The State of Western Australia v West [No 6]
[2019] WASC 427
•27 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WEST [No 6] [2019] WASC 427
CORAM: DERRICK J
HEARD: 15 NOVEMBER 2019
DELIVERED : 27 NOVEMBER 2019
FILE NO/S: DSO 4 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DARREN HARLEY WEST
Respondent
Catchwords:
Dangerous sexual offender - Fifth periodic review - Whether respondent remains a serious danger to the community - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if respondent released on a supervision order
Legislation:
Criminal Code (WA)
Dangerous Sexual Offenders Act 2006 (WA)
Evidence Act 1906 (WA)
Prisons Act 1981 (WA)
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Ms M R Barone SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 313
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v West [No 3] [2015] WASC 188
Director of Public Prosecutions (WA) v West [No 4] [2016] WASC 205
Director of Public Prosecutions (WA) v West [No 5] [2018] WASC 33
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
GBT v The State of Western Australia [2019] WASCA 40
Italiano v The State of Western Australia [2009] WASCA 116
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Misko [No 6] [2018] WASC 389
The State of Western Australia v Narkle [2019] WASC 404
The State of Western Australia v Narrier [No 5] [2019] WASC 17
The State of Western Australia v Newland [2018] WASC 344
The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359
The State of Western Australia v Rao [2019] WASC 93
The State of Western Australia v West [2013] WASC 14
The State of Western Australia v West [No 2] [2014] WASC 83
DERRICK J:
Introduction
On 26 June 2019 the applicant applied for the respondent's continuing detention order to be reviewed as soon as practicable after 30 June 2019 pursuant to s 29 and s 31 of the Dangerous Sexual Offenders Act 2006 (WA) (Act) (the application).
The background to the application is as follows.
On 23 January 2013 Corboy J found that the respondent was a serious danger to the community and made a continuing detention order in relation to him pursuant to s 17 of the Act.[1]
[1] The State of Western Australia v West [2013] WASC 14.
During the period 2015 to 2018 the continuing detention order has been annually reviewed on four occasions pursuant to s 29 and s 31 of the Act. Following each of the reviews the continuing detention order has been affirmed.[2]
[2] The State of Western Australia v West [No 2] [2014] WASC 83; Director of Public Prosecutions (WA) v West [No 3] [2015] WASC 188; Director of Public Prosecutions (WA) v West [No 4] [2016] WASC 205; Director of Public Prosecutions (WA) v West [No 5] [2018] WASC 33.
The second review was conducted by Hall J. In his reasons for declining to rescind the continuing detention order Hall J found that the respondent remained at high risk of reoffending and that the factors that contributed to the risk included the respondent's psychopathic traits that were not likely to improve over time.[3] His Honour found that the respondent had gained some insight into his offending as to relevant risk factors but that his ability to self‑manage was limited.[4] His Honour expressed the view that any plan to release the respondent into the community needed to involve a high level of external control which in practical terms meant regular and constant monitoring both by personal contact and Global Positioning System (GPS) tracking.[5] His Honour stated that the monitoring would need to be effective in controlling any relapse into alcohol use.[6] His Honour expressed the view that it would also be desirable if opportunities for employment were made available to the respondent to avoid the risk of boredom.[7] His Honour stated that any place of residence for the respondent needed to be at a location where controls to prevent the risk of reoffending could be put in place and adequately managed.[8]
[3] Director of Public Prosecutions (WA) v West [No 3] [33].
[4] Director of Public Prosecutions (WA) v West [No 3] [33].
[5] Director of Public Prosecutions (WA) v West [No 3] [33].
[6] Director of Public Prosecutions (WA) v West [No 3] [33].
[7] Director of Public Prosecutions (WA) v West [No 3] [33].
[8] Director of Public Prosecutions (WA) v West [No 3] [34].
The third review was also conducted by Hall J. In his reasons for refusing to rescind the continuing detention order Hall J made the same findings as he had made on the third review,[9] and consequently also found that there had been little change in the respondent's situation over the previous 12 months.[10] His Honour made the point that there was a real danger that the respondent would become institutionalised and less suitable for release into the community on any basis.[11] His Honour noted that in the course of the evidence put before him during the review a number of options had been canvassed that could increase the respondent's potential for release at the next review.[12] His Honour expressed the view that a number of matters should be considered for inclusion in any treatment or management plan for the respondent over the following 12 month period namely:
1.Moving the respondent to the Eastern Goldfields Regional Prison (EGRP);
2.Placing the respondent on a waitlist for public housing either directly or through the Dangerous Sexual Offender Support Accommodation Program (the Program) run by Uniting Care West (UCW);
3.Attempting to identify a male indigenous mentor for the respondent;
4.Providing educational skills training to improve the respondent's prospects for employment; and
5.Allowing day release or participation in work parties.[13]
[9] Director of Public Prosecutions (WA) v West [No 4] [41].
[10] Director of Public Prosecutions (WA) v West [No 4] [43].
[11] Director of Public Prosecutions (WA) v West [No 4] [43].
[12] Director of Public Prosecutions (WA) v West [No 4] [44].
[13] Director of Public Prosecutions (WA) v West [No 4] [44].
The fourth and most recent review was conducted by Corboy J.[14] In deciding not to rescind the continuing detention order his Honour said the following:[15]
I concluded that the community could not be adequately protected if the CDO was rescinded and a supervision order was made. In my view, the evidence in the review established that the respondent had only a rudimentary understanding of the steps required to manage his risk of offending. I agreed with the finding made by Hall J in the third review that a high level of external control and supervision would be required if the respondent was to be released from custody. Plainly, the necessary degree of supervision requires that the respondent be provided with supervised and supported accommodation.
In relation to the plans to assist the respondent's release to the community that were referred to by Hall J in the third review, the evidence disclosed that arrangements had been made for the respondent to be transferred to the EGRP and he was wait listed for public housing in Kalgoorlie. A possibility for future accommodation in Perth had also been identified. However, there was no evidence that attempts had been made to identify a culturally appropriate mentor for the respondent or that he had been able to participate in skills training or day release or work participation programmes. Obviously, those are matters that would facilitate his progress towards release. It was also of concern that the respondent may not be able to access individual counselling while at the EGRP. It was apparent from Dr Wojnarowska's evidence that the respondent would benefit from ongoing psychological counselling, preferably on an individual rather than a group basis.
[14] Director of Public Prosecutions (WA) v West [No 5]. Corboy J delivered his reasons for decision orally on 30 June 2017 but did not publish his reasons in written form until 2 February 2018.
[15] Director of Public Prosecutions (WA) v West [No 5] [30] ‑ [31].
As a result of the application, on 15 November 2019 the respondent appeared before me for his fifth periodic review since having been made the subject of the continuing detention order by Corboy J in 2013.[16]
[16] The explanation for the fact that the application was not filed until more than 12 months after the completion of the review conducted by Corboy J and requests that the review be held as soon as possible after 30 June 2019, is that since the occurrence of the review conducted by Corboy J s 29(2) of the Act has been amended so as to require the applicant to apply for all reviews of a continuing detention order after the first review to take place as soon as practicable after the end of the period of two years commencing from when the continuing detention order was most recently reviewed.
At the review hearing the applicant submitted that I should find that the respondent remains a serious danger to the community and that I should affirm the continuing detention order. The respondent, although he did not formally concede the point, did not argue that I should find that he is not a serious danger to the community. Rather, he contended that the risk he presents to the community can be adequately managed by releasing him into the community on a supervision order with appropriate conditions.
For the reasons set out below I have decided that the respondent remains a serious danger to the community, that the risk that he poses to the community cannot be adequately managed by releasing him into the community on a supervision order and that the continuing detention order must therefore be affirmed.
These reasons for decision should be read together with and in light of the above referred to decisions previously made in relation to the respondent under the Act.
Evidence on the review
At the review hearing the applicant tendered, without objection, the following into evidence:
1.A book of materials dated 24 July 2019 containing the following: historical information relating to the respondent including medical treatment records; a report prepared by Dr Gosia Wojnarowska, consultant psychiatrist, dated 17 July 2019; a Department of Justice (Department) Dangerous Sexual Offender Treatment Progress Report prepared by Dr Tara Yewers, counselling psychologist with the Department's Forensic Psychological Service (FPS) dated 12 July 2019; and a Community Supervision Assessment Report prepared by Ms Phillipa Casserly, Senior Community Corrections Officer (CCO) with the Department's Corrective Services division, dated 23 July 2019;
2.A supplementary book of materials dated 14 November 2019 containing the following: a report prepared by Ms Cindy Wieman, occupational therapist from the Centre for Applied Behaviour Analysis, dated 2 September 2019; a neuropsychological assessment report prepared by Dr Elizabeth Vuletich, consultant clinical neuropsychologist, dated 6 November 2019; an updated Community Supervision Assessment Report prepared by Ms Kara Cassam, Team Leader, Community Offender Monitoring Unit (COMU), dated 8 November 2019; email exchanges between the office of the Director of Public Prosecutions for Western Australia (DPP) and Ms Cassam in August 2019; and an email from Dr Joy Rowland, Director Medical Services, Offender Management, Corrective Services, to Ms Cassam dated 2 August 2019;
3.An email from the DPP to the court dated 14 November 2019 setting out some additional information provided to the DPP by Ms Cassam; and
4.Medical progress notes relating to the respondent for the period 23 May 2019 to 13 November 2019.
