The State of Western Australia v Winder [No 2]

Case •

[2021] WASC 439

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WINDER [No 2] [2021] WASC 439

CORAM:   CURTHOYS J

HEARD:   2 AUGUST 2021

DELIVERED          :   9 DECEMBER 2021

PUBLISHED           :   9 DECEMBER 2021

FILE NO/S:   SO 15 of 2010

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

MURRAY JOHN WINDER

Respondent


Catchwords:

Criminal law - High risk serious offender - Whether the respondent is a high risk serious offender - Supervision order - Not an unacceptable risk

Legislation:

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

Result:

Application for supervision order dismissed

Category:    B

Representation:

Counsel:

Applicant : C J Thatcher SC
Respondent : K J Farley SC

Solicitors:

Applicant : State Solicitor's Office
Respondent : Legal Aid WA

Cases referred to in decision(s):

Director of Public Prosecutions (WA) v Carter [2015] WASC 413

Director of Public Prosecutions (WA) v DAL (No 2) [2016] WASC 212

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187

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

The State of Western Australia v ACJ [2021] WASC 219

The State of Western Australia v CF [2021] WASC 20

The State of Western Australia v Quartermaine [2021] WASC 267

The State of Western Australia v Winder [2021] WASC 65

CURTHOYS J:

  1. On 21 March 2011, McKechnie J placed the respondent, Murray Charles Winder, on a 10 year supervision order pursuant to the Dangerous Sexual Offenders Act 2006 (DSO Act). The supervision order expired on 20 March 2021.

  2. On 21 October 2020, the State made an application under s 36(1) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) for a further restriction order.

  3. Section 36(1) of the HRSO Act provides:

    (1)The State may apply to the Supreme Court for a restriction order in relation to an offender who is subject to a supervision order (the current order) that is to expire within 1 year.

    (2)An application under subsection (1) must specify whether the restriction order sought is a continuing detention order or a supervision order.

    (3)A restriction order granted on an application under subsection (1) takes effect on the expiry of the current order.

  4. A 'restriction order' is a continuing detention order or a supervision order.[1] The nature of the restriction sought by the State is a supervision order.

    [1] High Risk Serious Offenders Act 2020 (WA) s 3 (HRSO Act).

  5. Section 27 of the HRSO Act provides:

    (1)In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.

    (2)A supervision order has effect in accordance with its terms -

    (a)        from a date stated in the order; and

    (b)        for a period stated in the order.

    (3)The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.

  6. At a preliminary hearing on 5 March 2021, Quinlan CJ held that there were reasonable grounds for believing that the court might find that Mr Winder is a high risk serious offender.[2]  His Honour placed Mr Winder on an interim supervision order in substantially the same terms as the previous supervision order made by McKechnie J.

    [2] The State of Western Australia v Winder [2021] WASC 65 [34].

  7. The matter proceeded to a restriction order hearing before me on 2 August 2021. At that hearing, the State submitted that Mr Winder remains a high risk serious offender and that the court should make a supervision order under s 48(1)(b) of the HRSO Act.

  8. The issues that I must determine in this matter are:

    (1)whether Mr Winder remains a high risk serious offender; and

    (2)if so, whether the appropriate order is a supervision order.

Statutory framework and legal principles

  1. Section 7(1) of the HRSO Act provides that an offender is a high risk serious offender if the court dealing with an application under the HRSO Act:

    finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

  1. The State bears the onus of satisfying the court that an offender is a high risk serious offender.[3] The court must be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt but is otherwise incapable of further definition.[4]

    [3] HRSO Act s 7(2).

    [4] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).

  2. The starting point under s 7(1) of the HRSO Act is to determine if there is a risk that the respondent would commit a serious offence. An offence is a 'serious offence' if it is specified in sch 1 div 1, or it is specified in sch 1 div 2, and is committed in the circumstances indicated in relation to that offence in div 2.[5]

    [5] HRSO Act s 5(1).

  3. The next issue is whether the risk of the respondent committing a serious offence would be unacceptable in the absence of a restriction order. The meaning of 'unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams:[6]

    In my view, an 'unacceptable risk' in the context of 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 which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge 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 whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.  (emphasis added)

    [6] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63].

  4. In The State of Western Australia v ACJ,[7] Fiannaca J quoted the above remarks of Wheeler JA and stated further that:

    The meaning of 'unacceptable risk' under the DSO Act was considered further in Director of Public Prosecutions (WA) v GTR,[8] where Steytler P and Buss JA said that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised, and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). Again, those principles apply equally to the concept of 'unacceptable risk' as it relates to a 'serious offence' under the HRSO Act.

    The need for the court to be satisfied 'to a high degree of probability' is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition. 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.  (footnotes omitted)

    [7] The State of Western Australia v ACJ [2021] WASC 219 [28] - [29].

    [8] Director of Public Prosecutions (WA) v GTR [27].

  5. The HRSO 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.[9] The question is whether the risk of reoffending would be unacceptable without a restriction order in place.

    [9] Director of Public Prosecutions (WA) v DAL (No 2) [2016] WASC 212 [33].

  6. In deciding whether an offender is a high risk offender, the court must have regard to the following matters listed in s 7(3) of the HRSO Act:

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

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

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

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

    (e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;

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

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

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

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

    (j)any other relevant matter.

  7. As s 7(3)(j) implies, the list of matters to be considered by the court is not closed.

  8. While s 7(3)(g) provides that the court must have regard to the criminal record in deciding whether a person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.[10]  Further, the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by imprisonment, remand in custody or the imposition of bail conditions.[11]

    [10] The State of Western Australia v CF [2021] WASC 20 [55]; Director of Public Prosecutions (WA) v Carter [2015] WASC 413 [18].

    [11] HRSO Act s 7(4).

  9. If the court is satisfied that the offender is a high risk serious offender within the meaning of s 7(1), the remaining issue is whether a detention order or a supervision order should be made. A court cannot make a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order.[12] The onus is on the respondent to satisfy the court that they will substantially comply.[13]

    [12] HRSO Act s 29(1).

