The State of Western Australia v Stephens [No 3] - [2024] WASC 349

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- STEPHENS [No 3] [2024] WASC 349
CORAM:   COBBY J
HEARD:   12 AUGUST 2024
DELIVERED          :   25 SEPTEMBER 2024
FILE NO/S:   SO 6 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAUL ANDREW STEPHENS
Respondent

Catchwords:

Dangerous sexual offender - High risk serious offender - Periodic review - Whether respondent remains a high risk serious offender - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if respondent released on a supervision order

Legislation:

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

Result:

Continuing detention order rescinded
Supervision order made

Representation:

Counsel:

Applicant	:	T Hollaway
Respondent	:	D J McKenzie

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	David McKenzie Legal Pty Ltd

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

Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Jonsson [ No 3] [2019] WASC 463
The State of Western Australia v JXK [No 3] [2023] WASC 23
The State of Western Australia v Stephens [2020] WASC 200
The State of Western Australia v Stephens [No 2] [2021] WASC 318

COBBY J:

These reasons concern the court's second review of the respondent's continuing detention under the High Risk Serial Offenders Act 2020 (WA) (Act).
On 16 February 2023 the State of Western Australia applied, pursuant to s 64(2)(b) of the Act, for the detention of Paul Andrew Stephens under a continuing detention order made 15 June 2020 be reviewed as soon as practicable after 16 August 2023.
The hearing of the application was delayed while Mr Stephens completed the Intensive Sex Offender Treatment Program (ISOTP), which occurred in June 2024, and further psychiatric and psychological reports regarding Mr Stephens were provided to the court.
Mr Stephens has now been incarcerated for approximately 19 years. For the reasons set out below, I have determined that Mr Stephens remains a high risk serious offender, that the existing continuing detention order should be rescinded and that a supervision order should be made in relation to him.
Prior to August 2019, Mr Stephens was serving a term of imprisonment until 1 June 2020 in respect of serious sexual and other offences committed over the years 1993 to 2005. His non-sexual serious offences were all associated with sexual offending.
In August 2019, Fiannaca J found that that there was a reasonable possibility that the court might find that Mr Stephens was a serious danger to the community under s 7(1) of the now repealed Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) and ordered that Mr Stephens be detained in custody until the State's application that Mr Stephens be detained in custody for an indefinite period or released into the community subject to conditions that the court considered appropriate was finally determined.
On 15 June 2020, Tottle J found that Mr Stephens was a high risk serious offender and ordered that he be detained in custody for an indefinite term for control, care and treatment under s 17 of the DSO Act.
Tottle J's detailed reasons for making that initial continuing detention order in respect of Mr Stephens are set out in The State of Western Australia v Stephens.[1]  Mr Stephens' history of sexual offending was there summarised by his Honour Tottle J, in terms which I adopt, as follows:
[1] The State of Western Australia v Stephens [2020] WASC 200.
1993 - 1994 offending (Indictment No 2386 of 2018)
36On 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.
37The 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.
38Mr 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.
39When 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)
40The 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.
41While 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.
42Mr Stephens left Western Australia a few months later to live in New South Wales.  He did not return to Western Australia until 2003.
43Following 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)
44Mr 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.
45The 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.
46On 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.
47The 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.
48On 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.
49Instead 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.
50Mr 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.
51Mr 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.
52Commenting 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.
53Ms 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.
His Honour found that Mr Stephens was a serious danger to the community (which Mr Stephens did not contest), there being an unacceptable risk that Mr Stephens would commit a serious sexual offence as defined in s 3 of the DSO Act if he was not subject to a continuing detention order or a supervision order.
