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THE STATE OF WESTERN AUSTRALIA -v- CARTER [No 5] [2023] WASC 223 (23 June 2023)

Last Updated: 23 June 2023

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : THE STATE OF WESTERN AUSTRALIA -v- CARTER [No 5] [2023] WASC 223

CORAM : DERRICK J

HEARD : 12 JUNE 2023

DELIVERED : 23 JUNE 2023

FILE NO/S : SO 6 of 2015

BETWEEN : THE STATE OF WESTERN AUSTRALIA

Applicant

AND

BRENDON VAUGHAN CARTER

Respondent

Dangerous sexual offender - High risk serious offender- Periodic review - Whether respondent remains a high risk serious offender - Whether continuing detention order should be affirmed or rescinded - Whether community would be adequately protected if respondent released on a supervision order

Legislation:

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

Result:

Supervision order made

Category: B

Representation:

Counsel:

Applicant	:	B D Meertens
Respondent	:	D J McKenzie

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	David McKenzie

Case(s) referred to in decision(s):

DERRICK J:

Introduction

On 29 November 2022 the State of Western Australia (State) applied, pursuant to s 64 of the High Risk Serious Offenders Act 2020 (WA) (Act), for the detention of Brendon Vaughan Carter (respondent) under a continuing detention order to be reviewed as soon as practicable after 10 December 2022 (application).
The hearing of the application took place before me on 12 June 2023.
For the reasons set out below, I have decided that the respondent remains a high risk serious offender, that the continuing detention order should be rescinded and that a supervision order should be made in respect of the respondent.

Background to the application Proceedings under the Dangerous Sexual Offenders Act 2006 (WA)

On 6 November 2015 Hall J found that the respondent was a serious danger to the community within the meaning of s 7(1) of the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). Hall J made a continuing detention order in respect of the respondent pursuant to s 17(1)(a) of the DSO Act (CDO).[1]
On 8 November 2016 Hall J conducted the first review of the CDO. The review was conducted pursuant to s 29 and s 31 of the DSO Act. Hall J found that the respondent remained a serious danger to the community and declined to rescind the CDO.[2]
On 8 and 14 November 2018 Corboy J conducted the second review of the CDO under the DSO Act. Corboy J found that the respondent remained a serious danger to the community and declined to rescind the CDO.[3]

The coming into operation of the Act

On 9 July 2020 pt 1 of the Act came into operation.[4] On 26 August 2020 other parts of the Act relevant to the application came into operation (commencement day).[5] Upon the coming into operation of these other parts of the Act the DSO Act was repealed.[6]
Under s 125 of the Act, if an order made, or direction given, under the DSO Act is in effect on the commencement day, the order or direction continues in effect and is taken to have been made or given under the corresponding provision of the Act. Accordingly, after 26 August 2020 the CDO continued in effect and was taken to have been made under the Act, and any application for the review of the CDO was required to be made pursuant to the provisions of the Act and be determined pursuant to the provisions of the Act.[7]

The third review of the CDO

On 3 June 2021 Hall J conducted the third review of the CDO pursuant to s 64 and s 66 of the Act. On the same date his Honour affirmed the CDO pursuant to s 68(1)(b)(i) of the Act.[8] His Honour encapsulated his reasons for affirming the CDO in the following terms:[9]

I am satisfied that the respondent remains a high risk serious offender. The level of risk has not significantly changed since the last review. The uncontested expert evidence is that a restriction order is necessary in the circumstances of this case.

However, there have been a number of changes that are relevant to the issue of whether that risk can be managed appropriately in the community. Amongst these are the treatment gains made in psychological counselling, the stabilisation of the respondent's mental illness and the availability of suitable accommodation. These factors improve significantly the respondent's prospects of being released on a supervision order. The major impediment, however, is the lack of assured funding for support workers. Without a minimum level of daily support there is a risk that the respondent would not cope with the pressures of living in the community, would become non-compliant with his medication, would decompensate and become ill, may resort to alcohol and illicit drugs and, as a result, would be at higher risk of reoffending. Accordingly, without having at least four to five hours of support per day, the risk of reoffending could not be adequately reduced and the protection of the community could not be ensured.

The obvious source of funding for core support is the NDIS. The respondent has a very serious chronic mental illness which affects his functional capacity. There would seem to be little doubt that he qualifies for assistance under the scheme. However, it appears that there is an inflexible policy not to assess a person who is detained in prison unless a certain release date is set by the court. In the case of prisoners who are serving a finite sentence it may be possible to provide a release date. However, this policy creates an impossible barrier in the case of an offender dealt with under the HRSO Act. Under the HRSO Act, the court cannot approve a supervision order unless satisfied that the risk of reoffending can be reduced to a level consistent with adequate protection of the community. In a case such as the respondent's, that means that the court must be assured that the support necessary to reduce that risk will be provided.

Of course the NDIA is not concerned with the risk of reoffending, its concern is with the provision of disability services. However, the two areas are not mutually exclusive. It is likely that if the respondent's disability needs are met to the recommended level this would also produce, as an incidental benefit, a reduction in the risk of re-offending. There appears to be some concern within the NDIA that the support sought for the respondent is related to re-offending risk and not disability support. With all due respect, that concern seems to be ill-founded and fails to appreciate that it is the respondent's disability (his mental illness and attendant deficits) that is one of the factors contributing to risk. Other contributors to risk are being addressed by a range of supports from other service providers, such as the Department of Justice, Uniting West and Community Mental Health Services. But the contribution required from the NDIS remains critical.

The fact is that unless the policy of the NDIA changes, the respondent's disability needs will continue to be met by the prison system. This is in neither his interests nor the public interest generally. If adequate core support is funded and made available for the respondent the likelihood is that he can be released on a supervision order. The refusal to assess him for such support means that he must continue to be detained in a prison.

Although there is a possibility that support services might be provided by the NDIS if a release date was set (that is a supervision order was approved), there is very considerable uncertainty as to whether or when that could occur. The level of uncertainty is such that I can have no confidence that if released the respondent would have the support the needs to ensure that his mental illness remains well-managed. The consequence of this for the risk of re-offending is such that I cannot be satisfied at this time that the community would be adequately protected by a supervision order.

For these reasons it was not possible to make a supervision order and at the conclusion of the review hearing I affirmed the continuing detention order.

The respondent has now been incarcerated since 8 November 2011 and has been detained under the provisions of the DSO Act and the Act since 7 November 2015.

Evidence on the application

At the hearing of the application the State tendered without objection a Book of Materials comprising two volumes.[10] Volume 1 is dated 26 April 2023. Volume 2 is dated 7 June 2023.
The Book of Materials contains a variety of materials relating to the respondent. The materials include the respondent's criminal record, documents relating to his prior offences and reports prepared in relation to him, including the reports that were prepared for the purposes of the prior reviews.
Volume 1 of the Book of Materials contains some materials prepared specifically for the purposes of, or at least in anticipation of, the hearing of the application. These materials include the following:
1. A Treatment Progress Report prepared by Ms Caris Hamlett‑Waller, Counselling Psychologist with the Department of Justice's (Department) Forensic Psychological Intervention Team (FPIT), dated 19 April 2023;[11]
2. The respondent's National Disability Insurance Scheme (NDIS) Plan dated 3 January 2023 for the period 19 December 2022 ‑ 19 December 2023;[12] and
3. A letter from a social worker employed by the respondent's NDIS funded Specialist Support Coordinator, to the Department's Community Offender Monitoring Unit (COMU), dated 13 April 2023.[13]
Volume 2 of the Book of Materials contains the following reports prepared in relation to the respondent specifically for the purposes of the application:
1. A psychiatric report prepared by Dr Peter Wynn Owen, Consultant Forensic Psychiatrist, dated 25 May 2023;[14]
2. A High Risk Serious Offender Treatment Progress Report prepared by Ms Catherine Korda, Senior Forensic Psychologist with the Department's Forensic Psychological Assessment Team, dated 25 May 2023;[15] and
3. A Community Supervision Assessment Report prepared by Ms Gabriela Serrano, Senior Community Corrections Officer (CCO) with the COMU.[16]
Volume 2 of the Book of Materials also contains a Positive Behaviour Support Plan (Behaviour Plan) prepared in relation to the respondent by a Behaviour Support Practitioner dated 3 May 2023.[17]
At the hearing of the application the State also tendered without objection an email from the State Solicitor's Office to the court dated 8 June 2023. The email contains an update provided by Ms Aimee Goode of the COMU in relation to the results of a Desktop Spatial Analysis for an address at which it is proposed the respondent will live if I find that he remains a high risk serious offender but can be released into the community on a supervision order.[18]
At the hearing of the application the State called Dr Wynn Owen, Ms Korda and Ms Serrano to give supplementary oral evidence.
The respondent did not adduce any evidence on the application.
Dr Wynn Owen assessed the respondent for the purposes of, and provided evidence on, the second and third reviews of the CDO.

Relevant statutory provisions and applicable legal principles

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.
In relation to the applicable legal principles, in The State of Western Australia v ZSJ,[19] 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.

I respectfully agree with Fiannaca J's observations. In my opinion and having full regard to the recent decision of the High Court in Garlett v The State of Western Australia[20] which addressed the constitutional validity of aspects of the Act, the case law decided under the DSO Act in relation to applications for review of continuing detention orders remains (with appropriate adaptation in cases involving non-sexual offences) 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 include cases that have been concerned with proceedings under the DSO Act.
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.[21]

Section 64 of the Act provides for the making by the State of an application for an offender's detention under a continuing detention order to be reviewed.
Section 66 of the Act provides for the hearing by the court of an application by the State for the review of an offender's detention under a continuing detention order.
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.

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.

The term 'restriction order' is defined in s 3 of the Act to mean 'a continuing detention order' or 'a supervision order'. A 'continuing detention order' is 'an order that the offender be detained in custody for an indefinite term for control, care or treatment'.[22] A 'supervision order' 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 s 30'.[23]
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(2) of the Act provides that an offence is a 'serious offence' if it was 'an offence under a written law that has been repealed and the offender's acts or omissions that constituted the offence under the repealed provision would constitute a serious offence' under s 5(1). 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) or s 5(2).[24]
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.[25]
If the court finds that an offender 'remains a high risk serious offender' it is not invested with a residual discretion to decline to make a restriction order.[26] In these circumstances the question for the court is whether a continuing detention order or a supervision order should be made.[27]
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.[28]
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.[29] 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.
Whether or not a risk that the offender will commit a serious offence is 'unacceptable' is a question that requires the court's judgment as to the likelihood of the offender committing the serious offence and the nature and extent of the harm that will be caused if the offender commits the serious offence.[30] Further, whether a restriction order is 'necessary' to ensure adequate protection of the community against the 'unacceptable risk' requires consideration of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.[31] Accordingly, the court is required to perform an evaluative exercise by considering 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.[32] In addition, although the requirement of an evaluation under s 7(1) depends upon the offender having been convicted of a serious offence, s 7(1) and s 68 do not envisage the possibility that a finding that an offender remains a high risk serious offender might be made to prevent the commission of a serious offence, whether of the same kind or another kind, unless the risk of further offending involves a real threat of harm to the community.[33]
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 '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. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot be assumed that the most assured preventative action is detention and that therefore the protection of the community will always favour such an order.[34] 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] 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:[35]

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.

The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection of the community.[36]
Section 7(2) of the Act provides that the State 'has the onus of satisfying the court as required by subsection (1)'.
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.
Although s 7(3)(g) provides that a court must have regard to the offender's criminal record in deciding whether the person is a high risk serious offender, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that they will commit a serious offence in the future if they are not subject to a continuing detention order or a supervision order. The relevance of a prior criminal record depends on the nature of the offences committed, the number of them and the period of time over which they have been committed. Nonetheless, past behaviour is often a good indicator of future conduct.
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 of proof as to the matter described in subsection (1) is on the offender.

