The State of Western Australia v TJZ - [2020] WASC 407

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TJZ [2020] WASC 407
CORAM:   TOTTLE J
HEARD:   4 AUGUST & 12 NOVEMBER 2020
DELIVERED          :   12 NOVEMBER 2020
FILE NO/S:   DSO 3 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
TJZ
Respondent

Catchwords:

High risk serious offender - Division 2 hearing - Where application commenced in respect of alleged Dangerous Sexual Offender - Enactment of High Risk Serious Offenders Act 2020 (WA) between hearing and disposition - Supervision order made

Legislation:

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

Result:

Supervision order granted

Category: B

Representation:

Counsel:

Applicant	:	Mr M T Trowell QC
Respondent	:	Ms K J Farley SC

Solicitors:

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

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; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
GBT v The State of Western Australia [2019] WASCA 40
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Narrier [No 5] [2019] WASC 17
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v ZSJ [2020] WASC 330

TOTTLE J:

Introduction

The State's application in respect of the respondent for a continuing detention order or a supervision order under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) was heard on 4 August 2020.
The DSO Act has been repealed by the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The application of the HRSO Act to applications proceeding under the DSO Act was explained by Fiannaca J in The State of Western Australia v ZSJ.[1] In short, the provisions of the HRSO Act now govern this application. The application proceeds as an application for a restriction order under s 35 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
[1] The State of Western Australia v ZSJ [2020] WASC 330 [3] - [5].
Although the provisions of the HRSO Act are expressed in different language, for the purposes of this application there is no material difference in the substantive criteria to which regard must be had in determining whether to make a restriction order under the HRSO Act from those to which the court was required to have regard for the purposes of determining whether to make a continuing detention order or supervision order under the DSO Act.
The respondent is 52 years old, and has a history of offending against male and female children who are lineal or de-facto relations. On 3 March 2020, at a time when the respondent was serving a term of imprisonment for such offending, and within the final year of that sentence, the applicant filed an application dated 26 February 2020 under s 8 of the DSO Act for preliminary orders under s 14, and for a Div 2 continuing detention order or a supervision order under s 17.
The application was made on the basis that the respondent is a serious danger to the community, in that there is an unacceptable risk that, if one of those orders is not made, the respondent will commit a serious sexual offence, in particular, an offence of the kind he has previously committed against children.
On 9 April 2020, after a preliminary hearing, Corboy J determined there were reasonable grounds for believing that the court might find that the respondent is a serious danger to the community under s 7(1) of the DSO Act. His Honour made an interim detention order that the respondent be detained in custody until the final determination of the application.
The issues to be determined are:
(a) whether the respondent is a high risk serious offender within the meaning of the HRSO Act; and
(b) if so, whether he should be:
(i) detained in custody for an indefinite term for control, care, or treatment (continuing detention order); or
(ii) released into the community subject to conditions that the court considers appropriate (supervision order).
If the respondent is found to be a high risk serious offender, one of those orders must be made.[2] For the reasons that follow, I have determined that the respondent is a high risk serious offender.
[2] HRSO Act, s 48(1).

The evidence

The State tendered a two volume book of materials containing relevant information on the respondent's prior offending, previous reports and decisions, and reports prepared for this hearing. The reports prepared for this hearing were the reports of Dr Gosia Wojnarowska, a forensic psychiatrist, Ms Julie Hasson, a forensic psychologist, Dr Kathryn Riordan, a forensic and clinical psychologist, and Ms Brooke Mandolene, a senior Community Corrections Officer with the Community Offender Monitoring Unit. I make more detailed reference to these reports later.
Dr Wojnarowska, Ms Hasson, Dr Riordan and Ms Mandolene each gave oral evidence at the hearing and were cross‑examined by the respondent's counsel. The respondent adduced no evidence.

Relevant statutory provisions and legal principles

As already noted, the criteria with which the court is concerned in determining an application under the HRSO Act are substantially the same as under the DSO Act.
Pursuant to s 48(1) of the HRSO Act, the court must make a continuing detention order or a supervision order if the court finds that the offender is a high risk serious offender.
An offender is a high risk serious offender if the court is satisfied under s 7(1), 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 the offender will commit a serious offence.
Section 5 of the HRSO Act defines the term 'serious offence'. For present purposes it is sufficient to record that the offences committed by the respondent in the past, and those he may commit in the future with which this application is concerned, are serious offences for the purposes of the HRSO Act.
Restriction order means either a 'continuing detention order' or a 'supervision order' as defined in s 26 and s 27 respectively of the HRSO Act. The definitions are not materially different from those contained in the DSO Act.
The principles formulated by this court relevant to determining an unacceptable risk of committing a 'serious sexual offence' are applicable to determining an unacceptable risk of an offender committing a 'serious offence'. Determining the existence of an 'unacceptable risk' under s 7(1) involves a balancing of considerations requiring the court to have regard to, on the one hand, the nature of the risk, the potential serious consequences for the victim if the person commits a serious offence, and the likelihood of the risk coming to fruition. On the other hand, the court must consider the serious consequences for the person if a restriction order is made.[3]
[3] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] (Wheeler JA); Italiano v The State of Western Australia [2009] WASCA 116 [46]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [27] (Steytler P & Buss JA).
The risk of the person committing a serious offence must be found to be so unacceptable that it is deemed necessary, in the interests of the community, to ensure that the person is subject to further control or detention, notwithstanding that the person has already been punished for the offences they have committed.[4] The powers under the HRSO Act are not to be used for the purpose of imposing additional punishment, but for the ultimate purpose of community protection. The community may be protected through continuing control over the offender, and may also be protected by provision of care and treatment, which may lessen the danger to the community or sections of the community, provided to the offender while in custody.[5]
[4] DPP v Williams [63] (Wheeler JA); GBT v The State of Western Australia [2019] WASCA 40 [21].
[5] DPP v GTR [97] (Murray AJA).
Section 7 of the HRSO Act stipulates the same evidentiary requirement, standard of satisfaction and onus of proof as were stipulated in s 7(2) of the DSO Act. The court must be satisfied of the need to make a restriction order by acceptable and cogent evidence and to a high degree of probability. The State bears the onus of so satisfying the court.[6] The 'high degree of probability' standard is a lesser standard than the standard of beyond reasonable doubt but is higher than the standard of the balance of probabilities.[7]
[6] HRSO Act, s 7(2).
[7] DPP v GTR [28] (Steytler P & Buss JA).
This does not mean that the risk of the person committing a serious offence must be greater than 50%. A risk lower than 50% may still be unacceptable. The court must identify, however, 'what it is (if anything) that constitutes the risk and makes the risk unacceptable, and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence'.[8]
[8] DPP v GTR [34] (Steytler P & Buss JA).
The court must have regard to each of the factors in s 7(3) of the HRSO Act in considering whether it is satisfied as required by s 7(1). The factors are:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
The paramount consideration in deciding between a continuing detention order and a supervision order is the need to ensure adequate protection of the community.[9] This does not equate to a pre‑disposition to make a continuing detention order. Other considerations also apply.[10]
[9] HRSO Act, s 48(2).
[10] The State of Western Australia v West [2013] WASC 14 [52] (Corboy J); Director of Public Prosecutions (WA) v Decke [2009] WASC 312 (Hall J) [14].
The principles to be applied in determining whether a supervision order would adequately protect the community were summarised by Beech J, as his Honour then was, in Director of Public Prosecutions (WA) v DAL [No 2]:[11]
(a)The use of the word 'adequate' in the section indicates that a qualitative assessment is required.
(b)In considering the adequacy of a supervision order, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment.
(c)The Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the Act applies would ever be released.
(d)The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.
(e)If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, then, because the paramount consideration is the need to ensure the adequate protection of the community, the court must make a detention order.
[11] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]; citing DPP v Williams [57], [86]; Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [20], [103], [107] (Hall J); Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [16] (Fiannaca J).
Section 29 of the HRSO Act requires that a supervision order must not be made unless the court is satisfied that, on the balance of probabilities, that the offender will substantially comply with the standard conditions as made, affirmed or amended. The term 'standard condition' is defined to mean a condition that under s 30(2) must be included in the order. There are seven specified conditions which the court must include in any supervision order.
Under s 29(2) the offender bears the onus of proving on the balance of probabilities that they will substantially comply with the standard conditions in a manner and to an extent that is consistent with, and will enable the attainment of, the general object of adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious offence.[12]
[12] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52] (Fiannaca J); The State of Western Australia v Narrier [No 5] [2019] WASC 17 [113] (Jenkins J).
Some matters that will be of relevance are (a) the respondent's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions); (b) his capacity to comply with the conditions; (c) what measures there are in place to ensure he would substantially comply; and (d) 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 HRSO Act.[13] Where engagement in counselling is to be a condition, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk.[14]
[13] DPP v Hart [50].
[14] DPP v Hart [50].

Is the respondent a high risk serious offender?

I turn to consider whether the respondent is a high risk serious offender within the meaning of s 7(1) by reference to the factors specified in s 7(3). It is helpful to begin with the respondent's antecedents and offending history.

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

The following account is a synthesis of the information derived from the various reports received into evidence.

