The State of Western Australia v TJD [No 5]
[2020] WASC 421
•24 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TJD [No 5] [2020] WASC 421
CORAM: ARCHER J
HEARD: 11 NOVEMBER 2020
DELIVERED : 24 NOVEMBER 2020
FILE NO/S: DSO 2 of 2011
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
TJD
Respondent
Catchwords:
High risk serious offender - Contravention of supervision order - Whether a continuing detention order should be made - Whether additional conditions should be added
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 29, 55
Result:
Supervision order, with additional conditions, made
Category: B
Representation:
Counsel:
| Applicant | : | F M Clare |
| Respondent | : | D J McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | David McKenzie |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v TJD [2011] WASC 83
Director of Public Prosecutions (WA) v TJD [No 2] [2012] WASC 142
Director of Public Prosecutions (WA) v TJD [No 3] [2013] WASC 43
Director of Public Prosecutions (WA) v TJD [No 4] [2014] WASC 71
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Kim v Witton (1995) 59 FCR 258
The State of Western Australia v A [2018] WASC 250
The State of Western Australia v Atkinson [No 2] [2020] WASC 379
The State of Western Australia v Decke [No 4] [2020] WASC 263
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Misko [No 6] [2018] WASC 389
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v ZSJ [2020] WASC 330
TJD v The State of Western Australia [2014] WASCA 10
ARCHER J:
Introduction
On 11 March 2014, the respondent was released from custody under a supervision order made by Commissioner Sleight.[1]
[1] Director of Public Prosecutions (WA) v TJD[No 4] [2014] WASC 71.
On 5 August 2020, the respondent pleaded guilty to four contraventions of the supervision order. He contravened the supervision order by, among other things, writing false information in the diary in which he was required to record his movements.
On 11 August 2020, the State of Western Australia applied for orders under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), alleging that the respondent had contravened conditions of the supervision order. The State sought an order that the respondent be made the subject of either a continuing detention order or an amended supervision order. The State was entitled to bring the application under s 22 of the DSO Act. The court's power to make those orders was regulated by s 23 of the DSO Act.
On 26 August 2020, the DSO Act was repealed, and relevant parts[2] of the High Risk Serious Offenders Act 2020 (HRSO Act) came into effect. Section 53 of that Act substantively mirrors s 22 of the DSO Act. Under the transitional provisions of the HRSO Act, the State's application is taken to have been made under s 53 of the HRSO Act.[3] The court's power to make orders on such an application is regulated by s 55 of the HRSO Act.
[2] Part 1 of the HRSO Act, not relevant to these proceedings, came into effect on 9 July 2020.
[3] Section 124 of the HRSO Act.
I am required to decide whether, in light of the contraventions and the evidence, the respondent should be released on the existing supervision order, released on the supervision order with additional conditions or for a longer period of supervision, or be made subject to a continuing detention order. As I will explain, I have decided that the respondent should be released on the supervision order with additional conditions and for a longer period.
Before turning to the relevant background, I wish to acknowledge the conduct of counsel for the State. Ms Clare conceded that the weight of the evidence was that the respondent would substantially comply with the standard conditions.[4] She conceded that, provided particular additional conditions were imposed, she could not argue that the community would not be adequately protected by a supervision order.[5] Not only did the concessions recognise the weight of the evidence, they appropriately reflected the role properly to be played by counsel for the State. It is not the role of counsel for the State to urge the court to impose a continuing detention order on every high risk offender. It is the role of counsel for the State to make submissions as to the appropriate disposition of a matter in light of the evidence. Ms Clare did this admirably.
[4] ts 113 ‑ 114.
[5] See, in particular, ts 117. See also ts 113 ‑ 117.
Background
The history of this matter is set out in a series of previous decisions, most recently Director of Public Prosecutions (WA) v TJD [No 4].[6]
[6] Director of Public Prosecutions (WA) v TJD[No 4] [2014] WASC 71.
The respondent's history of offending and personal circumstances have been summarised numerous times. A detailed summary exists in the reasons of Commissioner Sleight in Director of Public Prosecutions (WA) v TJD.[7] The offences include some extremely serious sexual offences against 13 different women. On seven occasions, the respondent used a weapon or replica weapon to threaten the victim. His youngest victim was only 17 years old.
[7] Director of Public Prosecutions (WA) v TJD [2011] WASC 83 [13].
The respondent was first found to be a serious danger to the community on 31 March 2011 by Commissioner Sleight, who ordered that the respondent be detained under a continuing detention order.[8]
[8] Director of Public Prosecutions (WA) v TJD [2011] WASC 83.
On 23 April 2012, in the first review of the continuing detention order, McKechnie J made a supervision order for a period of 10 years, subject to conditions.[9]
[9] Director of Public Prosecutions (WA) v TJD[No 2] [2012] WASC 142.
Subsequently, TJD was charged with breaching the supervision order in a number of respects. He pleaded guilty to three charges and was found guilty of one further charge.[10] These four contraventions were that he:
1.failed to undergo anti‑libidinal medical treatment, as directed by a Community Corrections Officer (CCO), in consultation with a doctor;
2.failed to attend for urinalysis testing for illicit drugs, as directed by a CCO;
3.used an illicit drug, namely Tetrahydrocannabinol (cannabis);
4.failed to maintain a daily diary and present it to a CCO upon request.
