The State of Western Australia v Stephenson [No 2]
[2023] WASC 316
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- STEPHENSON [No 2] [2023] WASC 316
CORAM: FIANNACA J
HEARD: 20 APRIL, 14 JULY & 9 AUGUST 2023
DELIVERED : 21 AUGUST 2023
PUBLISHED : 21 AUGUST 2023
FILE NO/S: SO 7 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ANDREW PETER STEPHENSON
Respondent
Catchwords:
Dangerous sexual offender - High risk serious offender - Restriction order hearing - Supervision order - Enactment of High Risk Serious Offenders Act 2020 (WA)
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr D McDonnell |
| Respondent | : | Mr D Jones |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Mr D Jones |
Cases referred to in decision:
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Director of Public Prosecutions for Western Australia v Stephenson [2015] WASC 496
Garlett v The State of Western Australia [2022] HCA 30
The State of Western Australia v AB [No 3] [2022] WASC 126
The State of Western Australia v CF [2021] WASC 20
The State of Western Australia v Corbett [No 8] [2021] WASC 171
The State of Western Australia v Dragon [No 2] [2022] WASC 189
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Lewis [No 3] [2022] WASC 148
The State of Western Australia v MAM [2022] WASC 100
The State of Western Australia v Narrier [No 2] [2022] WASC 49
The State of Western Australia v Nelson [2021] WASC 460
The State of Western Australia v PAS [No 3] [2021] WASC 117
The State of Western Australia v Sandwell [2022] WASC 206
The State of Western Australia v ZSJ [2020] WASC 330
Table of Contents
The application and its history
Background
History of convictions
Previous findings and supervision order under the DSO Act in 2015
Proceedings in 2016 leading to amendment of the supervision order
The respondent's contravention of the supervision order after 8 November 2017
The making of the restriction order application
Statutory framework and legal principles
The issues in this application
Evidence
Consideration of the matters under 7(3) of the HRSO Act
Respondent's antecedents and criminal history
(i) Family background and developmental history
(ii) Education and employment
(iii) Social development
(iv) Substance use
(v) Criminal history
Propensity and pattern of offending
Rehabilitation programmes and efforts to address causes of offending
Think First (Sex Offender) Program: September - December 2012
Intensive Sex Offender Treatment Program: May - November 2013
Individual Treatment
Ms Thatcher's report and evidence
Ms Collyer's report
Psychiatric and psychological evidence in respect of risk
Diagnosis of paedophilia
Concerns arising from the respondent's accounts of his offending
Formal risk assessments
Static-99R
Dr Wojnarowska
RSVP - Risk factors
RSVP - Risk scenarios
Respondent's ability to cope with stress
Dr Wojnarowska's conclusions
High risk
Supervision order can adequately mitigate risk
Duration of supervision order
Dr Wojnarowska's recommendations
Dr Yewers
VRS-SO
Explanation of the instrument and overall results
Significant risk factors
Risk factors that are present to a lesser degree
Areas of lower risk that only require monitoring or low intensity treatment
Variables not present
Risk scenarios
Dr Yewers' conclusions
The respondent is a high risk serious offender
Continuing detention order or supervision order
General matters
Consideration of relevant matters in this case
Conclusion - supervision order appropriate
Conditions
Accommodation
What is required?
CSA Report
The accommodation proposed initially was not suitable
Accommodation update
Duration of order
Commencement date
Suppression order
Appendix A
FIANNACA J:
The application and its history
This is an application by the State of Western Australia, under s 36(1) of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act), for a restriction order in relation to the respondent, who, at the time of the application, was a serious offender who was subject to a supervision order that was to expire within one year of the date of the application (the previous supervision order).[1] The HRSO Act provides for two forms of restriction order. The first is a continuing detention order (CDO), being an order that the respondent be detained in custody for an indefinite term for control, care or treatment.[2]The second is a supervision order, being an order that the respondent be subject to conditions when not in custody.[3] An application under s 36(1) of the HRSO Act must specify which form of restriction order is sought.[4] At the time of making the application, the State sought a CDO.[5] At the hearing, on 20 April 2023, counsel for the State indicated that, had suitable accommodation been available for the release of the respondent on a supervision order, the State would have submitted that a supervision order would be the appropriate restriction order.[6] However, the State submitted that the accommodation that had been proposed by the respondent would not be suitable to ensure adequate protection of the community, and that, therefore, if the court found that the respondent is a high risk serious offender, the appropriate order would be a CDO.
[1] As will be explained below, the supervision order had been made under the Dangerous Sexual Offenders Act 2006 (WA) (repealed), but by virtue of s 125 of the HRSO Act continued to have effect as a supervision order under the HRSO Act.
[2] HRSO Act s 3 and s 26(1).
[3] HRSO Act s 3 and s 27(1).
[4] HRSO Act s 36(2).
[5] Application dated 2 December 2020.
[6] ts 415.
Before the court can make a restriction order, it must be satisfied that the respondent is a high risk serious offender.[7] This requires the court to be satisfied that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence, as defined in the HRSO Act.[8]
[7] HRSO Act s 48(1).
[8] HRSO Act s 7(1).
The application was made on 2 December 2020. In accordance with s 43 of the HRSO Act, the application was listed for a preliminary hearing, which was heard on 30 April 2021 by Curthoys J. His Honour was satisfied that there were reasonable grounds for believing that the court might, in accordance with s 7 of the HRSO Act, find that the respondent is a high risk serious offender. Accordingly, his Honour made orders under s 46(2) programming the application for a hearing, including orders that the respondent undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with s 74 of the HRSO Act to be used on the hearing of the restriction order application. His Honour also made an order under s 46(2)(c) that the respondent be detained in custody until conclusion of the hearing and judgment on the restriction order application.
As will appear below, prior to making the application for a restriction order, the State had made an application on 6 May 2020 to commence proceedings under s 23(1)(a) of the Dangerous Sexual Offenders Act 2006 (WA) (repealed) (DSO Act), in respect of an alleged contravention by the respondent of the previous supervision order that had been made under that Act, which was the predecessor of the HRSO Act. The previous supervision order had been made by Allanson J on 24 December 2015, after his Honour had found that the respondent was a serious danger to the community in proceedings under s 17 of the DSO Act.[9] I will outline his Honour's findings more generally in the next section of these reasons.
[9] Director of Public Prosecutions for Western Australia v Stephenson [2015] WASC 496 (DPP v Stephenson).
The application made by the State on 6 May 2020 sought an order that the previous supervision order be rescinded and a CDO be made in relation to the respondent, or that the previous supervision order be amended, or its period be extended. The period of the previous supervision order was for five years from 24 December 2015, so it ended on 23 December 2020.
By a Discontinuance of Application, dated 13 April 2023, the State discontinued the application under s 23(1)(a) of the DSO Act, prior to the date set for the hearing of both the contravention proceedings (which would have proceeded under the HRSO Act, by virtue of the transitional provisions in the HRSO Act[10]) and the application under the HRSO Act for a restriction order. That was appropriate, given that the period of the previous supervision order had expired. Consequently, the hearing on 20 April 2023 was only in respect of the restriction order application made on 3 December 2020. I note that, by s 38(b) of the HRSO Act, the restriction order application, which was made under s 36 within time, was able to proceed, notwithstanding that, while the application was pending, the respondent ceased to be subject to the previous supervision order, the existence of which had grounded the application under s 36. The respondent remained subject to the detention order made under s 46(2)(c) of the HRSO Act.
[10] HRSO Act s 124.
At the hearing on 20 April 2023, the application was supported by a book of materials in two volumes (BOM), which I will describe in more detail below. It is sufficient to note that it included the reports of the psychiatrist and qualified psychologist prepared under s 74 of the HRSO Act. The BOM was received as exhibit 1 in the proceedings. The application was also supported by the oral evidence of four witnesses given at the hearing, including the psychiatrist and qualified psychologist.
It was not in issue at the hearing on 20 April 2023 that the evidence supported the conclusion that the respondent is a high risk serious offender. The issue was which restriction order should be made, particularly having regard to the paramount consideration of needing to ensure adequate protection of the community. The respondent submitted that the evidence supported the conclusion that a supervision order was appropriate, and that I could be satisfied that the accommodation that had been proposed by the respondent as his place of residence, if released subject to such order, would be suitable, despite concerns that had been expressed by the expert witnesses about its suitability, as I will discuss below. As I noted above, the State's position at that stage was that the accommodation proposed by the respondent was not suitable, for reasons identified by the expert witnesses, and consequently the only appropriate restriction order to make in the absence of suitable accommodation was a CDO.
At the conclusion of the hearing, I reserved my decision. The respondent continued to be detained pursuant to the detention order made by Curthoys J on 30 April 2021. As will appear below, after giving the matter due consideration, I was satisfied that the respondent is a high risk serious offender and I would have concluded that the appropriate restriction order was a CDO, as I was left in doubt about the suitability of the proposed accommodation and, therefore, whether a supervision order would ensure adequate protection of the community.
Before I was able to deliver my decision with detailed reasons, as required by s 28 of the HRSO Act, the court was informed by the State by correspondence on 5 July 2023, copied to the respondent's lawyer, that there had been a development in respect of accommodation. A house had become available for the respondent under the private rental stream of the High Risk Serious Offender Supported Accommodation Program, and the property was being assessed by relevant authorities for its suitability as a residence for the respondent, if he were to be released on a supervision order. The State noted that, if the property was assessed to be suitable, then, consistent with its submissions at the hearing of 20 April 2023, its position would be that a supervision order is the appropriate restriction order.
