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THE STATE OF WESTERN AUSTRALIA -v- RAO [No 2] [2020] WASC 467 (15 December 2020)

Last Updated: 15 December 2020


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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : THE STATE OF WESTERN AUSTRALIA -v- RAO [No 2] [2020] WASC 467

CORAM : FIANNACA J

HEARD : 25 MARCH & 23 APRIL 2020

DELIVERED : 15 DECEMBER 2020

PUBLISHED : 15 DECEMBER 2020

FILE NO/S : SO 1 of 2018

BETWEEN : THE STATE OF WESTERN AUSTRALIA

Applicant

AND

JAMES WILLIAM RAO

Respondent


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Dangerous sexual offender – High risk serious offender – Review – 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 made

Category: B

Representation:

Counsel:

Applicant
:
Mr M T Trowell QC
Respondent
:
Mr S D Freitag SC


Solicitors:

Applicant
:
The State of Western Australia
Respondent
:
Not applicable


Cases referred to in decision:


FIANNACA J:

The Application and its history Commencement of these proceedings under the DSO Act
  1. This is the first annual review of the respondent's detention pursuant to a continuing detention order (CDO) made under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) by Quinlan CJ on 25 March 2019, after his Honour found that the respondent is a serious danger to the community for the purposes of the DSO Act.[1]
  2. These reasons are to be read in conjunction with the decision of Quinlan CJ in Rao.
  3. The application for the review was filed by the Director of Public Prosecutions for WA (DPP) on 14 October 2019 pursuant to s 29 and s 31 of the DSO Act.
Respondent's history giving rise to the application
  1. It is convenient to commence with the historical context for the decision of Quinlan CJ in Rao. The respondent's history of sexual offending was set out in his Honour's reasons.[2] I adopt his Honour's findings for the purpose of this review and summarise them as follows.
  2. The respondent was born in 1951.
  3. His past sexual offending may be grouped as follows:

(a) an early offence in 1977;

(b) a series of offences committed between 2008 to 2010, for which he was sentenced on 17 November 2011; and

(c) the most recent offences committed in early 2017.

  1. In 1977 the respondent was convicted of unlawful carnal knowledge, contrary to s 187 of the Criminal Code. The respondent, who was 26 years old, had sexual intercourse with the complainant, who was 15 years old at the time. The respondent was placed on a $200 good behaviour bond for 12 months.
  2. Following that conviction in 1977, there is no evidence of further offending by the respondent of a sexual nature for another 30 years.
  3. Between 2008 and 2011, the respondent committed a series of sexual offences against 10 female victims. Nine of the victims were between the ages of 14 and 17 years and one was over the age of 18 years. The respondent ran a car wash business. All of the victims were his employees. The charges ranged from indecent dealing to sexual penetration. The indecent dealing offences involved kissing the victims on the neck and breasts, touching them on the vagina or inner thigh, placing their hands on his penis and, in one case, pushing his penis onto the victim's face. The sexual penetration was of a 15 year old girl. There were three such offences involving the respondent penetrating the girl with his fingers or penis. The respondent groomed all of the victims in a similar manner.
  4. The respondent was charged with 37 counts of sexual offending. On 5 September 2011, he was convicted on his pleas of guilty of 30 counts. He was subsequently convicted of three further counts after trial. On 17 November 2011, he was sentenced to a total effective sentence of 6 years and 6 months' imprisonment, with eligibility for parole, for the thirty three offences of which he was convicted. The sentence was backdated to commence on 28 July 2011. He was released on parole on 27 January 2016. The sentence would have ended on 27 January 2018.
  5. Prior to his release, the respondent had completed a Medium Sex Offender Treatment Program. Following his release, he completed a Sex Offender Maintenance Program.
  6. In 2017, during the term of his parole, the respondent committed an offence of indecent assault against a 16‑year‑old victim. He hugged the victim and touched her breasts through her clothing without her consent.
  7. It appears from the materials in these proceedings[3] that, after the respondent was charged with the offence in 2017, his parole was cancelled and he was returned to custody on 11 April 2017. It appears he then continued to serve the sentence in respect of which he had been released on parole, until he was sentenced for the 2017 offence and other offences on 20 April 2018.
  8. It was against that background that the DPP applied for orders under the DSO Act within the last year of the respondent's sentence that had been imposed in 2011.
  9. A preliminary hearing of the application under the DSO Act was heard by Jenkins J on 19 April 2018. Her Honour fixed a date for the hearing of the application and ordered that the respondent be detained in custody until the conclusion of the application.
  10. In the meantime, on 20 April 2018, the respondent was sentenced to a term of 10 months' imprisonment in relation to the indecent assault offence he committed in 2017, while on parole. He was also sentenced to concurrent terms in relation to charges under the Community Protection (Offender Reporting) Act 2004 (WA) for the offence of being near a school while he was a child sex offender, contrary to s 557K(6)(a) of the Criminal Code. The total sentence of 10 months was backdated to 28 January 2018.
  11. At the time the hearing under the DSO Act commenced before Quinlan CJ, the respondent was still serving that sentence. The respondent completed the sentence on 27 November 2018.
  12. Before turning to the findings in Rao, I note that the respondent's criminal record also includes a number of non-sexual offences (including traffic offences). Of particular significance is a conviction in 2007 in Queensland in relation to an offence of assuming the designation or description of a police officer, contrary to the Police Service Administration Act 1990 (Qld), which involved the respondent presenting himself as a police officer to young persons. The circumstances of that offence were consistent with the kind of grooming behaviour evident in the respondent's later offending.
Findings at the Division 2 hearing
  1. The findings made by Quinlan CJ in Rao can be summarised as follows.
  2. The psychiatrists appointed under the DSO Act to assess the respondent were Dr Wynn Owen and Dr Wojnarowska. Quinlan CJ accepted their evidence that the respondent presented as a high risk of reoffending sexually if he was not subject to an order under the DSO Act.[4]
  3. In considering whether the respondent was a serious danger to the community, his Honour noted that 23 of the respondent's 33 criminal convictions from 2011 were for 'serious sexual offences', and that several of those offences were characterised by actions and demeanours which, whilst not involving physical coercion, made it clear to the victim that she had no free choice.[5]
  4. His Honour held that the evidence demonstrated that the respondent had a propensity to commit serious sexual offences, that his offending demonstrated a clear pattern of grooming adolescent females in a work or social situation, and that the respondent did not have insight or awareness of such patterns.[6] His Honour noted that, although the respondent had participated in a Medium Sex Offender Treatment Program in 2013 and a Sex Offender Maintenance Program after being released to parole in 2016, his most recent offending occurred during that period of parole.[7] Although the respondent appeared to have made some qualified positive gains, it was apparent that the respondent had regressed by the time of the Division 2 hearing.[8]
  5. His Honour held that the respondent was therefore a serious danger to the community because there was a significant likelihood that the respondent would reoffend in a similar manner to his past offending. Having reached that conclusion, his Honour was then required to make a CDO or a supervision order.
  6. In determining whether the court should make a CDO or a supervision order, it was of concern that whilst on parole in 2016, the respondent was unable to disclose or seek help for his issues.[9] His Honour noted that the respondent had regressed from the gains he had made in his 2013 treatment program, and that the respondent had 'essentially remained untreated since that time' and had unmet treatment needs. The evidence supported the conclusion that the unmet treatment needs could be addressed in individual psychological treatment.[10] The treatment needs had not been addressed in prison for reasons that were summarised and commented upon by Quinlan CJ as follows:[11]
According to the evidence, until a person is made the subject of a Division 2 order, they are not eligible for the services of the Department's Forensic Psychology Service. At the same time, as was the evidence in this case, the lack of such service may be a central consideration in relation to whether the person is detained in custody or released under supervision. As I have discussed below, this Catch-22 is neither in the interests of [the respondent] nor, as is the paramount consideration under the Act, the interests of the community.
  1. Although the 'Catch-22' was an unsatisfactory situation, the paramount consideration for the court was the adequate protection of the community.
  2. Quinlan CJ concluded that he was not satisfied that the community could be adequately protected by releasing the respondent subject to a supervision order 'in the absence of such treatment having been commenced, or any evidence as to its efficacy in [the respondent's] particular case'.[12] In particular, his Honour was not satisfied, on the balance of probabilities, that, if released on a supervision order, the respondent would not commit a further sexual offence.[13]
  3. His Honour's reasons were encapsulated in the following paragraphs:[14]
The unfortunate reality is that [the respondent] has essentially remained untreated since that time. I say 'unfortunate' because [the respondent] has now been in custody for a year since his last offence (including almost four months since his sentence expired), with no treatment being provided during that time. This is the case, notwithstanding that all assessments of him, including the program completion report for the Sex Offender Maintenance Program dated 20 April 2017, have identified [the respondent] as having unmet treatment needs.

The reason for this lack of any treatment is, as I noted at the beginning of these reasons, that until a person is made the subject of a Division 2 order, they are not eligible for the services of the Department's Forensic Psychology Service. This is apparently so, even where the fact that such services will ultimately need to be provided is obvious.

I described this earlier as a Catch-22. And indeed it is.

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 [the respondent] should stagnate, and potentially worsen, as a consequence of a lack of treatment.

It is also, obviously, in [the respondent's] interests that treatment commences as soon as possible.

As it is, treatment for [the respondent] cannot commence until I make an order on this application.

[The respondent] has expressed a desire for such treatment and I accept that he is sincere in that regard. There is, therefore, some cause for optimism that he will respond positively to individual treatment and that having undergone that treatment will have developed sufficient skills and insight into his offending as to be able to be safely managed in the community. It is, in particular, in the development of insight and awareness that [the respondent] requires treatment.
  1. It will be seen that Quinlan CJ saw cause for optimism that the respondent would respond positively to treatment, and that the focus of that treatment would be the development of the respondent's insight into his offending and awareness of his behaviour, as well as the development of sufficient skills to enable his risk of sexual reoffending to be managed under a supervision order.
The review hearing
  1. The hearing of the present application proceeded before me on 25 March 2020 and 23 April 2020. The adjournment after the first day of the hearing was to enable further information to be obtained in respect of whether appropriate accommodation would be available for the respondent if he were released on a supervision order.
  2. At the conclusion of the hearing on 23 April 2020, I reserved my decision sine die, although I indicated my intention to give judgment the following week. Regrettably it has taken a considerably longer period. In the meantime there has been a change to the statutory scheme that governs the application.
Enactment of the High Risk Serious Offenders Act
  1. On 9 July 2020 pt 1 of the High Risk Serious Offenders Act 2020 (WA) (the HRSO Act) received the Royal Assent, as a result of which pt 1 of the HRSO Act came into effect.[15]
  2. Other parts of the HRSO Act relevant to the application came into operation on 26 August 2020 (the commencement day).[16]
  3. Upon the coming into operation of these other parts of the HRSO Act, the DSO Act was repealed.[17]
  4. However, by virtue of s 124(1) of the HRSO Act, as the application for review had not been finally determined by the commencement day, the application continues, and may be determined, under the HRSO Act, and is taken to have been made under the provisions of the HRSO Act that correspond with s 29 and s 31 of the DSO Act, namely s 64 and s 66.
  5. In addition, by virtue of s 124(2) of the HRSO Act, the application may be continued by the DPP in the name of the applicant. Further, by s 125 of the HRSO Act, if an order made, or direction given, under the DSO Act is in effect on the commencement day, the order or direction continues in effect and is taken to have been made or given under the corresponding provision of the HRSO Act.
  6. The net result of these provisions of the HRSO Act is that:

(1) the respondent's CDO continues in effect and is taken to have been made under the HRSO Act; and

(2) the application must now be treated as having been made pursuant to s 64 and s 66 of the HRSO Act and be determined under the provisions of the HRSO Act.

