The State of Western Australia v Warmdean [No 4] - [2023] WASC 195

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WARMDEAN [No 4] [2023] WASC 195
CORAM:   STRK J
HEARD:   26 & 27 APRIL 2023
DELIVERED          :   27 APRIL 2023
PUBLISHED           :   6 JUNE 2023
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 Offenders Act 2020 (WA) - Review of continuing detention order - Whether respondent remains a high risk serious offender - Whether continuing detention order or supervision order appropriate

Legislation:

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

Result:

Restriction order affirmed
Continuing detention order rescinded and supervision order made

Category: B

Representation:

Counsel:

Applicant	:	D McDonnell
Respondent	:	S Rafferty (26 April 2023) T Hager (27 April 2023)

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Aboriginal Legal Service (WA)

Cases referred to in decision:

Bell v State of Tasmania (2021) 96 ALJR 22; (2021) 395 ALR 589
Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Garlett v The State of Western Australia [2022] HCA 30
Italiano v Western Australia [2009] WASCA 116
The State of Western Australia v Bellamy [2013] WASC 467
The State of Western Australia v D'Rozario [No 3] [2021] WASC 412
The State of Western Australia v Garlett [2021] WASC 387
The State of Western Australia v MAM [2022] WASC 100
The State of Western Australia v Patrick [No 4] [2020] WASC 48
The State of Western Australia v UJG [No 2] [2023] WASC 77
The State of Western Australia v Warmdean [2019] WASC 6
The State of Western Australia v Warmdean [No 2] [2020] WASC 454
The State of Western Australia v Warmdean [No 3] [2021] WASC 438
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v Woodward [No 3] [2023] WASC 83
The State of Western Australia v ZSJ [2020] WASC 330
Vella v Commissioner of Police (NSW) (2019) 269 CLR 219

Table of Contents

Introduction

Background to the application

Relevant statutory provisions and applicable legal principles

Evidence

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

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

Whether or not there is any pattern of offending behaviour - s 7(3)(d)

Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - ss 7(3)(e) and 7(3)(f)

Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)

Psychological and other assessments - s 7(3)(b)

Analysis and findings

Conclusion and orders

Sch A - Supervision order conditions

STRK J:

Introduction

On 15 June 2022, the State of Western Australia applied for an order that the respondent's detention under the continuing detention order made on 9 December 2021 be reviewed as soon as practicable after 9 December 2022 pursuant to s 64 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
Given the terms of s 68(1) of the HRSO Act, the outcome of the application turns upon the answer to two questions. First, does the respondent remain a high risk serious offender within the meaning of s 7(1) of the HRSO Act? Secondly, if the respondent does remain a high risk serious offender, should the continuing detention order be affirmed or should the continuing detention order be rescinded and a supervision order made?
The hearing of the application took place on 26 and 27 April 2023. Ex tempore reasons were given at the conclusion of the hearing for finding that the respondent remains a high risk serious offender; that the continuing detention order made in respect of the respondent should be rescinded; and that a supervision order should be made in respect of the respondent. I indicated that I would publish my reasons for decision, which would be edited from transcript to correct infelicity of language, to include complete references to materials and evidence before the court, and to include complete citations of statute and authorities relied upon in the disposition of the application. Set out below are my reasons.

Background to the application

On 14 January 2019, an application made on behalf of the State for an order under div 2 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) was heard. The State applied for an order that:
(a)the respondent be detained in custody for an indefinite term for control, care or treatment;
(b)alternatively, that the respondent be subject to conditions when not in custody,
on the basis that he was a serious danger to the community, in that there was an unacceptable risk that, if one of those orders were not made, the respondent would commit a serious sexual offence.[1] For reasons delivered on the same day, the court was satisfied to a high degree of probability that there was an unacceptable risk that the respondent would commit a serious sexual offence if not subject to a detention or a supervision order. Further, the court concluded that there were no conditions that could be imposed that would adequately reduce the risk that the respondent would commit further serious sexual offences if he was released into the community, and it was necessary that he be made subject to a continuing detention order pursuant to s 17(1)(a) of the DSO Act.[2] The respondent was then 21 years old.
[1] As defined in s 4A of the DSO Act.
[2] The State of Western Australia v Warmdean [2019] WASC 6 (Fiannaca J).
The continuing detention order was subject to review under the DSO Act. However, before a review was conducted, the DSO Act was repealed and replaced by the HRSO Act which came into force on 26 August 2020. Pursuant to s 125 of the HRSO Act, the continuing detention order made by the court on 14 January 2019 was preserved. The HRSO Act also required that the continuing detention order imposed on the respondent be reviewed, and on 24 November 2020 the court undertook the first review of the continuing detention order pursuant to the HRSO Act.
On 11 December 2020, the court rescinded the continuing detention order and imposed a supervision order in relation to the respondent for the period of 10 years.[3] The respondent was released on the supervision order on 20 January 2021. The supervision order included 59 conditions to which the respondent was to adhere.
[3] The State of Western Australia v Warmdean[No 2] [2020] WASC 454 (Curthoys J).
The respondent breached the supervision order on 13 occasions during the period of 4 February 2021 to 9 March 2021. Nine contraventions were the subject of a charge under s 80(1) of the HRSO Act, four were not. The respondent pleaded guilty to contravening the supervision order with respect to the nine contraventions charged, and admitted the four uncharged contraventions.[4]
[4] The State of Western Australia v Warmdean [No 3] [2021] WASC 438 [14] ‑ [19], [76] and [278] (Derrick J).
On 9 December 2021, after finding the contraventions proved, the court rescinded the supervision order and made a continuing detention order in relation to the respondent.[5] The court was not satisfied that the respondent would substantially comply with the standard conditions of a supervision order specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g) of the HRSO Act.[6] The respondent has been detained since that time.
[5] The State of Western Australia v Warmdean [No 3] [308] (Derrick J).
[6] The State of Western Australia v Warmdean [No 3] [283] ‑ [304] (Derrick J).
As noted above, on 15 June 2022, the State applied for a review of the continuing detention order under s 64 of the HRSO Act as soon as practicable after 9 December 2022. On 29 June 2022, the court made a number of programming orders by consent which included an order that the application be listed for hearing on 16 February 2023, and that the respondent undergo examination by a qualified expert, namely psychiatrist Dr Gosia Wojnarowska, for the purpose of preparing a report as required by s 74 of the HRSO Act to be used at the hearing of the State's application.
The hearing on 16 February 2023 was vacated in circumstances where the court was informed that Dr Wojnarowska wished to conduct a further interview of the respondent for the purposes of her examination of him and the preparation of her report. The State conveyed to the court that Dr Wojnarowska deemed that a further interview was necessary, in circumstances described further below.[7] To accommodate the further interview of the respondent being conducted by Dr Wojnarowska and the preparation of her report, the application was relisted for hearing on 26 April 2023.
[7] See [93] below.
The State foreshadowed by its written submissions filed in advance of the review hearing that the State would submit that the respondent remained a high risk serious offender, and if the court so found, that the court ought to affirm the continuing detention order made on 9 December 2021. However, by a communication received on 24 April 2023, the court was informed that the State's position at the review hearing would be that the court ought rescind the continuing detention order and make a supervision order pursuant to s 68(1)(b)(ii) of the HRSO Act. The State proposed that the respondent's release be subject to 59 conditions, which were set out in a minute of proposed supervision order filed on 21 April 2023.
The respondent did not seek to be heard in opposition to the court finding that the respondent remained a high risk serious offender. It was conceded on behalf of the respondent that the evidence before the court was sufficient to establish the same.[8] On behalf of the respondent it was submitted that on the evidence before the court, the court ought be satisfied, on the balance of probabilities, that he will substantially comply with the standard conditions of supervision order. Further, the court might properly make a supervision order, having taken into account the paramount consideration, being the need to ensure adequate protection of the community.[9]
[8] ts 299 and 334 ‑ 335 (26 April 2023).
[9] ts 341 and 344 (26 April 2023).