    [13] HRSO Act s 29(2).

  10. The powers conferred by HRSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. This purpose is to be achieved not only by continuing to exercise control over the person the subject of an order, but also by providing care and treatment for the offender in the hope that the risk to the community will be reduced.[14] As noted, the Act does not require that there be no risk of offending, merely that the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.

    [14] The State of Western Australia v Quartermaine [2021] WASC 267 [14]; Director of Public Prosecutions (WA) v GTR [97] (Murray AJA).

Evidence

  1. At the hearing of the restriction order application the State tendered two volumes of the book of materials respectively dated 23 April 2021 and 12 July 2021.[15] The first volume contains material dating back to the late 1970s that relate to previous dangerous sexual offender proceedings, including police records, court transcripts, judgments and treatment reports.

    [15] Exhibit 1.

  2. The second volume contained the following reports prepared for the restriction order hearing:

    (1)Psychiatric report of Dr Gosia Wojnarowska dated 21 June 2021;

    (2)Psychological report of Ms Julie Hasson dated 21 June 2021; and

    (3)Community supervision assessment prepared by senior community corrections officer Ms Sarah Skender dated 29 June 2021.

  3. Dr Wojnarowska, Ms Hasson and Ms Skender all gave oral evidence. Mr Winder did not elect to give or adduce any evidence.

Is Mr Winder a high risk serious offender?

  1. The crucial question in this case is whether Mr Winder is a high risk serious offender within the meaning of s 7(1). I will now turn to consider this question taking into account the matters in s 7(3). It is helpful to begin with Mr Winder's antecedents and criminal history.

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

Antecedents

  1. Mr Winder is a 62‑year‑old Aboriginal man. He is one of 11 children. Mr Winder reports that he had a mostly stable childhood although he recalls that his mother drank alcohol excessively and that his parents had heated arguments that sometimes involved threats of violence.[16] He nevertheless seems to have grown up in a supportive family.

    [16] Exhibit 1, 455 (Psychological report of Ms Julie Hasson dated 21 June 2021 [4] (Hasson Report)).

  2. Mr Winder recalls that he struggled at school although he excelled at sport.[17] At about 12 years old, he and his siblings were sent to a convent school in New Norcia. The circumstances surrounding this move are unclear. The living conditions at the school were poor. Mr Winder recalls being bullied and physically abused. He reports that another student at the school attempted to sexually abuse him on several occasions including by touching his buttocks, attempting to grope his genitals and threatening to touch him in the shower.[18] After about a year at the New Norcia school, Mr Winder and his siblings returned to his parents in Carnarvon where they continued their schooling.

    [17] Exhibit 1, 455 (Hasson Report [5]).

    [18] Exhibit 1, 455 (Hasson Report [5]).

  3. Mr Winder left school when he was aged about 14. After leaving school, he obtained employment with the help of his father. He seems to have engaged in many different labour jobs but has had some difficulty maintaining employment. He has experienced several periods of unemployment.

  4. Mr Winder has spent a significant proportion of his life in prison. After being released from prison in 1986, Mr Winder entered his first long-term relationship with a much older woman.[19] According to Mr Winder, the relationship was never violent, and he and his partner were sexually and emotionally compatible.[20] The relationship ended when Mr Winder was convicted of sexual offences against his partner's granddaughters. Mr Winder's next serious relationship occurred in 2014. It was significantly shorter than his previous relationship but was sexually intimate and lasted several months.

    [19] Exhibit 1, 361.

    [20] Exhibit 1, 455 (Hasson Report [7]).

  5. Mr Winder reports having two children to an unknown woman.[21] He does not seem to have ever been involved in their lives.

    [21] Exhibit 1, 456 (Hasson Report [8]).

  6. Mr Winder currently cares for and maintains a close platonic relationship with DR.[22] Dr Wojnarowska stated in oral evidence that she sees this relationship as:[23]

    a very protective relationship, as it provides him with structure and meaning, which he very much needs. He told me that he likes feeling busy and needed; he - before he entered that non-intimate relationship, he worked as a volunteer. At the moment, I think the majority of his time is taken by caring for this woman. I certainly see it in - as a positive relationship, and the only component that is missing for Mr Winder is the intimacy

    [22] Exhibit 1, 442 (Psychiatric report of Dr Gosia Wojnarowska dated 2 June 2021 [41] - [42] (Wojnarowska Report)).

    [23] ts 38 (2/8/2021).

  7. Mr Winder currently has his own rental accommodation.[24]

    [24] Exhibit 1, 438 (Wojnarowska Report [10]).

  8. He has been assessed as having borderline cognitive functioning and therefore does not fulfil the criteria of being cognitively impaired.[25]

Criminal history

[25] ts 32, 34 (2/8/2021).

  1. In determining whether there is a risk that Mr Winder would commit a serious offence regard must necessarily be had to his previous serious offences.

  2. Mr Winder has a lengthy criminal history.

  3. Mr Winder's first conviction was on 10 July 1978 when he was charged with being on a premises without lawful excuse contrary to s 66 of the Police Act 1892 (WA).[26] The facts of the offending suggested a sexual motivation:[27]

    During the early hours of the morning of 8 July 1978 Mr Winder attended the flat of a woman he had met earlier in the evening. His intention was to proposition the woman for sex. He had earlier attempted to convince her to go to bed with him whilst at the party, but she refused. Mr Winder went home however laid in bed thinking about the woman and subsequently went to her house. He opened a window and peered inside. He could not see anything and so struck a match. On striking the match the curtains accidentally ignited and began to burn fiercely. Mr Winder decamped the scene. Some property was destroyed in the fire.

    [26] Exhibit 1, 190.

    [27] Exhibit 1, 460 (Hasson Report [28]).

