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

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   STATE DIRECTOR OF PUBLIC PROSECUTION -v- RAO [2019] WASC 93
CORAM:   QUINLAN CJ
HEARD:   30 OCTOBER 2018, 1 FEBRUARY 2019 & 18 MARCH 2019
DELIVERED          :   25 MARCH 2019
FILE NO/S:   DSO 1 of 2018
BETWEEN:   STATE DIRECTOR OF PUBLIC PROSECUTION
Applicant
AND
JAMES WILLIAM RAO
Respondent

Catchwords:

Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for Division 2 order - Whether supervision order should be made or detention order should be continued - Whether conditions of supervision order ensure adequate protection of the community - Whether unacceptable risk to the community that person would commit a serious sexual offence.

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA)
Police Service Administration Act 1990 (Qld)

Result:

Detained in custody for an indefinite term for control, care or treatment

Category: B

Representation:

Counsel:

Applicant	:	Mr M T Trowell QC
Respondent	:	Mr S D Freitag SC

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid WA

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

Attorney-General's Reference (No 1 of 2004) (2005) 152 A Crim R 146
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Maxwell v Murphy (1957) 96 CLR 261
The State of Western Australia v West [2013] WASC 14

QUINLAN CJ:

Introduction

This is an application for a Division 2 order under the Dangerous Sexual Offenders Act 2006 (WA) (the Act).
The issues that I must decide are:
(a)whether Mr Rao is a serious danger to the community, within the meaning of the Act; and
(b)if so, whether he should be detained in custody for an indefinite term for control or treatment (continuing detention order) or, alternatively, be released into the community subject to conditions that the Court considers appropriate (supervision order).
Mr Rao does not contest the first issue. He accepts, based upon the available material, that he is a serious danger to the community, within the meaning of the Act. Notwithstanding that concession, the Act requires that I make a positive finding in that regard based upon the evidence before me.
Nevertheless, Mr Rao's acceptance that the Act should apply to him did mean that the principal area of dispute before me was whether Mr Rao should be the subject of a continuing detention order or a supervision order.

Procedural History

A preliminary hearing was conducted by Jenkins J on 19 April 2018. Pursuant to s 14(1) of the Act, her Honour was satisfied that there were reasonable grounds for believing that the Court might find that Mr Rao was a serious danger to the community and fixed a date for the hearing of this application. Her Honour also ordered, pursuant to s 14(2)(b) that Mr Rao be detained in custody until the conclusion of this application.
At the time that her Honour made that order, Mr Rao was in custody awaiting sentence on a number of charges, including one charge of indecent assault before the District Court and four charges before the Magistrates Court. The latter charges included a charge of supplying tobacco to a child, two charges of failing to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) and one charge that, being a child sex offender, he was near a school contrary to s 557K(6)(a) of the Criminal Code (WA). All of the outstanding charges related to one victim.[1]
[1] Mr Rao was also charged with an offence of sexual penetration without consent in relation to this victim. That charge was discontinued by the State on 16 April 2018 (Exhibit 1, page 500).
On 20 April 2018, that is, the day after the hearing before Jenkins J, Mr Rao was sentenced to a term of 10 months immediate imprisonment in relation to the charge of indecent assault. That sentence was backdated to 27 January 2018.
Mr Rao was also sentenced on that day, by the Magistrates Court, to 2 months' imprisonment for each of the charges under the Community Protection (Offender Reporting) Act 2004 and the charge of being a child sex offender near a school (and fined $200 in relation to the supply of tobacco). The terms of imprisonment imposed by the learned Magistrate were all ordered to be served concurrently with the term of 10 months imprisonment imposed by the District Court.
Mr Rao completed those sentences on 28 November 2018.
This application was listed for hearing before me on 30 October 2018. On that date the State tendered documentary evidence and called viva voce evidence from four witnesses Dr Peter Wynn Owen, Dr Gosia Wojnarowska, Ms Julie Hasson and Mr Ian Farrall.
At the completion of the State's evidence on that day, Mr Rao sought an adjournment of the hearing to enable him to make enquiries as to potential accommodation in the event that I were to make a supervision order. That was because of evidence from Dr Wynn Owen and Dr Wojnarowska as to the unsuitability of the accommodation originally proposed by Mr Rao.
The State did not oppose an adjournment on this basis, although it made clear that it opposed the making of a supervision order in any event (i.e. regardless of the accommodation that might be available). Accordingly, one possible consequence of an adjournment, which was explained to Mr Rao, was that in the event that I ultimately made a continuing detention order, it would begin to run from the date of the order (and would not be the subject of a review for 12 months). There is no power under the Act to 'backdate' a continuing detention order under Division 2. This meant that, if a continuing detention order were ultimately made, the period of the adjournment would be additional time in custody, of which no account could be taken.
As I have discussed below, one of the unsatisfactory features of this consequence is that, as I was informed, and as in fact has transpired, during the period of the adjournment Mr Rao did not have access to any of the treatment he so clearly needs to address his risk of reoffending.
According to the evidence, until a person is made the subject of a Division 2 order, they are not eligible for the services of the Department's Forensic Psychology Service. At the same time, as was the evidence in this case, the lack of such service may be a central consideration in relation to whether the person is detained in custody or released under supervision. As I have discussed below, this Catch-22 is neither in the interests of Mr Rao nor, as is the paramount consideration under the Act, the interests of the community.
Notwithstanding these potential consequences, Mr Rao wished to adjourn the matter to make further enquiries in relation to accommodation options. I granted the adjournment, to 1 February 2019, for that purpose.
On 1 February 2019 Mr Rao sought a further, short, adjournment to 18 March 2019 for the same reason. I again allowed the adjournment, although noted that, in the interests of all concerned, I expected the matter be completed on that day.
On 18 March 2019 the State led further evidence in relation to accommodation options and recalled Dr Wynn Owen. Mr Rao also tendered, without objection, a statement dated 12 February 2019 in the form of a letter to the Court.
Before turning to the evidence, I will briefly set out the legal principles.

