Supreme Court of Western Australia

375 The applicant submitted that while Dr Wojnarowska and Ms Hasson differed in their opinions about the extent to which the respondent had made treatment gains, both considered that he had outstanding treatment needs, as did Dr Bannister. In Dr Wojnarowska's view the respondent needed 'assertive' treatment and management. The applicant noted that all three experts were of the view that the respondent needs to engage in individual treatment as soon as possible, but the respondent has not yet received such treatment.[544]

376 Further, the respondent has not started treatment with SSRI medication as recommended by Dr Wojnarowska. Although Dr Wojnarowska said it was not essential for such treatment to start before the respondent's release, the applicant submitted that the treatment would be an important adjunct to management of the respondent's risk in the community, because it would reduce impulsivity, which is one of the main factors in the most likely risk scenario, in which his sexual offending commences with indecent exposure.[545] The applicant submitted that this is an outstanding treatment need that also goes to the question of whether the respondent is likely to substantially comply with the most significant standard condition of a supervision order under the DSO Act, namely that he not commit a sexual offence.[546] That reasoning applies equally in the context of the equivalent standard condition of a supervision order under the HRSO Act, because the sexual offences he is likely to commit are serious offences for the purposes of that condition.

377 The applicant relied on the dicta of Quinlan CJ in Rao[547] in support of the proposition that it is 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. As I noted in discussion with counsel, the Chief Justice's remarks appear to have been primarily directed at the unsatisfactory state of affairs whereby offenders were not given appropriate treatment until found to be a serious danger under the DSO Act, as I indicated earlier in these reasons. The context of the remarks do not suggest that his Honour was expressing a principle about the way in which outstanding treatment needs ought to affect the decision whether to release an offender on a supervision order in every case. In any event, the circumstances in Rao differed from the present case, in that he had not completed a sex offender treatment programme. The question of whether the respondent's further treatment, both psychologically and pharmacologically, can be commenced after he is released on a supervision order, without compromising the adequate protection of the community, must be determined in this case in light of all the circumstances, including the imminence of his risk of offending and any external constraints and supports in place to minimise his risk while he embarks on the treatment process.

378 However, the applicant submitted that there is a combination of factors that militate against the efficacy of a supervision order to adequately protect the community at this stage, which should at least leave the court in doubt that a supervision order would provide such protection.

379 In addition to the fact that the respondent is in need of treatment, the applicant pointed to the concerns raised by the police in the desktop spatial analysis in respect of their ability to properly monitor the respondent and manage his risk, and the inevitable significant delay in response in the event that there was an issue with the GPS monitoring system. The applicant submitted that, as the police and COMU would be the two agencies principally responsible for monitoring and supervising the respondent in the community, their concerns should be given significant weight.[548] In that regard, the applicant relied on the practical problems identified in the desktop spatial analysis and the Community Supervision Assessment report, rather than any opinion expressed by WA Police about the level of risk. Those problems indicate that the effectiveness of the usual measures for monitoring risk, including random visits to and searches of his home, will be compromised.

380 As I have understood the applicant's submission, if the monitoring and risk management measures were not compromised, it might be argued that the treatment needs could be addressed in the community. However, the fact that the monitoring and risk management measures are compromised, because of the location of the proposed accommodation and limited resources, underscores the importance of ensuring the respondent has received the benefits of further treatment, including a reduction of his libido and impulsiveness, before he is released. The argument is that, if he has been treated and is showing psychological gains in the areas that still require attention, and it can be demonstrated that the SSRI medication is having effect, then the available monitoring and risk management measures might be sufficient to provide adequate protection of the community, despite the limited resources and lengthy response times, because the risk will have been reduced.

381 The applicant referred to the use of exclusion zones to illustrate the potential problem for risk management. The applicant postulated that, without children in his private sphere, the applicant might seek children out in public areas where children frequent, and his initial offending would be likely to involve indecent exposure because of his exhibitionism. If he has not received SSRI treatment, his impulsiveness would put him at higher risk of opportunistic offending in such circumstances. His CCO could use exclusion zones designed to prevent the respondent frequenting places where children are present, to minimise that risk.[549] However, the logistical problems identified by the police would mean that any breach of an exclusion zone by the respondent, with the potential elevation of risk, could not be policed effectively, because it could take police hours to attend if GPS monitoring detected the respondent entering such a zone.

382 The applicant also pointed to the respondent's attitude to the DSO Act, as reported by Dr Bannister, as a factor that militates against a finding that the respondent would substantially comply with the standard conditions of a supervision order.

383 The applicant submitted that the court could not be satisfied that the respondent's relationship with Ms K would be a significant protective factor in determining whether the proposed supervision order will provide adequate protection of the community. There is doubt as to whether it will be resumed as a romantic relationship, so his sexual needs might not be met in the relationship. Further, while the evidence of Dr Wojnarowska and Ms Hasson undoubtedly supports the conclusion that a stable supportive relationship would be a protective factor, even if it is not romantic, it is not a safe conclusion in this case because the respondent sexually offended while he was in this relationship.[550]

384 The applicant also relied on the fact that Ms K previously made statements during the Parole Assessment that she did not believe that the respondent was guilty of some of the offending of which he was convicted. The applicant noted, although Ms K has said more recently that she accepts that the respondent is guilty of all of the offending, her statements to that effect have not been tested in cross-examination.[551] I note that, while there appears to have been an inconsistency between what Ms K said at the time of the parole assessment and what she said more recently to Ms Hasson and Ms Comery, I do not accept the applicant's submissions in respect of this issue, for the reasons set out at [359] - [362] above.

385 The respondent did not concede that the evidence established to the requisite standard that he was (at the time of the hearing) a 'serious danger to the community' for the purposes of the DSO Act. However, neither did he submit that such a finding was not open. The focus of the respondent's submissions was on the type of restriction order that should be made.[552]

386 The respondent submitted that the effect of the expert evidence is that, notwithstanding the level of the respondent's risk in the absence of a restriction order, if the measures recommended by them and proposed under the draft supervision order are in place, the risk factors will be reduced to such an extent that the respondent could be managed in the community.[553] The respondent relied on the confidence expressed by the experts that he would comply with the conditions of a supervision order. He submitted that the factors underpinning the opinions of Dr Wojnarowska and Ms Hasson, as outlined by them, should also satisfy me on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order and with the other conditions that have been proposed. It was submitted that, in that context, any negative views expressed by the respondent in respect of the DSO Act process should be understood as a reflection of frustration, rather than an obstacle to compliance, and the evidence is that his views are amenable to change.