  4. In October 1978, Mr Winder was convicted of the same offence for a similar incident:[28]

On 10 September 1978 at 1.30 am, Mr Winder entered a residential address by removing louvres to a bedroom window. Once inside the bedroom he attempted to drag a 9‑year‑old girl from her bed. The child was woken by Mr Winder's actions at which point [Mr Winder] jumped out of the window and made good his escape.

[28] Exhibit 1, 459 (Hasson Report [27]).

  1. Mr Winder was convicted of similar offences in 1979. On 5 April 1979, he was convicted of breaking and entering with intent to commit an offence contrary to s 401 of the Criminal Code (WA) for breaking into a home and stealing pornographic magazines.[29] On 10 December 1979, Mr Winder was convicted of being unlawfully on premises.[30] The facts of the offending are as follows:[31]

    At 8.20 pm on 26 November 1979 Mr Winder was walking past the Carnarvon Primary School. He climbed on a bench and looked into a classroom with a light on. A young female teacher was present in the room. He stared at her for a long time. Finally, the teacher looked up and upon seeing Mr Winder began to scream out loud. Mr Winder jumped off the bench and sprinted away. The teacher feared for her safety and was too frightened to leave for some time. After leaving the room, Mr Winder located the teacher's car and deflated one of her tyres.

    [29] Exhibit 1, 459 (Hasson Report [26]).

    [30] Exhibit 1, 192.

    [31] Exhibit 1, 459 (Hasson Report [25]).

  2. Mr Winder's first conviction for a sexual offence was on 29 July 1980 when he was convicted of rape contrary to s 325 and s 326 of the Code and breaking and entering with intent.[32] On 4 August 1980, Mr Winder was convicted of indecent assault and breaking and entering with intent.[33] All these offences were committed on 1 March 1980 when Mr Winder was aged 21. They involved two separate victims within the same block of flats. Mr Winder was not known to either victim prior to the offending.[34] 

    [32] Exhibit 1, 45 - 50.

    [33] Exhibit 1, 51 - 57.

    [34] Exhibit 1, 24.

  3. The charges of indecent assault and breaking and entering involved Mr Winder breaking into the flat of a young couple in the early hours of the morning. Mr Winder touched the vagina of a 29‑year‑old woman who was sleeping beside her partner. Mr Winder's actions woke the victim who saw a male person near her bedroom door.[35] 

    [35] Exhibit 1, 459 (Hasson Report [23]).

  1. The charges of rape and breaking and entering related to conduct that occurred shortly after the indecent assault. Mr Winder entered a flat where a 19‑year‑old woman was sleeping. The facts of the offending are summarised in Ms Hasson's report:[36]

    The victim was woken by somebody touching her arm. She saw a figure standing near the bed. When she asked who was there, Mr [Winder] said he was a policeman. She told him to leave at which point Mr Winder jumped on her and grabbed her around the throat. When the victim cried out for her flatmate Mr Winder hit her under the chin and told her not to scream. She screamed some more resulting in further punches. Mr Winder laid on top of the victim and made derogatory sexual comments to her. She was crying throughout telling him to leave her alone. Mr Winder penetrated her vagina with his penis and continued to have sex with her until he ejaculated. As he started to get off the bed the victim switched on the light. Mr Winder turned it off. After the sexual assault he said to her 'don't dob, don't dob', 'goodbye', 'I'll see you at the tavern tomorrow night'. The victim had been to the tavern earlier in the evening. 

    [36] Exhibit 1, 459 (Hasson Report [23]).

  2. Mr Winder pled guilty to the above four charges and was sentenced to an overall term of 10 years' imprisonment. 

  1. On 10 October 1988, Mr Winder was convicted of wilful exposure contrary to s 66(11) of the Police Act. The offending involved Mr Winder masturbating in his bedroom while clearly visible from the street. He was seen by a 12‑year‑old girl.[37]

    [37] Exhibit 1, 193, 459 (Hasson Report [24]).

  2. Between 1995 and 2000, Mr Winder committed sexual offences against two sisters, GB and TB, Mr Winder's de facto granddaughters. Mr Winder was aged between 36 and 41 years old at the time of the offending. Most of the offences occurred when the children were in Mr Winder's care.[38]

    [38] Exhibit 1, 458 (Hasson Report [20]).

  3. The offences against GB occurred when she was between 10 and 12 years old and involved a charge of sexual penetration of a child under 13 contrary to s 320(2) of the Code and a charge of attempted sexual penetration of a child under 13 contrary to s 552 and s 320(2) of the Code.[39] Mr Winder pled guilty to these charges. The sexual penetration charge related to an incident that occurred when the victim was 10 years old and living with her grandparents. The victim awoke one night to find Mr Winder standing beside her bed. He removed the victim's bedclothes and penetrated her vagina with his tongue. The charge of attempted sexual penetration concerned an incident that occurred two years later when the victim was 12 years old. The victim awoke to find Mr Winder laying on top of her. He put his hand over her mouth and removed her pants. He attempted to sexually penetrate her with his penis, but she wriggled around.[40]

    [39] Exhibit 1, 80.

    [40] Exhibit 1, 458 (Hasson Report [21]).

  4. The offences against TB occurred when she was between 7 and 10 years old. The offending involved Mr Winder penetrating the victim's vagina with his penis and touching her vagina with his fingers. The matter proceeded to trial where a jury found Mr Winder guilty of two counts of sexual penetration and three counts of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Code.[41] 

    [41] Exhibit 1, 148 - 149.

  5. Mr Winder was sentenced on 22 January 2002 to a total effective sentence of 12 years' imprisonment for the offences against GB and TB.[42]

    [42] Exhibit 1, 170.

  6. Since Mr Winder was placed on a supervision order in March 2011, he has committed a number of contraventions.[43] Most of these occurred in the first few years of Mr Winder's transition into the community and in any event were relatively minor.

    [43] Exhibit 1, 194 - 312.

  7. Apart from these contraventions, Mr Winder has not committed any offence in the 10 years that he has lived in the community.