The term 'standard conditions' in relation to a supervision order is defined in s 3 of the 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.
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.[37]
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 is consistent with, and will enable the attainment of, the general objects of a supervision order and the Act, specifically the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[38] Further, in determining if it is satisfied that the offender will substantially comply with each standard condition of the supervision order, the court must have regard not only to the constraints that will be imposed upon the offender by the other standard conditions, but also to the constraints that will be imposed upon the offender by all the other 'non-standard' conditions of the supervision order.[39]
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][40] 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.

Matters specified in s 7(3) of the Act

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 history of offending - s 7(3)(g)

In Director of Public Prosecutions (WA) v Carter (initial decision) Hall J set out in detail the respondent's history of offending.[41] It is not necessary to repeat what Hall J said in this respect in the initial decision. A brief summary of the respondent's history of sexual offending, which is the offending that has resulted in him being detained under the Act, is as follows.
In 1991 the respondent pleaded guilty to one offence of sexual penetration without consent contrary to s 324D of the Criminal Code (WA) (Code). The respondent committed the offence on 29 May 1990 when he was 19 years old. The victim of the offence was a 17-year-old female. The respondent had become acquainted with the victim because she was living in a hostel adjacent to the hostel in which the respondent was living. The respondent was sentenced to 3 years 10 months and 2 weeks imprisonment for the offence.
In 1998 the respondent pleaded guilty to two offences of indecently dealing with a child under the age of 16 who he knew to be his defacto child contrary to s 329(4) of the Code. The respondent committed the offences on unknown dates between 20 December 1997 and 30 December 1997. The respondent was 27 years old at the time of committing the offences. The victim of the offences was the 9-year-old daughter of a woman with whom the respondent was living in a defacto relationship. The respondent was sentenced to a total effective sentence of 3 years imprisonment for the offences.
In 2012 the respondent pleaded guilty to an offence of sexual penetration without consent contrary to s 325 of the Code. The respondent committed the offence on 4 March 2011. The respondent was 41 years old at the time of committing the offence. The victim was a 21-year-old female who the respondent had known for some years but had never been in a sexual relationship with. The respondent was sentenced to 3 years and 10 months imprisonment for the offence. He was also sentenced to 2 months imprisonment cumulative for another offence. He finished serving this sentence on 7 November 2015 since which time he has been the subject of the CDO.

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

The respondent is 53 years old.
In the initial decision Hall J set out in relative detail the respondent's personal history and circumstances.[42] It is not necessary to repeat what Hall J said in this respect in the initial decision.
The respondent has been a prisoner at Karnet Prison Farm (Karnet) since December 2018.
The respondent has not had any contact with his parents or brother since 2005. He has expressed the hope of having a relationship with them in the future.
Since he has been at Karnet the respondent has had reasonably regular telephone contact with one of his adult children, a daughter. He has occasional contact with his remaining adult children, another daughter and a son. He has expressed a desire to reconnect with his children. He has also expressed a desire to connect with a church group.
Both of the respondent's daughters have young children. One of his daughters has a female child who is approximately 3 years old and the other daughter has a male child who is approximately 6 months old.[43]
Apart from professional services the respondent has limited community support.[44]
The respondent has a chronic lifelong serious mental illness.[45] He has previously been diagnosed with drug induced psychosis, antisocial personality disorder and schizoaffective disorder. Most recently he has been diagnosed with schizoaffective disorder, bipolar type.
The respondent has also been diagnosed with paraphilia involving a deviant interest in non-consensual violent sexual activity and paedophilia, non-exclusive type.[46]
The respondent's schizoaffective disorder is treated with a combination of antipsychotic (oral and muscular) and mood stabilising medications.[47] He receives on a monthly basis a depot injection of paliperidone, an atypical antipsychotic drug.[48] He also takes a number of other prescribed medications including Selective Serotonin Reuptake Inhibitors (SSRI).
The respondent sees a mental health nurse once every four weeks to receive his depot injection at which time his mental state is also assessed.[49] He is also reviewed by a prison based psychiatrist.[50] He was being reviewed by the psychiatrist on a monthly basis but during the last year this has reduced to once every three to four months given the stable remission of the respondent's psychosis.[51]
Since the last review of the CDO the respondent's mental state has remained stable.[52]
On 25 May 2023 Dr Wynn Owen completed the respondent's Community Forensic Mental Health Service (CFMHS) referral in anticipation of the respondent's possible release from custody on a supervision order. On 1 June 2023 a Consultant Forensic Psychiatrist from the CFMHS confirmed that Dr Wynn Owen's referral had been accepted.[53] Accordingly, if the respondent is released into the community on a supervision order he will have access to mental health treatment from the CFMHS.[54]

The respondent's NDIS Plan, Behaviour Plan and available accommodation -s 7(3)(j)[55]

On 19 December 2022 the respondent's NDIS Plan commenced. A review of the plan will take place prior to 19 December 2023. [56]
The respondent's stated goals under the NDIS Plan include identifying his disability related needs, obtaining accommodation, increasing his engagement in prison employment to prepare for community reintegration, and developing independent living skills and social connections.
The NDIS Plan includes substantial funding for core supports, that is, supports to assist with daily living, disability related needs and progress towards goals. The plan also includes funding for capacity building supports, that is, supports directed at building the respondent's independence and reducing his need for support over time.
The capacity building supports funding under the NDIS Plan includes funding for support coordination, life transition planning, occupational therapy assessment and intervention, and specialist behaviour intervention support.
A significant component of the respondent's funding for core supports under the NDIS Plan will be directed to one-to-one Supported Independent Living (SIL). Accordingly, the respondent will have a male support worker with him for 24 hours a day seven days a week to assist him with his everyday needs.
Pursuant to the funding provided under the NDIS Plan, the respondent's Specialist Support Coordinator has secured accommodation for the respondent in the community through a SIL provider contracted under the NDIS Plan (SIL provider). The SIL provider is an organisation that aids individuals with concurrent complex mental health needs and justice system involvement. The SIL provider will provide the respondent's accommodation and male support workers who will be with the respondent continuously if I find that he remains a high risk serious offender but can be released into the community on a supervision order.
It is also pursuant to the funding provided under the NDIS Plan that the Behaviour Plan has been prepared in relation to the respondent. The Behaviour Plan outlines the respondent's problem behaviours related to medication non-compliance and inappropriate social behaviours. The Behaviour Plan sets out a range of varied strategies to increase the respondent's motivation to continue to take his medication, to promote greater knowledge and understanding by the respondent of his mental disorder, and to develop the respondent's skills in coping, social communication and developing healthy relationships with others. It is proposed that if the respondent is released into the community on a supervision order his support workers from the SIL provider will be trained to implement the Behaviour Plan as part of his daily activities. In addition, concurrent individual behaviour support intervention focussing on social and relationship skills and mental health will be provided by the Behaviour Support Practitioner who has prepared the Behaviour Plan.
The Behaviour Plan will be reviewed in 12 months, although an earlier review can occur if the respondent's circumstances change or new problem behaviours emerge.
The NDIS Plan can be used flexibly and can be used to enable support services to visit the respondent while he is in custody and commence rapport and relationship building. The Senior Service Coordinator from the SIL provider had a first visit with the respondent on 30 May 2023. He has another visit with the respondent booked for early June 2023.
The respondent has already started to engage and work with an Occupational Therapist, the Behaviour Support Practitioner who prepared the Behaviour Plan and a Social Worker from the Specialist Support Coordinator. He will continue engaging with these individuals if I find that he remains a high risk serious offender but decide that he can be released into the community on a supervision order. If for any reason the current Occupational Therapist, Behaviour Support Practitioner or Social Worker cannot continue to work with the respondent then a new therapist or practitioner or social worker, as the case may be, will be appointed to work with him.
The Behaviour Support Practitioner will be involved in training the respondent's support workers.

The respondent's prison behaviour - s 7(3)(j)[57]

The respondent is currently in Karnet's Self Care Unit.
The respondent has not since the last review of the CDO incurred any charges or adverse incident reports.
The respondent works with minimal supervision in the prison laundry. He is completing his Certificate 2 in Laundry Practices.
The respondent has been subjected to numerous breath tests since the last review of the CDO all of which yielded negative results. He has not been subjected to any urinalysis tests.

Desktop Spatial Analysis of SIL provider accommodation - s 7(3)(j)

On or about 8 June 2023 the Western Australian Police Force Sex Offender Registry provided to the COMU the results of a Desktop Spatial Analysis of the accommodation that will be available to the respondent through the SIL provider if I find that he remains a high risk serious offender but decide that he can be released into the community on a supervision order.[58] The analysis identified a number of places, areas and persons of concern within a 2 km radius of the proposed accommodation.

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

Participation in programmes and counselling prior to last review

The respondent has over the years undertaken a number of prison based intervention programmes targeting his offending behaviour including the Intensive Sex Offender Treatment Programme.[59] He made only limited gains as a result of his participation in these programmes. His mental health issues and his attitude towards his medication regime impacted on his ability to make substantial gains from his participation in the programmes.
In November 2015 and up until the time of the first review of the CDO the respondent commenced individual counselling with a psychologist.[60] He made some, albeit minimal, progress as a result of engaging in the counselling.[61]
The respondent continued to engage in individual psychological counselling following the first review of the CDO and up until the time of the second review.[62] He appeared to make some gains through the counselling, although given the effects of his medication regime it was difficult to assess if he had sufficiently addressed the factors that underpinned his offending in a meaningful way.[63]
After the second review of the CDO the respondent continued his individual psychological counselling. By the time of the most recent review of the CDO the counselling had resulted in the respondent making treatment gains.[64] He had become more accepting of his mental health diagnosis and had developed better insight into his need for symptom management.[65] He had developed a sound understanding of the factors contributing to his sexual offending.[66] He was able to identify his risk factors and to provide a reasonable summary of his risk management plans and strategies.[67] He displayed increased acceptance of his past offending and an increased willingness to take responsibility for his offending which was thought to be attributable to his more stable mental health and greater clarity of thought.[68] He appeared to have achieved more emotional awareness and an improved ability to tolerate negative emotional states.[69] His statement of the goals that he had set for his future represented appropriate planning and indicated an increased awareness as to what might constitute an appropriate lifestyle.[70]

Individual psychological counselling since last review[71]

