MATTER : Dangerous Sexual Offenders Act 2006 (WA)

BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Dangerous sexual offender - Repeated breach of supervision order - Whether detention or supervision appropriate - What standard of satisfaction required

Dangerous Sexual Offenders Act 2006 (WA), s 23

Judgment of conviction entered following pleas of guilty

Judgment of acquittal entered in respect of charge No PE 13160/13

1 The respondent is a dangerous sexual offender: DPP v Brown [2010] WASC 405. Since the declaration the respondent has been reviewed on a number of occasions as required under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). One decision led to an appeal: DPP v Brown [2012] WASCA 102.

2 On 1 August 2012 I made a supervision order: DPP v Brown [No 5] [2012] WASC 276. Through counselling the respondent had been addressing some of the factors which led to his previous offending. He had voluntarily commenced a course of antilibidinal medication. Counsel for the DPP aptly described the respondent as a 'work in progress'.

3 The supervision order was very detailed. It contained 45 conditions, and was to run for eight years:

The respondent is at risk of relapsing into sexual offending behaviour. I have concluded that the risk to the community can be adequately managed by a strict supervision order. However, if the terms of that order are to be relaxed in the future, the respondent must demonstrate that his continuing progress towards rehabilitation justifies relaxation of the terms [28].

4 The respondent signed the supervision order when the terms were carefully explained to him. Mr Christopher Morton is a senior Community Corrections Officer employed by the Department of Corrective Services. He was involved in the case management of the respondent to ensure compliance with the supervision order. During the period of supervision, Mr Morton consistently reaffirmed the relevant conditions of the order to the respondent. The respondent has contravened the terms of the supervision order. He has also committed criminal offences by breaching the order.

5 For the first few months the respondent was compliant with the order and behaved well. However, in the four to six weeks before he was arrested and remanded in custody his motivation waned.

6 The DPP wants the supervision order cancelled and the respondent detained in custody. The respondent wants another chance at supervision. His breaches are extensive and mostly serious. The risk to the community is unacceptable if he is released on supervision. He will be detained in custody for care, control and treatment. This is why.

7 Some of the contraventions, and the breach to which the respondent pleaded not guilty, relate to interchanges with a woman and her daughter. The nature of the relationship is in issue. There is no good purpose in naming her as it is not suggested she knew the respondent's status or that he was on a supervision order. I will refer to her as IJ and to her daughter as LN.

The consequences of a breach of a supervision order

8 There are two consequences to breaching a supervision order. Different standards of proof apply to each. A person who, without reasonable excuse, contravenes a requirement of the order commits an offence, punishable by imprisonment for two years: DSO Act s 40A

9 The DPP can also apply to bring a declared offender back before the court for either the supervision order to be amended or, if necessary, to have the person detained for care, control or treatment: DSO Act s 22.

10 The criminal offence, breaching a supervision order under the DSO Act s 40A, is dealt with summarily to a standard of proof beyond reasonable doubt.

11 Proof of a contravention of a supervision order is established if the court is satisfied on the balance of probabilities: DSO Act s 23.

12 Ultimately, the respondent was charged with 12 offences. On 3 and 4 April 2013 he pleaded guilty to 10 offences and not guilty to one offence. On 11 April he pleaded guilty to the final offence. I regard all pleas as having been made at the first reasonable opportunity. The charges, material facts alleged by the DPP and the order contravened are set out. The respondent disputes some facts:

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by breaching his curfew, Condition 21.

On 26 October 2012 the respondent contravened curfew Condition 21 by leaving his residence between 6.26 and 6.37 am.

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by having contact with any child under the age of 16 years, Condition 39.

On or about 1 December 2012 the respondent had contact with the three grandchildren of IJ, being a girl aged 3, and two boys aged 3 and 18 months. This contact was not authorised in advance by his CCO nor supervised by a person approved in advance by a CCO (there being no such person), and was thus in contravention of Condition 39.

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by not providing details of any contact with a child under the age of 16 years both to the CCO and to the police, Condition 41.

The respondent failed, on 5 December 2012 or at any time until he was interviewed by police on 1 March 2013, to disclose the above contact with children either to his CCO or to the police, contrary to Condition 41.

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by breaching his curfew, Condition 21.

On 8 December 2012 the respondent contravened curfew Condition 21 by failing to return to his residence until 7.20 pm.

On 10 December 2012 the respondent stated that the reason for the above contravention was due to a service disruption on the train line. The respondent knew this to be false. The respondent repeated the falsity to police in his interview on 1 March 2013. The respondent disputes that he lied about the contravention.

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by failing to comply with requirements of all programs, including oneonone counselling, as directed by a CCO, Condition 8.

