The State of Western Australia v Warmdean [No 3] - [2021] WASC 438

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WARMDEAN [No 3] [2021] WASC 438
CORAM:   DERRICK J
HEARD:   30 NOVEMBER 2021
DELIVERED          :   9 DECEMBER 2021
FILE NO/S:   SO 2 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
WILLIAM STANLEY JOSEPH WARMDEAN
Respondent

Catchwords:

Criminal Law - High Risk Serious Offender - Contravention proceedings - Application under s 53 and s 55(1) of the High Risk Serious Offenders Act 2020 (WA)

Legislation:

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

Result:

Supervision order rescinded
Continuing detention order made

Category: B

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	Mr T Hager

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Tony Hager

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

Director of Public Prosecutions (WA) v Hart [2019] WASC 4
The State of Western Australia v Narrier [No 5] [2019] WASC 17
The State of Western Australia v Warmdean [2019] WASC 6
The State of Western Australia v Warmdean [No 2] [2020] WASCA 454
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v Yates [2020] WASC 149
The State of Western Australia v ZSJ [2020] WASC 330

DERRICK J:

The application

The applicant applies under s 53 of the High Risk Serious Offenders Act 2020 (WA) (Act) for orders under s 55(1) and s 55(2) of the Act (application).

Events leading to the making of the application

On 14 January 2019 Fiannaca J made a continuing detention order in relation to the respondent (CDO) pursuant to s 17(1)(a) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).[1]
[1] TheState of Western Australia v Warmdean [2019] WASC 6.
On 9 July 2020 pt 1 of the Act came into operation.[2] Other parts of the Act relevant to the application came into operation on 26 August 2020 (commencement day).[3] Upon the coming into operation of these other parts of the Act the DSO Act was repealed.[4]
[2] Act, s 2(1)(a).
[3] The term 'commencement day' is defined for the purposes of the provisions contained in pt 10 of the Act (s 122 ‑ s 125) to mean 'the day on which this section comes into operation'. The 'day on which this section comes into operation' is, by virtue of proclamation, 26 August 2020: Act, s 2(1)(c).
[4] Act, s 123.
Under s 125 of the Act, if an order made, or direction given, under the DSO Act is in effect on the commencement day, the order or direction continues in effect and is taken to have been made or given under the corresponding provision of the Act. Accordingly, as at the commencement day the CDO continued in effect and was taken to have been made under the Act.
On 24 November 2020 Curthoys J conducted the first review of the CDO. The review, given the repeal of the DSO Act and s 125 of the Act, was conducted pursuant to s 64, s 66 and s 68 of the Act.
On 11 December 2020 Curthoys J ordered that the CDO be rescinded and that a supervision order be made in relation to the respondent (Supervision Order).[5] The respondent was released on the Supervision Order on 20 January 2021.
[5] TheState of Western Australia v Warmdean [No 2] [2020] WASCA 454.
Condition 37 of the Supervision Order provides that the respondent is to maintain a daily diary of his movements, activities and associations as directed by his Community Corrections Officer (CCO) and is to present the diary to his CCO and/or police officers upon request.
Condition 43 of the Supervision Order provides that the respondent is not to access or have in his possession in either electronic or permanent form any pornographic material.
Condition 44 of the Supervision Order provides that the respondent is not to enter any residential address in which a female is present, resides or is known to reside, unless authorised in advance by the CCO.
Condition 46 of the Supervision Order provides that the respondent is not to have any contact with any child under the age of 18, whether such contact is in person, in writing, by telephone or by electronic means unless:
1.the contact is authorised in advance by the respondent’s CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or
2.the contact is necessary to complete a commercial transaction and is limited to the minimum contact required to complete the transaction, and another adult is present.
Condition 55 of the Supervision Order provides, in effect, that the respondent is not to allow any person other than a CCO or the Western Australian Police (police) access to any computer, telecommunication and/or electronic device capable of storing digital data or information possessed by the respondent without prior approval of the CCO.
Condition 58 of the Supervision Order relevantly provides that the respondent is not to delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs, capable of identifying his activities on a computer, telecommunication and/or electronic device without approval in advance by a CCO or the police.
Condition 59 of the Supervision Order relevantly provides that the respondent is not to conduct searches for, collect, access or be in possession of in either electronic or permanent form images of children, including drawings or sketches, whether indecent or not, with the exception of images of immediate family that are not indecent images if approved in advance by a CCO.
On or about 19 February 2021 the respondent was charged in the Magistrates Court with one offence of contravening, without reasonable excuse, a requirement of the Supervision Order contrary to s 80(1) of the Act. The charge alleged a contravention of condition 58 of the Supervision Order (MC PE 7935/2021).
On 19 February 2021 the respondent appeared in the Magistrates Court in relation to the contravention charge. The respondent pleaded guilty to, and was convicted of, the charge. He was sentenced to a fine of $1,000.
On 10 March 2021 the respondent was charged in the Magistrates Court with four offences of contravening, without reasonable excuse, a requirement of the Supervision Order contrary to s 80(1) of the Act. The four charges alleged contraventions of conditions 43, 55, 58 and 59 of the Supervision Order (MC PE 11204/21, MC PE 11203/21, MC PE 11202/21 and MC PE 11205/21 respectively).
On 17 March 2021 the respondent appeared in the Magistrates Court in relation to the four contravention charges. The respondent pleaded guilty to, and was convicted of, the charges. He was sentenced to 6 months imprisonment for each offence, with the terms to be served concurrently, suspended for 12 months. After being sentenced the respondent was released and remained subject to the Supervision Order.
On 24 March 2021 the respondent was charged in the Magistrates Court with another four offences of contravening, without reasonable excuse, a requirement of the Supervision Order contrary to s 80(1) of the Act. Two of the charges alleged contraventions of condition 46 of the Supervision Order (MC PE 13023/21 and MC PE 13025/21) and the remaining two charges alleged contraventions of condition 55 of the Supervision Order (MC PE 13024/21 and MC PE 13026/21).
On 24 March 2021 the respondent appeared in the Magistrates Court in relation to the additional four contravention charges. He pleaded guilty to, and was convicted of, the charges. He was sentenced for the offences to a global fine of $3000. After being sentenced the respondent was once again released and remained subject to the Supervision Order.
In the weeks leading up to the making of the application the respondent expressed suicidal ideations. Further, while subject to the Supervision Order the respondent’s Risk Management Team formed the view that the respondent had engaged in ‘concerning behaviours’ and that the behaviours indicated that the risk that the respondent posed to the community might not be able to be managed under the conditions of the Supervision Order.The respondent’s Risk Management Team is comprised of officers from the Community Offender Management Unit (COMU), officers from the police Sex Offender Management Squad (SOMS) and the respondent’s treating psychologist.
On 8 June 2021 the applicant, due to the respondent being convicted of the nine contravention offences (contravention offences) and in light of the respondent’s reported suicidal ideations and concerning behaviours, made the application. By the application the applicant seeks the following orders:
1.Pursuant to s 55(1)(a) of the Act, if the Court is satisfied that the respondent has contravened a condition of the Supervision Order, an order that the Supervision Order be rescinded and a continuing detention order be made in relation to the respondent;
2.Alternatively, pursuant to s 55(1)(b) of the Act, if the Court is satisfied that the respondent has contravened a condition of the Supervision Order, an order that the Supervision Order be amended and/or extended in such terms as the Court thinks fit.

Events since the making of the application

On 1 July 2021 I made various programming orders relating to the hearing of the application. On the same date I also made an order under s 53(2)(b) of the Act that the respondent be detained in custody pending the determination of the application.