Legal Principles

The two issues identified above arise from s 7 and s 17 of the Act. Section 17 provides:
17. Division 2 orders
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
(2)Subject to subsection (3), in deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
(3)A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.
(4)The onus of proof as to the matter described in subsection (3) is on the offender.
The phrase a 'serious danger to the community' is given content by s 7 of the Act, which provides:
7. Serious danger to community
(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied -
(a) by acceptable and cogent evidence; and
(b) to a high degree of probability.
(3) In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b) any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d) whether or not there is any pattern of offending behaviour on the part of the person; and
(e) any efforts by the person to address the cause or causes of the person’s offending behaviour, including whether the person has participated in any rehabilitation program; and
(f) whether or not the person’s participation in any rehabilitation program has had a positive effect on the person; and
(g) the person’s antecedents and criminal record; and
(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i) the need to protect members of the community from that risk; and
(j) any other relevant matter.
(4) In considering whether it is satisfied as required in subsection (1), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.
The principles to be applied in relation to s 7 of the Act are usefully set out in the oft-cited summary by Corboy J in The State of Western Australia v West:[2]
[2] The State of Western Australia v West [2013] WASC 14 [52] (Corboy J).
There was no issue between the parties regarding the principles relevant to the DPP's application.  In summary:
(a)Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).
(b)The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability.  The expression 'high degree of probability' is incapable of further definition.  Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).
(c)In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d)It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence:  DPP v GTR [21].
(e)The term 'unacceptable risk' is not defined in the DSO Act.  However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made:  Italiano v The State of Western Australia[2009] WASCA 116 [4] and [46] (Buss JA).
(f)In a passage that expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63] ‑ [64]:
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists.  That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
(g)The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community.  The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h)The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence:  DPP v GTR [34].
(i)The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].
(j)The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Decke.
A 'serious sexual offence' under the Act (s 3) has the meaning given to that phrase in s 106A of the Evidence Act 1906 (WA). That means an offence under the Criminal Code mentioned in Part B of Schedule 7 of the Evidence Act for which the maximum penalty that may be imposed is 7 years, or more than 7 years. Some of Mr Rao's offending falls within this definition and some of it (including his most recent offence) does not. Other offences may nevertheless be relevant in assessing the risk that, unless subject to an order under the Act, a respondent will commit a serious sexual offence. For example, other offences may be connected to behaviour which has the real potential to lead to serious sexual offending or may be relevant to whether there is a discernible pattern of offending behaviour.[3]
[3] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10] (Hall J).
If I find that Mr Rao is a serious danger to the community, I must make an order under either s 17(1)(a) or s 17(1)(b).
The paramount consideration in determining whether to make an order under s 17(1)(a) or (b) is the need to ensure adequate protection of the community (s 17(2)).
In this regard, I respectfully adopt the following summary of the law in Director of Public Prosecutions (WA) v DAL [No 2] per Beech J:[4]
In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. The Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the Act applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[4] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (footnotes omitted) (Beech J).
In the context of the choice between a continuing detention order and a supervision order, an additional requirement arises by reason of s 17(3) and (4) of the Act.[5] That requirement is that, before I can make a supervision order (as opposed to a continuing detention order), I must be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of a supervision order. The onus of proof in that regard is on the offender.
[5] Section 17(3) and (4) were inserted into the Act by the Dangerous Sexual Offenders Legislation Amendment Act 2017, which commenced operation on 29 March 2018 (i.e. after the application was filed by prior to the Division 1 order made by Jenkins J). In his written Outline of Submissions, Mr Rao accepted that 17(3) and (4) applied to this application. That concession was, in my view, correct (see Maxwell v Murphy (1957) 96 CLR 261 at 267 (Dixon CJ); Attorney-General's Reference (No 1 of 2004) (2005) 152 A Crim R 146).

The standard conditions are those that the court must impose as part of a supervision order. They are set out in s 18(1) of the Act and require that the person:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the person’s current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the person’s name, place of residence, or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order; and
(g)be subject to electronic monitoring under section 19A.

The Interrelationship of Section 7 and Section 17

It is important to recognise that the finding that a person is a 'serious danger to the community' is an assessment made as to the person's risk of committing a serious sexual offence if they are not subject to a continuing detention order or a supervision order. That is, a finding that a person is a serious danger to the community is to be made upon the assumption that the person is not subject to a continuing detention order or supervision order.
There is therefore an essential interrelationship between s 7 and s 17 of the Act. As the assessment of whether a person is a 'serious danger to the community' is made upon the assumption that there is no detention or supervision of the offender, it follows, as a matter of the purpose of the Act as a whole, that an order made under s 17 (either detention or supervision) is intended to remove or ameliorate the risk that the person will commit a serious sexual offence, so that there is no longer an 'unacceptable risk' of that occurring. In other words, the purpose of the Act as a whole is that, as a consequence of the detention or supervision order, the person will no longer be 'a serious danger to the community'.