Reports prepared by qualified experts - s 7(3)(a)

  1. On 5 March 2021, Quinlan CJ made orders that Dr Wojnarowska and Ms Hasson prepare reports pursuant to s 46(2)(a) and s 74 of the HRSO Act. I have identified these reports above.[44]

Dr Gosia Wojnarowska

[44] See [21].

  1. Dr Wojnarowska interviewed Mr Winder in 2010 for the purposes of assessment under the DSO Act. In preparing her most recent report, Dr Wojnarowska conducted a further interview with Mr Winder on 9 June 2021 at Carnarvon Community Corrections Centre. She also had a series of conversations with senior community corrections officer, Ms Skender.[45]

    [45] Exhibit 1, 437 (Wojnarowska Report [5]).

  2. Dr Wojnarowska conducted a risk assessment using a range of actuarial tools and clinical judgment frameworks, namely Static‑99R, 3‑Predictor Model, the Hare Psychopathy Checklist - Revised (PCL-R) and the Risk for Sexual Violence Protocol (RSVP).

  3. The Static‑99R relies mainly on historical factors (although age is also a factor) to assess the long-term potential for sexual recidivism. Dr Wojnarowska made the following findings in relation to the Static‑99R assessment in her report:[46]

    In routine samples of sexual offenders, the average 5 year sexual recidivism rate is between 5% and 15%. This means that out of 100 sexual offenders of mixed risk levels, between 5 and 15 would be charged or convicted of a new sexual offence after 5 years in the community. Conversely, between 85 and 95 would not be charged or convicted of a new sexual offence during that time period.

    Mr Winder's score was 2 (III Average Risk). That means that his overall risk of reoffending is 5.6% in 5 years which is that of the general population.

    Static‑99R does not measure all relevant risk factors and Mr Winder's recidivism risk may be higher or lower than that indicated by Static‑99R.

    [46] Exhibit 1, 446 (Wojnarowska Report [63] - [65]).

  4. The 3‑Predictor Model is an instrument to assess the risk of indigenous sexual recidivism which considers three significant factors distinguishing indigenous Australian sexual recidivists from non‑recidivists being: (a) maladaptive coping strategies; (b) unfeasible release plans; and (c) unrealistic long-term goals. Dr Wojnarowska's findings from the 3‑Predictor Model are as follows:[47]

    [47] Exhibit 1, 446 (Wojnarowska Report [67] - [69]).

    Maladaptive Coping Strategies

    Mr Winder had been released to the community in 2011 and has been coping well with various life stressors including a recent death in the family. He has not resorted to substance use and he has managed to build positive relationships in the community with the police, his [senior community corrections officer] having a non‑sexual partner and previously being engaged in voluntary work and other social activities such as playing darts and attending church. Therefore, in my opinion, Mr Winder demonstrated a healthy range of strategies that he implements in his daily life.

    Unfeasible Release Plans

    Mr Winder managed to demonstrate that his future plans, including accommodation, have been successfully implemented.

    Unrealistic Long‑Term Goals

    His long‑term goals of re‑engaging in darts and finding an intimate partner could be considered achievable.

  5. The RSVP relies on both historical and dynamic variables to assess the offender's risk of reoffending. The relevant findings made by Dr Wojnarowska in applying the RSVP are as follows:[48] 

    [48] Exhibit 1, 447 - 449 (Wojnarowska Report [77] - [79], [84] - [86], [94] - [96]).

    Attitudes that Support or Condone Sexual Violence: there is no evidence that this risk factor is present. He is aware that offending behaviour against children is unacceptable.

    Problems with Self-Awareness present: Mr Winder presents with problems of self‑awareness and as he demonstrated in the past, a failure to recognise or appreciate his potential for future sexual violence. He had no insight into his offending therefore he is unaware of the high risk of reoffending, specifically he has been unable to comment on high risk situations, triggers and signs of relapse.

    Problems with Stress or Coping partially present: Mr Winder has recently demonstrated an ability to cope with stressors as demonstrated by his readiness to seek further professional help and maintain his [supervision order] in the community. I note however that at the time when he entered counselling he was assessed as having a 'very low threshold for stress and he presented with suicidal ideation when under pressure'. It is possible that the years of psychological counselling has assisted him in this area.

    …

    Major Mental Illness partially present:  Mr Winder's cognitive difficulties are highly relevant to his treatment and management in the community …

    Problems with Substance Use not currently present.  Mr Winder has not used substances for over 10 years.

    Violent Ideation [is] not present.

    …

    Problems with Planning partially present: He has a history of poor problem solving, however Ms Skender [reported] that this has improved since she has taken over his management approximately 18 months ago.

    Problems with Supervision partially present: He has been considered generally compliant with his conditions however he has breached his order on multiple occasions which he has not recognised as being a serious matter.

    Problems with Treatment partially present: He reports that he is motivated and has self‑initiated engagement in psychological counselling. However, his cognitive limitations are the barrier in successfully addressing his outstanding treatment needs which include lack of insight into his offending behaviour and high risk situations and strategies to manage this. His lack of understanding social cues is a further impediment stemming from his personality characteristics which so far have not been amenable to change.

  6. Dr Wojnarowska set out two possible risk scenarios for Mr Winder:[49]

    The first scenario would relate to the children that are part of his family and to whom he would have ongoing access to. He is unlikely to offend against a stranger child he encounters on the streets, shopping centre, public transport or alike. The potential victim will be well known to him through either the family connections or friends. The harm to the victim will be both physical and psychological.

    The second scenario: sexual penetration is equally possible, as it does not require Mr Winder to have more time with a victim. He would choose the victim based on a misinterpretation that she is sexually interested in him and once an opportunity is presented he would attempt to have sex with her. If she refused his advances he is likely to proceed without consent and use physical restraint.

    [49] Exhibit 1, 449 (Wojnarowska Report [99] - [100]).