At the review hearing Dr Wojnarowska and Ms Cassam were called by the applicant to give supplementary oral evidence.
The respondent did not adduce any evidence on the review.
Dr Wojnarowska was responsible for assessing the respondent for the purposes of, and provided evidence on, the initial application made in relation to him and the second, third and fourth reviews.
Relevant statutory provisions and applicable legal principles
Section 33 of the Act provides as follows:
(1)On a review of a person's detention under section 31 -
(a)if the court does not find that the person remains a serious danger to the community it must rescind the continuing detention order; or
(b)if the court finds that the person remains a serious danger to the community it must -
(i)affirm the continuing detention order; or
(ii)with effect from a date specified by the court, but not earlier than 21 days after the day on which the review is concluded, rescind the continuing detention order and make a supervision order in relation to the person.
[(2)repealed]
(3)Subject to subsection (4), in making a decision under subsection (1)(b), the paramount consideration is to be the need to ensure adequate protection of the community.
(4)A court cannot make an order under subsection (1)(b)(ii) unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions of the order.
(5)The onus of proof as to the matter described in subsection (4) is on the person.
Section 7(1) of the Act is in the following terms:
Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.
The references in s 7(1) to a 'continuing detention order' and to a 'supervision order' are references to an order made under s 17(1)(a) and an order made under s 33(1)(b)(ii) respectively.[17]
[17] Act, s 3.
As to the term 'serious sexual offence' used in s 7(1), s 3 of the Act relevantly provides that 'serious sexual offence' has the meaning given to the term in s 106A of the Evidence Act 1906 (WA). Section 106A provides that the term 'serious sexual offence' means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years imprisonment or more, or an offence under a repealed section of the Criminal Code (WA) (the Code) if the acts or omissions that constituted an offence under that section are substantially the same as the acts or omissions that constitute an offence (the new offence) under a section or chapter of the Code mentioned in pt B of sch 7 and the maximum penalty that may be imposed for the new offence is 7 years or more.
If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1), it necessarily follows that the person is a serious danger to the community.[18]
[18] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [66], [68]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [21]; The State of Western Australia v Newland [2018] WASC 344 [12]; GBT v The State of Western Australia [2019] WASCA 40 [21].
It is important to appreciate that a finding under s 33(1)(b) that a person 'remains a serious danger to the community' is, by reason of s 7(1), a finding made as to the person's risk of committing a serious sexual offence if they are not subject to a continuing detention order or a supervision order. In other words, a finding that a person remains a serious danger to the community is to be made on the assumption that the person is not subject to a continuing detention order or a supervision order. Thus, as Quinlan CJ stated in The State of Western Australia v Rao[19] in dealing with the interrelationship between s 7(1) and s 17 of the Act, his Honour's comments being equally applicable to the interrelationship between s 7(1) and s 33(1)(b):
There is therefore an essential interrelationship between s 7 and s 17 of the Act. As the assessment of whether a person is a 'serious danger to the community' is made upon the assumption that there is no detention or supervision of the offender, it follows, as a matter of the purpose of the Act as a whole, that an order made under s 17 (either detention or supervision) is intended to remove or ameliorate the risk that the person will commit a serious sexual offence, so that there is no longer an 'unacceptable risk' of that occurring. In other words, the purpose of the Act as a whole is that, as a consequence of the detention or supervision order, the person will no longer be 'a serious danger to the community'.
[19] The State of Western Australia v Rao [2019] WASC 93 [29].
An unacceptable risk of the kind described in s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence the person is likely to commit (if that can be predicted), the serious consequences for the victim if the person commits a further serious sexual offence and the serious consequences for the person if a continuing detention order or supervision order is made.[20] That is, the court is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[21]
[20] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [12]; GBT v The State of Western Australia [21].
[21] Director of Public Prosecutions (WA) v Williams [63]; GBT v The State of Western Australia [21].
Section 7(2) of the Act provides:
The DPP has the onus of satisfying the court as described in subsection (1) and the court must be satisfied ‑
(a)by acceptable and cogent evidence; and
(b)to a high degree of probability.
In other words, before the court can find that the person is a serious danger to the community, the court must be satisfied by acceptable and cogent evidence and to a high degree of probability that there is an unacceptable risk that if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. 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.[22] This does not necessarily mean that the risk must be at some high percentage of probability, a risk may be less than 50% yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those matters have been proved to a high degree of probability by acceptable and cogent evidence.[23]
[22] Director of Public Prosecutions (WA) v GTR [28].
[23] Director of Public Prosecutions (WA) v GTR [28]; The State of Western Australia v Newland [15].
In deciding whether to find that a person is a serious danger to the community the court must have regard to the matters set out in s 7(3).
As is apparent from the terms of s 33(1) of the Act, if the court finds that a person remains a serious danger to the community it must affirm the continuing detention order or with effect from the date specified in the section, rescind the continuing detention order and make a supervision order in relation to the person. Further, and as s 33(3) specifies, the paramount consideration for the court in deciding whether to affirm the continuing detention order or rescind the continuing detention order and make a supervision order in relation to the person, is the need to ensure adequate protection of the community. However, other considerations do apply. The use of the word 'adequate' in the section indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[24] In this regard I respectfully adopt the following statements of Beech J in Director of Public Prosecutions (WA) v DAL [No 2]:[25]
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 Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the Act applies would ever be released. 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.
[24] Director of Public Prosecutions for Western Australia v Williams [64] ‑ [65]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21].
[25] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33] (footnotes omitted). Also adopted in The State of Western Australia v Narkle [2019] WASC 404 [13].
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.[26]
[26] The State of Western Australia v Latimer [2006] WASC 235 [25]; Director of Public Prosecutions (WA) v Decke [15]; The State of Western Australia v Newland [22].
With respect to s 33(4) of the Act the term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition under s 18(1) that must be included in the order. Section 18(1) of the Act specifies seven conditions that must be included in any supervision order.
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 object of the supervision order and the Act, namely the adequate protection of the community by management and mitigation of the risk that the offender will commit a serious sexual offence.[27]
[27] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v Narrier [No 5] [2019] WASC 17 [113].
As to the purpose of a review hearing, I respectfully agree with and adopt 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]:[28]
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. (footnotes omitted)
[28] The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359 [7] ‑ [11].
In the context of the present review it is not necessary for me, in dealing with the question whether the respondent remains a serious danger to the community, to deal individually and expressly with each of the matters specified in s 7(3) in the order in which they appear in the section. However, my below remarks are made in light of, and in order to address, the matters that are specified in s 7(3).
The respondent's history of sexual offending and personal circumstances
The respondent's personal circumstances and his history of sexual offending were set out by Corboy J in his reasons for making the continuing detention order.[29] It is not necessary to repeat all that was said by Corboy J herein. It suffices to say the following:
1.On 18 March 1996 the respondent was convicted of four offences of sexually penetrating a child between the ages of 13 and 16 years. The respondent committed these offences over a period of four days in July 1995. All of the offences were committed against the same 15‑year‑old female complainant, with two of these offences being committed during the same incident. The form of sexual penetration the subject of three of the offences was penile/vaginal. The form of sexual penetration the subject of the fourth offence was digital/vaginal. The respondent was sentenced to a total term of imprisonment of 2 years and 19 weeks for the four offences;
2.On 15 August 2005 the respondent was convicted of sexually penetrating a child between the ages of 13 and 16 years. The respondent committed this offence on an unknown date between 1 April 2004 and 28 June 2004. The female complainant was 15 years old. The form of sexual penetration was penile/vaginal. The respondent was sentenced to 2 years and 4 months imprisonment for the offence;
3.On 3 November 2006 the respondent was convicted of one offence of sexually penetrating a child over the age of 13 and under the age of 16. On 10 April 2007 the respondent was convicted of an offence of indecently dealing with a child over the age of 13 and under the age of 16. The respondent committed the offences on two different occasions between 10 October 1995 and 14 November 1995. He committed the sexual penetration offence against a 14‑year‑old female, the form of sexual penetration being penile/vaginal. He committed the indecent dealing offence against a 13‑year‑old male, the indecent dealing being comprised of an attempt by the respondent to place his penis in the complainant's anus. The respondent was sentenced to a total of 6 years imprisonment for the offences.
[29] The State of Western Australia v West [4] ‑ [17].
In addition, in March 2014, while he was subject to the continuing detention order, the respondent was convicted of one offence of sexually penetrating a child. The respondent committed this offence on 5 April 2001. He was sentenced to 2 years imprisonment for the offence.
Developments since the last review
The evidence tendered by the State reveals the following about the respondent's treatment, progress and conduct during the two year period since the last review.
Performance in prison
During the period between August 2017 and August 2018 the respondent displayed argumentative and non‑compliant behaviours, particularly during interactions relating to daily medication requirements. These behaviours have in the main dissipated.
On 24 May 2017 the respondent was transferred from Acacia Prison to EGRP. However, on 10 May 2018 he was transferred to Casuarina Prison to facilitate medical assessments and medical treatment in Perth hospitals for cardiac related health issues. For the latter half of 2018 the respondent moved between the Casuarina Prison infirmary, Fiona Stanley Hospital and Royal Perth Hospital.
