The State of Western Australia v ZSJ
[2020] WASC 330
•14 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ZSJ [2020] WASC 330
CORAM: FIANNACA J
HEARD: 14 MAY 2020
DELIVERED : 4 SEPTEMBER 2020
PUBLISHED : 14 SEPTEMBER 2020
FILE NO/S: DSO 9 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ZSJ
Respondent
Catchwords:
Dangerous sexual offender - High risk serious offender - Division 2 hearing - Supervision order - Enactment of High Risk Serious Offenders Act 2020 (WA)
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order granted
Category: B
Representation:
Counsel:
| Applicant | : | B Meertens |
| Respondent | : | S Rafferty |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Seamus Rafferty Barristers & Solicitors |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; (2008) 198 A Crim R 149
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Narrier [No 5] [2019] WASC 17
The State of Western Australia v Rao [2019] WASC 93
FIANNACA J:
The application and its history
Commencement of the proceedings under the Dangerous Sexual Offenders Act 2006
The respondent has a history of sexual offending against female children under the age of 13 years. On 11 October 2019, at a time when the respondent was serving a term of imprisonment for such offending, and within the final year of that sentence, the Director of Public Prosecutions for Western Australia (DPP) made an application in the name of the State of Western Australia (the applicant) for an order under Division 2 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) that -
(a)the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order);
(b)alternatively, he be subject to conditions when not in custody (a supervision order).
The application was made on the basis that the respondent is a serious danger to the community, in that there is an unacceptable risk that, if one of those orders is not made, the respondent will commit a serious sexual offence,[1] in particular, an offence of the kind he has previously committed against female children.[2]
Enactment of the High Risk Serious Offenders Act 2020
[1] Section 7 and s 17 of the DSO Act.
[2] It is sufficient at this stage to note that, by s 3 of the DSO Act, a 'serious sexual offence' was an offence which came within the meaning of 'serious sexual offence' in s 106A of the Evidence Act 1906 (WA), which referred to offences mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more. The offences of which the respondent has been convicted included aggravated indecent dealing with a girl under 16 years and indecently dealing with a child under the age of 13 years, all of which were serious sexual offences for the purposes of the Evidence Act.
On 9 July 2020, the High Risk Serious Offenders Act 2020 (the HRSO Act) received the Royal Assent, as a result of which pt 1 of the HRSO Act came into effect.[3] Other parts of the HRSO Act that are relevant to these proceedings came into force on 26 August 2020 (commencement day)[4] by virtue of proclamation pursuant to s 2(1)(c) of the HRSO Act.[5] Upon commencement of those parts of the HRSO Act, the DSO Act was repealed.[6]
[3] HRSO Act, s 2(1)(a) and Compilation table.
[4] The term 'commencement day' has relevance for the purposes of s 124, and is defined in s 122 to mean 'the day on which this section comes into operation', which, by virtue of s 2(1)(c) and the proclamation referred to below, was 26 August 2020.
[5] High Risk Serious Offenders Act 2020 Commencement Proclamation 2020, cl 2 (SL2020/131; Government Gazette, WA, 14 August 2020, p 2619).
[6] HRSO Act, s 123.
However, by s 124(1) of the HRSO Act, as the application made under the DSO Act in these proceedings had not been finally determined by commencement day, the application and these proceedings continue and may be determined under the HRSO Act, and for the purposes of determining the application under the HRSO Act, the application is taken to have been made under the corresponding provision of the HRSO Act. By s 124(2), the application may be continued by the DPP. Further, by s 125, if an order made or direction given under the DSO Act is in effect on commencement day, it continues in effect and is taken to have been made or given under the corresponding provision of the HRSO Act.
The overall effect of the HRSO Act is to widen the scope of the regime that previously applied in respect of persons who came within the description 'dangerous sexual offenders' in the title of the DSO Act to other offenders considered to be 'high risk serious offenders', being persons in respect of whom the court is satisfied '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'.[7] A 'restriction order' is a continuing detention order or a supervision order, both of which are defined in similar terms as in the DSO Act.[8] The widening of the previous regime is achieved by the definition of 'serious offence'.[9] In addition to offences that previously came within the definition of 'serious sexual offence' under the DSO Act, parliament has determined that there are numerous other offences (most of which involve violence or some other particular danger to the community) from which the community requires protection by the making of a restriction order if there is an unacceptable risk the offender will commit such an offence. For the purposes of these proceedings, however, it is sufficient to note that the HRSO Act operates largely as the DSO Act did in respect of serious sexual offences. Whereas previously the question was framed in terms of whether the respondent was a 'serious danger to the community', the question now is whether he is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same. I will deal with those matters in more detail below.
Respondent's history giving rise to the application
[7] HRSO Act, s 7(1).
[8] HRSO Act, s 3 (definition of 'restriction order'), s 26 ('detention order') and s 27 ('supervision order').
[9] HRSO Act, s 3, s 5 and sch 1.
It is convenient at this stage to provide further historical context for the application.
The respondent is now 54 years old. At various times from the age of 15 in 1980, to the age of 43 in 2011, he committed a large number of sexual offences against girls who were known to him. His victims were his nieces, great nieces and a neighbour's daughter. All of the offending occurred in Western Australia.
The respondent was first convicted in July 1992 for sexual offences he committed from July 1989 to March 1992 against two nieces, who were sisters and were aged between 18 months and 6 years when the offences were committed. The respondent pleaded guilty in the District Court to eight counts of aggravated indecent assault, but acknowledged that those offences were representative of a more extensive course of sexual offending against those two victims, consisting of 40 to 50 episodes with each child. In September 1992, the respondent was sentenced to 3 years' probation with 175 hours of community service in respect of those offences. Two conditions of his probation were that he was not to have unsupervised contact with girls under the age of 10 years, and he was to complete the Sexual Assault in Families (SAIF) counselling programme, which he had commenced after self‑referral in March 1992.
When the respondent was interviewed by police in 1992 about the offences committed against the two nieces (referred to above), he also admitted having indecently dealt with five other girls aged from 3 to 12 years (although they were mainly aged 4 to 6 years) on numerous occasions. Three of those children were also his nieces. In respect of two of the nieces, he admitted that the offending had started when he was a juvenile, between 15 and 17 years of age. No charges were laid against the respondent at that time in respect of any of the offences concerning those five children.
It appears the respondent did not commit any sexual offences during the period of probation imposed in September 1992, which concluded in September 1995. However, he subsequently committed a number of sexual offences against two great nieces and a neighbour's daughter (the last of his victims) at various times from September 2000 until April 2011. The victims were aged from 5 to 12 years.
In 2011 the respondent was accused by the mother of his last victim of being a paedophile. Soon after, he moved to Tasmania and lived there for approximately three years before being extradited to Western Australia on 12 March 2014 to face charges in respect of the later offending. He was also charged in respect of the sexual offending he had admitted in 1992, but in respect of which he had not been charged at that time. That included two charges in the Children's Court, in respect of the offences he committed when he was aged between 15 and 17 years.
The respondent was subsequently convicted in the District Court of a total of 14 offences, being two counts of inciting a girl under the age of 13 years to indecently deal with another girl, seven counts of indecently dealing with a girl under the age of 16 years in circumstances of aggravation, namely that the girl was under the age of 13 years, and five counts of indecently dealing with a child under the age of 13 years (being the later offences). He pleaded guilty to three of the seven counts of aggravated indecent dealing with a girl under 16 years, and was convicted of the other offences after trial. The offences of which he was convicted were representative of a wider course of sexual offending against the victims.
On 5 June 2015, the respondent was sentenced to a total of 6 years and 6 months' imprisonment, with eligibility for parole, in respect of the 14 counts of which he was convicted. As the respondent had been in custody since he was extradited on 12 March 2014, the sentence was taken to have commenced on that date.
On 17 June 2015, he was convicted and sentenced in the Children's Court to 6 months' imprisonment, to be served concurrently with the District Court sentence, in respect of the two offences committed when he was a juvenile, which had also been charged on the basis that they were representative of a wider course of sexual offending against the two victims.
The respondent became eligible to be considered for release on parole on 11 September 2018, after serving 4 years and 6 months of the term imposed in the District Court. He initially declined to apply for parole, but applied at a later date. He was granted parole by the Prisoners Review Board, subject to a number of conditions, on 16 September 2019, with a proposed release date of 9 December 2019.
The application and the respondent's release on an undertaking
At the time the present application was made (on 11 October 2019), the DPP was authorised, under s 8 of the DSO Act, to make an application to this Court for orders under s 14 and Division 2 of the DSO Act in relation to the respondent, because he was under a custodial sentence for a serious sexual offence and there was a possibility that the respondent might be released from custody within the period of one year after the application was made.
In accordance with s 14 of the DSO Act, the application was for an order to fix a date for the hearing of the present application for a Division 2 order, and for consequential orders under s 14, including an order requiring the respondent to be examined by psychiatrists for the preparation of reports for the hearing. Such an application requires the court to be satisfied, at a preliminary hearing, that there are reasonable grounds for believing that a court might find that the respondent is a serious danger to the community.
On 6 December 2019, at the preliminary hearing, Corboy J concluded on the balance of probabilities that there were such grounds and made orders under s 14(2) of the DSO Act. His Honour fixed 14 May 2020 as the date for the Division 2 hearing. It was necessary for his Honour to consider whether the respondent should be subject to an interim detention order pending the determination of the application, which would have required the respondent to remain in custody at least beyond the date on which he would have been entitled to be released under the parole order. Having regard to the materials before him, and placing significant weight on the fact that the respondent had been granted parole, Corboy J did not consider it appropriate to impose an interim detention order. Instead, his Honour ordered that the respondent be released subject to an undertaking, which consisted of 47 conditions (Undertaking). Those conditions were consistent with conditions that might be imposed if the respondent were to be subject to a supervision order.