Sections 53 and 55 of the Act and applicable legal principles

In The State of Western Australia v ZSJ,[6] a case in which the State made an application under div 2 of the DSO Act but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):
As will emerge from the outline below of the statutory framework under the DSO Act and [the Act], the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General. The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'. He went on to say:
'In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].'
Whether or not that has been achieved remains to be seen upon analysis of the provisions. However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying [the Act], with appropriate adaptation in cases involving non-sexual offences.
[6] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].
I respectfully agree with Fiannaca J's observations. In my opinion the case law decided under the DSO Act in relation to applications made under the corresponding provisions to s 53 and s 55 of the Act remains relevant to the determination of applications made under s 53 and s 55 of the Act.[7] Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application under the Act will include cases that have been concerned with proceedings under the DSO Act.
[7] The corresponding provisions in the DSO Act were s 22 and s 23 respectively.
Section 53 of the Act specifies the circumstances in which the applicant may apply for an order under s 55. It is not in issue that in the case of the respondent the circumstances for the making of an application for an order under s 55 exist.
Section 55 of the Act relevantly provides as follows:
(1)If, on the hearing of an application under section 53, the court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the court must ‑
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2)…
(3)In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
The respondent, given that he is subject to the Supervision Order, is an 'offender' to whom the application relates within the meaning of s 55(1).[8]
[8] Act, s 3, par (b) of definition of 'offender' and definition of 'serious offender under restriction'.
The references in s 55(1) to a 'continuing detention order' are references to 'an order that the offender be detained in custody for an indefinite term for control, care, or treatment'.[9] The references in s 55(1) to a 'supervision order' are references to ‘an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30’.[10]
[9] Act, s 3 and s 26(1).
[10] Act, s 3 and s 27(1).
Section 29 of the Act provides:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
The term 'standard condition' is defined in s 3 of the Act to mean, in relation to a supervision order, a condition that under s 30(2) of the Act must be included in the order. Section 30(2) of the Act specifies seven conditions that must be included in any supervision order.
Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that he will substantially comply with the standard conditions set out in s 30(2) before the court can amend and/or extend a supervision order pursuant to s 55(1)(b) or affirm a supervision order pursuant to s 55(1)(c).
For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of a supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that is consistent with, and will enable, the attainment of the general object of the supervision order and the Act, namely the adequate protection of the community by management and mitigation of the risk that the offender will commit a serious offence.[11]
[11] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v Narrier [No 5] [2019] WASC 17 [113]; The State of Western Australia v West [No 6] [2019] WASC 427 [29]; The State of Western Australia v ZSJ [56] ‑ [58].
Even if the court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions set out in s 30(2), this will not necessarily mean that a supervision order should be amended, extended or affirmed. This is because by reason of s 55(3) the paramount consideration, in deciding whether to make an order under s 55(1), is the need to ensure adequate protection of the community. Accordingly, even if the court is satisfied that an offender will substantially comply with the standard conditions of a supervision order, there may be circumstances in which, despite such a finding, the court is not satisfied that releasing the offender on a supervision order will ensure adequate protection of the community.[12]
[12] TheState of Western Australia v Yates [2020] WASC 149[33].

Evidence on the application

At the hearing of the application the applicant tendered without objection, a Book of Materials comprising two volumes, volume 1 being dated 5 November 2021[13] and volume 2 being dated 17 November 2021.[14]
[13] Exhibit 1.1.
[14] Exhibit 1.2.
Volume 1 of the Book of Materials contains a variety of materials relating to the respondent including prison records, medical records, previous judgments, previous reports and records relating to his performance while on the Supervision Order. Volume 1 also contains the particulars of the respondent’s contraventions of the Supervision Order that are relied upon by the applicant as contraventions for the purposes of s 55(1) and an affidavit affirmed by Ms Gabriela Serrano, a Senior CCO employed by the Department of Justice's (Department) Corrective Services Division and based at the COMU, dated 9 June 2021. Ms Serrano's affidavit was affirmed and filed in support of the application at the time of the making of the application.
Volume 2 of the Book of Materials contains the following reports prepared specifically for the application:
1.A report prepared by Dr Gosia Wojnarowska, Forensic Consultant Psychiatrist, dated 15 November 2021 (Psychiatric Report);[15]
2.A Psychological Intervention Progress Report prepared by Ms Julia Morrison, Senior Counselling Psychologist with the Department's Specialist and Forensic Psychological Services (SFPS), dated 14 October 2021 (Intervention Report);
3.A High Risk Serious Offender Treatment Progress Report prepared by Ms Sarah Ballantyne, Senior Counselling Psychologist, with the Department’s Forensic Psychological Service (FPS), dated 11 November 2021 (Treatment Progress Report); and
4.An Adult Community Corrections Performance Report prepared by Mr Luke Carmichael, Senior CCO with the COMU, dated 16 November 2021 (Performance Report).
[15] Dr Wojnarowska is a 'qualified experts' as defined in s 3 of the Act. Her report was prepared and obtained pursuant to s 67 of the Act and in accordance with s 74 of the Act.
At the hearing of the application the applicant also tendered without objection an Occupational Therapy Functional Capacity Assessment Report prepared in relation to the respondent by Mr Carlo Divita, Occupational Therapist, dated 11 May 2021 (Occupational Therapy Report).[16]
[16] Exhibit 2.2.
At the hearing of the application Dr Wojnarowska, Ms Ballantyne and Mr Carmichael were called by the applicant to give supplementary oral evidence.
The respondent did not adduce any evidence at the hearing of the application.
Dr Wojnarowksa was responsible for assessing the respondent for the purposes of, and provided evidence on, the original application made in relation to the respondent under the DSO Act and the review conducted in 2020 under the Act.

The respondent's serious sexual offending and serious sexually motivated offending

In The State of Western Australia v Warmdean[17] Fiannaca J set out in detail the facts of the respondent's sexual offending and sexually motivated offending. My below recital of the respondent’s offending is drawn from his Honour’s judgment.

The offences for which the respondent was sentenced in April 2013

[17] The State of Western Australia v Warmdean [88] - [104].

On 11 April 2013 the respondent was sentenced in the Perth Children's Court for, among other offences, one offence of indecent assault, two offences of aggravated indecent assault and one offence of assault with intent to rob. He was sentenced to a total of 5 months detention for the offences.

The aggravated indecent assault offences and the assault with intent to rob offences committed by the respondent are ‘serious offences’ as defined in s 5(1) of the Act.

Indecent assault

On 12 September 2012 the victim, a 37-year-old woman, was walking in the company of a counsellor in a public reserve in Balga. The respondent, who was 14 years old at the time, approached the victim and grabbed and squeezed her left breast. The victim was shocked and knocked the respondent's hand away. The victim took refuge behind her counsellor. The respondent then stared at the victim and asked to see and feel her breasts. The victim and the counsellor walked away. The respondent continued to stare at, and call after, the victim.

First aggravated indecent assault

At around 7.45 am on 8 November 2012 the respondent, who was 15 years old, was riding his bicycle on a street in Balga. The victim, a 15-year-old female, was walking along the street on her way to school. The respondent rode past the victim and ran his hand along her leg and up under her skirt. The victim knocked the respondent's hand away before breaking into tears. The respondent rode away. The offence was aggravated because of the age of the victim.

Second aggravated indecent assault

At around 3.00 pm on 18 November 2012 the respondent was walking along a bush track in a public reserve area in Balga (a different reserve to the one in which he committed the indecent assault offence). The female victim, who was 55 years old, was walking along the bush track with her dogs in the opposite direction to the respondent. The respondent approached the victim and struck up a conversation about the dogs. The victim became unsettled by the respondent's demeanour. When the victim went to walk past the respondent, the respondent reached out and touched the victim's right breast. The victim knocked the respondent’s hand away. The respondent then produced a Stanley knife, pushed the blade out and pointed the knife in the victim's direction in a threatening manner. The victim cried out which caused the respondent to turn and walk away. The offence was aggravated because the respondent was armed with a weapon.[18]

Assault with intent to rob

[18] As a result of his conduct the respondent was also convicted of the offence of being armed in a manner likely to cause fear.

At approximately 10.30 am on 22 January 2013 the victim, who was a high school student, was walking through the public reserve in Balga in which the respondent had committed the second aggravated assault offence. The victim was on her mobile phone. The respondent, who was still 15 years old, approached the victim carrying a short of piece of wood. The respondent swung the piece of wood at the victim and struck her on the right thigh causing some scratches and redness. The victim fled and the respondent chased her repeatedly shouting, 'Get into the bush'. The victim shouted for help and a nearby car slowed down and at which point the respondent fled.
When the respondent was interviewed by the police about the offence he initially denied being the offender but eventually admitted that he had hit the victim with the piece of wood. The respondent said that his intention was to steal the victim’s mobile phone and money. The respondent said he was angry with himself because he got caught and might get detention.
During the respondent’s sentencing hearing the suspicion that the offence was sexually motivated was raised. However, the magistrate sentenced the respondent on the basis that his sole motivation for committing the offence was to steal from the victim.
In more recent times the respondent has admitted that although he intended to steal property from the victim, the offence was sexually motivated and that he had been watching pornography before committing the offence.