On 8 June 2017, after the Community Supervision Assessment Report for the previous review had been completed, a prisoner at EGRP made an allegation that the respondent had propositioned him for sexual contact. An EGRP internal investigation was conducted. The investigation concluded that the prisoner had spent two extended periods of time in the respondent's cell on 28 May 2017, that the prisoner's pants were pulled down but that no sexual act occurred. Information obtained from the respondent and the prisoner revealed that the respondent had been singing a tribal song known by the respondent and the prisoner to include the expectation, in a cultural sense, for both of them to remove their clothing. A management plan was implemented by EGRP to manage further risk within a similar context. The management plan specified that the respondent was not permitted to enter any other cell or have another prisoner enter his cell without written permission from the delegated authority. The management plan also included restrictions aimed at managing the respondent's movements around the prison facility.
On 1 July 2019 the respondent was involved in a physical confrontation with another prisoner who he identified as his nephew. The respondent and the other prisoner were reported to be yelling at each other and pushing each other before prison officers intervened. While the other prisoner was being physically restrained by a prison officer, the respondent 'jabbed' the prison officer in the back with a mop while attempting to strike the other prisoner. Following the incident the respondent was managed under close supervision from 2 July 2019 to 9 July 2019 and under basic supervision from 9 July 2019 to 14 July 2019. He returned to standard supervision on 14 July 2019.
Reports indicate that since the dissipation of the respondent's argumentative and non‑compliant behaviours, and save for the above referred to incident with the other prisoner on 1 July 2019, the respondent's prison behaviour has been appropriate. He is reported to interact appropriately with his peers and officers, to abide by unit rules and is not considered to be a management problem.
On 17 April 2019 the respondent was transferred back to EGRP.
On 18 July 2019 the respondent was transferred to Acacia Prison. This was done to facilitate UCW's assessment of the respondent's suitability for housing in the Perth metropolitan area under the Program.
On 13 February 2018 and 19 June 2019 the respondent was subjected to urinalysis testing. Both of the samples provided by the respondent returned negative results.
General health
In November 2018 the respondent underwent cardiac surgery for the review of his aortic and mitral valve replacement (the replacement having occurred in 2000) and a single coronary artery bypass. He has recovered well.
The respondent has other multiple health problems including diabetes type 2, renal problems associated with his diabetes, hyperlipidaemia, hypothyroidism, asthma and chronic obstructive pulmonary disease. His conditions are controlled by medication. His general state of health is currently stable.
The respondent has not been prescribed antidepressant Selective Serotonin Reuptake Inhibitor (SSRI) medication which was recommended as an anti‑libidinal medication.
Skills training - employment
Since the last review the respondent has been employed within the prison setting in the kitchen, as a general cleaner and as a miscellaneous worker. However, his periods of employment have been interrupted by illness.
The respondent's more recent employment roles have not involved self‑care planning. However, the skills involved in the work that he has performed are described as 'transferrable'.
Mentor engagement
After the respondent's transfer to EGRP a mentor who attended that prison was approached to engage with the respondent. Informal contact occurred between the mentor and the respondent before he was transferred to Casuarina Prison on 10 May 2018.
After the transfer to Casuarina Prison the respondent was not able to continue his engagement with the mentor until he returned to EGRP.
Given that the respondent has more recently been transferred to Acacia Prison the mentor is no longer available.
Psychological intervention
Prior to his last review the respondent's FPS psychologist was Dr Krystle Borg.
On 6 July 2017 the respondent engaged in a counselling session with Dr Borg. Due to his transfer to EGRP the session was conducted by video link.
During the session with Dr Borg the respondent expressed the view that his offending had been addressed. He stated that he was not interested in any further treatment.
Given the attitude that the respondent had expressed to Dr Borg about further counselling, Dr Borg ceased further counselling treatment with the respondent at that time.
Despite the attitude to counselling conveyed by the respondent to Dr Borg in July 2017, the respondent has very recently, and no doubt in the knowledge of his upcoming review, recommenced counselling. He has seen FPS psychologist Ms Julia Morrison on three occasions. Ms Morrison last saw the respondent on 14 November 2019.
According to Ms Morrison the respondent has engaged well, has been relatively open with her and has expressed a willingness to continue to engage.
The respondent has conveyed to Ms Morrison a basic plan and a fairly vague idea of how he will be able to handle potential relapse triggers and situations. He has eventually accepted some guidance as to how to manage stress in ways other than by using the strategy of not drinking alcohol.
Ms Morrison has discussed risk management strategies with the respondent. The respondent has demonstrated a basic idea of what to avoid and what to put in place.
Dr Wojnarowska's evidence
Report
Dr Wojnarowska's report reveals the following.
Dr Wojnarowska interviewed the respondent on 20 June 2019 for a period of two hours.
At the time that she interviewed the respondent Dr Wojnarowska had no knowledge of the incident that was reported on 8 June 2017. The respondent did not mention this incident to her. In Dr Wojnarowska's view it is, given that the incident did not result in any charges being laid, difficult to draw any definite conclusions from the occurrence of the incident 'apart from noting the presence of a sexual drive, which [the respondent] has consistently minimised'.
The respondent told Dr Wojnarowska that he had recently been visited by someone regarding his accommodation and that he had agreed that he should live in Perth for some time after his release. He said that one of his victims still lived in Kalgoorlie and that there were too many people in Kalgoorlie who drink alcohol. The respondent added that he could never drink because of his heart condition.
The respondent told Dr Wojnarowska that he did not need counselling because his offences were caused by alcohol and he had no intention of returning to drinking even when his order expired. He repeated to Dr Wojnarowska what he had said during her 2017 interview with him, specifically:
No drink, no going out at night, stay at home, need to report to parole board; not to reoffend; not to be close to girls and say no to them and walk away; when a woman sits in a short skirt, walk away; can't drink with women, can't even drink with men.
When Dr Wojnarowska questioned the respondent about his offences, the answer that he gave to her was almost identical to the explanation that he provided for his offences when she spoke to him in 2017, namely:
My woman left me, she went to Wiluna, I was upset and drinking, [the victim] was smoking THC, I said don't hang around here, but she didn't want to, she was high, we went to the house, she wanted to have sex because she wanted gunja; that's why I offended.[30]
[30] It is not, having regard to the facts of the respondent's prior offences, clear from the respondent's statement which of his prior offences he was referring to.
The respondent further stated to Dr Wojnarowska that it was the victim's and his woman's fault. He stated that he did not threaten or hit the victim, that they made a big fuss about it and that he thinks that they were worried because he had a machete. He stated that he would not have used the machete and that it was for self‑protection.
When Dr Wojnarowska questioned the respondent about how he saw his life in the community he said that he would like to have a normal life. He referred to going shopping with his sister, swimming at the beach and getting a woman one day. He said that he tried not to think about women too much and if a woman came that was good but if not he would move on. He said to Dr Wojnarowska that he understood consent and that he would always 'ask them first'.
The respondent told Dr Wojnarowska that he would not watch pornography because 'that would stir me up'. He said that he would not be interested in young girls. He said, 'I closed this part of life, in the past I was, I was arguing with my woman and drinking'.
In speaking to Dr Wojnarowska the respondent agreed that he was still interested in and thinking about sex. However, he stated that he understood that thinking about sex too much was not good for him. He said that he would usually distract himself by going for a walk or talking to his friends. He denied fantasising about young girls and children.
According to Dr Wojnarowska the respondent was prepared to take some responsibility for his offences. The respondent said to Dr Wojnarowska:
I am not a sex offender, maybe I was in the past, I had sex with that girl but I am not a danger, I never threatened them, I won't drink, drink can kill me; I won't go out, I don't want to be back in jail; I know I can't have sex with kids, that's the law with (this) mob.
When Dr Wojnarowska questioned the respondent about his attitude towards women, the respondent's answer was similar to that which he had given during her last interview with him. He said that a woman has to listen to him and do things that he wants but that he would not force her to have sex if she refuses. He said that if she refuses he would walk away.
In Dr Wojnarowska's opinion the respondent is now prepared to accept that he committed 'a sexual offence' but continues to minimise the severity of what took place and to justify his behaviour by blaming women in general as well as his victims. She considers that his misogynistic attitudes do not extend to the area of consent for sexual activity and as such may not have a direct bearing on the risk of him reoffending.
Dr Wojnarowska notes that the respondent's statements are similar in content or wording to those that he expressed to her when she assessed him in 2017. However, she further notes that the respondent now accepts that for health reasons he would not be able to drink alcohol even when his order expires. She is of the view that the respondent has not accepted that he was a danger to the community but that he presents with some insight into his risk when talking about the effect of pornography on his behaviour.
In relation to his future plans, the respondent indicated to Dr Wojnarowska that he accepts that if he is released he will be residing in the Perth metropolitan area. He expressed an understanding that going back to his community at this point in time would potentially jeopardise his ability to comply with an order.
When Dr Wojnarowska questioned the respondent about the conditions of any order, if he was to be released, he had some idea of his reporting obligations and the need for him to abstain from drugs and alcohol. The respondent did not think that he required drug or alcohol counselling, or any other form of counselling, in the community but agreed to be compliant should these conditions be included as conditions of his release.
In Dr Wojnarowska's view there was evidence of major cognitive distortions by the respondent in relation to his sexual offending.
