The State of Western Australia v W [No 4]

[2023] WASC 349

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- W [No 4] [2023] WASC 349

CORAM:   LUNDBERG J

HEARD:   13 APRIL 2023

DELIVERED          :   18 SEPTEMBER 2023

FILE NO/S:   SO 3 of 2014

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

W

Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Respondent convicted of three sets of historical sexual offences - Restriction order application by the State pursuant to s 36(1) in light of impending expiry of a supervision order - Whether respondent is a high risk serious offender - Whether continuing detention order or supervision order should be made - Prior offending consistently denied by the respondent - Turns on own facts

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)

Result:

Application granted and supervision order made

Category:    B

Representation:

Counsel:

Applicant	:	Mr B M Meertens
Respondent	:	Mr D C Jones

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Francis Burt Chambers

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

Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158

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 Unwin [No 3] [2013] WASC 178

Director of Public Prosecutions (WA) v W [2014] WASC 257

Director of Public Prosecutions (WA) v W [No 2] [2015] WASC 283

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

Garlett v The State of Western Australia [2022] HCA 30

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

The State of Western Australia v D'Rozario [No 3] [2021] WASC 412

The State of Western Australia v Garlett [2021] WASC 387

The State of Western Australia v Latimer [2006] WASC 235

The State of Western Australia v Narrier [No 2] [2022] WASC 49

The State of Western Australia v Newland [No 3] [2022] WASC 43

The State of Western Australia v Tomasovich [No 2] [2022] WASC 402

The State of Western Australia v W [No 3] [2022] WASC 349

The State of Western Australia v West [No 6] [2019] WASC 427

The State of Western Australia v ZSJ [2020] WASC 330

Table of Contents

A.     Introduction and summary

B.      Issues

C.     Procedural history

D.     Legislative framework and relevant principles

E.      Evidence

Overview

The respondent's personal background

Prior relevant offences

The 2001 convictions

The 2009 convictions

The 2020 convictions

Prior contraventions of the Supervision Order

Dr Gosia Wojnarowska

Ms Julie Hasson

Ms Jennifer Sullivan

F.      Disposition

High risk serious offender

Conclusion as to whether the respondent is a high risk serious offender

Substantial compliance with standard conditions of a supervision order

Appropriate term of the Supervision Order

Appropriate conditions of the Supervision Order

G.     Conclusion

ATTACHMENT A  Supervision Order

LUNDBERG J:

A.       Introduction and summary

1. The respondent to these proceedings, whose name has been anonymised, is a 71‑year‑old man.  He has been convicted of three sets of historical sexual offences in relation to male and female children, some of which came to light in 2000, with other offences emerging in 2009 and 2019.  All of the offences are appalling and depraved in nature.  The offences were committed against the respondent's own twin boys, against his stepsons, and against the daughters of long‑standing family friends.  The respondent's wife was involved in the commission of many of the offences.  The respondent has maintained a consistent stance of denial in respect of the offences.

2. As a result of the convictions, which were recorded against him in May 2001, April 2009 and November 2019, the respondent has spent the entirety of the last 22 years either in custody serving a sentence of imprisonment for those offences, or been subject to restriction orders under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act), or its predecessor legislation, the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).[1]  The diagram below shows the respondent's custodial and restriction order history over this period. 

[1] All references in these reasons to statutory provisions are to references in the HRSO Act, unless otherwise indicated.

1. As is evident from the diagram, at no time since May 2001, has the respondent been in the community without at least being subject to a Supervision Order under the DSO Act or HRSO Act, with attendant strict conditions.

2. The respondent is presently the subject of a Supervision Order made under the HRSO Act. As that Supervision Order was due to expire, the State of Western Australia applied for orders in relation to the respondent pursuant to s 36, s 46 and s 48, to have a restriction order imposed on the respondent (Application). The restriction order that is sought by the State is the imposition of a further Supervision Order under s 48(1)(b) for a period of 5 years (which would therefore run through until September 2028, as shown in the foregoing diagram). The State does not seek a continuing detention order (CDO) under s 48(1)(a). 

3. In support of its Application, the State filed detailed and helpful written submissions dated 12 April 2023 (State's Submissions).  The State's case, put in its briefest terms, is that the respondent is a high risk serious offender and it is necessary to make a restriction order because of the respondent's long-standing sexual deviance and strong psychopathic personality traits, combined with the fact the respondent has not excluded the possibility of entering a new intimate relationship in the future.[2] 

   [2] ts 220.

4. The State submitted that, if the partner of the respondent is in a relationship which has the care of children, there would arise an opportunity to offend against those children sexually.  If no Supervision Order was imposed, the respondent would be under no obligation to disclose his offending history to a prospective intimate partner, it was submitted.  That would leave the partner in a situation where they would have no advance warning of the risk the respondent poses.[3]

   [3] ts 220.

5. The State noted that the respondent had reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) but submitted that those obligations did not oblige the respondent to inform a partner about his sexual offending. I accept that submission.

6. The State also relied upon the respondent's various prior contraventions of Supervision Orders.[4]  Nonetheless, the State conceded the respondent would be able to discharge the onus of showing he would substantially comply with the standard conditions of a Supervision Order.[5] 

   [4] ts 221 - 222.

   [5] ts 224.

7. The respondent did not contest that he is a high risk serious offender under the legislation and did not actively contest that a Supervision Order should be made.

8. For the following reasons, I am satisfied to the requisite standard that the respondent is a high risk serious offender for the purposes of the HRSO Act and that a restriction order should be made. I am satisfied, after careful consideration, that the imposition of a CDO is not necessary to ensure the adequate protection of the community. The adequate protection of the community is of course statutorily mandated as the paramount consideration when the court determines the form of restriction order which should be imposed. In my view, the community will be adequately protected by a Supervision Order, which I will impose on the strict terms and conditions set out in Attachment A to these reasons.  That Supervision Order will ensure the respondent is subject to a high level of control and supervision.  I have concluded that the period for that Supervision Order should be 5 years, which will mean that it expires when the respondent is close to 77 years of age.

9. I have been assisted in preparing these reasons by the background facts which appear in the previous reasons published following earlier applications under the DSO Act and the HRSO Act. I refer to Director of Public Prosecutions (WA) v W[6], Director of Public Prosecutions (WA) v W [No 2][7] and The State of Western Australia v W [No 3][8].  I am of course not bound by the factual findings made in those earlier decisions.

   [6] Director of Public Prosecutions (WA) v W [2014] WASC 257 (Simmonds J).

   [7] Director of Public Prosecutions (WA) v W [No 2] [2015] WASC 283 (Simmonds J).

   [8] The State of Western Australia v W [No 3] [2022] WASC 349 (Derrick J).

B.       Issues 

1. Given the nature of the Application and the contentions advanced by the parties, the following issues arise for determination in the present matter:

   (1)Is the respondent a high risk serious offender?  This requires an analysis as to whether there is an unacceptable risk he would commit a serious offence in the future, in the absence of any measures that would provide protection of the community against that risk.

   (2)If the respondent is a high risk serious offender, is a restriction order necessary to provide adequate protection of the community against the unacceptable risk he would commit a serious offence in the future?

   (3)If both issues are answered in the affirmative, the next issue is whether the appropriate order to ensure adequate protection of the community is a CDO or whether the court should maintain the present position, namely allowing the respondent to remain in the community on a Supervision Order?

2. I agree with the submission of the State that, for the purposes of an application under s 36(1), it is unnecessary for the State to rely on the commission of serious offences to ground the Application.  The position may be compared with s 35(1) in this respect.  The present Application is thus grounded on the fact that the respondent is subject to a Supervision Order which is (or rather was) due to expire.  Of course, the commission of the offences is relevant to the assessment as to whether the respondent is a high risk serious offender for the purposes of the legislation.[9]

   [9] ts 214 - 215. 

C.       Procedural history

1. The respondent's first convictions for sexual offending were recorded in the District Court in 2001, for which he was sentenced to an effective term of 12 years' imprisonment on 17 May 2001. As the respondent was not granted parole, the respondent was not due for release until 2014. Prior to his release from custody, the respondent was made the subject of orders under the predecessor legislation to the HRSO Act, in July 2014. Specifically, on 22 July 2014, Simmonds J found that the respondent was a serious danger to the community within the meaning of s 7(1) DSO Act. His Honour made a CDO in respect of the respondent pursuant to s 17(1)(a) DSO Act.[10]

   [10] Director of Public Prosecutions (WA) v W.

2. On 24 July 2015, the first statutory review of the CDO under the DSO Act was undertaken. At the conclusion of that review, Simmonds J rescinded the CDO and imposed a Supervision Order in relation to the respondent for a period of 5 years pursuant to s 33(2) DSO Act. The Supervision Order came into effect on 27 July 2015.[11]  It was at this point the respondent was released into the community.  

   [11] Director of Public Prosecutions (WA) v W [No 2].

3. The respondent remained in the community subject to this Supervision Order, until he was remanded in custody following conviction after trial in late 2019 for historical sex offences.  Specifically, on 14 November 2019, the respondent was convicted after trial of two historical sex offences committed against an 11‑year‑old girl in 1988.  On 17 February 2020, the respondent was sentenced to 3 years' imprisonment for these offences with eligibility for parole.  The commencement date of the sentence was backdated to 14 November 2019.