The DSO Act was repealed on 26 August 2020, upon the balance of the Act coming into operation.[2]
[2] Section 123. All references to legislation are to the provisions of the Hugh Risk Serious Offenders Act 2020 (WA) unless stated otherwise.
In 2021, Solomon J reviewed Mr Stephens' continuing detention,[3] s 64(2)(a) of the Act requiring that any continuing detention order made under the Act be reviewed as soon as practicable after the end of a one year from the time the offender would not have been in custody had a continuing detention order not been made.
[3] TheState of Western Australia v Stephens [No 2] [2021] WASC 318.
At that time, Mr Stephens had commenced the ISOTP but had withdrawn from the program after completing 71 of the 107 sessions. Although Mr Stephens had made some progress and it was considered that there had clearly been a shift in Mr Stephens' awareness and attitude to sexual violence from when he was first assessed in 2020, it was also considered, including by Mr Stephens, that he still had important treatment needs and remained a high risk serious offender.
On 20 September 2021 Solomon J accordingly determined to affirm the existing continuing detention order. His Honour found that he had little doubt that there was a real and sensible, and therefore, unacceptable, risk to the community that Mr Stephens would commit a serious offence if he did not remain in custody, and that a supervision order would not be adequate to ensure that the community was adequately protected if Mr Stephens were to be released from custody.
The current application constitutes the second review of Mr Stephen's continuing detention, s 64(2)(b) of the Act requiring an offender's continuing detention to be reviewed as soon as practicable once 2 years have passed since the most recent review.
The purpose of the review process was explained by Hall J in State of Western Australia vCorbett[4] (in the context of the DSO Act, but in terms equally applicable to the process under the present Act) as follows:
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for a past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community, then the continuing need for detention must be considered: Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357. It does not follow from this that a court conducting an annual review is bound by the factual findings made at previous hearings. In practice, however, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community: Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 (Fiannaca J) [51].
…
The risk of reoffending may change over time. It may be affected by age, health, or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed by a supervision order. There is also the possibility that the risk may increase because of a failure of treatment or a relapse into deviant thinking.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, a mere welfare check: they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Decke [2009] WASC 312. [8] - [13]
[4] The State of Western Australia v Corbett [No 5] [2017] WASC 115.
Section 68 makes clear that the court, in carrying out a review of a continuing detention order, must first determine whether the offender remains a high risk serial offender. The court must rescind the continuing detention order if it finds that the offender is no longer a high risk serial offender.[5]
[5] Section 68(1)(a).
If the court finds that the offender remains a high risk serious offender, the court must either affirm the continuing detention order or make a supervision order in place of the continuing detention order.[6]
[6] Section 68(1)(b).
Section 68(2) mandates that the adequate protection of the community is the paramount consideration in determining whether to make a continuing detention order or a supervision order.
In determining whether a person remains a high risk serial offender the court is required to have regard to the matters set out in s 7(3), being:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g) the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j) any other relevant matter.
The evidence presented at the review hearing addressed:
(a)the level of continuing risk to the community posed by Mr Stephens;
(b)the progress made by Mr Stephens since the continuing detention order was made;
(c)Mr Stephens' further treatment needs; and
(d)what conditions should be imposed if a supervision order was to be made in relation to Mr Stephens.
At the hearing, the State relied upon 2 volumes of a book of materials,[7] which included reports prepared for the purposes of the review by Dr Wynn Owen, a consultant forensic psychiatrist, and Dr Sarah Barbas, a clinical and forensic psychologist.
[7] The first filed 6 June 2024 and the second 6 August 2024.