Also on 6 December 2019, the Prisoners Review Board amended the Parole Order to add a condition that the respondent was to abide by any undertaking given by him in these proceedings, and was to comply with any conditions if released between the Division 1 hearing and any Division 2 hearing under the DSO Act.
The respondent was released on parole and subject to the Undertaking on 9 December 2019. He was supervised by Ms Kimberley Comery, a Senior Community Corrections Officer (SCCO) with the Community Offender Management Unit (COMU).
Breach of the Undertaking and return to custody
Condition 43 of the respondent's Undertaking provided that he was not to 'conduct computer searches for, access data containing, nor collect or possess in either electronic or permanent form, images of children, whether indecent or not'. It provided further that 'possession of such images depicting a child or children may be authorised by a CCO'.
On 21 April 2020, officers from the Sex Offender Management Squad (SOMS) examined the contents of the respondent's laptop computer at his residence and ascertained from his internet browsing history that he had accessed images of children on clothing store websites. Although the respondent claimed that he had gone on to the webpages accidentally, he was regarded as having breached condition 43 of the Undertaking and, therefore, the Parole Order. As a result, his parole was suspended and he was apprehended under a warrant and returned to custody on 23 April 2020. He has continued to serve his original term of imprisonment since then. In those circumstances, there has been no occasion for consideration of any further order concerning his detention under the DSO Act or the HRSO Act pending the determination of these proceedings.
The circumstances of the alleged breach will be important in determining the issues in these proceedings.
The hearing pursuant to Division 2 of the DSO Act and the manner in which the application is to be determined
The Division 2 hearing under the DSO Act proceeded on 14 May 2020. At the conclusion of the hearing I reserved my decision.
The application now comes to be dealt with as an application for a restriction order under s 48 of the HRSO Act. As will appear below, the issues to be determined are essentially the same as would have been the case under the DSO Act, and the evidence and submissions presented at the hearing of 14 May 2020 address those issues. Therefore, it has not been necessary to invite further submissions, and neither party has applied to adduce further evidence.
The issues for determination are:
(1)whether the respondent is a high risk serious offender; and
(2)if so, whether the appropriate order is a continuing detention order or release into the community on a supervision order.
If the respondent is found to be a high risk serious offender, one of those orders must be made.[10]
[10] HRSO Act, s 28(1).
In light of the respondent's submissions in these proceedings, while he did not concede that the court should find he was a serious danger to the community under the DSO Act, or (it would follow) a high risk serious offender under the HRSO Act, the issue is not really in contention. The essential question is what order should be made.
For the reasons that follow, I have come to the conclusion that the respondent is a high risk serious offender. I have further concluded that, notwithstanding the respondent's breach of his Undertaking, which I find to have occurred, the adequate protection of the community can be achieved by the making of a supervision order with strict conditions that were proposed by the applicant in the alternative order it sought. Not without some hesitation, I am satisfied on the balance of probabilities that the respondent would comply with the standard conditions of the supervision order.
Statutory framework and legal principles
As will emerge from the outline below of the statutory framework under the DSO Act and the HRSO Act, the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General.[11] The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'.[12] He went on to say:[13]
In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].
[11] Interpretation Act 1984 (WA), s 19(1)(a) and s 19(2)(f); Western Australia, Parliamentary Debates, Legislative Assembly, 26 June 2019, (Hansard) 4675b-4677a (Mr J.R. Quigley, Attorney General).
[12] Hansard, 4675.
[13] Hansard, 4675.
Whether or not that has been achieved remains to be seen upon analysis of the provisions. However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying the HRSO Act, with appropriate adaptation in cases involving non‑sexual offences.
It is convenient to note first that the objects of the HRSO Act are in relevantly identical terms to the objects previously specified in the DSO Act.[14] Pursuant to s 8, the objects of the HRSO Act are:
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.
[14] DSO Act, s 4 stated: 'The objects of this Act are - (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.
An application of the kind brought in these proceedings pursuant to s 8 of the DSO Act would now be made pursuant to s 35 of the HRSO Act. Whereas previously the application was for a Division 2 order under the DSO Act (being a continuing detention order or a supervision order made under s 17(1)(b)),[15] the application would now be for a restriction order, which is defined under s 3 of the HRSO Act to mean a continuing detention order or a supervision order.
[15] DSO Act, s 3.
The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 respectively of the HRSO Act in similar terms to those used in the DSO Act. In the DSO Act the meaning was to be ascertained from s 3 (the definitions section), which referred in respect of each term to the later provisions that authorised the making of the orders (in particular s 17(1)(a) and (b)). The description of the orders in those later provisions gave content to the meaning, as will appear from the reference to s 17 below.
As I stated earlier, these proceedings were conducted under Division 2 of the DSO Act. The manner in which the court was required to deal with a Division 2 hearing was set out in s 17 of the DSO Act, which provided:
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that, with effect from a stated date not earlier than 21 days after the date the order is made, and continuing for a stated period, the offender, when not in custody, is to be subject to stated conditions that the court, subject to section 18, considers appropriate.
(2)Subject to subsection (3), in deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
(3)A court cannot make an order under subsection (1)(b) unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order.
(4)The onus of proof as to the matter described in subsection (3) is on the offender.
As I noted earlier, s 17(1)(a) and (b) gave content to the terms 'continuing detention order' and 'supervision order', by virtue of s 3 of the DSO Act.
Section 7(1) of the DSO Act provided:
(1)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.
(2)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.
A finding of 'serious danger' depended, therefore, on the existence of an 'unacceptable risk' that 'the person would commit a serious sexual offence' if the person were 'not subject to a continuing detention order or a supervision order'. If the court was satisfied in the manner provided in s 7(2) that there was an unacceptable risk of the kind described in s 7(1) of the DSO Act, it necessarily followed that the person concerned was a serious danger to the community.[16]
[16] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [66] (Wheeler JA); The Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; (2008) 198 A Crim R 149 (GTR) [21] (Steytler P & Buss JA).
The provision in the HRSO Act that corresponds to s 17 of the DSO Act is s 48, which provides:
(1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -
(a) make a continuing detention order in relation to the offender; or
(b) except as provided in section 29, make a supervision order in relation to the offender.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
The significant differences between s 48 of the HRSO Act and s 17 of the DSO Act are:
(1)the reference to 'high risk serious offender' instead of 'serious danger to the community';
(2)the content of what is meant by 'continuing detention order' and 'supervision order' in s 48 is to be found in separate provisions, namely s 26 and s 27 respectively of the HRSO Act;
(3)the condition concerning the commencement date of a supervision order in s 17 of the DSO Act is not reproduced in s 48 of the HRSO Act, but is replicated in amended form in s 27 of that Act; and
(4)the requirements of s 17(3) and (4) of the DSO Act are not reproduced in s 48 of the HRSO Act, but are replicated in s 29 of that Act.
Section 7 of the HRSO Act provides:
(1)An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
(2)The State has the onus of satisfying the court as required by subsection (1).
In my opinion, although the formulation of that provision differs from s 7 of the DSO Act, when one has regard to the language, context and overall structure of the relevant provisions in each statute, the matters about which the court must be satisfied are essentially the same. In particular, when dealing with the risk posed by a sexual offender, s 7 of the HRSO Act does not contain any criterion necessary to find a respondent to be a high risk serious offender that was absent in the DSO Act for the purposes of determining whether a respondent was a serious danger to the community. Again, that construction is confirmed by the second reading speech in respect of the relevant bill, in which the Attorney General said, when referring to the term 'high‑risk offender', that the bill was 'not intended to change the test under the [DSO Act] for whether the court makes a continuing detention order or a supervision order.'[17]
[17] Hansard, 4675.
The matters about which the court must be satisfied under s 7(1) of the HRSO Act are that:
(a)it is necessary to make a restriction order in relation to the offender;
(b)the necessity for the order stems from the need to ensure adequate protection of the community; and
(c)what the community must be protected against is the 'unacceptable risk' that the offender will commit a serious offence.
A finding that it is necessary to make a restriction order to ensure adequate protection of the community against 'an unacceptable risk that the offender will commit a serious offence' necessarily entails a finding that, if the offender were not subject to a restriction order, there would be an unacceptable risk he would commit a serious offence, which was the formulation in s 7 of the DSO Act. Similarly, while the latter provision did not speak of a need for the court to be satisfied that a continuing detention order or a supervision order was necessary, the findings required under s 7 of the DSO Act, when read with s 17 of the DSO Act, necessarily entailed a finding that a continuing detention order or a supervision order was necessary to adequately protect the community against an unacceptable risk that the person would commit a serious sexual offence.
That construction is supported by what was said by Wheeler JA in Williams in respect of what was meant by 'unacceptable risk' under the DSO Act, which, in my opinion, applies to the concept of 'unacceptable risk' under the HRSO Act. Her Honour said (emphasis added):[18]
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.
[18] Williams [63] ‑ [65] (Wheeler JA).
The question of what was meant by 'unacceptable risk' under the DSO Act was considered further in GTR, 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).[19] In my opinion, those principles apply equally to the concept of 'unacceptable risk' as it relates to a 'serious offence' under the HRSO Act.
[19] GTR [27] (Steytler P & Buss JA).