On 20 December 2012 the respondent failed to attend a psychological appointment with his psychologist Mr Summerton, thereby contravening Condition 8. On 20 December 2012 the respondent provided conflicting explanations for the above contravention to Mr Summerton and Mr Morton, one of which explanations was necessarily given knowing it to be false.

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by having contact with any child under the age of 16 years, Condition 39.

On or about 25 December 2012 the respondent had contact with four girl children, two of primary and two of secondary school age, including painting and drawing with them. This contact was not authorised in advance by his CCO nor supervised by a person approved in advance by a CCO (there being no such person).

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by not providing details of any contact with a child under the age of 16 years both to the CCO and to the Police on the next occasion he reports to that person or agency, Condition 41.

The respondent failed to disclose the above contact with children either to his CCO or to the police on the next occasion he met with each agency.

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by failing to comply with requirements of programs, including oneonone counselling, as directed by a CCO, Condition 8.

On 14 February 2013 the respondent failed to attend a psychological appointment with his psychologist Mr Summerton, thereby contravening Condition 8.

On 14 February 2013 the respondent provided a false explanation for the above contravention directly to Mr Morton (stating that he had had to assist an elderly person obtain medical treatment), and completed a false diary entry to the same effect, but then admitted that this explanation was false and that he had simply overslept.

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by breaching the terms of the curfew.

On 3 March 2013, the respondent contravened curfew Condition 21 by failing to return to his residence until attempting to return at 9.25 pm whereupon he was met by police.

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by consuming alcohol.

On 3 March 2013, the respondent consumed a significant amount of alcohol, sufficient to make him visibly intoxicated at 9.25 pm and for his blood alcohol at 10.09 pm to be 0.136 grams. This conduct was in contravention of Condition 36 of the order.

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by consuming cannabis, Condition 31.

On 5 March 2013 the respondent consumed cannabis in a significant quantity such as to be visually intoxicated. This conduct was in contravention of Condition 31 of the order. On 8 March 2013, whilst in custody, the respondent provided a sample of urine for analysis, which was reported as positive for cannabis on 15 March 2013. On 27 March 2013 the respondent admitted to police that he had consumed four cones of cannabis on the morning of 5 March 2013.

13 By his pleas of guilty, the respondent admitted not only the summary offences under the DSO Act s 40A but also contravention of the supervision order enlivening the power for the court to make orders under the DSO Act s 23.

14 On 3 April 2013 the respondent also admitted breaching the supervision order in the following respect:

On a date unknown in mid-December 2012 the respondent consumed cannabis in a 'joint' shared with others. That conduct was a contravention of Conditions 31 and 35 of his order. On 27 March 013 the respondent confessed this otherwise undetected conduct to police. This contravention is admitted.

15 On 3 April 2013 the respondent pleaded not guilty to one charge:

Being subject to a supervision order, without reasonable excuse, contravened a requirement of the order by commencing an intimate relationship and not making full disclosure regarding his past offending and the current order to that person, Condition 38.

On a date unknown between 1 November 2012 and 1 December 2012 the respondent commenced an intimate relationship with [IJ], then aged 41. Between that date and 20 February 2013 (when CCO Morton made contact with [IJ] and made the disclosures) the respondent failed to make full disclosure to [IJ] regarding his past offending and the current order, contrary to Condition 38.

Make full disclosure regarding his past offending and the current order to anyone with whom he commences a domestic, romantic, sexual or otherwise intimate relationship which disclosure can be confirmed by the CCO and police officer;

Following the establishment of the relationship with IJ between 1 November and 1 December 2012, the respondent did not disclose the existence of the relationship with IJ to his CCO at all until challenged by the CCO (on the basis of photographic evidence received by the CCO) on 5 February 2013, at which time he disclosed that it was a friendship relationship. On 15 February 2013, the respondent admitted to his CCO that the relationship was an intimate relationship. The failure to disclose the relationship to his CCO may or may not constitute a contravention of Condition 42 (dependent upon whether IJ is held to have children in her care 'part-time'). The respondent denies the relationship was intimate. This contravention is denied.

19 These contraventions are disputed by the respondent. The prosecution must prove the elements of the offence beyond reasonable doubt. The DPP must prove the associated alleged contraventions on the balance of probabilities.

The evidence led by the DPP in support of the prosecution and the contraventions

20 The prosecution tendered a number of witness statements by consent. In addition, the prosecution adduced evidence from Mr Morton. The prosecution called IJ and LN. The prosecution tendered an EROI with the respondent on 1 March 2013.