The State subsequently filed an application, dated 11 July 2023, to adduce further evidence in the restriction order application in respect of the issue of accommodation. The application was supported by an affidavit of counsel for the State, Mr Daniel Sean McDonnell, which annexed an email from Ms Aimee Goode, Team Leader at the Community Offender Monitoring Unit (COMU), Corrective Services, Department of Justice (the Department), informing the State of the development.
The application to adduce further evidence was heard and granted on 14 July 2023, and the further evidence was heard on 9 August 2023. At that hearing, Ms Julie Dabala, a Senior Community Corrections Officer with the Department, gave evidence that the property had been assessed by the relevant authorities to be suitable as a residence for the purposes of supervising the respondent pursuant to a supervision order containing conditions as had been proposed previously. The State also recalled the psychiatrist who had given evidence at the hearing on 20 April 2023, Dr Gosia Wojnarowska, who said she had no concerns with the proposed residence. Dr Wojnarowska also addressed an issue concerning pharmaceutical treatment, which will be relevant to the conditions of a supervision order.
After hearing further submissions from the parties on 9 August 2023, I again reserved my decision, stating I would deliver judgment on 16 August 2023.
For the reasons that follow, I am satisfied on cogent evidence and to a high degree of probability that the respondent is a high risk serious offender. I am also satisfied that the appropriate restriction order is a supervision order in the terms of Appendix A to these reasons.
Background
The application has been made against the following background.
History of convictions
The respondent has a history of convictions for serious sexual offending against children under the age of 13 years, consisting of offences of sexual penetration, indecent dealing and indecently recording a child under the age of 13 years. Those offences occurred from 1 July 1997 to 28 February 1998, and from 1 July 2004 to 30 December 2004. He also has a history of convictions for offences in 2004 and 2009 of possessing what was then referred to as child pornography, and which is now referred to as child exploitation material. He also has a conviction for an offence of possessing child exploitation material, which was committed in April 2020. For all of those offences he was sentenced to terms of imprisonment.
Previous findings and supervision order under the DSO Act in 2015
Further, as I have already stated, the respondent has previously been found to be a serious danger to the community under the DSO Act.[11] That Act provided, in similar terms to the HRSO Act, for the making of CDOs and supervision orders if an offender was found to be a serious danger to the community, in the sense that there was an unacceptable risk that he would commit a serious sexual offence if not subject to one of those orders.[12]
[11] DPP v Stephenson [75].
[12] DSO Act s 7.
In concluding that the respondent was a serious danger to the community, Allanson J relied on evidence adduced at a hearing conducted on 17, 18 and 21 December 2015, including evidence in respect of the respondent's history of offending and his efforts to address the causes of his sexual offending in two rehabilitation programmes, and the evidence of two psychiatrists who prepared reports under the DSO Act, Dr Sam Febbo and Dr Wojnarowska.
In respect of the respondent's offending, his Honour found that it demonstrated a propensity to commit sexual offences against children and that there was 'some pattern' to his offending, in that, in each case the respondent befriended and formed a relationship with the parent, or parents, of the victim, and the children were all pre-pubescent, two of them being girls who were five years old.[13] His Honour also noted that the pornography offences demonstrated continuing sexual fantasies about young children, and a continuing belief in children as willing participants in sexual acts.[14]
[13] DPP v Stephenson [49], [54] - [55].
[14] DPP v Stephenson [56].
His Honour noted that both psychiatrists were experienced and well‑qualified to give expert opinion on the issues arising in the case.[15] He noted that each of them evaluated the respondent's risk of committing a further serious sexual offence 'by reference to various risk assessment tools - some of which involve a scoring of specified factors - and also by applying his or her clinical judgment and experience.'[16] Both experts were of the opinion that the risk of the respondent committing a further serious sexual offence was high if he were not subject to an order under the DSO Act.[17] Allanson J explained that there were primarily two factors that had led the experts to that opinion:[18]
First, there is the statistical evidence based on the Static-99 factors: these are factors relating to [the respondent's] history and offending history that have been found to correlate with a high risk of re‑offending in the long term. There is no dispute that [the respondent] falls into the high risk group under Static-99. It is, however, only a statistical measure that says nothing about the individual.
Second, and more significantly, [the respondent] meets the criteria for sexual deviance. His paedophilic disorder is not exclusive, and he also has sexual interest in adult partners. But he is sexually attracted to prepubescent children, particularly young females. That attraction has two components. There is a component of sexual gratification, but also a desire for emotional connection that [the respondent] has not found in adult relationships. It is this sexual deviance which is the real risk factor.
[15] DPP v Stephenson [31].
[16] DPP v Stephenson [33].
[17] DPP v Stephenson [36], [39].
[18] DPP v Stephenson [37] - [38].
His Honour said that both psychiatrists considered that the respondent required further treatment, including intensive psychological treatment directed to his sexual deviance, to manage his risk of re-offending in a similar manner.[19] As it is relevant to my consideration of the extent, if any, to which the respondent's insight into his offending has progressed, it is appropriate to note the following part of his Honour's reasons setting out views expressed by Dr Wojnarowska:[20]
Dr Wojnarowska commented that while [the respondent] now accepted that a child aged five is unable to consent, he still expressed the opinion (until challenged) that the child in the 2004 offences was not sexually naive and was a willing participant in what had occurred. She continued:
His difficulty in this area, in my opinion, is closely related to his deeply entrenched perception of children as 'small adults' consistent with his identification with children and the presence of paedophilic interest in them.
[19] DPP v Stephenson [39].
[20] DPP v Stephenson [39].
Allanson J noted that the experts had maintained their opinions despite accepting propositions put to them in cross-examination by the respondent's counsel to the effect that the respondent was not psychopathic, he had insight into his sexual offending, he had participated in two rehabilitation programmes and had learned techniques to self-manage his deviant impulses, he was motivated to address his sexual deviance, his paedophilia was not exclusive, and, at the age of 50, his sex drive would lower with age.[21]
[21] DPP v Stephenson [41] - [42].
However, his Honour considered it important that the psychiatric evidence strongly supported the finding that the respondent was unlikely to offend impulsively, and that, even without further treatment, a sexual offence against a stranger was most unlikely.[22] His Honour said:[23]
Significantly, both doctors are of the opinion that were [the respondent] to reoffend in the future by committing a serious sexual offence, the offending would be similar to his previous offending. That is, it would follow the development of a relationship with the adult parent or carer of the child and the development of a caring role towards the child.
[22] DPP v Stephenson [43].
[23] DPP v Stephenson [51].
His Honour further noted:[24]
The 'grooming' leading up to sexual offending was not simply the method by which [the respondent] obtained the trust of the parents so as to gain access to the child for sexual gratification. Rather it was a part of a process by which [the respondent] formed an emotional attachment to the child with the resulting sexual conduct being not merely for sexual gratification but also out of his desire for intimacy or closeness.
[24] DPP v Stephenson [53].
His Honour accepted that, 'with treatment, ultimately [the respondent] should be able to manage himself and he is well along that path', but noted that both experts believed the respondent still required external control.[25] His Honour characterised the need for protection of the community as follows:[26]
Because of the nature of the offending, and the likely age of any potential victim, any offence is likely to cause significant harm and have serious consequences for the victim and others. There is a demonstrated need to protect the members of the community from the risk of re-offending.
The critical issue is how best to provide that protection. The risk of further offending is not imminent. The nature of [the respondent's] offending proceeds from establishing a relationship with adults who have a young child or children - something which is likely to be prolonged and sophisticated. This is not just because [the respondent] would need to win the trust of the parent or carer, but because emotional attachment to the victim is part of his own pathway to offending. He is unlikely to offend impulsively, or against an unknown child, or to abduct a child.
[25] DPP v Stephenson [43].
[26] DPP v Stephenson [67] - [68].
His Honour summarised his reasons for concluding that the respondent was a serious danger to the community as follows:[27]
I have set out my findings on the factors identified in s 7(3). On those findings, I am satisfied to the required standard that:
1.the risk of further offending arises from [the respondent's] paedophilia, which has led him to offend in the past;
2.without further treatment for his paedophilia and supervision of his conduct, the risk of [the respondent] committing a further sexual offence is high;
3.should [the respondent] re-offend, the offence would most likely be similar to his previous offending, including indecent dealings with or sexual penetration of a very young victim;
4.the risk is not imminent, in the sense that any offence is likely to follow a long and sophisticated process of grooming.
I have carefully considered counsel's submission on the alternative means to manage the risk of further offending. But after considering the nature of the risk and the likelihood of it being realised I am satisfied that the risk is unacceptable. I am so satisfied, taking into account the serious consequences of an order for [the respondent] during the period of the order, and despite the fact that his risk of re‑offending might be moderated by other means.
[27] DPP v Stephenson [76] - [77].
However, his Honour concluded that the respondent's risk could be managed on a supervision order, stating:[28]
The evidence supports a finding that Mr Stephenson requires further treatment, and that gains apparently made in treatment programs may not yet be consolidated. But the effect of the evidence is that the risk of further offending can be managed and the community may adequately be protected by treatment in the community, subject to a supervision order.
