1 JENKINS J: The respondent, Patrick Alfred Merritt, is the subject of a continuing detention order (CDO) made by Simmonds J on 14 March 2016 pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act), s 23(2): Director of Public Prosecutions (WA) v Comeagain [No 6]

(a) if the court does not find that the person remains a serious danger to the community it must rescind the continuing detention order; or

(b) if the court finds that the person remains a serious danger to the community it must

(i) affirm the continuing detention order; or

(ii) with effect from a date specified by the court, but not earlier than 21 days after the day on which the review is concluded, rescind the continuing detention order and make a supervision order in relation to the person.

(3) In making a decision under subsection (1)(b), the paramount consideration is to be the need to ensure adequate protection of the community.

4 In deciding whether to decline to rescind the CDO or make a supervision order (SO), the judge is required to adopt the least restrictive alternative which is compatible with the protection of the community: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 176 A Crim R 110.

(1) does the respondent remain a serious danger to the community; and

(2) if so, should I affirm the CDO or rescind the CDO and make a SO?

The respondent does not dispute that the answer to question (1) is 'yes'. However, I must come to that decision myself before moving to question (2).

6 The State submits that I should affirm the CDO. The respondent submits that the community would be adequately protected by the rescission of the CDO and the making of a supervision order.

7 On 22 October 2008, McKechnie J made a CDO (the first CDO) in relation to the respondent under the Act s 17(1)(a): Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235.

8 McKechnie J said that the respondent's previous offending had been summarised by Dr Tanney in the following terms:

There have been five sexual offending victims and one 'similar fact' crime in 1992. Physical violence was present in the majority of offendings to further the act and subdue his victim. He was intoxicated on substances in four of the six episodes. Victims were all white Caucasian peers or adult women save for the Geraldton 1994 offending against a 9 year old child.

The contribution of emotional distress involving proximate arguments with family/friends or with girlfriends is notable in 1989, 1994 and 2000 offendings.

The observation of opportunistic offending in 1987, 1990 becoming more premeditated in 1999 and 2000 was confirmed by [the respondent] [BD 315 316] [38].

9 The following more detailed summary of the respondent's sexual offending, convictions and sentencing is taken from McKechnie J's judgment read together with other judgments delivered in relation to the respondent under the Act:

(1) November 1987 - the respondent, aged 14, committed two counts of aggravated sexual assault (vaginal and oral penetration) against a 14yearold female. The respondent was placed in the care of the State until the age of 18 years.

(2) February 1990 - the respondent, aged 17, committed four counts of aggravated sexual assault and one count of deprivation of liberty against a 28yearold female victim. The offences were accompanied by significant physical violence. The respondent was sentenced to detention for 28 months.

(3) September 1992 - the respondent was convicted of one count of assault occasioning bodily harm and sentenced to 10 months' imprisonment. This is the 'similar fact' crime referred to by Dr Tanney as it was a precursor to sexual activity.

(4) November 1994 - the respondent committed five sexual offences (including anal, vaginal and oral penetration) on a 9yearold girl, less than seven months after being released on parole. The respondent was sentenced to 10 years' imprisonment, concurrent, on each charge.

(5) December 1999 - the respondent committed a number of sexual offences (including vaginal penetration with his fingers and penis) against an adult female victim in her home. The offences were accompanied by significant physical violence. These offences were committed 34 days after the respondent's release on parole from his previous sentence.

(6) January 2000 - the respondent committed offences (including anal penetration) against an adult female victim in her own home. The respondent was sentenced to 12 years' imprisonment without parole for the offences the subject of this and the previous incident.

10 The respondent had not been released from custody when the first CDO was made.

11 McKechnie J quoted from an early 2000 interview between the police and the respondent in which the respondent said:

1. ... Um, I been doin' this stuff for years. Um, people say there's a cure for it but for what I got I don't think there is.
2. You're just got a very strong urge.
3. Well I dunno. Just cannot control it. I've done my months - I've just got out from doin' five years already. I've done nine months for a sex offender's treatment programme. I learnt all about how to - how to control it and urges and (indistinct) situations and all that sort of stuff, you know, and that was very good that course. I enjoyed it. But, um, I'm not blamin' the course cos this is - it's me. You know, that course it helped, you know, cos I was into kids before so that course really did help cos it changed me around and all that. It's just that I just done something stupid in Bunbury. Um, I knew it was stupid [53].

12 McKechnie J also observed that the respondent's relationship with his partner, Ms Winter, was untested in the community. His Honour said that no one knew how the respondent would react to the stressors and strains of everyday life. His Honour went on to say that although Ms Winter would not tolerate alcohol or cannabis use, the respondent had not shown a strong commitment to giving up cannabis. His Honour also noted that rejection and stress have been precursors to the respondent's past offending.

13 On 17 December 2009, at the first review of the CDO, Murray J expressly declined to rescind the CDO. The first CDO was affirmed at four subsequent reviews:[1] Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16; Director of Public Prosecutions (WA) v Comeagain [No 3] [2012] WASC 245; Director of Public Prosecutions (WA) v Comeagain [No 4] [2013] WASC 297.

14 In his Honour's reasons for decision after the 2011 review Blaxell J said that Dr Tanney had analysed the link between substance abuse and the episodes of sexual offending and considered it to be a contributing factor. He quoted Dr Tanney as saying:

The most likely process is that the illicit substance affects his judgment and emotional regulation with disinhibition of sex and aggressive drives [14].

15 Accordingly, Dr Tanney considered that sexual offending would 'be more likely in the circumstance of substance intoxication and be opportunistic/unpredictable in its timing'.

16 Blaxell J said that Dr Tanney considered that the respondent had four areas of treatment needs which must be addressed if his risk of reoffending was to be reduced. Two of these areas are sexual offending, and substance abuse. A third area is 'victimisation', and in this regard:

The objective is to achieve some integration within himself of the experiences of childhood abuse/trauma in order that these not continue to influence his current psychological, emotional, interpersonal and social functioning. There has been almost no identifiable treatment work offered or undertaken in respect of this issue [17].

17 A fourth area of treatment was social skills functioning. In this regard, Blaxell J said:

[the respondent] has spent most of his adult life in institutional custody and experienced a childhood that afforded little opportunity for appropriate development of social and interpersonal coping skills. Life skills programming or a structured transition towards community living has not been made available [18].

[S]ubstance abuse contributed to his past offending and progress towards abstinence is critical to a reduction in the risk of him reoffending. However, he is unwilling to address his substance abuse problem, and will almost certainly maintain this attitude if released into the community. Furthermore, his other treatment needs remain unaddressed.

If released into the community [the respondent] will live with Ms Winter and be subject to her beneficial influence. Even so, Dr Tanney assesses that he would be at high risk of committing further sexual offences involving physical violence. This risk would be heightened in the likely circumstances of substance intoxication, and his offending would be opportunistic and unpredictable in its timing [25] [26].

19 In his Honour's reasons for decision after the 2012 review, Commissioner Sleight noted that the respondent had an entrenched drug use problem. Whilst in prison he pleaded guilty to five occasions of drug use (cannabis and Buprenorphine) in 2011 and 2012. He also had five outstanding charges. On the last three occasions he committed serious sexual offences he was under the influence of cannabis. Commissioner Sleight noted that the continuing drug use had occurred notwithstanding that the respondent understood that his drug use reduced his chances of being released on a SO.