  1. In The State of Western Australia v ZSJ[18] I canvassed in detail the overall effect of the HRSO Act and conducted an analysis of the comparable provisions of the DSO Act and the HRSO Act. In summary, the scope of the regime under the HRSO Act is wider than that established by the DSO Act, as the 'serious offences' that are the subject of the HRSO Act include, in addition to the serious sexual offences the subject of the DSO Act, a number of non-sexual offences (mostly involving violence or some other danger to the community). As I indicated in ZSJ, Parliament has determined that the community requires protection from this broader range of offences, by the making of a 'restriction order', if there is an unacceptable risk the offender will commit such an offence.
  2. I will say more about the relevant provisions of the HRSO Act in due course. At this point it is sufficient to say that, so far as the application before me is concerned, the HRSO Act does not operate in any significantly different way to the DSO Act in respect of serious sexual offences. Whereas previously the question was framed in terms of whether the respondent continues to be a 'serious danger to the community', the question now to be determined is whether the respondent is a 'high risk serious offender', but the matters about which the court must be satisfied are essentially the same.
The review hearing and the manner in which the application is to be determined
  1. The application now comes to be dealt with as an application pursuant to s 64 and s 66 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 hearings on 25 March 2020 and 23 April 2020 address those issues. Therefore it has not been necessary to invite further submissions and neither party has applied to adduce further evidence.
  2. The issues for determination are:

(1) whether the respondent is still a high risk serious offender; and

(2) if so, whether the appropriate restriction order is a CDO or release into the community on a supervision order.

  1. If the court finds that the respondent continues to be a high risk serious offender, one of those restriction orders must be made.[19]
  2. The respondent conceded that he remains a 'serious danger to the community' within the meaning of the term as set out in s 7(1) of the DSO Act. As will appear from my more detailed analysis of the provisions of the HRSO Act below, it follows from the concession made at the review hearing that the respondent also concedes he is a high risk serious offender under the HRSO Act.
  3. In making that concession, the respondent acknowledged it is the only realistic position, given the evidence of the experts called in the review hearing, Dr Wojnarowska and Dr Bannister, and the concession made by the respondent during his interview with Dr Wojnarowska that he has a 'high chance of failing in the community if he disengaged with his treatment and supports'.[20]
  4. Notwithstanding the concession in respect of the first issue, it is still necessary for me to make a finding in that regard based on all of the evidence. However, the essential question at the conclusion of the hearing was what restriction order should be made.
Statutory framework and relevant principles General
  1. I now turn in more detail to the provisions of the HRSO Act, under which this application must be determined.
  2. As I discussed in ZSJ (a case concerning a Division 2 Hearing under the DSO Act, which ultimately fell to be decided under the provisions of the HRSO Act), the concepts and criteria with which the court is concerned in determining applications under the DSO Act and the HRSO Act are substantially the same.[21] I went on to explain (citations omitted):[22]
Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the  High Risk Offenders Bill 2019  by the Honourable Attorney General. The Attorney informed the House that the bill was intended to 'extend the Supreme Court's ability to make a continuing detention order or supervision order to serious violent offenders in the same manner as the provisions contained in the [DSO Act]'. He went on to say:
'In doing so, this bill fully preserves the provisions that apply in respect of dangerous sexual offenders in the [DSO Act].'
Whether or not that has been achieved remains to be seen upon analysis of the provisions. However, in my opinion, as the concepts and criteria in both statutes are substantially the same, the jurisprudence established in respect of the DSO Act remains relevant in construing and applying [the HRSO Act], with appropriate adaptation in cases involving non‑sexual offences.
  1. In ZSJ I went on to discuss the operation of various provisions of the HRSO Act by reference to the comparable provisions in the DSO Act.[23] I adopt the same reasoning, in broad terms, in this case.
  2. More specifically, as to manner in which the HRSO Act should be applied in review proceedings, I agree with the following observations of Derrick J in The State of Western Australia v Narrier:[24]
In my opinion the case law decided under the DSO Act in relation to applications for review of continuing detention orders and supervision orders remains relevant to the determination of such applications under the provisions of the [HRSO] Act. Accordingly, the cases to which I refer in dealing with the legal principles applicable to the determination of the application under the [HRSO] Act will be cases that have been concerned with proceedings under the DSO Act.
Statutory basis of the application
  1. As I mentioned earlier, an application of the kind brought in these proceedings pursuant to s 29 and s 31 of the DSO Act would now be made pursuant to s 64 and s 66 of the HRSO Act.
  2. Section 64 of the HRSO Act provides:[25]
    1. Review – periodic
(1) While an offender is subject to a continuing detention order, the State may apply to the Supreme Court for the offender's detention under the order to be reviewed.

(2) The State must apply under subsection (1) so as to ensure that reviews are carried out –
(a) as soon as practicable after the end of the period of 1 year commencing when the offender is first in custody on a day on which the offender would not have been in custody had the continuing detention order not been made; and

(b) as soon as practicable after the end of the period of 2 years commencing when the detention was most recently reviewed under this section or section 65.
(3) The periods mentioned in subsection (2)(a) and (b) are extended by any period during which the offender is in custody serving a sentence of imprisonment.
  1. Section 66 of the HRSO Act provides:
    1. Review – Dealing with application
(1) As soon as practicable after an application is made under section 64 or 65, the court must give directions for the hearing of the application.

(2) Subject to subsection (3), the application must be heard, and the review must be carried out, as soon as it is practicable to do so in accordance with any directions given by the court.

(3) The court may adjourn the hearing of the application, and the carrying out of the review where good cause is shown.
DSO Act – questions to be determined
  1. Under s 33 of the DSO Act, the first question to be determined in such review proceedings was whether the respondent remained a serious danger to the community.[26] The meaning of 'serious danger to the community' was to be discerned from s 3 and s 7 of the DSO Act. It was clear from the definition, and confirmed by previous decisions, that the first thing the court had to decide was whether there continued to be an unacceptable risk that the respondent would commit a serious sexual offence if not subject to an order (be it a CDO or a supervision order) under the DSO Act.[27] If the answer was 'no', the court was required to rescind the DSO and the respondent would be released without further order. On the other hand, if the court found that the respondent remained a serious danger to the community, it was required to affirm the CDO or make a supervision order. When deciding between those two options, the paramount consideration was the need to ensure adequate protection of the community.[28]
HRSO Act – questions to be determined
  1. The relevant provision now is s 68 of the HRSO Act (which corresponds with s 33 of the DSO Act):
    1. Review of detention under continuing detention order
(1) On a review under section 66 of an offender's detention –
(a) if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or

(b) if the court finds that the offender remains a high risk serious offender it must –
(i) affirm the continuing detention order; or

(ii) subject to section 29, rescind the continuing detention order and make a supervision order.
(2) In deciding whether to make an order under subsection (1)(b)(i) or (ii), the paramount consideration is to be the need to ensure adequate protection of the community.
  1. The definition of the term 'high risk serious offender' is contained in s 7(1) of the HRSO Act:
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.
  1. A 'serious offence' is an offence that 'is specified in Schedule 1 Division 1 of the [HRSO] Act', or 'is specified in Schedule 1 Division 2 and is committed in the circumstances indicated in relation to that offence in that Division'. Offences that were 'serious sexual offences' under the DSO Act come within the definition of a 'serious offence' under the HRSO Act because they are offences that are specified in sch 1 div 1 of the HRSO Act.
  2. The term 'restriction order' is defined in s 3 of the HRSO Act to mean 'a continuing detention order' or 'a supervision order'. The terms 'continuing detention order' and 'supervision order' are defined in s 26 and s 27 respectively in similar terms to those that were used in the DSO Act.
  3. Section 26 provides:
(1) In this Act a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care, or treatment.

(2) A continuing detention order has effect in accordance with its terms from the time the order is made until rescinded by a further order of the court.
  1. Section 27 provides:
(1) In this Act a supervision order in relation to an offender is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.

(2) A supervision order has effect in accordance with its terms –
(a) from a date stated in the order; and

(b) for a period stated in the order.
(3) The date from which a supervision order has effect must not be earlier than 21 days after the date the order is made unless the court is satisfied that the implementation of the order from an earlier date is practically feasible.
  1. The questions to be determined under the HRSO Act are substantially similar to the questions to be determined under the DSO Act.
  2. Under the HRSO Act, it follows that from the definition of 'high risk serious offender' contained in s 7(1) that a finding under s 68(1)(b) that an offender 'remains a high risk serious offender', that is, a finding that it remains necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence, necessarily entails a finding that, if the offender is not subject to a restriction order, the community will not be adequately protected against an unacceptable risk that the offender will commit a serious offence.[29]
  3. The court must be satisfied of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability' before a finding under s 68(1)(b) can be made.[30]
  4. The 'high degree of probability' standard is higher the standard of the balance of probabilities, but is a lesser standard than the standard of beyond reasonable doubt.[31] The standard is otherwise incapable of further definition.[32]
  5. I respectfully adopt the following comments of Derrick J in Narrier in relation to the findings required under s 7(1), which reflect the principles that had applied in respect of the DSO Act (citations omitted):[33]
The requirement is not that the risk that the offender will commit a serious offence must be at some high percentage of probability. A risk that the offender will commit a serious offence may be less than 50% yet still be an unacceptable risk. It is the necessity to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence that must be proved by acceptable and cogent evidence and to a high degree of probability.

An unacceptable risk of the kind described in s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the offender offending, the type of offence the offender is likely to commit (if that can be predicted), the serious consequences for the victim if the offender commits a further offence and the serious consequences for the offender if a continuing detention order or supervision order is made. That is, the court is required to consider whether, having regard to the likelihood of the offender offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the offender has already been punished for the offences they have committed, it is necessary in the interests of the community to ensure that they are subject to further control or detention.

By reason of the definition of 'high risk serious offender' contained in s 7(1), before the court can find under s 68(1)(b) that the offender remains a high risk serious offender it must be satisfied that it is necessary to make a restriction order in relation to the offender to ensure the adequate protection of the community against the relevant risk. Moreover, by reason of s 68(2), if the court finds that the offender remains a high risk serious offender it is the need to ensure the adequate protection of the community that is to be the paramount consideration for the court in deciding whether to affirm the continuing detention order or to make a supervision order.
  1. Section 7(2) of the HRSO Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.
  2. Section 7(3) of the HRSO Act specifies the matters that the court must have regard to in deciding if an offender is a high risk serious offender for the purposes of s 7(1). The matters specified are substantially identical to the matters that the court was, by s 7(3) of the DSO Act, required to have regard to in deciding whether a person was a 'serious danger to the community' within the meaning of the DSO Act.
  3. The court should choose the option which is least invasive or destructive of the respondent's right to be at liberty, noting that both a CDO and a supervision order involve restrictions on the respondent's liberty.[34] At the same time the court must ensure an adequate degree of protection of the community.[35] The need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required.[36] 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. It is a matter for judgment in each case.[37]
  4. 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:[38]
Of course, if ... 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.
  1. As is evident from the terms of s 68(1)(b)(ii) (set out at [53] above), the discretion to make a supervision order is subject to s 29 of the HRSO Act (which contains provisions that mirror s 33(4) and s 33(5) of the DSO Act):
    1. Limitation on power to make or amend supervision order
(1) A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.

(2) The onus of proof as to the matter described in subsection (1) is on the offender.