21 Mr Morton gave evidence by way of a statement tendered as an exhibit and was crossexamined.

1. During a supervision appointment on 5th February 2013 the Respondent was asked to present his diary for inspection. Earlier in the day an email was received from the Sex Offender Management Squad showing a photograph of the Respondent in company with an adult female on Hay Street, Perth.
2. Upon perusing the diary, I advised the Respondent that the diary entry of 5th February 2013 was incomplete. The Respondent admitted that he wilfully neglected to document his association with a female acquaintance, who he identified as [IJ], describing her as his friend.
3. During a supervision appointment on 14th February 2013 the Respondent was asked to present his diary for inspection. He had earlier failed to attend a psychological counselling appointment, and recorded in his diary: 'went & seen Pop if he was alright', which he used as an excuse for his non attendance. This was deemed to be a false diary entry after the Respondent admitted he had simply slept in and was running late.

1. Condition 42 of the Order requires that the Respondent Report immediately to his CCO the formation of any domestic, romantic, sexual or otherwise intimate relationship by him with a person who has children under the age of 16 years in their care either full time or part time.
2. On 5th February 2013 I interviewed the Respondent during a supervision appointment. The Respondent disclosed that he had known [IJ] on a friendship basis for approximately two months. He denied that he was involved with [IJ] romantically, sexually or intimately.
3. On 15th February 2013 I observed the Respondent loitering in the Fremantle Court foyer area. I approached the Respondent and asked what he was doing. The Respondent disclosed that he was providing [IJ] with 'support' while she attended Court for an assault charge. The Respondent admitted that he was having an intimate relationship with [IJ].

1. On 19th February 2013 the Respondent attended supervision as directed, but [IJ] was not in company with him. The Respondent claimed that the relationship with [IJ] ended when he disclosed details of his offending to her during the evening of 15th February 2013. He admitted that he had been in an intimate relationship with [IJ] for approximately three weeks.

22 In evidenceinchief on 3 April 2013 Mr Morton was asked:

Now I'm looking at the period of time up to 19 February 2013. So if I could ask you again to what extent, if at all, was there communication in whatever form between you and Mr Brown about contact with a Ms [IJ]?That would have been on 5 February 2013. Prior to meeting up with Mr Brown, I received an email from the Sex Offender Management Squad. And it had a photograph containing an image of Mr Brown in company with a female in Perth city. When Mr Brown attended for supervision later that day, I asked him to present his diary to me so I could ascertain his movements and associations for the day. And written - written in his diary was nothing about him spending time with an adult female in Perth city that I could see in the diary. So I suggested to him that the diary entry was incomplete. And it was at that point that he disclosed his association with [IJ] to me.

Okay. In relation to that association, what if anything did you say to him at that time?I - I suggested to him that he wasn't disclosing a relationship with [IJ] at that point, and I asked him what was the nature of the relationship. And he indicated to me at that point that it was a friendship only, and that they'd been friends for several weeks.

And apart from that, was there any - did you say anything else to him about his obligations and relationships?I reiterated the obligation on the order, which states that all movements and associations have to be diarised, and also that he has to disclose any intimate/romantic relationship to his community corrections officer. And I suggested to him that he had failed to do that. Had I not received the information from the Sex Offender Management Squad, I would not have known that he was associating with [IJ] (ts 244 245).

23 In crossexamination Mr Morton was taken to his case notes and on 5 February 2013, had written:

He [the respondent] denied they are intimate. He said that [IJ] was one of his friends that he had met in the Fremantle area (ts 255).

24 Mr Morton said the denial that they were intimate was from a direct question:

In fact, I probably would have said, 'Are you having a romantic, sexual or intimate relationship with [IJ]?' (ts 256).

25 On 15 February 2013, Mr Morton saw the respondent loitering around the Fremantle Court and asked him why he was there:

Yes. Isn't it the case that your question was along these lines, 'This sounds more like an intimate relationship, don't you think, Alwyn?' Would that sound like a way that you would put a question?It would be - it would have been worded along those lines. It was - it was a closed question that I asked him because I suspected at that point - when you show up to a court appearance for a - a female friend, it seemed to me - I had a hunch that it was a lot more than a friendship. And so I put it to him, 'This seems like it's a lot more than a friendship. I think you're having an intimate relationship with this woman. Is that correct?' And he nodded in agreement to that. And I think at that point, that's when I instructed him that disclosure needed to be - to be made to her, which is written in the court order as well about disclosure for anyone with whom he's having a relationship, and that I needed to be able to confirm that disclosure. So I stated that he needed to bring her - obviously mindful of the fact that she doesn't have to attend if she doesn't want to, but he needed to bring her to the subsequent supervision appointment on 19 February 2013 so that full disclosure could be made and verified (258).

26 Mr Morton was taken to his case notes of this event which read:

Proposed to Brown that the relationship with [IJ] is more than a friendship.