[10] Director of Public Prosecutions (WA) v TJD[No 3] [2013] WASC 43.
The DPP also brought an application seeking cancellation of the supervision order. That application was granted by Corboy J.[11] His Honour found that shortly after the supervision order had been made, TJD had ceased using his anti‑libidinal medications and lied about the matter when challenged. Further, Corboy J found that there had been a significant change in TJD's participation in counselling which suggested that TJD lacked insight into the causes of his offending and the need for him to actively and continuously take steps to minimise the risk of reoffending. Corboy J concluded that the risk of TJD committing a serious sexual offence if he was not detained in custody was unacceptable and therefore made a continuing detention order.
The respondent's latest release
[11] TJD [No 3]. An appeal against this order was dismissed - TJD v The State of Western Australia [2014] WASCA 10.
On 11 March 2014, Commissioner Sleight conducted a review of the continuing detention order made by Corboy J. The learned Commissioner concluded that a supervision order with strict conditions would provide adequate protection of the community. Accordingly, his Honour rescinded the continuing detention order and made a supervision order for a period of 10 years (Supervision Order).
The conditions
The Supervision Order contained 44 conditions that the respondent had to comply with during the period of the order.
Condition 6 provided: 'Maintain a daily diary of his movements, activities and associations if and as directed by a CCO and present the diary to a CCO or Police Officers upon request'.
Condition 9 provided: 'Be under the supervision of a CCO, which includes comply with any reasonable direction of a CCO (including a direction for the purposes of s 19A or s 19B of the Dangerous Sexual Offenders Act 2006)'.
Condition 41 provided: 'Report immediately to his CCO the formation of any domestic, romantic, sexual or otherwise intimate relationship by him with a person who has children under the age of 17 years in their care either full or part time'.
Condition 43 provided: 'Make full disclosure in a form as directed by a CCO regarding his past offending and the current order to anyone with whom he commences a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or Police Officer'.
Earlier contraventions
Shortly after his release on the Supervision Order, TJD contravened it by failing to produce his diary to his CCO on 13 March 2014 and failing to attend for a blood test to check for compliance for anti‑libidinal medication in June 2015. He was fined in relation to each offence.[12]
The present contraventions
[12] Book of Materials, Exhibit A (BOM) pages 203 ‑ 204.
On 4 August 2020, the respondent was arrested and charged with four offences of contravening a condition of the Supervision Order contrary to s 40A of the DSO Act.
The respondent pleaded guilty to the breaches in the Magistrates Court on 5 August 2020.
The material facts for each charge were as follows:
[Contravention 1]
Between 9 June 2020 and 18 June 2020 on four occasions, the respondent visited an address in Singleton and made diary entries indicating that he was associating with a male person called 'Bob' at the address. Inquiries revealed that 'Bob' was being used by the respondent as a pseudonym for a woman he was having a sexual relationship with at the address.
On 26 June 2020 the respondent was confronted by his CCO in relation to the diary entries. The respondent confirmed he had deliberately provided misleading information in the diary as he did not want his partner discovering the affair.
…
[Contravention 2]
On 9 June 2020 the respondent began having a sexual relationship with a woman who has a 12 year old child. The child resides at the woman's address part of the time.
On 26 June 2020, the respondent's CCO confronted him regarding his attendance at the woman's address and asked if they were in a sexual relationship. The respondent admitted to the sexual relationship and claimed to have had sex with her on four occasions. The respondent was aware that she had a child however claimed that the child was never home when they had sex. [It appears it was true that the child was never at the house when the respondent was there.]
…
[Contravention 3]
On 26 June 2020 the respondent's CCO discovered that the respondent had deliberately omitted to advise him of a sexual relationship he had entered into.
The CCO directed that the respondent disclose his past offending and his Order to the woman, with a deadline of 30 June 2020.
On 30 June 2020 the respondent refused to provide contact details for the woman he had a sexual relationship with. After repeated attempts to ascertain if disclosure had been made, on 10 July 2020 the respondent was warned by his CCO to cease seeing the woman until disclosure was confirmed.
Later that day the woman contacted the CCO and confirmed that disclosure had been made.
At no time prior to 10 July 2020 had disclosure been made to the woman by the respondent. The woman advised the police that a friend of the respondent had made her aware of the respondent's past offending, but the respondent never did so himself.
…
[Contravention 4]
On 19 February 2018 the respondent was given a written lawful instruction from his CCO prohibiting him from providing transport to any females who have not previously been approved to travel with him by his CCO.
On 11 June 2020, the respondent was with a woman he had entered into a sexual relationship with. He transported the woman in his car to the Fremantle Hospital and various other destinations.
At no time had the respondent made his CCO aware of his relationship with the woman, nor did he provide any other details to his CCO regarding the woman.
The respondent did not have approval from his CCO to transport the woman anywhere.
…
The woman in each of these charges was the same woman. I will refer to her as 'SP'.
The respondent was sentenced to 7 months' imprisonment suspended for nine months in relation to the first and third charges. A global fine of $500 was imposed in relation to the other two charges.