(3) This section does not apply to the making of an interim supervision order.
  1. 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. Section 30(2) of the HRSO Act specifies seven conditions that must be included in any supervision order.
  2. The effect of s 29(1) and s 29(2) of the HRSO Act is that, before the court can make a supervision order in relation to a respondent, he must satisfy the court on the balance of probabilities that he will substantially comply with the standard conditions set out in s 30(2).
  3. 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.[39] 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.[40] 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.[41]
  4. 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.[42] 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.[43]
  5. In the event that a supervision order is made, s 27(2) and (3) of the HRSO Act pick 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.
  1. Finally, I respectfully agree with the comments of Hall J in The State of Western Australia v Paul Douglas Allen, also known as Paul Alan Francis Deverell [No 5][44] in relation to the purpose of the review process provided for under the DSO Act, and consider them to apply with equal force to the equivalent process under the HRSO Act (citations omitted):[45]
The clear intention of the review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending, rather it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be better managed in the community, then the continuing need for detention must be considered

The risk of reoffending may change over time. It may be affected by age, health or the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order. The justification for making a detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of the prison authorities to facilitate change by offering programs and access to counselling.

If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances continuing detention may be unjust.

The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise potentially draconian effect of imprisoning people for crimes that they have not committed. Reviews are not, therefore, merely a welfare check, rather they are an exercise of judicial power to affirm, vary or rescind a detention order. Continuing detention should not be ordered unless that course is justified by the circumstances existing at the time of the review. The court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.
Evidence in these proceedings
  1. Evidence was presented in a Book of Materials (BOM) filed with the court on 17 March 2020 consisting broadly of the decision in Rao, documents relating to the respondent's behaviour in prison between the Division 2 Hearing and these proceedings, a report prepared by the court-appointed expert and other reports on which the applicant intended to rely. More specifically, the BOM included:

(a) Prisoner information in respect of the respondent from the Department of Corrective Services, last accessed on 7 January 2020;

(b) The respondent's charge history as a prisoner, last accessed on 7 January 2020;

(c) The respondent's substance use test results as a prisoner, last accessed on 7 January 2020;

(d) Prison management and placement information in respect of the respondent, dated 2 April 2019;

(e) Prison medical progress notes in respect of the respondent, last accessed on 3 March 2020;

(f) Dangerous Sex Offender Treatment Progress Report by Dr Ben Bannister, Forensic Psychologist, dated 24 February 2020;

(g) Psychiatric Report of Dr Gosia Wojnarowska, Forensic Consultant Psychiatrist, dated 8 March 2020; and

(h) A Community Supervision Assessment report of Ms Kimberly Comery, Senior Community Corrections Officer (SCCO), dated 12 March 2020.

  1. At the hearing, on 25 March 2020, Dr Wojnarowska, Dr Bannister and Ms Comery also gave oral evidence.
Developments since the CDO was made
  1. The evidence establishes the following developments in the respondent's circumstances since the decision in Rao.
  2. After the Division 2 Hearing, the respondent was transferred to Acacia Prison where he commenced weekly individual counselling with a psychologist, Ms Chantelle Place. Ms Place identified that the respondent had treatment needs in nine specific areas,[46] which are outlined at [93] below. They have formed the focus of counselling. At the review hearing, each of the experts discussed the extent to which counselling has addressed the treatment needs. I will set out the evidence, and my findings about those matters, below.
  3. Further, since the CDO was made, the respondent has engaged with an SCCO as required. He has not been the subject of any prison charges or a management issue while in custody.[47]
Psychiatric and psychological evidence – overview The role of each expert
  1. Dr Wojnarowska was the court-appointed expert who conducted the assessment of the respondent's risk of committing a serious sexual offence (now a serious offence) if he is not subject to a CDO or supervision order. As Dr Wojnarowska was one of the experts who assessed the respondent's risk of sexual offending for the purposes of the Division 2 Hearing, she was well placed to assess any change in the respondent's circumstances from direct experience, as well as by reference to other information.
  2. Dr Bannister's role in this review was to provide an overview of the psychological intervention administered since the respondent was made subject to the CDO and the respondent's response to that intervention, in particular whether there has been any change in his circumstances as they affect his risk of sexual reoffending.[48] Although Dr Bannister was not engaged, for the purposes of this review, to make a formal assessment of the respondent's risk of sexual reoffending, his expertise in that regard informs his identification of relevant developments in the respondent's circumstances.
  3. Both Dr Wojnarowska and Dr Bannister are very experienced in their respective fields in the assessment of the risk of future offending by convicted sex offenders. Both also have a great deal of experience in the manner in which risk is managed in the community under supervision orders and have had input in numerous cases in respect of the conditions that are included in such orders.
Methodology
  1. For the purposes of the review, Dr Wojnarowska based her assessment of the respondent's risk of committing a serious sexual offence (which remains relevant in determining his risk of committing a serious offence for the purposes of the HRSO Act) on information obtained from a number of sources and by applying actuarial instruments, structural clinical guides and clinical judgment. The source information came from:

(a) An interview with the respondent on 31 January 2020;

(b) A meeting with Ms Place on 4 March 2020;

(c) A phone conversation on 9 March 2020 with Ms Kimberley Comery, the SCCO who has had responsibility for monitoring the respondent's circumstances and administering the requirements of the DSO Act while he has been subject to the CDO;

(d) A Department of Corrective Services report in respect of 'incidents and occurrences' concerning the respondent while in custody for the period from 5 March 2019 to 7 January 2020;

(e) The respondent's charge history as a prisoner for the period from 25 March 2019 to 7 January 2020;

(f) The respondent's substance use test results as a prisoner, for the period from 5 March 2019 to 7 January 2020;

(g) Prison management and placement information in respect of the respondent, dated 2 April 2019; and

(h) Prison medical progress notes in respect of the respondent for the period from 26 March 2019 to 1 January 2020 inclusive.

  1. Dr Wojnarowska also had regard to the reasons of Quinlan CJ in Rao.
  2. The actuarial instruments applied by Dr Wojnarowska were the STATIC‑99R and the Hare Psychopathy Checklist‑Revised (PCL‑R). The STATIC‑99R relies mainly on historical factors (although age is also a factor) to assess the long‑term potential for sexual recidivism among adult male sex offenders. The PCL‑R assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy.
  3. The structured clinical guide used by Dr Wojnarowska was the Risk of Sexual Violence Protocol (RSVP), which requires clinicians to consider a large number of factors, both static and dynamic, which have an impact upon the assessment of risk.
  4. The validity of the instruments and clinical guides used by Dr Wojnarowska in the assessment of the respondent's risk is not in dispute.
  5. Dr Bannister's assessment of developments in the respondent's circumstances in response to psychological intervention, since the respondent has been subject to the CDO, was based on information obtained from:

(a) An interview with the respondent on 18 February 2020;

(b) An interview with Ms Place on 14 February 2020;

(c) Interviews with Ms Comery in respect of her monitoring of the respondent's circumstances and her community supervision assessment;

(d) The psychiatric, psychological and neuropsychological reports prepared in respect of the respondent for the Division 2 Hearing;

(e) The Community Supervision Assessment reports prepared in respect of the respondent for the Division 2 Hearing;

(f) A proposed DSO Management Plan in respect of the respondent prepared by another SCCO on 2 July 2018;

(g) Various Treatment Plan Reports, a Case Formulation Report and Treatment Case Notes prepared by Ms Place from 30 June 2019 to 10 February 2020 in respect of the treatment to be delivered and actually delivered to the respondent; and

(h) The BOM in these proceedings, the contents of which are outlined at [75] above.

  1. The respondent, through his counsel, did not dispute the findings made by Dr Wojnarowska and Dr Bannister in their reports.
  2. In those circumstances, it is not necessary to go into detail in respect of each of the factors considered by Dr Wojnarowska or Dr Bannister in arriving at their conclusions. However, in order to provide context to my conclusions, it is necessary to outline their key findings.
Treatment since the Division 2 Hearing The treatment provided to the respondent
  1. At the Division 2 Hearing the respondent was assessed as having a number of outstanding treatment needs. In particular, he was deficient in his ability to establish meaningful connections with peers of a similar age and to foster healthy, pro‑social relationships. He also needed to refine his risk management strategies, especially in terms of identifying and managing high risk scenarios. His ability to do so was affected by his lack of insight and awareness and his cognitive distortions such as denial, minimisation and justification of his offending behaviour,[49] all of which needed to be addressed in further treatment.
  2. The respondent commenced individual treatment with Ms Place in July 2019. As at the date of Dr Bannister's report, the respondent had participated in about 30 sessions; typically, on a weekly basis.
  3. Prior to beginning the respondent's treatment, Ms Place developed a 'case formulation' which outlined nine main areas on which treatment would be focused:[50]
(i) Relationships: To develop an understanding of intimate and other relationships; also including development of empathy and perspective.

(ii) Emotion Management: To develop appropriate emotion management and coping skills.

(iii) Problem Solving Skills: To develop problem solving skills including assertiveness.

(iv) Responsibility: To achieve an internal locus of control for his behaviour rather than externalising responsibility to others.

(v) Sexual Offending: To achieve and understanding of his sexual offences.

(vi) Deviant Sexual Interests: To develop an understanding of his deviant sexual interests as well as strategies to reduce or appropriately manage these.

(vii) Cognitive Distortions: To challenge cognitive distortions relating to his sexual offences and achieve acceptance of responsibility.

(viii) Risk Management: To identify risk factors for reoffending to develop risk management strategies.