The Evidence

The evidence before me consists of both documentary material and oral evidence.
In relation to the former, the State tendered a book of materials for the Division 2 hearing (Exhibit 1).
The book of materials sets out Mr Rao's criminal record, both in Western Australia and Queensland, together with information relating to his previous offending, including assessment reports prepared by various professionals.[6]
[6] Including Dr Sam Febbo, psychiatrist, dated 5 November 2011 (Exhibit 1, pages 420-428); Ms Claire Lynn, psychologist, dated 7 November 2011 (Exhibit 1, pages 429-434); Ms Olivia Johnson, Community Corrections Officer, dated 14 November 2011 (Exhibit 1, pages 435-437)
The book also contains the following reports prepared for the purposes of this application:
(a)Proposed DSO management plan of Julie Hasson dated 2 July 2018;
(b)Psychiatric report of Dr Gosia Wojnarowska dated 4 July 2018;
(c)Psychiatric report of Dr Peter Wynn Owen dated 10 July 2018;
(d)Community supervision assessment of Ian Farrall dated 17 July 2018;
(e)Neuropsychological report of Dr Mandy Vidovich dated 8 October 2018; and
(f)Updated community supervision assessment of Ian Farrall dated 11 October 2018.
At the resumed hearing on 18 March 2019, the following documents were also tendered:
(a)a Statement of Mr Rao, in the form of a letter to the Court dated 12 February 2019 (Exhibit 2);
(b)a Desktop Spatial Survey of alternative accommodation (Exhibit 3); and
(c)an email containing responses of Dr Wynn Owen to further questions from the Director of Public Prosecutions (Exhibit 4).
As noted above, the State called oral evidence from Dr Wynn Owen, Dr Wojnarowska, Ms Hasson and Mr Farrall. Ms Hasson, however, was not cross-examined and so her evidence was confined to her written report (in Exhibit 1). Mr Ian Farrall's oral evidence (on 30 October 2018) was confined to the process for obtaining access to accommodation. That evidence was largely overtaken by subsequent events.
I have addressed the evidence in the context of the factors under s 7 of the Act, to which I now turn.

Factors under s 7(3) of the Act

Mr Rao's antecedents and criminal record – s 7(3)(g)

Mr Rao was born in Bridgetown, Western Australia on 18 October 1951. He is 67 years of age.
Mr Rao's parents (his mother and step-father, who raised him from a very young age) are still alive and in their eighties. They remain supportive of him. Mr Rao has two brothers and a sister. It appears that he only has contact with his younger brother, who, while supportive of Mr Rao, is somewhat distrustful of him.[7]
[7] See Exhibit 1, page 725 (paragraph 16.3).
Mr Rao's childhood and adolescence were relatively unremarkable. While he struggled academically, there is no history of abuse or neglect in his childhood.
Mr Rao worked as a plasterer after leaving school and, following a four‑year marriage in his early twenties, moved to Queensland where he became a truck driver. He drove trucks for approximately 30 years until 2005, when he was involved in a serious motor vehicle accident.
Mr Rao's past sexual offending may be grouped as follows:
(a)an early offence in 1977;
(b)a series of offences committed between 2008 to 2010, for which he was sentenced on 17 November 2011;
(c)the most recent offences committed in early 2017.
Mr Rao's criminal record also includes a number of non‑sexual offences (including traffic offences). Many of these offences are not, in my view, relevant to this application. One of those offences, however, a 2007 conviction in Queensland of assuming the designation or description of a police officer, contrary to the Police Service Administration Act 1990 (Qld), bears some relationship with his sexual offending. The circumstance of this offence, which involved Mr Rao presenting himself as a police officer to young persons, is consistent with the kind of grooming behaviour evident in his later offending.[8]
[8] The importance of this was identified by Dr Wojnarowska in her report at [8.3]-[8.5] (Exhibit 1, page 716).
Turning then to Mr Rao's sexual offending.

The 1977 offence

Mr Rao was convicted in 1977 of unlawful carnal knowledge contrary to s 187 of the Criminal Code. There is limited information available in relation to the circumstances of this offence. Mr Rao was 26 years of age and the complainant 15 years of age. He went to a private home where the victim was babysitting and had intercourse with her in the bedroom at the rear of the house. Mr Rao was sentenced to a $200 good behaviour bond for 12 months.[9]

Offences from 2008 to 2010

[9] Exhibit 1, pages 146-147.

Following the conviction in 1977, there is no evidence of further offending by Mr Rao of a sexual nature for another 30 years.
That changed in 2008, when Mr Rao began a car wash business in Edgewater. From 2008 until 2011, Mr Rao committed a series of offences against ten individual victims, all of whom were girls between the ages of 14 and 17, save for one who was over 18 years of age.
Mr Rao was indicted on 37 counts; most of which were charges of indecent dealing, although there were a number of counts of sexual penetration. On 5 September 2011, Mr Rao pleaded guilty to 30 of the 37 counts on the indictment and was tried on the remaining counts. Following trial he was convicted of a further three counts and acquitted on four counts.
In the result he was convicted of 26 counts of indecent dealing with a child,[10] one count of attempted indecent dealing with a child, three counts of sexual penetration of a child, two counts of indecently recording a child and one count of indecent assault. The final count, indecent assault by kissing the victim on the lips, related to his adult victim.
[10] In relation to the victims that were aged between 13 years and 16 years, the respondent was convicted of an offence against s 321(4) of the Criminal Code (20 counts), with the aggravating feature that the victim was under his care, supervision or authority (s 321(8)(b)). As the maximum penalty for these offences was 10 years, they were each 'serious sexual offences' within the meaning of the Act. In relation to the child victims that were of, or over, the age of 16 years, the respondent was convicted of an offence against s 322(4) of the Criminal Code, of indecently dealing with a child under his care, supervision or authority (six counts). As the maximum penalty for these offences was 5 years, they were not 'serious sexual offences' within the meaning of the Act.
All of these offences arose out of, and were related to, Mr Rao's conduct of the car wash business, where he had employed all of the victims as 'chamois girls'. There was a similar pattern of grooming in relation to each of the victims. As the sentencing judge remarked:[11]
Your victims were enticed to work for you as chamois girls. You actively sought them out, including one who you actually stopped as she was jogging past the car wash and to whom you offered a job. …
As their employer you made it clear that they could earn more if they could earn your trust by allowing you to touch them indecently, and often in a sexual manner. When you did this, usually without any warning, you would then reward the behaviour by giving your victim more money, thereby encouraging them to allow you to do what you wanted.
[11] Exhibit 1, page 457.
The indecent dealing by Mr Rao consisted of kissing their necks or lips, touching or kissing their breasts, touching their vagina or inner thighs, placing their hands on his penis or (in one case) pushing his penis into the victim's face.
The most serious offences for which Mr Rao was convicted related to a 15 year old victim in relation to whom he was convicted of 14 charges. Three of those charges consisted of sexual penetration of the victim by penetrating her vagina with his fingers or penis. The sentencing judge's remarks reveal the seriousness of those offences:[12]
At the time she was 15 years old and, as I've said, this included three sexual penetrations involving one digital penetration and two penile vaginal penetrations which occurred on two separate occasions in two separate places on mattresses in those places.
The first occasion was on the roof of the car wash. You enticed her to go on to the roof and having got her on the roof you then pulled the ladder up so nobody could come up. The second offence involving sexual penetration against her occurred in the office of the car wash when you'd locked the door and closed the blind. The sexual penetrations happened on different days.
As discussed with counsel, there has and is an issue about the extent of the coercion and force used by you to commit your offences against [this victim] and, in particular, the sexual penetration. Having heard her evidence at trial, I find that you did not use any physical force against her but you made it plain and unequivocal by your conduct that she had no choice but to submit to you.
In my view, and I find accordingly, she did not, in the legal sense, freely and voluntarily consent to intercourse with you. By your actions and your demeanour, including what you said and how you said it, she was given, in her mind, no choice but to submit to your demands which, in respect of each count, constituted a gross sexual abuse of a child for your own personal gratification.
She was 15 and you were 58. She was under your care and supervision as your employee. There was a gross disparity in age and maturity which, together with all of the relevant circumstances, in particular, her personal circumstances at the time, point up the total power imbalance between you.
[12] Exhibit 1, pages 455-456.
In relation to all of these offences, Mr Rao was sentenced to a total effective sentence of 6 years and 6 months' imprisonment, commencing from 28 July 2011. Mr Rao was made eligible for parole and was released to parole by the Prisoners Review Board on 27 January 2016. Prior to his release, Mr Rao completed a Medium Sex Offender Treatment program. Following his release on parole, Mr Rao completed a Sex Offender Maintenance Program.[13]
[13] See Exhibit 1, pages 673 - 677.

