The State of Western Australia v Stephens

[2020] WASC 200

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- STEPHENS [2020] WASC 200

CORAM:   TOTTLE J

HEARD:   30 APRIL 2020

DELIVERED          :   15 JUNE 2020

FILE NO/S:   DSO 6 of 2019

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

PAUL ANDREW STEPHENS

Respondent

Catchwords:

Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Division 2 hearing - Application for continuing detention order or supervision order - Whether unacceptable risk of the respondent committing a further serious sexual offence - Whether the respondent is a serious danger to the community - Whether indefinite detention order or supervision order appropriate

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
Evidence Act 1906 (WA), s 106A, Sch 7

Result:

Order made that the respondent be detained in custody for an indefinite term for control, care and treatment

Category:    B

Representation:

Counsel:

Applicant	:	B Meertens
Respondent	:	N Barber

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	NR Barber Legal

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

Director of Public Prosecutions (WA) v Decke [2009] WASC 312

Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307

Director of Public Prosecutions (WA) v Hart [2019] WASC 4

Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

GBT v The State of Western Australia [2019] WASCA 40

Italiano v The State of Western Australia [2009] WASCA 116

The State of Western Australia v Corbett [No 5] [2017] WASC 115

The State of Western Australia v Narrier [No 5] [2019] WASC 17

The State of Western Australia v Newland [2018] WASC 344

The State of Western Australia v West [2013] WASC 14

TOTTLE J:

Introduction

1. This is an application for a Div 2 order under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). The respondent, Mr Stephens, is 54 years of age and until 1 June 2020 was serving a term of imprisonment imposed in respect of serious sexual offences and other offences.

2. On 23 July 2019 the applicant applied under s 8 of the Act for preliminary orders under s 14, and for a Div 2 continuing detention order or a supervision order under s 17.

3. On 23 August 2019, after a preliminary Div 1 hearing, Fiannaca J determined that there were reasonable grounds for believing that the court might find that Mr Stephens is a serious danger to the community under s 7(1) (Mr Stephens did not contest the issue).  Pursuant to s 14(2)(b), his Honour made an interim detention order that Mr Stephens be detained in custody until the final determination of the application.

4. The issues to be determined are:

   (a)whether Mr Stephens is a serious danger to the community within the meaning of the Act; and

   (b)if so, whether he should be:

   (i)detained in custody for an indefinite term for control, care, or treatment (continuing detention order); or

   (ii)released into the community subject to conditions that the court considers appropriate (supervision order).

5. I have determined that Mr Stephens is a serious danger to the community (as he properly conceded that he is).  I have determined that Mr Stephens should be the subject of a continuing detention order.

The evidence

1. The State tendered a two volume book of materials containing relevant information on Mr Stephens' prior offending, previous reports and decisions, and reports prepared for this hearing.  The reports prepared for the purpose of this hearing were the reports of Dr Peter Wynn Owen, a consultant forensic psychiatrist, Ms Julie Hasson, a forensic psychologist, Dr Ben Bannister, a forensic psychologist, and Mr Kyle Jarvie, a senior Community Corrections Officer with the Community Offender Monitoring Unit.  I make more detailed reference to these reports later.

2. Dr Wynn Owen, Ms Hasson, Dr Bannister and Mr Jarvie each gave oral evidence at the hearing of the application and were cross‑examined by Mr Stephens' counsel.  Mr Stephens adduced no evidence.

Relevant provisions and legal principles

1. Pursuant to s 17(1) of the Act, the court must make a Div 2 order if the court finds that the offender is a serious danger to the community.  Before the court may make such a finding, the court must be satisfied under s 7(1) that there is an unacceptable risk if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.  If this condition is satisfied, it will necessarily follow that the person is a serious danger to the community.[1]

   [1] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21] (Steytler P & Buss JA); Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66], [68]; The State of Western Australia v Newland [2018] WASC 344 [12]; GBT v The State of Western Australia [2019] WASCA 40 [21].

2. Section 3 of the Act provides that the term 'serious sexual offence', as used in s 7(1), has the meaning given to it in s 106A of the Evidence Act 1906 (WA), which provides that the phrase means, inter alia, an offence mentioned in pt B of sch 7 of the Evidence Act 1906 for which the maximum penalty is 7 years' imprisonment or more.

3. Determining the existence of an 'unacceptable risk' under s 7(1) involves a balancing of considerations requiring the court to have regard to, on the one hand, among other things, the nature of the risk, the potential serious consequences for the victim if the person commits a serious sexual offence, and the likelihood of the risk coming to fruition.  On the other hand, the court must consider the serious consequences for the person if a continuing detention order or supervision order is made.[2]

   [2] Italiano v The State of Western Australia [2009] WASCA 116 [46].

4. The risk of the person committing a serious sexual offence must be found to be so unacceptable that it is deemed necessary in the interests of the community to ensure that the person is subject to further control or detention, notwithstanding that the person has already been punished for the offences they have committed.[3]  The powers under the Act are not to be used for the purpose of imposing additional punishment, but for the ultimate purpose of community protection.  The community may be protected through continuing control over the offender, and may also be protected by provision of care and treatment, which may lessen the danger to the community or sections of, provided to the offender while in custody.[4]

   [3] DPP (WA) v Williams [63]; GBT v The State of Western Australia [21].

   [4] DPP (WA) v GTR [97] (Murray AJA).

5. Section 7(2) of the Act provides:

   The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied ˗

   (a)by acceptable and cogent evidence; and

   (b)to a high degree of probability.

6. The 'high degree of probability' standard is a lesser standard than the standard of beyond reasonable doubt but is higher than the standard of the balance of probabilities.[5]  This does not mean that the risk of the person committing a serious sexual offence must be greater than 50%.  A risk lower than 50% may still be unacceptable.  However, the court must identify 'what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence'.[6]

   [5] DPP (WA) v GTR [28].

   [6] DPP (WA) v GTR [34].

7. The court must have regard to each of the factors in s 7(3) of the Act in finding whether the person is a serious danger to the community pursuant to s 17(1).  The factors listed in s 7(3) are:

   (a)any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and

   (b)any other medical, psychiatric, psychological, or other assessment relating to the person; and

   (c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and

   (d)whether or not there is any pattern of offending behaviour on the part of the person; and

   (e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and

   (f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and

   (g)the person's antecedents and criminal record; and

   (h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and

   (i)the need to protect members of the community from that risk; and

   (j)any other relevant matter.

8. The court must make either a continuing detention or supervision order if the court finds that Mr Stephens is a serious danger to the community.  The paramount consideration in deciding between the orders is the need to ensure adequate protection of the community.  This does not equate to a pre-disposition to make a continuing detention order.  Other considerations also apply.[7]

   [7] The State of Western Australia v West [2013] WASC 14 [52]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].

9. The principles to be applied in determining whether a supervision order would adequately protect the community were summarised by Beech J, as his Honour then was, in Director of Public Prosecutions (WA) v DAL [No 2]:[8]

   (a)The use of the word 'adequate' in the section indicates that a qualitative assessment is required.

   (b)In considering the adequacy of a supervision order, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of Mr Stephens and his care and treatment.

   (c)The Act does not require that there be no risk of reoffending.  Such a requirement could never be met and would mean no person to whom the Act applies would ever be released.

   (d)The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.  That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.

   (e)If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, then, because the paramount consideration is the need to ensure the adequate protection of the community, the court must make a detention order.

   [8] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]; citing DPP (WA) v Williams [57], [86]; Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [20], [103], [107]; Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].

10. Section 17(3) of the Act requires that a supervision order must not be made unless the court is satisfied that, on the balance of probabilities, the offender will substantially comply with the standard conditions.  The term standard conditions is defined to mean a condition under s 18(1) that must be included in the order.  There are seven specified conditions which the court must include in any supervision order.  Mr Stephens bears the onus proving on the balance of probabilities, that he will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general object of adequate protection of the community by management and mitigation of the risk that Mr Stephens will commit a serious sexual offence.[9]

    [9] Section 17(4) of the Act; Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v Narrier [No 5] [2019] WASC 17 [113].

11. If, after reviewing all the evidence, the court is left in doubt as to whether a supervision order would adequately protect the community, then having regard to the paramount consideration - the need to ensure adequate protection of the community - it is necessary to make a continuing detention order.[10]

    [10] DPP (WA) v Williams [86].

12. A matter of significant practical importance is the availability of suitable accommodation in the event that a supervision order is made. In The State of Western Australia v Corbett [No 5],[11] Hall J observed:

    Accommodation for a person on a supervision order is not simply a place to live.  The location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending.  The absence of suitable accommodation makes it impossible to be satisfied that a supervision order is presently a viable option.

    [11] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].

Is Mr Stephens a serious danger to the community?

1. I turn to consider whether Mr Stephens is a serious danger to the community within the meaning of s 17(1) by reference to the factors specified in s 7(3).  It is helpful to begin with Mr Stephens' antecedents and offending history.

Antecedents and offending history - s 7(3)(g)

Antecedents

1. Mr Stephens was born on 16 May 1966 and is now 54 years old.  He is single, with no dependants.[12]

   [12] Based on the facts provided by the Applicant's Outline of Submissions for Preliminary Hearing and Annexure M of the supporting affidavit, the Psychiatric report of Dr Wynn Owen dated 15 April 2020, and the Psychological report of Ms Hasson dated 9 April 2020.

2. Mr Stephens has four siblings, and a half-brother.  He does not have any contact with his brothers, and his relationship with his sister is strained due to his offending.  He has not had contact with his father since the age of 18, and his attempt to reconnect with his mother some years ago was unsuccessful.

3. Mr Stephens was born in Queensland, where he lived with both parents until their separation when he was about seven years of age.  Mr Stephens reported that up until his parents separated he had a relatively 'normal' childhood.

4. Mr Stephens' father was a Vietnam veteran.  While his father was serving overseas, his mother had an extra-marital affair with his father's best friend.  His mother subsequently became pregnant by the best friend, and left Mr Stephens' father to marry the best friend.