(ix) Release Plan: To develop a detailed release plan and supports.
  1. I will refer to the reported results of the respondent's psychological counselling, later in these reasons.
The respondent's change in attitude to treatment
  1. Dr Wojnarowska noted that there had been a change in the respondent's attitude since she interviewed him for the Division 2 Hearing. She said that her main concern when she first interviewed the respondent was as to 'his ability to engage with any form of treatment'.[51] At that time he had not really had much treatment and presented as manipulative, with a high degree of cognitive distortions, denial and justifications.[52]
  2. However, from her interview with the respondent for the review hearing, and taking into account the information she received from Ms Place, with whom she had a lengthy discussion, Dr Wojnarowska was satisfied the respondent had engaged appropriately with treatment since he was made subject to the CDO.[53]
  3. The respondent acknowledged to Dr Wojnarowska that he had previously lied to assessors.[54] He said, 'I would say anything to get out. I thought I was smart and could manipulate everyone.'[55] However, he said that he has not lied to Ms Place.
  4. The respondent had requested to move from Albany Regional Prison to Acacia Prison to commence treatment. Dr Wojnarowska agreed that this tended to confirm he is motivated to engage with treatment.[56] While it is proper to bear in mind that the respondent had little choice but to be transferred to Acacia Prison if he was to have any reasonable prospect of release on a supervision order at the time of this review, as the applicant contended, the fact that he sought the transfer is nevertheless a sign of his motivation to do what was required of him, namely to engage in treatment. In any event, the genuineness of his motivation can be discerned from the extent to which the respondent actually engaged in treatment.
  5. Dr Bannister noted that the respondent has articulated some improvement in his insight, identification of high risk scenarios and problem solving.[57]
  6. However, both Dr Bannister and Dr Wojnarowski noted that in the past the respondent had demonstrated a tendency to manipulate, and that the improvement in his engagement with treatment does not mean necessarily that the respondent has ceased to be manipulative.[58]
Dr Bannister's evidence – The respondent's response to treatment
  1. It is convenient to deal first with the evidence of Dr Bannister, who addressed specifically the respondent's response to counselling in the nine areas of treatment on which Ms Place focused.
Relationships
  1. Dr Bannister noted that five of the respondent's sessions with Ms Place focused on relationships. Those sessions explored the fact that the respondent now admitted to having had only three adult relationships, the remainder being with 16 or 17‑year‑old girls. Whilst the respondent sought to justify his relationships with the teenage girls, he was able to acknowledge that they were not appropriate. He insisted that he did not seek out such partners, but that underage females just 'took a liking to him'.[59] On further exploration, the respondent identified that a factor in his being drawn to forming relationships with young girls was that he was less likely to be hurt or rejected by them than he would be by women his own age. However, Ms Place noted that this apparent insight was not maintained by the respondent, and that he admitted spending excessively on girls as a way of manipulating them and securing relationships.[60]
Emotion Management
  1. Dr Bannister noted in his report that seven of the respondent's sessions with Ms Place focused on the management of his emotions. Initially, the respondent denied concerns about this area of his functioning, but he struggled to identify emotions and admitted he largely avoided them. He acknowledged that he did not manage emotions well and that he concealed them because he was afraid of appearing weak and vulnerable and feeling out of control. Whilst the respondent initially endorsed beliefs consistent with male gender stereotypes and tended to speak of emotions in all or nothing terms, this diminished over the course of treatment. The respondent identified appropriate strategies to manage his emotions, including discussing his feelings with others, engaging in activities he enjoyed, exercising, thinking positively, focussing on a work/life balance and writing down his thoughts and feelings. Ms Place noted that the respondent told her he had begun to allow himself to experience and show emotion. However, he had also commented that he would attempt to conceal his negative reaction to being challenged in a session.[61]
Problem Solving Skills
  1. Dr Bannister noted in his report that four of the respondent's sessions with Ms Place focused on problem solving. The respondent acknowledged that he tended not to discuss his problems with family or friends, preferring instead to resolve them himself, as he feared rejection. If he could not resolve a problem himself, he would ignore or avoid it. The respondent was introduced to cognitive behavioural therapy (CBT) and was able to work through real life examples with assistance. However, he demonstrated some difficulty in identifying and changing his thoughts and feelings and was unable to recall, and apply, CBT principles in later sessions. Ms Place provided strategies for challenging and changing unhelpful thoughts and observed that the respondent was able to gain some insight into problematic thinking patterns. Nevertheless, the respondent continued to demonstrate a variety of unhelpful thought patterns, including 'black and white thinking', labelling, making assumptions and jumping to conclusions.[62]
  2. The respondent's communication skills were also addressed in these sessions and he was able to demonstrate a reasonable ability for 'perspective taking' and assertive communication skills. However, when presented with hypothetical scenarios, he had difficulty generating alternative problem solving responses which were not passive or aggressive.[63]
Responsibility
  1. Dr Bannister noted in his report that the respondent's sessions with Ms Place had not specifically addressed the treatment area of 'responsibility'. However, the issue was addressed in more of a tangential manner in the course of treatment[64] and Ms Place commented upon it in her discussion with Dr Bannister. According to Ms Place, the respondent claimed that he was only now starting to take responsibility for his offending and admitted that, even though he knew his offending behaviour was wrong, he engaged in it regardless of the feelings of others.[65] Whilst the respondent claimed that he now accepted that he makes mistakes, Ms Place's comments to Dr Bannister suggested that the respondent still endorsed an external locus of control. He asserted that experts had misrepresented him at the Division 2 Hearing and made similar comments about Ms Place when she challenged him on inconsistencies in his accounts of his offending. Ms Place also found that the respondent externalised responsibility to his victims (by claiming that they approached him), to others (for suggesting that he hire the girls and take photographs of them) and to his SCCO (for not providing him with a psychologist).[66]
  2. I note that Dr Wojnarowska also spoke with Ms Place and her evidence qualified the impression that might be obtained from what Ms Place reported to Dr Bannister. When it was suggested to Dr Wojnarowska in re-examination that the respondent's inconsistencies in his accounts about his offending during counselling sessions might indicate a lack of willingness to accept full responsibility for his offending, Dr Wojnarowska said:[67]
That was not my impression ... during my conversation with Ms Place. So she acknowledges that at times there are inconsistencies. She was able to give me examples, but that’s not certainly present throughout all the sessions. [It] does exist, but it’s not prevailing behaviour of [the respondent]. That ... was my understanding of what Ms Place told me.
Sexual Offending
  1. Dr Bannister noted in his report that 13 of the respondent's sessions with Ms Place focused on sexual offending. Ms Place indicated that during those sessions the respondent's accounts of his offending differed from the official record. She found that the respondent both externalised blame for his actions and tended to objectify his victims by referring to their troubled backgrounds and behaviours. The respondent displayed some insight into his manipulative and grooming behaviour, but tended to minimise those aspects of his behaviour and sought to justify the behaviour by claiming that he only wanted love and affection and to help his victims. Further, while he seemed able to identify that he was motivated to offend in order to increase his self‑esteem and status and to seek power and control over his victims, he had poor ability to recall the background and immediate factors that contributed to his offending and to apply them to a consideration of his offending.[68]
Deviant Sexual Interests
  1. Dr Bannister was of the view that counselling had only begun to address the respondent's deviant sexual interests, but that the respondent had demonstrated good insight in that area. The respondent accepted that his sexual preference for underage girls began in adolescence and had continued after that. He was not attracted to women his own age because he preferred the type of sexual relationships that gave him power and control. The respondent found younger women easier to manipulate, whilst being less likely to want him to make any commitment or emotional investment in them.[69]
Cognitive Distortions
  1. Dr Bannister noted in his report that Ms Place characterised the respondent's cognitive distortions as consisting primarily of minimisation and justification of his offending behaviour and externalising blame. For example, he referred to his 2017 offences, which breached his parole, as the 'little incident' on parole and claimed his offending was less serious than that of other dangerous sex offenders who had been released. The respondent speculated that he reoffended because he was oblivious to the situation he was getting himself into, got too comfortable and lapsed in his thinking.
  2. Further, the respondent demonstrated negative attitudes towards women and endorsed rape myths in his responses to a survey concerned with beliefs and attitudes towards females and relationships. Ms Place described the survey to Dr Bannister in a manner that suggested it was not designed as a specific psychological test, but was a tool 'to access some of those cognitive distortions' by way of inference from answers to about 10 questions or propositions.[70] Dr Bannister gave an example of a proposition along the lines that women sometimes wear clothing that make them more likely to be raped. The person responding would either agree or disagree with the proposition. There is no suggestion that the respondent gave answers that directly constituted derogatory remarks about women. Nevertheless, at some of the propositions he endorsed were consistent with cognitive distortions aptly described as 'rape myths'. Ms Place informed Dr Bannister that the respondent was challenged or asked to reassess his responses over a number of sessions.[71] She said the respondent was inconsistent in his responses, but ultimately reverted to endorsing the problematic beliefs. For example, the respondent believed that he was not a rapist because he did not use violence to sexually assault his victims.[72] However, he expressed a different view when interviewed by Dr Bannister.[73] Unprompted by Dr Bannister, the respondent said that, through the treatment process, he had come to understand that he was a rapist because he did not have consent from his victims.[74] This tends to suggest that he was able to develop insight through the process of agitating problematic views in the counselling sessions with Ms Place.
Summary of the respondents overall response to treatment
  1. On the basis of the above outline of the respondent's progress in treatment, it could be said that the outcomes have been mixed. There have been some positive developments, but there appear to be entrenched thought patterns and a lack of persistence of at least some of the things he has learned that give cause for concern as to whether his positive developments are meaningful in the assessment of the respondent's risk of sexual reoffending.
  2. Dr Bannister gave evidence that, overall, Ms Place reported that the respondent demonstrated an ability to be reflective on issues and that he asked questions to clarify when he did not understand.[75] He was able to be challenged on his thinking and behaviours, although such challenging frequently resulted in him acting defensively to what he perceived to be a personal criticism or a negative judgment. He made consistent efforts at positive impression management in that he was overly effusive about Ms Place's abilities as a counsellor and repeatedly expressed concerns about whether she believed that he was taking therapy seriously. When the respondent was challenged in relation to providing information that contradicted that which he had provided to forensic assessors previously, he admitted he had not been entirely truthful. He conceded that he would have said anything to increase his chances of release, but insisted that he could not lie to Ms Place.
  3. The respondent told Dr Bannister that he had found the treatment with Ms Place 'intense' and 'emotional', and he had learned a lot about himself.[76] As I noted earlier, he told Dr Bannister that he had now come to understand, through the treatment process, that he was a 'rapist' because he 'never had consent' from his victims.[77] He said he had found that realisation devastating. He said that he now thinks frequently about the impact of his offending behaviour on his victims, and reported that he finds it upsetting that he sowed mistrust and created distress.[78]
  4. Overall, the respondent's ability to make treatment gains was somewhat restricted by his rigid thinking, personality style, sensitivity to criticism and perceived rejection. Nevertheless, Ms Place believed that the respondent had made some significant advances in his insight. She was of the opinion that the respondent's success, if released, would depend on his ability to translate such insights into concrete behavioural change. If released, Ms Place would continue regular contact with him to address outstanding treatment needs and address stressors related to his reintegration.[79]
Dr Bannister's conclusion
  1. Having regard to the information he had received from Ms Place and his own interview with the respondent, Dr Bannister concluded that the respondent was positively disposed to treatment. Further, notwithstanding the reservations about the respondent's progress that emerged from a review of the respondent's treatment sessions, there were signs in Dr Bannister's interview with the respondent that he had been able to assimilate important information relevant to managing his risk. As will appear later in these reasons, similar signs emerged in Dr Wojnarowska's assessment of the respondent.
  2. I referred above to the respondent's professed insight into the absence of consent in his offending, when interviewed by Dr Bannister. In addition, the respondent was able to articulate some improvement in insight pertaining to the factors underlying his offending, as well as a range of high risk scenarios, and he was also able to articulate how he planned to successfully manage those. The respondent could discuss elements of effective problem solving and emotional management when engaged on those topics, and he spoke openly about his offending behaviour.
  3. Dr Bannister was of the opinion, therefore, that the respondent had made some demonstrable gains as a result of counselling.
  4. However, Dr Bannister was also of the opinion that the respondent continues to present with some outstanding treatment needs in relation to criminogenic factors. In particular, the respondent's history of transactional relationships (i.e. engaging with others for the purpose of meeting an objective or seeking a particular outcome) is likely to continue to cloud his connections with others. In Dr Bannister's opinion, this means that the respondent would benefit in treatment from further emphasis on internalising his locus of control, improving his insight into the underlying factors of his offending, and continuing to address persevering cognitive distortions. He noted that the respondent would require consolidation of the treatment gains made during counselling, which would optimally be achieved, once he is released into the community, through reinforcement as a result of successful practical application.
  5. Whilst Dr Bannister found evidence that the respondent remained somewhat defensive, as demonstrated by his wavering insight in his sessions with Ms Place, he concluded that the respondent had maintained an apparently genuine commitment to treatment, despite the fact that he probably felt threatened at times during the process. Dr Bannister also found that the respondent had been able to exhibit a capacity for self‑reflection and respond to appropriate challenges during counselling. He concluded, as did Ms Place, that the challenge for the respondent, once released into the community, would be to translate apparent treatment gains into practical behavioural change. He recommended that the respondent continue his treatment with Ms Place whether in the community or in custody.[80]
Dr Wojnarowska's updated assessment of the respondent STATIC-99R and PCL-R
  1. Dr Wojnarowska said that the respondent's scores on the STATIC‑99R and the PCL‑R had not changed since she assessed him in 2018.[81] She would not expect those scores to change, as the STATIC‑99R relies predominantly on historical factors and the PCL‑R looks at certain psychopathic traits which are present in people throughout their lives and are unlikely to change significantly.[82]
  2. The respondent's score on the STATIC‑99R places him in the 'below average' risk category for sexual recidivism. In routine samples of persons with the same score as the respondent, the sexual recidivism rate within a period of 5 years is between 3.3% and 4.7%. As Dr Wojnarowska explained in her report:[83]
This means that out of 100 sexual offenders with the same risk score, 4 would be charged or convicted of a new sexual offence after 5 years in the community. Conversely, 96 would not be charged or convicted of a new sexual offence during that time period.
  1. However, Dr Wojnarowska noted that the STATIC‑99R factored in the respondent's age at release, which reduces his STATIC-99R score by 3.
  2. At the Division 2 Hearing, Dr Wynn Owen gave evidence that the reduction of risk due to age in the STATIC‑99R test should not apply to the respondent, given that he reoffended just a year after release from prison, when he was aged 63 years.[84] Dr Wojnarowska acknowledged that the respondent reoffended at that time in very similar circumstances to his offending between 2008 and 2011. She noted that people who are sexually deviant, and have a particular interest in young people, tend to keep offending despite their age. There is no linear decrease in their risk.
  3. The respondent did not receive a significant score on the PCL‑R and does not reach the threshold for a diagnosis of psychopathy. However, Dr Wojnarowska noted that the respondent's propensity for manipulation, which is a relevant consideration in the PCL-R, is a significant factor for managing him in the community.
  4. In her report for the Division 2 Hearing, Dr Wojnarowska indicated that, overall, when the static and dynamic risk factors of the RSVP were considered, the respondent posed a high risk of sexual reoffending unless subject to an order under the DSO Act. At the same hearing, Dr Wynn Owen indicated that the respondent was at an 'above average risk or greater' of sexual reoffending.
  5. As I noted earlier, the RSVP contains static and dynamic factors. By definition, it is to be expected that the static factors, which reflect aspects of the respondent's previous offending, will have remained the same. Therefore, Dr Wojnarowska reported that the respondent's scores in respect of Chronicity of Sexual Violence, Diversity of Sexual Violence, Escalation, Psychological Coercion in Sexual Violence and Physical Coercion in Sexual Violence, all of which are static factors, had not changed since the last assessment. In light of the manner in which the hearing was conducted, it is not necessary to discuss the details of those findings.
  6. In relation to the dynamic factors within the RSVP, Dr Wojnarowska noted that the following factors remained unchanged: sexual deviance, social adjustment and manageability.
  7. Regarding manageability, problems still continue, as that factor is affected by the respondent's sexual deviance.[85] The fact that the respondent, when released to the community in the past, has utilised manipulation and a high degree of deceit in his dealings with members of the community and facilitators of previous programs is a major concern when considering whether his risk can be managed adequately in the community.
  8. Dr Wojnarowska noted that any change in the respondent's manageability within the community, in light of his treatment in custody, is yet to be tested. The respondent's problem with supervision is an identified risk.[86]
  9. Regarding sexual deviance, the respondent's behaviour indicates a sexual interest in post-pubescent females aged 14 to 17. The respondent admitted to Dr Wojnarowska that his preference is unchanged. Dr Wojnarowska noted that individuals with sexual deviance, who have sexually offended, are more likely to sexually offend in the future.
  10. Regarding social adjustment, the respondent does not plan to search for an intimate partner. It is of significance also that the respondent still has little social support from non‑intimate contacts. His sources of support are restricted to his parents, a brother and two family friends, one of whom was due to relocate to Tasmania in August 2020, although, at the hearing, it was uncertain when that would occur, due to the restrictions resulting from the COVID‑19 pandemic.
  11. Dr Wojnarowska noted that the respondent's score on some of the dynamic factors had changed. Those factors included: Extreme Minimisation/Denial of Sex Offence; Problems with Self Awareness, Problems with Stress and Coping; and Problems with Treatment. The scoring is based on whether the factor is present or not present.
  12. Dr Wojnarowska noted that the factor of Extreme Minimisation/Denial of Sex Offence had changed and was not present at the time of the assessment. The respondent told Dr Wojnarowska that he is a danger to the community if he does not engage with his counsellor and if he is not supervised. Dr Wojnarowska found this to be a positive development for the respondent, which influenced the change in her ultimate recommendation.
  13. Dr Wojnarowska said that during the interview, in discussing his 2017 offending, the respondent admitted that he was sexually attracted to the victim, that the offence was of a sexual nature and that he accepted full responsibility for that offence.[87]
  14. However, although the respondent appears to have accepted responsibility for earlier offences, Dr Wojnarowska noted that the respondent showed some justification for that offending. For example he said that his 1977 offence when he had sex with a 15‑year‑old female could be viewed as culturally justifiable, stating, '[It] was a different generation, it wasn't a big deal, I always had young girls in my cars back then.'[88] Further, when questioned about the details of his offences, there was still some discrepancy between his version and accepted facts: for example, he still disputed that he did actively seek the victims.
  15. Regarding Problems with Self Awareness, Dr Wojnarowska found improvement. The respondent demonstrated that he is aware of the fact that he remains at high risk of reoffending if a certain degree of control is not in place and a high degree of support is not offered to him in the community.
  16. Regarding Problems with Stress and Coping, Dr Wojnarowska was of the opinion that this remains an area in which the respondent requires ongoing psychological treatment.
  17. Dr Wojnarowska noted that the factor of Problems with Treatment has improved in an incremental manner. The respondent has engaged positively with treatment, because he has been motivated. Dr Wojnarowska said that was confirmed by Ms Place, with whom Dr Wojnarowski had a long discussion about the respondent's treatment.[89] Dr Wojnarowska noted that the respondent had not missed appointments and was developing a degree of trust in his therapeutic relationship with Ms Place.
  18. There were no factors in the RSVP that became worse since Dr Wojnarowska's previous assessment.[90]
  19. Dr Wojnarowska confirmed that the respondent does not have a psychopathic personality disorder or a major mental illness.
Risk scenarios
  1. The assessment of risk of sexual reoffending in accordance with the instruments used by Dr Wojnarowska, requires the practitioner to identify the most likely scenario for reoffending and to consider the potential for escalation of offending. It would be expected that the scenarios will be informed by the circumstances of the respondent's previous offending, with adjustment for changes in the circumstances in the event that he were to return to the community after his period of detention. Accordingly, it would be expected that the sexual offending would occur after a period of grooming of the victim.
  2. Dr Wojnarowska was of the opinion that the respondent's most likely scenario of reoffending would be that he would frequent places where homeless youth might gather, for example, areas within the city, parks and shopping centres. He would introduce himself as something of a father figure and he would engage in grooming of a child he would befriend. The grooming would occur over 'some time' before the respondent would be able to have a sexual relationship with the child.
  3. Whereas in the past the respondent was able to use financial enticements to lure victims, the fact that he is not likely to have much money when released from prison would mean that the respondent would use some other form of enticement, such as offering advice, a place to stay or an inexpensive gift. Dr Wojnarowska was of the view that the respondent could adapt and change the way in which he would approach a teenage girl for the purpose of enticing her into a relationship that would enable him to commit a sexual offence.
  4. In Dr Wojnarowska's opinion, the respondent is not the type of offender who would abduct a victim for the purpose of sexual offending or who would otherwise attempt to engage in sexual activity without engaging in grooming of the child. This has significance for the manageability of the respondent's risk within the community pursuant to a supervision order. That is because the constraints on the respondent's liberty within the community and the monitoring and supervision to which he would be subject would be designed to prevent the respondent from engaging in the grooming of children and to enable the authorities to identify at an early stage if he was engaging in conduct that would put him at risk of recidivism.
Treatment gains identified by the respondent
  1. Dr Wojnarowska's opinion at the Division 2 Hearing that the respondent's risk could not be adequately managed in the community pursuant to a supervision order relied significantly on the fact that he had not yet engaged in suitable treatment and had not demonstrated the insight, awareness or skills necessary before such an order could be used effectively in the management of his risk. In outlining Dr Wojnarowska's findings under the RSVP, I have identified the areas in which she considers the respondent has made gains since the Division 2 Hearing.
  2. In determining whether a person who has received psychological treatment has made gains, in particular gains into his insight, an important consideration is that person's perception of treatment and what gains he is able to articulate.
  3. During Dr Wojnarowska's interview with the respondent, he said that he had made the following treatment gains:[91]