387 The respondent submitted that the weight of the evidence favoured a finding that psychological treatment can be delivered adequately to the respondent within the community, despite the fact that he will be living in a relatively isolated rural location. The respondent noted that Dr Bannister, whose role it was to assess the respondent's ongoing treatment needs and how it could be delivered, had reported that, if the respondent was subject to a supervision order, he would be allocated a psychologist by the Department and could be provided treatment remotely via video-link, if necessary.[554]

388 The respondent submitted, further, that the evidence of both Dr Wojnarowska and Ms Hasson supported the conclusion that the location of the proposed accommodation would not prevent the adequate management of the respondent's risk under the proposed supervision order or the respondent's ability to adhere to the conditions of that proposed order.[555]

389 The respondent submitted that the logistical difficulties that may confront the police in effectively carrying out random checks for illegal substance use by the respondent, access by him to child exploitation material and contact by him with children electronically, ought not militate against releasing the respondent subject to a supervision order, because those matters do not appear to have been issues for the respondent in the past, and have not been identified as specific risk factors.[556] The respondent also pointed to the fact that Ms K has said she will not allow children to come to the property, and the fact that the property is in a remote area where children are unlikely to happen upon his residence.[557]

390 The respondent submitted that any issues with exclusion zones can be monitored by GPS, and the monitoring log can be reviewed to determine if the respondent has breached a lawful direction in respect of an exclusion zone. He could then be charged him with the breach. It was submitted that, in any case involving exclusion zones, it is unlikely that police would attend the location immediately and apprehend the person for the breach while still in the exclusion zone.[558]

391 On the issue of SSRI medication, the submissions made by the respondent's counsel were really in the nature of conveying his instructions as to the respondent's preparedness to take such medication and the fact that his concern was with hormonal anti-libidinal medication.[559] I do not give the submissions any weight in that regard. The respondent elected not to give evidence, and it is inappropriate for factual statements that ought to have been the subject of evidence to be made from the bar table. However, I can infer from Dr Wojnarowska's evidence that the respondent has not indicated any objection to SSRI treatment, whereas he had expressed concerns about hormonal treatment. In any event, if the taking of SSRI medication is necessary for the adequate management of the respondent's risk, and is mandated as part of a condition of a supervision order, non-compliance would render the respondent liable to contravention proceedings, which would require the court to reassess the suitability of a supervision order.

392 Finally, it was submitted on the respondent's behalf that the evidence supports the conclusion that he is willing to travel to Perth, if necessary, to comply with conditions, for example, to report for supervision, counselling or urinalysis.[560]

393 The respondent submitted that, having regard to all of the above, I can be satisfied that a supervision order would provide adequate protection of the community, and he should be released subject to such an order, in the terms proposed, rather than be subject to a CDO.[561]

394 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 female children, particularly under the age of 16 years, including pre-pubescent girls, and that it is necessary to make a restriction order to ensure adequate protection of the community against that risk.

395 That conclusion is supported by the findings I have made in the course of these reasons in respect of at least the following matters, of which I am satisfied to a high degree of probability:

(1) The respondent has a propensity to commit serious sexual offences against female children in the context of two forms of sexual deviance with which he has been diagnosed, namely paedophilia and exhibitionism;
(2) The respondent's paedophilia is likely a life-long disorder and is a significant risk factor, providing motivation for his sexual offending;
(3) The respondent's exhibitionism has a compulsive nature to it, driven by the excitement he gets from the shock he causes;
(4) The respondent has engaged in indecent acts driven by his exhibitionism, notwithstanding his awareness of that disorder;
(5) The respondent's exhibitionism can be, and has been, a prelude to more serious sexual offences involving indecent touching and sexual penetration, so its compulsive nature increases the risk of other sexual offending;
(6) The respondent's risk of committing a serious offence (being a sexual offence against a female child) is elevated because of his inability at times to control his impulsivity;
(7) There has been a pattern to the respondent's offending, which has been directed mainly at girls under the age of 16 years, including prepubescent girls, and at times has involved grooming and psychological coercion;
(8) The respondent's sexual offending has included both calculated offending, in which he has taken steps to conceal detection, and brazen offending in respect of which there was a significant risk of detection;
(9) The respondent has committed sexual offences after release from prison for similar offending, after participation in treatment, and while in a relationship he considers to be pro‑social and protective against the risk of re-offending;
(10) Although there is evidence that the respondent made some gains in his most recent treatment (the Think First Program and ISOTP), those gains have not yet been tested in the community;
(11) In any event, the respondent has significant outstanding treatment needs, identified at [264] - [267], [336] and [339] above, that he must continue to address in psychological counselling if his risk is to be managed adequately in the community;
(12) While the respondent has some insight into factors that might be regarded as precursors to his offending (such as stress, rejection, deficits in intimacy), his understanding of those factors requires reinforcement;
(13) The respondent continues to have a lack of insight (or adequate insight) into his sexual deviance and its impact on his risk of re‑offending. In particular, he has not yet accepted his diagnosis of paedophilia and has continued to minimise and deny some of his offending, although he has been inconsistent in that regard;
(14) The respondent is likely to re-offend against vulnerable prepubescent and underage adolescent girls, in circumstances in which the offending may be difficult to detect and the child may be persuaded or coerced by the respondent into not reporting his conduct;
(15) The likely offence scenarios, if the respondent were to reoffend, would potentially cause significant psychological harm to his victims; and
(16) Although Dr Wojnarowska and Ms Hasson used different terminology to describe the respondent's level of risk after administering the STATIC-99R and RSVP and applying clinical judgment ('high' and 'average' respectively), the level of the respondent's risk of re-offending, as assessed by both of them, is such that a restriction order would be necessary to ensure the adequate protection of the community. That was the opinion they both expressed.

396 In my opinion, the evidence establishes that the respondent has an overblown, unrealistic view of his own capacity to manage his risk in the community. That was particularly evident during the ISOTP. Further, while Ms K will provide a measure of protection against the respondent's risk of sexual re-offending, her support would not be sufficient to prevent the risk from being realised, as was evident in 2011.

397 For the reasons I have given, I am satisfied to a high degree of probability that, if the respondent were not subject to a restriction order, the risk that he would commit a serious offence is unacceptable. I find, therefore, that he is a high risk serious offender.

398 The question then is whether the respondent's risk could be managed adequately in the community if he were subject to a supervision order, in particular one in similar terms to the draft supervision order in these proceedings. If so, then the appropriate order is a supervision order, given the need to make the order least invasive of the respondent's right to be at liberty (the respondent having served the punishment for his offending), provided the order will ensure adequate protection of the community, which is the paramount consideration. Of course, before the court can reach that conclusion, it must be satisfied on the balance of probabilities that the respondent will comply with the standard conditions of the supervision order.

399 If a supervision order cannot mitigate the respondent's risk sufficiently, then the court must make a CDO.

400 For the reasons that follow, I have come to the conclusion that a supervision order in the terms of the Annexure to these reasons will provide adequate protection of the community if the respondent is released to reside with Ms K at the proposed accommodation in Town A.

401 All of the findings I have set out at [395] and [396] above are relevant to the consideration of whether a supervision order is appropriate. There are a number of factors identified there, and to a greater extent in my detailed analysis of the evidence, which could impinge on the effectiveness of a supervision order. Of particular note are the respondent's failure to fully accept the diagnosis of paedophilia and the risk it presents for him, and his limited insight into the potential impact of other factors on his risk of re-offending. In addition, the respondent's unrealistic belief that he can manage his own risk might make him inclined to be less reliant on the protective measures in the supervision order and to resent the very restrictive regime created by the conditions. The compulsive and impulsive nature of the respondent's exhibitionism, which he acknowledges, may make it difficult for him to avoid committing an indecent or obscene act constituting a serious offence.

402 In considering whether a supervision order would adequately protect the community, the court must take into account any conditions that can be included in the supervision order.[562] The court must also take into account whether the place where the respondent intends to live, and the circumstances in which he will be living there, are suitable to ensure that the supervision order will provide adequate protection of the community. As I have explained above, the effectiveness of the proposed supervision order and the suitability of the proposed accommodation are interconnected issues. The essence of the applicant's argument is that the proposed accommodation is not suitable because it would undermine the effectiveness of the supervision order in circumstances where the respondent continues to have outstanding treatment needs.

