The State of Western Australia v RBN [No 4] - [2024] WASC 382

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- RBN [No 4] [2024] WASC 382
CORAM:   WHITBY J
HEARD:   15 OCTOBER 2024
DELIVERED          :   18 OCTOBER 2024
FILE NO/S:   [REDACTED]
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
RBN
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Review of continuing detention order - Whether respondent remains a high risk serious offender - Whether continuing detention order or supervision order appropriate - Whether community can be adequately protected by supervision of the respondent

Legislation:

Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)

Result:

Respondent's CDO rescinded
Supervision order imposed for 10 years, with the respondent to be released no earlier than 5 February 2025

Category: B

Representation:

Counsel:

Applicant	:	T Hollaway
Respondent	:	K J Farley SC

Solicitors:

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

Case referred to in decision:

Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357

WHITBY J:

Introduction

On 9 November 2018, the respondent was declared a dangerous sexual offender under the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The respondent was made subject to a continuing detention order (CDO) by Hall J (as his Honour then was) under the DSO Act.[1]
[1] [REDACTED].
On 5 December 2019, at the first review of this matter, Fiannaca J affirmed the CDO, having found that the respondent remained a serious danger to the community and that the only appropriate order was a CDO.[2]
[2] [REDACTED].
In 2020 the DSO Act was repealed upon the commencement of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). Pursuant to s 125 of the HRSO Act, an order made under the DSO Act continues in effect and is taken to have been made under the corresponding provision of the HRSO Act.
On 7 February 2022, at the second review of this matter, Hall J affirmed the CDO, having found that the respondent remained a high risk serious offender and that the only appropriate order was a CDO.[3] His Honour was of the view that the respondent's risk of reoffending could only be adequately managed with a very high level of supervision and support, which at that time was not available due to a lack of funding and suitable accommodation.[4]
[3] [REDACTED].
[4] [REDACTED] [78] ‑ [79].
On 9 August 2023, the State of Western Australia (State) applied pursuant to s 64 of the HRSO Act for an order that the respondent's CDO affirmed by Hall J on 7 February 2022 be reviewed as soon as practicable after 7 February 2024 (application).
The hearing of the application took place before me on 15 October 2024.
For the reasons that follow, I find that the respondent continues to be a high risk serious offender (HRSO) because I am satisfied:
(1)by acceptable and cogent evidence, to a high degree of probability, that there is an unacceptable risk that the respondent may commit a serious sexual offence of the kind that he has committed previously; and
(2)that it was necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against that risk.
However, since the last review in February 2022, the respondent's position has significantly improved. He has suitable accommodation available for him in the community and he has obtained funding through National Disability Insurance Scheme (NDIS) for support for 24 hours a day. The respondent has also commenced taking anti‑libidinal medication as recommended.
The changes to the respondent's circumstances persuade me that the appropriate outcome is to rescind the CDO and make an order that the respondent be released on detailed and strict conditions. The respondent has also satisfied me that he is willing and capable of complying with those conditions.
In those circumstances, I find that the respondent's CDO should be rescinded and a supervision order imposed. These reasons should be read together will all earlier reasons for the decisions made which relate to the respondent.

Object of review and issues to be determined

A person who is detained in custody under the HRSO Act must be the subject of a review. Section 64 of the HRSO Act provides that the first review must be as soon as practicable after the period of one year commencing when the offender is first in custody under a CDO and subsequent reviews are to occur as soon as practicable two years after the last review of the CDO.
Section 68 of the HRSO Act provides:
68.Review of detention under continuing detention order
(1)On a review under section 66 of an offender's detention -
(a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b)if the court finds that the offender remains a high risk serious offender it must -
(i)affirm the continuing detention order; or
(ii)subject to section 29, rescind the continuing detention order and make a supervision order.
(2)In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure adequate protection of the community.
The purpose of the review process is to ensure that the detention of the respondent only continues where necessary. If the risk of serious offending changes or resources are provided to the respondent that affect the risk of reoffending being managed on a supervision order, then the need for continued detention may dissipate.[5]
[5] Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357.
The issues to be determined on the review application are:
(1)Is the respondent a HRSO as defined in s 7(1) of the HRSO Act, having regard to the factors in s 7(3) of the HRSO Act? The State bears the onus of satisfying the court that the respondent is a HRSO. If the answer to this question is 'no', I must rescind the CDO.
(2)If the answer to question 1 is yes, should the court affirm the CDO or rescind the CDO and make a supervision order (and in the latter case, what are the appropriate conditions which should be imposed as part of a supervision order)?
A court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of a supervision order. The standard conditions are those contained in s 30(2) of the HRSO Act and include reporting, supervision and electronic monitoring. The onus is on the respondent to satisfy the court that he will substantially comply with the standard conditions.[6] If the court is not satisfied that the respondent will substantially comply with the standard conditions then it must affirm the CDO.
[6] HRSO Act s 29(1) and (2).

Factual background

Hall J detailed the facts relating to the respondent's personal history and offending in [REDACTED] at [30] ‑ [54] ([REDACTED]). I adopt his Honour's outline of the factual background relevant to the respondent. I will summarise the details of the respondent's personal circumstances and offending that are of particular relevance to this review.

Respondent's personal circumstances

The respondent was born in 1961 and is currently 63 years old. The respondent suffered from hypoxia at birth and was diagnosed with cerebral palsy at the age of 8.
The respondent had a difficult childhood. His father drank alcohol excessively and was physically abusive to the respondent's mother and verbally abusive to the respondent and his three siblings. The respondent struggled academically, socially and physically at school and was bullied. He attended a special school until the end of year 10. After leaving school, he worked in sheltered employment. He had a lot of conflict at his workplaces.
The respondent displayed over‑sexualised behaviour from a young age. His sexual fantasies about children started around the age of 14. He used sex and masturbation as a form of release from anxiety and tension.

