The State of Western Australia v PLN [No 2] - [2009] WASC 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- PLN [No 2] [2009] WASC 21

CORAM: MURRAY J

HEARD: 29 MAY, 5 JUNE, 9 JULY, 29 JULY 2008 & 23 FEBRUARY 2009

DELIVERED : 11 FEBRUARY 2009

FILE NO/S: MCS 13 of 2008

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PLN
Respondent

Catchwords:

Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention order - Sentence of imprisonment already served - Sentence comprising imprisonment for serious sexual offence and other offences - Whether prisoner a serious danger to the community - Whether evidence as a whole acceptable and cogent - Whether continuing detention order or supervision order should be made - Terms of supervision order

Legislation:

Nil

Result:

Supervision order imposed

Category: D

Representation:

Counsel:

Applicant: Mr B Fiannaca SC
Respondent: Mr M A Croucher & Ms M Barone

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: Aboriginal Legal Service (WA)

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

The State of Western Australia v Narrier [No 1] [2008] WASC 157

MURRAY J:

A history of offending

An early period

The respondent was born on 9 November 1972. He is therefore now 36 years of age and still a relatively young man. He was born into a large family in Geraldton. His early years were spent with a family of voluntary foster carers. For reasons which need not be referred to here, that situation was not helpful so far as PLN was concerned. When he was 7 or 8 his natural mother brought him to Perth where he lived with her and a partner until they moved to South Australia. They went to Whyalla where other family members already lived. It seems this move was made in about 1983 when he was aged about 10.
The respondent had appeared before the Children's Court here and he continued to offend and appeared regularly before the courts in SA from 1984 until 1989, at the end of which year it seems that, at the age of 17, he returned to Geraldton. There is nothing, I think, which is worthy of particular note for present purposes in the SA offences, which were motor vehicle offences, property damage offences, offences of dishonesty and nuisance offences. During this period, the respondent presented as a young person with no regard for the law or the rights of others. His schooling was disrupted and terminated early. He had perhaps one short period of employment and he was drinking alcohol and using cannabis.
Upon his return to WA there were a number of appearances in the Geraldton Children's Court, including for what appears to have been a quite serious assault, before the respondent was involved in his first serious sexual offending.

The 1990 offences

On 24 March 1990 the respondent, then aged 17, presented himself at the door of the complainant's house during the evening. He asked for a drink of water. She went and got the drink, but when she returned with it to the front door he was armed with what was described as a stick‑like object. He grabbed her by the throat, forced her into a bedroom and stripped her of her clothing. He penetrated her vagina with his fingers, penetrated her anus with his fingers on two occasions, and then attempted to penetrate her anus with his penis.
He then demanded money and the complainant gave him $25, which she told him was all she had. He bound and gagged her and struck her with the stick, demanding more money, but ultimately he left the house. He was interviewed by the police and admitted the offences.
He was dealt with by the President of the Children's Court on 1 May 1990 for three offences of aggravated sexual assault (being armed), an offence of attempted sexual assault, deprivation of liberty and armed robbery. He was sentenced to 4 years imprisonment for each of the sexual assaults and the attempted sexual assault, all of which were serious sexual offences within the meaning given to that term by the Dangerous Sexual Offenders Act 2006 (WA), s 3 and the Evidence Act 1906 (WA), s 106A. He was sentenced to 4 years imprisonment for the deprivation of liberty and 3 years imprisonment for the armed robbery.
All of those sentences were ordered to be served concurrently, but eligibility for parole was denied. There was some adjustment of the term to be served, caused by other matters, but ultimately the respondent served the aggregate term less remissions, and he was released on 21 January 1993. The offences had been committed, so I am told, on the day after the respondent's release from the Riverbank Detention Centre.

The 1993 offences

Having been discharged on 21 January 1993, a very short time afterwards, on 5 February 1993, the respondent offended again at Waggrakine, which is in the Geraldton region. No serious sexual offence within the meaning of the DSO Act was committed, but the offending undoubtedly had sexual overtones. There were two offences of burglary, one of child stealing and one of assault occasioning bodily harm. They were related offences. When arraigned in the District Court the respondent pleaded guilty to the burglaries, but not guilty of the child stealing and assault occasioning bodily harm. He was convicted after trial.
It appears that at about 11.30 pm on the night of 5 February 1993 the respondent drove to a house which he entered through a rear door, which was closed but unlocked. He was found inside by the male occupant of the house. He said he was looking for someone. The householder ejected him and watched him return to his car and drive away. A short distance down the road he parked, waited a while, and then returned to the house, entering by the same rear door which remained unlocked; hence the two burglary offences.
Again, he was confronted by the householder in a hallway, and again the householder demanded that he leave. The respondent produced a knife with which he threatened the householder and demanded that he produce his daughter. The respondent forced the man into a bedroom where a 12‑year‑old daughter of the house was awakened. Holding the child by the arm, the respondent left and forced her across the road to a house opposite where, in the front garden, he forced her onto her back on the ground and removed her nightgown.
The respondent punched the girl three times to the face, causing the injuries which constituted the bodily harm. The respondent lay on top of the child after attempting to undo his trousers. The girl was screaming. The neighbour into whose garden they had come, came out of his house and pulled the respondent off the child. The respondent ran to the car and drove off. He was apprehended by the police shortly afterwards. He was noticeably affected by alcohol.
He was sentenced in the District Court by Whelan DCJ on 17 June 1993 to an aggregate term of 5 years imprisonment - 1 year for the first burglary, 2 years cumulative for the second burglary, 2 years cumulative for the child stealing and 2 years concurrent for the assault occasioning bodily harm. No order of eligibility for parole was made and his Honour recommended that the respondent receive counselling for alcohol abuse while serving his sentence.
Again there was some adjustment to the term to be served, caused by a sentence for an aggravated prison offence (attempting to escape) and minor loss of remissions. The respondent was ultimately discharged from the sentences and released on 3 February 1997.
It should be said that to this point a previous psychiatric assessment and psychological assessments supported the conclusion that the respondent suffered from an antisocial personality disorder, the result of his dysfunctional childhood, limited education and chronic alcohol and substance abuse. Little hope was held that he would not continue to offend in future.