The offences for which the respondent was sentenced in November 2013

On 13 November 2013 the respondent was sentenced in the Perth Children's Court for one offence of aggravated indecent assault and one offence of deprivation of liberty. He was sentenced to a total of 12 months detention for the offences. Both offences are 'serious offences' as defined in s 5(1) of the Act.
On the morning of 19 February 2013 the respondent, who was 15 years old at the time, took a kitchen knife from his home and rode his scooter to the centre of the reserve in Balga in which some of his prior offending had occurred. The respondent stopped near the centre of the park where he sat and waited.
Between 9.00 am and 9.30 am the respondent saw two young women jogging in the reserve. One of the women, who was 19 years old, was pushing a pram in which she had her 2-year-old daughter.
The respondent watched the women for a short time before approaching them with the knife in his right hand. The respondent grabbed one of the women, the victim, around the chest and pointed the end of the knife towards her face. The respondent attempted to get the victim to follow him saying, 'Follow me, I won't hurt you or kill you, just follow me'. The other woman tried to pull the victim away from the respondent. The respondent continued to hold the victim around the neck for several minutes repeatedly saying, 'Follow me'. The respondent then gestured with the knife towards some bushes saying to the victim, 'Come with me, just you'. The victim did not fight the respondent's grip because she feared she would be stabbed. After several minutes the respondent let go of the victim and held her upper arm tightly, pulling her towards the bushes. The victim tried to give the respondent her phone but he said, 'I don't want it, just follow me'. The respondent then stood close to the victim and placed his left palm on her stomach on top of her clothes while still holding the knife in his right hand. The respondent said, 'Let me feel you'. The respondent then tried to drag the victim towards the bushes. The other women had hold of the victim and was dragged along a couple of metres towards the bushes. The victim began yelling for help at which point the respondent let go and ran off through the bushes.
When the respondent was interviewed by the police on 26 April 2013 he said that he had gone to the park on his scooter and had thrown his scooter into the bush intending to grab 'and pull them into the bush'. He said he watched the women for 'a bit'. Initially the respondent denied that his conduct was sexually motivated claiming that he only intended to rob the victim. However, he eventually agreed that his offending was sexually motivated.
The indecent offence was aggravated because the respondent was armed with a weapon.

The offences for which the respondent was sentenced in July 2016

On 27 July 2016 the respondent was sentenced for one offence of aggravated indecent assault and one offence of assault occasioning bodily harm. The offences were committed during the one incident. The aggravated indecent assault was the last of the respondent’s sexual offences and is a ‘serious offence’ as defined in s 5(1) of the Act.
Between 9.10 am and 9.30 am on 18 December 2015 the respondent, who was 18 years old, followed a 60-year-old woman as she walked from the West Leederville train station along a footpath near some units in Subiaco. The victim walked through a gap in a fence that led to her unit complex. The respondent grabbed the victim from behind, around her throat and waist. The respondent lifted the victim off the ground and threw her onto the ground. The respondent then removed the victim's pants and underwear while keeping her face down in the sand. The respondent kept the victim on the ground using significant force, kneeing the victim in the ribs. An unknown person shouted out at the respondent which caused him to flee. The victim suffered grazing to her knees and foot, bruising to her throat, cuts to her face and fractured ribs on her left side.
The respondent was interviewed by the police on 30 December 2015. The respondent eventually admitted that he had attacked the victim claiming that he had intended to rob her and that he had in fact stolen money. No money was actually stolen.
The respondent was sentenced to 22 months imprisonment for the aggravated indecent assault. No separate penalty was imposed for the offence of aggravated offence occasioning bodily harm as the bodily harm was one of the aggravating circumstances of the aggravated indecent assault.

The pattern of the respondent’s offending

In The State of Western Australia v Warmdean Fiannaca J encapsulated the pattern of the respondent's above referred to sexual and sexually motivated offending in the following terms:[19]
It is clear from the circumstances of the offences and from the respondent's most recent accounts that there has been a pattern to his sexual offending. He committed each of the offences for sexual gratification, at a time when he was sexually aroused, usually after watching pornography. Even the assault with intent to rob was sexually motivated. All of the offences were opportunistic, but also predatory in nature. There was an element of rudimentary planning in most instances. The offences were committed in public places. There were few persons around, but he was not deterred from attacking the woman who was jogging with her sister or the woman with dogs.
Significantly, there has been an escalation in the seriousness of the offences. Generally, each successive offence involved a more overt and serious sexual assault and a greater degree of violence. There has also been a pattern of using weapons to intimidate his victims, including knives which were quite dangerous. Although on the last occasion he did not use a weapon, he used brute force to overcome a much smaller and weaker victim, causing her significant injuries.
[19] The State of Western Australia v Warmdean [113] - [114].

The decision of Curthoys J in TheState of Western Australia v Warmdean [No 2]

In deciding that the respondent remained a high risk serious offender, but that the need to ensure the adequate protection of the community against the risk posed by him could be met by rescinding the CDO and releasing the respondent on the Supervision Order, Curthoys J relied in part on the fact that a number of the recommendations that had been made by Fiannaca J for the respondent's ongoing care and treatment while subject to the CDO had been implemented. The recommendations that Curthoys J found had been implemented, either in part or in full, were as follows:[20]
1.The respondent had completed an Intensive Sex Offender Treatment Program (ISOTP) on 10 August 2020;
2.Since 20 September 2018 the respondent had engaged in individual counselling sessions with a senior counselling psychologist directed at providing him with assistance to mitigate some of his deficits in memory, learning and interpersonal skills, and addressing his abuse of alcohol and substances;
3.Consideration had been given to providing the respondent with culturally appropriate mentoring, ideally with an Aboriginal mentor. Although a suitable mentor had not been identified, the respondent would be provided with 12-hour support by support workers some of whom would be Indigenous Australians. The support to be provided by the support workers would be beyond the support that would be provided by a mentor; and
4.Stable and supported accommodation had been located for the respondent.
[20] The State of Western Australia v Warmdean [No 2] [30] - [49].
In arriving at his decision Curthoys J also placed reliance on Dr Wojnarowska's evidence. Dr Wojnarowska's evidence was that since she had last reviewed the respondent for the purposes of the original application under the DSO Act he had clearly made progress, had retained a lot of material, and was very open and insightful.[21] Dr Wojnarowska's evidence was also that the high risk of the respondent committing further sexual offences if he was not subject to a restriction order could be mitigated by appropriate psychological treatment and management by the COMU.[22] In short, Dr Wojnarowska's evidence was that she was supportive of the respondent being released into the community on a supervision order with appropriate conditions.[23]
[21] The State of Western Australia v Warmdean [No 2] [51].
[22] The State of Western Australia v Warmdean [No 2] [52].
[23] The State of Western Australia v Warmdean [No 2] [51].
Curthoys J, in arriving at his decision to release the respondent on the Supervision Order, also took into account the fact that a National Disability Insurance Scheme (NDIS) plan for the respondent had been approved and that the level of supervision and training provided for under the plan would ensure a high degree of supervision for the respondent once he was released into the community.[24] His Honour noted that although the primary role of the NDIS plan would be to provide support for the respondent's disabilities, the physical presence of a person or persons in the respondent’s accommodation with the respondent from 7.00 am to 7.00 pm would ensure that he was closely supervised.[25]
[24] The State of Western Australia v Warmdean [No 2] [55].
[25] The State of Western Australia v Warmdean[No 2] [55].
Curthoys J summarised his reasons for rescinding the CDO and releasing the respondent on the Supervision Order in the following terms:[26]
The test is not whether the respondent can be released on the basis that he poses no risk to the community but whether his release into the community poses an unacceptable risk. No decision in these matters is easy.
There have been some significant changes in the respondent's circumstances since the div 2 hearing in 2018 and most of the court experts' recommendations, as identified by Fiannaca J in his judgment, have been implemented in part, or in full.
Dr Wojnarowska's evidence is that the respondent can be released into the community provided suitable conditions are in place under the HSRO Act as proposed in the Community Supervision Assessment are imposed.
I am satisfied that subject to the conditions I order and having regard to the matters contained in the Book of Materials, the oral evidence, and in particular Dr Wojnarowska's reports, as well as the need to ensure adequate protection of the community, that a SO should be made.
[26] The State of Western Australia v Warmdean[No 2] [74] - [77].