Respondent's sexual offending

As to his offending history, the respondent has committed serious sexual offences against boys and girls between the ages of 3½ and 10, in circumstances where the victims were not known to him and the offending involved taking the children from public places.
His earliest offending, in around 1978 or 1979, was against a 4‑year‑old girl and three 5‑year‑old boys. He attempted to get the 4‑year‑old girl to perform fellatio on him and he rubbed his penis between her legs. He covered her mouth and tried to choke her when she screamed to alert her brother. The respondent was cautioned for this offending, but was not convicted.
In June 1984, the respondent took two children from a park - a 3½‑year‑old boy and a 4‑year‑old girl. The victims were with their families at the park. The respondent lured the children into his car by offering to buy them an ice cream. He drove the children a distance from the park and indecently dealt with the children in the car by touching their genitals. The children became distressed, so he started driving but was involved in an accident and abandoned the car, taking the children with him. He obtained a lift with a young couple to a train station and then caught a train and taxi with the children to his house. At his house he penetrated the children's mouths with his penis, touched the boy's penis and licked the girl's vagina. The young couple who had given them a lift alerted the police after they heard about the missing children. The police located the respondent through documents left in his car. The police went to the respondent's house and found the children naked in the respondent's bedroom.
On 27 August 1984, the respondent assaulted a 10‑year‑old boy by hitting him on the bottom on an escalator. He then asked the victim to go with him to the toilet. He was convicted of assault in circumstances of aggravation and received a 12‑month good behaviour bond.
On 24 January 1985, the respondent was sentenced to a total effective sentence of 4 years' imprisonment with a minimum term of 12 months for four counts of indecently dealing with the children who he abducted from the park. He was acquitted of two counts of child stealing. The sentence was designed to allow the respondent to receive psychological treatment in the community after a relatively low period of detention. The sentencing judge accepted, based on reports, that the respondent was 'mentally disadvantaged' and had 'a psychological problem' which 'might well respond to treatment'.[7] The respondent served the minimum term and was released on parole on 13 January 1986. His parole was not due to expire until 23 January 1989.
[7] [REDACTED] [44].
On 21 January 1988, the respondent followed a 5‑year‑old boy into a toilet cubicle at a public swimming pool and locked the door. He fondled and masturbated the boy's penis and exposed his erect penis to the boy.
On 19 February 1988, the respondent followed a 6‑year‑old boy into the toilet area at a public swimming pool. He pulled down the boy's bathers and then sucked on the boy's penis for about 30 seconds, while masturbating himself. The respondent held the boy by the waist to prevent him from leaving. The respondent pleaded guilty to one count of sexually penetrating the child.
In March 1988, the respondent abducted a 5‑year‑old boy who was waiting to be picked up by his mother after school. The respondent enticed the boy into his car by offering him a lift home. The respondent took the boy to Rockingham for a swim and then to a motel in Mandurah where the respondent fondled and sucked the boy's penis and made the boy lick the respondent's penis. The respondent left the motel late at night, drove the boy to Wattleup and left him naked by the side of the road. The respondent was charged with one count of child stealing, one count of indecently assaulting a child under the age of 16 years and one count of sexually penetrating a child under the age of 16 years.
On 19 August 1988, the respondent was sentenced to fixed terms of 3 years' imprisonment to be served concurrently for each of the four offences with which he was charged arising from the incidents in February and March 1988, being three sexual offences and the offence of child stealing. The court also ordered that, after the expiration of the sentence of imprisonment, the respondent was to be detained at the Governor's pleasure pursuant to s 662(a) of the Criminal Code (WA) (Criminal Code).
On 18 October 1988, the respondent was sentenced to 6 months' imprisonment for the offence at the public pool which occurred on 21 January 1988, which was ordered to be served concurrently with the sentences he was already serving.
On 15 December 1995, while being detained at the Governor's pleasure, the respondent was released on parole. The respondent was returned to custody on 9 September 1996 for breaching his parole by being in the presence of two unaccompanied children. The respondent was released on parole again on 16 December 1996.
On 7 October 1997, the respondent followed a 7‑year‑old boy into the toilets of a fast‑food restaurant. The respondent asked the boy if he could help him undo his pants at the urinal. The boy agreed and the respondent took him into a cubicle and locked the door. The respondent fondled the boy's penis. The respondent was arrested for that offence on 11 November 1997. On 17 February 1998, he was sentenced to a total effective sentence of 2 years and 6 months' imprisonment for indecently dealing with a child under the age of 13 years and unlawfully detaining the child, with no eligibility for parole. After completing that sentence, he was detained at the Governor's pleasure pursuant to the order made on 29 August 1988.
In 2017 and 2018, the respondent appealed against two of the convictions arising from the 1988 offences, being the convictions for sexual penetration, on the basis that the acts of fellatio upon the children did not fall within the meaning of sexual penetration (as it was then defined). The appeals were conceded by the State and the convictions were set aside. There was no dispute that the respondent had committed those sexual acts, however the Court of Appeal could not substitute the convictions that were set aside with convictions for indecent dealings.[8] The respondent also successfully appealed against the order of indefinite detention under s 662(a) of the Criminal Code. The Court of Appeal also found that the findings of fact and the reasoning of the sentencing judge on the remainder of the 1988 offences were inconsistent with established authorities. The Court of Appeal therefore resentenced the respondent for the remaining offences. He was sentenced to a term of imprisonment of 6 years for the offence of child stealing and 3 years for aggravated indecent assault. The sentence was effective from 29 August 1988, meaning that at the time of being resentenced, the respondent had completed his sentence. The respondent has been in prison on an interim detention order and then on a continuing detention order since the appeal was determined. The respondent has been in prison since the commission of his last offences.
[8] [REDACTED] [49].