Dr Wojnarowska's diagnostic formulation has not changed since her assessments of the respondent in 2013, 2015, 2016 and 2017. There is, in her opinion, evidence of antisocial personality disorder, alcohol use disorder and sexual deviance (that is, a sexual interest in underage girls). However, she does not consider that the full diagnostic criteria for paedophilia are met.[31]
[31] Paedophilia being by definition a sexual interest in pre-pubescent girls and boys.
Dr Wojnarowska made use of the Risk Sexual Violence Protocol (RSVP) risk assessment tool in identifying the respondent's risk factors that relate to his manageability in the community. Her use of the RSVP identified the presence of the following factors that are likely to make the respondent more difficult to manage in the community:
1.Extreme minimisation and justification of his offences, as well as a deflection of responsibility for his offending;
2.Problems with self‑awareness associated with his narcissistic personality traits, grandiose sense of self and self‑serving attitudes;
3.Problems with stress and coping;
4.Problems with substance abuse, alcohol being a major factor in his risk of reoffending;
5.Problems maintaining intimate relationships due to his alcohol use, propensity for violence and misogynistic attitudes;
6.Problems with planning and impulsivity;
7.Problems engaging with treatment due to his rigid personality style, lack of insight and cultural factors; and
8.Problems with supervision.
In relation to the respondent's risk of committing further offences, Dr Wojnarowska identifies alcohol as a major factor in the respondent's risk of reoffending. She notes that although the respondent has, since his surgery, declared his readiness for full abstinence and is convinced that he would not return to drinking and would not require any assistance to remain sober, he admits that most if not all of his relatives are heavy drinkers.
Dr Wojnarowska notes that attempts at engaging the respondent in treatment in the past have not been successful. She states that his rigid personality style, lack of insight and cultural factors are the barrier in achieving therapeutic goals. Dr Wojnarowska expresses the view that although the respondent's compliance with prison rules has improved over the years, the presence of antisocial and psychopathic traits as well as problems with authority will require close management in the community.
As to the respondent's 'risk scenario' in Dr Wojnarowska's opinion there has been no change since her last assessment of him in 2017. She considers that if the respondent reoffends he is likely to commit similar offences to those that he has committed in the past. She considers that the respondent's offending is in general opportunistic although his 'encounters' with young, intoxicated females do not appear to have been accidental and have occurred in the context of alcohol intoxication. She is of the opinion that despite the respondent's assurances that he is not interested in adolescent females, this is unlikely to be the case.
In Dr Wojnarowska's view the respondent's offending behaviour is driven by his high sexual drive combined with general disregard for women and impulsivity facilitated by disinhibition while intoxicated. She considers that the respondent's offending behaviour is not likely to occur within a short period of time after release because he is unlikely to resume alcohol consumption immediately. She considers that the victims will be young females who are unsupervised at night time and who use alcohol or drugs either recreationally or to deal with withdrawal symptoms.
In summarising her assessment of the respondent's risk of reoffending, Dr Wojnarowska identifies the respondent's risk factors to include antisocial personality, psychopathic traits, sexual deviance and alcohol use disorder. She points out that the respondent has been resistant to therapeutic interventions due to his deeply entrenched beliefs about women, a sense of entitlement and possibly shame. She considers that the respondent's recent admission to offending and his acceptance of responsibility offers a new perspective on his insight and prognosis. She considers that the respondent's insight was evidenced by his comments in relation to pornography and its effect on his sexual preoccupation.
Dr Wojnarowska states that because no treatment has been available to the respondent in EGRP he has not had the opportunity to demonstrate that after taking the first step in relation to accepting responsibility he can now progress further. She considers that the respondent's management in the community would depend, alongside other factors, on his preparedness to engage openly in counselling and develop appropriate strategies to reduce his risk of reoffending.
In Dr Wojnarowska's opinion the respondent's risk of sexual reoffending has not changed since her 2017 assessment of him. In her opinion the respondent continues to be at high risk of sexual reoffending if not subject to a continuing detention order or a supervision order. She is of the opinion that the respondent's management in the community should focus on supervision, alongside counselling. She identifies the treatment goals to include identification of risk factors, relapse prevention and addressing the respondent's personality vulnerabilities with a view to increasing his insight and self‑awareness. She notes that drug and alcohol counselling would be part of the treatment. She recommends the following matters to assist in managing the respondent in the community:
1.Psychological treatment;
2.A trial of antidepressant (SSRI) medication to reduce libido;
3.Close supervision with low tolerance for breaches, especially for those related to alcohol consumption, such supervision to include GPS monitoring (which is unlikely to be available in a remote community).
Oral evidence
During the review hearing Dr Wojnarowska was questioned quite extensively by the applicant's counsel and the respondent's counsel. Ultimately, however, the evidence that Dr Wojnarowska gave in response to the questioning did not, at least in most respects, materially add to, or differ from, the contents of her report. Rather, in her oral evidence Dr Wojnarowska substantially maintained the views and opinions expressed by her in her report. Nonetheless, there were some aspects of her oral evidence to which specific reference does need to be made.
In her evidence‑in‑chief Dr Wojnarowska said the following.
There has been some change in the respondent's attitude to psychological counselling since she last assessed him.[32] Previously the respondent was not prepared to engage in psychological counselling at all whereas now, as is evidenced by his recent engagement with FPS psychologist Ms Morrison, he is prepared to engage in counselling.[33] She considers that this is quite significant progress for the respondent. [34] Her understanding is that the three counselling sessions that the respondent has recently participated in have not involved addressing his treatment needs.[35]
[32] ts 526.
[33] ts 526.
[34] ts 527, 531.
[35] ts 527.
She considers the respondent's state of general health to be a neutral factor in relation to his level of risk.[36]
[36] ts 527.
In her view, although the respondent is still of the opinion that the victims are in a way responsible for his offences, he has started to accept some responsibility for what has occurred.[37] He continues to blame alcohol for his offending behaviour.[38] This is partly correct because in her opinion the most important factor so far as the respondent's risk of reoffending is concerned is alcohol.[39] Alcohol is the most important risk factor for the respondent.[40]
[37] ts 527.
[38] ts 527.
[39] ts 527.
[40] ts 527.
In her view the respondent's strategies for avoiding alcohol if he is released into the community remain quite simplistic.[41] The respondent is of the view that he cannot drink alcohol because alcohol will kill him.[42] The respondent is adamant that he will be able to refuse alcohol when approached by others.[43] His strategies at the moment are all about avoidance rather than being proactive and having more assertive attitudes and knowing how to deal with people who are encouraging him to drink.[44] She understands the respondent has in his recent counselling sessions 'started to go a little bit further in his understanding of how he would deal with alcohol'.[45]
[41] ts 528.
[42] ts 528.
[43] ts 528.
[44] ts 528, 529 ‑ 530.
[45] ts 528.
In her opinion the respondent's well entrenched personality characteristics are unlikely to respond in the long-term to treatment.[46] It is therefore her opinion that the focus should be on close supervision rather than aiming to make significant changes in the respondent's personality style and in his understanding of self and how he presents to others.[47] In other words, the focus should be on external controls.[48]
[46] ts 528.
[47] ts 528.
[48] ts 528.
The respondent's stress coping problem is a dynamic risk factor.[49] This is something that she hopes the respondent will be able to address in his individual counselling because he can learn by simple strategies how to cope with stress.[50] At the moment his strategies are all about avoidance.[51] This approach may work for him but in her opinion stress management should be an area of treatment that his psychologist should focus on.[52]
[49] ts 528.
[50] ts 528.
[51] ts 528.
[52] ts 528 ‑ 529.
She thinks that the respondent is genuine in his expressions of readiness to remain abstinent from alcohol in the community.[53] However, whether he can maintain a stance of abstinence is hard to predict.[54] It will very much depend on the level of support that he will be receiving and also the type of people that he will be associating with.[55] Family members are much more likely to persuade him to drink than strangers.[56] In this sense she thinks that the respondent residing in the metropolitan area is a protective factor.[57] On the other hand, the respondent's inability to have regular face to face contact with members of his family and associated feelings of isolation will be one of the respondent's vulnerabilities if he is released.[58] It is therefore very hard to predict which factor will be more important in his functioning.[59]
[53] ts 529.
[54] ts 529.
[55] ts 529.
[56] ts 529.
[57] ts 529.
[58] ts 529.
[59] ts 529.
If the respondent remains single in the community this may cause him more stress.[60] Obviously not having any company could be a risk factor because it could divert his sexual interest to others.[61] On the other hand, if he is in an intimate relationship with someone who abuses alcohol, or even in a volatile relationship, that could also clearly increase his risk of reoffending.[62]
[60] ts 530.
[61] ts 530.
[62] ts 530.
She considers that the respondent's risk of reoffending would be much higher if he were to be released into an Aboriginal community rather than into the metropolitan area.[63]
[63] ts 532.
In her opinion the respondent's management in the community should be very much about supervision and management.[64] The focus should be on total abstinence with very frequent urinalysis or breath analysis for the presence of alcohol.[65] There should be a very low threshold for breaches, specifically those associated with alcohol intoxication.[66]
[64] ts 530.
[65] ts 530.
[66] ts 530.
She has been provided with the reports prepared by Ms Casserly, Ms Cassam, Ms Wieman and Dr Vuletich.[67]
[67] ts 530, 535.