Yes. So your case note doesn't use the word 'intimate'?No. Again, I probably just need to emphasise case notes don't necessarily reflect word for word what was discussed. They are - they give you - they - they give us a - a general context of what occurred. But word for word, unless we take an auditory recording, it's - it hasn't been - I haven't quoted him anywhere in there, as you can see. So what I've done is I've written a more summarised

Yes? - - - abridged version of what was discussed.

So do you know now with any certainty whether you used the words - or the term 'more than a friendship', or whether you used the term 'intimate relationship'?I think I might have used both.

And I think you've commented there:

Is that right?He did. So that's what underpins your evidence at paragraph 35:

The respondent admitted he was having an intimidate relationship with [IJ].

Is that correct?Yes.

Okay. I'm going to put it to you, Mr Morton, that, in fact, Mr Brown did not nod in agreement?No, it was a clear - it was a clear agreement, in my view. He clearly agreed to the statement that I made. There was no ambiguity whatsoever. He didn't say - he - he didn't deny it. He actually nodded in agreement (ts 259 - 260).

27 Mr Morton said that he did not know for sure if there was an intimate relationship which is why he asked the respondent to bring IJ in for a meeting on 19 February:

Again, he didn't use that word 'intimate relationship', did he?Well, when I write that obviously he's admitted to it, based on the questions I've put to him.

So the - it's your words, not his?'Intimate' is - yeah, it was never his word.

Yes. Because isn't it the case that what he actually says to you, 'Look, it's - we've got a friendship'?No, it was - but the - the different ways I - I ask the question is, 'Are you having a intimate relationship with [IJ]?'.

Yes. Did you ever come out and just say, 'Have you had sex with her'?Mr Summerton did.

No, I'm asking if you did?I'm just trying to think. I can't recall. I genuinely can't recall if I did or not. I focused more on whether or not they were a partner. I don't believe I ever asked if he'd had sex with her.

Okay. And isn't it the case that rather than saying, 'Look, I admit I've been in an intimate relationship for the last three weeks', what he said to you was, 'Look, I've been seeing more of her over the last three weeks'?No, it was a lot more than that. It was very clear to me, based on his disclosure - well, let's put it this way. He admitted that he'd been lying about the relationship, repeatedly. And when I then asked him a series of questions about the nature of that relationship, he made it very clear to me that they were having a - they were - they were partners or were intimate. So in my mind it was very clear. There was no ambiguity about it at all.

Well, what was the word that he said that made it clear to you that it was a partner or intimate?By asking him the direct question.

Yes. Which prompts a yes or no answer, doesn't it?Yes. Yeah.

So your word is, 'Are you having an intimate relationship?' and you say he says, 'Yes'?For the past three weeks (ts 262 - 263).

28 On 1 March 2013 the respondent was interviewed by police. He was not under arrest and was interviewed voluntarily.

1. Okay. All right. Okay. Taking one month backwards. We're now getting into a bit more of the crux of the thing. Early November 2012, ah, you've later disclosed to your CCO, ah, more recently that you actually in, in November entered into a relationship of a, an intimate, sexual friendly relationship with a female by the names of - by the name of [IJ].
2. Yeah.
3. Ah, you've met after being introduced by mutual friends, in, in, in Fremantle.
4. Yeah.
5. Did you report this relationship to, to police or CCO?
6. No, not at the time, no.
7. Do you remember why you didn't tell, tell your CCO or
8. I didn't think it was - I thought it was just sex.
9. Okay.
10. Just sex, you know, just - I didn't think it would last.
11. Okay. Are you still in that relationship now?
12. I am (EROI 10).

30 During the EROI the respondent admitted he did not disclose his full offending to IJ. About a month after he met IJ he was introduced to her daughter LN who has a young child. Her sister living in the house has two other children aged 2 or 3, or 2 or 4. The respondent visited the women and children six to eight times. He agreed there was something in his order which tells him in that situation he should leave:

Yeah, a couple of times. That's when I've gone up and gone out for a cigarette (EROI 13).

31 The respondent described the relationship with IJ as starting in November 2012 when they first met. They met again the next day. The relationship moved into a sexual relationship after about two weeks. He did not tell Mr Morton and the reason was:

Ah, just scared to, ah, um, that I might lose her. Yeah, that was, that was pretty hard (EROI 16).

[I] didn't want her to know about my past back, ah, at that point.

And I was frightened that you guys might've, um - or the CCO might've just went and picked her up and told her (EROI 17).

33 On 17 February 2013 at around 11.30 the respondent said he went to LN's home to deliver some money to her. He went by himself because they needed money for the kids and he did not like to see kids going without food.

34 The respondent was questioned about meeting a former prisoner named Unc with whom he had become friendly in gaol. He said he did not know the nature of Unc's crimes other than assault.

35 He was questioned as to why he did not raise his associations with Unc with his Community Corrections Officer. He said that he did not want to look incompetent and rarely asks someone for help.