Application under the DSO Act
On 11 August 2020, the respondent was brought before this court on the first mention of the State's application under s 23 of the DSO Act. On that date, Allanson J ordered that the respondent be detained in custody until the conclusion of the contravention proceedings.
Relevant law in contravention proceedings
The provisions under the HRSO Act in relation to contravention proceedings are materially the same as the provisions under the DSO Act. For this reason, the principles established by the authorities in relation to the DSO Act may be applied to the HRSO Act.[13]
[13] And see The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31]; The State of Western Australia v Narrier [No 6] [2020] WASC 349 [29] ‑ [30]; The State of Western Australia v Atkinson[No 2] [2020] WASC 379 [10] ‑ [11].
Section 51 of the HRSO Act relevantly provides that a police officer or a CCO who reasonably suspects that an offender who is subject to a supervision order is likely to contravene, is contravening, or has contravened, a condition of that supervision order may apply to a magistrate to have a warrant issued against the person. A warrant issued under s 51 requires the offender to be arrested and brought before the Supreme Court for it to consider the suspected or anticipated contravention. Section 21 of the DSO Act was in similar terms.
Section 53 of the HRSO Act relevantly provides that, if an offender is brought before the Supreme Court pursuant to s 51 or is charged with contravening a requirement of their supervision order, the State may apply to the court for an order under s 55. Section 22 of the DSO Act was in similar terms.
Section 55 of the HRSO Act provides:
55.Court to make orders in certain cases
(1)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order -
(i)amending the conditions of the supervision order; or
(ii)amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order.
(3)In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 23(1), (1A) and (2) of the DSO Act were in similar terms.
The evidence proves that the respondent contravened his Supervision Order.[14] The respondent did not argue otherwise. Therefore, the question for me is whether I should make an order under s 55(1)(a), (b) or (c).[15]
[14] See BOM pages 53, 62 ‑ 65, and 147 ‑ 156.
[15] The State also sought to demonstrate that the respondent is likely to contravene a condition in the future, under s 55(2). The only relevance of this is that, if I made that finding, it would not be open to me to affirm the Supervision Order without any amendment. As I do not intend to do this, it is unnecessary to consider this aspect of the State's application.
Section 29 of the HRSO Act states:
29.Limitation on power to make or amend supervision order
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
Section 23(1B) and (1C) of the DSO Act were in similar terms to s 29(1) and (2) of the HRSO Act.
There are seven standard conditions for a supervision order. They are set out in s 30(2) of the HRSO Act:
30.Conditions of supervision order
…
(2)A supervision order in relation to an offender must require that the offender
(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 2 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 section 31 or 32); 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[16] during the period of the order; and
[16] Defined in s 5 of the HRSO Act.
(g)be subject to electronic monitoring under section 31.
(3)A supervision order in relation to an offender may require the offender not to make public any statement, information or opinion relating directly or indirectly to any victim of a serious offence committed by the offender.
(4)When considering whether to impose a requirement under subsection (3) the court must have regard to -
(a)the gravity and nature of the offender's offences; and
(b)the likely impact on the victims of the offender providing or making available any statement, information or opinion; and
(c)the public interest generally.
(5)A supervision order may contain any other terms that the court thinks appropriate -
(a)to ensure adequate protection of the community; or
(b)for the rehabilitation, care or treatment of the offender subject to the order; or
(c)to ensure adequate protection of victims of serious offences committed by the offender subject to the order.
(6)Without limiting subsection (5), a supervision order may provide that -
(a)for the period specified in the order the offender is subject to a curfew under section 32; and
(b)the photograph and locality of the offender must not be published under the Community Protection (Offender Reporting) Act 2004 section 85G.
The effect of s 29 is that I must make a continuing detention order unless the respondent satisfies me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
'Substantially comply' with the standard conditions
The meaning of the phrase 'substantially comply' was considered by Fiannaca J in Director of Public Prosecutions for Western Australia v Hart[17] in relation to the provisions of the DSO Act. His Honour's observations, which I gratefully adopt, apply equally to the provisions of the HRSO Act.
(1)The words 'will substantially comply with' should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order, the overall object of which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the respondent will commit a serious sexual offence.
(2)The question of what will be substantial compliance will be a matter of judgment that will depend on the circumstances of each particular case.
(3)The assessment is to be made in the context that it is one aspect of the broader exercise of determining whether the community can be adequately protected if the respondent is released again subject to a supervision order.
(4)It is consistent with the ordinary meaning of the language of the section, in context, that the word 'substantially' is used in a relative sense and involves an assessment of the degree of compliance that the respondent is likely to achieve.
(5)While the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order, the assessment of whether the respondent will substantially comply involves considerations other than simply whether any potential breach will be trivial or minor.
(6)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 object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
(7)Factors that are relevant to that assessment would include the respondent's history of compliance and non-compliance and the factors set out at [50] above.
[17] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52].
In the above extract at point 5, his Honour observed that the prospect of trivial or minor contraventions will not (and ordinarily should not) preclude a finding that the respondent will substantially comply with the standard conditions of a supervision order. Elsewhere in the judgment, his Honour made a number of other useful observations in relation to the assessment of prior contraventions, to the following effect:
1.Self‑evidently from the statutory scheme, the fact that the respondent has contravened the conditions of a supervision order will not necessarily result in a continuing detention order;[18]
2.Given the onerous nature of supervision orders, missteps are to be expected;[19] and
3.The frequency or regularity of contraventions might inform the question of whether the person will substantially comply.[20]
[18] Hart [21].