(i) Acceptance of offending and the process of grooming associated with that.

(ii) Acceptance that he is a sexual offender and will be viewed as such by community.

(iii) Being aware of 'red flags' that he may face in the community, being circumstances that place him at high risk of reoffending.

(iv) Being aware of how he destroyed other people's lives.

(v) Acceptance of his sexual preference and a commitment not to act on his sexual urges.

(vi) Being aware of the feelings and needs of others.

(vii) Understanding that he requires a structure in his life and that he needs to keep a diary of his sexual thoughts/feelings and a separate diary of movements within the community.

(viii) Understanding how to regulate his emotions and how his moods are a risk factor in his offending.

(ix) Improving his communication style.

(x) Gaining insight into who he is as a person: 'the other side of me'.

(xi) Learning how to appropriately express his emotions.

  1. Dr Wojnarowska noted that these were spontaneous statements made by the respondent, which supports the conclusion that his treatment gains might have started to become internalised.[92]
Dr Wojnarowska's conclusion
  1. Overall, Dr Wojnarowska concluded that, since her previous assessment of the respondent, he had made progress. In particular, he had made treatment gains in the areas of insight, self-awareness and acceptance of responsibility.
  2. Taking into account both her clinical assessment and the application of the RSVP and PCL‑R, Dr Wojnarowska was of the opinion that, while the respondent continues to present a risk of reoffending sexually in the absence of constraints, the risk can now be managed in the community,[93] which is different to the opinion she held when she assessed the respondent for the Division 2 Hearing.[94]
  3. I will return in more detail to Dr Wojnarowska's conclusion later in these reasons. Before doing so, I will elaborate upon and consider the differences in the views expressed by Dr Wojnarowska and Dr Bannister in respect of the outstanding treatment needs identified as significant by Quinlan CJ in Rao in determining that the respondent could not be adequately managed in the community under a supervision order at that time.
Response to outstanding treatment needs identified at the Division 2 Hearing Insight and self-awareness
  1. The respondent's need to improve his insight and awareness in respect of his sexual offending was considered by Quinlan CJ to be crucial.[95] Dr Bannister and Dr Wojnarowska differed to some extent in their assessments of the respondent's progress in that area of treatment. It is fair to say that Dr Bannister's assessment was less positive than Dr Wojnarowska's assessment. However, as will appear from the following analysis, both experts identified meaningful progress in the respondent's insight and awareness.