On 17 January 2022 the respondent commenced individual psychological counselling with Ms Hamlett-Waller.
The respondent has attended 21 counselling sessions with Ms Hamlett-Waller, the most recent of these sessions being on 29 May 2023.[72] During June and August 2022 the respondent was unable to attend counselling sessions due to prison COVID-19 restrictions.
According to Ms Hamlett-Waller the respondent has often presented with restricted emotional reactivity attributable to his medication and psychiatric diagnosis.
The respondent has reported to Ms Hamlett-Waller that he has a reduced sexual drive as a result of taking his prescribed SSRI medication.
At the commencement of her engagement with the respondent Ms Hamlett-Waller and the respondent agreed on the following intervention goals:
1. Discuss illicit substance relapse prevention;
2. Continue to develop appropriate coping and emotional management skills;
3. Continue to discuss interpersonal skills and capacity to form relationships;
4. Continue to review and discuss risk management plan and scenarios; and
5. Monitoring of deviant sexual thoughts.
The respondent has reported to Ms Hamlett-Waller a high level of confidence in his ability to abstain from substance misuse. Nonetheless, he has remained interested in discussing both his motivation to abstain from substances and the link between his substance misuse, decision-making and libido. He has acknowledged the detrimental impact any substance use would have on his mental health.
In Ms Hamlett-Waller's assessment the respondent appears to over emphasise the role that substance use plays in relation to his mental health issues. That is, he views his mental health issues to be the result of drug-induced psychosis and not necessarily the result of an underlying condition.
The respondent has been able to recognise the need to avoid antisocial peers and those who use substances. He has acknowledged that he will need to take steps to mitigate risk arising from associating with those who use substances. He has been open to suggestions as to how he might go about doing this, particularly in relation to boundary setting.
In relation to managing dysphoric emotions, the respondent has reported to Ms Hamlett-Waller a preference for using distraction techniques such as watching television, going for a walk, having a coffee or listening to music.
The respondent has been open to discussing with Ms Hamlett-Waller boundary setting with peers as well as with his adult children.
The respondent has acknowledged to Ms Hamlett-Waller his risk factors as identified during counselling with his previous psychologist. The risk factors acknowledged by the respondent are impulsive drive, drug and alcohol use, no consent, high sex drive, no life direction, sexualising situations and deviant fantasies. With the exception of the impulsive drive risk factor, the respondent has been able to offer a basic explanation for the role that each factor played in his offending. With respect to the impulsive drive risk factor it was apparent to Ms Hamlett-Waller that the respondent did not understand the term. Ms Hamlett-Waller therefore explained the term to the respondent and once this occurred he was able to provide a brief answer as to the role that the factor played in his offending.
The respondent has continued to report that his antipsychotic medication has suppressed aspects of his personality including his demeanour and speech. He does not appear to Ms Hamlett-Waller to be intrinsically motivated to continue with his medication which she considers to be consistent with his lack of insight. However, he has indicated that he will comply with his medication regime to satisfy the court.
In relation to his use of the SSRI medication which he refers to as his 'anti-libidinal' medication, the respondent has reported to Ms Hamlett-Waller satisfaction with the medication and a desire to continue with the medication.
The respondent has told Ms Hamlett-Waller that he is open to engaging with the CFMHS if he is released into the community so as to enable him to continue with his pharmacological interventions and psychiatric care.
Ms Hamlett-Waller has formed the view that at times the information provided by the respondent in relation to his sexual thoughts appears rehearsed. The respondent has often reported his masturbation frequency and the content of his sexual fantasies without being questioned at the commencement of a session. Ms Hamlett-Waller thinks that this unprompted reporting could be an attempt by the respondent to demonstrate a willingness to monitor and disclose his sexual arousal and behaviour generally. However, she also thinks that it could be an automatic and rehearsed response to persistent questioning on this topic over many years rather than a considered admission.
According to Ms Hamlett-Waller the content of the respondent's reported sexual fantasies and dreams have, for the most part, been stable over the course of the intervention (consensual sex with ex-partners). The respondent has continued to deny experiencing any violent or deviant sexual thoughts or fantasies. He has continued to deny any paedophilic interests or fantasies. He has reported that his libido is low. He has attributed his lack of deviant thoughts to medication and previous intervention. When Ms Hamlett-Waller asked the respondent why he believes these thoughts had ceased the respondent attributed the cessation of the thoughts to maturity and a greater understanding of the seriousness of such actions.
Although the respondent's reported sexual fantasies and dreams have for the most part been stable during the course of intervention, in his most recent sessions with Ms Hamlett-Waller the respondent reported unspecified thoughts about his daughters triggered by photographs in his possession as well as more frequent thoughts about his most recent offence. He described the thoughts involving his daughters as distressing and stated that he did not wish to sexualise his daughters. He reported that he managed these thoughts by distracting himself.
With respect to his thoughts about his most recent offence, the respondent reported to Ms Hamlett-Waller that when he has had these thoughts he has 'switched' the thoughts to having consensual sexual activity with the victim and that he has found these thoughts enjoyable.
Due to the recency of the respondent's disclosures concerning his thoughts and his most recent offence, Ms Hamlett-Waller has not been able to explore them in any depth. The respondent has, however, expressed a willingness to keep a diary of his thoughts and fantasies.
In Ms Hamlett-Waller's opinion the respondent has through his counselling with her continued to make progress commensurate with his responsivity issues. However, she notes that the gains made by the respondent over the years of intervention are yet to be tested outside of a prison environment.
In Ms Hamlett-Waller's opinion the respondent's treatment need areas include exploring his sexual thoughts and fantasies, adjustment of scenario planning activities to better correspond with his release environment, and exposure to novel experiences to increase his self-awareness and ability to apply his skills and knowledge.
In Ms Hamlett-Waller's view the respondent appears to be nearing treatment saturation in a restricted environment. She considers that further intervention in custody is likely to yield limited gains.
Ms Hamlett-Waller has confirmed that if the respondent is released on a supervision order psychological intervention will continue with an initial focus on adjustment and risk management. She notes that the focus and direction of further intervention will be informed by the risk, need and responsivity factors that are identified.

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

Dr Wynn Owen's evidence

Report[73]

Dr Wynn Owen's report reveals the following.
Dr Wynn Owen interviewed and assessed the respondent on 9 May 2023. The respondent was polite and cooperative at interview.
The respondent acknowledged that he had a mental illness that required treatment. However, he was not clear as to what the illness was. He indicated that the illness was drug related. He said that he recognised the need for him to be treated with anti-psychotic medications.
The respondent's initial response to being asked to describe what he thought were his high risk situations for future serious offending was, 'This is where I go blank'. The respondent then referred to a printed risk management plan that he had developed with Ms Hamlett-Waller and had bought with him to the interview. Dr Wynn Owen's ensuing discussion with the respondent took place by reference to items listed in the management plan.
The respondent said that using drugs or alcohol was a risk factor for him and that he intended to remain abstinent. The only strategy he proffered for abstaining from substance use was to avoid the company of people using drugs and alcohol. He did not describe situations and/or emotional states that might lead him to think of substance use.
The respondent said that he was now aware that not having a plan in life, and being lonely and isolated, would at times be a risk factor. However, he was not able to explain how the risk of reoffending would develop from not having a plan in life and being lonely and isolated, or whether not having a plan in life and being lonely and isolated related to times when he would resort to pathological coping.
The respondent said that awareness of consent to sexual contact was important. He went on to say, 'No means no'.
The respondent acknowledged that the presence of 'deviant fantasy' was a high risk factor, saying that this might occur if he was bored or isolated. His stated plans for avoiding boredom included attending church, reading the bible and engaging in outdoor activities such as swimming, cycling and walking.
The respondent said that he was aware that he had significant NDIS funding to support his return to the community. He acknowledged that it would take time for him to orientate to life in the community. He said that although he would like to find employment he would prefer to defer looking for work initially and perhaps apply for a disability support pension.
The respondent reported a very low sex drive and low sexual interest. He attributed this to his SSRI and antipsychotic medications. He said that his libido had significantly declined 18 months ago and had remained very low.
The respondent reported masturbating at most twice a month. He said at these times he thinks about his ex-girlfriend from when he was a teenager.
The respondent denied experiencing any deviant sexual fantasies. However, according to Dr Wynn Owen he was vague about when he had last had a deviant sexual fantasy. He indicated that this was possibly three years ago.
According to Dr Wynn Owen, although the respondent denied experiencing deviant sexual fantasies he at times talked about having such fantasies in the present tense.
Dr Wynn Owen diagnoses the respondent with the following conditions:
1. Schizoaffective disorder, bipolar type, multiple episodes, currently in remission;
2. Sexual sadism disorder (deviant interest in non-consensual violent sexual activity);
3. Paedophilic disorder (non-exclusive type, preference for females); and
4. Antisocial personality disorder.
Dr Wynn Owen identifies the negative features of the respondent's schizoaffective disorder that are present as blunted affect, reduced social drive and problems with motivation.
Dr Wynn Owen undertook an assessment of the risk of the respondent committing further sexual offences. He adopted a Structured Professional Judgment approach to his risk assessment. Such an approach takes into account static and historical risk factors using a combination of actuarial tools, structured assessment guides and a psychiatric assessment.
In undertaking his risk assessment of the respondent Dr Wynn Owen made use of two assessment tools, the Static-99R and the Risk for Sexual Violence Protocol (RSVP).
The Static-99R measures the risk of re-offending based on known historical risk factors. The respondent's Static-99R score was 4 which is unchanged since he was last assessed in 2021. This score places him in the risk level IVa or 'Above Average Risk' group. Offenders in the Static-99R High Risk/High needs cohort with the same score as the respondent had, on release from prison, a 17.3% likelihood of committing a sexual offence within 5 years and a 27.3% likelihood of committing a sexual offence within 10 years of release.
In making use of the RSVP Dr Wynn Own identified a number of risk factors that are present and relevant to the respondent's risk of committing further sexual offences and the management of the risk. The factors included the following:
1. Chronicity of sexual offending, diversity of sexual offending, physical coercion and psychological coercion - In addition to being associated with an increased risk of future sexual offending these factors are all often associated with sexual deviance;
2. Extreme minimisation or denial of sexual violence (present but moderating) - The respondent does not categorically deny his sexual offending. Although he does not overtly minimise the offending he still offers some justifications when discussing the offending;
3. Problems with self-awareness (partially present) - The respondent presents as aware that there is a risk of future offending and as being aware of a link between substance use and offending. However, he does not appear able to recognise the emotional states in which his risk of reoffending arises. Problems recognising a re-offending risk is regarded as an important dynamic factor for sexual recidivism increasing the risk of future offending both directly and indirectly;
4. Problems with stress and coping - The respondent reports that he finds the high risk serious offender assessment process and release planning stressful. He is therefore in a stressful situation notwithstanding statements to the effect that he is content and happy go lucky. This indicates a possible minimisation of stress, unawareness of stress or deliberate avoidance of acknowledging stress. Unmanaged stress brings with it an increased likelihood of the respondent returning to deviant sexual fantasies as a coping strategy which is of particular relevance to the respondent's offending. Unmanaged stress with associated negative effect and poor coping levels have also been the context in which the respondent has engaged in substance abuse as a pathological coping mechanism;
5. Sexual deviance - The respondent denies having had any fantasies involving rape or any form of violent and/or coercive sexual contact for at least 3 years. However, his comments on such fantasies in the present tense at interview suggest he may still be experiencing them but is unwilling to disclose this fact;
6. Major mental illness - The respondent appears to have partial insight into the illness because he reports willingness to take regular medications;
7. Substance use - The respondent has used drugs and alcohol to cope and to manage stress since his late teens. Any future substance use would be an indicator of poor coping;
8. Violent or suicidal ideation;
9. Problems with intimate relationships;
10. Problems with non-intimate relationships (present but moderating) - The respondent has not established any lasting friendships and has been estranged from his parents and brother since 2005. However, he has established contact with a number of his children;
11. Non-sexual criminality;
12. Problems with planning;
13. Problems with treatment (present but moderating) - The respondent has engaged well with Ms Hamlett-Waller and appears motivated for treatment but has nonetheless made limited progress in certain treatment areas; and
14. Problems with supervision - The respondent has in the past breached bail and restraining order conditions. However, he has been highly compliant with prison regimes. His consistent prison behaviour over some years augurs well for compliance with community supervision.
In light of the statements made by the respondent during interview Dr Wynn Owen is of the opinion that the respondent is still having deviant sexual fantasies about rape scenarios and specifically about the offences he committed in 2011.
Dr Wynn Owen makes the point that the respondent's past offending has been associated with sexually deviant fantasies (both sexually violent and paedophilic), that the fantasies have occurred when the respondent is under stress, that the fantasies have been used by the respondent as a form of coping, and that the fantasies have also occurred, or have increased in frequency, when the respondent is abusing drugs and alcohol.
In Dr Wynn Owen's opinion the risk of the respondent committing further serious sexual offences is particularly associated with sexual deviance, lack of self-awareness and poor coping skills complicated by major mental illness. He is of the opinion that substance use will elevate the respondent's offending risk. He is also of the opinion that compliance with mental health care including prescribed medications, pro-social family relationships and NDIS funded accommodation, skills training and social supports will be protective.
On the basis of his clinical assessment, the respondent's Static-99R score and his review of the RSVP factors, Dr Wynn Owen's opinion is that the respondent will be at a high risk of committing further serious sexual offences if he is not subject to a restriction order.
In relation to the future management of the respondent Dr Wynn Owen makes the following recommendations:
1. The respondent engage in ongoing counselling with a psychologist from the Department to address his identified treatment targets, with particular reference to awareness and management of sexually deviant thinking;
2. If the respondent is released on a supervision order, he engage with the CFMHS for the management of his mental illness and ongoing risk assessment; and
3. If the respondent is released on a supervision order, the supervision conditions be tailored to address his risk of offending against adults and children, with an emphasis on his high risk situations including access to female children, starting an intimate relationship, stability of mental state and monitoring of libido and sexual thinking.
In Dr Wynn Owen's opinion if a supervision order is made it should be for a period of 5 - 10 years. In this respect Dr Wynn Owen notes that research has confirmed that the risk of future sexual offending reduces with offence free time in the community.