Each of Dr Wynn Owen and Dr Barbas met with Mr Stephens for some time for the purposes of preparing their respective reports, which were based on those meetings as well as their review of relevant documentation and discussion with others who had interacted with Mr Stephens.
Both Dr Wynn Owen and Dr Barbas reported that Mr Stephens had co‑operated in their respective meetings with him.
Both were well placed to assess any progress Mr Stephens had made since the last review in 2021, and whether that progress was genuine. Dr Wynn Owen had prepared reports in April 2020 and August 2021 respectively for the purposes of the hearings before Tottle J and Solomon J, while Dr Barbas had prepared a report for the review hearing before Solomon J.
The court also received a Community Supervision Assessment prepared by Katrina Czechowski, a Senior Community Corrections Officer, which (amongst other things) addressed the conditions which might be imposed were a supervision order to be made.
Dr Wynn Owen, Dr Barbas and Ms Czechowski all gave oral evidence in the course of the review hearing. I had no hesitation in accepting their evidence.
As to the risk currently posed by Mr Stephens, Dr Wynn Owen undertook an assessment of the risk Mr Stephens will commit a serious offence in the future, combining actuarial and non-actuarial risk assessment tools (being the STATIC-99R (2016 revision) and Risk for Sexual Violence Protocol) in combination with a clinical psychiatric assessment.
Dr Wynn Owen considered that Mr Stephens' attitude towards his past offending remained unchanged since he had last been assessed in 2021, reporting that Mr Stephens expressed empathy for his victims and remorse for his actions, and that he accepts responsibility for his actions in 1999 and 2005. Mr Stephens maintains that he has no recollection of his offending in 1993, while stating that it is unlikely that his victim would lie about it.
As it was in 2020 and 2021, Mr Stephens' Static-99R score was in the IVb or Well Above Average Risk category, suggesting that there is a risk of approximately 25.7%[8] that Mr Stephens will re-offend within 5 years of release.
[8] Being the midrange of the 21.5% to 30.3% probability of re-offending by individuals in the 'high risk and high needs' sample with the same STATIC-99R score as Mr Stephens.
The fact that Mr Stephens' STATIC-99R score has remained unchanged over that time is unremarkable, due to Mr Stephens having been in custody throughout the period during which he has been assessed by Dr Wynn Owen and the STATIC-99R assessment itself being based on static or historical factors.
Dr Wynn Owen also assessed Mr Stephens using the Risk for Sexual Violence Protocol structured clinical judgment framework, as he had done in 2020 and 2021.
His assessment of Mr Stephens' sexual violence history risk factors, each of which was present, remains unchanged from that in 2020, as each relates to historical events.
Of the factors related to psychological adjustment, Dr Wynn Owen found the extreme minimisation or denial of sexual violence risk factor to be present, as well as the risk factor problems resulting from child abuse. As already mentioned, Mr Stephens reported that he does not recall offending in 1993, but accepts that it is unlikely that his victim would lie about the offence.
Dr Wynn Owen found that the risk factor problems with self‑awareness to be present but reducing, Mr Stephens having developed an improved understanding of the antecedents to his serious offending, although Mr Stephens' insight into sexually deviant thinking remains limited.
The risk factor problems with stress or coping remains present, but is reported by Dr Wynn Owen to have moderated with time, group participation and individual counselling, with Mr Stephens now able to describe a number of strategies to address stress.
Regarding the factors relating to mental disorder, Dr Wynn Owen assesses the risk factor sexual deviance to be definitely present, Mr Stephens experiencing ongoing sexual thoughts and fantasies about prepubescent boys aged 11 to 14, although Mr Stephens reports that the frequency of those thoughts has reduced.
Dr Wynn Owen considered the risk factor psychopathic personality to remain partially present, Mr Stephens' score on the Hare Psychopathy Checklist-Revised indicating moderate to high levels of psychopathy. I note that in 2020 Dr Wynn Owen considered that Mr Stephens' score is accepted in many international jurisdictions as contributing to an increased risk of future offending.
The risk factor problems with substance abuse is said to be definitely present, although Mr Stephens has been abstinent while incarcerated and reported to Dr Wynn Owen that he intends to avoid drugs and alcohol and to seek counselling and assistance from a drug and alcohol service should he be released.
Turning to the social adjustment factors, Dr Wynn Owen reports that the risk factors problems with intimate relationships and problems with non-intimate relationships both remain definitely present.