5. Mr Stephens describes his father as a 'nice man' but says his mother was an alcoholic who would become physically violent when under the influence of alcohol.  Mr Stephens' relationship with his mother deteriorated as his mother became increasingly emotionally, physically and verbally aggressive, especially after his parents' separation.

6. Mr Stephens alleges that his stepfather sexually abused him approximately twice weekly.  When Mr Stephens disclosed the alleged sexual offending to his mother, she dismissed the allegations and stated that he was lying.  Mr Stephens reports the experience was very traumatic.

7. The alleged abuse, coupled with the violence perpetrated by his mother, caused Mr Stephens to become very angry.  Mr Stephens used alcohol and cannabis from the age of 12 as a coping mechanism which exacerbated his anger issues.  After the breakdown of her second marriage, Mr Stephens claims that his mother's drinking and physical abuse towards him became constant.  As a consequence, Mr Stephens' school behaviour became destructive and he took his anger out on his teachers.  Mr Stephens also claims that he was bullied as a result of his small stature and that, in turn, he was violent to other children.

8. Mr Stephens was sent to live with his father in Western Australia at 14 years of age because of his behaviour.  The relationship between Mr Stephens and his father became strained after his father failed to curb Mr Stephens' behaviour.

9. Mr Stephens left school on the completion of year 10.  From time to time thereafter Mr Stephens had paid employment, predominantly as a casual worker in service stations.  He reported that he enjoyed the solitary nature of this work and often chose to work the night shift.  Mr Stephens was, however, also unemployed for extended periods during which he received Centrelink benefits.

10. In about 1984 Mr Stephens moved from Western Australia to Manly in New South Wales, which he considers 'home'.  He returned to Western Australia some years later to support his sister who was a single mother of three young children.  Mr Stephens considered his sister his closest ally and support and remained close to her until she chose to end contact with him as a result of his repeated convictions.

11. Mr Stephens has never had a long term relationship, although he has experienced numerous brief relationships with limited emotional intimacy.  He reported that for most of his life relationships have not been a priority.  Mr Stephens has reported two longer relationships, both of a month duration, which ended poorly.  He reported difficulty forming relationships with the opposite sex.

12. Mr Stephens told Ms Hasson that he started smoking cannabis around the age of 13 and started drinking alcohol at the same age.  He reported to Dr Wynn Owen that he started smoking cannabis at the age of 16.  Mr Stephens told Ms Hasson that he 'loved' cannabis as it offered an escape from his life.  He made a similar observation to Dr Wynn Owen, commenting that cannabis enabled him to 'forget all about [his] troubles'.  His cannabis use was regular up to the time when he was placed in custody in 2005. 

13. Mr Stephens told Ms Hasson that he was under the influence of both cannabis and alcohol when he committed the 1999 offences.

Criminal record

Non-sexual offending

1. Mr Stephens has a limited history of non-sexual offending in Western Australia and in New South Wales.  Between 1987 and 2002 Mr  Stephens was convicted of: assaulting a police officer; violent/offensive behaviour on public transport; possession of a smoking implement; entering enclosed lands; contravening an apprehended domestic violence order; and destroying or damaging property.

Sexual offending

1. I will recount Mr Stephens' sexual offending chronologically rather than in the order in which he was convicted for the offences.

1993 - 1994 offending (Indictment No 2386 of 2018)

1. On 3 November 2019 Mr Stephens pleaded guilty to a charge of indecent dealing with a child over the age of 13 and under the age of 16 and was sentenced to seven months imprisonment.[13]  The sentence began on 1 November 2019.

   [13] The maximum penalty for this offence is 7 years imprisonment and it is a serious sexual offence for the purposes of the Act.

2. The offending occurred sometime between May 1993 and June 1994.  The circumstances were as follows:  Mr Stephens was the victim's rugby coach.  The victim had been watching a rugby match at Mr Stephens' home, during which time the victim consumed some alcohol.  Due to his intoxication he stayed at Mr Stephens' home overnight.  The victim fell asleep in Mr Stephens' bed, after which Mr Stephens got into the same bed and laid down next to the victim.  Mr Stephens placed his hand down the front of the victim's boxer shorts and fondled his penis.  This woke the victim, who left the bed and went to sleep on the couch.  Mr Stephens remained in the bedroom.

3. Mr Stephens described his life at the time of the 1993 offending as good.  He was working in a service station, living in a Homeswest flat and had a good social network.  Mr Stephens was equivocal about whether he had committed the offence.  When interviewed by Dr Wynn Owen Mr Stephens denied the offence but subsequently admitted to a doubt.  Dr Wynn Owen summarised Mr Stephens' attitude as follows:[14]

   Overall Mr Stephens' current attitude to the 1993 offence is one of denial, shifting between categorical denial and a statement that if the victim believed that it happened then perhaps it did, but that he had no recollection of the offending.  In the context of this denial Mr Stephens expressed no remorse for or victim empathy.

   [14] Exhibit 1, 941.

1. When interviewed by Ms Hasson Mr Stephens said he was not sure whether the 1993 offending had taken place but conceded that it could have happened and that is why he pleaded guilty.

1999 offending (Indictment No 522 of 2006)

1. The 1999 offending occurred on 16 July 1999.  The victims were three siblings, aged 11 (male), nine (female) and five (male) who were walking in bushland near their home.  They were approached by Mr Stephens who asked them for directions to a nearby water tank (a place he knew very well and to which he did not need to be directed). Mr Stephens then walked away.  A short time later Mr Stephens returned to the children who had sat down to eat and rest.  Mr Stephens was armed with a knife.  Mr Stephens engaged the children in conversation, but when they went to leave Mr Stephens grabbed the five-year-old boy and lifted him off the ground, pulled out the knife, a 10 cm bladed kitchen knife, and held it to the boy's throat.  He threatened to kill the boy by cutting his throat if all the children did not do what he said. 

2. While still carrying the youngest victim, he made the children come with him to a secluded storm water drain, and then forced the children into the drain.  He demanded that the two older children take off all their clothes.  While still holding the knife Mr Stephens sucked the 11‑year‑old male victim's penis, licked the nine-year-old female victim's vagina, forced the 11-year-old male to suck his penis and forced the nine-year-old female victim to suck his penis.  Mr Stephens then told the children to dress.  Once they were dressed Mr Stephens made the 11-year-old male victim sit on his lap, he then put his hand down the victim's tracksuit pants and groped his penis inside his underwear.  Mr Stephens then forced the nine-year-old female victim to sit on his lap, put his hand down her jeans and groped her vagina inside her underwear.  When he had finished, Mr Stephens forced the children to tell him their names and home address.  He told them that if they told anyone what he had done he would come to their house and kill them.  He then told the victims to leave and they complied.

3. Mr Stephens left Western Australia a few months later to live in New South Wales.  He did not return to Western Australia until 2003.

4. Following his arrest in 2005 Mr Stephens was connected to the offences by DNA and identification evidence.  Mr Stephens was interviewed and made substantial admissions in relation to the offending.  He was sentenced in the District Court on 7 June 2006 by Sleight DCJ to a total of 9 years' imprisonment cumulative on the existing term, on four charges of sexual penetration of a child under 13 years, two charges of indecent dealing with a child under 13 years, three charges of deprivation of liberty of the children, and two charges of threats to kill.

2005 offending (Indictment No 1226 of 2005)

1. Mr Stephens first met the victim, who was aged 12 years at the time, on 31 December 2004 when he saw him on a roof adjacent to a park and started talking to him.  They began spending time with each other from 1 January 2005.  The victim visited Mr Stephens' house on numerous occasions under the pretext of visiting Mr Stephens' fictitious son 'Tom', a fiction created so that the victim could visit without raising the suspicions of the victim's mother.  Mr Stephens had met the victim's mother, and he had told her that he was Tom's father and gave her his phone number.

2. The victim would often visit Mr Stephens' house alone before and after school.  The victim first stayed overnight at Mr Stephens' house in January 2005.  The sexual offending started at Mr Stephens' house.  It included fellating the victim's penis on five occasions, orally penetrating the victim on one occasion, sleeping in a shared bed frequently, fondling the victim's penis, encouraging the victim to play with his own penis in front of him, encouraging the victim to touch Mr Stephens' penis, and masturbating to ejaculation in front of the victim.

3. On 20 March 2005 the victim did not return home after school but went to Mr Stephens' house.  He was afraid to go home as he had been suspended from school that day.  He did not contact his mother, who became concerned and called Mr Stephens and was told by him that the victim had gone home.

4. The next day the victim was reported as a missing person.  That night the victim's mother attended Mr Stephens' home and again asked Mr Stephens if he had seen her son.  Mr Stephens replied that he had not, when in fact the victim was hiding in Mr Stephens' home.  After a short period of ignoring people coming to the door to find the victim, Mr Stephens took the victim to motels in Perth, where he continued to commit sexual offences against the victim.

5. On 8 April 2005 the police located Mr Stephens at his work premises in Kelmscott.  He admitted he had hidden the victim at his home and the motels when he knew that police were searching for him.  He was released without charge, and said that he would try to convince the victim to hand himself in to the police.

6. Instead Mr Stephens abducted the victim and left Western Australia with the intention of taking the victim to New South Wales.  Mr Stephens and victim were found in Port Augusta, and the victim was taken into care.

7. Mr Stephens was not taken into custody initially and was allowed to continue his journey.  He returned to Perth on 30 April 2005.  A few days later he was arrested and interviewed by the Child Abuse Investigation Unit.  Mr Stephens made full admissions about his sexual offending and abducting the victim.  The admissions were the only evidence of sexual offending, as when the victim was interviewed he denied that any offending had occurred, maintaining that he had brushed off Mr Stephens' advances.

8. Mr Stephens was sentenced in the District Court on 11 October 2005 by Kennedy CJDC to a total of 5 1/2 years' imprisonment on charge of having a sexual relationship with a child under 16 and one charge of fraudulent enticement of that child contrary to s 343(1) of the Criminal Code (WA). The sentence was backdated to commence on 2 May 2005.