20 Previously, the respondent had been refused participation in an intensive sex offender treatment programme (ISOTP) because of his prison drug use. The respondent commenced an ISOTP in December 2011 but he was expelled in January 2012 for illicit drug use.

21 When I conducted the 2013 review, the respondent was part way through an ISOTP. The respondent acknowledged that until he completed the ISOTP, there was no evidence which would enable me to make the findings necessary for me to rescind the first CDO. The Director of Public Prosecutions (DPP) conceded that if the respondent completed the ISOTP he would not oppose an application by the respondent under the Act s 30 for an exceptional circumstances review.

22 After the review held in 2013, the respondent obtained leave under the Act s 30 to apply for an exceptional circumstances review of the first CDO.

23 In reasons given after the exceptional circumstances review, Simmonds J noted that both Dr Tanney and Dr Wynn Owen, the second psychiatrist who gave evidence on the application, had identified substance abuse both as a marker of stress, which was itself a risk factor for offending, given the respondent's difficulties in coping with stress, and as a risk factor in itself, at least in relation to some substances, most notably alcohol and other substances [82].

24 Simmonds J said that there had been a marked improvement in the respondent's urinalysis results history since Commissioner Sleight conducted the 2012 review. There were only two positive test results between 6 July 2012 and 26 March 2014. One was positive for cannabis on 14 September 2012 and the second was positive for amphetamines on 22 November 2013. Simmonds J said that the respondent contested the latter result.

25 Both psychiatrists noted that the respondent was taking methadone which could help him to deal with stress. Both Dr Tanney and Dr Wynn Owen saw the improvement in the urinalysis results as indicating an improvement in the respondent's ability to selfmanage. Dr Tanney saw the improvement as a 'tremendous' achievement and said that it indicated that he could manage himself in the community.

26 Dr Wynn Owen thought that the reduction in substance abuse and the completion of the ISOTP was goaldirected, that goal being release rather than to avoid reoffending.

27 Simmonds J concluded that the respondent had shown a greater capacity for selfmanagement than had been evident in previous proceedings under the Act. His Honour acknowledged that it proceeded more from an appreciation of what was required of him to be released than from an appreciation of what he needed to do to avoid committing serious sexual offences. However, his Honour considered that there were some indications that the respondent had some such appreciation of the link between substance abuse and his serious sexual offending [96].

28 The respondent had also completed the ISOTP. The completion report said that he met most programme objectives, made some treatment gains in that he was observed to have gained a greater understanding of the factors underlying his offending, and he had demonstrated a greater acceptance of responsibility for his behaviour.

29 After the 2014 exceptional circumstances review, Simmonds J rescinded the initial CDO and made a SO for 10 years: Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214. The respondent was released on the SO in June 2014.

30 The respondent breached the conditions of the SO on a number of occasions.

31 A condition of the SO required the respondent to have no contact with any child under the age of 16 years, unless authorised in advance by a community corrections officer (CCO) and the respondent was supervised.

32 The respondent had contact with children under the age of 16 years at an address of a relation in July 2014. There were 12 children present, between the ages of 18 months and 16 years, all of whom were relatives of the respondent and to whom he was introduced. At some point he took photographs of himself with the children on his mobile telephone. The respondent had not contacted his community corrections officer (CCO) to obtain advance approval to have contact with the children. However, the contact was in the presence of other adults. The respondent's explanation was that the thought he could have such contact if he were not on his own.

33 The respondent was prosecuted for breaching the SO. At the sentencing by Heath CM on 5 August 2014, on the respondent's plea of guilty, he received a fine of $1,000 with costs. Heath CM accepted that the respondent had reported the contravention and not attempted to delete the photographs, while there was nothing suggestive in them. Heath CM further accepted that the CCO had come to the view the contravention was not deliberate or deceitful, having arisen out of confusion over the conditions. However, Heath CM affirmed that it was 'very important that you comply strictly with all of [the conditions in the supervision order]'.

34 On 1 August 2014, the respondent contravened the zone put in place to ensure that he did not leave the metropolitan area without the permission of his CCO. He was issued with a warning letter.

35 On 29 September 2014, the respondent breached his SO by not returning home by his amended curfew commencement time. He was issued with a warning letter.

36 On 18 October 2014, the respondent breached the above described condition in relation to contact with children. The respondent was at a shopping centre when he was approached by a female who was looking for her two small children. The respondent walked around the centre for about 15 minutes looking for the children. He went into the toilet blocks looking for the young boy. The children were eventually located by the woman. She asked the respondent to speak to the children to tell them not to run away from their mother. He spoke to them in those terms. The respondent then accompanied the woman and informed security officers of the situation. He again spoke to the children about not running away from their mother. After the mother and her children had left the centre the respondent spoke to security officers, informing them of the nature of his previous convictions and supplying his personal details. He was interviewed by officers of the WA Police Sex Offender Management Squad (SOMS) and made full admissions. He stated to them that he believed he had done the right thing and would do it again.

37 At the sentencing by Heath CM on 14 January 2015, on the respondent's plea of guilty, he received a 6 month conditional release order in the sum of $1,000. Heath CM accepted that had it not been for the admissions the respondent made to security officers, his actions would not have come to light. He also accepted that the respondent had acted honourably and honestly. However, Heath CM further indicated that the respondent was aware of the conditions and restrictions imposed on him. Overall, there was a need 'to keep the balance between the need to enforce the provisions of the Act, but to take into account the individual circumstances'.

38 On 29 May 2015, the respondent failed to attend an appointment as directed by his then CCO.

39 On 10 June 2015, the respondent was interviewed by police officers. The respondent admitted that he did not attend that meeting. The respondent stated that he had attended a doctor's appointment at the Derbarl Yerrigan Health Service in the morning of 29 May 2015, of which he had one or two days' notice, and of which he had not informed his CCO. He said that his mobile telephone was switched off while he was at the doctor's surgery, and that he did not see any messages when he switched it on as he did not have any credit. The respondent further stated that he had received bad news in relation to a relative's health. He said that he had missed the appointment because he forgot about it as there were too many distractions.

40 The Derbarl Yerrigan Health Service is located in East Perth, in close proximity to the Central West Community Correction Centre, where the respondent was due to report for supervision.

41 A senior community corrections officer (SCCO), repeatedly attempted to contact the respondent by telephone throughout the day, but was unable to do so. At 2.58 pm the respondent telephoned the central monitoring station and inquired whether it had tried to contact him earlier that day.

42 Finally, on 16 June 2015, the respondent was instructed to undergo urinalysis as he was obliged to do so, pursuant to condition [35] of the SO. The respondent provided a urine sample, as instructed, which was subsequently analysed. The results of the tests were positive for methylamphetamine and amphetamine. The results of the urinalysis established that, either on 16 June 2015 or on a date unknown shortly before 16 June 2015, the respondent contravened condition [35] of his SO by consuming either methylamphetamine or methylamphetamine and amphetamine.

43 On 9 July 2015, the DPP made an application for a CDO under the Act s 22 (the contravention proceedings).

44 Prior to the hearing of the contravention proceedings, the respondent had pleaded guilty in this court to two charges of contravening without a reasonable excuse a requirement of a SO relating to the incidents on 29 May and 16 June 2015. On 30 October 2015, Simmonds J sentenced the respondent to terms of immediate imprisonment of 4 months for the first offence and 7 months for the second offence. He ordered that the two sentences be served concurrently and backdated the sentences to commence on 18 June 2015: The State of Western Australia v Merritt [2015] WASCSR 233. The respondent has been in custody since 18 June 2015.