Relevant statutory provisions and applicable legal principles

I did not understand there to be any dispute as between the parties as to the law and the principles to be applied in undertaking this review. They have been set out in a number of decisions of this court, and comprehensively in The State of Western Australia v Woodward [No 3] [2023] WASC 83 [17] ‑ [40]. In undertaking this review, I applied the law and principles summarised by Derrick J, reproduced below:[10]
[10] All references to 'the Act' in the reproduced paragraphs of The State of Western Australia v Woodward [No 3] are references to the HRSO Act, and footnotes have been omitted unless otherwise indicated.
17In relation to the applicable legal principles, in The State of Western Australia v ZSJ [[2020] WASC 330 [30] - [31]], a case in which the State made an application under div 2 of the Dangerous Sexual Offenders Act 2006 (WA) (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.
18 I respectfully agree with Fiannaca J's observations. In my opinion and having full regard to the recent decision of the High Court in Garlett v The State of Western Australia [[2022] HCA 30 [55], [103], [104], [106]] which addressed the constitutional validity of aspects of the Act, the case law decided under the DSO Act in relation to applications for review of continuing detention orders remains (with appropriate adaptation in cases involving non-sexual offences) relevant to the determination of such applications under the provisions of the Act. Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application will include cases that have been concerned with proceedings under the DSO Act.
19Section 63 of the Act provides:
The purpose of this Part is to ensure that an offender's detention under a continuing detention order is regularly reviewed.
20 Section 64 of the Act provides for the making by the State of an application for an offender's detention under a continuing detention order to be reviewed.
21 Section 66 of the Act provides for the hearing by the court of an application by the State for the review of an offender's detention under a continuing detention order.
22 Section 68 of the Act provides:
Review of detention under continuing detention order
(1) On a review under section 66 of an offender's detention ‑
(a) if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b) if the court finds that the offender remains a high risk serious offender it must ‑
(i) affirm the continuing detention order; or
(ii) subject to section 29, rescind the continuing detention order and make a supervision order.
(2) In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure the adequate protection of the community.
23 The definition of the term 'high risk serious offender' is contained in s 7(1) of the Act. Section 7(1) is in the following terms:
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
24 The term 'restriction order' is defined in s 3 of the Act to mean 'a continuing detention order' or 'a supervision order'. A 'continuing detention order' is 'an order that the offender be detained in custody for an indefinite term for control, care or treatment'. A 'supervision order' is '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'.
25 As to the term 'serious offence' used in s 7(1), s 3 and s 5(1) of the Act provide that a 'serious offence' is an offence that is 'specified in Schedule 1 Division 1' of the Act, or 'is specified in Schedule 1 Division 2 and is committed in the circumstances indicated in relation to that offence in that Division'. Section 5(2) of the Act provides that an offence is a 'serious offence' if it was 'an offence under a written law that has been repealed and the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence' under s 5(1). Section 5(3) of the Act provides that an offence is a 'serious offence' if it is an 'attempt…to commit an offence that is a serious offence' under s 5(1) or s 5(2).
26 It follows from the definition of 'high risk serious offender' contained in s 7(1) that a finding under s 68(1)(b) that an offender 'remains a high risk serious offender', that is, a finding that it remains necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence, necessarily entails a finding that if the offender is not subject to a restriction order the community will not be adequately protected against an unacceptable risk that the offender will commit a serious offence.
27 If the court finds that an offender 'remains a high risk serious offender' it is not invested with a residual discretion to decline to make a restriction order. In these circumstances the question for the court is whether a continuing detention order or a supervision order should be made.
28 By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 68(1)(b) that the offender remains a high risk serious offender, it must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'. The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.
29 The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability. A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk. It is the necessity to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence that must be proved by acceptable and cogent evidence and to a high degree of probability.
30 Whether or not a risk that the offender will commit a serious offence is 'unacceptable' is a question that requires the court's judgment as to the likelihood of the offender committing the serious offence and the nature and extent of the harm that will be caused if the offender commits the serious offence. Further, whether a restriction order is 'necessary' to ensure adequate protection of the community against the 'unacceptable risk' requires consideration of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. Accordingly, the court is required to perform an evaluative exercise by considering whether, having regard to the likelihood of the offender offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the offender has already been punished for the offences they have committed, it is necessary in the interests of the community to ensure that they are subject to further control or detention. In addition, although the requirement of an evaluation under s 7(1) depends upon the offender having been convicted of a serious offence, s 7(1) and s 68 do not envisage the possibility that a finding that an offender remains a high risk serious offender might be made to prevent the commission of a serious offence, whether of the same kind or another kind, unless the risk of further offending involves a real threat of harm to the community.
31 By reason of s 68(2), if the court finds that the offender remains a high risk serious offender it is the need to ensure 'adequate' protection of the community that is to be the paramount consideration for the court in deciding whether to affirm the continuing detention order or to make a supervision order. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot be assumed that the most assured preventative action is detention and that therefore the protection of the community will always favour such an order. In this regard I respectfully adopt the following statements of Beech J (as his Honour then was) in Director of Public Prosecutions (WA) v DAL [No 2] [[2016] WASC 212 [33]] which, although made in relation to review proceedings under the DSO Act, are equally applicable to the operation of s 7(1) and s 68(2) of the Act:
In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. The [DSO Act] does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.
32 The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.
33 Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.
34 Section 7(3) of the Act specifies the matters that the court must have regard to in deciding if an offender is a high risk serious offender for the purposes of s 7(1). The matters specified are substantially identical to the matters that the court was, by s 7(3) of the DSO Act, required to have regard to in deciding whether a person was a 'serious danger to the community' within the meaning of the DSO Act. The matters are as follows:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
35 Although s 7(3)(g) provides that a court must have regard to the offender's criminal record in deciding whether the person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that they will commit a serious offence in the future if they are not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they have been committed. Nonetheless, past behaviour is often a good indicator of future conduct.
36 By s 68(1)(b)(ii) of the Act, the power of the court to rescind the continuing detention order and make a supervision order is expressed to be subject to s 29. Section 29 relevantly 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.
37 The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean 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.
38 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 they will substantially comply with the standard conditions set out in s 30(2) of the Act before the court can make a supervision order in relation to them.
39 For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the 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 objects of a supervision order and the Act, specifically the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence. Further, in determining if it is satisfied that the offender will substantially comply with each standard condition of the supervision order, the court must have regard not only to the constraints that will be imposed upon the offender by the other standard conditions, but also to the constraints that will be imposed upon the offender by all the other 'non-standard' conditions of the supervision order.
40 As to the purpose of a review hearing under the Act, the following statements made by Hall J in The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [[2019] WASC 359 [7] - [11]] in relation to the review process provided for under the DSO Act are apposite (footnotes omitted):
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending, rather it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be better managed in the community, then the continuing need for detention must be considered.
The risk of reoffending may change over time. It may be affected by age, health or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of the prison authorities to facilitate change by offering programs and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, merely a welfare check, rather they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.

In addition to the above, I note as follows.
Further to [25] of Derrick J's reasons, a 'serious offence' is an offence that is specified in sch 1 div 1 of the HRSO Act, or is specified in sch 1 div 2 and is committed in circumstances indicated in relation to that offence in div 2.[11] Schedule 1 comprises a list of serious violent and sexual offences, the majority of which attract a maximum penalty of imprisonment of seven years or more. In relation to sexual offences, the offences set out in sch 1 div 1 include all offences formerly defined as 'serious sexual offences' under the DSO Act.
[11] HRSO Act s 3, s 5(1) and s 5(2).
Since the court must assess the risk that the offender will commit 'a serious offence', the application must specify the serious offence within sch 1 to the HRSO Act which the State alleges there is an unacceptable risk that the offender will commit.[12]
[12] Garlett v The State of Western Australia [2022] HCA 30 [219] (Edelman J), citing Bell v State of Tasmania (2021) 96 ALJR 22; (2021) 395 ALR 589 [100] (Edelman & Gleeson JJ).
By s 7(1) and s 7(2) of the HRSO Act, before a restriction order must be made the State has the onus of proving that it is 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' against an 'unacceptable' risk. I note that 'community' is defined in terms that include 'any community' and is not limited to the community of Western Australia or Australia.[13]
[13] Garlett v The State of Western Australia [220] (Edelman J); HRSO Act s 4(1).
Section 82(1) provides that proceedings under the HRSO Act, or on an appeal under the HRSO Act, are taken to be criminal proceedings for all purposes. However, anything that is to be evidenced for the purposes of the HRSO Act need not be evidenced to a higher standard than is required by s 7(1).[14]
[14] HRSO Act s 82(2).
Finally, I note that if upon review a respondent is found to remain a high risk serious offender, the court does not approach the application with a predisposition to affirm the continuing detention order. Again, in deciding whether to affirm the continuing detention order or rescind it and make a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[15]
[15] HRSO Act s 68(2).

Evidence

At the hearing of this application, I received into evidence a book of materials in four volumes. The first, second and third volumes were dated 5 December 2022. The fourth was dated 12 April 2023.[16] Together the four books of materials comprise over 1,400 pages.
[16] Exhibits 1, 2, 3 and 4, respectively.
The first volume contains a copy of the State's application for review; the respondent's criminal record; various Department of Justice prison records; and a National Disability Insurance Scheme (NDIS) plan for the respondent dated 21 June 2022. The first volume also contains materials prepared previously by the Office of the Director of Public Prosecutions for Western Australia for the purpose of the hearing in 2019 before Fiannaca J pursuant to div 2 of the DSO Act, including documents which concern the respondent's offending history.
The second volume also contains materials prepared by the Office of the Director of Public Prosecutions for Western Australia. The materials include post‑sentence reports and reports prepared for the purpose of the hearing in 2019 before Fiannaca J pursuant to div 2 of the DSO Act, as well as materials provided for the purpose of the hearing to review the continuing detention order imposed on the respondent which proceeded before Curthoys J in 2020.