4. On 21 February 2022, the respondent was released on parole and resumed living in the community subject to the conditions of the previous Supervision Order.  Although in the ordinary course of events the Supervision Order would have expired on 26 July 2020, the effect of s 57(2) is that the Supervision Order was extended by the period of time that the respondent was in custody serving the term of imprisonment imposed for the offences of which he was convicted in November 2019.  Accordingly, the Supervision Order imposed by Simmonds J in July 2015 remained in force and was not due to expire until 1 November 2022. 

5. On 21 October 2022, a preliminary hearing of the Application was heard and determined by Derrick J, pursuant to s 46(1).  Derrick J was satisfied there were reasonable grounds for believing the court might find the respondent was a high risk serious offender.  At the conclusion of that hearing, his Honour made an order under s 58(3) which continued the Supervision Order originally made by Simmonds J (until the ultimate determination of this Application).[12] 

   [12] The State of Western Australia v W [No 3].

6. The present Application is effectively brought through the gateway of s 36(1), which permits the State to apply for a restriction order in relation to an offender who is subject to a Supervision Order under the HRSO Act that is to expire within one year.

D.       Legislative framework and relevant principles

1. I accept that the HRSO Act fully preserves the provisions that apply in respect of dangerous sexual offenders. Further, in The State of Western Australia v ZSJ,[13] Fiannaca J stated that the concepts and criteria with which the court is concerned in determining an application under the HRSO Act are substantially the same under both statutes, and, therefore, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non‑sexual offences.

   [13] The State of Western Australia v ZSJ [2020] WASC 330 [30] - [63].

2. The present application is to be dealt with under s 48, which provides as follows:

   (1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -

   (a)make a continuing detention order in relation to the offender; or

   (b)except as provided in section 29, make a supervision order in relation to the offender.

   (2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

3. Section 7(1) provides as follows:

   (1)An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. 

   (2)The State has the onus of satisfying the court as required by subsection (1). 

4. A 'restriction order' under s 7(1) means either a CDO or a Supervision Order.[14]

   [14] s 3(1).

5. A 'serious offence' is an offence specified in sch 1 div 1 of the HRSO Act, or in sch 1 div 2 and committed in the circumstances set out in div 2 relation to that offence.[15] In relation to sexual offences, the offences set out in sch 1 div 1 include all offences formerly defined as 'serious sexual offences' under the DSO Act.

   [15] s 3, s 5(1) and s 5(2).

6. Section 7(1) was analysed by Corboy J in The State of Western Australia v Garlett.[16]  Corboy J held that the preferred interpretation of the section requires the court to undertake two separate evaluative assessments. 

   [16] The State of Western Australia v Garlett [2021] WASC 387.

7. First, the court must be satisfied that a risk that an offender will commit a serious offence is unacceptable.

8. Second, the court must be satisfied that it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.[17]

   [17] The State of Western Australia v Garlett [135] ‑ [138]. See also The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [19] ‑ [21]; and The State of Western Australia v Narrier [No 2] [2022] WASC 49 [23].

9. In considering whether it is satisfied that the offender is a high risk serious offender, the court must have regard to each of the matters specified in s 7(3). Those specified matters (in respect of which there is often an overlap in the evidence relating to each matter) are set out below:

   (a)any report prepared under s 74 for the hearing of the application and the extent to which the respondent cooperated in the examination required by that section;

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

   (c)information to indicate whether or not the respondent has a propensity to commit serious offences in the future;

   (d)whether or not there is any pattern of offending behaviour by the respondent;

   (e)any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he had participated in any rehabilitation programme;

   (f)whether or not the respondent's participation in any rehabilitation programme has had a positive effect on him;

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

   (h)the risk that, if he were not subject to a restriction order, the respondent would commit a serious offence;

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

   (j)any other relevant matter.

10. The State bears the onus of satisfying the court that an offender is a high risk serious offender.[18]  The court has to be satisfied of these matters, pursuant to s 7(1), by acceptable and cogent evidence and to a high degree of probability.  This is a standard that is greater than a finding on the balance of probabilities and less than a finding of beyond reasonable doubt.  It is otherwise incapable of further definition.[19]

    [18] s 7(2).

    [19] Director of Public Prosecutions (WA) v GTR[2008] WASCA 187; (2008) 38 WAR 307 [28].

11. An 'unacceptable risk' is a risk that is not trivial or transient.[20]

    [20] The State of Western Australia v Garlett [136(b)].

12. The court is required to undertake a balancing exercise, taking into account the matters listed in s 7(3) HRSO Act. In doing so, the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[21] It requires the court to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for the offender if an order is made under the HRSO Act.

    [21] s 7(4).

13. The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability.  A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk.[22]  It is the necessity to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence that must be proved by acceptable and cogent evidence and to a high degree of probability. 

    [22] The State of Western Australia v West [No 6] [2019] WASC 427 [24]; The State of Western Australia v ZSJ [47].

14. If the court is satisfied that the offender is a high risk serious offender, the court must make a restriction order.  In essence, the remaining issue is whether it is appropriate to order a CDO or a Supervision Order.[23]  A court cannot make a Supervision Order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order.[24]  The standard conditions are those contained in s 30(2) and include reporting, supervision, electronic monitoring and that the offender will not commit a serious offence during the period of the order.  The onus is on an offender to satisfy the court that he will substantially comply with the standard conditions.[25]

    [23] s 48(1)(a) and (b).

    [24] s 29(1).

    [25] s 29(2).

1. The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment, but rather for the ultimate purpose of protecting the community. The protective purpose of the HRSO Act was affirmed by the High Court in Garlett v The State of Western Australia.[26]  This requires the court to choose the order that is the least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community.[27]  In doing so, the court's function is not to reduce this risk to zero.[28]

   [26] Garlett v The State of Western Australia [2022] HCA 30 [45], [55] - [56] (Kiefel CJ, Keane and Steward JJ), but see the analysis of Edelman J on this issue at [247] - [255], describing continuing detention orders under the HRSO Act as 'protective punishment'.

   [27] The State of Western Australia v Latimer [2006] WASC 235 [49].

   [28] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].

2. The protective purpose of the HRSO Act is to be achieved not only by continuing to exercise control over the person the subject of an order, but also by providing care and treatment for the offender in the hope that the risk to the community will be reduced.[29]

   [29] s 8(b).  See also The State of Western Australia v Tomasovich [No 2] [2022] WASC 402 [38].

3. If the offender is a high risk serious offender, the court does not have a predisposition to impose a CDO.  In deciding whether to impose a CDO or make a Supervision Order, the paramount consideration is the need to ensure adequate protection to the community.[30]

   [30] s 48(2).

4. The level of risk posed by the respondent, and whether the community can be adequately protected against the risk under a Supervision Order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities, and his capacity to control or manage his own behaviour, but also to external constraints and obligations that can be put in place under a Supervision Order to mitigate the risk.

5. Whether the protection that can be afforded by a Supervision Order will be 'adequate' is a qualitative assessment.  It is necessary to have regard to the nature of the risk, the likelihood of the risk being realised and the likely affect that the proposed Supervision Order could have in reducing or obviating that risk.[31]  The extent and nature of the conditions attached to the Supervision Order will naturally be relevant to the assessment.

   [31] Director of Public Prosecutions (WA) v GTR [26] ‑ [27] and Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] ‑ [65].

6. Gains made by an offender in treatment and their behaviour while in custody will inform the assessment of the personal factors.  Behavioural changes or improvements in management options may make a Supervision Order a viable possibility.[32]  The availability of new technology or resources in the community is also relevant to the assessment of external factors.  If the risk changes or resources improve, the need for the continuing detention of an offender may dissipate and continuing detention may become unjust.[33]

   [32] The State of Western Australia v Newland [No 3] [2022] WASC 43 [23]. See also Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [18].

   [33] Director of Public Prosecutions (WA) v Unwin [No 3] [18], cited with approval by Fiannaca J in Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158 [18].

7. Finally, I should observe that proceedings under the HRSO Act are taken to be criminal proceedings for all purposes. This does not require that anything be proved to a higher standard than is required by s 7(1).[34]

   [34] s 82.

E.       Evidence

Overview

1. At the hearing of the Application, the State tendered a book of materials (Book of Materials) comprising two volumes (Exhibits A and B) and an Addendum Psychological Risk Assessment Report prepared by Ms Julie Hasson dated 10 April 2023 (Exhibit C).  The materials tendered ran to in excess of 500 pages.

2. Exhibit A consisted of background material provided by the Department of Justice which included the respondent's criminal record, prison records, medical reports and substance use reports.  Exhibit A also included the Statement of Material Facts, the transcripts of Police interviews, the transcripts from the sentencing in the District Court and psychological reports associated with the respondent's previous 'serious offences'.  Further, Exhibit A included the Statement of Material Facts from the Prosecution Briefs of the respondent's prior offences not defined as 'serious offences'.  Finally, various post-sentence reports prepared for the years 2009 to 2019 were included.

3. Exhibit B included materials specifically prepared for the present Application, namely:

   (a)The Treatment Options Report prepared by Ms Tara Stagg dated 11 April 2023.[35]  Ms Stagg is a High Risk Serious Offender Planning Manager with the Department of Justice.