The 1998 offences

Having been released in February 1997, little more was heard of the respondent during that year. There were some traffic offences for which he appeared in the Midland Court of Petty Sessions. But a further serious sexual offence was committed on the night of 16 and 17 January 1998. I referred to this matter in my judgment concerning the jurisdictional question raised by the respondent: The State of Western Australia v Narrier [No 1] [2008] WASC 157.
There were four offences committed at Bassendean on this night, for which the respondent was indicted in the District Court. There were two groups of offences; an aggravated burglary and related aggravated sexual assault of the female occupant of the house, committed before midnight on 16 January 1998 and, in the early hours of the morning of 17 January 1998, an offence of aggravated burglary on another dwelling house, together with an assault occasioning bodily harm committed upon the female occupant of that house.
The facts of these offences are conveniently taken from the remarks made by Blaxell DCJ in passing sentence (exhibit A32):
These offences all occurred on the one night and the relevant facts are as follows: at about 11 pm on 16 January 1998 you went to the complainant's home in Bassendean and I accept, as stated in your video record of interview, that your initial intention was to steal money. However, when you walked beside the house and looked inside a window, you saw the complainant, who was a 30‑year‑old woman, sitting alone in her lounge room.
I infer from the facts that you then formed an intention to sexually assault the complainant. You remained outside the back door until the complainant went to open the rear door to let her dog out and when she did this she found you standing there with the flyscreen door open. You then grabbed the complainant by the throat with your left hand. You pushed her back into the house holding her mouth closed with your other hand.
You pushed her into the lounge room and while doing that you threatened to kill the complainant if she did not keep quiet. You then pushed her onto a sofa where you pulled her pants down to her ankles. You then lowered your own shorts and you penetrated her vagina with your penis without her consent. After withdrawing from the complainant you went into the kitchen and waited for the complainant to come into the kitchen.
You then had a conversation with her when you apologised for what you had done and you then left. The complainant, as I have said, is 30 years of age, she was 155 centimetres in height as compared to your 178 centimetres and she was of plump build as compared to your solid build. Throughout this offence there were two young children in the house asleep in another room.
Having left that house in Bassendean you then went to another house in Bassendean and at 1.15 am on the following morning you went into the second complainant's house and again your intention was to break in and steal money. You entered through an unlocked rear door, went to the lounge room where you found the complainant asleep on the lounge. She woke up and she attempted to run past you but you took hold of her by the head and neck and you restrained her.
She then struggled free and kept running outside towards the rear door and out through the rear door. During the struggle you held onto her arm and told her not to scream. You again took her by the head and neck but she again struggled free. It was at this stage that for some reason she recognised you, not as an acquaintance but as a person she had seen around the area, and after telling you that you then fled.
Now, of course, the woman underwent a terrifying ordeal and she received soreness to her neck and also sprained her ankle in the struggle and those injuries required medical attention. She is 44 years of age, 155 centimetres in height and of medium build.
On 16 June 1998, Blaxell DCJ sentenced the respondent to four terms of imprisonment backdated to 19 January 1998. These sentences were structured so as to arrive at an aggregate term of 12 years imprisonment without eligibility for parole. In addition, his Honour ordered that at the expiration of those terms, the respondent should be detained indefinitely. Under the Sentencing Act 1995 (WA) and the sentencing regime which then applied, the indeterminate sentence would have taken effect after the respondent served at least 8 years, having regard to the remissions which were then available.
On 6 April 2000, the sentence of indefinite detention was quashed by the Court of Criminal Appeal (Pidgeon, Wallwork and Murray JJ): Narrier v The Queen [2000] WASCA 86.
On Christmas Day 1998 the respondent became involved in a riot which occurred in Casuarina Prison. The circumstances of his involvement and the part he played in the events of that day are not presently material. It is sufficient to note that he was indicted and convicted of nine offences of assaulting a public officer, three offences of wilful damage and four offences of uttering threats to kill, to injure and to harm. On 28 April 2000, the respondent was sentenced by Hammond CJDC to a cumulative aggregate term of 3 years imprisonment without parole eligibility.
In the result therefore, the respondent was required to serve a 15 year term of imprisonment dating from 19 January 1998 without parole eligibility. Under the sentencing regime then applicable, he would be required to serve two‑thirds of that period and there were in addition, some extra days of imprisonment to be served as a result of prison disciplinary offences. The respondent was discharged from the service of those sentences on 12 July 2008. I will return shortly to the circumstances in which the respondent was then released from custody.