In her opinion whether or not the respondent has living skills is a neutral factor so far as his risk of reoffending is concerned; it has no relevance to his risk of reoffending.[68] In her view the only factor that is important in the respondent's risk management that has been identified in the reports dealing with the respondent's living skills is the respondent's ability to remember appointments.[69] She has spoken to Ms Cassam about this.[70] The respondent's difficulties in this regard could be overcome by programming reminders for the respondent via electronic devices.[71] In her view the fact that the respondent will not be able to cook or attend to his hygiene, or that he will require prompting to clean his accommodation is irrelevant.[72]
[68] ts 533.
[69] ts 533.
[70] ts 533.
[71] ts 533.
[72] ts 533.
There will be measures put in place for the respondent; he will not be left completely to his own devices.[73] The measures are not ideal at this point in time.[74]
[73] ts 533.
[74] ts 533.
The respondent will have at least three appointments in any given week with the police, the psychologist and his CCO.[75] Therefore, if the respondent's state of health deteriorates to the point that it requires intervention this will not be an issue that is directly related to his offending.[76] If his general health deteriorates he may suffer from depression.[77] However, the fact that he may become dishevelled or depressed will not directly increase his risk, although it will probably be linked to his propensity to use alcohol.[78] Therefore, if the respondent does not cook properly, and begins to feel depressed and lonely, he will be more likely to resort to alcohol use.[79]
[75] ts 533.
[76] ts 533.
[77] ts 533 ‑ 534.
[78] ts 534.
[79] ts 534.
The presence of any vulnerable young female near the respondent's accommodation is a risk factor.[80] However, there are multiple other factors associated with the respondent's risk of committing further sexual offences and these include the characteristics of the potential victim.[81] To express a view about the presence of females living across the road from the accommodation that is proposed for the respondent, she would need to understand more about the females including their ages and individual situation.[82] Females between the ages of 11 and 16 would be at the highest risk.[83]
[80] ts 534.
[81] ts 534.
[82] ts 534.
[83] ts 534 ‑ 535.
Her opinion at this point in time is that the respondent can be adequately managed in the community if he is subject to the supervision order conditions that have been proposed by Ms Casserly (referred to below).[84] In her opinion the external controls that are incorporated in the conditions of the proposed supervision order are not ideal but are 'just sufficient' to adequately manage the respondent's risk of reoffending.[85]
[84] ts 535.
[85] ts 535.
At the end of Dr Wojnarowska's evidence‑in‑chief I asked her if she was able to say what the respondent's risk of reoffending would likely be if he was released into the community on a supervision order on the conditions proposed by Ms Casserly.[86] In asking this question I made clear to Dr Wojnarowska that if she did not consider that she was able to answer the question she should say so.[87] Dr Wojnarowska responded by saying that she was unable to answer this question.[88]
[86] ts 535.
[87] ts 535.
[88] ts 535.
I also asked Dr Wojnarowska whether she had anything to say in response to the concerns expressed by Dr Vuletich (referred to below) in relation to difficulties that the respondent will have, due to his cognitive deficiencies, complying with directions and absorbing new information given to him.[89] In response to my question Dr Wojnarowska said that she agreed with Dr Vuletich, but that weekly or twice weekly repetition and reminders would assist greatly.[90] Dr Wojnarowska further said that this would not be able to be tested until the respondent is in the community 'so there is a concern'.[91]
[89] ts 535.
[90] ts 536.
[91] ts 536.
At the commencement of cross‑examination counsel for the respondent returned to the topic of the respondent's level of risk if he was to be released into the community on a supervision order on the conditions proposed by Ms Casserly. The relevant exchange was as follows:[92]
[92] ts 536 ‑ 537. The transcript incorrectly records that in her last question in the quoted exchange counsel used the word ‘amicably’. The word counsel used was ‘adequately’.
… Doctor, I might just start with the topics his Honour started with, which was your opinion in relation to his level of risk, if not subject to any supervision or detention, is that he's at a high risk of committing offences?‑‑‑He - I would say he's very high risk, yes.
Okay. His Honour's next question is whether or not you could estimate the risk if he were subject to the supervision order that was proposed by the Department of Corrective Services. You indicated you're not able to provide an answer to that question?‑‑‑Not in a percentage. I would say that - well that that risk would be reduced from very high to high. But I maintain that could be managed with the external supervision.
Yes. The terminology is difficult, because, obviously, very high, high, they're very broad terms?‑‑‑Correct.
Often, scientifically, we talk about significant. Not necessarily meaning by way of quantum, but by meaning - by way of a consideration of the science that one is considering?‑‑‑Yes.
You understand ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ the use of the word significant in that context?‑‑‑Yes. Yes. Yes.
Would it be fair to say that the reduction of risk from without the supervision order, with the supervision order would be significant?‑‑‑Yes.
Significant in the context of a risk assessment that you're required to undertake for the purposes of this Act, as you understand it?‑‑‑That's correct.
And so significant, in respect of the assessment, is that the best way in which to describe the reduction, or is substantial a better term, or ‑ ‑ ‑?‑‑‑If - if that wasn't significant, then, obviously, I would - my opinion wouldn't be that he can be managed. So in - in that way the - this reduction is significant.
So if I can put it in this way: the proposed conditions are such that you're of the view they address the risk factors to the extent they need to be addressed in order to manage his risk?‑‑‑Yes.
They target all the key aspects of what his risk is made up of?‑‑‑Most of the - most of the factors, yes.
And they would address it to a significant extent?‑‑‑Yes.
And it is that addressing, to a significant extent, that informs your opinion?‑‑‑That's correct.
That his risk can be adequately managed in the community?‑‑‑Yes.
After the above exchange Dr Wojnarowska proceeded to give the following additional evidence in cross‑examination.
In her opinion the factors that contribute to the respondent's risk of reoffending that the conditions of the proposed supervision order do not target, or at least cannot target to any greater extent, are the respondent's misogynistic attitudes towards women, his lack of self‑awareness and his limited insight.[93] Further, whether the proposed conditions of the supervision order will address these issues to the extent that they are able to do so will very much depend on the respondent's willingness to comply with the conditions.[94] The respondent's antisocial personality structure tells her that there could potentially be a problem in this area, although the respondent's antisocial personality disorder does not make him incapable of being managed or incapable of complying with the requirements of the supervision order.[95]
[93] ts 537 ‑ 539.
[94] ts 539.
[95] ts 539 ‑ 541.
In her assessment of the respondent there was no suggestion from what he said to her that he did not understand that there would be constraints on him if he was released on a supervision order and that there would be rules that he had to follow.[96] It also appeared that the respondent was definitely telling her that he was prepared to obey any rules that the court imposed.[97] The respondent said to her that he was prepared to obey any such rules because he did not want to go back to prison, wanted to be with his family in the future and had finished with the lifestyle that he had before.[98]
[96] ts 542.
[97] ts 542.
[98] ts 542.
She did discuss with the respondent his understanding of what would happen if he breached the supervision order.[99] The respondent explained to her that he knew that he would be returned to prison and remain there for the rest of his life.[100]
[99] ts 542.
[100] ts 542.
She does have concerns in relation to the respondent's ability to live independently.[101] She is concerned about his ability to care for himself and to remember to take his medication.[102] However, she does not consider these matters to be directly linked to the respondent's risk of reoffending.[103] Indeed, if the respondent were to forget to take his medication this would likely decrease his risk because he would become less healthy, less mobile and less physical; he would be less likely to be able to groom the population that he would be targeting.[104]
[101] ts 543.
[102] ts 543.
[103] ts 543.
[104] ts 543.
Although the respondent's offending has largely been in relation to 14 to 15‑year‑old girls, in her opinion his offending was related to accessibility rather than age.[105] In her opinion any young post‑pubescent female would be at risk.[106]
[105] ts 543.
[106] ts 543.
The respondent's statement to her that he would not watch pornography because he finds it too stimulating, is indicative of some self‑awareness into his own sexual functioning and also a preparedness on his part to disclose material to a person that he feels will be judging him.[107]
[107] ts 545.
In her assessment of the respondent she did not gain the impression that the respondent was manipulative, engaging in impression management or trying to obfuscate in respect of his answers.[108]
[108] ts 546.
She does not think that the respondent will not be capable of complying with psychological counselling.[109] However, she does think that in light of the recent cognitive testing that he has undergone there is clear evidence of some impairment, specifically in working memory, the consequence of which is that he will require more reminders, more supervision, and more one to one contact than was previously thought.[110] She considers that the respondent's attitude to counselling has changed.[111] She thinks his attitude has changed because he has eventually come to understand that he will need to comply with the conditions of a supervision order if he is to be permitted to remain in the community.[112]
[109] ts 546.
[110] ts 546.
[111] ts 546.
[112] ts 546 ‑ 547.
The respondent is able to understand that he needs to remain abstinent from alcohol, that alcohol plays a role in relation to his offending and that if he drinks alcohol this may end up getting him into trouble.[113]
[113] ts 548.
She doubts that the respondent will, given his cognitive limitations, be able to develop more complex strategies for avoiding alcohol use.[114] She thinks that the respondent will just have to rely on his ability to continue to say 'no' to any offer of alcohol.[115] The fact that the respondent may not have the cognitive ability to develop more complex strategies to manage his alcohol use problem does not mean that the risk posed by his alcohol use is not manageable.[116] It just means that given his cognitive limitations there are always going to have to be external constraints on his alcohol use.[117]
[114] ts 548.