45 After sentencing, Simmonds J adjourned the hearing of the contravention proceedings to a date after the expiration of the sentences. The respondent remained in custody on an interim detention order during this time. In March 2016, at the hearing of the contravention proceedings, Simmonds J made the CDO.

46 The book of materials for the 2017 review contained:

(1) the Department of Corrective Services (DCS) records relating to the respondent from 2015 to date, including the respondent's health records;

(2) the psychiatric report of Dr Brian Tanney, consultant forensic psychiatrist;

(3) the DCS sex offender treatment progress report by Ms Catherine Korda, forensic psychologist; and

(4) the DCS community supervision assessment by Ms Jane Henshall, SCCO.

47 The respondent is a maximum security prisoner in unit 6 at Casuarina Prison, which is a protection unit. He was transferred from Hakea Prison to Casuarina Prison in September 2016. The DCS management plan proposes that whilst the respondent is subject to the CDO he will remain as a maximum security prisoner at Casuarina Prison.

48 The respondent appears to the DCS to be settled into the prison routine in unit 6, however, he is regularly monitored because of his propensity to use illicit substances whilst in prison. The respondent is employed as a cleaner and is regarded as an average worker who completes his tasks with minimal supervision.

49 The respondent receives regular visits from his partner and maintains other contact by mail and phone. The respondent has regular medical consultations.

50 Ms Henshall was not called to give evidence as the State does not submit that the respondent's proposed place of residence, with Ms Winter, is inappropriate.

51 Ms Henshall's report confirmed the material in Ms Korda's report that since the CDO was made the respondent has been involved in a number of incidents of verbal abuse of prison staff. The respondent has received verbal warnings regarding his behaviour and on one occasion received a loss of privilege. However, the incidents have not proceeded to formal charges.

52 The respondent has been required to provide samples for urinalysis on 25 occasions since being in custody on the CDO. He has tested positive for illicit substances on five occasions since Simmonds J reserved his decision. One of these was whilst Simmonds J's decision was reserved and the latter four were after it was delivered. The respondent has also refused to give a sample for urinalysis on two occasions. The details of these events are as follows:

(1) 11 March 2016 - positive for cannabis metabolites;

(2) 15 April 2016 - positive for cannabis metabolites and methamphetamine;

53 Since Simmonds J's decision, the respondent has been charged with historical serious sexual offences which were allegedly committed against a 13yearold girl around the time of his offending against the 9yearold girl in 1994. These historical charges include deprivation of liberty, burglary, aggravated indecent assault and five counts of aggravated sexual penetration without consent. The respondent is due to appear in the Perth District Court on 30 March 2017 in respect of these historical charges. The parties agree that the 2017 review of the CDO should proceed independently of the recent prosecution.

54 If the respondent is released on a SO, he proposes that he live with his partner, Ms Winter, in private rental accommodation in suburban Perth. Ms Henshall discussed with Ms Winter her feelings about living with the respondent. Ms Winter is positive about her ability to do so based on the previous time that they spent living in the community together whilst the respondent was on the SO, although she admitted to periods which were tough.

55 Ms Winter advised Ms Henshall that she considered the conditions of the respondent's previous SO to be appropriate. She said that if he was released to reside with her again, she will be more assertive in regards to his actions whilst on the order. She said that previously she kept quiet about situations she thought may be problematic as she wanted to give the respondent the ability to make decisions for himself.

56 Ms Henshall also spoke to Ms Winter about the respondent's ongoing drug use. Ms Winter said that she was disappointed that the respondent continued to use drugs, however she understood how difficult it was for him to abstain. She explained that she and the respondent planned to engage in substance use counselling with Palmerston upon his release. She said that she will be doing this so that she can support the respondent in his attempts to remain abstinent. Ms Winter reiterated that should the respondent present under the influence of substances she will not hesitate to contact SOMS.

57 Ms Henshall reported that other than Ms Winter, the respondent presents with minimal to no supports in the Perth metropolitan area. In January 2017 the respondent informed that he was willing to reengage with Outcare. Outcare case workers contacted the respondent on 1 March 2017. Feedback from his case workers indicates that the respondent was unable to express any possible interests and that he described himself as lazy and lacking motivation. Ms Henshall opined that the Outcare case workers are new and it may take time for a rapport to be built between them and the respondent.

58 The respondent advised Ms Henshall that he had the opportunity to gain employment upon release with an aboriginal housing agency. This employment would involve maintenance on vacant houses and the respondent would remain with a supervisor at all times. The agency has a condition that all employees must hold a working with children check. Thus, the agency's board members need to consider the respondent's application prior to making a decision to employ him. This has not yet occurred.

59 Ms Henshall expressed some concern that given the experience from his last release on a SO, the respondent may be identified by members of the public who may pose a risk to his safety and negatively affect the efficacy of his case management on a SO.

60 The remainder of Ms Henshall's report deals with the usual conditions which would be imposed on a SO. There are no specific matters relating to victims, for example, that are unique to the respondent.

61 Dr Tanney was appointed by the court to prepare a psychiatric report for the 2017 review. This was the fourth time, including the application before McKechnie J in 2008, that Dr Tanney had interviewed and prepared a report concerning the respondent for proceedings under the Act. For the 2017 review he interviewed the respondent for about 2½ hours. Dr Tanney also updated his knowledge about the respondent by reading his previous reports and the reports prepared by others.

62 Dr Tanney concluded that a working hypothesis for the respondent's psychological motivation towards offending is that his assaults represent sexualised aggression (acting out) in retaliation for a recent distressing event, some amount of compensation for the significant and chronic, physical and sexual abuse which the respondent says he suffered as a child and anger towards women as a result of his alleged abandonment by his mother. Dr Tanney opined that power and control themes are a reaction to his memories of helplessness as a victim.

63 Dr Tanney noted that the respondent had distorted childhood experiences, including adoption, childhood abuse and institutional care, and has had virtually no adult opportunity to develop appropriate interpersonal coping skills. Dr Tanney said that the respondent has no community support, few ties with family and no indigenous cultural experience. However, I note that the respondent does have support from Ms Winter, his partner, and whilst on the SO he had some contact with family members.

64 Since returning to custody after contravening his SO, the respondent has not participated in any group rehabilitation programmes. Whilst on the SO and since he was returned to custody he has engaged in individual counselling with Dr Yewers. Although the respondent's relationship with Dr Yewers had a rocky start, since late 2014, it has grown to be a positive therapeutic relationship.

65 Dr Tanney noted that the respondent was in the community on the SO for more than 11 months during which he did not sexually reoffend. This is in stark contrast to earlier releases to the community when he has reoffended quickly. Whilst on the SO, the respondent discontinued his use of methadone under medical supervision and he was opiate and opiate substitution free from early 2015.

66 Dr Tanney noted that the respondent's management on the SO:

[W]as difficult throughout, as had been anticipated, with much 'testing the boundaries'. Numerous warning letters were issued for breaching conditions of the [SO].

67 Dr Tanney noted that when Simmonds J made the CDO, his Honour strongly emphasised that the respondent's abstinence from substances and continuing progress in his therapeutic relationship were expected if a further SO was to be considered.