   (b)The report of Dr Gosia Wojnarowska dated 29 March 2023.[36]  Dr Wojnarowska is a Forensic Consultant Psychiatrist.

   (c)The report of Ms Hasson dated 13 March 2023.[37]  Ms Hasson is a Forensic Psychologist.  As already noted, an addendum report prepared by Ms Hasson was separately tendered as Exhibit C.

   (d)The Community Supervision Assessment of Ms Jennifer Sullivan dated 11 April 2023.[38]  Ms Sullivan is a Senior Community Corrections Officer with Corrective Services.

   [35] Exhibit B, 468 - 470.

   [36] Exhibit B, 471 - 489.

   [37] Exhibit B, 490 - 523.

   [38] Exhibit B, 524 - 535.

4. At the hearing of the Application, oral evidence was given by Dr Wojnarowska, Ms Hasson, and Ms Sullivan, and they were each cross-examined.  The respondent did not challenge the expertise of the experts.  Further, my assessment was that each of the witnesses gave their evidence in a considered manner, giving reasons where appropriate.  I accept their evidence. 

5. The respondent elected not to give or call any evidence.[39]

   [39] ts 288.

6. I propose to summarise below the uncontentious matters first, namely the personal background of the respondent, his criminal history, and the facts surrounding the prior contraventions of Supervision Orders.  Following that, I will summarise the evidence of the witnesses who gave evidence at the hearing before me.

The respondent's personal background

1. The following summary of the respondent's personal background is taken in part from the reasons for decision of Simmonds J and which I take to be uncontentious.[40]

   [40] Director of Public Prosecutions (WA) v W [33] - [38].

2. The respondent was born on 7 December 1951, the youngest of four siblings, and was raised in Perth. He reported bullying at school because of a facial condition and as a result was truant much of the time.  By reason of his truancy, he was placed in a boys' home for two years between the ages of 8 and 10.  There is some evidence that he suffered physical and sexual abuse at the boys' home.  Later, he spent nine months in another boys' home, at the age of 12 or 13, following convictions for stealing.

3. There is no evidence of domestic violence in his family or of any physical or sexual abuse of him, except for some evidence of some sexual abuse, by another boy in one of the boys' homes.

4. When the respondent left the boys' home on the second occasion he discontinued his education and entered the workforce.  He initially undertook factory work before working in retail, and then travelled to Melbourne to work as a spray painter, motor bodybuilder and storeman, before returning to Western Australia and working for a local council.

5. He then entered a period of unemployment.  He later became an orderly in a private hospital in 1980 before taking a redundancy package in 1994.  He remained effectively unemployed on Centrelink payments until his imprisonment in 2000.

6. The respondent had a number of intimate relationships before becoming married to Ms F, in 1978.  They were divorced in 2013.  According to the respondent, one of the previous intimate relationships resulted in the birth of a daughter who died an hour after birth.  At the time Ms F met the respondent in 1976, she had three sons, aged between 9 months and 33 months old. Ms F and the respondent themselves had twin boys, born in 1989.

7. The respondent's father died in 1984.  One of his brothers committed suicide the following year and his other brother died from cancer in 1990.  His mother, who had been living with that brother, and who had after his death moved in with the respondent and Ms F, died in 1996, also from cancer.  The respondent reported that his sister, from whom he had become estranged, died sometime after 2000.

Prior relevant offences

1. There are in effect three sets of sexual offences of which the respondent has been convicted over the last 22 years or so, all of which are offences of an historical nature.

2. The sexual offences which led Simmonds J to make the CDO in July 2014 are detailed in his Honour's reasons.[41]  These are the offences for which the respondent was convicted in May 2001 and April 2009.  The latter convictions were for offences committed (largely) before the former convictions.  I adopt his Honour's summary which is included below.

The 2001 convictions

[41] Director of Public Prosecutions (WA) v W [42] - [59].

1. On 17 May 2001, the respondent was sentenced in the District Court for 18 offences variously committed against his three stepsons and his twin sons.  His then wife, Ms F, was also convicted of most of those offences and sentenced in the same proceedings.  The convictions of both offenders followed two trials by jury.

2. The offending against the stepsons was committed on seven separate occasions from March 1988 to April 1990 when the sons were aged between 14 and 16.  The offending against the twin boys was committed across the period December 1996 to July 1998 when the boys were aged between 8 and 9.

3. The offences by the respondent against his stepsons comprised counts of indecent assault, incest by adult male and sexual penetration of a child under 16.  The offences by the respondent against his twin sons comprised counts of attempting to procure a child to engage in sexual behaviour, procuring a child to engage in sexual behaviour and procuring a child to do an indecent act.  The large majority of all of these counts were of 'serious sexual offences' within the meaning of that term in s 106A of the Evidence Act 1906 (WA) (Evidence Act).

4. The offending included demanding the boys engage in cunnilingus, fellatio and sexual intercourse with their mother, on one occasion involving sexual penetration of the co‑offender by the respondent at the same time as one of the boys did so, and demanding that the boys perform fellatio upon the respondent.  The offending by the respondent against his twin sons involved attempting to procure one of the boys to digitally penetrate his mother and demanding the other to suck her breasts and perform cunnilingus on her.

5. The respondent was sentenced to terms of immediate imprisonment with eligibility for parole ranging from 2 years to 6 years, with a total effective term of 12 years, to be served from 17 May 2001.

The 2009 convictions

1. On 28 April 2009, the respondent was sentenced in the District Court for four offences following his convictions after a trial by jury.  At that time he was still serving the sentence which had been imposed on 17 May 2001.  Those offences were variously committed against two young sisters, SJW and LAW, daughters of long‑standing friends of the respondent and his then wife Ms F.  Ms F was involved in some of this offending.  She had previously pleaded guilty to the offences and been sentenced for them, and was serving a prison term at the time of the respondent's sentencing.

2. The offences by the respondent against SJW were committed in 1978 and 1979, when SJW was about 6 or 7 years old.  The offences by the respondent against LAW were committed in 1990 or 1991, when LAW was 11 or 12 years old.

3. The offences by the respondent against SJW comprised one count of unlawfully and indecent dealing and one count of unlawful carnal knowledge.  The offences by the respondent against LAW comprised one count of procuring unlawful and indecent dealing and one count of unlawful carnal knowledge.  All four were 'serious sexual offences' within the meaning of that term in s 106A Evidence Act.

4. The offending by the respondent against SJW occurred after SJW had awakened in the night and gone to the back of the house to use the toilet.  There she found the respondent sitting naked on the toilet.  He called her to him and while he was sitting there forced her to engage in fellatio by sucking on his penis.

5. SJW then waited to use the toilet.  When she left the toilet she found the respondent standing in the laundry area.  He was naked.  He pushed her to the floor and there inserted the tip of his penis into her vagina.

6. The offending by W against LAW began while everyone was out of the house.  LAW was brought into the family room where she found the respondent and Ms F naked.  Soon LAW was also naked.  W then directed Ms F to perform fellatio on him by sucking his penis as a demonstration for the child.  After doing that for a short time, the respondent told LAW to perform fellatio on him.  She did so until he ejaculated into her mouth.

7. Further offending against LAW involved a sleeping tablet and Ms F.  LAW awakened to find herself lying naked on the respondent's bed.  She was then told to stand at the foot of the bed and was forced to watch while the respondent and Ms F had sexual intercourse.  She was then placed on the bed and W inserted his penis into her vagina.  He only stopped when she began bleeding.

8. The respondent was sentenced to terms of immediate imprisonment with eligibility for parole ranging from 2 years to 5 years, all to be served concurrently with one another and cumulatively on the sentence imposed on him on 17 May 2001.

9. On 30 March 2012, the Prisoners Review Board declined to release the respondent to parole.  The result was that his term of imprisonment expired on 27 April 2014.

The 2020 convictions[42]

[42] This summary was also adopted by Derrick J for the purposes of the preliminary hearing of this matter: The State of Western Australia v W [No 3] [17] - [22] (Derrick J).

1. On 14 November 2019, the respondent was convicted of historical sexual offences, specifically one offence of unlawful carnal knowledge of a girl under the age of 13 contrary to the now repealed s 185(1) Criminal Code (WA) (Code) and one offence of unlawfully and indecently dealing with a child under the age of 14 contrary to the now repealed s 183 Code. Both offences are 'serious offences' within the meaning of the HRSO Act.

2. The victim of both offences, BJG, was 12 years old at the time.  She was the daughter of friends of the respondent and his wife.

3. During the school holidays in January 1988, BJG went to stay at the respondent's home.

4. On an evening in January 1988, when BJG was ready to have a bath, the respondent walked into the bathroom and sat down on a chair.  He took off BJG's shirt, put his hands around her neck and started to rub his hands down her chest.  BJG froze feeling very scared.  It was this conduct of the respondent that was the subject of his indecent dealing offence.