2017 offences

As noted above, on 20 April 2018 Mr Rao was sentenced to a term of 10 months immediate imprisonment in relation to a charge of indecent assault and to concurrent terms in relation to charges under the Community Protection (Offender Reporting) Act 2004 (WA) and for being a child sex offender near a school contrary to s 557K(6)(a). The circumstances of those offences, which related to a single victim, were as follows.
Following Mr Rao's release on parole, he began working at a dog kennel as a volunteer, later becoming assistant kennel manager receiving a small honorarium.
In December 2016, the victim commenced volunteer work at the centre. She was 16 years of age. During the time that she was at the centre, Mr Rao and the victim developed a friendship which resulted in regular contact between the two of them outside of work.
The victim, who was under the care of the Department of Child Protection, ceased working at the centre in late January 2017 as a consequence of the department becoming aware that Mr Rao was employed at the centre and was a reportable sex offender.
The sentencing judge described the circumstances of the offences as follows:
In about late March 2017, you picked up [the victim] from her school and then drove to the car park of another school or a TAFE. While you were each standing outside the car, you hugged her and started touching her breasts through her clothing without her consent.
She told you to stop as it hurt. You immediately stopped touching her breasts but became angry with [the victim] and told her you hated her excuses. You then drove her home.
When you were later interviewed by police, you told them that you hardly knew [the victim] and that you were never alone with her at work. At the time when [the victim] was aged 16, you were aged 65.
The sentencing judge continued:
At the time of your offending, you were a reportable sex offender and as such, you were subject to conditions that you not have contact with girls under the age of 18 or go near schools. You knew [the victim] was aged 16.
Despite that, you maintained and encouraged ongoing regular and frequent contact with her, even after she was taken away from the animal shelter by the Department of Child Protection. You picked her up from school knowing that was in breach of the reportable offender conditions.
[The victim] was extremely vulnerable. She was vulnerable because of her young age and the disparity in ages between you and her. She was also vulnerable because of being under the care of the Department of Child Protection. She had a troubled background, including being sexually abused. You knew about that background because she told you.
Yet despite that extreme vulnerability, and I am satisfied because of it, you took advantage of her. You only came into contact with her because of your position as a manager at the animal shelter.
Although you were not in a position of trust towards [the victim] when the offending occurred, you took advantage of your position with the animal shelter to initially befriend [the victim] and use it as a basis to form and later maintain a friendship with her.
I accept it is likely [the victim] would have looked up to you because of your age and your position of responsibility at the animal shelter, a place she enjoyed performing volunteer work at. There was a power imbalance between the two of you and this is confirmed by the victim impact statement I’ve recently received from her.
Around the time of this offence, there is also evidence, in the book of materials, that Mr Rao befriended and expressed an intimate interest in another young woman (aged 17 and then 18 years of age) who volunteered at the dog kennel. While no offences were committed in relation to this particular young woman, that conduct does provide some further evidence of Mr Rao's interest in adolescent females.[14]
[14] Dr Wynn Owen referred to Mr Rao's connections with this young woman as reflecting a parallel with his offending pattern (see ts 45).
As I have noted, Mr Rao would otherwise have been due for release in relation to these sentences on 28 November 2018.

Psychiatric Reports and extent to which Mr Rao cooperated with psychiatric examinations – s 7(3)(a)

Psychiatric reports were prepared under s 37 of the Act by Dr Wynn Owen and Dr Wojnarowska. Both doctors gave oral evidence before me. It is evident from the reports and the evidence of both psychiatrists, in my view, that Mr Rao cooperated with each of them when he was examined.