  7. In view of these risk scenarios, Dr Wojnarowska expressed the following opinion in relation to Mr Winder's risk of reoffending:[50]

    Taking into consideration my clinical assessment and the application of PCL‑R (low risk), Static‑99R (average risk) and [3‑Predictor Model] (low risk), I am of the opinion that Mr Winder is at moderate risk of [sexual] reoffending. The protective factors identified in RSVP indicate that this risk can be adequately managed in the community if he is subject to the relevant legislation …

    In my opinion if he were to be taken off the [supervision] order, his risk of sexual reoffending may escalate as it appears that the current structure that is provided by his [senior community corrections officer] and police is crucial to his offence‑free functioning.

    [50] Exhibit 1, 450 (Wojnarowska Report [101] - [102]).

  8. Dr Wojnarowska's assessment of Mr Winder's risk factor is that he is at moderate risk of reoffending.

  9. In cross‑examination, Dr Wojnarowska expressed the view that 'crucial' was too strong a word to describe the role of the continued structure provided by a supervision order in ensuring Mr Winder did not reoffend. She agreed that a more appropriate description would have been to say that the current structure 'assists and affirms' his offence‑free functioning.[51]

    [51] ts 52 (2/8/2021).

  10. Dr Wojnarowska stated in her report that particular areas of concern in relation to Mr Winder's risk of reoffending 'include sexual preoccupation with no appropriate outlet, and history of deviant sexual interest in children'.[52] These factors led Dr Wojnarowska to diagnose Mr Winder as fulfilling the diagnostic criteria for paedophilia:[53]   

    The neuropsychological report by [Dr Elizabeth] Vuletich completed after my last report [in 2010] revealed that Mr Winder was not as cognitively impaired as he presented in my first assessment as his IQ is in the borderline range and therefore he does not fulfil the criteria of being intellectually impaired. Taking into consideration … this information I am now of the opinion that his sexual offending against children was driven by his deviant sexual interest in them and as such he fulfils the diagnostic criteria for paedophilia.

    [52] Exhibit 1, 450 (Wojnarowska Report [103]).

    [53] Exhibit 1, 450 (Wojnarowska Report [104]).

  11. Dr Wojnarowska made the following recommendations for Mr Winder:[54]

    [54] Exhibit 1, 450 - 451 (Wojnarowska Report [106] - [111]).

    Psychological Treatment

    It appears that there has been some improvement in his functioning, ability to cope with stress and anxiety levels. Therefore ongoing psychological counselling through 360 Health is advisable. Participation in Sex Offender Treatment Programs is not recommended at this point in time. 

    Pharmacological Treatment

    Anti‑libidinal treatment: Given the presumed high levels of sexual drive and preoccupation, anti-libidinal treatment should be considered. In my view he would benefit from a trial of Serotonin Selective Reuptake Inhibitors as a libido-reducing agent. A review of the studies researching treatment of sexual offenders showed a significant decrease in deviant fantasy intensity and frequency in subjects treated with fluoxetine, sertraline and fluvoxamine equally …

    Social Supports

    Mr Winder would be best advised to re‑engage in social activities such as volunteer work, darts and attending church.

    Supervision Order Conditions

    Although Mr Winder's risk has been assessed to be in the moderate range the current structures in place including support by his community management team, family and the police mitigate that risk to some degree.

    In my opinion a trial without GPS monitoring could be considered and could be substituted with a diary that can be cross‑referenced with external information of his whereabouts. He is unlikely to leave the state as his main supports including his long‑term friend and family reside in Carnarvon. In addition, it is expected that treatment with [Selective Serotonin Reuptake Inhibitors] will further decrease his risk of reoffending.

    Mr Winder is motivated to continue his meetings with police and his [senior community corrections officer] has thus far assisted Mr Winder in leading an offence‑free and prosocial life in the community.

  12. I am conscious of Dr Wojnarowska's assessment that Mr Winder is a paedophile and that paedophiles have a longer persistence in activity than other sexual diagnoses. In assessing Mr Winder's risk, Dr Wojnarowska took into account his diagnosis of paedophilia.

Ms Julie Hasson

  1. In preparing her report, Ms Hasson interviewed Mr Winder on 11 June 2021 at Carnarvon Community Corrections Centre. She also liaised with Ms Skender.[55]

    [55] Exhibit 1, 453 (Hasson Report, 2).

  2. Ms Hasson undertook an assessment of Mr Winder's risk of reoffending utilising the Static‑99R, PCL-R and the RSVP structured professional approach to integrate all the information from the risk tools to arrive at a clinical decision. Unlike Dr Wojnarowska, Ms Hasson did not utilise the 3‑Predictor Model.

  3. In considering the RSVP and Static‑99R assessments together, Ms Hasson arrived at the view that:[56]

    Mr Winder is an average risk of sexually reoffending and that his risk will shift to below average within the next 1 ‑ 3 years and within 5 years he will be considered very low risk based on time free in the community. In the interim Mr Winder may continue to benefit from some supervision, support and monitoring.

    [56] Exhibit 1, 472 (Hasson Report [90]).

  4. Mr Winder's total score on the PCL-R was 10.  Ms Hasson said in her report that this score falls within the low range and does not fit the construct of psychopathy.[57]

    [57] Exhibit 1, 473 (Hasson Report [93]).

  5. Ms Hasson said that Mr Winder was likely to engage in sexual offending in the following circumstances:[58]

    [58] Exhibit 1, 473 (Hasson Report [94] - [100]).

Scenario 1 - The most likely scenario for future sexual offending would involve Mr Winder misreading or misinterpreting social cues of an adult female and forming the belief that she is flirting with him and/or sexually interested. Such a circumstance may lead to Mr Winder acting out sexually by impulsively grabbing and touching the woman in public or attempting to kiss her.

Scenario 2 - In this scenario Mr Winder may become sexually interested in a female he has seen or had some form of contact with, and as above he may have misinterpreted friendliness for a sexual interest. In this scenario, Mr Winder may follow the woman home and gain entry to her house late at night possibly with the intention of having sex with the woman. This offence is likely to involve penile penetration. Some violence may be used to gain compliance.

