The State of Western Australia v Ratcliff - [2021] WASC 31

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- RATCLIFF [2021] WASC 31
CORAM:   DERRICK J
HEARD:   4 & 10 FEBRUARY 2021
DELIVERED          :   10 FEBRUARY 2021
FILE NO/S:   SO 1 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ALAN DAVID RATCLIFF
Respondent

Catchwords:

High Risk Serious Offenders Act 2020 (WA) - Application under s 58(5) for interim supervision order pending determination of preliminary hearing

Legislation:

Criminal Code (WA)
Criminal Investigation Act 2006 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)

Result:

Application for interim supervision order allowed

Category: B

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	In person

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Not applicable

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

The State of Western Australia v CA [2020] WASC 164
The State of Western Australia v Lawrence [2020] WASC 462

DERRICK J:

(These reasons were delivered extemporaneously on 10 February 2021 and have been edited from the transcript.)

Introduction

The applicant has filed an application dated 27 January 2021 for a restriction order to be made in relation to the respondent pursuant to the relevant provisions of the High Risk Serious Offenders Act 2020 (Act) (the restriction order application). The restriction order application was filed on 28 January 2021.
The restriction order application is supported by an affidavit sworn by Mr Thomas McPhee, a lawyer employed by the State Solicitor's Office, on 27 January 2021.
The parties first appeared before me at a directions hearing on 4 February 2021. The respondent was unrepresented. On that date I listed the preliminary hearing of the restriction order application for 10.00 am on 19 March 2021. This was the earliest date that the court was able to allocate for the preliminary hearing taking account of the court's lists and the need to give the respondent sufficient time to secure legal representation for the hearing.
At the directions hearing on 4 February 2021 the applicant also made an application for an interim supervision order under s 58(5) of the Act pending the determination of the preliminary hearing (the application). I heard the applicant's counsel's submissions in support of the application on that date. I then adjourned the further hearing of the application to today's date to give the respondent time to attempt to secure legal representation with respect to the application and, in any event, to consider the application and the submissions that had been made by the applicant's counsel in support thereof.
The respondent opposes the application.
The respondent has been unable to secure legal representation for today's hearing. However, for reasons that will be apparent from what I am about to say in relation to the background to the application, it is necessary for me to proceed to determine the application despite the respondent being unrepresented. When the respondent appeared before me on 4 February 2021 I made clear to him that I would be required to determine the application at today's hearing even if he had not managed to secure legal representation. In any event, it was apparent from listening to the respondent today that he had an adequate grasp of the issues bearing upon the determination of the application. Moreover, he was able to adequately state his reasons for opposing to the application. In short, while the respondent's position on the application would most likely have been put somewhat more eloquently and succinctly by a legal practitioner, I do not consider that he was materially disadvantaged by having to represent himself on the hearing of the application.
At today's hearing the applicant adduced oral evidence in support of the application from Ms Jodii Nichols, a Senior Community Corrections Officer (CCO) with the Community Offender Management Unit (COMU) and from Ms Kara Cassam, a team leader within the COMU.
I note that there is no provision in the Act which enables the court to make an order detaining the respondent pending the determination of the preliminary hearing.

Background to the restriction order application and the application

The background to the restriction order application and the application, as revealed by the contents of the affidavit filed in support of the restriction order application, is as follows.
On 24 March 2020 the respondent was sentenced in the District Court to a total of 15 months imprisonment for two offences of possessing child exploitation material contrary to s 220 of the Criminal Code (WA). The commencement date of the sentence was backdated to 12 August 2019. The respondent was made eligible for parole. Both offences are serious offences for the purposes of the Act.
On 21 April 2020 the respondent was sentenced in the Magistrates Court to 3 months imprisonment for an offence of failing to obey a data access order contrary to s 61(2) of the Criminal Investigation Act 2006 (WA). The respondent was made eligible for parole. The sentence imposed was ordered to be served cumulatively on the sentence imposed by the District Court.
The net result is that the respondent is currently serving a total sentence of 18 months imprisonment with eligibility for parole.
On 11 May 2020 the respondent was denied parole by the Prisoners Review Board. This was after the respondent had made clear that he would not participate in any programs as part of parole conditions, nor abide by global positioning system (GPS) conditions or curfew conditions.
The respondent's sentence is due to expire tomorrow on 11 February 2021. He will therefore be released from custody tomorrow.
The respondent has a significant record of sexual offences committed against adult and child victims of both sexes. Some of the offences have been accompanied by violence.
On 18 April 2011 the respondent was declared a dangerous sexual offender under the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) and was placed on a supervision order for five years (the supervision order). The supervision order expired on 17 April 2016. Accordingly, the offences for which the respondent is currently serving his term of imprisonment were committed well after the expiration of the supervision order. At some point after the expiration of the supervision order the respondent commenced to live in South Australia.
The respondent was convicted of two offences of breaching the supervision order. The breaches related to the consumption of alcohol.
After the expiration of the supervision order the respondent committed three offences of failing to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA). The offences were committed on 10 May 2016 and involved the respondent failing to notify the Sex Offender Management Squad (SOMS) that he intended to leave the country (he went as far as boarding an aeroplane), failing to notify the SOMS of a change of address and failing to attend a scheduled appointment.