Report in evidence of Dr Peter Wynn Owen

Dr Wynn Owen is a forensic consultant psychiatrist. He conducted three interviews with Mr Rao totalling approximately seven hours. Dr Wynn Owen' described the characteristics of Mr Rao's offending as including grooming, targeting vulnerable victims and predatory behaviour.
In making a risk assessment, Dr Wynn Owen applied the Static-99 tool and a Structured Clinical Guide, the risk sexual violence protocol (RSVP). While Dr Wynn Owen stated Mr Rao's Static‑99 score indicated a below average risk range, he noted that the reduction of risk due to age, applied by the Static‑99 cohort of offenders, should not apply to Mr Rao given that he reoffended just over a year after release at age 63. Dr Wynn Owen, therefore, considered that Mr Rao's risk was likely to be above average or greater than a 10% likelihood that he will commit another sexual offence within five years if released unsupervised.
Dr Wynn Owen's review utilising the RSVP Structured Clinical Guide was to similar effect. He noted the risk factor of chronicity of sexual violence being present. Dr Wynn Owen considered there was some evidence of escalation of sexual violence and some evidence of the risk factor of physical coercion.
Dr Wynn Owen identified a major risk factor of problems with self‑awareness. He noted that Mr Rao had been unable to identify his needs or understand his behaviour for much of his life and that this had worsened following the motor vehicle accident in 2005. Dr Wynn Owen also identified risk factors in relation to problems with intimate and non‑intimate relationships, with planning and with supervision. He also referred to the fact that Mr Rao expressed no victim empathy, and adopted a victim stance himself.
In relation to the risks associated with community supervision, Dr Wynn Owen noted, in relation to Mr Rao's most recent offence, that he did not tell the parole supervisory team about his behaviours, which were clearly part of his offending cycle. Indeed, he was deceptive and lied about those behaviours.
In relation to imminence, Dr Wynn Owen noted that, if released without supervision, his pattern of volunteering, gaining trust and grooming victims would, unchecked, likely lead to an offence within months to a year.
Dr Wynn Owen's overall conclusion in his report was that, if released unsupervised, Mr Rao represented a high risk of serious sexual offending. He recommended comprehensive neuropsychological assessment and one on one counselling to address areas of unmet need, including sexual deviance, development of interpersonal skills and development of self‑awareness and self‑management.
In his oral evidence, Dr Wynn Owen stressed Mr Rao's outstanding treatment needs and the fact that his most recent offending had occurred while under community supervision. In that respect he said:[15]
[15] ts 41-42.
I'm not sure that a supervision order would do anything more than slightly vary that risk, but leave him with a wide range of outstanding treatment needs at a time when I think the focus really should be on the treatment and whether or not Mr Rao can benefit, particularly from individual treatment.

Mr Rao's treatment needs, Dr Wynn Owen, said, may best be met in a highly structured environment. In that regard, Dr Wynn Owen emphasised that Mr Rao had never undergone an intensive sex offender treatment program or individual counselling, and that some people 'just don't benefit from the group setting'.[16] Given that Mr Rao's previous apparent positive gains from group treatment were not sustained, Dr Wynn Owen stated that he would need to see more demonstrated gains before he could be comfortable that Mr Rao's risk was starting to be mitigated.[17]
[16] ts 45.
[17] ts 58.
In his evidence on 30 October 2018, Dr Wynn Owen gave evidence as to his deep concerns as to the proposed accommodation were Mr Rao released into the community. This was because the person with whom it was proposed that Mr Rao would live had the potential to reinforce Mr Rao's belief that he was a victim, rather than a perpetrator.
It is clear that these particular concerns were alleviated by the alternative option for accommodation, identified on 18 March 2019 (discussed in Exhibit 3).
Nevertheless, Dr Wynn Owen remained of the view Mr Rao's risk was the same as when he was last released. He said:[18]
[18] ts 120.
I think his risk is the same as it was when he was previously released. When previously released, whilst he did not have a DSO supervision order, he was in a community… maintenance programme. He did have the attention of SOMS. He did have a Community Corrections officer and there were already a number of constraints. Yes, the constraints here are greater, but he's basically being released into exactly the same level of risk… There is no reduction in risk.
When asked by me if he would regard there to be any reduction in risk by reason of more stringent requirements in the proposed supervision order, than that which he was under when he was released on the last occasion, Dr Wynn Owen said:
There probably is an element of risk reduction, but the type of offending not being opportunistic that a police team can react to immediately is more something that builds up. Mr Rao has demonstrated that he will not disclose his thinking and his actions to the supervisory team. There's nothing to suggest that that has changed either. My concern, therefore, would be there would be considerable reliance on an unreliable self‑report.
Accordingly, while Dr Wynn Owen suggested there might be some element risk reduction by the use, for example, of GPS and exclusion zones, ultimately his overall assessment of Mr Rao's risk was unchanged from his previous release. Before supporting a change in that risk assessment, Dr Wynn Owen said he would need to see some progress in response to treatment.
I found Dr Wynn Owen's evidence clear, thoughtful and balanced. I accept that evidence.