It can be seen also that s 7 of the HRSO Act stipulates the same evidentiary requirement, standard of satisfaction and onus of proof as were stipulated in s 7(2) of the DSO 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.[20] 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.[21]
[20] GTR [28] (Steytler P & Buss JA).
[21] GTR [34] (Steytler P & Buss JA).
Section 7(3) of the HRSO Act sets out a number of matters that the court must have regard to in considering whether a person is a high risk serious offender. Those matters are, in relevant respects, identical to the matters previously set out in s 7(3) of the DSO Act. The matters in s 7(3) of the HRSO Act are:
(a)any report prepared under s 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by the section;[22]
(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; and
(j)any other relevant matter.
[22] The DSO Act, s 7(3)(a) referred to 'any report a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person'.
As s 7(3)(j) of the HRSO Act implies, the list of matters to be considered by the court is not closed. There is clearly overlap between a number of the matters in the list, and some of the matters inform others.
It has previously been noted in respect of the corresponding provision of the DSO Act that, while s 7(3)(g) provides that the court must have regard to any criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean there is an unacceptable risk that the person would commit a serious sexual offence (now a serious 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 have occurred. However, past behaviour is often a good indicator of future conduct. Further, offences other than serious offences may be relevant in assessing the risk of the respondent committing a serious offence in the future, because they may demonstrate behaviour which has the real potential to lead to serious offending.
Once a court has concluded that an offender is a high risk serious offender, it must make either a detention order (being an order that the respondent be detained in custody for an indefinite term for control, care, or treatment)[23] or a supervision order (being an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30 of the HRSO Act).[24] In deciding between those two options, the paramount consideration is the need to ensure adequate protection of the community.[25] As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order.[26]
[23] HRSO Act, s 26(1).
[24] HRSO Act, s 27(1).
[25] HRSO Act, s 48(2).
[26] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
In my opinion, the following principles established in respect of the DSO Act apply equally to the HRSO Act. The court should choose the option which is least invasive or destructive of the respondent's right to be at liberty. At the same time it must ensure an adequate degree of protection of the community.[27] Therefore, if the court is not satisfied that a supervision order is capable of providing adequate protection of the community (having regard to the possible conditions which might be imposed, as identified in the evidence), it must make a continuing detention order.[28]
[27] The State of Western Australia v Latimer [2006] WASC 235 [49].
[28] Which includes if the court is left in doubt that a supervision order will provide adequate protection: Williams [86] (Wheeler JA, Le Miere AJA agreeing).
Further, the requirements of s 17(3) and (4) of the DSO Act, set out above, are now reproduced in s 29 of the HRSO Act, which provides relevantly:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the HRSO Act to mean a condition that under s 30(2) of the HRSO Act must be included in the order. Under the DSO Act the standard conditions were specified in relevantly identical terms in s 18(1). The conditions specified in s 30(2) are that the offender:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);[29] and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order;[30] and
(g)be subject to electronic monitoring under section 31.
[29] DSO Act, s 18(1)(d) referred to 'section 19A or 19B', which correspond to s 31 and s 32 of the HRSO Act.
[30] DSO Act, s 18(1)(f) referred to 'a sexual offence as defined in the Evidence Act 1906 section 36A', which included offences additional to those coming within the meaning of 'serious sexual offence'.
Therefore, the effect of s 29(1) and (2) (as was the case with s 17(3) and (4) of the DSO Act) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order.
In respect of the equivalent provisions of the DSO Act, I expressed my views as to what is meant by 'substantially comply with' in Director of Public Prosecutions (WA) v Hart.[31] Those views apply to s 29(1) of the HRSO Act. Accordingly, the words of that provision should be given their ordinary meaning, consistent with the purposes of the legislation and of the general conditions of a supervision order.[32] In essence, I must be satisfied that the respondent 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 legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious offence.[33]
[31] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
[32] Hart [52].
[33] Hart [52]; The State of Western Australia v Narrier [No 5] [2019] WASC 17 [113].
As I identified in Hart, some matters that will be of relevance are (a) the respondent's attitude to the conditions of the supervision order (in particular whether he is likely to deliberately flout the conditions); (b) his capacity to comply with the conditions; (c) what measures there are in place to ensure he would substantially comply; and (d) the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the HRSO Act.[34] In particular, where engagement in counselling is to be a condition of the supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk.[35]
[34] Hart [50].
[35] Hart [50].
An obvious factor that is relevant to the assessment of whether a respondent will substantially comply is his history of compliance and non-compliance with any previous order. In the context of this case, that includes the Undertaking. While it was not an order, a failure to comply with the condition of an Undertaking that underpinned the basis on which he was at liberty may inform the question whether he has the capacity or willingness to comply with the conditions of a supervision order.
In my opinion, the following observations of Wheeler JA in Williams in respect of the DSO Act also apply in the context of the HRSO Act:[36]
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.
[36] Williams [86].
These proceedings were commenced on the basis that there was an unacceptable risk that the respondent would commit a serious sexual offence (as defined in the DSO Act)[37] if he were not subject to a continuing detention order or a supervision order. The question now is whether there is an unacceptable risk the respondent would commit a serious offence as defined in the HRSO Act. For the purposes of these proceedings, it is sufficient to say that, by s 3 and s 5(1) of the HRSO Act, a serious offence is an offence that is specified in Schedule 1 of that Act. Offences that were serious sexual offences under the DSO Act come within the definition in that they are now set out specifically in Division 1 of Schedule 1, being 'offences that are serious offences in all circumstances'. In particular, the respondent's risk is alleged to relate to the types of offences he committed in the past, being offences of indecently dealing with girls under the age of 13 years. Some of the offences (by virtue of having been committed many years ago) were under provisions that have since been repealed and replaced with what may properly be regarded as corresponding provisions. However, s 5(2) of the HRSO Act provides:
An offence is a serious offence if -
(a)it was an offence under a written law that has been repealed; and
(b)the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence under subsection (1).
[37] See footnote 2 above.
All of the offences of indecently dealing with girls under 13 years would come now within s 320 of the Criminal Code 1913 (WA), which is a specified serious offence in Schedule 1.
I note that one of the standard conditions that must be included in a supervision order, and with which the court must be satisfied the respondent would substantially comply is that he not commit a serious offence during the period of the order (s 30(2)(f)). Although the respondent's risk is alleged to be in respect of sexual offending against children, and the application was brought on that basis, the effect of s 30(2)(f) is to require the court to be satisfied on the balance of probabilities that the respondent will not commit a serious offence of any kind specified in Schedule 1. It is not an issue that requires further consideration in this case, as there is no suggestion the respondent might commit some other kind of serious offence.
Finally, in the event that a supervision order is made, s 27 of the HRSO Act picks up the requirements previously stated in s 17 of the DSO Act in terms of the commencement and duration of such an order as follows:
(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.
The evidence in these proceedings
The evidence in the hearing consists of a book of materials (BOM), which was tendered by the applicant without objection, and oral evidence given by:
(1)Dr Wynn Owen, one of the two court‑appointed consultant forensic psychiatrists who examined the respondent for these proceedings;
(2)Dr Wojnarowska, the other court‑appointed consultant forensic psychiatrist;
(3)Dr Bannister, Senior Clinical and Forensic Psychologist with the Forensic Psychological Services of the Department of Justice, who prepared a report titled Proposed Management Plan in respect of the respondent, reviewing his treatment to date and assessing his outstanding treatment needs and how they may be met; and
(4)Ms Comery, SCCO, who prepared a Community Supervision Assessment report.
The BOM, which is 1,146 pages in length, includes the reports of each of the witnesses and comprehensive materials concerning:
(1)the respondent's antecedents, including his criminal record, a chronology of his offending prepared by the DPP, and information from the Department of Corrective Services about the respondent's behaviour in prison;
(2)the offences for which the respondent was sentenced on 11 September 1992, including relevant statements, reports, and transcripts of the police interview and sentencing hearing;
(3)the 'index offences',[38] for which the respondent was sentenced on 5 June 2015, including transcript of the police interview, portions of transcript from the trial and subsequent sentencing, and reports relied upon by the court in sentencing;
(4)the Children's Court charges, for which the respondent was sentenced on 17 June 2015, including the statements of material facts and transcript relevant to the sentencing; and
(5)the post-sentence conduct of the respondent, including the consideration of parole by the Prisoners Review Board and the subsequent Parole Order, the Undertaking and the search of the respondent's laptop by the police which precipitated the suspension of the Parole Order.
[38] Referred to as such, because they are the offences for which he was serving the term of imprisonment at the time of the application and provided the foundation for the application.
The reports of Dr Wojnarowska (dated 24 April 2020 and 26 April 2020) and Dr Wynn Owen (dated 1 May 2020), prepared pursuant to s 37 of the DSO Act (now s 74 of the HRSO Act), and the reports prepared by Dr Bannister (dated 21 April 2020) and Ms Comery (dated 4 May 2020) were also tendered as part of the BOM.
Consideration of the matters under s 7(3) of the HRSO Act
As I noted earlier, the matters listed in s 7(3) of the HRSO Act, to which the court must have regard, overlap. The matters in paragraphs (h) and (i), concerning the respondent's risk and the need to protect the community, involve conclusions that directly inform the question of whether the respondent is a high risk serious offender. Those matters are informed by the information and findings in respect of all of the other matters listed in s 7(3). The questions concerning propensity and any pattern of offending behaviour (paragraphs (c) and (d)) will be informed by the respondent's antecedents and criminal record (paragraph (g)) and the findings in the reports and assessments referred to in paragraphs (a) and (b). Those findings will also inform the matters in paragraphs (e) and (f) concerning efforts at rehabilitation and the effect of participation in rehabilitation programs.