Findings on the second review

The second review of the CDO was heard on 7 February 2022. At the conclusion of that review, Hall J affirmed the CDO.
His Honour was satisfied that the respondent was a HRSO and was not satisfied, given the level of supervision available, that a supervision order was appropriate. That was because:[9]
The nature of the respondent's past offending conduct, and his likely risk scenario in the event of reoffending, are such that there must be a strong degree of assurance that the risk of reoffending is extremely low. Because the respondent's past offending has been opportunistic and unpredictable the risk is more difficult to manage. A very high level of supervision and support would offer some prospect of this level of management. I accept the evidence of Dr Wojnarowska that ideally 24 hour a day/7 day a week supervision is desirable but that 12 hour supervision with a night time curfew for the remaining 12 hours and close GPS monitoring during that period may be adequate to reduce the risk to an acceptable level.
The fact is that provision of such supervision is dependent on appropriate funding. The only possible source of such funding is the NDIS. Whilst a functional capacity assessment report has recommended that supported independent living be supported, the NDIA is yet to respond to that report. If, as it would seem, the reason for that is that there is no definite release date then I would hope, in light of these reasons, the NDIA is able to reconsider its position.
…
Given the level of supervision that is required to reduce the risk to an acceptable level, it is likely that the only suitable accommodation will be in some form of hostel environment. The ability of the respondent to access such accommodation is also dependent upon funding.
In all of the circumstances, I concluded that a supervision order is not appropriate at this time and, at the conclusion of the review hearing, I affirmed the continuing detention order.
[9] [REDACTED] [78] ‑ [84].

Evidence on the application

Pursuant to s 67 of the HRSO Act, the Chief Executive Officer of the Department of Justice must engage one or more qualified experts to prepare reports in accordance with s 74 to be used on the review.
Pursuant to s 84(5) of the HRSO Act, in this review hearing the court may receive into evidence:
(a)any document relevant to the antecedents or criminal record of the offender; or
(b)anything relevant contained in the official transcript of any relevant proceeding against the offender; or
(c)any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the offender; or
(d)any relevant material of the kind mentioned in section 7(3) relating to the offender.
At the review hearing, the State tendered a book of materials comprising three volumes - the first dated 1 November 2023, the second dated 14 February 2024 and the third dated 9 October 2024. They are exhibits 1.1 ‑ 1.3.
The first volume of materials consisted of background material which had been prepared for the purpose of earlier applications. The material included the respondent's criminal record, transcript and records relating to the respondent's previous offences and criminal hearing, prison records, medical records and previous specialist reports.
The second and third volumes included material specifically prepared for this application. This material included:
(1)NDIA plan;
(2)psychiatric report of Dr Gosia Wojnarowska dated 30 January 2024;
(3)treatment progress report of Dr Sarah Barbas dated 13 February 2024;
(4)community supervision assessment of Katrina Czechowski dated 14 February 2024;
(5)addendum psychiatric report of Dr Gosia Wojnarowska dated 6 October 2024; and
(6)updated community supervision assessment of Aimee Goode dated 9 October 2024.
The State also tendered the following material:
(1)medical records of the respondent dated 14 October 2024;[10]
(2)progress medical notes of the respondent dated 14 October 2024;[11]
(3)NDIS comprehensive behaviour support plan dated 2 October 2024;[12] and
(4)request for X-Box dated 12 August 2024.[13]
[10] Exhibit 2.
[11] Exhibit 3.
[12] Exhibit 4.
[13] Exhibit 5.
The State called Dr Wojnarowska, Dr Barbas and Ms Goode to give oral evidence at the hearing of the review application.
The respondent elected not to give or call any evidence.

Evidence of Dr Gosia Wojnarowska (Forensic Consultant Psychiatrist)

Dr Wojnarowska previously interviewed and assessed the respondent for the purposes of the earlier review hearings. For the purposes of this application, Dr Wojnarowska interviewed the respondent on 9 December 2023 for two hours and prepared a report dated 30 January 2024.[14] Dr Wojnarowska also prepared an addendum report dated 6 October 2024 following her interview with the respondent on 15 August 2024 for one hour.[15]
[14] Exhibit 1.2, pages 505 ‑ 520.
[15] Exhibit 1.3, pages 142 ‑ 156.
At the interview on 9 December 2023, the respondent was preoccupied with his physical symptoms. He talked spontaneously about his various medical conditions and said that he was not getting treatment as no‑one believed that he was in pain all the time.[16]
[16] Exhibit 1.2, page 512 [43] ‑ [44].
The respondent has recommenced psychological sessions monthly. Those sessions will increase if he is released and would focus on his deviant sexual thoughts of children.[17] The respondent stated that his main triggers were depression, not being appreciated, feeling low and not being listened to.[18]
[17] Exhibit 1.2, pages 512 ‑ 513 [45] ‑ [46].
[18] Exhibit 1.2, page 513 [47].
The respondent reported that his libido was 'very low' in the last year due to the pain he was experiencing and that he does not ejaculate when masturbating. He did acknowledge he continued to experience thoughts of children 'in the back of my mind' of a deviant sexual nature and agreed that his risk of reoffending was substantial.[19]
[19] Exhibit 1.2, page 513 [48].
Dr Wojnarowska undertook an assessment of the respondent's risk of serious reoffending using the Static‑99R, the Hare Psychopathy Check‑list - Revised (PCL-R) and Risk for Sexual Violence Protocol (RSVP) assessment tools.
Static‑99R is an actuarial tool that is intended to position offenders in terms of their relative degree of risk of sexual recidivism.[20]

[20] Exhibit 1.2, page 513 [61].