The third volume contains materials which relate to the contravention proceeding which took place in 2021 before Derrick J. The 'contravention reports' include a treatment progress report dated 11 November 2021 which was prepared by Sarah Ballantyne, a senior counselling psychologist employed by the Department of Justice; a psychological intervention progress report dated 14 October 2021 which was prepared by Julia Morrison, a senior counselling psychologist employed by the Department of Justice; a psychiatric report prepared by Dr Wojnarwoska dated 15 November 2021; and a performance report dated 16 November 2021 which was prepared by Luke Carmichael, a senior community corrections officer (CCO) within the Community Offender Monitoring Unit (COMU) of the Department of Justice.
The fourth volume contains various reports prepared for the purpose of this review hearing.
The State also tendered into evidence a document which contained two electronic communications, being an email communication sent on 21 April 2023 by Ms Morrison to Joanne Collyer, a senior counselling psychologist employed by the Department of Justice; and an email communication sent on 24 April 2023 by Aimee Goode, team leader of COMU, to the representatives of the State in this proceeding.[17] The first email communication described recent treatment responses and gains of the respondent. The second summarised the Desktop Spatial Analysis undertaken by WA Police in relation to the respondent's proposed residence should he be released on a supervision order at the conclusion of this review hearing.
[17] Exhibit 5.
The State called three witnesses who gave evidence. They were as follows:
(a)Dr Wojnarowska, a consultant forensic psychiatrist and author of the psychiatric report dated 19 March 2023;[18]
(b)Ms Collyer, a senior counselling psychologist employed by the Department of Justice and author of the psychological treatment report dated 19 January 2023;[19] and
(c)Mr Carmichael, a senior CCO within COMU of the Department of Justice. Mr Carmichael was the author of and one of the three signatories to a community supervision assessment report dated 11 April 2023.[20]
[18] Exhibit 4, pages 1402 ‑ 1416; ts 305 ‑ 322 (26 April 2023).
[19] Exhibit 4, pages 1390 ‑ 1401; ts 322 ‑ 326 (26 April 2023).
[20] Exhibit 4, pages 1417 ‑ 1433; ts 327 ‑ 334 (26 April 2023).
In advance of the hearing, counsel for the State filed a written outline of submissions dated 21 April 2023, together with a minute of proposed detention order and a minute of proposed supervision order.
During the course of the hearing, no evidence was tendered on behalf of the respondent.

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

I now turn to the matters relevant to determining whether or not the respondent remains a high risk serious offender pursuant to s 7 of the HRSO Act. In so deciding, the court must have regard to the person's antecedents and criminal record. That requires that all prior offences be considered, to the extent that such offences are relevant to the question of whether the person is a high risk serious offender within the meaning of the HRSO Act (whether they be serious offences or not). It also requires consideration of the person's antecedents, including the context in which the past offences were committed.[21]
[21] As observed by McGrath J in The State of Western Australia v UJG [No 2] [2023] WASC 77 [35].
For the purposes of the review hearing, the criminal record and antecedents were relevant in and of themselves, but were also relevant to the question of whether the respondent has a propensity to commit serious offences in the future. The criminal record and antecedents were also relevant in ascertaining whether there was any pattern of offending behaviour.[22] It was therefore convenient to first consider the respondent's criminal record and antecedents as required by s 7(3)(g).

Childhood and personal life

[22] Again, as observed by McGrath J in The State of Western Australia v UJG [No 2] [36], referring to the HRSO Act s 7(3)(c) and s 7(3)(d).

I had regard to the respondent's background leading up to his offending, as found by Fiannaca J in The State of Western Australia v Warmdean [40] ‑ [53], and to the early psychological assessments of the respondent's childhood and antisocial behaviour as summarised by Fiannaca J at [54] ‑ [56].
The respondent is now a 25 year old male and has had contact with the Department of Justice since he was a juvenile. Ms Collyer reported that the respondent experienced substantial disruptions in his childhood, including exposure to alcohol abuse and domestic violence. Ms Collyer's account of the respondent's childhood and personal life were largely consistent with the findings of Fiannaca J in 2019.
Ms Collyer reported that the supports during the respondent's childhood were purportedly sporadic in terms of the level of supervision provided, which resulted in the respondent spending extended periods of time without adequate adult supervision.[23] He was placed in Banksia Hill Detention Centre on four occasions during his childhood.[24] He has spent a significant portion of his childhood years in detention and a significant portion of his young adult life in prison.
[23] Exhibit 4, page 1391 (Ms Collyer's report par 6).
[24] Exhibit 4, page 1392 (Ms Collyer's report par 9).
Ms Collyer reported that in 2013 the respondent was referred for a speech and language assessment while in detention, at which time it was identified that the respondent had difficulties with social skills in the verbal and non‑verbal domains, as well as with social exchange skills.[25]
[25] Exhibit 4, page 1391 (Ms Collyer's report par 7).
The respondent was also assessed as having cognitive deficits associated with the presence of foetal alcohol spectrum disorder (FASD).[26] He is a participant of the NDIS and is eligible to receive support from the NDIS.[27] As to the respondent's cognitive functioning, Dr Wojnarowska opined that the respondent presents with 'borderline intellectual functioning; frontal lobe disfunction characterised by high impulsivity; and memory problems'.[28]

Education and employment

[26] Exhibit 4, page 1402 (Dr Wojnarowska's report par 3); exhibit 4, page 1392 (Ms Collyer's report par 10); The State of Western Australia v Warmdean [133] - [150] (Fiannaca J); The State of Western Australia v Warmdean[No 2] [11] (Curthoys J); The State of Western Australia v Warmdean[No 3] [72] (Derrick J).

[27] Exhibit 1, pages 93 - 104 (NDIS Plan dated 21 June 2022); exhibit 4, page 1402 (Dr Wojnarowska's report par 3); exhibit 4, pages 1420 - 1421 (Mr Carmichael's report); ts 327 - 328 (26 April 2023).

[28] ts 314 (26 April 2023).

The respondent has had limited formal education. I had regard to the findings made by Fiannaca J in The State of Western Australia v Warmdean at [71] with respect to the respondent's further education. I noted that the respondent also reported to Dr Wojnarowska a desire to attend TAFE to further his general education and improve his reading and writing skills.[29]
[29] Exhibit 4, page 1407 (Dr Wojnarowska's report par 31).
The respondent has no history of employment outside of a detention and custodial setting. As to the respondent's work conduct while in a custodial setting, Dr Wojnarowska reported that the respondent had been described as a good worker.[30]

Relationships

[30] Exhibit 4, page 1413 (Dr Wojnarowska's report par 69).

The respondent has a limited network of peers and family in the community. Both of his parents are deceased. Other than his sister, he has limited contact with his family. The respondent's family has been a source of instability in the past.
The respondent breached his previous supervision order by, among other things, contacting a child under 18 years without approval (the child being the respondent's brother).[31] As was recorded by Derrick J in The State of Western Australia v Warmdean [No 3] at [156], when Dr Wojnarowska questioned the respondent about the conditions of the supervision order that had been imposed, among other things, the respondent stated that he found the conditions that required him to obtain approval before attending family gatherings or before visiting people difficult. He also 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.
[31] Exhibit 4, page 1405 (Dr Wojnarowska's report par 19); The State of Western Australia v Warmdean [No 3] [86] ‑ [87], [89] and [118] (Derrick J).
The vast majority of the respondent's peers are known to him from his extensive periods in detention and custody. The respondent described his peers to Ms Collyer as his 'brother boys' and reported to Ms Collyer that it was difficult for him to say no to peers. The respondent explained that 'they had his back and he had theirs'.[32]
[32] Exhibit 4, page 1397 (Ms Collyer's report par 31).
The respondent expressed to Ms Collyer that he was appreciative of the NDIS support workers who he engaged with during his time previously spent in the community subject to a supervision order, describing the NDIS support workers as 'like family'.[33]

Alcohol and substance abuse

[33] Exhibit 4, pages 1394 - 1395 (Ms Collyer's report par 19).

The respondent commenced cannabis use at age 12, and began consuming alcohol in company of family and friends most weekends by age 14. Alcohol and substance use are a common theme in the respondent's offending. As to his most recent serious offence, which occurred on 18 December 2015, Dr Wojnarowska recorded at par 34 of her report that the respondent provided the following specific details:[34]
He said that the offence had occurred at night time in West Leederville. He said that on that day he had been drinking alcohol with a friend and they had taken 'one point of speed' together. They then met up with another friend and [the respondent] decided to catch the train from Perth City to West Leederville to steal more alcohol from a liquor store he frequented. When he was at the train station, he noticed the victim walking on a pathway and spontaneously decided to follow her. He denied watching pornography earlier in the day or being preoccupied with sex at that time, however he admitted that he had become aroused when he saw the victim. He could not tell if there were any physical characteristics of the victim which he had found arousing or it was merely the fact that he saw a female.
[34] See also exhibit 4, page 1419 (Mr Carmichael's report).
At pars 73 to 78 of Dr Wojnarowska's report, she opined as to the respondent's risk of reoffending, and proffered a 'risk scenario', which included the following at par 78:
The main driving force in his offending will be his sexual frustration and anger associated with his personal circumstances facilitated by alcohol or other drugs intoxication.
While in the community and subject to a supervision order the respondent was subject to eight urinalysis tests and returned a negative result on each occasion.[35] Further, as noted below, the respondent had not returned any positive urinalysis test during his current period of detention.[36]

Criminal record

[35] The State of Western Australia v Warmdean [No 3] [133] (Derrick J).