403 In my opinion the conditions of the supervision order in the Annexure, which incorporate the amendments I discussed above, address the various issues that have been raised by the experts as risk factors for the respondent. My reasons for reaching that conclusion are set out at [365] - [371] above. In my opinion, they are the minimum conditions that would be necessary to effectively manage the respondent's risk and adequately protect the community.

404 The conditions require the respondent to engage in treatment, both psychological and pharmacological. It is clear from the expert evidence that the respondent's ability to manage his impulsivity and exhibitionism is crucial in managing his risk of more serious sexual offending. I am satisfied, on the basis of Dr Wojnarowska's evidence, that it is a necessary condition of the respondent's release into the community that he be required to comply with a course of anti‑depressant (preferably SSRI) medication, as directed by his CCO, to assist in the treatment of those issues. As I noted earlier, the condition in the Annexure concerning medication is confined to non-hormonal anti-libidinal treatment (which includes SSRI medication), in accordance with Dr Wojnarowska's expert recommendation. It is nevertheless a significant measure in dealing with two aspects of the respondent's risk, namely his libido and his impulsivity, the latter of which is associated in particular with his exhibitionism. The respondent's preparedness to take the medication will be an important indication of his commitment to comply with the supervision order and deal with his risk of reoffending.

405 The proposed conditions also place restrictions and other obligations on the respondent that go well beyond the restrictions and obligations to which he was subject while on parole. On the one hand, that might suggest that his previous successful completion of parole may not be a reliable guide to whether he will comply with the conditions of a supervision order. The more stringent conditions may create greater stress for him and make it more difficult for him to comply. On the other hand, the more extensive and closer degree of supervision and monitoring which the conditions would allow should enable the authorities to detect any non-compliance more readily and to act as necessary to deal with any change in his risk of re-offending.

406 The conditions provide for a substantial degree of monitoring in the community, even if the resourcing for such monitoring may be limited and the efficiency of responses may be reduced, given the geographical location of the respondent's intended residence. I accept that the issues raised by the applicant's submissions in respect of those matters are real, and that there is a potential for the effectiveness of the usual measures for monitoring risk to be compromised because of the location of the residence. I also accept that that the combined effect of outstanding treatment needs and logistical difficulties makes the effective implementation of a supervision order more precarious than if only one of those factors was at play. However, the individual and combined effect of these factors needs to be considered in context.

407 For instance, the applicant's argument in relation to exclusion zones must be considered in the context that Town A does not have any schools, services or amenities where children are likely to be present. In light of Ms Comery's description, it is difficult to envisage the need for exclusion zones in that town. As for Town B and Town C, there might be reason to create exclusion zones in those towns, but both have a police station with officers on duty. While they are not 24-hour stations, the curfew condition could be utilised to ensure the respondent was not in those towns when the police station is not open. In addition, as the respondent submitted, even in the metropolitan area, there is not necessarily an expectation that police would attend the scene and apprehend the respondent immediately, if he has entered an exclusion zone. It is also relevant to consider that, apart from the respondent's very first offence of wilful exposure, his offending has been in or around homes where he was living or visiting, at his workplace (including in his truck) or in a secluded location while fishing, all with girls with whom he was familiar, rather than in public places with strangers. Further, most of the respondent's offending has involved a degree of grooming. The conditions are such that any elevation of risk should be detected at an early stage in treatment or in the supervision process, before grooming could occur.

408 The applicant acknowledged that, if the court concludes that a respondent is a high risk serious offender, but that in all other respects his risk could be managed in the community, the police would need to take a practical approach to the allocation of resources to enable the respondent's risk to be adequately monitored.

409 Although it was not discussed at the hearing, practical solutions could be utilised to overcome, at least to some extent, the difficulties raised in the desktop spatial analysis. For instance, if a curfew is in place, consideration could be given to the police and the CCO contacting the respondent using an audio-visual application to check that he is in the house. That might also be a means of checking who else is at the house, in particular whether any child is in the house. Ms Comery's evidence was that it is a small house (two bedrooms and one bathroom).

410 I have given consideration to whether it ought to be a condition of the respondent's release that there be CCTV cameras installed at the front and rear entrances of the property, connected to a recording device, with conditions that the recording not be erased without approval of WA Police or a CCO. That would allow for the comings and goings at the property to be captured on video, which might alleviate some of the concerns about infrequent compliance checks and monitoring who attends the house. However, I have come to the conclusion that such a requirement is not necessary. A significant consideration in that regard is that I am satisfied that Ms K has been consistent in her indication that she will not have children at the house and there appears to be no reason to doubt her statement to Ms Hasson that she did not allow her grandchildren to come to the house before the respondent was incarcerated on the last occasion.

411 I have come to the conclusion that the location of the proposed accommodation would not prevent the supervision order from providing adequate protection of the community. I am satisfied that the respondent's risk can be adequately managed in the community while he is subject to the conditions of the supervision order in the Annexure, despite the fact he has not yet commenced individual psychological treatment or treatment with SSRI medication, and the combined effect of that with the logistical difficulties referred to be the applicant. In that regard, I accept the opinions of Dr Wojnarowska and Ms Hasson that the respondent could be managed in the community while the SSRI medication and psychological treatment are commencing and in their early stages. It seems to me also that Dr Bannister's opinion about a treatment plan was consistent with that conclusion.

412 Further, given the uncertainty that remains about the impact that the COVID-19 pandemic may have on freedom of movement and interactions the community in the future, I should note that I am satisfied that an adequate level of psychological counselling can be provided to the respondent by audio‑visual means if necessary. However, while the geographical isolation of the proposed accommodation may also require counselling to be delivered in that way from time to time, it would be preferable for the respondent to attend in person whenever possible, as he has said he is willing to do.

413 To the extent that it is considered necessary to monitor the respondent's travel away from Town A in the early stages, condition 53 of the supervision order allows the CCO to require the respondent to give notice of such travel.

414 As I noted above, the respondent has indicated a desire to operate a workshop business in Town B. The fact that he has an intention to pursue employment is a positive factor, but, given the intended location, it would need to be managed in light of the issues I outlined in discussing the condition concerning travel to Town B (condition 54 in the Annexure). The respondent would be required to have approval from his CCO for any travel to Town B. This might also be an instance in which exclusion zones could be used to prevent the respondent from going to places where his risk of reoffending might be elevated.

415 Finally, on the general question of whether the supervision order in the Annexure will provide adequate protection of the community, assuming adequate structures and services are in place, as discussed above, I have taken into account the imminence of the respondent re‑offending. Both Dr Wojnarowska and Ms Hasson were of the opinion that the single most important factor that would affect the imminence of the risk that the respondent would sexually re-offend would be close physical proximity to a child. As Ms Hasson said, other dynamic factors would also be relevant, but, as Dr Wojnarowska noted, if the respondent were subject to a supervision order and had no opportunity to see children or be in their presence, then the risk would not be imminent. In my opinion, it is a relevant consideration in this regard that the respondent did not offend for a period of more than 10 years between his offending in 1998 - 2000 and his last offences in 2011.