The respondent's personal circumstances

The respondent is now 24 years old. He has spent a significant portion of his childhood years in detention and a significant portion of his young adult life in prison.
The respondent has very limited familial support in the community.
The respondent's father died in 2018 while the respondent was in custody. The respondent continues to experience grief issues arising from the loss of his father. Since the death of his father the respondent's relationship with his stepmother has deteriorated.
The respondent's mother died recently. The respondent's mother did not raise him and was a source of neglect and abuse in his childhood. Nonetheless, the death of his mother has compounded the grief issues that he has arising from the passing of his father.
The respondent has two brothers who are in other prisons. He has reported enjoying occasional contact with them.
Since being returned to prison the respondent has had regular telephone contact with his sister. He describes her as a source of support.
The respondent suffers from neurological deficits that affect specific areas of cognition and functioning. The respondent does have a cognitive disability.[27]
[27] The State of Western Australia v Warmdean [133] - [150]; The State of Western Australia v Warmdean [No 2] [11].
The respondent has been assessed as meeting diagnostic criteria for Foetal Alcohol Spectrum Disorder (FASD) and as a consequence has been provided with funding through the NDIS.
The respondent has been diagnosed with anxiety and depression and is taking prescribed antidepressant medication.
Prior to committing the first of his sexual offences as a 14‑year‑old in September 2012, the respondent had accrued a very large number of convictions for a variety of offences including criminal damage, stealing, attempted stealing, stealing a motor vehicle, attempting to steal a motor vehicle and aggravated burglary. Further, after being convicted as a juvenile of his various sexual offences and while still a juvenile, the respondent committed a significant number of stealing, burglary and aggravated burglary offences.[28]
[28] Respondent's criminal record (Exhibit 1.1, pages 2 - 14).

The respondent's contraventions of the Supervision Order

For the purposes of the application, or more specifically for the purposes of its contention that the court should under s 55(1) find on the balance of probabilities that the respondent has contravened a condition of the Supervision Order, the applicant identifies and relies upon 13 contraventions of the Supervision Order. Nine of the relied upon contraventions are the contravention offences. The remaining four relied upon contraventions were not made the subject of a charge under s 80(1) of the Act (uncharged contraventions). However, the respondent admits committing the uncharged contraventions.

The contravention offences

I have already referred in broad terms to the nature of the contravention offences. I turn now to refer in more detail to the facts of the contravention offences.[29]

Charge MC 7935/21 - contravention 1

[29] Particulars of Contravention Allegations (Exhibit 1.1, pages 393 - 399).

On 16 February 2021 the respondent's mobile phone was reviewed by his CCO. The review revealed that a message and a possible nude photograph from an unknown Facebook user had been deleted on the day prior to the review.
The respondent admitted to the CCO having deleted a message which included a link to a website and which was similar to other messages previously received by him inviting him to join 'sex chat' rooms.
The respondent stated to the CCO that there could have been a nude photograph on his phone which had been deleted. However, he also stated that he could not remember exactly if this had occurred.
The respondent also stated to the CCO that he had deleted an entire conversation thread between himself and a female with whom he had been in regular contact. He stated that he and the female may have 'liked' each other but that the relationship had broken down and that as a result he had deleted all of his interactions with her.
The respondent's deletion of the nude photograph, the message and the conversation thread contravened condition 58 of the Supervision Order (contravention 1).

Charges MC PE 11202/21-MC PE 11204/21 - contraventions 2 - 4

On 2 March 2021 the respondent’s mobile phone was reviewed by his CCO. The review of the phone revealed the following:
1.The deleted items folder on the phone contained a quantity of images which included multiple images of a female associate of the respondent and an image of two young women dressed in bikini swimwear. The respondent did not seek the permission of his CCO or the police to delete the images from his phone. The respondent’s deletion of the images contravened condition 58 of the Supervision Order (MC PE 11202/21) (contravention 2);
2.The phone contained photographs which displayed the respondent posing alongside two male peers. The photograph had been taken from a distance. It was evident that the respondent had not taken the photograph and that it had been taken by someone who the respondent had allowed to use his phone for the purpose of doing so. The respondent's conduct in this regard contravened condition 55 of the Supervision Order (MC PE 11203/21) (contravention 3); and
3.The YouTube search history on the phone included, contrary to condition 43, videos entitled 'South African Ladies Show off their b**bs, curves and stunning beauty' and 'Survival Skills: Primitive Life-Fishing skills from deep pits …' The ‘Survival Skills' video depicted a person/creature attacking a young woman on her back on the ground and holding her spread legged by the ankles. The video was suggestive of an attack of a sexual nature (MC PE 11204/21) (contravention 4).

On 10 March 2021 the respondent attended the SOMS offices. He was arrested. He declined to participate in a record of interview.

Charge MC PE 11205/21 - contravention 5

On 8 March 2021 the respondent’s mobile phone was reviewed by his CCO. The review uncovered message threats which contained images of children suspected to be images of the respondent's immediate family. The respondent had failed to disclose the images at any time prior to March 2021 and did not seek permission to be in possession of the images. The respondent’s possession of the images in the absence of authorisation contravened condition 59 of the Supervision Order (contravention 5).

Charges MC PE 13023/21 and MC PE 13024/21 - contraventions 6 - 7

On 6 March 2021 the respondent was with his support worker at McDonald's in Perth. While at McDonalds the respondent came across his 16 year old brother. The respondent spoke to his brother for a few minutes with the support worker. The respondent had opportunity to break away from his contact with his brother but failed to do so. In speaking to his brother and not breaking away from his contact with his brother the respondent breached condition 46 of the Supervision Order (MC PE 13023/21) (contravention 6).
Further, while in contact with his brother the respondent requested his support worker to use his, that is, the respondent’s, mobile phone to take a photograph. The respondent, in breach of condition 55 of the Supervision Order, gave his mobile phone to the support worker who used it to take a photograph for the respondent (MC PE 13024/21) (contravention 7).
On 10 March 2021 the respondent attended the SOMS offices. He was arrested for the offences. He declined to participate in an interview.

MC PE 13025/21 - contravention 8

On 8 March 2021 the respondent contacted his 16-year-old brother by mobile phone messaging and made plans to meet his brother. The respondent was driven to the Noranda Shopping Centre by his support worker where they picked up the respondent's brother and drove to the Mirrabooka Shopping Centre to spend time together. Prior to meeting his brother the respondent did not seek the permission of his CCO to do so. The respondent’s conduct in meeting his brother without obtaining permission to do so was in contravention of condition 46 of his Supervision Order (contravention 8).
On 10 March 2021 the respondent attended the SOMS offices. He was arrested for the offences. He declined to participate in an interview.

MC PE 13206/21 - contravention 9

On 9 March 2021 the respondent attended a meeting with his CCO. A review of his mobile phone was conducted. The review revealed that there had been a Facebook log in in the name of 'Beau Wade'. Beau Wade was a friend of the respondent with whom the respondent had recently been in contact with. The respondent denied knowing the password for the ‘Beau Wade’ account. The respondent's conduct in allowing Beau Wade to access Facebook using his mobile phone was in contravention of condition 55 of the Supervision Order (contravention 9).
On 10 March 2021 the respondent attended the Office of SOMS. He was placed under arrest. He declined to participate in an interview.

Uncharged contraventions

The facts of the uncharged contraventions are as follows.[30]

Contravention 10

[30] Particulars of Contravention Allegations (Exhibit 1.1, pages 393 - 399).

On 4 February 2021 the respondent attended the residence of a female not previously known to him in the company of his support worker. The female was a friend of the support worker. The respondent and his support worker were at the residence for approximately two hours during which time the respondent went inside the residence to go to the toilet on at least one occasion. The respondent was aware that by being at the residence he was breaching the Supervision Order.
At a supervision session on 5 February 2021 the respondent initially asserted that he had waited in the car while the support worker visited the female friend. He next asserted that he had entered the property out the front. Ultimately he disclosed that he had entered the residence once to go to the toilet, that numerous females were present at the residence and that he believed that children may also have been present although he did not see them or interact with them. The respondent also disclosed that he engaged with the females who were present at the residence and that alcohol was being consumed. The respondent denied that he had consumed alcohol or used any illicit substances.
By entering the residence in which females were present without prior approval the respondent contravened condition 44 of the Supervision Order (contravention 10). Condition 44 of the Supervision Order provides that the respondent is not to enter any residential address in which a female is present, resides or is known to reside unless authorised in advance by a CCO.The respondent was issued with a written warning letter by a CCO for this contravention.

Contravention 11

On 9 February 2021 the respondent's CCO identified that the respondent had intentionally concealed his movements on 4 February 2021 by failing to record the visit to the residence of the female in his daily diary. The respondent's failure to record the visit to the residence was in contravention of condition 37 of the Supervision Order (contravention 11). Condition 37 of the Supervision Order provides that the respondent is to maintain a daily diary of his movements, activities and associations as directed by a CCO and is to present the diary to a CCO and/or a police officer upon request. The respondent was issued with a written warning letter by a CCO for this contravention.