9. Commenting on Mr Stephens' account of the 2005 offending Dr Wynn Owen observed:[15]

   Of particular note at interview in relation to the 2005 offending was Mr Stephens' frequent references to the victim's compliance and willingness, giving an impression of the victim's voluntary participation in the sexual abuse and abduction, and of multiple allegedly mutual decisions made along the way, in a way that seemed to gloss over the victim's age (12 and then 13 years) and intellectual maturity, and the highly skewed power dynamic.  The commentary in relation to the victim's compliance and even enjoyment of the offending is clearly minimisation.  Mr Stephens' frequent references to the victim's compliance also indicates an intellectual [misunderstanding], at best, of his apparently acknowledged manipulation and grooming of a vulnerable boy.

   [15] Exhibit 1, 939.

10. Ms Hasson also commented on Mr Stephens' grooming of the victim of the 2005 offending (using alcohol and cannabis, video-games and pornography).  Ms Hasson recorded that Mr Stephens admitted he had taken advantage of the victim's gullibility and naivety and had groomed him.

Prison behaviour

1. There are no charges of breaches of prison discipline between May 2005 and January 2020.  Although there was a report of alleged sexual misconduct in 2009 no misconduct was established and the report provides no basis for drawing any conclusions adverse to Mr Stephens. 

2. In 2015 Mr Stephens was reported to have been disruptive when working in the prison laundry and this led to a loss of the laundry job.  He subsequently worked in a solitary role as a painter and as an ablutions cleaner.

3. One matter of potential concern was raised in the Community Supervision Assessment Report prepared by Mr Jarvie.  Mr Jarvie reported that Mr Stephens had ten photographs on a pin up board in his cell.  Eight of the photographs were of children, predominantly pre‑pubescent boys aged between four and ten years.  One photograph included two adults and a child and the other photograph was of two adults.  The photographs appeared to be of members of the same family.  Mr Stephens said that the photographs were of his nephews and nieces and that he did not consider his possession of the photographs 'to be an issue' as he had not offended against the children in the photographs.  At the time Mr Jarvie compiled his report the veracity of Mr Stephens' explanation for possession of the photographs had not been established.  It is unfortunate that the issue was unresolved.  It is not a matter that I can take into account on this application.

4. Mr Stephens' prison disciplinary record discloses nothing that is materially adverse to Mr Stephens.[16]

Psychiatric reports prepared as required by s 37 of the Act - s 7(3)(a)

[16] Exhibit 1, 962 - 979.

1. In accordance with the orders that made by Fiannaca J, Mr Stephens has, pursuant to s 37(1)(a) of the Act, been examined and assessed by a qualified expert, namely Dr Wynn Owen.  Based on his examination and assessment of the respondent Dr Wynn Owen prepared a report pursuant to s 37(1)(b) of the Act.  Dr Wynn Owen was provided with all relevant material to enable him to carry out his examination and assessment of the respondent and to prepare his report.

2. Dr Wynn Owen examined and assessed Mr Stephens on two occasions for approximately five hours.

3. Dr Wynn Owen's psychiatric diagnosis was expressed by reference to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, DSM-V, 2013.  Dr Wynn Owen considered that Mr Stephens had the following disorders.

   (a)Paraphilia:  Paedophilic Disorder of a non-exclusive type, sexually attracted to both males and females:  paedophilic disorder diagnosed by (i) the presence of fantasies, urges or behaviours involving sexual activity with a prepubescent child/children over a period of at least six months when (ii) either the individual has acted on their sexual urges or the urges or fantasies cause distress or personal difficulty and (iii) the individual is at least 16 years of age and five years older than the child or children in (i).  DSM-V states that paedophilia per se appears to be a lifelong condition. [17]

   (b)General Personality Disorder (meeting DSM-V operational diagnostic criteria for both 'Avoidant and Antisocial Personality Disorders').[18]  Dr Wynn Owen considered that Mr Stephens' personality is characterised by both antisocial (a pattern of disregard for and violation of the rights of others in particular failure to conform to social or legal norms, deceitfulness, lack of remorse) and avoidant (a pervasive pattern of social inhibition, feelings of inadequacy and sensitivity to negative evaluation).

   [17] Exhibit 1, 950.

   [18] Exhibit 1, 950.

4. Dr Wynn Owen assessed Mr Stephens' risk of sexual reoffending by adopting a structured professional judgment approach that combined actuarial and non-actuarial risk assessment tools and frameworks in combination with a clinical psychiatric assessment and formulation.

5. The STATIC-99R is an actuarial tool designed to assess the long‑term potential for sexual recidivism amongst adult male sex offenders.  Mr Stephens' STATIC-99R score was 6, a score that is in the IVb or Well Above Average Risk range.  Dr Wynn Owen reported that in routine samples with the same score as Mr Stephens, the five‑year sexual recidivism likelihood is 20.5% (range 18.4 - 22.8%).  In addition, Dr Wynn Owen observed that Mr Stephens' 'frequency, diversity and duration of offending, his extensive outstanding treatment needs and having had no criminogenic intervention since mid-2010' should be considered as placing Mr Stephens in the 'high risk/high needs' cohort (HR/HN).  Dr Wynn Owen stated that offenders in this group who scored 6 had a 25.7% (21.5 - 30.3%) likelihood of reoffending and that the 10-year likelihood of reoffending in HR/HN offenders with the same score was 37.3%.[19]  Dr Wynn Owen provided additional context for the consideration of these likelihood estimates, commenting:[20]

   ... The likelihood of a male adult committing a first sexual offence is less than 1%.  In routine samples of sexual offenders, the average 5 year sexual recidivism rate is between 5% and 15%.  This means that out of 100 sexual offenders of mixed risk levels, 10 would be charged or convicted of a new sexual offence after 5 years in the community.  Conversely, 90 would not be charged or convicted of a new sexual offence during that time period.

RSVP framework

[19] Exhibit 1, 951.

[20] Exhibit 1, 951.

1. Dr Wynn Owen also assessed Mr Stephens using the Risk for Sexual Violence Protocol (RSVP) structured clinical judgment framework, including administration of the 'Hare Psychopathy Checklist-Revised'.  The RSVP risk factors are grouped under the headings:  Sexual Violence History, Psychological Adjustment, Social Adjustment and Manageability.

2. By reference to these headings Dr Wynn Owen's assessment was as follows.

3. Sexual Violence History: Dr Wynn Owen considered the following risk factors were present:

   (a)Chronicity of sexual violence - Dr Wynn Owen noted that chronicity refers to early onset, persistence and frequency of sexual violence and is the factor most reliably associated with recidivistic sexual violence among offenders.  Dr Wynn Owen described Mr Stephens' offending as having taken place in three clusters between 1993 and 2005.

   (b)Diversity of sexual violence - Dr Wynn Owen noted:[21]

   Diversity can refer to victim selection or type of offence or both.  With respect to victim selection Mr Stephens has:  offended opportunistically against stranger victims and further to grooming of known victims; he has also offended against both males and female victims.  In relation to the nature of offending he has offended with associated threats of violence and threats to kill and has offended without overt physical coercion.  Diversity in sexual offending is associated with an increased likelihood of future sexual offending.

   (c)Physical coercion in sexual violence - Dr Wynn Owen noted that Mr Stephens used his physical size and superiority, as well as a knife and threats to kill his victims.  Dr Wynn Owen noted that although this risk factor has not been found to directly relate to the risk of future violence it is an indicator of attitudes that condone sexual violence, sexual deviancy and psychopathy.

   (d)Psychological coercion in sexual violence - Dr Wynn Owen expressed the opinion that this factor was definitely present and noted Mr Stephens:[22]

   … has groomed the victims and their parents.  This behaviour appears to have persisted between 1993 and 2005.  Psychological coercion is associated with attitudes that support or condone sexual violence, problems with self-awareness, and sexual deviation although it has not been found to be a specific indicator of future offence risk.  It is an important guide to risk management in relation to conditions restricting access to potential victims.

   [21] Exhibit 1, 952.

   [22] Exhibit 1, 952.

4. Psychological adjustment:  Dr Wynn Owen considered the following risk factors were present:

   (a)Extreme minimisation or denial of sexual violence - Dr Wynn Owen expressed the opinion that this risk factor was definitely present.  In his report Dr Wynn Owen made numerous references to occasions on which, in the course of his conversations with Mr Stephens, Mr Stephens clearly and significantly minimised his offending.[23]  This included repeating that he did not sexually offend against the youngest male victim during the 1999 offences, or 'go all the way' with the other two sibling victims.[24]  The comments in relation to the youngest male victim were made notwithstanding the fact that Mr Stephens had forced the victim to witness the sexual abuse of his siblings and used the victim as a tool of coercion in that abuse.  In relation to the offending in 2005, Mr Stephens frequently referred to the victim's 'compliance and willingness'.   

   [23] Exhibit 1, 937, 938, 939, 946.

   [24] Exhibit 1, 937 - 938.

   Dr Wynn Owen noted that Mr Stephens:[25]

   [25] Exhibit 1, 953.

   … denies the 1993 offence to which he pleaded guilty in court, vacillating at interview between a stance of categorical denial and a statement that he does not remember anything happening.  In relation to other offending he makes reference to how much more serious his offending could have been in 1999 and the victim being a willing participant in 2005.  This risk factor is not related to reoffending risk but is an indicator of attitudes supporting or condoning sexual violence, lack of empathy and lack of remorse (these being associated with personality disorder and potentially psychopathy).  These attitudes can adversely impact ability to understand the seriousness of offending and motivation to address offending behaviour.  

   (b)Attitudes that support and/or condone sexual violence - Dr Wynn Owen found this risk factor to be present and noted that:[26]

   Mr Stephens clearly had cognitive distortions, viewing his 2005 victim's behaviour as that of a cooperative co-conspirator, a sexual equal, able to choose.  His attitude towards victims in 1999 was that of an entitlement to enact some form of revenge for his own alleged sexual abuse at the hands of his step-father.  Attitudes that support or condone sexual violence can be associated strongly with the presence of other risk factors, in particular extreme minimisation or denial of sexual violence, lack of empathy and lack of remorse.