Dr Wojnarowska

  1. I referred briefly at [137] above to Dr Wojnarowska's opinion in relation to the factor of problems with self-awareness within the RSVP.
  2. In oral evidence, Dr Wojnarowska noted that the respondent has now accepted on a cognitive level that his primary sexual interest is in adolescent females.[96] It appears from Dr Wojnarowska's evidence that such acceptance and the respondent's awareness that sexual interest in children is wrong from the community's perspective is significant in assessing whether his risk can be managed, irrespective of 'whether he accepts that it is wrong and not culturally acceptable'.[97]
  3. In Dr Wojnarowska's opinion, although the respondent's sexual interest in female teenagers is still quite prominent, and not likely to change in the foreseeable future, he has developed some insight into the wrongfulness of his offending. He has also developed a positive therapeutic relationship with Ms Place, which should be conducive to the insights the respondent has gained and to the further development of his self-awareness. Dr Wojnarowska was not sure whether the respondent will ever be capable of developing full insight into the wrongfulness of his offending. What matters, however, is whether he is prepared to stop himself from acting on his deviant sexual interest, given that he understands the wrongfulness of such behaviour from society's perspective and the consequences of his offending.[98] It is apparent from the evidence that he understands those consequences include the deleterious impact of such offending on his victims.
  4. Dr Wojnarowska concluded that, in in the course of the respondent's counselling with Ms Place, he had taken full responsibility for his offending and demonstrated insight into the fact that he groomed, manipulated and targeted his victims.[99]
  5. Dr Wojnarowska said that, when interviewing the respondent, there was some evidence of impression management, and that the respondent tried to present himself in the best possible manner. This is cause for concern, given that any indications of improvement articulated by the respondent may be influenced by his attempt at impression management, particularly as he has admitted to Dr Wojnarowska that he previously lied to report writers, including Dr Wojnarowska: 'I would say anything to get out; I thought I was smart and could manipulate everyone.'[100]
  6. Dr Wojnarowska also acknowledged that the respondent is capable of learning whether Ms Place's particular responses during therapy are positive responses, which may affect what he says. However, in Dr Wojnarowska's opinion, 'the important issue is that he verbalises that what he has done was wrong and unacceptable', which she considers to be a new development.[101]
  7. Dr Wojnarowska did not see any defensiveness from the respondent in her interview with him. She was asked by me about the passage in Dr Bannister's report in which he referred to what the respondent had said to Ms Place about attempting to conceal his negative reaction to being challenged in a counselling session. Dr Wojnarowska said she was aware of that matter, and considered it to be an important factor of which Ms Place was aware and which would need to be addressed in the respondent's psychological treatment.[102] She said that it was an issue that potentially could lead to the respondent 'withdrawing' from therapy and breaking the trust and relationship he has with Ms Place, and he could theoretically continue therapy without letting Ms Place know that he is disengaged. However, in terms of Dr Wojnarowska's overall impression of the outcomes of the therapy with Ms Place, she had not seen anything to suggest that the respondent had withdrawn in that manner.[103] It might also be thought to be of some significance that it was the respondent who raised with Ms Place in a therapeutic setting that he might conceal negative emotions evoked by challenges in therapy. In my opinion, that tends to reinforce the degree of trust the respondent has in the therapeutic relationship and the capacity Ms Place has to elicit information about issues that may affect the respondent's engagement in the process.
  8. As I noted above, Dr Wojnarowska was mindful of the fact that the respondent has admitted that in the past he misled his counsellors and the facilitators of programs in order to be released. She considered that the respondent's ability to manipulate is unlikely to change.[104] While it is likely that the respondent will engage in some degree of manipulation if supervision is not adequate, Dr Wojnarowska noted that human behaviour is complex and one cannot say to what extent he would be willing to manipulate the system if released into the community.[105] In Dr Wojnarowska's opinion, having regard to the respondent's offending characteristics, he could be managed in the community on the conditions that have been proposed, notwithstanding concerns about his manipulative traits.[106]