[19] Hart [51].
[20] Hart [36].
As pointed out by counsel for the State, a critical point made by Fiannaca J, as set out in point 6 of the extract, is 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 object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
Factors relevant to the assessment
In point 7 of the extract, Fiannaca J identified the factors that are relevant to the assessment of whether the respondent will substantially comply with the standard conditions. His Honour said that they would include the respondent's history of compliance and non‑compliance and the factors he had set out in his judgment in [50].
In [50], Fiannaca J identified, in effect, the following factors:[21]
[21] The first four factors his Honour drew from Kim v Witton (1995) 59 FCR 258. The next four factors were from The State of Western Australia v A [2018] WASC 250 [123]. The last factor was from The State of Western Australia v Misko [No 6] [2018] WASC 389.
1.the offender's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions);
2.his capacity to comply with the conditions;
3.what measures there are in place to ensure he would substantially comply;
4.the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the DSO Act;
5.the respondent's motivation to remain offence free and in the community;
6.any willing participation in a sex offender treatment programme;
7.abstinence from drugs;
8.conduct while in prison; and
9.demonstrated gains in treatment, self‑management and life skills.
Detention or supervision?[22]
[22] What follows reproduces, or is drawn from, my earlier decisions under the DSO Act, such as The State of Western Australia v Decke [No 4] [2020] WASC 263.
If the respondent satisfies me on the balance of probabilities that he would substantially comply with the standard conditions, I must then decide whether to rescind the Supervision Order and make a continuing detention order or affirm the Supervision Order, with or without amendment or extension.
In deciding between these options, the paramount consideration is the need to ensure adequate protection of the community.[23] However, it 'cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order'.[24] Nor does it mean that other considerations are excluded.[25]
[23] Section 55(3) of the HRSO Act.
[24] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]. See also The State of Western Australia v West [2013] WASC 14 [52].
[25] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33], citing Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 [57].
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on an offender, but rather for the ultimate purpose of protecting the community.[26] The court should choose the order that is the 'least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[27]
[26] See, in relation to the DSO Act, Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [97].
[27] West [52(j)], citing The State of Western Australia v Latimer [2006] WASC 235; and Decke. See also Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [22].
In Director of Public Prosecutions (WA) v DAL [No 2],[28] Beech J[29] summarised the principles to be applied in considering whether a supervision order would adequately protect the community, in relation to relevantly identical provisions in the now repealed DSO Act. Putting his Honour's observations in list form, and omitting citations, his Honour said:
1.The use of the word 'adequate' indicates that a qualitative assessment is required.
2.In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be imposed so as to ensure the adequate protection of the community, the rehabilitation of the respondent, and his or her care and treatment.
3.The [DSO Act] does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released.
4.The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
5.If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
[28] DAL [No 2] [33], citing Williams [57], [86]; Griffiths [20], [103], [107]; and Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16].
[29] As his Honour then was.
Evidence
The State tendered, by consent, a book of materials which included a report from psychiatrist Dr Wynn Owen, a treatment progress report by forensic psychologist Dr Bannister, and a performance report by Mr Snow of the Department of Corrective Services.[30] Those three witnesses gave oral evidence in chief and were cross‑examined.
[30] BOM.
The respondent did not give or adduce any evidence in this hearing.
In his report, Dr Wynn Owen confirmed the respondent's psychiatric diagnoses and conducted a risk assessment. Dr Wynn Owen considered that the respondent's risk of committing a future serious sexual offence remained high[31] (if he was not subject to a supervision order or detained in custody).
[31] BOM page 12.
Dr Wynn Owen said that the respondent did not tell the truth in therapy or in supervision.[32]
[32] BOM page 195.
Dr Wynn Owen noted that the respondent had been in the community for six years under supervision without committing a sexual offence and had abstained from using drugs and alcohol in that time, indicating a change in behaviour.[33]
[33] BOM page 195.
In his oral evidence, Dr Wynn Owen expanded on his report. Dr Wynn Owen discussed the reasons why the respondent needs to be under a supervision order or in detention in order to ensure the adequate protection of the community. Dr Wynn Owen agreed with an opinion expressed in an earlier psychiatric report that a future offence would most likely occur in the context of relationship conflict and the use of substances including alcohol.[34]
[34] ts 53.
Dr Wynn Owen discussed the factors that contributed to the respondent committing the current contraventions - most particularly, the respondent's antisocial personality. Because of his personality, he resents being told what to do, and can be hostile and oppositional to his CCO. His personality is not something that will change.[35]
[35] See, for example, ts 50 ‑ 51.
Dr Wynn Owen noted that the respondent had been in a relationship throughout his time under supervision over the last six years, and there had been ongoing problems in that relationship.[36]
[36] ts 58 and 72.
Dr Wynn Owen noted, however, that the respondent had been in the community for six years under the Supervision Order and had not committed a serious offence, and had not failed a single drug or alcohol test. Dr Wynn Owen said that each of these matters was very significant.[37]
[37] See ts 64 ‑ 66 and 72 ‑ 73.