5. Two days after the incident in the bathroom, BJG was in the lounge room of the respondent's house with the respondent and the respondent's three sons.  During the evening the respondent had a shower and returned to the lounge room wearing a bathrobe.  After he and his wife whispered to each other, the respondent called BJG over, opened his bathrobe and said to BJG, 'wait until later'.  After the respondent's three sons left the room, the respondent and his wife walked BJG to their bedroom, took off her clothes and positioned her in the middle of the bed.  With his wife's assistance, the respondent then sexually penetrated BJG's vagina with his penis.  During the offence, Ms F stayed on the left-side of the bed, held BJG's hand and repeated 'If it hurts, squeeze my hand'.  BJG tried to push the respondent away.  However, the respondent was too strong.

6. It was the respondent's conduct in sexually penetrating BJG that was the subject of his carnal knowledge offence.

7. The respondent has consistently denied having committed any of the sexual offending which I have described above.

Prior contraventions of the Supervision Order

1. The respondent has been convicted of five breaches of the Supervision Order.

2. Approximately nine months after the imposition of the Supervision Order on 24 July 2015, the respondent was charged and convicted of his first contravention of the Supervision Order under s 40A(1) DSO Act. This initial contravention was followed with four more contraventions over the 3-year period from March 2016 to August 2019. The respondent was sentenced for all five contraventions in the Perth Magistrates Court.

3. The first contravention under s 40A(1) DSO Act occurred in March 2016 and involved the respondent requesting permission from a Community Corrections Officer (CCO) to attend a library.  The respondent was issued a written lawful instruction to attend a certain library, only on certain days of the week.  The respondent contravened the conditions of the instruction by attending two libraries in two different suburbs (rather than the library which he had obtained approval to attend).  The respondent contravened the instruction by attending the libraries on Thursday and Friday, when the instruction stated he was permitted to attend only on Tuesdays and Wednesdays.  The contravention of the instruction amounted to a contravention of condition 5 of the respondent's Supervision Order, requiring that he comply with the lawful orders and directions of a CCO.  The respondent was charged with the contravention and issued a cost order.

4. The second contravention occurred in August 2016 and involved the respondent forgetting to wear his handheld electronic monitoring device.  The respondent was unable to be tracked for a period of 12 minutes.  He was charged with the contravention and fined.

5. The third contravention occurred on in February 2017 and involved the same instruction issued for the respondent to attend a certain library.  The respondent attended the approved library, but on a day not approved by the instruction.  The respondent was fined and received a suspended imprisonment of seven months.

6. The fourth contravention also occurred in February 2017 and involved the Sex Offender Management Squad discovering sexually explicit images of woman in a magazine in the respondent's home.  This formed a contravention of condition 40 of the respondent's Supervision Order.  The respondent was fined and received a suspended imprisonment sentence of seven months to run concurrently with the sentence for the third contravention referred to above.

7. The final contravention occurred in August 2019 and involved another contravention of condition 1 of the Supervision Order requiring the respondent to be subject to electronic monitoring.  The respondent was not in possession of the handheld electronic monitoring device and his movements were therefore not monitored for 19 minutes.  The respondent denied being separated from his handheld device, and was remanded in custody from 3 August 2019 to 13 August 2019 before he pleaded guilty and a fine was imposed.

Dr Gosia Wojnarowska

1. Dr Wojnarowska is a medical practitioner with a speciality in psychiatry and a sub-speciality in forensic and child and adolescent psychiatry.  Dr Wojnarowska is a fellow of the Royal Australian and New Zealand College of Psychiatrists with 14 years' experience in forensic psychiatry.  Dr Wojnarowska has been trained and involved with the assessment of dangerous sexual offenders since June 2007.

2. The evidence of Dr Wojnarowska for the purposes of the present application is found in her report dated 29 March 2023[43] and her oral evidence given at the hearing.[44]  In preparing her report, Dr Wojnarowska interviewed the respondent on two occasions with a total duration of 4 ½ hours.  Dr Wojnarowska also referred to a phone conversation she had with the Senior Community Corrections Officer assigned to the respondent, namely Ms Sullivan.  In the forming her assessment of the respondent, Dr Wojnarowska utilised the Static-99R tool to assess the relative degree of risk for sexual recidivism, the Hare Psychopathy Checklist Revised (PCL-R) to assess the extent to which the respondent's personality structure conforms to the clinical construct of psychopathy and the Risk for Sexual Violence Protocol (RSVP) which uses both historic (static factors) and dynamic variables (characteristics capable of change) to further assess the potential of sexual reoffending.  The RSVP assessment tool assesses elements in five domains: sexual violence history, psychological adjustment, mental disorder, social adjustment, and manageability. 

   [43] Exhibit B, 471 - 489.

   [44] ts 228 - 254.

1. Dr Wojnarowska described the respondent as a 71-year-old man with a history of serious sexual offending dating back to 1979.  The respondent currently resides by himself in independent rental accommodation, he is single and 'has no family or social supports in the community'.[45]  Importantly, Dr Wojnarowska reports that the respondent denies all sexual offences and is not currently engaging in psychological intervention.  The respondent has been diagnosed with paedophilia, psychopathy, and narcissistic personality.[46]  During her oral evidence, Dr Wojnarowska stated that paedophilia is a lifelong disorder that does not diminish with age.[47] 

   [45] Dr Wojnarowska's report [9].

   [46] Dr Wojnarowska's report [39].

   [47] ts 231.

2. In her report, Dr Wojnarowska summarised the respondent's history of sexual offending.  The respondent was convicted after trials in the District Court on three separate occasions: May 2001, April 2009 and February 2020.  I have referred to these offences earlier in these reasons.

3. Dr Wojnarowska identifies five characteristics of the respondent's convictions: the choice of victim being prepubescent children and adolescents who are either family or well known to the respondent; the respondent committed 24 separate offences in the space of 19 years, suggesting a high frequency of offending; the respondent grooms his victims and uses his authority to demand the victim's obedience; the offences are escalated through a high degree of depravity and callousness; and finally, the offences are associated with a deviant sexual interest in male and female children, strong psychopathic traits and a degree of sexual sadism.[48]

   [48] Dr Wojnarowska's report [23] - [27].

4. On the Static-99R test, the respondent achieved a score of 2, placing him in the 'average risk' category.  During examination in chief, Dr Wojnarowska commented that the Static-99R score decreases based on the respondent's age and the fact that the respondent was convicted for a cluster of offences, which means the number of convictions is incongruous with the number of separate offences committed.[49]  However, Dr Wojnarowska emphasized that the Static‑99R test does not measure all relevant risk factors and ultimately concluded that the respondent's risk of reoffending in a serious sexual manner is high, taking into account all assessment tools used.[50] 

   [49] ts 232.

   [50] Dr Wojnarowska's report [108].

5. On the PCL-R test, the respondent received a score of 26, meaning in Australia, he does not reach the threshold of 30 to determine a finding of psychopathy.  Nonetheless, in Dr Wojnarowska's view, the respondent possesses strong psychopathic traits.[51]

   [51] ts 233.

6. The RSVP analysis presented some features of the respondent's prior sexual offending, being the diversity of his victims (being both male and female, extrafamilial and intrafamilial, pubescent and pre‑pubescent children), the frequency of his offending, his use of non‑physical coercion that included callousness and abuses of control and parental authority.[52] 

   [52] Dr Wojnarowska's report [84] - [100].

7. Dr Wojnarowska's assessment also involved the finding of the respondent's deviant sexual interest in children and psychopathic personality disorder (within the context of narcissistic personality disorder).

8. Dr Wojnarowska identified, using a history of psychological and psychiatrist reports produced in relation to the respondent between 2001 to 2020, a persistent denial by the respondent of any sexual offending.  Throughout the 19-year period, the respondent maintained this denial, using inconsistent statements that he was set up by his family and government agencies or that his convictions were attributed to mistaken identity.  In a report by Mr David Summerton dated 6 July 2018, the psychologist states that the respondent's 'sustained denial by definition precludes any meaningful comment regarding insight or understanding of the dynamics of his offending',[53] even after times where the sessions between Mr Summerton and the respondent were agreed to focus on the 'perceived risk with parallel acknowledgment of his absolute denial'.[54]  In her mental state examination, Dr Wojnarowska found evidence of justification, minimisation and denial of offences.  In her oral evidence, Dr Wojnarowska stated that the respondent's sense of denial prevents him from formulating any plans to prevent reoffending.[55]

   [53] Dr Wojnarowska's report [52].

   [54] Dr Wojnarowska's report [52].

   [55] ts 236.

9. Dr Wojnarowska harboured a particular concern arising from the potential that the respondent might enter into a new relationship in which he has access to children.  Dr Wojnarowska stated that any such relationship could facilitate offending or grooming of victims and that the respondent would need 'little more' than a relationship in which he has access to children to reoffender.[56]  Dr Wojnarowska's belief was that the scenario in which the respondent was most likely to reoffend is one where the respondent exploits the possibility of engagement with a partner who has access to children, and offending against those children.[57] 

   [56] Dr Wojnarowska's report [103] - [105].

   [57] ts 239.

10. Dr Wojnarowska emphasised that the respondent's past convictions of depraved sexual offending has involved the compliance and complicity of his ex-wife.  Further, in previous offending, Dr Wojnarowska stated that the respondent had gained the trust of the family whose children he offended against, casting doubt on the respondent's intentions to develop 'prosocial, honourable, or innocent relationships'.[58] 

    [58] Dr Wojnarowska's report [87] and [96].