   (c)Problems with self-awareness - Dr Wynn Owen found this factor to present and observed that, if Mr Stephens were to be believed, he was only partially aware of his sexual attraction to children in 1993 but claims to have been fully aware by 1999 and could not stop himself from offending.  During the interview Mr Stephens did not demonstrate awareness of any association between his emotional state, as a result of acute and chronic stressors, and its bearing on his likelihood of acting out sexual fantasies.  He also claimed to be unaware at the time that his behaviour towards his victim in 2005 was grooming, and demonstrated a lack of awareness of the extent of his grooming behaviour.[27]

   (d)Problems with stress or coping - Dr Wynn Owen found this factor is definitely present in Mr Stephens.  Dr Wynn Owen observed Mr Stephens has used deviant sexual fantasy and masturbation, alcohol and cannabis, and avoidance and isolation as coping strategies over a long period of time.[28]  Mr Stephens has told Dr Wynn Owen that he intends to remain abstinent from alcohol and cannabis on release and said that he did not foresee any difficulty in maintaining abstinence because he has avoided alcohol and other substances in prison and believes that most of the people he will be with will be Christians so it will not be an issue.  I note that in an earlier section of his report, Dr Wynn Owen noted Mr Stephens 'is at risk of return to pathological coping, including alcohol and cannabis use, under the stresses of transition to community living associated with his social isolation and relative financial constraint.'[29]  Mr Stephens also denied to Dr Wynn Owen that he has had any current or recent thoughts about children.  He asserted during the interview that he has had no sexual thinking at all since being taken into custody in 2005, despite also reporting that he masturbates to ejaculation at least twice a week, saying that while doing so his mind is blank.  Dr Wynn Owen, having considered Mr Stephens' coping strategies and the continued use of them while in prison, expressed the view that: [30]

   It seems likely that he also continues to use deviant sexual fantasy and masturbation as a coping strategy however he denies this.  This denial must be considered in the context of a long history of pathological lying and Mr Stephens' wish to present as ready for release.

   (e)Problems resulting from child abuse - Dr Wynn Owen noted the presence of this factor.

   [26] Exhibit 1, 953.

   [27] Exhibit 1, 953.

   [28] Exhibit 1, 954.

   [29] Exhibit 1, 943.

   [30] Exhibit 1, 954.

1. Mental disorders:  Dr Wynn Owen considered the following risk factors were present:

   (a)Sexual deviance - Dr Wynn Owen considered that this was definitely present in the form of paraphilia.  Dr Wynn Owen considered that Mr Stephens' statements that he had no current thoughts of a sexual nature in relation to children must be considered in the context of his wish to manage the outcome of the present assessment and 'is consistent pattern of lying to authorities and assessors'.  Dr Wynn Owen noted also that paedophilia is a lifelong component of an individual's personality and does not go away because a person wants it to, though, its intrusiveness and intensity will fluctuate over time.  Dr Wynn Owen noted that deviant sexual interest is associated with an increased risk of future sexual offending and, in his oral evidence observed that this was particularly so with paedophilia.

   (b)Psychopathic personality disorder - Dr Wynn Owen considered that this was 'at least partially present'.  Mr Stephens scored 25 on the Hare Psychopathy Checklist-Revised, which is lower than the cut off score of 30.  However, Dr Wynn Owen noted that 'score of 25 or more is associated with a very similar increase in reoffending risk to that seen in the cohort of offenders who score 30 or more …'.  Accordingly, 'a score of 25 or greater is accepted in many international jurisdictions as contributing to an increased risk of future offending.'[31] 

   (c)Problems with substance-abuse - Dr Wynn Owen said this was also present and noted that Mr Stephens acknowledged that he had used alcohol and cannabis to deal with a range of acute and chronic stressors.  Mr Stephens reported an association between substance use and his 1999 offending.  Dr Wynn Owen noted that Mr Stephens had used cannabis and alcohol to lure young boys to his home and to maintain that company, and possibly to incapacitate a victim in order to facilitate sexual offending.  Dr Wynn Owen noted that while not causally associated with an increased risk of future offending, substance-abuse (particularly alcohol and stimulant use) is associated with increased arousal and reduced inhibition resulting in an increased offending risk associated with intoxication.

   [31] Exhibit 1, 955.

2. Social Adjustment:  Dr Wynn Owen considered the following risk factors were present:

   (a)Problems with intimate relationships and problems with non‑intimate relationships - Dr Wynn Owen identified the presence of both of these risk factors and commented:[32]

   Mr Stephens, who reports a long standing sexual preference for adult women, has had no long term intimate relationships and finds intimacy with adults stressful and aversive.  He has also formed no lasting friendships outside his immediate family and of his large group of siblings has a very tenuous and intermittent relationship with only one sister.  Problems with intimate and non-intimate relationships, loneliness and social isolation are associated with an increased likelihood of future sexual violence, the risks of social isolation and the need to address his inadequate social functioning have been previously identified (for example in the ISOTP of 2010) but not yet addressed through any type of intention.

   (b)Problems with employment - Dr Wynn Owen considered this factor to be present and noted that Mr Stephens acknowledged that the stress of unemployment and associated debt was a significant factor in his offending in 2005.  This is a factor associated with increased risk of future sexual violence.

   (c)Non-sexual criminality - Dr Wynn Owen considered that this was 'probably present' and viewed Mr Stephens' history of non‑sexual offences as indicators of entrenched antisocial attitudes and behaviours, factors associated with an increased risk of future sexual offending.

   [32] Exhibit 1, 955 - 956.

3. Manageability: Dr Wynn Owen considered the following risk factors were present:

   (a)Problems with planning - Dr Wynn Owen noted Mr Stephens' plans upon being released to avoid sexual offending or being falsely accused of committing a sexual offence included staying at home and playing X-box until he can find a job as a painter, and hopefully returning to Sydney at some point.  Dr Wynn Owen noted also that Mr Stephens 'had no specific plans to create a social network' and his plans to avoid alcohol and drugs seemed glib' - Mr Stephens told Dr Wynn Owen that he been offered drugs in jail and had managed to 'knock it back'.  Dr Wynn Owen considered that his remarks did not reflect an understanding on Mr Stephens' part of why he had abused drugs in the past.[33]

   (b)Problems with treatment - Dr Wynn Owen noted that Mr Stephens had participated in an Intensive Sexual Offender Treatment Program (ISOTP) but that was nearly 10 years ago and none of the identified treatment needs had since been addressed and nor has there been any intervention to consolidate gains made.  Dr Wynn Owen noted that Mr Stephens had acknowledged 'at best partial engagement' with the ISOTP because he was at the time focused on changing others during the program. 

   (c)Problems with supervision - Dr Wynn Owen considered Mr Stephens to be an unreliable self-reporter and expressed the view that Mr Stephens had lied in a range of situations.  Dr Wynn Owen was critical of the truthfulness of a number of the statements made by Mr Stephens in the course of the interviews with him.  For example, Dr Wynn Owen observed that contrary to Mr Stephens' assertions in the course of this interview and in previous police interviews that he has 'always been open and honest with the Police', Mr Stephens has disregarded multiple non-disclosures to the police in relation to previous offending.  When interviewed in 2006, Mr Stephens stated 'I'd like it to be noted that I cooperated' when in fact he had been overtly lying in answers to some questions.  Mr Stephens admitted in interview that before he was charged with the 1999 offences, his thinking was that 'If I can get away with it I'm not going to say anything.'[34]  Dr Wynn Owen considered that this would present a problem to supervisors and would require an approach which enabled cross-checking of the veracity of Mr Stephens' statements to ensure compliance with conditions and appropriate engagement with treatment providers and monitoring agencies.[35]

   [33] Exhibit 1, 956.

   [34] Exhibit 1, 937.

   [35] Exhibit 1, 959.

4. Dr Wynn Owen identified the following 'Risk Scenarios':[36]

   [36] Exhibit 1, 957 - 958.

   Nature

   1Repeat:  Risks to reoffending include his social isolation coupled with being overwhelmed by a combination of new stressors and rumination/dwelling on his past abuse.  Mr Stephens has committed both opportunistic offences against stranger victims and has groomed young boys over days to weeks prior to sexually assaulting (i.e. coercive and non‑coercive sexual assaults).  Neither of these is more likely than the other based on his past offending, if the opportunity for either type of offence presents at a time when he is distressed and not coping, they might occur.  If alcohol intoxication is associated it is possible that an opportunistic sexual offence may occur, should that be the case it would involve a stranger prepubescent male victim, whom Mr Stephens orally penetrates and forces to fellate him, under some degree of physical duress such as a knife point.  If the disinhibition of acute alcoholic intoxication is not involved in a grooming offence, with a similar victim, is more likely.

   2Escalates:  Increased level of sexual violence in an opportunistic or groomed offence, such as penile anal penetration.

   3Escalates and changes:  The least likely scenario.  Serious physical injury resulting from use of force and/or weapons in sexual offending.

   Imminence

   As a potentially opportunistic offender imminence of offending will [depend on] his ability to manage the stresses of reintegration into the community after 15 years in prison and his ability to deal with the inevitable social isolation resulting from his lack of a social or family support network.

Assessment summary

1. Dr Wynn Owen summarised his assessment of Mr Stephens as follows:[37]

   SUMMARY FORMULATION

   Mr Stephens is a 54 year old man who describes an aversive childhood characterised by physical and emotional abuse from his mother, sexual abuse at the hands of his step-father, being bullied by siblings at home and by peers at school.  He managed his early distress by isolation and resentful rumination, starting to also using [sic] masturbation and sexual fantasy to self soothe, and this has continued into adulthood with the exception of his long term association with team sports, in particular Rugby League.  The blokey, alcohol fuelled culture of rugby clubs stands out as being somewhat at odds with all other aspects of his personality and functioning.  He has formed no lasting intimate or non‑intimate relationships and has been (by his own account) estranged from the majority of his immediate family since leaving home at age 16 years and is currently estranged from all of them.  He has no major mental illness.  He probably started to have sexual interest in young children in adolescence when he found same age peer females too difficult to engage and struggled with experiences and feelings of rejection, real and or perceived which also have mirrored his experiences in family relationships, in particular the relationship with his mother.  His ambivalent experiences of pleasure when sexually abused by his step-father, although accompanied by feelings of anger and resentment, may have also had a part to play in enabling the sexual abuse of children.