Dr Wynn Owen's evidence is that problems with intimate and non‑intimate relationships, loneliness and social isolation are associated with an increased likelihood of future sexual violence.
The risk factor problems with employment is present. Mr Stephens was reported by Dr Wynn Owen to have acknowledged that in the past the stress of unemployment and associated debts was a significant factor in his offending in 2005.
Further, in Mr Stephens' case, unemployment could result in financial stress, boredom, a sense of being unable to participate in society, and resentment. Dr Wynn Owen considers that having unstructured time to himself could lead Mr Stephens to engage in rumination and distraction, which is likely to increase his risk of offending. I note that it is anticipated that Mr Stephens will be reliant on Centrelink benefits if released.
The risk factor non-sexual criminality, which is associated with an increased risk of sexual offending, is also present. Although Mr Stephens committed relatively few offences over the period in question, Dr Wynn Owen assessed the diversity of his offending and the duration over which it occurred as indicators of entrenched anti-social attitudes.
Dr Wynn Owen assesses the risk factor problems with planning to be present, based on Mr Stephen's past offending, with Mr Stephens' ability to adhere to his proposed self-management plan and supervision order conditions yet to be tested.
The risk factor problems with treatment is present but assessed by Dr Wynn Owen to have moderated. His assessment is that Mr Stephens has gained better insight into some of the factors underlying his offending through individual counselling and completing the ISOTP, but that it is clear that Mr Stephens still has outstanding treatment needs.
The risk factor problems with supervision is also present, Mr Stephens not having demonstrated help seeking in the past. Further, his personality is such that this factor remains a problem, so that Mr Stephens will be at increased risk of reoffending if he does not openly disclose issues and problems to his Community Corrections Officer and psychologist.
Dr Wynn Owen considers that the most likely offence Mr Stephens might commit is a repeat of his most recent offending, involving his befriending and grooming a male child met in the community, and oral penetration. There is a risk that Mr Stephens' offending may escalate to include anal penetration, with some degree of physical coercion.
In Dr Wynn Owen's opinion, Mr Stephens would be socially isolated and immediately under financial stress, a situation which he had managed poorly in the past, if Mr Stephens were to be released without being subject to a supervision order. Dr Wynn Owen's evidence is that Mr Stephens might reoffend within a year of release if he is not subject to a supervision order.
In Dr Wynn Owen's opinion, Mr Stephens presents a high risk of committing a serious offence if not subject to a restriction order. The risk of his doing so is associated principally with sexual deviance and personality, with the risks which can be potentially be moderated including emotional regulation and stress management, avoidant and isolatory behaviours, alcohol and substance use and management of deviant sexual thinking and arousal.
Dr Wynn Owen's evidence was that, although Mr Stephens is likely to remain intermittingly aroused by children for the rest of his life, what can change is his ability to manage that arousal, and it was in that respect that he expected Mr Stephens would continue to receive treatment from his treating psychologist on a one to one basis.
Dr Barbas' report recorded that Mr Stephens has been previously diagnosed with paraphilia with paedophilic disorder and general personality disorder with both avoidant and antisocial personality disorders.
Dr Barbas reported that since 2005, Mr Stephens had engaged positively in a substance abuse program, 10 intervention sessions targeted towards psychological wellbeing, and three intensive sex offender programs, one of which he had not completed.
Dr Barbas considered that the reports regarding Mr Stephens' completion of the ISOTP indicated that he had responded well to cognitive behaviour therapy, and that Mr Stephens had made progress in developing insight into a range of issues, including cognitive distortions, sexual issues, negative emotionality and supervision. She assessed Mr Stephens to have developed further insight into utilising a range of coping strategies in relation to his identifying and expressing his emotions.
Dr Barbas also recorded that the forensic psychologist Mr Becker reported that he had seen Mr Stevens on 11 occasions during Mr Stephens' participation in the ISOTP, and had expressed the view that Mr Stephens had demonstrated improvement in his ability to regulate himself over the course of the program.