Antecedents

The respondent was born in Western Australia on 15 February 1968 and is currently 52 years old.
The respondent is the eldest of four half siblings, all who share the same mother but different fathers. His mother gave birth to the respondent when she was 15, and the respondent understands that his father was also young. He had no contact with his biological father until he was approximately 12 or 13. Contact has since been extremely limited.
He lived with his mother through childhood, however he has reported that there were numerous men in his mother's life who attended the family home. Many of these men were violent and abusive towards his mother as well as towards him and his siblings. One of his mother's partners, whom he considered to be his stepfather and was the biological father of his youngest sister, used to beat the respondent and also forced him to beat his own siblings as well.
The respondent's relationship with his mother has been ambivalent and strained for most of his life. He acknowledged that his mother always ensured clean clothes, food and a warm bed, but reported an absence of affection or nurturing during his childhood and felt that he could not talk to her. His mother and many of her partners misused alcohol. The respondent felt that his home environment was dysfunctional and that in bringing men home his mother exposed him to violence and sexual abuse.
With one exception when the respondent ran away from home briefly at around the age of 12 or 13, he remained living with his mother and stepfather until they moved to Fitzroy Crossing. After a period of a few months when he lived with his aunt, he followed them to Fitzroy Crossing, where he remained living until early adulthood.
The respondent was sexually abused by one of his mother's partners, the father of one of his sisters, at the age of five. He reported the abuse to his mother, who expressed a desire to engage him in counselling but this did not eventuate. At the age of nine, the respondent reported being held down and sexually penetrated by the son of one of his mother's partners. In some interviews, the respondent has described the incident as being raped by a number of males. Around the ages of 12 or 13 he was again sexually assaulted, this time by a stranger when he was camping with some friends. The respondent reported that the unknown man approached him in his tent and performed fellatio on him. The respondent found the experience arousing, however he became aware the next morning that his friends had also been approached by the stranger and had declined his approaches. The respondent experienced shame, embarrassment, and confusion that he had permitted the abuse and enjoyed it.
The respondent recalled early sexual exploration with similar aged female peers in Primary School and did not recall any problems with puberty or self-esteem. He was exposed to pornography at an early age by his stepfather, which he occasionally viewed himself, but tended to view them more with curiosity rather than for sexual stimulation. He reported his sexual development as being heavily influenced by his sexual victimisation and exposure to inappropriate material at a young age, as well as a general lack of sexual education from his parents. Recalling his early sexual development, the respondent described himself as naïve.
The respondent completed Year 10, and reportedly enjoyed school. After leaving High School he eventually completed an apprenticeship as a butcher, and worked in this trade for several years before seeking alternative employment as a store person, forklift driver, abattoir worker and commercial cleaner. He has also been a night supervisor of an accommodation lodge and the caretaker for a hostel.
A back injury, previous convictions for child sex offences and chronic cannabis use have disrupted the respondent's work history and adversely affected his employment prospects. There have been extended periods of unemployment. The respondent also reported that he has experienced trouble maintaining his interest in particular jobs and was often restless in his employment. He briefly operated his own butcher's shop in Albany, however his poor planning and business skills saw it close within six months. He has acknowledged having poor financial management skills and has difficulties with personal organisation and meeting obligations.
The respondent has been involved in four intimate relationships with women of a similar age. His first intimate relationship was established during his late teens while residing in the Fitzroy Crossing region, at approximately 15 or 16 years of age. This relationship reportedly lasted over 12 months and at some point involved cohabitation. Reports vary about this relationship. The respondent indicated that the relationship began positively, but saw an acceleration of alcohol consumption in the final months due to pressure from his girlfriend and her family to drink.[15] The respondent disclosed in another interview that the relationship ended due to his relocation to Perth following accusations made by a young cousin of the respondent that the respondent had engaged in sexually inappropriate behaviour.
[15] Completion Report- Pathways Program, P. Gardner & L. Maradik, 2015; Exhibit 1, 683.

The respondent's second intimate relationship commenced when he was about 20 years old. The relationship lasted a year and the respondent's partner gave birth to their son.[16] His partner sustained physical and brain injuries in a car accident and became disabled. The respondent struggled to cope with the demands of a newborn and his partner's disability, and subsequently chose to leave the relationship. In the past the respondent has said that occupying the role of a father was a lifetime aspiration for him, but recently he admitted that his partner's pregnancy was initially unwelcome, and that he has never been 'the father type'.
[16] In one record of interview the respondent described his partner as a 'pregnant girl' and in another he stated that she had become pregnant soon after they met and that he had never been sure if the son was biologically his.
He and his partner resumed the relationship briefly before separating a second time following the respondent's conviction for an indecent dealing offence perpetrated against his partner's niece. During the early stage of the relationship with his second partner, the respondent claimed to have had a fulfilling sexual relationship. However, his sexual activity and libido declined over time following the birth of his son, while his consumption of cannabis increased.
The respondent described his third intimate relationship as occurring with a woman who was working as a prostitute. They met while he was working at an accommodation lodge. He decided to pursue the relationship. It ended, however, after just a few months.
The most recent and longest intimate relationship, lasting for a period of eight years, was with the respondent's ex-wife. They met while they were both residing in the accommodation lodge where he was a caretaker. Initially, they bonded over their mutual enjoyment of cannabis. He described his ex-wife's cannabis smoking as the most attractive thing about her at the time. Over time their relationship became sexual and they moved into a home in suburban Perth together with her two children. The respondent reported that he relished the chance to be a stepfather to her children, and that he wanted to be a good father and not an abuser like his previous stepfathers. He has conceded that he and his ex-wife were not what he considered to be good parents, allowing the children to effectively raise themselves while they smoked cannabis. The respondent maintains that his ex-wife knew about his previous child sex offences prior to living together.
The respondent reported that his relationship with his ex-wife was sexually fulfilling at first, but at some stage in the relationship she began to experience gynaecological issues after which he developed an aversion to engaging in sexual intercourse for fear of hurting her. Despite her assurances to the contrary, sexual relations ceased because the respondent refused to engage in sexual intercourse due to this fear and reduced desire attached to feelings of disgust. Stress relating to the failure of the butcher business, which his ex-wife's family had contributed to financially, led to further breakdown. Eventually his ex‑wife began a relationship with someone else and the marriage ended. The respondent maintained contact with his stepchildren, who were the victims of some of his offending. The respondent stated that emotionally he did not cope well with the end of his marriage.
The respondent has a history of paranoid thinking and depression, and of negative rumination on his past and identity. He was subsequently prescribed antidepressants by a GP, but quickly ceased them after he had negative side effects including violent dreams of hurting people. He has also acknowledged a history of suicidal ideation.
The respondent has a history of substance dependency, which started in his late teens up until his incarceration in 2010. He reported starting to drink alcohol on a heavy basis after separating from his first partner. This returned to normal levels shortly after, but alcohol dependence has fluctuated throughout his life, often corresponding to periods of negative emotion. After the break down of his marriage, the respondent reported drinking heavily, up to 24 cans of beer daily.
He first began to use cannabis around the age of 20 years old, which escalated to become a chronic addiction. The respondent reported that cannabis made him feel mellow and numb. Cannabis use has been a common activity within his intimate relationships, contributing to a lack of parenting engagement with his stepchildren and a lack of motivation to work or engage in meaningful activities. The respondent reported being under the influence of cannabis during both the offences against his nephew and de-facto niece. The respondent has also reported using other substances such as ecstasy and LSD while working at the accommodation lodge, as it was closely associated with methods of socialising. He began smoking methamphetamine later in life, which became more regular after meeting his ex-wife.

Criminal record

Non-sexual offending

The respondent has a limited history of non-sexual offending in Western Australia. His court record consists of drug related convictions (cannabis) in 1993, 2007 and 2008, traffic convictions and a conviction for breaching a Community Based Order.

Sexual offending

The 1998 charge

The respondent pleaded guilty to 'Indecent Dealing with a Child Under 13' committed against his nephew, who was aged five years old. The respondent was 29 years of age and was living with his sister and the complainant after the first separation with his second partner. On 26 October 1997 the respondent was babysitting the complainant while his mother was out. The offending involved the respondent taking the victim to his bed, undressing him and whilst both were naked placing his erect penis between the complainant's buttocks and rubbing his penis between the buttocks for several minutes. The complainant subsequently informed his mother of the incident. The respondent received a two‑year Community Based Order with 80 hours of community work.

The 1999 charge

The respondent was acquitted of one count of 'Indecent Dealing' in the Perth District Court on 27 April 1999 against his six‑year‑old female cousin. The offence was alleged to have occurred on a date between 24 December 1995 and 1 February 1996, and involved an allegation that the respondent touched her vagina over her underpants.

The 2000 charges

These offences occurred between 3 September 1998 and 24 September 1998. The complainant was the eight‑year‑old niece of the respondent's second partner. The complainant stayed at the respondent's house when her mother was working. On the first occasion the complainant had been asleep in bed with her aunt. The respondent removed his clothing and climbed into bed next to the complainant. He put his hand under her nightgown and touched her chest area with his hands. The complainant pushed him away
The second occasion occurred a week later when the complainant was again staying the night at the respondent's house while her mother was working. Once again, the complainant was asleep in bed with her aunt. The respondent was lying next to the complainant. He rubbed her vagina with his hand on the outside of her underwear. The complainant pushed his hand away. The complainant reported the abuse to her mother. The respondent was sentenced on 2 August 2000 to 2 years and 9 months imprisonment. He was also sentenced to 15 months cumulative for breach of the Community Based Order.