   OPINION

   In my opinion, based on a structured professional judgement assessment of risk, Mr Stephens currently presents a high risk of serious sexual offending if released unsupervised.

   Mr Stephens is able to describe a number of acute stressors in addition to his history of abuse and his ongoing isolation in relation to the offences of 1999 and 2005 however he reports that he [sic] 1993 he was at his happiest; this offence suggests that seeking friendship and intimacy in the context of social isolation and difficulty relating to same age peers is a significant underlying driver to all of his offending and that the other stressors are not necessarily prerequisites for sexual offending.

   Although Mr Stephens completed a drug and alcohol program in 2009 and an ISOTP in 2010 he has not had any subsequent intervention to address outstanding treatment needs identified or to consolidate gains made, he therefore now presents as requiring treatment that, if effective, will reduce future risk of sexual offending.

   [37] Exhibit 1, 959 - 960.

2. In the course of his interviews, Dr Wynn Owen discussed with Mr Stephens the possibility of treatment for paraphilia by anti-libidinal medicines, with the aim of reducing sexual preoccupation and libido and facilitating improved engagement with treatment.  Dr Wynn Owen reported that Mr Stephens said that he would definitely consider such treatment were it offered to him and would consider both hormonal and non-hormonal medications.

3. Dr Wynn Owen identified matters that should be taken into account in formulating conditions to be incorporated in any community supervision plan, including:  conditions preventing access to children, abstinence from illicit substances and alcohol, prohibition on the use of pornography, control of electronic/computing devices, use of methods of cross-checking information provided by Mr Stephens to the supervising team.

Outstanding treatment needs

1. In his oral evidence Dr Wynn Owen expressed the view that Mr Stephens needs considerable consolidation of the gains achieved by him as a result of participating in the ISOTP.  Without consolidation of those gains, Dr Wynn Owen considered that Mr Stephens' difficulties with self-management and socio-affective functioning might elevate his risk of further offending. 

2. Speaking of the fact that Mr Stephens participated in the ISOTP some ten years ago Dr Wynn Owen said:[38]

   Repetition is an absolutely crucial part of learning.  While the sex offender treatment programs are intensive, they're over a long period of time, they occur frequently and involve direct engagement in group work as well as work outside, work with facilitators, that the learning will deteriorate over time if it is not reinforced.  This is why we have things like the community offender program which is specifically to consolidate gains made.  The - it's just about adult learning really, and the fact that the distance in time from a particular set of learnings to - to date will make a difference.  There will be a loss of what is gained.  And in particular in these things it's also important to - to recognise the negative and established patterns tend to be - tend to return much more rapidly than new laid down information.  So it's much much easier to revert to type than it is to make a change and then consolidate it, particularly without assistance.  So leaving something 10 years is basically far too long.

   [38] ts 56.

3. Dr Wynn Owen compared participation in an ISOTP with one-to-one counselling in the community and observed that the gains that can be achieved by participating in an ISOTP might potentially take two or three years to achieve in one-to-one counselling in the community with the attendant risk that the offender is in the community.

4. On the importance of reinforcing the messages conveyed in the course of the ISOTP program, he said:[39]

   At the time that the report was completed, Mr Stephens had just finished an intensive program during which time he would have rehearsed and iterated a lot of this and would have heard other people saying similar things, and that is the moment in time at which those treatment gains are identified.  From that point onwards it is highly likely and usually does occur that they deteriorate unless they're consolidated.  So this is not unusual to find such - to have to make such a finding of this.  And - and knowing that self-awareness is important and then becoming self-aware are two quite different things.  And I think what has happened is that there is a recognition that self‑awareness is important, but that does not - I do not have confidence that Mr Stephens has become self-aware, and I think it's certainly a target for future intervention.

   [39] ts 60.

5. In his oral evidence Dr Wynn Owen said that the ISOTP was only available in a custodial setting.  I interpolate from Dr Bannister's evidence that the ISOTP involves 300 to 320 contact hours, written work and 'homework'.

Any other medical, psychiatric, psychological or other assessment relating to the person - s 7(3)(b)

Psychological Reports

Report of Ms Erin Sweeney

1. The book of materials (exhibit 1) included a report prepared by Ms Erin Sweeney, a forensic psychologist, dated 27 February 2018.  The catalyst for the preparation of this report is unclear.  Ms Sweeney recorded that the purpose of the assessment was to assess the gains from programmatic and other intervention and to determine whether further intervention was indicated, to assess Mr Stephens' current level of risk and to make recommendations as to how the risk could be managed over time.  The report was prepared after Mr Stephens had been charged with offending in 1993.

2. Ms Sweeney described Mr Stephens' presentation in the interview as follows:[40]

   Mr Stephens was initially hesitant and questioned the purpose of assessment.  He was cautious and guarded, but once explained he relaxed, yet came across as desperate to be seen in a positive light and as changed.  His eye contact was intense and his communication style was at times complaining and whiny.  Mr Stephens evidenced some insight, in regard to his understanding of risk factors, however his focus tended to be upon his own childhood.  Mr Stephens complained about previous psychological testing and believed he was misinformed as to how to answer questions on psychometric tests and therefore unfairly judged.  No inappropriate attitudes or concerning behaviours were expressed and Mr Stephens reported to enjoy his placement at [Pardelup Prison Farm].

   [40] Exhibit 1, 893.

3. Ms Sweeney outlined Mr Stephens' participation in the ISOTP and in the Moving on from Dependency program.  Ms Sweeney described Mr Stephens' participation in these programs as a 'sound beginning' but noted that Mr Stephens lacked practical community resources.  Ms Sweeney recorded that Mr Stephens acknowledged that he was trying to change 'but [was] still not there'.  Ms Sweeney observed that it was not clear that Mr Stephens understood the link between negative emotion analogy, sexual fantasy and masturbation.  She noted:[41]

   Mr Stephens did acknowledge past fantasy had predominantly focused upon children and surfaced during the 1990s, although only as an 'occasional thought' that he would 'just let go'.  He added he 'gave into them' prior to the 1999 offences, as they were powerfully arousing and mostly related to male children.

   In a later passage Ms Sweeney expressed the opinion that Mr Stephens was not open about ongoing deviant sexual interests and that whilst he claimed attraction and arousal to women, arousal to children was the more problematic factor and one that Mr Stephens appeared to be denying.

   [41] Exhibit 1, 895.

4. Ms Sweeney reported that Mr Stephens recognised that he needed to experience more group activity, as that is where he feels insecure and intimidated, but that recognition had not been translated into action and Mr Stephens' activities remained solitary in nature.

5. Ms Sweeney administered a STATIC-99R risk assessment and determined that Mr Stephens' risk was either a 5 (Above Average Risk) or 6 (Well above Average Risk) and explained that the uncertainty in the score was due to there being insufficient information about one relevant factor.

6. Ms Sweeney recorded Mr Stephens told her that he proposed to fight the charges in respect of the 1993 offending 'all the way' and noted that Mr Stephens appeared concerned as to why those charges were being pursued so long after the offending, which suggested to Ms Sweeney that Mr Stephens had limited understanding of victim empathy and behaviour.

7. Ms Sweeney reported:[42]

   Based on the available information, Mr Stephens presents an above average risk of sexual reoffending.  Whilst he has undertaken treatment and made gains throughout that program, it was over seven years ago.  Recommendations from treatment were vague and Mr Stephens would have benefited from clear strategies, such as undertaking employment in a group environment, participating in educational pursuits with others, engagement in group leisure activities, e.g. sports, and worked upon building relationships with community supports.  Strategies to assist Mr Stephens better manage sexual thoughts and preferences were also absent.

   [42] Exhibit 1, 899.

8. In the concluding paragraph of her report Ms Sweeney returned to the elapse of time between completion of the ISTOP and Mr Stephens' proposed release date, observing:[43]

   It has been a considerable amount of time since Mr Stephens undertook treatment and given his needs at that time, further treatment closer to release would have been more beneficial for planning and risk reduction purposes.  Additional treatment would also have enabled him to work specifically upon dynamic needs, which needed to be strengthened and required clear strategies for him to practice and to take forward.  Group work would also benefit Mr Stephens with regard to perspective taking, relationship skills and facing challenges he experiences around adults.  Coping with change, developing social skills and testing himself in stressful situations in order to learn and develop skills that will better prepare him for release, would all be beneficial, in order to determine real change.  Behavioural strategies to understand and manage deviant sexual preferences is also recommended … And whilst Mr Stephens wants to have telephone contact with suggested counsellors, albeit he is unaware of their contact details, this is considered unsatisfactory to address his treatment needs and manage risk in the community.

Report of Ms Julie Hasson

[43] Exhibit 1, 899 – 900.

1. Ms Hasson interviewed and assessed Mr Stephens on two occasions for approximately six hours and, pursuant to s 37(1)(b) of the Act prepared a report of her findings.[44]

   [44] Exhibit 1, 909 – 932.

2. Ms Hasson described Mr Stephens' presentation as 'polite and cooperative throughout both interviews'.  She considered that Mr Stephens answered all questions with 'spontaneity and candour' and that Mr Stephens demonstrated good insight into his offending behaviour and aspects of his personality and functioning.