[36] Exhibit 4, pages 1405 - 1406 (Dr Wojnarowska's report par 22); see also exhibit 4, page 1395 (Ms Collyer's report par 21).

The respondent has an extensive criminal history. Included in the materials tendered on behalf of the State was a criminal history report which records the respondent's first offence date as being 27 April 2012, when he was 14 years old.[37] For the purpose of the review hearing in 2020, the State prepared a chronology of offending dated 18 December 2017.[38] In The State of Western Australia v Warmdean at [57] ‑ [64], Fiannaca J summarised the respondent's criminal history prior to the hearing of the State's application for a div 2 order under the DSO Act. I had regard to the same as if reproduced here in full.

Serious sexual offending and serious sexually motivated offending

[37] Exhibit 1, pages 2 - 14.

[38] Exhibit 2, pages 686 - 687.

As was observed by Fiannaca J in The State of Western Australia v Warmdean, from the age of 14 years in 2012 to the age of 18 years in 2015, the respondent committed a number of indecent assaults upon females of varying ages. In each case he accosted or attacked a stranger in a public place. Two of the sexual offences involved the use of a weapon. The seriousness of the offences escalated over time and the last of the sexual offences, committed on 18 December 2015, involved a significant degree of violence on a 60 year old woman.[39]
[39] The State of Western Australia v Warmdean [2] (Fiannaca J).
At [89] to [104] of the decision of Fiannaca J and at [42] to [60] of the decision of Derrick J in The State of Western Australia v Warmdean [No 3], the respondent's serious sexual offending and serious sexually motivated offending were summarised. I reproduce below Fiannaca J's summary of the respondent's serious offending:
Indecent assault - 12 September 2012
[89] The indecent assault occurred on 12 September 2012 when the respondent was 14 years old. The victim, a 37-year-old woman, was walking in the company of a counsellor around an open space at a public reserve in Balga. The respondent approached the victim and grabbed her left breast and squeezed. The victim was shocked and knocked his hand away. She 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 and call after the victim.
[90] The aggravated indecent assaults occurred on 8 November 2012 and 18 November 2012. The respondent was 15 years old at the time.
Aggravated indecent assault - 8 November 2012
[91] On 8 November 2012, around 7.45 am, the respondent 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 his hand away, before breaking into tears. The respondent rode away. The offence was aggravated because of the age of the victim.
Aggravated indecent assault - 18 November 2012
[92] On 18 November 2012, around 3.00 pm, the respondent was walking along bush tracks in a public reserve in Balga (a different reserve to the one where the first offence occurred). The female victim, who was 55, was walking along the bush track in the opposite direction with her dogs. The respondent approached the victim and struck up a conversation about the dogs. The victim became unsettled by the respondent's demeanour. When she went to walk past the respondent, he reached out and touched her right breast. The victim knocked his 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. He was also convicted of the offence of being armed in a manner likely to cause fear.
[93] When interviewed by police about the sexual offences, the respondent admitted the offences and said he felt angry at himself for his conduct, as he knew it was wrong.
Assault with intent to rob (sexual motivation) - 22 February 2013
[94] The assault with intent to rob occurred on 22 February 2013. At approximately 10.30 am the victim, a high school student, was walking through the same public reserve in Balga where the offence occurred on 18 November 2012. The victim was on her mobile phone. The respondent approached her within the park whilst holding a short piece of wood. He swung the 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, at which point the respondent fled through the park and back to school.
[95] When interviewed by police, the respondent initially denied being the offender, but eventually admitted that he had hit the victim with the piece of wood. He said his intention was to steal the girl's mobile phone and money. He said he was angry with himself, because he got caught and might get detention.
[96] Although the respondent intended to steal property from the victim, he has admitted in more recent times that the offence was sexually motivated and that he had been watching pornography just prior to the offence. The admission of sexual motivation is entirely consistent with the fact that he shouted at the victim to get into the bush. It was a suspicion raised during the sentencing hearing, although the magistrate sentenced the respondent only on the basis that it was an assault with intent to rob.
Aggravated indecent assault - 19 February 2013
[97] On 13 November 2013, the respondent was sentenced for one count of aggravated indecent assault and one count of deprivation of liberty arising from the same incident. He was charged with those offences on 26 April 2013. The incident giving rise to the charges occurred on 19 February 2013 between 9.00 and 9.30 am. Again the offending occurred in the same reserve in Balga.
[98] That morning, the respondent took a kitchen knife from his home and rode his scooter to the centre of the park. The respondent stopped near the centre of the park, where he sat and waited. A short while later he saw two young women jogging along the path. One of them, a 19 year old woman, was pushing a pram that was carrying her 2 year old daughter. The respondent watched the women for a short time before approaching them, holding the knife in his right hand. The respondent grabbed the victim around the chest and pointed the end of the knife towards her face.
[99] 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, 'Come with me, just you.' The victim did not fight the respondent's grip, fearing 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, whilst still holding the knife in his right hand. He said, 'Let me feel you.' The respondent then tried to drag the victim towards the bushes. The other woman 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.
[100] When interviewed by police on 26 April 2013, the respondent said he had gone to the park on his scooter and had thrown his scooter into the bush, intending to grab 'them' and pull them into the bush. He said he watched the women for 'a bit'. He admitted the conduct constituting the offences. Initially he denied there was a sexual motivation, claiming he intended to rob the victim, but eventually he agreed the offending was sexually motivated.
[101]The respondent was sentenced to 15 months' detention for that offence.
Aggravated indecent assault and AOBH - 18 December 2015
[102] The last sexual offence for which the respondent was sentenced, on 27 July 2016, occurred on 18 December 2015. Between 9.10 am and 9.30 am that day, the respondent, who was aged 18 at the time, 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 went through a gap in a fence that led to her unit complex. The respondent grabbed her from behind, around her throat and waist. He lifted her off the ground and threw her onto the ground. He then removed the victim's pants and underwear whilst 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, causing 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.
[103]When interviewed by police on 30 December 2015, the respondent initially declined to comment about the incident, but eventually admitted he had attacked the victim, claiming, however, that it was to rob her, and that he had in fact stolen money. No money was actually stolen.
[104] The respondent was sentenced to 22 months' imprisonment for the aggravated indecent assault. No separate penalty was imposed for the offence aggravated assault occasioning bodily harm, as the bodily harm was one of the aggravating circumstances of the aggravated indecent assault.

Recent behaviour while subject to the continuing detention order

Five incidents were recorded against the respondent since the imposition of the continuing detention order on 9 December 2021. Three incidents pertained to the respondent receiving new tattoos in prison or being in possession of tattoo equipment. One incident concerned property damage, and one incident concerned the respondent engaging in a fight. As to the incident involving the respondent engaging in a fight, the respondent reported to Ms Collyer that the fight involved an alleged tobacco debt.[40]
[40] Exhibit 4, page 1395 (Ms Collyer's report par 20).
As noted above, the respondent has not returned any positive urinalysis test during his current period of detention.[41]

Responses to supervision

[41] Exhibit 4, pages 1405 - 1406 (Dr Wojnarowska's report par 22); see also exhibit 4, page 1395 (Ms Collyer's report par 21).

Fiannaca J in The State of Western Australia v Warmdean at [65] and [66], described the evidence before the court for the purposes of the div 2 hearing as to the respondent's responses to supervision. Derrick J in The State of Western Australia v Warmdean[No 3] at [101] to [133] described the respondent's behaviour, attitudes and conduct while on the supervision order imposed by Curthoys J on 11 December 2020 prior to being returned to detention. I had regard to the same.
As noted above, the respondent contravened the supervision order imposed on 11 December 2020, which lead to it being rescinded and the imposition of a continuing detention order. I note that the respondent did not commit a serious offence while in the community subject to the supervision order. Details of the respondent's contravention offences were summarised by Derrick J in The State of Western Australia v Warmdean[No 3] at [78] to [100], and I had regard to the same.
In relation to the supervision order imposed by Curthoys J, Ms Collyer reported that the respondent had acknowledged that he had found it overwhelming and had struggled to understand aspects of it, particularly not being able to meet with his younger siblings. Ms Collyer further reported that the respondent had stated that he now had a better understanding of what to expect and believed he would feel less overwhelmed if allowed to return to the community.[42]
[42] Exhibit 4, page 1396 (Ms Collyer's report, par 30). See also The State of Western Australia v Warmdean [No 3] [156] (Derrick J).