Scenario 3 - In this scenario sexual violence may occur against a child victim.  It is likely that after some prolonged contact with a child, Mr Winder may misconstrue a child's interest in him, misinterpret any display of affection or attention resulting in him developing an inappropriate interest in or relationship with that child that may culminate in sexual contact with that child. Mr Winder has spoken of a desire to be cuddled and it may be such a desire that precipitates such an offence.

…

Imminence

Mr Winder has been in the community since 2011 and despite a number of contraventions he has not offended. Mr Winder's close relationship with [DR] and his siblings are seen as significant protective factors. The loss of supports may increase his risk of reoffending. Similarly, he is enjoying his life in the community and finds meaning and purpose in his daily activities. Should this cease, his risk may increase. If he maintains his current peer supports and relationships, continues to seek support and guidance from available professionals, does not consume alcohol or illicit substances and avoids contact with children his offending is not imminent. If any of these external controls change or if Mr Winder experiences significant negative affectivity the imminence of risk may arise.

Frequency/Duration

If Mr Winder were to commit an offence of the type outlined in scenario 1 and 2 in Carnarvon it is likely he would be apprehended quickly. Grooming of a child and/or a sexual offence against a child may go undetected for a little longer in certain circumstances depending on the age of the child.

Likelihood

It is possible that all three scenarios could occur in the future if Mr Winder does not continue to manage his risk as they closely parallel previous offending. Ten years offence free in the community however gives some assurance that Mr Winder is managing his risk to an acceptable level.

  1. Ms Hasson said further that Mr Winder has generally demonstrated positive behaviours while living in the community notwithstanding some outstanding areas of concern:[59]

    Mr Winder has resided in the community for the past 10 years including in the last few years living independently in his own property. Whilst there have been a number of contraventions and breaches of the supervision order, many of these occurred in the first few years of his transition into the community. Most of the contraventions have been considered unintentional or minor and many have been the result of Mr Winder's cognitive limitations. Mr Winder's success on his order has demonstrated a capacity to problem‑solve and plan and acquire new skills that exceed expectations given his cognitive deficits and difficulties in the community previously. He has not tested positive to any alcohol or illicit substances throughout this time and very few contraventions have been linked to placing himself in high risk situations. Mr Winder's family and social supports are all aware of his offending behaviour and current order conditions. They appear to be engaging in protective behaviours and Mr Winder has demonstrated a pattern of removing himself from situations, places and events where children are present or where alcohol is being consumed in more than a social or moderate capacity. Mr Winder has attended supervision sessions consistently, and for the most part has made good use of the support. He has also, when required, availed himself of community‑based mental health treatment. Mr Winder engages in appropriate prosocial hobbies and leisure pursuits.

    As stated earlier in the report, it is well known that reduced recidivism is associated with high-quality release plans that support accommodation, positive social connections, employment or hobbies, and prosocial, personally meaningful goals. Mr Winder has achieved these goals during his time in the community. Mr Winder's verbal skills preclude him from being able to articulate, explain and express himself clearly. Nevertheless, his actions and behaviours have demonstrated that he is able to implement appropriate risk management strategies when the need arises.

    The most significant outstanding treatment need and/or area of concern identified during the current assessment pertains to Mr Winder's potential to misread social cues from women whereby he may assume sexual interest when a woman is simply being polite or friendly. Less likely, but still possible would be for Mr Winder to develop an inappropriate relationship with a child following prolonged contact. A need for affection and unmet intimacy needs would be significant risk factors. Those involved in Mr Winder's care, support, supervision and/or monitoring should engage in regular discussion with him about his interactions with females and how he interprets behaviour.

    The other area of concern pertains to making regular enquiries about Mr Winder's sexual interests, patterns of sexual arousal, libido and current level of sexual satisfaction either solo through masturbation or with a partner where indicated. Obtaining some information about pornography use or other masturbatory stimuli is important to ensure age appropriate sexual interests are being reinforced and also to gauge level of sexual objectification, though Mr Winder's comments throughout the current interview indicated some awareness that sexual intimacy is a mutual process whereby both participants needs are met.  It would appear this has not been done regularly during his time on the [supervision order]. Enquiries are not required at every contact however should occur at least quarterly should he remain on a supervision order. 

    [59] Exhibit 1, 474 - 475 (Hasson Report [101] - [104]).

  1. Ms Hasson's view is that 10 years living offence free in the community gives some assurance that Mr Winder is managing his risk to an acceptable level. Although her view remains that Mr Winder has an average risk of sexual reoffending it is important to note that this risk will shift to below average within the next one to three years and within five years he will be considered very low risk based on time free in the community. In short, the risk is declining.

  2. Ms Hasson's evidence is that over the next three to five years he will be at no greater risk of offending than someone who has never been convicted of a sexual offence.[60]

    [60] ts 63 (2/8/2021).

  3. Ms Hasson also said that Mr Winder's time offence free in the community was a good indicator that he had made very important changes in addressing the risk of reoffending. She observed that when people are self-motivated and develop healthy fulfilling lives with leisure pursuits, employment, hobbies and connections to others, it contributes to a more prosocial offence-free life.[61]

    [61] ts 60 (2/8/2021).

  4. Ms Hasson described Mr Winder's non‑intimate relationship with DR as 'a very significant social support' that 'provides him with meaning and purpose'.[62] She said that Mr Winder enjoys spending time with DR and that many of his daily activities centre around helping her, for example by taking her to appointments.[63]

    [62] ts 60 (2/8/2021).

    [63] ts 60 - 61 (2/8/2021).

  5. Ms Hasson further stated that Mr Winder's family network is a 'very important risk management tool' and 'all seem to have a bit of an investment in Mr Winder staying in the community'.[64] She said that they are aware of Mr Winder's risk factors and understand that he will remove himself from certain situations such as where children are present. They have apparently had contact with Mr Winder's community corrections officer to ensure that they are aware of such matters. In terms of Mr Winder's contact with community corrections, Ms Hasson's view is that he has had positive engagement with his community corrections officers and that he enjoys talking to them and seeking their point of view.[65]

    [64] ts 61 (2/8/2021).