Dr Wojnarowska assessed the respondent's score on the Static‑99R tool as 'Well Above Average Risk' range. His score was reduced by two points from his previous assessment due to his age.[21]
[21] Exhibit 1.2, page 516 [65].
PCL‑R assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy.[22]
[22] Exhibit 1.2, page 515 [62].
Under the PCL‑R tool, Dr Wojnarowska reported that the respondent's total score was in the moderate range and the respondent did not meet the threshold score required for a finding of psychopathy or antisocial personality disorder.[23]
[23] Exhibit 1.2, page 516 [67].
Dr Wojnarowska reported that the respondent received scores predominately in the interpersonal domain, in relation to being manipulative, impulsive, irresponsible, and lacking empathy. Dr Wojnarowska is of the opinion that interpersonal factors of psychopathy are highly relevant in the respondent's management in the community and require specific attention and understanding by his support workers.[24]
[24] Exhibit 1.2, page 516 [67].
The RSVP is a clinical judgment framework that requires consideration of a number of separate factors or domains. Dr Wojnarowska assessed the respondent against a number of risk related factors. These included sexual violence history, psychological domain, mental disorder, social adjustment, problems with treatment and manageability.[25]
[25] Exhibit 1.2, pages 517 ‑ 518 [68] ‑ [75].
In relation to sexual violence history, Dr Wojnarowska stated that the respondent's offending commenced when he was 17 years old and continued until the age of 36, when he was imprisoned indefinitely. The respondent had offended against 12 children with the majority being stranger males, however, the respondent himself has reported there are other victims he offended against for which he has never been charged. The respondent reoffended within one year of release after completing a sex offender treatment program. Dr Wojnarowska stated the respondent's sexual offending was characterised by predatory and opportunistic behaviours.[26]
[26] Exhibit 1.2, page 516 [68].
Dr Wojnarowska stated that the respondent has insight into the processes that place him at risk of sexual offending. In her opinion, the respondent's sexual interest in children is unlikely to shift in the future. The respondent does not display any evidence of minimisation or denial of sexual violence and he does not have attitudes that support or condone the use of sexual violence.[27] The respondent has started to develop appropriate coping strategies and accepts the supports he will have available to him in the community.
[27] Exhibit 1.3, page 153 [70].
The respondent's history and presentation is consistent with the presence of sexual deviance, paedophilia, exclusive type, attracted to males and females.[28] Exclusive type means that the respondent is not attracted to adults and indicates higher levels of sexual deviancy.[29]
[28] Exhibit 1.3, page 151 [59].
[29] ts 322.
The respondent told Dr Wojnarowska that his physical disabilities and the presence of a support worker 24 hours a day would prevent him from reoffending. The respondent presents as passively agreeing to comply with a supervision order, but places responsibility on others to prevent him from reoffending.[30]
[30] Exhibit 1.3, page 151 [55] ‑ [56].
In relation to the respondent's behaviour in prison, between 7 February 2022 and 23 October 2022, he was involved in four incidents - two medical incidents/emergencies, one injury and one incident of misconduct for fighting with another prisoner. Between 23 October 2023 and 30 September 2024, he was involved in a further two incidents. The respondent was charged with fighting a prisoner (hitting him with his walking frame) and another incident relating to the respondent trading his milk with another prisoner for a TV.[31] The respondent reported that he had become bitter and twisted and had no tolerance for others anymore.[32]
[31] Exhibit 1.3, page 147 [29] ‑ [30].
[32] Exhibit 1.3, page 150 [47].
Dr Wojnarowska is of the opinion that, given the respondent is highly impulsive, there is a high risk of him offending when an opportunity arises. The respondent's likely risk scenarios are that he will commit an offence of the same type he has previously committed. The respondent is at risk of approaching an unsupervised child, engaging them in a conversation and impulsively abducting and sexually assaulting a child within minutes of approaching them.[33]
[33] Exhibit 1.3, page 155 [77].
The psychological and physical harm to a victim of the respondent's offending would be significant.[34] This risk, in her opinion, can only be mitigated by the presence of support workers 24 hours a day.[35] The fact that the respondent has reduced mobility may also reduce his risk of reoffending. However, it is difficult to predict the extent of the respondent's disability in the community given there is no clear medical reason for the respondent's reduced mobility. Further, Dr Wojnarowska is of the opinion that the respondent is still capable of moving around and utilising public transport and ride sharing services.[36] This increases the risk of him opportunistically offending. Dr Wojnarowska recommends that public places, including public toilets, should be checked for the presence of children before the respondent attends those places.[37]
[34] Exhibit 1.3, page 155 [79].
[35] Exhibit 1.3, page 154 [74].
[36] Exhibit 1.3, page 155 [80].
[37] Exhibit 1.3, [84] ‑ [85].
Dr Wojnarowska recommends that, if the respondent were released into the community on a supervision order, that:[38]
(1)the respondent should continue to receive psychological counselling focussing on emotional management, risk management and his sexual interest in children;
(2)the respondent should continue treatment with selective serotonin reuptake inhibitor (SSRI) medication, although testosterone suppressant medication would be superior;
(3)the respondent be provided with 24‑hour supervision with the staff supervising him being fully appraised of his offending and the imminent risk to children if he is not supervised. Staff should be advised that public places need to be checked for the presence of children. Staff should be frequently debriefed as the respondent can present as pleasant and innocuous; and
(4)the respondent should be subject to the supervision order until he is physically incapable of moving without assistance.
[38] Exhibit 1.3, page 156 [82] ‑ [84].
Dr Wojnarowska gave the following oral evidence at the hearing of the application.
Dr Wojnarowska gave evidence that prison staff had confirmed to her that the respondent had limited mobility and that he had not been seen walking independently.[39] When questioned about whether the respondent's self‑reported bitterness would have any impact on the risk of the respondent reoffending if released on a supervision order, Dr Wojnarowska said that it would not because the bitterness stems from being in prison for a long time and is directed towards prison officers and other prisoners. She said she would expect that bitterness to abate in the community.[40]
[39] ts 320.
[40] ts 321.
Dr Wojnarowska gave evidence that the respondent does not have any major cognitive impairments and has the cognitive capacity to understand the conditions of the proposed supervision order. She said that the respondent is currently willing to be compliant with the conditions of the supervision order.[41]
[41] ts 321.
Dr Wojnarowska said that the respondent is able to present as innocuous, that he is highly manipulative and that his carers would need to be made aware of those traits and receive appropriate supervision while managing the respondent.[42] Dr Wojnarowska anticipated that there would be regular multi‑agency meetings during which the respondent's behaviour in the community would be scrutinised and his carers will be given appropriate advice on how to identify and deal with his high risk behaviours. She also said that the carers should have a direct contact with COMU to report any concerns about the respondent's behaviour.[43] Dr Wojnarowska does not expect the carers to stop the respondent from offending, but considers that the very presence of a carer 24 hours a day would be sufficient to mitigate the risk of him reoffending.[44]
[42] ts 322.
[43] ts 322.
[44] ts 322.
Dr Wojnarowska gave evidence that the respondent presents as very passive, that he does not have anti‑social traits, he does not have a problem with authority and that he has not demonstrated any oppositional behaviour.[45] She is of the view that there is a good chance that the respondent will be compliant with the proposed supervision order conditions if he is released.[46]
[45] ts 323.
[46] ts 328 ‑ 329, 333.
In Dr Wojnarowska's opinion the optimal dose of SSRI medication for the respondent is 100 to 150 mg.[47] She gave evidence that the respondent is, in her opinion, likely to be compliant with taking his SSRI medication as directed.[48]
[47] ts 324.
[48] ts 325.
Dr Wojnarowska said that the respondent did not, in her view, pose an immediate or serious risk to any adult, including a carer.[49] She said it did not matter whether his carers were male or female.[50]
[49] ts 326.
[50] ts 326.
Dr Wojnarowska gave evidence that the length of the supervision order should be at least 10 years, and then be reviewed to determine if the respondent was still capable of independent movement.[51]
[51] ts 327.
Dr Wojnarowska considers that all the proposed supervision order conditions are necessary to manage the respondent's risk of reoffending in the community. She said that the proposed condition that the respondent 'not leave or be away from [his] approved address unless accompanied by a person approved in advance by [his] CCO' was necessary because if he was on his own, he may venture to places where children are present. This would increase his risk of deviant sexual fantasies and in turn increase his risk of imminent offending against children.[52]
[52] ts 328.
Dr Wojnarowska expressed concerns about the respondent being released on a supervision order close to Christmas. She also said that the respondent should be restricted from going to places where he had offended in the past, that being places where children are likely to congregate, for example swimming pools, shopping centres after school hours and parks.[53]
[53] ts 328 ‑ 329.
Dr Wojnarowska gave evidence that the sadistic and homicidal fantasies that the respondent revealed to her in an interview years ago related predominantly to prison staff and were due to perceived insults and the respondent's feeling of victimisation. In her view, the respondent's carers would be in a very different position from the prison staff, the latter having full control over him and, at times, exhibiting punitive behaviour. Dr Wojnarowska said that the respondent is aware that his carers are there to care for him and sadistic and homicidal thoughts about someone who he perceives cares for him would be unusual.[54]