It is convenient to start with the respondent's antecedents, including his criminal history, in particular the offending that is most relevant to the assessment of his risk of committing a serious offence.
Respondent's antecedents and criminal record
Social history
The summary of the respondent's history, which follows, is collated from various materials in the BOM, particularly the reports of Dr Wojnarowska and Dr Wynn Owen.
The respondent is the youngest of six children. His parents migrated from Malta to Australia, but he was born here.
The respondent experienced a violent and dysfunctional home environment as a child, largely as a result of his father's behaviour. By the respondent's account, his father was absent from home for long periods because of work, but when he was home he abused alcohol and was violent towards the respondent's mother, which the respondent witnessed. His father was also violent and emotionally abusive towards the respondent. The respondent has said he was subject to severe beatings. He also told Dr Wojnarowska that on occasions his father 'made threats to kill and threats with a knife'.[39] The respondent's mother left the home on a few occasions for short periods, at one stage seeking refuge with the children at a women's shelter. She eventually separated from the respondent's father permanently when the respondent was 12 years old. The children went with her. His father subsequently remarried.
[39] BOM p 1091.
The respondent had some contact with his father after the separation, and their relationship improved once the respondent became an adult. His father died in 2000 or 2001.
The respondent maintained a very close relationship with his mother. As an adult, he spent long periods living with her. Dr Wynn Owen noted that when the respondent was living in rental accommodation, his mother's demands on him continued and he would eventually return to live with her, to please her. Dr Wynn Owen was of the view that aspects of their relationship suggest 'significant enmeshment'.[40] In other words, it was a relationship in which the respondent experienced a loss of autonomy. When he participated in the Sex Offending Intensive Program in 2016 and 2017, the respondent told the facilitators that his mother 'had kept him child‑like and insisted that he was available at her beck and call'.[41] The respondent said that he felt that, as a result, he had not had the opportunity to develop in a normal way, as he had been prevented from developing social skills and having an appropriate age peer group.[42]
[40] BOM p 1113.
[41] BOM p 968 (Program Completion Report dated 21 April 2017).
[42] BOM p 968.
As for his educational development, the respondent has described positive memories of early primary school, although he told Dr Wynn Owen that he did not take friends home, because, although his father was usually absent, his mother was a 'nervous wreck', and it would distress her to have strangers brought home.[43] I note that he told the psychologist who prepared the SAIF programme progress report in 1992 that, when he did make friends, he felt unable to take them home because of the fighting between his parents, as a result of which his friendships never lasted.[44]
[43] BOM p 1114.
[44] BOM p 468.
Towards the end of primary school, and into high school, the respondent was bullied, which would sometimes cause him to lose his temper, 'seeing red' and responding physically.[45] His mother tried to intervene on his behalf a number of times, but the respondent considered that it made matters worse.[46] The respondent felt isolated. He transferred high schools, but he remained isolated and lost interest in school.
[45] BOM p 1114.
[46] BOM p 468 (Psychological Report dated 1 August 1992 in relation to the respondent's participation in the SAIF programme) and 1113 (Dr Wynn Owen's report).
The respondent left school in year 10 and worked as a 'yard man' in an equipment hire business. He left that employment for better income and found work with a company that supplied products to the mining industry. He remained in that employment for over 10 years, eventually working as a leading hand. He then suffered a traumatic lower back injury, which prevented him from continuing in that work. He has not had paid employment since then and has been receiving the Disability Support Pension. He told Dr Wynn Owen that was since 1996, but elsewhere he has said he has received the pension since 2002.[47] Apart from problems with his back, the respondent has also been diagnosed with ulcerative colitis.
[47] BOM 969 (Program Completion Report dated 21 April 2017 for Sex Offending Intensive Program).
The respondent reports no significant history of alcohol or substance abuse. Both Dr Wojnarowska and Dr Wynn Owen concluded that there appears to be no association between substance use and the respondent's sexual offending.
Sexual development
The respondent reported to Dr Wynn Owen and Dr Wojnarowska that he was sexually abused at the age of 7 or 8 years by a male friend of the family. He said that he had no memory of that occurring, but that he had been told about it later by a sister.
The respondent told Dr Wynn Owen that his sexual thinking began at the age of 8 years, at which time he began masturbating and started to engage in sexual touching of at least one of his nieces, who was four years younger than him.[48] He told Dr Wojnarowska that, although he had memories of masturbating from about the age of 8 years, his sexual exploration with his nieces was at the age of 12 years, and they were two years younger than him.[49] The difference is not significant. It is apparent he was sexually active from a young age. As he got older, his sexual interest in girls aged 4 to 6 years, and his arousal by girls of that age, persisted.
[48] BOM p 1115.
[49] BOM p 1092.
When the respondent participated in the SAIF programme, he said he could not remember receiving any sex education during his childhood or adolescence and did not discuss sexual matters with his peers, consequently his sexual knowledge was very poor.[50]
[50] BOM p 468.
The respondent told Dr Wynn Owen that he struck up a friendship with a girl when he was 14, but because he was sexually active with his younger nieces, he had no interest in that girl (who was his age).[51] He said that his sexual thoughts about young girls persisted until he participated in a sexual offenders' course in 1992. Dr Wynn Owen said in his report:[52]
He reports that before the course he was 'masturbating to pictures of children … girls in summer dresses, from catalogues … but the course told me to masturbate to adult images, I didn't have the confidence to talk to adult women but I could masturbate to pictures of them and ejaculate'.
[51] BOM p 1115.
[52] BOM p 1115.
The revelation concerning the respondent's use of pictures of girls in summer dresses in catalogues was significant, given the nature of the alleged breach by the respondent of the Undertaking, which I will discuss later.
Both Dr Wojnarowska and Dr Wynn Owen noted that the respondent has never had an intimate relationship with an adult.
Against that background, the respondent commenced committing sexual offences against prepubescent girls from the age of 15 years and continued from time to time until he was 43.
Criminal history
The respondent's criminal history consists only of the sexual offences to which I have already referred. He has not engaged in offending of a non‑sexual nature.
The offending was summarised by the applicant in a table contained in the BOM. I am satisfied the summary accurately reflects the offending, as it appears from the materials in respect of all the court proceedings for the offences of which the respondent has been convicted. I have adopted the summary with some changes in outlining the circumstances of the offending below. However, in relation to the last series of offences, I have elaborated on the facts by reference to the sentencing remarks of Bowden DCJ, the sentencing judge on 5 June 2015.[53]
Offences between 1980 and 1983
[53] BOM pp 936-938.
The offences of which the respondent was convicted in the Children's Court on 17 June 2015[54] consisted of two counts of indecently dealing with a girl under the age of 13 years. They were the earliest in time.
[54] See [14] above.
The first offence was committed when the respondent was 15 years old, on an occasion between 25 December 1980 and 1 May 1981. The victim, LB, was his niece and was aged 3 years. She was at home playing in a cubby house when the respondent, who was visiting, approached her, pulled down her knickers and touched and fondled her bottom and vagina. The victim told the respondent that they would get into trouble. He told her that they would not. The respondent's offending was interrupted by the victim's mother, who asked why the victim's underpants were down. The respondent told her that he was helping the victim go to the toilet. As a result of what she saw, the victim's mother argued with another family member. The respondent left the premises.
In 1992, while being interviewed about other offending, the respondent volunteered that he had indecently dealt with the victim from when she was aged 3 and had stopped when she was about 6 years. He said he had offended against her about 20 times by touching her and rubbing his penis against her, although he denied that his penis was exposed. As I noted earlier, he was not charged with this offence in 1992. When asked about it again by police in 2014, he declined to be interviewed.
The second of the Children's Court matters was an offence committed by the respondent on a date between 27 December 1981 and 22 November 1983. The respondent was 16 or 17 years old and the victim, SP, was his niece, aged 4 or 5 years. The respondent lived in a caravan in the back garden of the victim's family's house. On an occasion when a number of family members were visiting the house, the respondent took the victim inside his caravan annex. He then indecently dealt with her by pulled down her underpants and rubbing his exposed penis against her buttocks and vagina from behind. When a family member interrupted the respondent, he said he was checking the victim as she had a sore area. The family member removed the victim from the caravan.
Again, while being interviewed about other matters in 1992, the respondent volunteered that he had indecently dealt with the victim on about 20 occasions when she was aged 4 to 6 years. He admitted he had rubbed her vagina, but denied offending against her at her home. He stated that he offended against her because he was sexually frustrated and it felt good. He admitted that he knew at the time that it was wrong. He was not charged with the particular offence I have described until 2014.
Offences between December 1983 and January 1990
The next series of offences occurred at various times from December 1983 until January 1990, during which time the respondent was aged from 18 years to 24 years. These were offences for which he was sentenced on 5 June 2015 (together with the last series of offences to which I will refer below).[55] They were the first nine of the 14 counts of which he was convicted on the indictment dated 10 April 2015.
[55] See [12] – [13] above.