Dr Wynn Owen said that a further period of time in custody would not serve as a disincentive to the respondent committing further breaches. Rather, if anything, it could make him worse.[38]
[38] ts 61 ‑ 62.
Dr Wynn Owen said that the management of the respondent under the Supervision Order had been effective - he has not committed a serious offence despite being in the community for six years under the Supervision Order. This exchange occurred:[39]
… can you provide an opinion as to the efficacy of the supervision order in managing TJD's risk? Not just whether he has committed an offence. Although, obviously, I understand that that is relevant to your opinion, but its ability or efficacy in managing this high-risk?‑‑‑I think it's undoubtedly had an impact on his risk. That without this constraint he would not have been brought up and regularly given awareness of the way that he is - he's functioning and thinking. He would not have had a regular contact with the psychologists. He would not have had the regular contacts with the CCOs and SOMS. Those are constant reminders of this is the situation in. These are the issues. However you then deal with it, that's - that's very different to being without any form of supervision. And there is also no doubt the literature on desistance is very strong now that over time if you do not commit an offence whilst you're in the community with an opportunity to commit an offence, your risk reduces.
Notwithstanding whether you're not committing an offence is related to not just an internal locus of control?‑‑‑That's control and ‑ ‑ ‑
It can be related to an external as well?‑‑‑That's correct. It appears that - that is unrelated or not directly related to whether you're supervised or not. The fact that it has occurred with that opportunity still actually reduces risk and the suggestion is by approximately 50 per cent with each five years in the community.
[39] ts 64.
Dr Wynn Owen said that the management could be further improved if the CCO responded immediately to any breach, if responses were consistent, and if a 'black and white' approach was adopted. He said:[40]
… I believe that a reaction to a particular issue within a very short time of it occurring which will have a much more significant impact than a delayed or much later response. There will be a loss of an understanding of that moment.
… I think consistency and being absolutely black and white is going to be very important. … I think that, for example, if TJD is asked you must tell me who it is that you've associated with and you don't hear anything for nine days, there was a sense that he has been allowed to do that and he will take that as being given permission just to carry on delaying. Whereas, if there was an immediacy to it and if not, there was a consequence, then I think that - that response might have happened more quickly. The risk situation - or the potential risk situation could have been managed much more quickly and the anxieties of the team would have been dealt with but there may have been some learning from that potentially but I'm sure that there was. But if anything, the learning from this experience is that I can just drag this out and I'm going to tell you really when the consequences become severe.
[40] ts 66. See also ts 67 ‑ 68 and 73 ‑ 74.
Dr Wynn Owen supported the additional conditions proposed by Mr Snow (discussed later), as assisting in achieving clarity, and further reducing the risk.[41]
[41] ts 67, 73 and 76.
Dr Wynn Owen said the fact that the respondent has not failed a single drug or alcohol test throughout his time in the community showed that he had the ability to, and did, modify his behaviour. In particular, it showed he had been able to modify his response to stress.[42]
[42] See, for example, ts 72 ‑ 73.
Dr Wynn Owen said that, despite the respondent's personality, his conduct towards the CCOs and the contraventions, the respondent had substantially complied with the standard conditions over the last six years. Dr Wynn Owen noted that the respondent:[43]
1.has reported as required on a regular basis for over six years;
2.has not failed a drug or alcohol test;
3.engaged with, and remained in, therapy for a long period of time; and
4.has not committed a serious offence.
[43] See ts 69 ‑ 70.
Indeed, the only standard condition that the respondent has not completely complied with is the one requiring him to comply with any reasonable direction of the CCO.
Dr Wynn Owen said that the respondent's substantial compliance with the standard conditions demonstrated, obviously, that the respondent could substantially comply. Dr Wynn Owen said that, in his opinion, with the support the respondent would receive under a supervision order it was likely that the respondent would continue to substantially comply with the standard conditions.[44]
[44] ts 69 ‑ 70.
Dr Bannister provided a treatment progress report in relation to the respondent. He set out a summary of the respondent's treatment history and the respondent's account of his own progress. Dr Bannister said:[45]
[TJD] was able to articulate a reasonably good understanding of his risk relevant factors, and behavioural indicators since his release into the community in 2014 suggest that he has had some degree of success in managing them. Dr Galloghly's position that there were no outstanding issues of a specifically criminogenic nature that warranted focus at this stage, and that in any event [TJD] was not a good candidate for ongoing psychological counselling, appears appropriate. Instead, [TJD] and Dr Galloghly's agreed plan to focus on assisting [TJD] to more meaningfully and candidly interact with supervising authorities appears to be the most practically useful approach at this time. [TJD] appears to have developed a degree of trust and rapport with Dr Galloghly, and Dr Galloghly is also fully aware of [TJD]'s responsivity issues, such as his documented tendency to fabricate information.
…
[TJD] should continue his contact with Dr Galloghly. In the event that he is released to a Supervision Order, he should continue regular contact with him, in order to assist his meaningful and honest engagement with supervising authorities and manage stressors as they arise. If [TJD] remains in prison on a CDO, Dr Galloghly should negotiate the frequency of contact and session content in collaboration with him, and proceed as clinically indicated.
[45] BOM pages 181 ‑ 182.