The 2010 charges

On 17 June 2010 the respondent was convicted of seven counts of knowingly 'sexually penetrating a child who was a lineal relative or de facto child', three counts of 'indecent dealings with a child who is a lineal relative or de facto child' and 'failure to comply with reporting obligations'.
The offences occurred against his stepson and stepdaughter and occurred over a period of some years. The offending against his stepson, AB, began in 2004 when he was aged nine or 10, and the respondent aged 36 or 37. The first offence occurred shortly after the family unit moved in together. Late one evening AB was lying in bed. The respondent entered the room and lay down with the child, telling him to go to sleep, which AB did. AB later woke to find his pyjama pants pulled down to his knees with the respondent stroking his penis.
The respondent then placed AB's penis in his mouth and performed fellatio on AB for a short time. The third count against the respondent involved the respondent penetrating his AB's anus with his penis, pushing it in and out and causing pain. AB asked him to stop, however the respondent continued. He then pushed the respondent in the face to make him stop. The respondent subsequently walked out of the bedroom without saying anything further to AB. These offences were disclosed by AB during a specialist child interview, and were specifically remembered by AB as the first time this happened.
The next series of offences with which the respondent was charged occurred in 2009 after the marriage broke down while the respondent was living in Perth and the children in Albany. The respondent was 41 and AB was 13 years of age. Arrangements had been made for the children (AB and his sister CD) to spend time with the respondent while they visited their grandparent's house. The respondent was sleeping on a mattress in the rear shed of the grandparent's property. While on the mattress with both AB and CD, the respondent placed AB's penis in his mouth and performed fellatio on him. He removed AB's penis from his mouth and then stroked his penis with his hand. The respondent subsequently inserted his penis into AB's anus, pushing in and out for a period of time. Each of these three offences were committed in the presence of CD, who was then aged eight years
During the school holidays in September to October 2009, AB again spent the night with the respondent in Perth. Whilst AB was showering, the respondent entered the shower and penetrated AB's anus with his penis. During that same holiday period, the respondent brought AB to his mother's house in Perth. A mattress had been set up in the lounge room of the house for the respondent and AB to sleep on. During the night AB woke to find his boxer shorts had been removed and the respondent was penetrating his anus with his erect penis, causing AB significant pain. AB told the respondent to stop. The respondent removed his penis, ran to the toilet, and ejaculated.
Offending against the respondent's stepdaughter CD occurred when she was aged eight and staying at her grandparent's house. During the same September to October school holidays, the respondent was again visiting and sleeping on a mattress in the rear shed. On one occasion the respondent penetrated CD's vagina with his penis.
The abuse was disclosed to staff from the Department of Child Protection after CD had been referred by school staff due to displaying sexually inappropriate behaviour at school. Medical examination revealed evidence of interference. When told by his mother that his sister had been abused by the respondent, AB disclosed that he too had been abuse. Both AB and CD reported that the offending occurred regularly, commencing when AB was nine and lasting three to four years. CD advised the sexual contact against her also occurred frequently. AB disclosed he had seen the respondent sexually abuse his sister and had tried to stop it from happening.
The respondent was a reportable offender on the Australian National Child Offender Register (ANCOR) following his previous convictions in 2001. During the period of offending in 2009 when the respondent was visiting the children, he was participating in regular ANCOR meetings. He failed to notify an authorised person that he was engaging in unsupervised access to children in breach of his obligations.
During an interview the respondent admitted seeking out further sexual contact with the children. Sometimes this involved the respondent showering with the children under the guise of ensuring appropriate hygiene. When discussing why he sought such contact, the respondent tended to draw a link between his ex-wife's gynaecological issues and the limited sexual relationship between them, and the sexual offences perpetrated against his stepson. However, when asked to estimate how long he had not engaged in sexual activity before sexually assaulting his stepson, he estimated only a couple of weeks. The respondent conceded upon further questioning that his ex-wife had been initiating sexual advances at the time that he had declined.
At sentencing, O'Neal DCJ regarded these offences as among the most serious of their kind, and noted that the respondent's offending had grown more serious over time.[17] His Honour drew attention to the manipulation inherent in the behaviour, seen in AB's conflicting sense of fear and sense of loyalty making him reluctant to tell the police too much. He noted that the respondent had likely frequently sexually abused them over a period of several years, without either child betraying him.[18] O'Neal DCJ sentenced the respondent to a total term of 10 years and 6 months, backdated to 7 November 2009.

Psychiatric reports prepared as required by s 74 of the HRSO Act ‑ s 7(3)(a)

[17] ts, 17 June 2010, 45.

[18] ts, 17 June 2010, 45.

In accordance with the orders made by Corboy J, the respondent has, pursuant to s 37(1)(a) of the DSO Act, been examined and assessed by a qualified expert, namely Dr Wojnarowska. Based on her examination and assessment of the respondent, Dr Wojnarowska prepared a report pursuant to s 37(1)(b) of the DSO Act assessing the respondent's risk of committing a serious sexual offence.[19] This report remains relevant for the purposes of determining the respondent's risk of committing a serious offence for the purposes of the HRSO Act (the equivalent provision of which is s 74).
[19] Exhibit 1, 734.
Dr Wojnarowska was provided with all relevant material to enable her to carry out her examination and assessment of the respondent and to prepare her report. She interviewed the respondent on one occasion for three hours.
Dr Wojnarowska's psychiatric diagnosis was expressed by reference to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, 2013 (DSM-V). Dr Wojnarowska considered that the respondent has the following disorders:
(a)Paraphilia: Paedophilic Disorder of a non-exclusive type, sexually attracted to both males and females: a psychiatric disorder in which an adult or older adolescent experiences a primary or exclusive sexual attraction to prepubescent children. Non-exclusive subtype refers to the fact that he is also sexually attracted to adults.[20]
(b)Substance Use Disorder: cannabis dependence, alcohol and methamphetamine harmful use, currently in remission in custody.[21]
[20] Exhibit 1, 747.
[21] Exhibit 1, 747.
Dr Wojnarowska did not consider the respondent to present with any personality disorder or psychopathy, however noted that he displays anxious and avoidant traits as well as emotional instability and some antisocial traits characterized by impulsivity, irresponsibility, tendency to be manipulative and exploitative.[22]

Risk of sexual reoffending

[22] Exhibit 1, 747.

Dr Wojnarowska assessed the respondent's risk of sexual reoffending by adopting a structured professional judgment approach that combined actuarial and non-actuarial risk assessment tools and frameworks in combination with a clinical psychiatric assessment and formulation.
The STATIC-99R is an actuarial tool designed to assess the long-term potential for sexual recidivism amongst adult male sex offenders. Static-99R contains 10 items, which are added together to create a total score. The respondent's score was 3 which placed him in the average risk category of reoffending. Offenders who scored 3 on the Static‑99R had an average rate of sexual reoffending of 16.8% over five years. This means that out of 100 sexual offenders with the same risk score 16.8 will be charged or convicted of a new sexual offence after five years in the community.[23]
[23] Exhibit 1, 748.
Dr Wojnarowska also assessed the respondent using the Risk for Sexual Violence Protocol (RSVP) structured clinical judgment framework. The RSVP risk factors are grouped under the headings: Sexual Violence History, Psychological Adjustment, Social Adjustment and Manageability.
By reference to these headings, Dr Wojnarowska's assessment was as follows.
Sexual Violence History: Dr Wojnarowska considered the following risk factors were present:[24]
(a)Chronicity of Violence: Dr Wojnarowska noted that this factor is not a causal factor but rather a marker for the presence of other risk factors, and frequency of sexual violence is one of the most reliable factors associated with recidivistic sexual offending. Dr Wojnarowska noted the presence of evidence that the number of the respondent's convictions does not reflect the number of instances when he sexually abused his stepchildren, and other offences for which he has either not been charged or of which he has been acquitted.
(b)Diversity, Escalation and Psychological Coercion: diversity is not a relevant risk factor, but escalation and psychological coercion are factors where his offending involved grooming behaviours in presence of other family members, the time between meeting the victims and offending against them was increasingly shorter, the number of offences which he committed in one day increased over the years and, most importantly, the nature of his offending became much more serious: it was initially limited to indecent acts and later escalated to sexual penetration on multiple occasions
[24] Exhibit 1, 749.
Psychological Adjustment: Dr Wojnarowska considered the following risk factors were present:[25]
(a) Problems with Self-awareness: The respondent still has poor insight into the factors and processes which have placed him at risk of sexual violence, despite acknowledging that he is sexually deviant.
(b)Problems with Stress or Coping: The respondent has displayed deficits in emotional regulation in the past, and in order to cope with everyday life stressors he had to be 'stoned' all the time, otherwise he would become overwhelmed by negative emotions and memories. Since his imprisonment, there has been some improvement in this area. However, there remains a strong possibility that if not supported in the community and faced with adverse life events he would struggle to regulate his emotions.
(c)Problems Resulting from Child Abuse: Dr Wojnarowska considered that the respondent's experience of sexual, physical and emotional abuse had a major bearing on his personality development, being a factor in his increased stress vulnerability, affective and behavioural instability and self‑image deficits.
(d)Extreme Minimisation or Denial of Sexual Violence: this factor was present at the time of offending, including cognitive distortions around the children's enjoyment of the experience which served to rationalise his behaviour. However, Dr Wojnarowska considered that this factor has been addressed and corrected during his Intensive Sexual Offenders Treatment Program (ISOTP) program.
[25] Exhibit 1, 749 - 750.
Mental disorders: Dr Wojnarowska considered the following risk factors were present:[26]
(a)Sexual deviance: is strongly present. The respondent fulfils the diagnostic criteria for paedophilia. Sexual deviance can be defined as an interest, preference, arousal or behaviour that involves a focus on persons or objects and may be manifested in fantasies, urges, or repeated acts of a sexually deviant nature.
(b)Problems with Substance Use: despite abstinence during his incarceration, as evidenced by negative urinalysis reports, his history of chronic and severe substance use remains a risk factor in the future.
[26] Exhibit 1, 750.