Oral evidence

In his oral evidence Dr Wynn Owen maintained the material views and opinions expressed by him in his report. Dr Wynn Owen also gave supplementary evidence as follows.[74]
The changes that he has observed in the respondent since assessing him for the purposes of the third review of the CDO are relatively subtle and are as follows:
1. The respondent appears slightly more willing to disclose sexual and sexually violent deviant thinking;
2. The respondent appears less ambivalent about the need for him to take medication for his mental illness although he still does not have a clear insight into his illness in that he attributes his illness to the effect of drugs rather than being an ongoing situation;
3. The respondent has had ongoing contact with his daughter which in his view is very positive; and
4. The respondent showed more depth of understanding and awareness of his risks.
Accordingly, the changes are 'not massive'. However, the changes do demonstrate not only that the respondent has maintained treatment gains, but also that he 'seems to have consolidated and developed an awareness and an ability to articulate them'.
Although the respondent presented at the interview with his risk management plan, he considers that the respondent's initial reliance on the plan was attributable to the respondent's anxiety about being interviewed. Once he started talking to the respondent about risk factors the respondent was able to show that he had an awareness of consent, that he was aware that intoxication was a problem for him, that he was aware that he needed to continue to take his medications, that he was aware that deviant thinking was a problem for him if it occurred, and that he was aware that isolation and boredom could be a problem for him. In conveying these thoughts the respondent did not look at the risk management plan.
In stating that the respondent's schizoaffective disorder is currently in remission, he means that the respondent has no acute symptoms of a psychotic or mood disorder. The respondent's schizoaffective disorder is a lifelong condition.
The risk associated with the respondent's lack of insight into his mental illness is that he will not see the need for treatment or for engagement with the team that is offering treatment. However, it is not unusual for an individual with schizoaffective disorder to have limited insight into the illness.
If the respondent is released into the community on a supervision order, the depot medication will be administered by the CFMHS. The CFMHS is a proactive service. Accordingly, even if the respondent fails to present himself for a depot injection the service will seek him out.
There is a difference between paedophilic thinking and a paedophilic disorder which is what the respondent has. A paedophilic disorder involves the person acting on the paedophilic interest for 6 months or more.
A paedophilic interest is something that usually starts in adolescence and is sustained to some degree throughout life. However, the individual often manages the interest. The interest becomes less salient and less prominent in their thinking during particular times of their life. The interest does not go away completely but the individual can seek alternative forms of sexual satisfaction and sexual interest.
Sexual deviance is one of the strongest predictors of future offending.
The respondent's extreme minimisation or denial of sexual violence risk factor has moderated significantly from when he first assessed the respondent for the purposes of the second review of the CDO. This risk factor has moderated mildly since he last assessed the respondent for the purposes of the third review of the CDO.
He does not consider that there has been any change in the risk factor relating to substance use. The respondent is very clear that substance use is a risk factor for him. However, the respondent's methods for avoiding substance use are still quite basic and tend to be just distraction techniques.
The respondent's problems with stress and coping are highly relevant to his risk of re-offending. The respondent has had problems managing stress in the past and has resorted to substance abuse as well as sexually deviant thinking. The substance abuse has then exacerbated the deviant thinking and has resulted in serious offending on one occasion. The respondent will be put under a significant amount of stress if he is released into the community. This is something people need to be very much aware of.
The respondent's offending has not been based on delusions or hallucinations. The reason why the respondent's major mental illness is a risk factor is that if he becomes acutely mentally ill there will be a greater degree of disorganisation, an increased likelihood of poor stress management, a reduction in coping skills, and difficulties in self-management in relation to substance use and deviant thinking. In other words, if the respondent becomes acutely mentally ill this will push him towards high risk situations. It is not a case of the illness being a direct cause of him behaving in a particular way.
In his opinion the respondent's sexual deviance, the respondent's problems with coping and the associated risk of returning to substance use, and the respondent's potential disorganisation and poor self-management that might result if his illness manifests are all significant factors in the respondent's future risk of sexual offending.
He thinks that progress can still be made with further psychological counselling. He thinks that the respondent is now exhibiting signs of being more willing to disclose aspects of his sexual and violent thinking. If the respondent can work with the psychologist and be honest and open about his deviant thinking he can definitely make progress in this area.
An SSRI is an antilibidinal. The SSRI is specifically prescribed to the respondent as an antilibidinal therapy. The usual effect of SSRI medication is to reduce a person's sexual thinking as well as the physical sexual function (that is, libido).
In his opinion the respondent's risk can be managed in the community. He is of this opinion taking into account conditions of a supervision order as proposed by Ms Serrano, the good therapeutic rapport that the respondent has developed with Ms Hamlett-Waller, the significant level of support to be provided to the respondent under the NDIS Plan, the work that the respondent has already done with the Behaviour Support Practitioner and the Occupational Therapist and the oversight of the respondent's mental health that will be provided by the CFMHS.
He is aware that the NDIS Plan is to be reviewed by the end of the year. It is difficult to speculate about any changes that will be made to the level of support to be provided to the respondent following the review. However, he would assume that while there might be a reduction in the level of support, the reduction would not be large given that a number of the respondent's functional impairments that have been related to his schizoaffective disorder and are negative features of his illness are not going to go away. In his view it is highly likely that the respondent will need ongoing support for some time. He would be concerned if in six months time the entire NDIS funding was removed. However, he sees this as being highly unlikely.
With respect to the term of any supervision order, available data suggests that a person leaving prison with the Static-99R score that the respondent has will have an average likelihood of offending within 5 years moving to a below average likelihood of offending within 10 years. Accordingly, in his view if a supervision order is made, it would be ideal if the period of the order is between 5 and 10 years.
The support to be provided under the NDIS Plan is not there to manage the respondent's risk. However, the effect of the support is to manage the respondent's risk. The level of support to be provided under the NDIS Plan makes him more confident that the respondent's activities and interactions will be monitored on a regular basis throughout the day. Further, part of the support workers' role will be to encourage the respondent to socialise appropriately and pro-socially and to engage in activities and exercise. All of these things are going to be important to the respondent's well-being.
It is quite unique for a person to have the level of support and accommodation that is going to be provided to the respondent if he is released. He thinks that the level of support under the NDIS Plan operating in conjunction with the respondent's risk management team, the respondent's mental health team and psychological input will provide a very comprehensive overarching risk management package.

Other assessments of the respondent undertaken specifically for the purposes of the application - s 7(3)(b)

Ms Korda's evidence

Treatment Progress Report[75]

Ms Korda prepared her report to provide an overview of both the psychological intervention provided to the respondent since the CDO was made and an assessment of the respondent's treatment gains, treatment needs and responsivity issues. Her report reveals the following.
Ms Korda interviewed the respondent on 3 May 2023 and 10 May 2023. She also consulted with those responsible for the respondent's management and treatment.
The respondent presented as polite and cooperative throughout the assessment process.
The respondent stated that his relationship with Ms Hamlett-Waller was 'pretty good' and that he was able to engage with her in an open and honest manner. He indicated that as a result of his counselling with Ms Hamlett-Waller he had developed a greater understanding of himself, how he treats others and strategies to deal with his thoughts and feelings. He acknowledged that he could benefit from further intervention. He indicated that he would be willing to engage with a new psychologist if he was unable to continue to see Ms Hamlett-Waller.
According to Ms Korda the respondent, in giving an account of his offending, acknowledged that he had engaged in pre-meditated, non-consensual sexual intercourse with two female victims. He claimed that he had initially confused his stepdaughter with an 18-year-old female but committed the subsequent offence “out of curiosity” due to her (perceived) provocative behaviour towards him. When asked to reflect on his journey towards accepting greater responsibility for his offending conduct, the respondent said that there was 'no point in hiding it' and that he was able to 'be open and honest' due to the amount of intervention he had undertaken. He expressed remorse for his actions.
The respondent listed and elaborated on his risk factors for sexual reoffending and the interplay between them. He identified his risk factors to include impulsive drive, substance use, a lack of direction in life, sexualising situations, using pornography, frequent masturbation and lack of consent. He described a cycle in which his substance use had elevated his sexual drive and contributed to fantasy, pornography use and increased masturbation, which in turn led to increasing desire to use drugs and increasing sexual arousal. He recognised that he had focused on 'doing what [he] wanted when [he] wanted' and had taken 'advantage' of his victims without their consent. He noted that he had limited direction in his life which in the future could increase the likelihood of association with antisocial peers, substance use, and recurrence of deviant fantasies.
The respondent described to Ms Korda strategies for managing each of his risk factors. These included abstinence from substance use, association with pro-social individuals, not placing himself in situations in which an offence could occur, being wary of his thinking patterns, and distracting himself through exercise, watching television and bible study.
The respondent denied any current sexual interest or fantasies involving non-consensual sex or paedophilia. He reported that his current fantasies involve consensual activities with ex-partners and prior acquaintances.
During his first interview with Ms Korda the respondent disclosed experiencing occasional sexual thoughts involving his daughters aged in their early twenties. He estimated that this had occurred on three or four occasions and most recently a week prior to his interview with Ms Korda. He denied ever masturbating to such thoughts. He explained that photographs of his daughters were positioned on the wall above where he had previously had images of adult women dressed in lingerie that were incorporated into his fantasy life and masturbatory practices. He stated that he managed these thoughts by thinking that he does not 'want to go down that path' or hurt or lose the trust of his children and by engaging in activities to distract himself.
During his second interview with Ms Korda the respondent asked to revisit the topic of his daughters. He retracted the admissions that he had made during the first interview and indicated that he had experienced difficulties expressing himself. He stated that the photographs of his daughters reminded him of past girlfriends and the images of women that he used to have. He denied experiencing any sexual thoughts or fantasies involving his daughters from viewing their photographs or from having contact with them.
The respondent reported that he had previously experienced difficulties controlling his masturbation and that he was happy that his 'antilibidinal' medication (that is, his SSRI medication) had decreased this to once or twice a month.
The respondent reported that forming a relationship was not a priority for him at the moment.
The respondent expressed the view that he was a better person when he was not using alcohol or drugs and that due to the length of his abstinence he no longer 'needed' substances. Nonetheless, he stated that he would like to be occasionally permitted to drink one Corona and one 'Jacks and Coke' and had considered resuming alcohol and cannabis use when no longer subject to any legal restrictions.
The respondent reported that he agreed with his schizoaffective disorder diagnosis. However, he viewed this condition to be largely caused by his substance use and abusive childhood experiences.
The respondent identified that signs of a deterioration in his mental health would include paranoid thoughts, low and high moods and racing thoughts. He stated that if he experienced any of these signs he would seek assistance from his psychologist or psychiatrist or would admit himself to Graylands Hospital. He spoke of his interactions with mental health staff in positive terms. He expressed his willingness to engage with the CFMHS if he is released.
According to Ms Korda the respondent appears to have accepted greater responsibility for his sexual offending behaviour. However, with respect to his offences against his stepdaughter he presents with residual cognitive distortions regarding his initial motivation for committing the offences and the behaviour of the victim.
In relation to the issue of relapse prevention, in Ms Korda's view the respondent demonstrated an adequate understanding of his risk factors and presented an array of appropriate strategies to manage his thoughts, fantasies, interpersonal and sexual interactions, and behaviour. However, Ms Korda considers that the respondent's capacity to consider and develop appropriate responses to possible risk‑related scenarios was limited. She notes that this was evidenced by the respondent's struggle to generate alternatives to, and consider the consequences of, particular options. She is therefore of the view that the respondent will benefit from consolidation, reinforcement and review of his self-management plan with emphasis being placed on assisting him to apply his plan to novel risk situations.
In Ms Korda's opinion the respondent's belief that he is unlikely to pose a risk of recidivism possibly compromises his ability to identify and appropriately respond to potential high risk situations as they present. She considers that the respondent's belief in this regard suggests that he may be somewhat over confident in his ability to remain offence free in the absence of substantial time in the community.
According to Ms Korda the respondent presented with reasonable insight into the development of his fantasy life, the role of fantasy and elevated sexual drive in his sexual offending, and basic strategies to manage sexual thoughts and fantasies. She considers that although the respondent has tended to maintain that he now experiences reduced sexual drive with an absence of deviant fantasy and a focus on consensual fantasy, his most recent admissions to her and to Ms Hamlett-Waller suggest at the very least that his fantasy life is more varied, detailed and inclusive of content of a deviant sexual nature than previously evident and that a tendency to sexualise women may endure. She considers that in these circumstances the respondent's willingness to disclose and monitor sexual drive, sexual thinking and sexual behaviour on a consistent basis needs to be questioned. However, she also considers that provided that the respondent does not revert to his prior well established pattern of disclosure and retraction, his recent admissions and willingness to explore his sexual drive and sexual thinking gives an opportunity to obtain a better understanding of his internal fantasy life, to obtain a more accurate depiction of his sexual arousal patterns and sexual drive, and to further develop fantasy management and arousal control techniques as needed.
In Ms Korda's view the respondent recognises the destabilising influence of antisocial peers, the need for him to form connections with prosocial individuals and his limited capacity for emotional recognition and description.
Ms Korda considers that the respondent will require assistance to further develop and apply his emotional regulation and interpersonal skills to adequately function and form relationships in the community, where he will be exposed to greater stressors and risk relevant factors. Ms Korda notes that although the Behaviour Plan is focussed on the respondent's disability support needs rather than his criminogenic factors, it nonetheless has a significant emphasis on his social and interpersonal functioning and may therefore provide a good basis for the development of foundational social and relationship skills. However, Ms Korda further notes that the Behaviour Plan is unlikely to address the complex issues of disclosure, safety planning and risk management that may be associated with the respondent developing and maintaining intimate relationships and friendships.
In Ms Korda's assessment, although the respondent acknowledges the impact of his past substance use on his mental health, sexual functioning and sexual behaviour, and has demonstrated abstinence since his last review, his abstinence appears to be largely driven by external controls rather than intrinsic motivation. She considers that he presented with limited insight into potential triggers for a return to substance use but nonetheless identified somewhat rudimentary relapse prevention strategies largely focussed on practical and behavioural activities. She makes the point that the respondent's ability to maintain abstinence in a less restrictive setting with greater potential for exposure to substances and other stressors is yet to be tested.
Ms Korda notes that the respondent presents with enduring mental health needs which if unmanaged have the potential to destabilise his community reintegration and facilitate a return to problematic behaviours. In her view, although the respondent has demonstrated stability in his recent mental health and psychiatric reviews and in relation to medication compliance, he showed some ambivalence regarding the continuation of both depot and SSRI medication. She considers that the respondent's demonstrated ambivalence has potential implications for his compliance with his treatment regime into the future. She considers that the respondent will require routine psychiatric and mental health contact and reinforcement of the value of medication compliance, particularly if he is released into the community when there will be a potential for his functioning to be destabilised by increased stressors. She notes that in addition to informal supports the Behaviour Plan has a significant emphasis on enhancing the respondent's understanding of his mental health difficulties and encouraging and supporting his compliance with medications.
According to Ms Korda, the respondent has maintained the treatment gains identified at the time of the last review. These gains include a greater acceptance of responsibility for his sexual behaviour, sound insight into his risk factors and self-management strategies, an understanding of consent and greater insight into issues related to his mental health and stability in presentation. Ms Korda notes that in addition to maintaining these gains the respondent has acknowledged the detrimental impact of his past substance use, has maintained abstinence and has identified appropriate basic relapse prevention strategies.
Ms Korda identifies the respondent's outstanding treatment needs to be scenario planning so as to enhance his relapse prevention plans for substance use and offending behaviour, and the further development of emotional regulation and interpersonal skills in settings outside of prison. She identifies additional areas of treatment need to include a greater exploration of his fantasy life and the development of techniques to manage sexual fantasy and arousal. She considers that the respondent's apparently positive relationship with Ms Hamlett-Waller will likely promote greater exploration and intervention in each of these treatment areas provided that he engages in an open and authentic manner.
In Ms Korda's opinion the respondent, if he is released into the community will, given the complexity of his presenting issues and the extent of his identified support needs, require significant structure, assistance and supervision to avoid a return to problematic behaviour. She considers that this structure, assistance and supervision will need to include collaborative, multi-agency partnerships to augment supervision, intervention, and risk management. She considers that to a large extent the required structure, assistance and supervision will be able to be met through the NDIS Plan and engagement with the CFMHS and Uniting WA in conjunction with the external oversight, monitoring and risk management provided by supervision order conditions and the respondent's Risk Management Team.
Ms Korda considers that in the community setting the respondent's criminogenic treatment issues will be able to be addressed through ongoing engagement with the FPIT. She considers that to a more limited extent, the interventions that form part of the Behaviour Plan will also foster the development of relevant knowledge and skills which can aid in addressing the respondent's identified treatment targets, particularly those pertaining to relationships and medication compliance. However, she notes that ongoing liaison and consultation between the FPIT and behaviour support clinicians will be necessary to ensure that the interventions undertaken use complementary approaches, have clear boundaries, do not overlap in content, and do not in their timing and frequency place undue demand on the respondent.
In Ms Korda's view if the respondent's CDO is affirmed it is unlikely that he will make further substantive treatment gains because he will have a limited opportunity to apply acquired skills and knowledge and will have limited exposure to risk relevant situations.