The respondent's CCO, Mr Snow, provided a performance report. Mr Snow said that the respondent had reported as directed since the commencement of the Supervision Order. However, his engagement with his CCOs has fluctuated depending on the subject matter being discussed.[46]
[46] BOM page 198.
Mr Snow provided detail of the contraventions to which the respondent pleaded guilty.[47] Mr Snow also set out other contraventions committed by the respondent, noted earlier. Later in his report, Mr Snow set out his overview of the respondent's approach to issues with the respondent's accommodation and employment.
[47] See in particular BOM pages 200 ‑ 203.
Mr Snow also detailed various issues that arose from a long standing connection the respondent had with a woman, who was not SP. I will refer to her as 'EL'. EL has a child. The respondent appeared to be avoiding, on numerous occasions, having to make disclosure of his past offending to EL.[48]
[48] See BOM pages 208 ‑ 209.
Mr Snow concluded his report by saying:[49]
[TJD] is appearing before the SCWA in relation to a contravention hearing pertaining to his SO. [TJD] has received a number of convictions, verbal and written warnings for non‑compliance since the imposition of the Order. There are concerns that [TJD] throughout the Order timeframe has continued to display deceitful behaviours to both [h]is SCCO and Police. His presentation during supervision with his SCCO, Psychologist and other supports indicates his distrust and lack of openness and honesty. This has raised concerns within his Risk Management Team due to his engagement in risk taking behaviours and a lack of reporting. [TJD] lacked insight into his actions and minimised his associations, activities and behaviours around potential risk scenarios.
[49] BOM page 210.
In view of the latest contraventions, Mr Snow proposed that some additional conditions be imposed if the respondent was released on the Supervision Order. These were:
1.With the exception of public transport, not enter in or on any vehicle with any female or where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by a CCO.
2.Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO.
3.Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO.
4.Report any unsolicited interaction with females at your residential address to the CCO and the Sex Offender Management Squad at your next scheduled appointment.
5.Upon request, permit a CCO or Western Australia Police to access any computer, telephone or any electronic storage device that is connected to the internet or has been used by you to access the internet, at any location nominated by the CCO or Western Australia Police, for the purpose of ascertaining your associations and activities.
6.With respect to any computer, telephone or electronic storage device in your possession that is connected to the internet or has been used by you to access the internet, not delete or otherwise remove or disguise any search histories or logs capable of identifying your activities on that computer, without the approval in advance of a CCO or Police Officer.
7.Provide a verbal or written account of your projected movements to your CCO, as and when directed by your CCO and for the movements to be approved in advance, with the exception of the following circumstances:
(a)to obtain urgent medical or dental treatment for yourself;
(b)for the purpose of averting or minimising a serious risk of death or injury to the respondent or another person;
(c)to obey an order issued under a written law (such as a summons) requiring your presence elsewhere; or
(d)at the direction of a CCO or Police Officer.
I will refer to these conditions as the 'Additional Conditions'.
Mr Snow said in his oral evidence that he considered he could continue to manage the respondent if the respondent was released on the Supervision Order. He said he did not have any interpersonal issues with the respondent.[50] Mr Snow was confident he would be able to work with the respondent if he was re‑released into the community.[51]
[50] ts 98.
[51] ts 102 ‑ 103.
Mr Snow said that the recommendations made by Dr Wynn Owen to immediately deal with any breach by the respondent was achievable within the resources of his office.[52]
[52] ts 98 ‑ 99.
Evaluation
Substantially comply?
As noted earlier, the effect of the legislative framework is that I must make a continuing detention order unless the respondent satisfies me, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
Counsel for the State conceded that the evidence established this. That concession was properly made. The evidence was overwhelmingly to that effect. In particular, as noted earlier, the respondent has substantially complied with the standard conditions for over six years.
As pointed out by Fiannaca J in Hart, 'substantially comply' does not mean complete compliance, with no room for any accidental breach or minor missteps. It means comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.[53]
Should he be released on the same conditions, additional conditions or detained?
[53] Hart [52].
Being satisfied that the respondent would substantially comply with the standard conditions, I must then decide whether to rescind the Supervision Order and make a continuing detention order or affirm the Supervision Order, with or without amendment or extension.
In deciding between a continuing detention order and a supervision order, the paramount consideration is the need to ensure adequate protection of the community. The court should choose the order that is the 'least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'.[54]
[54] West [52(j)].
The weight of the evidence is that, provided adequate conditions are in place, the community will be adequately protected by the Supervision Order.
Counsel for the State said that proposed Additional Condition 7 should be amended to, in effect, improve the certainty of its operation. She said that, provided the Additional Conditions were imposed (with some amendment to proposed Additional Condition 7), the State did not contend that the community would not be adequately protected by a supervision order.[55]
[55] ts 115 ‑ 117.
I am satisfied that the community will be adequately protected by a supervision order. However, in view of the latest contraventions, I consider it is necessary to impose the Additional Conditions to achieve adequate protection.
At the conclusion of the hearing, I asked the parties to confer with each other and the witnesses as to the wording of the conditions (including the Additional Conditions) to ensure that they are expressed clearly and in plain language. After the hearing, as a result of that conferral, the parties provided me with a modified version of the proposed conditions (including the Additional Conditions), expressed with much more clarity than the previous version.