3. In the context of describing Mr Stephens' 'Sexual Development, Sexual Interests & Current Sexual Thinking' Ms Hasson reported that Mr Stephens acknowledged a sexual interest in male children aged 10 ‑ 13 years that began during his teens and which became more dominant prior to his offending.[45]  Mr Stephens told Ms Hasson that he masturbated using visual stimuli often involving women he had seen on television or past sexual partners.  He described his current level of sexual drive as having decreased, although he told Ms Hasson that he could still become aroused when viewing sex scenes on television and when thinking of a previous partner.  Mr Stephens told Ms Hasson that he experienced the occasional presence of sexual thoughts of young boys, often prompted by images he had seen on television.  Mr Stephens indicated that he is able to distract and switch off from these thoughts without acting on them.  Ms Hasson concluded, in relation to Mr Stephens' sexual interests and thinking, that:[46]

   There was no clear indication that Mr Stephens engaged in sexual fantasy or masturbated more frequently when he was feeling stressed or experiencing low mood.  Sexual activity does not appear to be a maladaptive coping mechanism to self-soothe or ameliorate dysphoric emotions.  Historically alcohol and cannabis have been used for this purpose.

   [45] Exhibit 1, 914.

   [46] Exhibit 1, 914.

4. Ms Hasson reported that Mr Stephens described himself as a loner who experienced difficulties establishing meaningful connections with others both intimate and non-intimate.  However, Mr Stephens indicated that he would like to form a lasting intimate relationship in the future.  Mr Stephens stated that he had formed a good relationship with his cellmate and a limited number of others in the prison with whom he confided to a certain extent.  Mr Stephens reported also that he had managed to develop positive relationships with team members from Uniting Care West and Stepping Out Services.

5. Like Dr Wynn Owen, Ms Hasson adopted a structured professional judgment approach combining actuarial and non-actuarial risk assessment tools.

6. Ms Hasson assessed Mr Stephens' STATIC-99R score as 5, placing him at risk level IVa (Above Average Risk) for being charged or convicted of a new sexual offence after five years in the community.  On average, for offenders with a score of 5, the five year sexual recidivism rate in a routine sample is 15.2% (range 13.8% - 16.6%).  Similar estimates are found in the high risk/high needs sample.  In the high risk/high need group the predicted recidivism rate is 21.2% over five years (range 18.0% - 24.8%).[47]

   [47] Exhibit 1, 923.

7. Ms Hasson noted that the STATIC-99R does not measure all relevant risk factors; risk can be higher or lower based on dynamic factors assessed using the RSVP.  She observed that:  reduced recidivism is associated with high-quality release plans that support accommodation, positive social connections, employment or hobbies, and prosocial, personally meaningful goals; and, it is quite plausible then that a gradual, multiyear decline in risk is linked to an individual developing increasingly effective, prosocial ways of achieving a satisfying life.[48]

   [48] Exhibit 1, 923.

8. Using the RSVP Ms Hasson identified many of the same risk factors that were identified by Dr Wynn Owen:  chronicity of sexual violence, diversity of sexual violence, escalation of sexual violence, psychological and physical coercion, problems resulting from child abuse, sexual deviance, problems with both intimate and non-intimate relationships, problems with employment, and problems with planning.[49]

   [49] Exhibit 1, 924 - 927.

9. Ms Hasson's assessment of risk factors differed from that of Dr Wynn Owen in the following respects:

   (a)Extreme minimisation or denial of sexual violence - Ms Hasson did not consider that Mr Stephens minimised or denied the character of his offending.  She stated that:[50]

   Mr Stephens acknowledged the majority of his offending behaviour particularly pertaining to his convictions for his offending in 2005 and 1999.  During the current interviews he did not appear to displace blame or project responsibility onto others.  Regarding his latest offences he was adamant that he had not offended against the other two boys … who had made allegations of offending in 1993/94 and for which he was initially charged. In relation to [the other charge] ... Mr Stephens stated that he could not actually recall the offending however believed it could have been possible.

   (b)Attitudes that support or condone sexual violence - Ms Hasson did not find evidence of this risk factor.

   (c)Problems with self-awareness - Ms Hasson did not find current evidence of this risk factor.  She considered that Mr Stephens 'possesses insight into his offending behaviour.  He recognises and acknowledges the role of sexual thoughts and fantasy about young boys and how this has in the past, contributed to his offending.  He is able to articulate his risk factors which include isolating himself, not engaging with adults, consuming alcohol and cannabis, placing himself in risky situations that involve contact with children, and not coping with or managing stress, boredom or other negative emotions.'[51]

   (d)Problems with supervision - Ms Hasson did not consider this factor to be present.

   (e)Problems with treatment - Ms Hasson did not consider this factor to be present.  She observed that Mr Stephens had successfully completed available programs both voluntary and mandated and had retained program content and treatment gains.  She said that Mr Stephens was keen to pursue further counselling and held a positive view of counselling and treatment.[52]

   (f)Psychopathic personality disorder & major mental illness - Ms Hasson used the Hare Psychopathy Checklist-Revised:  2nd Edition to assess for psychopathy and, on her assessment, Mr Stephens scored 19 indicating that he did not fit the construct of psychopathy.

   [50] Exhibit 1, 924.

   [51] Exhibit 1, 924 - 925.

   [52] Exhibit 1, 926.

10. Ms Hasson noted that the factor 'Problems with stress or coping' had been present in the past.  Ms Hasson considered that it was 'difficult to say with confidence that he has acquired the necessary skills to cope and manage' stress, or that he would be able to manage these skill when he is released into the community.  She noted that currently Mr Stephens uses isolation, gaming and avoidance methods to cope in prison.  She considers that his 'distress tolerance and coping skills will need to be a focus of both future intervention and supervision and management.'[53]

    [53] Exhibit 1, 925.

11. Ms Hasson noted that there is historical evidence of violent ideation. Mr Stephens acknowledged a pattern of ruminating and vengeful thinking when he was in the community, followed by disproportionate physical and verbal outbursts.[54]

    [54] Exhibit 1, 926.

12. Ms Hasson noted that the factor 'problems with substance abuse' had also been present in the past and that alcohol and substance abuse appeared to have been relevant factors in Mr Stephens' offending as he had supplied both to his victims as part of a grooming process to get them to like him and also as a means to disinhibit them.[55]

    [55] Exhibit 1, 925.

13. Ms Hasson identified the following risk scenarios:[56]

    92.Scenario 1 - Repeat:  the most likely future offence will be committed against a male child known to Mr Stephens.  The offence will likely occur in a home environment or in a setting Mr Stephens is comfortable in or familiar with.  If Mr Stephens has physical access to a child, a contact offence involving penile oral penetration of a child is likely.  There is little to indicate that there would be any use of force or physical coercion.  There is likely however to have been some grooming prior to the commission of the offence involving exchange or supply of goods to the child progressing to conversations or discussions with a sexual content.  There is also likely to have been consumption of alcohol or cannabis.  The offending would likely be repeated until such time as Mr Stephens' behaviour is exposed.

    93.Scenario 2 - Escalate:  In this scenario of escalation Mr Stephens may meet a child via the use of the internet or social media.  A process of grooming may occur over a period of time with Mr Stephens on [sic] developing the child's trust.  Sexual conversation is likely and eventually a plan to meet may be formulated.  It is possible Mr Stephens would attempt to leave the state with the child to avoid detection and to continue his 'relationship' with the victim.

    94.Scenario 3 - Escalate and Changes:  The most likely escalation and change scenario involves Mr Stephens sexually assaulting a child who is not known to him.  Such a scenario may include having met a child in a public space or at a social gathering and offending against that child within a short space of time.  If the offending does occur, it will likely involve oral sex and could possibly escalate to sexual penetration of the child's anus.  Minimal grooming may occur however coercion to engage in sexual behaviour or threats to remain quiet are also possible.

    95.All scenarios are likely to cause significant psychological harm to the victim.  Risk of physical injury would be higher in the last two scenarios and would possibly be greater the younger the child.  There have been numerous studies across a range of areas that highlight the long-term impact of child sexual abuse on mental health, social, sexual and interpersonal functioning as well as physical health.  This range of adverse outcomes is seen in both childhood and adulthood.  Studies have found higher rats of major depression, suicidal behaviour, conduct disorder, personality disorder, alcohol dependence, substance abuse, social anxiety, helplessness, aggressive behaviour, eating disorders, sexual risk taking and other risk-taking behaviours.  There is also some evidence showing an increased risk of sexual assault as an adult, and divorce in individuals who had been sexually abused as a child.  Longitudinal studies have shown that pregnancy, childbirth and motherhood can trigger difficulties, emotional distress and lack of confidence and self‑esteem in adult survivors of child sexual abuse.  It is not uncommon for incidences of child sexual abuse to confuse children about the meaning of healthy relationships.  This lack of knowledge about how to interact with romantic partners can cause a catastrophic impact on their development of future relationships.

    [56] Exhibit 1, 927 - 928.

14. In her concluding analysis of Mr Stephens' sexual offending Ms Hasson expressed these views:[57]

    [57] Exhibit 1, 929.

    99.Mr Stephens is a sexual recidivist.  He now has three separate convictions for child sex offences against five victims spanning a 12 year period.  He was arrested and charged with offences against two other male children for offences alleged to have occurred in 1993/1994 however these were not proceeded with.  Mr Stephens acknowledges a long-standing deviant sexual interest in male children.

    100.Mr Stephens' offending behaviour is driven by a deviant sexual interest in male children.  Factors that have contributed to him acting on these interests include:  boredom and unemployment, loneliness, emotional regulation difficulties, an inability to obtain or maintain an intimate relationship, interpersonal difficulties, emotional identification with children, fears of judgment and rejection and a mistrust of women.  Mr Stephens' offending behaviour suggests he targets young males who are vulnerable and experience difficulties at home.  Whilst he has stated a sexual interest in adult females he has offended against children.

    …

    102.During the current assessment, Mr Stephens demonstrated some insight into many of the risk factors associated with his offending.  He identified that a sexual interest in and fantasy involving young boys is a significant risk factor as is his experience of negative emotions and his lack of ability to manage them appropriately, stresses, boredom, unemployment, loneliness, peer rejection, difficulty establishing and maintaining intimate relationships are also risk factors for him.  Mr Stephens expressed a willingness to access any and all professional help available to moderate these risk factors should he be released to the community.