36 He admitted he was bullshitting about why he was late to see Mr Summerton explaining:

It just comes automatically. I just - I feel like bullshitting to him anyway, you know, like, just I told him what was (indistinct) now. Sometimes I feel like just telling him bullshit just to get you off my back and get the fuck out of there because I don't want to spend any time with - like, like .

...

Yeah, that's - well, that's what I'm doing now for - like turning a new leaf and stop all the bullshit (EROI 33).

37 He described a Christmas party he attended where there were four children under the age of 16. The respondent did not drink during the course of the party. He drew pictures for the children.

38 The respondent admitted that he did not disclose his background to IJ (EROI 16 17). He told Mr Morton the relationship with IJ ended when he disclosed details of his offending to her during the evening of 15 February 2013.

39 IJ gave evidence she met the respondent in December 2012. It was in Fremantle near Coles. As to her relationship with the respondent, she said:

Kept me in line most of the time ... I'm a drinker. I'm a heavy drinker. ... I used to injure myself, you know, get into fights. ....He would just tell me to slow down on the drink ... By looking after me and told me to slow down on drinking and just kept me away from places where I used to get into trouble. ... Tried to, anyhow (ts 470 471).

40 She 'kind of' agreed she was not attracted to him but wanted to keep him as a friend. She has a lot of friends. At no stage in evidence was IJ asked whether he relationship with the respondent was intimate or sexual.

41 IJ gave evidence that she went with the respondent to a house in Redcliffe for a Christmas party. She started drinking. She had arrived in the morning with the respondent. Present at the house were a number of adults and children. IJ started drinking although the respondent did not drink. There were four girls present until late in the evening. The group sat in a circle, yarning. The respondent showed pictures of some of his paintings to the group, including the children who were part of the group.

42 LN's daughter loves Dora the Explorer. The respondent visited LN's house in Mosman Park with IJ. IJ's other daughter, living in the house, asked the respondent if he could do a painting of Dora, which he did, and gave it to LN.

43 There was an occasion when LN and her sister were short of money. IJ was too sick to deliver the money herself so she sent the respondent. It was IJ's money (ts 471).

44 LN is the daughter of IJ and is the mother of a 3yearold daughter. At all relevant times she was living in Mosman Park. LN was very vague on dates. For example, she remembered the respondent dropping money off but was unsure when. When the money was delivered she was home with her sister and the children and was given about $30 to $40 for food for the kids. Her mum sent it over. The respondent was just there for a couple of minutes to give the money.

45 The respondent came to LN's house with IJ after Christmas. LN's very young daughter loves Dora the Explorer. On one occasion he brought around the painting of Dora the Explorer. The children were all there. He arrived before lunch with IJ.

46 They stayed probably only like 20 to 30 minutes. At no time was a child left with the respondent.

47 The respondent rang LN about four or five times. The conversations were brief. There was a message to pass on to IJ or he asked where she was.

48 The issue is whether the respondent had commenced an intimate relationship. That is the relationship particularised in the details of the alleged offence.

49 The respondent left Mr Morton the clear impression, indeed in Mr Morton's words 'the clear agreement that he was in an intimate relationship with IJ'. The respondent told the police it was a relationship just for sex. An intimate relationship implies more than a casual encounter and is a matter of degree. Having regard to the whole of the evidence, including that of IJ, I am not satisfied beyond reasonable doubt that the respondent was in an intimate relationship. There was certainly an acquaintanceship and probably an occasion of sex but I am not satisfied that a relationship has been proved beyond reasonable doubt to be one characterised as 'intimate' in the supervision order triggering a disclosure requirement.

50 I find the respondent not guilty of charge PE 13160/13. I enter judgment of acquittal.

51 I do not consider the failure to disclose the relationship is a separate contravention under Condition 42 for another reason. There is no evidence that IJ had children under the age of 16 years in her care either full time or part time. The evidence is that LN's children lived with her in a place different from IJ's residence.

Other contraventions in dispute: Failure to keep a diary

However, prior to 5 February 2013, the respondent deliberately chose not to record any of his contact with IJ in his diary (required by condition 25). The failure to record the extensive contact with IJ incidental upon the relationship was a contravention of the diary condition requiring him to record activities and associations (Condition 25).

Maintain a daily diary of his movements, activities and associations as directed by the CCO and present this diary to the CCO upon request;

53 Ms Barone argues there is no evidence of a direction given under Condition 25 by a CCO therefore the contravention is not proved. There is no direct evidence of a direction to keep a diary. However, the inference that a diary was required is overwhelming and certainly more probable than not. Mr Morton's evidence (at ts 27 29 already quoted), indicates that the respondent was, to his knowledge, required to keep a diary.

54 I am satisfied that the respondent contravened Condition 25 and that he did so deliberately as part of a wider plan to conceal the existence of IJ from Mr Morton.