416 The question of whether the respondent will substantially comply with the standard conditions of the supervision order requires consideration of all of the circumstances, both personal to him and external, which will affect him. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro-social support available to him.

417 Matters personal to the respondent include his attitude towards the relevant legislation, these proceedings and the conditions of a supervision order. While the respondent's negative comments to Dr Bannister about those matters are a relevant consideration, I am satisfied on the basis of the evidence of Dr Wojnarowska and Ms Hasson that comments of that kind are part of the respondent's tendency to vent, raise grievances and perhaps even be contrarian, but that, as Ms Hasson put it, he 'does settle and change his views' when he is challenged and is required to reason about the issue.[563] For the reasons set out at [321] - [324] above, I do not consider that the comments made to Dr Bannister reflect an intention not to comply with the conditions of a supervision order. Nor do I regard them as indicative of a mindset that would predispose him to deliberately flout the conditions or compromise his compliance in some other way. On balance, his comments to the experts have indicated that he is prepared to comply if the court finds that a supervision order is necessary.

418 I have come to the same conclusions, on the same basis, about the respondent's comments to Ms Hasson about psychologists and to Ms Comery about the ACC staff in Town C, where he will be required to report. Ms Hasson said she thought the rapport she was able to build with the respondent might be regarded as indicative of his capacity to work with a psychologist. Ms Comery said the respondent indicated a desire to make a fresh start with the ACC office in Town C.

419 I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of the supervision order, in the relevant sense. I am also satisfied he is likely to comply with the balance of the conditions. In coming to those conclusions, I have taken into account the respondent's attitude to the conditions of the supervision order, his capacity to comply with the conditions and the measures that are in place to ensure he would substantially comply. Apart from the reasons I have already outlined in this section, which inform this issue, I rely on the following matters.

420 The respondent has served a significant term of imprisonment and has remained in custody on an interim detention order for a further significant period. Given his age, it might be expected that the prospect of a further term of imprisonment or indefinite detention would weigh more heavily on him now. Those are real potential consequences in the event he were to contravene a condition of the supervision order.

421 Secondly, for the reasons I gave earlier concerning Ms K, I am satisfied she will provide support to the respondent that will augment in a meaningful way the support he will receive from his psychologist and his CCO to ensure he remains compliant with the conditions of the supervision order. Her statement that she is prepared to be part of the risk management team suggests a commitment to ensuring the respondent remains compliant for his benefit as much as for the protection of the community.

422 Thirdly, the respondent has previously completed parole periods successfully. His re-offending after doing so indicates a failure to rehabilitate, including a failure to internalise what he learnt during the CBSOTP, but it does not detract from the conclusion that the respondent was compliant with supervision.

423 Fourthly, he has exhibited compliant behaviour while in custody. While I appreciate that is a very different setting, it is nevertheless the most recent indication of the respondent's attitude towards persons in authority.

424 Of course, the respondent would be expected to comply strictly with the conditions of the supervision order, in a manner and to an extent that is consistent with achieving the adequate protection of the community by the management and mitigation of his risk. While the paramount purpose of the order is to protect the community, it also provides the respondent with the means by which he can maintain his liberty and avoid putting himself at risk of further sexual offending against female children, which would inevitably result in a further term of imprisonment. He has an opportunity to receive treatment and support to enable him to achieve a reduction of his risk in due course to a point where it can be self-managed by him without the need for restrictions to protect the community.

425 The respondent must also understand that offending involving indecent exposure, without touching, will nevertheless constitute a contravention of the order. Regarding himself simply as 'a flasher' is not only wrong; it is a dangerous mindset that will put him at risk of further offending and a contravention of the supervision order. If he contravenes the order, then, in light of the findings I have made concerning his risk, he would face the prospect of a CDO.

426 As I noted in Hart, satisfaction that the respondent will substantially comply with the standard conditions of a supervision order is a necessary finding before a supervision order can be made, but it is only one consideration in determining whether such an order will provide adequate protection of the community.[564] For all of the reasons outlined in this section, I am satisfied that the supervision order in the Annexure will provide adequate protection of the community against the otherwise unacceptable risk that the respondent would commit a serious offence. Therefore, the appropriate restriction order in this case is a supervision order.

427 Both Dr Wojnarowska and Ms Hasson considered that a period of at least 5 years would be necessary to enable the benefits of psychological counselling to take effect with the goal of reducing the respondent's risk of sexual reoffending to an acceptable level without restrictions. The distinct impression I have is that it is unlikely the respondent's risk would be sufficiently reduced in that time. Indeed it remains to be seen whether it ever gets to the point where he can self-manage his risk without restrictions.

428 Under s 36 of the HRSO Act, the State may apply for a restriction order in relation to an offender who is subject to a supervision order that is to expire within one year. There is provision, therefore, for the State to apply for a further supervision order if, approaching the end of the supervision order I make, there is evidence that the respondent's risk is still at a level where there is a need for a further period of restriction I order to provide adequate protection of the community.

429 I have taken into account that the respondent's last offences were committed after a period of about 10 years without offending. That might suggest that a risk may persist for that order of time, without it being realised, but that the protection of the community would warrant a lengthy period of restriction. However, the respondent was not subject to a supervision order during that time and did not have the benefit of long-term individual treatment.

430 I have also taken into account that the respondent has been subject to interim detention order since [REDACTED].

431 I have come to the conclusion that, at this stage, the appropriate duration of the period for which the respondent should be subject to the supervision order is 5 years, and the respondent's circumstances can be reviewed by the authorities in the final year of that period to determine whether a further order is necessary.

432 Section 27 of the HRSO Act provides:

(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.

433 Given that the accommodation to which the respondent would be released is a private residence he has previously shared with Ms K, it is possible that the implementation of the order could occur earlier than 21 days from the making of the supervision order.

434 However, as I noted earlier, approaching the delivery of this judgment, the Perth region is in lockdown due to the COVID-19 pandemic. In those circumstances, I will hear from the parties as to the appropriate commencement date having regard to any impact the lockdown may have on implementation of the order.

435 Accordingly, I rescind the interim detention order made on [REDACTED], effective upon the coming into operation of the following order.

436 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 for a period of 5 years from a date to be set after I have heard from the parties.

437 Ms Comery gave evidence that, if the address (the town, street address and number) of the respondent's proposed accommodation were to be published, it could put the safety of the respondent and his partner, and persons from any agencies who visit the address at risk, because of the potential for vigilante action.[565] That could render the property unsuitable for use as the residential accommodation under the supervision order, with the consequence that the implementation of the supervision order could be compromised. I am aware that there is an historical basis for these concerns, and that they are real. There is, of course, a public interest in members of the community knowing whether they are at risk from a high risk serious offender. However, the conditions of the supervision order allow for the authorities to make disclosure of the respondent's status to other persons, and it would be expected they would exercise judgment in that regard to ensure the adequate protection of the community.

438 Ms Comery said that COMU would support full suppression of details that would identify the respondent's residential address. I am satisfied that is appropriate for the reasons outlined. Accordingly, all references to the relevant location have been anonymised in these reasons (references to Towns A, B and C) and are redacted in the Annexure.

439 Further, I order that the publication of the address, including the town where the respondent will be residing when released, according to the Supervision Order made 2 July 2021, is prohibited.

440 To protect the privacy of the victims of the respondent's offending, the names of the respondent and the victims have also been anonymised in these reasons.

