposed conditions of order

Apart from the conditions required by the HRSO Act, the proposed conditions for the supervision order address a number of matters which are designed to achieve the appropriate management of the respondent and his risk of sexual offending. The proposed conditions address the respondent's specific risk factors, such as alcohol use and his contact with women who are affected by alcohol, by prohibiting his possession or consumption of alcohol and preventing him from remaining in the presence of women affected by alcohol unless approved in advance by the CCO. The respondent will be required to undergo urinalysis or other testing for alcohol or prohibited drugs and will be subject to a curfew.
I am satisfied that the conditions proposed are such that will enable contravention of any conditions to be promptly detected. In my view, the proposed conditions reflect the minimum requirements that are necessary to manage the respondent in the community in order to adequately protect the community against the risk that he would commit a serious sexual offence.
During the hearing, I raised with counsel and each of the witnesses the complexity of the language used in the proposed conditions and whether, in light of the Vidovich Report, the respondent was able to understand them.[134] The evidence of both Mr Summerton and Ms Mandolene was that it was potentially possible to simplify the language and that it would be important for the respondent's CCO to repeat, clarify and reinforce the contents of any supervision order. Dr Wynn Owen considered it would be 'very, very difficult' for Mr Pindan to understand the conditions in this format and that giving him the written document would be of no value.[135] In his view, it would be necessary to break down the conditions and explain to the respondent what they meant.
[134] ts 47.
[135] ts 47.
Given that the terms of the supervision order require the respondent to confirm in writing that he understands the conditions that have been imposed on him, I consider it is critical that the conditions be simplified, particularly given the contents of the Vidovich Report.

Adequate protection of the community

I am required to consider under s 68(2) of the HRSO Act, as a paramount consideration, the need to ensure adequate protection of the community. Taking into account all of my findings at [143] in combination with each other, I am satisfied the community will be adequately protected if the respondent is released on a supervision order containing the conditions that are proposed. In my view, releasing the respondent on a supervision order on these conditions will reduce the risk of him committing further serious offences, specifically further serious sexual offences, to a level that is reasonably acceptable and will ensure the adequate protection of the community.

Duration of order

Dr Wynn Owen's evidence was that the appropriate duration of the supervision order was 10 years.[136] The primary reasons given by Dr Wynn Owen for this was the age of the respondent (43 years of age) and the slow progress the respondent has made in addressing his criminogenic needs.
[136] ts 43, 58.
I accept that while the respondent has made progress, there is a need for continued counselling to reinforce the insights he has gained and to support him in formulating strategies to avoid behaviour that places him at risk of reoffending. On the evidence of Dr Wynn Owen, I am satisfied that it will take some considerable time for this to occur. In these circumstances I consider the appropriate duration for the order is 10 years.

Is the proposed accommodation suitable for a supervision order?

The applicant submitted that the respondent should not be released on a supervision order on the basis that the proposed accommodation was not suitable for the respondent to be released to. This submission was not supported by the evidence of Dr Wynn Owen. Dr Wynn Owen's evidence was that the proposed residence was suitable accommodation for the respondent in the event he was released from a supervision order containing the proposed conditions.[137]
[137] ts 57 – 58.
The primary issue identified by the applicant was the presence of vulnerable women within the premises. As noted by Dr Wynn Owen, the presence of vulnerable women within the immediate vicinity of any accommodation in the Perth metropolitan area is almost inevitable.[138] The risk that the respondent may present to these vulnerable women needs to be considered in the context that the respondent will be closely monitored, the conditions place significant constraints on the contact he can have with women, and the progress the respondent has made, including his resolve to avoid alcohol and cannabis use.
[138] ts 57.
In considering whether the accommodation is suitable for the purpose of a supervision order, the question is whether, taking into account the conditions that will reasonably be included in the supervision order, the accommodation will enable adequate protection of the community from the respondent's risk of sexual reoffending.[139]
[139] Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306 [65]; Director of Public Prosecutions (WA) v Pindan [No 4] [135].
Taking into account Dr Wynn Owen's evidence and the proposed conditions of the supervision order, I am satisfied that the proposed residence is sufficiently suitable for the respondent to reside in.

Conclusion

For these reasons, I have decided pursuant to s 68(1)(b)(ii) of the HRSO Act that that the respondent's continuing detention order should be rescinded and that the respondent should be released on a supervision order with the conditions set out in Annexure B.

Pursuant to s 27(3) of the HRSO Act, this order will take effect from the date specified by the court but not earlier than 21 days after the date the order is made. I will hear from the parties as to the date on which the order should take effect.
The applicant sought a non-publication order in respect of the address of the property where the respondent will be released to under the supervision order. The application was supported by the respondent.
The basis of the application is that there is very limited accommodation for people found to be suitable for release on a supervision order under the HRSO Act. There have been instances in which the location of the residence in which a person the subject of a supervision order is living has become known publicly and has led to activity by members of the public.
In considering the application, the question is whether the order prohibiting the publication of the address is necessary to secure the proper administration of justice.[140] In this case, while I am mindful of the principle of open justice, I have no difficulty in concluding that publication of the address should be suppressed. This is to avoid a circumstance in which the efficacy of the court's order may be compromised.
[140] Prisoners Review Board v Freeman [No 2] [2010] WASCA 167 [8] - [9].
Accordingly, I order that there be no publication of the address, including the suburb of the property, at which the respondent will be residing when he is released subject to the supervision order.

ANNEXURE A

ANNEXURE B

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill
18 MARCH 2021