Supreme Court of Western Australia

17 By an application dated 30 August 2019 the applicant applied for an order under s 23 of the DSO Act that the respondent had contravened conditions of the Supervision Order by committing the breach offences (contravention proceedings). The applicant sought orders that the Supervision Order be rescinded and that a continuing detention order be made in relation to the respondent.

18 The contravention proceedings were heard by Jenkins J.

19 On 6 February 2020 Jenkins J rescinded the Supervision Order and made a continuing detention order in relation to the respondent (CDO).[12] In arriving at her decision Jenkins J found that the respondent had failed to discharge the onus placed on him by s 23(1B) and s 23(1C) of the DSO Act of proving on the balance of probabilities that he would substantially comply with all of the standard conditions of a supervision order as specified in s 18 of the DSO Act. Her Honour identified the 'most telling' reasons for her decision that the respondent had failed to satisfy her on the balance of probabilities that he would substantially comply with the standard conditions of a supervision order to be as follows:[13]

1. The psychiatrist who gave evidence on the contravention proceedings, Dr Gosia Wojnarowska, remained of the opinion that the respondent was at a high risk of sexually reoffending;[14]

2. Given the respondent's history of serious sexual offending the risk identified by Dr Wojnarowska necessarily included a high risk of serious sexual offending which could only be managed by the respondent's adherence to the conditions of a strict supervision order;

3. Dr Wojnarowska's opinion was that the respondent's risk of serious sexual offending could only be managed on a supervision order with the addition of one-to-one psychological counselling and antilibidinal medication to reduce his sex drive;

4. The breach offences provided telling evidence of the respondent's sexual and other frustrations while on the Supervision Order and of his inability to resist the impulse to breach the conditions of the Supervision Order in an attempt to alleviate those frustrations in the short term;

5. Although the respondent's conduct on the Supervision Order established that he was likely to comply in the future with some of the standard conditions of a supervision order such as reporting to a CCO as directed and not leaving Western Australia, in all of the circumstances including the breach offences she was not satisfied that he would comply with important standard conditions such as complying with the reasonable directions of a CCO and being subject to electronic monitoring;

6. The respondent had no accommodation and no team of support workers to supervise him in the community; and

7. The further conditions which could be added to the Supervision Order so as to try and ensure substantial compliance with the standard conditions, prevent serious sexual offending and protect the community were unable to be implemented immediately or in the near future. In particular, a trial of antilibidinal medication had not commenced and therefore it could not be said whether the respondent was likely to comply with the medication and, if he was, whether the medication would be successful in reducing his sex drive. In addition, it had been determined that the respondent was unsuitable for psychological counselling and a reassessment of this position would not be undertaken until there had been a three month trial of the antilibidinal medication.

20 In concluding her reasons for decision Jenkins J said the following:[15]

The [CDO] will be reviewed one year after [the respondent’s] sentence for the breach offences ends.

It is in the best interests of the respondent and the community that a trial of the antilibidinal medication proceeds. If it is a success and the respondent is able to engage in one-to-one psychological counselling, community accommodation is available for the respondent and community supervision is available to the respondent there would be good reasons to believe that a [supervision order] could be made at the review. Those are the matters which should be pursued prior to any review of the CDO.

I am disappointed that the respondent has been assessed as being unsuitable for one-to-one psychological counselling. I cannot see how the respondent can improve his understanding of consent to sexual behaviour and his triggers to offending without such assistance.

I note in this regard that the assessment was made in part relying on one, one-to-one assessment by Dr Bannister. It seems to me to be unrealistic to expect that sufficient rapport would be gained between an assessor and the respondent or that sufficient understanding of the concept of psychological counselling is likely to be gained by the respondent, during one such meeting. This is because of the respondent’s limitations which have been set out in these reasons and elsewhere.

The respondent is a cognitively impaired, socially disadvantaged young man. His serious sexual offences were committed before he was 19 years old when he was living in, and after he had been brought up in, a violent and dysfunctional world. There is no evidence to show that close adult males had modelled appropriate sexual behaviour to him or that any concerted efforts had been made to educate him in appropriate sexual behaviour. He has now been in custody for all but three to four months of the past six years. The limited time he was in the community on the [Supervision Order] was spent in Perth, a completely unfamiliar urban environment, away from his family and country. He was supervised 24 hours a day by people he did not know initially. He did not have the support or company of any family member or friend.

There is no doubt that potential victims should be safeguarded from the respondent. But given the above circumstances, it is also clear that the State has a responsibility to educate, guide and provide services to the respondent in a concerted attempt to ensure that the [DSO Act] does not operate so as to keep him incarcerated on [a continuing detention order] for the rest of his life.

21 As I have already indicated, the application was originally listed for hearing before me on 6 October 2021 but was on that date adjourned to 16 February 2021. The circumstances that led to me adjourning the hearing of the application were as follows.

22 As is apparent from my above reference to Jenkins J’s reasons for making the CDO, one of her Honour’s recommendations was that the respondent be trialled on antilibidinal medication. However, by the time the application came before me on 6 October 2021 the respondent had not been trialled on antilibidinal medication. He had not been trialled on antilibidinal medication due to apparently uncompromising and conflicting stances that had to that point in time been taken by the Department of Justice’s (Department) Forensic and Specialist Psychological Service (FSPS) and the State Forensic Mental Health Service (MHS) during the approximate 20-month period since Jenkins J had made the CDO.

23 The stance that had been taken by the FSPS was set out in two letters prepared for the Court by Dr Nadia Dias, Acting Principal Manager of the FSPS, dated 1 September 2021 and 1 October 2021. The letters had been provided to the Court in advance of the listed hearing date by the applicant’s solicitor. The letters contained substantially the same information although the letter dated 1 October 2021 was slightly more detailed. The letter dated 1 October 2021 was in the following terms (footnotes and references omitted):

I respectfully wish to inform the Court that the requested Treatment Progress Report in relation to [the respondent] is unable to be provided for Court. This is due to [the respondent] having not participated in any intervention or programs during his current term of imprisonment. This is consistent with recommendations made by Dr Bannister in the most recent Dangerous Sex Offender Treatment Suitability Report (04/02/20; paragraph 35).

[The respondent] presents with a range of cognitive deficits that have been well documented in previous assessments and has been assessed as meeting the diagnostic criteria for Fetal Alcohol Spectrum Disorder and intellectual disability. Dr Bannister documented in his assessment issues pertaining to treatment readiness and a range of deficits, including: expressive language difficulties, limited verbal skills, intellectual deficits, poor attentional skills, and problems with executive functioning (resulting in issues with higher level planning, reasoning and judgment) that may limit any meaningful gains to be made from individual intervention.

[The respondent's] difficulties are unchanged and treatment recommendations previously made remain appropriate. Specifically, the most suitable intervention strategies for [the respondent] continue to be those provided by the National Disability Insurance Scheme. This would facilitate access to services most relevant to [the respondent] including Occupational Therapy and specialist services to assist with his adaptive functioning. Consistent with Dr Bannister’s recommendations, a Forensic Psychological Service psychologist could be made available to act in a consultative role to provide specific relevant advice regarding the respondent’s risk factors.

In accordance with Dr Bannister’s report, in the event [the respondent] commences anti-libidinal treatment, reassessment of [the respondent’s] suitability for psychological treatment could be considered appropriate once effective testosterone suppression has been reached, which was noted to be three months after treatment is initiated. Notwithstanding it was also noted ‘it is anticipated that the impact of addressing his sexual preoccupation through medication is unlikely to have a profound effect on his amenability for counselling’.

24 The Treatment Suitability Report prepared by Dr Benjamin Bannister, Senior Forensic Psychologist with the Department’s Forensic Psychological Assessment Team, dated 4 February 2020 that was referred to in Dr Dias’ letter, and to which I will make further reference below, was before Jenkins J during the contravention proceedings.

25 The stance that had been taken by the MHS since the making of the CDO in relation to the provision of antilibidinal treatment to the respondent, at least up until only days before the listed hearing date, was that no such treatment would be provided to him until he was engaged in psychological intervention. However, on 5 October 2021 the applicant’s solicitor provided to the Court a letter written by Dr Peter Wynn Owen, Consultant Forensic Psychiatrist with the MHS, to Ms Aimee Goode, a Team Leader with the Department’s Community Offender Management Unit (COMU), dated 4 October 2021. Dr Wynn Owen had apparently written his letter in response to the position of the FSPS as stated in Dr Dias’ two letters. Dr Wynn Owen’s letter indicated that there had been a very recent and subtle shift in the MHS’s position. In his letter Dr Wynn Owen relevantly said the following:

The [MHS], in keeping with international best practice, clinical and ethical, has a number of criteria [that are] required to be met for a specific treatment to be offered as an anti-libidinal. It is not the position of the [MHS] that anti-libidinal treatment should be used as a stand alone risk management tool.

[The respondent] meets inclusion criteria relating to sexual preoccupation and high sex drive, however, I note that he has not been diagnosed with a paraphilia. This may, in part, be because of the diagnostic difficulties encountered when assessing someone who is quite unable to understand and describe their inner world, even if willing to do so.

There is also a quality of life consideration, if [the respondent] can manage his sex drive he has an opportunity to return to the community and remain there.

Absent a paraphilia diagnosis but with such a significant potential negative outcome of either no therapy or being unable to benefit from therapy, being long term incarceration, it is appropriate, with Guardian consent, to trial anti-libidinal treatment if that is part of a therapeutic and criminogenic intervention strategy that includes individual therapy. The treatment would be time limited by its side effects but may offer improved therapeutic engagement for some five years through reduced sex drive and sexual preoccupation.

I note that the side effects of hormonal antilibidinal treatment are significant and potentially serious, treatment duration is limited and regular physical, haematological and biochemical monitoring is required while treatment continues.

The commencement of treatment by the [MHS] would be contingent on a commitment from DOJ Specialist Psychology/Forensic Psychology Service to assess [the respondent's] treatment suitability as soon as possible after a 'steady state' adequate testosterone suppression has been reached.

If, further to this assessment, SPS/FPS decline to offer treatment the anti‑libidinal medication will be ceased.

(I note that it has been identified that [the respondent] requires both criminogenic (ie specifically addressing his offending) and non‑criminogenic therapeutic intervention, his engagement in treatment and his treatment outcomes can potentially be improved in both of these endeavours if anti-libidinal treatment is successful.)

26 In short the MHS, in the days before the listed hearing, indicated a willingness to commence the respondent on a trial of antilibidinal medication on the condition that the FSPS undertook to assess the respondent’s suitability for psychological treatment as soon as possible after ‘steady state’ adequate testosterone suppression had been reached.

27 In addition to the situation that existed in relation to the issue of the respondent’s antilibidinal treatment there was still, as at 6 October 2021, uncertainty as to the precise extent of the funded support that would be available to the respondent, through the National Disability Insurance Scheme (NDIS), if he was released into the community on a supervision order.

28 It was against the above background, and in light of the obvious relevance to the determination of the application of the respondent being trialled on antilibidinal medication and having sufficient NDIS funded support in the community, that the adjournment of the hearing was applied for and granted. I note that before granting the adjournment I confirmed with the respondent’s counsel that the respondent was willing to subject himself to antilibidinal treatment. I also indicated that my expectation was that the FSPS would give the undertaking requested by Dr Wynn Owen in his letter.[16]

29 In my view, the fact that the FSPS and the MHS had taken and maintained their above outlined stances with the result that the respondent had not, by 6 October 2021, been trialled on antilibidinal medication was unsatisfactory. This was particularly so given that one of Jenkins J’s ‘telling reasons’ for making the CDO was that a trial of the respondent on antilibidinal medication had not commenced and given also that her Honour had stated that it would be in the best interests of the respondent for him to be trialled on antilibidinal medication.

30 In my view it was also unsatisfactory that the NDIS had not, prior to 6 October 2021, done what was necessary to ensure that it had finalised its plan for the support of the respondent if he was released into the community.

31 At the hearing of the application the applicant tendered, without objection, the following:

1. A Book of Materials comprised of two volumes, volume 1 being dated 30 June 2021[17] and volume 2 being dated 24 September 2021;[18]

2. The above referred to letter from Dr Dias to the court dated 1 October 2021; [19]

3. The above referred to letter from Dr Wynn Owen to Ms Goode dated 4 October 2021; [20]

4. A Supplementary Book of Materials dated 7 February 2022; [21]

5. An email from Dr Wynn Owen to Ms Goode dated 13 February 2022;[22]

6. Testosterone level test results relating to the respondent dated 3 February 2022;[23] and

7. An email from Dr Wojnarowska to the applicant's counsel dated 18 February 2022.[24]

32 Volume 1 of the Book of Materials includes a variety of materials relating to the respondent including his criminal record, his medical records, previous judgments and previous reports.

33 Volume 2 of the Book of Materials, in addition to the letter written by Dr Dias dated 1 September 2021 to which I have already referred, contains the following reports prepared specifically for the purposes of the application:

1. A report prepared by Dr Wojnarowska, Consultant Psychiatrist, dated 23 September 2021;[25] and

2. A Community Supervision Assessment Report prepared by Ms Emma Cashmore, Senior CCO with the COMU, dated 21 September 2021.

34 The Supplementary Book of Materials contains the following reports and other materials also prepared specifically for the purposes of the application:

1. A Forensic Psychological Assessment Team Updated Treatment Suitability Report prepared by Dr Bannister dated 2 February 2022;

2. An Update Community Supervision Assessment Report prepared by Ms Cashmore dated 2 February 2022;

3. Blood test results for the respondent dated 29 November 2021;

4. Medical Progress Notes prepared by the Department in relation to the respondent for the period 3 December 2021 ‑ 11 January 2022; and

5. The approved 12-month NDIS plan for the respondent dated 14 December 2021 (NDIS Plan).[26]

35 At the hearing of the application Dr Wojnarowska, Dr Bannister, Ms Cashmore and Dr Wynn Owen were called by the applicant to give supplementary oral evidence.