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

The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law, that is, to have an inclination or tendency to do something.[43] In Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 at [178], in the context of an application made under the DSO Act, Murray AJA stated that:
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[43] The State of Western Australia v Bellamy [2013] WASC 467 [70] (Simmonds J).
As was noted on behalf of the State, the respondent has six convictions for sexual offences, four of which were serious offences for the purposes of the HRSO Act. His offending commenced in his adolescence and persisted into adulthood. I accepted the State's submission that it could be concluded from the respondent's history of offending that he has a propensity to commit serious sexual offences in the future.[44]
[44] State's submissions par 79.
My finding was consistent with that of Fiannaca J in 2019. In his Honour's reasons in The State of Western Australia v Warmdean at [115], his Honour found that:
The repetition and nature of the offences, and the fact that he has continued to offend despite being convicted and serving periods of detention for earlier offences, demonstrated that the respondent has a propensity to commit serious sexual offences in the future, particularly in circumstances in which he is intoxicated and has become aroused by pornography. Further, the pattern of escalation and his admission that he intended to rape the last victim indicate a propensity to commit a sexual offence that is more serious than those he has committed so far, although the last incident is likely to have involved a more serious offence if the respondent had not been disturbed.

Whether or not there is any pattern of offending behaviour - s 7(3)(d)

As noted on behalf of the State, 'pattern', as it pertains to behaviour, is defined in the Macquarie online dictionary as a recurrent way of acting by an individual or group towards a given object or in a given situation.
All of the respondent's victims were female adults, with the exception of a 15 year old victim in 2012. All were strangers that he encountered in public places. He offended in a similar way by indecently assaulting them 'with the clear intention to progress to sexual intercourse'. He had often utilized a weapon in his offending.[45]
[45] State's submissions par 81, referring to exhibit 4, page 1411 (Dr Wojnarowska's report par 53).
The State referred to Fiannaca J's description of the pattern of the respondent's sexual and sexually motivated offending in The State of Western Australia v Warmdean at [113] to [114], which I reproduce below:
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.
The evidence before me supported this finding and I adopted the same.

Efforts to address offending behaviour and whether or not the participation in any rehabilitation program has had a positive effect - ss 7(3)(e) and 7(3)(f)

I considered whether the respondent had made any efforts to address the cause or causes of his offending behaviour, including by participating in any rehabilitation programs, and whether or not such participation had had a positive effect.
The State tendered a large volume of material at the hearing of this application without objection. There are numerous references to treatment throughout exhibits 1 to 5. I do not attempt to summarise here all of the programs that the respondent has participated in since he was first convicted of offences as a child, nor the recorded responses to each of them.
As was reported by Ms Collyer, the respondent had contact with the Department of Justice since he was a juvenile and had been enrolled in numerous educational, vocational and treatment programs since then.[46] Among other things, during a period of juvenile detention the respondent received psychological counselling to target criminogenic issues. He completed the Alcohol and Other Drugs (AOD) education and prevention program and the Emotional Management program.[47]
[46] Exhibit 4, page 1391 (Ms Collyer's report par 5).
[47] Exhibit 4, page 1391 (Ms Collyer's report par 6).
Despite the respondent having generally engaged positively in treatment over time, I accepted that there were and remain challenges. The materials before the court are consistent in their recording that the respondent has encountered difficulties with memory, language, adaptive behaviours, social skills and academics as a consequence of the presence of FASD. In her report prepared for this hearing, Ms Collyer described the respondent as having 'minimal recall of material learned in programs', and merely a 'broad understanding of the importance of refraining from violent pornography, substance use and negative peer influences'.[48]
[48] Exhibit 4, page 1399 (Ms Collyer's report par 43), referenced in the State's submissions at par 91.
As was also reported by Ms Collyer, psychological reports undertaken in 2014 identified that the respondent had participated in individual counselling and a cognitive assessment. The cognitive assessment identified significant delays with verbal comprehension, and the respondent was also observed to have recall difficulties. Combined with social and intimacy deficits, Ms Collyer noted that it had been hypothesised that the respondent's sexual offending was related to these issues.[49]
[49] Exhibit 4, page 1391 (Ms Collyer's report par 8).
In undertaking an assessment of the respondent for the purposes of the div 2 application under the DSO Act, Dr Wojnarowska reported that the respondent had commenced psychological counselling with Ms Morrison and at that time had undertaken six sessions.[50]
[50] Exhibit 2, page 617 (Dr Wojnarowska's psychiatric report dated 10 November 2018 par 18.6), as referenced in exhibit 4, page 1392 (Ms Collyer's report, par 11).
Ms Collyer in her report recorded that the respondent was ultimately placed on a continuing detention order in 2019, and that a treatment progress report indicated that the respondent had made some improvements toward insight into his offending, however continued to have outstanding treatment needs in the areas of substance abuse, emotional and sexual regulation. That report recommended that the respondent continue participation in treatment.[51]
[51] Exhibit 4, page 1393 (Ms Collyer's report par 13), referring to exhibit 2, pages 789 - 793 (Treatment progress report of Dr B Bannister dated 13 December 2019).
In 2020, 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 continuing detention order 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 continuing detention order had been implemented.[52] The respondent had completed an Intensive Sex Offender Treatment Program on 10 August 2020; and since 20 September 2018 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.
[52] The State of Western Australia v Warmdean [No 2] [30] - [49] (Curthoys J), as noted in The State of Western Australia v Warmdean [No 3] [62] (Derrick J).
In arriving at his decision in 2020, Curthoys J also placed reliance on Dr Wojnarowska's evidence. Dr Wojnarowska's evidence at that time was that since she had reviewed the respondent for the purposes of the original application under the DSO Act, and she opined that he had clearly made progress, had retained a lot of material, and was very open and insightful.[53]
[53] The State of Western Australia v Warmdean [No 2] [51] (Curthoys J), as noted in The State of Western Australia v Warmdean [No 3] [63] (Derrick J).
The respondent was released on a supervision order by Curthoys J, following an approved NDIS plan and accommodation becoming available.
Ms Collyer reported that while subject to the supervision order imposed by Curthoys J, the respondent began to experience a deterioration in mood in or about May 2021. Suicidal ideation that progressed to attempted suicide was reported. Ms Morrison (the respondent's treating psychologist since September 2018) had opined that the respondent had experienced low mood during the term of the supervision order, resulting in suicidal ideation. His report to her of triggers for this period of destabilisation included his experience of family difficulties and his view he could not manage the restrictions of his order for the imposed 10 year period, resulting in a sense of hopelessness.[54] Additional concerning behaviours were observed by members of COMU, which broadly included: deceitful behaviours, frustration with order requirements, sexual preoccupation, possible deviant sexual interest (including numerous views of underage pubescent girls in dance or gym wear), no appropriate sexual outlet, vulnerable internet‑based behaviour caused by cognitive deficits, and risk to others.[55]
[54] Exhibit 4, page 1394 (Ms Collyer's report par 17).
[55] Exhibit 4, page 1394 (Ms Collyer's report par 16).
As to treatment gains since the 2021 review, Ms Collyer reported that the respondent attended five psychological appointments. As was noted on behalf of the State, while the respondent was in the community, sessions occurred on a weekly basis whereas once the respondent was detained, contact reduced.[56] Seven additional scheduled visits had been cancelled by the prison due to operational reasons.[57]
[56] State's submissions par 87, referring to exhibit 4, page 1394 (Ms Collyer's report par 17).
[57] Exhibit 4, page 1395 (Ms Collyer's report par 24).
In the context of the respondent's account of his treatment progress, Ms Collyer reported that the respondent expressed that he was particularly appreciative of his NDIS support workers and their assistance while he was in the community. He explained that they were separate enough from 'government' and therefore easier to build trust with. He described them as 'like family', and that he enjoyed their support and the activities they assisted him with.[58]
[58] Exhibit 4, page 1396 (Ms Collyer's report par 29).
Dr Wojnarowska opined that despite completing the Violent Offending Treatment Program, 53 sessions of the Intensive Sex Offending Treatment Program, and years of individual counselling, the respondent's self‑awareness and insight into his offending cycle remained in the early stages of development.[59]
[59] Exhibit 4, page 1413 (Dr Wojnarowska's report par 71), cited in the State's submissions par 92.
Shortly prior to the hearing of this application, the court was provided with Ms Morrison's short summary of recent intervention.[60] Among other things, Ms Morrison reported that in the most recent session focus had been given to identifying risk related situations. Further, the respondent engaged in this discussion proactively, demonstrating that he understood the various risk management strategies in relation to drug and alcohol relapse, mood and emotion management, association with others and managing his sexual behaviour, including his use of pornography. Further, in discussion relating to his recent sexual behaviour and fantasy, Ms Morrison reported that the respondent had been more open with her than he had been previously.
[60] Exhibit 5.
Ms Morrison noted that previously, it had been apparent that the respondent could be somewhat circumspect when discussing his sexual thoughts and behaviours with her. She reported that she continued to encourage more openness and the development of trust within the therapeutic relationship, and to identify reluctance and possible shame responses when discussing sexual material; and the respondent had responded positively to this overall and seemed to be more open about discussing sexual issues.
Therefore, at the hearing of this application, there was some indication of treatment gains achieved with Ms Morrison. I weighed in the balance the respondent's efforts, including the report of his recent progress as recorded in the reports which form part of exhibit 4 and Ms Morrison's communication tendered into evidence without objection as exhibit 5.
I also noted that individual intervention had consistently been recommended. More recently, pharmacological intervention had been recommended and applied, and the respondent had been prescribed Escitalopram for the treatment of depression, a common side effect of which is lower sexual drive.[61]
[61] Exhibit 4, page 1415 (Dr Wojnarowska's report par 83); ts 313 (26 April 2023).