[28] DPP v Stephenson [80].
His Honour made a supervision order for a period of five years, commencing on the date of the decision, 24 December 2015, pursuant to which the respondent was subject to 34 conditions whilst in the community.[29]
[29] DPP v Stephenson, Appendix A.
At the time Allanson J delivered his decision, the respondent was due to be released from a sentence of imprisonment on 30 December 2015, having served a term of 11 years imprisonment imposed in the District Court in 2005 for serious sexual offences against children under the age of 13 years.
Proceedings in 2016 leading to amendment of the supervision order
After he was released subject to the previous supervision order, the respondent allegedly contravened conditions 21 and 32 of the order, which were in the following terms:
21.Not commit an offence under section 202, 203, 204, 204(a), 204(b), 217, 218, 219, 220 or 557K of the Criminal Code.
32.Not conduct any computer searches for nor collect in either electronic or permanent form images of children, whether indecent or not.
On 14 May 2016, the respondent was arrested and charged with one count of possessing child exploitation material contrary to s 220 of the Criminal Code and two counts of contravening a requirement of the previous supervision order, without reasonable excuse, contrary to s 40A of the DSO Act.[30] The contravention charges related to the respondent having several images of children on his laptop computer. They were not indecent images.[31] After his appearance on those charges in the Magistrates Court, the respondent was remanded in custody from 14 May 2016 to 8 November 2017, pending the determination of the charges. In respect of the charge of possessing child exploitation material, the respondent was committed to the District Court for trial. It appears that all of the charges were subsequently discontinued by the prosecution on 22 August 2017.[32]
[30] BOM 516 - Ex tempore decision of Allanson J, 8 November 2017, ts 7; BOM 602.
[31] BOM 602.
[32] BOM 602.
On 22 June 2016, the Director of Public Prosecutions (DPP) applied, pursuant to s 23 of the DSO Act, for an order rescinding the previous supervision order and making a CDO or, in the alternative, an order that the previous supervision order be amended, on the basis that the respondent had contravened conditions of the order. The application came before me on 28 June 2016, at which time I made an order, pursuant to s 24(a) of the DSO Act, that the respondent be detained in custody pending the determination of the application until further order of the court.
The respondent then remained in custody until the application was heard by Allanson J on 8 November 2017. By that stage, the State had discontinued the charge in the District Court in respect of possession of child exploitation material. As Allanson J noted, the withdrawal of the charge in the District Court did not resolve the contravention proceedings in this court.[33] However, the State no longer sought an order rescinding the previous supervision order and making a CDO. Rather, it joined with the respondent in proposing orders, pursuant to which the respondent would be released subject to amended conditions and the contravention proceedings would be withdrawn by the State.[34] The proposal was dealt with as an application by the respondent under s 19 of the DSO Act for an order under s 20 amending the conditions of the previous supervision order.[35]
[33] BOM 516 - Ex tempore decision of Allanson J, 8 November 2017, ts 7.
[34] BOM 516 - Ex tempore decision of Allanson J, 8 November 2017, ts 7.
[35] BOM 517 - Ex tempore decision of Allanson J, 8 November 2017, ts 8.
In giving his decision acceding to the proposal, Allanson J said:[36]
[The respondent] applies to amend the supervision order to add seven additional conditions. I won't read those conditions out now. I will, however, state that the effect of the new conditions is to augment the regime to which he will be subject, in particular by strengthening the powers of the Community Corrections officers and the police, to supervise his compliance with existing conditions, and in particular, conditions 21 and 32.
[36] BOM 517 - Ex tempore decision of Allanson J, 8 November 2017, ts 8.
His Honour noted that, under s 20 of the DSO Act, the court needed to be satisfied that the respondent was not able to comply with the conditions of the previous supervision order, because of a change in his circumstances, or the amendment was necessary or desirable for any other reason.[37] His Honour noted that the amendments were sought primarily on the ground that they were necessary or desirable.[38] One of the amendments was to the respondent's residential address specified in the conditions, which his Honour considered to be necessary because of a change in the respondent's circumstances, which meant that the address previously specified was no longer available to the respondent.[39]
[37] BOM 517 - Ex tempore decision of Allanson J, 8 November 2017, ts 8.
[38] BOM 517 - Ex tempore decision of Allanson J, 8 November 2017, ts 8.
[39] BOM 517 - 518 - Ex tempore decision of Allanson J, 8 November 2017, ts 8 - 9.
Allanson J noted:[40]
[The respondent] does not admit that he committed any offence while subject to supervised release, but the present application to amend recognises that supervision of his release and enforcement of the conditions to which he is subject would be assisted by the proposed additional conditions. I believe they would have that effect and that the amendment is desirable, and I make those findings, bearing in mind and fully appreciating that [the respondent] has made no admission.
[40] BOM 518 - Ex tempore decision of Allanson J, 8 November 2017, ts 9.
His Honour was satisfied that the conditions as amended would be sufficient to ensure the adequate protection of the community, noting that the expert evidence on which his Honour had relied in 2015 in ordering the respondent's release on a supervision order satisfied his Honour that 'while [the respondent's] sexual deviance is entrenched, it is unlikely or very unlikely that he would interfere with a child not known to him, or offend impulsively.'[41] His Honour went on to say:[42]
In short, the nature of his sexual offending should enable conduct which may be prefatory to the commission of an offence to be identified early, and before any offence. It is a risk which can be managed properly by supervision. Second, while in custody before release, [the respondent] participated in sex offender programs and reports on his participation and treatment gains were generally positive. In particular, he was reported to have developed strategies to assist him in self-management of his risk factors.
Third, while [the respondent] was charged with a breach of conditions of his release, it was not for the commission of a serious sexual offence and did not involve any contact with a child. There is nothing to suggest that … the assessment which I made on the evidence when [the respondent] was initially released was wrong. I made this finding on the evidence the community would be adequately protected, were [the respondent] released subject to a supervision order with appropriate conditions.
There are two reasons for that conclusion. First, the treatment needs of [the respondent] can be met outside of a custodial situation and second, while he requires supervision on release, with suitable conditions in place, the risk of his reoffending is very low. The court must also be satisfied that it's reasonable to make the amendment in all the circumstances. I have explained the nature and effect of the amendment and how it would enable better supervision of existing restrictions on [the respondent].
[41] BOM 518 - Ex tempore decision of Allanson J, 8 November 2017, ts 9.
[42] BOM 518 - 519 - Ex tempore decision of Allanson J, 8 November 2017, ts 9 - 10.
His Honour also took into account the attitude of the State through the DPP and the fact that the CEO of the Department had been given an opportunity to investigate the proposed amended conditions, and had not sought to put any further material before the court in opposition to the application.[43]
[43] BOM 519 - Ex tempore decision of Allanson J, 8 November 2017, ts 10.
At that time, the respondent was in custody only pursuant to the detention order I had made on 28 June 2016. The respondent was released from custody, subject to the amended supervision order.
The respondent's contravention of the supervision order after 8 November 2017
On 1 April 2019, police officers from the Sex Offender Management Squad (SOMS) of the Western Australia Police conducted a compliance check at the respondent's home.[44] The officers seized a number of DVDs which had images of children on the cases, as well as within the contents of the DVDs.[45] By being in possession of the images, the respondent was in breach of condition 32.1 of the previous supervision order. The respondent had also been issued with a written lawful instruction by a Community Corrections Officer (CCO) pursuant to the previous supervision order on 27 September 2018, which stated that he was 'not to draw, sketch, or be in possession of any images depicting children, whether indecent or not'.[46] The respondent was charged with contravening the previous supervision order (charge FR 3364 of 2019) and was released on bail after appearing in the Magistrates Court, apparently having spent two days in custody.[47]
[44] BOM 602.
[45] BOM 386, 602.
[46] BOM 602.
[47] BOM 602.
About a year later, while the 2019 contravention charge was still pending, the respondent was again arrested and charged with four offences of contravening the previous supervision order, and one offence of possessing child exploitation material (PE 20038 of 2020), arising from a compliance check conducted at the respondent's home by SOMS officers on 24 April 2020.[48] The police Statement of Material Facts for the offence of possessing child exploitation material suggests that it related to two images found on the respondent's computer of naked female children, whose ages were estimated to be between eight and 14 years.[49] However, that charge was committed to the District Court for trial, although it was ultimately dealt with on a plea of guilty, as I will describe below, and the facts upon which the respondent was sentenced concerned video recordings of prepubescent girls engaged in sexually suggestive activity.[50] Further, the ages of the girls in those videos was estimated to be between 10 and 13 years.[51]
[48] BOM 603.
[49] BOM 363, 603.
[50] BOM 369.
[51] BOM 370.
In any event, it appears from the relevant police Statement of Material Facts that the respondent's possession of the two images described earlier was the subject of two of the contravention charges (PE 20034 and 20035 of 2020), as it constituted a contravention of conditions 32.1 and 21 of the previous supervision order respectively (see [30] above).[52] The statement indicates that, when interviewed by police, the respondent claimed that he did not know how the images had come to be on his computer.[53]
[52] BOM 377 - 376, 603.
[53] BOM 377 - 378.