36 The respondent did not adduce any evidence on the application.

37 Dr Wojnarowska was responsible for assessing the respondent for the purposes of, and provided evidence on, the initial application under the DSO Act, the review of the initial continuing detention order conducted by Fiannaca J, and the contravention proceedings.

38 Ms Cashmore is the respondent's current CCO.

39 I turn now to dealing in more detail with the provisions of the Act by reference to which the application must be determined as well as with the legal principles that are applicable to the determination of the application.

40 In relation to the applicable legal principles, in The State of Western Australia v ZSJ,[28] a case in which the State made an application under div 2 of the DSO Act but which, given the repeal of the DSO Act, fell to be decided under the provisions of the Act, Fiannaca J made the following observations (citations omitted):

As will emerge from the outline below of the statutory framework under the DSO Act and [the Act], the concepts and criteria with which the court is concerned in determining an application of this kind are substantially the same under both statutes. Although I have reached that view on the basis of the ordinary meaning of the provisions of both statutes, having regard to the context of the provisions within the statutes and the objects underlying the statutes, the construction is confirmed, in my opinion, by the second reading speech made to the Legislative Assembly in respect of the High Risk Offenders Bill 2019 by the Honourable Attorney General. 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 Act], with appropriate adaptation in cases involving non-sexual offences.

41 I respectfully agree with Fiannaca J's observations. In my opinion the case law decided under the DSO Act in relation to applications for review of continuing detention orders remains relevant to the determination of such applications under the provisions of the Act. Accordingly, the cases to which I will refer in dealing with the legal principles applicable to the determination of the application will be cases that have been concerned with proceedings under the DSO Act.

42 Section 63 of the Act provides:

The purpose of this Part is to ensure that an offender's detention under a continuing detention order is regularly reviewed.[29]

43 Section 64 of the Act provides:[30]

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.

44 Section 66 of the Act relevantly provides:

Dealing with application

(1) As soon as practicable after an application is made under section 64...,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.

45 Section 68 of the Act provides:

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 the adequate protection of the community.

46 The definition of the term 'high risk serious offender' is contained in s 7(1) of the Act. Section 7(1) is in the following terms:

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.

47 The term 'restriction order' is defined in s 3 of the 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.[31] Thus s 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.

48 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.

49 As to the term 'serious offence' used in s 7(1), s 3 and s 5(1) of the Act provide that a 'serious offence' is an offence that 'is specified in Schedule 1 Division 1 of the Act', or 'is specified in Schedule 1 Division 2 and is committed in the circumstances indicated in relation to that offence in that Division'. Section 5(3) of the Act provides that an offence is a ‘serious offence’ if it is an ‘attempt...to commit an offence that is a serious offence’ under s 5(1). Offences that were 'serious sexual offences' under the DSO Act come within the definition of a 'serious offence' under the Act because they are offences that are specified in sch 1 div 1 of the Act.

50 It follows 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.[32]

51 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 of the matters referred to in s 7(1) 'by acceptable and cogent evidence and to a high degree of probability'. The 'high degree of probability' standard is a higher standard than the standard of the balance of probabilities but is a lesser standard than the standard of beyond reasonable doubt. The standard is otherwise incapable of further definition.[33]

52 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.[34] 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.

53 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.[35] 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.[36]

54 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 unacceptable 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.

55 The use of the word 'adequate' in s 7(1) indicates that a qualitative assessment is required. It cannot be assumed that the most preventative action is detention and that therefore the protection of the community will always favour such an order.[37] In this regard I respectfully adopt the following statements of Beech J (as his Honour then was) in Director of Public Prosecutions (WA) v DAL [No 2][38] which, although made in relation to review proceedings under the DSO Act, are equally applicable to the operation of s 7(1) and s 68(2) of the Act (footnotes omitted):

In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. The [DSO Act] does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the [DSO Act] applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.

56 The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community.[39]

57 Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.

58 Section 7(3) of the 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. The matters are as follows:

(a) any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b) any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c) information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d) whether or not there is any pattern of offending behaviour by the offender;
(e) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g) the offender's antecedents and criminal record;
(h) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i) the need to protect members of the community from that risk;
(j) any other relevant matter.

59 By s 68(1)(b)(ii) of the Act, the power of the court to rescind the continuing detention order and make a supervision order is expressed to be subject to s 29. Section 29 relevantly provides:

(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 proof as to the matter described in subsection (1) is on the offender.

60 The term 'standard conditions' in relation to a supervision order is defined in s 3 of the Act to mean a condition that under s 30(2) of the Act must be included in the order. Section 30(2) of the Act specifies seven conditions that must be included in any supervision order.

61 Therefore, the effect of s 29(1) and s 29(2) of the Act is that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions set out in s 30(2) of the Act before the court can make a supervision order in relation to them.

62 For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[40]

63 As to the purpose of a review hearing under the Act, the following statements made by Hall J in The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5][41] in relation to the review process provided for under the DSO Act are apposite (footnotes omitted):

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.

64 As I have indicated, in deciding if the respondent remains a high risk serious offender I must have regard to the matters specified in s 7(3) of the Act. I therefore turn to addressing the matters specified in s 7(3) of the Act.

The respondent's personal circumstances and antecedents - s 7(3)(g)

65 The respondent's personal circumstances and antecedents have been set out in previous decisions of this court. I will not repeat everything that has already been said in the previous decisions. However, my remarks should be read in conjunction with the previous decisions.[42]

66 The respondent was born on 5 December 1995. He is therefore now 25 years old.

67 The respondent's mother is hearing impaired. She communicates with gestures and pictures. The respondent does not know his father.

68 The respondent's mother has a significant problem with alcohol abuse. She consumed alcohol while she was pregnant with the respondent.

69 The respondent was exposed to significant substance abuse and violence as a child and as an adolescent. His childhood was dysfunctional. He lived with various relatives in different Aboriginal communities in the Kimberley area.

70 By 2012, when the respondent was 16 or 17 years old, he had developed a significant problem with alcohol and cannabis use.

71 The respondent only attended school for very brief and sporadic periods. However, his teachers reported that he understood customs, beliefs and storytelling.

72 The respondent has literacy and numeracy difficulties. He has very little experience in performing activities such as money management, shopping or travelling on public transport. He has substantial difficulties in learning and retaining new information. He is easily irritated, finds it difficult to concentrate on topics that are not of interest to him, has a concrete thinking style which inhibits conceptual reasoning and has difficulty controlling his impulses to act.

73 The respondent possesses some organisational and planning abilities.

74 It is likely that chronic substance abuse has exacerbated any pre-existing cognitive difficulties that the respondent has.

75 In 2007 the respondent, who was about 12 years old at the time, suffered emotional and psychological difficulties and further dislocation in his family life following the death of a cousin who was also a cultural brother. The death of the respondent’s cousin appears to have been a trigger for the respondent engaging in antisocial behaviour, including substance abuse and offending.

76 The respondent has an official diagnosis of Intellectual Disability secondary to FASD.

77 The respondent is subject to a Guardianship Order which was made on 5 June 2018. The Office of the Public Advocate has been appointed as the respondent's plenary guardian. A review of the Guardianship Order is scheduled for 5 June 2023.

78 The respondent is subject to an Administration Order. The Public Trustee is the respondent's appointed administrator.

The respondent's history of offending - s 7(3)(g)

79 The respondent was first convicted of an offence in December 2008 when he was 12 years old. He was convicted of an offence of aggravated burglary on a dwelling. The respondent has subsequently been convicted of a number of burglaries and similar offences.

80 The respondent has a history of sexual offending. It is the respondent's sexual offending that has resulted in him being detained under the provisions of the DSO Act and the Act. The respondent’s history of sexual offending is as follows.

81 In May 2010 the respondent was convicted of an offence of sexually penetrating a 12-year-old girl who was unconscious due to being intoxicated. The respondent committed the offence, with two others, in December 2009 when he was 14 years old. The respondent was sentenced to 8 months detention for the offence.

82 On 2 March 2011 the respondent was convicted of two offences of assault and one offence of trespass. He committed the offences a very short time after he had been released from the period of detention imposed on him for the offence committed by him in December 2009. He committed the two assault offences on 29 September 2010 and the offence of trespass on 2 October 2010. He committed the offences while he was staying at the Warmun Aboriginal Community (Warmun). Each offence involved the respondent entering premises without consent.

83 The two assault offences were comprised of the respondent twice touching a 13-year-old girl on the buttocks while she was asleep. The trespass offence was comprised of the respondent waking a 21-year-old woman by sitting on her bed. The respondent was sentenced for the three offences to a 6-month intensive youth supervision order.

84 In February 2012 the respondent was convicted of indecently dealing with a child in circumstances of aggravation. He committed the offence on 7 December 2011 at Warmun. The respondent was 16 years old at the time. The victim was 14 years old. The respondent entered the victim's house carrying a pair of scissors. He used the scissors to cut a hole in the victim's shorts and underpants to expose her genital area while she was asleep. He then pushed his penis through the hole in her clothing causing her to wake up. The victim was distressed and called for help and the respondent ran from the scene. The respondent was sentenced to 8 months detention for the offence.

85 In September 2013 the respondent was convicted of an offence of unlawful and indecent assault. He committed the offence in August 2013 when he was 17 years old. The offence was comprised of the respondent inappropriately touching the 31-year-old victim on two separate occasions while he was visiting her house. On the first occasion the respondent put his hand up the victim's skirt and touched her vagina over the outside of her underclothes while she bent over to attend to a young child. On the second occasion the respondent was being escorted away from the premises by the victim when he told her that she had a 'nice arse' and grabbed her buttocks. The respondent was sentenced to 3 months detention for the offences.

86 In June 2015 the respondent, who by this time was 19 years old, was convicted of an offence of attempted aggravated sexual penetration without consent. He committed the offence in February 2014. The victim was 24 years old. The respondent and a co-offender were drinking with the victim at the front of a house in Kununurra. The respondent repeatedly asked the victim for sex and she told him that she was not interested. The respondent and his co-offender repeatedly hit the victim's head causing her to fall to the ground. They then repeatedly kicked the victim's head and other parts of her body. The respondent's co-offender then sat on top of the victim and the respondent pulled her shorts down to her knees despite her attempts to pull them up. The respondent and his co-offender ran off when a neighbour, who had witnessed the incident, shouted out that they were calling the police. The victim received cuts, grazes and bruises to various parts of her body. The respondent was sentenced to 3 years imprisonment for the offence.

87 It was while the respondent was serving the 3 year sentence imposed for the attempted aggravated sexual penetration without consent offence that the State made the original application under the DSO Act.

88 The respondent's sexual penetration offences and his aggravated indecent dealing with a child offence are 'serious offences' as defined in s 5(1) of the Act.

Efforts by offender to address causes of offending behaviour including participation in rehabilitation programs - s 7(3)(e) and s 7(3)(f)

Antilibidinal treatment

89 On 8 December 2021 the respondent commenced a trial course of the hormonal antilibidinal medication Depo-Provera. The medication is administered by injection on a monthly basis. The respondent's subsequent doses were administered on 7 January 2022 and on 7 or 8 February 2022.[43]

90 Prior to the respondent commencing the antilibidinal medication his testosterone level was tested and a full blood test profile was undertaken. The respondent's testosterone level was 26 nmol/L.[44] Without any suppression the testosterone level in men is 10.0 ‑ 35.0 nmol/L.[45]

91 On 3 February 2022 the respondent's testosterone level was again tested. The test revealed that the respondent's testosterone level had reduced to 9.2 nmol/L.[46]

Rehabilitation programs and counselling

92 The respondent has not participated in any rehabilitation program or psychological counselling since the imposition of the CDO.

Reports prepared under s 74 and extent to which respondent cooperated in examinations - s 7(3)(a)

Dr Wojnarowska's evidence

Report[47]

93 Dr Wojnarowska's report reveals the following.

94 Dr Wojnarowska interviewed the respondent on 1 September 2021. Further, in preparing her report she reviewed volume 1 of the Book of Materials and liaised with Ms Cashmore.

95 The respondent did not recognise Dr Wojnarowska from her previous assessments of him.

96 The respondent was initially hostile during the interview. However, he managed to engage albeit reluctantly. He became more amenable with the progression of the interview, although his affect was anxious and at times angry.

97 The respondent struggled to deal with Dr Wojnarowska’s questions. He quickly became restless and fidgety.

98 The respondent struggled to understand his legal situation but understood that he could be released after his upcoming hearing. He stated that once he was released into the community he would be on parole.

99 The respondent expressed to Dr Wojnarowska the opinion that what was in the past had no relevance to the future. He stated that he was a 'changed man'. However, he was unable to explain in what way he had changed. He had no strategies to manage his future risk apart from repeating that he would 'not re-offend and walk away'.

100 The respondent spoke to Dr Wojnarowska about the injustice that he perceived he had suffered as a result of being returned to prison. He also talked about his preparedness to adhere to the conditions of a supervision order. When Dr Wojnarowska questioned the respondent about what the conditions of a supervision order would be, he said that he would be required to 'wear the bracelet, not drink alcohol and will have a curfew'.

101 When Dr Wojnarowska questioned the respondent about his risk of reoffending, he repeated that he was a 'changed man' and that there was therefore no risk of him reoffending.

102 The respondent told Dr Wojnarowska that he was prepared to abstain from alcohol and illicit substances during the 'parole' period. He said that once the parole period was completed he planned to travel to his community where he expects he will be allowed to access alcohol.