Contravention 12

On 6 February 2021 the respondent purchased a smart phone. On 9 February 2021 the phone was reviewed by the respondent's CCO during a supervision session.
During his review of the phone the CCO identified that the respondent had received and subsequently deleted an early image of a female who was unknown to him and had deleted images of children who were family members. By deleting the images without prior approval the respondent contravened condition 58 of the Supervision Order (contravention 12). The respondent was issued with a written warning letter by the CCO for this contravention.

Contravention 13

During the same supervision session on 9 February 2021 the CCO also discovered from his review of the respondent's phone that there were within his Facebook chat application images of child family members. By possessing these images within the Facebook chat application without prior approval the respondent was in contravention of condition 59 of the Supervision Order (contravention 13). The respondent was issued with a written warning letter by the CCO for this contravention.

The respondent's behaviour, attitudes and conduct while on the Supervision Order prior to being returned to prison

General attitude[31]

[31] Performance Report, pages 7 - 8 and 9 (Exhibit 1.2, pages 478 - 479 and 480).

The respondent maintained a sense of ambivalence towards community supervision after being released on the Supervision Order. He regularly and frequently advised his CCO that he felt as though the Supervision Order was too onerous and that he would be better off returning to custody. He maintained the stance that he is more comfortable in prison because it is an easier and less restrictive lifestyle in contrast to being subject to the Supervision Order. He expressed on numerous occasions that his limited desire to remain in the community is attached to his desire to be closer to some of his immediate family and peers. However, he also said that he is often also drawn to his family and friends in custody including his biological brothers and some peers who he views as being brothers to him.
On 5 February 2021 the respondent stated to his CCO that if he was to intentionally self-sabotage he would do so by reoffending in a violent manner or by committing property offences. He stated that his intention would be to make sure that he was returned to custody where he believed that he had more freedom than under the conditions of the Supervision Order.
The respondent's attitude towards the Supervision Order were a constant target of intervention by both the respondent's CCO and his psychologist and efforts were made to address his ambivalence and bolster his motivation. However, the respondent was largely resistant to these efforts. Further, the respondent's concrete thinking and problem solving style complicated matters further with any progress made often being attenuated by non-compliance warnings and a subsequent loss of motivation.
The respondent's compliance with the Supervision Order did improve after his formal contraventions in March 2021. The respondent appeared to demonstrate an improvement in his motivation and an improved commitment to compliance towards the latter stages of his time in the community. However, his underlying hostility and ambivalence continued to pervade his engagement and approach, particularly if he was challenged or if issues of compliance were raised.

Suicidal ideations

I have referred to the fact that volume 1 of the Book of Materials contains an affidavit sworn by Ms Gabriela Serrano affirmed on 9 June 2021. None of the contents of Ms Serrano's affidavit were challenged by the respondent. In her affidavit Ms Serrano deposes to the following matters.[32]
[32] Affidavit of Ms Serrano, par 10 (Exhibit 1.1, pages 175 - 181).
On 11 May 2021 the respondent attended a supervision appointment with his CCO. During the appointment the respondent stated that he was experiencing suicidal thoughts. In order to give the respondent some respite in the context of his suicidal ideation he was granted a curfew extension to 7.30 pm to allow him to attend Scarborough Beach with his support worker from Plan and Grow. The respondent attended Scarborough Beach without issue.
Later on 11 May 2021 the respondent continued to express suicidal ideation. He was therefore taken to Royal Perth Hospital (RPH).
At 11.50 pm on 11 May 2021 the respondent was discharged from RPH. He was prescribed sleeping tablets. He returned home by 12.08 am on 12 May 2021.
At an appointment with his general practitioner in the days following his admission to RPH the respondent was prescribed antidepressant medication.
On 4 June 2021 the COMU was notified by Plan and Grow that an ambulance had been called to take the respondent to hospital as he was again expressing suicidal ideation. Plan and Grow also called the police who attended the property until the ambulance arrived. The respondent was taken to St John of God Hospital in Midland (SJGH Midland).
The respondent was discharged from SJGH Midland on the night of 4 June 2021. He was provided with further antidepressant medication. He returned home by 12.18 am on 5 June 2021.
On 8 June 2021 the respondent attended a supervision appointment with his CCO. The respondent informed his CCO that on 4 June 2021 he had attempted suicide by trying to wrap a cord around his neck and by grabbing a kitchen knife. The respondent told his CCO that his plan was to go outside and cut his throat with the knife but that his support worker saw him with the knife and grabbed the knife off him. The respondent’s account indicated that the support worker was required to use some physical restraint in order to take the knife off him. The respondent also reported trying to stab himself in the stomach with a pen and hitting his head against a wall.
Prior to being returned to prison the respondent's suicidal ideation was being monitored by the COMU, Plan and Grow, and a senior counselling psychologist from the SFPS and the FPS. Further, the respondent was still being prescribed anti-depressants by his general practitioner.

Concerning behaviours

In her affidavit Ms Serrano also deposes to 'concerning behaviours' of the respondent that were additional to his contraventions of the Supervision Order and which in part prompted the making of the application.[33]
[33] Affidavit of Ms Serrano, par 11 (Exhibit 1.1, page 175 - 181).
Before detailing the deposed to 'concerning behaviours' I make two points. First, although the applicant does not specifically rely upon any of the 'concerning behaviours' as contraventions for the purposes of s 55(1) (even though some of the behaviours did in fact amount to contraventions of the Supervision Order) the applicant does point to the 'concerning behaviours' in support of its contention as to the appropriate order to be made consequential upon a finding that the respondent has contravened conditions of the Supervision Order. Second, the respondent does not dispute that he did engage in the 'concerning behaviours'.
The 'concerning behaviours' deposed to by Ms Serrano are as follows.

Deceitful behaviour

Throughout the time that the respondent was in the community subject to the Supervision Order his CCO attempted to distinguish between conduct of the respondent caused by his cognitive deficits and deliberately deceitful behaviour. The respondent did engage in deliberately deceitful behaviour.
On 9 March 2021 Plan and Grow informed the COMU that the respondent was seeking to make contact with his 16-year-old brother. Plan and Grow reported that they had attempted over several hours to persuade the respondent to contact the COMU and to request permission to meet with his brother in person. Plan and Grow reported that the respondent acknowledged that he was by the conditions of the Supervision Order required to contact the COMU to request permission to meet his brother but indicated that he was not going to do so for fear that he may be denied permission. The respondent advised Plan and Grow that he would see his brother and would report the contact to his CCO after the event. In an attempt to conceal his behaviour the respondent asked his support worker not to inform the CCO or the management staff at Plan and Grow of his contact with his brother.
On several occasions the respondent was found to have deleted from his electronic devices images and content including nude images of females and images of females in bikini swimwear. The nude images of females constituted pornography under condition 43 of the Supervision Order. The deletion of the images occurred in contravention of condition 58 of the Supervision Order. The respondent was issued with instructions by the COMU and the SOMS on several occasions in relation to him accessing pornographic images.
The respondent appeared to come into possession of pornographic images on at least two occasions via his mobile telephone before deleting the images from his phone. His possession of these images was revealed through viewing other information on his telephone including conversations that he had with peers. The respondent subsequently admitted to deleting the images.

Frustration with requirements of the Supervision Order

On 11 May 2021 the respondent, during a supervision appointment with his CCO, expressed frustration with the requirements of the Supervision Order and with not being able to do what he wanted. The respondent reported extreme frustration and that he felt stuck between a rock and a hard place. The respondent stated that he felt that his options for escaping the situation were death or prison. The respondent had in fact first reported these beliefs on 5 February 2021 and had on that occasion said that if he was to intentionally self-sabotage by reoffending he would do so in a violent manner or by committing property offences.