The other contravention charges related to:[54]
(1)deleting the search history on one of the internet browsers on the respondent's computer without approval from a CCO or a police officer, in breach of condition 32.3 (PE 20036 of 2020); and
(2)possessing headphones that were capable of being used to transmit or receive audio/video communication with online players through an electronic gaming console, which was contrary to a written lawful instruction given by his CCO and, therefore, in breach of condition 6 of the previous supervision order (PE 20037 of 2020).
[54] BOM 378 - 379, 603.
The Community Supervision Assessment Report (CSA Report), dated 14 April 2023, which was prepared for these proceedings, also indicates that the respondent contravened the previous supervision order by allowing a computer technology company to remotely access his computer for the purpose of maintaining functionality, without seeking permission from a CCO or a police officer.[55] That matter appears to have been the subject of charge PE 23664 of 2020. The CSA Report also indicates that the respondent contravened the supervision order by returning a urinalysis result on 20 April 2020 that was positive for cannabis.[56] That appears to have been the subject of charge PE 23665 of 2020.
[55] BOM 603.
[56] BOM 603.
The trial of the charge of possessing child exploitation material was listed to start in the District Court at Perth on 21 March 2022. After lengthy legal argument on the first day, the respondent entered a plea of guilty on 22 March 2022, before the jury was empanelled.[57] He was sentenced by Whitby DCJ on 23 March 2022 to a term of 12 months' imprisonment, backdated to commence on 24 April 2020.[58] Her Honour outlined the facts of the offending as follows:[59]
In summary, at around 9.20 am on 24 April 2020, police attended at your home address and conducted a compliance search in accordance with the supervision order dated 8 November 2017. As part of the search, police searched your Lenovo laptop computer.
During a forensic analysis of the computer police located child exploitation material; namely, four videos showing prepubescent girls dancing in their underwear, including sexually suggestive posing, touching one another and squirting baby oil on their underwear. You completed two police interviews where you admitted that the computer was yours, but stated that you did not how the videos came to be on there.
[57] BOM 370.
[58] BOM 373.
[59] BOM 369.
Her Honour noted the respondent's explanation for his offending as follows:[60]
You say that at the time of this offending you were going through an extremely stressful period. You had just been informed that you were to be the subject of an additional period of time, under which you would be a high risk serious offender.
You had up to that point in time been engaging with a clinical psychologist. However, that had reduced around the time of your offending. You say that at the time of your offending you had been informed that you were going to have some difficulties in publishing the book that you had been writing. You intended the book to be your source of income and therefore you found the prospect of not publishing it extremely stressful.
[60] BOM 369.
Her Honour noted that there were several factors of the offending that were properly to be regarded as aggravating factors, being the ages of the children (between 10 to 13 years), the fact that the material was in the form of video recordings rather than still photographs, and the fact that the respondent was subject to a supervision order at the time of his offending.[61] Her Honour correctly identified that possession of such material is by no means a victimless crime, noting that those who possess and distribute such material encourage its production, which involves and depicts the abuse, exploitation, humiliation and corruption of vulnerable children.[62]
[61] BOM 370.
[62] BOM 371.
Subsequently, on 1 November 2022, in the Perth Magistrates Court, the respondent pleaded guilty to charge FR 3364 of 2019 (contravening a supervision order by possessing images depicting children, whether indecent or not).[63] On 4 November 2022, he was sentenced to imprisonment for 1 month, backdated to commence on 25 April 2020, to be served concurrently with the sentence imposed in the District Court.[64] The remaining charges referred to above, relating to contraventions of the previous supervision order and using a prohibited drug, were discontinued by the police.[65]
The making of the restriction order application
[63] BOM 380 - 383, 603.
[64] BOM 380 - 384, 603.
[65] BOM 602.
As I noted at the start of these reasons, the present application for a restriction order was brought under s 36 of the HRSO Act on 2 December 2020. The effect of s 36(1) and (2) of the HRSO Act is that the State may apply to the Supreme Court for a restriction order in relation to a serious offender who is subject to a supervision order that will expire within one year. That was the case at the time the application was made, as the respondent's supervision order was due to end on 23 December 2020.
Section 57 of the HRSO Act provides that, where a person who is subject to a supervision order is sentenced to a term of imprisonment for any offence, whether committed before or after the supervision order was made, the period for which the supervision order applies is extended by any period after the order is made during which the offender is in custody serving the sentence of imprisonment. From 24 April 2020 the respondent was in custody on remand in respect of the charges I have outlined, including the offence for which he was subsequently sentenced to imprisonment on 23 March 2022. Although that sentence was backdated to commence on 24 April 2020, the respondent was not serving a sentence of imprisonment between 24 April 2020 and 23 December 2020, such as to extend the period of the previous supervision order.
However, the fact that the respondent was in custody on remand for a lengthy period, some of which ultimately constituted service of the sentence imposed on 23 March 2022, accounts for the lengthy delay in the restriction order application being determined. It meant that, by the time the respondent was assessed by the psychiatrist and qualified psychologist appointed to prepare reports for these proceedings, a considerable period of time had elapsed since he was in the community on a supervision order.
Statutory framework and legal principles
The application is to be dealt with under s 48 of the HRSO Act, which reads:
(1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 7 of the HRSO Act provides:
(1)An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
(2)The State has the onus of satisfying the court as required by subsection (1).
'Serious offence' is defined in s 5 of the HRSO Act. Relevantly, for present purposes, by s 5(1), an offence is a 'serious offence' if it is specified in sch 1 div 1 of the HRSO Act. It is sufficient to note that the sexual offences against children under the age of 13 years and the offence of possessing child exploitation material, of which the respondent has been convicted, are all serious offences specified in sch 1.
In The State of Western Australia v ZSJ,[66] I concluded, having regard to the relationship the provisions of the HRSO Act bear to the provisions of the DSO Act (which the HRSO Act replaced), that the concepts and criteria with which the court is concerned in determining an application under the HRSO Act are substantially the same under both statutes, and, therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non-sexual offences.[67]
[66] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ) [30] - [63].
[67] ZSJ [30] - [63].
That general approach has been adopted by other judges in subsequent cases, although, as Corboy J identified in The State of Western Australia v Garlett,[68] there is arguably a difference in the way the criteria in s 7(1) of the HRSO Act are to be applied, when compared with the criteria for finding a person to be a serious danger to the community under s 7 of the DSO Act.[69] The difference turns on whether the element of necessity for a restriction order in s 7(1) is additional to the element of unacceptable risk. It is sufficient to note that a number of cases since Garlett have been decided on the basis that there is such a difference[70] although it has been observed that its practical effect may be limited.[71] There have been other cases since Garlett in which the approach I had taken in ZSJ has been maintained, essentially regarding s 7(1) of the HRSO Act as operating in the same way as s 7 of the DSO Act, when read with s 17 of the DSO Act, as interpreted in cases such as Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams).[72] In Williams, Wheeler JA had said in respect of s 7 of the DSO Act that:[73]
… the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention. (emphasis added)
[68] The State of Western Australia v Garlett [2021] WASC 387 (Garlett).
[69] I note that the definitional issue identified by Corboy J in Garlett was not considered by the High Court in Garlett v The State of Western Australia [2022] HCA 30.
[70] See, for instance, The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 (Quinlan CJ) (D'Rozario); The State of Western Australia v Nelson [2021] WASC 460 (McGrath J) [15]; The State of Western Australia v Narrier [No 2] [2022] WASC 49 (Hill J); The State of Western Australia v MAM [2022] WASC 100 (Strk J); The State of Western Australia v AB[No 3] [2022] WASC 126 (Strk J); The State of Western Australia v Dragon [No 2] [2022] WASC 189 (Strk J).
[71] D'Rozario [21].
[72] The State of Western Australia v Sandwell [2022] WASC 206 (Smith J); The State of Western Australia v Lewis [No 3] [2022] WASC 148 (Archer J).
[73] Williams [63].
In my opinion, that elucidation of the meaning given to the concept of 'unacceptable risk' under the DSO Act included the element of necessity for the making of a restriction order.
It is not necessary to examine further the relative merits of the approach I discussed in ZSJ and the arguable interpretation of s 7 of the HRSO Act identified by Corboy J in Garlett. As I will explain in due course, I am satisfied that, if there are two separate elements of which the court must be satisfied under s 7, both elements have been established in this case. I will approach the matter on the basis that I must determine first whether there is an unacceptable risk that the offender will commit a serious offence in the future, and, if such a risk is found, I must then determine whether it is necessary to make a restriction order to ensure adequate protection of the community against that unacceptable risk. The first step requires the court to determine whether, in the absence of any measures that would provide protection of the community against the risk that a respondent would commit a serious offence in the future, that risk is unacceptable. That evaluation requires the balancing of various considerations, which I will discuss below. The second step requires the court to determine whether a restriction order is necessary to provide adequate protection of the community against the unacceptable risk that has been found to exist. That requires consideration of whether there are measures, other than a restriction order, that would provide adequate protection of the community against the unacceptable risk. If there are, the risk could no longer sensibly be regarded as 'unacceptable'.