103 The respondent expressed the belief that alcohol would not affect his risk of reoffending because he would be capable of controlling his alcohol intake and consequently not get intoxicated.

104 When Dr Wojnarowska questioned the respondent about risk scenarios he was unable to provide any.

105 The respondent expressed the opinion that he did not require any psychological counselling. However, he stated that if he was ordered by the court to undergo counselling or take medication he would be compliant. The respondent added that he currently had no sexual interests and therefore this was not a risk factor as he would be able to manage any sexual urges in the community.

106 The respondent expressed a willingness to obey the conditions of a supervision order including Global Positioning System (GPS) monitoring, a curfew condition, and exclusion zone conditions. He expressed an understanding that there would be places that he would not be permitted to frequent. However, in Dr Wojnarowska's view the respondent continues to have no insight into his offending cycle or factors that will place him at risk of re-offending.

107 In assessing the respondent Dr Wojnarowska did not detect any psychotic features. The respondent's thoughts were properly organised and coherent.

108 Dr Wojnarowska's diagnostic formulation of the respondent remains unchanged from her last assessment of him. The respondent has a confirmed diagnosis of FASD and Intellectual Disability with prominent attention difficulties. In addition, in Dr Wojnarowka's opinion the respondent fulfils the diagnostic criteria for Antisocial Personality Disorder and Alcohol Use Disorder currently in remission due to him being in the controlled prison environment.

109 In Dr Wojnarowska’s opinion the respondent does not suffer from any major mental illness and does not present with strong psychopathic traits. As the respondent refused to discuss his offending, Dr Wojnarowska was unable to clarify whether the respondent presents with any sexual deviance.

110 In assessing the risk of the respondent committing further sexual offences Dr Wojnarowska made use of three well recognised risk assessment tools, specifically the STATIC-99R, the Hare Psychopathy Checklist (PCL-R) and the Risk for Sexual Violence Protocol (RSVP).

111 Dr Wojnarowska's use of the STATIC-99R revealed no change from her last assessment of the respondent. On the STATIC-99R the respondent remains within the high risk category of sexual re-offending. 99.1% of sexual offenders scored at or below the respondent's score and only 0.9% scored higher.

112 The score obtained by the respondent from Dr Wojnarowska's application of the PCL-R was equal to the score that was obtained during her previous assessments of him. The score was in the moderate range, below the threshold usually required to confirm a diagnosis of psychopathy. The respondent scored in the low range on the interpersonal and affective domain and received moderate scores in the social deviance domain.

113 In making use of the RSVP Dr Wojnarowska identified the following factors relevant to the assessment of the risk of the respondent committing further sexual offences:

1. The chronicity and diversity of the respondent’s offending history: The respondent’s last offence was an escalation of his previous offending in that it involved the infliction of a high degree of violence to the victim;

2. The respondent’s lack of insight into his dramatic history and legal situation: The respondent’s lack of insight into these matters is associated with his neurocognitive difficulties, his young age and his dramatic life experiences;

3. The respondent’s difficulty in coping with stress associated with the interview: This is relevant to the respondent's risk management and indicates that he is likely to struggle with understanding the conditions of a supervision order, the duration of the order and the possible consequences of breaching the order;

4. The respondent's use of substances: The respondent’s use of substances was strongly present when he lived in the community and was causally related to his offending. Although during the interview the respondent expressed a willingness to abstain from illicit substances and alcohol during the duration of any supervision order, he was non-committal when questioned about the time beyond any order. This is highly relevant in assessing the respondent's risk of reoffending;

5. The respondent’s presentation during the interview: The respondent was at times hostile during the interview. He was able to control his emotions but there was evidence of underlying anger and resentment. The respondent's hostility is contextual and aimed at people in authority. This is likely to be relevant in his management in the community but does not directly increase his risk of violence;

6. Problems with relationships: Historically the respondent has always had difficulties in this area. He has previously reported experiencing sexual frustration and expressed a desire to access sexual services. However, during the interview he denied having any sexual interest and dismissed questions regarding his sexual functioning. This factor is perceived to be highly relevant to both the respondent’s risk of reoffending and his management in the community;

7. Problems with planning: The respondent’s difficulties in this regard are related to his impairments in areas of neurocognitive functioning and are expected to be permanent;

8. Problems with supervision: The respondent is highly impulsive and has already demonstrated non-compliance;

9. Loneliness and boredom associated with a lack of structured activity: Loneliness and boredom could lead to the respondent resorting to alcohol and cannabis to regulate his mood; and

10. Limited opportunity to engage sexually with consenting age-appropriate females: This is perceived as an important risk factor.

114 In Dr Wojnarowska’s opinion the respondent’s risk scenario, specifically offending against vulnerable females who are known to him, has not changed since she last assessed him. She considers that if the respondent finds himself in an unfamiliar environment like Perth it will take him some time before he feels comfortable enough to approach a female.

115 Dr Wojnarowska points out that the respondent does not have a history of sexually assaulting women that are strangers to him. However, she notes that the respondent's conduct in committing the breach offences does reveal that he is capable of approaching females who are not known to him.

116 Dr Wojnarowska’s opinion, based on her assessment of the respondent using the above referred to risk assessment tools, is that the respondent remains a high risk of sexual reoffending if he is not subject to a continuing detention order or a supervision order. In her opinion the respondent’s main risk factors ‘include his expected high sexual drive associated with his young age paired with impulsivity and difficulty with inhibiting his behaviours’. In her opinion the respondent’s other relevant risk factors include the presence of Antisocial Personality Disorder, substance use, and difficulties associated with being socially accepted especially within the Perth area.

117 Dr Wojnarowska considers that if the respondent consents to antilibidinal treatment this will assist him to regulate his arousal and associated mood fluctuations. She considers that it may not be necessary to achieve castration levels of testosterone but that it will be sufficient to maintain testosterone levels in the low range. She considers that the duration of the treatment should not exceed two to three years.

118 In Dr Wojnarowska’s opinion, if the respondent is placed on a supervision order the duration of the order should be at least 10 years.

Oral evidence

119 In her oral evidence Dr Wojnarowska substantially maintained the material views and opinions expressed by her in her report. She also gave supplementary evidence as follows.

120 In her view the one significant change in the respondent's presentation from when she assessed him for the purposes of the contravention proceedings is that he now agrees that his behaviour in breaching the Supervision Order was wrong and has said that if in the future he experiences the desire to have sex he will approach his CCO and seek permission to use the services of a sex worker.[48] In the past the respondent has been reluctant to use the services of sex workers.[49] She considers that this change is important and that if the respondent actually follows through with his expressed plan the risk of him reoffending will be reduced.[50]

121 In her view the fact that the respondent did not sexually reoffend while in the community on the Supervision Order is an 'important...historical factor'.[51]

122 She has read Dr Bannister's Updated Treatment Suitability Report. It is obvious to her that even without psychological testing the respondent struggles to retain any learned material and that he struggles to understanding moral conflicts and abstract concepts.[52] After reading Dr Bannister's report it is very obvious to her that the respondent is not, and in her opinion will never be, capable of meaningfully participating in one-to-one insight oriented psychological treatment.[53]

123 She has read Dr Wynn Owen's email to Ms Goode dated 13 February 2022.[54] She is aware that there are very strict guidelines in relation to the use of antilibidinal medications.[55] She is aware that under these guidelines antilibidinal medication treatment should occur in parallel with psychological treatments.[56]

124 In her opinion, the suppression of the respondent's testosterone level from 36 nmol/L to 9.2 nmol/L is a very strong suppression.[57] Further, she is aware from reading Ms Cashmore's Updated Community Supervision Assessment Report that the respondent has reported frustration in relation to the impact of the antilibidinal medication on his ability to achieve an erection, sustain an erection and ejaculate.[58] She would be 'guided by' these statements of the respondent and consequently conclude that the testosterone level of 9.2 nmol/L has reduced his sex drive.[59]

125 In order to achieve chemical castration a testosterone reading of about 2 nmol/L is required.[60]

126 She agrees that high risk offenders can be successfully managed in the community with adequate supervision and treatment, and that high risk does not mean that the risk is unmanageable.[61] The respondent's high risk of reoffending does not indicate whether or not he is likely to comply with supervision.[62]

127 In her opinion the imminence of any reoffending by the respondent will very much depend on his access to alcohol and the degree of support that he receives.[63] The more bored, lonely and culturally deprived the respondent feels the more imminent his offending will be.[64]

128 In her opinion it would be appropriate for the respondent to continue to receive antilibidinal medication in conjunction with the support services that are to be provided to him under the NDIS Plan.[65] She considers that if this occurs the medication should be administered for at least the 'next year or so' while the respondent is adjusting to life in the community.[66]

129 In her view, if recreational and culturally appropriate activities are made available to the respondent this will assist in keeping him occupied and consequently also assist in the management of his risk.[67]

130 In her opinion if under the NDIS Plan the respondent is provided with 24-hour seven days a week support for at least three months, and if this level of support is reduced incrementally from 24 hours to 12 hours a day for three months and then to six hours a day for a further three months, the respondent's risk of reoffending can be managed in the community under a supervision order containing the conditions that are proposed by Ms Cashmore.[68] She is of this opinion even if it is assumed that the respondent's antilibidinal treatment will not be continued.[69]

131 She would be concerned if the support provided to the respondent under the NDIS Plan dropped after three months from 24-hour seven days a week support to only 6-hour seven days a week support. Such a drop in the level of support provided would, in her opinion, significantly increase the respondent's risk of reoffending.[70] However, she cannot discount the possibility that after three months of intensive support the respondent will be better adjusted than she currently expects him to be.[71]

132 In her opinion if the respondent is released on a supervision order the duration of the order should, given the respondent's young age and levels of disability, be for 10 years.[72]

Email dated 18 February 2022[73]

133 In her email dated 18 February 2022 Dr Wojnarowska made the following statements and expressed the following views:

1. She had a telephone conversation with Dr Wynn Owen in relation to the application on 16 February 2022 after she had finished giving her evidence;

2. At the time of her conversation with Dr Wynn Owen she had read the transcript of Dr Wynn Owen's evidence given on 17 February 2022;

3. During her conversation with Dr Wynn Owen he agreed that the interventions offered to the respondent through the respondent's NDIS package can be viewed as psychological intervention and as such would fulfill the criteria for psychological treatment required for the continuation of the respondent's antilibidinal treatment;

4. During her conversation with Dr Wynn Owen he opined that the respondent's current testosterone levels are still high and said that he will therefore increase the dose of the medication on the next appointment;

5. She agrees with Dr Wynn Owen's position that further reduction in the respondent's testosterone level is likely to further reduce his sexual preoccupation and as such will facilitate his engagement in psychological interventions; and

6. In her view, treatment with antilibidinal medication will have a two-fold effect on the respondent's risk reduction. One of the effects will be indirect, specifically facilitating the respondent's engagement in psychological interventions. The other effect will be direct, specifically decreasing the respondent's libido.

134 It is abundantly clear from Dr Wojnarowska's account of her conversation with Dr Wynn Owen that her subsequent references in her email to 'psychological interventions' are references to the interventions to be provided to the respondent under the NDIS Plan.

135 I state to avoid any uncertainty on the point that for obvious reasons I will not, in determining the application, rely on Dr Wojnarowska's account of her out of court conversation with Dr Wynn Owen as evidence of Dr Wynn Owen's views and opinions in relation to the subject matter of the conversation. I have only referred to Dr Wojnarowska's account of her conversation with Dr Wynn Owen because her account reveals the meaning of her subsequent references to 'psychological interventions'. I will refer to Dr Wynn Owen's evidence in relation to the issue of administering antilibidinal treatment to the respondent later in these reasons.

Medical, psychological or other assessments - s 7(3)(b)

Treatment Suitability Report 2020

136 As previously noted, in making the CDO Jenkins J identified as one of the ‘most telling’ reasons for her decision that the respondent had failed to satisfy her on the balance of probabilities that he would substantially comply with the standard conditions of a supervision order to be that it had been determined that the respondent was unsuitable for psychological counselling and that a reassessment of this position would not be undertaken until there had been a three month trial of antilibidinal medication. Jenkins J’s finding in this regard was based on the contents of the previously referred to Treatment Suitability Report prepared by Dr Bannister dated 4 February 2020.[74]

137 In his report Dr Bannister, after reviewing the various attempts at psychological intervention with the respondent over the years, stated that '[u]sing a well‑accepted model of treatment readiness to conceptualise [the respondent's] suitability for psychological intervention, it becomes clear that he does not currently meet sufficient criteria to be able to be considered treatment ready'.[75] By way of elaboration of this statement Dr Bannister said the following:[76]

...Specifically, in relation to cognitive factors, [the respondent] has clearly defined trust issues (that were illustrated well in the process of establishing an interview for the current assessment), and he appears to see little intrinsic value to treatment. In terms of affective factors, while [the respondent] appears to be able to experience and express emotional states, he seems much less able to reflect on such feelings. Concerning volitional factors, the goals that [the respondent] stated for possible treatment were related to external/practical issues rather than internal mechanisms. Regarding behavioural factors, [the respondent] appears to lack the capacity to comprehensively evaluate his own behaviour in a nuanced way, can struggle to form relationships and also lacks the capacity for the metacognition that is necessary to challenge one's own behaviour. Lastly, pertaining to identity factors, [the respondent] is unable to articulate how he has changed his behaviour through cognitive and affective mechanisms, and this likely confounds his ability to internalise any meaningful change.