Evidence of Dr Sarah Barbas (Senior Clinical and Forensic Psychologist)

[54] ts 337.

Dr Barbas interviewed the respondent on 9 January 2024, 16 January 2024 and 30 January 2024 for a total time of three and a half hours. Dr Barbas also interviewed Mr David Summerton, a senior counselling psychologist, for one hour and Ms Katrina Czechowski, senior community corrections officer, for one hour. Dr Barbas prepared a treatment progress report dated 13 February 2024. At the time of that report, the respondent had seen Mr Summerton 19 times since his last restriction order hearing.[55]
[55] Exhibit 1.2, page 492 [8] ‑ [15].
Mr Summerton reported the following observations of the respondent:[56]
(1)the respondent tends to focus on relatively innocuous incidents in order to manufacture situations which leave him feeling aggrieved;
(2)the respondent has a long‑term sexual interest in children, an interest that has been all consuming in the past;
(3)the respondent intends to rely on support staff to be aware of his triggers and warning signs and to manage high risk situations for him in the community;
(4)the respondent's level of sexual arousal has likely reduced over time due to his declining physical health and age; and
(5)the respondent has an interpersonal style that tends to alienate others and he frequently comes offside with staff engaged in his care.
[56] Exhibit 1.2, pages 495 ‑ 496 [23] ‑ [29].
The respondent reported to Dr Barbas that he fantasises about children during masturbation, which he does about once a month, and is aroused by thoughts of violent sexual intercourse. The respondent believes that he uses masturbation as a form of coping with boredom.[57] The respondent has awareness of his high risk of offending when he is in the presence of children. The respondent told Dr Barbas that being around children or seeing children can trigger him to have a sexual fantasy. The respondent said that he would alert others to remove him from these situations. He said that carers should be made aware of his risk in these circumstances and have distractions and removal plans in place.[58]
[57] Exhibit 1.2, page 499 [38].
[58] Exhibit 1.2, page 499 [39].
Dr Barbas is of the opinion that the respondent's sexualised behaviour appears to have reduced with the passage of time given the respondent's age and decline in his physical health. This is a consistent report from others, ie his psychologist, medical professionals, and community corrections officer.[59] However, the respondent has an ongoing deviant sexual interest in children and uses sex as a form of coping with negative emotions. The respondent is dependent on external controls to manage his associated risks.[60]
[59] Exhibit 1.2, page 501 [48].
[60] Exhibit 1.2, page 501 [48].
In relation to his behaviour in prison, the respondent is described as respectful to staff and peers, that he interacts well with other units and seeks supports when required.[61] The respondent has had one negative incident since his last review in which the respondent, in response to being taunted by another prisoner, used his walking frame to make contact with the other prisoner's torso. The two of them then got into a tug of war. The respondent acknowledges that he could have managed the situation better by walking away and going back to his unit to use his meditation techniques to regulate his emotions.[62]
[61] Exhibit 1.2, page 493 [16].
[62] Exhibit 1.2, pages 493 ‑ 494 [17].
Dr Barbas is of the opinion that if the respondent is placed on a supervision order, he will require a multi‑disciplinary care team. In her view, it is important that NDIS and support services be involved with the wider risk management group responsible for the respondent.[63]
[63] Exhibit 1.2, page 503 [55].
The respondent told Dr Barbas that he would comply with instructions from his carers and that he was confident that he could cope in the community. The respondent recognises that he will need a lot of support initially if he is released on a supervision order and will not have an issue complying with supervision and supportive requirements.[64]
[64] Exhibit 1.2, page 501 [46].
Dr Barbas gave the following oral evidence at the hearing of the application.
Dr Barbas confirmed that the respondent has had a further two sessions with Mr Summerton since her last report and that Mr Summerton will continue to provide support to the respondent's multi‑agency risk management team, including supporting the respondent in his adjustment to the community.[65]
[65] ts 340 ‑ 341.
Dr Barbas referred in evidence to the comprehensive behaviour support plan prepared by Ms Bhargava of NDIS.[66] Dr Barbas said that this plan outlines the unique risks of the respondent and plans for treatment and management of those risks.[67]
[66] Exhibit 4.
[67] ts 344.