IN THE SUPREME COURT OF WESTERN AUSTRALIA

SO 11 of 2019

IN THE MATTER of the High Risk Serious Offenders Act 2020 (WA)

THE STATE OF WESTERN AUSTRALIA Applicant

-and-

[ACJ] Respondent

_______________________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE FIANNACA
ON 2 July 2021

_______________________________________________________________________

The Court, having found pursuant to section 7 and section 48(1) of the High Risk Serious Offenders Act 2020 (WA) that there is an unacceptable risk that the Respondent would commit a serious offence if not subject to a continuing detention order or a supervision order, orders that the Respondent be the subject of a supervision order pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (High Risk Serious Offenders Act), for a period of 5 years from [DATE TO BE DETERMINED AT TIME OF JUDGMENT], on the following conditions:

You, [ACJ], 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 two business days before the change happens.

4. Be under the supervision of a CCO which includes complying with any reasonable direction of the officer (including a direction for the purposes of s 31 or s 32 of the High Risk Serious Offenders Act).

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 s 5 of the High Risk Serious Offenders Act during the period of the Order.

7. Be subject to electronic monitoring under s 31 of the High Risk Serious Offenders Act.

ADDITIONAL CONDITIONS

Residence

8. Take up residence at [REDACTED] and to spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.

Reporting to a CCO and supervision by a CCO

9. Report to a CCO at your nominated release address within normal business hours on the day of release from custody under this Order.

10. Be under the supervision of a CCO, 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.

11. Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO.

Attendance at programmes or treatment

12. Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.

13. Comply with the requirements of all programmes designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO.

Reporting to WA Police

14. Report to the [REDACTED] Local District Manager at the [REDACTED] within 48 hours of your release from custody and thereafter report to and receive visits from Police at times and at locations as directed by the [REDACTED] Local District Manager or his/her delegate.

15. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004 (WA).

16. If requested, permit Police Officers to enter and search your residence and/or vehicle, and/or your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order.

17. Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the High Risk Serious Offenders Act.

18. When requested, inform 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

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

20. Allow the CCO, WA Police, or other persons 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

21. 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.

22. Unless contact with victims is permitted pursuant to condition 21, immediately withdraw physically 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 you must avert your gaze from such victim at all times.

23. Report to the CCO and WA Police any direct or indirect contact with the victims of your sexual offending within 48 hours of such contact occurring.

Criminal conduct

24. Not commit any criminal offence where the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments.

25. Not commit an offence under s 202, s 203, s 204 or s 557K Criminal Code 1913 (WA).

26. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

Curfew

27. Be subject to a curfew, pursuant to s 32 of the High Risk Serious Offenders Act, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.

28. 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.

29. When subject to a curfew under this Order, ensure that all persons present in the residence, who may answer the telephone or door, are aware of your obligations, and you must request their assistance to enable you to comply with your obligations by informing you of any attempts to contact you by persons monitoring your compliance with the curfew.

Medications/Mental Health

30. Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by the supervising CCO.

31. Undertake any medication regime, including medication for non-hormonal anti-libidinal treatment (such as Selective Serotonin Reuptake Inhibitor anti-depressants), as directed by the CCO in consultation with a medical practitioner(s) and comply with all testing to monitor your compliance with that treatment as directed by a CCO.

32. Comply fully with any treatment prescribed pursuant to condition 31.

33. Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose to the Department of Justice details of medical treatment and opinions relating to your level of risk of re-offending and your compliance with treatment.

34. Permit any medical practitioner, psychologist, psychiatrist or counsellor to advise the CCO immediately if they become aware, or suspect, that you have or intend(ed) to cease undergoing pharmaceutical medication contrary to the advice of a medical practitioner, or if you appear to have ceased to consult with that medical practitioner on such treatment.

Prevention of high-risk situations

35. Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present such diary to the CCO and/or a Police Officer upon request.

36. Not associate with any person known by you to have committed a serious offence (as defined in s 5 of the High Risk Serious Offenders Act), unless such association is authorised in advance by the CCO.

37. Have no contact with any female 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)

38. Where any unsupervised contact with a female child under the age of 18 years is initiated by the child, unless the contact is permitted under condition 37, you must withdraw immediately from the presence of the child;

39. Provide details of any contact with a female 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;

40. Report at your next contact with your CCO the formation of any friendship, domestic, romantic, sexual or otherwise intimate relationship by you with any person;

41. Report at your next contact with your CCO and Police any association or relationship by you with a person who has a child or children under the age of 18 years in their care either full time or part time;

42. Not form any domestic relationship with a person who has a child or children under the age of 18 years in their care either full time or part time, without prior approval of a CCO;

43. As directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;

44. Not conduct computer searches for, collect, access, or be in possession of in either electronic or permanent form, images of children including drawings or sketches, whether indecent or not, with the exception of images of your immediate family that are not indecent images if approved in advance by a CCO. Possession of such images depicting a child or children on items such as household items, may be authorised by a CCO;

45. Not be in possession of any children's toy, game or confectionary that could reasonably be perceived to be capable of being an enticement to children, unless such possession is for a legitimate purpose;

46. Have no contact with, membership of or affiliation with clubs, associations or groups where membership includes children, unless approved in advance by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;

47. Not to attend concerts, events or venues frequented by children under 18 years, without the prior approval of a CCO;

48. Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;

49. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 48, without prior approval of the CCO;

50. Enable device locking or password access of your computer, telecommunication and/or electronic devices, and you must not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 48 or any online accounts, to any person other than a CCO or Police Officer;

51. Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and you must provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advice from a CCO;

52. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised by another person, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunications and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

53. As and when directed by a CCO, you are to advise the CCO prior to leaving the town of [REDACTED], unless for a medical emergency, in which case you should advise the CCO as soon as practicable.

54. Not to attend the town of [REDACTED], unless approved by a CCO.

____________________________________

THE HON JUSTICE FIANNACA

I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I contravene it.

Signed by the Respondent ___________________________________

[ACJ]

In the presence of: ________________________________

Name and address: ________________________________

________________________________

Date: ________________________________

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

EP
Associate to the Honourable Justice Fiannaca

2 JULY 2021

[1] Section 7 and s 17 of the DSO Act.

[2] It is sufficient at this stage to note that, by s 3 of the DSO Act, a 'serious sexual offence' was an offence which came within the meaning of 'serious sexual offence' in s 106A of the Evidence Act 1906 (WA), which referred to offences mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more. The offences of which the respondent has been convicted included sexual penetration of a child under the age of 13 years, indecently dealing with a child under the age of 13 years, and indecently dealing with a child over the age of 13 years, but under the age of 16 years, all of which were serious sexual offences for the purposes of the Evidence Act.

[3] HRSO Act s 2(1)(a) and Compilation table.
[4] The term 'commencement day' has relevance for the purposes of s 124, and is defined in s 122 to mean 'the day on which this section comes into operation', which, by virtue of s 2(1)(c) and the proclamation referred to below, was 26 August 2020.
[5] High Risk Serious Offenders Act 2020 Commencement Proclamation 2020, cl 2 (SL2020/131; Government Gazette, WA, 14 August 2020, p 2619).
[6] HRSO Act s 123.
[7] HRSO Act s 124(2).
[8] HRSO Act s 8.