138 Dr Bannister recommended that if the respondent remained in prison either as a sentenced prisoner or on a continuing detention order, psychological intervention should not occur. Dr Bannister recommended that if the respondent was released into the community on a supervision order the most effective therapeutic approach would be for him to re-engage with the occupational therapist that had previously been assigned to him from Facilitatrix, as well as with Teem Treasure staff to assist him with adaptive functioning. Dr Bannister further recommended that a FSPS psychologist should be made available to act in a consultative role so as to provide the occupational therapist and Teem Treasure staff with specific relevant advice regarding the respondent's risk relevant factors.

139 Dr Bannister noted that it might be that in a best-case scenario the psychologist would eventually take a more direct clinical role in the management and treatment of the respondent which would allow a greater opportunity to focus on the respondent's criminogenic factors. He stated that for this reason a male psychologist should ideally be allocated at the outset.

140 Dr Bannister considered that direct psychological intervention with the respondent should occur only if the respondent's behaviour stabilised, if he became more amenable to engage in individual psychological treatment, and if he was able to demonstrate an increased capacity to meaningfully gain from counselling. Dr Bannister considered that even if it did at some point become appropriate to engage the respondent in direct psychological intervention it was highly likely that the respondent would make only incremental improvements at best.

141 Finally, Dr Banister recommended that if the respondent commenced antilibidinal treatment it would be appropriate for a reassessment of his suitability for psychological treatment to occur once effective testosterone suppression had been reached. He noted that this would likely occur after about three months. He stated that a reassessment at that time would be indicated due to the treatment protocols supporting the use of antilibidinal treatment as an adjunct to psychological intervention. He expressed the view that the impact of addressing the respondent's sexual preoccupation through medication was unlikely to have a profound effect on his amenability for counselling.

Updated Treatment Suitability Report 2022

142 Dr Bannister's Updated Treatment Suitability Report dated 2 February 2022[77] reveals the following.

143 Dr Bannister interviewed the respondent at Acacia Prison on 14 December 2021 for 20 minutes. The respondent presented as angry, frustrated and accusatory. He was also dismissive and argumentative. He typically provided only brief responses to all questions. He was adamant that he wanted to be released and stated that if this did not occur he 'would go to Derby' to 'die in prison'.

144 Although the respondent had previously indicated that he would feel very uncomfortable talking to someone about personal issues such as sex, fantasy and masturbation, on this occasion he stated that there was 'no point' talking about such topics because he had no sex drive. He stated that this was due to medication that had been administered to him. He also stated that he did not know why he had been prescribed the medication.

145 Dr Bannister points out that the ultimate goal of treatment is to effect cognitive and behavioural change. In typical insight-oriented individual talk therapy, which is the area of expertise of treating clinicians in the Department, the emphasis is placed on personal discovery through developing a deeper understanding of oneself. In simple terms, and as outlined by the Multifactor Offender Readiness Model (MORM), to be suitable for treatment a person must be motivated, be able to respond appropriately, find the treatment relevant and meaningful, and have the capacity to meaningfully engage. The person must have a degree of cognitive sophistication in order to understand the processes at work.

146 In Dr Bannister's view nothing appears to have changed in the respondent's presentation or reported deficits that suggest that he is now suitable to engage in insight-oriented individual treatment. Using the MORM to conceptualise the respondent's suitability for insight-oriented individual treatment, it is clear to Dr Bannister that the factors that were relevant at the time of his previous assessment of the respondent remain present. Dr Bannister considers that of particular relevance to the respondent's readiness to engage in insight-oriented individual treatment are his affective, volitional and behavioural variables (specifically his capacity to express emotions and his capacity to reflect on emotional states), the degree to which his treatment goals are unlikely to match up with a treating clinician's goals, and his capacity to accurately evaluate his own behaviour, demonstrate effective relational skills and possess the necessary social and cognitive abilities.

147 Dr Bannister notes that on the previous occasions that the respondent has been found unsuitable for insight-oriented individual treatment, many of the assessors have recommended that his treatment be tailored to his specific needs and deficits through an approach which is primarily systemic in nature. A primarily systemic approach involves managing the respondent's behaviour, and by extension his risk, by placing a comparatively greater focus on mentoring, by providing professional disability supports, and by providing assistance with adaptive functioning and occupational therapy.

148 The specialist services that will be provided to the respondent under the NDIS Plan, in conjunction with any necessary consultative input from a psychologist provided by the Department's Corrective Services division, are highly likely to maximise the chances of reducing the respondent's antisocial attitudes and improving his communication and self-regulation. Dr Bannister considers this systemic approach appears most suitable in the context of the respondent's specific needs.

149 Dr Bannister's conclusions are as follows:

1. If the respondent remains in prison either as a sentenced prisoner or on a continuing detention order treatment in the form of insight-oriented individual intervention is not recommended; and

2. If the respondent is released into the community on a supervision order the most effective therapeutic approach will be for him to be subjected to his NDIS Plan and to engage with adaptive functioning supports that will be provided under the plan. A Forensic Psychological Intervention Team psychologist should be made available to act in a consultative role to provide support to staff with specific advice regarding the respondent's risk relevant factors if necessary.

Dr Bannister's oral evidence

150 In his oral evidence Dr Bannister maintained the opinions expressed by him in his abovementioned reports. He stated that his reason for concluding that the respondent is not suitable for insight-oriented individual treatment is, in essence, that the respondent does not have the cognitive sophistication to engage in such treatment and to benefit meaningfully from it.[78] He stated that the respondent's suitability for insight-oriented individual treatment is unrelated to whether or not the respondent is achieving appropriate testosterone suppression.[79] He confirmed that in his opinion the provision to the respondent of the specialist services pursuant to the NDIS Plan in conjunction with consultative psychological intervention (as required) will maximise the respondent's prospects of 'success in the community'.[80]

Dr Wynn Owen's evidence - antilibidinal treatment

151 In his email to Ms Goode dated 13 February 2022[81] Dr Wynn Owen asserted as follows:

1. The respondent's testosterone level as revealed by the test conducted on 3 February 2022 shows a significant reduction from his pre-treatment testosterone level but only mild suppression;

2. The respondent's mildly suppressed testosterone level is unlikely to have a significant impact on his sexual preoccupation or sexual function;

3. The issues raised by Dr Bannister in relation to the respondent's 'capacity to participate in insight-oriented therapy relate to his ability to understand and engage with the concepts involved'. These issues are 'more fundamental than the possibility of sexual preoccupation interfering with [the respondent's] concentration and focus' and are unlikely to vary with antilibidinal treatment;

4. If the respondent is deemed unsuitable for psychotherapy, treatment with antilibidinal medication is not indicated;

5. A reduction in the respondent's sexual preoccupation may assist in his engagement with the 'strategies' provided for under the NDIS Plan which are aimed at addressing his behaviours. However, as noted by Dr Bannister there appear to be more 'fundamental barriers' to the respondent's 'capacity for engagement' and variations to his libido and sexual preoccupation 'are likely to offer a marginal if any improvement in outcomes';

6. If antilibidinal medication is to continue a new specific consent to treatment will need to be sought from the respondent's guardian;

7. His current opinion is that continuation of antilibidinal medication is not indicated; and

8. The MHS does not support antilibidinal medications being used as a standalone risk management tool. Further, even if antilibidinal medication was, in the respondent's case, used as a standalone risk management tool such an approach would be 'time limited by the inevitability of adverse effects'.

152 In his oral evidence Dr Wynn Owen clarified and elaborated upon the statements made by him in his email as follows.

153 He holds the role of a 'consultation liaison' at the MHS.[82] This role involves him overseeing individuals who are receiving antilibidinal treatment under the Act and assessing individuals who are recommended for treatment by court appointed experts.[83] In his capacity as a 'consultation liaison' he has been asked to assess the respondent for suitability for hormonal antilibidinal treatment.[84]

154 Prior to sending his email to Ms Goode he had read Dr Bannister's Updated Suitability Assessment Report.[85]

155 A condition for the use of antilibidinal medication is that the medication is an adjunct to some form of therapeutic input.[86] Antilibidinal medication is not a standalone risk management tool and should not be used in this way.[87]

156 The respondent's most recent blood test reveals that while his testosterone level was, as at the date of the test, slightly lower than the normal range of 10 and above, it was not what he would regard as suppression.[88] In his view suppression occurs when the testosterone level is close or equivalent to the testosterone level of somebody who has been castrated or somebody who is a preadolescent male.[89] This level is around 2nmol/L.[90]

157 The respondent's most recent blood test was performed before he received his third antilibidinal injection.[91] There is therefore a high likelihood that there has been some further reduction in the respondent's testosterone level since his blood test.[92] There is a high likelihood that his testosterone will now be further suppressed.[93] However, if the respondent was going to achieve effective suppression at the third dose it is likely that his testosterone level at the time of his most recent blood test would have been a little lower than 9.2 nmol/L.[94] In his view the respondent's testosterone level since his third injection will be somewhere between 2 nmol/L and 9.2 nmol/L.[95]

158 He thinks that Dr Wojnarowska's evidence to the effect that the reduction in the respondent's testosterone level taken in conjunction with the respondent's self-report about a loss of his sex drive provides a basis for concluding that the respondent's sex drive has reduced is 'probably quite true'.[96] However, there is not a linear relationship between the testosterone number level scored between 10 nmol/L and 36 nmol/L, which is the normal male range, and the change in that number.[97] The only thing that is known is that the closer the number gets to two, the more likelihood there is of having an effective suppression of testosterone.[98]

159 In his view there is really no point in antilibidinal treatment if the testosterone reduction is not effective because treatment is potentially risky for the individual and is relatively time limited.[99] Therefore, the best thing to do is to try and achieve the most effective and lowest level of testosterone that is possible.[100] To try and quantify the change, other than to say there is a change, is very difficult.[101] It is very difficult to say that in the respondent's case there is an effective suppression at this stage.[102]

160 In light of Dr Wojnarowska's advice that the type of therapeutic input that the respondent is due to receive under the NDIS Plan is the sort of treatment that will be affected by a high level of sexual preoccupation and libido, he agrees that it would, with the respondent's agreement or the respondent's guardian's agreement, be appropriate to at least continue a trial of the antilibidinal medication so as to give the respondent the opportunity to engage with the treatment to be provided under the NDIS Plan.[103] In coming to this view he has taken into account that it appears from Dr Bannister's Updated Treatment Assessment Report that the respondent's intellectual deficits far outweigh his sexual preoccupation as a barrier to him engaging in the therapeutic input to be provided under the NDIS Plan.[104] However, he agrees that anything that can potentially benefit the respondent should be attempted because the respondent is a young man in prison and if there is something that can be done to assist him to be out of prison this would be a 'good thing'.[105]

161 His statement in his email that there appear to be more 'fundamental barriers' to the respondent's 'capacity for engagement' and that variations to his libido and sexual preoccupation 'are likely to offer a marginal if any improvement in outcomes' is intended to convey his view that the antilibidinal medication is likely to have only a marginal, if any, benefit in relation to the respondent's engagement in the sort of therapy provided for under the NDIS Plan.[106] However, given Dr Wojnarowska's opinion that the respondent has such a level of sexual preoccupation that it could adversely affect his ability to engage with the NDIS Plan, his view is that the respondent should, at the very least, be given the opportunity to have a continuing trial with the medication to see if it will assist him.[107] He believes that this is a reasonable view.[108]

162 In his view if the respondent is released on a supervision order and consent is obtained it will be appropriate to trial the antilibidinal medication for a short time with a review after three months.[109] He is prepared to undertake the review for the MHS if the respondent is released into the community and is engaged with the NDIS.[110]

163 His opinion is that the antilibidinal medication is never going to be a standalone risk management tool.[111] The medication will always be very time limited so that at the end of the course of the treatment there will still be issues relating to the respondent to be dealt with.[112] In his opinion, 'what is really important is helping [the respondent] with his general problems in terms of his function and functional impairments around day to day living'.[113] Accordingly, antilibidinal treatment is something that may assist the respondent in the short term but it is not in his view the most significant risk management strategy.[114] He thinks that the external constraints placed upon the respondent are going to be the most significant risk management strategy.[115]

164 He thinks that if the respondent's level of distraction due to sexual preoccupation is as high as Dr Wojnarowska believes it to be then there may well be some positive impacts of antilibidinal treatment in the short term.[116] He balances this view with the fact that the treatment does have side effects.[117] However, he thinks that everybody is trying to do something in the respondent's best interests and this is why he is agreeable to continuing the respondent's antilibidinal medication on a short term basis with a further assessment, after three months, of his sexual preoccupation and sexual thinking.[118] The review after three months will also provide the opportunity to obtain some feedback from the NDIS around the respondent's sexual behaviours and their awareness and observations of what has occurred over that period.[119]

165 He is aware that the respondent and his guardian have already provided consent to the respondent undergoing antilibidinal treatment.[120] However, he thinks that because any further antilibidinal treatment will be given in the absence of therapeutic individual intervention, it is necessary to explain this to the respondent and to obtain his consent and the guardian's consent to the further treatment.[121]

166 It is understood worldwide that there are several reasons why antilibidinal treatment can be used with the informed consent of the recipient of the treatment.[122] Improving general engagement with services designed to support an individual which have an indirect longer term effect on risk has been found to be an appropriate reason for using antilibidinal treatment on a short term basis.[123]

167 He will not administer any further antilibidinal medication to the respondent unless and until he is released into the community on a supervision order.[124] If the respondent is released he will look at changing either the frequency or amount of the antilibidinal medication dose to achieve a slightly greater degree of suppression in order to further assist the respondent. [125]

Ms Cashmore’s evidence

Community Supervision Assessment Report[126] and Updated Community Supervision Assessment Report[127]

168 Ms Cashmore’s reports reveal the following.

169 The COMU has enquired about referring the respondent to Sexuality Education Counselling and Consultancy Agency (SECCA). SECCA provides 'tailored, flexible and responsive service to people with disabilities' around issues of sexuality, relationships and sexual health. A protective behaviours programme is also available through SECCA. However, SECCA has confirmed that they do not provide prison in-reach services and that the only service that they could provide to the respondent while he is in prison is an introductory session by telephone.