More generally, however, I remain of the view that the concepts and criteria with which the court is concerned in determining an application under s 48 of the HRSO Act are substantially the same as under s 17 of the DSO Act, and, therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act. I note that nothing in the High Court's recent decision in Garlett v The State of Western Australia, which considered the constitutional validity of aspects of the HRSO Act, is inconsistent with that approach when construing and applying the HRSO Act. In fact, it is implicit from the majority judgment that such jurisprudence remains relevant.[74]
[74] See for instance Garlett v The State of Western Australia [55], fn 68; [103], [104], [106].
Having regard to the structure of s 7(1) of the HRSO Act, before the court can find the respondent to be a high risk serious offender, it must be satisfied to a high degree of probability, by acceptable and cogent evidence, of both matters to be determined in the two-step evaluative process, namely:
(1)that there is an unacceptable risk that the offender will commit a serious offence; and
(2)that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against that risk.
The State bears the onus of satisfying the court that it is necessary to make a restriction order.[75]
[75] HRSO Act s 7(1) and s 7(2).
The need for the court to be satisfied 'to a high degree of probability' is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt; it is otherwise incapable of further definition.[76] The test does not mean necessarily that the risk or the necessity for making a restriction order must be at some high percentage of probability. As was previously noted in respect of 'unacceptable risk' under the DSO Act, a risk may be less than 50%, yet still be unacceptable. However, the court must identify what it is that is alleged to constitute the risk and makes it unacceptable, and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[77] The same approach must be taken in respect of the necessity for making a restriction order to ensure adequate protection of the community.
[76] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (GTR) [28] (Steytler P & Buss JA).
[77] GTR [34] (Steytler P & Buss JA).
In GTR, Steytler P and Buss JA explained that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).[78]
[78] GTR [27] (Steytler P & Buss JA).
In considering whether it is satisfied that the offender is a high risk serious offender, the court must have regard to each of the matters specified in s 7(3) of the HRSO Act. Those matters are:
(a)any report prepared under s 74 of the HRSO Act for the hearing of the application and the extent to which the respondent cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological or other assessment relating to the respondent;
(c)information to indicate whether or not the respondent has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the respondent;
(e)any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he had participated in any rehabilitation programme;
(f)whether or not the respondent's participation in any rehabilitation programme has had a positive effect on him;
(g)the respondent's antecedents and criminal record;
(h)the risk that, if he were not subject to a restriction order, the respondent would commit a serious offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
There is overlap between some of the matters specified and the evidence relating to the various matters, which I will discuss below.
Where, as in the respondent's case, the offender has committed offences other than serious offences, those other offences may be relevant as part of the offender's antecedents and criminal record, as well as shedding light on the offender's risk of committing a serious offence, because the other offences may be connected to behaviour which has the real potential to lead to serious offending.[79]
[79] Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].
The court must disregard the possibility that the offender may be temporarily prevented from committing a serious offence by various specified measures affecting his liberty, including imprisonment.[80]
[80] HRSO Act s 7(4).
If the court finds that the respondent is a high risk serious offender, it must make a restriction order. The issue then is whether a supervision order or a CDO is the appropriate outcome. In deciding between those two options, the paramount consideration is the need to ensure the adequate protection of the community.[81]
[81] HRSO Act s 48(2).
The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2).[82] As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order.[83]
[82] The State of Western Australia v Latimer [2006] WASC 235 [49].
[83] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
However, the proviso in s 48(1)(b), referring to s 29, means that the court cannot make a supervision order, and therefore must make a CDO, unless it is satisfied, on the balance of probabilities, that a respondent will substantially comply with the standard conditions of a supervision order.[84] The respondent has the onus of proving that he will substantially comply.[85]
[84] HRSO Act s 29(1).
[85] HRSO Act s 29(2).
The standard conditions referred to in s 29 are those specified in s 30(2) of the HRSO Act, which in the DSO Act were specified in relevantly identical terms in s 18(1).[86] A supervision order must contain conditions that the person who is subject to the order will:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least two days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32 [of the HRSO Act]);[87] and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order;[88] and
(g)be subject to electronic monitoring under s 31 [of the HRSO Act].
[86] HRSO Act s 3 (definitions) and s 30(2).
[87] DSO Act s 18(1)(d) referred to 'section 19A or 19B', which correspond to s 31 and s 32 of the HRSO Act.
[88] DSO Act s 18(1)(f) referred to 'a sexual offence as defined in the Evidence Act 1906 section 36A', which included offences that were not within the meaning of 'serious sexual offence' in the DSO Act. Some of the offences referred to in s 36A of the Evidence Act are not included in the definition of 'serious offence' in the HRSO Act.
Therefore, the effect of s 29(1) and (2) of the HRSO Act (as was the case with s 17(3) and (4) of the DSO Act) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order.
The words 'will substantially comply with' in s 29(2) are identical to those that appeared in provisions of the DSO Act and bear the same meaning. In effect, that phrase means that the court must be satisfied that the respondent 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 objects of a supervision order and of the legislation.[89]
[89] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52]; The State of Western Australia v CF [2021] WASC 20 [61] - [62]; The State of Western Australia v PAS [No 3] [2021] WASC 117 [17]; The State of Western Australia v Corbett [No 8] [2021] WASC 171 [48].
Obviously, substantial compliance with the condition that the respondent will not commit a serious offence during the period of the order should be sufficient to ensure adequate protection of the community. However, the probability that a respondent will substantially comply with that condition will almost invariably depend on the likelihood of the respondent complying with other conditions of a supervision order, additional to the standard conditions. Section 30(5) of the HRSO Act provides that a supervision order may include such other conditions as the court considers appropriate to ensure adequate protection of the community, for rehabilitation, care or treatment of the offender and to ensure the adequate protection of victims.
Ultimately, even apart from the respondent's onus of satisfying the court that he will substantially comply with the standard conditions of a supervision order, if the court is not satisfied (which includes if it is left in doubt) that conditional release of the respondent under a supervision order will ensure an adequate degree of protection of the community, it must make a CDO.[90]
[90] Williams [86] (Wheeler JA, Le Miere AJA agreeing).
Proceedings under the HRSO Act are taken to be criminal proceedings for all purposes. This does not require that anything be proved to a higher standard than is required by s 7(1) of the HRSO Act.[91]
[91] HRSO Act s 82.
The issues in this application
Having regard to the analysis of the statutory framework and legal principles above, the first issue to be determined in these proceedings is whether the respondent is a high risk serious offender, in other words:
(1)Is there an unacceptable risk that he would commit a serious offence in the future, in the absence of any measures that would provide protection of the community against that risk?
(2)Is a restriction order necessary to provide adequate protection of the community against that unacceptable risk?
If both of those questions are answered in the affirmative, the next issue is whether the appropriate order to ensure adequate protection of the community is a CDO or release into the community on a supervision order.
Evidence
In an application for a restriction order, the court must hear any admissible evidence called by the State and, if he elects to give or call evidence, any admissible evidence given by or on behalf of the respondent.[92] The rules of evidence apply but are modified to permit the court to receive in evidence any one or more of the following:[93]
(a)any document relevant to the antecedents or criminal record of the offender;
(b)anything relevant contained in the official transcript of any relevant proceedings against the offender;
(c)any relevant material that was tendered to the court or that informed the court in relevant proceedings against the offender; and
(d)any relevant material of the kind mentioned in s 7(3) of the HRSO Act relating to the offender.
[92] HRSO Act s 84(3).
[93] HRSO Act s 84(4) and (5).
The evidence adduced by the applicant in these proceedings consisted of the BOM prepared for the restriction order application, which was tendered by the applicant without objection, and oral evidence given by:
(1)Dr Wojnarowska, a forensic consultant psychiatrist, who was one of the experts who prepared a report in respect of the respondent's risk of committing a serious offence;
(2)Dr Tara Yewers, a counselling psychologist, who was the other expert who prepared a report in respect of that risk;
(3)Ms Valerie Thatcher, an HRSO Planning Manager with the Department, who prepared a Proposed HRSO Treatment Options report in respect of the respondent, and gave evidence about his treatment to date; and
(4)Ms Julie Dabala, a Senior Community Corrections Officer (SCCO) with the Department, who prepared the CSA Report, to which I referred earlier, and an Update CSA report dated 2 August 2023 (Update CSA Report)which was received as exhibit 4.
Volume 1 of the BOM contained materials provided by the Department, including a copy of the respondent's criminal record, a chronology of the respondent's offending prepared by the applicant, prison records, substance use test results, medical records and medical reports. It also contained transcript and other materials from the proceedings in respect of the respondent's previous convictions for serious offences, materials in respect of the proceedings in 2015 and 2017 under the DSO Act, and materials in respect of the respondent's alleged contraventions of the previous supervision report.
Volume 2 of the BOM contained the reports of the witnesses who gave oral evidence, and an Individual Intervention Progress Report in respect of the respondent prepared by Ms Jo Collyer, a senior counselling psychologist, who had provided individual psychological treatment to the respondent.
In addition to the BOM, the applicant tendered email correspondence from the Department concerning the availability and suitability of residential accommodation for the respondent.
The respondent did not give or adduce evidence at the hearing.
Consideration of the matters under s 7(3) of the HRSO Act
As I noted earlier, the matters listed in s 7(3) of the HRSO Act, to which the court must have regard, overlap. The matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed by the information and findings in respect of all the other matters listed in s 7(3). Consideration of the questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning the respondent's efforts at rehabilitation and the effect of his participation in rehabilitation programmes.