Mr Becker was recorded as having advised that Mr Stephens presented as willing to be forthcoming about deviant sexual thoughts and that he (Mr Stephens) had expressed feeling comfortable about discussing these issues with Mr Becker. Mr Becker had said that, in general, Mr Stephens had presented as insightful into his deviant thoughts and motivated to learn how to manage them.
Although Dr Barbas considered that Mr Stephens had made minimal progress on treatment needs associated with his sexual deviance, she noted that it is unlikely that Mr Stephens will never have such thoughts and feelings, given his diagnosis of paraphilia with paedophilic disorder.
Dr Barbas did, however, assess Mr Stephens as being motivated and committed to findings ways to managing his sexual thoughts and feelings towards children. She considered Mr Stephens to appear to have a cognitive understanding of his risk factor warning signs and the factors associated with his offending, and to continue to show good insight into his offending behaviour, personality and functioning. Although she considered Mr Stephens to have clear ongoing difficulty managing sexual thoughts about children, Dr Barbas considered Mr Stephens to be motivated to participate in further one-on-one treatment in that regard.
Overall, Dr Barbas considered Mr Stephens to have made some observable gains and to have engaged positively in treatment, but to have ongoing treatment needs associated with deviant sexual interests, cognitive distortions, intimacy and interpersonal deficits, self‑regulation, negative emotionality and relapse prevention.
Dr Barbas recommended that Mr Stephens continue to address those treatment needs through ongoing intervention. She recommended that if Mr Stephens were to be released pursuant to a supervision order that he meet weekly with Mr Becker, with his future treatment, management and support occurring in collaboration with all relevant agencies.
Further, Dr Barbas recommended that those agencies be wary of signs that Mr Stephens might be isolating himself, demonstrating secretive behaviour or becoming notably apathetic.
Dr Barbas also considered that Mr Stephens would require significant external controls over his behaviour if released to the community, with a particular focus on conditions preventing access to children and ensuring that he does not use alcohol or drugs.
Having regard to the evidence in respect of each of the matters set out in s 7(3) of the Act, and to the evidence of Dr Wynn Owen and Dr Barbas in particular, I am satisfied to a high degree of probability that it is necessary to make a restriction order in relation to Mr Stephens to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence if released. I find that Mr Stephens remains a high risk serious offender.
It being necessary that a restriction order be made in relation to Mr Stephens, the question is whether Mr Stephens should continue to be detained, or be released to the community subject to a supervision order.
I may only make a supervision order if Mr Stephens satisfies me on the balance of probabilities that he would substantially comply with the standard conditions of a supervision order.[9] The standard conditions are set out in s 30(2) of the Act.
[9] Section 29.
In this regard I adopt, without repeating, Fiannaca J's observations as to the meaning of 'substantially comply' in Director of Public Prosecutions for Western Australia v Hart[10] in s 23(1B) of the DSO Act, being the equivalent of s 29 of the Act.
[10] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
Critically, I must be satisfied that Mr Stephens will comply with the standard conditions in a manner and to the extent that will enable the adequate protection of the community by management and mitigation of the risk that he will commit a serious offence if released.
The evidence is that Mr Stephens was a quiet prisoner while residing at Acacia Prison, who was usually observed to keep to himself and presented no issues when interacting with his peers. Since his relocation to Bunbury Prison in August 2023, Mr Stephens is reported to have generally kept to himself and was not considered a management problem.
The evidence of both Dr Wynn Owen and Dr Barbas was to the effect that Mr Stephens was genuine in expressing his willingness to comply with the conditions of a supervision order. Further, Dr Wynn Owen's evidence was that Mr Stephens had indicated that he was willing to receive anti‑libidinal medication as part of his future treatment.
In the circumstances, I am satisfied that Mr Stephens would substantially comply with the standard conditions of a suspension order.
As to whether a supervision order should be made, the State did not oppose the making of a supervision order if the court considered that to appropriate.
Mr Stephens is 58 years old. As already noted, he has been in prison for the last 19 years.