68 Dr Tanney noted that since the respondent's last psychiatric review in March 2016, the respondent has:

(1) continued weekly or fortnightly meetings with Dr Yewers;

(2) had no active substance abuse treatment. He had been offered methadone but refused it on the basis that he did not wish to substitute one drug for another;

(3) persistently stated an interest in finding out why he has committed his serious sexual offences on the basis that he believes that that will explain what has made him like he is and help him to understand his offending;

(4) not taken any psychotropic medication and has refused a prescription of Mirtazapine, an antidepressant which has also been found to be useful in regulating mood;

(5) not participated in education, cognitive skills or life skills programmes;

(6) been employed in the prison, although this has been suspended several times as a result of punishment for drug related activity;

(7) not been charged with any infractions of prison order;

(8) maintained a strong, supportive relationship with his partner;

(9) had hepatitis C treatment with a positive outcome; and

(10) controlled his diabetes with medication and some selfmanagement.

69 Dr Tanney said that the respondent's behaviour during his recent interview was 'markedly different' from any previous interview. The respondent spontaneously introduced topics and issues related to his risk factors that he had avoided or refused to discuss at previous interviews. Dr Tanney acknowledged that one of the possible explanations for this included deliberate manipulation by the respondent.

70 Nevertheless, Dr Tanney noted that the respondent's verbal expression was beyond his expected educational attainments, he was not actively directing the interview and there was no lability or wide range of affects. Dr Tanney did not feel that the respondent was guarded neither was he depressed. The respondent made no efforts to personalise the interview relationship and he had clear perspectives on all the outstanding treatment and management issues. The respondent was able to express these freely. There were no emotionladen issues that the respondent was unwilling to discuss, which was a marked difference from previous interviews.

71 The respondent told Dr Tanney that he enjoyed speaking with Dr Yewers and that he 'looks forward' to their meetings. The respondent told Dr Tanney that he wanted 'to use her to find answers', reflecting it would be 'a terrible journey'. He made references to having 'let her in once' when out in the community and said that he felt that he had 'opened the door, left it open a crack'. Dr Tanney found these disclosures to be 'dramatic'.

72 Dr Tanney noted that for the first time in their numerous interviews, the respondent openly discussed 'family of origin' issues. It seems that he spoke mainly positively about his paternal adopted family but negatively about his mother's family. Dr Tanney opined that these comments afforded some validation of a psychologist's previously expressed hypothesis that the respondent's violent sexual offences were related to strong feelings about his mother.

73 Dr Tanney is of the opinion that the respondent's treatment relationship with Dr Yewers is of critical importance.

74 In relation to substance abuse, the respondent acknowledged that it was a continuing issue and struggle for him. He said that cannabis was his drug of choice as it relaxes him, although he would prefer to use none. He acknowledged that he had used amphetamines because they were available. He described their mood elevating effects and denied that he had any psychotic experiences with them.

75 The respondent acknowledged that 'some sort of fence' or external control was needed to control his substance abuse. He said that he and Ms Winter planned to enrol him in a community substance abuse rehabilitation facility if he was released.

76 The respondent expressed a desire to be drugfree when explaining why he rejected methadone treatment. Dr Tanney said that this was part of a more general and ongoing theme that the respondent wanted to test himself and to be independent.

77 In relation to his prior offending, the respondent said that he did not like the person who 'did all those things'. Dr Tanney said that he showed a 'much clearer sense of accepting responsibility, acknowledging and taking ownership for his behaviours'. Dr Tanney said 'despite this, the level of selfunderstanding remains either shallow or very strongly guarded'.

78 Dr Tanney said that the respondent has some plans if he is released on a SO. The first is to get a job. He described to Dr Tanney the difficulty of establishing informal community supports and acknowledged that he needed help 'mentally'. However, the respondent was not able to make a commitment to engaging with such helping resources, saying with respect to a Centrelink life skills course only that he would 'have a look at it'.

79 The respondent indicated that he was now more accepting of conditions of treatment that would be mandated under a SO. He accepted that these were possibly supportive as well as restrictive.

80 In respect of the contravention of the SO and his drugrelated offences whilst in custody, the respondent said that he knew that he was not supposed to use drugs. He persisted in his belief that his decisions in respect of the breaches involving children were an appropriate choice on his part.

81 The respondent described the isolation of not having many people to talk to. He remains very heavily dependent on the relationship he has established with Ms Winter. He acknowledged that it was hard in the beginning, but felt that they had learned and continued to work through difficult issues.

82 Dr Tanney referred to statistical tools for assessing the risk of reoffending in sexual offenders.[2] He noted that for sex offenders generally attending and completing an ISOTP appears to have some effect in decreasing further sexual offending. Dr Tanney noted that it has been argued that these treatment gains might be discounted for the respondent because he has a high PCLR score relating to psychopathy. Dr Tanney said that there are four recent systemic reviews of the treatment of psychopaths who have committed crimes. They concluded that there is no evidence that psychopaths who have participated in treatment go on to offend more often than nonpsychopathic offenders who have participated in treatment. They further concluded that 'guarded optimism' is warranted, despite 'no firm conclusion' being possible.

83 Dr Tanney noted that in the most recent study, factors suggesting nonrecidivism in psychopaths who were sex offenders were identified. Sixtyone percent of the sample (n = 123) were subject to some conditional release conditions. Older age was correlated to nonrecidivism. Informal community support, and especially preparedness for reentry, was also related to nonrecidivism. Recidivism was associated with aggressive resolution of conflict, impulse, anger and a history of pervasive early reliance on violence and aggression.

84 Dr Tanney noted that historically the respondent offended imminently after release. Dr Tanney quoted the authors of a paper on interpersonal violence to the effect that the risk of sexual recidivism was highest during the first few years after release, and decreased substantially the longer individuals remained sex offencefree in the community. This pattern was particularly strong for the high risk sexual offenders as defined by Static99R scores.

85 Dr Tanney noted that the respondent's score of 9 on the Static99R[3] put him in the 'well above average risk' rating for recidivism by sexual or violent offending. The Static99R predicts that 25.7% of persons with a score of 6 or more, who are high needs sexual offenders, like the respondent, will reoffend within five years and 37.3% will reoffend within 10 years.

86 Dr Tanney noted that a DCS analysis could not validate the Static99 score as an effective predictor of sexual offending in Western Australian indigenous sex offenders. It reported that nonindigenous Western Australian sex offenders reoffended at a noticeably higher rate than would be predicted based on Static99 scores using the 2008 Canadian/International derived norms. Dr Tanney noted that, despite this, race is not considered a risk factor for sexual offending.

87 In order to consider changes in dynamic risk factors since the CDO was made, Dr Tanney used the RSVP. He noted that all items of the RSVP identified by him previously as being contributory towards the respondent's risk of sexual offending continued to apply. Dr Tanney noted that there was no change to the respondent's substance use as the respondent had misused drugs on several occasions during the past year. Not all of these uses were associated with identifiable stressors. The respondent told Dr Tanney that he felt that the refusals to provide a specimen for drug testing in late 2016 may have been related to the adverse effects of hepatitis C treatment, but Dr Tanney noted that this is unlikely based on the adverse drug effects of these medications. Dr Tanney also noted that the drug misuse had continued despite punishments in custody. Dr Tanney said that the respondent continues to express a clear intention to become drugfree and noted that he has refused to reinstitute methadone treatment.

88 As noted above, Dr Tanney believes that there has been an improvement in the respondent's coping and insight. However, Dr Tanney said that there remain major issues around emotional coping and that substance misuse is clearly a coping behaviour.