The respondent sexually abused his nieces SP, LB, and MA on many occasions during the period specified. The nine counts of which he was convicted in respect of those victims were representative of many more similar offences (at least 20 per child). The ages of his victims ranged from 5 years to 12 years, although the majority of the counts related to when the victims were aged 8 years and under. The respondent's conduct involved touching the victims' vaginas (often after he had removed their underwear), rubbing his penis against their vaginas or buttocks, inciting SP and LB to touch each other's vaginas with their hands whilst he watched and masturbated, inciting SP to touch LB's vagina with a stick, and touching the some of the victims in the area of their breasts. His most serious offending involved touching a child's vagina in a way that caused pain and bleeding (count 6) and penetrating the anus of one of the victims with his finger, causing pain and bleeding (count 9).[56]
[56] Although the offending was charged as indecent dealing, in accordance with the legislation at the time, it would now constitute the more serious offence of sexual penetration.
When he was interviewed by the police about other matters in 1992, he admitted that he had indecently dealt with SP, LB and MA (as well as two other victims (SZ and KB)). He admitted he had done so about 20 times against each of the 5 victims when they were 4 to 6 years of age. It appears he was not charged in 1992 because the children did not wish to provide statements at that time.[57] He was not charged with the offending until 2014.
Offences between July 1989 and 15 March 1992
[57] BOM p 7.
The next series of offences in fact involved some overlap with the previous series, occurring between July 1989 and 15 March 1992. These were offences for which the respondent was sentenced in the District Court on 11 September 1992.[58]
[58] See [8] above.
The respondent was aged 23 to 26 years. The two victims were his nieces and were aged 18 months to 4 years (AY) and 4 years to 6 years (DY) at the time of the offending. The victims were sisters.
The respondent was living with the victims' grandmother (his mother) and offended against the two victims each time their mother took them to visit their grandmother. In February 1991, DY's mother saw the respondent lying on top of DY on his bed. DY told her mother that the respondent had been touching her vagina and rubbing himself against her. However, DY's mother did not report the offending at that time.
On 15 March 1992, AY, aged 4, disclosed to her mother that the respondent was touching her on the vagina. The police were notified.
When interviewed, the respondent admitted to sexually interfering with each child 40 to 50 times over the course of two and a half years, on each visit they made to the house. He said that DY was aged 4 to 6 years and that he ceased offending against her when she turned 6 years and started school, as he was concerned she would report him.
As I said earlier, when he was interviewed in 1992, he also admitted sexually abusing five other nieces.
The respondent was charged with 80 offences against DY and AY and all charges were committed to the District Court. The indictment contained 8 counts, which were representative of the 80 offences in respect of which the respondent had been committed. He pleaded guilty to the charges and was placed on probation for 3 years.[59] As I noted earlier, it was a condition of probation that he was to complete the SAIF counselling programme, which he had started. It was a further condition that he was not to have unsupervised contact with female children under 10 years old.
The respondent's participation in the SAIF programme
[59] See [8] above.
The respondent had referred himself to the SAIF programme after he was reported to police for the offences in 1992.[60] By the time he came to be sentenced by Kennedy DCJ on 11 September 1992, he had completed one of the 10 week group treatment modules. The clinical psychologist who prepared the progress psychological report at that time noted that in both individual and group treatment, the respondent had demonstrated 'high levels of motivation, and participated fully, appearing to gain many insights and therapeutic gains'.[61] The respondent was described as 'one of the most successful of the group participants'.[62]
[60] BOM p 467.
[61] BOM p 470.
[62] BOM p 470.
It appears the respondent went on to complete the SAIF programme, and he did not commit any sexual offences during the period of probation. However, he subsequently offended again.
Offences between 5 September 2000 and 5 April 2011
The last series of offences occurred at various times between 5 September 2000 and 5 April 2011, with substantial gaps between the various instances of offending. The offences, which were counts 11 and 13 to 16 on the indictment dated 10 April 2015, were committed by the respondent against two great nieces, BLB and KF, and against a neighbour's daughter JE. One of the great nieces was the daughter of a niece against whom he had offended earlier. The victims were aged from 5 to 12 years at the time of the offending.
The first of the offences, against BLB, took place sometime from 1999 to 2001, when BLB was aged between 5 and 6 years and the respondent was between 34 and 36 years. BLB was staying at the respondent's brother's house and was in her ballet tunic, having come home from ballet. The respondent invited her into a room to show her a show bag. He rubbed the outside of her vagina over her leotards using his fingers. The sentencing judge accepted that the touching was of short duration through the clothing of the child. He also noted that the offence occurred after a gap of about 10 years from the respondent's previous offending. His Honour considered the respondent's conduct to be opportunistic, but he noted the aggravating factor of the child's age.
The next offence concerned KF and occurred in 2004 or 2005 when she was about 10 or 11 years. The respondent was aged between 38 and 40 years. KF was at the respondent's residence. He had given her a piggy‑back ride throughout the house. At a point in time when she was in the bathroom, the respondent entered the bathroom, pulled her underwear aside and started to rub her vagina. The judge noted that the respondent pretended to play with the child, but in fact he was physically abusing her.
The next offence occurred around the same period and again involved KF, who was 10 or 11 years old. Again, the respondent had taken her for a piggyback ride. She was sitting on his shoulders in her school uniform. He slipped his hand onto her vagina and rubbed it with his fingers, which went inside her underwear. Again, the sentencing judge accepted that the offences were opportunistic.
The next two offences involved JE, when she was about 7 or 8 years old, placing the incident in 2010 or 2011 when the respondent was about 45. On each occasion JE was at the respondent's unit. The respondent had been entrusted by the girl's mother to look after her. On each occasion, while they were sitting on a couch watching a movie, the respondent put his hand on the girl's private parts over her clothes.
The sentencing judge noted that there had been a gap of about seven years between the previous offending and the offences against JE.
The respondent's circumstances after the last of his offences
As I noted earlier in these reasons, the respondent left Western Australia after he was confronted by JE's mother in 2011. He had previously been convicted of sexual offending against children in 1992 and had been given the opportunity to rehabilitate on probation. No doubt in 2011 the respondent realised that exposure of his continued offending was likely to result in much more dire consequences. There is no suggestion that he offended while he was in Tasmania. However, he had previously returned to sexual offending after lengthy periods of not offending.
The respondent was extradited to Western Australia in 2014. He was charged in the manner I outlined earlier in these reasons. In June 2015 he was sentenced to a total effective sentence of 6 years and 6 months' imprisonment in relation to the second series of offences and this last series.
Conduct in prison
The respondent has not incurred any prison charges or adverse incidents since being in prison. His Individual Management Plan from June 2019 records that staff regarded the respondent as a quiet prisoner who tends to keep to himself, is 'polite, respectful and compliant towards staff', abides by unit rules and regulations and is not considered to be a management problem.[63] He has been employed within the prison in a variety of jobs, and between March and September 2018 was approved for, and participated in, external activities as part of his prison employment. He was subsequently transferred to Casuarina Prison from a lower security prison due to health issues.
Medical history
[63] BOM p 16.
As I noted earlier, the respondent suffered a traumatic lower back injury at work sometime before 1996. It has resulted in chronic pain and physical disability.
The respondent has also suffered from a long term inflammatory bowel disease, and, in November 2018, was diagnosed with Stage 3 rectal cancer. He underwent surgery and was receiving weekly treatment, including chemotherapy, in 2019 and earlier this year.
As I outlined earlier in these reasons, the respondent was released on parole on 9 December 2019, and was at the same time released on an Undertaking. He was returned to custody on 23 April 2020. I have no information about his ongoing treatment since his return to custody.
Propensity and pattern of offending
As I said earlier, the questions of whether the respondent has a propensity to commit a serious offence in the future and whether there is a pattern to his offending are informed by his antecedents, in particular his past offending, and by the assessments that have been made by the experts who have assessed his risk of reoffending.
In respect of its use in the DSO Act, the word 'propensity' was taken to have its ordinary meaning in the context of the criminal law. Its use in the HRSO Act is in precisely the same context, so the same principles are applicable. What is meant by 'propensity' in this context was encapsulated by Murray AJA in GTR:[64]
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his make up or personality which may or may not be of a quality of a diagnosable mental illness or personality disorder.
[64] GTR [178].
Both Dr Wojnarowska and Dr Wynn Owen have diagnosed the respondent with the psychiatric disorder of 'paedophilia, exclusive type, attracted to female children'. It is considered to be a lifelong disorder.[65] The presence of the disorder in the respondent is evident from his past offending and his admitted sexual interest in prepubescent girls.
[65] Ts 95 (Dr Wynn Owen).
The respondent has convictions for 24 serious sexual offences committed against eight girls aged from 18 months to 11 or 12 years over a substantial part of his life. He has admitted in the past that his sexual abuse of his nieces was much more extensive than the number of offences with which he has been charged. He has had a sexual preference for prepubescent girls (generally aged less than 6 years) since early adolescence. The entrenched nature of that interest and the fact that he was finding sexual gratification in the sexual abuse of very young girls interfered with his capacity to develop a normal sexual interest in age‑appropriate females.
The presence of paedophilia, a form of sexual deviance, is a significant risk factor for future sexual reoffending. As both Dr Wojnarowska and Dr Wynn Owen explained, sexually deviant individuals who have committed sexual offences in the past are at an increased risk of future sexual offending.
Although there appear to have been long periods between some of the offences of which the respondent has been convicted, when he was not sexually abusing young girls, his inclination to do so persisted, at least until he left Western Australia and was subsequently apprehended. Further, the fact that the respondent did not commit sexual offences for substantial periods of time does not mean that during those periods he did not have an inclination to sexually interfere with children. He has admitted in the past that he obtained sexual gratification by masturbating to fantasies or images of children. Although he has denied an interest in child pornography, he has admitted being sexually aroused by images of children in catalogues.