Both Dr Wynn Owen and Dr Barbas, both of whom gave evidence before Solomon J on the last review, are now of the opinion that it is appropriate to release Mr Stephens to the community, provided that he is subject to a supervision order.
In particular, Dr Barbas expressed the opinion that Mr Stephens' treatment could not be advanced if he were to remain in prison, because he would not have the opportunity to put what he has learned from the ISOTP into practice.
The State has proposed 54 conditions, in addition to the standard conditions required by s 30(2), should a supervision order be made. Those conditions essentially:
(a)address where Mr Stephens will live;
(b)require him to report to a Community Corrections Officer (CCO) as directed by the CCO, and to comply with the lawful orders and directions of CCOs;
(c)consult with any medical practitioner, psychiatrist, psychologist or other support person as directed by a CCO;
(d)comply with all programs designed to address his offending behaviour;
(e)undertake any medication regime, including anti-libidinal treatment, as directed by the CCO in consultation with a medical practitioner;
(f)permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of Mr Stephens' medical treatment, including whether Mr Stephens has ceased recommended treatment, and opinions regarding his risk of re‑offending;
(g)permit regular visits from police officers and permit those officers to search Mr Stephens, his home and his vehicle;
(h)put in place a disclosure regime that permits CCOs to disclose Mr Stephens' past offences to his associates and potential associates;
(i)prevent Mr Stephens from having contact with the victims of his offending;
(j)prohibit Mr Stephens being in the vicinity of persons under the age of 18 years, except in very limited circumstances;
(k)impose a curfew;
(l)prohibit Mr Stephens from conducting any internet or electronic search relating to children, teens or adolescents;
(m)authorise police and Community Corrections Officers to search any electronic device in Mr Stephens' possession;
(n)require Mr Stephens to report his activities each week, and to provide a plan of his proposed activities each week in advance, or as the CCO otherwise orders.
The conditions proposed by the State are extensive and stringent. Mr Stephens did not take issue with them. I am satisfied that the proposed conditions will enable those responsible for supervising Mr Stephens' conduct to detect, at an early stage, anything which may indicate an increase in the risk of him reoffending, while facilitating his reintegration into the community.
In particular, I am satisfied that the conditions requiring Mr Stephens to be subject to electronic monitoring, report his activities to his CCO and provide a plan of his proposed activities each week will provide safeguards against the risks identified by Dr Wynn Owen and Dr Barbas arising from Mr Stephens becoming isolated in the community, demonstrating secretive behaviour or becoming notably apathetic.
A further consideration in favour of the making of a supervision order is Dr Wynn Owen's recommendation that Mr Stephens receive anti-libidinal medication if he be released.
That treatment will, in Dr Wynn Owen's opinion, have two consequences.
First, it is likely to reduce the risk of Mr Stephens' reoffending by lowering his libido and sexual thinking. Dr Wynn Owen's evidence was that the proposed medication would likely reduce Mr Stephens' testosterone levels to those of a pre-pubescent boy.
Secondly, the anti-libidinal therapy is likely to improve Mr Stephens' capacity and willingness to engage in therapy to address his sexual deviances. Dr Wynn Owen's evidence is that Mr Stephens' treatment with his treating psychologist is likely to be more successful if he receives the proposed anti-libidinal medication.
In my view, having regard to Mr Stephens' diagnosis of paraphilia with paedophilic disorder and his ongoing treatment needs, a condition that Mr Stephens receive anti-libidinal medication while undergoing treatment is likely to substantially reduce the risk posed to the community by Mr Stephens upon release while also allowing his ongoing treatment needs to be addressed.
As the supervision order contemplates that the administration of the anti-libidinal medication will be supervised and that Mr Stephens' psychologist will report any failure by him to attend treatment, I am satisfied that the proposed conditions provide adequate safeguards to ensure that Mr Stephens receives the recommended treatment.
In that regard, although both Tottle and Solomon JJ previously recommended that Mr Stephens be trialled on anti-libidinal medication, it appears that recommendation was not implemented. Whether Mr Stephens will have an adverse reaction to the proposed medication is therefore not presently known.
It is also necessary for Mr Stephens to give fully informed consent to the proposed treatment. Although Mr Stephens has indicated that he is prepared to undergo the proposed treatment, he is yet to be fully informed of its possible side effects.