Evidence of Ms Aimee Goode (Team Leader, Community Offender Monitoring Unit (COMU))

Ms Goode, together with Katrina Czechowski and Tara Jones of COMU endorsed a community supervision assessment report dated 14 February 2024 (CSA Report).[68]
[68] Exhibit 1.2, page 521.
The CSA Report summarises the respondent's progress since the last review, the respondent's behaviours that require management and strategies to manage those behaviours. The CSA Report also provides a proposed community supervision plan.
The respondent reported to the COMU team that he had continued sexual attraction towards children, although that had been reducing in frequency. The respondent, when asked how he would cope with being in the company of children unsupervised, said he would just walk away.[69]
[69] Exhibit 1.2, page 523.
The CSA Report sets out the details of the NDIS plan that has been approved for the respondent. This plan provides funding for 24/7 disability support upon the respondent's release to the community.[70] The CSA Report also confirmed that the respondent had accommodation available to him through [REDACTED] at [REDACTED] which would require mobility modifications.[71]
[70] Exhibit 1.2, page 468.
[71] Exhibit 1.2, page 528.
Ms Goode and Ms Sarah Turner of COMU endorsed an updated community supervision assessment report dated 9 October 2024 (Updated CSA).[72] The Updated CSA provides an update on the respondent's proposed accommodation, anti‑libidinal mediation, prison behaviour and COMU's contact with the respondent.
[72] Exhibit 1.3, page 157.
The Updated CSA confirms that COMU have been liaising with [REDACTED] in relation to the respondent's proposed accommodation. The required property modifications have been completed and have been inspected by COMU staff, the respondent's occupational therapist and positive behaviour support clinician. The respondent has received periodic visits from [REDACTED].[73]
[73] Exhibit 1.3, page 158.
The Updated CSA confirms there has not been any change to the respondent's NDIS funding. The respondent is required to be reassessed before his plan is due to expire to affirm the level of funding. The NDIS support is for the respondent's disability needs, not for supervision of his risk of reoffending.[74]
[74] Exhibit 1.3, page 158.

The Updated CSA confirms the respondent is allocated for individual psychological counselling with Mr Summerton.[75]
[75] Exhibit 1.3, pages 158 ‑ 159.
The Updated CSA details that the respondent self‑reported that he is taking 100 mg of his SSRI medication and that he understands it will be increased by 50 mg up to 200 mg. Testing of the respondent can only identify the presence of the SSRI medication but not the level present.[76]
[76] Exhibit 1.3, page 159.
Ms Goode gave the following oral evidence at the hearing of the review application.
Ms Goode confirmed that the respondent had commenced taking an SSRI and that there was a planned staggered increase in the dosage of that medication.[77]
[77] ts 351; Exhibit 2.
Ms Goode gave evidence that the respondent did accept it was his responsibility to comply with a supervision order and stay away from children, but he did not have an ability to express to her how he could do that himself. She said that, prior to the respondent being released on a supervision order, COMU would work with the respondent to come up with strategies to avoid offending and prepare for being in the community. Ms Goode said that it is not the responsibility of the NDIS funded team to work through strategies with the respondent to avoid offending. Ms Goode said that, if the supervision order proposed conditions are granted, the respondent will have at least weekly contact with an officer from COMU to ensure there is time to start working on these strategies before the respondent's release.[78]
[78] ts 352 ‑ 353.
Ms Goode gave the following evidence in relation to the training of the carers:[79]
[79] ts 355 ‑ 356.
(1)the comprehensive behaviour support plan[80] is the main document that commences training of the carers for the respondent. The respondent's carers would always have access to this document, both at the respondent's accommodation and at the [REDACTED]'s offices;
[80] Exhibit 4.
(2)Ms Bhargava and COMU will commence training of the carers if the court makes a supervision order. That training can be repeated as Ms Bhargava sees fit, if, for example, there are incidents that are occurring, that require the training to be repeated;
(3)COMU have disclosed the respondent's serious offending that has resulted in his declaration as a high risk serious offender to all of the agencies that have met with the respondent;
(4)if a supervision order is made, the conditions of the supervision order and the serious offending risk factors of the respondent would be disclosed to those agencies;
(5)COMU do the first hour of the training, and then the occupational therapist and positive behaviour support clinician do two hours to make it a three‑hour training session for the care team;
(6)COMU have experience working with [REDACTED] and are aware of its rostering system - they require two training sessions so that not all of the care team have to be there on the same day;
(7)COMU communicate their expectations to the agencies with regards to escalating anything that might be a potential contravention of a supervision order;
(8)training includes working through strategies in an active learning approach with the carers so that they can understand what their role is under the NDIS funding;
(9)there would be minimum of eight and up to 20 carers allocated to the respondent;
(10)the training of the staff can be done within a 28‑day minimum period; and
(11)in the training, COMU will relay their contact details to the carers and provide a 24/7 1800 number to the respondent that he can call if he feels he can no longer comply with conditions of the supervision order.
Ms Goode said that the NDIS agencies have concerns with regards to the respondent's release close to the festive period as integrating him into the community at that time will mean a very high likelihood of incidental contact with children.[81]
[81] ts 357.
Ms Goode gave evidence that COMU has requested the NDIS team to compose a schedule for the respondent and provide that to COMU in advance so that COMU will automatically know the respondent's movements and then corroborate with the global positioning system electronic monitoring database that he has gone out at those times. Ms Goode said that, in the event there is nothing on that schedule that corresponds to the respondent's movements, then the first point of inquiry will be to the respondent to check if he has left the residence. If the NDIS care team call and inform COMU that the respondent has left the residence despite their prompting him about his supervision order, it will be investigated as a contravention of the supervision order.[82]
[82] ts 359.
Ms Goode gave evidence that the respondent has indicated that he is willing to comply with any of the conditions of the supervision order and that he has been very honest about his potential struggles and the support he would need to comply with the conditions.[83]
[83] ts 364.
Ms Goode confirmed that the respondent's carers would be aware, pursuant to proposed order 62 of the supervision order, that the respondent is not permitted to attend a public toilet unless he is with a carer and that the carer would be told that the toilet needs to be a stand‑alone disabled toilet if that is available.[84]
[84] ts 369.

Findings

Is the respondent a high risk serious offender?