Expert reports and extent to which the respondent cooperated with examinations - s 7(3)(a)

Part 5 of the HRSO Act concerns the review of detention, and s 67(1) provides that unless the court otherwise orders, the chief executive officer of the Department of Justice must engage one or more qualified experts to prepare reports in accordance with s 74 to be used on a review under pt 5. As noted above, on 29 June 2022, the court made a number of programming orders by consent which included an order that the respondent undergo examination by a qualified expert, namely Dr Wojnarowska, for the purpose of preparing a report to be used at the hearing of the State's application.
In determining the application, I had regard to the reports and evidence of Dr Wojnarowska and Ms Collyer, which I summarise below.

Dr Wojnarowska's report and evidence

At par 6 of her report, Dr Wojnarowska described her qualifications. In summary, Dr Wojnarowska is a medical practitioner registered with the Australian Health Practitioner Regulation Agency. She has a specialty in psychiatry, with a sub-specialty in forensic and child and adolescent psychiatry. She received training in the use of specialised risk assessment tools and psychological tests relevant to the field of forensic and child adolescent psychiatry. I was satisfied that Dr Wojnarowska was qualified to give the opinions expressed in her report and in the course of her evidence. No concern as to Dr Wojnarowska's qualification was raised on behalf of the respondent.
Dr Wojnarowska interviewed the respondent in person on 18 November 2022 and again on 15 February 2023. The total duration of the interviews was four hours. Dr Wojnarowska reported that the respondent engaged well with the interview process, was polite and appropriate in his interactions, and rapport was established.
Dr Wojnarowska recorded that she reviewed the first, second and third volumes of the book of materials and Ms Collyer's report dated 19 January 2023. A source of information for the preparation of her report also included communications with COMU and Mr Carmichael.

Background information

Dr Wojnarowska briefly summarised the respondent's relationships, noting that both of his parents are deceased and that the respondent has limited direct contact with his family members, save for his sister who appeared to be his only social outlet.

History of offending

Dr Wojnarowska summarised the respondent's history of sexual offending in her report at pars 10 to 17.
As to the characteristics of the offending, Dr Wojnarowska observed that the majority of the respondent's sexual offences (five of the six offences) occurred when he was a juvenile. She further observed that:[62]
The offences were opportunistic in nature and although the age of the victims does not suggest the presence of a sexual deviance, the pattern of assaulting strangers on the street is consistent with deviant behaviour (not a formal diagnosis) which developed in a context of [the respondent's] early childhood experiences, his limited cognitive abilities and significant social deficits. It is likely that a rejection by his biological mother at a very young age resulted in [the respondent] harbouring anger towards her and possibly towards other women. This element of anger could be seen during his assault on the 60-year-old woman.

Most recent contraventions

[62] Exhibit 4, page 1405 (Dr Wojnarowska's report par 18).

Dr Wojnarowska recorded that the respondent had breached the supervision order made by Curthoys J in December 2020 on 13 occasions. Dr Wojnarowska summarised the breaches as having included contacting a child under 18 years without prior approval (the child being the respondent's brother); deleting photographs from his telephone without approval; and letting someone else other than a CCO or Police officer use his mobile telephone. He was also found to be in possession of videos that were suggestive of sexual assault and images of children suspected to be immediate family, without permission from a CCO.
Dr Wojnarowska noted that of particular concern was the video depicting a creature bent over what appears to be a young woman with her legs apart. Other inappropriate material found in his possession contained images of prepubescent children engaging in gymnastics and performing stretching exercises.
Dr Wojnarowska in the course of her evidence accepted that the respondent was placed on a supervision order at a young age, and there was a correlation between his lack of maturity and the fact that he found the conditions to be complex, and the breaches.[63]

Recent behaviour in detention

[63] ts 319 (26 April 2023).

Dr Wojnarowska recorded at par 22 of her report her understanding of the respondent's behaviour while subject to the most recently imposed continuing detention order. The report is consistent with the findings at [48] and [49] above.

Offence-specific treatment

Dr Wojnarowska recorded that since 2021 the respondent had attended five individual psychological counselling sessions, seven having been cancelled due to operational reasons. She noted that it was reported that his counselling had focused on interventions including peer refusal skills and developing alternative pro-social relationships.

Interviews with the respondent

As noted above, Dr Wojnarowska interviewed the respondent in person on 18 November 2022 and again on 15 February 2023, and in her report, she described those interviews.[64]
[64] Exhibit 4, pages 1407 - 1409 (Dr Wojnarowska's report pars 24 - 29 and 31 - 39).
As to the interview in November 2022, among other things, Dr Wojnarowska reported observing that the respondent appeared overwhelmed by the number of conditions; and that he found the restrictions on his contact with family members who are under the age of 18 difficult.[65] She recorded that the respondent had expressed doubt that he would be able to complete the order successfully.
[65] Exhibit 4, page 1406 (Dr Wojnarowska's report pars 25 and 26).
Dr Wojnarowska further recorded that on 1 January 2023, she was informed by Mr Carmichael that the respondent had disclosed that he had had an intention to kill the victim of his last sexual offence, which had also been disclosed by the respondent during psychological counselling. Dr Wojnarowska interviewed the respondent again in February 2023 in light of that reported disclosure.
As to the interview in November 2022, among other things, Dr Wojnarowska reported that the respondent had described his hopes for the future, which included being released and in the community with a house and steady job. She also reported that the respondent appeared goal orientated and more confident that he would be able to manage any conditions imposed.
Dr Wojnarowska reported that when questioned about his last offence and his recent disclosures concerning that offence, the respondent had openly discussed it, providing specific details. Among other things, the respondent reported that he was anxious about being caught and considered killing the victim, before being interrupted by a passer‑by. He added that he was not carrying a weapon at the time. Dr Wojnarowska further reported that the respondent did not express any remorse or empathy for the victim, nor did it appear that he fully appreciated the implications that a murder charge would have for him or the victim.
In the course of her evidence, Dr Wojnarowska addressed the differences in the disclosure made by the respondent to his treating psychologist and Mr Carmichael on the one had, and to her on the other.[66] I understood Dr Wojnarowska to say that she understood that the issue of violent thoughts, and thoughts of killing another person, were issues that were being addressed with the respondent in counselling.[67]

Psychiatric diagnosis

[66] ts 307 (26 April 2023).

[67] ts 307 - 308 (26 April 2023).

I note that Dr Wojnarowska had examined the respondent previously and had proffered her opinion of the respondent's psychiatric diagnosis.[68] In her report prepared for the purpose of this hearing, Dr Wojnarowska opined as follows:
42. There are no changes in my diagnostic opinion. [The respondent] fulfills the diagnostic criteria for Antisocial Personality Disorder and Substance Use Disorder, currently in remission. He also has a diagnosis of FASD which is highly relevant in assessment of [the respondent's] treatment needs and his ability to comply with management in the community.
[68] See exhibit 2, pages 544 - 552 (Dr Wojnarowska's report dated 1 February 2015 prepared for the purpose of sentencing the respondent in relation to prior offences); exhibit 2, pages 604 - 630 (Dr Wojnarowska's report dated 10 November 2018 prepared for the purpose of the hearing in 2019 before Fiannaca J); exhibit 3, pages 1044 - 1057 (Dr Wojnarowska's report dated 29 December 2019 prepared for the purpose of the first review of the continuing detention order imposed on the respondent and heard by Curthoys J in 2020); exhibit 3, pages 1350 - 1360 (Dr Wojnarowska's report dated 15 November 2021 prepared for the purpose of the contravention proceedings heard by Derrick J in 2021).
In the course of her evidence, Dr Wojnarowska explained that while the respondent had made admissions as to being attracted to females around 15 and 16 years of age, paedophilia specifically relates to the pre-pubescent period and that the respondent does not have a specific sexual deviance related to young children.[69]

Risk assessment

[69] ts 308 - 309 (26 April 2023).

In her report, Dr Wojnarowska expressed her assessment of the level of risk that, without a restriction order, the respondent will commit a serious offence, and recorded that the respondent's risk of reoffending had not changed since her last assessment. She opined that when applying various tools and her clinical assessment, she considered the respondent to be at high risk of serious sexual reoffending if not subject to an order under the HRSO Act.[70]

Tools

[70] Exhibit 4, page 1415 (Dr Wojnarowska's report par 79).