Social Adjustment: Dr Wojnarowska considered the following risk factors were all partially present:[27]
(a)Intimate and Non-intimate Relationships: his relationships have been short lived, dysfunctional and not fulfilled his intimacy needs. He has no friends and has been estranged from his family due to his offending. Dr Wojnarowska opined that he lacks skills and confidence to develop prosocial and age appropriate relationships in the community.
(b) Problems with Employment: he has successfully worked in prison and completed the butcher trade, however also has experienced long periods of unemployment and working unskilled odd jobs in the community.
(c)Non-sexual Criminal Activity: The respondent only has three drug related convictions.
[27] Exhibit 1, 750 - 751.
Manageability: Dr Wojnarowska considered the following risk factors were present:[28]
(a)Problems with Planning: this is a risk factor for the respondent, who appears to confuse risk factors with triggers. Dr Wojnarowska noted that he does not have an identified plan to address his risk of substance relapse, although he does display strong motivation to avoid any contact with children which may expose him to high risk situations.
(b)Problems with Treatment: is only partially present. Dr Wojnarowska commented:[29]
[The respondent] has a history of poor engagement and not completing the program on voluntary basis. The feedback from his ISOTP is brief but suggests that he has achieved some gains mainly in his communication and seeking professional assistance; his attitude has been deemed positive. He reported benefitting from participation and was confident that the program assisted him with becoming more self-aware and gaining insight into his behaviour, acting in a more assertive manner and creating more clear boundaries in relation to others.
[28] Exhibit 1, 751.
[29] Exhibit 1, 751.
Dr Wojanrowska did not consider that Problems with Supervision was a risk factor, commenting that:[30]
[The respondent] has not been oppositional or defiant towards the custodial staff. He has been fully compliant with the prison routine and requirements and has not indicated any negativity towards the DCS or Sex Offender Management Squad (SOMS) staff. Given his personality structure, more specifically, his need for social acceptance and lack of antisocial traits, the risk of uncooperativeness around potential conditions of his supervision order, should one be made, is low.
[30] Exhibit 1, 751.
Concluding on the risk factors, Dr Wojnarowska identified the following risk scenario:[31]
Were [the respondent] to re-offend, the kind of sexual violence he would be most likely to commit would be that of sexual penetration involving digital or penile penetration. His likely victims would be prepubescent children of both gender, to whom he has pre-existing access and has been able to groom via a position of trust. His likely motivation would be the gratification of his deviant sexual interest in children. The psychological harm to the child would be that of enduring psychological disturbance characterised by low self-esteem, vulnerability to the development of psychiatric disorders and emotional fragility.
In my opinion, the potential for sexual violence to escalate to serious or life threatening violence is low as the above would not be consistent with the selection of victim and grooming practices the respondent tends to employ.

Management strategies and recommendations

Opinion

[31] Exhibit 1, 751 - 752.

Dr Wojnarowska expressed her opinion of whether the respondent could be managed in the community in the following terms:[32]
Based on the assessment by the actuarial and Structured Professional Guidelines tools and the clinical interview with [the respondent] I am of the opinion that his risk of reoffending is high if not subject to either continuous detention order or supervision order under the DSO legislation.
A number of factors have contributed to [the respondent's] offending and these include: inferred deviant sexual interests; coping skills deficits and the presence of maladaptive coping mechanisms; emotional and behavioural regulation difficulties; history of poor attachment, absence of appropriate intimate relationships, family of origin issues and his own history of abuse and neglect; communication skills deficits including poor judgement, impulsivity and decision making errors. Exposure to destabilisers and limited social and emotional support are significant risk factors for future offending. Some of these risk factors have been explored through participation in programs however; there is limited evidence that the respondent has made significant gains in his risk management strategies.
[32] Exhibit 1, 752.
In her oral evidence, Dr Wojnarowska stated that:[33]
… he has developed some insight into his risk of re-offending. For example, he understands very well that using substances such as cannabis or alcohol have been a causal risk factor in sexual offending. He also understands that - to some degree - that his mental state ‑ feelings of sadness, depression, loneliness - are risk factors. But this is at the stage that he understands. But there - from understanding to change is a big leap and my concern is that although he participated and participated willingly and was - and certainly did not resist being involved in sex offender treatment program that has - there is no evidence that there has been a change in his ability to function at the - at an adult level.
[33] ts 20.
Dr Wojnarowska stated that the respondent accepts he is a paedophile with a preference for pre-pubescent children, but that his response as to how he intends to manage this is simply to avoid children and alcohol.[34] However, Dr Wojnarowska was of the opinion in her oral evidence that the respondent was motivated to avoid high risk situations:[35]
I'm still of the opinion that … he would avoid the child if he encountered a child because he is motivated not to re-offend. I think there is a genuine remorse and - and understanding that the children suffered because of his actions. He was quite authentic when he ‑ specifically when he referred to his last offences against the children of his wife …
… So what I'm saying is that there is an authentic remorse. I felt that it was an authentic remorse and understanding how much damage he has caused to those children.
[34] ts 20.
[35] ts 21 - 22.
Dr Wojnarowska further elaborated on the respondent's self‑awareness, stating that he possessed:[36]
… self-awareness in - in the sense that he accepts that what he has done was unacceptable. That he's a paedophile. That he has been damaging those children and that this should never have happened.
… this is on continuum. This is not black and white. Yes or no. Lack or present - not present or present. So in my view he still has a limited awareness of the processes within himself - what - what is - what are his thoughts and his desires at the time preceding him engaging in sexual offending. But he has got some understanding what are the major factors that he need to deal with or avoid in order to not to re-offend.
…
He is highly motivated not to re-offend. He is very unlikely to approach a stranger child. He - if he - - -
Is that - sorry to interrupt you. Is that because that most of the offences, I think, have all been - - - ?---Yes.
- - - intra family, haven't they?---That's correct. He's the type of an offender that would need to have some familiarity with the child in order to offend against a child and he understands that he should never drink alcohol or use illicit substances. So those two factors that I'm talking about inform us about the timeframe before he forms an intent and proceeds to the actions. So we are talking about whether his offending would be immediate or not and in my view it won't.
[36] ts 22 - 23.
In Dr Wojnarowska's opinion, the respondent is at an intermediate stage of developing risk avoidance strategies. She considers that he still has a number of outstanding treatment needs, stating in her oral evidence that:[37]
… they are mainly in the psychological domain. His intimacy deficits. His unresolved trauma from childhood. Feelings of abandonment. Not being loved. Communication problems and, of course, a deviant interest - a sexual deviant interest in children.
[37] ts 24.
When asked during examination‑in‑chief whether the respondent's progress had stalled due to a lack of treatment intervention since 2017, Dr Wojnarowska replied:[38]
That's - that's one way of looking at it. The - as I said, in my mind I am satisfied that he understands that his - that what he has done was wrong and, therefore, he is motivated not to re-offend and understands that should he start drinking or using illicit substances his risk will immediately escalate to the point that wouldn't be manageable in the community.
[38] ts 26.
Dr Wojnarowska was of the opinion that the respondent understands what he needs to do in order to prevent harm to children, namely: not to drink, not to use drugs, avoid any contact with children, and to seek support from others specifically when he feels lonely and depressed.[39]

Recommendations

[39] ts 36.