89 Previously, the respondent has been assessed as being psychopathic by all psychiatrists who have assessed him. In Dr Tanney's view there has been an improvement in his psychopathy as remarked on by the witnesses in the proceedings before Simmonds J. Dr Tanney noted that the respondent had expressed remorse and shame in 2015 related to his unfaithfulness to his partner and his drug use which resulted in him being returned to prison. The respondent further acknowledged this at his interview with Dr Tanney.

90 Dr Tanney noted that there was no deception in any of the breaches of his CDO and that the respondent had had no social order infractions during his detention on the CDO.

91 However, I note that his unfaithfulness towards his partner was, in itself, an act of deception and disloyalty which was committed when the respondent was well aware of the importance of his relationship with Ms Winter to the continuation of his stable life on the SO. His breaches relating to children were also acts of defiance to the authority of the court and those supervising him.

92 Dr Tanney noted that the respondent's narcissism and grandiosity remained, as evidenced by his wish 'to do his rehabilitation drug free' and by his use of dramatic language, although his attitude towards supervision and treatment seemed more accepting. Dr Tanney concluded that the 'glimmers' of change noted in his 2014 review continued.

93 Dr Tanney noted that the respondent's relationships with others had improved in that he had been employed during his time in custody. He had also acknowledged the need to have more community supports and his lack of skills to accomplish this. I also note that his continued relationship with Dr Yewers is evidence of an improvement in this domain.

94 Despite these improvements, Dr Tanney remains of the opinion that the respondent continues to represent a significant danger of serious sexual reoffending in the open community. However, Dr Tanney did not note any areas of deterioration that might herald an increase in the respondent's risk. Thus, Dr Tanney found that the respondent's risk has mediated, but still remains a significant concern.

95 Dr Tanney also concluded that management of the respondent's risk is necessary but he is of the opinion that a SO could be crafted with the conditions necessary to contain, if not decrease, that risk. Dr Tanney acknowledged that problems with supervision can be expected to continue but these, in his opinion, do not warrant the continuation of the CDO. In Dr Tanney's opinion, the respondent's relationship with Ms Winter has 'weathered the concern about viability in the community'. Dr Tanney recommended participation in a life skills course and the continuation of the counselling with Dr Yewers. He also suggested that a relapse prevention plan with clear and supported 'stepoffs' when the respondent is emotionally stressed is needed.

96 In relation to substance abuse, Dr Tanney noted that this continues to be a maladaptive coping mechanism, although, in his view, it is infrequent. Dr Tanney said that treatment and/or rehabilitation programmes are available in the community to address the respondent's outstanding need for risk management and treatment. However, beyond individual counselling, the programmes and resources to accomplish this are not available within a prison.

97 Dr Tanney prepared his report on the basis that the respondent had only committed the one series of offences against a child and that these did not warrant a full prohibition and geographical distancing from all children.

98 Dr Tanney concluded that ongoing detention served no rehabilitative function for the respondent. A longterm, highly structured, closely monitored and intensively supported SO could be fashioned to permit management of his risk of sexual reoffending in the open community.

99 In his oral testimony, Dr Tanney said that he is of the opinion that the respondent's relationship with Dr Yewers has progressed. He noted that the respondent had spoken very highly of her to him. In particular, Dr Yewers had apparently given the respondent the opportunity to speak about his family of origin and his sense of being victimised as a child. The respondent appears to want to explore those issues as a means of helping him to understand who he is and why he has sexually offended. Dr Tanney said that the exploration of these issues was very much in the early stages. He acknowledged that many believed that recounting and unravelling the past does not serve any purpose in terms of changing an offender's risk and managing the risk of sexual reoffending. Dr Tanney noted that the respondent and Dr Yewers had not worked on issues directly about sexual reoffending and management such as a relapse prevention plan.

100 In relation to the respondent's substance abuse in custody, Dr Tanney said that he believes the respondent sometimes uses drugs because he gets relief from emotional distress. Also, he uses because he enjoys the feeling he gets from the drug.

101 The respondent had felt that the last year that he had been in custody had been much more onerous than any other period he had experienced. Dr Tanney said that this stress may be one of the reasons why he had been using drugs in prison.

102 In respect of the respondent's refusals to supply samples for urinalysis, Dr Tanney thought that the flulike illness that the respondent was suffering as a result of his hepatitis C treatment could be an explanation for those refusals. Dr Tanney said that the respondent had pain, nausea and vomiting for at least a week during that period of time.

103 I digress to note that the DCS medical notes state that on 23 November 2016, the respondent was seen by a clinical nurse and he stated that 'he felt unwell'. On 6 December 2016, he was seen by another clinical nurse and he complained of feeling unwell and of having dizziness, nausea, headache and feeling weak. None of those symptoms appear to me to justify the respondent's refusal to supply a urine sample, when requested to do so, on 1 and 9 December 2016. There are two possible explanations. The first is that he chose not to provide samples because he felt unwell. That is, the respondent put his comfort above the demands of those in authority over him. The second is that they were deliberate attempts to avoid detection of his earlier drug use. Neither explanation reflects well on him.

104 Dr Tanney agreed with what he said was Dr Wojnarowska's view which she had given in evidence before Simmonds J to the effect that a single use of drugs by the respondent was not going to lead to reoffending. Rather, it is the continued use of drugs over a period of time which make it more likely that he will go on to sexually reoffend.

105 I have reviewed Dr Wojnarowska's evidence. In my opinion, Dr Wojnarowska did not say that a single use of drugs would not lead to sexual reoffending or an increased risk of sexual reoffending. Rather, Dr Wojnarowska said it would not necessarily do so. Her opinion was summarised in the following evidence which she gave on 8 March 2016:

So it's not on the first time he uses drugs that he's likely to go off and commit an act of sexual penetration?It would probably depend on the dose and the other circumstances, but yes, the longer one takes illicit substance in one sort of go that - that escalates the risk significantly [ts 1600].

106 Dr Tanney was examined about the nature of the respondent's present drug taking as compared to his substance misuse at the time of his serious sexual offending. Dr Tanney said that the respondent's offending was associated with alcohol and cannabis use and that cannabis remained his drug of choice. However, he had more recently been using methamphetamine in prison. Dr Tanney felt that this was because it was the drug which was available to him and that he liked its stimulant effects. Dr Tanney considered that substance misuse with amphetamine would increase his risk of sexual reoffending.

107 On the other hand, Dr Tanney remains of the opinion that a prescribed antidepressant would assist the respondent to manage his emotions and reduce his risk. For the same reason, Dr Wojnarowska had recommended that the respondent continue on methadone. Dr Tanney said that an antidepressant might enable the respondent to handle situations which create emotional stress more effectively, which would then enable him to manage one of the factors that puts him at risk of sexual reoffending.

108 After Dr Tanney completed his report, he was advised that the respondent had been charged with serious sexual offences relating to a 13yearold complainant which allegedly occurred in around the same time as the offences committed against the 9yearold girl in 1994. Dr Tanney said that even though these were only charges they were relevant to a risk assessment conducted under the Static99R. He said that assuming that the offences were committed, the offences against the children would 'end up looking like a spree'. However, he said that those offences, assuming they occurred, were unlikely to change significantly his evidence.