170 Since being returned to prison the respondent has attended scheduled appointments with a Senior CCO, although the appointments are often short in duration due to the respondent's difficulties maintaining concentration and interest. The respondent has continued to present with a limited understanding of the practicalities of a restriction order under the Act.

171 During an interagency meeting on 6 September 2021 the respondent asserted that if he is not released from prison within one month of his review hearing he will refuse to engage with agencies involved in his management.

172 During Ms Cashmore's most recent appointment with the respondent which occurred on 14 December 2021 the respondent expressed frustration around his commencement of antilibidinal medication and the impact that the medication was having on his ability to achieve an erection, sustain an erection and ejaculate. The respondent was able to explain that the medication was reducing his libido.

173 On 6 May 2019 a 12-month NDIS plan was put in place for the respondent so as to enable his release into the community with 24‑hour seven days a week disability support. The plan included the provision of core support funding for a 12-month period to enable the respondent to live in supported accommodation and to maximise his independence.

174 Since the respondent’s return to custody, the COMU has been working with the respondent’s interagency team and the NDIS in an attempt to prepare a viable plan for the possible release of the respondent on a supervision order. Ultimately this has resulted in the implementation of the NDIS Plan (the plan is a 12-month plan commencing on 14 December 2021).[128] The total funded support under the NDIS Plan is $272,731.60 to be utilised across the following domains:

1. Core Supports totalling $242,002.50 - One-to-one funding has been included to be used flexibly to assist the respondent with transitioning into the community, with intensive support for the first three months which will reduce to daily drop-in supports while assessments are completed during this time;

2. Capacity Building Supports totalling $30,729.30 allocated as follows:

(1) Improved Daily Living ($4,849.75) - Funding for an Occupational Therapist to undertake a Functional Capacity Assessment while the respondent is in the community and to implement capacity building supports towards independence;

(2) Improved Relationships ($14,447.15) - 45 hours of Specialist Behaviour Intervention Support and 20 hours of Behaviour Management including training in behaviour management strategies and training support staff in positive behaviour strategies;

(3) Support Coordination ($11,432.40) - 60 hours of Specialist Support Coordination to assist the respondent with transitioning back into the community, to ensure that he is engaged with an Occupational Therapist to perform a comprehensive Functional Capacity Assessment during the three months of flexible core funding and to assist the respondent in completing a Home and Living form.

175 The respondent's NDIS planner has confirmed that the NDIS Plan includes funding to implement strategies and training of support staff prior to the respondent's release and funding to allow the respondent the opportunity to meet allocated support workers to assist in building rapport with them. The planner has explained that if the respondent is released on a supervision order there will, under the NDIS Plan, be funding for 90 days of one-to-one 24‑hour seven days a week support and that it is expected that in the first 30 days of release a comprehensive Functional Capacity and Behaviour Assessment will be completed by the respondent's Occupational Therapist and Positive Behaviour Support Clinician. The planner has explained that the assessment will be used by the NDIS to decide whether the respondent's supports can be stepped down over the next 60 days.

176 If the respondent's Functional Capacity and Behaviour Assessment indicates that 24‑hour seven days a week support is required on a longer term basis, the COMU will submit a 'Change of Circumstances' to the NDIS to facilitate a review of his associated funding.

177 Contact with a representative from the Department of Communities Housing has confirmed that the respondent’s housing application for a single bedroom property was received in 2016, that currently applications for 2007 are being allocated, and that the respondent faces a considerable wait time prior to being offered housing.

178 On 5 July 2021 the support agency Plan and Grow confirmed their willingness to provide support and accommodation to the respondent upon his release.

179 On 5 August 2021 Plan and Grow representatives attended Acacia Prison and met with the respondent. The representatives reported that the respondent engaged well and was open in discussing his goals and life in Warman and Kununurra. They reported that the respondent was forthcoming in discussing his past mistakes with respect to non-compliance with the Supervision Order and they indicated that their service is actively considering ways in which the respondent could be occupied in the community given that boredom was a risk factor that contributed to his non-compliance. Supported work opportunities and his recreational interests such as fishing, basketball and football were discussed.

180 Plan and Grow have confirmed that they have a property available to the respondent in a suburb of Perth (proposed address). The proposed address is a four bedroom house located on a main residential street and is in close proximity to a number of parks and recreational facilities.

181 The Sex Offender Management Squad (SOMS) are concerned that if the respondent should remove his electronic monitoring device the proposed address provides limited opportunities for making use of lines in inquiry such as closed circuit television in order to locate the respondent. The SOMS have also noted that given the socio-economic status of the majority of residents of the area in which the proposed address is situated, eyewitness accounts of the respondent's movements in the event that he removes his electronic monitoring device during working hours may be difficult to obtain.

182 The SOMS are also concerned that given the size of the proposed address the respondent may struggle with boredom and loneliness.

183 The respondent's Occupational Therapist and Positive Behaviour Support Clinician has confirmed that she will meet with Plan and Grow's allocated support staff to provide training and guidance in relation to communicating with the respondent and developing strategies to build rapport with him.

184 Plan and Grow currently have 10 - 12 male support workers who are available to be trained to act as support workers for the respondent and to undertake disclosure. Plan and Grow anticipate using a fortnightly roster comprised of four to five staff members.

185 The COMU has reviewed the administrative arrangements that need to be put in place for the respondent's release on a supervision order. Having conducted this review the COMU considers that if the respondent is to be released on a supervision order a minimum of six weeks will be required to undertake with the proposed support workers the necessary training, disclosure and relationship building. In the COMU's view it is not practically feasible for the respondent's release to occur any earlier than six weeks from any decision to release him on a supervision order.

186 If the respondent is released on a supervision order he will, given his affinity for sport, be permitted to access with a support worker the recreational facilities that are situated close to the proposed address. However, any access to public rest rooms and play equipment would be restricted.

187 The Victim-Offender Mediation Unit has confirmed that there are no victim issues regarding the respondent residing at the proposed address.

188 Plan and Grow have confirmed that they will assist the respondent with accessing culturally appropriate community supports and have identified the following services as possible options:

1. Wadjak Northside Aboriginal Resource Centre which runs a weekly men's group;

2. Miya Kaadadjiny which facilitates workshops, regular craft groups and bush tucker gardening throughout the year. The service also provides a community dinner every Sunday and Noongar language sessions; and

3. Djinda Bridiya Wellbeing which runs a weekly meeting group that community Elders attend and which also facilitates cultural events and community based activities throughout the year.

189 On 23 October 2020 the respondent was transferred to the West Kimberley Regional Prison for a three month period in an effort to facilitate social visits with his regional based family members. However, the respondent did not receive visits. The respondent was returned to Acacia Prison on 7 January 2021. The respondent does maintain telephone contact with his sister.

190 Ms Cashmore recommends that if the respondent is found to be a high risk serious offender and is released on a supervision order he be subject to the 54 conditions which are set out in Annexure A to these reasons. In arriving at her recommendations as to appropriate conditions Ms Cashmore has liaised with Dr Wojnarowska. The conditions recommended by Ms Cashmore include the following:

1. A residential condition;

2. Conditions providing for the imposition of a curfew in order to give the respondent stability and structure and to limit his potential access to high risk situations;

3. Conditions prohibiting the respondent from having any contact with the victims of his offending and requiring him to report any incidental contact to his CCO and the police;

4. Conditions requiring the respondent to permit police officers to search his residence, electronic devices and vehicle for the purpose of monitoring his compliance with his obligations under the order;

5. Conditions subjecting the respondent to GPS monitoring;[129]

6. Conditions prohibiting the respondent from having any unauthorised and unsupervised contact with any female children under the age of 18;

7. Conditions restricting contact with females;

8. Conditions relating to urinalysis testing;

9. Conditions restricting the respondent’s ability to attend licenced premises, prohibiting him from consuming alcohol and cannabis and prohibiting him from remaining in the presence of any individual under the influence (or perceived to be under the influence) of alcohol or prohibited drugs;

10. Conditions requiring the respondent to undergo medical treatment, including hormonal antilibidinal medication, as directed by a CCO in consultation with a medical practitioner;

11. A condition requiring the respondent to engage with the National Disability Insurance Agency (NDIA) as directed by a CCO and to comply with the instructions of the NDIA with regards to service provision; and

12. Conditions facilitating the ability of the SOMS to monitor the respondent’s compliance and engagement with the conditions of the order

191 If the respondent is released on a supervision order he will be subject to close monitoring and supervision by members of his Risk Management Team which includes police officers from the SOMS, CCO's, management staff from the Department, the manager of the Forensic Psychological Service and psychologists. The risk management of the respondent would include regular and unscheduled home visits, liaison with community agencies and other stakeholders, as well as a regular review of his risk factors.

Oral evidence

192 In her supplementary oral evidence Ms Cashmore said the following.

193 The NDIS Plan has come about as a result of a document submitted by Ms Goode of the COMU to the NDIS.[130] The NDIS Plan has been designed to allow for at least 90 days of one-to-one 24‑hour seven days a week support.[131] It is expected that in the first 30 days the respondent will be reassessed by his occupational therapist and that an updated functional capacity assessment will be completed.[132] The updated functional capacity assessment will then be used to assess the level of support required to be provided to the respondent for the remaining 60 days of the 90 day period.[133]

194 The NDIS has acknowledged to the COMU the need, and indicated a willingness, to fund six months of 24-hour seven days a week support if required, although the COMU is still waiting for this approval 'to be signed'.[134] In other words, the NDIS has acknowledged to the COMU that a further 90 days may be required to get the respondent to the point where he is not set up to fail.[135]

195 If based on the outcome of the functional capacity assessment conducted within the first 30 days of a supervision order it is determined that there is going to be a transition down in the level of support provided to the respondent, the transition down will 'certainly' not drop immediately from 24-hour seven days a week support to 12-hour seven days a week support.[136] The reduction in support may be to 20 hours a day or 18 hours a day.[137] Further, the reduction may only be for one or two days a week initially.[138] The NDIS have indicated that they will informally assess the respondent and his coping on a week‑to‑week basis in relation to any staggering down of supports to be provided to him.[139]

196 It is likely that if ultimately there is a reduction in the level of support to less than 12 hours a day, the support will be provided in non‑curfew hours.[140]

197 The respondent's previous service provider was Teem Treasure. However, the respondent's current service provider is Plan and Grow.[141]

198 A review of the level of support required by the respondent at the end of the 12-month period of the NDIS Plan will occur prior to the end of that period.[142]

199 The respondent's guardian has provided an ongoing authority for the respondent to be given antilibidinal medication.[143]

200 The occupational therapist that is currently working with the respondent will be unable to work with him until he is vaccinated.[144] The respondent has verbally consented to being vaccinated.[145] However, his verbal consent needs to be approved by his guardian.[146]

201 The COMU have been attempting to arrange for the respondent to be vaccinated over the last four weeks.[147] However establishing contact with the respondent's guardian and obtaining the necessary consent from her has been problematic (in that the guardian requires a particular form to be submitted to her for her signature).[148]

202 Plan and Grow have indicated that even if the respondent is not vaccinated this will not be a barrier to them engaging and working with the respondent.[149]

203 The COMU will continue to try to facilitate the vaccination process as much as possible.[150] She believes that her team leader has liaised with staff at Acacia Prison and forwarded them the respondent's guardian's communications in relation to the form which the guardian requires to be provided with.[151]

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

204 A person has a propensity to commit serious offences in the future if they have an inclination, tendency or disposition to commit serious offences generally, or in a particular way, upon a particular type of victim.[152]

205 The respondent has over the years committed, among other offences, a number of serious sexual offences against juvenile and adult females without their consent. Given this established offending history I am satisfied that the respondent has an inclination, tendency or disposition to commit serious sexual offences against females without their consent in the future. It follows that I am also satisfied that the respondent has a propensity to commit 'serious offences' as defined in s 5(1) of the Act in the future.

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

206 There is a pattern to the respondent's offending behaviour. The respondent's past offences have been opportunistic, involved impulsivity and have been committed against vulnerable female victims. The offences have in the main been committed while the respondent is under the influence of alcohol and drugs.[153]

Risk of committing serious offence if not subject to a restriction order - s 7(3)(h)

207 I have already referred to the evidence of Dr Wojnarowska that the respondent remains a high risk of sexual reoffending if he is not subject to a continuing detention order or a supervision order. In her evidence Dr Wojnarowska clearly explained her reasons for arriving at this conclusion.[154] There were, in my view, no flaws in her reasoning process. Further, her evidence in this regard was not substantially challenged.

208 I accept Dr Wojnarowska’s evidence as to the respondent’s risk of committing further sexual offences if he is not subject to a continuing detention order or a supervision order. Accordingly, and in light of the nature of the sexual offences that the respondent has committed in the past, I am satisfied that the respondent remains at high risk of committing further sexual offences amounting to serious offences if he is not subject to a continuing detention order or a supervision order.