The respondent's current obligations on release

The respondent will, on his release from prison, be subject to reporting obligations under the Community Protection (Offender Reporting) Act.
Further, earlier today the Prisoner's Review Board made a Post-Sentence Supervision Order (PSSO) in respect of the respondent pursuant to s 74B of the Sentence Administration Act 2003 (WA) (SA Act). The standard obligations imposed by the PSSO on the respondent pursuant to s 74F of the SA Act are as follows:
1.To report to Adult Community Corrections (ACC) within 72 hours of being released, or as otherwise directed by a Community Corrections Officer (CCO);
2.To notify a CCO of any change of address or place of employment within two clear working days after the change; and
3.To comply with s 76 of the SA Act.
The additional obligations imposed by the PSSO on the respondent pursuant to s 74G of the SA Act are as follows:
1.To comply with the requirements of the Community Protection (Offender Reporting) Act;
2.Not to have unsupervised contact with children under 18 years of age;
3.Not to use or be in possession of any illicit drug including cannabis;
4.To attend random urinalysis for all illicit substances as directed by a CCO and provide a valid sample;
5.Not to consume alcohol;
6.To submit to random breath testing as required by police;
7.To attend programs and counselling as directed;
8.To advise his CCO of his residential address and not to change that address without the prior approval of the CCO.
If the application is allowed and an interim supervision order is made the PSSO will, pursuant to s 74J of the SA Act, be cancelled.

Respondent's previous travel and previous statements regarding future travel

The affidavit filed in support of the application reveals the following in relation to the respondent's past travel and statements that he has previously made in relation to possible future travel.
After the expiry of the supervision order the respondent left Western Australia. He lived in Darwin and South Australia.
When the respondent was interviewed for the purposes of the preparation of the pre‑sentence report that was before the District Court at the time of his sentencing for his most recent possession child exploitation material offences, he told the report writer that after the expiration of the supervision order he commenced an online relationship with a Chinese woman, that he had travelled to Vietnam to meet the woman, and that they had both intended to come back to Australia but that there was an issue with the woman's visa that required her to return to China. The respondent told the report writer that he subsequently terminated the relationship.
The respondent also told the pre‑sentence report writer that prior to being remanded in custody for his most recent offences he was in a relationship with a woman living in Malaysia. He stated that he had met the woman online and that she has an 8‑year‑old son from a previous relationship. He stated that he had not met the woman in person but that they had communicated via Skype on numerous occasions and that he intended to visit her in Malaysia at some time in the future. He stated that he was unsure of the status of the relationship given that he had been remanded in custody.

Draft interim supervision order

The applicant has provided a draft version of the interim supervision order (the draft interim supervision order) that it contends should be made. The draft interim supervision order, a copy of which is Annexure A to these reasons, provides for the respondent's release from 11 February 2021 and contains a total of 54 conditions. The conditions include, but are not limited to, the following:
1.The conditions that must form part of a supervision order (as opposed to an interim supervision order) as specified in s 30(2) of the Act;
2.A condition requiring the respondent to report to a CCO at prison on 11 February 2021 at the time of his release and to advise the officer of his current name and address;
3.A condition requiring either that the respondent take up residence at a specified address, or that he take up residence at the address that he provides to the CCO at the time of his release, and that he is not to live at a different address unless the different address is approved in advance by the CCO;
4.Conditions restricting contact with victims, adult females and children under 18;
5.A curfew condition;
6.Conditions requiring the respondent to report to a CCO and the police as directed;
7.Conditions prohibiting the respondent from possessing, using and consuming prohibited drugs and alcohol;
8.Conditions requiring the respondent to submit himself to urinalysis testing and other testing for prohibited drugs and alcohol;
9.Conditions prohibiting the respondent from attending licensed premises or from remaining in the presence of anyone affected by alcohol or prohibited drugs;
10.Conditions requiring prior approval of affiliations and associations; and
11.Conditions requiring the respondent to give a CCO and the police complete access to any electronic device being used by him.
Thus the draft interim supervision order encompasses the conditions of the PSSO but also imposes obligations on the respondent that go significantly beyond the conditions of the PSSO.