I have assumed that Mr Stephens will give that consent, having already agreed to undergo anti-libidinal treatment in principle, and because Dr Wynn Owen's evidence was to the effect that the side effects from the proposed medication are reversible.
It is also important that suitable accommodation is available for Mr Stephens. Uniting WA proposes to provide accommodation with associated reintegration supports to Mr Stephens should he be released.
Each of Dr Wynn Owen, Dr Barbas and the Community Offender Management Unit consider the proposed accommodation to be appropriate.
I therefore find, having regard to the paramount need to ensure adequate protection of the community, that a supervision order in the terms proposed by the State will enable adequate management of the risk that Mr Stephens currently presents to the community, provided that Mr Stephens consents to receiving anti-libidinal medication as proposed by Dr Wynn Owen.
I will accordingly make a supervision order in terms of the minute attached to these reasons.
Those orders will commence not less than 21 days after they are made, having regard to the need for arrangements to be made to implement the contemplated supervision of Mr Stephens and his accommodation.
Mr Stephens' informed consent to the administration of the anti‑libidinal medication should therefore be obtained and the administration of those drugs should commence within that 21 day period, so that his reaction to that treatment can be assessed prior to his release.
As to the duration of the supervision order, in my view the determining factors in setting the term of the order is the period by which Mr Stephens should be able to make appreciable gains in his rehabilitation and achieve some stability while living in the community.
Both Dr Wynn Owen and Dr Barbas are of the opinion that Mr Stephens requires an opportunity to put what he has learned about the management of his conduct into practice while living in the community. I note that both are of the opinion that any order should be for the period for five to eight years.
That opinion, in the case of Dr Wynn Owen, has been reached on the basis that Mr Stephens should receive anti-libidinal treatment for two to three years, followed by the opportunity to continue therapy for a further two years once he is no longer receiving those drugs.
Taking into account the lack of any mechanism under the Act by which the period of a supervision order can be reduced, I consider that the supervision order should be for a period of four years, commencing on the date of Mr Stephens' release of custody. That should provide sufficient time for Mr Stephens to receive treatment with the benefit of the anti-libidinal medication, while providing a further one to two years after he has ceased to take that medication in which to assess his conduct.
If the State considers that Mr Stephens remains a high risk serious offender prior to the expiration of that four year period, it may apply for a new supervision order, to run continuously from the expiration of the supervision order that I will now make. Any new supervision order that might then be made can then be framed by reference to Mr Stephens' progress.
Finally, during the hearing of the application the State applied for an order suppressing the publication of the address of Mr Stephens' proposed residence.
Members of a community have a legitimate interest in knowing that offenders are living in their community. However, that interest must be balanced against the potential for subversion of any supervision order made.[11]
[11] The State of Western Australia v Jonsson [ No 3] [2019] WASC 463 [148] - [149]; The State of Western Australia v JXK [No 3] [2023] WASC 23 [184].
I am satisfied that it is necessary for the proper administration of justice that the address of the proposed residence, which is being provided by Uniting WA, be suppressed. Given the nature of Mr Stephens' past offending, the risk that the proposed residence could become unsuitable as accommodation for Mr Stephens were his address to be published is, in my view, obvious.
Having regard to the limited accommodation options available to Mr Stephens, it is necessary that the address of the proposed residence be suppressed in order that the supervision order can be given effect, and I will accordingly order that the full address of the proposed residence be suppressed.