In her report, Dr Wojnarowska noted that sexual violence risk assessment is the process of evaluating people to characterise the risks that they will commit sexual violence in the future, as well as the steps that could be taken to minimise these risks. In undertaking the risk assessment, Dr Wojnarowska reported that she used three tools as part of her assessment of the respondent, described below.
First, the Static-99R, which I understood to be an actuarial tool intended to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information found to correlate with sexual recidivism in adult male sex offenders. Dr Wojnarowska explained in her report that the Static-99R contains 10 items, which are added together to create a total score; that the Static-99R does not measure all relevant risk factors and a person's risk for sexual recidivism may be higher or lower than indicated by the Static-99R based on factors not included in the tool; and that the Static-99R has moderate accuracy in ranking offenders according to their relative risk for sexual recidivism.
The respondent's Static-99R score was Level IVb, or the 'well above average risk' range. Dr Wojnarowska explained that offenders released with the same score as the respondent had an average five year sexual recidivism rate of 30% and an average ten year sexual recidivism rate of 37%. Dr Wojnarowska further reported that the results from the Static-99R underestimate the risk for indigenous populations.[71]
[71] Exhibit 4, page 1410 (Dr Wojnarowska's report pars 47 - 48).
Secondly, the Hare Psychopathy Checklist - Revised (PCL-R), which Dr Wojnarowska explained is a tool that assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy.
Dr Wojnarowska reported the respondent's score on the PCL‑R was in the 'low - moderate range', which was below the threshold usually required to confirm a diagnosis of psychopathy. The respondent scored in the low range in the aspects of the PCL‑R that measure interpersonal and affective functioning, and in the moderate range of the aspect measuring social deviance. Dr Wojnarowska opined that the scale reflected the respondent's tendency of impulsivity, poor behavioural control, early behavioural problems, juvenile delinquency, and revocation of conditional release.
Thirdly, the Risk for Sexual Violence Protocol (or RSVP), which provides a clinical judgment framework. Dr Wojnarowska explained that the RSVP is a tool designed for use with men and women aged 18 and over who have a known or suspected history of sexual violence. Dr Wojnarowska outlined the RSVP is a tool designed to consider static and dynamic risk factors for future sexual offending.
In assessing the respondent against the structure clinical judgment framework provided by the RSVP, Dr Wojnarowska considered static and dynamic risk factors, including the respondent's sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability.
In the course of her evidence, Dr Wojnarowska was asked about par 66 of her report, where in the context of the application of the RSVP framework, she recorded:
66. Violent or Suicidal Ideations
Despite being under stress and feeling hopeless about his imprisonment, he has not resorted to threats of violence or aggression towards other people. The area of suicide remains a concern especially when placed in the community. His recent disclosure of intent to kill his victim is of a major concern elevating his risk of seriously harming another person. This factor is present.
As to her opinion expressed in the second sentence of the passage reproduced above, Dr Wojnarowska explained her view as follows:[72]
[The respondent] up until really recently, has been very vulnerable to stress. He would use compensatory mechanisms such as resorting to drug or alcohol use, was exposed to stressors associated with his family. He is still very immature and impulsive. He had suicidal thoughts in the past. And that's why there is – that risk of suicide or self-harm is chronic. However, given his recent engagement – well, his – the recent report that we received from his psychologist, I would say that this risk is somehow decreased at this point in time. He appears to be stable. There has been no evidence of aggression or expression of violent or suicidal thoughts in the recent months.

Risk scenarios

[72] ts 306 (26 April 2023).

As to risk scenarios, I took into account pars 73 to 78 of Dr Wojnarowska's report, set out below:
RISK SCENARIO
73. [The respondent] has consistently offended against stranger females. If he were to reoffend, a similar scenario is likely to occur. It is also likely that further escalation of his offending will take place as if not stopped by a passer-by or other witness he is likely to sexually penetrate the victim.
74.He will likely be living in the community where females move freely in the public areas such as parks, reserves, streets, or public transport at any time of the day, including evening hours. He is likely to drink or smoke cannabis or possibly take methamphetamine with his family or friends. He may become sexually aroused after watching pornography or may just become sexually frustrated after a period of time without an outlet. He is unlikely to develop a relationship with an age appropriate woman. An argument with someone may or may not occur and he may or may not be angry just prior to his offending.
75.He is likely than to leave to go for a walk or to catch public transport searching for a vulnerable female. He is likely to offend against any female, irrespective of their age, except for prepubescent children (less than 10 years old). There will be a degree of planning how best to approach the victim to secure her compliance. The presence of other people in the vicinity will not be a deterrent.
76.He is likely to offend alone. The harm to the victim is likely to be psychological and physical. The physical injuries will relate to the sexual act and additional violence. It is also possible he may resort to killing the victim to obtain compliance and avoid being caught for the offence.
77.Every-day life stressors, arguments with his family members and boredom associated with lack of structured activity would lead to [the respondent] resorting to cannabis to regulate his mood. Limited opportunity to engage sexually with consenting, age-appropriate females is also perceived as an important risk factor.
78.The main driving force in his offending will be his sexual frustration and anger associated with his personal circumstances facilitated by alcohol or other drugs intoxication.

Opinion and recommendations

Having proffered the opinion that the respondent presents a high risk of reoffending in a serious sexual manner as defined by the HRSO Act, DrWojnarowska outlined a number of recommendations in her report as to supervision of the respondent and treatment.
Dr Wojnarowska reported that she was of the opinion that the respondent's risk could be managed in the community subject to a supervision order. Dr Wojnarowska noted that the respondent had previously been released subject to a supervision order with 59 conditions, the number of which he appeared to be concerned about and had fixated upon. She expressed her view that certain conditions ought be simplified through amendment, and she supported the respondent having controlled access to pornography and sex workers.[73] Dr Wojnarowska expressed the view that the respondent is not sadistic and is not sexually aroused by violence itself. She did not consider exposure to hardcore pornography as the respondent's main risk factor.[74]
[73] Exhibit 4, page 1415 (Dr Wojnarowska's report par 81); ts 317 (26 April 2023).
[74] ts 321 (26 April 2023).
Dr Wojnarowska also expressed the view that the respondent should be assisted in applying for approval to contact his family, noting that due to his cognitive deficits the respondent will find the process of applying for approval daunting. She also noted that the respondent tends to misinterpret conditions imposed, which has resulted in breach of his conditions.[75]
[75] Exhibit 4, page 1415 (Dr Wojnarowska's report par 82); ts 312 (26 April 2023).
As to treatment, Dr Wojnarowska noted that the respondent had commenced taking medication for depression, which has a common side effect of lessening sexual drive. She recommended that the medication be used to manage the respondent's libido, and in her evidence recommended a dosage increase should the respondent be released on a supervision order. I understood the respondent to have indicated to Dr Wojnarowska his agreement to the same.[76]
[76] Exhibit 4, page 1415 (Dr Wojnarowska's report par 83); ts 313 (26 April 2023).
Dr Wojnarowska recommended ongoing psychological treatment, which she opined should be focused on offence specific treatment addressing the respondent's criminogenic needs including emotional management, communication and social deficits, self-esteem and sexual interest.[77]
[77] Exhibit 4, page 1415 (Dr Wojnarowska's report par 84).
Dr Wojnarowska recorded that in her view, the respondent will require significant support if he is to be successfully reintegrated into the community. She noted that he had developed a good relationship with his service provider (Plan and Grow), and recommended that a request for their continued support be made.[78]
[78] Exhibit 4, page 1416 (Dr Wojnarowska's report par 85).
Dr Wojnarowska opined as to the appropriate duration of a supervision order if one was imposed. While in her report, Dr Wojnarowska had suggested a duration of 10 years, in the course of her evidence, she reflected upon the applicant's age, being 25, his immaturity and cognitive limitations. Dr Wojnaroswka opined that, in her view, a five year duration might be more appropriate, with the possibility of review at that time. She expressed the view that the respondent would not be able to function without supports within the next five years.[79]
[79] ts 310 (26 April 2023).
I understood Dr Wojnarowska's evidence to be that the risk posed by the respondent may decrease with age and treatment. She opined that despite having antisocial features, the respondent was motivated to do well. He is not psychopathic, and that is why Dr Wojnarowska considered that his prognosis was quite good, but in her view, the reduction in the risk posed by the respondent 'is not going to happen within the next couple of years'.[80] As to the respondent's level of maturity, Dr Wojnarowska opined that he presently functions as if he were in his late teens.[81]
[80] ts 310 (26 April 2023).
[81] ts 313 (26 April 2023).
As to the risk posed by the respondent and whether the risk can be managed in the community, Dr Wojnarowska's evidence was that the level of NDIS support that would be available to the respondent upon release (being the 24‑hour, seven days a week presence of an NDIS support worker) was the most important factor that she had taken into account in assessing the risk posed by the respondent upon release. She also expressed the view that with less support the respondent would not be suitable for release on a supervision order at this time.[82]
[82] ts 311 (26 April 2023).
Dr Wojnarowska expressed support for reducing the number of potential conditions and making them simpler, in light of the respondent's literacy skills and cognitive limitations.[83] I understood Dr Wojnarowska supported the imposition of conditions which might afford flexibility to the team who would manage the respondent if he were released into the community.[84]
[83] ts 311 and 314 (26 April 2023).
[84] ts 311 (26 April 2023).
As to contact with his family, Dr Wojnarowska was supportive of the respondent being able to see his brother, managed through a CCO.[85] She further opined that the respondent's risk of regressing while having contact with his family could be negated by a combination of the presence of an NDIS support worker, the team that will supervise the respondent, and the relationship he has developed with his treating psychologist.[86]

Ms Collyer's report and evidence

[85] ts 312 and 319 - 321 (26 April 2023).