109 In crossexamination, Dr Tanney acknowledged that the respondent's release on the SO crafted by Simmonds J had been a stressful time for the respondent. He was subject to a lot of negative media reporting, his place of residence had been disclosed to the public and as a result he had to change address to avoid potential vigilante action by members of the public. It was also the first time he had lived with Ms Winter and the first time he had to manage the commitment of living with a partner. The respondent also had to manage the significant number of commitments which he had had under the SO. Dr Tanney agreed that between his release on 24 June 2014 and 16 June 2015 he had managed the stressors without resorting to drug use. Dr Tanney agreed that the stressors related to his release would be less if he was released now than in 2014, despite the new criminal charges. Dr Tanney noted, in particular, the fact that the respondent had managed the stressors related to living with a partner, and the fact that the relationship has not floundered meant that he had more confidence in the respondent's ability to withstand stressors relating to that relationship.

110 In this respect, I note that when the respondent was in the community on the last occasion, he was unfaithful to his partner and this, it seems was the major stress that was placed on the relationship. Despite his conduct, Ms Winter has continued the relationship. Although Dr Tanney appears to have placed some considerable emphasis on the fact that the relationship has continued, it seems to me that it has continued despite the respondent's selfdefeating behaviour and primarily because of Ms Winter's commitment, rather than his own.

111 Dr Tanney was crossexamined about his remark that the respondent's breaches of the SO did not disclose any deception on his behalf. Dr Tanney said he saw the breaches as a lost opportunity insofar as the respondent's disclosures of the breaches resulted in prosecutions and punishment, rather than an opportunity to address his disclosures of the breaches as a prosocial activity.

112 With great respect to Dr Tanney, I note that whilst the respondent's initial disclosures of contact with children resulted in him being prosecuted, he was fined and placed on a community based order, rather than imprisoned for those offences, and contravention proceedings were not taken in respect of them. It must have been plain to the respondent that the lenient penalties were imposed because he had disclosed the behaviour and given an innocent explanation for it. The opportunity was taken to impress on him the importance of compliance with the terms of the SO. Despite that, he later blatantly breached the conditions of the SO by his drug use.

113 In terms of the respondent's manageability on a SO, it is relevant to note that his counsel put to Dr Tanney, and Dr Tanney agreed, that the respondent did not experience the prosecution process as a reinforcement of his positive response, which I take to be his willingness to disclose his contact with children. If the respondent believes that disclosure of breaches of the terms of the SO, together with his innocent explanation of the breach, should be looked at as an opportunity to compliment him on his disclosure rather than to punish him for his breach, he is not a suitable candidate for release on a SO. He must appreciate that all breaches of the conditions of a SO are likely to result in a prosecution, unless they are breaches over which he had no control. If he believes that he can explain his way out of the consequences of breaching the terms of his SO, he is not suitable for release on a SO.

114 In crossexamination, Dr Tanney did not agree that the respondent had made progress with Dr Yewers whilst he was on the SO. Dr Tanney said that the first significant notation of progress being made with Dr Yewers was after the respondent was returned to custody after breaching his SO.

115 Dr Tanney agreed that the respondent was more manageable now on a SO than he would have been at the time when he was released on the original SO in 2014. He said that he could not quantify the improvement in the manageability of his risk of serious sexual offending.

116 On the other hand, Dr Tanney was not able to give an explanation for the respondent's behaviour in July 2015. At that time the respondent spoke openly in prison about his sexual offending. This resulted in other prisoners threatening him.

117 Dr Tanney acknowledged that although the respondent had used drugs whilst on the SO, he had not resorted to the use of alcohol, which is strongly correlated to his serious sexual offending, and neither had he resorted to drugs at the first sign of stress in the community.

118 In relation to his use of drugs whilst in custody, Dr Tanney acknowledged that it was situational, in that the respondent has had significant personal difficulty dealing with this period of custody. The respondent feels that he does not fit into the prison environment anymore and does not identify with the prison cohort.

119 Dr Tanney noted that the respondent had medically supervised withdrawal from methadone about six or seven months after he had been released in June 2015. Initially, he went from being prescribed methadone to Buprenorphine and he then ceased the use of that drug also. Dr Tanney said that he thought that the respondent's decision not to use methadone was because he wanted to be independent of drugs.

120 Whilst Dr Wojnarowska had supported the respondent's use of methadone as a way to regulate his emotions, Dr Wynn Owen who had also given evidence before Simmonds J, objected to its use as he thought that it simply masked the respondent's issues. In that respect, Dr Tanney thought that it was notable that the respondent had not immediately returned to illicit drug use upon ceasing his use of methadone and Buprenorphine.

121 Dr Tanney's opinion about the significance and reaction to the respondent's drug use is fashioned by what he says is the psychiatric and behavioural science approach to the treatment of substance abuse. That is, it is acknowledged that a demand for abstinence simply leads to failure for the vast majority of substance abusers. Whereas an acknowledgment that there is going to be a relapsing and remitting pattern in which over time there are fewer relapses and longer periods of remission is the goal of treating substance abuse. In that respect, Dr Tanney sees the respondent's longer periods of remission prior to relapse as being a positive sign compared to the respondent's regular alcohol and cannabis use when he was much younger.

122 Dr Tanney identified four factors relevant to the quantum of the respondent's risk of serious sexual offending. They were substance abuse, lack of a realistic relapse plan, an inability to cope with stress and the fact that he has not yet fully understood the origin of his offending behaviour.

123 In relation to his desire to talk about the origin of his offending, Dr Tanney said that previously the respondent had not been prepared to even touch on those topics, whereas now he was prepared to embark on such a conversation. Although, that was a conversation that had only just started and it would ultimately be a very longterm therapeutic process. Dr Tanney said that the respondent's relationship with Dr Yewers was very important to that process and he would not want to suggest that that would be a relationship that could be easily substituted. Dr Tanney is of the opinion that whether or not the respondent remains in custody he should continue to see Dr Yewers.

124 I also asked Dr Tanney about why the respondent would put his relationship with Ms Winter in jeopardy by being unfaithful to her. Dr Tanney said that his brief exploration with the respondent about that was that it was opportunistic. Dr Tanney said that he is a psychopath and so he will engage in risktaking behaviour. Dr Tanney said that some people who are psychopathic do mature out of their risktaking behaviour because the cost of the behaviour is not worth its benefits.

125 In respect to why he would continue to use drugs in prison, Dr Tanney's explanation was that the respondent does not think about the punitive consequences.

126 Ms Korda completed a Dangerous Sex Offender Treatment Progress Report after having spoken to the respondent on two occasions for a total of three hours. She also had ongoing consultations with Dr Yewers and had read the DCS file information, judgments and psychiatric reports relating to the respondent.

127 Ms Korda noted that since the CDO was made, the respondent has had 28 counselling sessions with Dr Yewers which have generally been an hour in duration. They occurred weekly until June 2016 and on a fortnightly basis thereafter.

128 Dr Yewers reported to Ms Korda that the respondent's presentation has continued to be variable, in that there have been occasions where his mood is reasonable and other instances when he has been irritable, dejected and/or pessimistic. Overall, he has participated in an active, appropriate and constructive manner during the psychological sessions. However, there have been some instances when his engagement deteriorated in response to destabilising circumstances, such as his transfer from Hakea Prison to Casuarina Prison in September 2016. Dr Yewers said that it was sometimes difficult to maintain continuity between sessions as they were on occasions waylaid by issues in the respondent's personal life, his mood and prison circumstances. Her intervention has focused primarily on drug use, selfresponsibility, emotional management and childhood and family issues.

129 Dr Yewers commented to Ms Korda that the respondent's drug use over the last year appeared to have been driven by shortterm gratification, which at times outweighed his consideration of the longer term consequences. His use of drugs in March and April 2016 coincided with significant stressors related to having his SO rescinded and family matters. A pessimistic and hopeless outlook regarding his future, stress and the ready availability of drugs were factors that appeared to have contributed to his drug use in late 2016 and early 2017.