Sexual preoccupation, possible deviant sexual interest and no appropriate sexual outlet

When the respondent was released from custody on the Supervision Order he was in possession of copious quantities of highly sexualised images of women including images showing women partially naked and completely naked. The respondent voluntarily surrendered the images to the COMU on the day of his release.
On 21 January 2021 Mr Carmichael, having reviewed the surrendered material, offered to return some of the material to the respondent so that he had a sexual outlet. However, the respondent refused to accept the return of the material on the basis that he did not want to find himself in breach of the Supervision Order.
Subsequently, the respondent’s Risk Management Team became concerned that the respondent’s surrender of his sexualised images of women had contributed to him accessing child focussed material including watching the television program 'Dance Moms' (which follows the training and careers of children in dancing and entertainment and which often shows pubescent and pre-pubescent females in crop top and short form fitting active wear). On 24 January 2021 the respondent admitted watching, and masturbating to, 'Dance Moms'. He also admitted to watching videos on his support worker's Stan video streaming account which depicted teenagers engaging in sexual acts.
Although the respondent continued to deny any sexual pre‑occupation throughout the time that he was in the community, it became apparent from reviews of his mobile phone and from discussions with him that he was struggling with the lack of a sexual outlet.
On 13 April 2021 the respondent disclosed to Mr Carmichael increased sexual pre-occupation. The respondent reported that on several occasions he had been in the city, had seen females that he did not know, had become sexually aroused by seeing the females, and had then found a secluded location such as a public toilet to masturbate.
On 16 April 2021 a check of the respondent's devices at his home by Mr Carmichael revealed that he had viewed various YouTube videos depicting female children under the age of 18 years, including prepubescent females, completing gymnastic and dance related stretches.
On 20 April 2021 the respondent admitted to Mr Carmichael that he had watched the YouTube videos for the purpose of achieving sexual gratification. The respondent also admitted that he was attracted to teenage females and that prior to being sentenced to his last term of imprisonment he had engaged in sexual relationships with females aged 15-16 years. The respondent reported that his attraction to teenagers had intensified since he had been approached by several underage females in the Perth Central Business District. He reported that although he had 'flirted' with these females he dealt with these approaches appropriately but that he had been 'frustrated' that he 'could not do anything' because of the Supervision Order.

Vulnerable internet based behaviour caused by cognitive deficits

A review of the respondent's Facebook messenger chat history by his CCO revealed that since 6 February 2021 the respondent had indicated a willingness/desire to engage in 'sex video chats' and 'personal chatting girls clubs' with internet strangers (without realising these were accounts of fictitious people).

Risk to others

On 8 June 2021 the respondent reported that on 4 June 2021 near the Perth Train Station he nearly became involved in a physical altercation with an older man. The respondent reported that he became upset with an older male who was 'picking' on a man he described as his 'uncle' in the city. The respondent’s account indicated that both men were visibly aggressive towards each other at the time. The respondent reported that he was stopped from physically assaulting the older man by his support worker who had to physically pull him away to stop the altercation.

Daily activities[34]

[34] Performance Report, pages 10 - 11 (Exhibit 1.2, pages 481 - 482).

The respondent's primary activities while in the community centred around going to shopping centres, loitering in the city in company with his support workers and antisocial peers and spending copious amounts of time on social media. The respondent demonstrated a lack of interest in engaging structured pro-social activities. The primary driver behind the respondent's associations with antisocial peers appeared to be a sense of loneliness and isolation.

Prior to being returned to custody the respondent was making some progress in this area and was actively seeking approval to attend a gym with one of his support workers. On 19 May 2021 approval was given for this to occur. However, the plan was put on hold while financial approvals were being sought. The plan had not progressed by the time that the respondent was returned to custody.

Urinalysis testing[35]

[35] Performance Report, page 14 (Exhibit 1.2, page 485).

While in the community the respondent was subjected to eight urinalysis tests. He returned negative results on each occasion.

Support provided to the respondent by Plan and Grow while in the community on the Supervision Order[36]

[36] Performance Report, pages 9 - 10 (Exhibit 1.2, pages 480 - 481).

The respondent was granted a NDIS funding plan which allocated sufficient funds to allow for his accommodation and full time support. Accordingly, from the time of his release on the Supervision Order the respondent had the full time support of the supported independent living agency, Plan and Grow. Plan and Grow's support of the respondent was funded by the NDIS.
It was proposed that the core support to be provided by Plan and Grow to the respondent would be to assist him in his development of skills and the capacity to live independently.
Prior to the respondent's release on the Supervision Order Plan and Grow had limited experience in working with sexual offenders and no prior experience working with offenders who had been deemed to be high risk serious offenders under the Act. Accordingly, the COMU provided training to Plan and Grow's support workers on numerous occasions both before and after the respondent's release on the Supervision Order. Nonetheless, there were several instances where Plan and Grow staff appeared to have been complacent or to have facilitated the respondent contravening the Supervision Order (for example, by taking him to a female's address, signing into private streaming accounts his smart television and taking photographs with his phone). This obviously impacted on the extent of the respondent's compliance with the Supervision Order.
Plan and Grow support workers do not employ restrictive practices and therefore will not physically prevent the respondent from engaging in conduct. Rather, the support workers attempt to assist the respondent to make his own decisions.

Support provided to the respondent by Uniting WA while in the community on the Supervision Order[37]

[37] Performance Report, pages 15 - 16 (Exhibit 1.2, pages 485 - 486).

The respondent was accepted into the Uniting WA Specialist Re‑entry Support Program prior to his release on the Supervision Order.
At the commencement of the Supervision Order an interagency meeting was held between the COMU, the respondent's NDIS funded supports and Uniting WA. It was agreed that due to the respondent's 24 hour 7 days a week NDIS funded supports (Plan and Grow) Uniting WA would defer their engagement with the respondent until they were requested by the COMU to become involved. It was envisaged that Uniting WA would commence to provide support when the respondent's NDIS plan was reviewed in June 2021 when it was expected that there would be a decrease in NDIS funding and support.
On 19 May 2021 COMU proposed the re-engagement of Uniting WA to assist the respondent to engage in recreational and vocational activities. However, Uniting WA's re-engagement had not commenced by the time that the respondent was returned to custody.

The respondent's behaviour in prison since being placed on the Supervision Order[38]

[38] Treatment Progress Report, page 3 (Exhibit 1.2, page 447); Performance Report, page 15 (Exhibit 1.2, page 486 - 487).

The respondent has incurred no formal incidents or charges relating to misconduct since his return to prison.
On 13 September 2021 Mr Carmichael received information that the respondent had disclosed to two persons who had visited him that he had been using substances while in custody, specifically cannabis, methylamphetamine and suboxone. As a result of receiving this information, on 13 September 2021 Mr Carmichael contacted Hakea Prison to request that the respondent be subjected to urinalysis. The test was conducted on 15 September 2021 and returned a negative result to all substances.
On 14 October 2021 Mr Carmichael conducted an in-person prison visit with the respondent. Mr Carmichael discussed with the respondent the reports of his substance use. The respondent told Mr Carmichael that he had been using substances while in custody. The respondent stated that he had been smoking cannabis and injecting suboxone. The respondent stated that he evaded detection on substance tests because he knew how to play the system. The respondent stated that he was no longer using substances as the person who had been supplying his unit had been released from custody with the result that he and his peers no longer had any access to any substances. The respondent stated that he was 'waiting' for another supplier.
The respondent informed Mr Carmichael that he had been using illicit substances with his peers primarily for recreational purposes. The respondent stated that he had been consuming these substances before he found out that his mother had died and that he was not using them as a coping mechanism, but that there was an element of coping attached to his use.
Mr Carmichael asked the respondent if he had intentionally relayed the information regarding his substance use in the hope that Mr Carmichael would learn of the use and relay the information to the courts which would in turn hinder his prospects of release on a supervision order. The respondent agreed that this had partially been his intention. In Mr Carmichael's view the respondent's disclosure of his substance use presented as him making an attempt to self-sabotage his prospects of release.
On 24 October 2021 the respondent returned a further negative urinalysis sample.
On 14 October 2021 the respondent presented to Mr Carmichael with a significant number of superficial cuts to his arms. The respondent stated to Mr Carmichael that he had used a razor blade from a razor to cut himself as a means of distracting himself from his emotions. The respondent stated that he had considered cutting deeper and felt that if he was not in custody he would have done so.
On 14 October 2021 the respondent's conduct in cutting his arms resulted in him placed on the At Risk Management System (ARMS). The respondent was managed on a low ARMS regime comprised of four hourly observations and a once weekly review by the Prisoner Risk Assessment Group. The respondent was removed from ARMS on 29 October 2021.