[9] HRSO Act s 3 (definition of 'restriction order'), s 26 ('continuing detention order') and s 27 ('supervision order'). In The State of Western Australia v ZSJ [2020] WASC 330 (ZSJ), I explained that, in the DSO Act, the meaning was to be ascertained from s 3 (the definitions section), which referred in respect of each term to the later provisions that authorised the making of the orders (in particular s 17(1)(a) and (b)). The description of the orders in those later provisions gave content to the meaning of those terms.

[10] ZSJ [5].
[11] HRSO Act s 3, s 5 and sch 1.

[12] ZSJ [5]. See also The State of Western Australia v CF [2021] WASC 20 (CF) [30], [35]; The State of Western Australia v Narrier [No 6] [2020] WASC 349 (Narrier [No 6]) [4], [29] ‑ [30]; The State of Western Australia v MBW [No 7] [2020] WASC 404 (MBW [No 7]) [29] ‑ [30]; The State of Western Australia v ACW [No 2] [2020] WASC 480 (ACW [No 2]) [6]; and The State of Western Australia v Pindan [No 5] [2021] WASC 72 (Pindan [No 5]) [25].

[13] On 23 December 2020, pursuant to s 11(4) of the HRSO Act, the State Solicitor's Office took over carriage of the matter from the DPP.
[14] See ZSJ [30] ‑ [34]. See also CF [34].
[15] ZSJ [31]. See also CF [31]; Narrier [No 6] [4], [29] ‑ [30]; MBW [No 7] [29] ‑ [30]; ACW [No 2] [6]; and Pindan [No 5] [25].
[16] HRSO Act s 7(1) and s 48.
[17] ZSJ [38], [44].
[18] ZSJ [42].
[19] ZSJ [44].
[20] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 (Williams) [63] - [65].
[21] Williams [63] - [65].
[22] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 (GTR) [27] (Steytler P & Buss JA).
[23] GTR [28] (Steytler P & Buss JA).
[24] GTR [34] (Steytler P & Buss JA).
[25] The State of Western Australia v Ryan [2021] WASC 38 at [4].
[26] The State of Western Australia v Latimer [2006] WASC 235 [49].
[27] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
[28] HRSO Act s 29(1).
[29] HRSO Act s 29(2).
[30] HRSO Act s 3 (definitions) and s 30(2).

[31] DSO Act s 18(1)(d) referred to 'section 19A or 19B', which correspond to s 31 and s 32 of the HRSO Act.

[32] DSO Act s 18(1)(f) referred to 'a sexual offence as defined in the Evidence Act 1906 section 36A', which included offences that were not within the meaning of 'serious sexual offence' in the DSO Act. Some of the offences referred to in s 36A of the Evidence Act are not included in the definition of 'serious offence' in the HRSO Act.

[33] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
[34] The State of Western Australia v Corbett [No 8] [2021] WASC 171 [48] (Corbett); The State of Western Australia v PAS [No 3] [2021] WASC 117 [17]; CF [61].
[35] The State of Western Australia v Corbett [No 8] [2021] WASC 17 [519].

[36] Williams [86] (Wheeler JA, Le Miere AJA agreeing).

[37] HRSO Act s 84(3) (previously DSO Act s 42(2), which was in relevantly identical terms).
[38] HRSO Act s 84(4) and (5) (previously DSO Act s 42(3) and (4), which were in relevantly identical terms).
[39] Exhibit 2.

[40] The Supreme Court and District Court proceedings referred to in this paragraph were in respect of the sexual offending to which I have referred in broad terms, and will be discussed in detail below.

[41] BOM 533 [4].
[42] BOM 562 [7].
[43] BOM 532 [2].
[44] BOM 532 [2].
[45] BOM 532 [2].
[46] BOM 532 [3].
[47] BOM 534 [12].
[48] BOM 534 - 535 [12].
[49] BOM 570 [65].
[50] BOM 570 [65].
[51] BOM 570 [65].
[52] BOM 570 [65].
[53] BOM 570 [67].
[54] BOM 571 [72].
[55] BOM 533 [5].
[56] BOM 533 [5].
[57] BOM 533 [5].
[58] BOM 570 [67].
[59] BOM 571 [74].
[60] BOM 570 [67].
[61] BOM 237.
[62] BOM 211, 220 and 225.
[63] BOM 237.
[64] BOM 533 [6].
[65] BOM 533 [6].

[66] For instance, the Completion Report from the Intensive Sex Offender Treatment Program, in which the respondent participated in 2015, notes that he appeared to experience 'significant shame regarding his wife's same sex attraction and declined to discuss it in group', indicating also that he considered his wife 'dead ... don't think about her': BOM 505.

[67] BOM 564 [23].
[68] BOM 533 [7].
[69] BOM 533-534 [8].
[70] BOM 571 [69].
[71] BOM 583.
[72] BOM 584.
[73] BOM 534 [11], 582.
[74] See [141] below.
[75] BOM 534 [10].
[76] BOM 532 [3] and 570 [66] - [67].
[77] BOM 570 [67].
[78] BOM 570 [67].
[79] BOM 533 [3].
[80] BOM 266.
[81] BOM 533 [4].
[82] BOM 537 [24]; BOM 545 [75]; BOM 577 [109].
[83] BOM 237.
[84] BOM 564 [26].
[85] BOM 569 [60].
[86] BOM 569 [60].
[87] BOM 485.
[88] BOM 535 [15].
[89] ts 73.
[90] BOM 534 [12] and 571 [71].
[91] BOM 571 [71].
[92] BOM 571 [71].
[93] BOM 534 [12].
[94] BOM 571 [72].
[95] BOM 534 [12].
[96] BOM 534 [12].
[97] BOM 571 [73].
[98] BOM 535 [15].
[99] BOM 571 [75].
[100] BOM 535 [14].
[101] BOM 535 [15].
[102] BOM 571 [75].
[103] BOM 571 [75].
[104] BOM 535 [16].
[105] BOM 535 [16].
[106] BOM 535 [17].
[107] BOM 572 [79].
[108] BOM 535 [15] and 572 [80].
[109] BOM 2.
[110] BOM 13.
[111] BOM 244.
[112] BOM 235.

[113] BOM 24; BOM 245; BOM 267. The timing of the respondent's release on parole appears to have been a function of the sentencing regime in force at the time, whereby one third of the sentence was immediately remitted, and an offender was eligible to be released on parole after serving half of the remainder of the sentence imposed (having regard to the length of the sentence imposed on the respondent).