Treatment while in prison

When, in prison, an assessment was made of his treatment needs, it was noted that the respondent was a chronic abuser of alcohol and cannabis and that he attributed the commission of the offences against the two women in 1998 to his high level of alcohol intoxication at the time. It was recommended that he participate in an intensive sex offender treatment program. Before doing so, he voluntarily entered into what is described as a reasoning and rehabilitation program, a cognitive skills course. He completed that successfully.
The respondent then undertook the Sex Offender Treatment Program over the period from 29 September 2005 to 28 April 2006. There is a report in evidence dated 29 May 2006 (exhibit A40) which reports on the outcome. It is said that he was highly motivated to address his offending behaviour and reduce the likelihood of the commission of further sexual offences. He was very open about his sexual interests and he participated fully in the program. In my view, it is clear that he completed it successfully, remembering that this is a report made over a year prior to the end of his term of imprisonment.
It was recommended that, although the respondent had made 'significant gains', he would benefit from participation in further treatment programs while in prison. Specific reference was made to a program to help him manage anger and to control substance use, and, during the final months of his sentence, it was recommended that he do a medium intensity sexual offenders treatment program 'to consolidate the information and tools he has gained from his participation in the intensive program'. Further, it was suggested that he would benefit from a vocational assessment to identify the opportunities which may exist to help him gain employment upon his release.
These recommendations were not in fact implemented. There is in evidence a report dated 22 November 2007 (exhibit A42) jointly made by a Ms Caple, a forensic psychologist (registrar) and a Ms Martin, a senior forensic consultant. It is described as a 'sex offender risk update report'. The document makes it clear that the respondent had not undertaken any of the further treatment programs which had been recommended. The program entitled, 'Managing Anger and Substance Use' was said to have been 'removed from the program schedule' and had not been replaced. The respondent had not been able to undertake the further sex offender treatment program, 'due to the lack of an available program currently'. It seems that neither of these programs or their equivalent became available to the respondent prior to the end of his term of imprisonment.

An unfortunate incident

In September 2006 the respondent was convicted of a minor prison offence, dealt with by the superintendent of the Albany Regional Prison where the respondent was serving his sentence. He was charged with an act of misconduct by exposing his penis to a clinical nurse. Apparently the respondent called out to the nurse as she made her rounds, and when she looked at him he had his penis exposed. He did this twice within a short space of time. He pleaded guilty and was sentenced to 7 days loss of gratuities suspended for 2 months, dependent on good behaviour.
A more important consequence under the administrative processes of the prison was that he was placed on a sexual predator list of offenders, a list of prisoners considered to pose a risk to female prison staff. But there is no further information before me to indicate whether this was any more than a stupid, mischievous act by the respondent, designed to embarrass the nurse.
The report by Ms Caple, endorsed by Ms Martin, dated 22 November 2007 (exhibit A42) concludes, 'Although PLN has participated in sexual offender treatment, his sexually inappropriate behaviour has continued in a custodial environment'. In my view, one would need more than the isolated incident in September 2006, in the context of a long term of imprisonment during which the respondent did everything appropriate which was asked of him, to support a conclusion expressed in those terms.

The course of these proceedings

On 13 May 2008, and therefore only shortly before the respondent was due to be discharged from service of the current sentences, the State DPP applied for orders under s 14 and s 17(1) of the DSO Act. When the matter first came on for hearing, a jurisdictional question was raised by the respondent. I have referred to this already. I heard the argument and gave my decision on 5 June 2008. The point had been raised at the preliminary hearing required by s 14 of the DSO Act.
I then expressed my conclusion that there were reasonable grounds for believing that the court might, under s 7(1) of the DSO Act, find that the offender is a serious danger to the community. I ordered the two psychiatric reports to be provided in accordance with the provisions of s 14(2). I ordered that the matter be listed for a final hearing and because of the inevitability that the respondent would be discharged from the service of the sentences well before that could come on for hearing, I agreed that the respondent might be released from custody upon entering into an undertaking given to the court in terms which I settled.
That undertaking was entered into on 29 July 2008. The respondent has abided by its terms. The undertaking made provision for a nominated place of residence in Albany and for a curfew in strict terms (later modified by the Community Corrections Officer (CCO) to enable the respondent to take up an offer of suitable employment). He was to submit to electronic monitoring of his compliance with the curfew. The respondent was prohibited from the possession or use of alcohol, a drug other than as prescribed, or any other deleterious substance, and he was to submit to urinalysis and breath testing as required to monitor compliance with that condition. He was to report to the CCO and police. He was not to commit any criminal offence. He was required to cooperate with the nominated psychiatrists and otherwise in relation to the gathering of evidence, he was to engage with the Community Drug Service (Palmerston) operating in the area, for substance abuse counselling, and he was to undertaken psychological counselling.