130 Dr Yewers' opinion is apparently that the respondent underappreciates his risk of relapse and is overly reliant on his stated fortitude to abstain.

131 Dr Yewers had discussed with the respondent the option of restarting a methadone maintenance treatment programme. The respondent identified the possible benefits that such a treatment could have, but decided to address his drug use through counselling and his own resources. An ongoing theme of the psychological counselling had been encouraging the respondent to accept responsibility for his circumstances. Dr Yewers said that the respondent has identified the need to adopt a more active, purposeful and productive lifestyle (instead of one which is idle and directionless). He has taken steps towards this through engagement in employment, education and sport whilst in custody.

132 Dr Yewers reported that the respondent has longstanding and ongoing issues with managing his emotions. She commented that he has been experiencing considerable stress and worry about his future, which he perceives as bleak if he remains incarcerated. Dr Yewers identified these stressors to have been contributing factors to his prison drug use, as well as his sometimes pessimistic outlook.

133 Dr Yewers said that on numerous occasions the respondent had introduced discussion about his developmental experiences, which continue to impact on his functioning as an adult. Dr Yewers indicated that these issues remain, but will only become a focus of treatment attention at the respondent's request.

134 Dr Yewers advised that if the respondent remains in custody, his treatment needs as well as the focus and regularity of the psychological counselling sessions will be reassessed. She indicated that in the event that the respondent was released on a SO, the sessions would occur on a weekly basis, with an initial emphasis on drug use, order compliance and adjustment to the community.

135 Ms Korda said that the DCS' records indicate that the respondent incurred numerous adverse incident reports and offender notes between 25 March 2016 and 17 January 2017. In summary, these documented noncompliant, argumentative, confrontational and/or verbally aggressive behaviour and a negative attitude towards officers, typically in response to frustration, reprimands for his behaviour, instructions given or perceived mistreatment. The majority of the incidents occurred after his transfer to Casuarina Prison. The respondent told Ms Korda that his behaviour had been inaccurately reported or had occurred in response to provocation, targeting, unfair treatment or threats from prison officers. He stated that he would not 'back down' and let officers 'push' him around. He was reluctant to consider whether he needed to manage his behaviour better as a result of this stance.

136 Ms Korda's interviews with the respondent did not proceed smoothly. The respondent initially responded well to questions; however, he became 'guarded, abrupt and dismissive' when the questions explored his drug use in greater depth and issues related to his sexual offending. The respondent requested to terminate the first interview after an hour but he was agreeable to continuing it later.

137 At the commencement of the second interview, he provided limited information and his comments were 'coloured by a hopeless and pessimistic outlook for the future and at times he was flippant'. At the conclusion of this interview the respondent did not leave the interview room and after some minutes of silence he expressed his willingness to reengage in the interview process but only if all questions were asked again. Ms Korda told him that further questions would focus on areas that had not yet been adequately explored. Although the respondent then provided more detailed and considered responses to the topics explored, he did so with his eyes downcast and his hand on his forehead.

138 The respondent described his sessions with Dr Yewers in positive terms. He had been able to speak to her about his drug use which he found to be helpful. He had been able to discuss issues related to his upbringing which he had not been able to disclose previously.

139 The respondent said that he introduces topics for discussion into the counselling sessions and was now better able to communicate and engage at an emotional level. He indicated that he had become aware that he is stubborn and has not cared much about others in the past. He commented that he has learnt that he can be a better person if he wants to be by making better choices and choosing not to be ignorant or angry, as well as to be more aware and understanding of others. The respondent reported that he saw value in continuing the sessions and could not anticipate any future barriers to them.

140 In relation to his drug use, the respondent described initially experiencing a 'rough patch' due to the presence of numerous stressors after his reimprisonment and his realisation that he was likely to remain in custody for at least 12 months. He commented that he ceased drug use once he was in a better mental state. However, he became caught up with the wrong people and this contributed to his use of methamphetamine in late 2016. He was tempted to use by the ready availability of drugs through a cell mate. He speculated that he had deliberately been paired with this prisoner so that he would lapse into drug use.

141 The respondent denied using drugs in addition to those that were detected through random urinalysis. He believed that overall his drug use had been less frequent than in the past. He voluntarily disclosed that the preliminary test for a sample that he provided in February 2017 had produced a positive result. He denied that he had used illicit drugs and claimed that this was likely due to medication which he receives for a back injury.

142 The respondent reported that his refusals to provide samples for urinalysis were the result of medical issues associated with his diabetes and hepatitis C treatment. He said that he was not permitted to consume any breakfast prior to these tests and believed this to be necessary to manage the medical symptoms that he experienced and that as a result he refused to provide a urine sample. He denied that his behaviour had occurred in an attempt to mask ongoing drug use.

143 The respondent originally reported that his drug use functioned as an escape from reality and as a means of stress management. He later admitted that he has typically enjoyed the effects that drugs provide and he was also attracted by the fact that they were prohibited. He stated that he did not enjoy his more recent use in custody due to his concern that his drug use would be detected. He said he was aware that drug use was a shortterm solution to his problems and that these problems persisted after the drugs wore off. The respondent considered stress to be his core high risk situation for a resumption of drug use.

144 The respondent claimed to be currently 'drug free' although he was able to identify that his refusals and limited urinalysis tests since his last positive result provided little support for this stance. He reported that his goal was to remain abstinent as he would not be released from custody if he continued to use, although abstinence was not necessarily an option that he wanted to take. He indicated that his primary strategy to achieve abstinence had been to 'just say no'. He described having refused offers of drugs which were available approximately 20 times since he decided to cease use. He stated that keeping busy had likely assisted him with abstinence. He said that he was disinterested in recommencing the methadone maintenance treatment programme as he viewed this to involve the substitution of one drug with another.

145 The respondent initially displayed some reticence to consider potential high risk situations for sexual recidivism given the time since the commission of his last offences. He requested to change the subject during the initial assessment interview as he did not like the direction in which it was headed. During the second interview with Ms Korda he refused to answer questions associated with this topic due to his belief that it was pointless as he was unlikely to be released from prison. Nonetheless, he later identified an unstable lifestyle characterised by drug use, arguments, fights, immaturity, stupidity and disregard for others to have been the factors implicated in his offending behaviour. He reflected that he had changed since the commission of the sexual offences and, in particular, he had 'grown to love things rather than hating/wanting to hurt things'. He commented that he had developed a better understanding of himself, his life and the people in it and that he did not want to focus on his own needs anymore.

146 The respondent considered an accumulation of stress and his failure to communicate during his previous period of community supervision to have ultimately precipitated his drug use and consequent return to custody. He commented that prior to this he had been able to maintain abstinence from alcohol and drugs as he was happy to be free, even though he was subject to the demands of the SO. He expressed his regret regarding his reimprisonment, especially as this has prevented his attendance at family funerals and impacted on his partner. He stated that his non drug use contraventions were not deliberate and there were valid excuses for his behaviour on each occasion. Nonetheless, he identified the importance of adhering to the conditions associated with any future SO and he did not anticipate any difficulties in this regard. He commented that in particular, he intended to 'communicate' with individuals in his support network and avoid contact with children.

147 The respondent said that he would not cope if his CDO was not rescinded at this review. He considered the CDO to have been a harsh penalty that was disproportionate to his behaviour and that it had set him backwards in terms of his rehabilitation.

