Supreme Court of Western Australia

153. Having found that the Respondent remains a serious danger to the community, I must either affirm the CDO or make a Supervision Order. In making this decision, the paramount consideration is the need to ensure the adequate protection of the community. The need to ensure the adequate protection of the community does not exclude other considerations.[115]
154. As already noted, a court cannot make 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 such an order.[116] The standard conditions are those contained in s 30(2) of the HRSO Act and include reporting, supervision and electronic monitoring.
155. The onus is on the offender to satisfy the court that he will substantially comply with the standard conditions.[117] The standard conditions are set out in s 30(2)(a) to (f) HRSO Act. In the present context, one of the most important of these standard conditions is s 30(2)(f), which is a requirement that the Respondent 'not commit a serious offence during the period of the order'.
156. For the court to be satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the supervision order, it must be satisfied that the offender will comply with the standard conditions in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the respondent committing a serious offence.[118]
157. Having considered the above matters, I am unable to conclude that the Respondent has discharged the burden on him to satisfy me that he will substantially comply with the standard conditions of a Supervision Order, in the manner described above. There are five main features of the present case which together, in combination, provide a foundation for my conclusion that the burden has not been discharged in this case.
158. First, the Respondent committed the serious assault offence in 2016 whilst he was being closely supervised, whilst he was subject to electronic monitoring, and whilst he was involved in ongoing therapeutic counselling. As the Applicant submits, and I accept, neither counselling nor the requirements of the Supervision Order which was then in place operated as sufficient protective mechanisms to prevent the Respondent from committing a serious offence nor in engaging in risky behaviour immediately prior to the offence.
159. Second, and allied to the first, the Respondent has been the subject of previous Supervision Orders, of 5 years' duration and then 7 years' duration, and during the course of both he committed breaches of the orders in various ways other than through the commission of serious offences or assaults. The Respondent has 13 convictions for offences of contravening Supervision Orders in breach of the DSO Act (which were committed in 2012, in 2013 and in 2016). The Respondent's history of breaching orders of this court (in the form of Supervision Orders) provides a rather unsafe foundation for his assertion that he will, if a Supervision Order was now made by the court, comply with that order. I have considerable doubts that he will.
160. Third, there are factors personal to the Respondent, particularly his antisocial personality style and his psychopathic traits, which render him (according to the evidence I heard) highly susceptible to non-compliance. This includes his apparent lack of awareness that he is a danger to the community. The Respondent has also been described by a judge of this court as a 'habitual liar' who is prepared to 'lie whenever it suits him to avoid his responsibilities under the supervision order'. Further, Dr Wojnarowska formed an assessment that the Respondent had been untruthful as to his sexual drive. These diagnoses and assessments of the Respondent mean that he is a person who is likely to be dishonest and this has a material impact on my assessment of his likely ability to comply with the standard conditions.