Having regard to the respondent's past offending and his admitted sexually deviant interest in prepubescent girls, the conclusion is inevitable that he does have a propensity to commit serious offences in the future, being sexual offences against young girls.
A 'pattern', as it pertains to behaviour, is defined in the Macquarie Dictionary as a recurrent way of acting by an individual or group towards a given object or in a given situation. The obvious pattern to the respondent's offending has been that the female children against whom he offended (who, as Dr Wynn Owen noted, were all pre‑pubescent girls) trusted him either through familial connection, or as a result of the respondent developing a relationship with their parent.
I have not set out all the details of the respondent's offending. However, the material's support the applicant's submission that much of the respondent's offending was characterised by grooming his victims. Both Dr Wynn Owen and Dr Wojnarowska considered grooming to be present in all of the offending. As Dr Wojnarowska noted in her first report, the respondent engaged in grooming by buying toys and other gifts for the victims, and by having his room set up with children's music, videos and games.[66] He often played physical games with the children (such as the piggy‑back rides I referred to earlier and hide and seek) to normalise his touching and sexual behaviour.[67] I also accept Dr Wojnarowska's conclusion that some of the respondent's offending involved grooming the mothers of potential victims, targeting women who were vulnerable and accepting of his presence in their lives.[68] Dr Wojnarowska is of the view that the respondent's behaviours suggest that he has been quite skilful at grooming others. Self‑evidently, his offending behaviour involved a serious breach of trust.
[66] BOM p 1089 (Dr Wojnarowska's report, 24 April 2020 [31]).
[67] BOM p 1089.
[68] BOM p 1089.
I am satisfied, therefore, that there has been a pattern of grooming, at least in respect of some of the respondent's sexual offending. However, in assessing his risk of future offending, one must be cautious not to overlook the potential for the respondent to commit sexual offences against children in an opportunistic way. That is particularly so given the findings of Bowden DCJ in 2015 that the respondent's offending against the last three victims was opportunistic. That included the offending in which he gave piggy‑back rides to one of his great nieces, an activity that was regarded by Dr Wojnarowska as one aspect of the respondent's grooming.
It must be acknowledged that the opportunistic offences occurred against children with whom the respondent had developed a rapport, and to whom he had access because of a family relationship or as a result of friendship with the child's parent, by which he had gained the trust of the responsible adults and the children. However, as will appear below, the respondent admitted during the Sex Offender Intensive Program (SOIP) that he had attempted to groom neighbourhood children, who were potential victims. That raises the concern that the respondent could seek to engage with children for sexual purposes without necessarily gaining the trust of a responsible adult.
Rehabilitation programmes
SAIF Programme
As I described earlier, the respondent undertook the SAIF programme when he was facing the charges of which he was convicted in 1992. I referred at [102] above to the overall positive findings made in respect of the respondent's participation. Dr Bannister makes the point in his report that none of the reported gains were outlined in Mr Harrison's progress report in 1992.[69]
[69] BOM p 1076 (Dr Bannister's report, 21 April 2020).
The aims of the programme were 'to reduce the level of sexual arousal towards children, to aid recall of childhood events and to assist the development of social and sexual competence'.[70] When Dr Bannister discussed the programme with the respondent for the purposes of these proceedings, the respondent said he started the programme 'withdrawn' and 'had to do a lot of soul searching'.[71] He said that the module in respect of victim empathy 'really hit home'. However, he could not provide any specific details about the content of the programme, and struggled to remember details of the relapse prevention plan that he had prepared at that time.
[70] BOM p 1076 (Dr Bannister's report, 21 April 2020).
[71] BOM p 1076.
Obviously, the respondent's participation in that programme did not prevent him from going on to commit further offences from about 2001 to 2011.
Sex Offender Intensive Program
The respondent engaged in the SOIP in 2016 and 2017, while serving the sentence of imprisonment imposed in June 2015. The facilitators of the programme reported that he was reserved and passive. They noted that he minimised some of his offending. They also noted that as the programme progressed, the respondent accepted his offending behaviour and his sexual attraction to female children, but they considered he was emotionally detached regarding the impact of his offending on the victims.[72]
[72] BOM 969.
The respondent was inconsistent in his acknowledgement of his offending behaviour. For instance, he moved from acknowledging that he had attempted to groom other potential victims in his neighbourhood to subsequently minimising his offending overall. That made it challenging for the facilitators to ascertain the extent of his current deviant sexual interest.
During the programme the respondent displayed problems with self‑regulation, sometimes displaying an over‑regulation (bottling up of emotions), while at other times displaying 'under‑regulation by outbursts of anger (swearing loudly, walking out), indulging in sexual fantasy, masturbation or over-spending to self‑soothe'.[73] By the end of the programme it was considered that, while the respondent had made some progress in relation to coping with his emotions, he required individual counselling to assist him in that regard.
[73] BOM p 970.
The SOIP facilitators expressed the broad view that the respondent was not as prepared for life in the community as he wished to present. However, he was considered to have made some treatment gains in the areas of self‑esteem, insight into his emotions, awareness of his attitudes, and awareness of his poor coping strategies. In particular, he gained some insights into his mixed emotions concerning his mother. Most significantly, he had come to demonstrate some awareness of his enduring sexual interest in prepubescent female children, to the extent that he acknowledged masturbating to the fantasy of previous offending.[74] He was also aware of some behaviours in the past where he 'made interactions with neighbourhood children potentially attractive [to them]',[75] for instance by having ice blocks on hand in his fridge to give away. It appears from the respondent's admissions during the programme, therefore, that he sought to groom children in his neighbourhood for sexual abuse. That suggests that his pattern of sexual offending may extend beyond circumstances in which he has gained the trust of adults who are responsible for the children.
[74] BOM p 971.
[75] BOM p 972.
The respondent acknowledged during the programme that he needed to avoid situations in which he became friendly with single women who had children and that he could not babysit children in future. He said that he would think of the consequences of sexual offending for any victims or his family. He said that he 'needed to be on guard against recalling memories of his offending and that he could masturbate using healthy sexual fantasy of adult women'.[76] Otherwise, the respondent's plans were somewhat unstructured and uncertain in terms of whether he would endeavour to form a relationship with an adult female and whether, if he did, he would wish for it to be sexual.
[76] BOM p 972.
The facilitators recommended that the respondent engage in individual counselling to consolidate gains made during the programme, and that he could benefit from a community Maintenance Program at such time as he came to be released from prison. Overall, the impression one gets from the programme completion report is that the respondent had outstanding treatment needs.
When discussing the SOIP with Dr Bannister, the respondent said that he was keen to engage in the programme to better himself, despite maintaining that he was innocent of all of the more recent offences of which he was convicted.[77] He went on to explain that he had not been held fully accountable for all of his earlier offending, so the custodial sentence and the completion of a further programme had seemed reasonable to him. He told Dr Bannister that, although he thought he had 'not done well' in the programme, over the course of the programme he came to realise the impact his offending had on his victims, and he had increased in his confidence in relation to interacting with others. He was also able to remember some of the elements of his relapse prevention plan.[78]
[77] BOM p 1077.
[78] BOM pp 1077 ‑ 1078.
The respondent's release on parole and his response to supervision
A Parole Assessment Report dated 29 August 2019 was prepared for the Prisoners Review Board by an SCCO. Release on parole was not supported at that time. The reasons for that stance included the fact that the respondent had no accommodation and lacked pro‑social supports in the community, and, given the concerns that had been outlined in the SOIP completion report, the respondent was considered to present an unacceptable risk to the community. It is apparent the Prisoners Review Board disagreed, as release on parole was approved, subject to a number of conditions.
I have concluded that, if the respondent is released on a supervision order, it is appropriate to include a condition that he undergo medicinal treatment, including hormonal or non-hormonal anti-libidinal treatment, as directed by his CCO in consultation with a medical practitioner. Any direction given by the CCO will be in accordance with medical advice, which will take into account the respondent's health issues. It is to be expected that the respondent's health will not be unduly put at risk. However, the respondent has indicated a willingness to undergo such treatment if he is assessed to be fit to do so. Indeed, his submissions included the potential use of such treatment as a reason the court can be satisfied that his risk can be adequately managed under a supervision order. In those circumstances, all options should be left open, hence the formulation of the condition to include both hormonal and non-hormonal treatment. At the very least, the use of SSRI treatment should be considered at an early stage, as it does not carry the same risk of side effects. Thereafter, the appropriate form of treatment, including the potential need for hormonal treatment, will depend on whether there are indications of increased sexual drive or sexual preoccupation. The condition, as formulated, allows for developments to be addressed with further action as they arise.
The applicant's submissions
As the question of whether the respondent is a high risk serious offender (argued at the hearing in terms of whether he is a serious danger to the community as defined in the DSO Act) is not really in issue, I will refer only to the parties' submissions as to the appropriate order to be made.
The applicant relied essentially on three propositions to submit that the respondent's risk is at a level where the community cannot be adequately protected if he were released on a supervision order. First, if I am satisfied that the respondent breached the Undertaking in the manner alleged, I should be satisfied, as a consequence, that his conduct in using images of children for sexual arousal within a relatively short time of being released into the community shows that his risk of committing a serious sexual offence was elevated to an unacceptable level despite the conditions with which he had agreed to adhere.