Report and Evidence of Dr Gosia Wojnarowska

Dr Wojnarowska is also a forensic consultant psychiatrist. In addition to the written material, Dr Wojnarowska interviewed Mr Rao on two occasions for a total duration of six hours.
Dr Wojnarowska's report dated 4 July 2018 I found comprehensive and of considerable assistance. Dr Wojnarowska observations in relation to aspects of Mr Rao's sexual offending included:
(a)all of Mr Rao's victims are pubescent females between 14 and 17 years of age (except for the victim who was 18). The victims were all known to Mr Rao and shared a similar background: low socio-economic status, not attending school, possibly poor parental supervision and in need of money;
(b)the offences were all premeditated and pre-planned, with Dr Wojnarowska noting that once he identified a young female who was willing to work for him, Mr Rao's grooming process started immediately;
(c)Dr Wojnarowska considered that physical violence towards his victims was not part of Mr Rao's offending;
(d)Dr Wojnarowska concluded, in relation to the characteristics of Mr Rao's sexual offending, that the factors related to his last offence appeared to be related to his need to be needed, appreciated and important in someone's life; and
(e)Dr Wojnarowska concluded, however, that Mr Rao's sexual interest in pubescent females, combined with a degree of disinhibition (possibly related to executive dysfunction following his head injury), had been the most important factor; a 'driving force' to his offending.
In relation to Mr Rao's response to treatment, Dr Wojnarowska noted that while he had completed a Medium Sex Offender Treatment program in 2013, and showed some positive gains, the facilitators expressed concerns at his continued denial of a sexual interest in adolescent females.
In relation to risk assessment, the tools utilised by Dr Wojnarowska were divided into actuarial instruments and structured clinical guidelines. The actuarial instruments used were the Static-99 and the Hare Psychopathy Check-list Revised (PCL-R). As with Dr Wynn Owen, the Structured Clinical Guide used was RSVP.
The actuarial results did not indicate a high risk of future offending. The Static-99 score, for example, placed Mr Rao in a low category of future reoffending and the PCL-R score was in the low range, meaning that Mr Rao had not reached the threshold required to confirm a diagnosis of psychopathy.
The application of the Structured Clinical Guide, however, presented a less optimistic picture. In that regard, Dr Wojnarowska identified that Mr Rao possessed the risk factor of chronicity of sexual violence and had problems with self‑awareness as his major risk factor. She noted that Mr Rao had not accepted that adolescent females were his primary sexual interest and that he still has limited insight into the processes that place him at risk of sexual violence.
Dr Wojnarowska observed that since his motor vehicle accident, Mr Rao had not demonstrated an ability to form and to sustain long‑term meaningful intimate relationships with others. She outlined a number of outstanding treatment needs which related to his understanding of his risk factors and the rudimentary nature of his offence prevention plan.
Dr Wojnarowska did refer to certain areas of Mr Rao's functioning that may facilitate community management. These include the relative predictability of his behaviour, the lack of strong anti‑social attitudes and his now limited finances. In that regard his previous strong financial position had facilitated his offending. His management in the community, however, would be made more difficult due to his propensity to manipulation and to distort the truth.
In Dr Wojnarowska's assessment, Mr Rao's offending scenario, were he to offend again, is likely to be a repeat of similar offending (i.e. the grooming of teenage girls). She considered escalation to a stranger victim and additional violence to be highly unlikely.
Ultimately, Dr Wojnarowska concluded in her report that Mr Rao remained a high risk of sexual offending if not subject to the Act.
In her oral evidence, Dr Wojnarowska made clear that she did not consider Mr Rao was suitable for community supervision. Indeed, her view was that Mr Rao has regressed from previous gains he might have made from earlier treatment. As Dr Wojnarowska said:[19]
[19] ts 69.
So I would say that at the time when I interviewed Mr Rao I have not noted any really progress in terms of his treatment that could justify me being confident that he could be released at this point in time.
…
So when you look at the treatment report from his medium intensity sex offender treatment program – progress – program, there is evidence of some progress in terms of Mr Rao’s understanding of his offending, acceptance, etcetera. While during the interview with him it was very obvious that there was a regression in this area, and very much as already discussed at length in this court, victim stance, blaming the victims, and very much also that stance of being either too unwell or too psychologically not prepared to discuss his position as a dangerous sex offender or the conditions under which he might have been released. So it didn’t give me any confidence that he – he could be released at that point in time.
When asked as to whether she could have confidence in Mr Rao if released under supervision, she clarified that even under a supervision order she did not have confidence in releasing him into the community.[20]
[20] ts 70.
In this context, Dr Wojnarowska noted that while Mr Rao had been on a Sex Offender Maintenance Program following his release on parole in 2016, he did not engage truthfully in that program and continued to offend.[21]
[21] ts 70.
As with Dr Wynn Owen, a matter of significant concern to Dr Wojnarowska were Mr Rao's lack of self-awareness and lack of insight.
When asked specifically whether her lack of confidence that Mr Rao could be released on supervision arose from his treatment needs or the likelihood that he would commit another sexual offence, Dr Wojnarowska confirmed that it was the prospect that Mr Rao, if released, may be likely to commit another sexual offence.[22]
[22] ts 78.

Other Assessments relating to Mr Rao – s 7(3)(b)

The other assessments relating to Mr Rao, prepared for the purposes of this application, are those of Ms Hasson, Dr Vidovich and Mr Farrall.
Before turning to those reports I note that the book of materials also contained reports previously prepared in relation to Mr Rao at the time of his sentencing in 2011, including a report from Dr Sam Febbo, consultant psychiatrist, dated 5 November 2011 and a report from Ms Claire Lynn, forensic psychologist dated 7 November 2011.
Those reports are of limited assistance in this case, given that they were made prior to Mr Rao's first sentence and, necessarily, prior to his offending while on supervised release. Indeed, in his report, Dr Febbo indicated that considerable additional information would be required before a specific decision could be made in relation to risk. The reports of Dr Febbo and Ms Lynn, nevertheless, are consistent with the more recent assessments. Dr Febbo, for example, expressed the provisional view that Mr Rao was at significant risk of reoffending and both practitioners concluded that Mr Rao had significant unmet treatment needs.
Turing to the further reports prepared for these proceedings.