The need to protect the community - s 7(3)(i)

209 There is an obvious need to protect the community from the risk that the respondent presents.

Other relevant matters - s 7(3)(j)

Performance while in the community on the Supervision Order

210 While in the community the respondent complied with the supervision requirements of the Supervision Order. He reported punctually for supervision appointments as directed and in general terms presented positively.[155]

211 While in the community on the Supervision Order the respondent was directed to attend urinalysis testing on 15 occasions. He did so. On each occasion he tested negative to alcohol and illicit substances.[156]

Explanation for breach offences

212 On 27 September 2019 the respondent told his CCO that he had breached the Supervision Order due to boredom and because he wanted to have sexual intercourse. The respondent also told his CCO that he had had sexual intercourse with a female in the park prior to his arrest.[157]

213 On 6 and 23 November 2019 Dr Wojnarowska interviewed the respondent in order to enable her to prepare her report that was adduced in evidence during the contravention proceedings. During the interview on 23 November 2019 the respondent told Dr Wojnarowska that he committed the breach offences because he missed his family and wanted to go home to his community. He told Dr Wojnarowska that he had been feeling sexually frustrated and decided to go to the park in the hope of meeting someone with whom he could have sex. He told Dr Wojnarowska that while he was at the park he found a woman (who was around his age and from his country) who agreed to have sex with him, that the police arrived before anything could happen and that if the woman had refused to have sex with him he would have walked away because he is 'not a rapist'.[158] When the respondent spoke to Dr Wojnarowska on 23 November 2019 in advance of the hearing of the contravention proceedings he told her that he had committed the breach offences.

Prison behaviour

214 The respondent has incurred three prison charges between 28 August 2019 and 24 June 2021. Two of the charges arose out of the respondent fighting with another prisoner. The third charge was comprised of him damaging prison property, specifically a television. He was convicted of one of the fighting charges and the damage charge. The second of the fighting charges was dismissed by visiting justices on the basis that the charge had not been dealt with expeditiously.

215 The respondent is also recorded as having been involved in 12 prison incidents between 28 August 2019 and 24 June 2021. Three of these incidents have involved the respondent fighting with other prisoners. The majority of the 12 incidents occurred in 2020.

Decision The relevant questions

216 Given the terms of s 68(1) of the Act, the questions that I must answer in order to determine the outcome of the application are as follows:

1. Does the respondent remain a high risk serious offender within the meaning of s 7(1) of the Act? and

2. If the respondent does remain a high risk serious offender, should the continuing detention order be affirmed or should the continuing detention order be rescinded and a supervision order be made?

The parties’ submissions - summary

217 The applicant submits that I should find that the respondent remains a high risk serious offender. The applicant submits that the respondent has failed to discharge his burden of proving on the balance of probabilities that he will substantially comply with a number of the standard conditions of a supervision order. The applicant submits that the respondent's circumstances have not, since the contravention proceedings, changed sufficiently to permit the conclusion that his risk of reoffending has reduced to such an extent that releasing him on a supervision order will ensure adequate protection of the community. The applicant submits that for these reasons I should affirm the CDO.

218 The respondent does not attempt to argue that I should find that he is no longer a high risk serious offender. Of course, the fact that the respondent takes this position does not absolve me from the responsibility of determining the question for myself on the basis of the evidence before me.

219 The respondent does, however, argue against the continuing detention order being affirmed. He submits that he has discharged his burden of proving that he will substantially comply with the standard conditions of a supervision order. He submits that I should, on the evidence, find that the risk that he presents to the community can be adequately managed by releasing him on a supervision order containing the conditions proposed by Ms Cashmore and that therefore releasing him on a supervision order will ensure adequate protection of the community.

Does the respondent remain a high risk serious offender?

220 Dr Wojnaroska's evidence was that in her opinion the respondent continues to be at high risk of committing further sexual offences if he is not subject to a continuing detention order or a supervision order. As I have already indicated, I accept Dr Wojnaroska's evidence on this issue. I am therefore satisfied that the respondent remains at high risk of committing further sexual offences if he is not subject to a continuing detention order or a supervision order.

221 Further, taking into account the nature of the sexual offences committed by the respondent in the past and in light of Dr Wojnaroska's evidence, I am also satisfied that the sexual offences that the respondent remains at high risk of committing if he is not subject to a continuing detention order or a supervision order include offences involving sexual penetration of females without their consent and aggravated indecent assault of females (that is, offences that are 'serious offences' as defined in s 5(1) of the Act).

222 On the basis of my findings expressed in the preceding two paragraphs and having regard to the matters specified in s 7(3) of the Act, I am satisfied to a high degree of probability that it is necessary to make a continuing detention order or a supervision order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. It follows that I find that the respondent remains a high risk serious offender.

Continuing detention order or supervision order?

Will the respondent substantially comply with the standard conditions of a supervision order?

223 As I have previously indicated, by s 29(1) and s 29(2) of the Act I cannot make a supervision order unless the respondent has satisfied me on the balance of probabilities that he will substantially comply with the standard conditions of the order.

224 The applicant does not submit that the respondent has failed to prove on the balance of probabilities that he will substantially comply with the standard conditions of a supervision order specified in s 30(2)(a) - s 30(2)(c) and s 30(2)(e) of the Act. The applicant does, however, submit that the respondent has failed to prove on the balance of probabilities that he will substantially comply with the standard conditions specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g) of the Act. In making this submission the applicant points to, among other factors, the respondent's contraventions of the Supervision Order.

225 While in the community the respondent complied with the supervision requirements of the Supervision Order. Further, there is no realistic prospect of the respondent changing his residential address without the knowledge of his CCO. Nor is there any realistic prospect of the respondent leaving the State. In these circumstances I am satisfied on the balance of probabilities that if the respondent is released into the community on a supervision order he will substantially comply with the standard conditions specified in s 30(2)(a) - s 30(2)(c) and s 30(2)(e) of the Act.

226 I turn to the question whether the respondent has proved on the balance of probabilities that he will, if he is released into the community on a supervision order, substantially comply with the standard conditions specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g) of the Act.

227 There are a number of factors present in the respondent's case which can be pointed to as providing support for the contention that he has failed to prove that he will substantially comply with the standard conditions of a supervision order specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g). The factors are, in summary, as follows:

1. The respondent contravened the Supervision Order by committing the breach offences within a relatively short period of time of being placed on the order despite having 24-hour seven days a week supervision and support;

2. The respondent's conduct in committing the breach offences contravened two of the most important conditions of the Supervision Order, that is, two of the most important measures for managing and mitigating the risk that he poses to the community;

3. The respondent's cognitive deficits mean that he is not suitable to engage in insight-oriented individual treatment directed at affecting cognitive and behavioural change;

4. The respondent holds the misguided belief that he is capable of controlling his alcohol intake and that consequently alcohol is not a risk factor for him;

5. The respondent, given his cognitive difficulties, has no insight into his offending cycle or factors that place him at risk of reoffending;

6. The respondent's cognitive difficulties will make it challenging for him to understand the purpose behind a number of the conditions of a supervision order and the duration of the order;

7. The respondent is highly impulsive and has difficulty controlling his behaviours (as is in part evidenced by his involvement in a number of prison incidents since being returned to custody); and

8. The respondent, if he is released on a supervision order, is likely to experience a degree of stress and frustration associated with being required, at least for some significant period of time, to live in Perth, a completely unfamiliar environment away from his family and country.

228 Notwithstanding the above factors, I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a Supervision Order specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g) of the Act. I am so satisfied given the following factors considered in conjunction with each other.

229 First, the respondent committed the last of his serious sexual offences in excess of six and a half years ago when he was 19 years old. He did so in circumstances where he was living in, and had throughout his childhood and adolescence been exposed to, a dysfunctional and violent environment.

230 Second, while in the community on the Supervision Order the respondent did not reoffend.

231 Third, while in the community on the Supervision Order the respondent abstained from consuming alcohol and illicit drugs in accordance with the conditions of the Supervision Order. This is of significance given the causal link between the respondent's use of alcohol and/or illicit drugs on the one hand and his offending on the other.

232 Fourth, the respondent now recognises that his behaviour in committing the breach offences was wrong and has formulated a strategy for dealing with a desire to have sex. This change in the respondent is, in Dr Wojnarowska's view, important in the context of assessing his risk of committing further offences.

233 Fifth, the respondent has suitable stable accommodation available to him. I recognise that the proposed address is less than optimal. However, available accommodation for high-risk serious offenders will rarely if ever be perfect.

234 Sixth, if the respondent is released on a supervision order he will be the beneficiary of the NDIS Plan and will be required to comply with the instructions of the NDIA in relation to service provision under the plan. The NDIS Plan is comprehensive and well funded. The stated goals of the Capacity Building Supports funding under the NDIS Plan include assisting the respondent to work towards understanding and controlling his emotions and feelings, learning to deal with conflict and keeping himself and others safe.[159] Further, the Positive Behaviour Support Plan that will be implemented by the respondent's Occupational Therapist and Positive Behaviour Support Clinician as part of the NDIS Plan includes strategies directed at addressing the respondent's deficiencies in the areas of relationships, health and wellbeing, communication, impulsivity, attention and decision making.[160] The Positive Behaviour Support Plan also notes that support staff may need to provide the respondent with mentoring on appropriate sexual behaviour and that sexuality counselling by support staff may assist the respondent.[161] In short, under the NDIS Plan the respondent will be provided with significant specialist support services directed at addressing his various deficiencies and risk factors and which, in the opinion of both Dr Wojnarowska and Dr Bannister, when provided in conjunction with consultative input from a psychologist from the Department, will be most likely to maximise the prospects of a reduction in the respondent's antisocial attitudes and self-regulation deficits. By extension this will also maximise the prospects of a reduction in the respondent's risk of committing further serious offences and contravening the other standard conditions of a supervision order.

235 Seventh, the NDIS Plan Core Supports funding provides for the respondent to be given, while living at the proposed address, significant support by support workers from Plan and Grow. The support will be provided by support workers who have been afforded the opportunity to develop some rapport with the respondent prior to his release and who have received some specific training in relation to dealing with the respondent and the respondent's obligations under the supervision order. The support workers will inevitably provide the respondent with practical support to assist him to comply with his obligations under the supervision order. They will also necessarily provide an added level of supervision and monitoring to that which will be provided by the respondent's Risk Management Team.

236 Eighth, although the level of required core support will be regularly reviewed by way of Functional Capacity and Behavioural Assessments and more informally, I am satisfied on the basis of the evidence given by Ms Cashmore that the provided support will, if necessary, extend to 24-hour seven days a week support for a maximum of six months and that any reduction in the level of support to be provided during the initial six month period or thereafter will be gradual and based on an assessment of the respondent's needs and capabilities.

237 Ninth, if a Functional Capacity and Behavioural Assessment indicates that 24-hour seven days a week support is required on a longer term basis (that is, for longer than six months), there will be the option for the COMU to submit a 'Change of Circumstances' to the NDIS to facilitate a review of the associated funding with a view to permitting ongoing 24-hour seven days a week support.

238 Tenth, the respondent has now undergone a trial of antilibidinal medication which, I am satisfied on the basis of the evidence given by Dr Wynn Owen, has resulted in a suppression of his testosterone level to a level somewhere between 2 nmol/L and 9.2 nmol/L.

239 Eleventh, the suppression of the respondent's testosterone level has resulted in some reduction in his level of sexual preoccupation. I am satisfied of this fact on the basis of the respondent's statements to this effect made to Ms Cashmore viewed in light of the evidence of Dr Wojnarowska as to the likely effect on the respondent of the established reduction in his testosterone level.

240 Twelfth, the respondent will under one of the conditions of the proposed supervision order (condition 32) be required to continue to undergo antilibidinal treatment as directed by his CCO in consultation with a medical practitioner. In light of the evidence given by Dr Wojnarowska and Dr Wynn Owen it is clear that what this means for the respondent is that he will be directed by his CCO, in consultation with Dr Wynn Owen, to continue to take antilibidinal medication for a further period of at least three months from his release at the end of which period the appropriateness or otherwise of continuing the treatment for a further limited period of time will be reviewed by Dr Wynn Owen.

241 Thirteenth, the continuation of antilibidinal treatment for a period of at least three months will result in the ongoing suppression of the respondent's testosterone level, even if not to the point of achieving effective suppression in the sense described by Dr Wynn Owen. I am satisfied of this fact given the results revealed by the respondent's most recent blood tests and in light of the evidence given by Dr Wynn Owen.

242 Fourteenth, the current suppression of the respondent's testosterone level and level of sexual preoccupation and the ongoing suppression of his testosterone level and level of sexual preoccupation that will result from the further three month course of treatment, is likely to facilitate his initial engagement with the funded therapeutic supports that will be provided to him under the NDIS Plan. I am satisfied of this fact on the basis of Dr Wojnarowska's evidence and Dr Wynn Owen's evidence. The facilitation of the respondent's initial engagement with the supports to be provided to him under the NDIS Plan that will be brought about by the antilibidinal medication and associated reduction in his sexual preoccupation is important because enhanced initial engagement will increase the prospects of the respondent remaining engaged with the NDIS Plan supports in the longer term and successfully transitioning to an offence free life in the community.

243 Fifteenth, under the NDIS Plan the respondent's support provider, Plan and Grow, will facilitate the respondent engaging in sporting and recreational activities and accessing culturally appropriate groups. The facilitation of the respondent engaging in such activities and becoming involved in culturally appropriate groups will serve to keep him occupied and reduce the likelihood of him becoming bored, lonely, culturally deprived and disengaged with society.

244 Sixteenth, the respondent has now experienced the significant adverse consequences resulting from his contraventions of the Supervision Order (he has spent approximately two and a half years in custody as a result of his contraventions). Even allowing for the respondent's intellectual difficulties, it can reasonably be expected that the adverse consequences that he has experienced will act as some deterrent to him engaging in similar behaviour in the future.