161. Fourth, I also find there is a significant risk the Respondent would cease taking the SSRI medication once released into the community. Dr Wojnarowska formed an assessment that the Respondent's compliance with his medication requirements might be erratic. A failure to adhere to his medication may leave the Respondent prone to relapse. As compliance in this regard cannot be adequately tested, there is a significant risk the Respondent would (without the benefit of this medication) engage in risk behaviour of the type he has previously shown a propensity to do. Together with this, I am conscious that the Respondent's partner has no sexual interest or intent towards the Respondent on his release, leading to an outcome in which the Respondent is likely to withdraw into his fantasy world or initiates contact with sex workers either online or in person.[119] Additionally, Mr Summerton has reported that the Respondent lacks the skills to cope with the distress of others. The combination of these matters creates a likely risk the Respondent would reoffend and commit serious offences in the future.
162. Fifth, I observe that Dr Wojnarowska has formed the opinion that the Respondent's risks could be managed in the community (or would be manageable). That opinion, while of assistance to the court in undertaking its statutory task, only goes so far though and must be seen in conjunction with the conditions which were expressed in Dr Wojnarowska's report. Dr Wojnarowska's view was predicated on the Respondent continuing to engage in psychological counselling, the Respondent managing his substance use disorder through Naltrexone, and (importantly) in the Respondent recommencing his antilibidinal treatment. I understood from Dr Wojnarowska's evidence that recommencing the antilibidinal treatment was the preferable recommendation (relative to the SSRI medication) to manage the Respondent's risks.
163. I acknowledge the Respondent's current position is that he is not opposed to recommencing antilibidinal medication, which would be a preferable course given its targeted impact on a person's sexual drive and also given the ability to test compliance. However, the Respondent has not been taking antilibidinal medication for the past 7 years or so and, most importantly, had voluntarily ceased taking that medication when he was in the community on his last Supervision Order, one year prior to the 2016 offence.
164. The Respondent has a choice whether to take antilibidinal medication. It is a matter for him whether he so consents. However, it is not a choice that is free of consequences. Indeed, I note that Derrick J, in his reasons on the First Review Application, expressly commented on the Respondent's decision in this regard, and recommended that he recommence taking the antilibidinal medication (at [216]). Derrick J warned that a decision not to recommence this medication may impact adversely on the prospects of the Respondent being released at the time of the next review. For my part, I regard the Respondent's non-opposition to recommencing with this mediation in the future as an inadequate assurance and unpersuasive in the circumstances.
165. Ultimately, having been found to be a high risk serious offender (and the Respondent concedes as much), the Respondent must discharge the legal burden which forms part of the review application process under s 68 HRSO Act, to satisfy this court that he will comply with the standard conditions in a manner and to an extent that will ensure the adequate protection of the community from the unacceptable risk of the Respondent committing a serious offence.
166. Dr Wojnarowska expressed the view the Respondent would be manageable in the community through close supervision, and that the Respondent could not make any further treatment gains in a custodial setting. I am unpersuaded that these opinions provide the necessary basis to conclude the Respondent has discharged his burden.
167. In this regard, I endorse the following statement of Derrick J in State of WA v West [No 6] [2019] WASC 427 [249], which emphasises the need for this court to focus on the statutory task mandated by the HRSO Act:

I am conscious of Dr Wojnarowska's evidence that whatever terminology is used to describe the level of risk posed by the respondent, in her opinion the risk that the respondent will pose to the community if he is released on a supervision order will be substantially less than the risk that he would pose if he were to be released unconditionally (on Dr Wojnarowska's evidence the risk will drop from very high to high). I am also conscious of Dr Wojnarowska's evidence that in her opinion the fact that the respondent will be at a high risk of reoffending if he is released on a supervision order does not mean that he and the risk that he poses cannot be 'managed' in the community with adequate supervision, support and treatment (which I take to mean that in Dr Wojnarowska's opinion the respondent's high risk of reoffending will not prevent the conditions of the supervision order being able to be implemented in relation to him). However, ultimately the question for me is not whether the reduction in risk is substantial, or whether in the opinion of a highly qualified expert witness a person at high risk of committing sexual offences can be managed in the community, but rather whether the respondent's risk of committing further serious sexual offences will, by releasing the respondent on a supervision order, be reduced to a level that is reasonably acceptable and will ensure the adequate protection of the community. (emphasis added)

168. Allied to the foregoing statements, I recognise that the proper approach to the treatment of expert evidence in applications such as this, as outlined in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307. Steytler P and Buss JA at [62] recognised that, under the legislation in this State, a court must have regard to the psychiatrists' reports which are adduced in evidence and must bear in mind that the authors of such reports have an expertise not shared by the court. That said, their Honours emphasised that these reports are only a part of the material that must be considered and the weight to be accorded to them will depend upon their cogency and reliability.
169. In seeking to discharge the burden which falls upon him, the Respondent cannot escape the long history he has of both serious sexual assault offences over the last 37 years or so, and of failures to comply with Supervision Orders (and other orders) of this court, over the last 10 years or so. Faced with that history, and my findings that the Respondent lacks candour and appreciable insight at present, coupled with the reality that the Respondent has not recommenced antilibidinal medication (although he says he is not opposed to that course), the risk he will not maintain his SSRI medication, and although he has made some gains through therapeutic intervention over the past two years, I simply cannot be satisfied on the balance of probabilities that the Respondent will substantially comply with the standard conditions of the Supervision Order.
170. In any event, even if contrary to the above conclusion the Respondent had been able to demonstrate that he would substantially comply with the standard conditions of the Supervision Order, I cannot be satisfied at this point that the community would be adequately protected by releasing the Respondent to the community on the Supervision Order. In this regard, I must affirm the CDO if I am not satisfied that conditional release under a Supervision Order would ensure an adequate degree of protection to the community.[120]
171. In my view, in the circumstances of the Respondent's case, the level and nature of the risk that he would pose if released on the proposed Supervision Order (with all of its conditions) would not be reasonably acceptable viewed from the perspective of the protection of the community.
172. None of this, of course, is to say that the Respondent could never be released into the community or that the court must be satisfied that the risks attendant on such release must be reduced to zero. Neither of those propositions is correct. The assessment I make as part of this Second Review Application is based on the evidence adduced on this particular application, the status of the psychiatric and psychological treatment of the Respondent as matters stand, and my present evaluation of the paramount consideration to ensure adequate protection of the community.
173. The final observation I should add is that I am concerned the Respondent's therapeutic treatment will slip into a hiatus upon the CDO being affirmed. The evidence before me was to the effect that Mr Summerton considered counselling should be halted until 6 months before the next review. That is, halted for an 18 month period. The treatment decisions in this regard are a matter for those who have responsibility, and the expertise, for such matters, but for my part I would strongly recommend that the Respondent be permitted to engage in ongoing treatment, rather than bring his treatment to an abrupt cessation.[121] This may involve something less than the intensive counselling sessions with Mr Summerton, and may extend to the Respondent's participation in courses or programs of the type he has willing participated in previously whilst in custody.

174. For the foregoing reasons, pursuant to s 68(1)(b)(i) HRSO Act, having found that the Respondent remains a high risk serious offender within the meaning of s 7(1) HRSO, the court affirms the continuing detention order made on 9 March 2018 by the Honourable Justice Corboy.

PROPOSED CONDITIONS FOR THE SUPERVISION ORDER AS PREPARED BY THE DEPARTMENT OF JUSTICE

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

1. Report to a Community Corrections Officer (CCO) at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth within 48 hours of this order being issued by the Court and advise the officer of your current name and address;
2. Report to and receive visits from, a Community Corrections Officer as directed by the Court;
3. Notify a Community Corrections Officer of every change of the person's name, place of residence, or place of employment at least 2 business days before the change happens;
4. Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32);
5. Not leave, or stay out of the State of Western Australia without the permission of a Community Corrections Officer;
6. Not commit a serious offence during the period of the Order;
7. Be subject to electronic monitoring under section 31;

ADDITIONAL CONDITIONS

The following conditions incorporate the above standard conditions and are suggested to strengthen and add to the standard conditions required by the Act for the more effective management of the offender in the community.

Residence

8. Take up residence at [ADDRESS REDACTED] 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

9. Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order;
10. Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO;
11. Not commence or change paid or unpaid employment, volunteer work, education, or training without the prior approval of the CCO;

Attendance at programs or treatment

12. Consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;
13. Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO;
14. Attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO;

Reporting to WA Police

15. Report to the Officer-in-Charge of the High Risk Serious Offender team 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 High Risk Serious Offender team or his/her delegate;
16. Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004;
17. If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officers believes to contravene the conditions of the Order;
18. Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020;
19. 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 screen name(s), user name(s), and email addresses;

Disclosure/Exchange of Information

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

Restrictions on contact with Victims

22. Have no contact, directly or indirectly, with [NAME REDACTED] unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice and approved in advance by a CCO
23. Have no contact, directly or indirectly, with the victims of your sexual and violent 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;
24. 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 or violent 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 victims at all times;
25. Report to the CCO and WA Police any direct or indirect contact with the victims of your offending (including sexual offending) on the next working day you report to the CCO or Police;