Charges 13161 and 13162, (and charges 13165 and 13166), appear to be representative charges with respect to unauthorised child contact. It is alleged that the respondent had unauthorised and unreported contact with some or all of the three grandchildren of IJ, (being a girl aged 3, and two boys aged 3 and 18 months) on approximately 19 other occasions whilst in the company of IJ, and that each occasion constituted a contravention of condition 39, and the failure to report it a contravention of Condition 41. The respondent denies this contravention.

55 While the evidence does not establish the respondent was ever alone with any child, there are clear contraventions of Condition 39 and Condition 41:

1. Have no contact with any child under the age of 16 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
   1. the contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or
   2. 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.
2. Provide details of any contact with a child under the age of 16 years both to the CCO and to the Police on the next occasion he reports to that person or agency;

56 There is no evidence the respondent had contact with children on approximately 19 occasions. The evidence, which comes from the first EROI is that he visited the women and children six to eight times. To that may be added Christmas Day. The evidence of IJ and LN as to visits was vague and unreliable. On the occasions to which he has admitted, the respondent should not have had any contact. He certainly should have reported the contact as soon as possible.

57 The respondent pleaded guilty to the charge of breaching curfew but denies he gave a false explanation about it when he told Mr Morton there was a service disruption on the train line on 8 December 2012.

58 The Transit Manager, Public Transport Authority, reviewed the reporting system between the times of 5.00 and 7.30 pm and identified there were no delays on the Armadale and Thornlie line between those times. There is no contrary evidence.

59 For the purpose of sentencing I am satisfied beyond reasonable doubt that the explanation is false. The respondent was trying to keep his relationship with IJ secret. The incomplete diary entry attests to that. The reason he breached curfew is that he was visiting IJ.

60 When a person is declared a dangerous sexual offender the least restrictive alternative should be chosen, if it is possible to do so conformably with the protection of the community: The State of Western Australia v Latimer [2006] WASC 235 [22], [49].

61 The DSO Act does not require every declared offender to be detained in custody. A declared offender has served a term of imprisonment and has been punished for the past behaviour. A person so declared is not being detained as punishment for any crime but because of an unacceptable risk that they may commit a serious sexual offence.

62 The decision to make a declaration is an exercise in prediction not an exercise in establishing the facts of a past event. A prediction as to future behaviour is less certain than proof of past action.

63 The DSO Act makes the paramount consideration adequate, not absolute, protection of the community. So, provided the protection of the community is adequate, a supervision order should be imposed.

64 In order to maintain adequate protection, it is likely that a supervision order will contain many conditions that severely restrict the decisions and freedoms of the declared offender. The respondent, for example, was subject to 45 conditions.

65 A declared offender will almost inevitably have spent a long time in prison. Except for a short break, the respondent has been in custody since August 1999. An offender will need mentoring and assistance to rejoin the modern world. Some need to be taught basic life skills, such how to use an ATM, or catch public transport with a smart rider. The respondent has had the assistance of a mentor and it is likely most declared offenders will need considerable assistance in readjusting to life in society. Unless structured assistance is accepted by the State as its obligation to a declared offender on supervision the court's order may be frustrated.

66 The Department of Corrective Services therefore, through its Community Corrections Office, has responsibility not only to supervise the declared offender as to the terms of the supervision order but also to assist the offender's reintegration into the community. Supervision is not solely the responsibility of Community Justice. Police, especially the Sex Offender Management Squad, are also active.

In the course of my employment I am involved in the case management of the Respondent is to ensure compliance in relation to the Order.

The case management techniques I employ includes planning strategies to reduce high risk behaviour, abstinence from all illicit substances as well as alcohol, and developing pro social networks and activities.

In order to achieve this I meet with the Respondent during twice weekly structured supervision sessions.

68 I am satisfied that Mr Morton properly supervised the respondent and also provided practical assistance.

69 Supervision orders are crafted to give a series of yellow or red warning lights when a declared offender is experiencing difficulties complying with the order. The extent of supervision, as evident in this case, means that active steps can generally be taken well before there is serious danger to the community.

70 A yellow light suggests there are some difficulties in complying with the restrictions of the supervision order. Compliance is difficult and contraventions do not necessarily mean an offender's risk profile is rising. These can often be managed by the case officer or through the court reaffirming the nature of the order.

71 A red light warning indicates a contravention that does increase the offender's risk profile. Immediate and firm steps, as done here, need to be taken to bring the offender back to court.

72 Some breaches of curfew by the respondent are more in the nature of yellow light warnings. One was not very serious - nipping out for a packet of smokes.

73 Another breach of curfew, being late home by 20 minutes, was objectively not major. However, viewed in context of the reason for the lateness and the subsequent lies told, it is a significant yellow light warning that the respondent was not complying with the intent of supervision.