The final hearing of the matter was set originally for 29 and 30 July 2008, but on 29 July, I granted an application made by the respondent to adjourn the hearing of the application for a six month period, essentially to enable the respondent to have the opportunity to undertake the treatment proposed and to demonstrate his capacity to pursue his rehabilitation in the community. In the meantime, the respondent would remain at liberty pursuant to the conditions of the undertaking.
In the event, the final hearing of the application by the DPP was on 2 and 3 February 2009 approximately six months later. By then there was little controversy in relation to the question whether, under s 17, the court ought to find that the respondent is a serious danger to the community within the meaning of s 7 of the Act. Nor, if the court so found, was it contended by the DPP that the respondent should be detained in custody indefinitely under s 17(1)(a). The question at issue was, upon the basis that the court would make a supervision order under s 17(1)(b) and s 18 of the Act, what should be the appropriate terms and conditions of such an order.

A serious danger to the community

Despite the agreement of the parties that it would be open to the court to find that the respondent is a serious danger to the community within the meaning of the Act, it is a threshold finding which the court must make and, in my view, the court may not do so unless satisfied by acceptable and cogent evidence and to a high degree of probability: s 7(2), 'that there is an unacceptable risk that, if [the respondent] were not subject to a continuing detention order or a supervision order, [the respondent] would commit a serious sexual offence': s 7(1).
Important evidence bearing upon that question was that given orally and in the reports made by the nominated consultant psychiatrists, Dr Wojnarowska and Dr Tanney (the reports being exhibits A44 and A45, respectively). In the circumstances, I need do no more than summarise the views expressed.
Both psychiatrists were of the view that as a result of childhood events, dysfunctional family relationships and inadequate guidance and nurturing as a child, the respondent has developed an antisocial personality disorder. He suffers no clinical psychiatric disorder. Apart from his tendency to react violently to any perceived difficulty, his tendency to offend is exacerbated by habitual abuse of alcohol and other deleterious substances.
Dr Wojnarowska placed the respondent at high risk to offend violently, whether sexually or not. His likely victim of a violent sexual offence would be a woman who is a stranger, and such an offence would not generally be premeditated. After committing the offence, it would be likely that the respondent would be genuinely remorseful. He is not markedly psychopathic or afflicted with sexual deviance. There was no suggestion of paedophilia.
Dr Tanney's conclusion, as expressed in his evidence and in his very thorough report, was not markedly different. He concluded in his report:
From static and historical data, PLN is at significant, even high, likelihood of serious sexual re‑offending against adult women with accompanying violence within the next five years or sooner, should no further intervention have taken place. The re‑offending is likely to be opportunistic and unpredictable at the actual event, although a highly probable risk scenario can be stated.
Dr Tanney thought that identifiable dynamic risk elements which may exacerbate the likelihood of further serious sexual offence were substance abuse and long unmet emotional needs. He thought these risk elements were capable of change and that some progress had been made in the course of completed treatment programs, but further progress and consolidation was required. Writing on 10 July 2008, Dr Tanney said that discernible progress to diminish the risk was being made and the effort should be continued.
I have mentioned the terms of the undertaking to which the respondent has been subject for the last six months or so. The evidence establishes that much has been achieved. The respondent resides in Albany. He had at one time some difficulty with his accommodation, but with the assistance of local community corrections officers he has throughout had relatively stable residential accommodation. He has strictly abided by the curfew conditions, which have been amended by the local community corrections officer in accordance with the undertaking to permit the respondent to undertake his obligations of employment.
It is reported that the respondent was assisted to engage local employment agencies. He attended various programs and courses designed to expand his employment options. In November 2008, the respondent was able to obtain employment by a company operating an abattoir and sheep meat export business in Albany. The employer is a private company, the principals of which know the respondent's history and his present efforts to pursue his rehabilitation. They are to be congratulated on making the offer of full-time employment which the respondent appears, perhaps for the first time in his life, to find fulfilling and valuable in preventing further offending.
The respondent's case has been handled expertly by the Albany Community Justice Service of the Department of Corrective Services. They also are to be congratulated for their effort and careful attention to the case which, it seems to me, has borne fruit. The officer principally involved in handling the respondent's case is a Ms Dunwoodie, a senior community corrections officer.
The respondent is fortunate in that he enjoys a stable and fulfilling personal relationship with his partner, with whom he lives. Apart from abiding by the curfew, the respondent is reported to have made determined efforts to deal with his tendency to substance, and particularly alcohol, abuse. It was arranged that he should have access to the assistance of the Albany office of Palmerston Association. Exhibit A75 is a report provided that office which refers to the counselling provided and the respondent's regular use of the services of the agency. The report concludes:
PLN and his partner are both trying their utmost to create a new and more productive lifestyle for themselves in Albany. The invitation for PLN to make telephone contact is one of, for the time being, an ongoing one. I have been impressed with the progress made by PLN during the time he has been my client and will continue to provide support in the future should it be requested.
The monitoring process of urinalysis shows that the respondent is abstaining from alcohol and illicit substances.