Dr Wojnarowska recommended that the respondent be trialled on anti‑libidinal medication in the form of selective serotonin reuptake inhibitors (SSRI's), which may also have a beneficial effect on his anxiety and emotional dysregulation. Dr Wojnarowska clarified in oral evidence that SSRI's are an anti‑depressant that assist mood regulation and also have an anti-libidinal effect.[40]
[40] ts 30.
Treatment or rehabilitation strategies could include individual psychological counselling and possibly a group based Medium Sex Offender Treatment Program. She considered the respondent a strong candidate for long term psychological counselling aimed at developing strategies to manage his deviant sexual thoughts and his ability to function independently with better communication skills.[41] In oral evidence, Dr Wojnarowska expressed the opinion that the respondent would benefit far more from individual counselling rather than programmatic intervention.[42] Such treatment would help him:[43]
… establish age appropriate community connections with an ultimate goal of having a meaningful, not necessarily sexual, age appropriate relationship. There is an ongoing need to address his substance use, emotional regulation deficits. In addition he requires addressing the issues related to his childhood sexual abuse, maltreatment and neglect.
[41] Exhibit 1, 752.
[42] ts 26.
[43] Exhibit 1, 752.
Dr Wojnarowska considered that if the respondent were to be released into the community on a supervision order, monitoring could be achieved by monitoring his activities and relationships with the general public and monitoring his internet activity. Circumstances that may warrant reassessment of risk would include the respondent entering a new relationship or starting new employment.[44]
[44] Exhibit 1, 752.
If the respondent were adequately supervised within the community then the risk of re-offending could be ameliorated.[45] Dr Wojnarowska considered that the respondent possessed capacity to comply with a supervision order, commenting:[46]
… I have not diagnosed him with antisocial personality disorder which - which is very relevant when one looks at manageability in the community.
… he doesn't exhibit antisocial or anti-authoritarian signs. He - he's - therefore, he is likely to comply while dealing with authority figures. He does not have history of generalist offending which could be a pathway to sexual offending, for example. So in my view, obviously, this is a positive factor that - is the protective factor in terms of sexual re-offending.
[45] ts 33.
[46] ts 36.
Dr Wojnarowska considered that should the respondent be subject to a supervision order, then it should be for a term of eight years. She explained in oral evidence:[47]
All right. What about the length of a term for supervision order? Have you given a thought to that?---Well, in my view, it should be at least eight years.
Eight years. Yes, Dr Riordan, I think, said - talks about five years. Is that what your - you think it should be a bit more than that?---I - I think it should be more in this case, yes.
Is that because of his - the limited progress that he has made - or the ‑ let me express it better than that. We know that there are these outstanding treatment needs and there needs to be a - a very structured support in place for him order to comply. Is that it?---It's because his psychological needs - his psychological deficits would require a really long-term treatment in order for him to - to be able to develop his own strategies and - - -
Are you confident he will ever be able to do that?---I think he - I think he would. It - he - he certainly is motivated and he doesn't have any cognitive deficits. So, yes, I - I do think that he is able to develop and to mature in terms of his emotional development.
[47] ts 31 - 32.
Specific recommendations made by Dr Wojnarowska at the conclusion of her report in relation to the possibility that the respondent might be the subject of a supervision order were as follows:[48]
[48] Exhibit 1, 753.
(a)The consequences of any breaches of a supervision order related to drug or alcohol use should be immediate.
(b)The exclusion zones should be as inclusive as possible, not only specific places where children congregate. Consideration should also be given to holiday periods and high traffic times such as outside standard school times.
(c)Internet access should be limited to the sites approved by his CCO. Prohibiting internet access unless prior approval is sought by him from COMU and/or the police to access sites for a legitimate purpose, and supervision at all times when the respondent is accessing the internet
(d)It should be a condition that the respondent provide his consent to searches of his phone, computer or any electronic device in his possession by police and COMU, along with these not having any internet connectivity capability. There should be an additional restriction imposed by way of a condition that the respondent not share electronic devices with other individuals.

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

Psychological Reports

Report of Ms Hasson

Ms Hasson interviewed and assessed the respondent on two occasions for a total of six hours and, pursuant to s 37(1)(b) of the DSO Act, prepared a report of her findings. This report remains relevant in determining his risk of committing a serious offence for the purposes of the HRSO Act.
Ms Hasson observed the respondent to be polite and cooperative, and answered the questions with spontaneity and candour. She noticed that as the interview process went on, the respondent 'became more comfortable and at ease with the questions asked of him and there was a noticeable decrease in him indicating that he had memory issues and was unable to recall specifics.' Ms Hasson did not consider that he had any significant difficulties with his memory, attention and concentration, significant cognitive impairment, or formal thought disorder. He demonstrated some insight into his offending and personality, but tended to follow a 'self-pitying' theme which she considered to be 'characterological or personality based and not mood dependent'.[49]
[49] Exhibit 1, 713.
In the context of describing the respondent's 'Sexual Development, Sexual Interests & Current Sexual Thinking' Ms Hasson reported that the respondent acknowledged a sexual interest in both male and female children as well as adult females, but indicated that he was not interested in adult males.[50] He indicated that he finds 'skinny' women attractive, and expressed preference for small breasts, long hair and no pubic hair. He maintained that these preferences did not mean he was only attracted to children.[51]
[50] Exhibit 1, 716.
[51] Exhibit 1, 717.
Ms Hasson found that there was no clear indication that the respondent currently engages in sexual fantasy or masturbates more frequently when he is feeling stressed or experiencing low mood. The respondent stated that prior to imprisonment he had lost interest in sex in that he was disinclined to seek out sexual encounters. He reported holding a fear of engaging with adult females sexually in the future and of not being able to perform sexually. The respondent denied any anomalous sexual practices or interests, and denied ever viewing child pornography. However, Ms Hasson noted that in the past sexual activity does appear to have been a maladaptive coping mechanism to self-soothe or ameliorate dysphoric emotions.[52]
[52] Exhibit 1, 717.
During the interviews with Ms Hasson the respondent acknowledged his offending history. He stated that at the time of offending against his nephew he was feeling stressed and useless in the wake of his separation with his de facto, and wanted someone to care about him. Similarly, he was experiencing a lack of sexual intimacy at the time of offending against his de facto niece. He was ambivalent about whether he had an erection during the commission of this offence, although he stated that he would not be surprised if he did. The respondent denied experiencing any prior sexual thoughts or grooming his nephew or de facto niece before offending against them.[53]
[53] Exhibit 1, 720 – 721.
In relation to the offending against AB and CD: the respondent denied ever having an erection when performing fellatio on AB. He acknowledged showering with AB and digitally penetrating CD's vagina, but denied penile penetration with either of them. He also denied offending in the presence of both children. He did, however, admit that the offences occurred multiple times, and that he felt unable to stop because he enjoyed it and thought that the children did too. He admitted to gaining enjoyment from seeing his stepdaughter naked as he is attracted to a hairless vagina.[54]
[54] Exhibit 1, 721.
The respondent described to Ms Hasson experiencing feelings of inadequacy and uncertainty about his masculinity. Ms Hasson reported that the respondent appraises himself negatively against males on television and in prison who model behaviour such as getting into fights and being controlling of their girlfriends. His 'distorted perception of masculinity' has led to self-perception that he is a poor measure of a man, such as not having a manly voice or muscles to defend himself or women.[55]
[55] Exhibit 1, 718.
Ms Hasson commented on the respondent's self-assessment as follows:[56]
The respondent presents as a self-pitying, woe is me individual with an external locus of control and no sense of personal agency. His sense of self is poorly integrated which results in lots of contradictions and varying levels of insight relevant to a concrete thinking style … Feelings of depression, futility and despondency can be moderated by good self-efficacy. A low sense of social efficacy can affect the development of social relationships that would otherwise bring satisfaction to people's lives and enable them to manage stress. Failures undermine self-efficacy. Improving self-efficacy can therefore improve resilience and perseverance, improve mood, and develop social confidence. These improvements would all be protective factors for risk management. The respondent needs to work on developing an internal locus of control and increasing feelings of optimism and purpose. This work can be done in individual treatment.

Risk of sexual reoffending

[56] Exhibit 1, 718.

Ms Hasson assessed the respondent's risk of sexual reoffending using a Structured Professional Judgement (SPJ) approach combining actuarial (STATIC-99R & PCL-R) and non-actuarial (RSVP) tools in combination with a forensic psychological assessment and formulation.