[115] ts 548 ‑ 549.
[116] ts 549.
[117] ts 549.
In relation to the risk scenario that she has identified for the respondent, her reference in her report to any offending behaviour being not likely to occur 'within a short period of time' after he is released is a reference to the first three to six months after his release.[118] In her view the respondent is definitely unlikely to offend within the first three to six months because during this time he will be adjusting to living in the community and there will be a lot of changes in his life.[119] He is unlikely to get frustrated or bored during this short period of time and is therefore unlikely to resort to alcohol use.[120]
[118] ts 552.
[119] ts 552.
[120] ts 552.
It follows that in her view the respondent is unlikely to resume alcohol consumption within three to six months.[121] As a result there will be a three to six month period that could be used to bolster whatever resilience the respondent currently has in respect to alcohol use.[122]
[121] ts 552.
[122] ts 552.
She is familiar with the degree of support that UCW can provide.[123] The level of support that UCW will be able to provide to the respondent is not ideal.[124] However, she would say that it is sufficient.[125] More support would give more confidence, but in her view, the available support is sufficient at this time.[126]
[123] ts 558.
[124] ts 558.
[125] ts 558.
[126] ts 558.
It is not her view that it is necessary to obtain Aged Care Assessment Team (ACAT) funding for the respondent in order to render him suitable for release.[127] She doubts that ACAT will come up with any solution or more funding.[128] Similarly, she does not consider that it is necessary to obtain funding for the respondent under the National Disability Insurance Scheme (NDIS) in order to enable his risk of reoffending to be managed in the community.[129] It would be helpful for there to be more resources available to assist with the management of the respondent in the community, but based on her experience it is unlikely that he will receive that support under the NDIS.[130]
[127] ts 560.
[128] ts 558.
[129] ts 558.
[130] ts 558.
After Dr Wojnarowska had completed her evidence, and during the course of hearing counsel's closing submissions, I formed the view that it was necessary, in light of counsel's submissions, for Dr Wojnarowska to be recalled to give further evidence, by way of clarification, in relation to the respondent's risk of reoffending if released into the community on a supervision order containing the conditions proposed by Ms Casserly. Arrangements were then made for Dr Wojnarowska to be recalled to give the additional evidence by audio link. It is, I think, necessary to set out the additional evidence given by Dr Wojnarowska in full. It was as follows:[131]
[131] ts 604 ‑ 606.
DERRICK J: Doctor … if you assume that [the respondent] is released on a supervision order on the conditions that are proposed and those conditions are implemented and put into effect with an appropriate degree of intensity, is your opinion that still, even with all that being done, [the respondent's] risk of committing a further sexual offence will still be high?‑‑‑Yes, your Honour. It's - it's still high in my mind.
… I will see if counsel wish to ask any questions arising out of that. Mr Meertens?
MEERTENS, MR: Yes. Doctor, with that being the case, what is your opinion about the - whether that risk can be managed adequately?‑‑‑We do have - the majority of the dangerous sex offenders that are released into the community is - their risk of reoffending is still assessed as high when you put together the findings on actuarial tools and clinical judgment tools, and although the risk comes up as high using all those measurements, the majority of them are being successfully managed in the community with adequate supervision and treatment.
Yes. Thank you. That's all, your Honour.
DERRICK J: Thank you. Ms Barone?
BARONE, MS: Dr Wojnarowska, in relation to the use of the word 'high' and 'very high', are you utilising the terminology from the Static‑99 broad bands?‑‑‑Yes. Yes, I am utilising not only Static, I am utilising the findings from all the other tools like the presence of antisocial personality, there is some sexual deviance although not diagnosed officially as paedophilia, because it's not paedophilia, but there is a level of sexual preoccupation. So all those factors that I – that I put together are placing [the respondent] in a high risk of reoffending category, but that does not mean that he cannot be managed with adequate supervision and support and treatment.
To put that simply, high risk doesn't mean an unmanageable risk; is that correct?‑‑‑Exactly. Yes, that's correct. That's correct.
And a manageability of risk is not directly correlated to whether it's high, low or very high; correct?‑‑‑That's correct. Correct. Yes, you got it correctly. Yes.
In relation to the Static‑99 and, I think, when you made reference to the anti‑personality disorder and deviancy, making reference to the RSVP tool?‑‑‑Yes.
So in relation to the Static‑99 and the RSVP tool, in respect of the category of high, are you able to, it's not in your report, inform his Honour what the statistical likelihood of committing an offence as it's informed by those tools?‑‑‑I'm sorry, this is not in my report. Obviously, the statistic has not changed since 2017. From my memory, it will be his category 6, which is about 25 to 28 per cent risk of reoffending within the next five years.
And that's the band high, isn't it?‑‑‑Yes. That's - that's high. Yes. That's - that's what it is called, 'high', yes. So this is just how - how this is defined. Low, medium and high. And people who - who score 6 plus, they are in high risk category. That's why I was using the word 'high'.
Finally, Dr Wojnarowska, is there any direct link between the broad terminology 'high, medium, low', all those terminologies, and imminence?‑‑‑No. No. Imminence is completely separate entity when assessing the risk. It - someone could be medium or low, but at immediate risk of reoffending.
And if somebody has a high risk, does that tell us anything about whether or not they're likely to comply with supervision?‑‑‑No.
And does one need to look to the nature of the constraints in terms of - the actual nature of the constraints that are put in place in terms of considering in the presence of a supervision order, whether or not it manages risk?‑‑‑Yes. Yes. So, obviously, all the conditions that are being proposed in my mind are sufficient to reduce this risk, although it's still high, to manageable.
And none of that has changed your evidence, that the reduction that occurs by supervision order is significant with it being in place?‑‑‑Yes. Yes.
And it's - that reduction is so significant that it changes your opinion as to whether or not the risk is manageable by the proposed terms, correct?‑‑‑That's correct, yes.
Dr Yewers' evidence - Treatment Progress Report
Dr Yewers' Treatment Progress Report reveals the following.
Dr Yewers interviewed and assessed the respondent on 28 June 2019 for one hour and 15 minutes via Skype.
The respondent was polite and cooperative throughout the assessment process. He responded to questions as requested. His responses were brief and he tended not to elaborate even when prompted. He participated reasonably constructively for the most part but was noticeably distracted and unfocused towards the end of the interview.
During Dr Yewers' assessment the respondent demonstrated a very basic and concrete understanding of the factors underlying his offending. He attributed his offences to alcohol intoxication and, in the instance of one offence, problems with his relationship. In Dr Yewers' view themes of continuing to blame the victims for his current plight also came to the fore when he was asked what his victims might think if they saw him. In this regard the respondent told Dr Yewers that if the victims saw him they might worry that he would become angry because 'they put me in jail'.
In Dr Yewers' view, if the '2017 sexual allegations' (this being a reference to the allegation made by the fellow prisoner on 8 June 2017) have foundation this would be indicative of some sexual appetite and a difficulty in managing it appropriately. Dr Yewers notes, however, that the respondent has experienced serious health problems since the time of the alleged sexual incident which may have a deleterious impact on his sex drive.
According to Dr Yewers, the respondent's self‑management plan is rudimentary, has changed very little over the years and is primarily based on avoidance. His plan is comprised of refusing any offers of alcohol, avoiding teenage girls, remaining busy and 'going bush'.
Dr Yewers expresses the opinion that given the respondent's understanding of his offending and management strategies has not substantially changed following considerable intervention, it is questionable that more of the same will result in any different outcome. In her opinion ongoing treatment in a custodial setting is unlikely to be beneficial. Nonetheless, in her view if the respondent is in custody there is some value in reviewing and consolidating his release plans and risk management strategies in the lead up to his next review. She considers that if the respondent is placed in the community, support and guidance can be provided by a psychological contact as he negotiates the challenges he may face in managing his risk and adjusting to living in the community. She considers that external monitoring will be essential.
Dr Yewers points out that if the respondent remains subject to a continuing detention order his treatment needs will continue to be overseen by the FPS. The focus and scheduling of intervention will be dependent on, and guided by, a reassessment of the respondent's treatment needs and responsivity following finalisation of the court process. If the respondent becomes amenable to regular psychological contact this will be able to be delivered remotely to EGRP via video link or Skype. If the respondent is disinclined to engage in psychological intervention, as he has indicated, contact will resume in the months prior to the respondent's next review in order to revisit self‑management and prepare for possible release.
According to Dr Yewers, if the respondent is released on a supervision order his psychological case management will be overseen by a FPS psychologist. The psychologist will provide consultation and have input into the respondent's management in line with the model of service delivery utilised for dangerous sexual offenders (DSO) who are subject to community supervision. The model is based on collaborative multi‑agency partnerships that involve regular information sharing and liaison with various agencies and treatment providers in order to augment supervision, intervention and ongoing risk management.
If the respondent is released to the Perth metropolitan area he will have access to counselling sessions with his allocated FPS psychologist. If he is placed outside the metropolitan area his psychological contact will be remote via video link or Skype.