The respondent has undertaken psychological treatment arranged by his CCO with a senior consultant psychologist, a Ms Wager, of the Adult Community Psychological Services of the Department of Corrective Services. She is based in Albany. He has attended upon her regularly since 13 August 2008. Ms Wager provided the court with a report dated 8 January 2009: exhibit 76. It is an optimistic document expressing satisfaction with the progress made by the respondent in the short period of time which has been available. Good progress has been made, but Ms Wager thinks there is much work yet to be done and, reading between the lines of the report, it seems to me that the respondent would benefit from continued contact with Ms Wager on a regular basis.
She makes the valuable point that, to a significant extent, the progress made by the respondent may be attributed to the fact that the undertaking and the application to him of the provisions of the DSO Act provide coercive restraints upon his behaviour. In other words, they are external constraints and, if rehabilitation is to be achieved, they will need to be replaced by internal mechanisms preventing the respondent from relapsing into the commission of serious sexual offences. Ms Wager puts it this way:
In order for [the respondent] to avoid future offending he needs to be able to respond to internal constraints which are developed through mature and moral thinking - factors which develop with time, varied living experiences, exposure to well‑adjusted peers/role models and cognitive capacity. While [the respondent] has the cognitive capacity to develop them, his relevant experiences have to date been very limited.
Ms Wager recommends that the monitoring and supervision of the respondent and the quality of his de facto relationship by a CCO should continue, but the control should be gradually eased to allow the respondent to assume responsibility for his own behaviour. Regular psychological counselling should continue. To my mind, the recommendations make basic good sense. I agree with them.
There is a further report by Ms Dunwoodie dated 13 January 2009 (exhibit A77) to which I have had regard. It provides the history of the progress made by the respondent following his discharge from prison. As I have said, the evidence before me establishes very clearly that, to a significant extent, the respondent could not have achieved the progress he has made without the very considerable assistance and guidance provided by the Albany Community Service.
Both Dr Wojnarowska and Dr Tanney were provided with information about the experiment undertaken to achieve some progress by the respondent in the community under the terms of the undertaking into which he entered in July 2008. They gave evidence before me and both spoke of the desirability of continuing the process of working with the respondent in the community towards the goal of achieving a satisfactory degree of rehabilitation. Both spoke of the fact that encouraging progress had been made in a relatively short period. The respondent was at the beginning rather than towards the end of the work he must do to achieve his rehabilitation.
Neither considered it to be appropriate to modify in any way their opinion expressed in terms of the Act, that the respondent constitutes a serious danger to the community in that there remains an unacceptable risk that, if not subject to appropriate controls in the community, the respondent might commit a serious sexual offence. Again, I accept their evidence and the opinions they express. I shall return to specific aspects of their evidence when discussing the terms of the supervision order which I shall make, in relation to which both were concerned to ensure that the regime applied to the respondent in future should be expressed in terms sufficiently flexible to allow adjustment as required, to relax the firmness of the controls as appeared appropriate to the CCO, or to tighten the restraints if a particular difficulty should be encountered.
At this stage, I simply record my finding that the respondent remains a serious danger to the community within the meaning of s 7 of the DSO Act. I am persuaded to that view by the evidence and report of Dr Wojnarowska and Dr Tanney and by the other psychological reports made available to me. The offending history shows that the respondent has a propensity to commit serious sexual offences and there is a predictable pattern to his offending behaviour. It occurs at times of serious stress, particularly when any inhibition not to offend is lowered by anger and intoxication by alcohol and/or other illicit substances. It is unlikely that the victim would be a friend or a person who is a member of the respondent's family, nor is it likely that the victim would be a child. Rather, the victim is most likely to be an adult female unknown to the respondent, a person encountered by the respondent in a vulnerable state when the stressors which may lead to the commission of an offence are doing their work upon him.
However, the respondent's participation thus far in a program of rehabilitation offered to him gives cause for hope that the positive effect already evident may continue and be enhanced, until ultimately it may be said with some confidence that the respondent's rehabilitation has been achieved and that the risk of further offending has been substantially reduced.
I remind myself that under s 17(2), in deciding whether the appropriate course is to make an order for the continuing detention of the respondent or to make a supervision order for the respondent's rehabilitation, care and treatment in the community, the paramount consideration is the need to ensure adequate protection of the community. I note in that regard that the legislation does not, and could not, require the court to frame an order which guarantees that the respondent will not again offend, and I am satisfied that a supervision order may be framed in terms which will secure adequate protection of the community from the risk that the respondent may commit a serious sexual offence.

The terms of a supervision order

There are, of course, standard terms set out in s 18(1). Section 18(2) provides:
(2)The supervision order may contain any other terms that the court thinks appropriate -
(a)to ensure adequate protection of the community; or
(b)for the rehabilitation or care or treatment of the person subject to the order.
It is clear from the way in which the Act is expressed that the terms of a supervision order may be expressed as conditions subject to which the order is made and the offender's liberty in the community is secured. Such conditions may always be amended upon the application of the offender or, with the DPP's consent, by the CEO of the Department of Corrective Services: s 19 and 20. Subject to such changes, a supervision order has effect in accordance with its terms: s 26.