Criminal conduct

26. Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments;
27. Not commit an offence under s202, s203, s204, s557K Criminal Code 1913 (WA) or s17(1) Criminal Law (Unlawful Consorling and Prohibited Insignia) Act 2021;
28. Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
29. Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber;

Curfew

30. 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 you approved address as directed by a CCO from time to time;
31. 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 you compliance with the curfew;
32. 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

33. Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO or undergo medication treatment, including anti­depressant medication or anti-libidinal treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners; EXCEPT that you are not required to take Selective Serotonin Reuptake Inhibitor medication or other antilibidinal/anti-testosterone medication unless you consent to do so;
34. To engage with mental health services and to obey the instructions of the treating psychiatrist with regard to treatment and medication;
35. Undertake any medication regime in accordance with a medical practitioner's direction, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;
36. 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;
37. 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 undergoing pharmaceutical anti-libidinal and or anti-depressant 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;
38. Comply with the requirements of: Uniting WA (UWA) and all programs designed to assist you to perform daily living activities and/or reduce your risk of serious sexual re-offending, as directed by a CCO;

Prevention of high-risk situations

39. With the exception of public transport, not to enter in or on any vehicle, including taxis and rideshare vehicles such as but not limited exclusively to Uber, 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 the CCO;
40. Not enter any residential address in which a female resides or is known to reside, unless authorised in advance by a CCO;
41. 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;
42. Report any unsolicited interaction with females at your residential address to the CCO and the Serious Offender Management Squad at your next scheduled appointment;
43. 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;
44. As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
45. Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO;
46. 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. Provide a valid sample pursuant to Condition 46;
48. Not purchase, or possess, or consume or use alcohol;
49. Not to go, enter any part of your body inside, 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 duration approved in advance by a CCO;
    c) On the order of a CCO or Police Officer;

50. Not remain in the presence of any person who is affected by alcohol or prohibited substances, or you ought to know are affected by alcohol or prohibited substances, unless the identity of such person is approved in advance by the CCO;
51. Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence;
52. Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless

    a) The contact is authorised in advance by the CCO and such contact is supervision at all times by an adult approved in advance by the CCO;
    b) The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.

('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication);

53. Advise a CCO or Police Officer 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;
54. Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 53, without prior approval;
55. 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 53, or any online accounts, to any person other than a CCO or Police Officer;
56. Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), user name(s), and email addresses.
57. Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data 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 by a CCO or WA Police;
58. Not to access online pornography, nor to be in possession of any pornographic material, in either hard-copy or digital form, or access or view pornography on the internet; Pornographic materials means printed or visual or any medium of material that contains the explicit description or display of sexual organs or activity [does not include chests, breasts or nipples or backsides with clothing covering the anus], unless authorised in advance from a CCO
59. Not enter the premises of, or access the services of, escort agencies or sex workers, including telephone communication, unless pre-approved by a CCO.
60. Not to attend adult sex shops without prior approval of a CCO and not to attend locations which facilitate adult entertainment, including but not limited to: stripping, lap-dancing and pole-dancing;
61. You must provide your projected daily movements to your CCO in writing at your supervision sessions each week. You must provide any additional projected movements that you are not able to provide in advance in writing in your supervision sessions and any proposed deviations from your projected movements verbally by telephone call to your CCO. You must provide your projected movements for any weekend to your CCO by 3.00pm on the Friday before that weekend. You must not undertake the movement unless you have been given verbal or written approval by your CCO in advance, 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 yourself 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 and/or Police Officer;

62. Maintain a daily diary of your movements, activities and associations, if and as directed by the CCO, and present this diary to the CCO and Police upon request;

I authorise police officers from the Western Australia Police Force (WA Police Force) to access any cloud-based platforms or services associated with the devices I use, and examine the internet accounts at any time for the purposes of monitoring my 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 for as long as is required for legitimate evidentiary or law enforcement purposes only.