245 Seventeenth, the significant amount of support to be provided under the NDIS Plan, which will be provided in conjunction with close monitoring and supervision by the respondent's Risk Management Team, should ensure that any behaviours of the respondent indicating an increase in the risk of him contravening the standard conditions of a supervision order will be detected quickly and be able to be acted upon quickly.

246 Eighteenth, Dr Wojnarowska's opinion, given the extent of the support that the respondent will receive under the NDIS Plan, is that the respondent's risk of reoffending can be managed in the community under a supervision order containing the conditions that are proposed by Ms Cashmore. She is of this opinion even if it is assumed that the respondent's antilibidinal treatment will not be continued.

247 It is the combined effect of the above factors that leads me to conclude that the respondent has proved on the balance of probabilities that he will substantially comply with the standard conditions of a supervision order specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g) of the Act; that is, comply with the standard conditions in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.

248 As to the twelfth of the factors which I have identified it will, quite obviously, and as is in any event apparent from Dr Wynn Owen's evidence, be necessary for the respondent and his guardian to consent to him receiving the further trial of antilibidinal treatment before Dr Wynn Owen will give effect to any direction by the respondent's CCO requiring the respondent to undertake such treatment. I note in this respect that during her closing submissions the respondent's counsel informed me that her understanding is that if continuing to participate in antilibidinal treatment will assist the respondent to remain in the community he will give the necessary consent.[162] Clearly, if the CCO, in consultation with Dr Wynn Owen, gives a direction to the respondent to undergo antilibidinal treatment and the respondent and/or his guardian, as is their right, refuses to consent to such treatment the respondent will be in breach of the supervision order and have to face the consequences of the breach.

249 I have previously referred to Dr Wojnarowska's evidence, set out in her email dated 18 February 2022, that in her opinion treatment of the respondent with antilibidinal medication will, by reason of the associated reduction in his libido (sex drive), have a direct effect on his risk of committing further sexual offences. Put simply, in Dr Wojnarowska's opinion if the respondent's sex drive is reduced it will be less likely that he will commit further sexual offences. I accept this evidence of Dr Wojnarowska. However, and as should be apparent from my identification of the above 18 factors, the fact that the antilibidinal treatment and the associated reduction in the respondent's sex drive will reduce the risk of him committing sexual offences in the direct way identified by Dr Wojnarowska (as opposed to indirectly reducing the risk of him committing sexual offences because of the impact of a reduced sex drive on his ability to initially engage with the funded therapeutic supports that will be provided to him under the NDIS Plan) is not something that I have placed weight on in deciding that the respondent has proved that he will substantially comply with the standard conditions of a supervision order specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g) of the Act. I have not done so because it is tolerably clear from Dr Wynn Owen's evidence that it is unlikely that the antilibidinal treatment will be continued for any sort of extended period (quite possibly, not even for the 12 months envisaged by Dr Wojnarowska). Accordingly, while the antilibidinal treatment will in the short term have the direct effect on the respondent's risk of reoffending identified by Dr Wojnarowska, this direct effect is unlikely to remain in existence in the longer term. Consequently, I do not consider that the fact that a relatively short term continuation of the antilibidinal medication will, while the respondent is on the medication, directly reduce the risk of him committing further sexual offences provides a sound basis for concluding that he will, over the longer term of a supervision order, continue to substantially comply with the standard conditions specified in s 30(2)(d), s 30(2)(f) and s 30(2)(g) of the Act.

250 One of the specific submissions advanced by the applicant in support of the contention that the respondent has failed to prove that he will substantially comply with the standard conditions of a supervision order specified in s 30(2)(d) and s 30(2)(g) is that there is 'every possibility' that the respondent will, given his intellectual difficulties, become bored during the hours of curfew when he is not receiving intensive support and consequently behave in exactly the same way as he did in committing the breach offences.[163] I do not find this argument particularly persuasive. If the respondent is occupied and engaged in activities and cultural pursuits during non-curfew hours with the result that he does not aimlessly spend hour after hour in his house or wandering the streets, it is far less likely that he will, while he is in his house during curfew hours, experience feelings of boredom sufficient to cause him to decide to remove his EMD and leave his house in breach of his curfew. Of course, it is impossible for me, or for that matter anyone else, to be absolutely certain that the respondent will not engage in such behaviour. However, the Act does not require absolute certainty. Rather, the Act requires me to be satisfied on the balance of probabilities that the respondent will substantially comply with the electronic monitoring and curfew conditions of a supervision order. For the reasons I have given, I am so satisfied.

Will releasing the respondent on a supervision order ensure adequate protection of the community?

251 Even though I have found on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order, I still need to consider if despite my finding there are circumstances which cause me to fail to be satisfied that releasing the respondent on such an order will ensure adequate protection of the community.[164]

252 If the respondent is released on the proposed supervision order he will be subject to a high level of control and supervision. The 54 proposed conditions directly address the respondent's risk factors as disclosed by the evidence to which I have referred. In my view the conditions, bearing in mind that they will be operate in conjunction with the extensive supervision and support that the respondent will be receiving under the NDIS Plan, will enable the members of the respondent's Risk Management Team to detect at an early stage signs of the respondent exhibiting behaviours indicative of him being at an elevated risk of reoffending.

253 As to the issue of the imminence of any reoffending by the respondent if he is released on a supervision order, Dr Wojnarowska's evidence was, as I have previously indicated, that there is no correlation between the respondent's high risk and imminence and that the imminence of any reoffending by him will very much depend on his access to alcohol and the degree of support provided to him. Accordingly, the fact that the respondent when previously in the community abstained from alcohol in accordance with the conditions of the Supervision Order, and the fact that he will have significant support in the community under the proposed supervision order, supports the conclusion that his risk of reoffending can be properly managed in the community by releasing him on the proposed supervision order.

254 Clearly, the preferable approach would be to release the respondent on a supervision order which, while containing all the necessary supervisory, prohibitory and monitoring type conditions, enabled him to live in a regional location that is closer to his country in the Kimberley area. The likely result of being able to adopt such an approach would be that factors such as loneliness and feelings of isolation which contributed to his commission of the breach offences would, if not fall away, be reduced in significance. Unfortunately, given current resourcing and administrative arrangements, it does not appear that permitting the respondent to reside in a suitable regional location while subject to a supervision order is going to become a realistic option for the foreseeable future. Nonetheless, I do not consider that the inability to release the respondent on a supervision order in a suitable regional location requires the conclusion that the community cannot be adequately protected by releasing him on a supervision order containing the proposed conditions that requires him to live in the metropolitan area.

255 Ultimately, I have come to the conclusion that there are no circumstances which cause me to fail to be satisfied that releasing the respondent on a supervision order containing the conditions proposed by Ms Cashmore will ensure adequate protection of the community. To put the matter another way, taking into account the factors that have led me to conclude that the respondent has proved on the balance of probabilities that he will substantially comply with the standard conditions of a supervision order, I am satisfied that releasing the respondent on a supervision order containing the numerous stringent conditions proposed by Ms Cashmore will ensure adequate protection of the community. In my opinion the factors that I have identified reveal that the respondent's circumstances have, since the imposition of the CDO, sufficiently changed to warrant the conclusion that releasing him on a supervision order containing the conditions proposed by Ms Cashmore will ensure the adequate protection of the community against the risk that he presents. The changed circumstances warranting this conclusion include that the respondent has accommodation available to him, that he will be the beneficiary of the NDIS Plan pursuant to which he will receive significant supervision and appropriate therapeutic support, that he has undertaken a trial of antilibidinal medication which has resulted in some suppression of his sex drive and sexual preoccupation, and that he is willing to continue to receive antilibidinal treatment at least in the short term which is likely to facilitate his initial engagement with the funded therapeutic supports that will be provided to him under the NDIS Plan.

256 It is the case that at the time of making the CDO Jenkins J identified the respondent's participation in one-to-one psychological counselling as one of a number of factors that would increase the likelihood of him being released on a supervision order at his next review. However, Jenkins J made this observation in the context of Dr Wojnarowska having given evidence in the contravention proceedings to the effect that the respondent's risk of reoffending could only be managed on a supervision order if he engaged in one-to-one psychological counselling. As is apparent from my above recital of her evidence, this is no longer Dr Wojnarowska's opinion.

257 In arriving at my above expressed conclusion I am conscious of the fact that it cannot be expected that there will be an NDIS plan of the kind that will be in place upon the respondent's release for the whole of the duration of the supervision order. As was recognised by Fiannaca J at the time that he released the respondent on the Supervision Order, the respondent's requirement for continuing support and the level of such support will need to be assessed from time to time by professionals with experience in the provision of disability support, in particular to persons with cognitive and functional impairments similar to those of the respondent.[165]

258 During the course of her closing submissions the respondent's counsel did not submit that any of the conditions of the proposed supervision order were not necessary for the proper supervision, monitoring and management of the respondent. However, counsel did suggest, in substance, that given the respondent is, due to his intellectual disability, more likely to understand information that is 'broken down into simple manageable pieces', an attempt should be made to simplify the proposed supervision order.[166] Counsel further suggested that the proposed supervision order could be appropriately simplified by removing all of the proposed conditions, other than proposed condition 10, which require the respondent to engage in specified conduct 'as directed' by his CCO. Counsel contended that the general obligation imposed by proposed condition 10 to comply with the lawful orders and directions of a CCO encompasses and renders unnecessary the subsequent proposed conditions that require the respondent to engage in specific forms of conduct at the direction of a CCO.

259 Although I accept that the more generally worded proposed condition 10 would appear to empower a CCO to give the respondent directions to engage in the conduct which the other more specifically worded conditions expressly require him to engage in at the direction of a CCO, I consider that the more specifically worded conditions should be retained. I think it is important that if a court concludes that the adequate protection of the community can be ensured by releasing an offender on a supervision order pursuant to which the offender will be subject to various obligations, those obligations should be articulated as fully and with as much precision as possible. The full and precise articulation of an offender's obligations under a supervision order is important for purposes of certainty (both from the offender's perspective and from the perspective of those responsible for supervising and monitoring the offender). The full and precise articulation of an offender's obligations under a supervision order is also important because it enables members of the public, if they are so minded, to gain a full understanding of why a court has decided that the adequate protection of the community can be ensured by releasing the offender on the order.

260 So far as the respondent is concerned, I accept that given his intellectual disability it is inevitable that he will be unable to retain in his mind for an extended period all of the proposed individual conditions. Indeed, I would be surprised if many persons would have this capacity. However, I do not consider that this fact impacts on the ability of the respondent to comply with the conditions of the proposed order. As I indicated to his counsel, it will be sufficient that the respondent at all times remembers and understands that he is, if he is released on a supervision order, required to comply with the directions of his CCO. This is clearly something that the respondent is capable of remembering and understanding.

Period of the supervision order

261 The respondent did not seek to challenge Dr Wojnarowska's evidence that any supervision order should, given his age and levels of disability, be for a period of at least 10 years.

262 Ten years is a long time for a 25-year‑old, particularly one with an intellectual impairment, to be placed on a supervision order. Nonetheless, I accept the unchallenged evidence of Dr Wojnarowska in this respect. Accordingly, the supervision order will be for a period of 10 years. Of course, if over time it becomes apparent that some of the conditions of the proposed supervision order are no longer required to ensure adequate protection of the community, the respondent will be able to make an application to amend the conditions of the order.[167]

Commencement date of the supervision order

263 Under s 27(3) of the Act 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.

264 I am not satisfied that it is practically feasible to implement the proposed supervision order earlier than 21 days from the date that the order is made. Indeed, given the evidence of Ms Cashmore as to the time that will be required to put in place all the necessary arrangements for the respondent's release (including training of support persons and facilitating rapport building between the support persons and the respondent) I am satisfied, consistently with the recommendation made by Ms Cashmore, that the order should not come into effect until at least 42 days (six weeks) from the date that the order is made.

265 My expectation is that prison authorities will do all that is necessary to ensure that during the period prior to the supervision order coming into effect, and in any event as soon as possible, the respondent receives his COVID-19 vaccination so that there will be no barrier to his Occupational Therapist and Positive Behaviour Support Clinician being able to work with him.

Application for suppression order

266 The applicant applies for a suppression order to be made in relation to the location of the proposed address. The application is made at the request of the COMU on the ground that suppressing the location of the proposed address is necessary to ensure that the ability to use the address to house the respondent is not compromised by way of its location becoming publicly known. I am satisfied that it is appropriate to make the order sought. Accordingly, the location of the proposed address will not appear in the copy of the supervision order that will be publicly available. I will hear the parties as to the precise terms of the suppression order.

Efforts of the COMU

267 In these reasons it has not been necessary for me to detail the considerable efforts made by COMU officers over a relatively lengthy period of time to facilitate the ultimate provision by the NDIS, in advance of the hearing of the application, of a plan that allocates a level of funding sufficient to enable the provision to the respondent of the specialist services and support that he requires if he is to successfully transition to living in the community under the conditions of a supervision order. The fact that I have not detailed these efforts (which are set out in the reports of Ms Cashmore) should not be taken as an indication that I have overlooked the efforts of the COMU officers in this regard. I have not and I take this opportunity to commend them for their diligence.

Order

268 Pursuant to s 68(1)(b)(ii) of the Act I will rescind the CDO and make a supervision order containing the conditions set out in Annexure A for a period of 10 years.

269 I propose, subject to hearing from the parties, to specify 11 April 2022 as the commencement date of the order, which is actually 45 days from today's date, to avoid the administrative difficulties that would be associated with releasing the respondent on the supervision order on a Friday (Friday 8 April 2022 being 42 days from today's date).