Evidence

As I have already stated, at today's hearing of the application, the applicant adduced evidence from COMU officers, Ms Nichols and Ms Cassam.
Ms Nichols is the respondent's COMU CCO and will be his CCO if he is made the subject of an interim supervision order.
In her evidence Ms Nichols testified that she spoke to the respondent by telephone on 8 February 2021 to discuss his proposed residential address on release. She said that the respondent was unable to provide her with an address at which he will be residing on release. She said that the respondent confirmed that he has a motor home at his ex sister‑in‑law's address but that she did not obtain the ex sister‑in‑law's address from him. She said that she asked the respondent for his son's address but that the respondent would not provide the address to her. She said that she suggested to the respondent that the COMU could make inquiries with his son in relation to possible accommodation but that the respondent refused to agree to this occurring. She said that although the respondent told her that he had made contact with an organisation called Re-Settled which provides transitional support to former prisoners, her contact with Re-Settled revealed that no referral to that agency had been made in respect of the respondent.
In relation to the proposed condition of the draft interim supervision order requiring the respondent to report his address to a CCO on release from prison (condition 1), Ms Nichols testified that if an interim supervision order is made in terms of the draft interim supervision order she will attend prison tomorrow and be the CCO to whom the respondent will be required to provide an address. She said that if the respondent provides an address she will notify her team leader at the COMU and take directions from her team leader.
Ms Cassam testified that she spoke to the respondent on 28 January 2021. She said that the respondent confirmed that he has a motor home. She said that she asked the respondent for his son's name but that he indicated that he would prefer not to provide her with any personal details because he had not received a copy of the restriction order application and had not had the opportunity to seek legal advice.
In relation to the proposed condition of the draft interim supervision order requiring the respondent to report his address to a CCO on release from prison (condition 1), Ms Cassam testified that if an interim supervision order is made in terms of the draft interim supervision order Ms Nichols will attend the prison together with electronic monitoring officers so that the officers can connect the respondent to a GPS monitoring device. She said that once the respondent is connected to the GPS monitoring device Ms Nichols will transport him to the offices of the ACC so that further inquiries can be made in relation to the issue of accommodation. She said that if the respondent refuses, contrary to proposed condition 1 to provide an address she will need to discuss the position with her director and with the SOMS in order to decide whether to commence contravention proceedings.

Respondent's submissions

As I have already stated, the respondent elected not to give evidence. Nonetheless, during the course of his submissions he made a number of statements that should have been the subject of evidence rather than submission. However, given that the respondent was unrepresented I extended him considerable latitude in this regard. I did so without objection from the applicant's counsel.
During his submissions the respondent, in essence, made the following substantive points:
1.He is not in any firm relationship with the woman in Malaysia and he has no definite intention to visit her. In any event he does not have a valid passport;
2.On his release he intends to provide support to his daughter who is currently contending with the suicide of her mother and a number of other family related issues. The reason that he came from South Australia to Western Australia was to provide support to his daughter following her mother's suicide. Therefore, he does not intend to return to South Australia immediately upon release;
3.If he is subject to the conditions as set out in the draft interim supervision order, such as electronic monitoring, his ability to support his daughter will be adversely impacted upon;
4.In the longer term he does intend to return to South Australia where he can 'have a life'. He lived in South Australia for two years. He 'thrived' when he lived in South Australia and had two relationships with Australian woman while he was living there. He has considerable support in South Australia;
5.He realises he has to stay in this state until at least 19 March 2021, the date of his preliminary hearing;
6.He does not want COMU officers to visit members of his family when he has not had the opportunity to give his family members prior notice of this occurring;
7.He does not want to disclose to COMU officers an address at which he will be living upon his release given that in the past he has suffered adverse consequences when COMU officers have told the people he was living with about his prior record;
8.He is yet to contact his son. He does not want to stay with his son. His current plan is to book into a caravan park; and
9.His most recent offences were non-contact offences. He does not accept the content of the various reports in relation to the risk that he poses to the community. It is not necessary for an interim supervision order to be made in relation to him.