    103.Mr Stephens has limited supports available other than professional relationships that he has established during his time in prison.  He is estranged from his sister due to his offending behaviour.  Mr Stephens is a relatively isolated individual who needs to strengthen community bonds and ties.  He expressed desire to receive help to reconcile with his sister.

15. Ms Hasson concluded his risk level based on both the STATIC‑99R and RSVP if not subject to a Continuing Detention Order or a Community Supervision Order.

16. Ms Hasson identified those matters which she considered should be reflected in conditions incorporated into any supervision order that might be made.  In addition to some of the matters which Dr Wynn Owen considered should be addressed by conditions, Ms Hasson stated that the focus of Mr Stephens' engagement should be to develop a lifestyle and community engagement consistent with his age, including seeking meaningful employment and participating in educational and vocational training, establishing age appropriate hobbies and interests and pro-social supports.

17. In her oral evidence Ms Hasson addressed Mr Stephens' outstanding treatment needs and observed that unless placed in another ISOTP prisoners serving a custodial sentence were 'really not going to ever access individual treatment to address those needs'.[58]  Ms Hasson said that it was not unheard of for a prisoner to complete the ISOTP twice.

Dr Bannister's report

[58] ts 83.

1. Dr Bannister provided a report to assist with identification of relevant supervision, management and intervention strategies should Mr Stephens be made subject to an order under the Act.[59]  For the purposes of preparing his report Dr Bannister interviewed Mr Stephens for approximately 2 1/2 hours.

   [59] Exhibit 1, 902 - 908.

2. Dr Bannister said that Mr Stephens presented as a polite and friendly man who engaged in the assessment well.  Dr Bannister noticed during the interview that once Mr Stephens was expressing an idea or recounting a story Mr Stephens resisted interruption or redirection and it was difficult to interject in order to clarify, challenge or continue. He described this tendency on the part of Mr Stephens 'as an urgency to articulate a set position regardless of external input.'[60]

   [60] Exhibit 1, 903.

3. Dr Bannister outlined Mr Stephens' 'offence specific treatment/intervention history', previous assessments of treatment outcomes and undertook an assessment of dynamic risk factors for the purposes of assessing the potential future risk of sexual reoffending.  Dr Bannister's assessment of the risk factors was broadly consistent with the assessment undertaken by Ms Hasson.  In the context of discussing the risk associated with Mr Stephens' social isolation, Dr Bannister noted that his current prison job did not bring him into contact with many other people and that despite telling prison staff that he would like to work upon his release, he had declined career guidance and all vocational education and training.

4. Dr Bannister summarised his opinion as follows:[61]

   Mr Stephens has received no criminogenic treatment since completing the ISOTP almost 10 years ago, and some key issues highlighted as a result of that program continue to be applicable to him.  These include a lack of pro-social supports, social isolation and an excess of unstructured time.  While Mr Stephens is able to articulate the importance of these risk relevant variables, it appears that he has not made proactive attempts at addressing such deficits directly.  For example, while he says he understands the importance of avoiding social isolation, he has continued to engage in individually focused activities and employment.

   There are also some outstanding needs that require attention.  Mr Stephens' communication related to problem-solving skills around high risk situations was nebulous, and a specific example he provided that related to problem-solving conflict management, was ill considered.  Additionally, Mr Stephens has needs in the areas of intimacy deficits and emotion regulation.  To his credit, he remains open about an ongoing deviant sexual interest that needs addressing.  His treatment should also focus on the consolidation and practical application of apparent gains, including issues relating to drug and alcohol use.

   As was also noted at his last treatment needs assessment, some cognitive rigidity continues to be present for Mr Stephens.  For example, he continued to maintain an enduring focus on his own alleged victimisation as a contributing factor to his own offending.  This rigidity was also reflected in his presentation, and will need to be taken into account by any prospective treating clinician.

   [61] Exhibit 1, 908.

5. Dr Bannister said that Mr Stephens was eligible to participate in a community based sex offender treatment program involving some 115 contact hours.

6. Like Ms Hasson, Dr Bannister said that, while it was not common, it was possible for offenders to be placed on an ISOTP for a second time.

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

1. In Director of Public Prosecutions (WA) v GTR Murray AJA stated that:[62]

   [propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim.  The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.

   [62] Director of Public Prosecutions (WA) v GTR [178].

2. Mr Stephens' offending history, the diagnosis of paraphilia, and the risk assessments undertaken by Dr Wynn Owen, Ms Hasson and Dr Bannister taken in combination satisfy me that Mr Stephens has a  propensity to commit serious sexual offences in the future.  In considering what may be taken from the STATIC-99R and RSVP assessments, I take into account that they are tools designed to assess the risk of the commission of sexual offences as opposed to 'serious sexual offences', however, when regard is had to Mr Stephens' offending history, I am satisfied that Mr Stephens' propensity is to commit serious sexual offences.

Whether there is a pattern of offending behaviour - s 7(3)(d)

1. The circumstances of the 1999 offending were quite different to the 1993 and 2005 offending but all the episodes of offending involve offending against young children and predominantly boys.  In his report Dr Wynn Owen expressed the view that Mr Stephens had a pattern of grooming multiple boys from 1989 - 1995, and again in 2004/5.[63]  Mr Stephens recognised his use of alcohol, drugs, videogames and pornography to maintain relationships with boys.[64]

   [63] Exhibit 1, 941.

   [64] Exhibit 1, 887.

2. It is relatively more difficult to identify a pattern in offending when the offending is limited to three episodes and one of those episodes is of a different nature.  That said, I find that Mr Stephens has a pattern of serious sexual offending against children and that the 1993 and 2005 offending establish a pattern in his approach to offending that involves the grooming of his victims using alcohol, drugs, videogames and pornography.

Efforts to address offending behaviour - s 7(3)(e)

1. Mr Stephens completed the 'Moving on From Dependencies High Intensity Program' at Acacia Prison on 19 February 2008.[65]  Program facilitators found that he was a motivated participant and that he acknowledged the benefit in examining his distorted attitudes towards substance use.  Mr Stephens reported that the program 'helped him to understand that he used alcohol and drugs as a coping mechanism and 'social tool', and that its disinhibiting qualities often 'made things worse in lot of ways'.  He cited alcohol as fuelling his 'bad behaviour' as an example.[66]

   [65] Exhibit 1, 882 - 883.

   [66] Exhibit 1, 903.

2. Mr Stephens subsequently participated in the ISOTP from October 2009 to June 2010.  The completion report states that he met most of the program objectives, made some treatment gains, and was observed to gain a greater understanding of the factors underlying his offending.[67]

   [67] Exhibit 1, 890.

3. In particular, his treatment gains included an ability to recognise that feelings of isolation and loneliness as well as self-esteem were antecedents to his offending.  He recognised that his offences in 1999 and 2005 were related to differing factors, believing the first was connected to an expression of power and control in response to perceived victimisation, and the second to a desire for connection and friendship.  Mr Stephens acknowledged both the planning and grooming he engaged in, as well as his emotional identification with young boys, and that these facilitated his offending.  Significantly, Mr Stephens recognised that his lack of supportive intimate, social and familial relationships contributed to his offending by adding to his feelings of isolation and providing a sense that he was 'not accountable to anyone' and disconnected from responsible community behaviour.[68]

   [68] Exhibit 1, 887 - 888, 903.

4. Mr Stephens developed a relapse prevention plan towards the end of the ISOTP.  In doing so, he identified a range of factors that he felt had contributed to his offending.  These included social isolation, too much unstructured free time, substance use, and a lack of trust in others.  As such, his relapse prevention plan purportedly involved him proposing to increase his social contacts through church activities, hobbies and employment, install a network of professional supports and engage in therapy to address childhood issues.  He identified his sister as the only family member with whom he communicated, and believed that he could find support from her upon release.

5. From November 2016 to January 2017 Mr Stephens also engaged in six sessions with a counsellor.  The focus of these sessions was on his childhood, and Mr Stephens reported finding the opportunity to talk about himself, and learn about ways to help his 'inner child' were very helpful.[69]

Whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(f)

[69] Exhibit 1, 895.

1. Mr Stephens' participation in the Moving on from Dependencies High Intensity Program and the ISTOP has had a positive effect.  Mr Stephens' participation in these programs has enabled him to obtain insights into the causes of his offending, the circumstances which present the risk of re-offending and strategies that he must adopt to reduce the risk of re-offending on release. 

2. As I explain below there is, however, much work for Mr Stephens to do in the context of treatment and rehabilitation,

The risk that a serious sexual offence will be committed if a continuing detention or supervision order is not made - s 7(3)(h)

1. The psychiatric and psychological evidence supports the finding that Mr Stephens is at above or well above average risk of committing further sexual offences.  This assessment of risk takes into account his ongoing treatment needs, and the continuing deficits in his treatment outcomes.  On the basis of Mr Stephens' offending history and the risk scenarios outlined by each of Dr Wynn Owen, Ms Sweeney and Ms Hasson, I am satisfied that there is a serious risk that Mr Stephens will commit a serious sexual offence if a continuing detention order or a supervision order is not made.

The need to protect members of the community from that risk - s 7(3)(i)

1. There is a need to protect the community from the risk of Mr Stephens committing a further serious sexual offence.  The evidence supports the conclusion that if Mr Stephens reoffended it would involve a sexual offence against a child.  Ms Hasson gave evidence of the significant psychological harm that would be suffered by a victim of an offence of the nature that Mr Stephens was likely to commit, and that risk of physical injury would be higher in the last two risk scenarios and the harm would possibly be greater the younger the child.

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

1. A matter of particular relevance is Mr Stephens' outstanding treatment needs.  These were a focus of each of the reports containing an assessment of respondent's risk of re-offending and I refer to the recommendations made by the authors of the reports which I have reproduced earlier in these reasons. 