It is indeed cause for concern that the respondent engaged in the breach behaviour, driven by his paedophilia, within a short period of being released and at a time when he knew that he was subject to monitoring. I accept the applicant's submission that the behaviour demonstrated a level of risk that was higher than had been thought to be the case by the Prisoners Review Board when he was granted parole. However, as the respondent submitted, it occurred in a context in which he was not receiving any psychological treatment, which is a significant point of difference from the situation that will apply if the respondent is released on a supervision order.
The applicant's second proposition is also related to the breach of the Undertaking. Although the respondent's beach was of a condition of an Undertaking, not a supervision order, it was nevertheless a court‑ordered Undertaking, in that the respondent's release was subject to him entering into the Undertaking. The applicant submitted that, having regard to the breach, I could not be satisfied that the respondent will substantially comply with the standard conditions of a supervision order. That is not only because the breach itself demonstrates a preparedness to contravene (i.e. not comply with) a supervision order, but because the respondent had failed to disclose in supervision sessions with his CCO that he was having thoughts that might put him at risk of such behaviour, and when confronted with the alleged breach he was dishonest in his explanations for the internet searches.
In reply, the respondent again relied on the fact that he was not receiving treatment at the time, and submitted that, if he were to receive treatment while subject to a supervision order, his psychological state can be explored more closely and measures can be taken to ensure he is mindful of his paedophilic urges and takes steps to avert risky behaviours. The respondent also submitted that his lack of candour in respect of the breach should not be regarded as indicative of a general approach by him to supervision and treatment. It was submitted that I should give weight to the positive evidence of the respondent's cooperation and performance more generally while subject to supervision and while in custody. Further, it was submitted that the respondent's lack of candour had been quite transparent (in that his explanations were implausible), and he had not sought to mislead the court about the breach.
While I accept those propositions, it remains the case that the respondent had been able to conceal his ongoing sexual urges and deviant thoughts that led to him making the searches for images of children. If he is subject to a supervision order, his CCO and other support services will need him to provide honest self‑reflection and self‑reports about his thoughts and behaviour, in order to assess his ongoing treatment needs, whether he has progressed or regressed, and additional measures that may be necessary to manage his risk. If he is dishonest or simply not forthcoming, those objectives may not be achieved and the adequate protection of the community may be compromised.
However, I accept that individual counselling, augmented potentially with a group-based maintenance programme, could assist the respondent to substantially comply with the conditions of a supervision order, as was acknowledged by Dr Wynn Owen. I also note, consistent with what I said in Hart, that persons who are subject to supervision orders and have ongoing treatment needs may have missteps from time to time. The significance of a breach will depend on the size of the misstep and whether or not the respondent had been generally compliant.
The third proposition on which the applicant relied is that the respondent has ongoing treatment needs. Those were identified by the psychiatrists, but were demonstrated by his breach of the Undertaking in any event. The applicant relies on the following passage from the reasons of Quinlan CJ in The State of Western Australia v Rao[163] in support of the proposition that an offender should not be released on a supervision order if he has outstanding treatment needs:
It is, in my view, in the interests of the community, and its protection from offending, that an offender with known treatment needs have those treatment needs addressed before consideration is given to their release under supervision not, as is the case, afterwards. Logically, it might also be thought that the benefits of such treatment might be manifest the sooner the treatment commences. It is not in the interests of the community that the risks of a person such as Mr Rao should stagnate, and potentially worsen, as a consequence of a lack of treatment.
[163] The State of Western Australia v Rao [2019] WASC 93 (Rao) [137].
The applicant submitted that the respondent's treatment needs should be addressed in custody, because they affect the level of his risk of committing a sexual offence against a child and, until the needs are addressed, that risk will remain unacceptable within the community.
The respondent submitted that the Chief Justice's remarks in Rao were not intended, and should not be regarded, as a general proposition that a supervision order should not be made until an offender's treatment needs have been addressed in custody. In my view, it is sufficiently clear that his Honour was expressing a general proposition, albeit by way of opinion and intended primarily to inform the way in which persons who are serving a term of imprisonment and are likely to become subject to the DSO Act (now the HRSO Act) should be dealt with. Their treatment needs should be dealt with before consideration is given to releasing them subject to a supervision order, because the adequate protection of the community is more readily achieved upon such release if the offender's risk has been reduced by treatment. However, I accept that the Chief Justice did not lay down a principle that it is never appropriate for a person with outstanding treatment needs to be released on a supervision order. His Honour's remarks were made in the context of a case in which the respondent had not received any intensive treatment to deal with the factors that put him at risk of committing a serious sexual offence.
There have been cases in the past where respondents have been released subject to supervision orders where they have made some progress in treatment, but they continue to have outstanding treatment needs. In such cases the court must weigh up the potential for better therapeutic outcomes within the community, which both experts in this case accepted may be the case for some individuals, against the extent to which untreated factors in the individual's profile elevate his risk of sexual reoffending to an unacceptable level. As Dr Wynn Owen put it, while some people will be more likely to develop awareness through treatment in the community, 'the difficulty is the level of risk at which [the person] is released without treatment'.[164]
[164] Ts 114.
The respondent's case
The respondent did not give evidence; nor did he adduce any evidence additional to the evidence in the applicant's case. In essence, the cross-examination of the witnesses called by the applicant and the submissions made on behalf of the respondent were confined to the question of whether the conditions of the proposed supervision order would adequately mitigate his risk of committing a serious sexual offence.
While it was accepted on the respondent's behalf that the breach of the Undertaking is a serious issue,[165] and that the management of his risk will be dependent on the respondent being transparent about his sexual thoughts and interests,[166] it was submitted on behalf of the respondent that the court can be satisfied his risk can be adequately managed in the community if he were to be subject to the proposed supervision order, while undergoing a group programme and individual counselling, and taking anti-libidinal medication, which he has indicated he is willing to do.[167] It is the combination of all of those measures that, in the respondent's submission, will provide adequate protection of the community, notwithstanding the breach in April 2020.
[165] Ts 185.
[166] Ts 195
[167] Ts 194.
It was submitted by the respondent that, consistent with Dr Wojnarowska's evidence, I can be satisfied that the fact he does not possess psychopathic traits is an important consideration in determining whether he will substantially comply with the standard conditions of the supervision order. It was submitted that the respondent's behaviour in committing the breach demonstrated a lack of cunning or sophistication, in that he could have obtained paper catalogues of a similar kind as he sourced online, and he could have destroyed them after using them. However, as I understand the evidence, it was not a case of the respondent leaving the images of children open on his computer. The fact that he had viewed the images was ascertained from his search history. Putting aside the question of whether similar catalogues would have been available to the respondent in journal form, having such catalogues in his possession for any period of time would have put him at risk of detection.
It may be accepted, nevertheless, that the respondent demonstrated a lack of sophistication in the breach, and that any similar breach would be readily detected in future. However, as the applicant submitted, the effectiveness of monitoring the respondent's computer use, as a way of preventing his sexual arousal from images of children materialising into sexual abuse of children, will depend on timing, and it is an unacceptable risk if the respondent is inclined to engage again in such behaviour. It was submitted on behalf of the respondent that the risk of the respondent committing a sexual offence before the authorities could detect precursor behaviour, such as the breach of the Undertaking, is not high, having regard to his past pattern of sexual offending and the expert evidence as to imminence of offending. Further, it was submitted that the applicant has learnt the consequences of breaching a condition of the supervision order, and the prospect of being returned to custody indefinitely will be a significant deterrent from offending; it will provide the respondent with a strong incentive to comply with the conditions of a supervision order.
The respondent acknowledged that the court's concern that he will not be honest or transparent with his CCO or treating psychologist is soundly based, in light of his breach of the Undertaking, his false explanations for the breach and his lack of candour about his sexual thinking when interviewed by the psychiatrists. However, it was submitted on his behalf that his CCO and the psychiatrists readily identified the implausibility of his account and his claims that he was not having deviant sexual thoughts, so it is likely that those who will be responsible for supervising and treating the respondent will see through any lies or lack of candour. With respect, the argument is speculative. It is not a persuasive basis for ignoring or placing little weight on the respondent's dishonesty in respect of his breach of the Undertaking when assessing whether supervision and treatment are likely to be effective in managing his risk in the community, especially if I were satisfied that his dishonesty was indicative of a broader lack of reliability in reporting his activities and thoughts.
However, I accept that the breach of the Undertaking and the respondent's false explanations provide context for future scrutiny and analysis of the respondent's reporting during supervision and treatment. Further, at the time of the breach, the respondent was not receiving psychological counselling. I accept that the addition of counselling to the risk management regime should provide greater scope for assessing his reliability, and would be expected to explore and address the respondent's deviant sexual thinking and measures to suppress such thinking.
The respondent also submitted that the respondent's acceptance that he is a paedophile and his willingness to undertake counselling and anti-libidinal treatment to suppress his deviant sexual urges are factors that will enhance the prospects of adequately managing his risk in the community pursuant to a supervision order. While the respondent was subject to supervision when he was subject to the Undertaking, the factors of individual counselling (augmented potentially with a group programme) and anti-libidinal treatment were not present.
Ultimately, the respondent placed significant reliance on the opinions of Dr Wynn Owen and Dr Wojnarowska that, notwithstanding the respondent's breach of his Undertaking and his lies about it, his risk of committing a serious sexual offence against children could be managed in the community pursuant to the proposed supervision order, provided the respondent receives individual treatment. The respondent noted that those opinions were given in the light of all that is known about the respondent's risk factors as identified by both psychiatrists during their assessment of the respondent.