Counsel for the respondent conceded on behalf of the respondent that if the respondent was not subject to a restriction order there would be an unacceptable risk that he would commit a serious sexual offence. I accept, based on the evidence I have summarised above, the respondent has demonstrated a propensity to commit sexual offences against young children. In the opinions of the expert witnesses, the respondent's risk of sexual offending against young children remains very high and has not changed significantly since his last review. The respondent's concession that he is a HRSO is properly made, and I make that finding.

Should I make a CDO or a supervision order?

In determining which order is appropriate, the paramount consideration is the protection of the community. I need to take into account the nature of the respondent's risk of reoffending and whether that risk can be reduced to an acceptable level by conditions of a supervision order. The respondent must also satisfy me that he would substantially comply with the standard conditions of a supervision order.
On the last review in 2022, Hall J was of the view that the respondent's risk of reoffending could only be adequately managed with a very high level of supervision and support, which at that time was not available due to a lack of funding and suitable accommodation.[85]
[85] [REDACTED] [78] ‑ [79].
His Honour made the following recommendations at the last review:[86]
(1)counselling - the respondent be given the opportunity to reengage with counselling;
(2)education - efforts be made for the respondent to access appropriate educational opportunities and if no suitable opportunities are available then consideration be given to remote or distance learning opportunities;
(3)NDIS - COMU to continue to liaise with the National Disability Insurance Agency (NDIA) with a view to obtaining a transitional funding assessment and in particular whether funding can be provided to support independent living;
(4)management plan - there would be benefit in resuming the unit manager check‑up procedure in prison to give the respondent the opportunity to air his grievances. This should be treated as an opportunity and not a requirement should the respondent choose not to do so;
(5)medication - the respondent's medication regime be reviewed with a view to increasing it to achieve anti‑libidinal effects as recommended by Dr Wojnarowska and referral to a psychiatrist to consider anti‑libidinal medication options; and
(6)self‑care - it would be desirable for the respondent to have the opportunity to acquire and test independent living skills, preferably in conjunction with psychological counselling.
[86] [REDACTED] [86].
Since the last review there have been the following significant changes in the respondent's circumstances:
(1)the respondent has been granted NDIS funding for 24 hours a day, 7 days a week, one‑on‑one independent living support until 30 January 2025;
(2)the respondent's mobility is reduced and he uses a wheelchair;
(3)the respondent has accommodation available which has the necessary structural modifications for the respondent's mobility aids;
(4)the respondent has consistently engaged in psychological counselling sessions with Mr Summerton; and
(5)the respondent has commenced taking anti‑libidinal medication and is increasing the dosage of that medication as recommended by Dr Wojnarowska.
It is important to recognise that the purpose of the NDIS funding is not to supervise the respondent within the community for the purposes of preventing him reoffending. Having said that, the fact that the respondent has funding for 24/7 one‑on‑one support does significantly reduce his opportunity to reoffend. It also provides the respondent with support within the community which reduces the presence of triggers which the respondent has identified as being a risk of him offending - those being predominantly boredom and frustration.
I can only make a supervision order if I am satisfied that the respondent would substantially comply with the standard conditions of a supervision order. The respondent bears the onus of proving, on the balance of probabilities, that he will do so.
The respondent has previously committed offences while he was on bail. However, the respondent has been in custody for a significant period and there have been significant changes in his circumstances since his last offending, most notably his decreased mobility, his NDIS funding, the availability of appropriate accommodation, and his taking of anti‑libidinal medication.
The respondent has also shown insight into why he was perceived to be a risk to the community. He has identified triggers that cause him to be at risk of sexually offending against children - those being boredom and frustration. The respondent also indicated to Dr Wojnarowska that although he was not happy with so many restrictions, he was willing to comply with them.[87] Dr Wojnarowska, Dr Barbas and Ms Goode all expressed the opinion that the respondent is able to understand the conditions of the proposed supervision order and is likely to comply with the standard conditions thereof given his passive, non‑oppositional personality.
[87] Exhibit 1.3, page 150 [50].
On the evidence before me, the respondent has satisfied me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order. In particular, I am satisfied that he will comply with the standard conditions set out in s 30(2) of the HRSO Act in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that he will commit a serious offence.
In my view, a supervision order will afford adequate protection for the community for the following reasons.
Firstly, there will always be a carer present with the respondent - this will reduce the opportunity for the respondent to commit a serious offence. The presence of a carer always will serve as a deterrent to the respondent from further serious offending. Although carers cannot prevent the respondent from leaving their care, they can immediately alert COMU to the fact that he had done so. The respondent's carers will receive disclosure of the respondent's sexual offending history and receive training on how to recognise his risk factors and implement strategies to deal with them.
Secondly, the respondent's decrease in mobility reduces the opportunity for him to offend in the same manner he has previously - that is by taking children from public places or by isolating them from an adult. The respondent has self‑reported that due to his pain and reduced mobility his sexual thoughts about children were not as frequent.
Thirdly, the respondent is taking anti‑libidinal medication. He is increasing the dosage to the recommended dose. Continued use of this medication will reduce the risk of the respondent reoffending.
Fourthly, the respondent has shown insight regarding his sexual attraction to children, admitting that it will always be there and that he needs to implement strategies to manage and distract himself.[88]
[88] Exhibit 1.2, page 523.
Fifthly, although the respondent has disclosed that he has previously had violent fantasies about adults, the evidence before me indicates that he does not pose a risk to his carers. The respondent's bitterness is directed towards prison officers, not towards people he perceives as caring for him. The respondent has never been violent towards adults. I am also satisfied, on the evidence before me, that he does not pose an unacceptable risk towards both male and female carers.
Finally, the State has provided me with 69 proposed conditions of a supervision order. They are annexure 'A' to these reasons. The conditions are extensive and onerous. I am, however, satisfied that they are necessary due to the risk of the respondent committing a serious offence if he is not subject to those extensive conditions. For example, condition 40 provides that the respondent is not to leave or be away from his approved address unless accompanied by a person approved in advance by his CCO. This is an important restriction on the movements of the respondent and gives protection to the community in that the respondent is not permitted to be in the community at any time without an approved person present.
I am therefore satisfied that there are conditions which could be imposed on the respondent which would reduce the risk of reoffending to an acceptable level. The respondent should be released on a supervision order and the conditions of the supervision order detailed in annexure 'A' are appropriate.
As to the length of the supervision order, Dr Wojnarowska expressed the opinion that it should be in place until the respondent is no longer independently mobile. In her oral evidence, Dr Wojnarowska said that the length of the supervision order should be 10 years.
It is not possible to predict how long it will be until the respondent is no longer mobile or how long it will be until he no longer poses a risk of sexually offending against children.
I am satisfied that the appropriate length of the supervision order is 10 years. I accept that during that period there is a possibility that the respondent's health may deteriorate or that his risk may reduce. In the event that occurs, the respondent may make an application to vary the supervision order.
There is also an issue as to the date upon which the respondent should be released on the supervision order. I am satisfied, on the basis of the evidence before me, that the respondent should not be released any earlier than 5 February 2025. That is for the following reasons:
(1)it is the first day of Term 1 of the 2025 school year which means that there will be periods during the school day that there are less children present in the community;
(2)it will allow time for the respondent's carers to receive training; and
(3)it will allow time for the respondent to work with his CCO to develop strategies to deal with high risk situations in the community.