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

IHN
Associate to the Honourable Justice Lundberg

21 MARCH 2023

[1] The State of Western Australia v MBW [No 6] [2018] WASC 72 (Corboy J).
[2] A suppression order for the Respondent’s name to appear as an alias was made on 15 October 2018. A further suppression order was made by Derrick J on 13 November 2020 to prohibit publication of the identity of the Respondent’s victims. Accordingly, where I would otherwise have included references to particular decisions of this court which relate to the Respondent, it has been necessary to omit them from these reasons.
[3] I have been greatly assisted in the preparation of these reasons by the historical summaries prepared by both Corboy J and Derrick J for the purposes of their respective decisions.
[4] State’s Written Submissions [2], [12] and [190]; and ts 70 and ts 106.
[5] ts 74.
[6] ts 74.
[7] Dangerous Sexual Offenders Act 2006 (WA) (DSO Act),
[8] HRSO Act s 68.
[9] HRSO Act s 3(1).
[10] HRSO Act s 3, s 5(1) and s 5(2).
[11] The State of Western Australia v Garlett  [2021] WASC 387  [135] ‑ [138]. See also The State of Western Australia v D'Rozario [No 3] [2021] WASC 412 [19] ‑ [21]; and The State of Western Australia v Narrier [No 2] [2022] WASC 49 [23].
[12] HRSO Act s 7(2).
[13] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).
[14] The State of Western Australia v Garlett [ 2021] WASC 387  [136(b)].
[15] HRSO Act s 7(4).
[16] The State of Western Australia v West [No 6] [2019] WASC 427 [24]; The State of Western Australia v ZSJ [2020] WASC 330 [47].
[17] HRSO Act s 68(1)(b).
[18] HRSO Act s 29(1).
[19] HRSO Act s 29(2).
[20] Garlett v The State of Western Australia [2022] HCA 30 [45], [55] – [56] (Kiefel CJ, Keane and Steward JJ), but see the analysis of Edelman J on this issue at [247] – [255], describing continuing detention orders under the HRSO Act as 'protective punishment'.
[21] The State of Western Australia v Latimer [2006] WASC 235 [49].
[22] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [107].
[23] HRSO Act s 8(b). See also The State of Western Australia v Tomasovich [No 2] [2022] WASC 402 [38] (Curthoys J).
[24] HRSO Act s 64.
[25] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [51].
[26] HRSO Act s 68(1)(a)
[27] HRSO Act s 68(2).
[28] Director of Public Prosecutions (WA) v GTR [26] ‑ [27] (Steytler P & Buss JA) and Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] ‑ [65] (Wheeler JA)
[29] The State of Western Australia v Newland [No 3] [2022] WASC 43 [23]. See also Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] ‑ [18].
[30] Director of Public Prosecutions (WA) v Unwin [No 3] [18], cited with approval by Fiannaca J in Director of Public Prosecutions (WA) v Dinah [No 9] [2017] WASC 158 [18].
[31] The State of Western Australia v MBW [No 6] [6].
[32] [Suppressed].
[33] [Suppressed].
[34] [Suppressed].
[35] [Suppressed].
[36] [Suppressed].

[37] [Suppressed].
[38] [Suppressed].

[39] The State of Western Australia v MBW [No 6] [9] ‑ [11].
[40] The State of Western Australia v MBW [No 6] [2018] WASC 72.
[41] The State of Western Australia v MBW [No 6] [33] ‑ [36].