11. During her oral evidence, Dr Wojnarowska stated that during her interviews with the respondent maintained that he had no interest in sex, however, 'when pushed further, acknowledged that he would be interested in forming an intimate relationship as long as he is not required to disclose his status of his past sexual offending'.[59] 

    [59] ts 238.

12. Dr Wojnarowska stated that the risk of the respondent reoffending should be considered chronic.  However, her report and oral evidence concluded with an ultimate opinion that a supervision order would be sufficient to mitigate the respondent's risk in the community.  Dr Wojnarowska recommended that any such supervision order closely monitor any new relationships of the respondent's and ensures he does not have contact with children.

13. Under cross-examination, Dr Wojnarowska accepted that the respondent had reported that he avoids contact with children[60] and agreed that the respondent has completed the sex offenders' treatment program on a one on one basis.[61]  Given his repeated denials, it had been considered inappropriate to place the respondent in a group based deniers' program.[62]  Dr Wojnarowska also agreed that the respondent had made treatment progress and had reduced his risk of reoffending notwithstanding his consistent denials as to the historic sexual offending of which he has been convicted.[63] 

    [60] ts 249.

    [61] ts 251.

    [62] ts 251.

    [63] ts 251.

14. In re-examination, Dr Wojnarowska described the treatment gains as minimal.[64]  As to the respondent's continuing interest in sex, Dr Wojnarowska doubted the respondent's assertion that he had had no interest in sex for a long time.  She doubted that this was a reflection of his desires or fantasies given that he had also mentioned that he would be interested in forming intimate relationships if he did not have to reveal his offending.[65]

Ms Julie Hasson

[64] ts 252.

[65] ts 254.

1. Ms Hasson is an experienced Forensic Psychologist.  Ms Hasson has worked in psychology for over 25 years and has been engaged in private forensic psychology practice since 2008.  Ms Hasson's area of expertise is in the assessment and treatment of violent and sexual offenders, particularly those with severe personality disorder, intellectual disabilities, or other special needs.

2. For the purpose of the current application, Ms Hasson prepared a Psychological Risk Assessment Report dated 13 March 2023 and a further Psychological Risk Assessment Addendum dated 10 April 2023.  Ms Hasson also gave oral evidence at the hearing.[66]

   [66] ts 255 - 282.

3. Ms Hasson assessed the respondent using a structured professional judgment approach and actuarial measures, in combination with a forensic psychological assessment and formulation.  In particular, Ms Hasson applied the following instruments in order to estimate the respondent's risk of sexual offending in the future:

   (a)a Static-99R assessment, which is fundamentally concerned with the recidivism of the subject;

   (b)RSVP assessment; and

   (c)PCL-R. 

4. Using the Static-99R and PCL-R assessments, Ms Hasson reached substantially similar conclusions to Dr Wojnarowska.  Ms Hasson found that the respondent's PCL-R score was 25 which is in the moderate to high range but did not find that he fitted the construct of psychopathy (given the cut-off score in Australia is 30).  Ms Hasson gave evidence that the cut-off score is different in Europe, which applies a score of 25.  However, based on the Australian benchmark, the respondent did not meet the threshold for psychopathy, although nonetheless the number of psychopathic traits present in the respondent remains relevant and important.[67]  In her evidence in chief, Ms Hasson testified:

   … the number of psychopathic traits that are present is really what's more important, and particularly for [the respondent], his scoring on the traits that are more closely relevant to sexual offending behaviour and risk of offending that are more likely to place him at increased risk of reoffending and being able to seek out a victim and obtain compliance, or engage in grooming.

   … So the traits that are present in him are relevant to his offending behaviour.[68]

   [67] ts 260.

   [68] ts 260.

5. One of the deficits in the application of the Static-99R tool, which Ms Hasson accepted in her evidence during cross-examination, was the fact it does not sufficiently capture declines in recidivism risk associated with advanced age, given the age assessment cuts out at 60 years.[69]  So, while the tool is perhaps the most commonly used actuarial risk tool for estimating sexual offender recidivism risk, Ms Hasson accepted that it does not recognise the potential difference in risk between a 60 year offender and a 70 or 80 year old offender.  This is a point of some relevance given the age of the respondent.

   [69] ts 276 - 277.

6. In her assessment of the RSVP guidelines, Ms Hasson found the presence of various static and dynamic risk factors in the respondent including sexual deviance, problems with self-awareness, problems with planning (partially present), problems with treatment and a psychopathic personality disorder (partially present).  As to the psychopathic personality disorder, Ms Hasson concluded that this should be considered a possible risk factor in so far as the respondent possesses strong psychopathic traits within the context of narcissistic personality disorder and the presence of antisocial personality traits.

7. When considering the Static-99R score in combination with the RSVP risk factors, Ms Hasson was of the view that the respondent is in the Level III, Average Risk range. In her evidence in chief, Ms Hasson clarified that the relatively low Static-99R score for the respondent is a function of the historical nature of the offences in question and the fact they constitute one long period of offending.[70]

   [70] ts 256 - 257.

8. The most likely risk scenario identified by Ms Hasson are offences that involve the sexual penetration of a prepubertal or pubertal male or female child including oral sex, digital penetration or penile penetration.  Ms Hasson identified the likelihood that the respondent would gain access to the victims through a relationship with a caregiver or significant adult in the children's lives and whom he has been able to groom through a position of trust.  Ms Hasson explained the scenario in her evidence in chief as follows:

   So the most likely scenario would be that [the respondent] would reoffend within the context of being in a relationship with somebody and thereby have access to children.  And that in terms of victim selection, that the victim type would be a male or a female but that the offending would most likely involve sexual penetration of some kind.[71]

   [71] ts 265 (Ms Hasson's report identified additional scenarios which could lead to sexual offending).

9. As to the imminence of the respondent's sexual offending, Ms Hasson indicated that this would depend on the formation of any relationships that allow the respondent access to children, as well as the age of the children, and the protective behaviours of those responsible for their care.  As to the likelihood of the respondent committing the offences identified in the risk scenarios, Ms Hasson was of the opinion that the respondent is at least a moderate risk of sexual reoffending (while under a Supervision Order, as explained below) and therefore the possibility of him engaging in offending behaviour is, in her opinion, considered likely.

10. Ms Hasson recognised that the respondent has some long standing health issues, but these would not necessarily prevent him from committing sexual offences against a child, in her view.[72]

    [72] ts 271.

11. Ms Hasson noted that, in the event the respondent established relationships with others that become social or romantic and result in the likelihood of him being invited into others' homes or he invites others over, it will be important to ensure he does not have access to children and is never alone with a child under the age of 18 years.  Ms Hasson described in her evidence the respondent's entrenched or long-standing interest in sex with children.[73]

    [73] ts 261.

12. On the basis of risk assessment instruments she applied, Ms Hasson was of the view that the respondent presents as an average or moderate risk of committing a serious offence.  Ms Hasson concluded that the unsupervised release of the respondent may lead to a situation where further serious sexual offending may occur.  As is evident from her Addendum Report, Ms Hasson's assessment that the respondent presents as an average or moderate risk was in fact based on the risk he posed while subject to the Supervision Order.

13. Ms Hasson thus clarified her opinion regarding the respondent in the Addendum Report.  Ms Hasson expressed the opinion in that later report that the respondent would pose a high risk of committing a serious sexual offence if not made subject to a restriction order.[74]  Her opinion in this regard was based on the presence of long-standing deviant sexual interests, the respondent's diagnosis of paedophilia, the presence of significant psychopathic traits, with the latter being the most salient and concerning risk factors when considering risk of sexual reoffending.

    [74] ts 266 - 267.

14. In relation to the paedophilia diagnosis, Ms Hasson acknowledged in her evidence that this was a diagnosis properly within the field of a psychiatrist.  However, Ms Hasson indicated she was able to express a view in this regard based on the prior assessments undertaken of the respondent, including by Dr Mark Hall.  Ms Hasson referred to the diagnosis as being of the non-exclusive type in that the respondent has had relationships and attractions to age-appropriate females, in addition to children, and thus he is not exclusively attracted to children.[75]

    [75] ts 262.

15. Ms Hasson noted that much of the respondent's offending occurred in the company of his wife which was a gross breach of trust and which likely played a role in the offending going undetected for such a lengthy period.  Ms Hasson noted that the respondent has no identifiable support in the community, has made minimal treatment gains, and consequently has few strategies to manage risk other than avoidance.[76] 

    [76] Ms Hasson noted in her evidence that the respondent had deficits in his ability to manage and does not engage in scenario planning (ts 263).

16. Further, according to Ms Hasson, the respondent demonstrates a lack of insight into his offending behaviour and psychological functioning in general, which may be a concern regarding his ability to identify any lapses into an offending cycle and be able to take steps to prevent reoffending in the future.

17. As to the respondent's lack of insight, Ms Hasson gave evidence as follows:

    … he presents quite markedly with no insight, no personal understanding about his psychological functioning, his emotional functioning, how he copes and manages, some of the drivers of his behaviour, his motivators.  There's not even really a curiosity about self or pondering why things happen or how things happen, or how he responds to things, and that lack of self-awareness is quite marked.  It's quite unusual.[77]

    [77] ts 260 - 261.