Dr Wojnarowska's evidence

Psychiatric Report

Dr Wojnarowska’s report reveals the following.
Dr Wojnarowska interviewed the respondent at Hakea Prison on 22 September 2021.
The respondent was polite and appropriate in his interactions during the interview. His comprehension was sufficient to enable Dr Wojnarowska to conduct a meaningful assessment of him. There was no evidence of impression management and the respondent seemed to be sincere in most of his answers.
The respondent openly expressed doubts about his ability to successfully complete the Supervision Order. He appeared to be overwhelmed by the number of conditions of the Supervision Order and the effect they were having on his life. He stated that he was not looking forward to the day of his release as he felt he belonged in prison. He stated that he had 'mates and family here'.
The respondent told Dr Wojnarowska that his psychological counselling in the community was predominately focussed on his family problems and his emotional response to his family dynamics. The respondent stated that during counselling he was not forthcoming with details related to his sexual offending because he still experienced trust issues related to the government and associated his psychologist to be part of the government structure.
The respondent was able to identify that stress, boredom and loneliness were causal factors in him using substances and obsessively viewing pornography which then lead to him offending.
The respondent told Dr Wojnarowska that he started to 'slip' around February/March 2021 and that despite receiving warnings he mentally disengaged with the supports provided to him including psychological counselling. He stated that his mental state deteriorated rapidly and he experienced a 'breakdown' prior to being returned to prison. He stated that he became suicidal and that he had 'grabbed a cord and tried to strangle myself'. He stated that on another occasion he grabbed a knife and threatened to stab himself but was saved by his support worker.
When Dr Wojnarowska questioned the respondent about the conditions of the Supervision Order, the respondent stated that he had no objection to the conditions that restricted his use of drugs and alcohol, that imposed a curfew on him and that required him to be subject to Global Positioning System (GPS) monitoring. He stated that he found the conditions that required him to obtain approval before attending family gatherings or before visiting people difficult. He stated that the hardest condition was the condition that restricted his contact with his younger nieces, nephews, cousins and brother who were still under the age of 18. He stated that he is unable to pursue or engage any form of intimate relationship due to the requirement that he disclose his offending history. He stated that the prospect of his offending history being exposed to the wider community makes him feel embarrassed and concerned about his safety.
The respondent told Dr Wojnarowska that he thinks about sex but that it 'doesn’t bother me anymore'. The respondent denied being preoccupied with sex or being at risk of sexually reoffending.
Dr Wojnarowska's psychiatric diagnosis of the respondent has not changed. In her opinion the respondent fulfils the diagnostic criteria for Antisocial Personality Disorder and Substance Use Disorder currently in remission. In Dr Wojnarowska's opinion the respondent's FASD diagnosis is highly relevant to the assessment of his treatment needs and his ability to comply with a management plan in the community.
Dr Wojnarowska undertook an assessment of the respondent's risk of committing further sexual offences. In doing so she made use of three risk assessment tools, the Static-99R, the Hare Psychopathy Checklist-Revised (PCL-R) and the Risk for Sexual Violence Protocol (RSVP).
The respondent's Static-99R score has not changed since Dr Wojnarowska's last assessment of him. The respondent's score placed him within the high-risk category of reoffending. Offenders with the same score as the respondent have a 25% risk of committing a sexual offence within 5 years. Dr Wojnarowska notes that results from the use of Static-99R underestimate the risk for the Indigenous population.
The respondent's score on the PCL-R has not changed since Dr Wojnarowska's last assessment of him. The respondent's score was in the low-moderate range and below the threshold usually required to confirm a diagnosis of psychopathy. The respondent's score on the PCL-R social deviance scale reflects the respondent's impulsivity, poor behavioural control, early behavioural problems, juvenile delinquency and revocation of conditional release. Research suggests that impulsivity improves with age in most individuals and can also improve with appropriate treatments.
In making use of the RSVP Dr Wojnarowska identified a large number of risks factors present in the respondent's case including the following:
1.Chronicity and diversity of sexual violence;
2.Escalation in the frequency and severity of offending;
3.Physical coercion in sexual violence;
4.Problems with self-awareness: The respondent has a history of major deficits in this area which are identified as lack of confidence, communication problems and low assertiveness. During the assessment the respondent demonstrated an ability to clearly communicate his difficulties and presented as having insight into his deficits. He also presented as more confident and realistic about his situation;
5.Problems with stress and coping: There is no evidence that the respondent resorted to using illicit drugs while in the community and it appears that his use of pornography to meet his sexual needs rather than as a coping mechanism. However, it is clear that the respondent remains susceptible to decompensation during periods of stress as evidenced by his mental decline and self-harm attempts while in the community;
6.Problems resulting from child abuse: The respondent has never received any counselling in relation to his own victimisation. Undoubtedly there is an association between the respondent's early childhood trauma and offending;
7.Sexual deviance: The element of deviant behaviour is present in the respondent's sexual offending;
8.Major mental illness: There is no evidence of a major mental illness historically. Nor was there evidence of a major mental illness during the assessment. However, while in the community on the Supervision Order the respondent's mental state deteriorated and he developed depressive symptoms with suicidal attempt;
9.Substance use problem: Substance use has contributed to the respondent's offending;
10.Problems with intimate and non-intimate relationships: The respondent has never been in a long-term relationship and due to the conditions of the Supervision Order does not intend to enter into an intimate relationship. The respondent confirms that he does not trust people and has difficulty relating to them;
11.Problems with planning: The respondent has poor inhibitory control and his global behavioural dysregulation has a negative effect on his metacognitive problem solving;
12.Problems with treatment: Despite attending 53 sessions of an Intensive Sex Offenders Treatment Program and individual counselling the respondent's self-awareness and insight into his offending cycle has only just started to develop. The respondent's engagement while on the Supervision Order in the community varied. The respondent advised that his Plan and Grow support workers were like his family;
13.Problems with supervision: The respondent has demonstrated his capability to adhere to certain conditions but overall he presents as having future problems with supervision. The respondent acknowledged that he has always had problems with order compliance as he has great difficulty following rules and having limits placed on him. The respondent expressed feelings of hopelessness relating to his prospects of completing the Supervision Order.
In identifying the risk scenario for the respondent, Dr Wojnarowska points out that the respondent has consistently offended against females that are strangers to him. She considers that if the respondent reoffends it is likely that he will again offend against females who are strangers to him. She also considers that it is also likely that further escalation of his offending will take place and that if he is not stopped by a passer-by or a witness he is likely to sexually penetrate the victim.
Dr Wojnarowska considers that likely precursors to any sexual reoffending by the respondent include drinking alcohol, taking illicit drugs, and becoming sexually aroused after watching pornography or sexually frustrated.
In Dr Wojnarowska's view everyday life stressors, arguments with family members and boredom associated with a lack of structured activity will lead the respondent to resort to cannabis to regulate his mood. She considers this to be a risk factor. She also considers that an important risk factor is the respondent's limited opportunity to engage sexually with consenting age appropriate females.
In Dr Wojnarowska's view the main driving force to the respondent's offending will be his sexual frustration and anger associated with his personal circumstances facilitated by alcohol and/or drug intoxication.
In Dr Wojnarowska's opinion the respondent is at a high risk of sexual recidivism if he is not subject to the Act.
The respondent's feelings of hopelessness and lack of motivation to do well in the community potentially increases his risk of reoffending. Nonetheless, Dr Wojanrowska is still of the opinion that the respondent's risk can be managed in the community providing certain conditions are amended.
Dr Wojnarowska supports the recommendation that the respondent be given access to hard copy adult material that has been approved by his CCO.
In Dr Wojnarowska's view the granting of approval to the respondent to have contact with his family, including children, should be partially assisted by his support workers and his CCO. She considers that due to the respondent's cognitive deficits the process of applying for approval is daunting for him and that he tends to misinterpret the conditions resulting in him breaching the conditions.
As to future treatment of the respondent, Dr Wojnarowska has considered the use of anti-libidinal medication given the respondent's high levels of preoccupation with pornography which is an important factor in his reoffending. However, she notes that the respondent has been commenced on Escitalopram for the treatment of his depression, a common side effect of which is lower sexual drive. She therefore recommends that the respondent continue his use of Escitalopram and that the dose be increased to the desired effect on his libido.
Dr Wojnarowska considers that future psychological treatment of the respondent should involve both psychological support and offence specific treatment addressing his criminogenic needs.
In Dr Wojnarowska's view the respondent will require significant support at the time of his reintegration into the community. She considers that the respondent has developed a good relationship with his service provider Plan and Grow and that a request for their continued support should be made.

Oral evidence

In her evidence‑in‑chief Dr Wojnarowska gave the following supplementary evidence.[39]
[39] ts 251 - 256, 30 November 2021.
The most obvious change that she has observed in the respondent since she assessed him for the purposes of the November 2020 review of the CDO is that he is now expressing the view that he wants to remain in prison rather than be released into the community. This is in stark contrast to how he presented prior to being released on the Supervision Order.
At the time that she prepared her report she did not have access to the Performance Report. She is now aware that the respondent has made statements to Mr Carmichael to the effect that he has been using illicit drugs since his return to prison. If the respondent has been using drugs since his return to prison his Substance Use Disorder is no longer in remission. So far as the truthfulness of the respondent's statements to Mr Carmichael are concerned, her 'hypothesis' is that that respondent has probably used some substances since being returned to prison but not to the extent that he reported to Mr Carmichael.
Since preparing her report she has, through reading the Performance Report, become aware of the proposed staged reduction in support to be provided to the respondent (referred to further below). Whether the proposed stage reduction in support will impact on the ability to manage the respondent's risk in the community will very much depend on his motivation and whether he wants to remain in the community and to do well. She thinks that irrespective of the number of support hours that are provided to the respondent, if he is determined not to be compliant he will not be compliant. However, if the respondent is motivated to be compliant, six hours per day of support from a support worker will, in her view, be sufficient to enable him to be managed. If this level of support is further reduced, the impact on the respondent's manageability will depend on 'where he is at' and whether during the period that he has had more hours of support he has made progress in developing prosocial links in the community.