74 The third breach of curfew was more than two hours, due to the respondent getting drunk and getting into a fight. This is a different order and is a red light warning.

75 Failure to attend appointments with a counsellor, in this case Mr Summerton, the psychologist, is a yellow light warning.

76 Drinking alcohol and smoking pot are clear behaviours that elevate the respondent's risk profile in view of the nature of his earlier offending. They may be yellow light warnings in some cases, but here, combined with deceptive behaviour, the resumption of alcohol and cannabis use, are red light warnings.

77 Being deceptive about his relationship with IJ, is a clear red light.

78 Most serious, however, and a clear red light warning, is the contravention of conditions designed to prevent high risk situations by having contact with children and failing to immediately report such contact. The respondent's past offences include child victims. The respondent's failure to report is either due to deception or to a lack of insight into risk scenarios. Either explanation indicates he is a high risk unless detained.

Detention or supervision: The standard of satisfaction required

79 The power to make an order arises under the DSO Act s 23:

(1) If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may -

(a) make an order amending the conditions of the supervision order and, if the court considers it appropriate in order to achieve compliance with the supervision order or necessary in order to ensure adequate protection of the community, make any other order; or

(b) if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care, or treatment.

(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

80 Ms Barone argues that before I can order that the respondent be detained in custody I am to be satisfied by acceptable and cogent evidence to a high degree of probability.

81 In s 23(1) the standard of satisfaction is on the balance of probabilities. Section 23(1)(b) requires the court to be 'also satisfied'.

82 The DSO Act s 7 sets out the onus of satisfaction that a person is a serious danger to the community:

(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.

(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -

83 A judge exercising power under s 23 is necessarily doing so after a court has concluded that the person is a serious danger to the community; that is, there is an unacceptable risk that if the person was not subject to a detention or supervision order the person would commit a serious sexual offence. Furthermore, a court has also concluded that the community can be adequately protected by a supervision order.

84 The DSO Act s 7(2) refers only to the satisfaction necessary in s 7(1). It does not apply that standard beyond s 7.

85 It makes no sense and would strain the language of s 23(1)(b) to import the test in s 7(2).

86 The satisfaction required in s 23(1)(b) is satisfaction on the balance of probabilities.

87 In summary, depending on the circumstances, a court administering the DSO Act may apply one of three standards of proof:

• beyond reasonable doubt;
• high degree of probability;
• balance of probabilities.

88 However, that is by way of an aside to assist those responsible for administering the DSO Act because, in the present case, I am in fact persuaded to a high degree of probability that a detention order at this stage is the only way to ensure adequate protection of the community.

89 In reaching that conclusion I note and take account of the fact that the respondent was voluntarily taking Andracour an antilibidinal mediation and had reported a drop in sexual fantasies. It is a matter of concern that following his return to custody, the administration of Andracour was discontinued by Corrective Services. This medication should be recommenced. It has a positive effect.

90 Moreover, apart from two missed appointments, the respondent has had regular counselling sessions with Mr Summerton.

91 As against these positive aspects, there have been repeated breaches of the order including multiple contact with children against a background of nonreporting and deceptive behaviour; contravention of the curfew and resumption of alcohol and cannabis use. Although I have not been satisfied that the respondent contravened a condition of the supervision order by entering into an intimate relationship, in assessing risk the conduct of the respondent in respect of that matter is important. The respondent did not just fail to disclose the contact with IJ because he did not consider it was a breach of the contravention order (EROI 'I thought it was just sex') but in part because he does not trust police or the CCO or authority. He lies.

92 After Mr Morton put to the respondent that he had been wilfully lying about his movements, associations, relationships and access to children, the respondent stated, 'I've lied out of fear' which he clarified was fear of his case manager. He said, 'I'm scared of you'.

93 He told Mr Morton that he was scared of the consequences so that lying snowballed and became automatic. There is little to suggest he has changed his attitude despite his protestations on the first EROI that he is turning over a new leaf.

94 The respondent is a serious danger to the community. The risk that he poses to the community can only be adequately monitored by close supervision with strict conditions. It is the role of a CCO, in this case Mr Morton, not to be friendly but to be directive and assertive with the respondent, enforcing the court's order. If the respondent has trust issues, that, with respect, is his problem.

95 The respondent was put on a supervision order for a period of eight years from 1 August 2012. Leaving aside the first breach on 26 October 2012, which I regard as minor and inadvertent, the respondent began to seriously contravene his supervision order on 1 December 2012, four months after its imposition. He continued to contravene the supervision order after being charged with some breaches and interviewed by police.

The respondent offended while intoxicated. Intoxicants will be forbidden and the respondent monitored for compliance [34].