Oral evidence

In her oral evidence Ms Korda maintained the material views and opinions expressed by her in her report. Ms Korda also gave the following supplementary evidence.[76]
Recently the respondent has probably become a little more willing to disclose to Ms Hamlett-Waller issues related to his thinking and his fantasy life. It would be useful for him to continue to build his relationship with Ms Hamlett-Waller. Accordingly, in her opinion if the respondent is released into the community on a supervision order he should ideally continue his psychological counselling with Ms Hamlett-Waller. However, whether the respondent is able to continue his counselling with Ms Hamlett-Waller will depend entirely on whether he is able to attend the Adult Community Corrections (ACC) office at which Ms Hamlett-Waller is based.
If for some reason, for example, problems with transport, the respondent is unable to continue his counselling with Ms Hamlett-Waller he will be able to be seen by an FPIT psychologist at the ACC office that is closest to his proposed residential address. If this occurs it may take him some time to develop the same level of trust and rapport with the new treating psychologist.
She has read the Progress Report that was prepared for the purposes of the last review of the CDO. It is apparent to her from reading the report that the respondent has maintained the gains that he had achieved at the time of the third review, specifically an increased acceptance of responsibility, an understanding of consent issues, sound insight into his risk factors and self-management strategies, improved insight into his mental health issues, continued stability in his mental health and an understanding of the negative impact that substance use has previously had on him.
Although the respondent was able to relay information about his self-management plans for both substance use and sexual offending behaviour, his plans do require further development. Further, the respondent's sexual functioning and sexual fantasies are treatment areas that still need to be addressed. However, these issues can be explored further with the respondent during future intervention, whether with Ms Hamlett-Waller or another psychologist.
She thinks there is still potential for the respondent to make gains through psychological counselling. In particular, counselling should help the respondent to reintegrate into the community and should assist in the management of his risk factors. Psychological counselling will also provide scope for the further development of strategies to manage any inappropriate sexual thinking and fantasies.

Ms Serrano's evidence

Supervision Assessment Report[77]

Ms Serrano's report reveals the following.
Since the last review of the CDO the respondent has been supervised by three senior CCOs. Ms Serrano is the respondent's current senior CCO. She has been the respondent's senior CCO since October 2022.
The respondent's sessions with his CCOs have focussed on various topics including release planning, the progress of the NDIS Plan and its implementation, scenario planning in relation to his risk factors, potential supervision order conditions, his mental health, his progress in prison, contact with his family, his offending behaviour and his overall wellbeing.
Since the last review of the CDO the respondent has engaged with her and his other CCOs in an acceptable and generally positive manner. He remains agreeable to complying with all recommended supervision order conditions including those relating to the treatment of his mental health. However, in Ms Serrano's view the respondent's willingness in this regard at times appears to be primarily linked to his motivation to reside in the community rather than the result of an acceptance by him that he will require ongoing monitoring and treatment to reduce his risk of re-offending.
The respondent does not appear to view contact with his adult daughters, both of whom have young children, as problematic. He has advised on several occasions that he plans to resume contact with his daughters immediately (in the first few days) following his release. The respondent is nonetheless aware that contact with his daughters will be monitored and could potentially be restricted given that both his daughters care for young children.
The respondent has overall been able to demonstrate insight into his risk factors generally.
On 30 May 2023 the respondent advised Ms Serrano that the triggers to his offending were substance abuse and deviant sexual thoughts. He did not identify poor mental health or stress and coping difficulties as potential triggers. However, he acknowledged that he was aware of when he was in a heightened emotional state and would regulate his emotions.
In relation to deviant sexual thoughts, the respondent advised Ms Serrano that he would seek assistance from his FPIT psychologist and mental health team if he was experiencing such thoughts. When prompted he confirmed he would also speak to his CCO, the police and potentially his support workers.
The respondent is aware that he will likely receive treatment from the CFMHS upon his release. He has confirmed he will comply with all treatments.
The respondent has engaged in discussion with Ms Serrano about sexual fantasies and thoughts. He has, in apparent contrast to comments that he has recently made to Ms Hamlett-Waller and Ms Korda, maintained that he does not currently experience deviant sexual thoughts.
The respondent's current release plan is to reside in the accommodation that is available to him through the SIL provider as a result of the core support funding provided under the NDIS Plan. He has expressed an intention to 'potentially' seek employment. He has consistently expressed his willingness to comply with all supervision order conditions and all directions from the COMU and mental health services.
Ms Serrano has completed discussions about the respondent's potential release on a supervision order with five workers engaged by the SIL provider who will be involved in the respondent's care.
If the respondent is released into the community on a supervision order he will be primarily supported by Uniting WA and the support agencies funded under the NDIS Plan.
The respondent has confirmed that he remains willing, whether in custody or in the community, to comply with his mental health treatment including his prescribed medication regime.
Ms Serrano proposes 61 supervision order conditions for my consideration in the event that I find that the respondent remains a high risk serious offender and am considering whether to release him on a supervision order. The 61 conditions are set out in Annexure A to these reasons. In proposing the 61 conditions Ms Serrano has liaised with Dr Wynn Owen who is supportive of the conditions. The conditions proposed by Ms Serrano include the following:
1. A residential condition by which the respondent will be required to live at the SIL provider accommodation that is available to him (proposed residence) and spend every night at that address until a different address is approved in advance by a CCO;
2. Conditions requiring the respondent to be subject to GPS monitoring and hence GPS tracking (which will enable the monitoring of his movements and the identification of patterns in his movements as well as the use of GPS exclusion zones so as to prohibit his attendance at high risk locations);
3. Conditions requiring the respondent to be under the supervision of a CCO, to comply with the lawful orders and directions of a CCO and to report to the CCO;
4. Conditions requiring the respondent to report to the Police Serious Offender Management Squad (SOMS) and enabling the SOMS to monitor the respondent's compliance with conditions and to engage in his risk management;
5. A condition requiring the respondent to permit police officers to search his residence for the purpose of monitoring compliance with his obligations under the supervision order;
6. Conditions requiring the respondent to engage in programmes designed to address his offending behaviour as directed by his CCO, to attend appointments with medical practitioners, psychiatrists, psychologists, counsellors and support persons as directed by his CCO, and to undertake medical treatment as directed by his CCO in consultation with medical practitioners;
7. Conditions prohibiting the respondent from having contact with any victims;
8. Curfew conditions;
9. Conditions requiring the respondent to maintain a daily diary of his movements, activities and associations for presentation to his CCO and the police upon request, and to provide to his CCO for approval an account of his projected daily movements as directed by his CCO;
10. Conditions restricting the respondent's contact with adult females in the absence of prior approval from his CCO;
11. Conditions prohibiting the respondent from consuming illicit drugs and alcohol and from attending licensed premises;
12. Conditions requiring the respondent to subject himself to urinalysis testing for alcohol and illicit drugs;
13. Conditions prohibiting the respondent from having any form of unsupervised and unauthorised contact with a female child under the age of 18;
14. A condition requiring the respondent to report to his CCO the formation of any social association or any type of relationship;
15. A condition prohibiting the respondent from forming any domestic relationship with a person who has a child under the age of 18 in their care without the prior approval of his CCO;
16. Conditions permitting the COMU and the SOMS to review the respondent's computer, telephone and other electronic devices (which will allow for the monitoring of the respondent's associations, allow for the verification of the respondent's self-reporting in relation to associations, friendships and relationships, and assist in determining if the respondent is associating with negative peers and/or is placing himself in potentially high risk situations);
17. A condition prohibiting the deletion or disguising of electronic data (so as to ensure data integrity); and
18. A condition prohibiting the respondent from conducting computer searches for, or accessing, or possessing images of children (with the exception of non-indecent images of immediate family members if approved in advance by his CCO).
The respondent's past offending has not been limited to a particular time of day. Nonetheless, Ms Serrano has included for the court's consideration curfew conditions (proposed conditions 29 - 31) on the basis that such conditions are an additional risk management tool and may assist in providing stability and structure as the respondent reintegrates into the community. The proposed condition is framed in a way that will enable the respondent's CCO, as circumstances require, to refrain from imposing a curfew, to remove or reduce any curfew that is imposed, and to reinstate a curfew that has been removed.
Ms Serrano proposes the condition requiring the respondent to provide an account of his projected movements and to obtain from his CCO prior approval of those movements (proposed condition 37) because this will allow for pre-planning of his movements and exploration of his decision making processes in advance. Discussions around the respondent's future movements will also assist him to take responsibility for behaviours that could be mirroring his previous offending profile and allow for a dialogue around this issue in advance. The condition has been drafted in a way that allows for amendments to the types of movements that the respondent needs to seek approval for so as to give him the opportunity for self-management once he is settled in the community.
Ms Serrano proposes the condition requiring the respondent to maintain a daily diary (proposed condition 38) so as to assist in the monitoring of his interactions and associations in the community. The contents of the diary will be regularly reviewed by the respondent's CCO and police officers from the SOMS and will be able to be verified by reference to GPS data. The regular review of the diary will facilitate the identification of any areas that the respondent is attending frequently and in which he could be forming relationships and gaining access to children.
Ms Serrano proposes the conditions relating to the review of the respondent's electronic devices (proposed conditions 57 - 61) so as to enable the COMU and the SOMS to monitor the respondent's associations, verify his self-reporting and detect if he is placing himself in potentially high risk situations.
If the respondent is found to be a high risk serious offender and is released on a supervision order he will be closely monitored and supervised by members of the Risk Management Team, including police officers from the SOMS, CCOs, management staff from the Department and FPIT psychologists. The risk management of the respondent will include regular and unscheduled home visits, liaison with community agencies and other stake holders in the community, and the regular review of the respondent's risk factors at risk management meetings.