[114] BOM 265.
[115] BOM 273.
[116] BOM 24.
[117] BOM 274.
[118] BOM 276.
[119] BOM 275.
[120] BOM 276 - 277.
[121] BOM 278.
[122] BOM 274.
[123] BOM 278.
[124] BOM 278.
[125] BOM 540 [47].
[126] BOM 278.
[127] BOM 278.
[128] ts 102.
[129] BOM 552 [5].
[130] BOM 571-572 [76].
[131] BOM 352 [110].
[132] BOM 355 [131].
[133] BOM 283.
[134] BOM 283.
[135] BOM 489.
[136] BOM 485, 487 - 488.
[137] BOM 485.
[138] BOM 34; 29.
[139] BOM 519 [7.4].
[140] BOM 34-35.
[141] BOM 519 [7.6].
[142] BOM 523.
[143] BOM 582 - 583.
[144] BOM 527.
[145] GTR [178].
[146] ts 48, ts 85.
[147] ts 48; ts 86.
[148] ts 69.
[149] Criminal Code s 329; HRSO Act sch 1 div 1.
[150] ts 115.
[151] ts 69.
[152] BOM 453; BOM 553 [7].
[153] BOM 497.
[154] BOM 497.
[155] BOM 498.
[156] BOM 498.
[157] BOM 498.
[158] BOM 498.
[159] BOM 498.
[160] BOM 498.
[161] BOM 498 - 499.
[162] BOM 499.
[163] BOM 499.
[164] BOM 500.
[165] BOM 500 - 501.
[166] BOM 553 [10].
[167] BOM 553 [10].
[168] BOM 502.
[169] BOM 507.
[170] BOM 507, 513.
[171] BOM 510, 568 [57].
[172] BOM 507.
[173] BOM 511.
[174] BOM 507.
[175] BOM 505.
[176] BOM 504 - 505.
[177] BOM 506.
[178] BOM 511.
[179] BOM 511.
[180] BOM 511.
[181] BOM 511.
[182] BOM 511.
[183] BOM 511.
[184] BOM 513.
[185] BOM 508.
[186] BOM 504.
[187] BOM 509.
[188] BOM 509.
[189] BOM 514.
[190] BOM 514.
[191] BOM 512.
[192] BOM 512.
[193] BOM 513.
[194] BOM 513 - 514.
[195] BOM 505, 508.
[196] BOM 514.
[197] ts 103; BOM 542 [55].
[198] ts 103; BOM 542 [55].
[199] ts 103 BOM 542 [55].

[200] BOM 555 [20]-[21]. That facilitator was female, but Ms Hasson said that, as best as she could understand, both facilitators were female, so she did not think the respondent's problem with the facilitator was gender‑based: ts 103.

[201] BOM 555 [21].
[202] BOM 555 [21].
[203] BOM 556 [22].
[204] BOM 556 [22].
[205] ts 57; BOM 571 - 572 [76].
[206] ts 57; BOM 571 - 572 [76].
[207] BOM 572 [76].
[208] ts 57; BOM 571 - 572 [76].
[209] BOM 572 [76].

[210] 'Qualified expert' was defined in s 3 of the DSO Act to mean a psychiatrist or a qualified psychologist, being a psychologist holding a qualification or accreditation prescribed for the purposes of the definition. The term is defined in similar terms under s 3 of the HRSO Act, except that 'qualified psychologist' is more specifically defined to mean 'a psychologist (as defined in the Mental Health Act 2014 section 4) who holds a master's degree or higher in psychology'. Ms Hasson holds a master's degree in forensic psychology: BOM 531.

[211] DSO Act, s 37(2).
[212] HRSO Act, s 74.
[213] GTR [57] - [62].
[214] BOM 573 [89].
[215] BOM 564 [25].
[216] BOM 237 - 239.
[217] BOM 564-565 [26] - [27].
[218] BOM 239.
[219] BOM 565 [28].
[220] BOM 565 [30].
[221] BOM 565 [30].
[222] BOM 565 [31].
[223] BOM 572 [79]; ts 57.
[224] ts 54.
[225] See [129] above.
[226] BOM 565 [32].
[227] BOM 565 [32].
[228] See [224] below.
[229] BOM 565 [33].
[230] BOM 565 [33].
[231] BOM 566 [34].
[232] ts 57.
[233] BOM 566 [34].
[234] BOM 540 [43].
[235] BOM 540 [43].
[236] BOM 540 [44].
[237] BOM 540 [44].
[238] BOM 540 [45].
[239] ts 96.
[240] ts 97.
[241] ts 73.
[242] BOM 532 [1]; BOM 573 [83].
[243] ts 112.
[244] ts 104.
[245] ts 104.
[246] BOM 573 [83].
[247] ts 67.
[248] See [228] below.
[249] BOM 573 [83].
[250] BOM 545 [73]; BOM 573 [86]; ts 48.
[251] BOM 545 [73].
[252] BOM 576 [106].
[253] BOM 573 [86]; ts 48.
[254] BOM 545 [73].
[255] ts 48.
[256] ts 48.
[257] ts 48.
[258] ts 73.
[259] ts 49.
[260] ts 113.
[261] See [89] above.
[262] ts 86.
[263] BOM 573 [87]; ts 48.
[264] ts 49.
[265] BOM 573 [88].
[266] BOM 546 [86].
[267] BOM 546 [88]; BOM 575 [96]; ts 86.
[268] BOM 546 [88].
[269] BOM 575 [96]; ts 49.
[270] BOM 543 [60].
[271] BOM 543 [60].
[272] BOM 543 [61]; BOM 575 [95]; ts 80.
[273] ts 49.
[274] The wilful exposure offence.
[275] BOM 543 [61]; BOM 575 [95].
[276] Ms Hasson said her wording was from the 2016 version: ts 80.
[277] BOM 575 [95].
[278] BOM 543 [61]; ts 80.
[279] BOM 543 [61]; BOM 575 [95].
[280] BOM 543 [61].
[281] BOM 543 [60]; ts 81.
[282] ts 106.
[283] ts 81.
[284] BOM 543 [60], ts 81; BOM 575 [95], ts 49.
[285] ts 106 - 107.
[286] ts 107.
[287] ts 111.
[288] BOM 543 [62].
[289]BOM 543 [64]; BOM 575 [97].
[290] BOM 575 [97], 543 [64].
[291] BOM 575 [98].
[292] BOM 544 [65].
[293] BOM 575 [98].
[294] BOM 544 [66].
[295] BOM 575 [99].
[296] BOM 575 [99].
[297] BOM 544 [67].
[298] BOM 544 [67].
[299] ts 81.
[300] BOM 576 at [101]; ts 50.
[301] BOM 544 at [68].
[302] BOM 544 at [68].
[303] BOM 544 at [69].
[304] BOM 576 at [102].
[305] ts 52 - 53. See [172] above.
[306] ts 53.
[307] ts 53.
[308] ts 52.
[309] ts 52.
[310] ts 53.
[311] ts 82; ts 50.
[312] ts 50.
[313] ts 50.
[314] ts 50.
[315] BOM 576 [103]; ts 50.
[316] BOM 576 [103].
[317] BOM 544 [70]; ts 82.
[318] BOM 544 [70]; ts 82.
[319] ts 82.
[320] ts 82.
[321] BOM 576 [104]; ts 51.
[322] ts 51.
[323] BOM 544 - 545 [71].
[324] ts 84.
[325] ts 84; ts 51.
[326] ts 51.
[327] BOM 576 [105]; ts 51.
[328] BOM 545 [72].
[329] ts 84; ts 51.
[330] ts 51.
[331] ts 84.
[332] BOM 545 [72].
[333] ts 84.
[334] ts 53.
[335] BOM 577 [110]; ts 54.
[336] BOM 545 [78].
[337] BOM 577 [113]; ts 54.
[338] BOM 577 [113].
[339] BOM 545 [79].
[340] ts 54.
[341] BOM 577 [113]
[342] ts 55.
[343] BOM 545 [78]; ts 86.
[344] ts 94 - 95.
[345] ts 94 - 95.
[346] ts 94.
[347] ts 95.
[348] ts 95.
[349] See [203] ‑ [204] above.
[350] ts 55.