It is convenient to start with the respondent's antecedents, including his criminal history, in particular the offending that is most relevant to the assessment of his risk of serious reoffending.
Respondent's antecedents and criminal history
The respondent's antecedents and history of offending were summarised by Allanson J in DPP v Stephenson.[94] The evidence in these proceedings is consistent with that summary, but it is convenient to elaborate on some matters based on the materials in the BOM.
Family background and developmental history
[94] DPP v Stephenson [12] - [30].
The respondent is now 57 years old. He was born in Western Australia and had an unremarkable childhood. He has one sibling, a sister who is two years older than him.[95] The respondent told Dr Wojnarowska that he was not aware of any developmental problems.[96]
[95] BOM 556 [52].
[96] BOM 556 [52].
The respondent reported that he was a happy child who grew up being very close to his sister. He described his father as a 'traditional man' who had very strict ideas about the roles of males and females.[97] The respondent reported that his father did not encourage him to be close to his sister and, at times, forced their separation.[98] The respondent described his family life as 'non-traumatic but quite distant', with little affection expressed towards him and his sister by his parents.[99]
[97] BOM 556 [52].
[98] BOM 556 [52].
[99] BOM 557 [54].
The respondent said that he remembered himself as an introverted child, who felt somewhat isolated growing up on a farm, which was located some distance from his school friends.[100]
[100] BOM 556 [52].
Despite the impression of an emotionally distant family, the respondent reported that he has a positive relationship with his parents and a close relationship with his sister, who has indicated a willingness to provide him with accommodation at her residence if he is released. His parents expressed disappointment in his offending behaviour, but remain supportive of him.[101]
Education and employment
[101] BOM 557 [57].
The respondent attended both private and government schools. He described himself as an academically average student. He said he was bullied because of his small stature. He told Dr Wojnarowska that he was good at sports.[102]
[102] BOM 557 [54].
After completing year 12, and finishing six months of a computing course, the respondent worked for a mining company. He then enlisted in the Army for three years. He did not find the Army life fulfilling, and requested to be discharged. He then worked in a civil job for two years, before being recalled to the Army during the initial Gulf War. After being recalled, the respondent stayed with the Army for an additional four years.[103]
[103] BOM 557 [55].
The respondent had been in a long-term relationship. After he left the Army for the second time, that relationship ended. The respondent then invested in a panel and paint business, which was jointly operated by him and his family.[104]
[104] BOM 557 [55].
The respondent's life was interrupted by a period of incarceration between 1999 and 2001, when he was imprisoned for sex offences against his partner's children. After his release from prison, and after the collapse of his paint and panel business, he worked in road maintenance. It was in that context that he met the parents of his last victim.[105]
Social development
[105] BOM 557 [56].
The respondent told Dr Wojnarowska that he always felt more comfortable around girls than boys. He considered it to be unfortunate that he attended an all-boys high school.[106] He said he did not have any girlfriends during his adolescence.[107]
Substance use
[106] BOM 557 [54].
[107] BOM 557 [54].
The respondent reported occasional alcohol and cannabis use. Dr Wojnarowska noted that the respondent's substance use has never reached the threshold for cannabis or alcohol misuse disorder. He told Dr Wojnarowska that he smoked more cannabis when he met his last victim's parents to develop social connections with them. He accepted that smoking in their company, and supplying cannabis to them, was a part of his grooming process.[108]
Criminal history
[108] BOM 554 [39].
In relation to the respondent's criminal history, I respectfully adopt Allanson J's summary in DPP v Stephenson, which is consistent with the materials in the BOM. His Honour noted that the offences directly relevant to the proceedings before him occurred in 1997 to 1998, and 2004.[109] He observed that the offences in 2010, while not sexual offences for the purposes of the DSO Act, also had a direct bearing on the question before the court because they were a manifestation of the respondent's sexual deviance.[110] His Honour then set out the offending as follows, also identifying the respondent's attitude to his offending at the time of the hearing before his Honour:[111]
[109] DPP v Stephenson [13].
[110] DPP v Stephenson [13].
[111] DPP v Stephenson [14] - [30].
The 1997 - 1998 offences
14.Around 1996, [the respondent] formed a relationship with a woman who had two children: a boy (T), and a girl (E). The offences against E occurred between about July 1997 and January 1998. E was then aged about 5. [The respondent] had been, in effect, her step father for some time, and she called him 'daddy'.
15.On three occasions, [the respondent] penetrated E's vagina with his tongue. The offences occurred while the mother was out and the respondent was caring for the child.
16.The charge regarding T related to a single occasion when the respondent touched T's penis by putting his hand inside the boy's boxer shorts. The offence was committed around Christmas 1997. T was then aged about 8.
17.[The respondent] pleaded not guilty and was convicted at trial. The principal evidence against him was admissions he made when interviewed by police. At trial, [the respondent] said that those admissions were false and that he only made them because he believed that otherwise he would never see the children again, and it would jeopardise the chances of their mother having the children again. [The respondent] still maintains his denial that he committed the offences against these children.
18.[The respondent] was sentenced to imprisonment for 7 years and 6 months. That sentence was reduced on appeal to imprisonment for 5 years. An appeal against conviction was dismissed.
19.[The respondent] was released from prison in July 2001.
The 2004 offences
20.The second group of offences was committed in the second half of 2004. [The respondent] was then aged 39. The victim of these offences, a female child, was 5. The offences occurred in [the respondent's] home.
21.[The respondent] had met the child's parents in 2003. Over a period of several months he befriended the parents and assisted them in various ways. On occasions he also provided them with cannabis. Sometimes the parents left the child in [the respondent's] care, including the times when the offences occurred.
22.The first charge alleged that [the respondent] indecently dealt with the child between 1 July and 30 September 2004, by masturbating in front of her. The material facts stated to the court on the plea said that this conduct had occurred on other occasions but only one charge had been pleaded as the child was unable to specify times and dates.
23.The next three offences were committed on 29 December 2004, when [the respondent] was looking after the child while her parents were out. On that occasion he penetrated her vagina with his penis, and recorded the act using a web camera. He then copied the vision, storing it on a computer.
24.The following day, the child's parents visited [the respondent] at his flat, bringing the child with them. [The respondent] asked the parents to run an errand for him and he was left looking after the child. Once the parents had gone, [the respondent] sexually penetrated the child digitally, and performed cunnilingus on her. He indecently dealt with her by placing his penis against the upper part of her bottom, and procured her to engage in a sexual act. On this occasion also, [the respondent] recorded himself sexually penetrating the child and copied the images onto his computer. In relation to the charge alleging the indecent act of placing his penis against the child's bottom, the statement of material facts alleged that similar conduct had occurred at other times but the child could not specify when or where.
25.[The respondent] was arrested on 31 December 2004. He initially denied the allegations, but pleaded guilty to the offences in September 2005. He admitted the material facts read by the prosecutor.
26.[The respondent] now denies committing the first of the offences to which he pleaded in 2005.
The 2010 offences
27.In 2010, [the respondent] was convicted on indictment, after trial before a judge alone, of two counts of possession of child pornography contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA). The offences were committed while he was serving the prison sentence for the 2004 offences and related to two stories that [the respondent] began to write while in prison. The first of them was about 350 pages long. It described in detail sexual acts between a young girl, three of her friends and an adult male. All of the children were aged 6 years or less.
28.The second story was about sexual acts between a male child and adult women.
29.In sentencing [the respondent] for these offences, Davis DCJ described the depiction of the sexual activities in the two documents as 'disgusting and depraved, particularly as the children are described as the instigators of and willing participants in the activities'.
30.The offence of possession of child pornography is not itself a sexual offence as defined in the Act. The circumstances of this offence are clearly relevant to the present application, evidencing [the respondent's] persisting sexual interest in young children and beliefs regarding the sexuality of children which supported his offending conduct.
Since the decision in DPP v Stephenson, the respondent has committed the further offences I outlined under the heading 'Background' above. Notably, I set out there the facts of the offence of possession of child exploitation material committed by the respondent in April 2020, as related by Whitby DCJ in her sentencing remarks, together with her Honour's assessment of the seriousness of the offending.
Propensity and pattern of offending
Pursuant to paragraphs (c) and (d) of s 7(3) of the HRSO Act, the assessment of whether there is an unacceptable risk that the respondent would commit a serious offence requires consideration of whether or not the respondent has a propensity to commit serious offences and whether or not there is a pattern of offending behaviour by the respondent.[112] As Murray AJA stated in GTR, the two factors are connected in that, if there is some discernible pattern in the respondent's past offending behaviour, in the form of serious offences, it may tend to support the conclusion that he has a propensity to commit serious offences which has not been negated by treatment and so may continue to affect the offender's behaviour in the future.[113] 'Propensity' refers to an offender's inclination, tendency or disposition to commit serious offences generally, in a particular way, or upon a particular type of victim.[114] Whether or not there is such a propensity that may continue to affect the respondent's behaviour in the future will depend on a consideration of current professional assessments of his risk of committing a serious offence, as well as considering his past offending, any efforts by the respondent to address the cause or causes of his offending behaviour, and whether his participation in treatment has had a positive effect on him.
[112] HRSO Act s 7(3)(c) and (d).
[113] GTR [178].
[114] GTR [178].