148 The respondent said that he would reside with his partner in her newly acquired property if released from prison. He characterised their relationship as good currently. He indicated that he was able to secure employment fixing houses with an aboriginal housing agency. He also expressed an interest in possibly completing an arts degree to facilitate the sale of his artwork in the future, as well as breeding dogs for additional income. He stated that his partner and his treating psychologist were his only sources of support in the community but he identified Outcare and his supervising CCO as other possible options.

149 Ms Korda concluded that the respondent's most significant gain since the CDO was imposed was the further development of his therapeutic relationship with Dr Yewers. His primary outstanding treatment issues related to drug use and emotional and behavioural regulation. She said that the respondent's treatment needs will continue to be managed by the DCS Forensic Psychology Service, although the focus and regulatory of any intervention will depend on whether the respondent remains in custody or is released to the community.

150 Ms Korda said that the respondent impressed as having limited understanding of high risk factors for a resumption of drug use, other than stress and availability. He identified few strategies to prevent relapse into drug use other than saying no. He believed that his resolve to abstain from drug use in order to achieve release was adequate.

151 Ms Korda noted that despite this resolve, the respondent had been unable to maintain abstinence and he thus underestimates his risk of lapse and relapse. She said that overall the respondent impressed as ambivalent about ceasing his use of drugs and this had been a longstanding feature of his presentation. She noted that he had made some progress in discussing issues of concern and relevance to his use with Dr Yewers.

152 Ms Korda said that in some domains the respondent appears to be accepting greater responsibility for his current situation and future. However, she said he also demonstrates difficulty inhibiting problematic responses, which is reflected in his adverse interactions with authority figures (for which he justifies and externalises blame) and ongoing drug use, despite the consequences.

153 In relation to his sexual offending behaviour, the respondent demonstrated insight into past contributing factors but was unable to present a comprehensive relapse prevention plan. She acknowledged that this was influenced by his belief that he was not at risk of reoffending. She also noted that a relapse prevention plan had not been an issue addressed in recent counselling sessions due to other more pressing, riskrelevant treatment issues.

154 In her evidence, Ms Korda said that if the CDO was not rescinded, Dr Yewers would continue to see the respondent on a fortnightly basis. Although, I had the impression from an earlier answer that the frequency of their meetings may change.

155 On questioning from me, Ms Korda detailed the drug rehabilitation programmes that were available in prison. However, she said that she was not recommending that the respondent undergo anymore of these courses. She said that, in consultation with Dr Yewers, the respondent may be able to access some of them if it was thought appropriate.

156 I am satisfied on the basis of a consideration of the respondent's background and Dr Tanney's evidence that the respondent remains a serious danger to the community. I take into account Dr Tanney's view about the decrease in this risk and the respondent's increased manageability. However, as Dr Tanney himself acknowledged, those changes are not sufficient. There remains an unacceptable risk that if the respondent was not subject to a CDO or a SO he would commit a serious sexual offence. His history of serious sexual offending whilst under the influence of alcohol and cannabis, his inability to regulate his emotions, his psychopathy, his continued use of illicit substances, and his lack of a welldeveloped relapse prevention plan are the reasons I have come to this decision.

157 Having come to this view, the next and final decision for me is whether I should affirm the CDO or rescind it and make a SO. In answering this question, I must apply the statutory principle that the paramount consideration is the need to ensure adequate protection of the community.

158 Dr Tanney is of the view that the respondent's risk can be adequately managed on a strict SO for a period of 10 years. His view is primarily based on the improvements that he has seen in the respondent over a number of years, the positive relationship which the respondent has with Dr Yewers, and the stability provided by the respondent's relationship with Ms Winter.

159 I also find that Dr Tanney's view is very much influenced by what he regards as the optimal approach to the respondent's ongoing drug use. Dr Tanney is of the view that rather than expect the respondent to be abstinent from drug use, it is more realistic to expect a cycle of relapse and remission with longer periods of remission.

160 It is in this latter regard that I respectfully am unable to accept Dr Tanney's view. Dr Tanney, the other psychiatrists who have examined the respondent for the purpose of other proceedings under the Act and the judges who have determined those proceedings have been at one in finding that the respondent's serious sexual offending has been correlated to alcohol and cannabis abuse. They have further been at one in their view that in order to reduce the respondent's risk of serious sexual offending, it is important that he not use those substances or other illicit substances that are likely to increase his risktaking behaviour. Such other substances would include amphetamines. I do not agree with Dr Tanney that the respondent will not sexually reoffend the first time he uses such substances. As Dr Wojnarowska said, it would depend upon the dose and all of the circumstances. It would not be adherent to the statutory requirement that the paramount consideration is the need to ensure adequate protection of the community to release the respondent on a SO in the belief that he will, or is likely to, relapse into illicit substance use. Thus, I am not prepared to release the respondent on a SO without being confident that he can and would abstain from alcohol and/or illicit substances.

161 That then brings into sharp focus the respondent's history of drug use whilst in custody over the last 12 months.

162 Even though the respondent knows that it is illegal to use illicit substances in prison and even though he knows that he is jeopardising his chances of release on a SO by the use of illicit substances, he has used such substances on at least four occasions. The latest occasion was in February of this year and in the knowledge that this review was occurring shortly thereafter.

163 In these circumstances, I have no faith that the respondent can remain illicit substance free in the community. I therefore cannot be satisfied that the community can be adequately protected by a SO.

164 I have not come to this decision lightly, given the improvements that have been noted in some aspects of the respondent's behaviour. In coming to this view, I have taken into account that given the respondent's sexual and violent offending history, the risk to potential victims is severe. If the respondent was to reoffend, it would likely be against a female of any age who was, opportunistically, available to him. The offending would likely include significant violence.

165 Further, whilst some improvements have been noted in the respondent's behaviour and attitude, other aspects of his behaviour, like his continuing illicit drug use and his oppositional behaviour to authority figures in prison, shows that his psychopathy is still present.

166 The respondent is likely to be affected by alcohol and/or illicit substances when he reoffends. Although there may be frequent testing of him for these substances whilst he is in the community, he only has to be sufficiently affected once whilst emotionally dysregulated for him to reoffend.

167 The respondent has breached parole and his SO in the past. He is well aware that there are sanctions imposed on him for breaches of community based orders. Nevertheless, these sanctions have not resulted in him complying with the conditions of the orders.

168 Whilst the respondent's relationship with Ms Winter is a protective factor, given his infidelity whilst on the SO, it is by no means clear to me that he is capable of the behaviour necessary to ensure that it continues.

169 I am aware that prior to Simmonds J's decision, the respondent managed to remain illicit drug free substantially for a period of time whilst in custody. This period of abstinence did not ensure compliance with the conditions of his SO. However, in my view, it is necessary for the respondent to show that once again, he is capable of such abstinence before being released into the community.

170 Given the amendments to the Act, a routine review of the CDO will not occur for another two years.

171 In the meantime, I encourage the respondent to continue with his counselling with Ms Yewers and to continue to make every attempt to show that he is able to be trusted to remain illicit substance free in prison or in the community.

172 Accordingly, I expressly decline to rescind the respondent's CDO.

[1] Until amendments which came into force in September 2016, periodic reviews were required to be held annually.

[2] In summarising Dr Tanney's evidence about these tools, I will assume the reader has a degree of background knowledge about them as this was assumed by the parties.

[3] The score would be the same on the Static99.