18. Ms Hasson assessed the respondent as having had an entrenched stance of denial in relation to his offending, which was the subject of cross-examination.[78]  I understood Ms Hasson's evidence to be that the respondent essentially blames others for the conduct, and that, in any event, there is no particular causative connection between denial and reoffending in the sense that it does not increase the risk.[79]  The relevance of denial, as Ms Hasson explained, is as follows:

    … that risk factor [i.e. Attitudes that support or condone sexual violence] also looks at extreme minimisation and what that really relates to is about more treatment items and intervention activity.  So when you've got somebody who - and it's quite rare to get somebody in categorical denial who says, “Absolute never happened.  Don't know why they've said it,” and it's about working with someone to look at the minimisations, look at around the - it's perhaps the language that they use which then uncovers some of the other attitudes and supported belief.  So it's more about a treatment target, a way of working around that understanding and getting a sense of what might be some of the scenarios?  How might you find yourself in that situation again?  Why might somebody accuse you of that?  … what has been happening?  How do you interact with others?  How could somebody misinterpret what's going on?  So it's more exploratory and it's more about understanding those dynamic risk factors and developing that self‑awareness to know, “Okay.  Well, if I'm out in public, I need to make sure I don't do X, Y and Z, that somebody can't misinterpret what I'm saying or doing.”  So it's relevant in the fact of them being able to understand - come to some sort of sense of appreciation of how did I end up here;  what has been going on;  what has happened.

Ms Jennifer Sullivan

[78] ts 277 - 278.

[79] ts 277 and 281.

1. Ms Jennifer Sullivan is a Senior Community Corrections Officer.  I received her report dated 11 April 2023 in evidence and she gave brief evidence at the hearing. 

2. Ms Sullivan's report provided the court with a comprehensive background concerning the history of this matter including the respondent's failures to comply with previous Supervision Orders.  Ms Sullivan details in his report the counselling sessions in which the respondent has engaged over time, being psychological intervention with Mr Summerton while the respondent was in custody.  The views of Mr Summerton are extracted in Ms Sullivan's report and, in summary, reflect a view that Mr Summerton found the respondent a difficult person to engage with, he was prone to agitation and belligerence whenever there was a focus on his offending, and he had limited capacity for self-reflection.[80]

   [80] Ms Sullivan's report, Exhibit B 525 - 526.

3. There has been a degree of discussion concerning the respondent through interagency risk management meetings, involving the Police, staff from COMU as well as representatives from the Adult Community Psychological Services and Forensic Psychological Intervention Team.  These meetings will continue during the term of any Supervision Order made by the court.  Ms Sullivan notes that the respondent has been reporting to the Police during the currency of his present Supervision Order as well.[81]

   [81] Ms Sullivan's report, Exhibit B 526.

1. As for accommodation, Ms Sullivan notes that the respondent presently resides in a property which is owned by the State Department of Communities and thus there is no question as to the availability of suitable accommodation for the respondent.

F.       Disposition

High risk serious offender

1. The respondent does not challenge the State's submission that he is a high risk serious offender for the purposes of the HRSO Act. Nonetheless, the issue is one for the court to consider. It is important for the court to ensure that it is appropriately satisfied that the respondent falls within the statutory conception of a high risk serious offender. The primary focus of the assessment in this regard is on the factors delineated in s 7(3). I will approach the question by reference to these factors, to the extent they are relevant.

Section 7(3)(a) and (b) - Any report prepared under s 74 and medical, psychiatric, psychological or other assessments relating to the offender

1. Both qualified experts for the hearing, Dr Wojnarowska and Ms Hasson, have assessed the respondent as at high risk of committing a serious sexual offence if he is not subject to a restriction order.  I have recounted their evidence earlier in these reasons.  I find accordingly.

2. Dr Wojnarowska states that the respondent possesses two important factors causally related to future reoffending: sexual deviance (paedophilic interest) and psychopathy and that it is possible that he would reoffend as soon as restrictions on his functioning are lifted.

3. Ms Hasson states in her addendum report that the diagnosis of paedophilia and the presence of significant psychopathic traits are the most salient and concerning risk factors when considering the risk of sexual reoffending.

4. Ms Hasson states that unsupervised release may lead to a situation where further serious sexual offending may occur and that the respondent's release to the community without adequate supervision, restrictions and control on behaviour does not allow for the adequate protection of children from the possibility of his sexually reoffending.

5. It was unclear on the evidence, and I do not find, that the respondent has a delusional disorder.[82]  I accept the submission of the respondent's counsel in this regard.

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

[82] ts 312 - 313.

1. It is not in dispute that propensity in the present context means that the offender has an inclination or tendency, a disposition to commit serious sexual offences, in a particular way, or upon a particular type of victim. I refer to the observations of Murray AJA in Director of Public Prosecutions (WA) v GTR[83] in this regard.  His Honour further explained that the word refers to some identifiable characteristic of the offender, something in his make up or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.  

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

2. I am comfortably satisfied on the evidence that the respondent has a disposition to commit serious sexual offences against children and so satisfies the test of propensity as it appears in s 7(3)(c).

3. The respondent's antecedents provide cogent support for this conclusion.  The respondent has convictions for 21 serious offences on numerous separate occasions spanning a 19 year period between 1979 and 1998.  All of these serious offending involved the carrying out of serious sexual offences against children.  His victims include his own twin boys, his two stepsons, two sisters who were the children of long‑standing friends, and the daughter of a family friend.  These children were aged between 6 and 16 years of age at the time of the offences.

4. The evidence of Dr Wojnarowska and Ms Hasson, which I have summarised above support a finding (which I make) that the respondent is at a high risk of committing a serious sexual offence if he is not made subject to a restriction order.

5. The respondent displays two important factors which are causally related to future reoffending, namely sexual deviance (in the sense of a paedophilic interest) and psychopathy.  These matters are salient and concerning risk factors in the context of the risk of sexual reoffending.  The unsupervised release of the respondent could lead to a situation where further serious sexual offending occurs.  The release of the respondent to the community without adequate supervision, restrictions and controls on his behaviour would, in my view, not allow for the adequate protection of children from the possibility of his sexually reoffending.

Section 7(3)(d) - Whether there is any pattern of offending behaviour

1. I find there is a clear pattern to the respondent's behaviour of offending, namely against male and female children including his three stepsons, his two biological sons and three female children who were friends of the family.  The respondent gains access to children through his relationships and then offends against them.  I readily conclude that, if in the future the respondent enters into a relationship with a woman who has the care of children or grandchildren, the respondent would be at risk of sexually offending against those children, driven by his deviant sexual interest in doing so.

Section 7(3)(e) - Participation in any rehabilitation program

1. The respondent has participated in individual counseling sessions over a period of time (although none since March 2018), and has not participated in any group rehabilitation programs.  Fundamentally, the respondent has long maintained his stance in relation to his offending behaviour, that is, one of denial.   

2. In my assessment, the respondent simply has no insight into his offending or the psychological underpinnings for his behaviour. The evidence tends to demonstrate that it is most unlikely the respondent's position of denial will be shifted and it will remain a barrier for effective risk management and engagement in treatment.  I also consider his denialism represents a benign risk factor for reoffending behaviour.

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

1. I refer to my comments at [134] and [135] above.  The respondent has completed a sexual offender's treatment program through one on one counselling, not through a group program.  I accept the evidence of Ms Hasson, though, that the respondent has made minimal treatment gains through counselling and has few strategies to manage risk other than avoidance.  The psychological counselling the respondent has undertaken has had little positive effect on him in addressing his treatment needs.  I accept Dr Wojnarowska's evidence that while the respondent has made some gains through treatment, they are minimal.   

Section 7(3)(g) - Antecedents and criminal record

1. I have already detailed in these reasons the respondent's antecedents and criminal record, which I will take into account in deciding this Application.  The respondent is now 71 years of age.  He has been convicted of three sets of historical sexual offences and served a significant portion of the last 20 or so years in custody.  While his childhood was an unfortunate one, in some respects, it provides no real explanation for the serious offending the respondent was to engage in, later in his life.  The sexual offending involves three sets of sexual offences, which I have summarised below:

   (a)the respondent committed 18 offences from March 1988 to April 1990, and from 1996 to 1998, against his three stepsons and his twin sons (when the victims were between 8 and 16 years of age), for which the respondent was sentenced in the District Court in 2001 for an effective term of 12 years;

   (b)the respondent committed multiple offences in 1978 and 1979 against the young daughters of a family friend (when the victims were between 6 and 12 years of age), for which the respondent was sentenced in the District Court in 2009 to an effective term of 5 years; and

   (c)the respondent committed two offences in 1988, against the young daughter of a family friend (when the victim was 12 years of age), for which the respondent was sentenced in the District Court in 2019 to an effective term of 3 years.        

2. In respect of the offences for which the respondent was convicted in 2001, the sentencing judge in the District Court, his Honour Charters DJC, described those offences as reaching 'depths of depravity such as we rarely experience in these courts' and his Honour found it difficult to understand how parents or step-parents could behave in such a manner.[84]  The sentencing judge described the respondent as the 'evil and motivating power behind these depraved acts'.[85] 

   [84] Exhibit A, 214.