In arriving at my above expressed conclusions I have also not overlooked Dr Wojnaroska's evidence that in her opinion the longer the respondent spends in custody (and progresses towards institutionalisation) the greater the risk he will commit a serious offence under the Act upon his release. The respondent is a high risk serious offender and the adequate protection of the community from the risk he poses is of paramount importance. Nonetheless, and bearing in mind that the respondent is still a relatively young man with a cognitive disability who has already spent a good proportion of his life in custody, I am, needless to say, concerned about the possibility that further detention of him under the Act will increase the already high risk of him committing further sexual offences and consequently further reduce the prospects of him being able to be safely released on a Supervision Order in the relatively near future. However, the questions that the provisions of the Act to which I have referred require me to address in determining the application do not include the question whether keeping the respondent in custody will potentially increase his already high risk of reoffending in the longer term. Rather, the questions that the provisions of the Act require me to address in determining the application are whether the respondent has proved on the balance of probabilities that he will at the present point in time substantially comply with the standard conditions of the Supervision Order if he is released on the order and whether releasing the respondent on the Supervision Order at the present point in time will ensure adequate protection of the community. Having said this, the existence of the possibility that further detention of the respondent pursuant to a continuing detention order under the Act will increase his already high risk of reoffending serves to emphasise the importance of ensuring that while he is detained all reasonable efforts are made to give effect to all of the objects of the Act which include providing for his continuing 'care or treatment'.[50]
[50] Act, s 8. See also the definition of 'continuing detention order': Act, s 3 and s 26(1).

Order

The respondent has failed to satisfy me on the balance of probabilities that he will substantially comply with the standard conditions specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g) of the Act. I therefore, pursuant to s 55(1)(a) of the Act, rescind the Supervision Order and make a continuing detention order in relation to the respondent.

Recommendations for the next 12 months

In order to give himself the best possible chance of being released on a supervision order following the first review of the continuing detention order the respondent, it seems to me, needs to do at least three things.
First, the respondent must, despite his misgivings, do his best to set aside his mistrust of his treating psychologist Ms Morrison and engage fully and openly with her. If the respondent does this he will be better equipped to deal with the stressors that he will inevitably face upon being released on a supervision order and hence also be better placed to comply with the conditions of the order.
Second, the respondent needs to address and deal with his apparent problematic sexual interest in underage females. The respondent needs to do this through his counselling with his psychologist and through any other appropriate treatment programs that are made available to him.
Third, the respondent needs to come to the realisation (and hopefully this realisation will, despite his cognitive difficulties, come with time and increased maturity) that although he will be subject to significant restrictions while living in the community subject to a supervision order he should, if he is open with those responsible for his supervision and if he seeks and relies upon the support that they are able to give him, be able to live a relatively stable and contented life while subject to the order; a life which does not involve the commission of sexual offences but which does involve experiences such as having ongoing contact with his family members, engaging in prosocial activities and engaging in consensual age appropriate intimate relationships. Once the respondent comes to this realisation it is likely that he will not feel so daunted about the prospect of complying in the longer term with the conditions of a supervision order and consequently will be more motivated to live in the community in accordance with the conditions of such an order.
I agree with the recommendation of Dr Wojnarowska that the respondent should continue to receive psychological counselling and offence specific treatment to address his criminogenic needs and that the counselling should occur as regularly as possible.
I agree with the recommendation of Dr Wojnarowka that the respondent should continue with his antidepressant medication at an increased dosage with a view to reducing his sexual drive, and that if the desired result in this respect cannot be achieved through the antidepressant medication consideration should be given to placing the respondent on antilibidinal medication.
I agree with the recommendation made by Dr Wojnarowska that efforts should be made to identify a suitable Indigenous mentor for the respondent.
Clearly the respondent is going to require very significant support if he is to be released by the time of the first review of the continuing detention order. To this end attempts should be made, prior to the first review, to put in place a proposed community supervision plan that is substantially similar to the plan that was in place at the time that he was released on the Supervision Order but which also includes the provision of an Indigenous mentor.

ANNEXURE 1

PROPOSED SUPERVISION ORDER CONDITIONS STANDARD CONDITIONS REQUIRED BY THE ACT

1.Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth WA, within 48 hours of release to the order and advise the officer of the person's current name and address;
2.Report to and receive visits from, a Community Corrections Officer as directed by the court;
3.Notify a Community Corrections Officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens;
4.Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
5.Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer;
6.Not commit a serious offence during the period of the Order; and
7.Be subject to electronic monitoring under Section 31.

ADDITIONAL CONDITIONS

Residence

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

Reporting to a CCO and Supervision by a CCO

9.Report to a CCO at your approved release address on the day of release from custody within normal business hours under this Order;
10.Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO;
11.Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of you;
12.Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO;

Attendance at Programs or Treatment

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

Medication

15.Undertake any medication regime, including medication for the purposes of antilibidinal purposes, as directed by the CCO in consultation with a medical practitioner(s), comply fully with that treatment and any testing to monitor your compliance with that treatment as directed by a CCO;
16.Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice;
17.Permit any medical practitioner, psychologist, psychiatrist, counsellor or support worker to advise the CCO immediately if they become aware, or suspect, that you have, or intend to, cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment;

Reporting to WA Police

18.Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS) at the Hatch Building, 144 Stirling Street, PERTH WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and locations as directed by the Officer-in-Charge of SOMS or his/her delegate;
19.Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
20.If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order;
21.Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020;

I

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

Disclosure/Exchange of Information

23. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this Order, including confidential information;
24.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 your offending history, including otherwise confidential information;

Restrictions on Contact With Victims

25.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;
26.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 offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
27.Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to that person or agency;

Criminal Conduct

28.Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
29.Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA);
30Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
31.Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse Of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider

Curfew

32.Be subject to a curfew, pursuant to Section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
33.When subject to a curfew under this Order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
34.When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;

Prevention of High-Risk Situations

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

37.Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and Police Officer upon request;
38.Attend for, and submit to, urinalysis or other testing for alcohol use and prohibited drugs as directed by the CCO or by a Police Officer, including accompanying such persons to an appropriate location for such testing to take place;
39.To provide a valid sample for the testing described in Condition 38;
40.Not to remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place. If you are the sole occupants of the address, request those consuming prohibited drugs leave the address, if they refuse or otherwise do not leave, contact police and request they remove the patrons;
41.Not to associate with any person known to you to have committed any sexual offence, unless such association is authorised in advance by the CCO;
42.Not enter the premises of, or access the services of, escort agencies or sex workers without the prior notification and approval of a CCO or WA Police;
43.Not to view, access or possess any internet based pornography unless approved by a CCO;
44.Not access or have in your possession in either electronic or permanent form any pornographic material unless approved in advance by a CCO;
45.Not enter any residential address in which a female is present, resides or is known to reside, unless authorised in advance by the CCO;
46.Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO;
47.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 person is an immediate family member and the contact is authorised in advance by a CCO and such contact is conducted in a manner as approved by a CCO
(b)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
(c)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);

48.Where any unsupervised contact with a child under the age of 18 years is initiated by the child, you must withdraw immediately from the presence of the child;
49.Provide details of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency;
50.Report at your next contact with your CCO, the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person;
51.Report at your next contact with your CCO and Police any association or relationship by you with a person who has a child, or children under the age of 18 years in their care either full or part time;
52.Not form any domestic relationship with a person who has children under the age of 18 years in their care either full-time or part-time, without prior approval of a CCO;
53.As directed by a CCO, make full disclosure regarding your past offending and the current Order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
54.Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
55.Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
56.Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in Condition 54, without prior approval of the CCO;
57.Enable device locking or password access of your computer, telecommunication and/or electronic devices; Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in Condition 54, or any online accounts, to any person other than a CCO or Police Officer;
58.Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO;
59.Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet. without the approval in advance by a CCO or WA Police;
60.Not conduct computer searches for, nor collect or access, or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not; with the exception of images of your immediate family that are not indecent images, if approved in advance by a CCO. Possession of such images depicting a child or children on items such as on household items, may be authorised by a CCO.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
9 DECEMBER 2021