Community Supervision Assessment Report

1. Mr Kyle Jarvie provided a Community Supervision Assessment dated 23 April 2020 which provided a helpful summary of Mr Stephens' history and the issues to be addressed in the event that the court should make a supervision order.  Mr Jarvie attached to his report the conditions that he considered should form part of any supervision order.  In addition to the seven standard conditions, a further 55 conditions were proposed for the management of Mr  Stephens' 'offending behaviours'.

2. A significant difficulty addressed by Mr Jarvie in his report was the absence of suitable accommodation in the community.  At the time of the hearing no accommodation was available through the DSO Supported Accommodation Program although it appeared that Mr Stephens might be next in line for accommodation should it not be required for other offenders.

Serious danger to the community

1. It was not contended on Mr Stephens' behalf that he no longer remained a serious danger to the community - as stated earlier this was a proper concession for Mr Stephens to have made.[70]

   [70] ts 45.

2. The evidence which I have outlined constitutes acceptable and cogent evidence that satisfies me to a high degree of probability that there is an unacceptable risk that if Mr Stephens were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.  Accordingly, I find that Mr Stephens is a serious danger to the community.  There are a number of considerations that have led me to this conclusion.  They are as follows:

   (a)Mr Stephens' history of serious sexual offending and, in particular, that the offending has involved both offences committed after grooming of the victims and opportunistic offending.

   (b)Dr Wynn Owen's psychiatric diagnoses of paraphilia, with paedophilic disorder and General Personality Disorder with both Avoidant and Anti-social Personality Disorders.

   (c)Mr Stephens' high risk of re-offending as predicted by the risk assessments conducted by Dr Wynn Owen, Ms Hasson and Ms Sweeney.

   (d)Related to the risk of re-offending, the risk of serious harm to potential victims.

   (e)Although Mr Stephens has made some gains from the treatment undertaken by him while in prison, I am not persuaded that these gains have been sufficient to reduce the risk of Mr Stephens committing serious sexual offences.

Continuing detention order or supervision order

1. I turn now to my evaluation of the considerations bearing upon whether Mr Stephens should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order.

2. In evaluating the considerations I have borne in mind that I should choose the order that is least invasive or destructive of Mr Stephens' right to liberty, whilst ensuring an adequate degree of protection for the community.

3. The factors which favour the making of a supervision order are as follows:

   (a)The evidence of Dr Wynn Owen[71] and Ms Hasson[72] to the effect that Mr Stephens could be managed in the community.  I note, however, that Dr Wynn Owen's opinion about the potential to manage Mr Stephens under a supervision order was highly qualified.  He said:[73]

   I think he can be safely managed with a very high degree of constraint and an assertive response capability.  The only way to manage opportunistic offending, particularly in that very high‑risk period immediately after release, is to be confident that there can be an immediate response to, for example, like GPS tracking by the police.

   (b)The extensive degree of control over Mr Stephens' conduct and behaviour that would be achieved by the conditions which would be incorporated in the supervision order.

   (c)The absence of any disciplinary infractions on Mr Stephens' part while serving his sentence.  This is indicative of a capacity on Mr Stephens' part to control his behaviour.

   [71] ts 72

   [72] ts 92

   [73] ts 72.

4. In the following paragraphs I set out the matters that have led me to conclude that a continuing detention order should be made.

5. First, the considerations that led me to conclude that Mr Stephens is a serious danger to the community weigh against the conclusion that a supervision order will be adequate protection of the community.  Some of those considerations, such as the diagnosis of paraphilia, may always be present as they are part of Mr Stephens' make up.  In making this observation it should not be taken to suggest that those considerations will always stand in the way of the making of a supervision order.  They do, however, emphasise the importance of Mr Stephens receiving treatment and therapy.

6. Second, Mr Stephens' unmet treatment needs constitute a significant factor weighing against the making of a supervision order.  Dr Wynn Owen's evidence was that it was 'very, very clear that there are outstanding need and there are unmet needs'.[74]  Ms Hasson's evidence was expressed in less emphatic terms but was to the same effect.  Ms Sweeney and Dr Bannister were of the same view.  These needs are very unlikely to be addressed satisfactorily in the community.  And, to the extent to which it may be possible for Mr Stephens to receive treatment in the community while the subject of a supervision order, releasing Mr Stephens before he has the benefit of further therapeutic intervention carries with it an increased risk of re-offending.  I am not persuaded that any counselling or therapy that might be available in the community to which Mr Stephens might have access would be an adequate substitute for the significant therapeutic interventions required by Mr Stephens and which are available in a custodial setting.  I appreciate that attaching such importance to the need for Mr Stephens to receive further treatment may be perceived by Mr Stephens as harsh as it appears that there was little that he could have done to obtain the treatment he required while he was serving his sentence.  In my judgment, however, the unfortunate reality is Mr Stephens requires further treatment of the nature outlined in the reports.

   [74] ts 70; see also Ms Hasson's evidence at ts 83.

7. Third, my impression is that Mr Stephens has an understanding of some of the causes that contributed to his offending, but his understanding is superficial.  The point was encapsulated by Dr Wynn Owen's observation that Mr Stephens has an understanding that self‑awareness is important but has not yet become self-aware.[75]  In particular Mr Stephens' perfunctory observations to the effect that he did not sexually offend against the youngest male sibling in 1999 and that he did not go 'all the way' with the other victims was demonstrative of a serious lack of insight into the offending and a lack of victim empathy. This is particularly so in circumstances where the youngest male victim in 1999 was forced to witness the sexual abuse of his siblings and the threats to him were used to coerce the other victims.

   [75] ts 60.

8. Fourth, the further impression I have formed having read the reports and listened to the witnesses is that Mr Stephens is very anxious to be viewed in a positive light.  While Mr Stephens' anxiety to be viewed positively is understandable, it is self-defeating insofar as it hinders the assessments that have to be made.  I am left with a concern that Mr Stephens has not been candid with those who undertook the assessments.  This is based in part on Ms Sweeney's observation to the effect that Mr Stephens was not open about his ongoing deviant sexual interests, in part on Dr Bannister's description of Mr Stephens' presentation at interview, and in part on the firm views expressed by Dr Wynn Owen and the latter's assessment that Mr Stephens had a tendency to lie.  I acknowledge that Ms Hasson formed a positive view of Mr Stephens' insight and self-awareness, but the concern to which I have referred remains.  The concern not only reinforces the need for further therapeutic intervention but gives rise to a doubt about whether Mr Stephens will report honestly to those who would be responsible for his management if a supervision order was made.

9. Fifth, it appears that Mr Stephens has made limited, if any, gains in forming pro-social adult relationships during his period in custody.  Mr Stephens' difficulties in forming relationships with adults led to Mr Stephens establishing relationships with boys and in turn contributed to his offending.  While it may be unrealistic to think that a 54‑year‑old man's personality can be changed from that of a self‑described 'loner' to someone more social, there appears to have been no change in Mr Stephens' approach to social relationships.  He maintains his preference for solitary occupations and interests.  I do not underestimate the difficulties Mr Stephens faces in establishing relationships with other adults.  Nor do I underestimate the difficulties in trying to build social supports in the community while in custody.  What is plain, however, is that Mr Stephens requires assistance in developing strategies to build pro-social relationships.  I am concerned that releasing Mr Stephens into the community before he has had any assistance in developing strategies for building pro-social relationships, even if tightly controlled by a supervision order incorporating the conditions that have been proposed, would result in Mr Stephens living in socially isolated environment which would, in turn, give rise to a heightened risk of serious sexual offending.

10. Sixth, there is a naivety in Mr Stephens' approach to how he might manage if released subject to a supervision order.  This was exemplified in Mr Stephens' optimism in being able to maintain abstinence from drugs and alcohol because he has resisted them in prison and because the people he will associate with 'will be Christians'. 

11. Seventh, in addition to, but separate from the other matters to which I have referred, is the problem occasioned by the present absence of suitable accommodation.  Of itself this is an insurmountable obstacle to making a supervision order. 

12. In conclusion when I have regard to the entirety of the evidence I am left with a doubt that, at present, a supervision order would provide adequate protection for the community.  I consider that Mr Stephens should be detained in custody for an indefinite term for control, care and treatment.

Mr Stephens' treatment and other needs

1. Mr Stephens' outstanding treatment needs are set out in the reports of Dr Wynn Owen, Ms Hasson and Ms Sweeney.  The continuing detention order will be reviewed in 12 months.[76]  There is a realistic prospect that the level of risk posed by Mr Stephens can be reduced to a level which may enable a supervision order to be made.  Whether this is achieved depends on the availability of treatment of the nature that has been recommended and, importantly, on Mr Stephens' response to the treatment.  The observations that follow are not a substitute for referring to the detailed recommendations contained in the reports but I wish to highlight the matters that appear to me to be of particular importance.  They are:

   [76] Dangerous Sexual Offenders Act 2006 (WA) s 29(2).

   (a)Mr Stephens should participate in a further Intensive Sexual Offenders Treatment Program.  The consensus of expert opinion was that he would benefit from undertaking the program again and it is highly desirable that he do so for his own benefit and the benefit and protection of the community.  On completion of the program Mr Stephens should receive such further therapy, in such manner or setting, as is recommended in order for Mr Stephens to consolidate what he has learned.

   (b)If there is some organisational or other impediment to Mr Stephens' participation in a further Intensive Sexual Offenders Treatment Program, then Mr Stephens should have the benefit of one on one counselling with a departmental psychologist.  The evidence suggests that this counselling needs to be intensive.

   (c)Subject to Mr Stephens' consent, he should be trialled on anti‑libidinal treatment and the trial should commence immediately.

   (d)Mr Stephens should be encouraged and, to the extent possible assisted, to participate in activities of a pro-social nature - activities involving educational or work skill training with others and also social activities.

   (e)Mr Stephens should be assisted in establishing social supports in the community.

   (f)Steps should be taken to secure suitable accommodation well in advance of the review date.

   It is important that the treatment recommendations are addressed and implemented without delay.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AS
Associate to the Honourable Justice Tottle

15 JUNE 2020