[42] ts 74.
[43] Exhibit D, pg 1486 – 1489.
[44] Exhibit D, pg 1490 - 1502.
[45] Exhibit D, pg 1503 – 1518.
[46] Exhibit D, pg 1519 – 1534.
[47] ts 105.
[48] Exhibit D, pg 1503 – 1518.
[49] Some minor errors in her report were corrected during Dr Wojnarowska's evidence in chief.
[50] Exhibit D, pg 1509.
[51] Exhibit D, pg 1508.
[52] Exhibit D, pg 1508; ts 76.
[53] Exhibit D, pg 1508.
[54] ts 76.
[55] ts 78; and Exhibit D, pg1517
[56] Exhibit D, pg 1517.
[57] ts 78.
[58] ts 77 – 78.
[59] Exhibit D, pg 1509 (at [39]). See also Exhibit D, pg 1516 (at [84]) where Dr Wojnarowska states the Respondent is prepared to recommence this treatment. I proceed on the basis that the Respondent's stated position to Dr Wojnarowska was that he would not oppose the treatment.
[60] Exhibit D, pg 1509 (at [40]).
[61] ts 79.
[62] ts 79.
[63] Exhibit D, pg 1509.
[64] ts 79.
[65] Exhibit D, pg 1511.
[66] Exhibit D, pg 1512.
[67] Exhibit D, pg 1512; and ts 80.
[68] ts 80.
[69] Exhibit D, pg 1513 – 1517. The Risk for Sexual Violence Protocol (or RSVP) analysis incorporates dynamic variables, both stable and acute. As explained at paragraphs 67ff of Dr Wojnarowska’s report, the domain of mental disorder forms part of this analysis, and includes multiple factors, namely: sexual deviance, major mental illness, psychopathic personality disorder, problems with substance abuse, and violence or suicidal ideation.
[70] Exhibit D, pg 1514.
[71] ts 81.
[72] Exhibit D, pg 1515.
[73] Exhibit D, pg 1516.
[74] ts 81.
[75] Exhibit D, pg 1517.
[76] ts 82.
[77] Exhibit D, pg 1517; and ts 81.
[78] Exhibit D, pg 1517; and ts 83.
[79] ts 88.
[80] ts 83 – 84.
[81] ts 85.
[82] ts 85 – 90.
[83] ts 88.
[84] ts 89.
[85] ts 89.
[86] ts 90
[87] In which I note Dr Barbas corrected some minor errors in her report.
[88] Exhibit D, pg 1494 at [19] – [33].
[89] Exhibit D, pg 1496.
[90] Exhibit D, pg 1496.
[91] Exhibit D, pg 1496.
[92] Exhibit D, pg 1496.
[93] Exhibit D, pg 1496.
[94] ts 93.
[95] Exhibit D, pg 1499.
[96] Exhibit D, pg 1500.
[97] Exhibit D, pg 1500 – 1501 at [44] – [48] in particular.
[98] ts 91.
[99] ts 94.
[100] ts 95.
[101] Exhibit D, pg 1519; and ts 96.
[102] The availability of suitable private accommodation for the Respondent removes, at least insofar as this application is concerned, one potential issue surrounding the possibility of making a Supervision Order. If a Supervision Order is not now made, however, and the Respondent remains in custody for another 2 years for example, the Respondent would have the option (theoretically at least) of government sponsored accommodation being available, but counsel for the Respondent observed there could be no guarantee in this regard given the difficulties with making such accommodation available (ts 115).
[103] Exhibit D, pg 1521 and 1522.
[104] Exhibit D, pg 1522.
[105] ts 98 and 104.
[106] Exhibit D, pg 1527 – 1533 (being Conditions 1 to 62).
[107] ts 117.
[108] ts 100. If the Supervision Order was to be made, I would remove the word ‘other’ in the exception given the differences between SSRI and antilibidinal medication.
[109] ts 118.
[110] State's Written Submissions [181].
[111] The State of Western Australia v MBW [No 6] [9] – [11] (Corboy J); and The State of Western Australia v MBW [No 7] [203], point 3.
[112] Section 68(1)(a) HRSO Act.
[113] Derrick J made a similar finding on the first review application in 2020: [2020] WASC 404 [162] - [163].
[114] State's Written Submissions [101].
[115] Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [14], cited in the State's submissions at [44].
[116] HRSO Act s 29(1).
[117] HRSO Act s 29(2).
[118] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 [52]; The State of Western Australia v West [No 6] [2019] WASC 427 [29]; The State of Western Australia v ZSJ [2020] WASC 330 [56] ‑ [58]; The State of Western Australia v Patrick [No 4] [2020] WASC 48 [109] ‑ [111].
[119] In this regard, I accept the submission of the State at [175] of the State's Written Submissions, as to the impact of the Respondent's lack of a sexual outlet.
[120] Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 [22] (Hall J).
[121] It appeared to me that Dr Barbas had expressed a view not dissimilar to this point, in her report: Exhibit D, pg 1501 (at [50]).