The duration of the order

As I read the Act, the stipulation of the period during which the order is to operate would be a term of the order, but it would not be a condition upon which the order is made. If that is right, it would follow that the court may not fix the term for which the supervision order is to operate on the basis that an application might be made later, by either party, to extend or reduce that term if it was seen to be necessary or desirable that such a change should be made.
In her recent report, exhibit A77, Ms Dunwoodie sets out the broad framework of conditions which she suggests would be desirable. She does not express any view about the term of the order. Neither does the psychologist, Ms Wager. The psychiatrists, Dr Wojnarowska and Dr Tanney, were taken to the question of the duration of the order. I will summarise my understanding of their evidence.
Dr Wojnarowska accepted the need for flexibility and agreed that it was desirable that those having the control of the respondent's performance should be able to relax those controls and the degree of supervision, and modify the requirements of the order as the need arose. She thought that the order should operate in two phases, the first being one in which external constraints might be applied to the respondent with some strictness, albeit with the capacity to gradually ease those constraints as the respondent demonstrated a capacity to assume responsibility for his own behaviour, ie, as he was perceived to be developing appropriate internal constraints. She thought that the process of developing internal constraints might take four to five years.
Thereafter, she thought, there might be a need for further monitoring of the respondent's behaviour and a capacity for him to have access to guidance and advice as required during a further period, also of about four to five years in duration, during which, ideally at least, there would be no need for any coercive external controls to be imposed upon the respondent. She agreed, however, that it was desirable that the respondent be handled in such a way as to allow for as much normality in his daily life as could be managed. At all stages, the restrictions imposed upon him should be as few as reasonably possible and should operate no more intrusively than was reasonably seen to be necessary. The more normal his life with his partner in the community could be, the better the outcome which might be expected.
She agreed that the respondent was doing well, in part because he is 'well‑meaning and motivated' to achieve his rehabilitation. To my mind, that is an indication that the respondent is already developing those internal controls and an understanding of the mechanisms which he will need to apply to prevent further offending.
Dr Wojnarowska agreed that there was validity in the proposition which I raised with her, that it would be important to avoid maintaining coercive external controls beyond the point where they were judged to be useful, because too much unnecessary control might engender a feeling that those handling the respondent did not trust him to behave properly and to apply what he had learned, and such resentment might ultimately harm his prospects of rehabilitation. Dr Wojnarowska made it clear that her estimates leading to a recommended period of eight to ten years for the operation of a supervision order were based solely on clinical experience as to how long it might take to develop the internal restraints and controls which were necessary, and for what period thereafter the patient might find it useful to have access to advice.
Dr Tanney, I think it fair to say, adopted much the same view as Dr Wojnarowska in relation to the exercise of controls and guidance over the respondent. He said the likely prognosis was that gradual progress might be anticipated and proper guidance would achieve moderate gains in the respondent's rehabilitation. He expressed the view, with which I would agree, that Ms Wager's work was admirable and should continue. PLN was responding well, only in part because of the existence of the external restraints. Now is the time to relax the intensity of those restraints and to allow him to assume more responsibility for his behaviour. The respondent was evidently acquiring the techniques required to control his violence, substance abuse and tendency towards sexual offending. To relax the restraints now would enable a judgment to be made as to whether he was acquiring a 'more mature personality'.
Dr Tanney saw the supervision order operating in three phases, each of a minimum of about a year. Although it might be wise, he thought, to impose a supervision order for up to five years, he said he would not support a longer period than five years. In the first period, Dr Tanney would think it appropriate to maintain what he described as intensive supervision and instruction under firm restraints. The second period would be one in which those restraints were progressively relaxed. The degree and the nature of the relaxation would be a matter of professional judgment on the part of those handling the case. The last period would be one where the constraints were minimal, a monitoring period with occasional consultation to ensure that the respondent was handling himself properly and was applying, particularly at times of stress, the lessons which by then it would be expected he would have learned to control the harmful manifestations of his personality. He agreed that the more normal the lifestyle which the respondent was able to adopt, the more likely it would be that the operation of the order would have a favourable outcome.
For my part, I would observe that if, by the operation of the supervision order, the rehabilitation of the respondent can be achieved, in that outcome lies the best prospect of the adequate protection of the community from further serious sexual offending by the respondent. I think the Act itself, in the statement of its objects in s 4 and in the other sections to which I have referred, is predicated upon that view.
As to this case and the duration of the order, in my view it should not be imposed for a period longer than, it is suggested in evidence and accepted by the court, is required for its effective, active operation. It should not be imposed merely to allow the person the subject of the order a capacity to have access to advice and counselling arranged by an official agency if the person in question so desires. On this issue, I prefer the evidence of Dr Tanney, to the extent that there is disagreement between him and Dr Wojnarowska. I would make the order for a period of five years.