Evidence of Ms Julie Hasson

Ms Hasson is a registered forensic psychologist with almost 25 years' experience. Her areas of expertise are in the assessment and treatment of violent and sexual offenders, particularly those with severe personality disorder, intellectual disability or other special needs.
Ms Hasson's report dated 2 July 2018 was based upon the review of the materials, interviews with Mr Rao and consultation with Mr Farrall, a senior community corrections officer, and Mr Rao's mother.
Ms Hasson's report describes Mr Rao's general life history and sexual history. Of particular note in that regard, Ms Hasson reported that Mr Rao was adamant that he did not have a deviant sexual interest in adolescent females and that he considered his interest in his victims to have been opportunistic.
In Ms Hasson's assessment, Mr Rao displayed a lack of appreciation, and minimisation, of his offending. For example, Ms Hasson reports that despite participating in a prison‑based programme and a community‑based maintenance programme, Mr Rao's attitude towards his offending suggests considerable regression and a return to pre-treatment attitudes. His description of his first period of offending adopted the position that his offending behaviour was illegal because he had breached his duty of care as an employer. Ms Hasson reported that he did not express any awareness of the impact his actions had had upon the victims. In Ms Hasson's assessment, Mr Rao was seemingly just as blasé in relation to his most recent offending. She suggested that his lack of insight and awareness suggested a deficit in his judgment.
Ms Hasson carried out a number of psychological tests on Mr Rao, including the Stable‑2007, a test which measures dynamic risk factors in relation to sexual offending which can change over time.
A number of issues identified by Ms Hasson as part of Stable-2007 worthy of note are:
(a)Mr Rao had a limited social support network;
(b)In relation to his capacity for relationship stability, Mr Rao presented as an individual who lacked secure adult intimate attachments;
(c)Similarly, Ms Hasson described Mr Rao's behaviour as developmentally inappropriate given the significant age difference between himself, his victims and the adolescents he forms friendships with;
(d)Ms Hasson reported that Mr Rao's offending behaviour and elements of his personality style suggested that he was indifferent to the rights and wellbeing of others, and many of his friendships and associations were utilitarian in nature;
(e)In relation to impulsivity, Ms Hasson gained the overall impression that Mr Rao was not an impulsive man although he described himself as frequently acting without thinking about the consequences of his behaviour or decisions; and
(f)In relation to his cooperation with supervision, Ms Hasson noted that the most recent offending occurred when Mr Rao was on parole with specific conditions that he had not complied with.
In her report, Ms Hasson raised the prospect that Mr Rao may have been adversely affected by injuries he sustained in a motor vehicle accident in 2005. She identified the possibility of frontal lobe damage or acquired brain injury as important in understanding his offending behaviour, particularly so given the large gap in offending, with the significant offending following his motor vehicle accident.
That possibility was addressed by Dr Vidovich.

Evidence of Dr Mandy Vidovich

Dr Vidovich is a clinical neuropsychologist. Her report of 8 October 2018 presents the results of her neuropsychological assessment of Mr Rao.
Having regard to all of the available information, Dr Vidovich considered that it was unlikely that Mr Rao suffered a significant brain injury at the time of his motor vehicle accident in 2005.
Nevertheless, Dr Vidovich did identify various neuropsychological difficulties. Her assessment revealed him to be a person of Borderline to Low Average intellect, with reduced attentional capacity and indications of executive dysfunction. The latter was characterised by reductions in planning, organisation, reasoning, concept formation, inhibition and mental flexibility.
Ultimately, Dr Vidocich considered that these findings were more reflective of gradual insidious changes, rather than being associated with a prior brain injury.

Report of Mr Ian Farrall

Mr Farrall is a Senior Community Corrections Officer.
His reports were largely concerned with the conditions and strategies that would be appropriate if Mr Rao were released on a supervision order, rather than an assessment of risk itself. In that regard, Mr Farrall's report set out the variety of conditions that would be appropriate, such as residence and reporting requirements, GPS monitoring and a curfew requirement.
As noted above, Mr Ian Farrall's oral evidence was confined to the issue of the process for obtaining access to accommodation.

Information indicating whether or not Mr Rao has a propensity to commit serious sexual offences in the future – s 7(3)(c)

This has largely been addressed in the context of the above discussion, particular of Dr Wynn Owen and Dr Wojnarowska's evidence.
That evidence, which I accept, clearly demonstrates a propensity on the part of Mr Rao to commit serious sexual offences.
As Dr Wynn Owen stated in his evidence, the factors surrounding the 'carwash offending' in particular indicate the risk of future offending. Of the 33 offences for which Mr Rao was convicted on that occasion, 23 of them were 'serious sexual offences' as defined by the Act. The features that gave rise to that characterisation were the age of the victims and the position of supervision or trust that Mr Rao held.
A number of those offences, while not involving physical coercion, were also characterised by actions and demeanour which made it clear to the victim that she had no free choice. Mr Rao's most recent offence (indecent assault) while not a 'serious sexual offence' as defined by the Act, was nevertheless an offence involving the absence of consent by the victim.

Whether or not there is a pattern of offending behaviour – s 7(3)(d)

In Mr Rao's case there is a clear pattern of offending behaviour. That pattern involves adolescent females, encountered by Mr Rao in a work or social situation, who are groomed for a period of time before offending. As Dr Wojnarowska observed, Mr Rao has also demonstrated an ability to engage in this pattern of offending against multiple victims at the same time.[23]
[23] Exhibit 1, 733.
Dr Wynn Owen's evidence was to the same effect. Of particular relevance in relation to the pattern of offending behaviour, consistent with Mr Rao's lack of insight and self-awareness, was Dr Wynn Owen's concern that Mr Rao 'does not see patterns in his offending'.[24]
[24] ts 57.

Any efforts made by Mr Rao to address the causes of his offending behaviour – s 7(3)(e)

Mr Rao has made efforts to address the causes of his offending behaviour. As noted above, he participated in the Medium Sex Offender Treatment Program in 2013 and the Sex Offender Maintenance Program following his release on parole in 2016.
Participation in those programs, however, particularly the latter, has been marred by the fact that Mr Rao's most recent offending occurred during the currency of that program.
Nevertheless, I am satisfied that Mr Rao has a strong desire to participate in treatment, and in particular in individual counselling. Dr Wojnarowska was certainly of that view.[25] Most recently, in his statement to the court dated 12 February 2019, Mr Rao stated that he was 'prepared to do any course or spend time with any organisations that can help me to move forward'.[26]
[25] Exhibit 1, 732.
[26] Exhibit 2.
I accept that Mr Rao is sincere in this regard and that he would welcome the opportunity for further treatment. The real difficulty, as I have discussed below, is his lack of insight and inability to recognise his own patterns of offending behaviour.