Conclusion

For all the reasons above, I find the respondent continues to be a HRSO. I find the CDO imposed by Hall J on 7 February 2022 should be rescinded and the respondent be released to a supervision order in the terms stated in annexure 'A' to commence on 5 February 2025.

ANNEXURE A

The RESPONDENT must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, within 48 hours of the Order being issued and advise the officer of your current name and address;
Report to and receive visits from, a CCO as directed by the court;
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a CCO, which includes, complying 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 CCO;
Not commit a serious offence during the period of the Order;
Be subject to electronic monitoring under section 31;

ADDITIONAL CONDITIONS

Residence

Take up residence at [address suppressed] 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;

Reporting to a CCO and supervision by a CCO

Report to a CCO at your approved release address within normal business hours on the day of release from custody under this Order;
Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO;
Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of you;
Not to commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO;

Attendance at programs or treatment

Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO;

Reporting to WA Police

Report to the Officer-in-Charge of the Sex Offender Management Squad at 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 at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate;
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA);
If requested, permit Police Officers to enter and search your residence and search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order;
Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020 (WA);
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

Have no contact, directly or indirectly, with the victims of your current 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;
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 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;

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 an offence under s 202, s 203, s 204, or s 557K of the Criminal Code 1913 (WA);
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA);
Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse Of Drugs Act 1981 (WA) 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 (WA) and your use is in accordance with the instructions of the provider;
You must not assault or threaten any member of the departmental staff or an agent providing a service on behalf of the Department of Justice;

Curfew

Be subject to a curfew, pursuant to s 32 of the High Risk Serious Offenders Act 2020 (WA), 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 verge 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;

Medications/Mental Health

Undergo medical treatment, as directed by the CCO in consultation with a medical practitioner or medical practitioners;
Comply fully with any treatment prescribed pursuant to Condition 32 and comply with all testing to monitor your compliance with medical treatment as directed by a CCO;
Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO;
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice;
To engage with the National Disability Insurance Scheme as directed by a CCO (unless you elect to discharge from the voluntary scheme) and comply with the instructions of the National Disability Insurance Scheme with regards to service provision;

Prevention of high-risk situations

Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
Maintain a daily diary of your movements, activities and associations if and as requested by the CCO and present this diary to the CCO and Police Officers upon request;
Provide a verbal or written account of your projected movements to your CCO as and when directed by your CCO; with exception of the following circumstances:
a)to obtain urgent medical or dental treatment for yourself;
b)for the purpose of averting or minimising a serious risk of death or injury to the respondent or another person;
c)to obey an order issued under a written law (such as summons) requiring your presence elsewhere;
d)at the direction of a CCO or Police Officer;
Not to leave or be away from your approved address unless accompanied by a person approved in advance by your CCO.
With the exception of public transport, not to be in or on a vehicle with any person who is unaware of your offending history, unless the identity of such person is approved in advance by the CCO;
Not to enter in or on any vehicle, including public transport, where a child under the age of 18 years is present, unless approved in advance by a CCO;
Not purchase or possess or consume 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 minimizing 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.
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 45;
Not to remain in the presence of any person who you know, or ought to know, to be affected by alcohol or prohibited drugs, that has children under the age of 18 years in their care, unless the identity of such person is approved in advance by the 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 enter the premises of, or access the services of, escort agencies or sex workers, unless approved in advance by a 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, the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person;
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;
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 to 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, Possession of images depicting a child or children on items such as household items or items in your household that are not explicitly yours, may be authorised by a CCO. You are directed to review and remove any items that you have in your prison property within 48 hours of your release to this Order and then your compliance will be confirmed by your CCO and or WA Police;
Not access the internet for, nor collect or be in possession of any document, paper, or any other medium used for displaying words, either in the written or printed form, that describes sexual activity with a child and/or children;
Not to access online social media (websites or applications) unless approved in advance by a CCO. Due to the progressive development of social media, you are to enquire with your CCO if a website or application is considered social media and this will be defined for you, therefore you will not inadvertently contravene this condition if you are enquiring with your CCO and access the public component of any website or application; you must however not progress to gain a login (temporarily or otherwise) unless you have explicit CCO approval to do so;
Not to be in possession of any pornographic material either hard copy of digital form, or access or view pornography on the internet;
Whilst in any public place or in view of a public place, not be in possession of any animate or inanimate item capable of constituting an enticement to children, unless such possession is for legitimate purpose and approved in advance 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;
Not to attend any public toilet unless approved in advance, or unless you are in the company of an adult, who has been approved in advance by a CCO;
If you are in a location frequented by children that has children present, without prior approval of the CCO you are to remove yourself from such location immediately;
Not be within 50 meters of a school between 7:30am to 9:30am and 2:30pm to 4:30pm on school days, unless prior approval by a CCO or unless you have a reasonable excuse;
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 65, 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 65, 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.
CB
Associate to the Hon Justice Whitby
18 OCTOBER 2024