Dr Bannister

  1. I have set out in detail at [103], [106] ‑ [111] and [113] ‑ [120] above Dr Bannister's review of the respondent's treatment and the gains he assessed the respondent to have made.
  2. In summary, Dr Bannister was of the opinion that the respondent had made gains in his insight and his ability to articulate that insight, but at times the extent of that insight was brought into question because of a reversion to minimisation of his offending and the expression of cognitive distortions.
  3. Much of the examination-in-chief of Dr Bannister proceeded in the form of a number of propositions being put to Dr Bannister (more akin to a cross-examination, without objection) directed to emphasising those aspects of the evidence that tend to raise doubts about the genuineness or durability of any insight and awareness gained by the respondent in treatment. There was particular focus on the respondent's manipulative traits, his past deception of facilitators of treatment programs conducted while he was continuing to offend, his cognitive distortions and minimisation of his offending that appear to have persisted during at least some of the time that he has been receiving counselling from Ms Place, and the inconsistencies in his accounts of his prior offending. Of course, Dr Bannister accepted that all of those matters are of concern in assessing whether the respondent could be adequately managed in the community, although Dr Bannister made the point that his role in the proceedings was not to assess the respondent's risk of sexual reoffending.
  4. However, Dr Bannister maintained that that the respondent had demonstrated improvement in the areas discussed earlier. In particular, the respondent was able to articulate improved insight into the factors underlying his offending. He was able to identify a range of high-risk scenarios and describe how he planned to manage them, and he was able to discuss elements of effective problem-solving and emotion management.[107]
  5. Dr Bannister was of the view that, to the extent that Ms Place had indicated that some of the respondent's apparent gains in insight had not been maintained, he considered it 'probably more accurate to say that ... what was not maintained was [the respondent's] willingness or capacity to articulate [the insight]', perhaps due to defensiveness.[108] It did not necessarily mean the insight was lost.
  6. Dr Bannister noted that he was assessing the treatment the respondent had received over the course of 31 sessions for a period of 10 months, and what he was interested in was how he found the respondent to be during the assessment. He would expect the respondent to be much better than when he first started treatment.[109] He was looking to whether there had been improvement in the respondent's insight over time. Further, Dr Bannister said he was looking for themes that demonstrated insight, such as the respondent's identification that he selected particular victims because of their vulnerability, rather than specific points about his offending, about which there may have been inconsistencies. As I understood Dr Bannister's evidence, while there may have been the appearance of fluctuations in the respondent's insight from session to session, the broader picture emerging at the point of his assessment may be of certain insights that have been maintained, and that was the case.
  7. Dr Bannister dealt with the problem posed by the respondent's manipulative traits as follows:[110]
How do we know when he's manipulating the system or whether he is genuinely expressing what is happening with him? --- Yes. Well, the reality is that we can't, but the reality is also that both those things may be occurring. It's not necessarily one or the other. Like I said ... he has had quite a number of years of his life engaging with the world in a very transactional way, and ... to some extent, that's likely to be his default. And what I noticed that Ms Place did in the treatment of him was engage in a significant amount of challenging, be that of cognitive distortions or externalised locus of control, or these sort of issues, and it's those sort of things that really bring someone's genuineness under the microscope, if you will.
  1. Dr Bannister went on to describe the conundrum in respect of assessing the genuineness of treatment gains apparently acquired in custody, saying:[111]
But you're absolutely right that certainly while someone remains in prison and isn't in the community to have those articulated treatment gains tested, it is impossible to know for certain.
  1. However, Dr Bannister also made the point that:[112]
Even with someone like [the respondent] who has been used to or has tended to manipulate people for a long period of time, it still is difficult to do that successfully and I'm thinking particularly in terms of manipulating, for example, Ms Place over 31 sessions of at least an hour’s worth of counselling. It's difficult to do that successfully for any length of time and, certainly, knowing, as I mentioned before, Ms Place does and did so – very much so – challenge [the respondent] on a number of different inconsistencies and cognitive distortions and these sorts of things.
  1. In her Community Supervision Assessment, Ms Comery states that she made contact with the respondent's mother, who 'appeared to have a sound understanding of [the respondent's] offending and stated she was 'very disappointed in [her] son for taking advantage of young unfortunate girls like that'.[113] Ms Comery reported that the respondent's mother indicated that she had noticed a change in the way that the respondent spoke about his past offending over the previous 12 months, explaining that previously the respondent blamed the victims for 'leading him on' or 'being promiscuous', but that 'he now blames the right person and that is himself.'[114] When asked if that information had any significance, Dr Bannister said:[115]
It does. It certainly suggests ... that he does have an increased internalised locus of control. And to explain further, the reason that's important, effectively, is because it means that he then feels that he has some agency over his behaviour as in it's ... within his powers to change outcomes. And that's in turn important because it speaks to what ultimately we would want to see someone designated a DSO behaving like at the end of a supervision order which is to demonstrate a degree of self-management. And certainly if they are taking the position that the position they find themselves in is the responsibility of everybody but them it certainly takes that responsibility away.
  1. The respondent had indicated to Dr Bannister that he felt he had 'one last shot' to demonstrate to his parents that he could lead a law‑abiding life,[116] which Dr Bannister agreed reflected a sense of the respondent having an obligation to demonstrate a change of behaviour to his parents.[117] Of course, there may be an aspect of impression management in that regard, but there are at least three matters that suggest otherwise. First, the account given by the respondent's mother to Ms Comery suggests that the change in the way the respondent spoke about his offending occurred gradually, consistent with developing insight. Secondly, there is nothing to suggest that the respondent believed it would assist his cause, in terms of being released into the community, if he were to demonstrate insight to his parents. Thirdly, it would be expected that the kind of acknowledgement described by the respondent's mother would have been embarrassing and shameful for the respondent, and would not have been easy. I am inclined, therefore, to accept that it was a genuine demonstration of insight.
  2. Dr Bannister went on to say that the improvements that the respondent appears to have made thus far suggest that he will benefit comparatively greater henceforth, in terms of treatment, if he is in the community in an environment where he is able to achieve the practical application of the 'apparently made gains'.[118] Such practical application of his insights and acquired skills should reinforce and consolidate the treatment gains.[119] Dr Bannister agreed with the proposition in cross‑examination that the respondent had started to internalise the gains he had made and it was necessary to see him put them into 'concrete action'.[120] While the respondent remains in prison, the matters discussed are in effect 'abstract concepts', which makes it more difficult to achieve the consolidation.[121]
  3. Dr Bannister was of the view that the respondent should continue to receive counselling from Ms Place, given the therapeutic relationship that had developed, and that was what was contemplated. He envisaged that, if the court made a supervision order, the emphasis of treatment in the period of at least 21 days before the order could commence would be in relation to the practical aspects of the respondent returning to the community.
The respondent's development of skills to manage his risk
  1. In Rao, Quinlan CJ also identified as a treatment need the respondent's need to develop skills to manage his risk. It is apparent from the evidence of both Dr Wojnarowska and Dr Bannister that the respondent was able to identify high risk scenarios and to articulate measures he could take to prevent himself from re-offending, including elements of effective problem-solving and management of his emotions. In my opinion, these are the sorts of skills the respondent needed to develop. Neither of the experts suggested the measures articulated by the respondent were lacking detail or otherwise inadequate as risk managements tools. Of course, the skills are yet to be tested and, no doubt, there is further work to be done to consolidate the skills the respondent has acquired and for him to develop additional skills. However, he has taken steps in the right direction, as Quinlan CJ had indicated was necessary. Further, the adequacy of the skills the respondent has developed, in conjunction with his insight and awareness, needs to be assessed in the context that, if released into the community, the respondent will be subject to significant monitoring and constraints and will also have significant support in the form of ongoing treatment and supervision.
Whether the respondent's risk can be managed in the community
  1. As I noted earlier, Dr Wojnarowska was of the opinion that the respondent's risk of committing a serious sexual offence (hence, a relevant serious offence) could now be adequately managed in the community pursuant to a supervision order. In her oral evidence, she confirmed that was so, having regard to the respondent's offending characteristics (which have involved grooming rather than opportunistic offending) and the conditions that are proposed for the supervision order.[122] Such conditions would include protective factors that would limit the respondent's opportunity to reoffend, such as the need for the respondent to continue engaging in psychological counselling once a week (which was a definite requirement) and the need for him to have regular contact with his SCCO and the police.
  2. As I noted earlier, Dr Bannister did not express a view about whether the respondent could be managed in the community, as it was not his role in these proceedings to assess the respondent's risk, but he was of the view that the further treatment of the respondent would be more productive within the community while the respondent is subject to a supervision order, as that would enable him to put into concrete action the gains he has made. As I noted earlier, Dr Bannister was of the view that the respondent's treatment should continue with Ms Place, so as to capitalise on the existing therapeutic relationship.
Accommodation availability
  1. In the event that the respondent is to be released on a supervision order, appropriate accommodation must first be found for him. Ms Comery, the respondent's SCCO, indicated in her Community Supervision Assessment report that supported accommodation, provided by an agency that makes accommodation and support services available to persons released on supervision orders, could become available in the near future.[123]
  2. When the review proceeded on 25 March 2020, there remained doubt about the availability and suitability of accommodation. After the adjournment of proceedings to 23 April 2020, further information became available that confirmed the availability and suitability of supported accommodation. A desktop spatial analysis was conducted by WA Police of the proposed accommodation. That is to say, the police had regard to various sources of information in respect of the location of the proposed premises, including the proximity to schools, churches, shopping centres, other public buildings and public spaces (such as parks, playgrounds, clubs and sporting complexes), and information about other residents in the area. As is usually the case in proceedings such as these, it is almost impossible to find suitable accommodation that does not have some issue related to proximity to places or people that may be of concern in terms of a respondent's risk factors. It is recognised that some such factors must be dealt with by the implementation of protective measures consistent with the terms of a supervision order that will prevent or minimise those factors from having an impact on the respondent's risk of reoffending. For instance, in the respondent's case, exclusion zones can be implemented by the respondent's SCCO to prevent the respondent going near places where he might come into contact with adolescent girls.
  3. The court and the respondent were advised by correspondence from the DPP, prior to 23 April 2020, that suitable accommodation, within the sort of parameters I have mentioned, would be available to the respondent and would be ready within 21 days. Ms Comery proposed various exclusion zones.
  4. The correspondence from the DPP noted that Dr Wojnarowska was informed about the proposed accommodation. She was of the view that the accommodation would be suitable, and she supported the exclusion zones proposed by Ms Comery. She noted that she had not supported the accommodation that had been proposed initially, because it was near a high school, and female students attending the high school would fall within the group of persons in whom the respondent would have a sexual interest. Although there is a primary school in the vicinity of the newly proposed accommodation, Dr Wojnarowska did not consider that to be of concern, as the respondent has never shown an interest in pre-pubescent girls.
  5. Although there is bushland in the vicinity of the proposed residential premises, and illegal sexual activity could occur within that area, Dr Wojnarowska emphasised again that the respondent's offending behaviour involved grooming rather than opportunistic offending, so the risk of him offending in the bush was not such as to render the premises unsuitable. Of course, an exclusion zone could be implemented to prevent the respondent from being in that area.
  6. Finally, in relation to exclusion zones, Dr Wojnarowska was of the view that, given the risk scenarios she had identified, involving the potential grooming of either homeless or drug addicted victims, the whole of the Perth CBD and the Northbridge area, together with any parks around those areas should be the subject of exclusion zones, as youths congregate there.[124]
Community supports
  1. Ms Comery also gave evidence relating to the respondent's personal circumstances and supports at the time of the hearing.
  2. The respondent had elderly parents and his father required surgery in the near future. It was hoped that the respondent would eventually assist with the care of his father. In short, the respondent will have some family support. As I noted earlier, he appears to be intent on making amends with his parents, and his mother has obviously remained in contact with him and noticed a change in his attitude.
Proposed supervision order
  1. A draft supervision order, substantially in the terms of the annexure to these reasons was prepared by the applicant.
  2. At the hearing on 25 March 2020, Dr Wojnarowska indicated that she had read and approved of the proposed conditions of that draft supervision order. She believed the proposed conditions would be appropriate for the respondent.[125]
  3. The draft order originally contained a condition that would have prevented the respondent from being in a vehicle with any female. That was amended to refer to females under the age of 18 years, as there is no suggestion in the respondent's history that he would commit a sexual offence against an adult female. As the age of consent is in effect 16 years, any sexual contact by the respondent with a female between the age of 16 years and 18 years would ordinarily not be an offence unless the sexual act is committed without the female's consent. However, the respondent has previously been in situations in which he has had authority over the victim of his offending through employment, in which case an offence would be committed if the child is between the age of 16 and 18 years. Having regard to the respondent's history, it is appropriate that he be prevented from having contact with females under the age of 18 years unless approved by his SCCO. Dr Wojnarowska considered the conditions in that regard to be appropriate.
  4. Dr Wojnarowska was also of the opinion that the condition requiring the respondent to maintain a diary was necessary. I agree. The keeping of a diary will enable the respondent to maintain self‑awareness and will enable his psychologist and the authorities to monitor his movements, activities and, one might anticipate, his thought processes.
  5. The proposed supervision order includes a curfew condition. Dr Wojnarowska considered that it would assist the respondent to have a particular time set in the condition in respect of the curfew. That is because sometimes he has quite 'rigid black and white thinking' and it could provide him with a structure.[126] However, it seems to me that the same structure can be achieved by the SCCO setting the curfew, and allowing some flexibility when there may be good reason to change it. If he is released on a supervision order, the respondent must take responsibility for compliance with all of the requirements, including those that are put in place by way of lawful orders.
  6. Dr Wojnarowska agreed it would assist the respondent if the condition prohibiting access to social media, specified the social media.
  7. Dr Wojnarowska did not think that there were any unnecessary conditions included in the proposed supervision order.
  8. The terms of the supervision order largely speak for themselves. In my opinion they address the various risk factors that have been identified and there is nothing that unnecessarily impinges on the respondent's freedom. The conditions include protective measures for the respondent's previous victims. In the event that he were to come into contact with them, the responsibility properly falls on the respondent, in my view, to avoid contact and remove himself from the situation. The obligation that he avert his gaze from the victim is appropriate to avoid inadvertent distress being caused to the victim in the event of eye contact.
The applicant's submissions
  1. The applicant submitted that the respondent remains a serious danger to the community (pursuant to s 7(1) of the DSO Act). That submission can now be taken to be one that the respondent is a high risk serious offender.
  2. The applicant submitted that the court should affirm the CDO. In the applicant's submission, the respondent's risk of serious sexual offending cannot adequately be managed by a supervision order in the community with conditions as proposed, despite the comprehensive and restrictive nature of the conditions.
  3. The applicant submitted that the respondent had not discharged his burden of proving on the balance of probabilities that he will substantially comply with the standard conditions of a supervision order.
  4. The applicant submitted that although the respondent has made some gains in the course of individual counselling, he still has outstanding treatment needs that are directly relevant to the question of whether he would substantially comply with the standard conditions of a supervision order under the HRSO Act.
The respondent's submissions
  1. As I noted earlier in these reasons, the respondent conceded that he remains a 'serious danger to the community' within the meaning of s 7(1) of the DSO Act. That concession can now be taken as a concession that the respondent is a high risk serious offender.
  2. However, the respondent contended that the evidence establishes that a supervision order is appropriate. He contended that I can be satisfied on the balance of probabilities that he will 'substantially comply' with the standard conditions of a supervision order.
  3. The respondent did not take issue with any of the proposed clauses in the draft supervision order and agreed they were all necessary with minor amendments, which are now reflected in the Annexure in relation to there being an exclusion zone to cover the CBD and Northbridge as recommended by Dr Wojnarowska, the amendment of 'any female' to 'any female under 18' in condition 35, and the specification of the social media in condition 45.
  4. The respondent submitted that he now has the benefit of treatment he was lacking when he appeared before Quinlan CJ at the Division 2 Hearing.
  5. The respondent accepted that he still has some treatment needs and will need to continue counselling even if released on a supervision order, ideally with Ms Place.
  6. The respondent further submitted that there is suitable accommodation available.
  7. Finally, the respondent did not contest that the supervision order should be for a minimum of 5 years.
Conclusions The respondent is a high risk serious offender
  1. Having considered 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 pubescent 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
  1. 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, provided that it ensures an adequate degree of protection of the community.
  2. However, 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.
  3. I an satisfied, on the evidence I have set out above, that the respondent has made significant progress in treatment since commencing his individual counselling. In my opinion, he has substantially addressed the main concerns identified by Quinlan CJ in Rao, in respect of insight, awareness and the development of skills to enable his risk to be managed pursuant to a supervision order.
  4. The evidence in the hearing establishes that the respondent has undertaken individual counselling over a period of 10 months for a total of 31 sessions, and that, although he still engages in impression management from time to time, he has engaged in a genuine manner, with a commitment to addressing his treatment needs. The evidence establishes that he has made several treatment gains, including some gains in the development of insightinto, and awareness of, his sexual offending and his sexual interest in adolescent girls.
  5. I do not overlook the fact that the respondent has been identified as having manipulative traits and that he has previously engaged in manipulative behaviour in dealing with persons tasked to provide him with counselling (for example, when he failed to advise his counsellor in 2013/2014 that he was having a relationship at the same time as he was undergoing counselling). However, both Dr Wojnarowska and Dr Bannister have taken the respondent's manipulative traits into account in arriving at their opinions. Dr Wojnarowska took them into account in assessing whether the respondent meets the criteria for psychopathy. Having found that he does not meet the diagnosis of psychopathy, she nevertheless took the respondent's capacity for manipulation into account in assessing the genuineness of his treatment gains and in emphasising the need for adequate supervision, given the potential for the respondent to manipulate the system if the supervision is not adequate. Dr Wojnarowska made the point that when the respondent was previously in the community, he was not subject to the kind of supervision and monitoring to which he would be subject under a supervision order. The scope for manipulation will be significantly diminished if the respondent is subject to the comprehensive conditions proposed in this case.
  6. When the respondent was previously in the community on parole, he was able to deceive his counsellors, and manipulate his counselling, because what he was saying could not be checked against other information (such as GPS monitoring) or observations made by persons who will be responsible for monitoring him under a supervision order. Further, at that time there were no specific conditions in place (such as exclusion zones and comprehensive conditions preventing him from having contact with children) which put him in jeopardy of being returned to custody before he could have an opportunity to develop a relationship with an adolescent female, if he were to breach any of the conditions.
  7. As Dr Wojnarowska said, the psychopathic traits and potential for manipulation are static, lifelong factors, which makes it difficult to assess whether an offender is saying things that suggest insight simply because he knows what is expected. It makes it difficult to assess future risk, but that does not mean that a meaningful assessment cannot be made for the purpose of determining what form of restriction order is necessary to ensure the adequate protection of the community against the otherwise unacceptable risk that the respondent will commit a serious offence.
  8. In the present case, the question is whether the level of risk is such that it can be managed in the community pursuant to a supervision order in the terms that have been proposed.
  9. Notwithstanding fluctuations in the respondent's manifestation of treatment gains during the course of treatment, when he came to be assessed by the experts for this hearing, he demonstrated improved insight into his offending and the impact of his offending on his victims, awareness of the factors that put him at risk of reoffending, and a capacity to identify practical measures capable of being put into practice to manage his emotions, solve problems in his life as they arise and generally manage the risk factors so as to avoid relapsing into behaviour that would lead him to sexual offending.
  10. The applicant argues that statements made by the respondent that suggest insight should be regarded with scepticism when he has demonstrated a capacity for manipulation in the past. That contention places the respondent in an impossible position, given that, while he remains in custody, improvement in his insight, awareness and skills can only be assessed by considering what he is saying.
  11. As Dr Wojnarowska said, it would be very hard to assess the actual improvement in insight and self-awareness whilst the respondent is still in prison.[127] If the respondent is released subject to a supervision order, his statements will be tested against his actions, which will be managed within the constraints of the terms of the supervision order. The sanction for breaching any of those terms, if the breach were regarded as putting the respondent at risk of reoffending, would be an immediate return to custody. For example, if he were to access inappropriate material on the internet, or take photographs of female teenagers, or go to places where he is likely to encounter female teenagers without permission, or form inappropriate associations, such conduct is likely to constitute a breach of the terms of the proposed supervision order and would put him at risk of being returned to custody. It is precisely such terms of a supervision order that enable the authorities to monitor whether the risk of the respondent gaining access to teenage girls for the purposes of sexual offending is beginning to manifest. They provide the 'red flags' that the respondent himself spoke about to Dr Wojnarowska.
  12. Ultimately, I am persuaded by the opinion of Dr Wojnarowska in respect of the respondent's risk, in combination with the views of Dr Bannister in respect of the respondent's treatment gains and the desirability that he continue his treatment in the community to consolidate those gains, 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, and that his risk can be adequately managed in the community pursuant to such an order. In reaching satisfaction on the balance of probabilities that the respondent will substantially comply with the standard conditions, I have also taken into account the respondent's good standing as a prisoner. I am mindful that satisfaction in respect of substantial compliance includes being satisfied that it is more likely than not that the respondent will not commit a serious offence while subject to the supervision order.
  13. I am satisfied that the proposed conditions of the supervision order 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).
  14. The suite of conditions addresses the various factors that contribute to the risk that the respondent would commit a serious offence against children. They allow for close monitoring of his movements and his activities and strict supervision. The conditions place very stringent constraints on the respondent's ability to come into contact with adolescent 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.
  15. Otherwise, as I noted earlier, the conditions and their capacity to provide adequate protection of the community speak for themselves.
  16. 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.
Duration of supervision order
  1. Dr Wojnarowska was of the opinion that, if a supervision order is made, it should be for a minimum period of 5 years.[128] That duration reflects the period taken into account in determining recidivism rates for the purpose of determining risk under the STATIC-99R, as discussed above. It is the period within which an offender with the respondent's risk profile would be expected to reoffend if he were to relapse. The corollary is that it is a sufficient period during which the respondent should be able to demonstrate that he no longer poses an unacceptable risk of committing a serious offence if not subject to a restriction order. Of course, the assessment of continuing risk without a restriction order when a person is subject to such an order is not without its difficulty, but it is a matter in respect of which professional judgment is expected to be made for the purposes of the HRSO Act, which provides for the possibility of an application being made for a new supervision order before the expiration of the supervision order that will be made today.
  2. Having regard to all of the respondent's circumstance, including his age, and the considerations to which I have just referred, I am satisfied that, at this stage, a period of 5 years is appropriate.
Order
  1. I rescind the CDO, effective upon the coming into operation of the following order.
  2. 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 11 January 2021 for a period of 5 years.
Suppression order
  1. 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.