Analysis and decision

Section 58 of the Act provides as follows:
58.Interim supervision order
(1)In this section -
specified means specified by the court in an order made under this section.
(2)This section applies if -
(a)proceedings on a restriction order application or an application made under section 49 or 53 are pending (the pending proceedings); and
(b)the offender to whom the pending proceedings relate is not in custody; and
(c)the court is satisfied that, to ensure adequate protection of the community, it is desirable to make an order under this section.
(3)If the offender is subject to a supervision order that may otherwise expire before the pending proceedings are finally determined, the court may at any time in the pending proceedings order that the supervision order is to continue until the pending proceedings are finally determined or until another specified date.
(4)If the offender has been subject to a supervision order that has expired, the court may at any time in the pending proceedings order that the supervision order is to be reinstated with effect from a specified date and is to continue until the pending proceedings are finally determined or until another specified date.
(5)In any other case, the court may at any time in the pending proceedings order that, with effect from a specified date and until the pending proceedings are finally determined or until another specified date, the offender is to be subject to stated conditions that the court, subject to subsection (6), considers appropriate.
(6)Section 30 applies to an order under this section as if it were a supervision order.

I note that it is appropriate to refer to an order made under s 58(5) as an 'interim supervision order' even though this term only appears in the heading to s 58, because the term 'interim supervision order' is defined in s 3 of the Act to mean an order under s 58.
By reason of s 58(2), before I can make an interim supervision order under s 58(5) the following requirements must be met:
1.There must be proceedings on a restriction order application made pursuant to s 35(1) that are pending;
2.The offender to whom the pending proceedings relate must not be in custody; and
3.I must be satisfied that it is desirable to make an order under the section in order to ensure adequate protection of the community.
I note that s 4 of the Act provides that a reference in the Act 'to the community includes any community and is not limited to the community of Western Australia or Australia'. This section was specifically inserted into the Act so as to apply to an offender who intends to travel interstate or overseas after release. In other words, when dealing with an application under the Act the court can consider the need to ensure the adequate protection of the community in another State or another country against any unacceptable risk that the offender poses. Accordingly, the fact that the respondent may currently intend, at some time after his release, to travel interstate does not preclude the court from coming to the conclusion that it is desirable to make an interim supervision order in order to ensure adequate protection of the community. I note in this regard that from what the respondent said in the course of his submissions it seems to me that the prospect of him attempting to, or being able to, travel overseas within any short period of time following his release is relatively remote.
In the respondent's case proceedings on a restriction order application made under s 35(1) are pending. Therefore the first requirement for the making of an interim supervision order is met.
As to the second requirement the respondent, as I have already indicated, is currently in custody serving his sentence for his most recent offences and is not due to be released until tomorrow 11 February 2021, this being his sentence expiry date. Therefore, on the face of it, the second requirement for the making of an interim supervision order under s 58(5) is at today's date not met. However, in The State of Western Australia v CA[1] Fiannaca J interpreted s 27A(2)(b) of the DSO Act, which was the equivalent provision to s 58(2)(b), to apply to the situation in which the offender will not be in custody on a specified future date before the application for the div 2 order is finally determined. An application for a div 2 order under the DSO Act was the equivalent of an application for a restriction order under the Act.
[1] The State of Western Australia v CA [2020] WASC 164 [22] ‑ [33].
For reasons of judicial comity I should adopt Fiannaca J's interpretation of s 27A(2)(b) of the DSO Act and apply it to s 58(2)(b) of the Act unless I am convinced that the interpretation is wrong. Although I consider that there is a real question as to whether s 58(2)(b) can be interpreted so as to apply to a situation such as the present where the offender is in custody as a sentenced prisoner at the time that the application for the interim supervision order is made, and is being determined, I am not, having read the relevant paragraphs of Fiannaca J's decision, convinced that his Honour's interpretation of s 27A(2)(b) of the DSO Act is wrong. In these circumstances I will adopt and apply his Honour's interpretation of s 27A(2)(b) of the DSO Act to s 58(2)(b).[2] Accordingly, given that the respondent is due to be released on 11 February 2021, which will be before the restriction order application is finally determined, I find that the second requirement for the making of an interim supervision order specified in s 58(2)(b) is met in the respondent's case.
[2] In at least two other applications of substantially the same type that have come before other judges of this court, a similar approach has been adopted by the presiding judge although in each instance the judge has in effect expressed the view that the correctness of Fiannaca J's interpretation of s 27A(2) of the DSO Act remains open to question: The State of Western Australia v Cox Aka Roe, SO 10 of 2020, 27 August 2020, ts 50 (Allanson J); The State of Western Australia v OJD, SO 11 of 2020, 4 September 2020, ts 29 (Hill J). In addition, I adopted this approach in The State of Western Australia v Lawrence [2020] WASC 462 [142].