The respondent's Static-99R score was 4 placing him at risk level IVa (Above Average Risk) for being charged or convicted of another sexual offence within five years. The sexual recidivism rate at the five‑year mark for a score of 4 is 11% with a confidence interval between 10% and 12.1%.
The RSVP framework was also employed to determine the presence of the respondent's risk factors and formulate the most likely risk scenarios and recommended strategies. The headings are the same as discussed in Dr Wojnarowska's report. Ms Hasson considered the following factors to be present.
Sexual Violence History: Ms Hasson considered the following risk factors were present:[57]
(a)Chronicity of Sexual Violence: based upon convictions only, the respondent's offending behaviour persisted for a period of 12 years.
(b)Diversity of Sexual Violence: his convictions span both genders from an age range of five to 13 years.
(c)Escalation of Sexual Violence: refers to a pattern in which acts of sexual violence become progressively more frequent, serious, or diverse over time. The respondent's offending has progressed from touching children in their beds on the genitals and breasts to acts of anal and vaginal penetration.
(d)Psychological Coercion: Ms Hasson considered this factor to be present, commenting:[58]
[The respondent] misused his position as an adult and family member who had been entrusted to care for children in the absence of their parents (nephew and de facto step-niece) and as a parental figure to his stepchildren. It is likely [the respondent] engaged in some grooming of all of the complainants though there is no indication that he promised gain of status, privilege, favour, or affection. There is some indication of an implicit threat. [The respondent's] stepson A expressed a fear that he might be killed as [the respondent] had previously told him he could make one phone call and have him killed if he ever got into trouble page 28-30 his statement, BOM p.584-587). It is likely this was said in the context of ensuring A did not tell anyone about the abuse.
[57] Exhibit 1, 725.
[58] Exhibit 1, 726.
Psychological Adjustment: Ms Hasson considered the following risk factors were present:
(a)Extreme Minimisation or Denial of Sexual Violence: is partially present. The respondent denied penile-vaginal penetration of his stepdaughter, however acknowledged digital penetration of her. The respondent claimed that he 'did not have full sexual intercourse with her, she's too young'. The respondent also denied that her brother was present or witnessed the respondent sexually abuse her. In oral evidence, however, Ms Hasson explained, in effect, that any minimisation by the respondent of his offending was tempered by the fact that he had acknowledged 'the bulk of his offending' and its impact.[59]
(b)Attitudes that Support or Condone Sexual Violence: this factor is not currently present but has been in the past. The respondent was able to identify that he previously had justified his behaviour, believing the children enjoyed the abuse. The respondent also indicated that at the time he committed the offences he was looking for love and self-identified as a child in an adult's body.
(c)Problems with Self-awareness: this is partially present, and has been more present in the past. Ms Hasson noted specifically that:[60]
There were occasions during the current assessment where [the respondent] appeared to be unaware of his own processes and reactions to certain occurrences as well as some of his beliefs. An example of such an instance is when he was speaking about feeling overwhelmed by the DSO process and was questioning whether release was 'worth it' given all the conditions and an expressed concern that it would be impossible not to fail. When these self-defeating thoughts were brought to his attention and his perceptions were challenged, he was able to reflect and reconsider his point of view. [The respondent] also indicated he still cannot understand why he is a sex offender and expressed a desire to explore his behaviour further with a view to gaining a better understanding. There were times when [the respondent] contradicted himself and this was evident in nuanced or subtle contexts and seems related to cognitive rigidity and lateral thinking deficits.
(d)Problems with Stress or Coping: the respondent experiences difficulty in emotional and behavioural regulation, stress vulnerability, and has used maladaptive coping mechanisms such as alcohol and illicit drugs and seeking out children to meet sexual and emotional intimacy needs. His ability to self‑soothe in times of crisis or stress has in the past been limited, and he has a history of suicidal thinking. The respondent was considered to make gains in this area during participation in the ISOTP, however this remains to be tested outside of prison.
(e)Problems Resulting from Child Abuse: this factor remains partially present. The respondent would benefit from individual counselling exploring this topic.
[59] ts 42.
[60] Exhibit 1, 726.
Mental disorders: Ms Hasson considered the following risk factors were present:[61]
(a)Sexual deviance: the respondent meets the criteria outlined in the DSM-V for paedophilia non-exclusive type (attracted to children and adults). While the respondent has engaged in sexual relationships with adult females, for various reasons these have all become sexless relationships and Ms Hasson suggests that his sexual interests towards adults requires further exploration.
(b)Major Mental Illness: this item has been present. The respondent has a history of major depression, although there was no indication during his assessment with Ms Hasson that he was significantly depressed.
(c)Problems with Substance Abuse: there is a history of substance abuse and this remains a risk factor in the community.
(d)Other Considerations: while not specifically a factor, Ms Hasson considered that in this domain it was important to consider the respondent's interpersonal style and personality functioning. She commented:[62]
From a personality perspective he presents with dependent and avoidant personality traits, is somewhat of a loner and is socially awkward and has self-esteem deficits. [The respondent] lacks assertiveness. There is an absence of autonomy and he looks to others for guidance and assurance. He has a history of dysthymia and anxiety. [The respondent] repeatedly expressed concern to the author as well as Ms Mandolene and Dr Riordan that he has memory problems. [The respondent] had also indicated in Police statements that he could not recall some of his offending due to memory issues. Dr Riordan undertook some screening of [the respondent's] memory after he expressed concern about his capacity to remember information relevant to the assessment and the potential impact of his 'memory problems' on his adherence to any conditions that may be imposed as part of a DSOSO. The results of the testing suggest that [the respondent] has modality specific memory strengths, such that, he performs better at recalling visual information when compared to verbal information. It will be important for those involved in [the respondent's] treatment, supervision and monitoring to be aware of and take into consideration his strengths and weaknesses when working with him to ensure optimal compliance and engagement.
[61] Exhibit 1, 727.
[62] Exhibit 1, 727.
Social Adjustment: Ms Hasson considered the following risk factors were present:
(a)Problems with intimate and non-intimate relationships: failing to establish or maintain both intimate and non-intimate relationships may increase negative affectivity, feelings of loneliness, rejection or isolation and interpersonal conflict. This may also be an obstacle for the use of appropriate coping strategies and block appropriate or healthy outlets for sexual gratification. Due to the nature of his offences and the length of time spent in prison, the respondent does not have any current friendships, enduring relationships or supports. He will need considerable support and assistance to develop meaningful connections.
(b)Problems with Employment: the respondent has displayed a positive work ethic in prison, however it has been variable in the past. The failure of his butcher's business also contributed to significant stress.
Manageability: Ms Hasson considered the following risk factors were present:[63]
(a)Problems with planning: the respondent continues to display some issues in this domain. His plans post-release are loose and he only sought assistance for accommodation recently before this application. He is not aware of his own work-health related limitations, and will need assistance in returning to butchering, as he has indicated he wishes to do. However, it will be important that he does not become dependent on others.
(b)Problems with Supervision: is partially present, having regard to his conviction for failing to comply with ANCOR reporting obligations.
[63] Exhibit 1, 728.
Based on her assessment, Ms Hasson identified the following risk scenarios:[64]
Scenario 1 - Repeat: The most likely future offence will be committed against a child known to [the respondent]. The offence will likely occur in a home environment or in a setting [the respondent] is comfortable in or familiar with. If [the respondent] has physical access to a child, it is likely he will touch the child on the chest or genital region while they are asleep and/or in bed either on top of or under their clothing. There is little to indicate that there would be any use of force or physical coercion. There is likely however to have been some grooming of the child or the children's caregivers prior to the commission of the offence. The offending would likely be repeated until such time as [the respondent's] behaviour is exposed.
Scenario 2 - Escalate: In this scenario of escalation [the respondent] may follow a similar pattern to above however the offending behaviour may progress to oral, digital, and penile anal/vaginal penetration of the child in addition to the other behaviours. This type of offending closely resembles the index offences.
Scenario 3 - Escalate and Changes: The most likely escalation and change scenario involves [the respondent] progressing through the behaviours identified in previous scenarios. Psychological coercion to engage in sexual behaviour or to remain quiet are also possible. [The respondent] may have suggested to the child that he might harm himself or get into trouble if the behaviour is found out or in a more extreme circumstance he may suggest the child may get into trouble or he may implicitly threaten harm to the child or their family if he gets caught for the behaviour.
[64] Exhibit 1, 729 - 730.
Ms Hasson concluded his risk level as being Above Average Risk of sexual offending based on both the STATIC-99R and RSVP if not subject to a Continuing Detention Order or a Community Supervision Order.[65]

Assessment analysis and summary

[65] Exhibit 1, 732.