Dr Yewers concludes that during her assessment the respondent demonstrated only a basic and concrete understanding of the factors underlying his offending. She states that his self‑management plan is rudimentary and primarily based on avoidance of alcohol and teenage girls. She points out that neither the respondent's ambivalence towards treatment nor his understanding of his offending or his self‑management strategies have substantially changed despite considerable intervention. She therefore considers that it is unlikely that continued treatment will change the respondent's level of engagement or result in significant change. Nonetheless, Dr Yewers considers that if the respondent remains in custody it will be important for him to review his risk factors and self‑management strategies in the lead up to future reviews. She is of the view that if the respondent is granted a community supervision order he should be provided with psychological support as he negotiates supervision, adjusts to community living and manages his risk. She considers it is likely that external monitoring and oversight will be required.
Ms Casserly's evidence - Community Supervision Assessment Report
Ms Casserly's Community Supervision Assessment Report reveals the following.
Since his last review the respondent has been predominantly case‑managed by Kalgoorlie Adult Community Corrections. However, a period of no contact arose during the time that the respondent was transferred to metropolitan prison facilities for medical assessment and treatment.
The case management of the respondent was recently allocated to Ms Casserly on 12 July 2019. Ms Casserly has met the respondent on 13 June 2019, 4 July 2019 and 12 July 2019. The first two of these meetings took place with the respondent's prior case manager present.
The respondent's engagement and interaction with Adult Community Corrections has been relatively positive when discussing general issues of concern and then reviewing combinations of options. However, when on 4 July 2019 discussion progressed towards addressing the risk of the respondent reoffending in the event of him being released into the community, the respondent presented as frustrated about having to review this topic. The respondent commented that his sexual offending was triggered by the end of a relationship and he presented as minimising responsibility for his offending.
When Ms Casserly met with the respondent on 12 July 2019 she started speaking to him about potential conditions that he may be subject to if he is released. Ms Casserly did this to try and develop the respondent's understanding and expectations of any supervision order imposed. The respondent was able to verbalise his pre‑existing awareness of some expectations and conditions. He advised that he had had some discussions with another prisoner at EGRP who is currently subject to the same legislation. The respondent reflected on the other prisoner's cultural background and his experience with a supervision order. The respondent was able to describe basic aspects of a curfew requirement and the obligation to attend appointments as required. He also verbalised his understanding that non‑compliance with any condition could result in his return to custody.
In or around May 2019 an application for a rental property in the Kalgoorlie region was made on the respondent's behalf to the Department of Communities Housing Division (Housing Division).
On 24 May 2019 the Housing Division advised that it is unable to provide a suitable property for the respondent within the Kalgoorlie region.
On 13 June 2019, after the respondent had returned to EGRP following his medical treatment, the respondent was advised of the lack of viable options for a housing placement in Kalgoorlie. Discussions were held in relation to the respondent's accommodation options. The respondent initially proposed being released to the Cosmo Newberry Community.
The final, and of course the most significant, change in the respondent's circumstances since the last review is that there is now available to him UCW supported accommodation under the Program.
In short, the respondent's circumstances have altered since the last review. However, the mere fact that there has been a change in circumstances is not, of course, of itself a basis for concluding that it is now appropriate for the respondent to be released on a supervision order. The question is whether the change in circumstances that has occurred is such that I can now conclude that the community will be adequately protected if the respondent is released on a supervision order containing the conditions that are proposed.
In all the circumstances, and bearing in mind that I am required to apply as the paramount consideration the protection of the community, I am not satisfied that the community can be adequately protected by releasing the respondent on the proposed supervision order. There are three broad reasons for me coming to this conclusion. First, because I am not satisfied that the proposed accommodation is suitable. Second, because the respondent will still be at a high risk of committing serious sexual offences if he is released on a supervision order. Third, because the respondent has not satisfied me that he will substantially comply with the standard conditions of a supervision order. I will elaborate on each of these reasons.
Unsuitability of accommodation
In The State of Western Australia v Corbett [No 5][148] Hall J made the point that accommodation for a person on a supervision order is not simply a place to live, and that the location and type of accommodation are factors that are integral to any proper assessment of the risk of reoffending.
[148] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [80].
I am acutely conscious of the small number of available UCW supported properties. I also accept, without hesitation, as is in effect recognised by Ms Cassam in her report, that it will be very difficult (if not impossible, in my view) to locate for the respondent a UCW supported property that is in a location in which there will be no possibility, or even only a limited possibility, of the respondent coming into contact with teenage and adult females in his day to day life. The respondent cannot be housed on a desert island. However, in the present case I am faced with a situation in which the proposal is to house a DSO, all of whose serious sexual offences bar one have been committed against vulnerable younger teenage girls, in a property which is directly across the road from a property consisting of units in which 'numerous' young females aged 11 to 18 years live. Further, although I have not been provided with detailed information about whether any of these numerous young females are vulnerable in the sense that they are on occasions unsupervised and susceptible to being taken advantage of sexually, the fact that CPFS have expressed the view that the proposed accommodation is not suitable for someone of the respondent's offending profile is sufficient to raise real concerns in this regard. In addition, while a GPS exclusion zone may be able to be set up around the block of units in question, it is, given the proximity of the units to the respondent's proposed accommodation, unrealistic to expect that such a measure will substantially reduce the respondent's ability to make contact with the young female occupants of the units should he wish to do so. Literally all that would need to occur is for these children to venture out onto the street. At the end of the day, taking all these considerations into account, I am simply not satisfied that the community will be adequately protected if the respondent is released on a supervision order to accommodation which is so close to a property that houses numerous females who fall squarely within the age range of the respondent's previous victims. I am not so satisfied despite the stringent nature of the conditions of the proposed supervision order.
I emphasise that my above expressed conclusion must not be interpreted as a finding that the property in question is not suitable accommodation for any DSO. The property may well be a suitable accommodation for a DSO with a different offending profile to that of the respondent. My above expressed conclusion arises out of the particular facts and circumstances of this case.
During the course of the review hearing counsel for the applicant submitted, in substance, that another reason for finding that the accommodation proposed for the respondent is not suitable is that the evidence establishes that the respondent does not have the skills to live independently in the community without a degree of support and assistance that is not currently available to him. I wish to make two points in response to this submission.
First, the fact that the respondent will struggle to function and live independently in the community in the absence of a high level of relatively long‑term support and assistance, something that I accept is established by the evidence given by Ms Wieman and Dr Vuletich, is not in itself a basis for keeping him in detention under the provisions of the Act. The fact that the respondent will struggle to function and live independently in the community is only relevant to the extent that it bears upon the risk that the respondent will, if released, commit further serious sexual offences.
Second, the previously referred to three areas of general living skills which UCW has identified as areas that they will not be able to assist the respondent with, even on a short‑term basis, and in respect of which no other sources of support for the respondent are presently available, are not on the evidence of Dr Wojnarowska, directly related to the respondent's risk of reoffending.
Accordingly, if I had been otherwise satisfied of the appropriateness of the proposed accommodation, I would not have refused to release the respondent on a supervision order on the basis of his general living skills deficiencies.
High risk of committing further serious sexual offences
The evidence of Dr Wojnarowska was that if the respondent is released on a supervision order containing the conditions proposed by Ms Cassam (including, of course, all the external constraints embodied in the conditions), and if it is assumed that the conditions are implemented and put into effect with a degree of intensity appropriate to the respondent's case, the respondent will still be at high risk of committing a further sexual offence. Dr Wojnarowska defined 'high' to mean about a 25% to 28% risk that the respondent would reoffend within the next five years. Moreover, given the nature of the respondent's past offending, and the respondent's risk scenario identified by Dr Wojnarowska in her evidence, the only conclusion that can sensibly follow from Dr Wojnarowska's evidence is that if the respondent is released on a supervision order containing the proposed conditions, there will still be approximately a 25% chance that he will commit a serious sexual offence (most likely an offence involving some form of sexual penetration) against a vulnerable younger teenage girl within the next five years.
I am conscious of Dr Wojnarowska's evidence that whatever terminology is used to describe the level of risk posed by the respondent, in her opinion the risk that the respondent will pose to the community if he is released on a supervision order will be substantially less than the risk that he would pose if he were to be released unconditionally (on Dr Wojnarowska's evidence the risk will drop from very high to high). I am also conscious of Dr Wojnarowska's evidence that in her opinion the fact that the respondent will be at a high risk of reoffending if he is released on a supervision order does not mean that he and the risk that he poses cannot be 'managed' in the community with adequate supervision, support and treatment (which I take to mean that in Dr Wojnarowska's opinion the respondent's high risk of reoffending will not prevent the conditions of the supervision order being able to be implemented in relation to him). However, ultimately the question for me is not whether the reduction in risk is substantial, or whether in the opinion of a highly qualified expert witness a person at high risk of committing sexual offences can be managed in the community, but rather whether the respondent's risk of committing further serious sexual offences will, by releasing the respondent on a supervision order, be reduced to a level that is reasonably acceptable and will ensure the adequate protection of the community.