It follows from my findings that the first two requirements specified in s 58(2) are met that it is open to me to make an interim supervision order under s 58(5) provided that I am satisfied that it is desirable to do so to ensure adequate protection of the community.
In determining if I am satisfied that it is desirable to make an interim supervision order pending the determination of the preliminary hearing in order to ensure adequate protection of the community, it is appropriate for me to consider the likelihood of the applicant satisfying the court at the preliminary hearing that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender (see s 46(1) of the Act) and also, to the extent that is possible on the available material, the likelihood of the applicant ultimately satisfying the court that the respondent is a high risk serious offender.
As I have already indicated, the affidavit filed in support of the application reveals that the respondent has a significant record of sexual offences committed against adult and child victims of both sexes. Some of the offences have been accompanied by violence. The affidavit also reveals that the reports that have been prepared in relation to the respondent over the years indicate that he has a deviant sexual interest in prepubescent children as well as alcohol abuse issues, that he has minimal insight into his alcohol abuse issues, and that his consumption of alcohol erodes his capacity for rational judgment and consequential thinking with the result that he acts on impulse. The affidavit further reveals that the more recent reports prepared in relation to the respondent indicate that he is at very high risk of committing further offences including sexual offences.
In light of the contents of the affidavit, and despite what the respondent asserted in his submissions to me, I am satisfied that it is highly likely that the applicant will satisfy the court at the preliminary hearing that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender. Further, and although I am conscious of the fact that if the applicant is successful on the preliminary hearing further expert reports will be ordered in relation to the respondent which will reveal further significant up to date information about him, I am satisfied on the basis of the affidavit that is currently before me that there are reasonable prospects of the applicant satisfying the court that the respondent is a high risk serious offender.
It necessarily follows from my just stated findings that I am satisfied that it is, in order to ensure adequate protection of the community in this state and in other states (most particularly South Australia), desirable to make an interim supervision order pending the determination of the preliminary hearing substantially in the form sought by the applicant but containing a number of amendments and deletions.
I am not satisfied that the conditions of the PSSO will provide adequate protection to the community.
The amendments and deletions that I will make to the draft interim supervision order are as follows:
1.The wording of condition 8 to be that the respondent is to '[t]ake up residence at the address you advise the CCO of in accordance with condition 1 and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you'. It is necessary to adopt this wording given that the respondent is yet to identify the address at which he will be residing on release;
2.The deletion from condition 12 of the references to a psychiatrist and psychologist. On the evidence currently before me I am not persuaded that a condition requiring the respondent to attend upon a psychiatrist or psychologist during the relatively short period between now and the preliminary hearing is required to ensure adequate protection of the community;
3.The deletion of the word 'offending' in conditions 21, 22 and 23 to be replaced in each instance with the word 'offences' so as to make clear that the conditions are dealing with victims of the sexual offences of which the respondent has been convicted;
4.The deletion of the word 'approved' in conditions 27, 28 and 38. The use of this word is inconsistent with the terms of conditions 1 and 8 and is also superfluous given that condition 8 specifies that the respondent can only spend the night at a different address to the address that he advises the CCO of in accordance with condition 1 if the different address is approved by the CCO;
5.The deletion of condition 39 which, on the material currently before me, does not, in light of the respondent's history of offending, appear to be necessary to ensure adequate protection of the community from the respondent's risk of sexual offending;
6.The deletion of condition 49. The wording of the condition is simply too broad for an interim supervision order and in effect prevents the respondent from joining any form of club which has children as members. To the extent that the condition is directed at protecting children from the respondent, this issue is addressed by other conditions contained in the draft interim supervision order.
I have also made some minor amendments to conditions 1 to 5 and 8 of the draft interim supervision order so that the reference to a 'Community Corrections Officer' in condition 1 is defined as 'CCO' with the result that the further references in conditions 2 to 5 and 8 to a 'Community Corrections Officer' are replaced with references to a 'CCO'.
In summary, I will make an interim supervision order in terms of the draft interim supervision order amended as I have specified.
Obviously, the views I have expressed in relation to the likely outcome of the preliminary hearing, and my decision to make an interim supervision order pending the preliminary hearing cannot in any way be seen as binding the judge who presides at the preliminary hearing. Further, if the judge who presides at the preliminary hearing does decide, in accordance with s 46(1) of the Act, that there are reasonable grounds for believing that the court might find that the offender is a high risk serious offender, it will be open to the judge to revoke the interim supervision order that I am going to make today and make no further order, or alternatively make a detention order pending the determination of the restriction order application pursuant to s 46(2)(c)(ii) of the Act.