Conclusions
The respondent is a high risk serious offender
Having considered carefully all of the evidence to which I have referred that bears on the factors in s 7(3) of the HRSO Act, and finding that evidence to be cogent and acceptable, I am satisfied to a high degree of probability that the respondent currently presents an unacceptable risk to the community that he would commit a serious offence, being a serious sexual offence against prepubescent female children, and that it is necessary to make a restriction order to ensure adequate protection of the community against that risk.
Continuing detention order or supervision order
Consistent with the principles I have identified, I should make the restriction order that is least invasive or destructive of the respondent's right to be at liberty. However, the order must be such as to ensure an adequate degree of protection of the community.
Further, before I can make a supervision order, I must be satisfied, on the balance of probabilities, that the respondent would substantially comply with the standard conditions of a supervision order and that the totality of the conditions would provide adequate protection of the community against the risk that the respondent would commit a serious offence. The respondent, bears the onus of establishing that he would substantially comply with the standard conditions.
There are matters that give rise to reservations about whether the respondent would substantially comply with the standard conditions of a supervision order. They are his vacillation in relation to accepting the full extent of his past offending, and the fact that he groomed at least some of his victims, his breach of the Undertaking and his dishonesty when confronted with the breach. The latter is of particular importance, given the need for those who will be supervising the respondent and providing treatment to him to be able to rely on his candour about his activities and his mental state, including the recurrence of sexually deviant thoughts, in order to formulate the appropriate ongoing treatment and put in place appropriate strategies to manage his risk.
The breach of the Undertaking is particularly significant, as it demonstrates a failure to comply with a condition that will be important in minimising the risk of the respondent embarking on a pathway to committing sexual offences against children. Sexual arousal by the use of images of children was an aspect of his past behaviour that perpetuated the activation of his sexual deviancy when he was committing offences against children.
However, I accept that the respondent does not have general antisocial traits, and his conduct in prison has been exemplary (notwithstanding the angry outbursts that occurred during his participation in the SOIP). Further, in the period during which he was in the community on parole and subject to the Undertaking, he was generally compliant and cooperative with supervision. On balance, despite his vacillation, I accept that the respondent is genuine in his commitment to rehabilitation and suppressing his sexual deviance. I accept that the absence of counselling prior to his release and while he was in the community was a relevant factor in his relapse into risk‑laden behaviour, and that the implementation of a counselling programme will assist him to substantially comply with the conditions of a supervision order and to manage his risk. I am persuaded by the evidence of Dr Wynn Owen and Dr Wojnarowska that individual psychological treatment will be more effective if delivered to the respondent in the community.
I am also prepared to accept that the respondent's dishonesty when he was confronted with the breach may have been as a result of panic. He has readily acknowledged in these proceedings that his explanations were inherently implausible. While the respondent has been inconsistent in his acknowledgement of aspects of his past behaviours, and his denial of some of his offending may be an obstacle to the effectiveness of treatment, these are matters that will be addressed in the course of treatment. His experience in respect of the breach in April this year, which saw him returned to custody should act as a significant deterrent to the respondent engaging in such conduct in the future. He will be aware that a breach of his supervision order may result in him being detained indefinitely under the HRSO Act.
Ultimately, I have been persuaded by the opinions of Dr Wynn Owen and Dr Wojnarowska that, with psychological treatment in place, it is more likely than not that the respondent will substantially comply with the standard conditions, and indeed with the other conditions, of the supervision order annexed to these reasons. I am satisfied that those conditions will allow for adequate management of the respondent's risk of committing a serious offence and, therefore, will provide adequate protection of the community. In particular, with all relevant protective measures in place, I am satisfied it is more likely than not that the respondent will not commit a serious offence (which is a standard condition of the supervision order, as well as the object to be achieved by the combination of conditions).
The suite of conditions addresses the various factors that contribute to the risk that the respondent would commit a serious offence against prepubescent female children. They allow for close monitoring of his movements and his activities and strict supervision. The monitoring includes the sort of checking that occurred in April 2020 when the internet searches that were in contravention of the Undertaking were found on his computer. Any attempt by him to delete data in respect of his searches would also constitute a breach. The conditions place very stringent constraints on the respondent's ability to come into contact with prepubescent children. He will be required to disclose his prior offending to anyone with whom he forms a friendship, which will enable precautions to be taken by any such person who may have young children or access to young children. The respondent will not be able to have contact with any club or association where membership includes children.
Otherwise, as I noted earlier, the conditions and their capacity to provide adequate protection of the community speak for themselves.
I have come to the conclusion, therefore, that the respondent should be released on a supervision order in the terms of the Annexure to these reasons.
Enquiries were made, pending the determination of the application, whether it would be practically feasible for the respondent to be released on a supervision order within a lesser period than 21 days after the giving of the decision. The applicant has indicated that if the supervision order were to commence on Thursday, 10 September 2020, which is the day before the respondent was due to be released, having completed his sentence, the necessary arrangements could be put in place for the respondent to move into the supported accommodation and be properly supervised. Accordingly, the supervision order will commence on that date.
Duration of the supervision order
Both Dr Wynn Owen and Dr Wojnarowska were of the view that a period of 5 years would be a suitable period for a supervision order, on the understanding that the State could apply for a further supervision order before the end of that period if an assessment were made at that time that the respondent continued to present an unacceptable risk that he would commit a serious offence, and a restriction order was still necessary to adequately protect the community against that risk. The period of 5 years is informed, at least in part, by the statistical research underpinning the STATIC‑99R, which has resulted in a 'coding rule' that for every 5 years an offender is in the community without committing a new sex offence, their risk of recidivism roughly halves.[168] As Dr Wynn Owen noted, if the respondent did not offend during that period, his STATIC‑99R score would be likely to drop down to the average range (that is, for persons who have previously offended, not the population as a whole).[169]
[168] BOM p 1095.
[169] Ts 111.
Insofar as the period relates to the respondent's need for further treatment, Dr Wynn Owen said:[170]
I would think that he has not responded too well to treatment. If he is now to respond better to treatment, he would probably have some form of intensive treatment for at least two to three years during which time you would expect him to gain from that intervention, and then it would still give him an opportunity at the end of that treatment to demonstrate the learnings prior to any further reassessment or prior to the order coming to an end.
[170] Ts 111.
The suggested period also takes into account the respondent's age, although, having regard to the nature of the respondent's past offending, a reduction of physical capacity due to aging would not prevent him from offending in that way. However, having regard to all of the respondent's circumstances, including his health issues, I am satisfied that, at this stage, a period of 5 years is appropriate.
Anonymisation and suppression order
To protect the privacy of the victims of the respondent's offending, the name of the respondent and the victims will be anonymised in these reasons.
Although the address to which the respondent will be released in accordance with the supervision order is not stated in these reasons, there will also be a suppression order prohibiting publication of that address, including the suburb in which the property is located.
Order
I order that, when not in custody, the respondent is to be subject to conditions in the terms of the supervision order annexed to these reasons, and that the order is to have effect from 10 September 2020 for a period of 5 years.
Annexure
_______________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 4 SEPTEMBER 2020
_______________________________________________________________________
The court, having found pursuant to section 7 and section 48(1) of the High Risk Serious Offenders Act 2020 that the Respondent is a serious danger to the community, orders that the Respondent be the subject of a supervision order pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020, for a period of 5 years from 10 September 2020, on the following conditions:
You, [REDACTED], must:
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 your 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 your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes
,complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32).
Not leave or stay out of the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a serious offence as defined in the section 5 during the period of the Order.
Be subject to electronic monitoring under section 31.
ADDITIONAL CONDITIONS
Residence
Take up residence at [REDACTED] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;
Reporting to a CCO and supervision by a CCO
Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this order,
Be under the supervision of a CCO, report to and receive visits from a CCO at times and places as directed by the 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 (SOMS) at [REDACTED] 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, and/or your person for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the order;
Remain at your residence and/or vehicle when Police Officers conduct a search of your residence and/or vehicle pursuant to condition 16;
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;
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 condition 21, 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;
Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring;
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
Criminal conduct
Not commit any 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 or s 557K Criminal Code 1913 (WA);
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
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
31,Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO;
Undertake any medication regime, including medication for hormonal or non-hormonal anti-libidinal treatment, as directed by the CCO in consultation with a medical practitioner(s) and comply with all testing to monitor your compliance with that treatment as directed by a CCO;
Comply fully with any treatment prescribed pursuant to condition 32;
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk or risk of re‑offending and compliance with treatment to the Department of Justice;
Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect, that you have, or intended to, cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment;
Prevention of high-risk situations
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
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;
(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 condition 37, 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;
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present this diary to the CCO and Police Officer upon request.
Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person;
Report at your next contact with your CCO and Police any association or relationship by you with a person who has a child or children under the age of 18 years in their care either full time or part time;
Not form any domestic relationship with a person who has a child or children under the age of 18 years in their care either full time or part time, without prior approval of a CCO;
Not conduct computer searches for, collect, access, or be in possession of in either electronic or permanent form, images of children including drawings or sketches, whether indecent or not, with the exception of images of your immediate family that are not indecent images if approved in advance by a CCO. Possession of such images depicting a child or children on items such as household items, may be authorised by a CCO;
Not be in possession of any children's toy, game or confectionary that could reasonably be perceived to be capable of being an enticement to children, unless such possession is for a legitimate purpose;
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 includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 48, without prior approval of the CCO;
Enable device locking or password access of your computer, telecommunication and/or electronic devices; Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 48 or any online accounts, to any person other than a CCO or Police Officer;
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advice from a CCO;
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca14 SEPTEMBER 2020
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