A discussion of specific terms of the order

I turn then to the other terms and conditions to be incorporated into the order. I attach a copy of the order which I will make. Some of the conditions are mandated by s 18(1) of the DSO Act. Those conditions, and others suggested by the parties, were uncontentious. Other proposed conditions were the subject of disagreement. I shall refer to the respective contentions in what follows.
I would only add that, as will be evident from the way in which the conditions are drawn, I have accepted the evidence that it is desirable in this case to frame the conditions flexibly. My intention is that whether or not particular processes are adopted and the extent to which conditions should be implemented should be left to the judgment of those handling the case. The CCO to whom the respondent's case is allocated ought to be able, upon advice where required, to make decisions appropriate to the circumstances.
The conditions (1) ‑ (7) of the order are effectively the conditions mandated by s 18(1)(a) ‑ (e) of the DSO Act.
As to the curfew and its monitoring, conditions (8) and (9), as I have noted generally, this has been an important condition of the undertaking to which the respondent has been subject, the terms of the curfew being modified as authorised by Ms Dunwoodie to accommodate the respondent's employment obligations. The term of a curfew condition have now become a matter of controversy between the parties. The applicant proposes a curfew which is to remain until 31 January 2010. Given that the respondent has been subject to a curfew since the end of July 2008, the result would be the application to him of a continuous curfew for a period of 18 months.
The base hours, subject to variation with the approval of a community corrections officer (CCO), would be from 7.30 pm to 6.30 am. From 1 February 2010 until the expiration of the order, it was proposed that such a curfew could be reimposed by a CCO where the risk of the respondent reoffending in a sexual manner may have increased. In that event, the curfew could be reimposed for any period of up to four weeks and of no more than a total of 16 weeks in any calendar year.
In her report of 13 January 2009, Ms Dunwoodie makes no such specific recommendation. She merely observes:
It is acknowledged that a curfew requirement may still be deemed appropriate.
Ms Dunwoodie's report added that electronic monitoring was not considered necessary. The possibility of imposing such a condition was, however, advanced by the applicant. There was no evidence to support such a requirement, and I will not impose it.
As to the curfew itself, Dr Wojnarowska and Dr Tanney gave similar evidence. Dr Wojnarowska thought that a capacity to impose a curfew should be maintained when thought necessary, and for as long as was required, in the opinion of a CCO, the intention being that such a requirement could be imposed in times of particular stress or difficulty which might elevate the risk of further sexual offending. Dr Tanney's view was expressed in similar terms. He said the order should be framed in terms which were 'discretionary and flexible'. It is evident, I think, that the psychiatrists were having regard to the proposition that a curfew might be justified as an aid to management, particularly in times of stress or difficulty for the respondent when there might reasonably be judged to be an elevated risk of the commission of a sexual offence.
The curfew would then have the effect of confining the respondent to his place of residence and removing from him the capacity to give in to frustration or anger by the commission of a sexual offence. In other words, a curfew might be judiciously applied as an aid to the management of the respondent where the particular need for such a control was considered to have arisen. But care should be taken in that regard, according to the evidence of the psychiatrists, because, as Ms Dunwoodie observed in her report, the imposition of a curfew might hinder the respondent's reintegration into the community.
I agree and I have therefore limited the capacity to impose a curfew to the period expiring on 31 January 2010, but even in that period I would not require a curfew to be generally maintained. I would leave it to be imposed by a CCO as a management tool for a period of no longer than four weeks on any occasion when there was perceived to be a high risk, for whatever reason, that the respondent might commit a sexual offence. In that event, subject to the need to leave his home for reasons of necessity or otherwise with the approval of a CCO, the respondent might be confined to his home during such hours as may be specified by the CCO.
Another matter of controversy between the parties was the applicant's proposal that a CCO, or others approved by the CCO, should be permitted to interview associates or potential associates of the respondent and to disclose to them his offending history, including information which would otherwise be confidential. It will be observed that I have included no such condition, although I have agreed with condition (12) in relation to the exchange of information between those involved in the management of the respondent pursuant to the supervision order.
Otherwise, I think it inappropriate to provide further disclosure powers which might inhibit the respondent's successful reintegration into the community and which would not otherwise be required by law. It is by no means clear to me that the respondent's sexual offending, not being specifically against children, would include any reportable offence under the Community Protection (Offender Reporting) Act 2004 (WA). In that event, reporting obligations under that Act would not arise and I note that even if they were to do so, care is taken by the Act to preserve privacy by strictly limiting the reporting obligation. Again, under the Sentence Administration Act 2003 (WA), the capacity to share information about prisoners is strictly limited. In my opinion, there would be no warrant in this case for imposing disclosure requirements or capacities which would appear to go well beyond what would otherwise be permissible.
It will be recalled that the respondent has commonly given as a partial explanation for the commission of offences by him that he was intoxicated by alcohol, on occasions in combination with other illicit drugs. The respondent has undergone and is continuing to undergo treatment in relation to these matters. He has been required to use the services of the agency Palmerston, and he has done so successfully. The evidence before me generally accepted that part of the resocialisation of the respondent might involve the social consumption of moderate amounts of alcohol. The psychiatric witnesses thought this should be permitted, as the respondent demonstrated that he was able to control his consumption.
Again I agree, and I think it is appropriate that the supervision order move from a requirement of total abstinence to a capacity for the moderate use of alcohol. Hence the way in which I have framed condition (14) which, in any event, is to be applicable only for a further year, by which time, on the evidence, it is expected that the respondent will be able to impose his own controls on the consumption of alcohol. Until then, as can be seen from the condition, his capacity to consume alcohol should be as guided and approved by a CCO.
Finally, there is, of course, a standard condition provided for in the DSO Act, s 18(1)(f), that the supervision order is to require its subject not to commit a sexual offence as defined in the Evidence Act. Condition 17 is that condition. The applicant proposed that the order should go further and require the respondent not to commit any other criminal offence of a violent nature punishable by imprisonment. The respondent queried whether that was a condition which would appropriately be within the purview of such an order.
In my view, the query is sound. It should be remembered, I think, that conditions beyond those required to be imposed by s 18(1) should be those designed to ensure the adequate protection of the community from serious sexual offending or be for the rehabilitation of the offender: s 18(2). Under ss 21 ‑ 23 of the DSO Act, the fact of contravention, or the likelihood of contravention, of a supervision order exposes the person who is the subject of the order to amendment of the order by the court or, if there is an unacceptable risk that the person would commit a serious sexual offence, he may then be ordered to be detained in custody for an indefinite period. Having regard to those matters, it seems to me that it is important that the focus of a supervision order upon the danger of sexual offending, the protection of the community from sexual offending and the rehabilitation of a sexual offender should be strictly maintained. I have therefore declined to impose the further condition sought by the applicant.
Otherwise, in my opinion, the conditions of the order speak for themselves and I make the order in terms of the document annexed hereto.