   [85] Exhibit A, 214.

3. When sentencing the respondent for the further offences in April 2009, the sentencing judge in the District Court, her Honour Yeats DCJ, remarked in particular on the respondent's continuing denials.  Her Honour stated:

   It is a stunning case of the offender continuing to deny all of the sex offending, continuing to deny these offences and showing no remorse.  The other matter that is of deep concern to the court is that the psychologist, in a careful assessment, assesses his risk of reoffending as high.

   …

   Again, the severe breach of trust, the involvement of his wife, the use of drugs and the sexual penetration, penile penetration, of a 12-year old at a time when the penetration caused her to bleed for some three weeks, in circumstances where he's shown no remorse and even continues to this day to deny it, again puts that offence in my view toward the top of the sexual offending, for this sort of offending.[86]

Section 7(3)(h) - Risk of committing such offences if not subject to a restriction order

[86] Exhibit A, 269 - 270.

1. I have addressed this factor above, but to restate my conclusion ‑ the evidence presented at the hearing strongly supports the conclusion that the respondent as at high risk of committing a serious sexual offence against a child if he is not subject to a restriction order. 

2. The opinions of the experts who gave evidence for the State is to the effect that the most likely risk scenario consists of the commission of offences involving sexual penetration through oral sex, digital penetration or penile penetration against a prepubertal or pubertal child (of either sex) to whom the respondent has had pre-existing access and whom he has been able to groom through a position of trust.

Section 7(3)(i) - The need to protect members of the community from the risk of further serious offences

1. The respondent's history of serious offending and the evidence of Dr Wojnarowska and Ms Hasson demonstrate the clear need to protect members of the community from the risk of the respondent engaging in further serious offences. 

2. The State, in its submissions in relation to this factor, has drawn my attention to the sentencing remarks of McGrath J when sentencing the respondent for the offences committed in 1988:

   I'll turn now to the aggravating factors in this case. The offending is serious. An aggravating factor in this case is the complainant was only 12 years of age and that both of you were caring for the complainant in circumstances where she'd been taken into your home from another parent at your invitation.

   This was a…breach of trust involving a highly vulnerable victim. There was a significant age difference between the 12-year-old complainant and you as adults at the time you committed the offence.

   It is clear, and I find so, that count 3 was premeditated.  I also find in respect to you, …, that count 2 was premeditated.  In respect to count 3, the whispering that occurred between both of you occurred prior to the offending. The comment made by you,…, "Wait till later", in Ms [redacted] presence and the leaving the bedroom by both of you supports a finding that count 3 was a premeditated offence.

   This was not some spontaneous act on the part of either of you. The sexual offending in count 3 was depraved and involved sexual penetration of a young girl in circumstances in which the victim was in pain, trying to defend herself against [you], but unable to do so.

   Your role, [respondent's wife], as an aider was also depraved. You clearly understood the offence was being committed and that the offence would cause the complainant physical pain but nonetheless you persisted with your active assistance from the time that you were aiding [the respondent] both in the lounge room and until the offence of penetration was completed in the bedroom.

   I have received a victim impact statement from the complainant who outlines the devastating effect that your offending has had on her. It is clear that the complainant suffered significant mental health issues and her relationships have suffered greatly.[87]

   [87] Exhibit A, 355.

3. The State has also referred me to the comments of Simmonds J at the hearing before his Honour under the DSO Act in 2014. His Honour noted the reoffending scenario as described in the evidence of Dr Hall and his further description of the potential psychological harm from such reoffending. His Honour concluded 'that there is a strong need to protect the community from such reoffending'.[88]

   [88] Director of Public Prosecutions (WA) v W [168].

4. I respectfully consider that the conclusion reached by Simmonds J in 2014 applies in relation to the respondent with equal force in 2023.

Section 7(3)(j) - Any other relevant matters

1. It is relevant to the assessment of the respondent's status as a high risk serious offender that he has a history of contravening the terms of Supervision Orders imposed on him.  I refer to my observations in this regard at [77] to [83] above. 

2. One of the contraventions was for possession of pornographic images, in breach of a condition of the Supervision Order.  The State submits, and I accept, that this conduct provides a further illustration of the respondent's continuing degree of sexual interest and motivation.  I also accept the evidence of Dr Wojnarowska to the effect that the respondent has a continuing degree of sexual interest given his desire to have an intimate sexual relationship in the future.

Conclusion as to whether the respondent is a high risk serious offender

1. To determine whether the respondent is a high risk serious offender, the court is required to consider whether his risk of serious reoffending is 'unacceptable'.  This requires the court to consider the nature of the risk, the likelihood of the risk materialising and the serious consequences for the respondent if a restriction order is made.[89] These are matters which I have addressed above, by reference to the factors specified in s 7(3).

   [89] Italiano v The State of Western Australia [2009] WASCA 116; Director of Public Prosecutions (WA) v Williams [63].

2. In essence, the respondent has been diagnosed with non-exclusive paedophilia and a psychopathic personality disorder.  The risk of him reoffending is high.  The respondent is likely to find access to his victims after forming a relationship with a caregiver or a significant adult in the children's lives and whom he has been able to groom through a position of trust.  The psychological harm to the respondent's victims would be that of an enduring personality disturbance characterised by low self-esteem, emotional fragility, attempted and completed suicide, as well as vulnerability to depression and other psychiatric conditions.

3. In my assessment, if the respondent is not subject to a restriction order, there is a very real risk that he will form a relationship with a person who has the care of a child, giving him the opportunity to sexually offend. 

4. The weight of the evidence is that the respondent has made sufficient statements which indicate a continued interest in sexual matters and which indicate a sexual drive.  The respondent maintains an interest in forming an intimate relationship in the future if he is not required to disclose his offending.

5. Of course, the making of a restriction order would have serious consequences for the respondent, which I must consider as part of my evaluation.  A restriction order could involve the respondent's detention and loss of liberty, or his release into the community on a Supervision Order with associated conditions. 

6. Nonetheless, the paramount consideration under the HRSO Act is the need to ensure adequate protection of the community, which must take precedence over the serious consequences to the respondent of the court making an order, particularly given the high risk of the respondent engaging in serious sexual offending in the future. I have taken some care to detail in these reasons the nature of the respondent's prior offences as well as the sentencing comments delivered when the respondent was sentenced. It will be clear enough from the matters I have recited that the respondent's historic sexual offending is very serious, and involved depraved acts which were, in part, committed upon his own children and step-children.

7. There is a compelling case to support the conclusion the respondent is a high risk serious offender within the meaning of the legislation.   

8. Further, in my view, it is undoubtedly necessary to make a restriction order to ensure the adequate protection of the community against the respondent's unacceptable risk of committing a serious offence in light of my analysis of the factors in s 7(3) above. There has been a diagnosis of paedophilia in relation to the respondent, which is generally regarded as a lifelong disorder. Notwithstanding the respondent's advancing age, this disorder will persist into the future. The respondent possesses the two most important factors causally related to future reoffending which are sexual deviance, which is a reference to his paedophilic interest, and psychopathy. The release of the respondent into the community without some form of supervision regime would be wholly inconsistent with the expert views expressed on this Application by Dr Wojnarowska and Ms Hasson.

Substantial compliance with standard conditions of a supervision order

1. Having found the respondent remains a serious danger to the community, I must either make a CDO in relation to the respondent or make a Supervision Order.  In making this assessment, the paramount consideration is the need to ensure the adequate protection of the community.  The need to ensure the adequate protection of the community does not exclude other considerations.

2. A court cannot make a Supervision Order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order.[90]  The standard conditions are those contained in s 30(2) and include reporting, supervision and electronic monitoring.

   [90] HRSO Act, s 29(1).

3. The onus is on the offender to satisfy the court that he will substantially comply with the standard conditions.[91]  The standard conditions are those set out in s 30(2)(a) to (f). 

   [91] HRSO Act, s 29(2).

4. The State does not submit that the court should impose a CDO.  Rather, the State submitted at the hearing that a number of factors in this matter supported the making of a Supervision Order and that such would provide adequate protection for the community.[92]  Those factors are:

   (a)the respondent has stable accommodation in which he has been residing since July 2022, and there have been no material concerns raised in the Risk Management meetings with WA Police;

   (b)other than for serving a sentence of imprisonment in 2019 to 2022 for historical sex offences, the respondent has been subject to a Supervision Order since July 2015, and overall has substantially complied with his order conditions (other than in the manner I have outlined earlier in these reasons);

   (c)since the respondent was released on the first Supervision Order, he has not committed a serious sexual offence, or any serious offence within the meaning of the legislation;

   (d)Dr Wojnarowska has expressed the opinion that being subject to a Supervision Order is sufficient to mitigate the respondent's high risk of reoffending, provided that any new relationships, intimate or non-intimate, are closely monitored to ensure he does not have contact with children; and

   (e)Ms Hasson states that the respondent's risk of reoffending has moderated due to the restrictions, monitoring and supervision associated with the first Supervision Order, but that unsupervised release may lead to a situation where further serious sexual offending make occur.

   [92] State's Submissions [205].