ANNEXURE A

PROPOSED SUPERVISION ORDER CONDITIONS:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

Report to a Community Corrections Officer at the prison on 11 February 2021 at the time of your release and advise the officer of your current name and address;
Report to and receive visits from, a Community Corrections Officer as directed by the court;
Notify a Community Corrections Officer of every change of the offender's name, place of residence, or place of employment at least 2 days before the change happens;
Be under the supervision of a Community Corrections Officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer;
Not commit a serious offence during the period of the Order; and
Be subject to electronic monitoring under section 31.

ADDITIONAL CONDITIONS

Residence

Take up residence at (address to be determined/the address you advise the CCO of in condition 1) and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;
Not to leave the Perth metropolitan area without prior approval of the CCO;

Reporting to a CCO and supervision by a CCO

Report to, and receive visits from, a CCO at times and at places as directed by the CCO and comply with the lawful orders and directions of a CCO;
Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO;

Attendance at programs or treatment

Attend all appointments and receive visits from any, psychiatrist, social worker, psychologist, support service and/or support person as directed by a CCO;

Reporting to WA Police

Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and locations as directed by the Officer-in-Charge of SOMS or his/her delegate;
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
If requested, permit Police Officers to enter and search your residence and/or vehicle or your person for the purpose of monitoring your compliance with your obligations under this order and allow seizure of any such items that the Police Officer believes to contravene the conditions of the order;
Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020;
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you;

Disclosure/exchange of information

Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;

Restrictions on contact with victims

To have no contact, directly or indirectly, with [redacted], unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice, or in a manner approved of in advance by the CCO;
Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice, or in a manner approved of in advance by the CCO;
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring;

Criminal conduct

Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Not possess, or consume, or use any prohibited drugs, plants or other substances to which the Misuse Of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider;

Curfew

Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;

Prevention of high-risk situations

Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO;
Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO;
With the exception of public transport, not enter in or on any vehicle with any female or where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by a CCO;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;
Provide a valid sample pursuant to condition 33;
Not to possess, or consume, or purchase, or use alcohol;
Not go or remain at any licensed premises unless permitted or required to do so for the following reasons:
(a)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
(b)For a purpose, and for a duration, approved in advance by a CCO;
(c)On the order of a CCO or Police Officer.
Not to remain in the presence of any person who you know, or ought to know, to be affected by prohibited drug, unless the identity of such person is approved in advance by a CCO;
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place;
Not to be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article and not to apply for, acquire or hold a licence to possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article;
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless -
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);

Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
Provide details of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency;
Report at your next contact with your CCO and Police any association or relationship by you with a person who has a child, or children under the age of 18 years in their care either full time or part time;
Not form any domestic relationship with a person who has a child, or children under the age of 18 years in their care either full time or part time, without prior approval of a CCO;
Report at your next contact with your CCO, the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person;
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
Not conduct computer searches for, nor collect or access, or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not; with the exception of images of your immediate family that are not indecent images, if approved in advance by a CCO. Possession of such images depicting a child or children on items such as on household items, may be authorised by a CCO;
Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 50, without prior approval of the CCO;
Enable device locking or password access of your computer, telecommunication and/or electronic devices; Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 50, or any online accounts, to any person other than a CCO or Police Officer;
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO;
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
12 FEBRUARY 2021