Oral evidence

In her supplementary oral evidence Ms Serrano testified as follows.[78]
The explanation for the fact that unlike the position that existed at the time of the third review of the CDO there is an NDIS plan in place for the respondent even though he does not currently have an actual release date, is that the National Disability Insurance Agency has now made an exception for high risk serious offenders under the Act to its general policy of not engaging in predictive planning.
She is aware that in the Desktop Spatial Analysis the police have identified a number of places, areas, persons and activities of concern that are within a 2 km radius of the proposed residence. In her opinion there is nothing unusual about the places, areas, persons or activities identified by the police as compared with other Desktop Spatial Analyses undertaken by the police.
It is not possible to predict whether the level of funding under the NDIS Plan will remain the same after the review at the end of the year. If the funding does drop this will not of itself inevitably result in the respondent's Risk Management Team taking any action, although it might result in changes being made to the respondent's case management. For example, the respondent might be subjected to more supervision sessions and an increased level of monitoring.
If there is a reduction in the NDIS funding and the reduction is coupled with the respondent beginning to engage in concerning behaviours or contravening the conditions of the supervision order the Risk Management Team will consider the need for the COMU to commence contravention proceedings under the Act. If the Risk Management Team at any point forms a view that there is an elevation in the respondent's risk of reoffending the COMU will take some action.

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

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, or upon a particular type of victim.[79]
The respondent has committed four serious sexual offences over a 21 year period between 1990 and 2011. He has also committed other offences, specifically making a threat to kill, aggravated burglary and arson, that indicate that he has a tendency to behave violently and difficulty managing his emotions and mental illness.
It is the case that there have been lengthy periods of time between some of the respondent's sexual offences. However, his most recent sexual offence was, in my view, the most serious of his sexual offences.
Ultimately, when I take account of the number and nature of the respondent's sexual offences I am, even allowing for the gaps in the offending, satisfied that the respondent does have a tendency to commit serious sexual offences against juvenile and adult females involving, where necessary to overcome a victim's resistance, the use of violence. 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)

A 'pattern', as it pertains to behaviour, is a recurrent way of acting by an individual towards a given object or in a given situation.
The position in relation to this issue was, with one minor qualification, succinctly summarised by Hall J in The State of Western Australia v Carter[80] in the following terms:

There are a number of similarities between the first and last offences. They both involved a young adult female with whom the respondent was already acquainted. Both offences involved a degree of deceit and force....

The second and third offences of indecent dealing do not follow the same pattern, insofar as they involved a child and there was no suggestion of physical force. These differences must be a matter of some concern because they show that the respondent's offending has some diversity and will not, therefore, necessarily be predictable in the future.

The minor qualification is that the victim of the respondent's first offence was 17 years old and therefore, strictly speaking, not a young adult.

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

Dr Wynn Owen is of the opinion that the respondent is at high risk of committing sexual offences against females that are serious offences within the meaning of the Act if he is not subject to a restriction order.
In his evidence Dr Wynn Owen clearly explained his reasons for arriving at his conclusion in relation to the respondent's risk of reoffending. There were no flaws in his reasoning process. Further, his evidence in this regard was not challenged.
I accept Dr Wynn Owen's evidence as to the respondent's risk of committing further sexual offences against females if he is not subject to a restriction order; that is, to a continuing detention order or a supervision order. I am therefore satisfied that the respondent is at high risk of committing sexual offences against females that are serious offences within the meaning of the Act if he is not subject to a continuing detention order or a supervision order. Further, having regard to the nature of the sexual offences committed by the respondent in the past, I am satisfied that the serious 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 the following:
1. Sexual penetration without consent of older teenage females and adult females involving the use of violence to overcome any physical resistance offered by the female; and
2. Indecently dealing with young female children.

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

There is an obvious need to protect the community from the risk that the respondent presents. The type of offences that the respondent is at risk of committing are obviously of such a nature as to cause significant psychological, and perhaps also physical, harm to the victims.

Analysis and decision The relevant questions

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 CDO be affirmed or should the CDO be rescinded and a supervision order made?

The parties' submissions - summary

The State submits that I should find that the respondent remains a high risk serious offender.[81]
The State does not submit that if I find that the respondent remains a high risk serious offender I should affirm the CDO. Rather, the State submits that if I find that the respondent remains a high risk serious offender I should rescind the CDO and order that the respondent be released on a supervision order containing the conditions proposed by Ms Serrano. The State submits that releasing the respondent on a supervision order containing the conditions proposed by Ms Serrano will ensure adequate protection of the community bearing in mind that the respondent will, as provided for by the funding under the NDIS Plan, live at the proposed residence with one-to-one 24 hour seven days a week support, at least for the first six months or so after he is released. The State submits that the supervision order conditions proposed by Ms Serrano in conjunction with the level of support that will be provided to the respondent under the NDIS Plan, which represents a significant change in the respondent's circumstances since the third review of the CDO, will sufficiently reduce the high risk of the respondent committing further serious offences with the result that the adequate protection of the community will be ensured if the respondent is released on a supervision order containing the proposed conditions. In adopting this position the State places reliance on Dr Wynn Owen's evidence and Ms Korda's evidence.[82]
The respondent does not attempt to argue that I should find that he is no longer a high risk serious offender. The respondent concedes that the available evidence is sufficient to establish that he remains a high risk serious offender.[83] 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.
The respondent 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 community will be adequately protected from the risk that he poses by releasing him on a supervision order containing the conditions proposed by Ms Serrano.[84]

Does the respondent remain a high risk serious offender?

I have already stated my finding that the respondent is 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. On the basis of this finding and having regard to all other matters specified in s 7(3) of the Act to which I have referred, and notwithstanding that the respondent has already been punished for the offences he has committed, I am satisfied to a high degree of probability that the risk that the respondent will commit a serious offence of the type that I have identified is unacceptable and 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 the risk. It follows that I find that the respondent remains a high risk serious offender.

Continuing detention order or supervision order?

The question that remains for my determination is whether the respondent should be detained pursuant to a continuing detention order, or whether he should be released into the community on a supervision order. In determining this question it is, I think, important to bear in mind the following observations of the plurality in Garlett v The State of Western Australia as to the purpose of the Act (citations omitted):[85]

The purpose of a legislative regime, such as the DPSO Act or the HRSO Act, is discernibly distinct from the imposition of retribution or deterrence pursued by the criminal law. To the extent that detention or supervised release is part of the legislative regime, the character of the curtailment of the liberty of the individual offender under the regime can be seen to be protective rather than punitive because any curtailment of liberty must be supported by the risk evaluation contemplated by s 7 of the HRSO Act. In that evaluation, considerations of retribution and deterrence, central to sentencing by way of punishment under the common law, have no part to play. In addition, any curtailment of liberty must be no greater than is necessary adequately to protect the community from the demonstrated unacceptable risk of harm to the community...