1. Whether the respondent will substantially comply with the standard conditions of a Supervision Order requires the court to have regard to all the evidence adduced.  The respondent's history of non‑compliance (and compliance) are relevant to the assessment, as well as his capacity to comply with the conditions and the measure in place to ensure he substantially complies.[93]

   [93] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [50].

2. I recognise the respondent has a prior history of non-compliance with conditions, and has a stance of denial in relation to his prior offending, which point against a conclusion the respondent will substantially comply in the future.  However, I accept the force of the State's submissions.  I have also had regard to the relative importance of any breach which might occur, and do not consider the respondent would breach the conditions by committing an offence.  The respondent has not committed a serious sexual offence (or any seious offence) whilst he has been subject to the Supervision Order since July 2015 (noting he was in custody from November 2019 to February 2022).  In my view, on balance, the respondent has discharged his onus of proof under s 29(3) that he will substantially comply with the standard conditions of a Supervision Order.

Appropriate term of the Supervision Order

1. Having regard to the views expressed by Dr Wojnarowska and Ms Hasson, I consider that a Supervision Order should be imposed for a period of no less than 5 years.  Upon the expiration of a Supervision Order of this length, the respondent will be approaching 77 years of age.  He will have, by that time, spent a period of some 27 years either in custody or subject to a restriction order of some description.  It will be a matter for the State to consider the respondent's circumstances at the expiration of the order and assess whether there has been a significant change in his position.

2. As to the evidence of the experts on the appropriate length of the Supervision Order, I refer to the following evidence of Ms Hasson, who expressed the opinion in her report that the appropriate term should be 5 years.[94]  Her basis for this view was as follows:

   So for [the respondent], he's 71 years old currently.  And so he also has a number of health issues, which are longstanding.  …  And so another - in five years, he will then have been in the community for a considerable period of time.  And one of the things that we look at is time spent offence-free in the community.  Now, he has been disrupted by returning to prison on historical sex offences.  And, technically, with the Static-99, you can't actually look at time offence-free in the community when somebody has been subject to a restriction order like [the respondent] has, because it limits the opportunity to offend.  It doesn't remove it entirely, but it really restricts the opportunity to offend.  So we wouldn't look at that and say, well, in five years or 10 years, then it's going to reach an average or a below-average risk.  But I've certainly taken that into consideration.  But you can't use it the way I would use it if it was just somebody being released from the community.  But for him, he is 71 years old.  You would hope that there will be some further age-related changes for him.  And a five-year period is just another opportunity to have a look at where he's at, what's going on and to see if there has been any significant change, if there's any reduction over time.  …  So five years is not too onerous but does consider his age.[95]  (underlining added) 

   [94] Ms Hasson's report, Exhibit B 522.

   [95] ts 268.

3. In her evidence, Dr Wojnarowska observed that, despite the respondent's advancing age, research informed her that the sexual interest in children persists until quite an old age.[96]

Appropriate conditions of the Supervision Order

[96] ts 244.

1. As to the conditions which should be attached to the Supervision Order, submissions were made by the parties in relation to only a few of those proposed conditions.[97]  I have addressed these particular conditions below and expressed my conclusion as to the appropriate conditions which should be ordered.

   [97] The State's draft Supervision Order was filed with the court on 11 April 2023 (Folio 40).

2. I should note that the State did not propose any conditions with respect to the respondent's attendance at programs or for treatment, or for taking of medication by the respondent, as further engagement in such matters, or taking of medication, has not been recommended by the medical professionals.  Further, it is not proposed by the State that any curfew-like conditions be imposed as they are unlikely to be directly relevant to the respondent's potential to reoffend in the future.[98]

   [98] Ms Hasson's report, Exhibit B 522.

3. I turn first to the conditions related to the respondent's access to pornographic material and possession of images of children.  The State proposed conditions in the following terms:

   Condition 35

   Not to be in possession of any adult pornographic material in either hardcopy or digital form, or access or view any adult pornography on the internet, unless approved in advance by a CCO.

   Condition 38

   Not access the internet for, nor collect or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not; Possession of such images depicting a child or children on items such as on household items or your immediate family, may be authorised by a CCO. Immediate family means pictures of yourself, your siblings, your parents and your spouse only.

4. Ms Hasson expressed the view that a condition prohibiting the respondent's access to adult pornography in either hard copy or digital format, or indeed on the internet, was not required.  Her view was that, provided such access is monitored and discussed with the respondent, there is no reason for a prohibition as such.  Her evidence was that a condition which includes the ability for access to be approved in advance by a CCO was acceptable.[99]  I consider this form of condition is not required and not supported by the evidence.  I am satisfied, on balance, that this condition should be deleted (i.e. condition 35 in the State's proposed order), as it is not a condition that is necessary to address a known risk factor for the respondent.  That is to say, access to pornographic material has not been found to be a risk factor for him, having regard to his history of serious sexual offending.

   [99] ts 270.

5. As to condition 38, counsel for the respondent highlighted the onerous nature of the condition and the possibility that inadvertent possession of material could trigger the provision.[100]  He submitted that a carve-out should be included to ensure the respondent is permitted to access a newspaper for a period of time, which forms part of his daily routine.[101]  I accept the force of that submission in the context of the interchange between counsel and Ms Sullivan during her evidence.[102]  I propose to include a carve out in the condition to permit the respondent access to a newspaper for a period of no more than 24 hours.

   [100] ts 315.

   [101] ts 315.

   [102] ts 286.

G.       Conclusion

1. The circumstances of the sexual offences committed by the respondent are terrible.  The respondent's consistent denial in relation to these offences, despite his convictions, compounds the awful nature of this conduct.  Unfortunately, that persistent stance of denial is unlikely to change over time. 

2. On my assessment, the respondent's denialism is a strong factor in support of the conclusion that the respondent must be subject to a restriction order to provide adequate protection of the community against the unacceptable risk the respondent would commit a serious offence in the future.  On the evidence, particularly the medical evidence led by the State, I do not consider a CDO is necessary to ensure adequate protection of the community.  A Supervision Order must, however, be imposed for this purpose, containing the strict terms set out in Attachment A to these reasons.  I have marked in red text the material changes I have made to the version supplied by the State.

3. The Supervision Order should run for a period of 5 years.  At the hearing on 18 September 2023, counsel for the State indicated that the implementation of the order would be practically feasible from that date (and the minimum 21 day period stipulated in s 27(3) was not required).  The respondent did not oppose this course and, in the circumstances, I was prepared to impose the Supervision Order immediately, to run through until September 2028.

ATTACHMENT A
Supervision Order

Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 5 years from 18 September 2023, on the following conditions:

You, [name suppressed], must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

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

1. Report to and receive visits from, a CCO as directed by the Court.

1. Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.

1. Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32).

1. Not leave, or stay out of the State of Western Australia without the permission of a CCO.

1. Not commit a serious offence during the period of the Order.

1. Be subject to electronic monitoring under section 31.

ADDITIONAL CONDITIONS

Reporting obligations to a CCO and supervision by a CCO

1. Report to, and receive visits from, a CCO at times and at places as directed by the CCO, including on the date of commencement of his Order.

1. Continuously reside at [address suppressed] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.

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

Reporting to WA Police

1. Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of commencement of this Order, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender Management Squad or his/her delegate.

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

1. If requested, permit Police Officers to search your person and to enter and search your residence and/or vehicle, whilst remaining present at either location (residence and/or vehicle) for the entirety of the search, for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any items that the Police Officers reasonably suspects to contravene the conditions of the Order.

1. If requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all screen name(s), user name(s), and email addresses used by you.

Disclosure/Exchange of Information

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

1. 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 offending history.

Attendance at Programs or Treatment

1. Consult, attend all appointments and engage with any medical practitioner, psychologist, counsellor, mentor, support service and/or support person nominated by a CCO, as directed by a CCO, including any programs designed to address your offending behaviour and risk of serious reoffending.

1. Permit any medical practitioner, psychologist, counsellor, mentor, support service and/or support person to disclose details of any treatment (including medical) and opinions relating to your level of risk of reoffending and compliance with treatment or programs to the Department of Justice.

1. Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by the medical practitioner and/or CCO.

Restrictions on contact with Victims and Co-offender

1. 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.

1. Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victims at all times.

1. Have no contact, directly or indirectly, with your former wife, [name suppressed].

Criminal conduct

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

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

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

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

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

Prevention of high-risk situations

1. Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO.

1. 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 supervision 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.

(Note: The term 'contact' under these 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).

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

1. Provide the name, address, location and any details known by you, 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.

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

1. Report at your next contact with your CCO, the formation of any social association (of more than one contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person.

1. As and when directed by your CCO, make full or partial disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than one contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.

1. [Deleted].

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

2. 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; this includes providing all screen name(s), user name(s), and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.

1. Not access the internet for, nor collect or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not.  The possession of such images depicting a child or children on items such as on household items or of your immediate family, may be authorised by a CCO.  Immediate family means pictures of yourself, your siblings, your parents and your spouse only.  This condition does not preclude you having access to a recognised newspaper, provided you have possession of the newspaper for a period of no more than 24 hours.

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

IHN

Associate to the Honourable Justice Lundberg

18 SEPTEMBER 2023