In my opinion, although a reduction in risk from very high to high may be a significant reduction in risk for the respondent personally, I am unable to accept that an approximate 25% risk of the respondent committing a serious sexual offence (most likely involving some form of sexual penetration) against a young teenage girl is a reasonably acceptable level of risk having regard to not only the paramount consideration of the protection of the community but also the adverse consequence of such a finding for the respondent (specifically that he will remain in custody for offences for which he has already been punished). To put it another way, I am not satisfied that releasing the respondent on a supervision order containing the conditions that are proposed will, in light of the level and nature of the risk that the respondent will still pose to the community while on the supervision order, ensure the adequate protection of the community.[149] The fact that the risk of the respondent reoffending may not be imminent (that is, may not exist, at least to its full extent, for the first few months of the respondent being on a supervision order) does not alter my view in this regard.
[149] See by way of comparison The State of Western Australia v Narkle [227] ‑ [238] in which Quinlan CJ decided that in the circumstances of the case before him a ‘moderate’ level of risk of recidivism, when viewed from the perspective of the protection of the community, was not reasonably acceptable.
In arriving at the above conclusion I have not overlooked the evidence given by Dr Wojnarowska that in the case of the majority of DSOs released into the community their risk of reoffending is still assessed as high but that the majority of them are being successfully managed. I obviously do not know the details of the evidence adduced in other cases involving other DSOs. However, even accepting the position to be as stated by Dr Wojnarowska, it does not alter my opinion that in the circumstances of the respondent's case the level and nature of the risk that he would still pose if released on the proposed supervision order would not be reasonably acceptable viewed from the perspective of the protection of the community.
I note that even if I had been satisfied of the suitability of the proposed accommodation for the respondent, I would still have found, for the reasons that I have just given, that it was not appropriate for the respondent to be released into the community on a supervision order.
Substantial compliance with standard conditions
The respondent's cognitive or neurological deficits identified by Dr Vuletich are of significance when considering if the respondent has discharged his onus of proving on the balance of probabilities that he will substantially comply with the standard condition specified in s 18(1)(d) that he comply with any reasonable direction of a CCO. On Dr Vuletich's evidence, the respondent's cognitive and neurological deficits will impact adversely on the respondent's ability to comply with the conditions of any supervision order such as GPS monitoring and reporting. However, on the evidence of Dr Wojnarowska and Ms Cassam it appears that the respondent's difficulties in this regard would be able to be addressed by COMU, UCW and the respondent's CCO repeatedly reminding the respondent (verbally, in writing and electronically) of his various appointments and other commitments under the supervision order. The respondent has also indicated an understanding of the need to comply with directions given to him and a willingness to do so. In all the circumstances, the respondent has satisfied me on the balance of probabilities that if he was released on a supervision order he would substantially comply, in the sense that I have already explained, with the standard condition specified in s 18(1)(d).
I am not, however, satisfied on the balance of probabilities that the respondent would, if released on a supervision order, substantially comply with the standard condition specified in s 18(1)(f) that he not commit a sexual offence as defined in s 36A of the Evidence Act. I am not so satisfied given the respondent's history of committing sexual offences, the nature of the offences that he has committed and the risk of him committing a serious sexual offence if he were to be released on a supervision order. Indeed, in my view, given the broader range of sexual offences that fall within the definition of 'sexual offence' contained in s 36A, the likelihood of the respondent committing such an offence if released on a supervision order is greater than him committing a serious sexual offence.
Accordingly, even if I was satisfied that the proposed supervision order would provide adequate protection to the community (which I am not) I would still conclude, by reason of s 17(3), that the respondent could not be released on a supervision order.
Decision
For the reasons I have stated I have decided the respondent's continuing detention order should be affirmed.
Recommendations for ongoing management and treatment
So far as the respondent's ongoing management and treatment while he remains in custody is concerned, it is in my view important, in light of his recent change in attitude, that efforts be made to continue to engage him in psychological counselling with a view to further developing, to whatever extent is possible, his understanding of, and insight into, the underlying causes of his offending. Any psychological counselling should also focus on further developing the respondent's current basic self‑management strategies. If the respondent can improve in these areas, even by only a small amount, it is likely that the risk that he will pose to the community if released on a supervision order will be reduced.
Efforts should continue to be made to identify a culturally appropriate mentor for the respondent who can support him while he remains in custody and, in the event of his release at some point in the future, when he is in the community.
The respondent should be permitted to participate in skills training or day release or work participation programs. Participation in such activities will inevitably go some way to improving the respondent's ability to function in, and integrate into, the community in the event of his release.
In recommending that the respondent be permitted to participate in skills training or day release or work participation programs, I emphasise that the respondent is being detained under the Act for his 'control, care and treatment', not for the purpose of punishing him.[150] Any rules or procedures that have been put in place pursuant to s 35(1) of the Prisons Act that have the effect of preventing DSO detainees from participating in skills training or day release or work participation programs need to be reviewed because they are, as was pointed out by Hall J at the time of the respondent's third review, a significant impediment to establishing a meaningful gradual release plan.[151] I therefore recommend that whatever steps need to be taken are taken by the prison authorities to enable this to occur.
[150] Act s 17(1)(b).
[151] Director of Public Prosecutions (WA) v West [No 4]. See also the discussion in The State of Western Australia v Misko [No 6] [2018] WASC 389 [200] ‑ [225].
Prior to the next review date the respondent's referral to the NDIS and for an ACAT assessment should be pursued to whatever extent is possible while he is in custody. If by the time of the respondent's next review it is clear that he is eligible for some form of NDIS assistance or some form of ACAT aged care package, this may well remove the concerns expressed by UCW in the present instance and enable the court to conclude that if he is released to supported accommodation he will be provided with all, and not just some, of the longer term support and assistance that he requires in order to function well in the community.
Obviously, and following on from what I have said in the previous paragraph, prior to the respondent's next review date, all efforts should be made to again identify and obtain suitable supported accommodation for him so that if the court concludes that he is otherwise suitable for release he will be able to be released. All possible accommodation options should be reviewed. The inquiry should be pursued early to avoid the almost inevitable failure of inquiries that are only made in the last month or two before a review.
Consideration should be given, subject to the respondent's views on the subject, the respondent's health issues and the availability of psychological counselling, to again transferring the respondent to EGRP so that he can be closer to his extended family. Any move to EGRP should not, however, exclude consideration of Perth based accommodation options for the respondent prior to the next review.
In accordance with the recommendations of Dr Vuletich the respondent's cognitive condition should be monitored. He should be given the opportunity of a neuropsychological review in 12 months to explore any changes in his cognition.
ANNEXURE 1
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer at the place and within the time stated in the order and advise the officer of the person's current name and address.
Report to and receive visits from a Community Corrections Officer as directed by the court.
Notify a Community Corrections Officer of every change of the person's name, place of residence, or place of employment at least 2 days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 19A or 19B).
Not leave, or stay out of the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the Order.
Be subject to electronic monitoring under section 19A.
ADDITIONAL CONDITIONS
The following conditions incorporate the above standard conditions and are suggested to strengthen and add to the standard conditions required by the Act for the more effective management of the offender in the community.
Residence
Take up residence at (approved address) and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved address within normal business hours on the day of release from custody under this order.
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO.
Reporting to WA Police
Report to the Officer‑in‑Charge of the Sex Offender Management Squad 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 at locations as directed by the Officer‑in‑Charge of the Sex Offender Management Squad or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow seizure of any such items that the Police Officer believes to contravene the conditions of the order.
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the Dangerous Sexual Offenders Act 2006.
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you.
Permit a CCO or WA Police to access any computer or other device capable of storing digital data, for the purpose of ascertaining your computer activities, and provide to the CCO or WA Police upon request any passwords or any other means required for access to the device or data contained on, or accessible from, the device.
Not delete any data from any computer or electronic storage device in your possession without prior permission from the CCO or WA Police.
Disclosure/exchange of information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history.
Restrictions on contact with victims
Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997.
Criminal conduct
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.
Not commit an offence under s 202, s 203, s 204, s 204A, s 2048, s 217, s 218, s 219, s 220 or s 557K Criminal Code 1913 (WA).
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis.
Curfew
Be subject to a curfew, pursuant to section 198 of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or curtilage of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Medications/mental health
Undergo medical treatment, including anti‑depressant medication, as directed by the CCO in consultation with a medical practitioner, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO.
Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO.
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.
Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease, undergoing anti‑depressant medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.
Prevention of high risk situations
Not allow any female to enter or ride in or on any vehicle under your control unless the identity of such person is approved in advance by the CCO.
With the exception of public transport, not enter in or on any vehicle where a female is present, unless the identity of such person is approved in advance by a CCO.
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO.
Not purchase or possess or consume or use alcohol.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.
To provide a valid sample for testing pursuant to Condition 41.
Not remain in the presence of females who are affected by alcohol, unless the identity of such person is approved in advance by the CCO.
Not remain in the presence of any female affected by a prohibited drug.
Not 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.
Not enter the premises of, or access the services of, escort agencies or sex workers.
Not to be in possession of any pornographic material, in either hard‑copy or digital form, or access or view pornography on the internet.
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
(a)the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO; and
(b)the contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication.)
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide details of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.
Report immediately to your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship.
Not conduct computer searches for, nor possess or collect in either electronic or permanent form, images of children, whether indecent or not, with the exception of images of your immediate family that are not indecent images. Possession of certain images depicting a child or children may be authorised at the discretion of the CCO.
Whilst in any public place, not be in present possession of any children's toy, game or confectionary capable of constituting an enticement to children, unless such possession is for a legitimate purpose.
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.
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.
Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick27 NOVEMBER 2019
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