    [65] ts 61 (2/8/2021).

  6. It is evident that Mr Winder has developed a strong social network that is protective against future offending.

Other assessments - s 7(3)(b)

  1. There are numerous reports dating back to 1980 concerning Mr Winder. I have had regard to the reports ordered by the Chief Justice and the reports referred to therein, because they are the most relevant reports.

  2. Mr Winder's senior community corrections officer, Ms Skender, prepared an updated community supervision assessment for the purposes of this restriction order application, as identified above.[66]

    [66] See [21].

  3. Ms Skender's report summarises Mr Winder's compliance while subject to the previous supervision order including programmatic intervention, community functioning and supports, and contraventions.

  4. Ms Skender summarises the views of Dr Wojnarowska and Ms Hasson as to Mr Winder's behaviours to be managed and proposes strategies to manage the offending behaviours.[67] Ms Skender foreshadowed a trial of monitoring Mr Winder with an alternative measure to GPS electronic monitoring.[68] Ms Skender gave oral evidence as to the outcome of this trial at the restriction order hearing.[69]

    [67] Exhibit 1, 483 - 485 (Community supervision assessment prepared by senior community corrections officer Ms Sarah Skender dated 29 June 2021, 7 - 9 (Skender Report)).

    [68] Exhibit 1, 485 (Skender Report, 9).

    [69] ts 72 (2/8/2021).

  5. The trial was conducted on 23 July 2021. It involved Mr Winder and his friend DR travelling to Gascoyne Junction without GPS monitoring. Mr Winder was subject to a number of conditions such as time restrictions and a requirement to contact community corrections at certain times. Ms Skender's evidence at the hearing was that the trial went quite well overall. However, she did note that Mr Winder returned to Carnarvon 28 minutes later than directed due to the drive perhaps taking longer than Mr Winder anticipated. Ms Skender said that if Mr Winder were to remain on the supervision order, an arrangement of this kind could certainly be considered by the risk management team.

  6. A draft of proposed supervision order conditions was annexed to Ms Skender's report. Those conditions include reporting, attendance at programs, restrictions on contact with victims and children, and electronic monitoring. 

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

  1. Dr Wojnarowska is of the view that Mr Winder is of moderate risk of reoffending.  According to Ms Hasson, Mr Winder's risk will be below average within one to three years.

  2. Dr Wojnarowska and Ms Hasson have identified broadly similar risk scenarios. Both have identified a risk of sexual penetration against an adult female.

  3. Ms Hasson has also identified a risk of indecent assault.

  4. In so far as the risk involves offending against members of Mr Winder's family, the adult members of his family are aware of his history. Any offending is likely to be after prolonged contact with a child. It seems likely that Mr Winder's siblings would be conscious of any particular attention to a child. His relationships with his siblings are seen as a significant protective factor. 

  5. Notwithstanding the risk scenarios identified above, Mr Winder has not offended in the 10 years since his release.

Pattern of offending behaviour - s 7(3)(d)

  1. Mr Winder has committed both sexual and non-sexual offences although most seem to have been sexually motivated. The sexual nature of his offending appears to have escalated over time. The victims of the offences have been exclusively female and include both children and adults. 

  2. Mr Winder's earlier sexual offences appear to have involved adult female strangers and the nature of his behaviour may be construed as somewhat impulsive and opportunistic. However, his later sexual offences involved children known to Mr Winder and occurred over several years. Mr Winder used violence in one of his first sexual offences when he grabbed the victim by the throat and hit her in the face.[70]

Efforts to address offending behaviour - s 7(3)(e)

[70] Exhibit 1, 440 (Wojnarowska Report [24]), 468 - 469 (Hasson Report [71]).

  1. Mr Winder has participated in a number of rehabilitation programs and associated activities such as psychological counselling.[71]

    [71] Exhibit 1, 460 - 462 (Hasson Report [33] - [38]), 464 (Hasson Report [48] - [50]), 478 - 479 (Skender Report, 2 - 3).

  2. While in prison, Mr Winder participated to differing degrees in intervention programs including the Reasoning and Rehabilitation Program, the Legal and Social Awareness Program and the Sex Offender Treatment Program for the Intellectually Disabled.[72] Mr Winder demonstrated some progress in his communication skills, including his ability to discuss and identify problematic aspects of his behaviour. However, his treatment gains were minimal, particularly in terms of accepting responsibility for his behaviour.[73]

    [72] Exhibit 1, 460 - 461 (Hasson Report [33] - [36]).

    [73] Exhibit 1, 461 (Hasson Report [36]).

  3. Between 25 March 2011 and 10 February 2012, Mr Winder completed 40 sessions of psychological counselling with an external psychologist based at Carnarvon Family Support Services.[74]

    [74] Exhibit 1, 464 (Hasson Report [48]), 478 (Skender Report, 2).

  4. Mr Winder has also participated in telephone counselling sessions with the State Forensic Psychological Service on six occasions since 2012, with his last session on 31 January 2020. These sessions have assisted with life stressors and frustrations surrounding Mr Winder's supervision order.[75]

    [75] Exhibit 1, 478 (Skender Report, 2).

  5. At various times since 2012, Mr Winder has engaged in counselling sessions with a local mental health service provider in Carnarvon, 360 Health Services. He has sought assistance in relation to his feelings of stress, depression, sleep difficulties and suicidal thoughts. The frequency of Mr Winder's sessions has varied according to Mr Winder's engagement and perceived and reported treatment gains.[76]

Positive effects of rehabilitation programs - s 7(3)(f)

[76] Exhibit 1, 479 (Skender Report, 3).