Whether participation in rehabilitation programs have had a positive effect on Mr Rao – s 7(3)(f)

The reports from the Medium Sex Offender Treatment Program,[27] and the Sex Offender Maintenance Program,[28] undertaken by Mr Rao both reported positive gains, albeit with some qualifications.
[27] Exhibit 1, 473-481.
[28] Exhibit 1, 673-677.
The real difficulty has been in maintaining those gains. As Dr Wynn Owen and Dr Wojnarowska both remarked, the positive gains were not sustained and, indeed, Mr Rao had regressed (including, of course, by reoffending).

The risk that, if not subject to a continuing detention order or supervision order, Mr Rao would commit a serious sexual offence and the need to protect the community from that risk – s 7(3)(h) & (i)

It will be apparent from what is set out above that, the evidence is to the effect that, in the absence of a continuing detention order or a supervision order, there is a significant risk that Mr Rao would commit a serious sexual offence. I find that to be the case.
Both Dr Wynn Owen and Dr Wojnarowska considered that that Mr Rao presents a high risk of sexual reoffending. I accept that evidence. Moreover, the pattern of his offending, including as it does adolescent females in circumstances of grooming and abuses of trust, the nature of the sexual offending includes serious sexual offences as defined in the Act.

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

For the reasons, I have expressed above, I am satisfied to a high degree of probability that there is an unacceptable risk that, if Mr Rao were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. Mr Rao did not, ultimately, contend otherwise.

I find that, without supervision of any form, there is a significant likelihood that Mr Rao would again offend in the manner that he has in the past. The type of offences he would be likely to commit would be offences against adolescent girls or young women, particularly those that may be vulnerable to manipulation. In that context, I find that, in the absence of treatment gains, Mr Rao lacks the self-awareness to recognise his own patterns of offending behaviour.
I, therefore, find that Mr Rao is a serious danger to the community, within the meaning of the Act.

Continuing Detention Order or Supervision Order?

I must now consider whether to make a continuing detention order or a supervision order.
In determining that question, s 17(2) of the Act requires me to apply, as the paramount consideration, the need to ensure adequate protection of the community. Matters personal to Mr Rao must necessarily be secondary considerations.
In addition, the effect of s 17(3) is that I must make a continuing detention order unless I am satisfied on the balance of probabilities that Mr Rao will substantially comply with the standard conditions of a supervision order. In relation to those standard conditions, the most significant matters in the present case are whether I can be satisfied, on the balance of probabilities, that:
(a)Mr Rao will comply with any reasonable direction of the community corrections officer under whose supervision he is placed; and
(b)Mr Rao will not commit a sexual offence, within the meaning of s 36A of the Evidence Act1906 (WA).
In relation to the former matter, it is significant that when previously the subject of parole supervision, Mr Rao was clearly unable to disclose to his community corrections supervisors the issues that were confronting him, and indeed, failed to comply with his parole conditions. This, in itself, does not augur well, as matters currently stand, for the prospect that Mr Rao will substantially comply with reasonable directions in a community setting.
As to the second matter, it should be noted that the condition requires that Mr Rao will not commit a sexual offence, within the meaning of s 36A of the Evidence Act. That definition is broader than the definition of 'serious sexual offence' in the Act. It includes any offence against Chapter XXXI of the Criminal Code, including an indecent assault.
This is where, in my view, the real difficulty for Mr Rao arises. In the opinion of Dr Wynn Owen and Dr Wojnarowska, the risk of Mr Rao committing any sexual offence (including an indecent assault) even under supervision is comparable to that which existed when he was last released (and reoffended). This is particularly so given that Mr Rao has only completed one, non-intensive, treatment program 2013 and could not maintain whatever gains had been made from that program.[29]
[29] The Sex Offender Maintenance Program undertaken by Mr Rao while on parole is not, as Dr Wynn Owen explained, a treatment program.
The unfortunate reality is that Mr Rao has essentially remained untreated since that time. I say 'unfortunate' because Mr Rao has now been in custody for a year since his last offence (including almost four months since his sentence expired), with no treatment being provided during that time. This is the case, notwithstanding that all assessments of him, including the program completion report for the Sex Offender Maintenance Program dated 20 April 2017, have identified Mr Rao as having unmet treatment needs.
The reason for this lack of any treatment is, as I noted at the beginning of these reasons, that until a person is made the subject of a Division 2 order, they are not eligible for the services of the Department's Forensic Psychology Service. This is apparently so, even where the fact that such services will ultimately need to be provided is obvious.
I described this earlier as a Catch-22. And indeed it is.
It is, in my view, in the interests of the community, and its protection from offending, that an offender with known treatment needs have those treatment needs addressed before consideration is given to their release under supervision not, as is the case, afterwards. Logically, it might also be thought that the benefits of such treatment might be manifest the sooner the treatment commences. It is not in the interests of the community that the risks of a person such as Mr Rao should stagnate, and potentially worsen, as a consequence of a lack of treatment.
It is also, obviously, in Mr Rao's interests that treatment commences as soon as possible.
As it is, treatment for Mr Rao cannot commence until I make an order on this application.
Mr Rao has expressed a desire for such treatment and I accept that he is sincere in that regard. There is, therefore, some cause for optimism that he will respond positively to individual treatment and that having undergone that treatment will have developed sufficient skills and insight into his offending as to be able to be safely managed in the community. It is, in particular, in the development of insight and self-awareness that Mr Rao requires treatment.
Nevertheless, in the absence of such treatment having been commenced, or any evidence as to its efficacy in Mr Rao's particular case, I am unable to be satisfied that the community can be adequately protected by imposing a supervision order. In particular, I am not satisfied, on the balance of probabilities, that, if released on a supervision order, Mr Rao will not commit a further sexual offence.
For these reasons, I have decided that I must make an order that Mr Rao be detained in custody for an indefinite term for control, care or treatment. While he is detained he should receive the treatment, and in particular the individual counselling, that he clearly requires.

Conclusion

For the above reasons:
1.I find that Mr Rao is a serious danger to the community, within the meaning of the Act; and
2.I order that Mr Rao be detained in custody for an indefinite term for control, care or treatment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan
25 MARCH 2019