[351] ts 55. Although Dr Wojnarowska initially said the factors 'have not been addressed', she clarified that by saying the respondent had not benefitted. In context, Dr Wojnarowska was not suggesting the factors were not dealt with in the programmes, but that they need to be addressed further, because the respondent has failed to retain the content or gain adequate understanding of the relevant factors.

[352] BOM 578 [119].
[353] BOM 578 [119].
[354] BOM 542 [55].
[355] ts 87.
[356] ts 87.
[357] ts 87.
[358] BOM 542 [56]; ts 103 ‑ 104.
[359] BOM 542 [56]; ts 103 ‑ 104.
[360] ts 103.
[361] BOM 579 [125].
[362] BOM 579 [127].
[363] ts 50.
[364] ts 51.
[365] BOM 549 [102]; ts 99.
[366] ts 92.
[367] ts 111.

[368] See, for instance, The State of Western Australia v Rao [2019] WASC 93 (Rao) [14], [137] ‑ [138] and The State of Western Australia v ACW [2020] WASC 177 [142] ‑ [143].

[369] Rao [137].
[370] ts 126.
[371] ts 127.
[372] BOM 513 ‑ 514.
[373] BOM 578 [121].
[374] BOM 578 [121].
[375] ts 59.
[376] BOM 578 [121]; ts 59.
[377] ts 59.
[378] ts 60.
[379] BOM 578 [122].
[380] BOM 547 [89]; ts 88.
[381] BOM 547 [89]; ts 88.
[382] BOM 547 [89]
[383] ts 88.
[384] BOM 547 [89]
[385] BOM 547 [90]
[386] See [151] above.
[387] BOM 547 at [91]
[388] BOM 487 - 488.
[389] ts 59.
[390] ts 89.
[391] ts 89.
[392] ts 59 - 60.
[393] BOM 547 [93].
[394] BOM 547 [93].
[395] ts 89.
[396] ts 76.
[397] BOM 547 [93].
[398] ts 91.
[399] ts 62.
[400] ts 62.
[401] ts 87, 96.
[402] ts 107.
[403] ts 87.
[404] ts 87.
[405] See [29] above.
[406] ts 61 - 62.
[407] ts 63.
[408] ts 67; BOM 579 [127].
[409] ts 58.
[410] ts 65.
[411] ts 65.
[412] ts 61, 62, 72.
[413] ts 61.
[414] ts 61.
[415] ts 61, 64.
[416] ts 61.
[417] ts 64.
[418] ts 61.
[419] ts 66.
[420] ts 67.
[421] ts 77.
[422] ts 71.
[423] ts 71.
[424] BOM 550 at [104].
[425] ts 98.
[426] ts 110.
[427] ts 116.
[428] ts 114, 116.
[429] ts 116 ‑ 117.
[430] ts 117.
[431] ts 116 ‑ 117.
[432] ts 98.
[433] BOM 549 [104].
[434] BOM 549-550 at [104].
[435] ts 100; BOM 550 at [104].
[436] ts 99.
[437] BOM 549 at [104].
[438] BOM 547 at [93].
[439] ts 73.
[440] ts 63.
[441] BOM 579 at [126].
[442] ts 66, ts 70.
[443] ts 67.
[444] ts 58, 65, 74.
[445] ts 104.
[446] ts 104 ‑ 105.
[447] ts 100.
[448] ts 100.
[449] ts 105.
[450] ts 108.
[451] ts 108.
[452] ts 109.
[453] ts 109.
[454] ts 116.
[455] ts 106, 116.
[456] ts 66; ts 99.
[457] ts 68.
[458] ts 68.
[459] ts 68.
[460] ts 108 ‑ 109.

[461] BOM 583.

[462] ts 96.
[463] ts 96.
[464] ts 96.

[465] BOM 583. I note that Ms Comery reported that the respondent referred to only one CCO with whom he had a grievance.

[466] See [141] above.
[467] See [314] above.
[468] ts 64.
[469] ts 64.
[470] BOM 527.

[471] The proposed condition also specified offences that were not serious sexual offences (as defined) under the DSO Act, but are now serious offences under the HRSO Act.

[472] ts 75.
[473] ts 76.
[474] ts 105.
[475] ts 105.
[476] See [165] and [182] above.
[477] BOM 556 [24].
[478] BOM 557 [26].
[479] BOM 557 [27].
[480] BOM 557 [28].
[481] BOM 557 [29].
[482] BOM 557 [30].
[483] BOM 558 [31].
[484] BOM 558 [32].
[485] BOM 558 [33].
[486] BOM 558 [34].
[487] BOM 558 at [35].
[488] BOM 558 at [36].
[489] BOM 558 - 559 at [37].
[490] BOM 558-559 at [37].
[491] ts 68.
[492] See [177] above.
[493] See [204] above.
[494] BOM 559 at [38].
[495] BOM 559 at [39].
[496] BOM 559 at [39].
[497] BOM 559 at [39].
[498] BOM 559 at [40].
[499] BOM 559 at [41].
[500] BOM 559 at [41].
[501] ts 118.

[502] DSO Act s 18(1); HRSO Act s 30(2). The only difference between the statutes in this regard is that s 18(1)(f) of the DSO Act provided for a condition that the person 'not commit a sexual offence as defined in the Evidence Act 1906 section 36A during the period of the order', whereas s 30(2)(f) of the HRSO Act provides for a condition that the person 'not commit a serious offence during the period of the order'.

[503] ts 120 - 121.
[504] BOM 585; Exhibit 2.
[505] Exhibit 2.
[506] ts 121.
[507] ts 121.
[508] ts 121.
[509] ts 120.
[510] ts 121.
[511] ts 130.
[512] ts 122.
[513] ts 122.
[514] ts 129.
[515] ts 122.
[516] ts 123.
[517] ts 124.
[518] ts 125.
[519] BOM 585.

[520] BOM 585. The analysis suggested that police involvement might have to be limited to attending to alleged criminal offences or confirmed breaches of conditions. However, counsel for the applicant agreed, in his closing address, that such police involvement is what would normally be the case for other high risk serious offenders.

[521] ts 127.
[522] ts 58.
[523] ts 128.
[524] ts 130.
[525] ts 129.
[526] ts 129.
[527] BOM 584.
[528] ts 130.
[529] BOM 584.
[530] BOM 584; ts 130.
[531] ts 130.
[532] BOM 534 [10] - [11].
[533] BOM 591 - 596.
[534] ts 130.
[535] Exhibit 2; ts 123 ‑ 124.
[536] ts 123 ‑ 124.
[537] ts 124.
[538] BOM 587.
[539] BOM 587.
[540] ts 123.
[541] ts 123.
[542] ts 124.
[543] ts 132 ‑ 133.
[544] ts 143.
[545] ts 144.
[546] ts 145.
[547] See [268] above.
[548] ts 139.
[549] ts 137 - 138.
[550] ts 146.
[551] ts 147.
[552] ts 148 - 149.
[553] ts 150.
[554] ts 150.
[555] ts 150 ‑ 151.
[556] ts 151.
[557] ts 151.
[558] ts 151.
[559] ts 153.
[560] ts 153.
[561] ts 152.
[562] DPP (WA) v Griffiths [2015] WASC 393 at [103].
[563] See [322] above.
[564] Hart [52].

[565] ts 128.