  1. Mr Winder's participation in the above rehabilitation programs and associated activities has had positive effects. In this respect, I adopt the opinion of Ms Hasson at [101] - [102] of her report as set out above.[77]

Risk of committing a serious offence - s 7(3)(h)

[77] See [66].

  1. Ms Hasson deals with Mr Winder's risk of reoffending at [94] - [96] of her report as set out above.[78] The risk is not high.

Need to protect members of the community from risk - s 7(3)(i)

[78] See [65].

  1. As I have noted, there was evidence that if Mr Winder reoffended, it would involve a sexual offence against either an adult female or child victim known to Mr Winder. The victims of his offending would experience both physical and psychological harm.

Any other relevant matter - s 7(3)(j)

  1. Mr Winder is a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA).

  2. Even if he were not subject to a supervision order he would still be subject to the requirements of the Community Protection (Offender Reporting) Act. Under s 46(2) of that Act Mr Winder is obliged to report for a further five years.

  3. Mr Winder would be obliged to report at least annually[79] and otherwise as often as the Commissioner requires.[80] Ms Skender gave evidence that Mr Winder is presently required to report monthly.[81]

    [79] Community Protection (Offender Reporting) Act 2004 (WA) s 28(1).

    [80] Community Protection (Offender Reporting) Act 2004 (WA) s 28(3).

    [81] ts 71 (2/8/2021).

  4. Although the reporting and supervision requirements are not as onerous as those imposed by a supervision order under the HRSO Act they are nevertheless capable of imposing substantial obligations on Mr Winder should the Commissioner conclude that it is necessary.

  5. Mr Winder lives in a relatively small community. Mr Winder's offending history is known in that community. His family and friends are looking out for him.[82] These factors might in effect operate as a kind of neighbourhood watch and thereby deter any offending.

    [82] ts 53 - 54 (2/8/2021).

  6. If Mr Winder were not required to wear a GPS ankle bracelet, it would allow him to better engage with his community which would be protective.[83]

    [83] ts 64 - 65 (2/8/2021).

  7. All the above factors are protective against any future offending by Mr Winder.

  8. At the hearing, Ms Skender gave evidence of Mr Winder removing himself from a situation involving children.[84] Mr Winder was about to purchase food from a bain‑marie at a local roadhouse when children entered and approached the bain‑marie. Mr Winder moved to another part of the shop and waited until the children had left before reapproaching the bain‑marie. As far as Ms Skender was aware, Mr Winder had not seen her. This evidence is an encouraging sign of Mr Winder's awareness of his obligation to avoid children.

    [84] ts 73 (2/8/2021).

  9. I also note that even without a supervision order, Mr Winder would still have access to psychological counselling through his general practitioner. He recognises when he needs counselling.[85]

Mr Winder's compliance with the supervision order

[85] Dangerous Sexual Offenders Act 2006 (WA) s 4 (DSO Act).

  1. The purpose of a supervision order under the now repealed DSO Act was reflected in the objects of that Act, which mirror the objects of the HRSO Act.[86] The objects of the DSO Act at the time Mr Winder's supervision order was made were:[87]

    (a)to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community and of victims; and

    (b)to provide for continuing control, care, or treatment, of persons of a particular class.

    [86] See HRSO Act s 8.

    [87] DSO Act s 4.

  2. Mr Winder's last sexual offence was committed more than 20 years ago.

  3. In the 10 years since McKechnie J imposed the supervision order, Mr Winder has not committed any form of sexual offence or serious offence within the meaning of the DSO Act or the HRSO Act. Indeed, in the last 10 years, Mr Winder has not committed any offences whatsoever, other than offences of failing to comply with the supervision order itself. The breaches of his supervision order were considered to be unintentional, minor in nature and the result of genuine forgetfulness or error on his part.[88]

    [88] Exhibit 1, 441 (Wojnarowska Report [36]), 462 - 463 (Hasson Report [43]). 

  4. Dr Wojnarowska's evidence was that Mr Winder has demonstrated that he is capable of living an offence‑free life.[89] In Dr Wojnarowska's opinion, the most important factor in Mr Winder's lack of offending is his desire not to reoffend. He has stated to her that he does not wish to hurt anyone. Further, his support structure assists him to live a prosocial life.[90]

    [89] ts 39 (2/8/2021)

    [90] ts 40 (2/8/2021).

  5. As the Chief Justice stated in the preliminary hearing decision, Mr Winder's compliance with the supervision order has not been perfect, but it can be said that the adequate protection of the community and of victims has been ensured.[91] 

    [91] The State of Western Australia v Winder [9].

Conclusion

  1. Having considered all the factors required by the HRSO Act, I have come to the conclusion that Mr Winder is not a high risk serious offender. 

  2. Mr Winder's assessment of being of average or moderate risk needs to be seen in the context that it is a declining risk. As set out above, he has a strong protective network, in particular that provided by his siblings. His relationship with DR provides purpose in his life. He has not offended during the 10‑year period of his supervision order. His community corrections officer has observed him taking positive steps to avoid contact with children. This behaviour is indicative of Mr Winder's ability to self-manage his risk factors more generally. I note Ms Hasson's evidence that he 'seems to take those responsibilities on himself, and I don't think it's so much the order that's keeping him from doing things that he shouldn't do at this point in time.'[92] Even if Mr Winder is not subject to a supervision order he will still be subject to reporting obligations.

    [92] ts 62 (2/8/2021).

  3. Any decision to release a sexual offender person into the community carries a risk. I find that the risk to the community if Mr Winder is not subject to a supervision order is not unacceptable. The risk to the community does not require that he be subject to a further supervision order.

  4. Having concluded that there is no unacceptable risk, it is not necessary to consider whether a supervision order should be made.

  5. For these reasons I dismiss the State's application for a supervision order and rescind the interim supervision order made by Quinlan CJ on 5 March 2021.

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

    SB

    Research Associate to the Honourable Justice Curthoys

    9 DECEMBER 2021


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The State of Western Australia v Winder [2021] WASC 65
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187