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.
The respondent is now 53 years old. He has been in prison for the past 11 and a half years.
As was the position at the time of the last review of the CDO, there are factors that arguably weigh against the conclusion that the respondent will substantially comply with the standard conditions of a supervision order. These factors include the following:
1. It is likely that the respondent is not disclosing the full extent of his deviant sexual thoughts and fantasies;
2. The respondent is still engaging in cognitive distortions in relation to circumstances that led to him offending against his stepdaughter;
3. The respondent has on overly favourable view of the risk that he poses to the community;
4. The respondent's insight into his mental illness, which is linked to his past offending, is limited in the sense that he views the illness as having been largely caused by his substance use and abusive childhood experiences;
5. The respondent appears to lack intrinsic motivation to continue taking his medication for his mental illness and to remain alcohol and illicit substance free, his willingness to continue to take his medication and to remain substance free being largely driven by external controls; and
6. The respondent has demonstrated a limited capacity to develop appropriate responses to risk related scenarios.
There are, however, significant countervailing considerations.
Since the last review of the CDO the respondent has maintained his treatment gains from psychological counselling. He has a sound understanding of his risk factors and has developed strategies, albeit relatively basic in nature, for managing his risk factors.
According to Ms Korda the respondent has, since the last review, accepted greater responsibility for his offending behaviour even though he is still engaging in some cognitive distortions in relation to his offences against his stepdaughter.
The respondent has started to develop a relationship with one of his daughters which in Dr Wynn Owen's opinion is a positive factor.
If the respondent is released on a supervision order he will continue to engage in counselling with Ms Hamlett-Waller, with whom he has developed a positive therapeutic relationship, or some other psychologist from the FPIT if for some reason he is unable to continue his counselling with Ms Hamlett-Waller. The respondent is motivated to continue to do so.
The respondent's ongoing engagement with a psychologist will be important from a risk management perspective. The engagement will assist the respondent to adjust to life in the community under the conditions of a supervision order after having spent such a long time in prison. The engagement will facilitate the early identification, monitoring and addressing of any problems being experienced by the respondent (including increased stress levels and a deterioration in mental health) that could lead to him resorting to maladaptive coping behaviours and consequentially being at an increased risk of reoffending. The engagement will enable ongoing intervention in the respondent's areas of treatment need. The engagement will also facilitate the repeated rehearsing with the respondent of strategies to deal with risk situations that he may be confronted with while he is in the community.
Although the respondent appears not to be currently disclosing the full extent of his deviant sexual thoughts and fantasies he has in recent times shown a willingness to disclose at least some of his thoughts and fantasies. This is a positive development. Increased disclosure by the respondent of his thoughts and fantasies will, as Ms Korda has pointed out, enable his treating psychologist to obtain a better understanding of his internal fantasy life, to obtain a more accurate depiction of his sexual arousal patterns and sexual drive, and to further develop fantasy management and arousal control techniques.
Since the last review of the CDO the respondent has maintained abstinence from alcohol and illicit substances. He appears motivated to continue to maintain his abstinence if, for no other reason, to ensure that he does not contravene the conditions of any supervision order.
The respondent's mental health is stable. He has since the last review continued to be compliant with his medication. He appears motivated to continue to comply with his medication regime and to engage with the CFMHS even if only to ensure that he does not contravene the conditions of any supervision order.
Since the last review of the CDO the respondent has commenced to take SSRI medication which acts as an antilibidinal.
Since the last review of the CDO the NDIS Plan has been implemented. Without doubt, the implementation of the NDIS Plan is the most significant change in the respondent's circumstances since the last review. The funding that is provided under the NDIS Plan has enabled the proposed residence to be secured for the respondent in the community through the SIL provider and for the Behaviour Plan to be developed for him. The funding that is provided under the NDIS Plan also means that the respondent will, at least until the end of this year, have with him a male support worker for 24 hours a day seven days a week. The respondent will therefore be continuously monitored. The support workers, who will be engaged through the SIL provider, will be trained so that they can endeavour to implement the Behaviour Plan as part of the respondent's daily activities.
The provision to the respondent of one-to-one 24 hours a day seven days a week support is obviously significantly in excess of the four to five hours a day of one-to-one support that at the time of the last review of the CDO Hall J envisaged as being the minimum required to ensure adequate protection of the community against the risk presented by the respondent.
The provision to the respondent of the one-to-one 24 hours a day seven days a week support, together with all the other supports that are funded under the NDIS plan, will significantly assist the respondent to cope with the pressures of living in the community, which will be at their greatest during the early stages of his release, to reintegrate into the community, to remain occupied, to engage in prosocial activities and to remain compliant with his medication regime. This will in turn significantly reduce the risk of the respondent decompensating, becoming ill, resorting to alcohol and illicit drugs and deviant sexual fantasies as maladaptive coping mechanisms, and consequently reoffending.
It is not possible to say with certainty that the one-to-one 24 hours a day seven days a week support will continue to be provided to the respondent beyond the end of the year after the NDIS Plan is reviewed. However, given the complex nature of the respondent's needs I am, taking account of the evidence of Dr Wynn Owen on this point, satisfied that even if the review of the NDIS Plan results in a reduced level of support for the respondent, the reduced level of support will still be significant and will very likely include more than the four to five hours a day of one-to-one support identified by Hall J as being the minimum amount of support required to ensure adequate protection of the community. I am satisfied that even a slightly reduced level of support will, once the respondent has navigated the stresses associated with his initial release and in combination with all other support and supervision that the respondent will be provided with and subjected to, be sufficient to significantly reduce his risk of reoffending.
Of course, if following the review of the NDIS Plan the reduction in the funded support for the respondent turns out to be more significant than I envisage with the result that his risk of reoffending is assessed by the Risk Management Team to have materially increased, the COMU will be able take appropriate action under the Act. Similarly, even if a minor reduction in the funded support has the effect, in the Risk Management Team's assessment, of destabilising the respondent and materially increasing his risk of reoffending, the COMU will be able to take appropriate action.
With respect to the proposed residence I recognise, in light of the results of the Desktop Spatial Analysis, that it might be said to be less than ideal accommodation for the respondent. However, accommodation for high risk serious offenders is almost never ideal. Further, none of Dr Wynn Owen, Ms Korda or Ms Serrano are of the view that the proposed residence is not suitable accommodation for the respondent.
I am satisfied that the proposed residence is a suitable place for the respondent to live at least for the short term and until he, with the assistance of the COMU and others responsible for his supervision, monitoring and management in the community, is able to find other stable and perhaps more suitable long term accommodation. I am satisfied that permitting the respondent to live at the proposed residence will not prevent his risk from being properly managed.
The respondent, if he is released on a supervision order, will be subject to a high level of control and supervision. The conditions proposed for my consideration by Ms Serrano are stringent and extensive. They do directly address the respondent's risk factors as disclosed by the evidence to which I have referred. The conditions are such that they will, in my opinion, enable those responsible for supervising, monitoring and managing the respondent, working in conjunction with those individuals and organisations providing support to the respondent under the NDIS Plan, to detect at an early stage if there are any signs of his mental state deteriorating, or of him becoming overly stressed or of him engaging in maladaptive coping behaviours that may signal an increase in the risk of him reoffending. More specifically, I am satisfied that there are adequate safeguards contained in the proposed conditions to ensure that if the respondent begins to exhibit signs that his level of risk is increasing or begins to engage in risk associated behaviours this will be quickly detected and dealt with by those responsible for his supervision, monitoring and management in the community with the result that he will not be able to proceed to further offending. The conditions will also, in my opinion, enable those responsible for supervising, monitoring and managing the respondent, working together with the organisations and individuals providing support to the respondent under the NDIS plan, to facilitate his reintegration into the community.
The respondent has indicated a willingness to comply with the proposed conditions of a supervision order. There is nothing to suggest from his behaviour while in prison that he is unlikely to do so.
Dr Wynn Owen is of the opinion that the respondent's risk of committing a sexual offence that is a serious offence can be managed in the community provided he is subject to a supervision order containing the 61 proposed conditions, he continues to engage in psychological counselling with a departmental psychologist, he receives the funding under the NDIS Plan which allows for SIL and one-to-one 24 hour seven days a week support from support workers, and he engages with the CFMHS for management of his mental health and ongoing risk assessment. This expression of expert opinion is obviously not determinative of the question whether the respondent should be released into the community on a supervision order, this being a question that it is ultimately my responsibility alone to determine. Nonetheless, Dr Wynn Owen's expert opinion evidence on this point is obviously deserving of some weight.[86]
Finally, it is clear that the respondent is unlikely to make any further treatment gains if he remains in custody.
Ultimately, taking into account the matters to which I have referred in pars 234 - 253 above, I am, consistently with the submissions made by both the State and the respondent, satisfied on the balance of probabilities that if the respondent is released on a supervision order containing the 61 conditions proposed for the court's consideration by Ms Serrano he will substantially comply with the standard conditions of the supervision order specified in s 30(2) of the Act. That is, I am satisfied that the respondent 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 him committing a serious offence.
I am also, in light of the matters to which I have referred, satisfied that the need to ensure adequate protection of the community can be met by releasing the respondent on a supervision order containing the 61 conditions proposed by Ms Serrano. I am satisfied that the proposed conditions are sufficiently extensive and stringent to enable the adequate management of the risk that the respondent currently presents to the community.
In relation to the period of the supervision order Dr Wynn Owen's evidence is, as I have already indicated, that somewhere between 5 ‑ 10 years is the ideal period. Dr Wynn Owen explained his reasons for holding this view. I accept the evidence of Dr Wynn Owen on this issue. I am therefore satisfied that the supervision order should be for a period of eight years.

Suppression order

During the hearing of the application the State applied for an order suppressing the publication of the name and address of the proposed residence. The application for the suppression order was made, in essence, on the ground that if I found that the respondent remained a high risk serious offender but could be released on a supervision order containing a condition requiring him to live at the proposed residence, disclosure of the name and address of the proposed residence might expose the respondent, staff from the Department required to attend the proposed residence and others living at the proposed residence to vigilante action.
A suppression order should only be made if the making of the order is really necessary to secure the proper administration of justice in proceedings before the court. There must be some material before the court upon which the court can reasonably reach the conclusion that it is necessary to make the order prohibiting publication.[87]
As a general proposition it can be accepted that members of the community have a legitimate interest in being aware of the identity and presence of offenders in their community. However, this interest must be balanced against the potential subversion of the viability of a supervision order.[88]
It is, in my view, given the respondent's offending history, not difficult to see how the publication of his residential address could lead to the outcomes identified by the State. Further, if this does occur it will be likely that the proposed residence will not be able to continue to be used to house the respondent with the result, given the current absence of other viable accommodation options for him, that the supervision order will become unviable. I am therefore satisfied that it is necessary to make an order suppressing the publication of the name and address of the proposed residence. I consider that the making of such an order is necessary to ensure the viability of the supervision order that I am intending to make.

Orders under the Act

For the reasons I have stated I rescind the CDO and make a supervision order in respect of the respondent pursuant to s 68(1)(b)(ii) of the Act containing the 61 proposed conditions set out in Annexure A. The period of the supervision order will be eight years.
In her evidence Ms Serrano also requested that any supervision order include prior to the signature block of the order the following clause as an accompaniment to the conditions regarding electronic device monitoring:

Further, authorise police officers from the Western Australian Police Force (WA Police Force) to access any cloud-based platforms or services associated with the devices you use, and examine the internet accounts at any time for the purposes of monitoring your online behaviour (absent any investigation for any offence). I understand and acknowledge WA Police Force will use passwords or tokens located within my devices to access any cloud-based platforms and services and that a password may not be required. By authorising this I understand and acknowledge a police officer from the WA Police Force may change the password(s) to these accounts so I will no longer have access.

The State supported the inclusion of the above authorisation and acknowledgment in any supervision order that I may make. However, the State submitted that if the authorisation and acknowledgment is to be included in the supervision order it should be included as a condition of the order rather than as a clause above the signature block. Counsel for the State informed me that the State was adopting this position in light of the approach that had been taken by another member of this court in making a supervision order in respect of a high risk serious offender.[89]
The respondent did not oppose the inclusion of the authorisation and acknowledgment in any supervision order. Nor did he oppose its inclusion as a condition of the order.
I am aware that in a number of relatively recent cases in which supervision orders have been made under the Act, the above authorisation and acknowledgement has been included in the orders as a clause appearing above the signature block rather than as a condition of the orders. However, in my view if it is appropriate to include the authorisation and acknowledgment in a supervision order there is no obvious reasons why it should not be included as a condition of the order pursuant to s 30(5) of the Act.
In my view and in the absence of any objection from the respondent, the acknowledgment and authorisation should be included in the supervision order that I am going to make. Accordingly, it will be included as condition 62 of the order (with appropriate grammatical and other minor amendments to the precise wording).
In her evidence Ms Serrano requested that if I ultimately made a supervision order in respect of the respondent that I also order that the supervision order not come into effect for a period longer than the minimum 21 day period provided for in s 27(3) of the Act.[90] Ms Serrano requested that any supervision order not come into effect for a period of 28 days. Ms Serrano made this request because she considers that this is the period of time that will be required for the respondent's disability support pension to be organised, and for the SIL provider's support workers to be introduced to the respondent, to build rapport with him, and to receive necessary training from the Behaviour Support Practitioner prior to his release.
Ms Serrano also expressed a preference for any supervision order not to come into effect on a Thursday or Friday due to the administrative difficulties that can be associated with ensuring immediate compliance with the conditions of a supervision order if an offender is released close to a weekend.
In my opinion it is clearly necessary for the support workers to build some rapport with the respondent prior to his release. In my opinion it is also clearly necessary for the support workers to receive appropriate training from the Behaviour Support Practitioner in relation to dealing with the respondent and implementing the Behaviour Plan as part of the respondent's daily activities prior to the respondent's release. I accept that this is likely to take some time, likely longer than 21 days. Accordingly, in accordance with Ms Serrano's evidence I will order that the supervision order is to come into effect on Monday 24 July 2023, being 30 days from today's date.