In her concluding analysis of the respondent's sexual offending Ms Hasson expressed these views:[66]
[The respondent's] offending behaviour as identified by conviction spans a 12-year period. [The respondent] acknowledges most of the offences for which he has been convicted however maintained he engaged in digital vaginal penetration of his stepdaughter and not penile vaginal penetration. [The respondent] acknowledged a deviant sexual interest in children however he was contradictory about his level of sexual arousal during the commission of his offences such that he was ambiguous about whether he had an erection when anally penetrating his stepson. [The respondent] acknowledged some occasional sexual arousal to imagery of children on television though was adamant he engages in thought stopping and distraction techniques and does not allow himself to indulge in such thoughts.
[The respondent's] offending behaviour is driven by a deviant sexual interest in children. Factors that have contributed to him acting on these interests include unmet sexual and emotional needs within relationships, lack of personal boundaries, loneliness, emotional regulation difficulties, an inability to obtain or maintain an intimate relationship, communication difficulties and feelings of loneliness, abandonment and rejection. A lack of perceived support and nurturance in his early life as well as the presence of offence supportive attitudes and beliefs. The respondent's offending behaviour suggests he targets children and engages in a grooming process of both them and their parents. The length of time involved in the grooming process as well as the behaviours specific to the grooming process are unclear. [The respondent's] offending behaviour shows a pattern of escalation in his index offending.
Additional factors linked to [the respondent's] offending include alcohol and illicit substance abuse and difficulties establishing or maintaining age appropriate friendships. Feelings of inadequacy and negative self‑appraisal especially when he compares himself to other 'men'. The respondent does not see himself as manly and this is a source of angst. Unresolved issues pertaining to his own history of childhood sexual abuse and a distorted self-perception such as seeing himself as childlike are also salient risk factors. An absence of engagement in age appropriate prosocial hobbies and interests has also been a fairly constant feature in [the respondent's] life.
[The respondent] expressed a willingness to access any and all professional help available to moderate his risk should he be released to the community.
[66] Exhibit 1, 731.
Self-awareness remains an ongoing factor for the respondent. In oral evidence, Ms Hasson elaborated on her assessment in the report:[67]
So I felt that, overall, he was able to give quite a good account of how he used to function in the community, what some of his beliefs still were. But one of the things that stood out for me when I interviewed him was about how hard this process is, how difficult it is, and all the obstacles and getting the accommodation, which then made him question, 'Well, is it all worth it?' And there was that re-emergence of the self-defeating attitudes, 'It's just too hard. I will give up', without really seeing, 'But this is the core of what we're saying about things you need to change.' With prompting, with exploration of that, he was able to go, 'Well, yes, actually. Prison is not a great place. I should change.' But he fell back into that old habit, that old pattern of thinking and expressing, which then, with some challenging, with some further questioning, he was then able to change and reflect on what he was saying. So there was just an absence of that sort of self-reflection and self-awareness in the moment.
[67] ts 42.
However, Ms Hasson considered that the respondent has good awareness of his risk factors:[68]
I felt that he gave quite a good account of the factors that were present in his life in the various periods of when he was offending, the lack of sexual relationship with his partners, the loneliness that he was experiencing, the attachment issues from his own childhood that had been brought forward in relationships, his feelings of despondency, depression. I felt that he could certainly discuss all of those, identify all of those. What - and I think he was acknowledging of. We don't know how he changes those if they emerge in the future, but he has got an awareness of what they all are.
[68] ts 43.
With respect to management within the community, Ms Hasson considered that the respondent required additional self-management strategies beyond an intention merely to avoid children. He has shown some ability to do this in prison, engaging in 'thought-stopping' or distraction strategies when confronted with thoughts or images of children on television. This shows positive gains from his treatment programs, and the respondent has demonstrated openness in acknowledging sexually inappropriate thoughts and a willingness to engage in counselling. However, he will require additional strategies in the scenario where he may be confronted by a child in real life.[69] Ms Hasson opined that the respondent had the potential to develop proper self-awareness, assessment of responsibility and risk strategies, and that were he not on a supervision order with strict conditions then he would likely not be able to afford the cost of necessary long term counselling or learn to foster his own independence.[70]
[69] ts 45, 53, 54.
[70] ts 51.
Ms Hasson noted that since completing the ISOTP in 2017 the respondent has not had the opportunity to engage in further treatment. She was of the opinion however that he had managed to retain much of the content of the programs he has undertaken. He has some awareness of his behaviour and risk situations, but lacks support in the community and requires considerable assistance for every aspect of life.[71]
[71] Exhibit 1, 732.
Like Dr Wojnarowska, Ms Hasson considered that the respondent requires further individual treatment. Specific areas of treatment and supervision include:[72]
… monitoring deviant sexual thoughts and arousal, reviewing family of origin issues and his own history of victimisation, discuss and explore problems and issues likely to arise in intimate relationships, explore the concept of masculinity and adulthood, assist the respondent to initiate and explore friendships, hobbies and interests with age appropriate peers and to seek suitable employment. It will be important for [the respondent] to improve his psychological wellbeing and communication and assertiveness skills. Finally, [the respondent] needs to develop a sense of agency and control in his life.
[72] Exhibit 1, 732.
However, Ms Hasson clarified in oral evidence that although the respondent had outstanding treatment needs, assessing a person through treatment programs is in many ways comparing them to 'an ideal'. Outstanding risk factors are a process of adding skills and making change that lasts in different scenarios and settings. This process is a 'never-ending continuum', and is 'never all or nothing'.[73]
[73] ts 57.
Ms Hasson considered that overall the respondent could be supervised in the community:[74]
He has functioned really well in prison because it's quite - the boundaries are good, the containment is there, the rules are obvious. He has also been quite emotionally stable and he has people around, which is great. And I think if his psychological and emotional wellbeing is at a good level, he will be relatively easy to supervise; he will be really compliant. What we noticed in the community before when he wasn't turning up to appointments initially was because he wasn't coping.
[74] ts 45.
Should the respondent remain detained in custody, Ms Hasson considered that he undertake individual counselling as soon as possible. Should he be subject to a supervision order, she suggested:[75]
(a)The duration of the order be at least five years.
(b)The focus of his engagement on an order should be to develop a lifestyle and community engagement consistent with his age. Focus should be on seeking meaningful employment, engaging in age appropriate hobbies, interests, and leisure pursuits, establishing prosocial friendships and supports and eventually a stable intimate relationship. Discussion with Ms Mandolene (SCCO) regarding managing high risk situations confirmed the need for the respondent to be given clear and unambiguous instructions and for thorough discussion to occur around all requirements and conditions to enhance his compliance.
(c)In addition to the outstanding treatment needs identified above, the respondent's inappropriate sexual interests, desires and behaviours are the primary concern of relevance for future intervention and management. The respondent would benefit from intervention to assist him manage these interests in the community and working toward identifying risk relevant strategies toward more appropriate thoughts, desires, and behaviours.
(d)The respondent should be encouraged to keep a record or journal of daily activities, thoughts, and feelings. In keeping with his identified memory strengths and weaknesses such record keeping will facilitate better recall of mood states and other risk relevant information including how he coped and managed in certain situations. Self-reflection and mastery of situations will help improve his self-esteem and overall confidence.
(e)The respondent should not be alone with children under the age of 18 years and he should avoid places where children are known to frequent without sufficient supervision such as schools, playgrounds, leisure centres, parks, swimming pools. He should be in the company of an appropriate and suitable adult if attending community-based activities where children are likely to be present.

On 4 August 2020 the hearing of the application was adjourned. Ms Mandolene prepared an Update Community Assessment report dated 11 November 2020 and when the hearing recommenced on 12 November 2020, Ms Mandolene was recalled to give evidence. She gave evidence in accordance with the updated report to the effect that Uniting WA considered that the respondent was eligible for private rental accommodation through their organisation and a home residential unit in a relatively large residential complex had been identified as potentially suitable. The accommodation is situated in a suburban area and there are schools and parks in the vicinity. There is the potential for children to be near the residential complex. It is proposed that any areas in which children are likely to congregate (areas surrounding schools and parks) will be made exclusion zones to be avoided by the respondent, whose location will be monitored at all times. Ms Mandolene has sought the views of Dr Wojnarowska and Ms Hasson. Ms Mandolene reported,
Both Dr Wojnarowska and Ms Hasson expressed that, while there are concerns about the location of the residence not being ideal, given the paucity of places available for convicted sexual offenders in general to live, the nominated residence was not deemed by them to be inappropriate and or opposed. Additionally, Dr Wojnarowska and Ms Hasson both were of the opinion that [the respondent] could be managed and guided with respect to his exclusion zones and appropriate activities he can engage in relative to his residential location.
Ms Mandolene expressed concern that the respondent may be tempted to make contact with his stepchildren in the future. During interview he stated that they may wish to have contact with him, and queried what would happen if this occurred. He was sad at the thought of being prevented from contact with stepchildren in the future.
Ms Mandolene warned that a recurring theme and concern for the respondent is his lack of motivation, self-agency and independence. He will require high support in the community setting, but without the immediate support of Uniting WA, he is unlikely to receive the required support in the community.[99] Given his limited community supports, the respondent will require a 'high degree of liaison' with all agencies involved in his case management in order to corroborate the veracity of his reporting.[100]
[99] Exhibit 1, 780.
[100] Exhibit 1, 781.
In oral evidence, Ms Mandolene advised that if a person were declared a dangerous sexual offender, then psychological counselling would be provided on an individual needs basis. She stated:[101]
Each individual case determines the level of support required initially. Upon release, too, an ordered support is quite intensive, and over the period of an order, then that would, perhaps, be scaled back, depending on that individual's level of acquired self-management over time. Initially, clients can be expected to report once a week or more frequently. It's just determined on an as-needs basis. We can conduct phone contact with them as well in between their appointments.
[101] ts 73.
Ms Mandolene's report concluded with 55 proposed supervision order conditions. These conditions modified to reflect the standard conditions contained in the HRSO Act together with some further minor textual modifications are reproduced in the annexure to these reasons.

High risk serious offender

The evidence outlined in the preceding paragraphs constitutes acceptable and cogent evidence that satisfies me to a high degree of probability that it is necessary to make a restriction order to protect the community from an unacceptable risk that the respondent will commit a serious offence should he be released back into the community unsupervised. Accordingly, I find that the respondent is a high risk serious offender. The factors that have led me to this conclusion are as follows:
(a)The respondent's history of serious sexual offending and, in particular, that the offending has escalated over time both in frequency and in seriousness.
(b)Dr Wojnarowska's psychiatric diagnoses of paraphilia.
(c)The respondent's above average to high risk of re-offending as predicted by the risk assessments conducted by Dr Wojnarowska and Ms Hasson.
(d)Related to the risk of re-offending, the risk of serious harm to potential victims.
(e)The respondent's outstanding treatment needs and lack of supports in the community. Although the respondent has made some gains from the treatment undertaken by him while in prison, I am not persuaded that these gains have been sufficient to reduce the risk of the respondent committing serious offences.