[86] ts 321 (26 April 2023).

As noted above, Ms Collyer is a senior counselling psychologist employed by the Department of Justice. She prepared a report intended to provide a summary of the respondent's treatment thus far and an update on the respondent's treatment progress since January 2021.
In preparing her report, Ms Collyer reviewed the first three volumes of the book of materials tendered at this review hearing, interviewed the respondent in person for the period of approximately 120 minutes, and corresponded with Mr Carmichael from COMU.

Treatment history and progress

In her report, Ms Collyer provided an extensive outline of the respondent's treatment history and response to treatment as recorded in various assessment reports prepared for the purposes of various court proceedings. The recommendation of psychological intervention had been repeated in various reports. She also noted that antilibidinal intervention had also been recommended in the event that the respondent was released into the community.[87]
[87] Ms Collyer at par 15 of her report refers to the psychiatric report prepared by Dr Wojnarowska on 29 December 2019.

I noted that suitable accommodation had been identified and was available. The respondent may only change his address with the advance approval of a CCO.
Ongoing psychological counselling (as recommended by Dr Wojnarowska) will be a primary strategy in managing the respondent's risk of reoffending in the community. The respondent has engaged in psychological counselling with Ms Morrison, both in custody and during his time spent in the community subject to the supervision order. The conditions contemplate that the respondent will 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; and comply with the requirements of all programs designed to address his offending behaviour and/or risk of serious re-offending, as directed by a CCO.
Antilibidinal intervention was also recommended in the event that the respondent be released into the community.[123] The conditions contemplate that the respondent will undertake any medication regime, including medication for the purposes of antilibidinal purposes, as directed by the CCO in consultation with a medical practitioner(s), and that he comply fully with that treatment and any testing to monitor his compliance with that treatment as directed by a CCO.
[123] ts 313 (26 April 2023); exhibit 4, page 1415 (Dr Wojnarowska's report par 83).
The conditions also seek to prevent the respondent from encountering high‑risk situations. They are pro‑active and appropriately so.
While the respondent has denied ongoing drug use,[124] he previously acknowledged that substance use typically preceded his offending behaviours.[125] It was therefore appropriate that it be a condition of the respondent's release that he not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 (WA) applies, including, but not limited to, cannabis, unless the drug has been prescribed for him by a person duly authorised under the Medicines and Poisons Act 2014 (WA) and use is in accordance with the instructions of the provider.
[124] Exhibit 4, page 1395 (Ms Collyer's report par 21).
[125] Exhibit 4, page 1391 (Ms Collyer's report par 6), citing exhibit 2, pages 514 - 520 (Youth Justice Officer's report prepared by T Yates dated 19 March 2014).
The respondent had acknowledged that in the past he had watched violent pornography, had ruminated upon the viewed material, had used substances and then had offended.[126] As was observed by Fiannaca J in The State of Western Australia v Warmdean at [74], the respondent reported that he had accessed pornography from the age of 12. Furthermore, access to pornography had been identified in a number of reports as a contributing factor to the respondent's sexual offending, which was motivated by sexual gratification. In the circumstances, it was appropriate that the respondent's access to pornography be controlled, and the conditions facilitate the same.
[126] Exhibit 4, page 1398 (Ms Collyer's report par 37).
However, I was not prepared to make an order that attempted to manage the respondent engaging in consensual sexual activity with another adult, or promoted the engagement of sex workers or otherwise. I note that the conditions to be imposed upon the respondent's release include a condition that the respondent must, as directed by a CCO, make full disclosure regarding his past offending and the current order to anyone with whom he commences a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer; a condition that he must not permit any female to enter any residential address in which he resides, unless the identity of such person is approved in advance by a CCO; and a condition that he not enter any residential address in which a female is present, resides or is known to reside, unless authorised in advance by the CCO. The adequate protection of the community can otherwise be managed by standard condition 4 and the respondent's obligation to comply with any reasonable direction of the CCO, which if made, may respond to the circumstances of any consensual sexual activity with another adult as they exist at the time.
The duration of the order will be five years. In this regard, I weighed in the balance, among other things, the evidence of Dr Wojnarowska and Ms Collyer. I accepted the evidence of Dr Wojnarwoska that for the respondent, a significant amount can change in five years. I was cognisant of the respondent's age. The supervision period needs to be long enough to meet the respondent's treatment needs, but not longer than is necessary. The imposition of a supervision order for more than five years may in the end prove to be longer than is necessary, and as such a duration of five years is appropriate.
While all of the conditions, including those which facilitate the imposition of a curfew and monitoring of electronic devices, are invasive to the respondent's liberty, given the risk that the respondent presents to the community, they are appropriate and necessary. The use of the curfew restriction may also be modified during the term of the order.

Conclusion and orders

The respondent remains a high risk serious offender and the adequate protection of the community from the risk he poses is of paramount importance.
For these reasons, I was and remain satisfied, by acceptable and cogent evidence and to a high degree of probability, that the respondent remained a high risk serious offender. Further, I concluded that the risk of reoffending may be adequately managed in the community with the imposition of a supervision order for a period of five years. Accordingly, I rescinded the continuing detention order and made a supervision order in the terms provided to the parties in advance of the hearing on 26 April 2023, set out at sch A to these reasons.
It is of upmost importance that the respondent be assisted in understanding the conditions to which he will be subject, particularly as he may misinterpret them. He ought be reminded of them regularly in the presence of his support workers. He ought be assisted in navigating approvals under the supervision order.
Further, the respondent should be assisted in building pro-social relationships, particularly with his relatives. The respondent has expressed a desire to have ongoing contact with his siblings in the future. It is likely that he will require assistance in seeking approval and understanding the conditions that will apply to those interactions, particularly with his younger siblings.
Continued treatment (medical and psychological) is also imperative. While the respondent has made some treatment gains, he has significant unmet treatment needs. Furthermore, any proposed change in the level of support intended to be made available to the respondent (funded pursuant to the NDIS) must be brought to the prompt attention of the respondent's CCO, particularly should it be contemplated that the respondent receive less than 24 hours a day, seven days per week support.

Sch A - Supervision order conditions

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

1.Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street, East Perth WA, within 48 hours of release to the order and advise the officer of your current name and address;
2.Report to and receive visits from, a CCO as directed by the court;
3.Notify a CCO of every change of the person's name, place of residence, or place of employment at least 2 business days before the change happens;
4.Be under the supervision of a CCO, 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;
7.Be subject to electronic monitoring under section 31;

ADDITIONAL CONDITIONS

Where you will live

8.Reside at [redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you;

Reporting to a CCO and supervision by a CCO

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.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;
11.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

12.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;
13.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

14.Undertake any medication regime, including medication for the purposes of anti libidinal 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;
15.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;
16.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

17.Report to the Officer-in-Charge of the Serious 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;
18.Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
19.If requested, permit Police Officers to enter and search your residence and/or vehicle and search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order;
20.Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020;
21.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

22.Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this Order, including confidential information;
23.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

24.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;
25.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 you must not look at any victim;
26.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

27.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;
28.Not commit an offence under s 202, s 203, s 204, s 557K Criminal Code 1913 (WA) or s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;
29.Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
30.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

31.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;
32.When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
33.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

34.Not to possess, or purchase, or consume or use alcohol;
35.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.

36.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;
37.Provide a valid sample for the testing described in Condition 36;
38.Not to remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place. If you are the sole occupant of the address, request those consuming prohibited drugs leave the address, if they refuse or otherwise do not leave, contact police and request that the police remove the people consuming prohibited drugs;
39.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;
40.Not view, access or possess in either electronic or hardcopy form any pornographic material unless with the approval by a CCO; pornographic materials means material that describes, depicts or represents a person or part of a person who is or appears to be engaging in sexual activity or in a sexual context;
41.Not enter any residential address in which a female is present, resides or is known to reside, unless authorised in advance by the CCO;
42.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;
43.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);
44.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;
45.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;
46.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;
47.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;
48.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;
49.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;
50.Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
51.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;
52.Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in Condition 52, without prior approval of the CCO;
53.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 52, or any online accounts, to any person other than a CCO or Police Officer;
54.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;

55.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; and
56.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.
LP
Associate to the Honourable Justice Strk
6 JUNE 2023