I then provided the parties with an amended version of that document, proposing additional changes to further improve clarity. After some further exchanges, the parties advised me that they each considered the proposed amendments were appropriate. Accordingly, I will amend the Supervision Order in those terms.
Duration of the order
When providing the parties with an amended version of the proposed conditions, I also asked the parties if they wanted to be heard as to the duration of the Supervision Order.
The respondent submitted that it should not operate beyond the date on which it would have expired, on 11 March 2024. He submitted that, if the State considered, closer to that expiry date, that he remained a risk, the State could bring a further application under the HRSO Act.
Dr Wynn Owen said:[56]
Based on static99 desistance research TJD will be in the Above Average category until completion of 12 years offence free post release (ie he will still be above average in 2024 when the previous order was due to expire), for High Risk High Needs offenders that is still a 17‑21% likelihood of a new sexual offence in the 5 year period, if the order is to be extended I would suggest extend it to 12 years post release ie to 2026.
[56] Email from counsel for the State on 19 November 2020, extracting Dr Wynn Owen's opinion. Counsel for the respondent consented to the email going into evidence, and without requiring Dr Wynn Owen to re‑attend for cross‑examination.
There is much force in the respondent's submission. Nevertheless, in view of the respondent's most recent contraventions, I consider it is necessary to increase the duration of the Supervision Order so that it expires in March 2026.
Conclusion
For these reasons, I will amend the conditions of the Supervision Order and extend its duration.
I note that it is important that the authorities act on Dr Wynn Owen's recommendations. Any breach of a condition must be responded to immediately. Any breach of significance, any breach that increases risk, should be the subject of contravention proceedings. Any resistance in relation to any matter that increases risk should not be accepted. Any ambiguity in the conditions should be unequivocally clarified. Any directions should be unambiguous. For example, the respondent should not be given a direction that simply requires him to provide a person's contact details without stipulating the time within which he must do so or which requires him to do so 'as soon as possible'. Rather, he should be given a direction that he do so immediately or by a set time. If he wants an opportunity to speak to the person before they are contacted by the CCO, the CCO may choose to give him that opportunity. The contact details must, however, be provided immediately.
ATTACHMENT 1
STANDARD CONDITIONS REQUIRED BY THE ACT
When you leave prison and are transported to your residential address, you must remain in the company of a Community Corrections Officer (CCO) and tell the officer your current name and the address you will live in after being released;
You must report to, and receive visits from, a CCO as directed by the court;
You must notify a CCO every time you change your name, place of residence, or place of employment at least 2 business days before the change happens;
You must be under the supervision of a CCO and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32 in relation to electronic monitoring and curfews);
You must not leave or stay out of the State of Western Australia without the permission of a CCO;
You must not commit a serious offence during the period of this order;
You must be subject to electronic monitoring under section 31;
ADDITIONAL CONDITIONS
Residence
You must live and pay rent at [address suppressed] and spend each night at this address. You are not allowed to spend any night (1 or more) away from this address unless you have received written approval in advance from a CCO to do so;
Curfew and Monitoring
A CCO may give you a written direction requiring you to stay at, and not leave, your approved residence between specific hours. This is called a curfew. If you are given a curfew, you must comply with it and stay at, and not leave, your approved residence between the hours specified by a CCO. A CCO may, by written direction to you, make the curfew apply for the whole period of this order or for a shorter period of time or may require you to comply with curfews from time to time. You must comply with each curfew for the entire period it covers;
When subject to a curfew under this order, you must present yourself for inspection at the front door or in the front yard of your approved residence, or speak on the telephone to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
When subject to a curfew under this order, you must make sure that any person at the residence during your curfew hours who may answer the telephone or door is aware of what you need to do under this order. You must also ask them to tell you if anyone who is monitoring your compliance with the curfew tries to contact you;
You must maintain a daily diary of where you go, what you do, and anyone you meet or talk with or communicate with in any way. You must show the diary to a CCO or Police Officer if they ask you to;
Reporting to a CCO and Supervision by a CCO
You must report to a CCO at your approved residence within 48 hours of your release and at times and locations as directed by a CCO;
You must be under the supervision of a CCO, which includes obeying any lawful orders and directions of a CCO;
You must report to, and receive visits from, a CCO at times and at places as directed by a CCO. A CCO will consider any work commitments you have when they arrange these reports and visits;
You must not start or change paid or unpaid employment without the prior approval of a CCO;
Attendance at Programs or Treatment
You must go to any medical practitioner, psychologist, psychiatrist or counsellor as directed by a CCO;
You must go to appointments with a psychiatrist, psychologist, mentor, support service and/or support person selected by a CCO, as directed by a CCO. While at an appointment, you must speak about your past and current life and answer all questions you are asked;
You must comply with the requirements of all programs designed to address your offending behavior and/or risk of serious re‑offending, as directed by a CCO;
As directed by a CCO in consultation with a doctor, psychiatrist or endocrinologist, you must undertake medical treatment with hormonal anti‑libidinal medication, and comply with all testing to monitor your compliance with that treatment;
You must allow 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;
You must take any medication in accordance with a medical practitioner's direction, and comply with all testing to monitor your compliance with that treatment as directed by a CCO;
Reporting to WA Police
You must report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, PERTH WA 6000, within 48 hours of your release from custody. You must also report to, and receive visits from, Police at times and at locations as directed by the Officer-in-Charge of SOMS or his/her delegate;
If you are asked, you must allow Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow Police Officers to take any items that they believe breach the conditions of this order;
You must remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act 2020;
If you are asked, you must advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities and passwords used by you;
Disclosure/Exchange of Information