97 His reversion to the use of cannabis and alcohol, is a significant risk factor identified by Dr Febbo.

98 The respondent participated in a second EROI on 27 March 2013 in relation to, as he described, 'the cannabis thing'. He indicated that he knew he was not to have any restricted drugs and described his cannabis use on 5 March 2013:

I had four cones 7 o'clock in the morning --- smoked cannabis through a bong.

I know not to have any drugs. Yeah. It was a breach. Yeah (EROI 4 - 5).

99 The respondent displayed little insight into his own conditions and the risks that might be posed through cannabis or alcohol:

1. Okay. Right. If I can ask you one more question then. Why, why do you think that is a condition of your order to not smoke cannabis or partake in any drugs?
2. I don't know. They seem to think it's a risk, high risk of something. I'm not too sure.
3. Who's, who's they?
4. The court.
5. Okay. So just, just to recap then, that you've - so you smoked cannabis through a bong. You knew it was a breach against your supervision order, and the reason for that condition being within that order, is that it's to do with risk so - - -
6. Risk from what I understand. Yeah.
7. Yeah. Okay. So does that mean, so does that mean that those conditions are there to ensure that you don't become at risk of reoffending?
8. I'm pretty sure it is (EROI 5).

100 In answer to the question as to why he smoked, he said:

I knew I was going to gaol that day so fuck it I'll go stoned (EROI 5).

101 He admitted having smoked cannabis about December. The PathWest report on a urine sample on 8 March 2013 showed the presence of tetrahydrocannabinol.

102 On 3 March 2013 the police attended the respondent's residence at 8.30 pm. That is a time when the respondent should have been at home in accordance with his curfew conditions. He was not at home. He had been to IJ's place. The police observed the respondent coming back to his residence at about 9.25 pm. He was very intoxicated, unsteady on his feet, slurring his words and smelling of alcohol. He acknowledged that he was in breach of his conditions. He stated that he had been drinking in Fremantle and got into a fight with a relative.

103 A breath analysis taken on 3 March 2013 indicated a blood alcohol reading of 0.136% about four hours after the respondent said he had ceased drinking.

104 The second EROI is an indication of the increasing level of risk. After the completion of the EROI on 1 March 2013, the respondent was charged with nine contraventions of the court order and released to bail.

105 On 5 March, by arrangement, he attended at the SOMS office just after midday admitting that he had smoked cannabis. The respondent either has no insight into the link between substance abuse and his offending or he does not care. Whichever is the case, his resumption of alcohol and cannabis increases his risk substantially.

106 I accept Mr Wilson's submission that the respondent's risk to the community has increased since the decision to release on supervision was made in August 2012 and I so find. There is little indication that the respondent intends to be either completely honest or fully compliant.

107 The paramount consideration as always remains the adequate protection of the community. I am satisfied that an order for the respondent's detention for care, control and treatment is the only appropriate order.

108 I am also satisfied that some of the breaches are so serious that a sentence of imprisonment is the only appropriate penalty.

109 A suspended term of imprisonment may be appropriate in some situations, especially when a judge orders that a supervision order continues. It is theoretically possible to impose a term of suspended imprisonment and a detention order, but the practicalities of such an order render it meaningless. In any event, I am satisfied that the offending is so serious that only an immediate term of imprisonment is appropriate.

110 In setting the length I take into account the early pleas of guilty which justify a reduction in sentence of 25%. To the extent I can, I also take into account the practical effect of the sentence upon the detention order. A sentence of imprisonment will suspend the detention order. Once the detention order is reactivated the annual review under the DSO Act will not take place for 12 months from that activation.

111 There is another matter. Strictly there is no double punishment in imposing a penalty for the breach of a supervision order and making a detention order. From the respondent's point of view, it may well appear as double punishment. I think that justice requires a certain modification of penalty to take reality into account.

112 The respondent's background does not give any great mitigation.

113 In setting a sentence in respect of failing to report the contact with the children, I accept that adults were present at all times. The evidence does not establish beyond reasonable doubt that the respondent was engaged in any grooming activity. That said, the objective seriousness of the offences was in failing to remove himself immediately and failing to report the contact on several occasions.

114 I regard the offences of breaching the supervision order through intoxication as serious offences in the circumstances, due to the elevation of risk.

115 There is also the need for a deterrent sentence. There are currently 35 declared sex offenders, 15 of whom are on supervision orders. It is likely that the number under supervision will rise now that there is the ability to monitor an offender's movements at all times because this ability provides further protection for the community. Offenders on supervision orders need to know there are serious consequences if they fail to fully comply with their supervision obligations, especially when noncompliance increases the risk to the community.

116 I direct that all sentences be served concurrently and the total sentence is one of 7 months' imprisonment from 5 March 2013.