ANNEXURE A

SUPERVISION ORDER MADE BY

THE HON JUSTICE COBBY ON 25 SEPTEMBER 2024

Pursuant to section 68(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of four years from 16 October 2024, not being a date earlier than 21 days from the date this Order is made, on the following conditions:

You, PAUL ANDREW STEPHENS, must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth, within 48 hours of this order being issued and advise the officer of your current name and address;

Report to and receive visits from, a CCO as directed by the court;

Notify a CCO of every change of the person's name, place of residence, or place of employment at least 2 business days before the change happens;

Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
Not leave, or stay out of the State of Western Australia without the permission of a CCO;

Not commit a serious offence during the period of the Order;

Be subject to electronic monitoring under section 31 of the Act;

ADDITIONAL CONDITIONS

Residence

Take up residence at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you;

Reporting to a CCO and supervision by a CCO

Report to a CCO at your approved address within normal business hours on the day of release from custody under this order;

Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO, including reporting to, and receiving visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of you;

Not commence or change paid or unpaid employment, volunteer work, education or training without the prior approval of a CCO;

Attendance at programs or treatment

Consult, engage with and attend appointments or receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;

Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO;Reporting to WA Police
Report to the Officer-in-Charge of the Serious Offender Management Squad ('SOMS') at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the SOMS or his/her delegate;

Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA);

If requested, permit Police Officers to enter and search your residence, and/or vehicle, and/or search your person for the purpose of monitoring your compliance with your obligations under this order and seize anything they deem required to monitor your compliance under this order;

Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020 (WA);

When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you;

Disclosure/Exchange of Information

Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;

Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice;
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;

Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending, or their families, within 48 hours of such contact occurring;

Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997 (WA);

Criminal conduct

Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;

Not commit an offence under section 202, 203, 204, or 557K Criminal Code 1913 (WA) or section 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA);

Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA);

Not possess, or consume, or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 (WA), and your use is in accordance with the instructions of the prescriber;

Curfew

Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020 (WA), such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;

When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;

Medications/Mental Health

To engage with mental health services and to obey the instructions of the treating psychiatrist with regard to treatment and medication;

Undertake any medication regime, including medication for hormonal or non-hormonal anti-libidinal treatment, as directed by the CCO in consultation with a medical practitioner(s) and comply with all testing to monitor your compliance with that treatment as directed by a CCO;

Comply fully with any treatment prescribed pursuant to condition 33;

Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice;

Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect, that you have, or intended to, cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment;

Prevention of high-risk situations

Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
Not possess, or consume, or purchase, or use alcohol unless approved in advance by a CCO;

Not go or remain at any licensed premises unless permitted or required to do so for the following reasons:
(a)For averting or minimizing a serious risk of death or injury to yourself or another person;
(b)For a purpose, and for a duration, approved in advance by a CCO;
(c)On the order of a CCO or Police Officer;

Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;

To provide a valid sample for testing pursuant to condition 40;

Not remain in the presence of anyone who you believe to be, or ought to know, is affected by alcohol or a prohibited drug, who has a child or children under 18 years in their care full time or part time, unless the identity of such person, and/or the circumstances of such attendance are approved in advance by the CCO;

Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or request the persons consuming prohibited drugs to leave your residence;

Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction;

('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);

Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;

Provide details of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency;

Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and Police Officer upon request;

Maintain a written plan of your planned movements, activities and associations for the coming week and present this plan to the CCO and Police Officer upon request;

Report at your next contact with your CCO, the formation of any social association (of 2 or more contacts), domestic, romantic, sexual or otherwise intimate relationship by you with any person;

Report at your next contact with your CCO and Police any association or relationship by you with a person who has children under the age of 18 years in their care either full time or part time;

Not form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time, without prior approval of a CCO;

Not conduct computer searches for, nor collect or access, or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not; with the exception of images of your immediate family that are not indecent images, only if approved in advance by a CCO. Possession of such images depicting a child or children on items such as on household items, may be authorised by a CCO. You are directed to remove any items that may contravene this condition from your prison property, before release, or within 48 hours of release to this order, this will be confirmed by CCO and/or Police;

Not to conduct a search by a computer or other electronic means for any material relating to children, teens or adolescents or as otherwise directed by a CCO or Police;

As directed by a CCO, make full or part disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;

Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;

Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;

Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 55, without prior approval of the CCO;

Where possible, enable device locking or password access of your computer, telecommunication and/or electronic devices; Not provide or disclose passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 55, or any online accounts, to any person other than a CCO or Police Officer;

Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be requiredto access a device for instances such as technical advice, approval must be sought in advance from a CCO;

Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police; and

You must not assault, threaten, insult or use abusive language to a member of the departmental staff or an agent providing a service on behalf of the Department of Justice.

__________________________

THE HON JUSTICE COBBY

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Hon Justice Cobby
25 SEPTEMBER 2024