You must agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
You must allow a CCO, WA Police, or other person or agencies approved by a CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history, without you being present during contact with these persons or agencies;
Restrictions on Contact with Victims
You must not have 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 under condition 29, you must immediately physically leave any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of the victim), without engaging in conversation with the victim whether by word or gesture, and you must not look at the victim at any time;
You must not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
Criminal Conduct
You must not commit any sexual offence, as defined in the Evidence Act 1906 (WA) s 36A;
You must not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K of the Criminal Code 1913 (WA);
You must not commit any other criminal offence where the maximum penalty includes imprisonment and which involves violence, threats of violence, or the possession of weapons or offensive instruments;
You must not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA);
You must not possess, or consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to cannabis, unless the drug has been prescribed for you by a person authorised under the Medicines and Poisons Act 2014 (WA) and your use is in accordance with the instructions of the provider;
Prevention of High-Risk Situations
You must not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by a CCO. This means you must not spend time with such a person or communicate with them, directly or indirectly, unless you have been given permission in advance to do so;
You must not possess, or drink or use alcohol;
You must attend for and submit to urinalysis or other testing for alcohol or prohibited drugs as directed by a CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place;
You must provide a valid sample for testing done under condition 39;
You must not stay in the presence of any person who you know is affected by prohibited drugs, or who you reasonably ought to know is affected by prohibited drugs;
You must not stay in any place where prohibited drugs are being consumed unless such a place is your approved residence. If the place is your approved residence, you must leave that part of the residence (room or yard area) in which the consumption is taking place;
You must not attend the premises or access the services of escort agencies or sex workers, including in person and online;
You must not have contact with any child under the age of 17 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 a 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 politely leave the area immediately, for example if the contact was an uninvited interaction or communication);
Where any unsupervised contact with a child under the age of 17 years is initiated by the child, you must immediately leave the presence of the child by leaving the area they are in, unless the contact is permitted under condition 44;
You must provide the details of any contact with a child under the age of 17 years to both a CCO and to Police on the next occasion you report to that person or agency;
Before you begin a relationship with a person who has children under the age of 17 years in their care either full or part‑time, you must report to a CCO your intention to form a relationship with that person. If you do form a relationship with a person who has children under the age of 17 years in their care either full or part‑time, you must immediately report the formation of that relationship to a CCO.
('Relationship' under this condition includes any friendship, domestic, romantic, sexual or otherwise intimate relationship);
If you want to start a domestic, romantic, sexual or otherwise intimate relationship, you must tell the person with whom you want to commence a relationship of your past offending and the current order. You must tell them before you begin the relationship. You must comply with any CCO's direction as to how you must tell such a person and what you must tell them. You must also allow a CCO or a Police Officer to check that you have properly and fully told the person about your past offending and the current order, without you being there or listening when they check that;
You must not conduct computer searches for, nor collect in either electronic or permanent form, images of children, whether indecent or not, with the exception of images of your immediate family that are not indecent images;
You must not have contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for women and/or children, and you must stop/cancel such memberships if directed to do so by a CCO or Police Officer;
With the exception of public buses, ferries and trains, you must not enter in or on any vehicle (whether that vehicle is under your control or not), with any female or where a female is present, unless a CCO has given approval in advance for you to enter in or on the vehicle with that female;
You must not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO;
You must not permit any female to enter any residential address in which you reside or are present at, unless a CCO has given approval in advance for that female to do so. If a female enters the address you are at and the CCO has not given approval in advance for that female to do so, you must leave the address immediately;
If you are home at your residential address or arrive home and find a female at your residential address who was not invited by you, you must refuse the female entry into your address or immediately remove yourself until the female has left. You must then verbally report the female's attendance at your residential address to a CCO and SOMS either immediately or on the next business day;
When requested, you must permit a CCO and/or WA Police to access any computer, telephone or any electronic storage device that is connected to the internet or has been used by you to access the internet, at any location nominated by a CCO or WA Police, for the purpose of ascertaining your associations and activities;
With respect to any computer, telephone or electronic storage device in your possession that is connected to the internet or has been used by you to access the internet, you must not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any search histories or logs capable of identifying your activities on that computer or device, without the approval in advance of a CCO or Police Officer;
You must provide your projected daily movements to a CCO in writing at your supervision sessions each week. You must provide any additional projected movements that you are not able to provide in advance in writing in your supervision sessions and any proposed deviations from your projected movements verbally by telephone call to a CCO. You must provide your projected movements for any weekend to a CCO by 3pm on the Friday before the weekend, unless otherwise directed by a CCO. You must not undertake the movement unless you have been given verbal or written approval by a CCO in advance, with the exception of the following circumstances:
(a)To obtain urgent medical or dental treatment for yourself;
(b)For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;
(c)To obey an order issued under a written law (such as a summons) requiring your presence elsewhere; or
(d)At the direction of a CCO and/or Police Officer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer25 NOVEMBER 2020
19
1