Annexure

_________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA ON 15 DECEMBER 2020

_________________________________________________________

The Court, having found pursuant to section 7 and section 68(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 68(1)(b) of the High Risk Serious Offenders Act 2020, for a period of 5 years from 11 January 2021, on the following conditions:

You, JAMES WILLIAM RAO, must:

STANDARD CONDITIONS REQUIRED BY THE ACT

  1. Report to a Community Corrections Officer (CCO) at the place and within the time stated in the order and advise the officer of your current name and address;
  2. Report to and receive visits from, a CCO as directed by the court;
  3. Notify a CCO of every change of your name, place of residence, or place of employment at least 2 days before the change happens;
  4. Be under the supervision of a CCO, which include complying with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
  5. Not leave or stay out of the State of Western Australia without the permission of a CCO;
  6. Not commit a serious offence as defined in the section 5 during the period of the Order;
  7. Be subject to electronic monitoring under section 31;

ADDITIONAL CONDITIONS

Residence

  1. 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;
  2. Report to a CCO at your approved address within normal business hours on the day of release from custody under this order;
  3. Report to and receive visits from a CCO at times and at places as directed by the CCO, and comply with the lawful orders and directions of a CCO;
  4. Not commence or change employment, education, training or volunteer work without the prior approval of the CCO;

Attendance at programs or treatment

  1. Consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
  2. 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

  1. Report to the Officer-in-Charge of the Sex Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate;
  2. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
  3. If requested, permit Police Officers to enter and search your residence, vehicle and/or 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;
  4. Remain at your residence and/or vehicle when Police Officers conduct a compliance search of your residence and/or vehicle pursuant to condition 16;
  5. 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

  1. Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
  2. 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

  1. 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;
  2. Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
  3. Provide details of any such contact with a victim or victims both to your CCO and to the WA Police on the next occasion you report to that person or agency;

Criminal conduct

  1. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
  2. Not commit an offence under s 202, s 203 or s 557K Criminal Code 1913 (WA);
  3. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;

Curfew

  1. Be subject to a curfew, pursuant to section 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;
  2. 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;
  3. When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;

Prevention of high-risk situations

  1. 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;
  2. 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);

  1. Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child;
  2. 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;
  3. Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with a person;
  4. Not enter or remain in or on any vehicle, including taxis (with the exception of public transport), where any female under the age of 18 years is present in or on that vehicle, unless the person is approved in advance by the CCO;
  5. If directed by the 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;
  6. 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;
  7. Not conduct computer or other electronic searches for, not collect 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. Possession of such images depicting a child or children may be authorised by a CCO;
  8. Advise a CCO of every computer or other device capable of being connected to the internet, used by you to access the Internet and the location of that device;
  9. Not delete, or cause to be deleted by another person, any data from any computer or electronic storage device in your possession without prior permission from a CCO or WA Police;
  10. With respect to any computer or telephone or device in your possession that is connected or is capable of being connected to the internet or has been used by you to access the internet, not to delete, cause to be deleted by another person, or otherwise remove or disguise any search histories or logs capable of identifying your activities on that computer or device, without the approval in advance of a CCO or Police Officer;
  11. Upon request, permit a CCO or WA Police to access any computer, telephone or other device capable of storing digital data (electronic storage device), at any location nominated by the CCO or Police, for the purpose of ascertaining your computer related activities, and provide to the CCO or 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 seeking technical advice, approval must be sought in advance from a CCO;
  12. Not provide passwords or any other means used to access any device referred to in condition 39, or any online accounts, to any person other than a CCO or Police Officer and not allow any person other than a CCO or Police Officer to access any device referred to in condition 39;
  13. Not conduct computer searches for, nor collect or be in possession of any document, paper, or any other medium used for displaying words, either in written or printed form, that describes sexual activity with a child and/or children;
  14. Not to access Facebook, Instagram, Tik Tok, Snapchat and other online social media that is frequently used by children or teenagers, unless approved in advance by a CCO;
  15. Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children, and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
  16. Not to attend concerts, events or venues frequented by children under 18 years, without the prior approval of a CCO;
  17. Not to impersonate a Police Officer or other person of apparent authority, including but not limited to fire officers, medical personnel, paramedics, security officers, teachers, and/or military personnel; and
  18. Not to enter the suburbs of Northbridge or Perth without prior approval of a CCO.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

EP
Research Orderly to the Honourable Justice Fiannaca

15 DECEMBER 2020

[1] The State of Western Australia v Rao [2019] WASC 93 (Rao).
[2] Rao [37] - [59].

[3] Exhibit 1, Book of Materials (BOM) 38 (Department of Justice 'Managements and Placement – Sentenced' report).
[4] Rao [124].
[5] Rao [113] - [114].
[6] Rao [115] - [116]; [126].
[7] Rao [117] - [118].
[8] Rao [121] - [122].
[9] Rao [131].
[10] Rao [69]; [119]; [142].
[11] Rao [14]. See also [131]; [133] - [135].
[12] Rao [141].
[13] Rao [141].
[14] Rao [134] – [140].
[15] HRSO Act, s 2(1)(a) and Compilation table.
[16] 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.
[17] HRSO Act, s 123.

[18] The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ).

[19] HRSO Act, s 28(1).
[20] BOM 97 (Dr Wojnarowska's report [19]).
[21] ZSJ [30] - [34].
[22] ZSJ [30] - [31].
[23] ZSJ [34] - [63].
[24] The State of Western Australia v Narrier [2020] WASC 349 (Narrier) [30].
[25] The relevant date for the purposes of s 64(2)(a) is 25 March 2020, the CDO having commenced on 25 March 2019.
[26] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [24], (Pindan).

[27] Pindan [25]; Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, [60], [66] - [68] (Williams); Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [20] - [25] (Steytler P & Buss JA).

[28] DSO Act, s 33(2); Pindan [27].
[29] The State of Western Australia v West [No 6] [2019] WASC 427 [21]; ZSJ [44].
[30] Narrier [40].
[31] Narrier [40].
[32] Narrier [40].
[33] Narrier [41] - [43].
[34] Pindan [27].

[35] The State of Western Australia v Latimer [2006] WASC 235, Director of Public Prosecutions (WA) v Decke [2009] WASC 312 (Decke), as cited by Hall J in Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [22].

[36] Pindan [27].

[37] Decke [14]; Williams [57].

[38] Williams [86].
[39] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
[40] Hart [52].
[41] Hart [52]; Narrier [113].
[42] Hart [50].
[43] Hart [50].
[44] The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359 (Allen).
[45] Allen [7] ‑ [11].

[46] BOM 87 (Dr Bannister's report [7]).
[47] BOM 106 (Community Supervision Assessment report, p 2).
[48] BOM 86, 91 and 92 (Dr Bannister's report, in particular the 'Reason for Referral' and 'Opinions'); ts 206.

[49] BOM 87 (Dr Bannister's Report [5]).
[50] BOM 87 (Dr Bannister's report [7]).
[51] ts 166.
[52] ts 166.
[53] ts 166.
[54] ts 170.
[55] BOM 97.
[56] ts 180.
[57] ts 203.
[58] ts 170; 201.
[59] BOM 88 at [8].
[60] BOM 88 at [8].
[61] BOM 88 at [9].
[62] BOM 88 at [11].
[63] BOM 89 at [12].
[64] ts 198.
[65] BOM 89 at [13].
[66] BOM 89 at [13].
[67] ts 188.
[68] BOM 89 at [14].
[69] BOM 89 at [15].
[70] ts 210.
[71] Dr Bannister thought it was three sessions: ts 210.
[72] BOM 89 at [16].
[73] ts 210 – 211.
[74] ts 211.
[75] BOM 90 at [19].
[76] BOM 91 at [24].
[77] BOM 91 at [24].
[78] BOM 91 at [27].
[79] BOM 90 at [19] - [22].
[80] BOM 91 ‑ 92 at [29] ‑ [31].
[81] ts 167.
[82] ts 167.
[83] BOM 100 at [34].
[84] Rao [63].
[85] ts 168.
[86] ts 168.
[87] BOM 101 at [39].
[88] BOM 97 at [20].
[89] ts 166.
[90] ts 184.
[91] BOM 96 ‑ 97 at [16].

[92] ts 183.
[93] BOM 103.
[94] ts 166.
[95] Rao at [140].
[96] ts 167.
[97] ts 167; 181.
[98] ts 167.
[99] BOM 99 at [29].
[100] BOM 97 at [19].
[101] ts 182.
[102] ts 187.
[103] ts 188.
[104] ts 190.
[105] ts 191.
[106] ts 192.
[107] ts 195.
[108] ts 196.
[109] ts 197.
[110] ts 201. The transcript has an error, referring to Ms Place as 'misplaced' which distorts the meaning of the answer. I have made the appropriate correction on the basis of my notes and recollection of the evidence.
[111] ts 202.
[112] ts 202.
[113] BOM 107.
[114] BOM 107.
[115] ts 204.
[116] BOM 91 at [27].
[117] ts 209.
[118] ts 206.
[119] ts 207.
[120] ts 207.
[121] ts 207.
[122] ts 192.
[123] BOM 106.
[124] ts 173, 176 ,178.
[125] ts 176.
[126] ts 184.
[127] ts 169.
[128] ts 174.

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