ANNEXURE A

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth Western Australia (WA) within 48 hours of this Order being issued and advise the officer of your current name and address;

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

Notify a CCO of every change of your name, place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a CCO, which includes, comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);
Not leave, or stay out of the State of WA without the permission of a CCO;

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

7. Be subject to electronic monitoring under section 31.

ADDITIONAL CONDITIONS
Residence

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

Reporting to a CCO and supervision by a CCO

Report to, a CCO at your approved release address within normal business hours on the day of release from custody under this order;
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO, report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments that you have;
Not commence or change voluntary or paid employment or education or training without the prior approval of the CCO;

Attendance at programs

Consult, engage and attend all appointments as a CCO or the clinician directs, such clinicians being any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO;

Reporting to WA Police

Report to the Officer-in-Charge of the Serious Offender Management Squad at the Hatch Building, 144 Stirling Street, Perth WA 6000, within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Serious Offender Management Squad or his/her delegate;
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
If requested, permit Police Officers to enter and search your residence and/or vehicle and search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order;
Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020;
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you;

Disclosure/Exchange of Information

Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and partners or potential partners and, where appropriate, to disclose to them confidential information including your offence history;

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice;
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;
Report to a CCO and WA Police any direct or indirect contact with the victims of your sexual offending on the next occasion you report to that person or agency;
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;

Criminal conduct

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;
Not commit an offence under s 202, s 203, s 204, s 557K Criminal Code 1913 (WA) and s 17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021;
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
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 to 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;

Curfew

Be subject to a curfew pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;

Medications/Mental Health

Undertake medical treatment as directed by the CCO in consultation with a medical practitioner or medical practitioners;
Comply fully with any treatment prescribed pursuant to condition 32 and all testing to monitor your compliance with medical treatment as directed by a CCO;
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;
Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease pharmaceutical medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment;

Prevention of high-risk situations

Have no contact, directly or indirectly, with any past complainant/s against you, unless such contact is approved by the CCO;
Provide a verbal or written account of your projected daily ·movements to your CCO and obtain prior approval of your projected movements, as and when directed by your CCO, with the exception of the following circumstances:

a) To obtain urgent medical or dental treatment for yourself;

b) For the purpose of averting or minimising a serious risk of death or injury to the respondent or another person;
c) To obey an order issued under a written law (such as a summons) requiring your presence elsewhere;

d) At the direction of a CCO or Police Officer.

Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and to present this diary to the CCO and Police Officers upon request;
Not enter any residential address in which a female is present, resides, or is known to reside, unless authorised in advance by a CCO;
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;
Report any unsolicited interaction with any females at your residential address to a CCO and the Serious Offender Management Squad at your next scheduled appointment;
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;
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
Not enter the premises of, or access the services of, escort agencies or sex workers without the prior notification and approval of a CCO;

45. Not possess, or purchase, or consume or use alcohol;

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;

47. To provide a valid sample for testing pursuant to condition 46;

Not go to, enter any part of your body in or remain at any licensed premises unless permitted or required to do so for the following reasons:
a) For the purpose of averting or minimising 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.

Not remain in the presence of any persons who are affected by alcohol or illicit substances, or you reasonably ought to know to be affected by alcohol or illicit substances, unless the identity of such person is approved in advance by the CCO;
Have no contact with any female child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
a) The contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO;
b) The contact is necessary to complete a commercial transition 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 arid civilly terminate any inadvertent or uninvited interaction or communication);

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 the name, address, location and all details known by you of any contact you have with a child under the age of 18 years to both your CCO and to the Police immediately after the contact;
Report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person;
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, unless that person is approved in advance by a CCO;
When and as directed by a CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a social association, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
Have no contact with, membership of or affiliation with clubs, associations or groups, where membership includes children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
Not allow any person other than a CCO or WA Police Officer access to any computer, telecommunication and/or electronic device referred to in Condition 57, without prior approval of the CCO. Enable device locking or password access of your computer, telecommunication and/or electronic devices. Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in Condition 57, or any online accounts, to any person other than a CCO or Police Officer;
Upon request, permit a CCO or Police Officer at any location nominated by them, to access any computer, telecommunication and/or electronic device capable of storing digital data or information, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO;
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data or information including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance of the CCO or WA Police; and
Not conduct computer searches for, nor collect or access, or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not; with the exception of images of your immediate family that are not indecent images, if approved in advance by a CCO. Possession of such images depicting a child or children on items such as on household items, may be authorised by a CCO.

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

JP
Research Associate to the Honourable Justice Derrick

23 JUNE 2023

[1] Director of Public Prosecutions (WA) v Carter [2015] WASC 413.
[2] The State of Western Australia v Carter [No 2] [2016] WASC 374.
[3] The State of Western Australia v Carter [No 3] [2018] WASC 420.
[4] Act, s 2(1)(a).
[5] The term 'commencement day' is defined for the purposes of the provisions contained in pt 10 of the Act (s 122 - 125) to mean 'the day on which the section comes into operation'. The 'day on which this section comes into operation' is, by virtue of proclamation, 26 August 2020: Act s 2(1)(c).
[6] Act, s 123.
[7] I will say more about the relevant provisions of the Act in due course. At this point it suffices to say that the provisions of the Act relating to reviews do not operate significantly differently to the way in which the corresponding provisions of the DSO Act operated.
[8] The State of Western Australia v Carter [No 4] [2021] WASC 186.
[9] The State of Western Australia v Carter [No 4] [50] - [56].
[10] Exhibit 1.
[11] Exhibit 1, vol 1, 189.
[12] Exhibit 1, vol 1, 171.
[13] Exhibit 1, vol 1, 186.
[14] Exhibit 1, vol 2, 323. Dr Wynn Owen is a 'qualified expert' as defined in s 3 of the Act. His report was prepared and obtained pursuant to s 67(1) of the Act in accordance with s 74 of the Act.
[15] Exhibit 1, vol 2, 336.
[16] Exhibit 1, vol 2, 351.
[17] Exhibit 1, vol 2, 298.
[18] Exhibit 2.

[19] The State of Western Australia v ZSJ [2020] WASC 330 [30] - [31].
[20] Garlett v The State of Western Australia [2022] HCA 30 [55], [103], [104], [106].
[21] 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.
[22] Act, s 3 and s 26(1).
[23] Act, s 3 and s 27(1).
[24] Any further references to a 'serious offence' or to 'serious offences' should be read as references to a serious offence or serious offences as defined in the Act.
[25] The State of Western Australia v Rao [2019] WASC 93 [28] - [29]; The State of Western Australia v ZSJ [44].
[26] Garlett v The State of Western Australia [72].
[27] Act, s 68(1)(b).
[28] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28]; The State of Western Australia v West [No 6] [2019] WASC 427 [24]; The State of Western Australia v ZSJ [47].
[29] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
[30] 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]; Garlett v The State of Western Australia [73], [226].
[31] Garlett v The State of Western Australia [73], [227]. As Quinlan CJ recognised in The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [21] there may be rare situations in which a court will find that it is not necessary to make a restriction order notwithstanding a finding that the offender poses an 'unacceptable risk', for example, where other external restraints (such as a post-sentence supervision order under the Sentence Administration Act 2003 (WA)) are sufficient to ensure adequate protection of the community from the risk.
[32] 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]; Garlett v The State of Western Australia [73], [226] - [228], [279]
[33] Garlett v The State of Western Australia [84].
[34] 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]; Garlett v The State of Western Australia [106].

[35] 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].

[36] The State of Western Australia v Latimer [2006] WASC 235 [24]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [85], [229] - [230].
[37] Garlett v The State of Western Australia [102], [231].
[38] 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]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109]-[111].
[39] The State of Western Australia v ACJ [2021] WASC 219 [416]; Garlett v The State of Western Australia [103] - [104], [233].
[40] The State of Western Australia v Paul Douglas Allen also known as Paul Alan Francis Deverell [No 5] [2019] WASC 359 [7] - [11].

[41] The State of Western Australia v Carter [29] - [34].
[42] The State of Western Australia v Carter [25] - [28].
[43] Community Supervision Assessment Report prepared by Ms Serrano (exhibit 1, vol 2, 357).
[44] Community Supervision Assessment Report prepared by Ms Serrano (exhibit 1, vol 2, 357).
[45] Community Supervision Assessment Report prepared by Ms Serrano (exhibit 1, vol 2, 357).
[46] The State of Western Australia v Carter [8].
[47] Psychiatric Report prepared by Dr Wynn Owen (exhibit 1, vol 2, 325); Treatment Progress Report prepared by Ms Korda (exhibit 1, vol 2, 340).
[48] Treatment Progress Report prepared by Ms Korda (exhibit 1, vol 2, 340).
[49] Psychiatric Report prepared by Dr Wynn Owen (exhibit 1, vol 2, 325).
[50] Psychiatric Report prepared by Dr Wynn Owen (exhibit 1, vol 2, 325); Treatment Progress Report prepared by Ms Korda (exhibit 1, vol 2, 340).
[51] Psychiatric Report prepared by Dr Wynn Owen (exhibit 1, vol 2, 325).
[52] Psychiatric Report prepared by Dr Wynn Owen (exhibit 1, vol 2, 326).
[53] Community Supervision Assessment Report prepared by Ms Serrano (exhibit 1, vol 2, 361).
[54] Community Supervision Assessment Report prepared by Ms Serrano (exhibit 1, vol 2, 355).
[55] Exhibit 1, vol 1, 171 - 185; Exhibit 1, vol 1, 186 - 188; Exhibit 1, vol 2, 298; Treatment Progress Report prepared by Ms Korda (exhibit 1, vol 2, 340 - 341).
[56] Exhibit 1, vol 1, 171 - 185.
[57] Treatment Progress Report prepared by Ms Korda (exhibit 1, vol 2, 341); Supervision Assessment Report prepared by Ms Serrano (exhibit 1, vol 2, 355).
[58] Exhibit 2.
[59] The State of Western Australia v Carter [36] - [41]; The State of Western Australia v Carter [No 2] [12] - [15]; Treatment Progress Report prepared by Ms Korda (exhibit 1, vol 2, 338).
[60] The State of Western Australia v Carter [No 2] [18] - [23].
[61] The State of Western Australia v Carter [No 2] [36].
[62] The State of Western Australia v Carter [No 3] [26] - [27].
[63] The State of Western Australia v Carter [No 3] [27].
[64] The State of Western Australia v Carter [No 4] [51].
[65] The State of Western Australia v Carter [No 4] [28].
[66] The State of Western Australia v Carter [No 4] [30].
[67] The State of Western Australia v Carter [No 4] [30].
[68] The State of Western Australia v Carter [No 4] [31].
[69] The State of Western Australia v Carter [No 4] [32].
[70] The State of Western Australia v Carter [No 4] [33].
[71] Treatment Progress Report prepared by Ms Hamlett-Waller (exhibit 1, vol 1, 189); Treatment Progress Report prepared by Ms Korda (exhibit 1, vol 2, 338 - 340).
[72] ts 340, 12 June 2023.
[73] Exhibit 1, vol 2, 323.
[74] ts 322 - 339, 12 June 2023.
[75] Exhibit 1, vol 2, 336.
[76] ts 339 - 347, 12 June 2023.
[77] Exhibit 1, vol 2, 351.
[78] ts 347 - 356, 12 June 2023.
[79] Director of Public Prosecutions (WA) v GTR [178].

[80] The State of Western Australia v Carter [76] - [77].

[81] ts 316 - 317 and 357, 12 June 2023.
[82] ts 316 - 320 and 357 - 360, 12 June 2023.
[83] ts 320 and 363, 12 June 2023.
[84] ts 320 and 363 - 364, 12 June 2023.

[85] Garlett v The State of Western Australia [55].

[86] Director of Public Prosecutions (WA) v GTR [62].
[87] The State of Western Australia v Jonsson [No 3] [2019] WASC 463 [147].
[88] The State of Western Australia v Jonsson [No 3] [148] - [149]; The State of Western Australia v JXK [No 3] [2023] WASC 23 [184].
[89] Although counsel did not identify the relevant decision I assume the decision is that of Fiannaca J in The State of Western Australia v CA [No 3] [2023] WASC 144 [199], [212], [234].
[90] Community Supervision Assessment Report, (exhibit 1, vol 2, 362; ts 353, 12 June 2023.

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