ANNEXURE A
PROPOSED SUPERVISION ORDER CONDITIONS
STANDARD CONDITIONS REQUIRED BY THE ACT

1. Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth within 48 hours of the order being issued and advise the officer of your current name and address;

2. Report to and receive visits from, a Community Corrections Officer as directed by the court;

3. Notify a Community Corrections Officer 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 Community Corrections Officer, which includes, comply 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 Community Corrections Officer;

6. Not commit a serious offence during the period of the Order;

7. Be subject to electronic monitoring under section 31;

ADDITIONAL CONDITIONS
Residence

8. Take up residence at [the proposed address] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you; ·

Reporting to a CCO and supervision by a CCO

9. Report to a CCO at your approved 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 programs 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 programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO;

Reporting to WA Police

14. Report to the Officer-in-Charge of the Sex Offender Management Squad at 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;

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

. "

16. If requested, permit Police Officers to enter and search your residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow 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 under the High Risk Serious Offenders Act 2020;

18. 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

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 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;

21. Have no contact, directly or indirectly, with the victims of your current offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice;

Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your 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;

23. Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;

Criminal conduct

24. 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;

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

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

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27. Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse Of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider;

Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;

29. When subject to a curfew under this order, present yourself for inspection at the front door or verge of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;

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

Medications/Mental Health

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

32. Undergo medical treatment, including hormonal antilibidinal medication, as directed by the CCO in consultation with a medical practitioner or medical practitioners;

33. Comply fully with any treatment prescribed pursuant to condition 32 and comply with all testing to monitor your compliance with medical treatment as directed by a CCO;

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

35. To engage with the National Disability Insurance Agency as directed by a CCO and comply with the instructions of the National Disability Insurance Agency with regards to service provision;

Prevention of high-risk situations

36. Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO;

37. Not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO;

38. With the exception of public transport, not enter in or on any vehicle with any female or where a female is present (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by a CCO;

39. Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;

40. Not to possess, or consume, or purchase, or use alcohol;

41. Not go or remain at any licensed premises unless permitted or required to do so for the following reasons:

a) For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;
b) For a purpose, and for a duration, approved in advance by a CCO;
c) On the order of a CCO or Police Officer.

42. Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;

43. Provide a valid sample pursuant to condition 42;

44. Not to remain in the presence of any female who you know, or ought to know, to be affected by alcohol, unless the identity of such person is approved in advance by a CCO;

45. Not to remain in the presence of any person who you know, or ought to know, to be affected by a prohibited drug, unless the identity of such person is approved in advance by a CCO;

46. Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place;

47. Not enter the premises of, or access the services of, escort agencies or sex workers, unless approved in advance by a CCO;

48. Have no contact with a 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);

49. 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 the condition immediately above, you must, withdraw immediately from the presence of the child;

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;

51. 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;

52. 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;

53. Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for 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; and

54. As directed by your 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.

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

CP
Associate to the Honourable Justice Derrick

25 FEBRUARY 2022

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[1] The DSO Act was repealed on 26 August 2020 and, on that date, was in effect replaced with the Act.
[2] The State of Western Australia v Patrick [No 2] [2017] WASC 281 (Patrick [No2]).
[3] Patrick [No 2] [70].
[4] Patrick [No 2] [87].

[5] Patrick [No 2] [70].
[6] Patrick [No 2] [70].
[7] Patrick [No 2] [87].
[8] The State of Western Australia v Patrick [No 3] [2019] WASC 482 (Patrick [No 3]).
[9] Patrick [No 3] [69]. The funding for the support workers and their agency was to be provided by the National Disability Insurance Scheme.

[10] The following statement of the facts and circumstances relating to the respondent's contraventions of the Supervision Order is derived from the judgment of Jenkins J in The State of Western Australia v Patrick [No 4] [2020] WASC 48 (Patrick [No 4]) [4] - [5], [27] - [31], [51].

[11] On 27 September 2019 the respondent told his CCO that he had breached the Supervision Order due to boredom and because he wanted to have sexual intercourse. The respondent further disclosed to his CCO that he had had sexual intercourse with a female in the park prior to his arrest: Patrick [No 4] [51]. However, when the respondent spoke to consultant psychiatrist Dr Gosia Wojnarowska in November 2019 in the lead up to the contravention proceedings referred to below, he told her that while he was at the park he found a woman (who was around his age and from his country) who agreed to have sex with him, that the police arrived before anything could happen, and that if the woman had refused to have sex with him he would have walked away because he was ‘not a rapist’. The respondent also told Dr Wojnarowska that he committed the breach offences because he missed his family and wanted to go home to his community and because he had been feeling sexually frustrated and decided to go to the park in the hope of meeting someone with whom he could have sex.
[12] Patrick [No 4].
[13] Patrick [No 4] [120].

[14] Dr Wojnarowska had given evidence in the original application the subject of Patrick [No 2] and the review proceedings the subject of Patrick [No 3].

[15] Patrick [No 4] [122] - [127].
[16] The applicant’s counsel indicated that he could not see any reason why the FSPS would not give the requested undertaking.

[17] Exhibit 1.1.
[18] Exhibit 1.2.

[19] Exhibit 3.

[20] Exhibit 4.

[21] Exhibit 2.

[22] Exhibit 5.

[23] Exhibit 6.

[24] Exhibit 7. The email was provided by Dr Wojnarowska and ultimately received as an exhibit on the application after the conclusion of the hearing of the application. Dr Wojnarowska provided the email pursuant to a direction given by me, with the agreement of both parties, at the end of the hearing: Act, s 84(5)(d) and s 85(a). Both parties were given liberty to apply for the matter to be brought back before me upon the provision by Dr Wojnarowska of her email and prior to the email being received as an exhibit. However, neither party requested for this to occur and both parties agreed that the email should be received as an exhibit. The email was provided by Dr Wojnarowska by way of clarification of an aspect of her evidence and in response to evidence given by Dr Wynn Owen as to the substance of a conversation that he had with her after she completed giving her evidence on 16 February 2022 but prior to Dr Wynn Owen giving his evidence on 17 February 2022.

[25] Dr Wojnarowska is a 'qualified expert' as defined in s 3 of the Act. Her report was prepared and obtained pursuant to s 67(1) of the Act and in accordance with s 74 of the Act.

[26] The NDIS Plan was approved on 14 December 2021 and is to be reviewed on 14 December 2022.

[27] This section of my reasons reproduces what I wrote in the The State of Western Australia v MBW [No 7] [2020] WASC 404.

[28] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].
[29] The respondent is an 'offender' for the purposes of the relevant provisions of the Act: Act, definition of 'offender' and 'serious offender under restriction' in s 3.
[30] The relevant date for the purposes of s 64(2)(a) is 30 August 2021.
[31] Act, s 3.
[32] The State of Western Australia v West [No 6] [2019] WASC 427 [21]; The State of Western Australia v ZSJ [44].
[33] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28]; The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
[34] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
[35] Italiano v The State of Western Australia [2009] WASCA 116 [46]; The State of Western Australia v Newland [2018] WASC 344 [12]; GBT v The State of Western Australia [2019] WASCA 40 [21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45].
[36] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63]; GBT v The State of Western Australia [21]; The State of Western Australia v West [No 6] [22]; The State of Western Australia v ZSJ [45].
[37] Director of Public Prosecutions for Western Australia v Williams [63] ‑ [64]; Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14]; The State of Western Australia v Newland [21]; The State of Western Australia v West [No 6] [26]; The State of Western Australia v ZSJ [51].

[38] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]. Also adopted in The State of Western Australia v Narkle [2019] WASC 404 [13] and The State of Western Australia v West [No 6] [26].

[39] The State of Western Australia v Latimer [2006] WASC 235 [25]; Director of Public Prosecutions (WA) v Decke [15]; The State of Western Australia v Newland [22]; The State of Western Australia v West [No 6] [27]; The State of Western Australia v ZSJ [52].
[40] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [29]; The State of Western Australia v ZSJ [56] ‑ [58]; Patrick [No 4] [109] - [111].
[41] The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359 [7] ‑ [11].
[42] The State of Western Australia v Patrick [2016] WASC 391; Patrick [No 2] [4] - [11]; Patrick [No 4] [13] ‑ [17].

[43] Exhibit 2, page 21; Exhibit 6; Evidence of Dr Wynn Owen, ts 695, 17 February 2022.
[44] Exhibit 2, page 19.
[45] Exhibit 2, page 19.
[46] Exhibit 6.
[47] Exhibit 1.2, pages 229 - 239.

[48] ts 640 - 641, 16 February 2022.
[49] ts 640 - 641, 16 February 2022.
[50] ts 652, 16 February 2022.
[51] ts 652, 16 February 2022.
[52] ts 641, 16 February 2022.
[53] ts 641 - 642, 16 February 2022.
[54] Exhibit 5.
[55] ts 646, 16 February 2022.
[56] ts 646, 16 February 2022.
[57] ts 648, 16 February 2022. Although Dr Wojnarowska referred to a suppression from '36 nmol/L, as I have previously indicated the respondent's testosterone level prior to commencing the antilibidinal medication was 26 nmol/L.
[58] ts 648, 16 February 2022.
[59] ts 648 - 649, 16 February 2022.
[60] ts 649, 16 February 2022.
[61] ts 653, 16 February 2022.
[62] ts 654, 16 February 2022.
[63] ts 654, 16 February 2022.
[64] ts 654, 16 February 2022.
[65] ts 656, 16 February 2022.
[66] ts 656 - 657, 16 February 2022.
[67] ts 657, 16 February 2022.
[68] ts 652, 657 and 661 - 663, 16 February 2022.
[69] ts 662, 16 February 2022.
[70] ts 662 - 663, 16 February 2022.
[71] ts 663, 16 February 2022.
[72] ts 651, 16 February 2022.
[73] Exhibit 7.

[74] Exhibit 1.1, pages 218 - 227.
[75] Exhibit 1.1, page 226.
[76] Exhibit 1.1, page 226.
[77] Exhibit 2, pages 26 - 30.

[78] ts 667, 16 February 2022.
[79] ts 668, 16 February 2022.
[80] ts 672, 16 February 2022.
[81] Exhibit 5.

[82] ts 694, 17 February 2022.
[83] ts 694, 17 February 2022.
[84] ts 694, 17 February 2022.
[85] ts 695, 17 February 2022.
[86] ts 695, 17 February 2022.
[87] ts 695, 17 February 2022.
[88] ts 696, 17 February 2022.
[89] ts 696, 17 February 2022.
[90] ts 696, 17 February 2022.
[91] ts 696, 17 February 2022.
[92] ts 696 - 697, 17 February 2022.
[93] ts 697, 17 February 2022.
[94] ts 697, 17 February 2022.
[95] ts 697, 17 February 2022.
[96] ts 698, 17 February 2022.
[97] ts 698, 17 February 2022.
[98] ts 698, 17 February 2022.
[99] ts 698, 17 February 2022.
[100] ts 698, 17 February 2022.
[101] ts 698, 17 February 2022.
[102] ts 698, 17 February 2022.
[103] ts 699, 17 February 2022.
[104] ts 699, 17 February 2022.
[105] ts 699, 17 February 2022.
[106] ts 700, 17 February 2022.
[107] ts 700, 17 February 2022.
[108] ts 700, 17 February 2022.
[109] ts 700, 17 February 2022.
[110] ts 700, 17 February 2022.
[111] ts 700 - 701, 17 February 2022.
[112] ts 701, 17 February 2022.
[113] ts 701, 17 February 2022.
[114] ts 701, 17 February 2022.
[115] ts 701, 17 February 2022.
[116] ts 701, 17 February 2022.
[117] ts 701, 17 February 2022.
[118] ts 701, 17 February 2022.
[119] ts 701 - 702, 17 February 2022.
[120] ts 702, 17 February 2022.
[121] ts 702, 17 February 2022.
[122] ts 703, 17 February 2022.
[123] ts 703, 17 February 2022.
[124] ts 703, 17 February 2022.
[125] ts 703, 17 February 2022.
[126] Exhibit 1.2, pages 240 - 256.
[127] Exhibit 2, pages 20 - 30.
[128] Exhibit 2, pages 1 - 11.

[129] Standard conditions 4 and 7 of the proposed conditions import these requirements.

[130] ts 674, 16 February 2022.
[131] ts 675, 16 February 2022.
[132] ts 675, 16 February 2022.
[133] ts 675, 16 February 2022.
[134] ts 675, 16 February 2022.
[135] ts 675, 16 February 2022.
[136] ts 675, 16 February 2022.
[137] ts 676, 16 February 2022.
[138] ts 676, 16 February 2022.
[139] ts 676, 16 February 2022.
[140] ts 677, 16 February 2022.
[141] ts 678, 16 February 2022.
[142] ts 678, 16 February 2022.
[143] ts 685, 16 February 2022.
[144] ts 682, 16 February 2022.
[145] ts 683, 16 February 2022.
[146] ts 683, 16 February 2022.
[147] ts 683, 16 February 2022.
[148] ts 683, 16 February 2022.
[149] ts 684, 16 February 2022.
[150] ts 685, 16 February 2022.
[151] ts 685, 16 February 2022.
[152] Director of Public Prosecutions (WA) v GTR [178].
[153] Patrick [No 2] [71].
[154] ts 652 - 653 and 658 - 651, 16 February 2022.
[155] Patrick [No 4] [41].
[156] Patrick [No 4] [40], [118(3)].
[157] Patrick [No 4] [51].
[158] Patrick [No 4] [65].

[159] Exhibit 2, page 9.
[160] Exhibit 2, page 29.
[161] Exhibit 2, page 29.
[162] ts 714 - 715, 17 February 2022.
[163] ts 709 and 721 - 722, 17 February 2022.
[164] Act, s 68(2).
[165] Patrick [No 3] [274].
[166] ts 718, 17 February 2022.
[167] Act, s 49 and s 50.

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