Continuing detention order or supervision order

I turn now to my evaluation of the considerations bearing upon whether the respondent should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order.
In evaluating the considerations I have borne in mind that I should choose the order that is least invasive or destructive of the respondent's right to liberty, whilst ensuring an adequate degree of protection for the community.
Before I can make a supervision order, I must be satisfied, on the balance of probabilities, that the respondent would substantially comply with the standard conditions of a supervision order and that the totality of the conditions would provide adequate protection of the community against the risk that the respondent would commit a serious offence. The respondent bears the onus of establishing that he would substantially comply with the standard conditions.
I consider that a supervision order in the terms set out in the annexure to these reasons will ensure the adequate protection of the community against the risk that the respondent will commit a serious offence. The following factors, taken in combination, lead me to this conclusion.
First, I am satisfied that the respondent has 'authentic' (genuine) remorse and has an understanding of the suffering caused by his offending. I am satisfied that he is highly motivated not to re-offend. The respondent has acquired a greater level of self-awareness and an acceptance of his paedophilia. These are matters that provide a solid foundation for his rehabilitation in the community and provide a basis for confidence that the respondent will comply with the terms of the supervision order.
Second, I am satisfied that the respondent has an understanding of what he needs to do to avoid harm to children. He has a good awareness of the risk factors and has made positive gains from the treatment programs undertaken by him. He has abstained from illicit drug use whilst in custody. This is significant because his offending has coincided with his drug use.
Third, I have reflected on the evidence that the respondent has outstanding treatment needs. These must, however, be placed in context. First, the outstanding treatment needs cannot be viewed in isolation. They must be assessed as part of a continuum along with the treatment gains the respondent has made and, as Ms Hasson said, assessing a person through treatment programs involves a comparison with an 'ideal'. Second, as Dr Wojnarowska said in her evidence, the respondent's outstanding treatment needs are mainly in the psychological domain for which he will require long term psychological counselling. The requirement for such counselling on a long term basis was the reason why Dr Wojnarowska considered that the supervision order should be for a term of eight years. Third, there is no evidence of cognitive deficits. Fourth, being in custody presents practical limits on the progress that can be achieved in addressing psychological deficits. For example, in her evidence Ms Hasson observed that the respondent had little or no sense of personal agency. Having the greater level of responsibility and control over his life, which comes with being released into the community, would provide a stimulus for the respondent to develop his sense of personal agency that is not available if he remains in custody. Fifth, Ms Mandolene's evidence was to the effect that psychological counselling was available to those on supervision orders on an 'individual needs basis'.
Fourth, I have confidence that the respondent will comply with the terms of the supervision order. This confidence is derived from the following matters. The respondent has been a model prisoner. He has not been diagnosed with anti‑social personality disorder and has not exhibited any anti-social or anti-authoritarian signs. He does not have a history of generalist offending which might serve as a pathway to further sexual offending. Ms Hasson considered that provided the respondent's psychological and emotional wellbeing was at a good level, he will be relatively easy to supervise in the community.
Sixth, the victims of the respondent's offending were children drawn from his family and social circle. The respondent is significantly older now than he was at the time of the offending and simply by reason of his age is less likely to have contact with young children so the situations in which there is a risk of offending by the respondent are less likely to arise. The risk will be reduced further by those orders within the supervision order appearing under the heading 'Prevention of high risk situations'.
Seventh, the supervision order provides for the close monitoring and supervision of the respondent. I will not summarise the effect of the supervision order. Its terms speak for themselves. There are only two matters that I would add. First, I endorse Dr Wojnarowska's recommendation that the respondent be trialled for anti‑libidinal medication. This can be facilitated by the terms of the supervision order. Second, I endorse also the observations made by Dr Wojnarowska about exclusion zones. These observations can be put into effect by directions made by the respondent's Community Corrections Officer.
Eighth, the respondent has served a long term of imprisonment. He knows that any further offending or any breach of the supervision order will result in his serving one or more further terms of imprisonment. The deterrent effect of further terms of imprisonment is significant.
Ninth, the availability of housing through Uniting WA and the support offered by that organisation will assist the respondent with re-integration into the community. The availability of this support reduces the risk of the respondent re-offending. In making my assessment of whether the accommodation in which it is proposed that the respondent resided I have reflected on the fact that the accommodation is in a residential suburb in the vicinity of schools and parks. Given the demographics and geography of the metropolitan area it is impossible to accommodate high risk serious offenders in areas which remove them completely from any chance encounter with children. In reaching the conclusion that releasing the respondent on a supervision order (containing the conditions to which I have referred) on the basis that he live in the accommodation found for him by Uniting Way will ensure an adequate degree of protection for the community I take into account all the matters to which I have referred earlier but, in respect of the accommodation issue, four matters are of particular relevance. First, the respondent will be subject to electronic monitoring utilising a GPS system. Second, having viewed the location of the accommodation on a map I am satisfied that it is possible in a practical sense to make any areas containing parks and schools exclusion zones - that is zones the respondent is prohibited from entering. The electronic monitoring is monitored in real time and if the respondent entered an exclusion zone an alert will be given. Third, the respondent does not have a history of opportunistic offending towards children with whom he has no pre-existing social connection. Fourth, though I have formed my own conclusion on the issue, I am reassured that by the views expressed by Dr Wojnarowska and Ms Hasson.

Anonymisation and suppression order

To protect the privacy of the victims of the respondent's offending, the name of the respondent and the victims will be anonymised in these reasons.
Although the address to which the respondent will be released in accordance with the supervision order is not stated in these reasons, there will also be a suppression order prohibiting publication of that address, including the suburb in which the property is located.

Order

I order that, when not in custody, the respondent is to be subject to conditions in the terms of the supervision order annexed to these reasons, and that the order is to have effect from 7 December 2020 for a period of eight years.

Annexure

_______________________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE TOTTLE
ON 12 NOVEMBER 2020

_______________________________________________________________________

The court, having found pursuant to s 48(1) of the High Risk Serious Offenders Act 2020 (the Act) that the Respondent is a high risk serious offender, orders that the Respondent be the subject of a supervision order pursuant to section 48(1)(b) of the Act, for a period of 8 years from 7 December 2020, on the following conditions:

You, [TJZ], must:

STANDARD CONDITIONS REQUIRED BY THE ACT

Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of your current name and address.
Report to and receive visits from, a Community Corrections Officer as directed by the court.

Notify a Community Corrections Officer 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 Community Corrections Officer, which includes, complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32 of the Act).

Not leave or stay out of the State of Western Australia without the permission of a Community Corrections Officer.

Not commit a serious offence as defined in the section 5 of the Act during the period of the Order.
Be subject to electronic monitoring under section 31 of the Act.

ADDITIONAL CONDITIONS

Residence

Take up residence at [REDACTED] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.

Reporting to a CCO and supervision by a CCO

Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this order.
Be under the supervision of a CCO, report to and receive visits from a CCO at times and places as directed by the CCO, and comply with the lawful orders and directions of a CCO.
Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.

Attendance at programs or treatment

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

Reporting to WA Police

Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS) at [REDACTED], within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your residence and/or vehicle, and/or your person for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order
Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle pursuant to condition 16.
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.

Disclosure/Exchange of Information

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

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

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to condition 21, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.

Criminal conduct

Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s 202, s 203 or s 557K Criminal Code 1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not to possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorized under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider.

Curfew

Be subject to a curfew, pursuant to section 32 of the Act such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.

Medications/Mental Health

Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO.
Comply with any treatment or medication regime, including medication for hormonal or non-hormonal anti-libidinal treatment, as directed by the CCO in consultation with a medical practitioner(s) and comply with all testing to monitor your compliance with that treatment as directed by a CCO.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk or risk of re‑offending and compliance with treatment to the Department of Justice.

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

Prevention of high-risk situations

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

Attend for, and submit to, urinalysis or other testing for alcohol use and prohibited drugs as directed by the CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place.
To provide a valid sample for the testing described in Condition 38.
Not to 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. If you are the sole occupants of the address, request those consuming prohibited drugs to leave the address, if they refuse or otherwise do not leave, contact police and request they remove the patrons.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Not enter the premises of, or access the services of, escort agencies or sex workers without the prior notification and approval of a CCO or WA Police;
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)The contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(b)The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present;
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under condition 44, you must withdraw immediately from the presence of the child.
Provide details of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and Police Officer upon request.
Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person.
Report at your next contact with your CCO and Police any association or relationship by you with a person who has a child or children under the age of 18 years in their care either full time or part time.
Not form any domestic relationship with a person who has a child or children under the age of 18 years in their care either full time or part time, without prior approval of a CCO.
As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Not conduct computer searches for, collect, access, or be in possession of in either electronic or permanent form, images of children including drawings or sketches, whether indecent or not, with the exception of images of your immediate family that are not indecent images if approved in advance by a CCO. Possession of such images depicting a child or children on items such as household items, may be authorised by a CCO.
Not access the internet or any computer, telecommunication or other device capable of internet access, unless such access is approved in advance by a CCO on such terms as to supervision as shall be determined by a CCO.
Not be in possession of any children's toy, game or confectionary that could reasonably be perceived to be capable of being an enticement to children, unless such possession is for a legitimate purpose.
Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device.
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 55, without prior approval of the CCO.
Enable device locking or password access of your computer, telecommunication and/or electronic devices; Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 55 or any online accounts, to any person other than a CCO or Police Officer.
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advice from a CCO.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
12 NOVEMBER 2020