I concur with Allanson J's findings in DPP v Stephenson in respect of the respondent's propensity to commit serious sexual offences against children and the pattern of his offending.[115] The question of whether the respondent's propensity to commit serious sexual offences may continue to affect his behaviour in the future is informed by his paedophilia, his possession of child exploitation material well into the period of his supervision order, which indicates a failure to develop adequate self-management skills to prevent him acting on his sexual interest in children in the absence of external constraints, and the respondent's continuing cognitive distortions, whereby he perceives the behaviour of prepubescent children as sexualised and provocative. I will say more about those matters below. It is sufficient to note in the present context that, despite the respondent's efforts to address the causes of his offending behaviour, and indications that he has insight into his offending, the evidence, including the expert assessments, supports the conclusion that there remains a significant risk that the respondent's propensity to commit serious sexual offences against children (particularly female children) will continue to affect his behaviour in the future.
[115] See [19] above.
Rehabilitation programmes and efforts to address causes of offending
The respondent's efforts to address the causes of his offending, and whether his participation in rehabilitation programmes have had a positive effect on his behaviour, were discussed by Allanson J in DPP v Stephenson.[116]
[116] DPP v Stephenson [57] - [62].
In the current proceedings, evidence was given by Ms Thatcher in respect of the respondent's participation in those rehabilitation programmes, which were group therapeutic programmes, and his individual psychological counselling with Ms Collyer. Her report was dated 13 April 2023. The report from Ms Collyer was dated 23 October 2019.
Think First (Sex Offender) Program: September - December 2012
Ms Thatcher summarised the feedback from the programme facilitators in respect of the respondent's participation in the Think First (Sex Offender) Program from 27 September 2012 to 12 December 2012. She noted that he was reported to be 'a very good participant who demonstrated a good understanding of problem solving concepts, and appeared to make gains from the program'.[117] He was said to have displayed a mature and positive attitude to the materials presented and appeared to be attentive and contemplative during sessions.[118] It was reported that the main concerns for the respondent were 'a lack of awareness of his self-justifications and "victim stance" attitude as well as trust issues with the law and authority and a tendency to put the blame on others regarding his offence.'[119]
Intensive Sex Offender Treatment Program: May - November 2013
[117] BOM 545 [3].
[118] BOM 545 [3].
[119] BOM 545 [3].
Ms Thatcher also summarised the feedback in respect of the respondent's participation in the Intensive Sex Offender Treatment Program (ISOTP) from 2 May 2013 to 7 November 2013. It had been reported that the respondent met some programme objectives, made some treatment gains and was observed to gain a greater understanding of the factors underlying his offending. Programme facilitators identified that the respondent would benefit from a period of supervision and by attending a Sex Offender Maintenance program where he could further practice strategies to 'enhance intimacy, explore issues around trust, promote appropriate social relationships and continue skill building in emotional management and coping'.[120]
Individual Treatment
Ms Thatcher's report and evidence
[120] BOM 545 - 546 [3].
Ms Thatcher reported that the respondent had participated in individual treatment with Ms Collyer from January 2016, effectively amounting to four years of therapy while subject to the previous supervision order.[121] The respondent initially engaged in weekly sessions with Ms Collyer, but that was subsequently reduced to monthly appointments.[122] By agreement with the respondent, the focus initially had been on consolidating gains made in the ISOTP in relation to: (a) his difficulties in trusting women in relationships; (b) managing his fantasies; (c) his emotional identification with children; (d) his issues with social rejection and isolation; and (e) forming and maintaining meaningful relationships with other adults of both genders that do not rely on him for assistance.[123]
[121] BOM 546 [4].
[122] BOM 540 [3].
[123] BOM 540 [1]; 546 [4].
Dr Wojnarowska was of the view that the proposed address was 'not ideal', because of its proximity to children's facilities.[339] However, she noted that most residential properties proposed for the purposes of a supervision order will have some vulnerabilities.[340] Dr Wojnarowska said that, given the respondent’s past offending and the fact that he usually engages in prolonged grooming, he is not likely to offend against a child he has just encountered.[341] Considering those factors, Dr Wojnarowska believed that the respondent could be managed at the proposed address.[342]
[339] ts 450.
[340] ts 450.
[341] ts 450.
[342] ts 450.
Ms Dabala noted that although there is a public reserve within 2 kilometres of the property, and that it is a family focused destination, the respondent's risk could be managed by the CCO making the area subject to an exclusion zone.[343] That would also occur in relation to another area which is the focus of family activities.[344] In other words, the respondent would be excluded from the designated zones, and his compliance would be monitored by electronic monitoring, as he will be required to wear an electronic monitoring device.
[343] Update CSA Report, 3.
[344] Update CSA Report, 3.
The State accepted that the property would be suitable for the respondent's accommodation under the proposed supervision order. The respondent is content to reside at the proposed address.
Having regard to the evidence and the State's position, I am satisfied that the property is suitable and that it is now appropriate to make a supervision order in the terms of Appendix A for the reasons I have given above. It remains to determine the duration of the supervision order and its commencement date.
Duration of order
Determining what period is appropriate for a supervision order is a matter of judgment and may depend on a number of factors relevant to the respondent's risk. In general terms, I consider that the period should be such as to enable the respondent to engage in rehabilitation and progress towards the reduction of his risk of committing a serious offence to a point where a restriction order is no longer necessary to ensure adequate protection of the community, either because the respondent can be relied upon to manage the risk himself, or the exigency of age or other factors have significantly reduced the likelihood of the respondent reoffending. The opinions of the expert witnesses who have assessed the respondent's risk of committing a serious offence should be given due weight, but they too involve judgment and a degree of prognostication, and reasonable minds may differ, as was evident in this case.
A relevant consideration is that, under s 36 of the HRSO Act, the State may apply for a restriction order in relation to an offender who is subject to a supervision order that is to expire within one year. Therefore, the State may apply for a further supervision order if, approaching the end of the supervision order I make, there is evidence that the respondent's risk is still at a level where there is a need for a further period of restriction to ensure adequate protection of the community. To some extent that reduces the need for prognostication about the likely trajectory towards a sufficient reduction of the respondent's risk. However, that should not prevent the setting of a lengthy period if there is support for doing so in the evidence. It may be acknowledged that the conditions of the supervision order involve onerous obligations and restrictions, and the weight of the burden may be perceived to be greater, the longer the period of the order. However, should it become apparent that any of the conditions are no longer necessary to manage the respondent's risk in due course, the respondent can apply under s 49 of the HRSO Act to amend the conditions of the supervision order, and such an amendment can be made under s 50 if the respondent is no longer able to comply, or the court considers it necessary or desirable to make the amendment.
I have set out above at [170] and [201] respectively the opinions of Dr Wojnarowska and Dr Yewers in relation to what would be a suitable period of supervision to achieve a reduction of the respondent's risk to a level where a restriction order may no longer be necessary to ensure adequate protection of the community against the risk that the respondent would commit a serious offence. The difference between 8 years and 4 years is significant. Dr Yewers took into account the fact that the State could make an application for a further supervision order if that were considered necessary towards the end of the period of the supervision order.
I consider Dr Wojnarowska's explanation for the longer period to be persuasive. In my opinion, a period approaching that length is appropriate and necessary because of the reasons given by Dr Wojnarowska and the following reasons:
(1)The respondent's sexual attraction to children has persisted, as have his cognitive distortions in respect of the maturity and sexuality of children, and their capacity for adult-like relationships. That is evident in the fantasy story he has written or is writing. Those cognitive distortions have persisted despite a considerable period of individual psychological treatment. It is a matter of speculation as to whether, and if so, when, the respondent will cease to have such distortions. It is to be hoped that treatment with SSRI or other antilibidinal medication will reduce his sexual thinking. It is not clear that it will alleviate his distorted thinking about adult-like emotional relationships with prepubescent children.
(2)More generally, any prognostication about the period in which the respondent's risk might abate sufficiently to enable him to self-manage his risk also involves speculation, given that after a period of four years during which he was subject to a supervision order and treatment, he committed a serious offence involving child exploitation material. Although the respondent was considered to have made some gains in treatment, he has not had treatment for some considerable period while in custody, and his cognitive distortions have persisted. In those circumstances, it would not be unreasonable to expect that his treatment will need to be re-set and may take a lengthy period to deal with the factors that led to his contraventions of the previous supervision order.
(3)Finally, the fact that the respondent continues to deny that he was in possession of child exploitation material is a matter of concern as to whether he has sufficient insight to make sufficient progress in his self-management of risk within the shorter term suggested by Dr Yewers.
However, I take into account that the addition of SSRI or other antilibidinal treatment to the supervision regime allows for the possibility that the respondent's risk will be reduced sufficiently within a shorter timeframe than envisaged by Dr Wojnarowska. I also take into account that the respondent has been in custody on an interim detention order since 30 April 2021, pending the resolution of the criminal charges and then these proceedings. That has been necessary for the protection of the community. However, while I have found Dr Wojnarowska's reasons to be persuasive, I also consider there is merit in Dr Yewers' view that having some 'light at the end of the tunnel' may assist in the respondent's rehabilitation.
For these reasons, I have come to the conclusion that the appropriate period for which the respondent should be subject to the supervision order is 6 years, and the respondent's circumstances can be reviewed by the authorities in the final year of that period to determine whether a further order is necessary.