__________________________________________________________
SUPERVISION ORDER MADE BY
THE HON JUSTICE MURRAY ON 11 FEBRUARY 2009
__________________________________________________________
THIS ORDER is made for a period of 5 years from the date hereof, pursuant to s 17(1)(b) of the Dangerous Sexual Offenders Act2006, on the following conditions:
PLN must:

(1)Report to a community corrections officer ('CCO') at Albany Community Justice Services, 184 Stirling Terrace, Albany, WA, within 72 hours of the making of this order, and formally advise the CCO of his current name and address.
(2)Thereafter report to, and receive visits from, a CCO at times and places as directed by the CCO, such arrangements to have regard to PLN's employment commitments.
(3)Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
(4)Notify a CCO of every change of his name, place of residence, or place of employment at least 2 days before the change is due to happen.
(5)Reside only at accommodation approved in advance by a CCO.
(6)Reside continuously at the address approved by a CCO unless authorised in advance to be absent by the CCO.
(7)Not leave, or stay out of, the State of Western Australia without permission of a CCO.
(8)Until 31 January 2010, during any period of not longer than 4 weeks when, in the opinion of a CCO, there is a high risk that PLN may commit a sexual offence, be subject to a curfew, such that he is to remain at and not to leave his approved residential address during such hours as are specified by a CCO, which may be varied from time to time. PLN may leave the address during such hours only:
i.to obtain urgent medical or dental treatment for himself;
ii.for the purpose of averting or minimising a serious risk of death or injury to himself or another person;
iii.to obey an order issued under a written law (such as a summons) requiring his presence elsewhere;
iv.for the purpose of attending his place of employment;
v.for a purpose, and for a duration, approved in advance by a CCO; or
vi.on the order of a CCO.

(9)When subject to a curfew under this order:
i.present himself for inspection at the approved address by, or speak on the telephone to, a CCO or police officer monitoring his compliance with the curfew;
ii.ensure that all those people present in the residence who may answer the telephone or the door are aware of his obligations; and
iii.request that they assist him to comply with his obligations by alerting him to such attempts to contact him by persons monitoring his compliance with the curfew.

(10)Consult and engage with a psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by the CCO.
(11)Comply with the requirements of all programs designed to address his offending behaviour, as directed by a CCO.
(12)Agree to the exchange of information between persons and agencies involved in the implementation of this order, including otherwise confidential information.
(13)Report to police as directed by the Officer in Charge of the Sex Offender Management Squad or his/her delegate.
(14)Until 31 January 2010, not use or be under the influence of alcohol, except as approved by a CCO.
(15)Not possess or use any illicit substance or any prohibited drug, other than a drug prescribed for him.
(16)Submit to urinalysis or breath‑testing upon request by police or a CCO in order to monitor his compliance with conditions (14) and (15).
(17)Not commit a sexual offence, as defined in the Evidence Act 1906 section 36A.
(18)Have no contact, directly or indirectly, with the victim of any sexual offence committed by him, or any other offence committed by him on 5 February 1993 and 17 January 1998, or members of the immediate families of all such victims, unless such contact is conducted strictly pursuant to agreements made through, or approved by, the Victim‑Offender Mediation Unit.