Commencement date
Section 27(3) of the HRSO Act provides that the date from which a supervision order has effect must not be earlier than 21 days after the date the order is made, unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
Ms Dabala gave evidence that, as the respondent will be residing at a property supplied by Uniting WA, and will be assisted by that agency, the period of 21 days is necessary to enable arrangements to be put into place, and the release date should be a Monday, Tuesday or Wednesday, as those are the days when it is most suitable for Uniting WA to do the things necessary to ensure the respondent is set up to commence his residency, including attending to organise social security payments.[345]
[345] ts 488.
I am also of the view that the period of 21 days is appropriate to enable arrangements to be put in place for psychological counselling of the respondent once released, and for steps to be taken towards assessing him for SSRI or other suitable antilibidinal medication, and to commence him on such medication if appropriate. That said, Dr Wojnarowska was of the view that the respondent could be commenced on the medication once he is in the community.[346]
[346] ts 451.
In any event, I am not satisfied that the implementation of the supervision order from an earlier date is practically feasible, as there is no evidence to that effect.
Accordingly, the supervision order will have effect from a date that is 21 days from the date of the order.
Suppression order
In the Update CSA Report, Ms Dabala requested that a suppression order be considered in respect of the address where the respondent will be residing. Ms Dabala gave evidence that, if the address (the town, street address and number) of the respondent's proposed accommodation were to be published, it could put the safety of the respondent, and persons from any agencies who visit the address at risk, because of the potential for vigilante action. That could render the property unsuitable for use as the residential accommodation under the supervision order, with the consequence that the implementation of the supervision order could be compromised. I am aware that there is an historical basis for these concerns, and that they are real. There is, of course, a public interest in members of the community knowing whether they are at risk from a high risk serious offender. However, the conditions of the supervision order allow for the authorities to make disclosure of the respondent's status to other persons, and it would be expected they would exercise judgment in that regard to ensure the adequate protection of the community.
I am satisfied that a suppression order as sought is appropriate for the reasons outlined. Accordingly, all references to the relevant location have been anonymised in these reasons (references to Towns A, B and C) and are redacted in Appendix A.
Accordingly, I make the following order:
The house number, street name and suburb of the approved address specified in Condition 8 of the supervision order made on 21 August 2023, or any subsequent residential address of the respondent (being the suppressed information), or any information tending to lead members of the public to identify the suppressed information, shall not be published until further order of the Court.
Appendix A
Pursuant to s 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), the Court, having found that the Respondent is a high risk serious offender within the meaning of s 7(1) of the HRSO Act, makes a supervision order in relation to the Respondent, for a period of 6 years from 11 September 2023, being a date that is not earlier than 21 days from the date this Order is made, on the following conditions:
You, Andrew Peter Stephenson, must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer (CCO) at the place and within the time stated in this Order and advise the officer of your current name and address;
Report to and receive visits from, a CCO as directed by the Court;
Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a CCO, which includes complying with any reasonable direction of the officer (including direction for the purposes of s 31 or s 32 of the HRSO Act);
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 this Order;
Be subject to electronic monitoring under s 31 of the HRSO 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 your release from custody under this Order;
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO;
Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of a CCO and, if so permitted, abide by all conditions of such permission;
Attendance at programs or treatment
Consult, engage and attend all appointments with, and 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 Uniting WA and all programs designed to address your offending behaviour and/or reduce your risk of serious re-offending, as directed by a CCO;
Medications/Mental Health
Engage with mental health services and obey the instructions of the treating psychiatrist with regard to treatment and medication;
Undertake any medication regime, including selective serotonin reuptake inhibitor or other antilibidinal medication, in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re‑offending and compliance with treatment to the Department of Justice;
Reporting to WA Police
Report to the Officer-in-Charge of the High Risk Serious Offender team 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 High Risk Serious Offender team 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 search your person and/or enter your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order, and allow the seizure of any such items that the Police Officers believe to contravene the conditions of this Order;
Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020;
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all screen name(s), username(s), and email addresses 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 of your associates or potential associates and, where appropriate, to disclose to them confidential information, including your offending 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 you must avert your gaze from such victims at all times;
Report to the CCO and WA Police any direct or indirect contact with the victims of your offending (on the next working day you report to the CCO or Police);
Criminal conduct
Not commit any other criminal offence for which the maximum penalty includes imprisonment, and which involves either a sexual offence, violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under s 202, s 203, s 204, s 557K Criminal Code 1913 (WA) or s 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, consume or use any prohibited drug, plant or other substance to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 (WA), and your use is in accordance with the instructions of the prescriber;
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997 (WA);
Prevention of high-risk situations
Report at your next contact with your CCO, any social association (of more than 1 contact by any means), or domestic, romantic, sexual or otherwise intimate relationship you have formed with any person;
As directed by your CCO, make full or part disclosure regarding your past offending and this Order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), or a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO;
Attend for, and submit to, urinalysis or other testing for prohibited drugs as directed by the CCO or by a Police Officer, including accompanying such person to an appropriate location for such testing to take place;
Provide a valid sample pursuant to Condition 35;
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 remove the persons consuming prohibited drugs from 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 a CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or
b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication.)
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
Provide the child's name, address, location and any other details known by you in relation to any contact you have with a child under the age of 18 years, such information to be provided to both your CCO and the Police on the next occasion you report to that person or agency;
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 the prior approval of a CCO;
Have no contact with, membership of, or affiliation with clubs, associations or groups where children may be members, unless approved by a CCO; and you must cease/cancel such membership if directed to do so by a CCO or Police Officer;
Advise a CCO or Police Officer 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 access online social media (via websites or applications) unless approved by a CCO. Due to the progressive development of social media, you are to enquire with your CCO if a website or application is considered social media and this will be defined for you. It will not be a contravention of this condition if you access the public component of any website or application and make an enquiry with a CCO as to whether the website or application is considered social media. However, you must not progress to gain a login (temporarily or otherwise) unless you have explicit CCO approval to do so;
Not possess or use, within your home or other residence, business or any other location, any equipment (such as headphones, microphones or webcams) capable of transmitting or receiving audio and/or video communication via the internet with other online players through your gaming console or via any other electronic means, unless you have approval in advance from your CCO to do so;
Not engage in any online gaming via any console or platform unless you have approval in advance from a CCO, and you engage in accordance with the written instructions issued by a CCO;
Not allow any person other than a CCO or WA Police to have access to any computer, telecommunication and/or electronic device referred to in condition 43, without prior approval from a CCO;
Enable device locking or password access of your computer, telecommunication and/or electronic devices, and not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 43, or any online accounts, to any person other than a CCO or Police Officer;
Upon request from a CCO or WA Police at any location nominated by them, produce to them, and permit them to have access to, any computer, telecommunication and/or other device capable of storing digital data, for the purpose of the CCO or WA Police ascertaining your activities on your computer, telecommunication and/or other electronic device, and provide to the CCO or WA Police, upon request, any passwords or other means used to unlock or access the device; this includes providing all screen name(s), username(s), and email addresses used by you. Should any other entity be required to access your computer, telecommunication and/or other electronic device referred to in this condition, for instance, for the purpose of providing technical advice, you must obtain approval in advance from a CCO;
Sign a written authority to police officers from WA Police to:
a) access any cloud-based platforms or services associated with the devices you use, and examine the internet accounts at any time for the purposes of monitoring your online behaviour (absent any investigation for any offence); and
b) use passwords or tokens located within your devices to access any cloud-based platforms and services and that a password may not be required;
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 other electronic device, whether or not the device is capable of connecting to the internet, without obtaining approval in advance from a CCO or WA Police;
Not attend concerts, events or venues frequented by children under 18 years, without obtaining approval in advance from a CCO;
Whilst in any public place or in view of a public place, not be in possession of any animate or inanimate item capable of constituting an enticement to children, unless such possession is for legitimate purposes, and you have obtained approval in advance from a CCO;
Maintain a daily diary of your movements, activities and associations, if and as directed by a CCO, and present such diary to the CCO and Police upon request;
Not access the internet for, nor collect or be in possession of, or create, draw or produce, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not. Possession of such images depicting a child or children on items such as household items or depicting your immediate family, may be authorised by a CCO. 'Immediate family' means only you, your siblings, your parents and your spouse. Any items in your property from prison must be removed and destroyed or presented to a CCO or WA Police within the first 48 hours of this Order commencing;
Not access the internet for, nor collect, write, create or produce or be in possession of any document, paper, or any other medium used for displaying words, either in the written or printed form, that describes sexual activity with a child and/or children;
Not conduct any search by a computer or other electronic means using a search term that includes the word/s 'child', 'children', 'kid', 'kids', 'boy', 'boys', 'girl', 'girls', 'adolescent' or 'adolescents';
Not obtain a passport or attend an international departure point without obtaining approval in advance from a CCO; and
Not attend a park that contains children's play equipment.
BY THE COURT
THE HON JUSTICE FIANNACA
I have received a copy of this Order. I have had it explained to me and understand the effect of this Order and what may happen if I contravene it.
Signed by the Respondent _____________________________
ANDREW PETER STEPHENSON
In the presence of: _____________________________
Name and address: _____________________________
_____________________________
_____________________________
Date: _____________________________
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Fiannaca
21 AUGUST 2023
20
0